                                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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