      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00374-CV



                 Bryan Montalvo, Teresa Tracey and Jim Tracey, Appellants

                                                  v.

                                      Roger Camp, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
       NO. D-1-GN-07-002813, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                             M E M O R A N D U M O P I N I ON


               Appellants Bryan Montalvo, Teresa Tracey, and Jim Tracey (“the Traceys”) sued

Elco Consolidated, LLC, the City of Lakeway, Jon Champeny, and appellee Roger Camp for various

causes of action arising from the alleged intentional destruction of a portion of the Traceys’ driveway

by Elco Consolidated, LLC on the orders of Camp and from the City of Lakeway’s refusal to permit

the Traceys to rebuild it. The Traceys nonsuited Elco Consolidated, LLC and Jon Champeny. The

trial court, in separate orders, granted summary judgment for Camp and the City of Lakeway. In a

single issue on appeal, the Traceys argue that the trial court erred in granting summary judgment in

favor of Camp because questions of material fact exist as to whether the Traceys have a possessory

interest in the disputed land.1 After reviewing the record and considering the Traceys’ briefing on




       1
           The Traceys do not complain of the summary judgment rendered in favor the City of
Lakeway.
the issue of this Court’s jurisdiction, we conclude that the trial court’s order granting summary

judgment in favor of Camp did not dispose of all of the Traceys’ claims against him. Accordingly,

there is no final, appealable judgment. We therefore lack jurisdiction over this appeal and will

dismiss it for want of jurisdiction.

                The Traceys asserted four claims against Camp: (1) trespass, (2) intentional infliction

of emotional distress, (3) negligence, and (4) vicarious liability for the alleged trespass and

negligence of Elco Consolidated, LLC. In his motion for summary judgment, Camp did not specify

on which of the Traceys’ claims he was seeking summary judgment, nor is it readily apparent from

the body of the motion or the prayer (“Movants pray that the Court grant this Motion for Summary

Judgment . . . .”). Significantly, however, the motion relied solely on the assertion that the Traceys

had no property interest in the land on which the destroyed portion of their driveway was built, yet

it does not appear that the issue of whether the Traceys had an interest in the property is material to

all of the Traceys’ claims against Camp. See Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550

(Tex. 2005) (elements of negligence are: (1) legal duty owed by one person to another; (2) breach

of that duty; and (3) damages that are proximately caused by breach); Brewerton v. Dalrymple,

997 S.W.2d 212, 215 (Tex. 1999) (elements of intentional infliction of emotional distress are:

(1) defendant acted intentionally or recklessly; (2) conduct was extreme and outrageous;

(3) defendant’s actions caused plaintiff emotional distress; and (4) plaintiff’s emotional distress

was severe).

                The trial court’s order granting Camp’s motion for summary judgment is similarly

unclear. It states, in pertinent part, that:



                                                  2
        Roger Camp . . . [is] entitled to summary judgment as a matter of law because there
        are no genuine issues of material fact with respect to Plaintiffs’ contention that
        Plaintiff has [sic] a real property interest in the portion of driveway removed.

        The Court FINDS that as a matter of law Plaintiffs possess no legally enforceable
        property right to maintain a permanent improvement in the City’s right of way.

        Therefore, the court GRANTS the motion for summary judgment.


Thus, the order does not specify which claim or claims against Camp are being disposed of, nor can

we reasonably deduce which claim or claims the order intended to dispose of by reference to Camp’s

motion for summary judgment because, as stated above, the motion is likewise unclear.

Furthermore, the trial court’s order contains neither a “Mother Hubbard” clause (“All relief

not expressly granted is denied.”) nor a Lehmann statement, see Lehmann v. Har-Con Corp.,

39 S.W.3d 191, 206 (Tex. 2001) (“This judgment finally disposes of all parties and all claims and

is appealable.”), either of which could have indicated that the trial court intended its order to dispose

of all of the Traceys’ claims against Camp.

                Logically, the trial court’s order appears to dispose only of the Traceys’ trespass claim

against Camp, because having a possessory interest in the property at issue is an element of a trespass

claim. See Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 10 (Tex. 2008) (“The

gist of an action of trespass to realty is the injury to the right of possession.” (quoting Pentagon

Enters. v. Southwestern Bell Tel. Co., 540 S.W.2d 477, 478 (Tex. Civ. App.—Houston [14th Dist.]

1976, writ ref’d n.r.e.))). As noted above, however, the Traceys’ other causes of action against Camp

do not necessarily turn on the Traceys’ property rights; therefore, the court’s order, given its

ambiguity, cannot reasonably be construed to have disposed of those claims.

                                                   3
               Apart from certain types of interlocutory orders specified by statute, none of which

is presented here, this Court has jurisdiction only over appeals from final judgments. See Lehmann,

39 S.W.3d at 195; see also Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West 2008) (listing

appealable interlocutory orders). A judgment, order, or series of orders amounts to a final judgment

when it (or they) dispose of all parties and all claims. See Lehmann, 39 S.W.3d at 206. “[W]hether

a judicial decree is a final judgment must be determined from its language and the record in the

case.” Id. at 195. Because we conclude that the order granting summary judgment in favor of Camp

did not dispose of all of the Traceys’ claims against him, it is not a final, appealable judgment.

Consequently, this Court lacks jurisdiction over this appeal. We therefore dismiss this appeal for

want of jurisdiction.




                                              __________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Dismissed for Want of Jurisdiction

Filed: April 28, 2010




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