Adams v. H.R. Management and La Plaza, Ltd.

• Decision Date: 21 August 1985
• Docket Number: No. 04-84-00562-CV,04-84-00562-CV
• Parties: Joanne Nix ADAMS, Appellant, v. H.R. MANAGEMENT AND La PLAZA, LTD., Appellees.
• Court: Texas Court of Appeals

Page 256

696 S.W.2d 256

Joanne Nix ADAMS, Appellant, v. H.R. MANAGEMENT AND La PLAZA, LTD., Appellees.

No. 04-84-00562-CV.

Court of Appeals of Texas,

San Antonio.

Aug. 21, 1985.

Stephen F. White, Jack H. Robison, Hollon, Marion & Richards, Boerne, for appellant.

Thomas E. Quirk, Beckman, Krenek, Olson & Quirk, San Antonio, for appellees.

Before the Court en banc.

ON APPELLANT'S FIRST MOTION FOR RECONSIDERATION EN BANC OF

APPELLANT'S SECOND MOTION TO EXTEND TIME FOR FILING RECORD

CADENA, Chief Justice.

In two previous opinions we have considered appellant's requests for additional time in which to file her statement of facts. In the first opinion dated February 28, 1985, we granted the motion to extend time for filing the record for the reason that the request included both the transcript and the statement of facts, and a reasonable explanation for extending the time to file the transcript was presented. See Embry v. Bel-Aire Corp., 502 S.W.2d 543, 544 (Tex.1973); Hill Chemicals Co. v. Miller, 462 S.W.2d 568, 569 (Tex.1971); Duncan v. Duncan, 371 S.W.2d 873, 874 (Tex.1963); Anzaldua v. Richardson, 279 S.W.2d 169, 170-71 (Tex.Civ.App.--San Antonio 1955, no writ). We denied the second request for an extension of time in which to file the statement of facts in an opinion dated April 3, 1985. Although the motion was couched in terms of a request for extension of time file the record, the transcript had already been filed, and thus the only matter presented for our consideration was whether to extend time to file the statement of facts. We denied the motion because appellant had not filed a written request with the court reporter for the preparation of the statement of facts by December 13, 1984, the time by which the appeal was to be perfected. Odom v. Olafson, 675 S.W.2d 581, 582 (Tex.App.--San Antonio 1984, writ dism'd w.o.j.); Rule 377(a). ¹ Written request to the court reporter was made on December 26, 1984, thirteen days after the time prescribed for perfecting the appeal. Appellant has now filed a motion for reconsideration en banc of our denial of her motion for an extension of time.

This motion for reconsideration contains two affidavits--one from one of the court reporters who transcribed the testimony at trial, and one from Stephen F. White, one of appellant's trial attorneys. They show the following:

This was an eight day trial, and the statement of facts will run to several hundred pages. On either November 27th or 29th, White spoke with both court reporters about the statement of facts. He was told that it would be quite some time before preparation of the statement of facts could begin since both reporters were busy working on several other records. He requested affidavits to that effect from both reporters in anticipation of filing a motion for extension of time. White's conversations with the two reporters led him to believe his co-counsel had already made a written request, and the only discussion White conducted with them concerned financial arrangements. White also had a lengthy conversation with the trial judge regarding arrangements for payment of the reporters. From the tenor of this conversation, White again assumed that the written request had been filed; otherwise, he assumed, the judge would not have required the making of financial arrangements unless he, too, assumed that a proper written request had been made.

White first noticed the absence of a written request upon his review of the appellate record on December 26, 1984. He discussed this with his co-counsel who indicated that he thought White had filed the request. The written request was immediately prepared and filed on December 26, 1984.

In summation, White concludes that the late filing of the request resulted from a lack of communication with his law office and his misinterpretation of the signals he received from the reporters and the judge.

A panel of this court in Odom held that the language of Rule 377(a) left us no discretion to permit the filing of a statement of facts by an appellant who has not complied with the mandate of the rule. 675 S.W.2d at 582. While the rule is written in mandatory language, there are certain situations in which such an interpretation is much too harsh. The better view is that the supreme court did not, by its amendment to Rule 377(a), intend to impose a new restrictive deadline in the appellate process. Monk v. Dallas Brake & Clutch Service Co., 683 S.W.2d 107, 109 (Tex.App.--Dallas 1984, no writ). Such an interpretation would be consistent with the supreme court's objective in promulgating its recent amendments to the rules of appellate procedure. That objective was to eliminate as far as possible the technical restrictions which sometime result in the disposition of appeals on grounds unrelated to the merits. B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 861 (Tex.1982); Monk, 683 S.W.2d at 109. As we wrote in Odom, the purpose of the amendment to Rule 377(a) seemed to be to promote the timely filing of statements of facts insofar as that goal could be accomplished. 675 S.W.2d at 582. The instant case illustrates that that laudable goal is not furthered by strict adherence to the rule in each and every instance.

It is apparent in the instant case that compliance with Rule 377(a) would not have resulted in the timely filing of the statement of facts. Both reporters were so encumbered with pending work that even if they had received a timely written request in accordance with Rule 377(a), they would not have been able to prepare the statement of facts in this case by the time it was due. A rigid adherence to a mandatory interpretation of Rule 377(a) in every case will not further the purpose of the rule--the prompt and efficient disposition of appeals. In cases where that goal is not advanced--such as the instant case--rigid adherence to Rule 377(a) will not promote the efficiency of the appellate process. It will resurrect the old in terrorem philosophy of appeals which the supreme court has sought to bury. Pope & McConnico, Practicing Law with the 1981 Texas Rules, 32 BAYLOR L.REV. 457, 492 (1980). It heralds a return to disposition of appeals by technicality rather than on their merits.

We refuse to apply Rule 377(a) strictly in situations where the written request, timely filed, would not have insured that the statement of facts would be filed on time. Accordingly, we limit the holding in Odom to the more extreme facts...