Robin Hosea v. George Whittenburg and Whittenburg, Whittenburg, Schachter & Harris, P.C. ( 2010 )

NO. 07-09-00210-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
APRIL 29, 2010
ROBIN HOSEA, APPELLANT
v.
GEORGE WHITTENBURG AND
WHITTENBURG, WHITTENBURG, SCHACHTER
& HARRIS, P.C., APPELLEES
FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;
NO. 57,066-A; HONORABLE HAL MINER, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
Robin Hosea attempts to appeal from the trial court’s order dismissing for want of
prosecution her suit against her former attorney, George Whittenburg, and his law firm.
The 47th District Court of Randall County dismissed her cause on March 23, 2009. She
filed her notice of appeal on June 25, 2009.
Although neither party has raised a question whether this Court has jurisdiction,
we are obligated to consider, sua sponte, our jurisdiction of a case on appeal. See
Churchill v. Mayo, 224 S.W.3d 340, 344 (Tex.App.—Houston [1st Dist.] 2006, pet.
denied); Buffalo Royalty Corp. v. Enron Corp., 906 S.W.2d 275, 277 (Tex.App.—
Amarillo 1995, no writ). We do not presume jurisdiction. El-Kareh v. Tex. Alcoholic
Beverage Comm'n, 874 S.W.2d 192, 194 (Tex.App.—Houston [14th Dist.] 1994, no
pet.). If the record does not affirmatively demonstrate that we have jurisdiction, we must
dismiss the appeal. Id.; Buffalo Royalty Corp., 906 S.W.2d at 277.
A timely notice of appeal is necessary to invoke this Court’s jurisdiction. See
TEX. R. APP. P. 25.1; Thomas v. Neal, No. 07-01-00235-CV, 2001 Tex.App. LEXIS
5963, at *2 (Tex.App.—Amarillo Aug. 29, 2001, no pet.) (per curiam). Ordinarily, a
notice of appeal must be filed within thirty days of the date the appealable order is
signed. See TEX. R. APP. P. 26.1. If the appellant timely files, inter alia, a motion to
reinstate, the deadline is extended, and the appellant must file his or her notice of
appeal within ninety days of the date the trial court signed the appealable judgment.
TEX. R. APP. P. 26.1(a). Following a dismissal for want of prosecution, a party must file
a verified motion to reinstate within thirty days after the order of dismissal for want of
prosecution. TEX. R. CIV. P. 165a(3).
It has become fairly well-established that an unverified motion to reinstate does
not extend the trial court’s plenary jurisdiction and does not extend the time in which to
file a notice of appeal. See Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696,
697 (Tex. 1986) (refusing writ of error because appellate court properly dismissed
appeal for want of jurisdiction because the unverified motion to reinstate did not extend
the time for perfecting appeal); see also McConnell v. May, 800 S.W.2d 194, 194 (Tex.
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1990) (per curiam); Twist v. McAllen Nat’l Bank, 294 S.W.3d 255, 260 (Tex.App.—
Corpus Christi 2009, no pet.).
Hosea’s motion to reinstate was unverified.1 As such, under the Butts/McConnell
rule, it failed to extend the time in which she could timely file her notice of appeal.
Based on the record before us, then, she had until April 23, 2009, to file her notice of
appeal; she filed her notice of appeal on June 25, 2009.
Though the Texas Supreme Court has impliedly frowned on the Butts/McConnell
rule, it has not expressly overruled those cases. See Guest, 195 S.W.3d at 688–89
(assuming that Butts and McConnell have “survive[d]” and citing several cases
espousing a reasonable, but liberal, interpretation of the applicable rules so that the
right of appeal is not lost due to overly technical application of rules). We are duty
bound to follow the Texas Supreme Court's authoritative expressions of law. See In re
K.S., 76 S.W.3d 36, 49 (Tex.App.—Amarillo 2002, no pet.); see also Swilley v. McCain,
374 S.W.2d 871, 875 (Tex. 1964) (“After a principle, rule or proposition of law has been
squarely decided by the [Texas] Supreme Court, . . . the decision is accepted as a
binding precedent by the same court or other courts of lower rank when the very point is
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Further, there was no affidavit or anything that could be said to serve as an
effective substitute for verification. See Guest v. Dixon, 195 S.W.3d 687, 689 (Tex.
2006); Twist, 294 S.W.3d at 260; In re Dobbins, 247 S.W.3d 394, 396–97 (Tex.App.—
Dallas 2008, orig. proceeding). Attached to Hosea’s reply to Whittenburg’s response to
her motion to reinstate is her affidavit. To the extent a liberal application of the rules
would allow her affidavit to serve as a substitute for verification, we observe that the
reply was filed outside the trial court’s unextended plenary jurisdiction. See McConnell,
800 S.W.2d at 194; see also Owen v. Hodge, 874 S.W.2d 301, 303 (Tex.App.—
Houston [1st Dist.] 1994, no writ) (concluding that that appellant's verified motion for
leave to supplement his unverified motion to reinstate was filed after the trial court's
plenary jurisdiction had expired).
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again presented in a subsequent suit between different parties.”). That being so, Butts
and McConnell remain the law under which we and our sister courts are duty bound to
operate. See Twist, 294 S.W.3d at 262 (applying Butts/McConnell rule but noting Texas
Supreme Court’s ominous language in Guest); Silguero v. State, 287 S.W.3d 146, 149–
50 (Tex.App.—Corpus Christi 2009, no pet.) (same); In re Dobbins, 247 S.W.3d 394,
396 (Tex.App.—Dallas 2008, orig. proceeding) (same); In re Trinity Universal Ins. Co.,
No. 04-06-00471-CV, 2006 Tex.App. LEXIS 8550, at *5 (Tex.App.—San Antonio Oct. 4,
2006, orig. proceeding) (mem. op.) (same).
We, too, follow Butts and McConnell to conclude that the unverified motion to
reinstate did not serve to extend the time in which Hosea could timely file a notice of
appeal from the order dismissing her case for want of prosecution. She was, therefore,
required to file her notice of appeal within thirty days of the date the trial court signed
the order of dismissal. Her notice of appeal filed ninety-four days after that date was
untimely and did not operate to invoke our jurisdiction.
Accordingly, we dismiss this appeal for want of jurisdiction.
Mackey K. Hancock
Justice
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