VERNON BUTLER, Appellant v. EDGAR A. MASON, Appellee

AFFIRM; Opinion issued October 25, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00347-CV
............................
VERNON BUTLER, Appellant
V.
EDGAR A. MASON, Appellee
.............................................................
On Appeal from the 193rd District Court
Dallas County, Texas
Trial Court Cause No. 05-06936-L
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MEMORANDUM OPINION
Before Justices Moseley, Lang, and Mazzant
Opinion By Justice Mazzant
        Vernon Butler appeals the trial court's judgment dismissing his lawsuit for want of prosecution. Appellant brings two points of error contending (1) the trial court erred in dismissing the case for want of prosecution; and (2) the trial court erred in failing to hold a hearing on appellant's motion to reinstate. We affirm the trial court's judgment.
        In his brief, appellant makes several factual allegations. He asserted he filed a legal malpractice action against appellee and that the district clerk assigned the case to the 193rd District Court and the 298th District Court at the same time. Appellant also stated the district clerk advised him that the case was filed in the 298th District Court and that he diligently prosecuted the case in that court. Appellant stated that on February 5, 2006, he received the judgment in this case from the 193rd District Court dismissing the case for want of prosecution. Appellant asserted that on February 25, 2006, he filed a motion to reinstate with the 193rd District Court complaining that he had been misadvised concerning the court assignment. He also stated that he filed a notice of appeal and that on May 17, 2006, while attempting to prosecute this appeal, he learned that the case had been dismissed from the 298th District Court for want of prosecution.
        The record, however, fails to show much of what appellant asserts in his brief. The record shows appellant filed his lawsuit on June 20, 2005 and that the case was filed in the 193rd District Court. Nothing in the record shows the case was simultaneously filed in the 298th District Court. Appellant attached to his brief two copies of the first page of his petition, one showing it was filed in the 193rd District Court and the other showing it was filed in the 298th District Court. However, an appellate court cannot consider documents cited in a brief and attached as appendices if they are not formally included in the record on appeal. Cantu v. Horany, 195 S.W.3d 867, 870 (Tex. App.-Dallas 2006, no pet.); Burke v. Ins. Auto Auctions, 169 S.W.3d 771, 775 (Tex. App.-Dallas 2005, pet. denied). The copy showing appellant's case was filed in the 193rd District Court is in the clerk's record. However, the copy showing the case was also filed in the 298th District Court is not included in the record, and we cannot consider it.
        The record also does not contain appellant's motion to reinstate. The record contains a “motion for extension of time to file motion for reinstatement and notice of appeal,” which contains appellant's argument for the appellate timetables running from February 5, 2006, the day he learned of the judgment, instead of January 28, 2006, the date of the final judgment dismissing the cause. The prayer of that motion requests that the trial court “will grant this motion and file the accompanying 'Motion to Reinstate' and 'Notice of Appeal' instanter.” Although the notice of appeal is included in the record, no motion to reinstate is in the record before us. The record does contain the district clerk's “Case Summary,” which indicates appellant filed a motion to reinstate.
        In his first point of error, appellant contends the trial court erred in dismissing the case for want of prosecution. We review a dismissal for want of prosecution under a clear abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam). “The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles.” Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006) (quoting E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995)). “[T]he central issue is whether the plaintiffs exercised reasonable diligence.” MacGregor, 941 S.W.2d at 75. It appears appellant asserts the trial court erred in dismissing the case because (a) appellant did not receive notice that the court assignment for the case had changed, (b) appellant did not receive notice of intent to dismiss the case, and (c) appellant had been diligently prosecuting the case in the 298th District Court. The record, however, contains no evidence that appellant lacked notice of which court the case was assigned to or that he lacked notice of the court's intent to dismiss for want of prosecution. Nor does the record show appellant diligently prosecuted the case in any court.
        We conclude appellant has failed to show the trial court clearly abused its discretion in dismissing the case for want of jurisdiction. We overrule appellant's first point of error.
        In his second point of error, appellant asserts the trial court erred in failing to hold a hearing on appellant's motion to reinstate. As discussed above, the record does not contain appellant's motion to reinstate, although it does indicate that appellant filed one. The record does not show that the motion to reinstate was set for a hearing. Appellant cites McKee v. Smith, 145 S.W.3d 299 (Tex. App.-Fort Worth 2004, no pet.), in support of his argument. In that case, the appellant timely filed a properly verified motion to reinstate. Id. at 305. The Fort Worth Court of Appeals held that, pursuant to rule of civil procedure 165a(3), the trial court was required to hold a hearing on the motion to reinstate and abused its discretion by failing to do so. Id. at 305-06; see Tex. R. Civ. P. 165a(3) (“The clerk shall deliver a copy of the motion to the judge, who shall set a hearing on the motion as soon as practicable.”). However, if the motion to reinstate is not properly verified, then the trial court does not abuse its discretion by failing to set the motion for a hearing. Johnson v. Sepulveda, 178 S.W.3d 117, 119 (Tex. App.-Houston [14th Dist.] 2005, no pet.).
        Because the motion to reinstate is not included in the record, the record does not show the motion to reinstate was properly verified. Accordingly, the record does not show the trial court abused its discretion in failing to hold a hearing on appellant's motion to reinstate. We overrule appellant's second point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
060347F.P05