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Anambra State Community In Houston Inc. v. Ulasi

Court of Appeals of Texas, Fourteenth District

April 3, 2018

ANAMBRA STATE COMMUNITY IN HOUSTON, INC. (ANASCO), Appellant
v.
CHRISTIAN CHINWUBA ULASI, INDIVIDUALLY AND AS THE FORMER PRESIDENT OF ANASCO, AND VINCENT N. NWEKE D/B/A ANAMBRA STATE COMMUNITY, HOUSTON, Appellees

          On Appeal from the 80th District Court Harris County, Texas Trial Court Cause No. 2010-68898

          Panel consists of Justices Jamison, Busby, and Donovan.

          MEMORANDUM OPINION

          John Donovan Justice.

         Appellant Anambra State Community in Houston, Inc. (ANASCO) appeals an order denying its motion for reinstatement of case dismissed for want of prosecution. We reverse the trial court's judgment and remand.

          I. Procedural Background[1]

         Appellant filed its original petition in October 2010, alleging claims for fraud and breach of fiduciary duty against appellees Christian Chinwuba Ulasi, individually and as former president of ANASCO, and Vincent N. Nweke d/b/a Anambra State Community, Houston. The parties filed cross motion for summary judgment. In January 2012, on its own motion, the trial court signed an order of dismissal, stating that it appeared this case presents no justiciable controversy within the court's subject matter jurisdiction and, to the extent there is a controversy, the trial court declined to exercise jurisdiction over the claims because they deal with the internal affairs of a non-profit organization. Appellant filed an appeal to this court, and the judgment was affirmed in part, reversed in part, and remanded in part. Anambra State Cmty. in Houston, Inc. v. Ulasi, 412 S.W.3d 786, 788-90 (Tex. App.-Houston [14th Dist.] 2013, no pet.).

         In October 2015, the trial court issued a docket control order/pretrial order.

         On October 5, 2016, the case was called to trial. Attorneys for both sides appeared for trial. The trial court's docket sheet reflects that counsel for appellant had filed a motion to withdraw that was not in compliance with Tex.R.Civ.P. 10 and was never set for submission or oral hearing.[2] Appellant announced that he was not ready for trial because his client was not present but never filed a verified or unverified motion for continuance. Appellees appeared with counsel and witnesses and announced "ready." The trial court dismissed the case for want of prosecution.

         On October 19, 2016, appellant filed a verified motion to reinstate and requested an oral hearing. Appellees filed a response in opposition to reinstatement. On December 9, 2016, the trial court held a hearing and denied appellant's motion to reinstate. On that same date, the trial court filed an amended order of dismissal. Appellant timely filed this appeal.

         II. Analysis

         Appellant raises three issues on appeal: (1) whether the trial court erred in dismissing its case, therefore violating its due process rights; (2) whether the trial court erred by denying its motion to reinstate; and (3) whether appellant's failure to appear at trial was intentional or the result of conscious indifference. Appellant also contests the portion of the trial court's order denying reinstatement wherein appellate attorney's fees are awarded should appellant appeal.

         A. Standard of Review

         We apply an abuse of discretion standard of review to a trial court's dismissal for want of prosecution and denial of a motion to reinstate. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam) (dismissal for want of prosecution); Smith v. Babcock & Wilcox Constr. Co., Inc., 913 S.W.2d 467, 467 (Tex. 1995) (per curiam) (denial of motion to reinstate). "A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding principles." Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Keough v. Cyrus USA, Inc., 204 S.W.3d 1, 3 (Tex. App.-Houston [14th Dist.] 2006, pet. denied.). In reviewing a trial court's dismissal order, ...


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