



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.

 

O P I N I O N


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
"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
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
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
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
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
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
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
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
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
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
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.
	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
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.
1.  See Tex. R. Civ. P. 165a.  
2.  Jeffrey Fitch is now deceased.
3.  Appellees Ray Thomas, Veronica Gonzales, and the law firm of Kittleman, Thomas, Ramirez &
Gonzales, P.L.L.C., have not moved to dismiss but have addressed the issue of jurisdiction in their appellate
brief.  Because we hold that we lack jurisdiction over this appeal, and this issue must be addressed even if
not raised by the parties, we grant the motion to dismiss as to the entire cause and all appellees. See Guest
v. Dixon, 153 S.W.3d 466, 467 (Tex. App.-Amarillo 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 WL 1572738, at *1 (Tex. App.-Corpus
Christi July 7, 2005, no pet.) (mem. op.) (per curiam).  
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.
8.  Twist asserts that the date of Leas's first appearance in the case alleged by the Bank parties and
Kittleman is "false and misleading" and points out that Leas appeared at the September 19th hearing.  The
Bank parties and Kittleman respond that although Leas appeared at the September 19th hearing, he filed a
formal notice of appearance in the case on October 3, 2006, and that is the basis for their statement.      
9.  See Tex. R. Civ. P. 4.  November 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, November 20, 2006. 
Id.
10.  See Tex. R. App. P. 26.1.  
11.  See id.
12.  See Tex. R. Civ. P. 165a(3);  McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (per curiam). 

13.  See Tex. R. App. 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 WL 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 Tex. R. Civ. P. 93.  
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
information and belief, logically indicates that the remainder 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) ("We believe the provisions of Rule 93 which allow affidavits based upon
information and belief regarding certain specified matters effectively require personal knowledge for matters
involving the remaining 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.   
19.  See Tex. R. Civ. 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 mistake 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.
24.  See Guest v. Dixon, 153 S.W.3d 466, 468 (Tex. App.-Amarillo 2004) ("Here, however, the affidavit
of one of Guest's former attorneys does not amount 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.  
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 motion to reinstate was not verified, but the attorneys attached two affidavits
to the motion.  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 made it clear that
the verification was based on personal knowledge.  Id.   Leas's verification does not make any such showing. 
See Cantu, 910 S.W.2d at 116 ("A party's attorney may verify the pleading where he has knowledge of the
facts, but does not have authority to verify based merely on his status as counsel.").  Accordingly, 3V is
distinguishable.
33.  2009 WL 265071, at *3 (emphasis added).  
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 dismissal was a sufficient substitute
for the verification requirement).
37.  See Guest, 153 S.W.3d at 467, rev'd on other grounds, 195 S.W.3d 687 (Tex. 2006). 
38.  See Tex. R. App. 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 circumvent the verification requirements of Rule 165a(3) by merely
changing the caption of his motion would be contrary to the purpose of the rule, as well as inconsistent with
the general principle that motions are judged by their substance rather than their titles."). 
40.  Tex. R. Civ. P. 296.
41.  See Burns v. Drew Woods, Inc., 900 S.W.2d 128, 129 (Tex. App.-Waco 1995, writ denied).
42.  Ramirez, 875 S.W.2d at 705.

