Affirmed and Opinion Filed September 5, 2023
In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00061-CV
LAUREN NOVAK AND JUSTIN BEISH, Appellants V. STATE FARM LLOYDS, Appellee
On Appeal from the 471st Judicial District Court Collin County, Texas Trial Court Cause No. 471-06291-2020
MEMORANDUM OPINION Before Justices Molberg, Pedersen, III, and Miskel Opinion by Justice Molberg Lauren Novak and Justin Beish bring this restricted appeal of the trial court’s
August 30, 2021, order dismissing their case for want of prosecution and January 6,
2022, denial of their motion to reinstate.1 We affirm.
1 Appellants’ original notice of appeal challenged the denial of their motion to reinstate, which is not independently appealable. See Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). The notice was untimely as to the original dismissal but was filed within six months of that date, so a restricted appeal was possible. At our direction, they filed an amended and rule-compliant notice of restricted appeal of the original dismissal order. See TEX. R. APP. P. 30 (restricted appeals). To sustain a restricted appeal, appellants must show that (1) the notice of
restricted appeal was filed within six months after the judgment was signed; (2) they
were parties 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 post-judgment
motions or requests for findings of fact and conclusions of law; and (4) error is
apparent on the face of the record. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex.
2014) (per curiam). The first three requirements are jurisdictional; the fourth is
merits-based, and therefore, is not jurisdictional. See Ex parte E.H., 602 S.W.3d
486, 497 (Tex. 2020).
Though appellants attempted to invoke the civil procedure rule 306a(4) and
(5) procedure to have the trial court determine the date they received notice of the
dismissal as October 11, 2021, such that their motion to reinstate was timely and
properly invoked the court’s jurisdiction, they did not request the trial court to issue
a ruling to that effect, and the trial court did not do so in any order. “Without a
finding of the date notice was actually received,” and a written order to that effect,
the motion to reinstate was untimely. See Nedd-Johnson v. Wells Fargo Bank, N.A.,
338 S.W.3d 612, 612 (Tex. App.—Dallas 2010, no pet.); TEX. R. APP. P. 4.2(c).
Thus, the face of the record of this restricted appeal indicates that the motion to
reinstate was untimely, and we disagree with appellants’ argument to the contrary,
which would deprive this Court of restricted appeal jurisdiction. See Pike-Grant,
447 S.W.3d at 886. And, because the motion to reinstate was untimely, the trial
–2– court could not grant it because the court had lost plenary power. See TEX. R. CIV.
P. 165a(3), 306a(4)–(5); see also In re Dansby, 583 S.W.3d 838, 840 (Tex. App.—
Dallas 2019, orig. proceeding). In any event, we have restricted appeal jurisdiction
because appellants timely filed a notice of appeal and meet the jurisdictional
requirements. See TEX. R. APP. P. 30.
We review a dismissal for want of prosecution for an abuse of discretion, see
MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997), and because this is a restricted
appeal, we are confined to the face of the record in our review. See Gen. Elec. Co.
v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991). This
means we review “the papers on file with the trial court when it rendered judgment.”
See id.
Appellants filed their original petition on December 1, 2020, and appellee
answered December 31, 2020. The next document in the clerk’s record is a notice
of hearing for August 27, 2021, at 10:00 a.m. in the 471st District Court for
“Dismissal for Want of Prosecution” that says “THIS HEARING IS BY
SUBMISSION ONLY. DO NOT APPEAR FOR THE ABOVE SETTING. Instead,
follow the below instructions.”2 Those instructions were that the case would be
dismissed for want of prosecution unless, at least 24 hours before the submission
setting, the parties submit:
2 The index in the clerk’s record indicates a date of January 10, 2021” for this document in the “FILED/SIGNED” column. –3– (a) A nonsuit or a dispositive order signed by all parties; or
(b) An agreed scheduling order, which must include a confirmed trial setting obtained from the Court Coordinator; or
(c) If the parties cannot agree on a trial setting, a joint report identifying the trial dates provided by the Court Coordinator and each party’s objections to, or conflicts with, the same.
This notice is sufficient.
Appellants devote no direct argument against the original dismissal order, and
have inadequately briefed this issue. See TEX. R. APP. P. 38.1(i). The issue would
fail in any event because the record contains the dismissal notice and, though the
record is silent as to whether notice was provided, the absence from the record of
affirmative proof that the notice of intent to dismiss was provided establishes no
error apparent on the face of the record. See Ginn v. Forrester, 282 S.W.3d 430,
433 (Tex. 2009) (rules require clerk to provide notice of dismissal hearing but no
“affirmative duty to record the mailing of the required notices”); Alexander v.
Lynda’s Boutique, 134 S.W.3d 845, 849 (Tex. 2004).
The order dismissing the case for want of prosecution recited the parties’
failure to submit anything referred to in (a) through (c) in the letter above and stated:
“given that no other motions were set for hearing prior to the dismissal setting, the
Court finds that the above-numbered and styled case should be dismissed for want
of prosecution.” The order did not specify whether it was dismissing under rule 165a
or the court’s inherent authority, requiring appellants to negate all possible grounds
–4– for dismissal. See Villareal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630
(Tex. 1999); Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 3 (Tex. App.—Houston
[14th Dist.] 2006, pet. denied) (op. on reh’g). They have not done so, and the record
does not indicate that appellants took any action to prosecute the case in the nearly
nine months after filing, despite the trial court’s explicit directions in the dismissal
hearing notice. On this basis, we conclude the face of the record provides
justification for the trial court’s decision to dismiss this case for want of prosecution.
See Alexander, 134 S.W.3d at 852.
Appellants’ arguments for reinstatement would fail as well. Based on civil
Free access — add to your briefcase to read the full text and ask questions with AI
Affirmed and Opinion Filed September 5, 2023
In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00061-CV
LAUREN NOVAK AND JUSTIN BEISH, Appellants V. STATE FARM LLOYDS, Appellee
On Appeal from the 471st Judicial District Court Collin County, Texas Trial Court Cause No. 471-06291-2020
MEMORANDUM OPINION Before Justices Molberg, Pedersen, III, and Miskel Opinion by Justice Molberg Lauren Novak and Justin Beish bring this restricted appeal of the trial court’s
August 30, 2021, order dismissing their case for want of prosecution and January 6,
2022, denial of their motion to reinstate.1 We affirm.
1 Appellants’ original notice of appeal challenged the denial of their motion to reinstate, which is not independently appealable. See Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). The notice was untimely as to the original dismissal but was filed within six months of that date, so a restricted appeal was possible. At our direction, they filed an amended and rule-compliant notice of restricted appeal of the original dismissal order. See TEX. R. APP. P. 30 (restricted appeals). To sustain a restricted appeal, appellants must show that (1) the notice of
restricted appeal was filed within six months after the judgment was signed; (2) they
were parties 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 post-judgment
motions or requests for findings of fact and conclusions of law; and (4) error is
apparent on the face of the record. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex.
2014) (per curiam). The first three requirements are jurisdictional; the fourth is
merits-based, and therefore, is not jurisdictional. See Ex parte E.H., 602 S.W.3d
486, 497 (Tex. 2020).
Though appellants attempted to invoke the civil procedure rule 306a(4) and
(5) procedure to have the trial court determine the date they received notice of the
dismissal as October 11, 2021, such that their motion to reinstate was timely and
properly invoked the court’s jurisdiction, they did not request the trial court to issue
a ruling to that effect, and the trial court did not do so in any order. “Without a
finding of the date notice was actually received,” and a written order to that effect,
the motion to reinstate was untimely. See Nedd-Johnson v. Wells Fargo Bank, N.A.,
338 S.W.3d 612, 612 (Tex. App.—Dallas 2010, no pet.); TEX. R. APP. P. 4.2(c).
Thus, the face of the record of this restricted appeal indicates that the motion to
reinstate was untimely, and we disagree with appellants’ argument to the contrary,
which would deprive this Court of restricted appeal jurisdiction. See Pike-Grant,
447 S.W.3d at 886. And, because the motion to reinstate was untimely, the trial
–2– court could not grant it because the court had lost plenary power. See TEX. R. CIV.
P. 165a(3), 306a(4)–(5); see also In re Dansby, 583 S.W.3d 838, 840 (Tex. App.—
Dallas 2019, orig. proceeding). In any event, we have restricted appeal jurisdiction
because appellants timely filed a notice of appeal and meet the jurisdictional
requirements. See TEX. R. APP. P. 30.
We review a dismissal for want of prosecution for an abuse of discretion, see
MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997), and because this is a restricted
appeal, we are confined to the face of the record in our review. See Gen. Elec. Co.
v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991). This
means we review “the papers on file with the trial court when it rendered judgment.”
See id.
Appellants filed their original petition on December 1, 2020, and appellee
answered December 31, 2020. The next document in the clerk’s record is a notice
of hearing for August 27, 2021, at 10:00 a.m. in the 471st District Court for
“Dismissal for Want of Prosecution” that says “THIS HEARING IS BY
SUBMISSION ONLY. DO NOT APPEAR FOR THE ABOVE SETTING. Instead,
follow the below instructions.”2 Those instructions were that the case would be
dismissed for want of prosecution unless, at least 24 hours before the submission
setting, the parties submit:
2 The index in the clerk’s record indicates a date of January 10, 2021” for this document in the “FILED/SIGNED” column. –3– (a) A nonsuit or a dispositive order signed by all parties; or
(b) An agreed scheduling order, which must include a confirmed trial setting obtained from the Court Coordinator; or
(c) If the parties cannot agree on a trial setting, a joint report identifying the trial dates provided by the Court Coordinator and each party’s objections to, or conflicts with, the same.
This notice is sufficient.
Appellants devote no direct argument against the original dismissal order, and
have inadequately briefed this issue. See TEX. R. APP. P. 38.1(i). The issue would
fail in any event because the record contains the dismissal notice and, though the
record is silent as to whether notice was provided, the absence from the record of
affirmative proof that the notice of intent to dismiss was provided establishes no
error apparent on the face of the record. See Ginn v. Forrester, 282 S.W.3d 430,
433 (Tex. 2009) (rules require clerk to provide notice of dismissal hearing but no
“affirmative duty to record the mailing of the required notices”); Alexander v.
Lynda’s Boutique, 134 S.W.3d 845, 849 (Tex. 2004).
The order dismissing the case for want of prosecution recited the parties’
failure to submit anything referred to in (a) through (c) in the letter above and stated:
“given that no other motions were set for hearing prior to the dismissal setting, the
Court finds that the above-numbered and styled case should be dismissed for want
of prosecution.” The order did not specify whether it was dismissing under rule 165a
or the court’s inherent authority, requiring appellants to negate all possible grounds
–4– for dismissal. See Villareal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630
(Tex. 1999); Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 3 (Tex. App.—Houston
[14th Dist.] 2006, pet. denied) (op. on reh’g). They have not done so, and the record
does not indicate that appellants took any action to prosecute the case in the nearly
nine months after filing, despite the trial court’s explicit directions in the dismissal
hearing notice. On this basis, we conclude the face of the record provides
justification for the trial court’s decision to dismiss this case for want of prosecution.
See Alexander, 134 S.W.3d at 852.
Appellants’ arguments for reinstatement would fail as well. Based on civil
procedure rule 165a(1), they claim that they “intended to appear at the dismissal
hearing but missed the dismissal hearing due to a calendaring mistake.” This
argument has gotten no stronger for its verbatim repetition on appeal.
Appellants argued below that “calendaring mistakes made unintentionally and
without conscious indifference are always sufficient grounds to meet” their
“accident or mistake” burden. See TEX. R. APP. P. 165a(3). At the hearing on the
motion to reinstate, counsel stated that “[w]e received no notice from the Court of
any intent to have this case dismissed” but in the next sentence admitted “counsel
could not appear for the schedule because we had a calendaring issue.” Counsel
covering the hearing was later “not sure what evidence” they would provide to show
the calendaring mistake, and never went beyond the conclusory statement that there
had been a good faith calendaring mistake that prevented appearance at, or
–5– performance in advance of, the dismissal hearing. This is insufficient. See Brown
v. Sanders, No. 02-21-00212-CV, 2022 WL 2071782, at *4 (Tex. App.—Fort Worth
June 9, 2022, no pet.) (mem. op.) (similar lack of evidence of “counsel’s practices
relating to calendaring or scheduling”); see also Nichols v. TMJ Co., 742 S.W.2d
828, 831 (Tex. App.—Dallas 1987, no pet.) (court need not accept unsupported
conclusory statements). Further, counsel’s affidavit verifying the motion to reinstate
gave no detail and stated only, as relevant, that “[t]he facts stated in the above motion
are within my personal knowledge and are true and correct.” See Henderson v.
Blalock, 465 S.W.3d 318, 323 (Tex. App.—Houston [14th Dist.] 2015, no pet.); cf.
Rava Square Homeowners Ass’n v. Swan, No. 14-07-00521-CV, 2008 WL 4390437,
at *2–3 (Tex. App.—Houston [14th Dist.] Sept. 30, 2008, no pet.) (mem. op.)
(explanatory details in affidavit provided basis for relief from dismissal).
We affirm the judgment of the trial court.
/Ken Molberg/ KEN MOLBERG 220061f.p05 JUSTICE
–6– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
LAUREN NOVAK AND JUSTIN On Appeal from the 471st Judicial BEISH, Appellants District Court, Collin County, Texas Trial Court Cause No. 471-06291- No. 05-22-00061-CV V. 2020. Opinion delivered by Justice STATE FARM LLOYDS, Appellee Molberg. Justices Pedersen, III and Miskel participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee STATE FARM LLOYDS recover its costs of this appeal from appellants LAUREN NOVAK AND JUSTIN BEISH.
Judgment entered this 5th day of September 2023.
–7–