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Click here for the full text of this decision FACTS:The relator of this petition for writ of mandamus, Burlington Coat Factory Warehouse of McAllen Inc., contends that the trial court abused its discretion by allowing execution to issue before a final judgment had been entered. HOLDING:Conditionally granted. 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. 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 regard to a default judgment. 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. 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.” 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, the court concluded that the judgment in that case was not final because it did not actually dispose of the plaintiff’s claim for punitive damages. The court concludes that the judgment is interlocutory. Because the default judgment was interlocutory, the trial court abused its discretion by permitting execution to issue. The court further concludes that Burlington has no adequate remedy by appeal. OPINION:Jefferson, C.J.; Jefferson, C.J., Hecht, Wainwright, Brister, Medina and Green, JJ., joined. DISSENT:O’Neill, J., joined by Johnson, J., as to part 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. ___ S.W.3d at ___. Accordingly, I would hold that the trial court did not abuse its discretion and deny Burlington Coat Factory Warehouse’s mandamus petition.”

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