In a rare move, a panel of the Fourteenth Court of Appeals reversed an order of dismissal for want of prosecution, which it had previously affirmed, holding that the trial court was required to give plaintiffs notice of intent to dismiss after granting motion to retain the case for 60 days. Plaintiffs' filing of the motion to retain did not constitute participation in the disposition of the case by the trial court, and thus did not preclude them from brigning a restricted appeal, which is only available to litigants who were not involved at trial.
One Justice dissented, opining that documentary evidence of lack of notice was insufficient and error was thus not established on the face of the record, another requirement to prevail in a restricted appeal.
Forrester v. Ginn (Tex.App.- Houston [14th Dist.] Jan. 10, 2008)(majority op. on rehearing by Chief Justice Adele Hedges)(DWOP dismissal reversed in restricted appeal)
We hold that the error complained of - the trial court failed to notify appellants of its intent to dismiss their suit - is apparent on the face of the record. Having found that the trial court failed to notify appellants of its intent to dismiss their lawsuit, we hold that the Forresters have met all elements of a restricted appeal. See Villarreal, 994 S.W.2d at 630 (the failure to provide adequate notice of the trial court's intent to dismiss for want of prosecution requires reversal). We sustain appellants' sole issue on rehearing.
We reverse the trial court's judgment dismissing the case and remand the case for further proceedings consistent with this opinion.
Before Chief Justice Hedges, Justices Hudson and Guzman14-06-00549-CV Jeff Forrester and Kim Forrester v. Emmanuel Ginn, A&R Transport, Inc., Keith Jackson, and Steve Brantley
Trial court: 333rd District Court of Harris County (Hon. Joseph J. Halbach)
Disposition: Reversed and remanded
Justice Guzman issued a dissenting opinion