Anderson, Walter James And Rolland D. Fields v. Lee R. McCray and Liberty Cab Company, Inc.--Appeal from 269th District Court of Harris County

Opinion issued September 19, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00670-CV

____________

WALTER JAMES ANDERSON AND ROLLAND D. FIELDS, Appellants

V.

LEE R. McCRAY AND LIBERTY CAB COMPANY, INC., Appellees

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 98-32871

O P I N I O N

Appellants, Walter James Anderson and Rolland D. Fields, bring this restricted appeal from the trial court's order dismissing their claims against Liberty Cab Company, Inc. (Liberty) and Lee McCray for want of prosecution. In three issues, appellants contend it is apparent from the face of the record that the trial court erred in (1) dismissing their claims for want of prosecution, (2) failing to set or conduct a dismissal hearing, and (3) dismissing their claims for failure to comply with the notice of dismissal.

We reverse and remand.

Factual Background

Appellants filed a personal injury claim in July 1998, alleging they sustained injuries in a car accident as passengers in a taxicab driven by McCray and owned by Liberty. Appellants obtained service on Liberty and Liberty appeared and answered the lawsuit in August 1998. Appellant also served McCray, who did not file an answer, and appellants obtained a default judgment against him in September 2000.

In December 2000, the trial court sent a notice to all interested parties which read, in part, as follows:

Court records indicate that this case is eligible for dismissal for want of prosecution because no answer/service has been filed.

The case will be dismissed for want of prosecution, on January 8, 2001, unless one of the following actions is taken:

1. service is obtained;

2. a default judgment is signed; or

3. a verified motion to retain is filed. All motions to retain shall be set on the oral docket, January 8, 2001, at 11:00 a.m.

Appellants did not appear on January 8, 2001, and the trial court subsequently signed an order dismissing appellants' lawsuit "for want of prosecution."Restricted Appeal

Appellants filed a notice of restricted appeal. See Tex. R. App. P. 30. Rule 30 sets out the prerequisites to bringing a restricted appeal:

A party who did not participate--either in person or through counsel--in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c).

Id. Rule 26.1(c) provides that, in a restricted appeal, the notice of appeal must be filed within six months after the judgment or order is signed. Tex. R. App. P. 26.1(c).

The trial court dismissed appellants' lawsuit on January 16, 2001. Appellants filed their notice of appeal on July 16, 2001, within the required six months. Appellants did not participate in the hearing that resulted in dismissal, file any postjudgment motions, request findings of fact or conclusions of law, or file a notice of appeal within the usual appellate deadlines. Thus, appellants have met the procedural requirements for presenting a restricted appeal.

In their third issue, appellants argue the trial court's error in dismissing their lawsuit for want of prosecution is apparent on the face of the record because they complied with at least one of the conditions to retain the case specified in the trial court's notice.

To prevail in a restricted appeal, a party must demonstrate error apparent on the face of the record. Barker v. CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 791 (Tex. App.--Houston [1st Dist.] 1999, no pet.). We review a trial court's decision to dismiss a case for want of prosecution under an abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997).

The record indicates that, at the time the trial court signed its order of dismissal, appellants had obtained service on both defendants and had obtained a default judgment against one of them, satisfying two of the three requirements to retain the case as specified in the trial court's notice of its intent to dismiss. The trial court's error in dismissing this case is, therefore, apparent from the face of the record. Accordingly, we hold the trial court abused its discretion in dismissing appellants' claims for want of prosecution.

We sustain appellants' third issue.

Because our determination regarding appellants' third issue is dispositive of this case, we do not address their two remaining issues.

Conclusion

We reverse the trial court's judgment dismissing this case and remand the case for further proceedings.

Terry Jennings

Justice

Panel consists of Justices Nuchia, Jennings, and Radack

Do not publish. Tex. R. App. P. 47.