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Dhanani v. J & N Global Construction LLC

Court of Appeals of Texas, First District

July 2, 2019

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

          Panel consists of Justices Lloyd, Landau, and Countiss.

          MEMORANDUM OPINION

          JULIE COUNTISS JUSTICE

         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).

         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 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; Fo ...


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