McNally v. Guevara

989 S.W.2d 380, 1999 WL 11210

• Court: Court of Appeals of Texas
• Decided: April 22, 1999
• Docket: 03-97-00380-CV
• Status: Published

Opinions

MARILYN ABOUSSIE, Chief Justice.

Appellant, R. Stephen McNally, complains of the trial court’s granting of summary judgment in favor of appellees, Joseph Guevara and Maria Trevino. We will affirm.

STATEMENT OF FACTS

In November 1979, McNally purchased the house at 602 Elmwood for use as multiple tenant housing. The purchase included a separate grant of “an easement for driveway purposes” (“the driveway easement”) over 600 Elmwood, appellees’ property. Appel-lees’ predecessors granted the driveway easement to McNally’s immediate predecessor in January 1979. The driveway easement crosses the back of appellees’ property and leads to the driveway and garage behind the 602 Elmwood house.¹ McNally asserts that his predecessor parked on the driveway easement and that McNally and his tenants have been driving and parking on the driveway easement for the past sixteen years.² Although the 600 Elmwood property, a four-plex, is also used as rental housing, these residents have their own parking on that property and access to that parking independent of the driveway easement.

Appellees purchased the 600 Elmwood property in 1992. Despite the long history of 602 Elmwood residents parking on the driveway easement, McNally claims that appellees attempted to interfere with his parking rights by erecting a no parking sign, threatening to tow his tenants, and telling McNally that he and his tenants have no right to park on the easement. In response, McNally filed suit against appellees, seeking a declaratory judgment that he had the right to park on the driveway easement and an injunction prohibiting appellees from interfering with that right. McNally claimed he was entitled to park on the driveway easement because the express grant of the driveway easement included parking, or, alternatively, he had acquired a prescriptive easement to park in the driveway easement area. Appellees counterclaimed and requested the trial court to declare that the driveway easement was for ingress and egress only and did not include parking. Appellees then filed a motion for summary judgment. After a hearing, the trial court granted appellees’ motion for summary judgment. McNally now appeals.

DISCUSSION

I. Finality of Summary Judgment

McNally argues in his first point of error that the summary judgment order is not final and reviewable because it does not rule on all issues presented in the pleadings. In particular, McNally contends that the judgment does not contain a “Mother Hubbard”.clause or its functional equivalent. He also insists the order fails to dispose of appellees’ claim for attorney’s fees and does not rule on the merits of his prescriptive easement claim.³ We reject McNally’s arguments.

In order to be final and appealable, an order granting a motion for summary judgment must dispose of all parties and issues before the court. See Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex.1993). “If a summary judgment order appears to be final, as evidenced by the inclusion of language purporting to dispose of all claims or parties, the judgment should be treated as final for purposes of appeal.” Mafrige, 866 S.W.2d at 592. Further, finality is to be judged by the trial court’s intent as discerned from the language of the decree, the record as a whole, and, occasionally, the parties’ conduct. See Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 277 (Tex.1996).

Here, we have an order that disposes of all issues and parties before the court and evidences the trial court’s intent that it be final. McNally’s petition claimed an entitlement to park on the easement based either on the express driveway easement itself or upon a prescriptive easement theory. Appellees’ summary judgment motion attacked both of McNally’s theories and requested judgment that the driveway easement be found to exclude parking as a matter of law. In ruling on the matter, the trial court recited that appellees’ motion for summary judgment “should be in all things granted and that the [appellees] in this action are entitled to summary judgment.” The trial court found

that the easement in question ... is a specific and unambiguous grant of an easement; that the easement gives [McNally] the right to travel over the easement as a means of ingress and egress but does not give [McNally] the right to park automobiles or other motor vehicles on the easement. ...

The trial court further found “as a matter of law that [appellees should] prevail on their claims for relief under the Uniform Declaratory Judgments Act.” Finally, the trial court ordered all costs taxed against McNally. Although the trial court’s order did not specifically deny relief based upon the prescriptive easement theory, the trial court in fact ruled upon, and rejected it, when it deemed that appellees’ summary judgment motion should be in all things granted. While McNally is correct that the summary judgment order does not decide appellees’ claim for attorney’s fees, this is due to appellees’ waiver of attorney’s fees and not to an oversight of the trial court, which could render the order a partial summary judgment. Appellees admit that they abandoned their claim for attorney’s fees in the trial court and affirm that waiver on appeal. Thus, they cannot recover attorney’s fees despite appellant’s insistence. Consequently, we conclude that, as the trial court intended, the summary judgment order disposed of all issues and parties in the case; thus, the order is final and appealable. We overrule McNally’s first point of error.

II. Summary Judgment

The standards for review of a summary judgment are well established: (1) the mov-ant must show there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, the court must take evidence favorable to the nonmovant as true; and (3) the court must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the nonmovant’s favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant seeking summary judgment based on a plaintiffs inability to prove its case must conclusively disprove at least one element of each of the plaintiffs causes of action. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). Because the propriety of a summary judgment is a question of law, we review the trial court’s decision de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994).

We first address McNally’s third point of error concerning the scope of the driveway easement, as this is germane to all of McNally’s points of error. McNally avers that the trial court erred in granting summary judgment on the basis that an easement for “driveway purposes” absolutely excludes parking. McNally complains that the language of the driveway easement is ambiguous, thus rendering its scope a fact question inappropriate for summary judgment. Ap-pellees contend the trial court correctly determined that the driveway easement excludes parking as a matter of law. We agree with appellees.

There is no dispute that McNally has the right to utilize the driveway easement to access the parking located behind his house. The dispute centers on whether the express grant allows McNally’s tenants to park their cars in the driveway easement area. As summary judgment proof that the terms of the driveway easement exclude parking as a matter of law, appellees offered an opinion out of this Court, Colborn v. Bailey, 408 S.W.2d 327 (Tex.Civ.App.—Austin 1966, no writ). Colbom involved the same issue as in this case: whether an owner of an easement for “driveway purposes” can park automobiles on that easement. The Colbom court concluded that an easement for “driveway purposes” only provides a means of ingress and egress and does not include parking rights. See Colborn, 408 S.W.2d at 329. In light of the Colbom precedent, we reject McNally’s argument that summary judgment was inappropriate because the easement is ambiguous and presents a fact question. In accordance with Colbom, we conclude that McNally’s specific easement for “driveway purposes” is solely for ingress and egress and excludes parking. Point of error three is overruled.

In his second point of error, McNally claims the trial court erred in granting summary judgment on issues not expressly presented in the motion, not proven by the summary judgment proof, and unsupported by Texas law. McNally first complains that appellees’ summary judgment motion did not include their claim that McNally forfeited the driveway easement. However, appellees asserted this argument in their counterclaim only as an alternative position if the trial court ruled against them on the scope of the easement, which it did not. Second, McNally argues the summary judgment motion did not address appellees’ request for attorney’s fees. As previously explained, appellees waived attorney’s fees. Appellees represented in their brief and at oral argument that they waived their claim for attorney’s fees, thus explaining why their counterclaim requests attorney’s fees but their summary judgment motion does not and why none were awarded.

Lastly, McNally argues the summary judgment motion failed to mention, expressly present, or conclusively disprove his prescriptive easement theory. Appellees’ summary judgment motion refers to McNally’s “alternative contention that he is entitled to park on the easement ... because [he] has parked on the easement over a period of time.” The trial court’s order granted appellees’ motion in all things. Thus, we conclude that the motion did address the prescriptive easement claim raised in McNally’s pleadings and the trial court’s order found against McNally on this theory as a matter of law. Appellees attacked McNally’s prescriptive easement claim by arguing in their summary judgment motion that a grant of a specific easement may not be enlarged by prescription. See Kearney & Son v. Fancher, 401 S.W.2d 897 (Tex.Civ.App.—Fort Worth 1966, writ ref'd n.r.e.). In Kearney, the court stated if “the terms of the grant are specific, the limits of the use may not be enlarged.” Kearney, 401 S.W.2d at 903. Here, McNally has a specific grant of a driveway easement for ingress and egress only. Accordingly, we agree with appellees that McNally cannot enlarge that right to include parking by prescription. McNally’s second point of error is overruled.

McNally argues in his fourth point of error that the summary judgment motion failed to establish that parking was not necessary to the full enjoyment of the driveway easement; therefore, the summary judgment order was not appropriate. Our holding that the scope of the easement for “driveway purposes” is limited to ingress and egress makes this point moot. Point of error four is overruled.

CONCLUSION

We have determined that the summary judgment order was final and appealable, the summary judgment motion presented and conclusively disproved all issues, and the trial court correctly interpreted, as a matter of law, the scope of the express driveway easement. Accordingly, we affirm the summary judgment.

1 . The record is unclear as to whether the driveway easement provides the only access to McNally's property or just the most convenient access. The diagram printed in the dissenting opinion illustrates the layout of the two properties and the easement.

2 . McNally claims the driveway easement area provides four to six parking spaces for his tenants. The summary judgment proof showed that McNally charged his tenants for parking in the driveway easement, either in the lease agreement or in a separate parking charge.

3 .McNally argues that the summary judgment order also does not address his "implied easement claim.” This claim, however, was not before the trial court at the time the order was signed on March 21, 1997. McNally did not assert this claim until he filed a Second-Amended Original Petition on October 1, 1997. The issue, therefore, was never before the trial court and cannot affect the finality of the summary judgment that was granted.