Darley v. Texas Uvatan, Inc., No. 05-87-00281-CV

• Court: Court of Appeals of Texas
• Writing for the Court: Before ENOCH; ENOCH
• Citation: 741 S.W.2d 200
• Docket Number: No. 05-87-00281-CV
• Decision Date: 06 November 1987
• Parties: Don DARLEY, Appellant, v. TEXAS UVATAN, INC., Appellee.

Page 200

741 S.W.2d 200 Don DARLEY, Appellant,
v.
TEXAS UVATAN, INC., Appellee. No. 05-87-00281-CV. Court of Appeals of Texas,
Dallas. Nov. 6, 1987.

Page 201

Keith E. Jagmin, Dallas, for appellant.

Elizabeth F. Zaby, Dallas, for appellee.

Before ENOCH, C.J., and LAGARDE and THOMAS, JJ.

ENOCH, Chief Justice.

Texas Uvatan, Inc. ("Uvatan") moves to dismiss this appeal, arguing, in part, that Don Darley ("Darley") has not timely requested or filed the statement of facts pursuant to Texas Rules of Appellate Procedure 53(a) and 54. For the reasons given below, we deny Uvatan's motion.

The trial court rendered its judgment on December 1, 1986. Darley timely perfected his appeal on February 25, 1987. The "statement of facts" tendered to this Court consisted of electronic audio tapes of the trial court proceedings, the court's certification of the accuracy and authenticity of those tapes, and its log regarding the contents of the tapes and a list of exhibits with copies attached thereto. This filing was in compliance with an order (the "Order") of the Supreme Court of Texas, dated January

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8, 1986, ¹ establishing a pilot project for the district courts of Dallas County and implementing the use of electronic statements of facts for appeals in this Court.

Section 4 of the Order provides that the court reporter shall file the statement of facts within fifteen days of the perfection of an appeal. Since Darley perfected his appeal on February 25, the deadline to file the statement of facts was March 12. We hold that the "statement of facts," that is to say, the electronic tapes, the certification, and the log described above, having been filed on March 10, was timely filed.

Section 5 of the Order states that: "[e]ach party shall file with his brief an appendix containing a written transcription of all portions of the recorded statement of facts and a copy of all exhibits relevant to the error asserted." Accordingly, Darley requested the court reporter to prepare a transcription of the electronic tape to be used as an appendix to his brief.

During the course of preparing the appeal, Darley filed a motion to extend the time to file his brief on April 24. In response to Darley's motion to extend the time to file his brief, Uvatan argued that Darley had not complied with Rules 53(a) and 54(c) (the time for filing of statements of facts generally). In essence, Uvatan asserted that the appendix to the brief is an integral part of the "statement of facts," and it was, therefore, impermissibly late. Based upon this argument, Uvatan urged that this appeal should be dismissed.

In support of its position, Uvatan additionally relies on section 4 of the Order: "No other filing deadlines as set out in the Texas Rules of [Appellate] Procedure are changed." Accordingly, Uvatan concludes that Darley was still required, under rule 54(c), to file a timely motion requesting an extension for the proposed appendix for his brief. See B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860 (Tex.1982). We conclude, however, that Uvatan's reliance is misplaced. The quoted clause means that an appellant must timely file the "statement of facts." In the case of electronic recording of trial proceedings, pursuant to the Order, the "statement of facts" is the audio tape, the reporter's certification, and log. Nowhere in the Order does it say either that the appendix to the brief is part of the "statement of facts" or that it must be filed in compliance with rule 54.

Section 3 of the Order recites:

3. Statement of Facts. The statement of facts on appeal from any proceeding of which an electronic tape recording has been made shall be:

a. A standard cassette recording, labeled to reflect clearly the contents of the cassette, and numbered if more than one cassette is required, certified by the court reporter to be a clear and accurate copy of the original recording of the entire proceeding;

b. A copy of the typewritten and original logs filed in the case certified by the court reporter; and

c. All exhibits, arranged in numerical order and firmly bound together so far as practicable, with a list in numerical order and a brief identifying description of each.

(emphasis added). This section does not mention anything about a written transcription and there is no dispute that Darley timely filed each of the three specified items. Therefore, we hold that Darley timely filed the "statement of facts" on this appeal.

When parties appeal a case that has been electronically recorded under the authority of the Order, we conclude that Texas Rule of Appellate Procedure 53(a) governs the timeliness of the request to the reporter for the statement of facts as that term is defined in the Order; similarly, Texas Rule of Appellate Procedure 54(c), in conjunction with section 4 of the Order, governs our authority to consider a statement of facts as that term is defined in the Order. Once an appellant has timely filed the certified cassette recording, the certified copy of the typewritten and original logs, and the exhibits that section 3 of the Order requires, he has met all the necessary

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jurisdictional requirements for invoking the authority of this Court to consider the statement of facts.

We next turn to consider Darley's motion for an extension of time to file his brief. He has requested an additional 52 days from the original due date. Section 5 of the Order contemplates an appellant's filing an appendix, containing an appropriate transcription of the electronic statement of facts, simultaneously with his brief. If more time is needed to prepare that appendix, then the appropriate remedy is to move for more time in which to file the brief, and we hold that an extension of time to file the brief is the correct relief.

Among other reasons, though, Darley gives two justifications for needing additional time to prepare the appendix, and hence to file his brief. First, he informs us that he requested specifically the court reporter to prepare the transcription to be appended to his brief and that the reporter is backlogged with other work.

We note that nothing in the Order mandates that only the official court reporter prepare the appendix. In fact, the Order is written to the contrary. Section 9 of the Order, concerning paupers seeking a free statement of facts and a free transcription thereof, states that:

For purposes of the pilot program Texas Rules of Civil Procedure 380 [now Texas Rules of Appellate Procedure 53(j) ] shall be interpreted to require the court reporter to transcribe or have transcribed the recorded statement of facts and file it as...