X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS: Anita Guest filed a medical malpractice lawsuit against Dr. Austin L. Dixon in August 1995. Dixon filed a motion to dismiss for want of prosecution on July 24, 2002. After Guest filed her response and a hearing was held, the trial court granted Dixon’s motion on Jan. 25, 2003. Represented by a new attorney at the same firm, as well as a new attorney from a new firm, Guest filed an unverified motion to reinstate on Feb. 26, 2003, but the trial court denied that on April 20. Guest filed a notice of appeal on April 24 that was based on both the dismissal and the order denying reinstatement. She filed an amended notice of appeal on May 2 to correct the date of the dismissal order. The court of appeals notified Guest that her appeal was untimely. Though a motion to reinstate may extend the deadline for filing a notice of appeal, such a motion must be verified by the attorney, and Guest’s motion was not. Guest said an affidavit from her former attorney filed with the motion to reinstate satisfied the verification requirement. Dixon argued it did not. HOLDING: Dismissed by want of jurisdiction. The court agrees with Dixon. The case relied on by Guest, 3V Inc. v. JTS Enterprises Inc., 40 S.W.3d 535 (Tex.App. � Houston [14th Dist.] 2000, no pet.), which did allow an affidavit to serve as verification, does not apply to Guest’s case because the ruling was based on an agency relationship between the attorney and the corporate client. Here, the agency relationship had ceased to exist. Further, the affidavit, even it accepted, was incomplete because it left out nearly 24 months of case history. Plus, Dixon pointed out in his motion contesting the affidavit that the attorney had not responded to Dixon’s discovery requests. “We conclude that because the motion to reinstate was not properly verified, it did not operate to extend the deadline for filing the notice of appeal beyond the 30 days provided in Rule 26.1 of the Texas Rules of Appellate Procedure.” OPINION: Reavis, J.; Johnson, C.J., Reavis and Campbell, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.