George Alexander D/B/A Zentner's Daughter Steakhouse v. Lynda's Boutique
George Alexander D/B/A Zentner's Daughter Steakhouse v. Lynda's Boutique
Opinion of the Court
delivered the opinion of the Court,
There are two issues in this restricted appeal. The first is whether Texas Rule of Civil Procedure 165a(l)
Lynda’s Boutique and George Alexander d/b/a Zentner’s Daughter Steakhouse (Alexander) are businesses located adjacent to one another in San Angelo, Texas. On May 6, 1999, Lynda’s Boutique sued Alexander for negligence and gross negligence after a fire spread from Alexander’s building to Lynda’s Boutique.
In an order signed January 18, 2000, the trial court directed the parties to appear at a Rule 166
ATTENDANCE IS MANDATORY.
The Court may excuse counsel under the following circumstances ONLY:
1. Submission by counsel of a proposed Agreed Scheduling Order ... Counsel is not excused from attendance unless notified that the Court has approved the Agreed Scheduling Order.
2. For other compelling and urgent reason deemed appropriate by the Court.
Failure to appear without excuse will result in dismissal of the case for want of prosecution or entering sanctions or other orders as the Court deems appropriate.
Lynda’s Boutique did not appear at the scheduling conference. The trial court dismissed the case for want of prosecution four days after the hearing in an order dated March 10, 2000. There is no indication in the record that the court gave further notice or held an additional hearing before dismissing the case.
Lynda’s Boutique did not file a motion to reinstate under Rule 165a(3).
The court of appeals ordered the trial court to reinstate the case, holding that the order setting the scheduling conference did not sufficiently apprise the parties of the trial court’s intent to dismiss the case for want of prosecution because the order said that dismissal for want of prosecution was only “one of the possible sanctions listed in the order” for failure to attend.
II
To prevail on its restricted appeal, Lynda’s Boutique must establish that: (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it 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 and conclusions of law; and (4) error is apparent on the face of the record.
Counsel for Lynda’s Boutique relies in part on an affidavit that was executed after the case had reached this Court.
The rule has long been that evidence not before the trial court prior to final*849 judgment may not be considered in a ■writ of error proceeding.... Our system is founded upon a belief that trial courts should first be given the opportunity to consider and weigh factual evidence. Permitting challenge to a judgment based on affidavits first filed in the appellate court undermines this judicial structure. The appropriate remedy when extrinsic evidence is necessary to the challenge of a judgment is by motion for new trial, Tex.R.Civ.P. 320, or by bill of review filed in the trial court.12
Our decision in General Electric is dispositive of another issue in this appeal, which is whether the failure of the record to affirmatively show that notice of the pre-trial hearing was sent to counsel or that notice of the order dismissing the case was sent to counsel at a particular address is error on the face of the record. It is not.
In General Electric, the plaintiff whose case had been dismissed for want of prosecution filed an appeal by writ of error pursuant to former Texas Rule of Appellate Procedure 45. (The writ of error procedure is now the restricted appeal procedure in Texas Rules of Appellate Procedure 25.1, 26.1(c), and 30.) The record in General Electric was devoid of any indication that notice of a dismissal hearing had been issued or sent, and the plaintiff alleged that it had not received any notice that the trial court intended to dismiss for want of prosecution. The plaintiff tendered affidavits of its counsel and the district clerk averring that notice was neither given nor received. After explaining why we could not consider’ the affidavits, we held that when the record is silent as to whether notice was provided, there is no error apparent on the face of the record: “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.”
Rule 165a, Texas Rules of Civil Procedure, which governs dismissals for want of prosecution, directs the district clerk to mail to counsel of record and to each party not represented by counsel a notice containing the date and place of the hearing at which the court intends to dismiss. A similar notice of the signing of the order of dismissal is also required. Tex.R. Civ. P. 165a, 306a. The rules do not, however, impose upon the clerk the duty to note on the docket sheet the fact of mailing such notices. Consequently, in cases dismissed for want of prosecution, the record is ordinarily silent as to whether or not the required notices were given.
There is thus nothing in the transcript before us that affirmatively indicates that notice was given, nor any notation to establish that notice was omitted.... 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.15
Accordingly, the fact that the record is silent about the sending of notices under
Lynda’s Boutique argues that General Electric is distinguishable because the record in this case is not entirely silent, at least as to whether notice of the order actually dismissing the case was sent to Lynda’s Boutique. The order dismissing the case says at the bottom:
Xc: Webb, Frank J.
Bale, Larry W.
Lynda’s Boutique argues that the absence of an address for Frank J. Webb, its attorney of record at the time the order was signed, is error on the face of the record. Lynda’s Boutique cites General Motors Acceptance Corp. v. City of Houston.
Ill
We now consider whether the order setting the pre-trial hearing comports with Rule 165a(l) and whether Rule 165a(l) permitted the trial court to dismiss this case for failure to appear without setting an additional hearing.
A court may dismiss a case for want of prosecution under either Rule 165a or under its common law inherent authority.
1. Failure to Appear. A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice. Notice of the court’s intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney and whose address is shown on the docket or in the papers on file, by posting same in the United States Postal Service. At the dismissal hearing, the court shall dismiss for want of prosecution unless*851 there is good cause for the case to be maintained on the docket.19
The rule clearly states that a trial court may dismiss a “case on failure of any party seeking affirmative relief to appear for any hearing or trial.” It also requires that notice of the court’s intention to dismiss and the date and place of the dismissal hearing be sent to each attorney of record. Lynda’s Boutique argues that the trial court’s order setting the pre-trial conference does not give notice that the purpose of that hearing was to determine whether the case should be dismissed for want of prosecution. The court of appeals agreed, concluding that because the order setting the scheduling conference stated that dismissal was only one of a number of possible consequences for failure to appear, it was “unclear whether dismissal [would] automatically result without the benefit of a hearing.”
It is clear from this notation on the docket sheet that the sole purpose of the hearing set for March 6 was to conduct a scheduling conference, that the case was dismissed for want of prosecution as a direct result of counsel’s failure to appear at the scheduling conference, and that the trial court did not first conduct a noticed dismissal hearing. We thus conclude that the trial court did not provide sufficient notice of its intent to dismiss, did not afford Lynda’s Boutique an opportunity to be heard, and that this error is apparent on the face of the record.22
We disagree with this analysis. The order setting the pre-trial conference plainly warned the litigants that they could expect the trial court to dismiss the case for want of prosecution if Lynda’s Boutique failed to attend: Failure to appear without excuse will result in dismissal of the case for want of prosecution or entering sanctions or other orders as the Court deems appropriate. The fact that the trial court said that it might order sanctions in addition or as an alternative to dismissal did not diminish the warning that dismissal was at issue. The fact that the order in this case explicitly states that the court could order lesser or alternative sanctions does nothing more than state the court’s inherent authority.
Both Lynda’s Boutique and the court of appeals have cited Brown v. Brookshires Grocery Store
The notice and Lynda’s Boutique’s conduct in this case also differ from the notice and the plaintiffs conduct at issue in Villarreal v. San Antonio Truck & Equipment.
Unlike the plaintiff in Villarreal, Lynda’s Boutique did not comply with the express requirements of the trial court’s order setting the pre-trial conference, which gave Lynda’s Boutique notice of at least two things. First, there was to be a scheduling hearing, and second, dismissal could result if Lynda’s Boutique did not appear at that hearing. Rule 165a(l) does not preclude a trial court from scheduling a pre-trial hearing, giving notice that failure to attend that hearing may result in dismissal for want of prosecution, and also deciding at that hearing whether the case should be dismissed for want of prosecution if a party seeking relief fails to attend. All Rule 165a(l) requires is notice of intent to dismiss and of a date, time, and place for the hearing.
Because the notice in this case clearly set a date and time for a hearing and clearly stated that the parties could expect the court to dismiss the case for want of prosecution for nonattendance, the order satisfies any requirement that there be notice and an opportunity to be heard before a case is dismissed for want of prosecution.
* ⅛ * * *
For the foregoing reasons, we hold that the trial court did not err in dismissing this case for want of prosecution. We therefore reverse the court of appeals’ judgment and render judgment dismissing Lynda’s Boutique’s claims against Alexander.
. Tex.R. Civ. P. 165a.
. Tex.R. Civ. P. 166.
. Id. 165a(3) (“The Court shall reinstate the case upon finding after a hearing that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained.”).
. See Tex.R.App. P. 30. Rule 30 provides:
Rule 30. RESTRICTED APPEAL TO COURT OF APPEALS IN CIVIL CASES
A party who did not participate — either in person or through counsel — in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c). Restricted appeals replace writ of error appeals to the court of appeals. Statutes pertaining to writ of error appeals to the court of appeals apply equally to restricted appeals.
. See Tex.R. Civ. P. 165a(3) (motion to reinstate must be filed within thirty days after the trial court signs the dismissal order); id. 306a(4) (if party does not receive notice or actual knowledge within twenty days of the signing of a judgment or other appealable order, the time period runs from the date the party receives notice or has actual knowledge, but in no event shall periods begin more than ninety days after the judgment or order is signed); see also Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994) ("A party who does not have actual knowledge of an order of dismissal within 90 days of the date it is signed cannot move for reinstatement.”).
. 96 S.W.3d at 331 (emphasis in original).
. Tex.R.App. P. 26.1(c), 30; Quaestor Inv., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999).
. The affidavit of counsel, Russell Bowman, says that when this case was in the trial court, an associate was counsel of record. That associate’s employment was terminated at the end of February 2000, more than a month after the trial court signed the January 18, 2000 order directing the parties to attend the pre-trial scheduling conference. The affidavit further says that by the end of March 2000, the transfer of files from the associate to Bowman was completed, and that "it took some time for me to get up to speed on the cases." Counsel avers that he filed a "notice of attorney in charge” on July 3, 2000, began reviewing this case July 4, 2000 and called the clerk=s office July 5, 2000, when he was told the case had been dismissed for want of prosecution on March 10, 2000. The affidavit also states that counsel began reviewing all mail addressed to his former associate from the end of February 2000 on, and that no notice of the pre-trial conference was in that mail. The affidavit says that the former associate did not inform counsel of the pre-trial conference at the time he was terminated and that the former associate took his calendar with him. It further says that counsel did not receive the "file documents” in this case, including the pleadings, until after the March 6, 2000 hearing had occurred. The affidavit does not say that notice of the hearing was missing from the files that counsel received from his former associate. Nor does it say that counsel of record for Lynda’s Boutique in January and February of 2000 failed to receive notice of the pre-trial hearing.
. 811 S.W.2d 942 (Tex. 1991).
. Id. at 944 (citations omitted).
. Id.
. Id. at 943.
. 857 S.W.2d 731 (Tex.App.Houston [14th Dist.] 1993, no writ).
. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).
. Tex.R. Civ. P. 165a(1).
. Id.
. Id. at 332.
. 10 S.W.3d 351 (Tex.App.Dallas 1999, pet. denied).
. Id. at 354.
. 994 S.W.2d 628 (Tex. 1999).
. Id. at 629.
. Id. at 632.
. See id. at 630. But see generally Link v. Wabash R.R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (the U.S. Constitution does not require prior notice of intent to dismiss and a hearing before a case can be dismissed for want of prosecution).
. See Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991) (citing Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988)).
Dissenting Opinion
joined by Justice JEFFERSON and Justice SMITH, dissenting.
The Court today concludes that Texas Rule of Civil Procedure 165a(l) permits a case to be dismissed for want of prosecution without holding a separate dismissal hearing. Because I conclude that the plain language of the rule requires a separate hearing, I respectfully dissent.
In this case, the plaintiff, Lynda’s Boutique, failed to appear at a scheduling hearing. Four days later, the trial court dismissed the claim for want of prosecution. The record does not reflect that the court gave any further notice or held any additional hearing before dismissing the case.
I agree that Rule 165a(l) permits a plaintiffs case to be dismissed for want of prosecution when a party fails to attend a required hearing; the rule provides that:
A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice. Notice of the court’s intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record.... At the dismissal hearing, the court shall dismiss for want of prosecution unless there is good cause for the case to be maintained on the docket.
Tex.R. Civ. P. 165a(l). I disagree, however, that the case can be dismissed immediately after a single missed hearing without further notice to the parties. First, the rules repeated reference to a “dismissal hearing” indicates that a separate hearing is contemplated. Id. Furthermore, the rule allows a party to avoid dismissal by showing “good cause for the case to be maintained on the docket.” Id. If the plaintiff is not present at the hearing — for example, when, as here, the scheduling hearing at which the plaintiff failed to appear suddenly became the “dismissal hearing” — then it is difficult to imagine how the plaintiff could show good cause. Consequently, I would interpret the rule to require a two-step procedure: first, the trial court must provide the plaintiff with notice that its failure to prosecute the case will lead to dismissal, and second, the trial court must hold a dismissal hearing at which the plaintiff has an opportunity to show good cause for maintaining the case.
Because I conclude that Rule 165a contemplates a separate hearing before dismissal, and that the trial court in this case therefore lacked the authority to dismiss the case pursuant to Rule 165a without holding such a hearing, I must also consider whether the trial court could have dismissed the case without such a hearing under its inherent authority. See Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999) (“[T]he common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence.”). Although this Court has not ruled on the issue, the United States Supreme Court has held that a federal court has inherent authority to dismiss a case when the plaintiff has engaged in dilatory tactics and has failed to appear for a pretrial conference. Link v. Wabash R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). In Link, however, the Supreme Court did not decide “whether unexplained absence from a pretrial conference would alone justify a dismissal with prejudice if the record showed no other evidence of dilatoriness on the part of the plaintiff.” Id. at 634, 82 S.Ct. 1386.
Accordingly, I would affirm the court of appeals’ judgment reinstating the case.
Reference
- Full Case Name
- George ALEXANDER D/B/A Zentner’s Daughter Steakhouse, Petitioner, v. LYNDA’S BOUTIQUE, Respondent
- Cited By
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- Published