Nohitha Parimi and Amarenda Tella v. Kelechi Sam Oliver

• Court: Court of Appeals of Texas
• Decided: December 6, 2024
• Docket: 05-24-00012-CV
• Status: Published

Opinion

REVERSE AND REMAND and Opinion Filed December 6, 2024.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-00012-CV

NOHITHA PARIMI AND AMARENDA TELLA, Appellants V. KELECHI SAM OLIVER, Appellee

On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-06894-2022

MEMORANDUM OPINION Before Justices Pedersen, III, Goldstein, and Kennedy Opinion by Justice Kennedy Appellants Nohitha Parimi and Amarenda Tella bring this restricted appeal

seeking to set aside dismissal of their personal injury suit against appellee Kelechi

Sam Oliver for want of prosecution. A restricted appeal requires error that is

apparent on the face of the record; error that is merely inferred will not suffice.

Appellants contend error is apparent on the face of the record because the notices of

dismissal for want of prosecution and the dismissal order were mailed to their

attorney with an improper zip code. We conclude error is apparent on the face of

the record before us. Accordingly, we reverse the trial court’s order dismissing appellants’ suit and remand the case for further proceedings. Because all issues are

settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

BACKGROUND

Appellants and appellee were involved in a motor vehicle accident on January

1, 2021. On December 27, 2022, appellants, represented by counsel, filed suit

against appellee seeking damages for injuries they allegedly sustained as a result of

the accident. The petition listed the address for appellant’s attorney as 5700

Tennyson Parkway Suite 300, Plano, TX 75024.

On February 28, 2023, the trial court issued a notice that the case would be

dismissed for want of prosecution (DWOP) on April 6 unless the case was disposed

of or the parties filed a scheduling order. The notice was addressed to appellants’

attorney at 5700 Tennyson Parkway Suite 300, Plano, TX 75025. Although it

appears no action was taken by the parties by the deadline provided in the notice, the

case was not dismissed on April 6.

On July 17, 2023, the trial court sent a second DWOP notice stating the case

would be dismissed for want of prosecution on August 25 unless the parties took the

steps set forth in the notice. Again, the notice was addressed to appellants’ attorney

with a zip code of 75025. It appears no action was taken by the parties by the

deadline provided in the notice and, on August 25, the trial court signed an order

dismissing the case for want of prosecution. The docket sheet indicates that the

Order of Dismissal was “Mailed or Faxed or Emailed” on September 1, 2023. The

–2– Order of Dismissal and the envelopes addressed to the parties’ attorneys were

scanned and included in the clerk’s record in this case on September 1. The envelope

addressed to appellants’ attorney containing the Order of Dismissal was postmarked

September 5. That envelope was addressed to appellants’ attorney at the same

address identified on the DWOP notices. That mailing was returned to the trial court

on September 25 marked, “RETURN TO SENDER NOT DELIVERABLE AS

ADDRESSED UNABLE TO FORWARD” and scanned and included in the clerk’s

record on October 3. On January 3, 2024, appellants filed their Notice of Restricted

Appeal.

DISCUSSION

I. Restricted Appeal – Jurisdictional Requirements

Four elements must be satisfied to succeed on a restricted appeal: (1) a notice

of restricted appeal must be filed within six months after the judgment is signed; (2)

by a party to the lawsuit; (3) who did not participate in the hearing that resulted in

the judgment complained of and did not file a timely post-judgment motion or

request for findings of fact and conclusions of law; and (4) error must be apparent

on the face of the record. TEX. R. APP. P. 26.1(c), 30; Pike-Grant v. Grant, 447

S.W.3d 884, 886 (Tex. 2014) (per curiam). The fourth requirement derives from

case law and is not included within the requirements of Rules 26.1(c) and 30. Gen.

Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943 (Tex.

1991). The first three requirements are jurisdictional, the fourth is not. Ex parte

–3– E.H., 602 S.W.3d 486, 497 (Tex. 2020).

The record shows appellants, parties to the suit, filed a notice of restricted

appeal approximately four months after the suit was dismissed; the notice of

restricted appeal met the requirements of Rule 30 of the Texas Rules of Appellate

Procedure; and appellants did not participate in the dismissal hearing and did not file

any timely post-judgment motion or request for findings of fact and conclusions of

law. Accordingly, the jurisdictional requirements of a restricted appeal have been

satisfied; the question before us is whether error is apparent on the face of the record.

II. Error Apparent on the Face of the Record

For purposes of a restricted appeal, the “face of the record” consists of the

reporter’s record and all the papers on file in the clerk’s record at the time the

judgment or order was signed. See Norman Commc’ns v. Tex. Eastman Co., 955

S.W.2d 269, 270 (Tex. 1997) (per curiam); Lytle v. Cunningham, 261 S.W.3d 837,

839 (Tex. App.—Dallas 2008, no pet.). Error is apparent from the face of the record

when extrinsic evidence is not necessary to determine that an error was made; in

other words, the error is apparent upon review of only what is contained within the

lower court’s record.1 See Zarosky v. State, No. 03-03-00116-CV, 2004 WL

1 Appellants attach an appendix to their appellate brief that includes (1) the affidavit of their attorney stating she did not receive the notices of dismissal for want of prosecution or the dismissal order, (2) email communications with the court coordinator discussing the mailing of the dismissal notices and dismissal order and the return on the dismissal order mailing, and (3) email exchanges concerning the scheduling of depositions. These documents are not contained within the lower court’s records. This Court may not consider documents in an appendix that are not in the appellate record. TEX. R. APP. P. 34.1; Ginn v. Forrester, 282 S.W.3d 430, 432–33 (Tex. 2009). Accordingly, we will not consider the documents appellants append to their brief in resolving this restricted appeal. –4– 1114539, at *2 (Tex. App.—Austin May 20, 2004, no pet.) (mem. op.).

When extrinsic evidence is necessary to challenge a trial court’s judgment, it

should be presented in a motion for new trial or a bill of review. Alexander v.

Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Affidavits filed for the first

time in the court of appeals averring that notice was not given or received cannot

support a restricted appeal. Ginn v. Forrester, 282 S.W.3d 430, 432–33 (Tex. 2009).

In addition, error that is merely inferred will not suffice. Id. at 431.

An appellant who alleges error apparent on the face of the record due to lack

of notice carries a heavy burden, because the record is usually barren of affirmative

proof of the error claimed. Langdale v. Villamil, 813 S.W.2d 187, 189 (Tex. App.—

Houston [14th Dist.] 1991, no writ). Unless a procedural rule specifically imposes

a duty on a party or the district clerk to ensure the record affirmatively shows notice

was given, absence of such affirmative proof will not establish error. See Brown v.

Brookshires Grocery Store, 10 S.W.3d 351, 354 (Tex. App.—Dallas, 1999, pet.

denied) (citing Falcon Ridge, 811 S.W.2d at 943–44).

III. Notice of Dismissal for Want of Prosecution

As applicable to the current case, before a lawsuit may be dismissed for want

of prosecution, a notice of the court’s intention to dismiss and the date and place of

the dismissal hearing must be sent by the clerk of the court to each attorney of record

at the address shown on the docket or in the papers on file with the court, by posting

–5– same in the United States Postal Service. TEX. R. CIV. P. 165a(1).2

Appellants urge that error is apparent on the face of the record because the

record shows that the court clerk used the wrong zip code in mailing the notices of

the dismissal hearing to appellants’ attorney.

While the clerk must mail a notice containing the date and place of hearing at

which the court intends to dismiss the case, the clerk has no affirmative duty to

record the mailing of the required notice. Ginn, 282 S.W.3d at 431, 433.

Accordingly, the absence of proof in the record that the notice was provided does

not establish error on the face of the record. Id. at 433. As to what does constitute

error on the face of the record, silence is not enough. Id.

Here, the record contains dismissal notices dated February 28, 2023, and July

17, 2023, that are addressed to appellants’ attorney at 5700 Tennyson Parkway Suite

300, Plano, TX 75025. But the record does not include copies of the envelopes that

contained the notices and there is no indication in the record as to how the notices

were actually mailed. Nor does the record reflect that the notices were returned to

the court as undeliverable. C.f. GMAC v. Fleetwood Enterprises, Inc., No. 10-08-

00055-CV, 2009 WL 754693, at *1 (Tex. App.—Waco Mar. 18, 2009, no pet.)

(mem. op.) (concluding error was apparent on the face of the record where the

2 Effective September 8, 2023, the notice must be sent by the clerk to the parties as provided in Rule 21(f)(10), which provides for electronic service through the electronic filing service provider certified by the Office of Court Administration, except when the document is sealed or when access is otherwise restricted by law or court order or when an unrepresented party has not provided an e-mail address. TEX. R. CIV. P. 165a(1). –6– pleadings listed the correct address, the record showed the notice was mailed to the

incorrect address and returned as undeliverable).

In order to find error on the face of the record with respect to the notices of

dismissal for want of prosecution, we would have to infer that the clerk mailed the

notices to appellants’ attorney at an address containing a zip code of 75025 instead

of 75024. Error that is merely inferred will not suffice. Ginn, 282 S.W.3d at 431.

Moreover, “[b]y its very nature, a zip code is more of an aid to the post office than

a part of an address.” Circle Ridge Prod., Inc. v. Kittrell Family Min., LLC, No. 06-

13-00009-CV, 2013 WL 3781367, at *4 (Tex. App.—Texarkana July 17, 2013, pet.

denied) (mem. op.). Thus, without more, we cannot in the first instance conclude

that an inclusion of a minor variation in the zip code caused the notices to be

improperly addressed.

Because error on the face of the record is not shown through silence or

inference, and because we cannot consider the extrinsic evidence appellants present

with their appellate brief, appellants have failed to establish error on the face of the

record with respect to the notices of dismissal for want of prosecution.

IV. Order of Dismissal

Appellants also urge error is apparent on the face of the record with respect to

notice of the order dismissing the case. As applicable here, when the court signs an

order of dismissal, the clerk of the court is required to give immediate notice to the

parties electronically or by first-class mail advising that the judgment or order was

–7– signed. TEX. R. CIV. P. 306a(3). Effective September 8, 2023, with limited

exceptions, copies of the dismissal judgment or order must be sent to the parties

electronically.3 Failure to give the mandatory notice is also a violation of the

litigant’s due process rights and constitutes error on the face of the record. See Smith

v. Shipp, No. 05-09-01204-CV, 2010 WL 2653733, at *2 (Tex. App.—Dallas July

6, 2010, no pet.) (mem. op.) (where record showed 306a(3) dismissal notice was

returned as undeliverable, failure to given notice was a violation of due process

rights and constituted error on the face of the record).

Here, a docket entry on September 1, 2023, states that the Order of Dismissal

was “Mailed or Faxed or Emailed.” As commonly used, the term “or” means one or

the other, not both. See MERRIAM-WEBSTER DICTIONARY, or, https://www.merriam-

webster.com/dictionary/or (last visited Dec. 4, 2024) (“or” used as a function word

to indicate an alternative).4 The record before us includes copies of the order of

dismissal along with the envelopes addressed to the parties in which the notice of

dismissal was sent. Thus, the face of the record establishes that the mode of service

of the notice of the Order of Dismissal was by mail, not fax or email. And, while

3 See version of Rule 306a(3) effective September 8, 2023, providing, the clerk must immediately send the judgment or order to the parties as provided in Rule 21(f)(10), which provides for electronic service through the electronic fling service provider certified by the Office of Court Administration, except when the document is sealed or when access is otherwise restricted by law or court order or when an unrepresented party has not provided an e-mail address. TEX. R. CIV. P. 306a(3). 4 We cite the Merriam-Webster Online Dictionary for a definition, not as the authoritative definition of any word or term but to inform a generally understood definition of the term or word. See, e.g., City of Fort Worth v. Pridgen, 653 S.W.3d 176, 183–84 (Tex. 2022). –8– email was a permissible means of service at the time the notice was provided, it was

not yet mandated. See TEX. R. CIV. P. 306a(3) (version effective September 8, 2023).

The copy of the dismissal order that was mailed to appellants’ attorney was returned

as undeliverable. Accordingly, the record establishes the required notice was not

given.

We conclude error is apparent on the record with respect to the notice of

dismissal of appellants’ case. Accordingly, we sustain appellants’ sole issue.

CONCLUSION

We reverse the trial court’s August 25, 2023 Order of Dismissal and remand

the case for further proceedings.

/Nancy E. Kennedy/ 240012f.p05 NANCY KENNEDY JUSTICE

–9– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

NOHITHA PARIMI AND On Appeal from the 429th Judicial AMARENDA TELLA, Appellants District Court, Collin County, Texas Trial Court Cause No. 429-06894- No. 05-24-00012-CV V. 2022. Opinion delivered by Justice KELECHI SAM OLIVER, Appellee Kennedy. Justices Pedersen, III and Goldstein participating.

Based on the Court’s opinion of this date, the trial court’s August 25, 2023 Order of Dismissal is REVERSED and this cause is REMANDED to the trial court for further proceeding consistent with this opinion.

It is ORDERED that appellants NOHITHA PARIMI AND AMARENDA TELLA recover their costs of this appeal from appellee KELECHI SAM OLIVER.

Judgment entered this 6th day of December, 2024.

–10–