law-motion-to-reinstate-after-DWOP | case dismissed for want of prosecution | motion for new trial | JNOV |

MOTION TO REINSTATE CASE ON DOCKET AFTER DISMISSAL FOR WANT OF
PROSECUTION

Under civil procedure rule 165(a)(3) when a verified motion to reinstate has been filed, an oral hearing is
required. Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex. 1991) (per curiam). Failure to hold such a
hearing is an abuse of discretion and requires reversal. Id; see Resurgence v. Foster, 2009 WL 1875568, at *2
(Tex. App.-Dallas July 1, 2009, no pet. )(mem. op.); Reed v. City of Dallas, 774 S.W.2d 384, 385 (Tex. App.-
Dallas, writ denied); NASA 1 Bus. Ctr. v. Am. Nat'l Ins. Co., 747 S.W.2d 36, 38-39 (Tex. App.-Houston [14tht
Dist.] ), writ denied sub. nom. Gulf Coast Inv. Corp. v. NASA 1 Bus. Ctr., 754 S.W.2d 152 (Tex. 1988)(per
curiam) .
Standard of Review We review a dismissal for want of prosecution under an abuse of discretion standard. See
Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); Vann v. Brown, 244 S.W.3d 612,
614 (Tex. App.-Dallas 2008, no pet). We will only disturb a trial court's ruling if the trial court acted “in an
arbitrary or unreasonable manner without reference to any guiding principles.” Downer v. Aquamarine Operators
Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

MOTION TO REINSTATE CASELAW FROM HOUSTON

Lindley v. FIA Card Services, N.A. f/k/a MBNA America Bank, N.A. (Tex.App.- Houston [1st Dist.] Feb. 18, 2010)
(Higley) (
restricted appeal, amount of judgment confirming arbitration award varied from arbitration award, no
evidence supporting modification of amount)
In his first issue, Lindley contends that the trial court erred by reinstating FIA’s suit because FIA failed to comply
with Rule of Civil Procedure 165a.
Rule 165a governs reinstatement after dismissal for want of prosecution. See Tex. R. Civ. P. 165a(3). The
record before us, however, does not reflect that FIA’s suit was dismissed for want of prosecution. The record
reflects that FIA took a non-suit, which is not governed by Rule 165a. Lindley’s issue cannot be sustained on the
grounds he advances. Accordingly, we overrule Lindley’s first issue.
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS:
Opinion by
Justice Higley     
Before Chief Justice Radack, Justices Alcala and Higley    
01-09-00323-CV John R. Lindley v. FIA Card Service, N. A. fka MBNA America Bank, N. A.    
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge:
Hon. Linda Storey   


McCoy v. North Forest ISD (Tex.App.- Houston [14th Dist.] Nov. 15, 2007)(per curiam)
(
motion to reinstate, appellate time-table, dismissal for want of jurisdiction (DWOJ))
DISMISSED: Per Curiam
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-00523-CV Barney L. McCoy v. North Forest independent School District and Janice Jackson
Appeal from County Civil Court at Law No 3 of Harris County (
Hon. Linda Storey)


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