1 Jam es Guest died on August 20, 1997. A suggestion of death and not ice t hat suit would be prosecuted by his surviving widow was f iled on Septembe r 15, 1997. NO. 07-03-0189 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A JANUA RY 7, 2004

______________________________ JAMES GUEST 1 AND ANITA GUES T, AP PELL

ANTS V. AUSTIN L. DI XON, M.D., APPELLEE

_________________________________ FROM THE 287 TH DISTRICT COURT OF BAILEY COUNTY; NO. 6913; HON ORABLEJOHN T. FORB IS, JUDG E

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPB ELL, JJ. OPIN ION2 Notice as required by Rule 42.3(a) Tex. R. App. P . was given to counsel by letter

dated Novem ber 21, 2003.

3 Atall times m aterial hereto, Guest has been rep re se nt ed by th e s ame l aw fi rm, albeit at least three different attorneys were assigned to the case. 2 Bytw o iss ues , ap pella nt A nitaGue st a ppe als f roman o rde r dis m iss ing h er s uit alleging me dical negligence against appell ee Austin L. Dixon, M .D. By her first issue, she contends the trial court erred in dismissing the case for want of prosecution, and by her second issue, contends thetrial court erred in refusing to apply the “conscious indifferent” [sic] standard in resolving the m otion to dismiss for w ant of prosecution. Bas ed on the rationale expressed herein, we dismiss the appeal for want of jurisdiction. 2 This Court is obligated to determ ine, sua sponte, its jurisdiction to hear an app eal. W elch v. McD ougal, 876 S.W.2d 218, 220 (Tex.App.–A marillo 1994, writ denied); see also New York Underwriters Ins . Co. v. S anchez, 799 S.W.2d 677, 678 (Tex. 1990). On Augu st 30, 199 5, G ues t fil ed s uit to re cover d am age s all ege dly caused by the medical malpractice and negligence of Austin L. Dixon, M.D. Thereafter, on Jul y 24 , 20 02, Dix on f iled h is mot ion to dismiss for w

ant of prosecution pursuant to Rule 165a of theTex as R ulesof C ivil Procedure, and Guest filed her response on December 27, 200 2 . After a hearing w as conducted, on January 25, 2003, t he trial court signed its order di smissing Guest’s action for want of prosecution. 3 The order does not recite any specific findings orgrounds for the dism iss al. Then, on February 26, 2003, represented by the sam e law firm and a m ember from a different firm, G u est filed a m otion to re instate t he action per Rule 1 65a(3).3

Following a hea ring, the tr ial cou rt signed an order on Apri l 20, 2003, de nying Guest’s mot ion to reinstate. She filed her notice of appeal on April 24, 2003, referencing the order of dismissal and the order deny ing her motion to reinstate. On May 2, 2003, she filed an am end ed n otice of

app eal to co rre ct t he r efe ren ced date on theord er o f dis m iss al. A notice of

app eal m ust

be f iled within 30 d aysafter a j udg m ent or f inal o rde r is signed unle ss a po st-

j udg m ent

m otio n is tim ely

filed, thereby ex

tending the deadline to 90 days. Tex . R . A pp. P. 26. 1. A ltho ugh a ti m ely filed motion to reinstate a proceeding dismissed for w

ant of prosecution filed pursuantto Rule 165a(3) of the Tex as Rules of Civ il Proce dure serves to ex tend the deadline for filing a notice of appeal, the mo tion to reinstate filed by Guest wasnot ver ified by her or her attorney. By letter dated Novem ber

21, 2003, this Court notified Guest of the defect and requested that she show cause why t he appeal should not be dism issed for want of jurisdiction. She filed a response to our letter alleging the affidavit of a form er attorney subm itted with the m otion to reinstate was sufficient to satisfy the req uir ement s of Rule 165a. Dix

on replied to Guest’s response alleging that the affidavit accompany ing the mot ion to reinstate did not constitute verification. W e agree with Dix on. Guest relies on 3V , Inc. v. JTSEnter prises, I nc., 40S.W.3d 535 (Te x.Ap p.-- Houston [14 th D is t.] 2000, no pet.), in support of her contention that the separate aff idav itof her former counse l which was s ubmitted along w ith the mot ion to reinstate4

constituted verification of the mot ion for purposes of Rule 165 a. However, for the reasons discussed below , 3V , Inc ., is not applicable. In 3V , Inc ., the m otion of

the corporate m ovant wa s supported by affidavits of two of its at torneys. Although the af fiants were not a ttorneys of record in the T exa s proceeding, according to the affidavits , th ey had know ledge of mat ters relevant to the Texas proceeding by virtue of t heir representation of the client outside Texas. Being a corporate movant, verification could only be accom plished by the act of a person or persons with know ledge acting on behalf of the m ovant. Also, t he attorne y-client rela tion shipis an agency relationship. See Texas E mployers I n suran ce Ass’n v. W erms ke, 162 Tex. 540, 349 S.W.2d 90, 93 (1961). Accordingly, the affi da vits of the attorneys const ituted ve rification for 3V, I nc., as

a corpo rate m ovant. Here, however, the affidavit of one of Guest’sform er attorneys doesnot am ountto verifi cation becau se the agency relationship had ceased to ex ist. Further, the alleged verification is i ncom plete. By his affidavit, Gues t ’s form er attorney covered only the case h istory from May 1996 to March 2001, w hen he left the fi rm. As a result, he di d not address approximately 24 months of case history. Final ly, byhis response to the affidavi t of Guest’s form er attorney, Dixon filed an objection to the aff idav itand oral ly arg ued his objection at t he hearing on Guest’s m otion to reinstate. Am ong other ground s, citing Ginsberg v. Fifth Court of Appeals, 686 S .W .2d 10 5 ( Te x.5

1985), Dixon obj ected to theaff idav itbecaus e Guest

had not com plied with his discovery request fi led in response to the affi davit of Guest’s for mer attorney. We conclude that because the m otion to r eins tate was n ot p rop erly ver ified , it did notoperate to ex

tend the deadli ne for fil ing the noti ce of appeal beyond the 30 days provided in Rule 26.1 of th e Texas R ules of Appellate Procedure. See McConnell v. May , 800 S.W.2d 194 (Tex. 1990); see also Bu ttsv. Cap itol C ity Nur sin g Hom e, 70 5 S.W.2d 696, 697 (Tex. 1986). A ccordingly, we do not h ave jurisdiction to consider the appeal and mus t dismiss theproceeding. Accordingly, the appeal is dismissed f or want of jurisdiction. Don H. Rea vis Justice Cam pbell, J., dissenting.6 NO. 07-03-0189 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A JANUA RY 7, 2004

______________________________ JAM ES G UES T AND ANITA GUES T, AP PELL

ANTS V. AUSTIN L. DI XON, M.D., APPELLEE

_________________________________ FROM THE 287 TH DISTRICT COURT OF BAILEY COUNTY; NO. 6913; HON ORABLEJOHN T. FORB IS, JUDG E7 _______________________________ Before JOHNSON, C.J., and REAVIS and CAMPB ELL, JJ. DIS SENTING OPIN ION Disagreeing w ith my c ollea gue s th at w e lac k j uris diction over this appeal, I res pec tfu lly d iss ent

fro m its dism iss al. The rule stated in McConnell v. May , 800 S.W. 2d 194 (Tex. 1990) (orig. proceed ing), by w hich an un verified m otion to re instate f iled under R ule 165a of the Rules of C ivil P roc edu re isheld not to ex tend the due date of t he notice of appeal under Rule26.1(a) of the Rul es of Appell ate Proce dur e, seem s to m e an excep tion to the general policy that disfavors the defeat of ap pellate jurisdiction by procedural defects and irregulariti es. See, e.g., V erburgt v. Dorner

, 959 S.W.2d 615, 616 (Tex. 1997). In at least one other

con te xt, th e ca se la w dr aws a distin ction between the effect of a procedural error on the appellate timetable a nd other conseq uencesof the error. In Tate v. E.I. DuPont de Nemours & Co., Inc. , 934 S.W.2d 83, 84 (Tex. 1996), the Suprem e Court held that the failure to pay the required filing fee with a m otion for new trial ma y forfeit the m ovant’s opportunity to have the m otion considered by the trial court, butit does not invalidate the mot ion’s filing for purposes of extending the due date for8

app eal. Sim ilarly, i n Marathon Corp. v. P itz ner ex rel. Pi

tz ner, 55 S.W.3d 114, 125 (Tex.App.–C orpus Christi 2001), rev’d on other grounds , 106 S.W.3d 724 (Tex . 2003), the court held that

an appellant’s failure to pay the filing fee with a m otion for new t rial unt il after the m otion was overruled by operat ion of law and the trial court los t plenary power did n ot keepthem otio n fr om ex ten ding theapp ellate tim eta ble, eve n th oug h it rendered the m otion ineffective to preserve error on the issues that were dependent

on a timely filed m otion. For the nar row purpose of determ ining whether a m otion to reinstate has been filed and thetim e toper fec t ap pea l thus e xtended under R ule 26.1(a)(3), and in the interest of the “s i mpl i ci ty an d c er ta i nt y i n a pp el l at e p ro ce du re ” t ha t o ur Su pr eme Court has stated is desirable, Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001), I w ould apply a similar

analysis here and would limit McConnell to instances i n which there is a com plete absence of verification. Since appellant’s m otion to reinstate was not ent irely unverifi ed, I would find th at its fil ing was effective to e xtend the date appel lant’s notice of appeal was d ue under Rule 26.1(a), that appellant’s notice of appeal was the ref ore tim ely f

iled a nd t hat

w e ha ve j uris dict ion of th e ap pea l.

Jam es T . C am pbe ll Justice9