Opinion issued July 2, 2019




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-18-01051-CV
                           ———————————
                        NIKHIL DHANANI, Appellant
                                       V.
   J & N GLOBAL CONSTRUCTION LLC AND WILLIAM ALBERTO
          MIRANDA A/K/A ALBERTO MIRANDA, Appellees


            On Appeal from the County Civil Court at Law No. 4
                          Harris County, Texas
                      Trial Court Case No. 1110032


                         MEMORANDUM OPINION

      Appellant, Nikhil Dhanani, challenges the trial court’s August 7, 2018 order

dismissing his suit against appellees, J & N Global Construction LLC and William

Alberto Miranda, also known as Alberto Miranda (collectively, “appellees”), for
breach of contract and fraud. In his sole issue, Dhanani contends that the trial court

erred in dismissing his suit for want of prosecution and failing to reinstate his case.

      We reverse and remand.

                                      Background

      On May 9, 2018, Dhanani filed his petition, alleging that he entered into a

contract with appellees under which appellees agreed to remove the existing cooler

doors and install twelve new cooler doors at Dhanani’s convenience store. Dhanani

paid appellees $12,000 pursuant to the parties’ agreement. Appellees did not remove

and install the cooler doors as promised, stopped speaking to Dhanani, and did not

refund Dhanani’s money. Dhanani brought suit against appellees for breach of

contract and fraud.

      On August 7, 2018, the trial court dismissed Dhanani’s suit for want of

prosecution.   Dhanani timely filed a motion to reinstate his case, which was

overruled by operation of law.1 See TEX. R. CIV. P. 165a(3).


1
      On November 29, 2018, the trial court signed an order granting Dhanani’s motion
      to reinstate and ordering that his case be reinstated and returned to the trial court’s
      active docket. See TEX. R. CIV. P. 165a(3). However, the trial court’s plenary power
      expired on November 21, 2018. See id. (if motion for reinstatement not decided by
      signed, written order within seventy-five days after judgment signed, motion
      deemed overruled by operation of law; trial court has plenary power to reinstate case
      until thirty days after timely motion to reinstate has been overruled, either by
      written, signed order or operation of law, whichever occurs first); S. Main Bank v.
      Wittig, 909 S.W.2d 243, 244 (Tex. App.—Houston [14th Dist.] 1995, no writ) (“A
      verified motion to reinstate extends the trial court’s plenary power until 30 days
      after such [a] timely filed motion[] [is] overruled, either by a written, signed order
      or by operation of law.”). Because the trial court signed the order reinstating
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                                 Standard of Review

      The decision to dismiss a case for want of prosecution rests within the sound

discretion of the trial court, and we will disturb this decision only if it amounts to a

clear abuse of discretion. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); Fox

v. Wardy, 225 S.W.3d 198, 199–200 (Tex. App.—El Paso 2005, pet. denied); see

also Franklin v. Sherman Indep. Sch. Dist., 53 S.W.3d 398, 401–02 (Tex. App.—

Dallas 2001 pet. denied) (denial of motion to reinstate also reviewed for abuse of

discretion). A trial court abuses its discretion when it acts in an arbitrary and

unreasonable manner, without reference to any guiding rules or principles. Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); Fox, 225

S.W.3d at 200.

      If the order dismissing a suit does not specify a reason for the dismissal, we

will affirm if any proper ground supports the dismissal. See Herrera v. Rivera, 281

S.W.3d 1, 6 (Tex. App.—El Paso 2005, no pet.); City of Hous. v. Thomas, 838

S.W.2d 296, 297 (Tex. App.—Houston [1st Dist.] 1992, no writ). The appellant

bears the burden of presenting a record demonstrating that the trial court abused its




      Dhanani’s case after its plenary power had expired, the order is void. See Walker v.
      Harrison, 597 S.W.2d 913, 915 (Tex. 1980); Wittig, 909 S.W.2d at 244 (“An order
      of reinstatement entered after the expiration of the court’s plenary power is void
      because the trial court is without jurisdiction.”).

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discretion in dismissing his case. See Simon v. York Crane & Rigging Co., 739

S.W.2d 793, 795 (Tex. 1987); Herrera, 281 S.W.3d at 6.

                                      Dismissal

      In his sole issue, Dhanani argues that the trial court erred in dismissing his

suit for want of prosecution and failing to grant his motion to reinstate because the

trial court did not give him warning or notice of its intention to dismiss his suit for

want of prosecution.

      The trial court’s authority to dismiss a case for want of prosecution stems from

two sources: (1) Texas Rule of Civil Procedure 165a and (2) the court’s inherent

power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).

Under Rule 165a, a trial court may dismiss a civil suit for want of prosecution when

a party seeking affirmative relief fails to appear for a hearing or trial of which the

party had notice or when the case is not disposed of within the time standards

proscribed by Texas Supreme Court. See TEX. R. CIV. P. 165a(1)–(2); Villarreal,

994 S.W.2d at 630. The trial court also has the inherent power to dismiss a civil suit

when a plaintiff fails to prosecute his case with due diligence. See Villarreal, 994

S.W.2d at 630; Fox, 225 S.W.3d at 199. This authority stems from the trial court’s

power to maintain and control its docket. Maida v. Fire Ins. Exch., 990 S.W.2d 836,

839 (Tex. App.—Fort Worth 1999, no pet.).




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      A party must be provided with notice and an opportunity to be heard before a

trial court may dismiss a case for want of prosecution under either Rule 165a or its

inherent authority. TEX. R. CIV. P. 165a(1); Villarreal, 994 S.W.2d at 630; see also

Chisti v. Chisti, No. 01-13-00780-CV, 2015 WL 967715, at *2 (Tex. App.—Houston

[1st Dist.] Mar. 3, 2015, no pet.) (mem. op.); Gonzalez v. Pena, No.

04-16-00668-CV, 2017 WL 3270406, at *2 (Tex. App.—San Antonio Aug. 2, 2017,

no pet.) (mem. op.). As Rule 165a provides, in pertinent part:

      Notice of the court’s intention to dismiss and the date and place of the
      dismissal hearing shall be sent by the clerk to each attorney of record,
      and to each party not represented by an attorney and whose address is
      shown on the docket or in the papers on file, by posting same in the
      United States Postal Service.

TEX. R. CIV. P. 165a(1).

      A trial court’s failure to provide adequate notice of its intent to dismiss

requires reversal because a party’s due process rights have been violated. Villarreal,

994 S.W.2d at 630–31; Gonzalez, 2017 WL 3270406, at *2. When an appellant has

the opportunity to move for reinstatement, he waives any due process rights if he

fails to move to reinstate his case. Wright v. Tex. Dep’t of Criminal Justice–

Institutional Div., 137 S.W.3d 693, 695 (Tex. App.—Houston [1st Dist.] 2004, no

pet.); see also Chisti, 2015 WL 967715, at *2.

      Here, the record does not contain notification to Dhanani of the trial court’s

intention to dismiss his case under either Rule 165a or its inherent authority. See


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Chisti, 2015 WL 967715, at *2. Instead, the only notice contained in the record is a

notice from August 7, 2018 stating that the trial court had signed a dismissal order

on that day. See id.

      After receiving notice of the trial court’s dismissal order, Dhanani filed a

timely verified motion to reinstate within thirty days of the dismissal order and

requested a hearing. See id. In his motion to reinstate, Dhanani explained that he

did not receive notice from the trial court of its intention to dismiss his suit for want

of prosecution. See id. Dhanani’s motion to reinstate was overruled, without a

hearing, by operation of law on October 22, 2018.2 See TEX. R. CIV. P. 165a(3); see

also TEX. R. CIV. P. 4.




2
      Although the trial court appears to have held a hearing on Dhanani’s motion to
      reinstate on November 5, 2018, this hearing was held after the motion had been
      overruled by operation of law. See TEX. R. CIV. P. 165a(3); see also TEX. R. CIV.
      P. 4. This fact distinguishes the instant case from other cases where we have
      explained that when a trial court holds a timely hearing on an appellant’s motion to
      reinstate and considers the appellant’s arguments for reinstatement, any due process
      concerns have been remedied. See, e.g., Templos v. Ford Motor Co., No.
      01-12-00636-CV, 2013 WL 2948316, at *1–3 (Tex. App.—Houston [1st Dist.] June
      11, 2013, no pet.) (mem. op.) (trial court denied motion to reinstate on merits after
      holding timely hearing; motion not overruled by operation of law prior to hearing);
      Wilson v. Wilson, No. 01-06-00908-CV, 2010 WL 2545579, at *3, *8 (Tex. App.—
      Houston [1st Dist.] June 24, 2010, no pet.) (mem. op.); Chambers v. O’Quinn, 305
      S.W.3d 141, 153 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); Luna v. United
      Parcel Serv., Inc., No. 01-02-00144-CV, 2003 WL 139592, at *1–3 (Tex. App.—
      Houston [1st Dist.] Jan. 9, 2003, pet. denied) (not designated by publication); see
      also Jimenz v. Transwestern Prop. Co., 999 S.W.2d 125, 128–29 (Tex. App.—
      Houston [14th Dist.] 1999, no pet.).
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      Because Dhanani moved for reinstatement of his suit within thirty days of the

trial court’s dismissal in response to notification that the trial court had dismissed

his suit for want of prosecution and demonstrated a lack of notice of the trial court’s

intention to dismiss, he did not waive any argument that his due process rights were

violated. See Chisti, 2015 WL 967715, at *2; cf. Wright, 137 S.W.3d at 695.

Accordingly, we hold that the trial court erred in dismissing Dhanani’s suit for want

of prosecution without providing notice of its intention to dismiss, and Dhanani

preserved that error by filing his motion to reinstate, which was overruled by

operation of law. See Chisti, 2015 WL 967715, at *2.

      We sustain Dhanani’s sole issue.

                                     Conclusion

      We reverse the trial court’s dismissal order and remand the case to the trial

court for reinstatement and further proceedings consistent with this opinion.




                                              Julie Countiss
                                              Justice

Panel consists of Justices Lloyd, Landau, and Countiss.




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