Fisher, Debby v. Prestonwood Baptist Church Inc. ( 2013 )

DISMISS; Opinion issued March 28, 2013
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00186-CV
DEBBY FISHER, Appellant
v.
PRESTONWOOD BAPTIST CHURCH INC., Appellee
On Appeal from the County Court at Law No. 1
Collin County, Texas
Trial Court Cause No. 001-2502-2001
MEMORANDUM OPINION
Before Justices FitzGerald, Fillmore, and Evans
Opinion by Justice FitzGerald
Debby Fisher filed a premises liability suit against Prestonwood Baptist Church. On
November 11, 2011, Fisher’s counsel failed to appear for a scheduling conference and the trial
court dismissed the case for want of prosecution. Fisher filed a motion to reinstate on January 20,
2012, and an order denying the motion was signed on January 23, 2012. Fisher filed a notice of
appeal on February 8, 2012. In two issues, Fisher asserts the trial court erred in dismissing the
case and in denying her unverified motion to reinstate. Appellee asserts that Fisher’s notice of
appeal was not timely filed because Fisher’s motion to reinstate was not verified. We agree with
appellee.
Generally, under the Texas Rules of Appellate Procedure, an appeal is perfected in a civil
case when a notice of appeal is filed within thirty days after the judgment is signed. TEX. R. APP.
P. 25.1(a), 26.1. However, when a party timely files a postjudgment motion seeking a substantive
change in the judgment, both the trial court’s plenary jurisdiction and the appellate timetable are
extended. TEX. R. CIV. P. 329b(g); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308,
314 (Tex. 2000). When this occurs, a notice of appeal must be filed within ninety days after the
judgment is signed. See TEX. R. APP. P. 26.1(a)(3) (filing of motion to reinstate extends notice of
appeal filing deadline).
A motion to reinstate must be verified. TEX. R. CIV. P. 165a(3). An unverified motion to
reinstate does not extend the appellate timetable. See McConnell v. May, 800 S.W.2d 194, 194
(Tex. 1990). Here, a document entitled “Affidavit” accompanied the motion to reinstate. The
affidavit did not reference or otherwise incorporate the motion, and stated, in essence: (1) the
documents attached to the motion were true and correct copies; (2) counsel received the notice
requiring a scheduling order; and (3) counsel received the notice of dismissal for want of
prosecution. At the hearing on the motion to reinstate, the trial judge made clear he would not
consider the statements made in Fisher’s motion because they were not verified or sworn. The
trial judge observed, “It’s supposed to be verified and all you have given me on here is all copies
attached to this motion are true and correct copies . . . but it doesn’t say they are true as to what
happened.”
An affidavit stating that the facts set forth in a motion to reinstate are true and correct can
satisfy the verification requirement. See Andrews v. Stanton, 198 S.W.3d 4, 8–9 (Tex. App. — El
Paso 2006, no pet.). But the affidavit must actually verify the motion to reinstate by reciting
sufficient facts and attributing sufficient personal knowledge as to constitute proper verification.
See Brown v. Dallas Cty, No.05-96-01192-CV, 1998 WL 35481 at *3 (Tex. App.—Dallas Feb.
2, 1998, no pet.) (not designated for publication). The affidavit in this case failed to meet these
requirements, and therefore does not constitute verification as mandated by the rule. See TEX. R.
CIV. P. 165a(3).
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Because the motion to reinstate was not verified, the deadline for perfecting the appeal
was thirty days after November 11, 2011. Fisher’s notice of appeal, filed on February 8, 2012,
was not timely, and therefore, this Court does not have jurisdiction over the appeal. See TEX. R.
APP. P. 25.1(b) (filing of notice of appeal invokes appellate court’s jurisdiction). Accordingly,
we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
120186F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DEBBY FISHER, Appellant On Appeal from the County Court at Law
No. 1, Collin County, Texas
No. 05-12-00186-CV V. Trial Court Cause No. 001-2502-2001.
Opinion delivered by Justice FitzGerald,
PRESTONWOOD BAPTIST CHURCH Justices Fillmore and Evans participating.
INC., Appellee
In accordance with this Court’s opinion of this date, we DISMISS the appeal for want of
jurisdiction.
It is ORDERED that appellee PRESTONWOOD BAPTIST CHURCH INC. recover its
costs of this appeal from appellant DEBBY FISHER.
Judgment entered March 28, 2013.
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
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