Young v. Di Ferrante
Young v. Di Ferrante
Opinion of the Court
In this appeal from a dismissal for want of prosecution, at the threshold we must determine whether the appellants timely perfected this appeal to vest this court with appellate jurisdiction. The appellants did not verify their motion to reinstate following the dismissal for want of prosecution and we conclude that they did not support their motion to reinstate with a sufficient substitute for verification. As a result, their motion to reinstate did not extend the timetable for filing a notice of appeal. Because the appellants did not timely file their notice of appeal, we dismiss for lack of appellate jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2002, appellee/plaintiff Chris Di Ferrante filed this lawsuit seeking to recover against appellant/defendant Donald Young based on a sworn account. Di Ferrante later added Doris Young and Donna Holcomb as defendants in the lawsuit. Donald *127Young and Donna Holcomb asserted counterclaims against Di Ferrante.
After more than a decade of litigation, the trial court signed a final order in November 2015, dismissing the case for want of prosecution. The following month, Donald Young, Doris Young and Donna Holcomb (collectively, the "Young Parties") timely filed a motion to reinstate the case. The motion to reinstate contained verifications by each of the Young Parties. Each verification stated that the party signing the verification had read the motion to reinstate and that "all statements made therein are true and correct and made with my personal knowledge." After conducting an oral hearing on the motion at which Di Ferrante did not appear, the trial court granted the Young Parties' motion to reinstate the case.
Di Ferrante filed a motion to vacate the order reinstating the case, alleging that (1) Di Ferrante received no notice of the hearing on the motion to reinstate; (2) the Young Parties lacked standing to seek reinstatement of the case to bring claims against Di Ferrante; and (3) the trial court properly dismissed the case for want of prosecution. The trial court conducted a hearing on the motion to vacate the reinstatement order. Shortly before the March 21, 2016 hearing, the Young Parties moved to recuse the presiding judge of the trial court. The presiding judge determined that the motion to recuse was a tertiary motion to recuse, and the judge both denied the motion to recuse and referred the motion to the regional presiding judge. Three days later, the regional presiding judge signed an order denying the motion to recuse.
On March 25, 2016, the presiding judge of the trial court signed a final order dismissing the case for want of prosecution (the "DWOP Order"). The Young Parties filed a motion to reinstate on April 25, 2016 ("Motion to Reinstate"), and each signed a purported verification attached to the motion, stating:
"I, [name], am more than twenty-one years of age. I am capable of and competent to make this verification and affidavit. I have never been finally convicted of a crime other than minor misdemeanors. I have read [the Motion to Reinstate] and all statements made by me therein are true and correct to the best of my belief and personal knowledge."
The trial court signed an order on May 3, 2016, denying the Motion to Reinstate. The Young Parties filed a notice of appeal, which the trial court clerk stamped as filed on June 6, 2016.
On appeal, the Young Parties have asserted six appellate issues challenging the DWOP Order, various interlocutory orders, and the trial court's denial of the Motion to Reinstate. On appeal, Di Ferrante asserts, among other things, that the Young Parties lacked standing to move for reinstatement of the case because the only claims the trial court dismissed in the DWOP Order were claims by Di Ferrante against the Young Parties. Di Ferrante also asserts that the claims the Young Parties seek to litigate already have been adjudicated in Di Ferrante's favor by final judgments in other cases. According to DiFerrante, any attempt to re-litigate these claims in this case is moot.
II. JURISDICTIONAL ANALYSIS
No party has asserted that the Young Parties failed to timely file their notice of appeal, but we must review sua sponte issues affecting our appellate jurisdiction.
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 ,
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 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 Hudson v. Senior Living Props., LLC , No. 14-13-01145-CV,
In Guest v. Dixon , the supreme court held that a motion to reinstate supported by the affidavit of the movant's former attorney satisfied Rule 165a 's requirements. See
In finding the movant's former counsel's affidavit a sufficient substitute for verification in Guest , the supreme court noted that "procedural rules should be construed and applied so that the right of appeal is not unnecessarily lost to technicalities." See Guest ,
For example, in Twist , the Thirteenth Court of Appeals dismissed an attempted appeal from a dismissal for want of prosecution. See Twist ,
Similarly, the purported verifications attached to the Young Parties' Motion to Reinstate recite that "all statements made by me [in the motion] are true and correct to the best of my belief and personal knowledge." The phrase "true and correct to the best of my belief and personal knowledge" does not show personal knowledge and does not satisfy the personal-knowledge requirement to verify a motion to reinstate. See Kerlin v. Arias ,
In Guest and 3V , the record contained substituting documents that supported the motion to reinstate and performed the same function as the verification. Unlike the circumstances in Guest and 3V , where the motions to reinstate were supported by affidavits containing sworn statements by attorneys based on personal knowledge, the Young Parties' Motion to Reinstate is not properly verified or supported by a sufficient substitute for verification. See Twist ,
We are mindful of the supreme court's directive to construe procedural rules liberally to avoid parties forfeiting their rights to appeal based on a technicality. But, the supreme court also has recognized the key function served by the verification requirement, underscored the importance of personal knowledge, and held that motions to reinstate must be verified. McConnell ,
Lack of Jurisdiction
Because the Motion to Reinstate did not extend the timetable for filing a notice of appeal, the deadline for the Young Parties to perfect this appeal fell on April 25, 2016. The Young Parties did not file their notice of appeal on or before that date. They did not file their notice of appeal until June 6, 2016, long after the jurisdictional deadline.
Accordingly, we dismiss the appeal for lack of appellate jurisdiction, and we need not address Di Ferrante's standing and mootness arguments.
We have given all parties ten days' notice under Texas Rule of Appellate Procedure 42.3. See Tex. R. App. P. 42.3. The court granted appellants' request for an extension of time to file a response.
We presume that the Young Parties tried to invoke the mailbox rule under Texas Rule of Civil Procedure 5 by mailing the notice of appeal to the trial court clerk on June 2, 2016, with the intent that the notice of appeal would be deemed filed on June 2, 2016. Even under this presumption, the notice of appeal would not be deemed filed on June 2, 2016, because that date fell after the deadline to perfect appeal and because the district clerk received the notice of appeal on June 6, 2016, more than ten days after the deadline. See Tex. R. Civ. P. 5 ; Kreit v. Brewer & Pritchard ,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.