In re BURLINGTON COAT FACTORY WAREHOUSE OF McALLEN, INC., Relator.
No. 02-1084.
Supreme Court of Texas.
July 1, 2005.
167 S.W.3d 827
William E. Corcoran, Law Office of William E. Corcoran, Keith C. Livesay, Livesay Law Office, McAllen, and Frank G. Davila, Frank G. Davila & Associates, Corpus Christi, for respondent.
In this case, relator Burlington Coat Factory Warehouse of McAllen, Inc. (Burlington) contends that the trial court abused its discretion by allowing execution to issue before a final judgment had been entered. We agree. Because we conclude that Burlington lacks an adequate remedy by appeal, we conditionally grant a writ of mandamus directing the trial court to vacate its orders permitting execution of the judgment.
On November 29, 2001, Evangelina Garcia sued Burlington for injuries sustained while shopping at a Burlington retail store in McAllen. Garcia sought to recover both actual and exemplary damages. Burlington did not file an answer in the trial court, and on March 25, 2002, the trial court rendered a default judgment in favor of Garcia. The judgment included a finding that Burlington was negligent, and it awarded Garcia $183,000 plus post-judgment interest. It further provided that “[a]ll other relief not expressly granted is hereby denied.” The default judgment was silent, however, on the exemplary damages claim. Burlington timely filed a motion for new trial, and the trial court
Garcia contended in the trial court that the order granting a new trial was void for lack of jurisdiction; specifically, Garcia argued that the March 25 judgment was a final judgment, and that the trial court‘s plenary power therefore expired on July 10, 2002—105 days after the judgment was signed. See Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex.1985);
In September 2002, Garcia attempted to enforce the judgment through execution. In order to avoid execution on its retail merchandise, Burlington placed $191,523.24 in the registry of the court.1 Burlington also filed a motion to quash execution, arguing that the trial court‘s judgment was interlocutory and therefore not yet subject to execution. The trial court denied the motion to quash execution and ordered that the monies in the registry of the court be released to Garcia‘s attorney, William E. Corcoran. Burlington then sought mandamus relief.2
We agree that the trial court‘s March 25 judgment was interlocutory rather than final. Although a judgment following a trial on the merits is presumed to be final, there is no such presumption of finality following a summary judgment or default judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199-200 (Tex.2001) (“[T]he ordinary expectation that supports the presumption that a judgment rendered after a conventional trial on the merits will comprehend all claims simply does not exist when some form of judgment is rendered without such a trial.“); Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex.1986). Thus, while a clause stating that “all other relief not expressly granted is hereby denied” indicates that a post-trial judgment is final, it does not establish finality with
A judgment that actually disposes of all parties and all claims is final, regardless of its language; however, 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. at 200. The default judgment in this case failed to dispose of all claims; it awarded damages “[o]n the claim of negligence” but failed to dispose of Garcia‘s claim for exemplary damages based on gross negligence. See Houston Health Clubs, Inc., 722 S.W.2d at 693 (holding that a default judgment that “did not dispose of the punitive damage issue” was not final). Because the judgment does not dispose of all the claims, it cannot be final unless its words “unequivocally express” an “intent to finally dispose of the case.” See Lehmann, 39 S.W.3d at 200.
In Lehmann, we provided an example of unequivocal language that would clearly indicate finality, noting that “[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.” Lehmann, 39 S.W.3d at 206. This default judgment lacks such an unequivocal expression. It does not state that it is a final judgment. In addition, it does not purport to dispose of all parties and all claims, and it does not actually dispose of Garcia‘s claim for punitive damages. It is true that the judgment awarded costs and provided that Garcia “is entitled to enforce this judgment through abstract, execution and any other process necessary.” However, these factors are not dispositive; the judgment in Houston Health Clubs similarly awarded costs, awarded interest from the date of judgment, and provided that the plaintiff “shall have any and all such writs, attachments, executions, and processes as may be necessary to accomplish the relief granted to her herein.” Erwin v. Houston Health Clubs Inc., No. 85-07146 (157th Dist. Ct., Harris County, Tex., May 14, 1985). Nevertheless, we concluded that the judgment in that case was not final because it did not actually dispose of the plaintiff‘s claim for punitive damages. See Houston Health Clubs, Inc., 722 S.W.2d at 693.
Furthermore, trial courts sometimes use this wording in interlocutory judgments that are intended to become final only when other claims are later adjudicated. See, e.g., Auto. Ins. Co. v. Young, No. 07-00-0469-CV, 2001 WL 708505 (Tex.App.-Amarillo June 25, 2001, no pet.), 2001 Tex. App. LEXIS 4188 (not designated for publication). In Young, the trial court granted an interlocutory judgment in favor of one plaintiff against one defendant. Id. Although the judgment provided that “IT IS FURTHER ORDERED, ADJUDGED and DECREED that Plaintiff, MYRTLE YOUNG is entitled to enforce this judgment through abstract, execution, and any other process,” the judgment was not intended to be final; there were additional parties whose claims were still pending before the trial court, and the judgment could not become final until those claims were adjudicated or severed. Id.; see also
We cannot conclude that language permitting execution “unequivocally express[es]” finality in the absence of a judgment that actually disposes of all parties and all claims. See Lehmann, 39 S.W.3d at 200. A judgment “must be read in light of the importance of preserving a party‘s right to appeal“; if we imply finality from anything less than an unequivocal expression, a party‘s right to appeal may be jeopardized. Id. at 195, 206 (“[W]hether a judicial decree is a final judgment must be determined from its language and the rec-
Because the default judgment was interlocutory, the trial court abused its discretion by permitting execution to issue. First, an interlocutory judgment may not be enforced through execution.
We further conclude that Burlington has no adequate remedy by appeal. We have previously recognized that there is no adequate remedy by appeal when a trial court ignores its earlier order granting a new trial. See In re Barber, 982 S.W.2d 364, 368 (Tex.1998). There is also no adequate remedy by appeal for allowing execution to issue before a final judgment has been entered. See In re Tarrant County, 16 S.W.3d 914, 918-19 (Tex.App.-Fort Worth 2000, orig. proceeding) (noting that a litigant has the right to supersede an adverse judgment during the pendency of an appeal, and that this right will be lost forever if execution is permitted prior to the entry of a final, appealable judgment); see also Mantas v. Fifth Court of Appeals, 925 S.W.2d 656 (Tex.1996).
Accordingly, without hearing oral argument, we conditionally grant the writ of mandamus.3
Justice O‘NEILL, joined by Justice JOHNSON as to Part I, dissenting.
I
I agree with the Court that no presumption of finality attaches to the March 25th default judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex.2001). I also agree that the judgment‘s Mother Hubbard clause, standing alone, is insufficient to establish the judgment‘s finality. But, contrary to the Court‘s assessment, additional language in the order provides “other indicators of finality.” 167 S.W.3d at 829. Accordingly, I would hold that the trial court did not abuse its discretion and deny Burlington Coat Factory Warehouse‘s mandamus petition.
In Lehmann, we rejected a formulaic approach to determining the finality of judgments; even an order that is entitled “final” may not be final. Id. at 200. Instead, we look for a “clear indication that the trial court intended the order to completely dispose of the entire case.” Id. at 205. While the order here does not say, in so many words, that it is a final judgment or disposes of the entire case, it clearly indicates that the trial court intended it to be final in this case, which involves one plaintiff and one defendant.
First, the judgment awards the plaintiff, Evangelina Garcia, postjudgment interest “from the date this judgment is signed until paid.” The judgment also awards Garcia a specific sum of prejudgment interest “measured from [the] date of judgment.” In addition, the judgment states that “all relief not expressly granted is hereby denied” and orders that Garcia “is entitled to enforce this judgment through abstract, execution and any other process necessary.” As the Court correctly observes, an interlocutory judgment may not be enforced through execution. 167 S.W.3d at 831;
The same indicia of finality also distinguish this case from Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692 (Tex.1986). In that case, we held that the court of appeals abused its discretion in ordering the trial court to vacate an order granting a motion for new trial. Id. at 693-94. The trial court granted the motion after rendering a default judgment on all of the plaintiff‘s claims except punitive damages. We held that the default judgment was interlocutory because it did not dispose of the punitive-damages claim. Id. at 693. We did so because the underlying judgment did not mention the claim “either expressly or by implication.” Id. (emphasis added). While the judgment did provide that the plaintiff “shall have ... execution” and awarded interest from the “date of judgment,” the judgment contained no Mother Hubbard clause, see Judgment, Erwin v. Houston Health Clubs, No. 85-07146 (157th Dist. Ct., Harris County, Tex., May 14, 1985), our touchstone for evaluating a summary judgment‘s finality at the time. See Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex.1993), overruled by Lehmann, 39 S.W.3d at 204. Moreover, the judgment generally provided that interest would run from “the date of judgment,” whenever that might be, whereas in this case postjudgment interest ran from a specific date—“the date this judgment is signed.” By including in the
II
I would additionally deny mandamus relief because Burlington has presented us with an insufficient record. The trial court‘s order denying Burlington‘s motion to quash execution recites that the court “considered the motion, Plaintiff‘s Response thereto, along with the evidence presented” and “finds that the motion is not well taken, because of the Rule 11 agreement, because the default judgment was final, and pursuant to the doctrines of judicial estoppel and judicial admission.”