52 S.W.3d 195 (Tex. 2001)

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McNally v. Guevara

Supreme Court of Texas

Sep 20, 2001

52 S.W.3d 195 (Tex. 2001)

Summary

holding that where live pleading includes request for attorney's fees, and such request is not disposed of on summary judgment, summary judgment is interlocutory and not appealable

Summary of this case from Hernandez v. Vazquez

See 25 Summaries

Opinion

No. 99-0230

Opinion Delivered: June 28, 2001 Rehearing Overruled September 20, 2001

On Petition for Review from the Court of Appeals for the Third District of Texas

R. Stephen McNally, Austin, pro se.

James P. Wallace, Jr., Georgetown, for respondents.

Per Curiam

R. Stephen McNally owns an easement "for driveway purposes" on land owned by Joseph Guevara and Maria Trevino. McNally sued Guevara and Trevino for a declaration that the easement could be used not only for access but also for parking. The defendants counterclaimed for a declaration that the easement could not be used for parking and for attorney fees. The defendants filed a motion for summary judgment that addressed only the easement issues and not their claim for attorney fees. The trial court granted the motion and signed a document captioned "Judgment" that: recited that the defendants' motion "should be in all things granted"; stated that defendants were entitled as a matter of law to "prevail on their claims for relief under the Uniform Declaratory Judgments Act"; declared the extent of the easement in dispute; and taxed all costs against the plaintiff. The judgment did not refer to the defendants' claim for attorney fees.

McNally appealed but also moved to dismiss his own appeal on the ground that the judgment was not final because it did not dispose of the defendants' claim for attorney fees. The defendants argued to the court of appeals that they had abandoned their claim for attorney fees by not including it in their motion for summary judgment. A divided court of appeals agreed with the defendants, noting that the award of costs also indicated finality. 989 S.W.2d 380 (Tex.App.-Austin 1999). The court affirmed the trial court's judgment.

We agree with the dissenting Justice in the court of appeals that a party's omission of one of his claims from a motion for summary judgment does not waive the claim because a party can always move for partial summary judgment, Tex.R.Civ.P. 166a(e), and thus there can be no presumption that a motion for summary judgment addresses all of the movant's claims. See New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678-679 (Tex. 1990). Nothing in the trial court's judgment, other than its award of costs to the defendants, suggests that it intended to deny the defendants' claim for attorney fees. The award of costs, by itself, does not make the judgment final. Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2000).

Because the judgment does not appear final on its face, and because it did not dispose of the defendants' claim for attorney fees, it was not an appealable judgment. Accordingly, without hearing oral argument, Tex.R.App.P. 59.1, we reverse the judgment of the court of appeals and remand the case to that court to determine whether to abate the appeal to permit the trial court to render a final judgment, Tex.R.App.P. 27.2, or to dismiss the appeal for want of jurisdiction.

Summaries of

McNally v. Guevara

Supreme Court of Texas

Sep 20, 2001

52 S.W.3d 195 (Tex. 2001)

holding that where live pleading includes request for attorney's fees, and such request is not disposed of on summary judgment, summary judgment is interlocutory and not appealable

Summary of this case from Hernandez v. Vazquez

holding that judgment granting summary judgment motion that addressed only defendant's declaratory relief claims but not defendant's claim for attorney's fees was not final and appealable judgment "because it did not dispose of the defendants’ claim for attorney fees"

Summary of this case from Sohani v. Sunesara

holding that summary-judgment order's resolution of court-costs claim did not dispose of attorney's-fees claim and did not indicate finality

Summary of this case from Homeward Residential, Inc. v. Burch

holding a judgment that did not dispose of attorney's fees was not an appealable judgment

Summary of this case from Melton v. CU Members Mortg.

holding that where live pleading includes request for attorney's fees, and such request is not disposed of on summary judgment, summary judgment is interlocutory and not appealable

Summary of this case from Metro. Water Co. v. Blue Water Sys., L.P.

holding that a summary judgment that did not dispose of a defendant's counterclaim for attorney's fees was not a final, appealable judgment

Summary of this case from Garza v. Burch Constr., Inc.

holding that a summary judgment that did not dispose of a defendant's counterclaim for attorney's fees was not a final, appealable judgment

Summary of this case from Garza v. Burch Constr.

holding summary judgment not final because it did not refer to movant's claims for attorney's fees and contained no language indicating trial court intended it to be final

Summary of this case from Hest Techs., Inc. v. PC Connection Sales Corp.

holding that judgment was not final and appealable, in part, because it did not dispose of defendant's attorney's fees claim

Summary of this case from In re Educap, Inc.

holding that summary judgment was not final and appealable because it did not dispose of claim for attorney's fees

Summary of this case from BLM of Brownwood, Inc. v. Mid-Tex Cellular, Ltd.

holding summary judgment order was not a final judgment because it did not dispose of the defendants' claim for attorney's fees

Summary of this case from Mandell v. Mandell

holding that where a summary judgment order did not dispose of defendant's claim for attorney's fees, it was not a final appealable order

Summary of this case from Wigfall v. Sherwood Estates II

holding judgment not final because it failed to dispose of claim for attorney's fees and did not appear final on its face

Summary of this case from TEXAS MIGRANT COUNCIL v. ROSA

concluding judgment in which court did not dispose of defendant's request for attorney's fees did not dispose of all claims and parties and was interlocutory

Summary of this case from Watts v. Feldman

concluding judgment in which court did not dispose of defendant's request for attorney's fees was interlocutory

Summary of this case from Equip. Performance Mgmt., Inc. v. Baker Hughes, Inc.

reversing and remanding for court of appeals to determine whether to abate appeal to permit trial court to render final judgment or to dismiss for want of jurisdiction

Summary of this case from Bacon-Tomsons, Ltd. v. Chrisjo Energy, Inc.

reversing and remanding for the court of appeals to determine whether to abate the appeal to permit the trial court to render a final judgment or to dismiss for want of jurisdiction

Summary of this case from Rogers v. Rogers

reversing and remanding for the court of appeals to determine whether to abate the appeal to permit the trial court to render a final judgment or to dismiss for want of jurisdiction

Summary of this case from Playa Vista, L.P. v. Lakeside Re, LP

In McNally, the defendants filed a motion for summary judgment but failed to request summary judgment on their counterclaim for attorney's fees.

Summary of this case from Farm Bureau Cnty. Mut. Ins. Co. v. Rogers

noting appellate court granted appellant's motion to abate appeal to permit trial court to render final judgment on all claims, including attorney's fees

Summary of this case from Lexington v. Treece

noting appellate court granted appellant's motion to abate appeal to permit trial court to render final judgment on all claims, including attorney's fees

Summary of this case from River Bend Park, LP v. Camcorp Interests, Ltd.

noting appellate court granted appellant's motion to abate appeal to permit trial court to render final judgment on all claims, including attorney's fees

Summary of this case from Pereira v. Bustillo

remanding to court of appeals to determine whether to abate appeal for entry of a final judgment under rule 27.2 or to dismiss appeal for want of jurisdiction

Summary of this case from Hest Techs., Inc. v. PC Connection Sales Corp.

relying on Kearney & Son v. Fancher, 401 S.W.2d 897, 903-05 (Tex. Civ. App.—Fort Worth 1966, writ ref'd n.r.e.), to hold that holder of express easement permitting ingress and egress "cannot enlarge that right to include parking by prescription"

Summary of this case from Davis v. Johnston

stating that summary judgment was not an appealable judgment because it did not appear final on its face and because it did not dispose of the defendants' claim for attorneys' fees

Summary of this case from George v. Dallas County

McNally v. Guevara

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Opinion

McNally v. Guevara

McNally v. Guevara

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