                                          NO. 07-03-0222-CV

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                 PANEL E

                                         MAY 4, 2004
                               ______________________________

                                     ELIJAH WHITE RATCLIFF,

                                                                            Appellant

                                                      v.

              STATE BAR OF TEXAS, TONY ALVARADO, EXECUTIVE DIRECTOR,
              AND NELDA L. BLAIR, CHAIRMAN OF THE GRIEVANCE COMMITTEE,

                                                          Appellees
                            _________________________________

                  FROM THE 258TH DISTRICT COURT OF POLK COUNTY;

                    NO. CIV20,239; HON. TOM MCDONALD, PRESIDING
                           _______________________________

                                    Memorandum Opinion
                               ______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

        Appellant Elijah White Ratcliff appeals the trial court’s order dismissing his petition

for reinstatement to practice law in the State of Texas. The appellees are the State Bar

of Texas, Tony Alvarado (executive director of the State Bar), and Nelda Blair (chairman




        1
        John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n Su pp. 2004 ).
of the grievance committee) (collectively referred to as the State Bar). We reverse the

order of dismissal and remand the cause.

                                         Background

       Ratcliff was disbarred from the practice of law in 1974. In January 2002, he filed a

petition for reinstatement in Cause No. 19,628 in Polk County, though it was not his first.

The trial court eventually signed an order on October 11, 2002, striking Ratcliff’s pleadings

for discovery abuse. About two months later, that is on December 9, 2002, Ratcliff filed

another petition for reinstatement. It was assigned Cause No. 20,309. Therein, the State

Bar moved to dismiss, alleging that the Texas Rules of Disciplinary Procedure required

Ratcliff to wait three years to seek reinstatement. The trial court granted the motion and

dismissed Cause No. 20,309.

                                Order Dismissing Lawsuit

       Ratcliff raises numerous points of error in which he attacks his original disbarment,

the order striking his pleadings in Cause No. 19,628, and the order of dismissal in Cause

No. 20,309. We address the arguments in the order presented.

       First, as to the original disbarment proceeding, error arising therefrom cannot be

raised via a subsequent petition to reinstate. Steere v. State Bar of Texas, 512 S.W.2d

362, 366 (Tex. Civ. App.–Houston [1st Dist.] 1974, no writ). So, we cannot consider the

legitimacy of the original disbarment.

       Second, as to the attempt to appeal the order striking his pleadings entered in

Cause No. 19,628, we are told by the State Bar that the order was entered “as a sanction

for discovery abuse.” Moreover, the relevant aspects of the order state:



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       On the ___ 1st ____ day of ____ October _____, 2002, this Court considered
       the Respondent’s Motion to Strike All Petitioner’s Pleadings in this case.
       After considering the facts, the law, the Motion, and the arguments of
       counsel, this Court is of the opinion that this Motion should be Granted.

       It is therefore ORDERED that Petitioner, Elijah W. Ratcliff’s pleadings be
       stricken from the records in this cause of action.

       Signed this 11th day of October, 2002.

As can be seen, and as previously described, nowhere therein does the trial court state

that the order was final or that it disposed of all parties and claims. Nor have we found

anywhere in the record a final judgment expressly disposing of all claims between all

parties in Cause No. 19,628. Indeed, of the record in that cause, we have only bits and

pieces, nothing of which allows us to determine whether the State Bar had asserted any

type of claim against Ratcliff. And, this is problematical.

       According to Texas Rule of Civil Procedure 215.3, a trial court may indeed strike the

pleadings of a litigant should it determine that the litigant abused discovery. So too does

the rule specify that the “order of sanction shall be subject to review on appeal from the

final judgment.” TEX . R. CIV. P. 215.3. Given the latter directive, it has been held that

discovery sanctions are unappealable until the trial court renders a final judgment in the

cause. Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex. 1986); Owens-Corning

Fiberglas Corp. v. Caldwell, 807 S.W.2d 413, 414 (Tex. App.–Houston [1st Dist.] 1991)

(orig. proceeding). And, there is the source of the dilemma here. Nothing in the record

before us illustrates that the trial court ever signed a final judgment in Cause No. 19,628.

       Admittedly, the State Bar contended (in response to a different issue) that the order

striking pleadings was a sufficient substitute for the missing final judgment. Yet, it is

mistaken given the circumstances before us. Texas Rule of Civil Procedure 215.3 tells us

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that an “order of sanction shall be subject to review on appeal from the final judgment.”

TEX . R. CIV. P. 215.3.     Furthermore, it has been held that discovery sanctions are

unappealable until the trial court renders a final judgment in the cause. Bodnow Corp. v.

City of Hondo, 721 S.W.2d at 840; Owens-Corning Fiberglas Corp. v. Caldwell, 807

S.W.2d at 414. From this rule and these precedents, it appears that an order levying

sanctions for discovery abuse is not necessarily final. Again, this is so because Rule 215.3

and precedent like Bodnow contemplate entry of a final judgment before the order can be

reviewed on appeal. And, if a subsequent, final order is contemplated, one can hardly say

that a discovery order levying sanctions is inherently final. Much would depend upon the

wording of the order and the effect of that wording.

       And, assuming arguendo that a discovery order could be worded in such a way so

as to dispose of all claims and parties, we cannot say the one involved at bar does that.

See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (stating that a judgment

disposing of all remaining parties and claims is final regardless of its language). This is so

for several reasons. First, it emanated not from a trial on the merits but from a hearing on

a motion for sanctions.      This is of import since before an order that resulted from

something other than a conventional trial can be deemed final, it must “actually dispose[]

of every pending claim and party or . . . clearly and unequivocally state[] that it finally

disposes of all claims and all parties.” Lehmann v. Har-Con Corp., 39 S.W.3d at 205.

Second, the order by which Ratcliff’s pleadings were struck does not “clearly and

unequivocally” state that it finally disposes of all claims and all parties. It simply grants the

motion to strike and strikes the pleadings of Ratcliff. Furthermore, whether it “actually”



                                               4
disposed of every pending claim and party is open to conjecture for we do not have before

us the record in Cause No. 19,628. See Lehmann v. Har-Con Corp., 39 S.W.3d at 205-

206 (stating that “it may . . . be necessary for the appellate court to look to the record in the

case” to determine whether an order disposes of all pending claims and parties). Nor does

it appear that the State Bar tendered it to the trial court in support of its petition. Simply

put, we do not know the extent of the claims, if any, filed by all parties, including the State

Bar. And, until we do, we cannot say with any certainty that the order entered in Cause

No. 19,628 and by which Ratcliff’s pleadings were struck was final.

       Third, as to the appeal of the dismissal order, we note that the State Bar sought

dismissal of Cause No. 20,309 on the ground that Ratcliff filed the petition within three

years of the date a prior petition to reinstate was denied. Thus, according to Rule 11.08

of the Texas Rules of Disciplinary Procedure, dismissal allegedly was warranted.

       Rule 11.08 states:

       If a petition for reinstatement is denied after a hearing on the merits, the
       petitioner is not eligible to file another petition until after the expiration of
       three years from the date of final judgment denying the last preceding
       petition.

TEX . R. DISCIPLINARY P. 11.08, reprinted in TEX . GOV’T CODE ANN ., tit. 2, subtit. G app. A-1

(Vernon 1998) (emphasis added). As can be readily seen, the resurrection of the bar

contemplated by Rule 11.08 is dependent upon entry of a “final judgment denying the last

preceding petition.” Next, the “last preceding petition” alluded to by the State Bar in its

motion to dismiss was Cause No. 19,628. Yet, and as previously discussed, we find no

final judgment viz that cause in the record before us. Nor does the record reveal that the

State Bar presented one to the trial court. Thus, the expressed terms of Rule 11.08 were


                                               5
not satisfied. And, we cannot view the order by which Ratcliff’s pleadings were struck as

final for the reasons previously discussed. Again, the nature of the record does not allow

us to determine whether every claim asserted by every party, if any, was disposed of by

the trial court in Cause No. 19,628.

       Accordingly, the order of dismissal in Cause No. 20,309 is reversed and the cause

is remanded to the trial court for further proceedings.




                                                 Brian Quinn
                                                    Justice




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