Affirmed and Opinion Filed September 5, 2023

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-22-00061-CV

LAUREN NOVAK AND JUSTIN BEISH, Appellants

V.

STATE FARM LLOYDS, Appellee

On Appeal from the 471st Judicial District Court

Collin County, Texas

Trial Court Cause No. 471-06291-2020

MEMORANDUM OPINION

Before Justices Molberg, Pedersen, III, and Miskel

Opinion by Justice Molberg

Lauren Novak and Justin Beish bring this restricted appeal of the trial court’s 

August 30, 2021, order dismissing their case for want of prosecution and January 6, 

2022, denial of their motion to reinstate.1 We affirm.

 

1 Appellants’ original notice of appeal challenged the denial of their motion to reinstate, which is not

independently appealable. See Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex. 

App.—Houston [1st Dist.] 1999, pet. denied). The notice was untimely as to the original dismissal but was 

filed within six months of that date, so a restricted appeal was possible. At our direction, they filed an 

amended and rule-compliant notice of restricted appeal of the original dismissal order. See TEX. R. APP. P.

30 (restricted appeals).
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To sustain a restricted appeal, appellants must show that (1) the notice of 

restricted appeal was filed within six months after the judgment was signed; (2) they 

were parties to the underlying lawsuit; (3) they did not participate in the hearing that 

resulted in the judgment complained of, 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. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 

2014) (per curiam). The first three requirements are jurisdictional; the fourth is 

merits-based, and therefore, is not jurisdictional. See Ex parte E.H., 602 S.W.3d 

486, 497 (Tex. 2020). 

Though appellants attempted to invoke the civil procedure rule 306a(4) and 

(5) procedure to have the trial court determine the date they received notice of the 

dismissal as October 11, 2021, such that their motion to reinstate was timely and 

properly invoked the court’s jurisdiction, they did not request the trial court to issue 

a ruling to that effect, and the trial court did not do so in any order. “Without a 

finding of the date notice was actually received,” and a written order to that effect, 

the motion to reinstate was untimely. See Nedd-Johnson v. Wells Fargo Bank, N.A., 

338 S.W.3d 612, 612 (Tex. App.—Dallas 2010, no pet.); TEX. R. APP. P. 4.2(c). 

Thus, the face of the record of this restricted appeal indicates that the motion to 

reinstate was untimely, and we disagree with appellants’ argument to the contrary, 

which would deprive this Court of restricted appeal jurisdiction. See Pike-Grant, 

447 S.W.3d at 886. And, because the motion to reinstate was untimely, the trial 
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court could not grant it because the court had lost plenary power. See TEX. R. CIV.

P. 165a(3), 306a(4)–(5); see also In re Dansby, 583 S.W.3d 838, 840 (Tex. App.—

Dallas 2019, orig. proceeding). In any event, we have restricted appeal jurisdiction 

because appellants timely filed a notice of appeal and meet the jurisdictional 

requirements. See TEX. R. APP. P. 30. 

We review a dismissal for want of prosecution for an abuse of discretion, see 

MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997), and because this is a restricted 

appeal, we are confined to the face of the record in our review. See Gen. Elec. Co. 

v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991). This 

means we review “the papers on file with the trial court when it rendered judgment.”

See id. 

Appellants filed their original petition on December 1, 2020, and appellee 

answered December 31, 2020. The next document in the clerk’s record is a notice 

of hearing for August 27, 2021, at 10:00 a.m. in the 471st District Court for 

“Dismissal for Want of Prosecution” that says “THIS HEARING IS BY 

SUBMISSION ONLY. DO NOT APPEAR FOR THE ABOVE SETTING. Instead, 

follow the below instructions.”2 Those instructions were that the case would be 

dismissed for want of prosecution unless, at least 24 hours before the submission 

setting, the parties submit: 

 

2 The index in the clerk’s record indicates a date of January 10, 2021” for this document in the

“FILED/SIGNED” column.
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(a) A nonsuit or a dispositive order signed by all parties; or

(b) An agreed scheduling order, which must include a confirmed trial 

setting obtained from the Court Coordinator; or 

(c) If the parties cannot agree on a trial setting, a joint report identifying 

the trial dates provided by the Court Coordinator and each party’s 

objections to, or conflicts with, the same.

This notice is sufficient.

Appellants devote no direct argument against the original dismissal order, and 

have inadequately briefed this issue. See TEX. R. APP. P. 38.1(i). The issue would 

fail in any event because the record contains the dismissal notice and, though the 

record is silent as to whether notice was provided, the absence from the record of 

affirmative proof that the notice of intent to dismiss was provided establishes no 

error apparent on the face of the record. See Ginn v. Forrester, 282 S.W.3d 430, 

433 (Tex. 2009) (rules require clerk to provide notice of dismissal hearing but no 

“affirmative duty to record the mailing of the required notices”); Alexander v. 

Lynda’s Boutique, 134 S.W.3d 845, 849 (Tex. 2004). 

The order dismissing the case for want of prosecution recited the parties’ 

failure to submit anything referred to in (a) through (c) in the letter above and stated: 

“given that no other motions were set for hearing prior to the dismissal setting, the 

Court finds that the above-numbered and styled case should be dismissed for want 

of prosecution.” The order did not specify whether it was dismissing under rule 165a 

or the court’s inherent authority, requiring appellants to negate all possible grounds 
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for dismissal. See Villareal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 

(Tex. 1999); Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 3 (Tex. App.—Houston 

[14th Dist.] 2006, pet. denied) (op. on reh’g). They have not done so, and the record 

does not indicate that appellants took any action to prosecute the case in the nearly 

nine months after filing, despite the trial court’s explicit directions in the dismissal 

hearing notice. On this basis, we conclude the face of the record provides 

justification for the trial court’s decision to dismiss this case for want of prosecution. 

See Alexander, 134 S.W.3d at 852.

Appellants’ arguments for reinstatement would fail as well. Based on civil 

procedure rule 165a(1), they claim that they “intended to appear at the dismissal 

hearing but missed the dismissal hearing due to a calendaring mistake.” This 

argument has gotten no stronger for its verbatim repetition on appeal. 

Appellants argued below that “calendaring mistakes made unintentionally and 

without conscious indifference are always sufficient grounds to meet” their 

“accident or mistake” burden. See TEX. R. APP. P. 165a(3). At the hearing on the 

motion to reinstate, counsel stated that “[w]e received no notice from the Court of 

any intent to have this case dismissed” but in the next sentence admitted “counsel 

could not appear for the schedule because we had a calendaring issue.” Counsel 

covering the hearing was later “not sure what evidence” they would provide to show 

the calendaring mistake, and never went beyond the conclusory statement that there 

had been a good faith calendaring mistake that prevented appearance at, or 
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performance in advance of, the dismissal hearing. This is insufficient. See Brown 

v. Sanders, No. 02-21-00212-CV, 2022 WL 2071782, at *4 (Tex. App.—Fort Worth 

June 9, 2022, no pet.) (mem. op.) (similar lack of evidence of “counsel’s practices 

relating to calendaring or scheduling”); see also Nichols v. TMJ Co., 742 S.W.2d 

828, 831 (Tex. App.—Dallas 1987, no pet.) (court need not accept unsupported 

conclusory statements). Further, counsel’s affidavit verifying the motion to reinstate 

gave no detail and stated only, as relevant, that “[t]he facts stated in the above motion 

are within my personal knowledge and are true and correct.” See Henderson v. 

Blalock, 465 S.W.3d 318, 323 (Tex. App.—Houston [14th Dist.] 2015, no pet.); cf. 

Rava Square Homeowners Ass’n v. Swan, No. 14-07-00521-CV, 2008 WL 4390437, 

at *2–3 (Tex. App.—Houston [14th Dist.] Sept. 30, 2008, no pet.) (mem. op.) 

(explanatory details in affidavit provided basis for relief from dismissal).

We affirm the judgment of the trial court.

220061f.p05

/Ken Molberg/

KEN MOLBERG

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

LAUREN NOVAK AND JUSTIN 

BEISH, Appellants

No. 05-22-00061-CV V.

STATE FARM LLOYDS, Appellee

On Appeal from the 471st Judicial 

District Court, Collin County, Texas

Trial Court Cause No. 471-06291-

2020.

Opinion delivered by Justice 

Molberg. Justices Pedersen, III and 

Miskel participating.

In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED.

It is ORDERED that appellee STATE FARM LLOYDS recover its costs of 

this appeal from appellants LAUREN NOVAK AND JUSTIN BEISH.

Judgment entered this 5th day of September 2023.