Opinion
No. 08-14-00060-CV
07-28-2014
Terrence Daniels, Appellant, v. Barbara Browder, Susana Martinez, in her individual and official capacities, et al., Appellee.
Appeal from the 243 District Court of El Paso County, Texas (TC# 2012-DCV-06543) ORDER
Pending before the Court is a motion filed by Appellees Las Cruces Sun-News, Brian Fraga, and Ashley Meeks to dismiss the appeal for lack of jurisdiction. Appellant, Terrence Daniels, filed suit on November 1, 2012. By April 18, 2013, all of the defendants except Oscar Ferralez had been served. On that date, the trial court entered orders dismissing the claims against all of the then-named defendants except Michael Cain and Ferralez. On May 22, 2013, the trial court entered an order dismissing Appellant's claims against Cain. Citing a rule first stated in Youngstown Sheet & Tube Company v. Penn, 363 S.W.2d 230, 232 (Tex. 1962), Appellees assert that the orders became final and appealable on May 22, 2013 when the trial court entered the order disposing of Appellant's claims against Cain, and therefore, the notice of appeal filed on February 7, 2014 is untimely.
In M.O. Dental Lab v. Rape, the Supreme Court reaffirmed Penn's rule that 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. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674-75 (Tex. 2004); Penn, 363 S.W. 2d at 232. The case stands as if there had been a discontinuance as to the unserved parties, and the judgment is to be regarded as final for the purposes of appeal. Id. at 674; Penn, 363 S.W.2d at 232. In order for this rule to apply, the record must demonstrate that the plaintiff had no expectation of serving the remaining defendant. See Rape, 193 S.W.3d at 674 (plaintiff's pleadings expressly stated that the defendant's location for service was unknown and did not request issuance of citation); Penn, 363 S.W. 2d at 232 (observing that nothing in the record indicated that plaintiff ever expected to obtain service upon remaining party).
The instant case is distinguishable because Appellant included in his original petition an address where Ferralez could be served by certified mail and he requested issuance of citation. Further, Appellant made inquiries with the El Paso County District Clerk's Office about the service attempted on Ferralez. In December 2012, Appellant sent a letter to the District Clerk complaining that the certified mail had not been restricted as he requested and it had been signed for by a person other than the addressee. In July 2013, citation was reissued for Ferralez at a different address and he was served within a matter of days. Under these circumstances, we are unable to conclude that the record demonstrates Appellant had no expectation of serving Ferralez. Consequently, Penn and Rape are inapplicable and the various dismissal orders did not become final and appealable on May 22, 2013 as asserted by Appellees. The motion to dismiss is denied.
IT IS SO ORDERED this 28 day of July, 2014.
PER CURIAM Before McClure, C.J., Rivera and Rodriguez, JJ.