Shamsher Medih Chisti v. Sana Chisti AKA Kiran Wilwerding

Opinion issued March 3, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-13-00780-CV
———————————
SHAMSHER MEDIH CHISTI, Appellant
V.
SANA CHISTI aka KIRAN WILWERDING, Appellee

On Appeal from the 257th District Court
Harris County, Texas
Trial Court Cause No. 2013-12431

MEMORANDUM OPINION

Shamsher Medih Chisti filed a bill of review to set aside a divorce decree.

The trial court dismissed his case for want of prosecution. On appeal, Chisti

contends that the trial court erred because it did not give adequate notice of its

intent to dismiss the case for failure to pay the filing fee. We reverse and remand.
 Background

In 2006, Sana Chisti (Kiran Wilwerding) and Shamsher Chisti divorced. In

2013, proceeding pro se, Shamsher Chisti filed a bill of review to set aside the

divorce decree; with it, he presented an affidavit of inability to pay filing fees. The

Harris County District Clerk contested the affidavit. In May 2013, the trial court

held a hearing on the contest to Shamsher’s affidavit. Shamsher did not appear.

The trial court sustained the contest and ordered Shamsher to pay filing fees and

court costs by June 7, 2013 to avoid dismissal for want of prosecution. Shamsher

did not pay the fees or costs, and the court dismissed the case on June 10 for want

of prosecution.

On June 24, Shamsher filed a verified motion to reinstate the case. In his

motion, he contended that he had not received notice of the trial court’s intent to

dismiss the case. Though Shamsher requested a hearing on the motion to reinstate,

the trial court did not set one. The court did not sign a written order ruling on the

motion; it was overruled by operation of law. See TEX. R. CIV. P. 165a(3).

There is no appellee’s brief: Sana Chisti was never served and thus has not

appeared in the suit. The District Clerk did not file an appellee’s brief.

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 Discussion

Standard of Review

We apply an abuse of discretion standard to a court’s ruling on a motion to

reinstate. Smith v. Babcock & Wilcox Constr. Co., Inc., 913 S.W.2d 467, 468 (Tex.

1995) (per curiam). We also review the trial court’s dismissal for want of

prosecution for an abuse of discretion. MacGregor v. Rich, 941 S.W.2d 74, 75

(Tex. 1997) (per curiam).

Analysis

Once a case is dismissed for want of prosecution, a party may file a verified

motion to reinstate within “30 days after the order of dismissal is signed.” TEX. R.

CIV. P. 165a(3). “The court shall reinstate the case upon finding after a hearing

that the failure of the party . . . was not intentional or the result of conscious

indifference but was due to an accident or mistake or that the failure has been

otherwise reasonably explained.” Id.

Rule 165a(3) provides that, upon receiving a motion to reinstate the case, the

trial court “shall set a hearing on the motion as soon as practicable.” Id. It is “not

within the trial court’s discretion to determine whether to set a hearing on the

motion to reinstate.” Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex.

1991) (per curiam); Rohus v. Licona, 942 S.W.2d 111, 112 (Tex. App.—Houston

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[1st Dist.] 1997, no writ) (“The language of rule 165a does not allow the trial court

discretion in whether to set a hearing on motions for reinstatement.”).

As ground for reinstatement, Shamsher contends that the trial court did not

serve him with notice of its intent to dismiss the case for want of prosecution.

Pursuant to Rule 165a, “Notice of the court’s intention to dismiss and the date and

place of the dismissal hearing shall be sent by the clerk to . . . each party not

represented by an attorney. . . .” TEX. R. CIV. P. 165a(1). A notice of intent to

dismiss does not comply with Rule 165a if it does not also provide the date and

place of the dismissal hearing. Rohus, 942 S.W.2d at 112.

A trial court has the inherent power to dismiss independently of the rules of

procedure if a plaintiff does not prosecute his case with due diligence. Villarreal v.

San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). A party must be

given notice and an opportunity to be heard, however, before a court may dismiss.

Id. “The failure to provide adequate notice of the trial court’s intent to dismiss for

want of prosecution requires reversal.” Id. When an appellant has the opportunity

to move for reinstatement, he waives any due process rights if he fails to move to

reinstate. Wright v. Tex. Dep’t of Crim. Justice – Inst’l Div., 137 S.W.3d 693, 695

(Tex. App.—Houston [1st Dist.] 2004, no pet.).

The record does not contain notification to Shamsher of the court’s intent to

dismiss his case. Shamsher received a notification that, on May 7, 2013, an “order

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[was] signed denying [the] pauper’s oath” and an “order [was] signed setting [a]

hearing.” The notification did not state the type of hearing, date, time, or place,

and it did not state that the court would dismiss the case on June 7, 2013 if

Shamsher had not paid court costs by that date.

After receiving notice of the dismissal, Shamsher filed a verified motion to

reinstate within 30 days of the dismissal and requested a hearing. The record does

not reflect that a hearing occurred on Shamsher’s motion to reinstate, but in the

motion, Shamsher observes that he did not receive notice from the trial court of its

intent to dismiss the suit for want of prosecution absent payment of the filing fees.

Because Shamsher moved for reinstatement within 30 days of the dismissal

in response to notification that the trial court had dismissed the case and

demonstrated a lack of notice of its intent to dismiss, he did not waive his right to

due process. See Wright, 137 S.W.3d at 695. We hold that the failure to notify

Shamsher of the trial court’s intent to dismiss his case for want of prosecution with

the date or place of the dismissal hearing is reversible error, preserved by

Shamsher’s motion to reinstate, which was overruled by operation of law. See

TEX. R. CIV. P. 165a; Villarreal, 994 S.W.2d at 630; Rohus, 942 S.W.2d at 112.

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 Conclusion

We reverse the trial court’s dismissal for want of prosecution and remand

the case to the trial court.

Jane Bland
Justice

Panel consists of Justices Keyes, Bland, and Massengale.

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