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 
Sullivan v. Germania Farm Mut. Ins. Ass’n Page 2

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

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]