                                          NUMBER 13-06-706-CV

                                      COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI - EDINBURG


ROBERT HOLEMAN TWIST,                                                      Appellant,

                                                  v.

McALLEN NATIONAL BANK,
ET AL.,                                                                    Appellees.


   On appeal from the 92nd District Court of Hidalgo County, Texas.


                                             OPINION

                         Before Justices Yañez, Garza, and Vela
                               Opinion by Justice Yañez

      Appellant, Robert Holeman Twist, appeals from the trial court’s orders dismissing

his case for want of prosecution and denying his motion to reinstate.1 Appellees, McAllen

National Bank, Robert Williams, Jeffrey Fitch,2 and Grace Neuhaus-Richards (collectively


      1
          See T EX . R. C IV . P. 165a.

      2
          Jeffrey Fitch is now deceased.
“the Bank parties”) have filed a motion to dismiss the case for lack of jurisdiction. Finding

that we lack jurisdiction over the appeal, we grant the motion to dismiss the appeal as to

all parties.3

                                             I. Background

        This case is one of several filed by Twist arising out of a transfer of money by

McAllen National Bank (“the Bank”) out of one of Twist’s accounts.4 In trial court cause

number C-3690-99-A (the “first lawsuit”), Twist brought suit against the Bank, alleging that

it improperly allowed his wife, Brenda Griggs, to transfer money out of his account. Twist

agreed to settle that lawsuit for $75,000, but before the trial court entered judgment on the

settlement, Twist attempted to revoke his consent. The Bank moved to enforce the

settlement agreement. The trial court granted the Bank’s motion, resulting in two orders

dismissing the lawsuit on January 19, 2001 and April 29, 2002.

        On May 24, 2004, Twist filed an appeal from the April 29, 2002 order. This Court

dismissed that appeal as untimely on July 7, 2005.5 Twist contended that the trial court’s

order dismissing his case was interlocutory and filed numerous motions in the trial court

attempting to resurrect the claims, ultimately resulting in a petition for writ of mandamus




        3
          Appellees Ray Thom as, Veronica Gonzales, and the law firm of Kittlem an, Thom as, Ram irez &
Gonzales, P.L.L.C., have not m oved to dism iss but have addressed the issue of jurisdiction in their appellate
brief. Because we hold that we lack jurisdiction over this appeal, and this issue m ust be addressed even if
not raised by the parties, we grant the m otion to dism iss as to the entire cause and all appellees. See Guest
v. Dixon, 153 S.W .3d 466, 467 (Tex. App.–Am arillo 2004), rev’d on other grounds, 195 S.W .3d 687 (Tex.
2006).

        4
         See, e.g., Twist v. McAllen Nat’l Bank, 248 S.W .3d 351, 355 (Tex. App.–Corpus Christi 2007, orig.
proceeding).

        5
           See Twist v. McAllen Nat’l Bank, No. 13-04-613-CV, 2005 W L 1572738, at *1 (Tex. App.–Corpus
Christi July 7, 2005, no pet.) (m em . op.) (per curiam ).

                                                      2
and a second appeal being filed with this Court.6

          While Twist’s first appeal was pending, on October 8, 2004, he filed suit in trial court

cause number C-2281-A (the “second lawsuit”) against the Bank parties and Ray Thomas,

Veronica Gonzales, and the law firm of Kittleman, Thomas, Ramirez & Gonzales, P.L.L.C.,

(collectively “Kittleman”). In this second lawsuit, Twist alleged various fraudulent and

tortious acts by these parties that occurred before, during, and after the first lawsuit and

its settlement.

          On November 2, 2004, Kittleman filed a plea in abatement, arguing that Twist’s first

lawsuit involved the same parties and claims and that an appeal was pending from the

judgment in that case. Thus, Kittleman requested the court to abate the second lawsuit

“pending disposition of the appeal.” On November 15, 2004, the trial court granted the

motion. The order stated that the motion for abatement was granted “for all purposes and

that the present proceeding is abated pending further order of the Court.”

          Although Twist’s first appeal was dismissed on July 7, 2005, no action was taken

in the second lawsuit throughout the end of 2005 and the first half of 2006. On August 1,

2006, the trial court sent notice that it intended to dismiss the second lawsuit for want of

prosecution.7 The court set a hearing on the dismissal for September 19, 2006. At the

hearing, Twist argued that there had been no action in the case during the previous two

years because of the abatement order. The court, however, dismissed the case for want

of prosecution. The court’s order stated, incorrectly, that there had been no opposition to



          6
              Twist, 248 S.W .3d at 357-58.

          7
              This notice does not appear in the record. However, Twist does not dispute that he received the
notice.

                                                       3
the court’s motion to dismiss. On October 6, 2006, the Bank parties and Kittleman filed a

motion to correct or amend the order dismissing the suit. They argued that the court’s

order was incorrect in stating that there was no opposition to the motion to dismiss.

       Twist then filed three motions to reinstate on October 13, 14, and 17, 2006. In these

motions, he alleged that the trial court’s order was incorrect because he had opposed the

dismissal. Additionally, he argued that the abatement prevented the court from dismissing

for want of prosecution. An identical verification signed by Stephen T. Leas, Twist’s

attorney, was attached to all three of the motions to reinstate. It stated:

       BEFORE ME, the undersigned Notary Public, on this day personally
       appeared STEPHEN T. LEAS, a person whose identity is known to me.
       After I administered an oath to him, upon him [sic] oath he said he read the
       foregoing and attached pleading, and that the facts stated in it are within his
       personal knowledge and/or belief, as indicated, and are true and correct.

Nowhere, however, do the motions to reinstate indicate which facts are being sworn to

based on Leas’s personal knowledge as opposed to his beliefs.

       On October 19, 2006, the trial court held a hearing on the motion to amend the

judgment and on Twist’s motions to reinstate. Neither the Bank parties nor Kittleman

raised any objection to the motions to reinstate or the verifications. That day, the court

issued an amended order of dismissal for want of prosecution, this time correctly noting

that Twist had appeared to oppose the dismissal. The order stated that the cause had

been abated pending appeal and that the appeal was dismissed on July 7, 2005, after

which Twist took no action. The order did not, however, deny the motion to reinstate.

       Because an amended order of dismissal was entered, Twist filed yet another motion

to reinstate on November 16, 2006. This motion recited, in great detail, the facts of the

case from its inception, including all the events leading up to the first and the second


                                             4
lawsuits. Again, this motion to reinstate contained the same verification as the first three

motions to reinstate, and nowhere in the motion did Leas indicate which facts he verified

based on his personal knowledge as opposed to his beliefs.

        The trial court set a hearing on this motion for December 5, 2006. The same day,

the Bank parties and Kittleman filed a response to the motion, objecting to the verification

as fatally defective. First, they argued that the motion must be verified based on personal

knowledge and not on mere information or belief. Second, they argued that Leas was

incompetent to verify the motion to reinstate because he was not Twist’s attorney of record

until approximately October 3, 2006;8 thus, he did not have personal knowledge of the

procedural events prior to that date. Accordingly, the Bank parties and Kittleman argued

that, in the absence of a properly verified motion to reinstate, the court was without

jurisdiction to reinstate the case because its plenary power expired thirty days after the

amended order dismissing the case for want of prosecution, on November 20, 2006.9

        At the hearing, Leas complained that he received the Bank parties’ and Kittleman’s

objections to his verification immediately before the hearing, and he asked the court to

swear him in as a witness. Leas purported to swear to portions of the pleading based on

his personal knowledge, but he conceded that most of the events detailed in the motion

occurred before he became Twist’s attorney. After the hearing, the trial court sustained

the Bank parties’ and Kittleman’s objection to the verification, and it held that Leas was not

        8
           Twist asserts that the date of Leas’s first appearance in the case alleged by the Bank parties and
Kittlem an is “false and m isleading” and points out that Leas appeared at the Septem ber 19th hearing. The
Bank parties and Kittlem an respond that although Leas appeared at the Septem ber 19th hearing, he filed a
form al notice of appearance in the case on October 3, 2006, and that is the basis for their statem ent.

        9
           See T EX . R. C IV . P. 4. Novem ber 19, 2006 fell on a Sunday. Thus, under Rule 4, the deadline to
file the notice of appeal would not include that Sunday and would instead be Monday, Novem ber 20, 2006.
Id.

                                                      5
competent to verify the pleading and that its plenary power expired in the absence of a

properly verified motion. Leas requested findings of fact and conclusions of law on

December 7, 2006, and filed a notice of appeal that same day. He filed a notice of past

due findings of fact and conclusions of law on December 29, 2006, but none were ever

filed by the trial court. This appeal ensued.

                                            II. Discussion

       Twist raises five issues in his appeal, arguing that the trial court: (1) abused its

discretion by determining that the verification was insufficient to extend its plenary power;

(2) erred by failing to file findings of fact and conclusions of law; (3) abused its discretion

in dismissing the case for want of prosecution when the case was abated; (4) erred by

refusing to reinstate the case; and (5) erred in concluding that Twist failed to timely

prosecute his case.            The Bank parties and Kittleman have responded to all these

arguments, and the Bank parties have filed a motion to dismiss the appeal for lack of

jurisdiction. Specifically, the Bank parties argue that the amended order of dismissal on

October 19, 2006, was the final order in this case, and in the absence of a properly verified

motion to reinstate, Twist’s notice of appeal was due thirty days later, on November 20,

2006.10 Twist’s notice of appeal was not filed until December 7, 2006, and according to the

Bank parties, it was therefore untimely and failed to invoke this Court’s jurisdiction over the

appeal.

       Ordinarily, a notice of appeal must be filed thirty days after a final judgment is

signed.11 A verified motion to reinstate must be filed within 30 days after the order of

       10
            See T EX . R. A PP . P. 26.1.

       11
            See id.

                                                  6
dismissal for want of prosecution.12 A proper motion to reinstate filed within 30 days after

the dismissal extends the appellate timetables, making the notice of appeal due 90 days

after the judgment was signed.13 If a motion to reinstate is not verified or supported by a

sufficient substitute for the verification, it is ineffective to extend the trial court’s plenary

power or the appellate timetable.14 Thus, if Twist’s motion to reinstate was not properly

verified or supported by a sufficient substitute, we would lack jurisdiction over this appeal

because Twist’s notice of appeal was filed more than thirty days after the order dismissing

the case.

        The Bank parties argue that the verification was defective because it did not state

that it was based on Leas’s personal knowledge, and in fact, at the hearing on December

5, 2005, Leas admitted that he did not have personal knowledge of most of the facts in the

motion to reinstate because he had not appeared in the case until September 19, 2006.

We agree.

        While rule 165a does not expressly require that the verification be based on

personal knowledge, we note that in many other contexts, that requirement has been

implied. For example, in rule 93 of the Texas Rules of Civil Procedure, a defendant is

required to verify certain defenses.15 Significantly, the rule provides that a few of those




        12
             See T EX . R. C IV . P. 165a(3); McConnell v. May, 800 S.W .2d 194, 194 (Tex. 1990) (per curiam ).


        13
             See T EX . R. A PP . P. 26.1(a)(3).

        14
          See Butts v. Capitol City Nursing Home, Inc., 705 S.W .2d 696, 697 (Tex. 1986); Silguero v. State,
Nos. 13-07-113-CV, 13-07-434-CV, 2009 W L 265071, at *3 (Tex. App.–Corpus Christi Jan. 30, 2009, orig.
proceeding); Owen v. Hodge, 874 S.W .2d 301, 303 (Tex. App.–Houston [1st Dist.] 1994, no writ).

        15
             See T EX . R. C IV . P. 93.

                                                       7
defenses may be verified on information and belief.16 We have held that if the subsection

of rule 93 does not specifically provide that the verification of a defense may be made on

information and belief, then it must be verified based on personal knowledge.17 The

reasons for requiring verifications to be made on personal knowledge are sound:

        A compelling reason for the rule is so that the parties, the court, and its
        officers may be put on notice that the affiant knows whereof he speaks, and
        that he has personal knowledge of the matters to which he swears and is
        putting into issue. The parties, the court, and its officers need to know, and
        have a right to know, whether or not the affiant has personal knowledge of
        such matters. They should not be compelled to inquire by interrogatory or
        deposition as to whether or not the affiant has personal knowledge.
        Additionally, without such information present in the affidavit, the court and
        its officers will not know if the affiant is in compliance with what we believe
        to be the desire of the Texas Supreme Court that the affidavit be based on
        personal knowledge. Openness in the positions of the parties has been a
        continuing aim of the courts of this State since the Supreme Court enacted
        the Rules of Civil Procedure some fifty years ago, which rules, among other
        accomplishments, abolished the general demurrer. We feel it was in keeping
        with the Supreme Court's aim for openness between litigants concerning
        their positions to require the affidavit be based upon personal knowledge.
        Requiring a showing of personal knowledge normally takes little effort, results
        in no detriment to the affiant, and apprises the court and its officers of the
        source of the affiant's assertion.18

        These reasons apply equally to a motion to reinstate, in which a party will likely be

raising arguments based on facts that do not appear of record in order to explain the lack




        16
             See id. at R. 93(7), (8), (13)(a), (13)(g), (15).

        17
           See Cantu v. Holiday Inns, Inc., 910 S.W .2d 113, 116 (Tex. App.–Corpus Christi 1995, writ denied)
(“[W ]e therefore agree with our sister court that Rule 93(13), which explicitly provides for verifications upon
inform ation and belief, logically indicates that the rem ainder of Rule 93 requires a verification based upon
personal knowledge . . . .”); see also Reyna v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 883 S.W .2d 368,
370-73 (Tex. App.–El Paso 1994) (“W e believe the provisions of Rule 93 which allow affidavits based upon
inform ation and belief regarding certain specified m atters effectively require personal knowledge for m atters
involving the rem aining subsections of Rule 93.”), rev’d on other grounds, 897 S.W .2d 777, 778-79 (Tex.
1995).

        18
             Reyna, 883 S.W .2d at 372.

                                                           8
of activity in a case.19 Accordingly, although the rule does not specifically state that the

verification must be based on personal knowledge, we believe that the purpose of the

verification is not served if the verification is based on mere information and belief.

Furthermore, the supreme court certainly could have included “information and belief” in

the rule, as it has in other rules, had it so desired. But it did not.

        In Guest v. Dixon, the Texas Supreme Court considered the contours of the

verification requirement, addressing similar, but distinguishable, arguments.20 In that case,

Guest sued Dixon, and the trial court eventually dismissed the case for want of

prosecution.21 Guest’s attorneys filed a motion to reinstate the case and attached an

affidavit from Guest’s former counsel explaining the inactivity in the case, and the affidavit

stated it was based on the former attorney’s personal knowledge.22 Dixon argued that the

verification was defective, and did not operate to extend the appellate timetables, because

it was signed by Guest’s former attorney and also because the former attorney’s affidavit

did not account for the two years of inactivity in the case that occurred after the attorney’s

representation terminated.23

        The court of appeals held that the verification was insufficient because the rule




        19
            See T EX . R. C IV . P. 165a(3) (“The court shall reinstate the case upon finding after a hearing that
the failure of the party or his attorney was not intentional or the result of conscious indifference but was due
to an accident or m istake or that the failure has been otherwise reasonably explained.”).

        20
             195 S.W .3d 687, 688 (Tex. 2006) (per curiam ).

        21
             Id.

        22
             Id.

        23
             Id.

                                                        9
required the verification to be signed by Guest’s attorney, not his former attorney.24

Additionally, the court of appeals held that the verification was incomplete in that it did not

account for the inactivity that occurred after the attorney ceased representing Guest.25

        On appeal, the supreme court held that the verification requirement could be

satisfied by the affidavit of a former attorney, even though the rule requires the motion to

reinstate to be verified by the movant or his attorney.26 The court noted that its recent

cases have held that “procedural rules should be construed and applied so that the right

of appeal is not unnecessarily lost to technicalities.”27 Furthermore, the court held that the

affidavit was sufficient to invoke the court of appeals’ jurisdiction even though it failed to

explain two years of inactivity in the case.28 The court held that “while the attorney's lack

of knowledge may go to the merits of the reinstatement motion, it does not deprive the

court of jurisdiction.”29

        We agree that the right of appeal should not be lost to a technicality.30 However,

we find Guest distinguishable because in that case, the attorney’s affidavit did, in fact, state




        24
          See Guest v. Dixon, 153 S.W .3d 466, 468 (Tex. App.–Am arillo 2004) (“Here, however, the affidavit
of one of Guest's form er attorneys does not am ount to verification because the agency relationship had
ceased to exist.”), rev’d, 195 S.W .3d 687 (Tex. 2006).

        25
             Id.

        26
             Guest, 195 S.W .3d at 689.

        27
             Id. at 688.

        28
             Id. at 689.

        29
             Id.

        30
             See id. at 688.

                                                    10
that he had personal knowledge of the facts to which he testified.31 The failure to verify a

pleading based on personal knowledge, when that is required, is hardly a technicality.

While the court in Guest rejected Dixon’s argument that jurisdiction was lacking because

the attorney lacked knowledge of and failed to explain two years of inactivity, that is not the

same as the situation here, where the attorney’s verification did not indicate that he had

personal knowledge of any of the facts. We agree with the general proposition that a

motion with a verification that only verifies part of the facts will suffice to extend the

appellate timetables; however, a verification that does not indicate that the person signing

the affidavit has personal knowledge of at least some of the facts is no verification at all.

Leas’s verification did not identify which facts he was verifying based on personal

knowledge as opposed to his belief or information presented to him. Accordingly, we hold

that the verification of a motion to reinstate must be based on personal knowledge, and

Leas’s verification was inadequate.32

        As we recently held in Silguero v. State, however, “an unverified motion to reinstate

must be supported by an affidavit or other sufficient evidence in the record in order to

extend the trial court's plenary power or extend the time to file a notice of appeal.”33 “The

affidavit or other evidence must serve as an adequate substitute for the verification


        31
             Id.

        32
            Twist relies on 3V, Inc. v. JTS Enterprises, Inc., 40 S.W .3d 533 (Tex. App.–Houston [14th Dist.]
2000, no pet.). In that case, the m otion to reinstate was not verified, but the attorneys attached two affidavits
to the m otion. Id. at 538. These affidavits did not expressly state that they were based on the affiants’
personal knowledge. Id. However, the court held that the facts recited in the verification m ade it clear that
the verification was based on personal knowledge. Id. Leas’s verification does not m ake any such showing.
See Cantu, 910 S.W .2d at 116 (“A party's attorney m ay verify the pleading where he has knowledge of the
facts, but does not have authority to verify based m erely on his status as counsel.”). Accordingly, 3V is
distinguishable.

        33
             2009 W L 265071, at *3 (em phasis added).

                                                       11
requirement established by the rules of civil procedure.”34 Again, a substitute may be

adequate if it is an acceptable method of proving the facts upon which the movant relies

to reinstate the case.

        Twist raises several arguments in this regard. First, Twist argues that he attached

numerous documents to his motion to reinstate. He notes that the Bank parties and

Kittleman did not object to these documents. He argues that these documents contain

several verifications by Twist himself, not Leas, purportedly establishing the facts upon

which the motion to reinstate was based. We have located only one verification in the

record signed by Twist. It is attached to a motion that was filed in the first lawsuit, and the

allegations in the document that are verified do not include the abatement in the second

lawsuit or explain the inactivity in the second lawsuit. Accordingly, Twist’s verification of

that document does not serve as an adequate substitute for Leas’s defective verification.35

        Second, Twist argues that Leas testified at the hearing on December 5, 2006, and

stated that he had personal knowledge of the facts supporting the reinstatement motion.

The problem with this argument is that, by the time the hearing was conducted, the trial

court had already lost plenary power because the motion to reinstate was not properly

verified. Thus, Leas’s testimony at the hearing was not timely and was not properly before

the trial court.36 Accordingly, there is no substitute for the defective verification in the

record, and the motion to reinstate did not extend the appellate timetables.


        34
             Id.

        35
             See id.

        36
            Cf. In re Dobbins, 247 S.W .3d 394, 396-97 (Tex. App.–Dallas 2008, orig. proceeding) (holding that
evidence presented at hearing conducted within thirty days after date of dism issal was a sufficient substitute
for the verification requirem ent).

                                                     12
        Twist also appears to argue that the lack of personal knowledge is a “form” defect

that must be raised in writing, and he should have had an opportunity to cure the defect.

Twist argues that the defective verification was not pointed out until a few minutes before

the December 5, 2006 hearing. However, because a proper verification was required to

extend the appellate timetable, which affects this Court’s jurisdiction, the defect cannot be

waived by failing to raise it in the trial court. We have a duty to raise the issue on our own,

even in the absence of an objection by the opposing party.37

        Alternatively, Twist argues that he filed other motions that extended the appellate

timetables. He argues that he filed a motion to modify the judgment and a request for

findings of fact and conclusions of law, which he argues extended the appellate

timetables.38 Twist cites to his November 16, 2006 motion to reinstate, in which he

complains that the October 19, 2006 order purports to lift the stay and includes findings

that should not be included in a judgment. Nowhere, however, does Twist ask the trial

court to modify the judgment to delete those provisions as an alternative remedy. Rather,

his prayer for relief merely asked the trial court to reinstate the case on its docket. Twist

cannot escape the verification requirement by attempting to recast his motion to reinstate

as a motion to modify the judgment.39

        Furthermore, a request for findings of fact and conclusions of law must be filed




        37
             See Guest, 153 S.W .3d at 467, rev’d on other grounds, 195 S.W .3d 687 (Tex. 2006).

        38
             See T EX . R. A PP . P. 26.1(a)(2), (4).

        39
          City of McAllen v. Ramirez, 875 S.W .2d 702, 704-05 (Tex. App.–Corpus Christi 1994, orig.
proceeding) (“To allow a plaintiff to circum vent the verification requirem ents of Rule 165a(3) by m erely
changing the caption of his m otion would be contrary to the purpose of the rule, as well as inconsistent with
the general principle that m otions are judged by their substance rather than their titles.”).

                                                        13
twenty days after the judgment is signed.40 The judgment was signed on October 19,

2006, and therefore, any request for findings of fact and conclusions of law was due on

November 8, 2006. Twist, however, did not file his request until December 7, 2006, after

the trial court denied his motion to reinstate. Twist apparently believes that a request for

findings of fact can be filed after an order denying a motion to reinstate. But such an order

is not a “judgment.”41 Thus, Twist’s request for findings of fact and conclusions of law was

late, and it was ineffective to extend the appellate timetables. More importantly, however,

this Court has held that a verified motion to reinstate is the exclusive method for extending

the trial court’s plenary power to review a prior order dismissing a case for want of

prosecution.42

                                           III. Conclusion

       For all the foregoing reasons, we grant the Bank parties’ motion to dismiss and

dismiss this appeal in its entirety for lack of jurisdiction. In Twist’s response to the motion

to dismiss, Twist asks this Court to sanction the Bank parties and Kittleman for various

alleged misrepresentations. We find no merit to those arguments. Accordingly, we also

deny Twist’s request for sanctions.



                                                         LINDA REYNA YAÑEZ,
                                                         Justice

Opinion delivered and filed this
the 30th day of June, 2009.


       40
            T EX . R. C IV . P. 296 .

       41
            See Burns v. Drew W oods, Inc., 900 S.W .2d 128, 129 (Tex. App.–W aco 1995, writ denied).

       42
            Ramirez, 875 S.W .2d at 705.

                                                   14
