      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-07-00291-CV



                                   CVN Group, Inc., Appellant

                                                   v.

                       Enrique Delgado and Marjorie Delgado, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
        NO. D-1-GN-99-013857, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



                             MEMORANDUM OPINION

               In this restricted appeal, CVN Group, Inc. (CVN) challenges a dismissal for want of

prosecution on the ground that it did not receive notice of the trial court’s intent to dismiss. Because

error is not apparent from the face of the record, we will affirm the trial court’s order.


                      FACTUAL AND PROCEDURAL BACKGROUND

               CVN and Enrique and Marjorie Delgado were parties to an arbitration proceeding to

resolve their dispute regarding the construction of the Delgados’ house. After receiving a favorable

arbitration award, CVN filed a petition in Travis County District Court to confirm the award. The

district court signed a final judgment that modified the award. On May 18, 2000, shortly after the

judgment was signed, CVN’s attorney filed a motion to withdraw as counsel for CVN. The motion

did not seek to substitute another attorney as counsel of record for CVN. In accordance with rule

10 of the Texas Rules of Civil Procedure, the motion included CVN’s last known address and set
forth all pending deadlines and other information required when another attorney is not to be

substituted for the withdrawing attorney. The order granting the motion to withdraw stated that “all

notices in this cause shall hereafter be served on Plaintiff [CVN] either delivered in person or sent

by certified and first class mail to the address in the motion.” There is no indication in the record

that CVN ever filed a notice of substitution of counsel or designated another attorney in charge. See

Tex. R. Civ. P. 10.

                CVN appealed the trial court’s judgment modifying the arbitration award to this Court

and to the Texas Supreme Court. The supreme court concluded that the trial court should have

confirmed the original arbitration award in its entirety and remanded the case with instructions that

the trial court render judgment in accordance with the supreme court’s opinion and mandate, which

issued in February 2003. Thereafter, the case remained pending on the trial court’s docket, without

a new judgment being signed, until November 2006, when it was placed on the dismissal docket.

In an order signed January 9, 2007, the trial court dismissed a number of cases, including this one,

for want of prosecution. The dismissal order states in part: “the notice of the Court’s intention to

dismiss these causes for want of prosecution was sent to all parties and attorneys of record whose

addresses are in the files of the District Clerk of Travis County, Texas; . . . .”

                On April 20, 2007, CVN filed a motion to reinstate the case. CVN also sought to

establish the application of Texas Rule of Civil Procedure 306a(4) in order to extend the trial court’s

plenary power so it could consider the motion to reinstate. The district court found that, because

CVN did not obtain actual notice of the dismissal order until more than 90 days after it was signed,

rule 306a(4) did not apply. See Tex. R. Civ. P. 306a(4). Consequently, the court concluded that its



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plenary power over the case had expired and that it lacked jurisdiction to consider the motion

to reinstate.

                CVN perfected this restricted appeal challenging the trial court’s dismissal order.

CVN asserts that it did not discover that the case had been dismissed until April 17, 2007. CVN

contends that the face of the record demonstrates that the trial court failed to provide notice to CVN

of its intent to dismiss the case for want of prosecution, and that this error requires reversal.


                                           DISCUSSION

                A restricted appeal is a direct attack on a judgment. Roventini v. Ocular Scis., Inc.,

111 S.W.3d 719, 721 (Tex. App.—Houston [1st Dist.] 2003, no pet.). To prevail on its restricted

appeal, CVN 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. See Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848

(Tex. 2004); Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999). Only the

fourth element is at issue here.

                Before a trial court may properly dismiss a case for want of prosecution, “[n]otice 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 . . . .” Tex. R. Civ. P. 165a(1). When a party claims

in a restricted appeal that the required notice was not given, the error must appear on the face of the

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record. Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex. 2009); Alexander, 134 S.W.3d at 848;

General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991);

see also Tex. R. App. P. 30. The face of the record in a restricted appeal consists of the documents

and evidence before the trial court when it rendered its judgment. Falcon Ridge Apartments,

811 S.W.2d at 944.

                The record in the present case contains evidence that notice of the trial court’s intent

to dismiss the case was sent to CVN. Specifically, the district court’s dismissal order recited that

“the notice of the Court’s intention to dismiss these causes for want of prosecution was sent to all

parties and attorneys of record whose addresses are in the files of the District Clerk of Travis County,

Texas.” A recitation of due notice of a setting in the judgment constitutes some, though not

conclusive, evidence that proper notice was given; in the absence of controverting evidence

in the record from the trial court, we presume that notice was received. Osborn v. Osborn,

961 S.W.2d 408, 411-12 (Tex. App.—Houston [1st Dist.] 1997, pet. denied). Thus, the record

contains affirmative evidence that CVN was served with notice of the trial court’s intent to dismiss

the case in accordance with rule 165a(1).

                Other than the recitation in the order of dismissal, the record is silent with regard to

whether the district clerk actually sent notice to CVN, and if so, to what address. CVN’s address

was in the files—it was included in CVN’s previous counsel’s motion to withdraw. The record also

contains the order granting the motion to withdraw, which directed that CVN shall be served with

all notices at its last known address as set forth in the motion to withdraw. Moreover, the record

does not show that CVN ever filed a notice informing the court of substituted counsel or a



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designation of new lead counsel. Service on CVN at its last known address would have been

consistent with the trial court’s directive contained in its order granting CVN’s previous counsel’s

motion to withdraw. CVN contends, however, that the Court Administrator’s computer system

continued to include, as an address for CVN, the address of its previous counsel who had withdrawn

but whose address remained in the computer system. The fact that the record shows that the district

clerk’s files contained two addresses for CVN, one that was correct and one that was not, does not

alone demonstrate error. There is nothing in the record to indicate that notice was sent to CVN’s

previous counsel but not to CVN’s last known address, as ordered by the trial court. Without

more, it is not apparent from the face of the record that notice to CVN was sent only to an

incorrect address.

                The rules governing dismissals for want of prosecution direct the district court to mail

notice containing the date and place of hearing at which the court intends to dismiss the case and a

similar notice of the signing of the dismissal order. See Tex. R. Civ. P. 165a(1), 306a(3). The rules

governing dismissals for want of prosecution do not, however, impose on the clerk an affirmative

duty to record the mailing of the required notices. Ginn, 282 S.W.3d at 433. Absence of proof in

the record that notice was provided does not establish error on the face of the record. Ginn,

282 S.W.3d at 433; Alexander, 134 S.W.3d at 849 (“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.”). In the present case, the record contains an order reciting that notice of intent to dismiss was

sent to CVN at the address on file with the district clerk, and is otherwise silent regarding which

address the district clerk used for the notice. This is insufficient to constitute error on the face of the



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record. See Alexander, 134 S.W.3d at 850 (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).

                To show error on the face of the record, CVN relies on a recitation in the trial court’s

order denying CVN’s motion for application of rule 306a(4), which was signed on May 29, 2007:


                After hearing the testimony and taking judicial notice of the court’s
                file in this case and of the information in the Court Administrator’s
                computer system, including information about where notices were
                sent regarding the dismissal order, the Court finds that
                neither Plaintiff nor Plaintiff’s counsel received notice from this
                Court or obtained actual knowledge of the dismissal order dated
                January 9, 2007, until April 17, 2007.


CVN contends that the trial court’s finding that neither CVN nor its attorney received notice of the

dismissal order establishes that the district clerk must have sent the notice of intent to dismiss to an

incorrect address—the address for CVN’s previous counsel. CVN asserts that this demonstrates

error on the face of the record. However, the trial court’s finding itself is extrinsic evidence not

before the trial court prior to final judgment. As quoted above, the trial court’s finding was expressly

based on three things: (1) the court’s file, (2) the Court Administrator’s computer system; and

(3) testimony heard at the rule 306a(4) hearing. While we agree that the court’s file and the Court

Administrator’s computer system, as they existed at the time of the dismissal, are not extrinsic

evidence, the trial court’s finding was also based on testimony heard at the rule 306a(4) hearing. The

appellate record in this cause does not include a reporter’s record from that hearing. Accordingly, we

do not know exactly what the testimony consisted of. By the very nature of a rule 306a(4) hearing,

however, it must have included testimony from a representative of CVN that CVN did not receive



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notice of the dismissal. Such testimony does constitute extrinsic evidence. Moreover, the court’s

file and the Court Administrator’s computer system do not, by themselves, show that CVN

did not receive notice of either the dismissal order or the intent to dismiss.                 Without

considering the extrinsic evidence, therefore, error is not apparent on the face of the record.

Alexander, 134 S.W.3d at 848-49; Falcon Ridge Apartments, 811 S.W.2d at 943-44. If the district

clerk did in fact send notice of the trial court’s intent to dismiss only to CVN’s former counsel, and

not to CVN’s last known address, such error is not apparent on the face of the record that existed at

the time the trial court signed the dismissal order.


                                          CONCLUSION

               Because it is not apparent on the face of the record that notice was sent to an incorrect

address and that CVN was not given notice of the trial court’s intent to dismiss for want of

prosecution, we overrule its appellate issue and affirm the trial court’s judgment.



                                               _____________________________________________

                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Affirmed

Filed: August 31, 2009




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