Opinion
No. 09-99-493 CV
Submitted on October 19, 2000
Opinion Delivered February 22, 2001
Appeal from the 221st District Court, Montgomery County, Texas, Trial Cause No. 99-01-00121-CV
AFFIRMED AS REFORMED.
Before Walker, C.J., Burgess and Farris, JJ.
OPINION
This restricted appeal presents two questions: (1) did the appellant participate in the hearing that resulted in the dismissal with prejudice so that he is precluded from bringing a restricted appeal, and if not, (2) is there error on the face of the record. Because we conclude appellant did not participate in a hearing below and that it is apparent from the record the trial court erred in dismissing appellant's cause with prejudice, we modify the order to provide appellant's cause of action is dismissed without prejudice.
Appellee points to a letter from appellant's counsel as conduct showing appellant participated in the occurrences that ended with the order dismissing appellant's cause of action with prejudice. The letter followed a notice to counsel scheduling a hearing on appellee's plea in abatement and appellant's application for temporary injunction. The letter informed appellee's counsel that appellant would not oppose her plea in abatement, that appellant had so advised the court, and that appellant understood the matter was off the docket. Appellee concedes there was no hearing. An order was entered stating that appellant, through his counsel, had represented he was unopposed to appellee's plea in abatement and motion to dismiss. The order was not approved by counsel. We conclude the letter did not constitute participation in "the decision-making event" that resulted in the dismissal with prejudice of appellant's cause of action. See Texaco, Inc. v. Central Power Light Co., 925 S.W.2d 586, 589 (Tex. 1996). Appellee complains that appellant could have employed an ordinary appeal, but there is no requirement an appellant show diligence or lack of negligence to be entitled to a restricted appeal. Id. at 590. Accordingly, we hold that a restricted appeal under Tex.R.App.P. 30 was available to appellant.
While the Texaco opinion issued before the effective date of the new appellate rules, we find it particularly persuasive as Tex.R.App.P. 30 codified the Texaco holding. Id. at 589-90.
We also conclude there is error on the face of the record because the order dismissing appellant's cause of action with prejudice went beyond both the scheduling notice and the concession of the letter from appellant's counsel. Appellee's brief is incorrect when it characterizes the letter from appellant's counsel as conceding that appellant did not oppose a dismissal with prejudice of his cause of action. The scheduling order did not imply the court would consider, at the hearing, either dismissing appellant's cause or dismissing it with prejudice. A failure of the record to show that appellant received notice the trial court would take up appellee's motion to dismiss with prejudice was a denial of due process. Cf. Dickerson v. Sonat Exploration Co., 975 S.W.2d 339, 341 (Tex.App.-Tyler 1998, pet. denied).
Before initiating this appeal, appellant filed a motion to non-suit his cause of action. Consistent with that motion we do not remand this case to the trial court but modify the trial court's order to provide that appellant's cause of action is dismissed without prejudice to it being refiled.