James C. Fuller v. Benito Moya ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00294-CV
JAMES C. FULLER,
Appellant
v.
BENITO MOYA, ET AL.,
Appellees
From the County Court at Law
Walker County, Texas
Trial Court No. 9678CV
MEMORANDUM OPINION
Appellant James C. Fuller filed suit against the Texas Department of Criminal
Justice and TDCJ employees Benito Moya, Tommy Goodin, Freddie English, Floyd
Hicks, an unnamed property officer for the Wynne Unit, and “Major Butcher.” The trial
court granted English’s and Hick’s motion to dismiss and dismissed Fuller’s
“cause of action” as frivolous “with prejudice as to all claims.” However, not all the
named defendants had been served when the dismissal order was signed, two of the
defendants appeared and filed answers after the dismissal order was signed, and only
English and Hicks sought a dismissal. By order dated November 10, 2009, this Court
requested briefing from the parties regarding whether the dismissal order is appealable.
The parties have filed briefs with Fuller contending that the order is appealable
while the appellees contend that it is not. We agree with the appellees and will dismiss
the appeal.
Generally, “an appeal may be taken only from a final judgment. A judgment is
final for purposes of appeal if it disposes of all pending parties and claims in the record,
except as necessary to carry out the decree.” Lehmann v. Har-Con Corp., 39 S.W.3d 191,
195 (Tex. 2001) (footnotes omitted). However,
a judgment may be final, even though it does not dispose of all parties
named in the petition, if the remaining party was never served with
citation and did not file an answer, and nothing in the record indicates
that the plaintiff ever expected to obtain service upon the remaining party.
Garcia v. State Farm Lloyds, 287 S.W.3d 809, 812 (Tex. App.—Corpus Christi 2009, pet.
filed) (citing Youngstown Sheet & Tube Co. v. Penn, 362 S.W.2d 230, 232 (Tex. 1962)); see
also M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674-75 (Tex. 2004) (reaffirming validity of
Youngstown Sheet & Tube).
Here, the trial court granted English’s and Hick’s motion to dismiss on June 10,
2009. Moya and the unnamed property officer for the Wynne Unit were served on May
24 (before the dismissal order), but the returns for these citations were not filed until
June 29. Moya answered Fuller’s suit on July 13. Goodin was served by certified mail,
return receipt requested, on July 24. Fuller filed a “Motion for Summary Judgement”
on July 27. And Goodin answered Fuller’s suit on August 10.
Fuller v. Moya Page 2
The record reflects that, after the June 10 dismissal, other defendants were served
and Fuller has continued to litigate his claims with respect to the remaining defendants.
Therefore, the June 10 order of dismissal is not a final, appealable judgment. See Garcia,
287 S.W.3d at 812.
Accordingly, we dismiss Fuller’s appeal.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Appeal dismissed
Opinion delivered and filed December 16, 2009
[CV06]
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