Castillo v. Sears, Roebuck & Co.

• Decision Date: 30 November 1983
• Docket Number: No. 04-81-00383-CV,04-81-00383-CV
• Citation: 663 S.W.2d 60
• Parties: Hector CASTILLO, Sr. a/n/f Hector Castillo, Jr. and Ricardo Castillo, Appellants, v. SEARS, ROEBUCK & CO. and Mall Del Norte, Appellees.
• Court: Texas Court of Appeals

Page 60

663 S.W.2d 60

Hector CASTILLO, Sr. a/n/f Hector Castillo, Jr. and Ricardo

Castillo, Appellants, v. SEARS, ROEBUCK & CO. and Mall Del Norte, Appellees.

No. 04-81-00383-CV.

Court of Appeals of Texas,

San Antonio.

Nov. 30, 1983.

Rehearing Denied Dec. 27, 1983.

C.M. Zaffirini, Zaffirini & Volpe, Arturo Volpe, Laredo, for appellants.

Jess W. Young, Young & Murray, Inc., San Antonio, for appellees.

Before ESQUIVEL, CANTU and REEVES, JJ.

OPINION

ESQUIVEL, Justice.

MOTION TO RECONSIDER APPELLEES' MOTION TO DISMISS APPEAL OR

IN THE ALTERNATIVE AFFIRM THE JUDGMENT OF THE TRIAL COURT

Before discussing the merits of this case, we must consider the appellees' motion to dismiss or in the alternative affirm the judgment of the trial court. Appellees contend that the appellants' brief was not filed within the required thirty (30) day period immediately following the filing of the Transcript as prescribed by Rule 414. ¹ Appellants also had not filed a Motion to Extend Time for filing the Appellants' Brief until forty-seven (47) days after the proper time for filing. Appellees further urge that the appellants' failed to show good cause for the late filing.

The trial court entered a summary judgment in this case on October 17, 1981. The appeal bond was filed October 21, 1981 and the transcript on October 29, 1981. The appellants' brief was due November 28, 1981. After examining the record in this case and noting that the appellants had not filed their brief by the date due, the Clerk of this Court, on January 14, 1982, notified counsel for the appellants' of this failure and of their failure to file a motion for extension of time to file appellants' brief. Appellants' response to this letter was a "motion for extension of time to file appellants' record [sic]" filed on January 22, 1982. Appellants tendered their brief as an attachment to their motion. This court granted appellants' motion for extension of time to file appellants' brief and denied the appellees' motion to dismiss on March 11, 1982.

Rule 414 provides that appellant's brief shall be filed within thirty days after the record is filed, and that upon reasonable explanation shown, ² the court of appeals may grant an extension of time. Such rule standing alone would hardly vest our court with any discretion to allow an extension of time except upon a showing of a reasonable explanation. However, Rule 415, which authorizes the court to dismiss the appeal for want of prosecution where appellant has failed to timely file his brief or show a reasonable explanation with no material injury to appellee, provides by clear and unambiguous terms that the court may decline, in any event to dismiss the appeal. Hoke v. Poser, 384 S.W.2d 335, 336 (Tex.1964); Johnston Sales Company v. Lizana, 508 S.W.2d 693, 695 (Tex.Civ.App.--San Antonio 1974, no writ). Thus, the court of appeals "may" grant either party further time for filing briefs, and courts of appeals are given broad discretion regarding the time for filing the same. Rodriquez v. Flores, 426 S.W.2d 285, 286 (Tex.Civ.App.--San Antonio 1968, no writ).

In his motion for extension of time, counsel for appellants explained that he completed the appellants' brief prior to its due date, but that his office failed to record the filing deadline for the brief on the office calendar. He was not aware that the brief had not been filed until the Clerk of this Court notified him by letter. A strict showing of a reasonable explanation is not necessary. Akers v. City of Grand Prairie, 572 S.W.2d 22, 23 (Tex.Civ.App.--Dallas 1978, no writ). A "reasonable explanation" is any plausible statement of circumstances indicating that failure to file within the period prescribed by the applicable rule was not deliberate or intentional, but was the result of inadvertance, mistake or mischance. Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex.1977). In this case, appellants' counsel cites "office error" as the reason for the untimely filing. Although this reason is tenuous, and we disapprove of this practice, we cannot say that the appellees were harmed by the delay. The late filing of appellants' brief did not delay submission of this cause, nor did it prejudice the appellees' ability to respond to the appellants' brief since we granted their motion for extension of time to file appellees' brief when this case had not yet been set for submission. For these reasons dismissal of the cause would be unwarranted. Montgomery Ward & Co. v. Dalton, 602 S.W.2d 130, 131 (Tex.Civ.App.--El Paso 1980, no writ). Therefore, appellees' motion to dismiss the appeal or affirm the judgment of the trial court is denied.

MERITS

This is an action by appellants, two business invitees, for damages for injuries allegedly resulting from the negligence of the defendant retail storekeeper and the defendant shopping Mall. The defendants', Sears, Roebuck & Company (Sears) and Mall Del Norte (Mall), motion for summary judgment was granted. We affirm.

The appellants bring nine points of error, but the sole issue on appeal is whether the pleadings, deposition and affidavits presented to the trial judge upon consideration of the motion for summary judgment "show that, ... there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 166-A.

Plaintiffs' first amended original petition alleges that:

IV.

It is shown that on the occasion in question defendants were negligent in each of the following respects, and [sic] one of which taken either separately or concurrently with another, was a proximate cause of the injuries and damages sustained by the plaintiffs.

1. In allowing the plaintiffs to be assailed and assaulted by Rodolfo Torres, Jr. and one unknown person while at the Sears store at Mall del Norte.

2. In failing to assist the Plaintiffs as they were being assaulted.

3. In failing to take measures to prevent the assault by restraining the said Torres.

* * *

* * *

V.

It is further shown that on the occasion in question, defendants had a duty to plaintiffs in each of the following respects, any one of which taken either separately or concurrently with another, whose breach was the proximate cause of the injuries and damages sustained by the Plaintiffs:

1. Defendants, by reason of their location, mode of business observation or past experience should reasonably anticipate criminal conduct by third persons on their premises, either generally or as is the case at bar on or about Christmas time, at some particular time have a duty to take precautions against such criminal conduct and to provide an effective warning or a reasonably sufficient number of servants, employees, or agents to afford reasonable protection to their business invitees on the premises.

Sears and the Malls' motion for summary judgment was based on the pleadings (plaintiff's amended complaint and the defendants' first amended original answer), and the depositions of the appellants, portions of which are extensively quoted in the motion. Although appellees' motion for summary judgment relies on and quotes at length from the alleged oral depositions of the appellants, both parties to this action have failed to bring forward on appeal the mentioned depositions of the appellants. It is apparent that the record on appeal is not the complete record which was before the trial court. Though we have no doubt that depositions were taken, the quotations from the deposition of the appellants in the defendants' motion for summary judgment, unauthenticated as they are, amount to no more than hearsay from outside the record, and therefore cannot be given the effect of testimony. Nagelson v. Fair Park National Bank, 351 S.W.2d 925, 929 (Tex.Civ.App.--Dallas 1961, writ ref'd n.r.e.). In the absence of the complete record considered by the trial court, the presumption on appeal is that the omitted depositions established the propriety of the summary judgment rendered below. Bering v. Republic Bank of San Antonio, 581 S.W.2d 806, 809 (Tex.Civ.App.--Corpus Christi 1979, writ ref'd n.r.e.); Williams v. Mack Financial Corp., 505 S.W.2d 316, 319 (Tex.Civ.App.--Tyler 1973, writ ref'd n.r.e.). We therefore will not consider that portion of defendants' motion that quotes from the appellants' deposition.

Appellants contend that a genuine issue of material fact exists in the following respects: 1) whether Sears and the Mall owe their patrons a duty of security; 2) whether the failure to provide such security was the proximate cause of the appellants' injuries, and 3) whether Sears and the Mall should have foreseen the possibility of criminal acts of third persons in their place of business. Appellants also allege that the affidavit of an expert witness stating his opinion about the security at Sears and the Mall raised a substantial fact issue, and that the trial court therefore erred in granting the appellees' motion for summary judgment. We do not agree.

In reviewing a summary judgment record, it is the duty of the appellate court to apply the following rules: 1) A defendant moving for summary judgment assumes the burden of showing as a matter of law that the plaintiff had no cause of action against him. Citizens First National Bank of Tyler v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex.1976). The question then becomes whether Sears and the Mall's summary judgment proof establishes as a matter of law, that at least one or more essential elements of the Castillo brothers' cause of action does not exist. Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975). 2) In deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant (the Castillo brothers) will be taken as true. Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286, 287 (1957). 3) Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in their favor. Wilcox v. St. Mary's...