Continental Oil Co. v. Dobie

• Decision Date: 12 May 1977
• Docket Number: No. 1197,1197
• Citation: 552 S.W.2d 183
• Parties: CONTINENTAL OIL COMPANY et al., Appellants, v. Richard B. DOBIE et ux., Appellees.
• Court: Texas Court of Appeals

Page 183

552 S.W.2d 183

CONTINENTAL OIL COMPANY et al., Appellants, v. Richard B. DOBIE et ux., Appellees.

No. 1197.

Court of Civil Appeals of Texas, Corpus Christi.

May 12, 1977.

Rehearing Denied June 2, 1977.

William E. Geer, Keys, Russell Seaman & Mansker, Corpus Christi, for appellants.

Harry J. Schulz, Three Rivers, for appellees.

OPINION

PER CURIAM.

This case is before us on appellants' motion for extension of time to file their brief and appellees' motion to dismiss the appeal. A thorough recitation of prior motions and dates is helpful in determining the basis for our decision.

The transcript and statement of facts in this appeal should have been filed on January 10, 1977. Rule 386, T.R.C.P. On January 11, 1977, the appellants tendered the transcript and were told by the Clerk of this Court that a motion for extension of time and for leave to file the transcript and statement of facts would be required under Rule 21c, T.R.C.P. The motion was filed and the time was extended. A second motion for extension of time to file the statement of facts was filed in which the appellants requested that the time be extended to March 4, 1977. The motion was also granted extending the time only until February 24, 1977. The statement of facts was then approved by the parties and filed on February 24, 1977. This filing set in motion the filing requirements of appellants' and appellees' briefs. Appellants' brief was due to be filed on March 26, 1977. Since this date fell on Saturday, its time was automatically extended until Monday, March 28, 1977. See Rule 4, T.R.C.P. Appellants did not tender its brief until April 18, 1977.

In the meantime, the Clerk of this Court, by letter dated March 8, 1977, notified the attorneys for all parties that the Court had set the case for submission and for oral argument on April 28, 1977. This date was 63 days after the statement of facts was filed in this Court. This notification gave the appellants ample time to file their brief and appellees sufficient time to file their reply brief before submission of the case.

The appellants' excuse for its failure to timely file its brief was that it was under the "mistaken belief" that the time for filing of appellants' brief was 30 days after a certain supplemental transcript was filed in this Court.

On March 21, 1977, the Clerk of this Court received a supplemental transcript from the District Clerk of Live Oak County. Appellees filed a motion for leave to file the supplemental transcript on March 24, 1977. On March 29, the appellants responded to appellees' motion in which response, the appellants contended that the motion should be denied in part as to the depositions concerning two specific witnesses which were included in the supplemental transcript. The motion was not acted upon by this Court until March 31, 1977, at which time the appellants' brief was already three (3) days late.

The question presented by appellants' motion for extension of time to file its brief and appellees' motion to dismiss the appeal is whether or not appellants have shown "good cause" for not filing its brief on time.

Rule 414, T.R.C.P. provides that the appellants' brief is due thirty (30) days after the filing of the transcript and statement of facts. The rule further provides that upon a showing of good cause, this Court may grant a party further time for filing his brief. Rule 415, T.R.C.P., provides that when an appellant has failed to file its brief in the time prescribed by the rules of civil procedure, the appellate court may dismiss the appeal for want of prosecution, unless there is a showing of good cause for the failure to timely file such brief and a showing that the appellee has not suffered material injury thereby. Appellants' cause for the late filing as stated in its motion for leave to file its brief was the fact that appellants' attorney "mistakenly believed" that the filing period (30 days) began from the date the supplemental transcript was filed, March 21, 1977. The appellants offer no other plausible excuse.

As a general rule, the Texas appellate courts have stated that good cause under Rule 414 exists only where the timely failure to file the brief was prevented by some event beyond the immediate control of the litigant and which was to some extent unforeseeable. Rodriquez v. Flores, 426 S.W.2d 285 (Tex.Civ.App. San Antonio 1968, no writ); Lee v. Owen, 404 S.W.2d 84 (Tex.Civ.App. San Antonio 1966, no writ); Texaco Inc. v. Joffrion, 363 S.W.2d 827 (Tex.Civ.App. Texarkana 1962, writ ref'd n. r. e.). The case of Weaver v. Ham, 429 S.W.2d 687 (Tex.Civ.App. Dallas 1968, no writ) is somewhat analogous to the case at bar. In the Weaver case, the appellant tendered her brief late. The only excuse offered for the late filing of the brief was that the appellant had been waiting to receive a copy of a supplemental transcript which had been requested by the appellee. The court held this was not a valid excuse and ordered the appellant's tendered brief stricken. In the case of In re Salinas, 530 S.W.2d 633 (Tex.Civ.App. Corpus Christi 1975, no writ), this Court denied an appellee's motion for extension of time to file the brief when the only cause shown was that the appellee's attorney was mistaken about the submission date. For some other examples of other facts which have been held not to constitute good cause, see Burns v. Allied Mills, Inc., 468 S.W.2d 119 (Tex.Civ.App. Texarkana 1971, no writ) (other pressing matters); Pena v. Petroleum Casualty Company, 441 S.W.2d 657 (Tex.Civ.App. Beaumont 1969, no writ) (appellee's counsel told appellant the case would be compromised); Texaco Inc. v. Joffrion, supra (attorney had other pressing work); Julian v. Carrollton Independent School District, 346 S.W.2d 189 (Tex.Civ.App. Texarkana 1961, no writ) (misplacing of file by attorney); Garlington v. Reed, 319 S.W.2d 367 (Tex.Civ.App. Eastland 1959, no writ), (agreement between parties not to comply with rules of civil procedure); Krasner v. Abbott, 315 S.W.2d 45 (Tex.Civ.App. San Antonio 1958, no writ) (appellants attorney engaged in criminal trial).

Rule 1, T.R.C.P., sets out the optimum objectives of the rules of civil procedure. They are to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. This rule admonishes the appellate court to give a liberal construction to the rules of civil procedure.

Rule 386, "Time to File Transcript and Statement of Facts" sets the time in which the due date for the record is to be filed.

Rule 414, "Briefs: Time for Filing, Etc." states that the 30 days for the filing of appellant's brief begins to run from the time the transcript and statement of facts are filed.

Rule 414 (time brief is due) relates only to Rule 386 (when record is due) and not to the rules that permit the record to be amended. Rules 428 and 429 allow either party, the trial court, or the appellate court to amend the record either before or after submission and do not relate in any way to the time for the filing of briefs. Even if we were to give the most liberal construction possible, these rules do not permit a party to an appeal to select his own filing date for his brief or to operate under its own interpretation of these rules, especially where the rules are clear and unambiguous. If the contrary were the case, we would have no orderly conduct of the trial or appellate process.

Next, the appellants have not shown that the appellees have not suffered material injury by the late tender of appellants' brief. The rules of civil procedure provide that four weeks notice shall be given to the parties before a case is set for submission. It has been the policy of this Court for many, many years to give more notice than the rules provide. In most instances six weeks to two months notice of the setting is given to the attorney so that the attorneys can schedule their time more advantageously. This advanced notice also prevents unnecessary postponements of submission dates because of business or trial conflicts. Coupled with this policy are our local rules ¹ which state in effect, that submission dates will not be changed except upon a showing of good cause or in cases of emergency. The appellants acknowledged that they received a copy of our local rules. These local rules do not conflict with any of the Texas Rules of Civil Procedure. They only supplement such rules by suggestions to the attorneys who practice before this Court. These local rules remind the attorneys representing appellants to file their brief within 30 days after the transcript and statement of facts are filed.

It is, therefore, an additional factor which mitigates against the appellants' position by the fact that the case was set for submission by notice mailed March 8, 1977 for a submission date of April 28, 1977. This advanced setting date gave the appellants and appellees each their allotted time to file their briefs in accordance with the rules of civil procedure. The appellants have not demonstrated good cause or emergency as a reason for rescheduling the submission of the case. It should have been very apparent to appellants' attorneys that their brief was going to be due within the time prior to the setting of the case and at a sufficient prior time that would permit the appellees to file their brief in the allotted time provided by the rules.

It is a well established principle of law that an appellee has a valuable right to have a case heard and disposed of in its regular order. The untimely tender of appellant's brief, if permitted to stand would deny appellee his allotted briefing time. Appellee contends it would amount to a material injury to his clients. We agree. See Rodriquez v. Flores, supra; Mitchell v. Gregg, 394 S.W.2d 665 (Tex.Civ.App. Tyler 1965, no writ); Davis v. Morgan Drive Away, Inc., 391 S.W.2d 165 (Tex.Civ.App. Tyler 1965, no writ); Graves v. Connecticut Gen. Life...