Opinion
No. 05-10-00558-CV
Opinion Filed April 19, 2011.
On Appeal from the 193rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 09-08225.
Before Justices MORRIS, FRANCIS, and MURPHY.
MEMORANDUM OPINION
Laporsha Williams challenges by restricted appeal both the trial court's November 6, 2009 dismissal order and its failure to reinstate the case. Error is apparent on the face of the record, and we reverse the dismissal order and remand this cause for further proceedings. Because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4.
Background
Williams filed her first amended petition on June 29, 2009 against Dany Rivas Morales and Maritz Morales as a result of an automobile accident that occurred two years earlier. The trial court issued a notice on July 6, 2009, setting an initial dismissal hearing for November 6, 2009. The notice stated in relevant part that if at least one defendant had been served and citation had been returned before the dismissal hearing, the hearing would be reset "for the Friday four weeks following [November 6, 2009]." Thereafter, Williams filed her second amended petition, which was served on appellee Dany Rivas Morales on November 3, 2009. The return of service was filed November 5, 2009.
The trial court signed a dismissal order the next day finding, pursuant to its prior notice of initial dismissal hearing that "[Williams] failed to appear at the hearing, and failed to obtain service on the Defendant and/or obtain a proper default against the Defendant by said date." Morales filed an original answer on November 16, ten days after the date of the trial court's November 6 dismissal order.
Williams filed a motion to reinstate on January 29, 2010, attaching an affidavit verifying that the paralegal responsible for the case had not become aware of the dismissal order until December 29, 2010. There is no reporter's record and no indication on the docket sheet whether the trial court conducted a hearing on the motion.
Williams filed notice of this restricted appeal with the trial court on May 5, 2010. She complains in her first issue about the trial court's dismissal and, in her second issue, about the court's failure to reinstate the case.
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. Williams, as the party pursuing this remedy, must establish that (1) she filed the notice of restricted appeal within six months after the judgment was signed; (2) she was a party to the underlying suit; (3) she did not participate in the hearing that resulted in the disputed judgment, and she 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).
Discussion
The record in this case consists solely of the clerk's record and shows the trial court's notice of initial dismissal hearing that provided the hearing would be reset for four weeks if at least one defendant had been served and citation had been returned before November 6, 2009. The trial court's order of dismissal recites the basis for its dismissal as Williams's failure to appear at the hearing and failure to obtain service on the defendant.
Texas Rule of Civil Procedure 165a addresses dismissal for want of prosecution based on the failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice. Tex. R. Civ. P. 165a(1). Notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record, and to each party not represented by an attorney and whose address is shown on the docket or in the papers on file. Id. A trial court also has the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his case with due diligence. Villarreal v. San Antonio Truck Equip., 994 S.W.2d 628, 630 (Tex. 1999). 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 power. Id. The trial court's decision is subject to review only upon clear abuse of discretion. See Veterans' Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976) (per curiam).
The trial court's notice of initial dismissal hearing advised Williams that the hearing would be reset if service had been effected and the citation had been returned prior to the hearing. The face of the record shows the return of citation for Morales had been executed and was on file at the noticed time of the initial dismissal hearing. Despite Williams's compliance with the requirements in the notice of initial dismissal hearing, the trial court dismissed the case.
Accordingly, error appears on the face of the record, and Williams has satisfied the fourth prong of the requirements for a restricted appeal. See Villarreal, 994 S.W.2d at 632 (holding trial court abused discretion by invoking inherent authority to dismiss where parties complied with all requirements of notice of dismissal). Because appellee concedes that only the fourth element is at issue in this appeal, we sustain Williams's first issue.
Conclusion
The trial court abused its discretion when it dismissed the underlying case without proper notice. To the extent Williams raises 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 order of November 6, 2009 and remand this case for further proceedings.