Jeff Forrester and Kim Forrester v. Emmanuel Ginn, A&R Transport, Inc., Keith Jackson, and Steve Brantley--Appeal from 333rd District Court of Harris County

Affirmed and Memorandum Opinion filed July 26, 2007

Affirmed and Memorandum Opinion filed July 26, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00549-CV

____________

JEFF FORRESTER AND KIM FORRESTER, Appellants

V.

EMMANUEL GINN, A&R TRANSPORT, INC., KEITH JACKSON, and STEVE BRANTLEY, Appellees

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 04-04581

M E M O R A N D U M O P I N I O N

Jeff Forrester and Kim Forrester (Athe Forresters@) bring this restricted appeal following the trial court=s dismissal for want of prosecution. In their sole issue, the Forresters contend that there is error apparent from the face of the record stemming from the trial court=s dismissal for want of prosecution. We affirm the trial court=s judgment.

I. Background

In January of 2004, the Forresters filed suit against Emmanuel Ginn, A&R Transport, Inc., Keith Jackson, and Steve Brantley (collectively referred to as the Aappellees@) for damages resulting from a traffic accident. The trial court sent notice dated May 18, 2005 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 (3) a verified motion to retain was filed.[1] 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 type-written order to retain and holographically inserted the words Afor 60 days@ at the end of the paragraph ordering retention of the case. The record does not reflect any further activity other than a motion by the Forresters to substitute counsel (which was granted), until December 2, 2005 when the trial court entered an order dismissing the case. The Forresters filed notice of restricted appeal in this court on June 2, 2006.[2]

II. Analysis

In their sole issue, the Forresters argue that the trial court erred by failing to: (1) give notice of its intent to dismiss prior to the December 2, 2005 dismissal; (2) specify what actions needed to be taken to retain the case prior to the December 2, 2005 dismissal; and (3) give notice when it dismissed the case on December 2, 2005. The requirements of a restricted appeal are (1) a notice of appeal must be filed within six months of the date of the judgment (2) by a party to the suit (3) who did not participate in the hearing that resulted in the judgment complained of and did not timely file a postjudgment motion or request for findings of fact and conclusions of law, and (4) the error complained of is apparent from the face of the record. Tex. R. App. P. 30; Alexander v. Lynda=s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The Forresters are parties to the suit, and they filed their appeal within six months of the date of the judgment. The parties dispute whether the Forresters sufficiently participated at trial and whether the errors complained of are apparent from the face of the record.

A. Participation at Trial

The appellees argue that the Forresters= filing of their June 17, 2005 motion to retain was sufficient participation to prevent a restricted appeal. We disagree. The essential inquiry turns on whether the appellant took part in the Adecision making event@ that resulted in the order adjudicating the appellant=s rights. Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996). We first note that it is not clear in looking at the record whether there was a hearing involving the dismissal for want of prosecution. In support of their contention that the filing of the June 17, 2005 motion to retain was sufficient participation, the appellees cite Bowles v. Cook, 894 S.W.2d 65, 68 (Tex. App.CHouston [14th Dist.] 1995, no writ) (holding that the filing of a response to a summary judgment motion was sufficient participation to bar a writ of error), and a line of cases applying the Bowles decision in finding the filing of a motion to retain to be sufficient participation. See Orr v. Barrett, Burke, Wilson, Castle, Daffin & Frappier, L.L.P., No. 09 03 073-CV, 2004 WL 637898, at *3 (Tex. App.CBeaumont Apr. 1, 2004, no pet.) (mem. op.) (finding that appellant=s motion to retain in response to trial court=s notice of intention to dismiss was sufficient participation in the decision-making eventCthe dismissal for want of prosecution); Bousquet v. Bokeloh, No. 01 01 00112 CV, 2001 WL 780538, at *3 (Tex. App.CHouston [1st Dist.] July 12, 2001, no pet.) (not designated for publication) (same). In the Bowles line of cases, the respective trial courts ruled against the appellants on the motions (in response to summary judgment and motion to retain) at issue resulting in the dismissal of each case. See Orr, 2004 WL 637898, at *3 (AThe final, appealable order of October 23, 2002, dismissing plaintiffs= cause for failure to prosecute was a ruling on plaintiffs= Motion to Retain.@); Bousquet, 2001 WL 780538, at *3 (finding that the appellant=s motion to retain Adid not meet the trial judge=s requirements to avoid dismissal@ thus resulting in dismissal); Bowles, 894 S.W.2d at 68 (motion for summary judgment granted following the appellant=s filing of his response to the motion for summary judgment).[3] In contrast, the Forresters were granted relief based on the June 17, 2005 motion to retainCthe trial court retained the case on June 27, 2005. What ultimately was the decision-making event in this case, the dismissal order, did not occur until more than five months after the Forresters filed their motion to retain and the trial court granted that motion. Because of this causal gap, we find the Bowles line of cases to be inapplicable to the facts at hand, and hold that the Forresters= filing of their motion to retain was not sufficient participation in the decision-making event to preclude their restricted appeal.

B. Error Apparent on the Face of the Record

The Forresters argue that it is apparent on the face of the record that the trial court erred in failing to: (1) give notice of its intent to dismiss prior to the December 2, 2005 dismissal; (2) specify what actions needed to be taken to retain the case prior to the December 2, 2005 dismissal; and (3) give notice when it dismissed the case on December 2, 2005. A court may dismiss a case for want of prosecution under either Rule 165a or under its common law inherent authority. Alexander, 134 S.W.3d at 850; Villarreal, 994 S.W.2d at 630. Although it is unclear from the record, we will assume arguendo that the trial court dismissed this case pursuant to Rule 165a as the Forresters argue.[4]

A court must provide notice of its intent to dismiss when dismissing for want of prosecution under either Rule 165a or its inherent authority. Villarreal, 994 S.W.2d at 630. The Forresters simply point to an absence in the record of any notice of intent to dismiss prior to the December 2, 2005 order to support their contention that they did not receive such notice. The supreme court in Alexander held:

A[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.@

134 S.W.3d at 849-50. Therefore, the Forresters have not sufficiently shown error on the face of the record with respect to notice of intent to dismiss prior to the December 2, 2005 dismissal.

Because Rule 165a does not specifically require the trial court to specify what actions need to be taken prior to dismissal, we construe the Forresters= second sub-issue as complaining that the trial court violated the Rule 165a(1) hearing requirements. Rule 165a requires the trial court to hold a dismissal hearing in which good cause may be shown for the case to be maintained on the docket. Tex. R. Civ. P. 165a(1); Villarreal, 994 S.W.2d at 630. The Rule also requires that the parties be notified of the date and place of the hearing with the notification of intent to dismiss. Tex. R. Civ. P. 165a(1); Alexander, 134 S.W.3d at 851. A trial court may, with the notice of intent to dismiss, specify what actions can be taken prior to the dismissal hearing to avoid dismissal. See Fontenot v. Brookshire, No. 03 05 00378 CV, 2007 WL 1711768, at *1 (Tex. App.CAustin June 12, 2007, no pet. h.) (mem. op.) (analyzing trial court=s notice that the case would be dismissed unless a motion to retain was filed by a certain date); Clark v. Frantz, No. 05 05 01517 CV, 2006 WL 3028964, at *1 (Tex. App.CDallas Oct. 26, 2006, no pet.) (mem. op.) (finding no abuse of discretion where trial court sent notice of intent to dismiss unless a motion to retain was filed within 15 days of such notice); Britton v. Aimco Sandalwood L.P., No. 14 04 00985 CV, 2005 WL 3359711, at *1 (Tex. App.CHouston [14th Dist.] Dec. 6, 2005, pet. denied) (mem. op.) (finding no error with respect to trial court=s notice that case would be dismissed unless certain actions were taken by appellant). However, it is not required to do so. See Tex. R. Civ. P. 165a. As mentioned earlier, the record is silent as to whether notice of intent to dismiss was sent to the parties prior to the December 2, 2005 dismissal. The record is also silent as to whether notice of a dismissal hearing, which likely would have been included with notice of intent to dismiss, was given. Furthermore, the record is silent as to whether a hearing was held prior to dismissal. As a result, it is not apparent from the face of the record that a dismissal hearing was not held or that notice of that hearing was not provided. See Alexander, 134 S.W.3d at 849-50 (A[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.@); Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004) (finding no error apparent on the face of the record where the record was silent as to whether notice was sent to appellant).

The Forresters also argue that it is apparent on the face of the record that the trial court erred in failing to give them notice of the December 2, 2005 dismissal order. Once a dismissal order is signed, notice of that order must immediately be given to the parties. Tex R. Civ. P. 165a(1); 306a(3). The Forresters contend that if any notice was given, it was mailed to the incorrect address. As support for this contention, the Forresters rely on a Acomputer printout@ purportedly from the trial court=s clerk=s office and an affidavit by their counsel stating he had not received notice and any notice, if given, was sent to the wrong address. Alexander made clear that such extrinsic evidence cannot be considered in a restricted appeal. 134 S.W.3d at 848 (quoting Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991) (AThe rule has long been that evidence not before the trial court prior to final judgment may not be considered in a writ of error proceeding . . . .@)). If such evidence is necessary, it should be presented in a motion for new trial or a bill of review. Id. The record here is void of any indication as to whether notice was given of dismissal. Consequently, the Forresters have failed to show error apparent on the face of the record. See Alexander, 134 S.W.3d at 849-50; Gold, 145 S.W.3d at 213.

We appreciate the difficult task an appellant faces when claiming in a restricted appeal that no notice was given or that a hearing was not held. In bringing such a claim, the appellant is required to offer some affirmative evidence that such procedure was not taken; however, the essential nature of the claimCthat a procedure was not complied withCimplies that the record will normally be void of evidence affirmatively proving its truth. For this reason, a restricted appeal is often not the optimal vehicle to bring such arguments. A motion for new trial or bill of review are more appropriate procedures because extrinsic evidence can be offered to affirmatively prove that the procedure did not occur. See General Electric, 811 S.W.2d at 944 (explaining why a bill of review or a motion for new trial are the appropriate means of raising issues which rely on extrinsic evidence). Alternatively, if a litigant insists on pursuing a restricted appeal, an advisable strategy might be to request the notice allegedly not given or the record of the hearing allegedly not had as part of the appellant=s record request from the trial court. If the notice was in fact not given (or the hearing not had), then the record may reflect such a defect on its face in the form of a notation from the trial court clerk that such a document was unavailable. Regardless of the method, the law is clear that there must be some evidence of error on the face of the record alone, without the supplementation of extrinsic evidence, in order to bring a restricted appeal. The Forresters have failed to show such evidence. We overrule their sole issue.

We affirm the trial court=s judgment.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed July 26, 2007.

Panel consists of Chief Justice Hedges and Justices Hudson and Guzman.

[1] While this notice of intent to dismiss is not in the record, the record reflects that the Forresters requested such notice. The Forresters have attached a copy of the notice to their appellate brief, and the appellees acknowledge the contents of that notice in their brief.

[2] The Forresters allege that the six month delay between the order dismissing the case and the filing of their restricted appeal was due to the fact that neither they nor their attorney received notice of dismissal until some five months after the order was issued when their attorney allegedly contacted the trial court=s clerk=s office.

[3] To the extent that the Bousquet and Orr courts rely on Bowles for the proposition that a motion to retain alone, without an opportunity to be heard at an oral hearing, can be sufficient participation to preclude a restricted appeal, we disagree. See Orr, 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 Ainadequate@); Bousquet, 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 on the written pleadings and evidence. Tex. R. Civ. P. 166a8; Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). In that situation, a motion or response 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 give the parties an opportunity to be heard at an oral hearing and allow the parties to present evidence at that hearing. Tex. R. Civ. P. 165a; Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Brown v. Brookshires Grocery Store, 10 S.W.3d 351, 354 (Tex. App.CDallas 1999, pet. denied); see also Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 402 03 (Tex. App.CDallas 2001, pet. denied) (holding that error stemming from the lack of a hearing before dismissal can be cured by a post-dismissal hearing on a motion to reinstate). The disposition of a dismissal for want of prosecution is determined by the evidence presented at that hearing, rather than by any motions filed prior to that hearing. See Tex. R. Civ. P. 165a; Villareal, 994 S.W.2d at 630. But see Alexander, 134 S.W.3d at 852 (finding no error where the trial court dismissed the case without a hearing because notice of the hearing was given and the plaintiff failed to attend the hearing). We believe, therefore, that the filing of a motion to retain alone, without an opportunity to participate in a hearing, does not constitute sufficient participation in the decision-making eventCthe dismissalCto prevent a restricted appeal.

[4] The May 18, 2005 notice of intent attached to the Forresters brief states that this Acase is eligible for dismissal for want of prosecution because it has been on file for more than eighteen months and is not set for trial.@ Rule 165a(2) states that any case not disposed of within the time standards promulgated by the supreme court may be placed on the dismissal docket. Tex. R. Civ. P. 165a(2). The current time standard promulgated by the supreme court is eighteen months. Tex. R. Jud. Admin. 6(b)(1), reprinted in Tex. Gov=t Code, tit. 2, subtit. F app. The order of dismissal itself does not specify its reasons or under what authority the trial court dismissed the case (Rule 165a or inherent authority). Therefore, it appears that dismissal was pursuant to Rule 165a(2).