DISMISS; Opinion issued March 28, 2013

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-12-00186-CV

DEBBY FISHER, Appellant

v.

PRESTONWOOD BAPTIST CHURCH INC., Appellee

On Appeal from the County Court at Law No. 1

Collin County, Texas

Trial Court Cause No. 001-2502-2001

MEMORANDUM OPINION

Before Justices FitzGerald, Fillmore, and Evans 

Opinion by Justice FitzGerald

Debby Fisher filed a premises liability suit against Prestonwood Baptist Church. On 

November 11, 2011, Fisher’s counsel failed to appear for a scheduling conference and the trial 

court dismissed the case for want of prosecution. Fisher filed a motion to reinstate on January 20, 

2012, and an order denying the motion was signed on January 23, 2012. Fisher filed a notice of 

appeal on February 8, 2012. In two issues, Fisher asserts the trial court erred in dismissing the 

case and in denying her unverified motion to reinstate. Appellee asserts that Fisher’s notice of 

appeal was not timely filed because Fisher’s motion to reinstate was not verified. We agree with 

appellee.

Generally, under the Texas Rules of Appellate Procedure, an appeal is perfected in a civil 

case when a notice of appeal is filed within thirty days after the judgment is signed. TEX. R. APP.

P. 25.1(a), 26.1. However, when a party timely files a postjudgment motion seeking a substantive 
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change in the judgment, both the trial court’s plenary jurisdiction and the appellate timetable are 

extended. TEX. R. CIV. P. 329b(g); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 

314 (Tex. 2000). When this occurs, a notice of appeal must be filed within ninety days after the 

judgment is signed. See TEX. R. APP. P. 26.1(a)(3) (filing of motion to reinstate extends notice of 

appeal filing deadline).

A motion to reinstate must be verified. TEX. R. CIV. P. 165a(3). An unverified motion to 

reinstate does not extend the appellate timetable. See McConnell v. May, 800 S.W.2d 194, 194 

(Tex. 1990). Here, a document entitled “Affidavit” accompanied the motion to reinstate. The 

affidavit did not reference or otherwise incorporate the motion, and stated, in essence: (1) the 

documents attached to the motion were true and correct copies; (2) counsel received the notice 

requiring a scheduling order; and (3) counsel received the notice of dismissal for want of 

prosecution. At the hearing on the motion to reinstate, the trial judge made clear he would not 

consider the statements made in Fisher’s motion because they were not verified or sworn. The 

trial judge observed, “It’s supposed to be verified and all you have given me on here is all copies 

attached to this motion are true and correct copies . . . but it doesn’t say they are true as to what 

happened.”

An affidavit stating that the facts set forth in a motion to reinstate are true and correct can 

satisfy the verification requirement. See Andrews v. Stanton, 198 S.W.3d 4, 8–9 (Tex. App. — El 

Paso 2006, no pet.). But the affidavit must actually verify the motion to reinstate by reciting 

sufficient facts and attributing sufficient personal knowledge as to constitute proper verification. 

See Brown v. Dallas Cty, No.05-96-01192-CV, 1998 WL 35481 at *3 (Tex. App.—Dallas Feb. 

2, 1998, no pet.) (not designated for publication). The affidavit in this case failed to meet these 

requirements, and therefore does not constitute verification as mandated by the rule. See TEX. R.

CIV. P. 165a(3).
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Because the motion to reinstate was not verified, the deadline for perfecting the appeal 

was thirty days after November 11, 2011. Fisher’s notice of appeal, filed on February 8, 2012,

was not timely, and therefore, this Court does not have jurisdiction over the appeal. See TEX. R.

APP. P. 25.1(b) (filing of notice of appeal invokes appellate court’s jurisdiction). Accordingly, 

we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

120186F.P05

/Kerry P. FitzGerald/

KERRY P. FITZGERALD

JUSTICE
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Court of 

S

Appeals

Fifth District of Texas at Dallas

JUDGMENT

DEBBY FISHER, Appellant

No. 05-12-00186-CV V.

PRESTONWOOD BAPTIST CHURCH 

INC., Appellee

On Appeal from the County Court at Law 

No. 1, Collin County, Texas

Trial Court Cause No. 001-2502-2001.

Opinion delivered by Justice FitzGerald, 

Justices Fillmore and Evans participating.

In accordance with this Court’s opinion of this date, we DISMISS the appeal for want of 

jurisdiction.

It is ORDERED that appellee PRESTONWOOD BAPTIST CHURCH INC. recover its 

costs of this appeal from appellant DEBBY FISHER.

Judgment entered March 28, 2013.

/Kerry P. FitzGerald/

KERRY P. FITZGERALD

JUSTICE