Forrester v. Ginn
Forrester v. Ginn
Opinion of the Court
MAJORITY OPINION ON REHEARING
Jeff and Kim Forrester (“the Forres-ters”) originally brought a restricted ap
On rehearing, the Forresters present one argument: that the record affirmatively reflects the trial court failed to notify them of its intent to dismiss their case for want of prosecution. We reverse and remand.
I. BACKGROUND
In January 2004, the Forresters filed suit against Emmanuel Ginn, A & R Transport, Inc., Keith Jackson, and Steve Brantley (collectively referred to hereinafter as “appellees”) for damages resulting from a traffic accident. The trial court sent notice dated May 18, 2005 to all parties that the case would be dismissed for want of prosecution unless by June 27, 2005, either (1) a judgment was signed, (2) a trial scheduling order was signed, or (8) a verified motion to retain was filed. In response, the Forresters filed a verified motion to retain the case on June 17, 2005. On June 27, 2005, the trial court signed a typed order to retain and holographically inserted the words “for 60 days” at the end of the paragraph ordering retention of the case. Thereafter, a motion by the Forresters to substitute counsel was granted; however, the record does not reflect any further activity until December 2, 2005, at which time the trial court dismissed the Forresters’ case for want of prosecution on its own motion.
The Forresters filed their notice of restricted appeal in this court on June 2, 2006, and argued that the trial court erred in failing to (1) give them notice of its intent to dismiss their case after it signed its motion to retain, and (2) specify what subsequent actions needed to be taken to retain the case prior to December 2, 2005. In the opinion first issued in this case, we held that the Forresters failed to show error on the face of the record because the record was silent as to whether the trial court notified the Forresters of its intent to dismiss their case. In their motion for rehearing, the Forresters argue that all elements of a restricted appeal have been met, including error on the face of the record.
II. ANALYSIS
Standard of Review
To obtain reversal of an underlying judgment by restricted appeal, the Forres-ters must establish that (1) they filed notice of the restricted appeal within six months after the judgment was signed; (2) they were a party to the underlying lawsuit; (3) they did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact or conclusions of law; and (4) error is apparent on the face of the record. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Tex.R.App. P. 26.1(c), 30. It is undisputed that the For-resters complied with the first two elements of a restricted appeal. Accordingly, we review only whether the Forresters participated in the hearing that resulted in the judgment complained of and whether error is apparent from the face of the record.
Participation at the Hearing
Appellees argue that by filing a motion to retain, the Forresters participat
More importantly, the essential inquiry turns on whether the appellant took part in the “decision-making event” that resulted in the order adjudicating the appellant’s rights. Texaco, Inc. v. Cent. Power &
Error on The Face of The Record
As for the last element in a restricted appeal, the Forresters argue that the face of the record shows that the trial court (1) did not give notice of its intent to dismiss prior to the December 2, 2005 dismissal, (2) did not hold a dismissal hearing in which good cause could have been shown for the case to be maintained on the docket, and (3) did not give notice to appellants of the dismissal order. To support this argument, appellants rely on (1) a letter dated August 27, 2007, to the clerk’s office requesting various notices, docket entry sheets, and court orders, and (2) the district clerk’s supplemental record.
In the letter dated August 27, 2007, the Forresters requested any notices issued by the court regarding its intent to dismiss appellants’ case, notices setting any hearings on the court’s intent to dismiss the case, notices of the dismissal order, and docket sheets on the dismissal hearing. In the letter, the Forresters also requested that the clerk’s office indicate whether any of the requested documents were not part of the court’s file. The clerk’s supplemental record listed three documents issued by the court: the June 2005 order retaining the case on the court’s docket, the order substituting counsel, and the December 2, 2005 dismissal order. More importantly, however, the clerk’s supplemental record expressly indicates that the clerk’s office was “[ujnable to locate other items requested.”
A trial court’s authority to dismiss for want of prosecution stems from the express authority of rule 165a of the Texas Rules of Civil Procedure as well as from the court’s inherent power to manage its own docket. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); 3V, Inc. v. JTS Enterprises, Inc., 40
We hold that the error complained of— the trial court failed to notify appellants of its intent to dismiss their suit — is apparent on the face of the record. Having found that the trial court failed to notify appellants of its intent to dismiss their lawsuit, we hold that the Forresters have met all elements of a restricted appeal. See Villarreal, 994 S.W.2d at 630 (the failure to provide adequate notice of the trial court’s intent to dismiss for want of prosecution requires reversal). We sustain appellants’ sole issue on rehearing.
We reverse the trial court’s judgment dismissing the case and remand the case for further proceedings consistent with this opinion.
GUZMAN, J., dissents.
. To the extent that the Bousquet and On courts rely on Bowles for the proposition that a motion to retain, alone without a hearing, can be sufficient participation to preclude a restricted appeal, we disagree. See On, 2004 WL 637898, at *3 (finding that appellant participated at trial where appellant filed a motion to retain and trial court dismissed the case without holding a hearing because the motion to retain was “inadequate”); Bous-quet, 2001 WL 780538, at *3 (holding, without mention of a hearing held in the trial court to decide issue of dismissal, that appellant participated at trial where he filed a motion to retain). Bowles was decided in the context of a summary judgment proceeding, where an oral hearing on a motion for summary judgment is not required and the disposition of the summary judgment is decided by the written pleadings and evidence. TEX. R. CIV. P. 166a(c); Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). In that situation, a motion or re-spouse to a motion for summary judgment would be directly involved in the decision-making event, as the court makes its decision based solely on those written pleadings. In the context of a dismissal for want of prosecution, however, the court is required to conduct an oral hearing and allow the parties to present evidence. Tex.R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Brown v. Brook-shires Grocery Store, 10 S.W.3d 351, 354 (Tex.App.-Dallas 1999, pet. denied). The trial court commits reversible error if it dismisses a case for want of prosecution without holding a hearing. See Alexander, 134 S.W.3d at 852 (distinguishing its facts from Brown, 10 S.W.3d at 354, in which the court held a trial court’s failure to provide an opportunity for a hearing before dismissal is reversible error). Therefore, a motion to retain alone, without a hearing, cannot be sufficient participation because the decision-making event — the hearing — did not occur.
. Appellees argue that we should not consider the clerk’s supplemental record because it became a part of the record after we issued our first opinion in this case. See Skadden v. Alfonso, 217 S.W.3d 611, 628-29 (Tex.App.Houston [14th Dist.] 2006, pet. denied); Tex. First Nat’l Bank v. Ng, 167 S.W.3d 842, 866 (Tex.App.-Houston [14th Dist.] 2005, pet. granted, judm’t vacated w.r.m.). Though disfavored, we have discretion to consider supplements to the appellate record that are filed after issuance of the opinion and rendition of the judgment. See TEX. R. APP. P. 55(b).
. Relying on Lynda's Boutique, the dissent would deny appellant’s motion for rehearing on the basis that the record is silent as to whether notice was sent to appellant. In Lynda’s Boutique, the appellant attempted to use affidavits stating that no notice was mailed to it to support the argument that there was error on the face of the record. Lynda’s Boutique, 134 S.W.3d 845, 848. The Texas Supreme Court reasoned that the affidavits were extrinsic, as they had been filed after the case reached the Texas Supreme Court. Id. Ultimately, the court held that the record was silent because "there [wa]s nothing in the [record] before [the Court] that affirmatively indicate[d] that notice was given, nor any notation to establish that notice was omitted.” Id. (emphasis added). The facts are different in the instant appeal. Unlike Lynda's Boutique, there is an affirmative notation on the clerk's record that no record of notice had been located.
Dissenting Opinion
dissenting on Rehearing.
I respectfully dissent from the majority’s grant of appellants’ motion for rehearing.
Despite the language in our former opinion, the following language from the Texas Supreme Court is dispositive: “The absence from the record of affirmative proof that notice of intent to dismiss or of the order of dismissal was provided does not establish error.’” Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 849 (Tex. 2004) (quoting Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d
[T]he fact that the record is silent about the sending of notices under Rule 165a does not establish error on the face of the record. And mere silence as to whether notice was sent does not establish that notice was not sent or that it was sent to the wrong address. Accordingly, when the record does not reflect whether notice was sent, that is insufficient to establish reversible error in a restricted appeal proceeding.
Id. at 849-50.
Under the precedent by which we are bound, the materials presented do not indicate whether there was a failure to send the required notice or whether notice was sent but the clerk of the court simply made no record of its action. Consequently, I would deny the motion for rehearing.
. 811 S.W.2d at 943.
. TEX. GOV'T CODE ANN. § 51.303 (Vernon 2005) (addressing duties and powers of the clerk of a district court; although the clerk is required to record the acts and proceedings of court, enter all judgments, and record all executions issued, the statute does not contain an affirmative requirement that the clerk record the mailing or failure to mail a required notice); TEX. R. CIV. P. 165a (clerk is required to send notice, but rule contains no requirement that clerk make a record showing that notice was sent).
Reference
- Full Case Name
- Jeff FORRESTER and Kim Forrester, Appellants, v. Emmanuel GINN, a & R Transport, Inc., Keith Jackson, and Steve Brantley, Appellees
- Cited By
- 6 cases
- Status
- Published