                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-10-00074-CV

GRADY AND ANN SULLIVAN,
                                                                    Appellants
v.

GERMANIA FARM MUTUAL INSURANCE
ASSOCIATION, METRO-PLEX FOUNDATION
COMPANY, INC., ARC, INC., RICHARD
THOMAS WILLIAMS D/B/A TEJAS ENGINEERS
& CONTRACTORS, AND J. RUSSELL MACKEY,

                                                                    Appellees



                           From the 74th District Court
                            McLennan County, Texas
                           Trial Court No. 2006-3539-3


                          MEMORANDUM OPINION


      Before the Court is Appellee J. Russell Mackey’s motion to dismiss this appeal.

Mackey contends that the Sullivans failed to timely perfect the appeal and thus we lack

jurisdiction. The Sullivans have filed a response contending that their notice of appeal

was timely filed. The controlling issue is whether a default judgment signed by the trial
court on November 16, 2009 or a subsequent judgment signed on January 20, 2010 is the

final judgment. We will conclude that the November 16 judgment is the final judgment.

Thus, we will grant Mackey’s motion to dismiss.

       The first pertinent stage in the litigation is Mackey’s summary-judgment motion,

which the trial court granted by order signed November 5, 2009, effectively disposing of

all the Sullivans’ claims against Mackey.

       The case was set for jury trial on the remaining claims on November 16.

However, the remaining defendants failed to appear. The November 16 judgment

recites that:

       The Sullivans, Germania Farm Mutual Insurance Association, and Metro-Plex
       Foundation Company had “previously announced settlement of Plaintiffs’ claims
       against those said two Defendants”; and

       Richard Thomas Williams and ARC, Inc. failed to appear.

The court rendered a default judgment against Williams and ARC. The judgment

concludes, “All relief requested in this case and not expressly granted is denied. This

judgment finally disposes of all parties and claims and is appealable.”

       On January 19, 2010, the Sullivans filed a motion to dismiss their claims against

Metro-Plex because the parties had settled. On January 20, the court signed an order

dismissing the Sullivans’ claims against Metro-Plex. On January 21, the Sullivans and

Germania filed a joint motion to dismiss the Sullivans’ claims against Germania. The

court signed an order dismissing those claims on January 20, and the order was entered

on January 21.




Sullivan v. Germania Farm Mut. Ins. Ass’n                                         Page 2
       The court also signed a new “final judgment” on January 20. The January 20

judgment again recites the rendition of default judgment against Williams and ARC

and in the Sullivans’ favor. The judgment includes the following paragraph explaining

the need for entry of a second judgment:

              The above Judgment was reduced to writing and signed by the
       Court on November 16, 2010 [sic], however, said Judgment erroneously
       stated that Plaintiffs’ claims against Defendants Germania Farm Mutual
       Insurance and Metro-Plex Foundation Company, Inc., had been finally
       disposed of when they had not.

       The issue of which judgment is the final judgment rests on the application of the

principles announced in Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). There, the

Court held:

       [I]n cases in which only one final and appealable judgment can be
       rendered, a judgment issued without a conventional trial is final for
       purposes of appeal if and only if either it actually disposes of all claims
       and parties then before the court, regardless of its language, or it states
       with unmistakable clarity that it is a final judgment as to all claims and all
       parties.

Id. at 192-93.

       A default judgment is one “issued without a conventional trial.”             See In re

Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005) (orig.

proceeding); Lehmann, 39 S.W.3d at 199-200; WTW Americas, Inc. v. Sys. Integration, Inc.,

221 S.W.3d 744, 746 (Tex. App.—Waco 2007, no pet.). Thus, the November 16 judgment

will be considered the final judgment only if it: (1) actually disposes of all claims and

parties; or (2) “states with unmistakable clarity that it is a final judgment as to all claims

and all parties.” Lehmann, 39 S.W.3d at 192-93.
       As seen by subsequent events, the November 16 judgment did not actually

dispose of the Sullivans’ claims against Germania and Metro-Plex, with whom they

later settled.   However, the November 16 judgment states, “This judgment finally

disposes of all parties and claims and is appealable.”

       According to Lehmann:

       A statement like, “This judgment finally disposes of all parties and all
       claims and is appealable”, would leave no doubt about the court’s
       intention. An order must be read in light of the importance of preserving
       a party’s right to appeal. If the appellate court is uncertain about the
       intent of the order, it can abate the appeal to permit clarification by the
       trial court. But if the language of the order is clear and unequivocal, it
       must be given effect despite any other indications that one or more parties
       did not intend for the judgment to be final. An express adjudication of all
       parties and claims in a case is not interlocutory merely because the record
       does not afford a legal basis for the adjudication. In those circumstances,
       the order must be appealed and reversed.

Id. at 206; accord Burlington Coat Factory, 167 S.W.3d at 830.

       The November 16 judgment “states with unmistakable clarity that it is a final

judgment as to all claims and all parties.”         Lehmann, 39 S.W.3d at 192-93; accord

Burlington Coat Factory, 167 S.W.3d at 830. The Sullivans did not timely perfect an

appeal from the November 16 judgment. Accordingly, we grant Mackey’s motion and

dismiss the appeal.



                                                         FELIPE REYNA
                                                         Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Appeal dismissed
Opinion delivered and filed April 14, 2010
[CV06]


Sullivan v. Germania Farm Mut. Ins. Ass’n                                            Page 4
