David D. Scott and Mary J. Scott v. Robert G. West, Thyra West, Judith C. Clark, Sallie Clingman, Gregory P. Miller, Gaye Miller, Jonathan Bayles, and Amy Bayles ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00156-CV
___________________________
DAVID D. SCOTT AND MARY J. SCOTT, Appellants
V.
ROBERT G. WEST, THYRA WEST, JUDITH C. CLARK, SALLIE CLINGMAN,
GREGORY P. MILLER, GAYE MILLER, JONATHAN BAYLES, AND AMY
BAYLES, Appellees
On Appeal from County Court at Law No. 2
Tarrant County, Texas
Trial Court No. 2014-001905-2
Before Sudderth, C.J.; Gabriel and Pittman, JJ.
Per Curiam
MEMORANDUM OPINION
Appellants David D. Scott and Mary J. Scott (the Scotts) attempt to appeal
from the trial court’s April and May 2018 orders granting summary judgment in favor
of Appellees Robert G. West, Thyra West, Judith C. Clark, Sallie Clingman, Gregory
P. Miller, Gaye Miller, Jonathan Bayles, and Amy Bayles (collectively, the Neighbors).
Because (1) the Wests’ traditional motion for summary judgment (MSJ) does not raise
a ground addressing the Scotts’ trespassing claim against the Wests and (2) none of
the piecemeal orders granting the Neighbors’ summary judgment and dismissing
counterclaims state that they are finally disposing of all claims and all parties, we
dismiss this appeal for want of jurisdiction. 1
I. BACKGROUND AND PROCEDURAL FACTS
A. The Trial Court Granted the Neighbors’ MSJs and Dismissed the Only
Counterclaims.
The Scotts’ residential property sits at a lower elevation than the Neighbors’
residential properties. The Scotts sued the Neighbors2 seeking damages and
injunctive relief related to a retaining wall separating the Scotts’ residential property
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Today, we grant in part the Scotts’ petition for permissive appeal challenging
the trial court’s later summary judgment for the Neighbors on the narrow issue of
whether the Scotts or the Neighbors have the legal duty to repair or replace the
retaining wall. See Scott v. West, No. 02-18-00211-CV (Tex. App.—Fort Worth Sept.
20, 2018, no pet. h.) (mem. op. and order).
Another defendant, Catherine Robertson, was nonsuited in December 2017.
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from the Neighbors’ residential properties.3 In their live petition, the Scotts raised
three causes of action: trespass to real property, negligence, and common law liability
for maintenance and repair of the retaining wall. The Millers counterclaimed. The
Scotts filed a motion for partial summary judgment (partial MSJ) on the issue of duty
to maintain or replace the retaining wall.
The Neighbors filed MSJs. The traditional part of the Wests’ “Amended
Traditional and No Evidence Motion for Summary Judgment” did not expressly seek
summary judgment on the Scotts’ trespass claim, although the no-evidence portion of
the Wests’ motion did seek summary judgment on the trespass claim. On April 3,
2018, the trial court granted the MSJs of Clark and Clingman and the Bayleses. The
trial court also granted the Wests’ traditional MSJ that day but struck through “No
Evidence” language in the form order. On April 10, the trial court granted the
Millers’ MSJ, and on May 1, 2018, the trial court dismissed the Millers’ counterclaim.
Only the order granting the Bayleses’ MSJ had language stating that the Scotts “shall
take nothing against” the Bayleses and addressed court costs (but only those of the
Bayleses).
B. The Scotts Appealed, and Our Court Questioned Its Jurisdiction.
The Scotts filed a notice of appeal on May 3, 2018, from the four orders
granting summary judgment. Eight days later, our clerk’s office sent a letter
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The Wests are former owners but indemnified the current owners of their
residence.
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questioning jurisdiction because the summary judgment orders did “not appear to be
final judgments or appealable interlocutory orders.” The Scotts responded on May
18, 2018, stating that on May 8, they had filed a motion for entry of final judgment
and proposed judgment in the trial court; “[c]ertain defendants [had] filed an
objection and an alternate proposed form of final judgment”; and a hearing had been
set for May 22, 2018, after which the trial judge would “enter a final judgment or
ruling regarding the finality of her prior rulings.”
C. The Trial Court Vacated the Prior Summary Judgment Orders, Granted
the Neighbors’ Traditional MSJs Solely on Duty, Denied the Scotts’
Partial MSJ on Duty, and Gave the Scotts Permission to File a Petition
for Permissive Appeal.
On June 8, 2018, the trial judge signed an “Order on Motions for Summary
Judgment and Certification of Question for Interlocutory Appeal Under TRCP 168.”
That order vacated the four prior summary judgment orders, granted the Neighbors’
traditional MSJs again solely on the basis that they did “not have an established legal
duty to repair or replace the retaining wall” and denied the Scotts’ partial MSJ on duty
for the same reason. The order also gave the Scotts permission to seek a permissive
appeal in this court.
D. The Bayleses and the Wests Responded to Our Jurisdictional Inquiry on
the Same Day the Scotts Filed Their Petition for Permissive Appeal.
On June 25, 2018, the same day the Scotts filed their petition for permissive
appeal in this court, the Bayleses and the Wests filed their first response to our May
11 letter questioning our jurisdiction in this traditional appeal. They argued that
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(1) the four orders granting the Neighbors’ MSJs and the order dismissing the Millers’
counterclaim culminated in a final judgment as of May 1, 2018; (2) the trial court lost
jurisdiction before signing the June 8, 2018 order; and (3) that order was therefore
void. Thus, they argued, this court does have jurisdiction over this traditional appeal.
E. The Scotts Replied that No Final Judgment Existed or, Alternatively, a
Postjudgment Motion Extended the Trial Court’s Plenary Power to Sign
the June 8, 2018 Order.
On June 29, 2018, the Scotts replied to the June 25, 2018 jurisdictional
response of the Bayleses and the Wests. The Scotts contended that there was no final
judgment, but if there had been, their May 8, 2018 motion for judgment and proposed
judgment to which the Bayleses objected and responded with their own proposed
judgment operated as a postjudgment motion extending the trial court’s plenary
power to sign the June 8, 2018 order.
II. DISCUSSION
This court has appellate jurisdiction only over final judgments and interlocutory
orders made appealable by statute. See Rusk State Hosp. v. Black, 392 S.W.3d 88,
92 (Tex. 2012); see, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (West Supp.
2017). “[A]n order or judgment is not final for purposes of appeal unless it actually
disposes of every pending claim and party or unless it clearly and unequivocally states
that it finally disposes of all claims and all parties.” Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 205 (Tex. 2001). We do not presume that a motion for summary
judgment addresses all pending claims. See N.Y. Underwriters Ins. Co. v. Sanchez,
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799 S.W.2d 677, 679 (Tex. 1990); Anderson v. Long, 52 S.W.3d 385, 386 (Tex. App.—
Fort Worth 2001, no pet.).
A. The Wests’ Traditional MSJ Did Not Mention the Scotts’ Trespass
Claim.
The Wests’ traditional MSJ did not address the Scotts’ trespass claim, Barnes v.
Mathis, 353 S.W.3d 760, 764 (Tex. 2011) (“Trespass to real property is an
unauthorized entry upon the land of another, and may occur when one enters—or
causes something to enter—another’s property.”) (citations omitted), even though
their no-evidence motion in the same document did. See Tex. R. Civ. P. 166a(c);
Roberts v. Sw. Tex. Methodist Hosp., 811 S.W.2d 141, 145 (Tex. App.—San Antonio
1991, writ denied) (op. on reh’g) (“One who is sued on two specific theories of
recovery has no duty to except to the petition and ask whether there are other
theories that the pleader wants to allege. The same thing is true of summary judgment
motions.”); cf. LaRue v. Chief Oil & Gas, L.L.C., 167 S.W.3d 866, 874–75 (Tex. App.—
Fort Worth 2005, no pet.) (holding no-evidence summary judgment motion
challenging negligence was not specific enough to challenge the element of duty).
B. None of the April or May 2018 Orders Contained Language of Finality
for All Claims and All Parties.
Neither the April 3, 2018 order granting the Wests’ traditional MSJ nor any of
the other April or May piecemeal orders “clearly and unequivocally state[d] that it
finally dispose[d] of all claims and all parties.” Lehmann, 39 S.W.3d at 205; see Unity
Friendship Baptist Church v. Walton Homes LLC, No. 03-18-00250-CV,
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2018 WL 3543665, at *2 (Tex. App.—Austin July 24, 2018, no pet. h.) (mem. op.)
(noting trial court did not grant more relief than plaintiff sought, and order did not
have finality language); Anderson, 52 S.W.3d at 386 (holding judgment was not final
despite Mother Hubbard language when MSJ did not address breach of contract and
negligence claims). Only the order granting the Bayleses’ MSJ had language stating
that the Scotts “shall take nothing against” the Bayleses and addressed court costs, but
that order addressed only the Scotts’ claims against the Bayleses and the Bayleses’
court costs, not all parties and all claims. Further, the appellate record contains no
severance order. See Harris Cty. Flood Control Dist. v. Adam, 66 S.W.3d 265, 266 (Tex.
2001) (holding judgment in severed cause that disposed of all claims between parties
to appeal was final and appealable).
C. The Trial Court’s Judgment Was Not Final.
Accordingly, we hold that the trial court has not yet signed a final judgment.
Thus, the trial court had plenary power on June 8, 2018, to vacate the piecemeal
summary judgments, to issue a new order granting the Neighbors’ MSJs and denying
the Scotts’ partial MSJ solely on the issue of legal duty, and to give permission for the
Scotts to file a petition for permissive appeal in this court.
III. CONCLUSION
There is still no final judgment in this case. Because the replaced summary
judgment orders the Scotts originally attempted to appeal did not constitute a final
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judgment, and no statute authorized an interlocutory appeal from them, we dismiss
this appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).
Per Curiam
Delivered: September 20, 2018
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