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

> Texas Supreme Court · May 14, 2004 · 47 Tex. Sup. Ct. J. 564

URL: https://www.frixlaw.com/law-library/cases/894525

## Case

- **Full name:** George ALEXANDER D/B/A Zentner’s Daughter Steakhouse, Petitioner, v. LYNDA’S BOUTIQUE, Respondent
- **Court:** Texas Supreme Court
- **Decided:** May 14, 2004
- **Citations:** 47 Tex. Sup. Ct. J. 564; 134 S.W.3d 845; 2004 Tex. LEXIS 444; 2004 WL 1097903
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Owen, Phillips, Hecht, O'Neill, Wainwright, Brister, Schneider, Jefferson, Smith
- **Cited by:** 637 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/894525

## How later opinions describe it (automated extraction)

- explaining that silence in the record does not establish error on the face of the record and finding no reversible error where record failed to show whether notice of dismissal for want of prosecution had been sent
- holding that failure of record to affirmatively show notice of pre-trial hearing was sent to counsel or notice of order dismissing case was sent to counsel is not error on face of record
- noting that A the face of the record @ for deciding a restricted appeal includes only the evidence that was before the trial court at the time it rendered its judgment
- holding "an affidavit that was executed after the case had reached this Court ... constitutes extrinsic evidence that cannot be considered in a restricted appeal."
- holding that separate hearing to adjudicate dismissal was not required when plaintiff did not comply with express requirements in dismissal notice

## Opinion text

IN THE SUPREME COURT OF
TEXAS
═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═
No. 01-1248
═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═
George
Alexander d/b/a Zentner = s Daughter Steakhouse,
Petitioner
v .
Lynda = s Boutique,
Respondent
═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═
On Petition for Review from
the
Court of Appeals for the
Third District of Texas
═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═ ═
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/894525. Public record. Not legal advice.