Cunningham v. Smith, 02-25-00195-CV, February 26, 2026.
On appeal from the 348th District Court, Tarrant County, Texas.
Synopsis
The Second Court of Appeals affirmed a trial court’s dismissal for want of prosecution, holding that an incarcerated litigant waives any due process challenge to a dismissal if he fails to file a verified motion to reinstate under Rule 165a(3) despite having notice of the dismissal order. The court further held that a trial court does not abuse its discretion in dismissing a case when a party fails to appear at a properly noticed dismissal hearing and fails to timely file a motion to retain.
Relevance to Family Law
Family law practitioners frequently encounter pro se litigation initiated by incarcerated individuals, particularly in the context of suits affecting the parent-child relationship (SAPCR) or “zombie” divorce filings that languish on the docket for years. This case provides a roadmap for securing—and defending—a dismissal for want of prosecution (DWOP) in these scenarios. It reinforces that incarceration does not excuse a litigant from the procedural rigors of Texas Rule of Civil Procedure 165a or the requirement to preserve error via a motion to reinstate. For the respondent’s counsel, this opinion is a powerful tool to finalize cases where an inmate-petitioner has failed to exercise due diligence or follow the trial court’s scheduling orders.
Case Summary
Fact Summary
Rashaan Cunningham, an inmate, filed a legal malpractice suit against his former criminal defense counsel in July 2024. The record indicates the defendant was never served, and no answer was filed. In December 2024, the 348th District Court issued a Notice of Intent to Dismiss, setting a dismissal hearing for March 12, 2025, and requiring any motion to retain to be filed by March 5, 2025. Although Cunningham claimed to have mailed his motion to retain on March 3, it was not file-stamped until March 10. On the date of the hearing, no one appeared. The trial court subsequently dismissed the case for want of prosecution, finding no good cause for retention and noting the untimely filing of the motion to retain. Cunningham learned of the dismissal within 30 days but chose to file a notice of appeal rather than a motion to reinstate.
Issues Decided
- Whether a trial court violates a litigant’s due process rights by dismissing a case for want of prosecution without considering an untimely filed motion to retain.
- Whether a trial court abuses its discretion by dismissing a case when the plaintiff is incarcerated and fails to appear at the dismissal hearing.
Rules Applied
- Texas Rule of Civil Procedure 165a(1): Authorizes dismissal for the failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice.
- Inherent Power to Dismiss: Common law vests trial courts with the authority to dismiss cases when a plaintiff fails to prosecute with due diligence, independent of statutory or procedural rules.
- Texas Rule of Civil Procedure 5 (Mailbox Rule): Provides that a document is timely if it is sent via the U.S. Postal Service (or prison mail system for inmates) on or before the deadline and received within ten days.
- Texas Rule of Civil Procedure 165a(3): Dictates the procedure for reinstatement, requiring a verified motion to be filed within 30 days of the dismissal order.
- Waiver of Error: Due process complaints regarding dismissal are waived if the party has the time and opportunity to file a motion to reinstate but fails to do so.
Application
The Second Court of Appeals focused heavily on the procedural default of the appellant. While Cunningham argued that his motion to retain should have been deemed timely under the “mailbox rule,” the court determined it did not need to reach the merits of that argument. Because Cunningham admitted he had notice of the dismissal within 30 days, his remedy was to file a verified motion to reinstate under Rule 165a(3). A reinstatement hearing would have allowed Cunningham to “develop facts” regarding his diligence and the timing of his mailing. By bypassing the trial court and moving directly to an appeal, he deprived the trial court of the chance to correct any potential error.
Regarding the dismissal itself, the court noted that the trial court possessed both the authority under Rule 165a(1) (failure to appear) and its inherent authority (failure to prosecute with diligence). Since Cunningham did not appear at the dismissal hearing and had not requested a bench warrant or alternative means of participation, the trial court acted within its discretion.
Holding
The Court of Appeals affirmed the dismissal. On the first issue, the court held that Cunningham waived his due process complaint by failing to file a motion to reinstate. The court emphasized that the reinstatement procedure is the designated vehicle for explaining why a case should not be dismissed, and failure to utilize it prevents the party from complaining about notice or procedural defects on appeal.
On the second issue, the court held there was no abuse of discretion. The trial court provided adequate notice of its intent to dismiss and the specific grounds. Because the appellant failed to appear and failed to show good cause for retention through a timely motion, the trial court’s decision was neither arbitrary nor unreasonable.
Practical Application
For family law litigators, this case highlights a critical strategic fork in the road when dealing with pro se or incarcerated opponents:
- Preserving the Win: If you obtain a DWOP against an opposing party, monitor the 30-day window for a motion to reinstate. If they file a notice of appeal instead of a verified motion to reinstate, their due process arguments regarding the dismissal are likely dead on arrival.
- Diligence Requirements: Incarceration is not an automatic excuse for inactivity. If an inmate-petitioner fails to request a bench warrant or a hearing via Zoom/telephone for a dismissal docket, they haven’t met their burden of diligence.
- The Mailbox Rule Trap: Even if an inmate invokes Rule 5 to excuse a late filing, they must still explain the “failure to appear” aspect of Rule 165a(1). A motion to retain is not a substitute for an appearance.
Checklists
Defending a Dismissal on Appeal
- Verify Notice: Ensure the record shows the clerk sent the DWOP notice to the correct address.
- Check Reinstatement Status: Confirm whether the appellant filed a verified motion to reinstate within 30 days of the signed order.
- Analyze Waiver: If no motion to reinstate was filed, lead your responsive brief with a waiver argument regarding due process and notice.
- Identify Grounds: Argue that the dismissal is supported by Rule 165a(1) (failure to appear) and inherent authority (lack of diligence).
Avoiding DWOP (For the Petitioner)
- Calendar the Retention Deadline: Ensure the motion to retain is filed well before the deadline, regardless of the mailbox rule.
- Request Alternative Appearance: If the client is incarcerated or unavailable, file a motion for a bench warrant or a motion to appear via remote technology specifically for the dismissal hearing.
- Verify the Motion: Always verify a motion to reinstate; an unverified motion does not extend the trial court’s plenary power or preserve error in the same manner.
Citation
Cunningham v. Smith, No. 02-25-00195-CV, 2026 WL ______ (Tex. App.—Fort Worth Feb. 26, 2026, no pet.) (mem. op.).
Full Opinion
Family Law Crossover
In Texas family law, the “inmate-litigant” problem often results in cases remaining open for years because trial courts are hesitant to dismiss for fear of violating the constitutional right of access to courts. Cunningham clarifies that these constitutional rights are subject to procedural rules. If an incarcerated parent files a SAPCR to modify custody but fails to move the case forward, the respondent can use Cunningham to advocate for a strict application of Rule 165a.
Specifically, if the inmate fails to appear at the dismissal hearing (even if they filed a motion to retain), the case is ripe for DWOP. If the inmate then fails to file a verified motion to reinstate—which is common for pro se litigants who do not understand the difference between a notice of appeal and a motion to reinstate—the dismissal becomes effectively unappealable on due process grounds. This allows family law practitioners to provide finality for their clients and clear the “ghost” filings that complicate title issues or future custody modifications.
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