                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-12-00043-CV


Michelle Woods                             §     From the 67th District Court

v.                                         §     of Tarrant County (67-253119-11)

Quorum Hotels & Resorts, Ltd.;             §     January 31, 2013
Perini-Grapevine, Inc. d/b/a Hilton
DFW Lakes Executive Conference             §     Opinion by Justice Dauphinot
Center; and Paul Joo


                                    JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s order. It is ordered that the order of the trial

court is affirmed.

      It is further ordered that Appellant Michelle Woods shall pay all of the costs

of this appeal, for which let execution issue.


                                      SECOND DISTRICT COURT OF APPEALS



                                      By_________________________________
                                        Justice Lee Ann Dauphinot
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00043-CV


MICHELLE WOODS                                                       APPELLANT

                                        V.

QUORUM HOTELS & RESORTS,                                             APPELLEES
LTD.; PERINI-GRAPEVINE, INC.
D/B/A HILTON DFW LAKES
EXECUTIVE CONFERENCE
CENTER; AND PAUL JOO


                                     ----------

          FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                        MEMORANDUM OPINION1

                                     ----------

      Appellant Michelle Woods brings this restricted appeal from the trial court’s

dismissal of her case, arguing that she did not receive notice of a scheduling

conference or dismissal hearing and that she was diligently prosecuting her case


      1
      See Tex. R. App. P. 47.4.


                                         2
when the trial court dismissed it. Because we must hold that Woods has not

shown error on the face of the record, we are constrained to affirm the trial

court’s order.

      Woods sued Appellees Quorum Hotels & Resorts, Ltd.; Perini-Grapevine,

Inc. d/b/a Hilton DFW Lakes Executive Conference Center (collectively Hotel);

and Paul Joo, alleging that while staying at the Hilton in May 2009, Joo sexually

assaulted her. Hotel filed an answer on June 17, 2011.

      On June 30, 2011, the trial court ordered a scheduling conference to be

held on July 27, 2011. The order stated that “[f]ailure of any party to appear may

result in dismissal of this case.” The order had a notation at the bottom that the

order was to be copied to the attorneys for Woods and for Hotel.

      Neither Woods nor her attorney appeared at the scheduling conference.

That same day, the trial court signed an order dismissing Woods’s claims without

prejudice.

      On December 9, 2011, Woods filed a motion to reinstate. In the motion,

Woods asserted that she never received any notice of a scheduling conference

or dismissal hearing.   Attached to the motion was an affidavit from Woods’s

attorney in which he stated that he never received a copy of the scheduling order

and did not become aware of it until he received notice that the case had been

dismissed. Nothing in the record indicates that the trial court took any action on




                                        3
the motion, which was not timely filed. On January 27, 2012, Woods filed this

restricted appeal.

      A restricted appeal must: (1) be brought within six months after the trial

court signs the judgment; (2) by a party to the suit; (3) who did not participate in

the hearing that resulted in the judgment made the subject of the complaint or file

a timely postjudgment motion, request for findings of fact and conclusions of law,

or other notice of appeal; and (4) raise error that is apparent on the face of the

record.2 Only the last requirement is at issue in this case. When reviewing

Woods’ issues, then, we must consider whether her complaints relate to error

that is apparent on the face of the record.

      Woods argues in her first issue that the trial court abused its discretion by

dismissing her case without giving her notice of a dismissal hearing. Woods

asserts that the trial court’s dismissal of her case violated her due process rights.

Woods contends that before a trial court may dismiss a case for want of

prosecution, a party must be provided with notice and an opportunity to be heard,

and Woods’s attorneys had no knowledge of the scheduling conference before

the hearing. Woods also asserts that the scheduling order does not satisfy the

proper dismissal procedures and notice under the rules of civil procedure. And,


      2
        GMR Gymnastics Sales, Inc. v. Walz, 117 S.W.3d 57, 58–59 (Tex. App.—
Fort Worth 2003, pet. denied); Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.—
Fort Worth 2001, pet. denied); see also Gold v. Gold, 145 S.W.3d 212, 213 (Tex.
2004) (“[A] restricted appeal requires error that is apparent, not error that may be
inferred.”)


                                         4
Woods argues, she was entitled to an evidentiary hearing before dismissal, and a

court reporter is required for an evidentiary hearing, but there was no court

reporter at the dismissal hearing, and therefore the trial court’s order must be

reversed as a matter of law.

      Rule 165a of the civil procedure rules provides that “[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.” 3 As Woods

asserts, the rule requires that the clerk send each attorney of record notice of (1)

the court’s intention to dismiss and (2) the date and place of the dismissal

hearing.4

      Unfortunately, Woods’s arguments under this issue have been rejected by

the Supreme Court of Texas. Although the rules governing dismissals for want of

prosecution direct the clerk to mail notice of the dismissal hearing as well as a

notice that the trial court signed a dismissal order, the rules do not impose upon

the clerk an affirmative duty to indicate anywhere in the record that these notices

were sent.5   For that reason, silence in the record about whether the clerk

provided either notice of intent to dismiss or notice of the order of dismissal does




      3
       Tex. R. Civ. P. 165a.
      4
       Id.
      5
       Ginn v. Forrester, 282 S.W.3d 430, 433 (Tex. 2009).


                                         5
not establish error on the face of the record.6 As the Supreme Court has stated,

in a restricted appeal, it is not enough that error may be inferred; it must be

apparent.7 And the absence in the record about the sending of notices neither

establishes that notice was provided nor establishes that it was not.8         If we

cannot affirmatively determine from the face of the record that notices were not

provided, then the error is not apparent on the face of the record.

      Applying the law to this case, although the trial record does not show on its

face that notices were mailed to Woods, that fact alone is not error apparent on

the face of the record.9 This situation is different from, for example, a default

judgment, because citation and return of service must be on file more than ten

days before the trial court may properly render a default judgment.10 Thus, in a

restricted appeal from a default judgment, if the trial record does not show

      6
       Id.; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 849 (Tex. 2004).
      7
       Gold, 145 S.W.3d at 213.
      8
       See Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811
S.W.2d 942, 943–44 (Tex. 1991) (distinguishing cases in which procedural rules
impose a duty either on the parties or the clerk to ensure that notice was
affirmatively shown in the record, pointing out that “[t]here is thus nothing in the
transcript before us that affirmatively indicates that notice was given, nor any
notation to establish that notice was omitted,” and holding that “[t]he 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”).
      9
       See Alexander, 134 S.W.3d at 849–50 (“[T]he fact that the record is silent
about the sending of notices under Rule 165a does not establish error on the
face of the record.”).
      10
          Tex. R. Civ. P. 107(h).


                                         6
service, the trial record shows error on its face.11 This appeal, however, resulted

from a dismissal after Woods failed to appear for a scheduling conference, the

same situation the Supreme Court addressed in Alexander, and not from a

default judgment. Accordingly, we are compelled to hold that Woods has not

shown error on the face of the record with respect to whether the trial court

provided notice of either the scheduling conference or the dismissal order. We

overrule this part of Woods’s first issue.

      Regarding whether the trial court’s scheduling order properly provided the

type of notice that is required to dismiss a case under rule 165a, the Alexander

court addressed a similar fact situation and stated,

      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: Failure to appear
      without excuse will result in [1] dismissal of the case for want of
      prosecution or [2] 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.12




      11
        See, e.g., JPMorgan Chase Bank, N.A. v. Tejas Asset Holdings, L.L.C.,
No. 05-11-00962-CV, 2012 WL 3929798, at *2 (Tex. App.—Dallas Sept. 10,
2012, no. pet. h.); see also Gen. Elec. Co., 811 S.W.2d at 943 (listing the
granting of a default judgment as a situation in which the procedural rules require
the record to show that service was made).
      12
        Alexander, 134 S.W.3d at 851.


                                             7
Here, as in Alexander, the trial court’s order put Woods on notice that dismissal

was at issue. Woods has therefore not shown error on the face of the record

with respect to whether the order provided notice that her claims could be

dismissed. We overrule this part of Woods’s first issue.

      As for Woods’s complaint about the failure of the court to hold a dismissal

hearing, again, she has not shown error on the face of the record. Here, as in

Alexander, “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”—“[t]hey were told when and where to appear and what the adverse

consequences could be if they did not appear.”13 The Alexander court held that

under those facts, the failure of the trial court to conduct a dismissal hearing is

not error that is apparent from the face of the record.14 In this case, Woods was

told a specific day and time to appear and that if she did not appear, her claims

could be dismissed, and Woods failed to comply with the express requirements

of the trial court’s order. We must therefore hold that the failure of the trial court

to conduct a dismissal hearing is not error that is apparent from the face of the

record.

      Regarding Woods’s due process claim, the Alexander court addressed a

similar issue, holding that


      13
          Id. at 852.
      14
          Id.


                                          8
      [b]ecause 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. 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.15

Applying this language, under these facts, the trial court’s dismissal of Woods’s

case without an evidentiary hearing did not violate her due process rights. We

overrule the remainder of Woods’s first issue.

      Woods argues in her second issue that the trial court abused its discretion

by giving her the “death penalty” when a lesser sanction would have been more

appropriate and that the trial court should have held a show cause hearing to

determine why she did not attend and whether a lesser sanction was appropriate.

The face of the record does not show that the dismissal was a sanction.

Accordingly, the law regulating a trial court’s authority to sanction a party does

not apply. And because we have held that Woods has not shown error on the

face of the record regarding the trial court’s dismissal of her case under rule

165a, we need not consider whether the trial court could have dismissed her

claims as a sanction. We overrule Woods’s second issue.

      Finally, in her third issue, Woods argues that the trial court abused its

discretion by dismissing her case when she was diligently prosecuting it. Under


      15
        Id. at 852.


                                        9
this issue, Woods argues that after a dismissal for want of prosecution, if a

plaintiff files a motion to reinstate showing that she was reasonably diligent in

prosecuting her suit, the court should reinstate the case. Woods then explains

what her attorney had done in pursuing her case. But Woods has not shown

error on the face of the record regarding whether the trial court erred by

dismissing her claims.

      When the trial court signed an order dismissing her claims, it did not have

before it the affidavits on which Woods now relies. Those affidavits would be

relevant to whether the trial court should have granted her motion to reinstate

had it been timely filed, not to whether dismissal was proper at the time the

dismissal order was signed. But Woods did not timely file her motion to reinstate,

so the trial court could not have erred by failing to grant it.16

      Woods’s argument about showing diligence in prosecution in order to have

a claim reinstated does not establish that the trial court erred by dismissing the

claim in the first place. And, importantly, the Supreme Court has stated that

“[t]he rule has long been that evidence not before the trial court prior to final

judgment may not be considered” in a restricted appeal.17           Instead, when

      16
        See Tex. R. Civ. P. 165a(3), 306a.
      17
        Gen. Elec. Co., 811 S.W.2d at 944; see also Campsey v. Campsey, 111
S.W.3d 767, 771 (Tex. App.—Fort Worth 2003, no pet.) (“In a restricted appeal,
the ‘face of the record’ consists of the papers on file with the trial court when it
rendered judgment. Accordingly, an appellate court may not consider evidence
in a restricted appeal unless it was before the trial court when judgment was
rendered.”) (citation omitted).

                                           10
extrinsic evidence is necessary to challenge the trial court’s judgment, the

appropriate remedy is by motion for new trial or by bill of review filed in the trial

court, not by restricted appeal.18 The affidavits were filed in the trial court, but

they were not on file with the trial court at the time it rendered judgment. If

Woods wished to have the affidavits considered, her remedy was by bill of

review—a remedy that we point out may still be available to her.19

      Because Woods has not shown error on the face of the record relating to

the trial court’s dismissal of her case for failure to appear at the scheduling

conference, we overrule Woods’s third issue.

      Having overruled Woods’s three issues, we are compelled to affirm the trial

court’s order.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: January 31, 2013


      18
        Gen. Elec. Co., 811 S.W.2d at 944.
      19
        See Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 813 (Tex.
2012) (setting out the requirements for setting aside a judgment by way of a bill
of review); Gen. Elec. Co., 811 S.W.2d at 944 n.2 (concluding that appeal by writ
of error was not available to the appellee and stating that the appellee still had
the option of seeking bill of review in the district court).


                                         11
