Jerry Wanzer v. Oscar Mendoza, Jeffery Marton, Danny Higgenbottom, Margaret Brunson, David Bryce and Russell Bailey--Appeal from 81st Judicial District Court of Karnes County

MEMORANDUM OPINION

No. 04-05-00505-CV

Jerry WANZER,

Appellant

v.

Oscar MENDOZA, Jeffery Marton, Danny Higgenbottom,

Margaret Brunson, David Bryce, and Russell Bailey,

Appellees

From the 81st Judicial District Court, Karnes County, Texas

Trial Court No. 04-03-00051-CVK

Honorable Ron Carr, Judge Presiding

PER CURIAM

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: September 28, 2005

DISMISSED FOR LACK OF JURISDICTION

Jerry Wanzer appeals the trial court s orders dismissing six of the defendants in Wanzer s prisoners rights suit. Because there is no final, appealable judgment, we dismiss the appeal for want of jurisdiction.

Wanzer filed an original petition naming Texas Department of Criminal Justice Institutional Division as the defendant. However, his List of Parties to be Served attached to the petition identifies seven of the Department s employees as additional defendants sued in their individual and official capacities and requests service on them. The clerk s record contains answers and motions to dismiss filed by six of the seven individual defendants. The record does not contain an answer or any other appearance by the Department or by the seventh individual, Florencio Vega Jr. On June 3, 2005, the trial court signed two orders, granting the motions to dismiss of the six individual defendants who answered and dismissing Wanzer s claims against them. Wanzer appealed.

[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. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). Neither of the trial court s June 3, 2005 orders clearly and unequivocally states that it finally disposes of all pending claims and parties. See Lehmann, 39 S.W.3d at 203-04 ( the inclusion of ... the statement, all relief not granted is denied ... does not indicate that a judgment rendered without a conventional trial is final for purposes of appeal ). Accordingly, we must determine whether the orders in fact dispose of all pending claims and parties. To make this determination, we may review the record. Id. at 205-06.

The June 3, 2005 orders do not dispose of Wanzer s claims against the Department or Florencio Vega Jr. However, the record does not contain an answer or any other appearance by these parties. When [t]he remaining party was never served with citation and did not file an answer, and nothing in the record indicate[s] that the plaintiff in the case ever expected to obtain service upon the remaining party, the case stands as if there had been a discontinuance as to [the unserved party], and the judgment is to be regarded as final for the purposes of appeal. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674-75 (Tex. 2004)(quoting Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962)). If Wanzer served or expected to serve either Vega or the Department, a signed, written order disposing of Wanzer s claims against them is necessary for there to be a final, appealable judgment. See M.O. Dental, 139 S.W.3d at 675 (citing Park Place Hospital v. Estate of Milo, 909 S.W.2d 508, 510 (Tex.1995)).

On August 11, 2005, we abated this appeal to give Wanzer an opportunity to obtain orders that would render the dismissal order final and appealable and to request a supplemental record. We advised Wanzer that the appeal would be dismissed unless he filed a supplemental clerk s record establishing, with respect to the Department and Vega, either the party has not been served and Wanzer did not expect to obtain service on the party or Wanzer s claims against the party have been disposed of by a signed order. Pursuant to Wanzer s request, the trial court clerk has filed a supplemental record, which reflects that neither the Department nor Vega was served. The supplemental record also contains Wanzer s Advisory to the Court, which reflects that Wanzer did expect to obtain service on and pursue his claims against the Department and Vega. Accordingly, we cannot hold that the case stands as if there had been a discontinuance as to these parties. See M.O. Dental Lab, 139 S.W.3d at 674-75; Youngstown Sheet & Tube Co., 363 S.W.2d at 232. And, because the supplemental record does not contain an order disposing of Wanzer s claims against these parties, the June 3, 2005 dismissal orders remain interlocutory and not appealable. // We therefore dismiss this appeal for lack of jurisdiction.

PER CURIAM