Weldon Whitis v. Mid-Texas Bancshares, Inc.--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-97-115-CV

WELDON WHITIS,

Appellant

v.

MID-TEXAS BANCSHARES, INC.,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 29,435

O P I N I O N

Appellant Weldon Whitis appeals by a petition for writ of error from an order of dismissal for want of prosecution. See Tex. R. Civ. P. 165a. Whitis alleges in two points of error that the trial court erred in dismissing the suit because he did not receive notice of the court s intention to dismiss the case or of the order dismissing the case.

FACTUAL BACKGROUND

Whitis filed suit against Appellee, Mid-Texas Bancshares ( Mid-Texas ), on June 29, 1995. The court signed an order dismissing the case for want of prosecution on September 19, 1996. Whitis alleges that he first learned of the dismissal on January 9, 1997 when his counsel discussed the case with counsel for Mid-Texas. Whitis filed a motion to reinstate on January 16 which the court granted. The court set aside its ruling on the motion one month later because it lacked jurisdiction to consider the motion. The parties do not dispute the fact that the trial court lacked jurisdiction because the motion to reinstate was filed more than 90 days after the dismissal. See Tex. R. Civ. P. 306a(4); Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993).

POINTS OF ERROR

Whitis contends in his first point of error that the court erred in dismissing the case for want of prosecution because he received no notice of the court s intention to dismiss. See Tex. R. Civ. P. 165a. In his second point of error, Whitis alleges that the dismissal was in error because he did not receive notice of the order of dismissal as required by Rule 306a of the Rules of Civil Procedure.

A petition for a writ of error must include the following elements: (1) it must be brought within six months of the date of judgment; (2) by a party to the suit; (3) who did not participate in the trial; and (4) the error complained of must be apparent from the face of the record. Brown v. McLennan County Children's Protective Servs., 627 S.W.2d 390, 392 (Tex. 1982); Tex. Civ. Prac. & Rem. Code Ann. 51.013 (Vernon 1997); Tex. R. App. P. 45. The fourth element is at issue in this appeal.

The record affirmatively reflects that the required notices were sent to counsel for Mid-Texas. The record does not reflect corresponding notices addressed to counsel for Whitis. Whitis argues that the absence of notices from the record addressed to him establishes error on the face of the record.

Although Rules 165a and 306a of the Texas Rules of Civil Procedure require the district clerk to mail notice of intent to dismiss and notice of the order of dismissal, the rules do not impose a duty on the clerk to note the mailing of the notices on the docket sheet. General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991). Therefore, in cases dismissed for want of prosecution the record is usually silent as to whether or not notice was sent to a party. Id. The court s docket sheet notes Mailed dismissal this date (August 22, 1996) but does not indicate to whom the notices were mailed. This notation does not demonstrate that notice to Whitis was omitted.

The record contains no affirmative proof that Whitis did not receive notice of the intent to dismiss or the order of dismissal. Such absence from the record of affirmative proof does not establish error apparent from the face of the record. Id. at 944.

Therefore, we overrule Whitis points of error and affirm the trial court s order dismissing the case.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed August 29, 1997

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