Appeal from the County Civil Court at Law No. 4 Harris
County, Texas Trial Court Case No. 1110032
consists of Justices Lloyd, Landau, and Countiss.
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.
reverse and remand.
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.
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
See Tex. R. Civ. P. 165a(3).
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
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 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.
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.
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; Fo ...