Rebecca Lynn Mahady v. Joseph Daniel Mahady

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-277-CV
REBECCA LYNN MAHADY APPELLANT
V.
JOSEPH DANIEL MAHADY APPELLEE
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FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Rebecca Lynn Mahady attempts to appeal from the order
dismissing her divorce for want of prosecution. Appellee Joseph Daniel Mahady
has filed a motion to dismiss the appeal. For the reasons set forth below, we
will grant Appellee’s motion to dismiss the appeal for lack of jurisdiction.
The trial court dismissed the underlying case for want of prosecution on
May 27, 2009. On June 15, 2009, Rebecca filed a motion to reinstate, but it
was not verified. On June 22, 2009, Rebecca filed another motion to reinstate,
1
… See Tex. R. App. P. 47.4.
but it contained only a defective affidavit that was not executed under oath.
On August 11, 2009, Rebecca did file an amended, verified motion to reinstate
and also filed a notice of appeal.
A trial court has plenary power to reinstate a case within thirty days after
it signs an order of dismissal for want of prosecution. Tex. R. Civ. P. 165a(3),
(4); Neese v. Wray, 893 S.W.2d 169, 170 (Tex. App.—Houston [1st Dist.]
1995, no writ). A verified motion to reinstate filed within thirty days of
dismissal extends plenary power for the same amount of time as would a
motion for new trial. Tex. R. Civ. P. 165a(3), (4); McConnell v. May, 800
S.W.2d 194, 194 (Tex. 1990) (orig. proceeding). An unverified motion to
reinstate is, however, a nullity and does not extend the trial court’s plenary
jurisdiction or the deadlines for perfecting an appeal. McConnell, 800 S.W.2d
at 194; In re Garcia, 94 S.W.3d 832, 833 (Tex. App.—Corpus Christi 2002,
orig. proceeding).
Here, Rebecca’s first motion to reinstate was not verified, and her second
motion contained only a defective affidavit that was not executed under oath.
Consequently, Rebecca’s first two defective motions to reinstate were nullities
and did not extend the deadline for perfecting an appeal. See McConnell, 800
S.W.2d at 194; Garcia, 94 S.W.3d at 833. Rebecca’s verified, August 11
amended motion to reinstate was likewise essentially a nullity because it was
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not timely filed within thirty days of the order of dismissal and because the trial
court’s plenary power had expired when it was filed. See Mandujano v. Oliva,
755 S.W.2d 512, 514 (Tex. App.—San Antonio 1988, writ denied). Because
neither party timely filed any motion effective to extend the trial court’s plenary
power, any notice of appeal was due no later than June 26, 2009. See Tex.
R. App. P. 25.1(b). Rebecca’s August 11, 2009 notice of appeal was untimely.
See Tex. R. App. P. 26.1.
Times for filing a notice of appeal are jurisdictional in this court, and
absent a timely filed notice of appeal or an extension request, we must dismiss
the appeal. See Tex. R. App. P. 25.1(b), 26.1, 26.3; Verburgt v. Dorner, 959
S.W.2d 615, 617 (Tex. 1997). We therefore grant Joseph’s motion to dismiss
and dismiss Rebecca’s appeal for want of jurisdiction. 2 See Tex. R. App. P.
42.3(a), 43.2(f).
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
DELIVERED: November 19, 2009
2
… To the extent that Joseph’s request for sanctions could be construed
to apply in the event of a dismissal, we decline his request to impose sanctions.
3