Forrester v. Ginn
| Decision Date | 10 January 2008 |
| Docket Number | No. 14-06-00549-CV.,14-06-00549-CV. |
| Citation | 282 S.W.3d 513 |
| Parties | Jeff FORRESTER and Kim Forrester, Appellants, v. Emmanuel GINN, A & R Transport, Inc., Keith Jackson, and Steve Brantley, Appellees. |
| Court | Texas Court of Appeals |
Michael C. Engelhart, Houston, for appellants.
Edward E. Rundell, Lawrence Shepard Searcy, Jr., Alexandria, LA, for appellees.
Panel consists of Chief Justice HEDGES, Justice GUZMAN, and Senior Justice HUDSON.*
MAJORITY OPINION ON REHEARING
Jeff and Kim Forrester ("the Forresters") originally brought a restricted appeal following the trial court's dismissal of their lawsuit for want of prosecution. We issued our memorandum opinion in the restricted appeal on July 26, 2007, in which we affirmed the trial court's dismissal. The Forresters filed a motion for rehearing in this court on August 28, 2007, and amended their motion on October 4, 2007. We grant the Forresters' amended motion for rehearing, vacate and withdraw our prior memorandum opinion and judgment of July 26, 2007, and issue this memorandum opinion and judgment in their stead.
On rehearing, the Forresters present one argument: that the record affirmatively reflects the trial court failed to notify them of its intent to dismiss their case for want of prosecution. We reverse and remand.
In January 2004, the Forresters filed suit against Emmanuel Ginn, A & R Transport, Inc., Keith Jackson, and Steve Brantley (collectively referred to hereinafter as "appellees") for damages resulting from a traffic accident. The trial court sent notice dated May 18, 2005 to all parties 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. 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 typed order to retain and holographically inserted the words "for 60 days" at the end of the paragraph ordering retention of the case. Thereafter, a motion by the Forresters to substitute counsel was granted; however, the record does not reflect any further activity until December 2, 2005, at which time the trial court dismissed the Forresters' case for want of prosecution on its own motion.
The Forresters filed their notice of restricted appeal in this court on June 2, 2006, and argued that the trial court erred in failing to (1) give them notice of its intent to dismiss their case after it signed its motion to retain, and (2) specify what subsequent actions needed to be taken to retain the case prior to December 2, 2005. In the opinion first issued in this case, we held that the Forresters failed to show error on the face of the record because the record was silent as to whether the trial court notified the Forresters of its intent to dismiss their case. In their motion for rehearing, the Forresters argue that all elements of a restricted appeal have been met, including error on the face of the record.
To obtain reversal of an underlying judgment by restricted appeal, the Forresters must establish that (1) they filed notice of the restricted appeal within six months after the judgment was signed; (2) they were a party to the underlying lawsuit; (3) they 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 or conclusions of law; and (4) error is apparent on the face of the record. See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.2004); Tex.R.App. P. 26.1(c), 30. It is undisputed that the Forresters complied with the first two elements of a restricted appeal. Accordingly, we review only whether the Forresters participated in the hearing that resulted in the judgment complained of and whether error is apparent from the face of the record.
Appellees argue that by filing a motion to retain, the Forresters participated in the hearing that resulted in the judgment complained of for purposes of this restricted appeal. To support of this contention, appellees cite to Bowles v. Cook, 894 S.W.2d 65, 68 (Tex.App.-Houston [14th Dist.] 1995, no writ) ( that the filing of a response to a summary judgment motion was sufficient participation in the summary judgment proceeding to bar a writ of error), and a line of cases applying Bowles that hold the filing of a motion to retain to be sufficient participation to bar a restricted appeal. See Orr v. Barrett, Burke, Wilson, Castle, Daffin & Frappier, L.L.P., No. 09-03-073 CV, 2004 WL 637898, at *3 (Tex.App.-Beaumont April 1, 2004, no pet.) (mem.op.) ( that appellant's motion to retain in response to trial court's notice of intention to dismiss was sufficient participation in the decision-making event—the dismissal for want of prosecution); Bousquet v. Bokeloh, No. 01-01-00112-CV, 2001 WL 780538, at *3 (Tex.App.-Houston [1st Dist.] July 12, 2001, no pet.) (not designated for publication) (same). In Orr and Bousquet, the trial court denied the appellants' request to retain their cases, resulting in the dismissal. Orr, 2004 WL 637898, at *3 (); Bousquet, 2001 WL 780538, at *3 (); see also Bowles, 894 S.W.2d at 68 ().1 However, unlike Bowles, Orr, and Bousquet, the Forresters' requested relief, to retain the case on its docket, was granted. Here, the ultimate decision-making event in this case, the dismissal order, did not occur until more than five months after the Forresters' motion was granted. Because of this causal gap, we hold the Bowles line of cases to be inapplicable to the facts at hand.
More importantly, the essential inquiry turns on whether the appellant took part in the "decision-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). The judgment complained of and order adjudicating the Forresters' rights is the December 2, 2005 dismissal, not the order retaining the case. There is no evidence in the record that the Forresters participated in a hearing or trial regarding the court's December 2, 2005 dismissal order. We therefore hold that the Forresters did not participate in the decision-making event, the December 2, 2005 dismissal, so as to preclude their restricted appeal.
As for the last element in a restricted appeal, the Forresters argue that the face of the record shows that the trial court (1) did not give notice of its intent to dismiss prior to the December 2, 2005 dismissal, (2) did not hold a dismissal hearing in which good cause could have been shown for the case to be maintained on the docket, and (3) did not give notice to appellants of the dismissal order. To support this argument, appellants rely on (1) a letter dated August 27, 2007, to the clerk's office requesting various notices, docket entry sheets, and court orders, and (2) the district clerk's supplemental record.
In the letter dated August 27, 2007, the Forresters requested any notices issued by the court regarding its intent to dismiss appellants' case, notices setting any hearings on the court's intent to dismiss the case, notices of the dismissal order, and docket sheets on the dismissal hearing. In the letter, the Forresters also requested that the clerk's office indicate whether any of the requested documents were not part of the court's file. The clerk's supplemental record listed three documents issued by the court: the June 2005 order retaining the case on the court's docket, the order substituting counsel, and the December 2, 2005 dismissal order. More importantly, however, the clerk's supplemental record expressly indicates that the clerk's office was "[u]nable to locate other items requested."2 We conclude that the face of the record reveals that the trial court did not notify appellants of its intent to dismiss their case after retaining it on its docket.3
A trial court's authority to dismiss for want of prosecution stems from the express authority of rule 165a of the Texas Rules of Civil Procedure as well as from the court's inherent power to manage its own docket. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); 3V, Inc. v. JTS Enterprises, Inc., 40 S.W.3d 533, 541 (Tex.App.-Houston [14th Dist.] 2000, no pet.). A trial court may dismiss under rule 165a on the "failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice," or when a case is "not disposed of within the time standards promulgated by the Supreme Court." TEX. R. CIV. P. 165a(1), Tex.R. Civ. P. 165a(2). In addition, under the common law, a trial court has inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence. Villarreal, 994 S.W.2d at 630. Still, a party must be provided with notice and an opportunity to be heard before a court may dismiss a case for want of prosecution under either rule 165a or its inherent authority. See TEX. R. CIV. P. 165a(1) (); Gen. Elec. Co. v. Falcon Ridge Apts., J.V., 811 S.W.2d 942, 943 (Tex.1991). The failure to provide adequate notice of the trial court's intent to dismiss for want of prosecution requires reversal. Villa...
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