                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00113-CV



      PNC EQUIPMENT FINANCE, LLC, Appellant

                           V.

        MATTHEW WARD HANNA, Appellee



         On Appeal from the 62nd District Court
               Hopkins County, Texas
              Trial Court No. CV-41330




      Before Morriss, C.J., Burgess and Stevens, JJ.
                                           ORDER

       PNC Equipment Finance, LLC (PNC), sued Matthew Ward Hanna to recover sums owed

under certain lease and loan/lease Agreements. Hanna filed a motion to dismiss for want of

prosecution, which the trial court granted. PNC filed a verified motion to reinstate, which the trial

court denied without a hearing. In this appeal, PNC asserts that the trial court abused its discretion

in dismissing its claims, in denying its motion to reinstate, and in denying its request for a hearing

on its motion to reinstate. Because the trial court’s error in denying a hearing on PNC’s motion to

reinstate prevents the proper presentation of this case on appeal, we abate this case and remand it

to the trial court to conduct a hearing on PNC’s motion to reinstate. See TEX. R. APP. P. 44.4;

Roush v. Metro. Life Ins. Co., 551 S.W.3d 903, 904–05 (Tex. App.—Amarillo 2018, no pet.).

       “Rule 165a(3) provides that a judge shall set a hearing on a motion to reinstate as soon as

practicable and notify all parties or their attorneys of record of the date, time, and place of the

hearing.” Matheson v. Am. Carbonics, 867 S.W.2d 146, 147 (Tex. App.—Texarkana 1993, no

writ) (citing TEX. R. CIV. P. 165a(3)). The Texas Supreme Court has held that it is not within a

trial court’s discretion to fail to hold an oral hearing on the motion to reinstate and that the rule

requires an oral hearing on any timely motion to reinstate filed under Rule 165a. Thordson v. City

of Houston, 815 S.W.2d 550, 550 (Tex. 1991) (per curiam); Gulf Coast Inv. Corp. v. NASA 1 Bus.

Ctr., 754 S.W.2d 152, 153 (Tex. 1988) (per curiam); Matheson, 867 S.W.2d at 147.




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        Rule 44.4 provides:

        (a)    Standard for Reversible Error. A court of appeals must not affirm or
        reverse a judgment or dismiss an appeal if:

               (1)     the trial court’s erroneous action or failure or refusal to act prevents
        the proper presentation of a case to the court of appeals; and

                (2)     the trial court can correct its action or failure to act.

        (b)      Error Affecting Only Part of Case. If the circumstances described in (a)
        exist, the court of appeals must direct the trial court to correct the error. The court
        of appeals will then proceed as if the erroneous action or failure to act had not
        occurred.

TEX. R. APP. P. 44.4. Since the trial court’s erroneous denial of an oral hearing prevents the proper

presentation of this case in this Court, and the trial court can correct its erroneous action, abatement

of this case and remand to the trial court to conduct an oral hearing on PNC’s motion to reinstate

is the proper course of action. Roush, 551 S.W.3d at 905. See Thordson, 815 S.W.2d at 550

(remanding to trial court to conduct hearing on motion to reinstate).

        We therefore abate this case and remand it to the trial court pursuant to Rule 44.4. Within

thirty days of this order, the trial court shall conduct an oral hearing on PNC’s motion to reinstate.

The court reporter shall make a record of the hearing. Following the hearing, the trial court shall

sign a written order expressing its ruling on the motion to reinstate.

        A supplemental clerk’s record containing the order of the trial court and any findings of

fact and conclusions of law it makes, and a supplemental reporter’s record of the reinstatement

hearing, shall be filed with the Clerk of this Court within thirty days of the conclusion of the trial

court’s hearing. All appellate timetables are stayed and will resume upon our receipt of the

supplemental clerk’s and reporter’s records.
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      IT IS SO ORDERED.


                              BY THE COURT

Date: June 21, 2019




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