GSI Security, Inc., formerly known as Sterling Smith Security, Inc. v. Southwestern Bell Yellow Pages, Inc.--Appeal from County Court at Law No 3 of Bexar County

No. 04-01-00153-CV
GSI SECURITY, INC., formerly known as Sterling Smith Security, Inc.
Appellant
v.
SOUTHWESTERN BELL YELLOW PAGES, INC.,
Appellee

From the County Court at Law Number 3, Bexar County, Texas
Trial Court No. 257576
Honorable H. Paul Canales, Judge Presiding

PER CURIAM

Sitting: Phil Hardberger, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: April 25, 2001

DISMISSED FOR LACK OF JURISDICTION

Southwestern Bell Yellow Pages, Inc. sued Sterling Smith Security, Inc. and Sterling Smith Services, Inc. to recover payment for advertising services. On September 7, 2000, Southwestern Bell filed a notice of nonsuit of its claims against Sterling Smith Services, Inc. However, no dismissal order was signed. The same day, Southwestern Bell obtained a no-answer default judgment against Sterling Smith Security, Inc. The judgment awards Southwestern Bell Yellow Pages, Inc. damages, attorneys' fees, and costs against Sterling Smith Security, Inc. Although the judgment recites that a notice of nonsuit was filed as to Sterling Smith Services, Inc., it does not expressly dispose of that defendant. The judgment does contain a Mother Hubbard clause. GSI Security, Inc., formerly known as Sterling Smith Security, Inc., timely filed a restricted appeal from the default judgment.

A default judgment is not presumed to be final. In re Bro Bro Properties, Inc.. No. 04-00-00594-CV, 2000 WL 1877117, at *1 (Tex. App.-San Antonio Dec. 20, 2000, orig. proceeding [mandamus denied]) (not yet published). A notice of nonsuit is insufficient to dispose of a party for purposes of appeal, and where neither the default judgment nor any other order of the court disposes of the plaintiff's claims against nonsuited parties, the default judgment is interlocutory. Id. at *2-3. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995). In this case, neither the default judgment nor any other order of the court disposes of Southwestern Bell's claims against Sterling Smith Services, Inc. Because the judgment did not follow a conventional trial on the merits, the inclusion of a Mother Hubbard clause in the judgment provides no indication of finality for purposes of appeal. Lehmann v. Har-Con Corp., 44 Tex. Sup. Ct. J. 364, 2000 WL 33146410, at *11 (Feb. 1, 2001). Because all parties have not been disposed of by written order or judgment, we dismiss the appeal for lack of jurisdiction.

PER CURIAM

DO NOT PUBLISH