Gertie Marlene Brooks and Sam Roland Brooks v. First Assembly of God Church of Cleburne ( 2002 )

  IN THE

TENTH COURT OF APPEALS

No. 10-01-270-CV

     GERTIE MARLENE BROOKS

     AND SAM ROLAND BROOKS,

                                                                         Appellants

     v.

     FIRST ASSEMBLY OF GOD

     CHURCH OF CLEBURNE,

                                                                         Appellee

From the 249th District Court

Johnson County, Texas

Trial Court # C199900285

DISSENTING OPINION

      The majority has determined that what was filed as a no-evidence motion for summary judgment is not because it referenced summary judgment evidence. They have determined that it is a traditional motion for summary judgment. The majority thus reviews the motion under the standard of review applicable to a traditional motion for summary judgment.

      No useful purpose would be served by me going through an analysis to determine the result if this case was reviewed under the proper standard of review for a no-evidence motion for summary judgment. For the reasons expressed in my dissenting opinion in Jacobo v. Binur, I believe the majority has applied the wrong standard of review. Jacobo v. Binur, 70 S.W.3d 330, 339-44 (Tex. App.—Waco 2002, no pet. h.)(Gray, J. dissenting). Until the precedential value of Jacobo is established I will continue to note my disagreement with the majority's method of analysis of this type motion for summary judgment. Accordingly, I respectfully dissent.

                                                                         TOM GRAY

                                                                         Justice

Dissenting opinion delivered and filed September 4, 2002

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wooden bridge with three three-foot culverts under County Road 309, the county had denied his cattle access from his forty-acre tract of land on the west side of the road to his eighty-acre tract of land on the east side of the road. Van Zandt sought damages for his loss of use of the eighty-acre tract and for the greater expense in feeding his cattle because they had no reasonable access to the eighty-acre tract. The county answered and filed a motion for summary judgment, which was denied by the court in May 1989. On August 6, 1991, Van Zandt filed an amended petition, arguing that the implied dedication of the road to the public did not extend to the existing use of the passage under the bridge. His amended petition also added a cause of action for loss of water available to his cattle as a result of the county's modification to the bridge.

      On January 7, 1993, the county filed a second motion for summary judgment arguing that, as a matter of law, Van Zandt was not entitled to access under the bridge because the dedication of the road to public use extended to as much of the surface or subsurface as was reasonably necessary for the public right-of-way. The county's motion for summary judgment, however, did not address the loss-of-water issue raised by Van Zandt's amended petition.

      On February 10, 1993, the court held a hearing on the county's second motion for summary judgment. The court's order granting the motion disposed of all issues except Van Zandt's allegation that the reduction in water flow caused by the bridge modification resulted in a loss of water available to his cattle. A summary judgment that fails to dispose expressly of all parties and issues in the pending suit is interlocutory and not appealable unless a severance of that phase of the case is ordered by the trial court; in the absence of an order of severance, the party against whom an interlocutory summary judgment has been rendered has his right of appeal when, and not before, the partial summary judgment is merged in a final judgment disposing of all parties and issues.

      Because Johnson County did not move for summary judgment on the loss-of-water cause of action, the summary judgment disposes of only the loss-of-use and loss-of-access causes of action. The summary judgment is, therefore, interlocutory. As a result, we are without jurisdiction to consider Van Zandt's points of error.

      The appeal is dismissed.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Dismissed

Order issued and filed December 1, 1993

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