Opinion
No. 05-07-01482-CV
Opinion issued August 27, 2009.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. cc-07-02765-A.
Before Justices BRIDGES, RICHTER, and FILLMORE.
MEMORANDUM OPINION
This appeal follows the trial court's order dismissing for want of prosecution Newburyport Capital, L.L.C.'s lawsuit against Eric D. Corrales to recover an unpaid credit card debt. In its sole issue, Newburyport contends the trial court erred in failing to grant it a default judgment because its pleadings supported its entitlement to default judgment, damages were readily ascertainable, and deemed admissions supported the entry of default judgment. For the reasons that follow, we affirm the trial court's dismissal order.
We begin by addressing the state of the appellate record in this case. The following documents are not contained in the appellate record, and there is nothing in the record demonstrating that Newburyport requested these documents be included in the record: the trial court's rule 165a letter referenced in the dismissal order and the request for preparation of the clerk's record.
Although Texas Rule of Appellate Procedure 35.3(a) places the burden to timely prepare, file, and certify the clerk's record with the trial court clerk, the appellant bears the burden to bring forward an appellate record that enables the Court to determine whether appellant's complaints constitute reversible error. See Enter. Leasing of Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004).; Resurgence Fin., L.L.C. v. Moseley, 05-07-01225-CV, 2009 WL 92444 (Tex. App.-Dallas 2009, no pet.) (mem. op.). The dismissal order cites two reasons for dismissal: (1) failure to take action after notice of intent to dismiss for want of prosecution (IN ACCORDANCE WITH RULE 165A LETTER) and (2) dismiss for want of prosecution. Where, as here, the issues on appeal necessarily involve consideration of documents omitted from the appellate record, namely, the rule 165a letter, we must presume the missing document supports the trial court's order of dismissal. We resolve Newburyport's sole issue against it.
We affirm the trial court's order dismissing the case for want of prosecution.