### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00117- CV

Jeff rey S. K elly, P am ela K . Ke lly and Jeff Ke lly Construction, App ellants

v. Stock Bui ldin g Sup ply of Texas, L.P. d/b/a Stock Bu ildi ng Su ppl y, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 250 TH JUDICI AL DISTRICT NO. D-1 -GN-0 8-0 0102 0, H ONO RAB LE O RLINDA NARANJO , JUDGE P RESIDING

O P I N I O N

J eff rey S. Kelly , Pamela K. Kelly , and J eff Kelly Construction (“the Kelly s”) appea l 1
the judgme nt g rante d afte r their answe r wa s s t ru ck for their failure to timely and fully respond
to discovery reque sts. Be cause the judgme nt does not dispose of all parties and all claims, it is not final. We dismiss t his appea l for wa nt of jurisdiction. Stock Building Supply

of Texas, L .P. d/b/a/ S tock B uilding Supply (“Stock” ) filed

a suit on sworn acc ount to collect from the Kelly s amounts due for building materia ls Stock alleg es it sold to the Kelly s. After the Kelly s first larg ely failed to respond to discovery by deadlines, filed

s o m e response s afte r being sanctioned and order ed at least twice to file response s, and then fi l ed

re s ponses deeme d to be inadequa te, the trial court struck the Kelly s’ pleading s. The trial cour t

Appellee alleg es that J eff Kelly Construction is an unincorporated entity and is an assumed 1 name f or Jeffre y S. Kelly and Pamela K . Kelly

.signe d a document entitled “F inal J udg ment” that named the parties and their roles in the case in the

sty le, and that pr ovided as follows:

On th i s day came to be hear d, Plaintiff’s Motion for Sanctions Ag ainst J eff rey Kelly and Pam el a Kelly

. Having considere d the Motion, pleading s and evidenc e on file, and arg ument of counsel, the Court finds t h at J eff rey Kelly and Pamela Kelly have failed to respond to discovery seeking response s rele vant to their defe nse ag ainst Plaintiff’s claim despite the imposit ion of lesser sanctions, and that this failure justifie s t h e p resumpti on that the defense lacks merit, all as set forth in the Court’s prior or der a

war ding sa

nctions.
I T I S, THEREFO RE, ORDERED that Def en d an ts’ answe r to Plaintiff’s petition is st ricke n; I T I S FURTHER ORDERED that Plaintiff is awa rded the following : a) $24,442.22 in da mag es; b) I ntere st on damag es at t h e rate of 18 perc ent per annum from J uly 31, 2007, until entry

of this J udg ment; c) $9,500.00 in a ttorney s’ fe es as we ll as all tax able c osts; and, d) I ntere st on items “a) ” throug h “c) ” at the annual rate of 18 perc ent from entr y of this J udg ment until satisfied.
I T I S FURTHE R ORDERED that Plaintiff is awa rded the fo l l o wi ng conting ent on the events indicated: [awards of attorney s’ fee s for various appellate actions and r esults, plus int ere st]

. I T I S FI NAL L Y OR DERED t hat P laintiff m ay proce ed with foreclosure of its li en ag ainst Defe ndants’ re al prope rty rec orded as document 2006219359 in the Travis County proper

ty rec ords and attache d as Ex hibit D to Plaintiff’s live pleading

.
The Kelly s complain that this judgme nt is no t final beca use it does not dispose of any claims and does not mention the defendant J eff Kelly Construct i o n i n i t s t ex t. I t mentions the individual Kelly s by name, strikes the “De fenda nts’ answe r,” and then awa rds the plaintiff

2(Stock) damag es and other money without adjudicating an y claims or stating ag ainst whom

judgme nt is render ed.

The Kelly s’ asser

tion that the judgme nt is n ot final is a challeng e to this
Cou rt ’s j u risdiction. We must examine whether we have jurisdiction befor e considering other aspec ts of this appea l. See New Y ork Underwriters Ins. Co. v. Sanchez , 799 S.W .2d 677, 678 (Tex. 1990). Wit h few exceptions, this Court does not have jurisdiction over judgme nts 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 whethe r this judgment is final.

A judgme nt is final for purposes of appea l if it disposes o f al l p en ding parties and claims in the rec ord. Lehmann v. Har-Con Corp. , 39 S.W .3d 191, 195 (Tex. 2001). No presumption of finality follows a d ef

au l t j u d gm en t. See id. at 199-200. A defa ult judgme nt is deeme d final, howeve r, if it expresses an unequivoca l intent to finally dispose of the case . In re Burlington Coat Factory W

arehouse of

McAllen, Inc. , 167 S.W .3d 827, 830 (Tex. 2005). Absent a conventional trial

on the merits, a judgme nt is final “if a nd only if either it a ctually disposes of all claims and parties then befor e the court, reg ardle ss of its lang uag e, or it s t at es with unmistakable clar ity that it is a final judgme nt a s to a ll c laims a nd all parties.” Lehmann , 39 S.W .3d at 192-93. We also can look to the rec ord bey ond the judg ment. Id. at 195.

T h e j u d gment in this case is not final. The judgme nt befor e us is t h e functional equivalent of a defa ult judgme nt. See Tex. R. Civ. P. 215.2(5). The judgme nt is entitled
“F inal J udg ment,” alludes to the standard for deat h p en alty sanctions, strikes the Kelly s’ answe r,

an d aw ar d s d am ages. The title is an express indication that the court intended this to be a

3final judgme nt. The judgme nt does not rea liz e that intent, howeve r. The striking of the Def endants’ pleading s and the awa

rd of damag es are indications that some claims have been resolved. Howeve r, this—by itself—does not indicate an adjudication or dispositi on of all claims ag ainst all parties. The judgme nt does not mention Stock’s cause s of action or dispose of them, individually or collectively , expressly or otherwise unequivoca lly

. The judgme nt does not mention J eff Kelly Construction, much l ess unequivocally dispose of claims ag ainst J eff Kelly Construction. I ndeed, the judgme nt does not state ag ain s t whom judgme nt is rende red or in what capa city

. Thus, it is not possible to deter mine from whom the plaintiff is entitled to demand pay ment. Review of the rema inder of the

rec ord does not persua de us that this judg ment is f inal. Whil e the trial court may have intended to
enter a fina l judgment, the doc ument befor e us does not ac complish that objective.

Be cause this judgme nt is not final and is not the basis of a permissible interlocutory
appea l, we conclude that we lack jurisdiction over this appea l. L acking jurisdiction, we do not consider the merits of the rema inder of the Kelly s’ appea l or the validity or corr ectne ss of any other action, inaction, finding , or conclusion, including the rest of the judgme nt. See Tex. R. App. P. 47.1. This appea l is dism issed for wa nt of jurisdiction.

G. Alan Waldrop, Just ice
Be fore Chief J ustice Jones, J ustices Waldrop and He nson Dismissed for Want of J urisdiction Filed: Aug ust 3, 2010

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