George Alexander D/B/A Zentner's Daughter Steakhouse v. Lynda's Boutique

IN THE SUPREME COURT OF

TEXAS

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No. 01-1248

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George

Alexander d/b/a Zentner = s Daughter Steakhouse,

Petitioner

v .

Lynda = s Boutique,

Respondent

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On Petition for Review from

the

Court of Appeals for the

Third District of Texas

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Argued November 5, 2003

Justice Owen delivered the opinion of

the Court, in which Chief Justice

Phillips , Justice Hecht ,

Justice O = Neill , Justice Wainwright and Justice Brister joined.

Justice Schneider filed a dissenting

opinion, in which Justice Jefferson

and Justice Smith

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 pre-trial 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 =

judgment [2]

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 166 [3]

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 A 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 A 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 appeals =

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: A 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 B

an absence of proof of error. We

explained that this was not A 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 supplied by appellant = s

counsel in a motion it had previously filed, although the complete address was

included in appellant = s

original petition instituting suit and the service of citation . The court of appeals held that the

incomplete address on the notice of intent to dismiss and on the order

dismissing the case constituted errors apparent on the face of the record. [17] We need not decide whether General

Motors Acceptance Corp. was correctly decided. It is factually distinguishable. In this case, the record does not

reflect the addresses to which either the notice of the pre-trial hearing or the

notice of the dismissal order were mailed. There is no indication from the face of

the record that either notice was sent to an incorrect

address. The face of the record

therefore gives no indication that the trial court failed to provide Lynda = s

Boutique notice of either the pre-trial hearing or the order dismissing the case

for failure to attend that hearing.

III

We

now consider whether the order setting the pre-trial hearing comports with Rule

165a( 1) and whether Rule 165a(1) permitted the trial

court to dismiss this case for failure to appear without setting an additional

hearing.

A

court may dismiss a case for want of prosecution under either Rule 165a or under

its common law inherent authority. [18] This case concerns only the trial

court = s

authority to dismiss under Rule 165a( 1). Rule 165a( 1)

states in pertinent part:

1.

Failure to Appear.

A case may be dismissed for want of prosecution

on failure of any party seeking affirmative relief to appear for any hearing or

trial of which the party had notice.

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, by posting same in the United States Postal

Service. At the dismissal hearing,

the court shall dismiss for want of prosecution unless there is good cause for

the case to be maintained on the docket. [19]

The

rule clearly states that a trial court may dismiss a case A on

failure of any party seeking affirmative relief to appear for any hearing or

trial. @ It also requires that notice of the

court = s

intention to dismiss and the date and place of A the

dismissal hearing @

be sent to each attorney of record.

Lynda = s

Boutique argues that the trial court = s

order setting the pre-trial conference does not give notice that the purpose of

that hearing was to determine whether the case should be

dismissed for want of prosecution.

The court of appeals agreed, concluding that because the order setting

the scheduling conference stated that dismissal was only one of a number of

possible consequences for failure to appear, it was A unclear

whether dismissal [would] automatically result without the benefit of a

hearing. @ [20] The court of appeals further concluded

that the scheduling order did not give A notice

of the date and location of a dismissal hearing, @ [21]

saying:

It is clear from this notation on the docket sheet that the sole

purpose of the hearing set for March 6 was to conduct a scheduling conference,

that the case was dismissed for want of prosecution as a direct result of

counsel = s

failure to appear at the scheduling conference, and that the trial court did not

first conduct a noticed dismissal hearing. We thus conclude that the trial court

did not provide sufficient notice of its intent to dismiss, did not afford

Lynda = s

Boutique an opportunity to be heard, and that this

error is apparent on the face of the record. [22]

We

disagree with this analysis. The

order setting the pre-trial conference plainly warned the litigants that they

could expect the trial court to dismiss the case for want of prosecution if

Lynda = s

Boutique failed to attend: A 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. @ The fact that the trial court said that

it might order sanctions in addition or as an alternative to dismissal did not

diminish the warning that dismissal was at issue. The fact that the order in this case

explicitly states that the court could order lesser or alternative sanctions

does nothing more than state the court = s

inherent authority.

Both

Lynda = s

Boutique and the court of appeals have cited Brown v. Brookshires Grocery Store [23]

for the proposition that a failure to conduct a dismissal hearing is error that

is apparent from the face of the record.

But the notice in Brown is different from

the notice in this case. The notice

in Brown said that the case would be dismissed

for want of prosecution unless a written request for a setting or written

showing for a continuance was made within fifteen days, but no definite date or

time was set for a hearing on any matter.

The plaintiff responded to the trial court = s

letter, referring to a request for a jury trial filed several months earlier

along with payment of the jury fee.

Despite this response, the trial court signed an order dismissing the

case for want of prosecution, citing Rule 165a. The court of appeals concluded the

notice was insufficient under Rule 165a because it did not include a date and

place for a dismissal hearing. [24] The court also held that the trial

court = s

failure to provide an opportunity for an oral hearing before dismissal was

reversible error. [25] Here, the parties were told to appear on

a specific day at a specific time and that if they did not do so, the case could be dismissed for want of prosecution. They were told when and where to appear

and what the adverse consequences could be if they did not

appear.

The

notice and Lynda = s

Boutique = s

conduct in this case also differ from the notice and the plaintiff = s

conduct at issue in Villareal v. San Antonio Truck & Equipment . [26] In Villareal , the notice informed

the plaintiff, A YOU

ARE REQUESTED TO BE PRESENT AND MAKE YOUR ANNOUNCEMENT. IF NO ANNOUNCEMENT IS

MADE , THIS CAUSE WILL BE DISMISSED FOR WANT OF PROSECUTION. @ [27] Counsel for the plaintiff appeared at

the hearing, announced that he was ready, and filed a motion to set the case on

the jury docket. The trial court

nevertheless dismissed the case. We

held this was error because the plaintiff did precisely what the notice said was

necessary to avoid dismissal B

appear and announce ready for trial. [28]

Unlike

the plaintiff in Villareal , Lynda = s

Boutique did not comply with the express requirements of the trial court = s

order setting the pre-trial conference, which gave Lynda = s

Boutique notice of at least two things.

First, there was to be a scheduling hearing, and second, dismissal could

result if Lynda = s

Boutique did not appear at that hearing.

Rule 165a(1) does not preclude a trial court from scheduling a pre-trial

hearing, giving notice that failure to attend that hearing may result in

dismissal for want of prosecution, and also deciding at that hearing whether the

case should be dismissed for want of prosecution if a party seeking relief fails

to attend. All Rule 165a( 1) requires is notice of intent to dismiss and of a

date, time, and place for the hearing.

Because

the notice in this case clearly set a date and time for a hearing and clearly

stated that the parties could expect the court to dismiss the case for want of

prosecution for nonattendance, the order satisfies any requirement that there be

notice and an opportunity to be heard before a case is dismissed for want of

prosecution. [29] The right to seek reinstatement as

provided in Rule 165a(3), a restricted appeal in the appropriate case, and

procedures for a bill of review will generally satisfy any due process concerns

that might arise in this context. [30]

* * * * *

For

the foregoing reasons, we hold that the trial court did not err in dismissing

this case for want of prosecution.

We therefore reverse the court of appeals =

judgment and render judgment dismissing Lynda = s

Boutique = s

claims against Alexander.

____________________________________

Priscilla

R. Owen

Justice

OPINION

DELIVERED: May 14,

2004