COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
§ TAVARE CASTILLO, § No. 08-10-00281-CV Appellant, § Appeal from the v. § 112th Judicial District Court MS. AGUILAR, LINDA D. CARRANZA, FT. STOCKTON UNIT AND TEXAS § of Pecos County, Texas DEPARTMENT OF CRIMINAL JUSTICE, IN THEIR INDIVIDUAL § (TC# P-11174-112-CV) AND/OR OFFICIAL CAPACITIES,
Appellees.
OPINION
Tavare Castillo attempts to appeal from an order of dismissal. Because the order is not a
final judgment, we dismiss the appeal for lack of jurisdiction.
Procedural Background
Castillo was incarcerated by the Texas Department of Criminal Justice (TDCJ) when he
filed this suit. His original petition alleges that he was found guilty of a disciplinary infraction.
As part of his punishment, he was denied access to some of his personal property for ten days.
During that ten-day period, he was transferred to another prison. Although he had been advised
by the property officer supervisor that his property would follow him to the other prison when the
ten-day period expired, the property was never returned to him. Castillo filed a grievance
regarding the missing property, and prison officials concluded that it had been lost or destroyed.
Castillo was offered a cash settlement of $25, but he refused, claiming that the property included family pictures, legal materials, and songs he had written, which valued in the thousands of dollars.
On Castillo’s original petition, the style of the case appears as follows: “TAVARE
CASTILLO Plaintiff, v. AGUILAR, MS.; CARRANZA, LINDA, D.; FT. STOCKTON UNIT
AND TEXAS DEPARTMENT OF CRIMINAL JUSTICE, In Thier [sic] Individual And/or
Official Capacity Defendant(s).” Under the heading “PARTIES,” Castillo listed himself first.
Then, in three separate paragraphs, he listed: “Ms. ________ Aguilar,” followed by her title and
address; “Ms Linda Carranza,” followed by her title and address; and “The Ft. Stockton Unit and
TDCJ,” which, the petition said, “may be contacted at the same addresses expressed . . . above.”
The district clerk issued three citations for service of process. One was directed to:
MS. AGUILAR FORT STOCKTON UNIT PROPERTY OFFICER SUPERVISOR.
Another was directed to:
MS. LINDA CARRANZA FORT STOCKTON UNIT WARDEN.
Both of these citations are accompanied by returns, signed by a deputy, showing that process was
served on the individuals. The remaining citation was directed to:
FORT STOCKTON UNIT and TDCJ MS. LINDA CARRANZA, WARDEN
This citation is accompanied by a return showing that process was delivered to Warden Linda
Carranza, but the return is not signed or verified.
Aguilar and Carranza filed a joint answer. Thereafter, on June 7, 2010, Castillo filed a
motion for entry of default against “Defendant(s) Fort Stockton and TDCJ.” He asserted that this
2 “Defendant(s)” had been served, but had failed to answer.
On June 10, 2010, Aguilar and Carranza filed a joint motion to dismiss pursuant to Chapter
14 of the Texas Civil Practice and Remedies Code. Among other things, they argued that Castillo
had not sued the correct defendant because he only sued “Defendants in their individual and
official capacities and failed to sue TDCJ.”
On June 11, 2010, the trial court signed an order denying the motion for default judgment.
The order states that the motion was without merit because “all defendants have filed answers.”
On June 22, 2010, the trial court signed an order on the motion to dismiss. This order
states that the court “considered Defendants’ Lyn Aguilar and Linda Carranza [sic] Chapter
Fourteen of the Texas Civil Practice and Remedies Code Motion to Dismiss,” and was “of the
opinion that the following order should issue:”
It is hereby ORDERED that Defendants’ Motion to Dismiss is GRANTED. Plaintiff’s causes of action is [sic] hereby DISMISSED WITH PREJUDICE as to all claims for failure to comply with Chapter 14 of the Texas Civil Practices and Remedies Code.
All other relief not hereby granted is otherwise DENIED.
Castillo filed a motion for new trial, contending that he did not receive notice of the motion
to dismiss. In support of this contention, he submitted a letter addressed to him from a legal
assistant at the Attorney General’s office, dated June 22, 2010--the date the dismissal order was
signed. The letter states that a copy of the motion to dismiss was enclosed and that the copy was
originally mailed to him on June 8, but the mail was returned because it contained the wrong TDCJ
number for Castillo. The legal assistant apologized “for any inconvenience this may have
caused.”
3 The motion for new trial also complained about the denial of the motion for default
judgment. Castillo pointed out that his petition listed the Fort Stockton Unit/TDCJ as a
defendant, yet this defendant had not answered. The trial court did not enter a written ruling on
the motion for new trial.
Discussion
On appeal, Castillo contends that the trial court abused its discretion and denied him due
process by allowing the motion for new trial to be overruled by operation of law and by failing to
have a hearing on the motion. Aguilar and Carranza argue that the court did not err.
Although not raised by any party, we have an obligation to ensure that we have jurisdiction
before proceeding to the merits of the appeal. See In re Estate of Morales, 345 S.W.3d 781, 783
(Tex.App.--El Paso 2011, no pet.). As a general rule, an appeal may be taken only from a final
judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is
final if it disposes of all pending parties and claims. Id. Consequently, an order that dismisses
some, but not all, defendants under Chapter 14 of the Civil Practice and Remedies Code is
interlocutory and cannot be appealed until a final judgment is entered. See Hickman-Bey v. Tex.
Dep’t of Criminal Justice-CID, No. 07-09-0068-CV, 2009 WL 2176476, at *2
(Tex.App.--Amarillo July 22, 2009, no pet.)(mem. op.).
Whether an order amounts to a final judgment “must be determined from its language and
the record in the case.” Lehmann, 39 S.W.3d at 195. “[W]hen there has not been a conventional
trial on the merits, an order or judgment 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 205. The language of an order can make it
4 final, even if the record does not provide an adequate basis for rendition of a final judgment, if the
intent to make a final disposition is unequivocally expressed in the words of the order. Id. at 200.
“[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.
denied). citing Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962); see also
M.O.
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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
§ TAVARE CASTILLO, § No. 08-10-00281-CV Appellant, § Appeal from the v. § 112th Judicial District Court MS. AGUILAR, LINDA D. CARRANZA, FT. STOCKTON UNIT AND TEXAS § of Pecos County, Texas DEPARTMENT OF CRIMINAL JUSTICE, IN THEIR INDIVIDUAL § (TC# P-11174-112-CV) AND/OR OFFICIAL CAPACITIES,
Appellees.
OPINION
Tavare Castillo attempts to appeal from an order of dismissal. Because the order is not a
final judgment, we dismiss the appeal for lack of jurisdiction.
Procedural Background
Castillo was incarcerated by the Texas Department of Criminal Justice (TDCJ) when he
filed this suit. His original petition alleges that he was found guilty of a disciplinary infraction.
As part of his punishment, he was denied access to some of his personal property for ten days.
During that ten-day period, he was transferred to another prison. Although he had been advised
by the property officer supervisor that his property would follow him to the other prison when the
ten-day period expired, the property was never returned to him. Castillo filed a grievance
regarding the missing property, and prison officials concluded that it had been lost or destroyed.
Castillo was offered a cash settlement of $25, but he refused, claiming that the property included family pictures, legal materials, and songs he had written, which valued in the thousands of dollars.
On Castillo’s original petition, the style of the case appears as follows: “TAVARE
CASTILLO Plaintiff, v. AGUILAR, MS.; CARRANZA, LINDA, D.; FT. STOCKTON UNIT
AND TEXAS DEPARTMENT OF CRIMINAL JUSTICE, In Thier [sic] Individual And/or
Official Capacity Defendant(s).” Under the heading “PARTIES,” Castillo listed himself first.
Then, in three separate paragraphs, he listed: “Ms. ________ Aguilar,” followed by her title and
address; “Ms Linda Carranza,” followed by her title and address; and “The Ft. Stockton Unit and
TDCJ,” which, the petition said, “may be contacted at the same addresses expressed . . . above.”
The district clerk issued three citations for service of process. One was directed to:
MS. AGUILAR FORT STOCKTON UNIT PROPERTY OFFICER SUPERVISOR.
Another was directed to:
MS. LINDA CARRANZA FORT STOCKTON UNIT WARDEN.
Both of these citations are accompanied by returns, signed by a deputy, showing that process was
served on the individuals. The remaining citation was directed to:
FORT STOCKTON UNIT and TDCJ MS. LINDA CARRANZA, WARDEN
This citation is accompanied by a return showing that process was delivered to Warden Linda
Carranza, but the return is not signed or verified.
Aguilar and Carranza filed a joint answer. Thereafter, on June 7, 2010, Castillo filed a
motion for entry of default against “Defendant(s) Fort Stockton and TDCJ.” He asserted that this
2 “Defendant(s)” had been served, but had failed to answer.
On June 10, 2010, Aguilar and Carranza filed a joint motion to dismiss pursuant to Chapter
14 of the Texas Civil Practice and Remedies Code. Among other things, they argued that Castillo
had not sued the correct defendant because he only sued “Defendants in their individual and
official capacities and failed to sue TDCJ.”
On June 11, 2010, the trial court signed an order denying the motion for default judgment.
The order states that the motion was without merit because “all defendants have filed answers.”
On June 22, 2010, the trial court signed an order on the motion to dismiss. This order
states that the court “considered Defendants’ Lyn Aguilar and Linda Carranza [sic] Chapter
Fourteen of the Texas Civil Practice and Remedies Code Motion to Dismiss,” and was “of the
opinion that the following order should issue:”
It is hereby ORDERED that Defendants’ Motion to Dismiss is GRANTED. Plaintiff’s causes of action is [sic] hereby DISMISSED WITH PREJUDICE as to all claims for failure to comply with Chapter 14 of the Texas Civil Practices and Remedies Code.
All other relief not hereby granted is otherwise DENIED.
Castillo filed a motion for new trial, contending that he did not receive notice of the motion
to dismiss. In support of this contention, he submitted a letter addressed to him from a legal
assistant at the Attorney General’s office, dated June 22, 2010--the date the dismissal order was
signed. The letter states that a copy of the motion to dismiss was enclosed and that the copy was
originally mailed to him on June 8, but the mail was returned because it contained the wrong TDCJ
number for Castillo. The legal assistant apologized “for any inconvenience this may have
caused.”
3 The motion for new trial also complained about the denial of the motion for default
judgment. Castillo pointed out that his petition listed the Fort Stockton Unit/TDCJ as a
defendant, yet this defendant had not answered. The trial court did not enter a written ruling on
the motion for new trial.
Discussion
On appeal, Castillo contends that the trial court abused its discretion and denied him due
process by allowing the motion for new trial to be overruled by operation of law and by failing to
have a hearing on the motion. Aguilar and Carranza argue that the court did not err.
Although not raised by any party, we have an obligation to ensure that we have jurisdiction
before proceeding to the merits of the appeal. See In re Estate of Morales, 345 S.W.3d 781, 783
(Tex.App.--El Paso 2011, no pet.). As a general rule, an appeal may be taken only from a final
judgment. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is
final if it disposes of all pending parties and claims. Id. Consequently, an order that dismisses
some, but not all, defendants under Chapter 14 of the Civil Practice and Remedies Code is
interlocutory and cannot be appealed until a final judgment is entered. See Hickman-Bey v. Tex.
Dep’t of Criminal Justice-CID, No. 07-09-0068-CV, 2009 WL 2176476, at *2
(Tex.App.--Amarillo July 22, 2009, no pet.)(mem. op.).
Whether an order amounts to a final judgment “must be determined from its language and
the record in the case.” Lehmann, 39 S.W.3d at 195. “[W]hen there has not been a conventional
trial on the merits, an order or judgment 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 205. The language of an order can make it
4 final, even if the record does not provide an adequate basis for rendition of a final judgment, if the
intent to make a final disposition is unequivocally expressed in the words of the order. Id. at 200.
“[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.
denied). citing Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962); see also
M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674-75 (Tex. 2004)(applying this rule to find a
judgment final where plaintiff’s petition stated that the unserved defendant’s address was
unknown and no citation was requested). Unless the record suggests that the plaintiff has no
intention of pursuing the claims against the unserved defendant, that defendant remains a party to
the case for purposes of determining the finality of an order. See Vacca v. Glass, 148 S.W.3d 207,
208 (Tex.App.--Texarkana 2004, pet. denied)(op. on reh’g).
There are three defendants in this case. The style on the original petition is not a model of
clarity, but the use of semicolons to separate Aguilar and Carranza from each other and from “Ft.
Stockton Unit and Texas Department of Criminal Justice” suggests that there are at least three
defendants. The body of the petition removes any doubt by listing the three defendants
separately.1 The district clerk understood that there are three defendants, and thus issued three
citations.
The record does not conclusively establish that TDCJ was served with process, but it
makes very clear that Castillo intended to serve TDCJ--and actually believed he had done so. He
1 We consider the Fort Stockton Unit and TDCJ to be one defendant. 5 even filed a motion for default judgment against TDCJ. Because there is nothing to suggest that
Castillo did not intend to pursue his claims against TDCJ, it is a party to the case for purposes of
finality.
Although there are three defendants, only two of them moved for dismissal. By granting
the motion to dismiss, the trial court only disposed of the claims against the two moving
defendants. The June 22 order also states, “Plaintiff’s causes of action is [sic] hereby
DISMISSED WITH PREJUDICE as to all claims for failure to comply with Chapter 14 of the
Texas Civil Practices and Remedies Code.” Because the record demonstrates that neither the trial
court nor Aguilar and Carranza realized that TDCJ is a party, this language does not unequivocally
indicate an intent to dispose of Castillo’s claims against TDCJ. Finally, the order states, “All
other relief not hereby granted is otherwise DENIED.” This language no longer denotes a final
judgment. See Lehmann, 39 S.W.3d at 203-04.
This case is similar to Fuller v. Moya, No. 10-09-00294-CV, 2009 WL 4852425
(Tex.App.--Waco Dec. 16, 2009, no pet.)(mem. op.). In that case, the plaintiff sued TDCJ and
several of its employees. See 2009 WL 4852425, at *1. Two of the employees filed a motion to
dismiss. The trial court granted the motion “and dismissed [Plaintiff’s] ‘cause of action’ as
frivolous ‘with prejudice as to all claims.’” Id. (quoting the trial court’s order). After this order
was entered, other defendants were served and the plaintiff continued to litigate his claims against
them. Fuller, 2009 WL 4852425, at *1 Despite the seemingly conclusive language in the order,
the appellate court held that it was not a final judgment. See id.
Conclusion
The June 22, 2010 order is not a final judgment. Accordingly, this appeal is dismissed for
6 lack of jurisdiction.
February 29, 2012 CHRISTOPHER ANTCLIFF, Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.