             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________
           No. 02-19-00413-CV
      ___________________________

HOMEWARD RESIDENTIAL, INC., Appellant

                      V.

    WILLIAM PAUL BURCH, Appellee



   On Appeal from the 348th District Court
           Tarrant County, Texas
       Trial Court No. 348-307179-19


    Before Gabriel, Kerr, and Birdwell, JJ.
    Memorandum Opinion by Justice Kerr
                           MEMORANDUM OPINION

      Homeward Residential, Inc. filed a restricted appeal from the trial court’s May

10, 2019 default judgment. See Tex. R. App. P. 30. But as we explain below, we must

dismiss the appeal for want of jurisdiction because the default judgment is not final.

      William Paul Burch, proceeding pro se, sued Homeward Residential to quiet

title to real property in Everman, Texas. In addition to his quiet-title claim, Burch

pleaded claims for breach of contract, statutory fraud, and violations of Texas Civil

Practice and Remedies Code Chapter 12, Texas Penal Code Sections 32.45 and 32.49,

and Texas Property Code Section 53.160. See Tex. Bus. & Com. Code Ann. § 27.01;

Tex. Civ. Prac. & Rem. Code Ann. §§ 12.001–.007; Tex. Penal Code Ann. §§ 32.45,

.49; Tex. Prop. Code Ann. § 53.160. Burch sought removal of Homeward

Residential’s lien on the property, compensatory and exemplary damages, damages

under Civil Practice and Remedies Code Section 12.002, specific performance of the

contract, attorney’s fees, court costs, and pre- and postjudgment interest. After

Homeward Residential failed to answer or to otherwise appear,1 the trial court signed

a default judgment in Burch’s favor:




      1
          We make no determination whether Homeward Residential was properly
served.


                                           2
      Two days before the six-month deadline to file a restricted appeal, Homeward

Residential filed a notice of restricted appeal. See Tex. R. App. P. 26.1(c), 30. In its

notice, Homeward Residential expressed its concern that the default judgment was

not a final judgment because it did not dispose of all of Burch’s claims.

      We were likewise concerned about the default judgment’s finality and thus

notified the parties of our concern that we lacked jurisdiction over this appeal because

the default judgment did not appear to be either a final judgment or an appealable

interlocutory order. We warned the parties that we could dismiss the appeal for want

of jurisdiction unless one of them filed a response showing grounds for continuing it.

See Tex. R. App. P. 42.3(a), 44.3.




                                           3
      Both parties responded. Homeward Residential concedes that the default

judgment is interlocutory and that we thus lack jurisdiction.2 Burch counters that the

default judgment is final and appealable.

      Unlike a judgment after a trial on the merits, there is no presumption of finality

following a default judgment. In re Burlington Coat Factory Warehouse of McAllen, Inc.,

167 S.W.3d 827, 829 (Tex. 2005) (orig. proceeding). A default judgment that disposes

of all parties and claims is final. See id. at 830. But “a default judgment that fails to

dispose of all claims can be final only if ‘intent to finally dispose of the case’ is

‘unequivocally expressed in the words of the order itself.’” Id. (quoting Lehmann v.

Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001)). A phrase such as “[t]his judgment

finally disposes of all parties and all claims and is appealable” unequivocally expresses

an intent to finally dispose of the case. Lehmann, 39 S.W.3d at 206; see Burlington Coat

Factory, 167 S.W.3d at 830. If a default judgment lacks finality language, we look to the

record to determine whether the judgment actually disposes of all parties and claims.

See In re Elizondo, 544 S.W.3d 824, 827–28 (Tex. 2018) (orig. proceeding).

      The default judgment here lacks language unequivocally expressing an intent to

finally dispose of the case. See Burlington Coat Factory, 167 S.W.3d at 830. It does not


      2
        In its response, Homeward Residential stated that it filed its notice of
restricted appeal because of the imminent restricted-appeal deadline, and “it was not
clear at that time whether the [d]efault [j]udgment would be considered final.”
Homeward Residential explained that it perfected its appeal to preserve its ability to
challenge the default judgment on appeal if we determined that it is final.


                                            4
contain any finality language, does not state that it is a final judgment, and does not

purport to dispose of all parties and claims. See id. We thus review the record to

determine whether the default judgment actually disposes of all parties and claims. See

Elizondo, 544 S.W.3d at 827–28; Lehmann, 39 S.W.3d at 205–06.

      We have reviewed the record and have determined that the default judgment

does not dispose of all of Burch’s claims. The judgment purports to remove a lien

against the property and awards Burch “Section 12.002 actual damages,”

compensatory and punitive damages, and “Court Cost[s] and fees.” But at a

minimum, it does not dispose of Burch’s claims for Penal Code violations,

prejudgment interest, and attorney’s fees.3

      Regarding Burch’s claims for Penal Code violations, even though the default

judgment removes a lien and awards damages and court costs and fees, the judgment

cannot be construed as awarding relief for and therefore disposing of his Penal Code

claims because the Penal Code does not create private rights of action. See, e.g., Tex.

Health Res. v. Pham, No. 05-15-01283-CV, 2016 WL 4205732, at *8 (Tex. App.—

Dallas Aug. 3, 2016, no pet.) (mem. op.); LeBlanc v. Lange, 365 S.W.3d 70, 87 (Tex.

App.—Houston [1st Dist.] 2011, no pet.). Nor does the default judgment dispose of

Burch’s request for prejudgment interest. See Sawyers v. Carter, No. 01-14-00870-CV,

2015 WL 3981313, at *2 (Tex. App.—Houston [1st Dist.] June 30, 2015, no pet.)


      There is nothing in the appellate record indicating that Burch nonsuited or
      3

abandoned these claims.

                                              5
(mem. op.) (“When a default judgment [without finality language] does not dispose of

an unresolved request for prejudgment interest, the judgment is interlocutory, not

final.”); Tehuti v. Barrett Daffin Frappier Turner & Engel, LLP, No. 05-11-00449-CV,

2011 WL 3964573, at *1 (Tex. App.—Dallas Sept. 9, 2011, no pet.) (mem. op.)

(holding that a judgment was not final because it did not affirmatively dispose of

prejudgment-interest claim and lacked language indicating that all claims and parties

had been disposed of and was intended to be final). And finally, the default judgment

awarded “Court Cost[s] and Fees” but made no mention of Burch’s attorney’s-fees

claim and thus failed to dispose of it. See Farm Bureau Cty. Mut. Ins. Co. v. Rogers,

455 S.W.3d 161, 162–64 (Tex. 2015) (holding that summary-judgment order without

finality language that did not resolve the parties’ competing attorney’s-fees requests

was not final); McNally v. Guevara, 52 S.W.3d 195, 196 (Tex. 2001) (holding that

summary-judgment order’s resolution of court-costs claim did not dispose of

attorney’s-fees claim and did not indicate finality).

       Accordingly, we hold that the default judgment is not final. See Lehmann,

39 S.W.3d at 205–06 (“[W]e conclude that when there has not been a conventional

trial on the merits, an order or judgment is not final for purposes of appeal unless it

actually disposes of every pending claim and party or unless it clearly and

unequivocally states that it finally disposes of all claims and all parties. . . . Nothing in

the order [here] indicates that it is a final judgment, and it did not dispose of all

pending claims and parties.”). Absent a final judgment, we lack jurisdiction over this

                                             6
appeal, and we must dismiss it.4 See id. at 195. Accordingly, we deny all pending

motions, and we dismiss this appeal for want of jurisdiction. See Tex. R. App. P.

42.3(a), 43.2(f).




                                                 /s/ Elizabeth Kerr
                                                 Elizabeth Kerr
                                                 Justice

Delivered: January 23, 2020




       The default judgment is not an appealable interlocutory order and neither
       4

party contends that it is.


                                       7
