Anthony Saint Val v. Patricia Hill, Vice-President of Glencairn Association Board of Directors

Dismissed and Memorandum Opinion filed August 23, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00811-CV
ANTHONY SAINT VAL, Appellant
V.
PATRICIA HILL, VICE-PRESIDENT OF GLENCAIRN ASSOCIATION
BOARD OF DIRECTORS, Appellee
On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 1129479
MEMORANDUM OPINION
Appellant/plaintiff Anthony Saint Val attempts to appeal from an order
signed on September 23, 2020, dismissing this suit for want of prosecution. Saint
Val filed his notice of appeal on December 4, 2020. Concluding we lack appellate
jurisdiction, we dismiss the appeal and a pending motion.
I. BACKGROUND
Saint Val sued appellee/defendant Patricia Hill, Vice-President of Glencairn
Association Board of Directors, asserting breach-of-contract and unjust-enrichment
claims based on allegedly improper items allegedly charged to Saint Val by the
Glencairn Community Improvement Association Board of Directors. On
September 23, 2020, the trial court signed an order dismissing Saint Val’s suit for
want of prosecution. Saint Val filed an unverified “Motion to Reopen the Case” on
September 29, 2020. The trial court denied the motion, and on December 4, 2020,
Saint Val filed his notice of appeal. The notice of appeal does not comply with the
requirements of Texas Rule of Appellate Procedure 25.1(d), and Saint Val did not
specifically identify the trial court’s September 23, 2020 order as the order from
which Saint Val sought to appeal. Nonetheless, we construe Saint Val’s notice of
appeal as a bona fide attempt to appeal the trial court’s September 23 dismissal
order. See Warwick Towers Council of Co-Owners v. Park Warwick, L.P., 244
S.W.3d 838, 839–40 (Tex. 2008) (per curiam).
II. JURISDICTIONAL ANALYSIS
No party has asserted that Saint Val failed to timely file his notice of appeal,
but we must review sua sponte issues affecting our appellate jurisdiction.1 See
M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004). An appellate court
generally has jurisdiction over a case if a notice of appeal is filed within thirty days
after the final judgment is signed unless one of the deadline-extending
circumstances listed in Texas Rule of Appellate Procedure 26.1 is present. See Tex.
R. App. P. 26.1; Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–
44 (Tex. 1993); Watson v. Clark, No. 14-14-00031-CV, 2015 WL 780563, at *1
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We have given all parties ten days’ notice under Texas Rule of Appellate Procedure 42.3. See
Tex. R. App. P. 42.3.
2
(Tex. App.—Houston [14th Dist.] Feb. 24, 2015, no pet.) (mem. op.); see also Tex.
R. App. P. 4.1 (computing time). Under Rule 26.1, filing a verified motion to
reinstate under Texas Rule of Civil Procedure 165a within thirty days of the order
of dismissal for want of prosecution extends the deadline to perfect appeal to
ninety days after the trial court signed the dismissal order. See Tex. R. App. P.
26.1; Watson, 2015 WL 780563, at *1.
A motion to reinstate stands as the only remedy available to a party when the
trial court has dismissed the case for want of prosecution. See Watson, 2015 WL
780563, at *1. Thus, we deem Saint Val’s “Motion to Reopen the Case” to be a
motion to reinstate (“Motion to Reinstate”). See id. Saint Val filed his Motion to
Reinstate within thirty days of the trial court’s dismissal order. Thus, the Motion to
Reinstate was timely. But, to extend the deadline to perfect appeal, the Motion to
Reinstate must have been verified or supported by a sufficient substitute for
verification. See McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990); Young v.
DiFerrante, 553 S.W.3d 125, 128 (Tex. App.—Houston [14th Dist.] 2018, pet.
denied).
If Saint Val did not verify the Motion to Reinstate or support it with a
sufficient substitute for verification, we would lack appellate jurisdiction because
the deadline to perfect appeal would be November 9, 2020, at the latest, and Saint
Val did not perfect appeal until December 4, 2020. See Tex. R. App. P. 4.1(a);
Verburgt v. Dorner, 959 S.W.2d 615, 615 (Tex. 1997); McConnell, 800 S.W.2d at
194; Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986);
Watson, 2015 WL 780563, at *1.
A. Verification Requirement for Motions to Reinstate
Rule 165a states, “a motion to reinstate shall set forth the grounds therefor
and be verified by the movant or his attorney.” Tex. R. Civ. P. 165a. Rule 165a
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does not define “verified.” Though the rule does not expressly require that the
verification be based on personal knowledge, courts have held that verifications
must be based on personal knowledge. See Young, 553 S.W.3d at 128. A
verification is “[a] formal declaration made in the presence of an authorized
officer, such as a notary public, by which one swears to the truth of the statements
in [a] document.” Douglas v. American Title Co., No. 14-08-00676-CV, 2009 WL
3851674, at *3 (Tex. App.—Houston [14th Dist.] Nov. 19, 2009, no pet.) (mem.
op.). Courts have held that a motion to reinstate supported by one or more
affidavits may satisfy Rule 165a’s requirements. See id. at 129. Though the
verification remains a core requirement of the rule, courts recognize substitutes
when they serve as the functional equivalent of a verification. See id.
Saint Val, who was acting pro se, did not verify or attempt to verify the
Motion to Reinstate. Nor did Saint Val attach any affidavit or declaration2 to the
Motion to Reinstate. The Motion to Reinstate did not contain the functional
equivalent of a verification, nor was the motion supported by a sufficient substitute
for verification. See id. at 128–30; Twist v. McAllen Nat. Bank, 294 S.W.3d 255,
262 (Tex. App.—Corpus Christi 2009, no pet.)
B. Lack of Appellate Jurisdiction
Because Saint Val’s Motion to Reinstate was not verified or supported by a
sufficient substitute for verification, the motion did not extend the timetable for
filing a notice of appeal. See Jarrell v. Bergdorf, 580 S.W.3d 463, 465–67 (Tex.
App.—Houston [14th Dist.] 2019, no pet.); Young, 553 S.W.3d at 128–30; Twist,
294 S.W.3d at 260–63. If the plaintiff does not file a timely motion to reinstate that
2
See Tex. Civ. Prac. & Rem. Code. Ann. § 132.001(a) (West, Westlaw through 2021 C.S.)
(stating that “[e]xcept as provided by Subsection (b), an unsworn declaration may be used in lieu
of a written sworn declaration, verification, certification, oath, or affidavit required by statute or
required by a rule, order, or requirement adopted as provided by law.”).
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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. See Verburgt, 959
S.W.2d at 615; Young, 553 S.W.3d at 130; Twist, 294 S.W.3d at 260. Therefore,
the latest possible deadline for Saint Val to perfect this appeal was on Monday,
November 9, 2020. See Tex. R. App. P. 4.1(a); Verburgt, 959 S.W.2d at 615;
Jarrell, 580 S.W.3d at 465–67; Young, 553 S.W.3d at 130. Saint Val did not file
his notice of appeal until December 4, 2020, after the jurisdictional deadline. See
Verburgt, 959 S.W.2d at 615; Jarrell, 580 S.W.3d at 465–67; Young, 553 S.W.3d
at 130. This untimely notice of appeal does not vest this court with appellate
jurisdiction. See Verburgt, 959 S.W.2d at 615; McConnell, 800 S.W.2d at 194;
Jarrell, 580 S.W.3d at 465–67; Young, 553 S.W.3d at 128–30 (holding that court
lacked appellate jurisdiction over pro se parties’ attempt to appeal order dismissing
for want of prosecution because the parties’ motion to reinstate was not verified or
supported by a sufficient substitute for verification and thus did not extend the
timetable for filing a notice of appeal, and the parties filed their notice of appeal
more than 45 days after the dismissal order).
C. Conclusion
Accordingly, we dismiss the appeal for lack of appellate jurisdiction. This
court previously ordered that Saint Val’s January 7, 2021 motion in this court be
taken with the case. Because we lack appellate jurisdiction, we also dismiss this
motion for want of jurisdiction.
/s/ Randy Wilson
Justice
Panel consists of Chief Justice Christopher and Justices Spain and Wilson.
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