
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-09-00117-CV


Jeffrey S. Kelly, Pamela K. Kelly and Jeff Kelly Construction, Appellants

v.

Stock Building Supply of Texas, L.P. d/b/a Stock Building Supply, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-08-001020, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING


O P I N I O N

		Jeffrey S. Kelly, Pamela K. Kelly, and Jeff Kelly Construction ("the Kellys") (1) appeal
the judgment granted after their answer was struck for their failure to timely and fully respond
to discovery requests.  Because the judgment does not dispose of all parties and all claims, it is not
final.  We dismiss this appeal for want of jurisdiction.
		Stock Building Supply of Texas, L.P. d/b/a/ Stock Building Supply ("Stock") filed
a suit on sworn account to collect from the Kellys amounts due for building materials Stock alleges
it sold to the Kellys.  After the Kellys first largely failed to respond to discovery by deadlines, filed
some responses after being sanctioned and ordered at least twice to file responses, and then filed
responses deemed to be inadequate, the trial court struck the Kellys' pleadings.  The trial court
signed a document entitled "Final Judgment" that named the parties and their roles in the case in the
style, and that provided as follows:

		On this day came to be heard, Plaintiff's Motion for Sanctions Against
Jeffrey Kelly and Pamela Kelly.  Having considered the Motion, pleadings and
evidence on file, and argument of counsel, the Court finds that Jeffrey Kelly and
Pamela Kelly have failed to respond to discovery seeking responses relevant to their
defense against Plaintiff's claim despite the imposition of lesser sanctions, and that
this failure justifies the presumption that the defense lacks merit, all as set forth in
the Court's prior order awarding sanctions.

		IT IS, THEREFORE, ORDERED that Defendants' answer to Plaintiff's
petition is stricken;

		IT IS FURTHER ORDERED that Plaintiff is awarded the following:

			a) $24,442.22 in damages;

			b) Interest on damages at the rate of 18 percent per annum from
July 31, 2007, until entry of this Judgment;

			c) $9,500.00 in attorneys' fees as well as all taxable costs; and,

			d) Interest on items "a)" through "c)" at the annual rate of 18 percent
from entry of this Judgment until satisfied.

		IT IS FURTHER ORDERED that Plaintiff is awarded the following
contingent on the events indicated:  [awards of attorneys' fees for various appellate
actions and results, plus interest].

		IT IS FINALLY ORDERED that Plaintiff may proceed with foreclosure of
its lien against Defendants' real property recorded as document 2006219359 in the
Travis County property records and attached as Exhibit D to Plaintiff's live pleading.
		The Kellys complain that this judgment is not final because it does not dispose
of any claims and does not mention the defendant Jeff Kelly Construction in its text.  It mentions
the individual Kellys by name, strikes the "Defendants' answer," and then awards the plaintiff
(Stock) damages and other money without adjudicating any claims or stating against whom
judgment is rendered.
		The Kellys' assertion that the judgment is not final is a challenge to this
Court's jurisdiction.  We must examine whether we have jurisdiction before considering
other aspects of this appeal.  See New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678
(Tex. 1990). With few exceptions, this Court does not have jurisdiction over judgments that are not
final.  City of Houston v. Kilburn, 849 S.W.2d 810, 811 (Tex. 1993).  The exceptions do not apply
here.  See id.  We must determine whether this judgment is final.
		A judgment is final for purposes of appeal if it disposes of all pending parties and
claims in the record.  Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).  No presumption
of finality follows a default judgment.  See id. at 199-200.  A default judgment is deemed final,
however, if it expresses an unequivocal intent to finally dispose of the case.  In re Burlington Coat
Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 830 (Tex. 2005).  Absent a conventional trial
on the merits, a judgment is final "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."  Lehmann, 39 S.W.3d at 192-93.  We also can look
to the record beyond the judgment.  Id. at 195.
		The judgment in this case is not final.  The judgment before us is the
functional equivalent of a default judgment.  See Tex. R. Civ. P. 215.2(5).  The judgment is entitled
"Final Judgment," alludes to the standard for death penalty sanctions, strikes the Kellys' answer,
and awards damages.  The title is an express indication that the court intended this to be a
final judgment.  The judgment does not realize that intent, however.  The striking of the Defendants'
pleadings and the award of damages are indications that some claims have been resolved.  However,
this--by itself--does not indicate an adjudication or disposition of all claims against all parties.  The
judgment does not mention Stock's causes of action or dispose of them, individually or collectively,
expressly or otherwise unequivocally.  The judgment does not mention Jeff Kelly Construction,
much less unequivocally dispose of claims against Jeff Kelly Construction.  Indeed, the judgment
does not state against whom judgment is rendered or in what capacity.  Thus, it is not possible to
determine from whom the plaintiff is entitled to demand payment.  Review of the remainder of the
record does not persuade us that this judgment is final.  While the trial court may have intended to
enter a final judgment, the document before us does not accomplish that objective.
		Because this judgment is not final and is not the basis of a permissible interlocutory
appeal, we conclude that we lack jurisdiction over this appeal.  Lacking jurisdiction, we do not
consider the merits of the remainder of the Kellys' appeal or the validity or correctness of any other
action, inaction, finding, or conclusion, including the rest of the judgment.  See Tex. R. App. P. 47.1.
This appeal is dismissed for want of jurisdiction.

  
						G. Alan Waldrop, Justice
Before Chief Justice Jones, Justices Waldrop and Henson
Dismissed for Want of Jurisdiction
Filed:   August 3, 2010
1.   Appellee alleges that Jeff Kelly Construction is an unincorporated entity and is an assumed
name for Jeffrey S. Kelly and Pamela K. Kelly.
