Saturday, March 28, 2009

Restricted Appeal: What is error on the face of the record?

Texas Supreme Court says absence of evidence of notice not sufficient to satisfy the requirement that error appear on the face of the record, even if clerk of the court below confirms in writing absence of evidence that proper notice of intent to dismiss was given).

Ginn v. Forrester, (Tex. 2009)
No. 08-0163 (Tex. Mar. 27, 2009)(per curiam)(absence of evidence of notice insufficient to meet requirement of error on face of the record for purpose of restricted appeal f/k/a writ of error).

FROM THE OPINION: A restricted appeal requires error that is apparent on the face of the record; error that is merely inferred will not suffice. In this case, the clerk’s supplemental record contains a notation that the clerk’s office was unable to locate documents indicating notice was sent or a hearing was held on the trial court’s dismissal for want of prosecution. Construing the notation as affirmative evidence that the trial court failed to provide notice, a divided court of appeals concluded the requirements for a restricted appeal were met. ___ S.W.3d ___. Because the clerk has no affirmative duty to record the giving of notice, however, a statement that the record reflects none cannot establish error on the face of the record. Accordingly, we reverse the court of appeals’ judgment and render judgment dismissing the case.
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[Appellant] Forrester contends, and the court of appeals held, that the clerk’s notation in the trial record that the clerk’s office was “[u]nable to locate other items requested” affirmatively reveals that the trial court failed to notify Forrester of its intent to dismiss the case. Because the clerk’s notation is in writing and appears in the record, Forrester asserts, the record as to notice is not silent but rather demonstrates on its face that no notice was given. According to Forrester, the clerk’s notation comports with the requirements we have articulated for a restricted appeal. We fail to see the distinction, however, between a record that is silent and a record that contains a written notation that the record is silent; either way, proof of error is absent.

EMMANUEL GINN, A&R TRANSPORT, INC., KEITH JACKSON, STEVE BRANTLEY v. JEFFFORRESTER AND KIM FORRESTER; from Harris County; 14th district (14-06-00549-CV, ___ SW3d ___, 01-10-08) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and withouthearing oral argument, the Court reverses the court of appeals’ judgment and renders judgment. Per Curiam Opinion

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