Ortiz v. Spann

OPINION ON MOTION FOR REHEARING

On March 15, 1984, this Court entered an order reversing the judgment of the trial court and remanding the cause for trial on the merits. This order was in response to an appeal from a summary judgment granted (in part) in favor of appellees.

On Motion for Rehearing, appellees contend initially that the judgment should be affirmed because appellants failed to point out to this Court specifically, by point of error, fact questions which exist on specific issues material to this case, pursuant to TEX.R.CIV.P. 418. Appellants did not complain specifically in their point of error number one of the trial court’s action in granting appellees’ motion for summary judgment. However, we properly considered their point of error because their arguments sufficiently directed the attention of the Court to the error relied upon. TEX.R.CIV.P. 418(d). Since under TEX.R. CIV.P. 422, “a substantial compliance with these rules will suffice in the interest of justice,” we found appellants’ point of error to complain of the trial court’s action in granting appellees’ summary judgment because appellees did not establish as a matter of law that an easement appurtenant, either implied or prescriptive, exists in favor of appellees’ property for the continued encroachment over and upon appellants’ property. See Grant Road Public Utility District v. Coulson, 638 S.W.2d 616 (Tex.App.—Houston [1st Dist.] 1982, no writ).

Next, appellees contend on motion for rehearing that, absent a specific point of error, appellants are not entitled to rely generally upon the ground of insufficient summary judgment proof to support summary judgment. This contention is also without merit. It is well settled that the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiffs’ cause of action. Gibbs v. General Motors Cory., 450 S.W.2d 827 (Tex.1970). The motion for summary judgment will stand or fall on the grounds specifically set forth in the motion(s). The movant for summary judgment has the burden of showing that he is entitled to judgment as a matter of law. Town North National Bank v. Broaddus, 569 S.W.2d 489 (Tex.1978); Wilcox v. St. Mary’s University of San Antonio, 531 S.W.2d 589 (Tex.1975). This-was not done in this case.

Appellees contend additionally that it is the duty of this Court to sustain the judgment of the trial court on any ground supported by the summary judgment record since the judgment below was general and not specific in granting recovery. Appel-lees approached the trial court on a variety of recognized easement theories, and attempted to persuade this Court that the *915record is sufficient to support the trial court’s judgment on any or all of these various easement theories.1

We recognize the general principle that an appellate court should affirm the judgment of the trial court if it can be upheld on any legal theory that finds support in the evidence. Gulf Land Co. v. Atlantic Refining Co., 131 S.W.2d 73, 84 (Tex.1939); Miller v. Soliz, 648 S.W.2d 734 (Tex.App.—Corpus Christi 1983, no writ); Ross v. Walsh, 629 S.W.2d 823 (Tex.App.—Houston [14th Dist.], no writ). However, we are not required, nor are we inclined, to review by process of elimination on the many easement theories presented by ap-pellees which are not supported by the summary judgment evidence in the record.

This case must be reversed and the cause remanded for a trial to the jury. Regardless of which easement theory appellees may proceed on, there remains, among the other fact issues, questions of fact concerning the rights and duties incident to the easement use; i.e., what may be considered a proper and reasonable use, as well as what may be reasonably necessary to the easement owners’ beneficial use and enjoyment, such as will not injuriously increase the burden on the servient owner. See 31 Tex.Jur.3d, Easements & Licenses in Real Property see. 43-49.

Appellees’ motion for rehearing is overruled.

BISSETT, J., not sitting.

. Appellees contended the trial court’s judgment should be affirmed upon appellees’ summary judgment allegations and proof that there exists an easement created by (1) express agreement (i.e., express grant); (2) by implication; (3) by estoppel; or (4) by prescription. Appellees also presented arguments on correlative rights as a means of denying appellants’ claim of a legal right to trim the overhanging branches.