Court of Appeals of Texas, San Antonio.

Marvin REYNA, Appellant,

v.

SANTA ROSA HEALTH CARE CORPORATION, Appellee.

Appeal No. 04-96-00041-CV.

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Nov. 27, 1996.

Before RICKHOFF, HARDBERGER and DUNCAN, JJ.

OPINION

PER CURIAM.

*1 Appellant, Marvin Reyna (“Reyna”), seeks to appeal a final order dismissing his suit against appellee, Santa Rosa Health Care Corporation (“Santa Rosa”). We dismiss Reyna’s appeal for lack of jurisdiction.

Reyna’s original petition alleged that he was injured when an employee of Santa Rosa used a “take down” maneuver to prevent him from leaving a group therapy session at an in-patient psychiatric care facility. Reyna contended the employee’s acts constituted negligence in the practice of medicine and brought suit pursuant to the provisions of article 4590i of the Medical Liability and Insurance Improvement Act (the “Act”).

Section 13.01 of article 4590i requires a claimant in a health care liability claim to post a cost bond or file an expert report within 90 days from the date the claim is filed. Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(a) (Vernon Supp.1996). If the bond or report is not filed within the 90 day period, the court, upon the motion of the defendant, must enter an order requiring the posting of an increased cost bond not later than the 21st day after the date of the order. Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(b) (Vernon Supp.1996).¹ If the claimant fails to comply with the order, the action must be dismissed for want of prosecution subject to reinstatement in accordance with the applicable rules of civil procedure. Id.

In the instant case, the record reflects that no bond or report was filed by Reyna within the 90 day period. As a result, Santa Rosa filed a motion asking the trial court to enter an order increasing the cost bond in accordance with § 13.01(b) of article 4590i. This motion was granted.

After Reyna failed to file the increased cost bond within the allowed time, Santa Rosa filed a motion for dismissal. At the hearing on the dismissal motion, Reyna attempted to convince the trial court that his amended petition removed his claim from the strictures of the Act because his claim was no longer a health care liability claim as defined therein. Therefore, Reyna argued that he was not required to post the cost bond. The trial court disagreed and granted the motion for dismissal. Reyna is appealing that order.

The order dismissing Reyna’s claim was entered on September 18, 1995. Reyna filed an unverified motion to reinstate on October 17, 1995 that was overruled by operation of law. Thereafter, Reyna filed a cost bond in an effort to perfect the instant appeal on December 14, 1995.

Under Tex.R.App. P. 41(a)(1), Reyna had thirty days from the date the order was signed dismissing his cause in which to perfect his appeal in the absence of a timely motion for new trial or request for findings of fact and conclusions of law. A motion to reinstate extends the appellate timetable in the same manner as a motion for new trial, provided that it is properly verified in accordance with Tex.R. Civ. P. 165a. McConnell v. May, 800 S.W.2d 194, 194 (Tex.1990); Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex.1986). An unverified motion to reinstate does not extend the trial court’s plenary power or the appellate timetable. McConnell, 800 S.W.2d at 194; Butts, 705 S.W.2d at 697; State v. Martini, 902 S.W.2d 138, 140 (Tex.App.-Houston [1st Dist.] 1995, no writ).

*2 Reyna asserts that Tex.R. Civ. P. 165a is only applicable if the motion to reinstate relates to a dismissal for want of prosecution for failure to appear at a hearing or for cases not disposed of within the Texas Supreme Court’s docket administration standards. Reyna contends that since he is not seeking reinstatement from a dismissal granted for those reasons, his motion should not require verification but should be viewed as misdesignated under Tex.R. Civ. P. 71 and considered as a motion for new trial or the like.

Reyna’s argument is similar to the one raised by the plaintiff in City of McAllen v. Ramirez, 875 S.W.2d 702 (Tex.App.-Corpus Christi 1994, orig. proceeding). In Ramirez, the plaintiff originally filed an unverified motion to reinstate and for new trial after his workers’ compensation lawsuit was dismissed for want of prosecution. Id. at 703. In rejecting the plaintiff’s contention that his motion should be interpreted as a motion for new trial, rather than a motion to reinstate, the Corpus Christi court asserted that the relief requested determined whether the motion was governed by the verification requirements of Rule 165a. Id. at 704. The court held that where the relief requested is to reinstate the case, Rule 165a requires the motion to be verified regardless of the label attached to the motion by the plaintiff. Id. at 705; see also State v. Martini, 902 S.W.2d at 140-41 (motion for new trial is proper where plaintiff seeks to overcome more than mere dismissal).

Although we are not unsympathetic to Reyna’s plight, article 4590i, § 13.01(b)(2) of the Act expressly states that if the claimant fails to comply with the order requiring him to post an increased cost bond within the time specified, the action shall be dismissed for want of prosecution subject to reinstatement in accordance with the applicable rules of civil procedure. tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(b)(2) (Vernon Supp.1996). Since the relief Reyna requests in his motion is reinstatement of his cause, we hold that Reyna’s motion was required to be verified in accordance with Rule 165a in order to extend the appellate timetable. Because Reyna’s motion to reinstate was not verified, the appellate timetable was not extended. Therefore, the cost bond filed to perfect this appeal was untimely, and we lack jurisdiction to consider its merits.

	Footnotes
1		Although we note that the Act was amended in 1995 shortening the deadline from 30 days to 21 days, this deadline is not pertinent to this appeal.