Opinion
No. 05-09-01204-CV
Opinion Filed July 6, 2010.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-00747-2008.
Before Justices O'NEILL, FRANCIS, and MURPHY.
MEMORANDUM OPINION
In this restricted appeal, Wendell and Yolinda Smith challenge the order dismissing their personal injury suit against Allen Ray Shipp, McGraw Cargo Express, and McGraw Cargo Express, L.L.C. The Smiths contend the face of the record demonstrates the trial court's error in sending the trial notice and dismissal order to an incorrect address; as a result, they failed to appear for trial and to perfect a timely appeal. No responsive brief was filed. Based on the face of the record, we reverse the trial court's judgment and remand this case for further proceedings.
Standard for Restricted Appeal
A restricted appeal is a direct attack on a trial court's judgment and allows parties who can meet strict requirements to challenge an otherwise non-appealable judgment. See Tex. R. App. P. 26.1, 30; Goodman v. Wachovia Bank, N.A., 260 S.W.3d 699, 701 (Tex. App.-Dallas 2008, no pet.). The Smiths, as the parties pursuing this remedy, must establish that (1) they filed the notice of restricted appeal within six months after the judgment was signed; (2) they were parties to the underlying suit; (3) they did not participate in the hearing that resulted in the disputed judgment, and they did not timely file a post-judgment motion or request for findings of fact and conclusions of law or notice of appeal under Texas Rule of Appellate Procedure 26.1(a); and (4) error is apparent on the face of the record. See Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The face of the record consists of all papers on file in the appeal, including the reporter's record. Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam).
Discussion
The record in this case shows the Smiths have satisfied the first three requirements of a restricted appeal. They filed their notice of restricted appeal on October 8, 2009, within six months of the order of dismissal signed June 1, 2009. As named plaintiffs, they were parties to the underlying lawsuit. The Smiths meet the failure-to-participate prong because their failure to appear at trial resulted in the June 1 order of dismissal. They also did not timely file a post-judgment motion or notice of appeal under rule 26.1(a). Although they filed a verified motion to reinstate on September 25, 2009, the day after learning of the dismissal, over ninety days had expired since the order of dismissal was signed and the court had no plenary jurisdiction to reinstate the case. See Tex. R. Civ. P. 306a(1), (4). The Smiths also have established the fourth requirement for a restricted appeal because error is apparent on the face of the record. The docket sheet shows the case was set for a June 1, 2009 trial date on October 14, 2008. On that date, the trial court sent a "notice of trial setting" to counsel for the Smiths. The only known address for counsel, as listed in the original petition and a rule 11 agreement, was 8111LBJ Freeway, Suite 625, Dallas, Texas 75251-1313. The court's docket sheet indicates the same street address and zip code but a different suite number-suite 865. This address with the incorrect suite number was used for the notice of trial setting, and the record shows a returned envelope containing the trial notice marked:
See Tex. R. Civ. P. 11. The parties had filed a letter agreement regarding discovery pursuant to rule 11.
The Smiths' motion to reinstate is included in the clerk's record. Attached as an exhibit to the motion is a June 9, 2008 letter from counsel informing the clerk of a new mailing address. The letter is not file-stamped and is not contained elsewhere in the record. Because the motion was untimely, we do not consider it or the attachment. See Malone v. Hampton, 182 S.W.3d 465, 470 (Tex. App.-Dallas 2006, no pet.) ("Any document, other than a motion to enforce or clarify, filed after the expiration of the trial court's plenary jurisdiction, would be a nullity as a suit ends when the trial court's plenary power over the proceedings ends.").
RETURN TO SENDER NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD
Similarly, the record shows that a copy of the June 1 order of dismissal directed to the Smiths' counsel was returned to the court in an unaddressed envelope marked: "RETURN TO SENDER [-] ATTEMPTED — NOT KNOWN [-] UNABLE TO FORWARD."
The failed attempts to notify the Smiths of the trial setting and the dismissal constitute error apparent on the face of the record. First, the record shows notice of the trial setting was sent to an incorrect address and was never received by the Smiths. See Burress v. Richardson, 97 S.W.3d 806, 807 (Tex. App.-Dallas 2003, no pet.) (error apparent where record showed notice sent to wrong address and returned). Notice of a trial setting is mandatory and involves the constitutionally-protected right of due process. See Burress, 97 S.W.3d at 807; see also Miller v. Prosperity Bank, N.A., 239 S.W.3d 440, 442 (Tex. App.-Dallas 2007, no pet.) (due process requires "notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections") (quoting Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988)). Notice of a trial setting may be served by mail at the party's last known address, by telephonic document transfer, or by such other manner chosen by the court in its discretion. See Tex. R. Civ. P. 21a.; see also Ashworth v. Brzoska, 274 S.W.3d 324, 330 (Tex. App.-Houston [14th Dist.] 2008, no pet.). If a party seeking affirmative relief fails to appear for any hearing or trial of which he had notice, the trial court may dismiss the case for want of prosecution. Tex. R. Civ. P. 165a(1); Alexander, 134 S.W.3d at 850. Here, the record shows the Smiths had no notice of the trial setting and, as a result, they failed to appear.
Second, the record shows the order of dismissal was never sent to the Smiths' counsel, because it was returned in an unaddressed envelope. When the court signs an order of dismissal, the clerk is required to give immediate notice to the parties or their attorneys by first-class mail advising them of the judgment. Tex. R. Civ. Proc. 306a(3). See also Dickerson v. Sonat Exploration Co., 975 S.W.2d 339, 341 (Tex. App.-Tyler 1998, pet. denied). Failure to give this mandatory notice is also a violation of the Smiths' due process rights and constitutes error on the face of the record. Id. at 341-42.
Conclusion
The Smiths have established all requirements for this restricted appeal as described above, and we sustain their issue. To the extent the Smiths raise any additional arguments, we do not reach those in light of our conclusion. See Tex. R. App. P. 47.1. We reverse the trial court's judgment of June 1, 2009 and remand this case for further proceedings.