BAYLOR UNIVERSITY MEDICAL CENTER, Appellant v. DANNIE BRADFORD AND BETTY BRADFORD, Appellee

Vacated and Remanded and Opinion filed September 11, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-89-00761-CV
............................
BAYLOR UNIVERSITY MEDICAL CENTER, Appellant
V.
DANNIE BRADFORD AND BETTY BRADFORD, Appellee
.................................................................
On Appeal from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC87-16865-A
.................................................................
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES BAKER AND WHITTINGTON
OPINION BY JUSTICE BAKER
        Baylor University Medical Center appeals by petition for writ of error from the trial court's order dismissing its suit for want of prosecution. We agree with Baylor that the trial court's judgment must be reversed because Baylor received no notice of the court's intent to dismiss. We reverse the judgment and remand for further proceedings.
        Baylor sued Dannie and Betty Bradford to collect for medical services performed by Baylor for the Bradfords' son. Both Bradfords were served with citation. In December 1987, Baylor moved for default judgment, but it was not entered. In May 1988, Baylor requested that a duplicate citation issue on Betty Bradford because the court's records did not reflect service on her. This duplicate was filed with the trial court, but the court did not enter default judgment. In April 1989, Baylor inquired about the default judgment and learned from the clerk that the case had been dismissed for want of prosecution on October 27, 1988.
        The four elements necessary for a successful appeal by writ of error are: 1) the petition 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) error must be apparent from the face of the record. Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985); TEX. R. APP. P. 45.         Baylor has met the first three elements and asserts as error apparent from the face of the record that it received no notice of the trial court's intent to dismiss. Baylor contends that both Texas Rule of Civil Procedure 165a and due process require such notice. Rule 165a provides that the court must provide written notice of its intent to dismiss and the date and place of the dismissal hearing. TEX. R. CIV. P. 165a. Rule 21a states that any notice required under the rules should be sent to the last known address of the party, the party's authorized agent, or the attorney of record. TEX. R. CIV. P. 21a.
        Baylor's original petition was signed by Brian W. Hankla as attorney of record, with the address shown as 3131 Lincoln Plaza 500 N. Akard, Dallas, Texas 75201.         However, the court's notice of intent to dismiss was sent to Brian W. Hankla at 5657 Amesbury Drive #601, Dallas, Texas 75206. This address was shown on the court's docket sheet. Baylor alleges in its brief that its attorney never had an office on Amesbury and that it never received notice of the court's intent to dismiss the case because the notice was not sent to the attorney's last known address. These allegations are not challenged by the Bradfords and may be taken as true. TEX. R. APP. P. 74(f).
 
                 We hold that Baylor did not receive notice of the trial court's intent to dismiss the case for want of prosecution. We sustain Baylor's point of error, vacate the trial court's order of dismissal, and remand for further proceedings.
 
                                                                                                                                            JAME ES A. BAKER
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
890761.U05
 
 
 
File Date[09-11-89]
File Name[890761]