Court of Appeals of Texas, Fourth District, San Antonio
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
restricted appeal, Galdino Molina challenges the dismissal of
his negligence suit for want of prosecution. We affirm.
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 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.
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
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.
"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).
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.
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. 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.
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 ...