OPINION The question before us is whether an interlocutory default judgment against two of four defendants has become final for purposes of an appeal by those defendants. If it has become final, we lack jurisdiction because the notice of appeal, filed several years after the default judgment became final, is incurably late. If it has not become final, we lack jurisdiction because no final judgment has been signed. Based on the record, and assisted by the trial court’s findings of fact following this court’s abatement, we conclude the default judgment became final in December 2015. Thus, the defendants’ notice of appeal, filed in March 2019, is untimely. We dismiss this appeal for lack of jurisdiction. Background As alleged in the live petition, plaintiff and appellee Edwin Hernandez was working as a painter on a ladder at the Maxey Village Apartments when he fell and broke his back. His live pleading, the first amended original petition, filed in March 2014, asserts claims against four defendants: (1) Fair Oaks Housing Partners, LP, individually and d/b/a Maxey Village Apartments (“Fair Oaks”); (2) Maxey Apartments, LLC; (3) S&D Construction; and (4) Jose Espinal. The original petition lists an address for Fair Oaks but says the addresses for S&D and Espinal are unknown. The first amended petition repeats the allegations about addresses. Hernandez moved for and was allowed to serve Fair Oaks by substituted service, which was completed on February 17, 2014. Hernandez served Maxey Apartments, LLC on May 29, 2014. The record does not reflect that S&D or Espinal were served with process or that Hernandez requested service of those defendants. After an appropriate amount of time, Hernandez sought and was granted a default judgment against Fair Oaks and Maxey Apartments, LLC in October 2014. In July 2015, Hernandez moved to sever the claims against S&D and Espinal, but the trial court never ruled on the motion. In November 2015, Hernandez filed a notice of nonsuit as to Espinal, but not S&D. The trial court signed an order granting a nonsuit against Espinal on November 2, 2015. In October 2018, Fair Oaks and Maxey Apartments, LLC (collectively “appellants”) filed a motion to vacate the default judgment, alleging it was void due to the lack of proper service. Appellants contended the trial court had plenary power to consider the motion because no final judgment had been signed. According to appellants, neither the October 2014 default judgment nor the November 2015 order of nonsuit disposed of Hernandez’s claims against S&D, so the default judgment was interlocutory and the claims against S&D remained pending. In February 2019, the trial court signed an order denying the motion to vacate on the ground that the court’s plenary power expired thirty days after the November 2015 order of nonsuit. Appellants appeal from that order. Proceedings During This Appeal Hernandez moved to dismiss this appeal for lack of jurisdiction based on the argument that appellants’ notice of appeal was untimely. He contends the default judgment was final for purposes of appeal because it “intended” to dispose of the claims against S&D and Espinal. Appellants responded with the same arguments it made in the motion to vacate the default judgment. We abated the appeal and remanded to permit the trial court to clarify its intent and the parties to obtain a final judgment if warranted. See Tex. R. App. P. 27.2 (authorizing court of appeals to allow a non-final appealed order “to be modified so as to be made final”); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001) (if appellate court is uncertain about trial court’s intent to finally dispose of all claims and parties, it may abate appeal to permit clarification by trial court); see Young v. BellaPalma, L.L.C., 566 S.W.3d 829, 832 (Tex. App.—Houston [14th Dist.] 2018, pet. filed) (abating to determine finality of judgment that disposed of fewer than all parties). The trial court signed a clarification order, finding that Hernandez abandoned his claims against S&D, and that the court’s plenary power expired on December 2, 2015, thirty days after the court signed the order nonsuiting Espinal. After receiving the trial court’s clarification order, we notified the parties by letter that we would consider dismissal of the appeal for lack of jurisdiction unless any party established that we have jurisdiction. In the letter, we stated further that the default judgment appeared to be interlocutory under Texas Rule of Civil Procedure 240, even assuming Hernandez abandoned his claims against S&D. Both parties responded. Appellants contend the default judgment is interlocutory; Hernandez contends it was final in December 2015. Appellants also filed two motions: one to amend the notice of appeal to include the trial court’s clarification order, and another asking us to issue a memorandum opinion explaining our statement that the default judgment is interlocutory under Rule 240. After further review of the record, we conclude that the October 2014 default judgment became final thirty days after the order of nonsuit was signed on November 2, 2015. Even though Hernandez’s claim against one defendant, S&D, was neither disposed of by the default judgment nor nonsuited, the trial court’s finding that Hernandez abandoned all claims against S&D is supported by the record. We grant Hernandez’s motion to dismiss this appeal for lack of jurisdiction and deny appellants’ pending motions as moot. Analysis In 1962, the Texas Supreme Court articulated the standard for finality of a judgment that disposes of fewer than all the defendants in a case where not all the defendants have been served. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex. 1962). The trial court in Penn granted summary judgment dismissing all but one defendant, who had not been served and who had not filed an answer. Penn, 363 S.W.2d at 232. The Texas Supreme Court noted that there was “nothing to indicate that [the plaintiff] ever expected to obtain service upon” the remaining defendant, and held that “the case stands as if there had been a discontinuance” as to that defendant and the summary judgment should “be regarded as final for the purposes of appeal.” Id. Today, the Penn standard is articulated as a three-factor test. A judgment is final for purposes of appeal when (1) the judgment expressly disposes of some, but not all, defendants; (2) the only remaining defendants have not been served or answered; and (3) nothing in the record indicates the plaintiff ever expected to obtain service on the unserved defendants, such that the case “stands as if there had been a discontinuance” as to the unserved defendants. See id. at 232. Nearly forty years after deciding Penn, the Texas Supreme Court issued its opinion in Lehmann v. Har-Con Corp., 31 S.W.3d 191 (Tex. 2001), now regarded as the touchstone for determining when a judgment rendered without a conventional trial on the merits is final for purposes of appeal. Lehmann dictates that a judgment not following a traditional trial on the merits is not final for purposes of appeal “unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties.” Id. at 199200. Lehmann did not mention Penn; thus, the logical question is whether Penn survived Lehmann. The high court has since clarified that Penn survived Lehmann. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674-75 (Tex. 2004) (per curiam). We have applied Penn with varying results depending on what the record indicated with respect to service of process on the unserved defendants. Compare Young, 566 S.W.3d at 835 (judgment was not final under Penn because record indicated plaintiff intended to serve unserved defendant) and Rebector v. Angleton Dansbury Hosp. Dist., No. 14-08-00811-CV, 2010 WL 2681721 (Tex. App.— Houston [14th Dist.] July 8, 2010, pet. denied) (mem. op.) (Penn finality standard not satisfied because record was not “devoid of any indication that Rebector ever expected to obtain service on [the unserved defendant]“) with Sondock v. Harris Cty. Appraisal Dist., 231 S.W.3d 65, 67 n.1 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (judgment that did not mention second defendant was final for purposes of appeal because appellant never obtained service of second defendant). We initially questioned whether Penn, which arose from a summary judgment in favor of a defendant, applies to a default judgment, in part due to Texas Rule of Civil Procedure 240. Rule 240 states: Where there are several defendants, some of whom have answered or have not been duly served and some of whom have been duly served and have made default, an interlocutory judgment by default may be entered against those who have made default, and the case may proceed or be postponed as to the others. Tex. R. Civ. P. 240. Two of our sister courts have concluded the finality of a default judgment that named fewer than all of the defendants was governed by Rule 240, not Penn. Dillard v. Leonard, 801 S.W.2d 23, 25 (Tex. App.—San Antonio 1990, no writ); Philadelphia Indem. Ins. Corp. v. Box, No. 05-02-01555-CV, 2003 WL 1589513 (Tex. App.—Dallas Mar. 28, 2003, no pet.) (mem. op.) (relying on Dillard). Two other courts, by contrast, have applied Penn to a default judgment. See Old Am. Cty. Mut. Fire Ins. Co. v. Villegas, No. 01-17-00750-CV, 2019 WL 3121853 (Tex. App.—Houston [1st Dist.] July 16, 2019, no pet.) (mem. op.); Trishe Resources, Inc. v. Hilliard Energy, Ltd., No. 11-17-00310-CV, 2018 WL 1187974 (Tex. App.—Eastland Feb. 28, 2018, no pet.) (mem. op.). Rule 240 and Penn are not mutually exclusive. Rule 240 does not speak of the finality of a default judgment; it states that a default judgment may be entered as to some defendants before the case is concluded. The default judgment in today’s case was interlocutory when it was signed in October 2014, and Rule 240 allowed the case to proceed or be postponed as to the non-defaulting defendants. But nothing about Rule 240 requires that an interlocutory judgment remain so indefinitely; an interlocutory default judgment can and will become final when all remaining parties and claims are either nonsuited or abandoned consistent with Penn. We now apply the Penn analysis to the record in this case. It is undisputed that (1) the October 2014 default judgment and November 2015 order of nonsuit expressly dispose of appellants and Espinal but not S&D; and (2) S&D, the only remaining defendant, has not been served or answered. The only question is whether “nothing in the record indicates [Hernandez] ever expected to obtain service on” S&D. The record shows the following: Hernandez stated in both his original and amended petitions that S&D’s address was unknown. Hernandez never requested service on S&D. Hernandez sought substituted service on appellants, but he did not seek substituted service on S&D. Hernandez filed a motion to sever Espinal and S&D “[i]n order to make [the default judgment] a final order . . . .” The motion states, “Severance of this portion of the cause will allow the judgment to become final so as to remove the remaining Defendants, [Espinal and S&D]. from the case.” (boldface added). The trial court did not sign an order of severance as to either Espinal or S&D. Hernandez nonsuited Espinal but not S&D. The facts in the first four bullet points indicate Hernandez did not intend to serve Espinal or S&D. It is not clear why the severance order was not signed or why Hernandez did not nonsuit S&D. Nevertheless, we cannot say that those two facts indicate Hernandez expected to obtain service on S&D, one of the required Penn factors, given the representations in the pleadings and the fact that Hernandez neither requested service on S&D nor provided an address at which service could be accomplished. The trial court’s finding that Hernandez abandoned his claim against S&D is supported by some evidence. Accordingly, the Penn test is satisfied on this record, and the case “stands as if there had been a discontinuance” as to S&D. Penn, 363 S.W.2d at 232. The default judgment against appellants became final on December 2, 2015, thirty days after the trial court signed the order of nonsuit as to Espinal on November 2, 2015. Appellants contend an interlocutory default judgment can be final only if the intent to finally dispose of the case is expressed in the actual order itself, citing In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 830 (Tex. 2005) (orig. proceeding). In that case, the court said: “[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. Our holding is not inconsistent with In re Burlington. Here, we agree with appellants that the default judgment was interlocutory at its inception. However, it became final upon nonsuit or abandonment of the other defendants. A notice of appeal must be filed within thirty days after the judgment is signed when appellant has not filed a timely post-judgment motion. See Tex. R. App. P. 26.1. A motion to extend time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Texas Rule of Appellate Procedure 26.1, but within the fifteen-day grace period provided by Rule 26.3 for filing a motion to extend time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (1997) (construing the predecessor to Rule 26). The notice of appeal in this case was due December 2, 2015. Had a motion to extend time been filed, the deadline could have been extended to December 17, 2015. Appellants filed their motion to vacate the default judgment on October 4, 2018 and filed a notice of appeal on March 28, 2019. Because appellants did not timely perfect their appeal, we lack jurisdiction. We (1) grant Hernandez’s motion to dismiss for lack of jurisdiction, (2) deny as moot appellants’ pending motions, and (3) dismiss the appeal. /s/ Margaret “Meg” Poissant Justice Panel consists of Justices Wise, Jewell, and Poissant.
