Opinion
No. 10-03-00108-CV
Opinion delivered and filed October 13, 2004.
Appeal from the 85th District Court, Brazos County, Texas, Trial Court # 49,622-85.
Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
(Justice VANCE concurs with a note. I believe that we owe it to the litigants, the higher courts, the Bench and Bar, and the public generally to provide more of the facts and our analysis in our memorandum opinions. There was a substitution of counsel between the time the dismissal notice was sent and the order of dismissal, a period of more than three months. The notice of the dismissal order was sent to prior counsel in spite of the substitution being on file; thus the record affirmatively shows that neither Appellant nor its counsel of record received notice of the dismissal order. Although Appellant filed a motion to reinstate the case, it did not receive the notice in time for the trial court to act upon it. See Levit v. Adams 850 S.W.2d 469, 470 (Tex. 1993) (notice received after the 90th day is not covered by Rule 306a(4)).
MEMORANDUM OPINION
This is a restricted appeal of a dismissal for want of prosecution. See TEX. R. APP. P. 30. We will affirm.
The record shows that at the time of the dismissal order the district clerk had addressed a notice of dismissal to the attorney who was Appellant's attorney of record at the time that the clerk sent the notice. Thereafter, but before the trial court signed the dismissal order, a new attorney of record appeared for Appellant. Appellant does not show error on the face of the record before the trial court. See TEX. R. CIV. P. 165a(1); Quaestor Invs., Inc. v. State of Chiapas, Mex., 997 S.W.2d 226, 227 (Tex. 1999); MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); Gen. Elec. Co. v. Falcon Ridge Apts., 811 S.W.2d 942, 944 (Tex. 1991) (writ of error).
Appellant also complains that he did not receive notice from the clerk of entry of the judgment. See TEX. R. CIV. P. 306a(3). Since this matter does not appear in the record before the trial court at the time the court signed the dismissal order, it is not a proper matter for a restricted appeal of that order. See Falcon Ridge at 944.
We overrule Appellant's issue, and affirm the judgment.