### IN THE TENTH COURT OF APPEALS
No. 10
- 10
- 00074
- CV
GRADY AND ANN SULLIV AN , Appellant s v.
GERMANIA FARM MUTUAL INSURANCE ASSOCIATION, METRO
- PLEX FOUNDATION COMPANY, INC., ARC, INC., RICHARD THOMAS WILLIAMS D/B/ A TEJAS ENGINEERS & CONTRACTORS, A ND J. RUSSELL MACKEY , Appellee s

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.
Mack ey contend s that the Sulli vans 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 trialSullivan v. Germania Farm Mut

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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 Mac key’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 remaini ng 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 Defendant s”; 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 dispos es 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 again st 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 th o se claims on January 20, and the order was entered on January 21.The court also si gned 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 pa ragraph explaining the need for entry of a seco nd 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 Compan y, 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. 20 01). 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 langu age, or it states with unmistakable clarity that it is a final judgment as t o 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. 20 05) (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 20 07, no pet.). Thus, the November 16 judgment will be considered the final judgment only if i t: (1) actually disposes of all claims and parties; or (2) “ state s with unmistakable clarity that it is a final judgment as t o all claims and all parties.” Lehmann , 39 S.W.3d at 192

- 93.Sullivan v. Germania Farm Mut

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As seen by subsequent events, the November 16 judgment did not actua lly 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 i mportance 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 rev ersed.
Id. at 206; accord Burlington Coat Factory , 167 S.W.3d at 830. The November 16 judgment “ state s with unmistakable clarity that it is a final judgment as t o 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 Appe al dismissed Opinion delivered and filed April 14, 2010 [CV06]