Alexander v. Lynda's Boutique

• Decision Date: 14 May 2004
• Docket Number: No. 01-1248.,01-1248.
• Parties: George ALEXANDER d/b/a Zentner's Daughter Steakhouse, Petitioner, v. LYNDA'S BOUTIQUE, Respondent.
• Court: Texas Supreme Court

134 S.W.3d 845

George ALEXANDER d/b/a Zentner's Daughter Steakhouse, Petitioner, v. LYNDA'S BOUTIQUE, Respondent.

No. 01-1248.

Supreme Court of Texas.

Argued November 5, 2003.

Decided May 14, 2004.

Rehearing Denied June 18, 2004.

Michael P. Young, Leonard Woods, Davis & Wilkerson, P.C., Austin, Larry W. Bale, Hay Wittenburg Davis Caldwell & Bale, San Angelo, for petitioner.

Russell J. Bowman, for respondent.

Justice OWEN delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice HECHT, Justice O'NEILL, Justice WAINWRIGHT and Justice BRISTER joined.

There are two issues in this restricted appeal. The first is whether Texas Rule of Civil Procedure 165a(1)¹ requires that a separate hearing to adjudicate dismissal be held before a trial court may dismiss a case for want of prosecution for failure to appear at a pre-trial hearing when notice of that pre-trial hearing stated that failure to appear may result in dismissal. The second issue is whether the notice of a pretrial conference in this case adequately reflected the trial court's intent to dismiss for failure to appear. We hold that Rule 165a(1) does not require a separate hearing and that the notice in this case adequately apprised the parties of the trial court's intent to dismiss for failure to attend a pre-trial conference. Because the trial court did not err in dismissing this case, we accordingly reverse the court of appeals' judgment² and render judgment dismissing the plaintiff's case.

I

Lynda's Boutique and George Alexander d/b/a Zentner's Daughter Steakhouse (Alexander) are businesses located adjacent to one another in San Angelo, Texas. On May 6, 1999, Lynda's Boutique sued Alexander for negligence and gross negligence after a fire spread from Alexander's building to Lynda's Boutique.

In an order signed January 18, 2000, the trial court directed the parties to appear at a Rule 166³ pre-trial scheduling conference on March 6, 2000. The court's order stated:

ATTENDANCE IS MANDATORY.

The Court may excuse counsel under the following circumstances ONLY:

1. Submission by counsel of a proposed Agreed Scheduling Order. . . Counsel is not excused from attendance unless notified that the Court has approved the Agreed Scheduling Order.

2. For other compelling and urgent reason deemed appropriate by the Court.

Failure to appear without excuse will result in dismissal of the case for want of prosecution or entering sanctions or other orders as the Court deems appropriate.

Lynda's Boutique did not appear at the scheduling conference. The trial court dismissed the case for want of prosecution four days after the hearing in an order dated March 10, 2000. There is no indication in the record that the court gave further notice or held an additional hearing before dismissing the case.

Lynda's Boutique did not file a motion to reinstate under Rule 165a(3).⁴ On July 12, 2000, it filed notice of a restricted appeal challenging the trial court's dismissal order.⁵ On appeal, Lynda's Boutique asserted that it did not discover the case had been dismissed until July 5, 2000, after the deadline to file a motion to reinstate had passed.⁶ Lynda's Boutique contended that there were errors apparent from the face of the record, which it said were: 1) the trial court's record does not reflect that notice of the March 6, 2000 scheduling conference was sent; 2) the trial court failed to hold a dismissal hearing and 3) the trial court's record does not reflect that the order dismissing the case was sent to counsel of record's address.

The court of appeals ordered the trial court to reinstate the case, holding that the order setting the scheduling conference did not sufficiently apprise the parties of the trial court's intent to dismiss the case for want of prosecution because the order said that dismissal for want of prosecution was only "one of the possible sanctions listed in the order" for failure to attend.⁷ The court of appeals further held that Rule 165a(1) requires a trial court to give notice of and hold a separate dismissal hearing "where a party may be provided an opportunity to explain his failure to appear" before the court can dismiss a case for failure of a party to attend a scheduled hearing.⁸ Because the notice of the scheduling conference met the requirements of Rule 165a(1), and because the trial court did not err in dismissing the case, we reverse the court of appeal's judgment.

II

To prevail on its restricted appeal, Lynda's Boutique must establish that: (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record.⁹ Only the fourth element is at issue.

Counsel for Lynda's Boutique relies in part on an affidavit that was executed after the case had reached this Court.¹⁰ However, we may not consider it. The affidavit constitutes extrinsic evidence that cannot be considered in a restricted appeal. As we explained in General Electric Co. v. Falcon Ridge Apartments, Joint Venture,¹¹ if extrinsic evidence is necessary, it should be presented in a motion for new trial or a bill of review:

The 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. . . . Our system is founded upon a belief that trial courts should first be given the opportunity to consider and weigh factual evidence. Permitting challenge to a judgment based on affidavits first filed in the appellate court undermines this judicial structure. The appropriate remedy when extrinsic evidence is necessary to the challenge of a judgment is by motion for new trial, Tex.R.Civ.P. 320, or by bill of review filed in the trial court.¹²

Our decision in General Electric is dispositive of another issue in this appeal, which is whether the failure of the record to affirmatively show that notice of the pre-trial hearing was sent to counsel or that notice of the order dismissing the case was sent to counsel at a particular address is error on the face of the record. It is not.

In General Electric, the plaintiff whose case had been dismissed for want of prosecution filed an appeal by writ of error pursuant to former Texas Rule of Appellate Procedure 45. (The writ of error procedure is now the restricted appeal procedure in Texas Rules of Appellate Procedure 25.1, 26.1(c), and 30.) The record in General Electric was devoid of any indication that notice of a dismissal hearing had been issued or sent, and the plaintiff alleged that it had not received any notice that the trial court intended to dismiss for want of prosecution. The plaintiff tendered affidavits of its counsel and the district clerk averring that notice was neither given nor received. After explaining why we could not consider the affidavits, we held that when the record is silent as to whether notice was provided, there is no error apparent on the face of the record: "The absence from the record of affirmative proof that notice of intent to dismiss or of the order of dismissal was provided does not establish error."¹³ The absence of proof from the face of the record either way was just that—an absence of proof of error. We explained that this was not "an impermissible presumption in favor of the judgment, which is prohibited in a writ of error proceeding."¹⁴ That is because the clerk has an affirmative duty under Rule 165a to give notice, but no duty to affirmatively show in the record that such notice was given:

Rule 165a, Texas Rules of Civil Procedure, which governs dismissals for want of prosecution, directs the district clerk to mail to counsel of record and to each party not represented by counsel a notice containing the date and place of the hearing at which the court intends to dismiss. A similar notice of the signing of the order of dismissal is also required. Tex.R. Civ. P. 165a, 306a. The rules do not, however, impose upon the clerk the duty to note on the docket sheet the fact of mailing such notices. Consequently, in cases dismissed for want of prosecution, the record is ordinarily silent as to whether or not the required notices were given.

There is thus nothing in the transcript before us that affirmatively indicates that notice was given, nor any notation to establish that notice was omitted. . . . The absence from the record of affirmative proof that notice of intent to dismiss or of the order of dismissal was provided does not establish error.¹⁵

Accordingly, the 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.

Lynda's Boutique argues that General Electric is distinguishable because the record in this case is not entirely silent, at least as to whether notice of the order actually dismissing the case was sent to Lynda's Boutique. The order dismissing the case says at the bottom:

                  Xc: Webb, Frank J
                   Bale, Larry W
                

Lynda's Boutique argues that the absence of an address for Frank J. Webb, its attorney of record at the time the order was signed, is error on the face of the record. Lynda's Boutique cites General Motors Acceptance Corp. v. City of Houston.¹⁶ In that case, the notice of intent to dismiss, and subsequently the dismissal order sent by the trial court, omitted part of the law firm name of appellant's counsel and the suite number of the building in which that firm was located. This incomplete firm name and address had been...