steven-l-scherer-michael-joseph-neal-and-total-solutions-inc-v ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-00-00475-CV

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Steven L. Scherer; Michael Joseph Neal; and Total Solutions, Inc., Appellants

v.

International Underwriters Insurance Company and Patti Staha

, Individually and d/b/a Patti Staha Insurance Agency, Appellees

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT NO. 96-07645, HONORABLE PAUL R. DAVIS, JR. JUDGE PRESIDING

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Steven L. Scherer, Michael Joseph Neal, and Total Solutions, Inc. ("appellants") appeal from the district court's order dismissing their suit for want of prosecution. Appellee Patti Staha d/b/a Patti Staha Insurance Agency ("Staha") moves that this Court dismiss the appeal for want of jurisdiction. We will grant the motion to dismiss.

Background

In July 1991, appellants allegedly purchased a policy of general liability insurance from International Underwriters Insurance Company ("International"). Staha was the insurance agent in the transaction. On March 22, 1993, the Texas Commissioner of Insurance declared International an impaired insurer. In June 1993, appellants brought suit against Staha and International (collectively, "appellees") in Dallas County district court ("the Dallas court") regarding coverage under their insurance policy. The parties pursued pre-trial discovery during the subsequent four months. On October 6, 1993, the Dallas court ordered the case be dismissed for want of prosecution because appellants' counsel failed to attend a disposition conference. The case was reinstated shortly thereafter at the request of appellants.

In March 1994, appellants amended their petition to name the Texas Property and Casualty Insurance Guaranty Association ("Guaranty") as an additional defendant in the suit. Guaranty filed a motion to transfer venue to Travis County and the Dallas court granted the motion. On January 20, 1995, the Dallas court entered an order requiring appellants to pay the transfer costs of $34.00 within twenty days. Appellants did not timely pay the costs, and the Dallas court clerk retained the file. The Travis County district clerk did not receive the case until July 1, 1996, more than seventeen months later. The record shows no activity took place in the lawsuit during that time.

On September 23, 1996, Guaranty filed a motion for partial summary judgment, which was granted. The claims against Guaranty were severed from those remaining in this matter, making the summary judgment final as to Guaranty. Appellants appealed the summary judgment. This Court affirmed the district court's judgment, and the Texas Supreme Court denied appellants' petition for review. Scherer v. Texas Prop. & Cas. Guar. Ass'n, 958 S.W.2d 413, 414 (Tex. App.--Austin 1997, pet. denied).

In the meantime, on October 16, 1996, Staha filed a motion to dismiss the remaining claims for want of jurisdiction and, alternatively, for want of prosecution. Appellants again resisted the suit's dismissal, and on December 19, 1997, the Travis County district court ("the district court") denied Staha's motion to dismiss. The record does not reflect any activity in this case between December 1997 and June 1999. On June 8, 1999, this matter was placed on the Travis County district court dismissal docket. On July 16, 1999, appellants moved to retain the case on the docket, pursuant to Rule 11.5 of the Local Rules of Civil Procedure and Rules of Decorum for the District Courts of Travis County. On August 24, 1999, the district court granted the motion to retain. The district court's order required appellants to deliver an alternative dispute resolution certification to the court within ninety days and to submit a proposed scheduling order within 120 days. Appellant did not comply with either requirement.

On April 10, 2000, Staha, the sole remaining defendant, moved to dismiss the case pursuant to Local Rule 11.12 and the order of August 24, 1999. On April 15, appellants responded to Staha's motion and announced that a trial date of May 8 had been set. On April 21, the district court granted the motion to dismiss for want of prosecution. On May 22, appellants filed an unverified motion for reinstatement of the case. The district court did not rule on the motion for reinstatement, and it was accordingly overruled by operation of law. See Tex. R. Civ. P. 165a(3). On July 20, appellants filed a notice of appeal to this Court, asserting that the district court abused its discretion in dismissing this case for want of prosecution. Subsequently, Staha filed a motion to dismiss this appeal for want of jurisdiction because appellants' notice of appeal was not timely filed.

Discussion Pursuant to Texas Rule of Civil Procedure 165a(3), parties may seek to reinstate a case that has been dismissed for want of prosecution by submitting a motion to the district court clerk. Tex. R. Civ. P. 165a(3). The motion "shall set forth the grounds therefor and be verified by the movant or his attorney. It shall be filed with the clerk within 30 days after the order of dismissal is signed . . . ." Id. A proper motion to reinstate must be both verified and filed with the clerk within thirty days of the dismissal order's signing. McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (emphasis added). Generally, a party must file its notice of appeal within thirty days after the trial court signs the judgment. Tex. R. App. P. 26.1. However, a proper motion to reinstate the case pursuant to Rule 165a(3) will extend the deadline for filing a timely appeal to ninety days after the dismissal order is signed. Id. 26.1(a)(3).

Staha concedes that appellants timely filed their motion to reinstate, however, she maintains that the motion was unverified. An unverified motion to reinstate will not extend the time for perfecting an appeal, regardless of whether it is timely filed. Butts v. Capitol City Nursing Home, 705 S.W.2d 696, 697 (Tex. 1986). The record reflects that the motion to reinstate was not verified. Thus, appellants' motion to reinstate was not proper and did not extend the deadline to file a notice of appeal.

This Court lacks jurisdiction over an appeal that is not timely perfected. Grondona v. Sutton, 991 S.W.2d 90, 93 (Tex. App.--Austin 1998, pet. denied). Because appellants did not properly file their motion to reinstate, their notice of appeal should have been filed within thirty days of the dismissal order. Appellants filed their notice of appeal ninety days after the dismissal order. Therefore, this Court does not have jurisdiction to hear this matter, and we grant Staha's motion to dismiss.

Conclusion

Having found that appellants did not timely file their notice of appeal, we dismiss the appeal for want of jurisdiction.

Mack Kidd, Justice

Before Justices Jones, Kidd and Yeakel

Dismissed for Want of Jurisdiction

Filed: December 7, 2000

Do Not Publish

this matter, making the summary judgment final as to Guaranty. Appellants appealed the summary judgment. This Court affirmed the district court's judgment, and the Texas Supreme Court denied appellants' petition for review. Scherer v. Texas Prop. & Cas. Guar. Ass'n, 958 S.W.2d 413, 414 (Tex. App.--Austin 1997, pet. denied).

In the meantime, on October 16, 1996, Staha filed a motion to dismiss the remaining claims for want of jurisdiction and, alternatively, for want of prosecution. Appellants again resisted the suit's dismissal, and on December 19, 1997, the Travis County district court ("the district court") denied Staha's motion to dismiss. The record does not reflect any activity in this case between December 1997 and June 1999. On June 8, 1999, this matter was placed on the Travis County district court dismissal docket. On July 16, 1999, appellants moved to retain the case on the docket, pursuant to Rule 11.5 of the Local Rules of Civil Procedure and Rules of Decorum for the District Courts of Travis County. On August 24, 1999, the district court granted the motion to retain. The district court's order required appellants to deliver an alternative dispute resolution certification to the court within ninety days and to submit a proposed scheduling order within 120 days. Appellant did not comply with either requirement.

On April 10, 2000, Staha, the sole remaining defendant, moved to dismiss the case pursuant to Local Rule 11.12 and the order of August 24, 1999. On April 15, appellants responded to Staha's motion and an