Sweed v. Nye
2011 Tex. App. LEXIS 6840
| Tex. App. | 2011Background
- Sweed filed suit on August 12, 2005 against Nye, Esparza, the Office of the District Attorney, the State of Texas, and the Texas Attorney General for malicious prosecution and false imprisonment.
- Sweed updated his address to the El Paso County Jail Annex on August 31, 2006 and later listed the El Paso County Jail as his address in a October 2006 motion.
- Notice of hearings and the dismissal were sent to Sweed at the Danny Drive address, which was previously updated but subsequently deemed undeliverable.
- On November 6, 2006 the district court dismissed for want of prosecution; the prior notice to the Danny Drive address was undeliverable, and a dismissal notice was later sent to the 12501 Montana Jail Annex.
- Sweed sought a restricted appeal; after initial timeliness issues, the Supreme Court remanded, and this court reviews the restricted appeal on the merits.
- The core issue is whether Sweed received proper notice of the dismissal, as required for due process, and thus whether the dismissal was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sweed received proper notice of dismissal. | Sweed did not receive proper notice due to address updates. | Appellees contend the dismissal was proper as frivolous or for want of prosecution. | Notice was inadequate on the face of the record; reversal and remand. |
| Whether the dismissal was for want of prosecution properly grounded. | Sweed challenges the basis for dismissal given improper notice. | The dismissal was based on want of prosecution per Rule 165a and inherent power. | Record shows dismissal based solely on want of prosecution; improper notice requires reversal. |
| Whether the court should affirm on any ground other than the one raised. | No alternative ground supported by the record. | Dismissal could be sustained on different grounds. | Cannot affirm on grounds not stated in the motion; only issue is notice. |
Key Cases Cited
- Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628 (Tex. 1999) (trial court must give notice of dismissal under Rule 165a(1) or inherent power)
- Alexander v. Lynda's Boutique, 134 S.W.3d 845 (Tex. 2004) (requirements for restricted appeal elements)
- Dickerson v. Sonat Exploration Co., 975 S.W.2d 339 (Tex. App.-Tyler 1998) (notice adequacy when address information updates exist)
- General Motors Acceptance Corp. v. City of Houston, 857 S.W.2d 731 (Tex. App.-Houston (14th Dist.) 1993) (notice to current address required; improper notice constitutes error on record)
- Transoceanic Shipping Co., Inc. v. General Universal Systems, Inc., 961 S.W.2d 418 (Tex. App.-Houston (1st Dist.) 1997) (notice mailed to former address when current address on file; error on face of record)