B. D. Click Co., Inc. v. Safari Drilling Corp., 5647

• Decision Date: 28 August 1981
• Docket Number: No. 5647,5647
• Citation: 625 S.W.2d 364
• Parties: B. D. CLICK COMPANY, INC., Appellant, v. SAFARI DRILLING CORPORATION et al., Appellees.
• Court: Texas Court of Appeals

Page 364

625 S.W.2d 364

B. D. CLICK COMPANY, INC., Appellant, v. SAFARI DRILLING CORPORATION et al., Appellees.

No. 5647.

Court of Civil Appeals of Texas, Eastland.

Aug. 28, 1981.

Joanne Strauss, Abilene, Donald M. Hunt, Carr, Evans, Fouts & Hunt, Lubbock, for appellant.

Charles Scarborough, Scarborough, Black, Tarpley & Scarborough, Roger Glandon, Glandon, Erwin, Baker, Choate & Elmore, Bob Lindsey, H. O. Quanah Parker, Legal Counsel, West Texas Marketing Corp., Bob Hanna, Robinson, Hanna, Moore & Holloway, John W. Weeks, Abilene, for appellees.

RALEIGH BROWN, Justice.

Safari Drilling Corporation sued B. D. Click Company, Inc. on a debt. Click counterclaimed against Safari and Mohawk Mud Company urging various theories of recovery. Mohawk filed a cross action against Click. Based on the jury's verdict, judgment was entered that both Safari and Mohawk recover against Click on their claims and Click was denied recovery against both on its claims. B. D. Click Company, Inc. appeals. We dismiss the appeal.

Judgment in the cause was rendered on September 12, 1980. Click's amended motion for new trial was overruled by order dated November 14, 1980. A cash deposit in lieu of bond was timely filed November 19, 1980.

The transcript and statement of facts were not timely filed. Under the 1980 version of Tex.R.Civ.P. 386, they should have been filed within 60 days from the date of the order overruling the motion for new trial, that being January 13, 1981. Under the 1981 version of Tex.R.Civ.P. 386, they should have been filed within 100 days after the judgment was signed, that being December 21, 1980, since there was a timely filed motion for new trial. The transcript and statement of facts were not received by the clerk of this court until February 23, 1981. There was no timely motion for an extension of time under Tex.R.Civ.P. 21c.

On March 12, 1981, this court granted appellant's motion to consider the transcript and statement of facts filed late in this cause based on the 1981 version of Tex.R.Civ.P. 386 ¹ which seemed to authorize us to hear this appeal on its merits. However, this court, considering the same issue in an opinion handed down on June 25, 1981, in cause No. 5645, In Re: Michael James Brazil, Child, 621 S.W.2d 811, said On May 6, 1981, the Supreme Court refused an application for writ of error in Briscoe v. Gulf Supply Co., Inc., 612 S.W.2d 88 (Tex.Civ.App.-Fort Worth 1981, writ ref'd n. r. e.), which contains the statement at page 90 that:

We would be without authority to treat a transcript as a proper part of the appellate record for purposes of disposition of the appeal on its merits when the appellant had neither "timely filed" it, by Rule 386, nor within the 15 days after that last day it might have been "timely filed," filed a motion to have extended the time within which it might be authorized to be filed by the provisions of Rule 21c.

Since the quoted language controlled the disposition of the case in Briscoe, we conclude that the Supreme Court's notation of "no reversible error" means that the language in Tex.R.Civ.P. 386 (which provides that a late filing does not deprive the appellate court of jurisdiction) is limited by the language contained in Tex.R.Civ.P. 21c which requires that motions for extensions of time must be filed "within 15 days of the last date for filing as prescribed by the applicable rule or rules." To hold otherwise would permit an appellant to perfect an appeal subject only to the discretion of the appellate court, without any time limitations on the filing of the transcript and statement of facts. Rule 21c not only has a time limitation, but it also requires a motion "reasonably explaining the need" for an extension of time.

Further support for this position is found in the application of the enlargement rules and the interpretation placed thereon by our Supreme Court.

Tex.R.Civ.P. 5 provides for enlargement of time within which an act must be performed by stating:

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion (a) with or without motion or notice, order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or (b) upon motion permit the act to be done after the expiration of the specified period where good cause is shown for the failure to act; but it may not enlarge the period for taking any action under the rules relating to new trials or motions for rehearing or the period for taking an appeal or writ of error from the trial court to any higher court or the period for application for writ of error in the Supreme Court, except as stated in these rules ;... (emphasis added)

Tex.R.Civ.P. 21c provides:

An extension of time may be granted for late filing in a court of civil appeals of a transcript, statement of facts, motion for rehearing, or application to the supreme court for writ of error, if a motion reasonably explaining the need therefor is filed within fifteen (15) days of the last date for filing as prescribed by the applicable rule or rules. (emphasis added)

Our Supreme Court in Meshwert v. Meshwert, 549 S.W.2d 383 (Tex.1977), considering Rule 21c, said:

The fifteen-day time limit is mandatory; and unless a motion is filed within fifteen days, the court of civil appeals cannot grant leave to file the instruments.

Tex.R.Civ.P. 437 states:

A judgment shall not be affirmed or reversed or an appeal dismissed for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities, provided the court may make no enlargement of time prohibited by Rule 5 nor any enlargement of the time for filing transcript and statement of facts except pursuant to Rule 21c. (emphasis added)

Prior to the adoption of Rule 21c, the Supreme Court in Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952) considering the application of Rule 437 said Rule 5 vests broad discretion in courts to allow enlargement of...