Opinion
NO. 01-14-00007-CV
02-16-2017
SAMSHI HOMES, L.L.C., Appellant v. HARRIS COUNTY APPRAISAL DISTRICT, Appellee
On Appeal from the 133rd District Court Harris County, Texas
Trial Court Case No. 2009-28398
MEMORANDUM OPINION
The trial court dismissed Samshi Homes, L.L.C.'s suit against Harris County Appraisal District (HCAD) for want of prosecution. Samshi appeals the dismissal, contending in two issues that the trial court erred (1) by failing to conduct a hearing on Samshi's verified motion to reinstate the suit and (2) by failing to reinstate the case. Because the trial court erred when it failed to conduct a hearing on Samshi's verified motion to reinstate, we reverse and remand the case for the trial court to hold a hearing on the motion.
Background
In May 2009, Samshi filed suit, seeking judicial review of the county appraisal board's final decision regarding the valuation of Samshi's real property for tax year 2008. The final decision was based on an appraisal by HCAD, which Samshi claimed was "grossly excessive." HCAD filed an answer, generally denying the claims.
Samshi amended its petition in March 2010, adding a complaint regarding tax year 2009. Later that year, Samshi notified the trial court that it had filed Chapter 11 bankruptcy, staying the tax suit. The suit was placed back on the trial court's active docket in January 2012 after the bankruptcy action was dismissed.
In May 2012, Samshi amended its petition a second time, adding complaints regarding the appraisal of its property for tax years 2010 and 2011. Three months later, in August 2012, Samshi sent a letter to the trial court, stating that it was agreeable to mediation.
One year later, in August 2013, the trial court sent notice to Samshi, indicating that the case would be dismissed. The trial court signed an order dismissing the case for want of prosecution on September 19, 2013. Notice was sent to Samshi's attorney regarding the dismissal.
On October 18, 2013, Samshi filed a motion to reinstate the case. In the motion, Samshi's attorney attested that he had not received the August 2013 dismissal notice. The attorney explained that, in August 2013, he had been "in the process of moving his law practice." Also at that time, he had "spent much time away from work due to his step-father's final illness." The attorney verified the motion to reinstate with his affidavit.
Samshi filed a request for a hearing on its verified motion to reinstate. However, the trial court did not conduct a hearing on the motion nor did it sign an order regarding the motion. The verified motion to reinstate was overruled by operation of law.
When a motion to reinstate is not decided by signed order within seventy-five days after the judgment is signed, the motion is deemed overruled by operation of law. TEX. R. CIV. P. 165a(3).
Samshi then appealed. In two issues, Samshi asserts that the trial court erred (1) by failing to conduct a hearing on Samshi's motion to reinstate and (2) by not reinstating the case.
Samshi filed its notice of appeal on December 18, 2013. Several months later, Samshi notified this Court that it had filed for bankruptcy, staying the appeal. After the bankruptcy action was dismissed, the appeal was reinstated in August 2016.
HCAD expressly waived its right to file an appellee's brief.
Motion to Reinstate
A party seeking to reinstate a case dismissed for want of prosecution must timely file a verified motion to reinstate. See TEX. R. CIV. P. 165a(3); Martinez v. Benavides, No. 01-14-00269-CV, 2015 WL 1501793, at *5 (Tex. App.—Houston [1st Dist.] Mar. 31, 2015, no pet.) (mem. op.). Rule of Civil Procedure 165a(3) provides that the motion must be filed within 30 days after the order of dismissal was signed, and it must be verified by the movant or by its attorney. See TEX. R. CIV. P. 165a(3); Martinez, 2015 WL 1501793, at *5. Rule 165a(3) requires that the trial court "set a hearing on the motion as soon as practicable." TEX. R. CIV. P. 165a(3). The requirement is mandatory; a trial court has no discretion to fail to hold an oral hearing on a timely filed, properly verified motion to reinstate. Thordson v. City of Houston, 815 S.W.2d 550, 550 (Tex. 1991); Martinez, 2015 WL 1501793, at *5.
We conclude that the trial court erred in failing to hold an oral hearing on Samshi's motion to reinstate. Samshi timely filed the motion within 30 days of the dismissal order. See TEX. R. CIV. P. 165a(3). And the motion was properly verified by the affidavit of Samshi's attorney. See id. Thus, the trial court had no discretion to fail to hold an oral hearing on the motion. See id.; see also Thordson, 815 S.W.2d at 550 (holding trial court has no discretion to deny oral hearing on timely filed, properly verified motion to reinstate).
We sustain Samshi's first issue.
Because we are remanding for the trial court to conduct a hearing on the motion to reinstate, Samshi's second issue, asserting that the trial court erred by failing to reinstate the case, is not ripe for our review.
Conclusion
We reverse the order overruling the motion to reinstate, rendered by operation of law, and remand this case to the trial court to conduct a hearing on the motion to reinstate as required by Rule 165a(3). See TEX. R. CIV. P. 165a(3); see also Martinez, 2015 WL 1501793, at *5 (remanding for hearing on motion to reinstate); George v. State, No. 06-11-00071-CV, 2012 WL 112656, at *2 (Tex. App.—Texarkana Jan. 13, 2012, no pet.) (mem. op.) (same).
Laura Carter Higley
Justice Panel consists of Justices Jennings, Higley, and Massengale.