Opinion
No. 05-08-00255-CV
Opinion issued August 19, 2009.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. cc-07-11345-A.
Before Justices MORRIS, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION
This appeal follows the trial court's dismissal for want of prosecution of Tracy Lefelhoc's lawsuit against Greg Varrelman. In two issues, appellant generally contends the trial court erred in refusing to hear evidence in support of his motion for new trial. Appellee has not filed a brief in this case. Because we conclude appellant has failed to establish any reversible error, we affirm the trial court's order of dismissal. The law is well settled and we therefore issue this memorandum opinion. See Tex. R. App. P. 47.1.
I.
Appellant sued appellee for breach of a lease agreement on August 6, 2007. On November 9, 2007, the trial court signed an order dismissing the case for want of prosecution for failure to appear for a hearing or trial of which notice was had. Appellant filed a verified motion for new trial on December 7, 2007 seeking reinstatement of the case. The trial court set the hearing on appellant's motion for February 1, 2008, a date after the seventy-fifth day following the dismissal order but still within the trial court's thirty days of plenary power. See Tex. R. Civ. P. 329b(c), (e). At the February 1 hearing, the trial court ruled the motion had been overruled by operation of law and denied the motion without hearing testimony or receiving evidence. Appellant filed a motion to reconsider asserting the trial court had plenary jurisdiction to consider his motion for new trial on February 1. The record contains no order on the motion for reconsideration. This appeal followed.
The appellate record does not indicate the nature of the November 9 hearing. Appellant asserts the case was placed on the November 9 dismissal docket pursuant to a notice from the trial court dated August 14, 2007, a copy of which appellant attached to his brief. The law is clear that documents provided in an appendix to a brief and not contained in the record are not properly before us. Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001).
Our record does not contain a reporter's record from the February 1 hearing. A docket sheet notation on February 1 indicates "MNT denied — overruled by operation of law."
II.
At the heart of this appeal is appellant's complaint that the trial court refused to hear evidence on his motion despite the fact that the hearing was scheduled within the trial court's plenary jurisdiction. We review a trial court's ruling on a motion for new trial for an abuse of discretion. See Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987).
Texas Rule of Civil Procedure 165a authorizes a trial court to dismiss a case for want of prosecution on the failure of the plaintiff to appear for any hearing or trial of which he had notice. Tex. R. Civ. P. 165a(1). If the plaintiff timely files a verified motion for reinstatement, however, the court must reinstate the case upon finding, after a hearing, that the failure to appear "was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure has been otherwise reasonably explained." See Tex. R. Civ. P. 165a(3).
When a motion for new trial presents a question of fact upon which evidence must be heard, the trial court is obligated to hear such evidence if the facts alleged by the movant would entitle him to a new trial. See Hawkins v. Howard, 97 S.W.3d 676, 678 (Tex. App.-Dallas 2003, no pet.). The trial court's duty to hear such evidence continues even after the motion for new trial is overruled by operation of law, provided the hearing is conducted within the court's plenary power, i.e., thirty days after the motion was overruled by operation of law. Id. Because the trial court had plenary power on February 1 to grant the motion, it had the same obligation to hear appellant's evidence as if the hearing had been conducted within the seventy-five-day period. Id. Thus, the critical issue before us is whether any of the factual allegations made in appellant's motion, if true, entitle him to reinstatement of the case.
In his motion, appellant argued his failure to appear was not intentional or the result of conscious indifference but was due to an accident or mistake or that the failure had otherwise been reasonably explained. But there were no allegations of facts addressing the failure to appear at the November 9 hearing. Instead, the motion focused on appellant's failure to obtain service on the defendant. Specifically, the motion asserted that, although appellant's former counsel paid for citation on appellee, the citation was not delivered to counsel for service. It further states that when the case was transferred to appellant's new counsel, he overlooked the lack of service on defendant. The motion also indicates that after new counsel received the November 9 dismissal order, he served the defendant on November 20, 2007. Even if all of the allegations in appellant's motion for new trial were true, they would not support reinstatement. Nowhere in the motion does appellant assert facts which, if believed by the trial court, would support a finding that the failure to appear for the November 9 hearing was not intentional or the result of conscious indifference but was due to an accident or mistake or otherwise reasonably explained. See Tex. R. Civ. P. 165a(3). Accordingly, appellant cannot establish the trial court reversibly erred in refusing to hear evidence with respect to his motion for new trial.
We affirm the trial court's order of dismissal.