Walter M. Jarrell Jr., DDS, Individually and Walter M. Jarrell, Jr., DDS, Inc., a Texas Corporation v. Tiffany Bergdorf, Individually, Lynn Halterman, Individually, Randall Raimond, Individually, Allen Thornberg, Individually and Aftco, Inc., a Texas Corporation ( 2019 )

Dismissed and Majority and Concurring Opinions filed July 2, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00349-CV
WALTER M. JARRELL, JR., DDS, INDIVIDUALLY, AND WALTER M.
JARRELL, JR., DDS, INC., A TEXAS CORPORATION, Appellants
V.
TIFFANY BERGDORF, INDIVIDUALLY, LYNN HALTERMAN,
INDIVIDUALLY, RANDALL RAIMOND, INDIVIDUALLY, ALLEN
THORNBERG, INDIVIDUALLY, AND AFTCO, INC., A TEXAS
CORPORATION, Appellees
On Appeal from the 125th District Court
Harris County, Texas
Trial Court Cause No. 2014-43505
MAJORITY OPINION
Appellants Walter M. Jarrell, Jr. and Walter M. Jarrell, Jr., DDS, Inc.
(collectively, the “Jarrell Parties”) attempt to appeal from an order signed February
9, 2018, dismissing the above-referenced suit for want of prosecution. The Jarrell
Parties filed a notice of appeal on May 1, 2018. We conclude we lack jurisdiction
and dismiss the appeal.
Background
The Jarrell Parties sued appellees Tiffany Bergdorf, Lynn Halterman,
Randall Raimond, Allen Thornberg, and Aftco, Inc., asserting contract and tort
claims stemming from appellees’ role in the sale of the Jarrell Parties’ dental
practice. On January 26, 2018, the trial court held a pre-trial conference. Neither
the Jarrell Parties nor their attorney appeared. On February 9, the trial court signed
an order dismissing the Jarrell Parties’ suit for want of prosecution.
The Jarrell Parties filed an unverified “Emergency Motion to Reinstate
Case” on March 9 and a verified “First Amended Emergency Motion to Reinstate”
on March 22 (“Amended Motion”). In their Amended Motion, the Jarrell Parties
sought two forms of relief. First, they requested reinstatement, claiming their
counsel was inadvertently absent from the January 26 pre-trial conference.
Second, the Jarrell Parties sought to invoke Texas Rule of Civil Procedure 306a to
re-start the appellate deadlines based on when counsel first learned of the dismissal
order. Specifically, the Jarrell Parties asserted that their counsel first received
actual notice of the dismissal order on March 9. If March 9 is the date from which
appellate deadlines run, then the Jarrell Parties’ March 22 verified Amended
Motion, having been filed within thirty days of March 9, would be considered
timely.
Appellee Randall Raimond responded on March 29, pointing out that the
Amended Motion did not include all of the allegations required by subsections (4)
and (5) of Texas Rule of Civil Procedure 306a because the Amended Motion did
not address when the Jarrell Parties, as opposed to their counsel, first received
notice or acquired actual knowledge of the signing of the dismissal order. The
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Jarrell Parties did not amend the Amended Motion. The trial court held a hearing
on the Amended Motion on March 29, 2018. No record was made of the
proceedings at the hearing. The trial court denied the Jarrell Parties’ motion to
reinstate on April 2. The Jarrell Parties filed their notice of appeal on May 1,
which is eighty days after the trial court’s dismissal order. The Jarrell Parties’
notice of appeal identifies only the trial court’s order denying the motion to
reinstate. A trial court’s order denying a motion to reinstate is not a separately
appealable order from which the appellate timetable is calculated. See McCoy v.
N. Forest Indep. Sch. Dist., No. 14-07-00523-CV, 2007 WL 5209540, at *2 (Tex.
App.—Houston [14th Dist.] Nov. 15, 2007, no pet.) (mem. op.). However, the
Supreme Court of Texas has repeatedly admonished appellate courts to consider
any “bona fide attempt” to invoke jurisdiction. See, e.g., Warwick Towers Council
of Co-Owners v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex. 2008) (per
curiam); Blankenship v. Robins, 878 S.W.2d 138, 138-39 (Tex. 1994) (per curiam);
City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992) (per curiam).
Accordingly, we construe the Jarrell Parties’ notice of appeal as a bona fide
attempt to appeal the trial court’s February 9 dismissal order.
Analysis
In four issues, the Jarrell Parties ask this court to vacate the dismissal,
reinstate their lawsuit, and remand the case for further proceedings. In addition to
responding on the merits, appellee Randall Raimond also contends that we lack
jurisdiction over the Jarrell Parties’ appeal. We agree with Raimond.
When a plaintiff’s lawsuit is dismissed for want of prosecution, the only
available remedy is a motion for reinstatement. See Gillis v. Harris County, 554
S.W.3d 188, 191 (Tex. App.—Houston [14th Dist.] 2018, no pet.); Watson v.
Clark, No. 14-14-00031-CV, 2015 WL 780563, at *1 (Tex. App.—Houston [14th
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Dist.] Feb. 24, 2015, no pet.) (mem. op.). Texas Rule of Civil Procedure 165a(3)
requires a motion to reinstate be “verified by the movant or his attorney.” Tex. R.
Civ. P. 165a(3); see also Guest v. Dixon, 195 S.W.3d 687, 688-89 (Tex. 2006). To
satisfy this verification requirement, the motion for reinstatement must either be
verified or serve as the functional equivalent of a verified motion. See Young v.
DiFerrante, 553 S.W.3d 125, 129-30 (Tex. App.—Houston [14th Dist.] 2018, pet.
denied). A motion to reinstate must be filed within thirty days of the date the
dismissal order is signed or within the period provided by rule 306a. Tex. R. Civ.
P. 165a(3). If the plaintiff does not file a timely motion to reinstate that satisfies
the verification requirement, the trial court’s plenary power expires thirty days
after the date of the dismissal order. See McConnell v. May, 800 S.W.2d 194, 194
(Tex. 1990); Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex.
1986); Gillis, 554 S.W.3d at 192. Moreover, if the plaintiff does not file a timely
motion to reinstate that satisfies the verification requirement, the deadline to file a
notice of appeal is, at most, forty-five days after the date of the dismissal order,
which includes the thirty-day deadline and a fifteen-day extension period. See
Gillis, 554 S.W.3d at 192; see also Watson, 2015 WL 780563, at *3 (citing Tex. R.
App. P. 26.1, 26.3, and Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997)
(construing the predecessor to rule 26 and holding a motion for extension of time is
implied when appellant files a notice of appeal beyond the time allowed by rule
26.1, but within the 15-day grace period provided by rule 26.3 for filing a motion
for extension of time)); Ameriquest Mortg. Co. v. Marron, No. 14-13-00340-CV,
2013 WL 2444602, at *1-2 (Tex. App.—Houston [14th Dist.] 2013, pet. denied)
(mem. op.). In the absence of a timely notice of appeal, we lack jurisdiction over
an attempted appeal. See Gillis, 554 S.W.3d at 192; Watson, 2015 WL 780563, at
*3; Ameriquest, 2013 WL 2444602, at *4.
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The Jarrell Parties filed their notice of appeal more than forty-five days after
the date of the trial court’s dismissal order; accordingly, if they failed to timely file
a motion to reinstate that satisfies the verification requirement, we lack jurisdiction
to consider their appeal. See Gillis, 554 S.W.3d at 192. Thus, we must decide
whether the Jarrell Parties filed a motion to reinstate that satisfies the verification
requirement within thirty days of the dismissal order, or if not, whether the Jarrell
Parties established the right to an extended period under rule 306a and filed such a
motion within the extended period.
The Jarrell Parties did not file a motion to reinstate that satisfies the
verification requirement within thirty days of the date the dismissal order was
signed. The Jarrell Parties concede that their March 9 motion to reinstate, though
timely, was not verified. The Jarrell Parties did not attach any affidavits to their
March 9 motion, and this motion is not the functional equivalent of a verified
motion. See Young, 553 S.W.3d 125, 129-30. The Jarrell Parties filed a verified
Amended Motion on March 22, which was not within thirty days of the dismissal
order. See Butts, 705 S.W.2d at 697 (holding that appellate timetable not extended
unless verified motion to reinstate is filed within thirty days of dismissal order;
amended motion filed more than thirty days after order does not extend appellate
timetable); see also Ameriquest, 2013 WL 2444602, at *1-2; Owen v. Hodge, 874
S.W.2d 301, 303 (Tex. App.—Houston [1st Dist.] 1994, no writ) (holding court of
appeals lacked appellate jurisdiction under Butts when an unverified motion to
reinstate was filed within thirty days but amended to add verification more than
thirty days after the dismissal order). Therefore, the Jarrell Parties’ notice of
appeal, filed eighty days after the final judgment, is untimely unless the Jarrell
Parties established entitlement to an extended period under rule 306a. See Tex. R.
App. P. 26.1; Tex. R. Civ. P. 165a(3).
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Texas Rule of Civil Procedure 306a, entitled “Periods to Run From Signing
of Judgment,” provides a procedure to modify the post-judgment timetables so that
the time begins on the date that the party or the party’s counsel first received notice
or acquired actual knowledge of the signing of the judgment. See Tex. R. Civ. P.
306a(4), (5). To take advantage of the extended time period provided in rule
306a(4), the party adversely affected is required to prove in the trial court, on
sworn motion and notice, the date upon which the party or the party’s attorney first
either received notice of the judgment or acquired actual knowledge of its signing,
and that this date was more than twenty days after the date the judgment was
signed. Tex. R. Civ. P. 306a(5). The purpose of a sworn motion is to establish a
prima facie case of lack of timely notice, thereby invoking the trial court’s
otherwise-expired jurisdiction for the limited purpose of conducting an evidentiary
hearing to determine the date on which the party or the party’s counsel first
received notice or acquired knowledge of the judgment. In re Lynd Co., 195
S.W.3d 682, 685 (Tex. 2006) (orig. proceeding); Ameriquest, 2013 WL 2444602,
at *2; Nathan A. Watson Co. v. Emp’rs Mut. Cas. Co., 218 S.W.3d 797, 800 (Tex.
App.—Fort Worth 2007, no pet.). In addition, Texas Rule of Appellate Procedure
4.2 states that after a hearing on a rule 306a motion, “the trial court must sign a
written order that finds the date when the party or the party’s attorney first either
received notice or acquired actual knowledge that the judgment or order was
signed.” Tex. R. App. P. 4.2(c).
In their Amended Motion, the Jarrell Parties sought relief under rule 306a
and alleged that their counsel did not receive timely notice of the dismissal order or
acquire actual knowledge of the order until March 9. Rule 306a specifies that the
party must prove “the date on which the party or his attorney first either received a
notice of the judgment or acquired actual knowledge of the signing.” Tex. R. Civ.
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P. 306a(4) (emphasis added). The Supreme Court of Texas, our court, and others
have construed this language to require parties to present evidence establishing the
date or dates on which the party and the party’s counsel first received notice or
acquired actual knowledge of the judgment. See In re Lynd Co., 195 S.W.3d at
685 (stating that the procedural timetables and the trial court’s plenary power run
from the date of the trial court’s final judgment unless a party complies with the
requirements of rule 306a(5), including the requirement that the party file a sworn
motion establishing the date the party or its counsel first learned of the judgment);
In re Jamea, No. 14-10-00228-CV, 2010 WL 2968044, at *6-7 & n.4 (Tex. App.—
Houston [14th Dist.] July 29, 2010, orig. proceeding) (mem. op.) (holding that the
sworn motion under rule 306a(5) must show lack of notice or actual knowledge
within twenty days as to both the party and the party’s counsel to make a prima
facie showing of lack of timely notice under rule 306a(4)); see also In re J.S., 392
S.W.3d 334, 338 (Tex. App.—El Paso 2013, no pet.) (same); City of Laredo v.
Schuble, 943 S.W.2d 124, 126 (Tex. App.—San Antonio 1997, orig. proceeding)
(same); In re Simpson, 932 S.W.2d 674, 677-78 (Tex. App.—Amarillo 1996, no
writ) (same). Unless the movant in the sworn motion makes a prima facie showing
of the dates upon which the movant and the movant’s attorney first either received
notice of the judgment or acquired actual knowledge of its signing, the trial court’s
plenary power is not reinvoked and the trial court is without jurisdiction to conduct
a hearing under rule 306a(5). See In re Lynd Co., 195 S.W.3d at 685; In re Jamea,
2010 WL 2968044, at *5-6. In their Amended Motion, the Jarrell Parties address
only notice and actual knowledge as to their counsel; they do not negate the
possibility that they received notice or acquired actual knowledge within twenty
days after the trial court signed the dismissal order. Based on In re Lynd Company,
Jamea, and like authority, we must conclude that the Jarrell Parties did not comply
with rule 306a(5)’s requirement that they file a sworn motion establishing the date
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on which they or their attorney first either received notice of the order or acquired
actual knowledge of the dismissal order’s signing. See In re Lynd Co., 195 S.W.3d
at 685; In re Jamea, 2010 WL 2968044, at *6-7. Therefore, in their Amended
Motion the Jarrell Parties did not make the prima facie showing required under the
rule, and thus they did not re-invoke the trial court’s jurisdiction after jurisdiction
expired on March 12. See In re Lynd Co., 195 S.W.3d at 685; In re Jamea, 2010
WL 2968044, at *5-7 & n.4; In re J.S., 392 S.W.3d at 338; Schuble, 943 S.W.2d at
126; In re Simpson, 932 S.W.2d at 677-78.
In addition, even if the Jarrell Parties’ sworn motion had been sufficient to
re-invoke the trial court’s jurisdiction, they still would have had the burden of
proving at the March 29 hearing the date upon which they or their counsel first
either received notice of the dismissal order or acquired actual knowledge of its
signing. See Tex. R. Civ. P. 306a(5); In re Lynd Co., 195 S.W.3d at 685; In re
Jamea, 2010 WL 2968044, at *5-7 & n.4. No record was made of the proceedings
at the hearing. The Jarrell Parties do not assert on appeal that any party submitted
evidence at the hearing, and they rely only on the Amended Motion as proof of this
point. Presuming that the trial court properly could have considered the Amended
Motion as evidence at the hearing, this motion does not establish the date upon
which the Jarrell Parties or their counsel first either received notice of the dismissal
order or acquired actual knowledge of its signing. Thus, even if the trial court
were to have had jurisdiction to make a finding under rule 306a(5), the Jarrell
Parties have not shown that the trial court would have erred in finding that they did
not meet their burden of proof under rule 306a(5). See Tex. R. Civ. P. 306a(5); In
re Lynd Co., 195 S.W.3d at 685; In re Jamea, 2010 WL 2968044, at *5-7 & n.4.
Accordingly, we hold that the deadline for filing a verified motion to
reinstate was not extended by application of rule 306a(4). See In re Lynd Co., 195
8
S.W.3d at 685; In re Jamea, 2010 WL 2968044, at *5-7 & n.4.; Ameriquest, 2013
WL 2444602, at *3. The notice of appeal filed on May 1 is therefore untimely, and
we lack jurisdiction over the appeal.
Conclusion
We lack jurisdiction over this appeal, and we dismiss the appeal.
/s/ Kevin Jewell
Justice
Panel consists of Chief Justice Frost and Justices Jewell and Bourliot (Jewell, J.,
concurring).
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