TED H. DARBY, Appellant v. DURA-LOC ROOFING SYSTEMS LIMITED, Appellee

REVERSED AND REMANDED; Opinion filed July 25, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00230-CV
............................
TED H. DARBY, Appellant
V.
DURA-LOC ROOFING SYSTEMS LIMITED, Appellee
.............................................................
On Appeal from the County Court at Law No. 3
Collin County, Texas
Trial Court Cause No. 3-1679-04
.............................................................
MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Richter
Opinion By Justice Moseley
        In this restricted appeal, Ted H. Darby appeals the dismissal of his suit for want of prosecution. Because we agree there is error on the face of the record, we reverse the trial court's order of dismissal and remand this cause with instructions to reinstate the case. Because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4.
        On July 21, 2004, Darby filed his original petition asserting a claim for damages for a defective roof against Dura-Loc Roofing Systems Limited, Plano Roofing Company, Inc., and James N. Rogers, individually and d/b/a Plano Roofing Company, Inc. Dura-Loc was served, and, on November 11, 2004, it filed an answer. Darby filed several “Certificates of Written Discovery.” Both the original petition and the certificates show Darby's counsel's address as 510 Bering Drive, Suite 300, Houston, Texas 77057. However, both the trial court's docket and the citation to Dura- Loc show Darby's counsel's address as “1415 Louisianna 37th Floor, Houston, TX 77002.”
        On April 15, 2005, the Collin County Clerk sent Darby's counsel a letter stating:
 
Service appears to have been accomplished on all defendants but no answers have been filed. Please submit default judgment documents with affidavits to support claims for the Judge's signature.
 
 
 
Please reply within 30 days of the date of this letter or this case will be placed on a dismissal docket.
 
The inside address on the letter shows it was mailed to Darby's counsel at Hughes, Watters & Askanase, LLP, 1415 Louisianna 37th Floor, Houston, TX 77002.
        On August 28, 2005, the trial court signed an order of dismissal that stated:
 
        After filing suit, the plaintiff, TED. H. DARBY, failed to perfect service. Notice of the need to perfect service was given, but the plaintiff has not responded. Service has still not been perfected. Accordingly, the plaintiff's claims for relief are dismissed for want of prosecution.
 
        On February 22, 2006, Darby filed a notice of appeal. He asserted he did not receive the April 15 letter or the order of dismissal because the clerk forwarded the notices to the wrong address and he therefore did not have proper notice of the intent to dismiss his lawsuit or of the order of dismissal.
        Darby brings six issues for review. By letter, we notified Darby that his brief did not satisfy the requirements of rule of appellate procedure 38.1, specifically, that it was deficient because the table of contents did not indicate the subject matter of each issue or point, and it did not provide references to the record. See Tex. R. App. P. 38.1(b), (d), (f), & (h). Although directed to do so, Darby did not file an amended brief correcting the deficiencies. Dura-Loc has notified us that it will not file an appellee's brief.         We question whether Darby has waived error by failing to correct the deficiencies noted. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (under rules and common law, error may be waived by inadequate briefing). Nevertheless, because the record here is not voluminous and we are able to determine the pages Darby relies on, we address his issues. See Sanchez v. Sanchez, 915 S.W.2d 99, 101 (Tex. App.-San Antonio 1996, no writ).
        To prevail on a restricted appeal, Darby must establish that: (1) he filed notice of the restricted appeal within six months after the judgment was signed; (2) he was a party to the underlying lawsuit; (3) he did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. See Tex. Rs. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Darby contends he satisfies all four elements. We do not consider any facts stated in his notice of appeal because, in a restricted appeal, the “face of the record” consists of the papers on file with the trial court when it rendered judgment. See Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991).
        In his fourth issue, Darby argues the trial court erred in not providing him with an oral hearing prior to signing the order of dismissal.
        Rule of civil procedure 165a concerns dismissal for want of prosecution, and provides in part:
 
        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 . . . . 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(1). In addition, a trial court has the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his case with due diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). A party must be provided with notice and an opportunity to be heard before a court may dismiss a case for want of prosecution under either rule 165a or its inherent power. Id.
 
        As in Brown v. Brookshires Grocery Store, 10 S.W.3d 351, 354 (Tex. App.-Dallas 1999, pet. denied), the record on appeal here consists only of the clerk's record; there is no reporter's record. In that case, the court's letter to counsel said that the case would be dismissed for want of prosecution unless a written request for a setting or written showing for continuance was made within fifteen days. Id. at 353. The trial court later signed an order of dismissal that did not recite that a hearing was held. This Court determined that this notice of dismissal “clearly contemplates no dismissal hearing will be held.” Id. at 354.
        Here, the April 15 notice of dismissal requested counsel to “submit default judgment documents . . . for the Judge's signature” and that the case will be “placed on a dismissal docket” if there is no reply within thirty days. As in Brown, we cannot conclude that this notice contemplates that a dismissal hearing will be held. Most importantly, and also as in Brown, the order of dismissal does not recite that a hearing was held. See id. Accordingly, we conclude that the trial court erred in failing to hold a dismissal hearing as required under the rule and common law, and this error is apparent from the face of the record. See id. Moreover, we necessarily conclude that Darby did not participate in the dispositive hearing below. See id. at 355. We decide Darby's fourth issue in his favor.
        Because the record also establishes the first two requirements, we conclude Darby has established all the requirements of his restricted appeal. We need not address his remaining issues in which he argues he failed to receive proper notice of the clerk's letter and order of dismissal because they were sent to an improper address; the April 15 letter did not provide notice of the trial court's intent to dismiss his lawsuit; and the inaccuracies in the clerk's letter and order of dismissal constitute error on the face of the record.
        We reverse the trial court's order of dismissal and remand the cause with instructions to reinstate the case.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
 
 
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