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Molina v. Cervantes

Court of Appeals of Texas, Fourth District, San Antonio

September 13, 2017

Galdino MOLINA, Appellant
v.
David CERVANTES, Appellee

         From the County Court at Law No. 10, Bexar County, Texas Trial Court No. 391399 Honorable Karen Crouch, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice

          MEMORANDUM OPINION

          Karen Angelini, Justice

         In this restricted appeal, Galdino Molina challenges the dismissal of his negligence suit for want of prosecution. We affirm.

         Discussion

         Molina filed suit against David Cervantes for negligence. In his appellate brief, Molina represents that the trial court clerk assigned two separate cause numbers to his suit, 391359 and 391399, and that the trial court eventually dismissed both cause numbers for want of prosecution. Molina claims that upon learning of the dismissal in cause number 391359 he filed a motion to retain in cause number 391359, which was granted by the trial court; however, according to Molina, the order granting the motion to retain was mistakenly filed in cause number 391399. Next, Molina represents that the trial court subsequently dismissed cause number 391399 for want of prosecution. Molina claims that he did not appear at the dismissal hearing because he believed that cause number 391359 was the live case and that cause number 391399 was unnecessary. Finally, Molina represents that he filed a motion to reinstate cause number 391359, but that the motion was denied because the trial court had lost jurisdiction over the case.

         Many of the representations in Molina's brief are outside of the record in this case. The record in this case shows only that the trial court issued notice of its intent to dismiss cause number 391399 for want of prosecution; that Molina filed a motion to retain cause number 391399 on the docket; that the trial court retained cause number 391399 on the docket and set the case for a jury trial; that the trial court issued a second notice of its intent to dismiss cause number 391399 for want of prosecution; and that the trial court ultimately dismissed cause number 391399 for want of prosecution.

         On appeal, Molina challenges the trial court's order dismissing cause number 391399 for want of prosecution. Molina claims that the trial court intended to dismiss only cause number 391359, not cause number 391399. According to Molina, the trial court dismissed cause number 391399 in error.

         To obtain relief through a restricted appeal, Molina must establish that: (1) he filed a notice of a restricted appeal within six months after the judgment was signed; (2) he was a party to the underlying lawsuit; (3) he did not participate in the hearing that resulted in the judgment and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The dispositive issue in this appeal is whether Molina has established error that is apparent on the face of the record.

         The "record" in a restricted appeal consists of all of the papers before the trial court at the time it rendered judgment as well as any reporter's record. Norman Commc'n v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). "The rule has long been that evidence not before the trial court prior to final judgment may not be considered in a [restricted appeal]." Gen. Electr. Co. v. Falcon Ridge Apts., Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991). For this reason, we cannot consider extrinsic evidence in a restricted appeal. See Alexander, 134 S.W.3d at 848-49 (concluding that an affidavit first filed in the supreme court was extrinsic evidence that could not be considered in a restricted appeal). Furthermore, "[a] restricted appeal requires error that is apparent on the face of the record; error that is merely inferred will not suffice." Ginn v. Forrester, 282 S.W.3d 430, 431 (Tex. 2009).

         Here, Molina argues error is apparent on the face of the record "in the form of the two conflicting cause numbers assigned to this lawsuit by the Bexar County Clerk's Office." Molina argues that the assignment of two cause numbers was completely the function of the trial court clerk and cannot be attributed to him in any way. Molina further argues that the record shows that neither the trial court nor the parties were entirely clear about which cause number was actually assigned to the suit.

         To support his argument, Molina relies on several documents, which are attached to a motion accompanying his brief. The documents, which are certified copies of documents filed in cause number 391359, were not filed in the papers in this case and were not before the trial court when it signed the judgment challenged in this restricted appeal. We cannot consider these documents in deciding this appeal.[1] See Gutierrez v. Draheim, No. 04-06-00802-CV, 2007 WL 2608579, at *1 (Tex. App.-San Antonio Sept. 12, 2007, no pet.) (concluding that documents attached to the appellant's brief constituted extrinsic evidence that could not be considered in a restricted appeal). Because Molina bases his argument on documents outside of the record, we conclude that he has failed to establish error apparent on the face of the record.[2]

         The record in this case shows only that the trial court issued notice of its intent to dismiss cause number 391399, retained cause number 391399 on its docket, issued a second notice of its intent to dismiss cause number 391399, and then dismissed cause number 391399. No ...


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