Darley v. Texas Uvatan, Inc., 05-87-00281-CV

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

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.

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 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.

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 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 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.

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

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 appellant's appendix.

(emphasis added). When a free transcription is to be provided to a pauper, the court reporter has the responsibility to manage the task, but need not do it personally, and can instead farm out the work to a transcription service. Similarly, section 7 of the Order provides that the appellate court may direct "a party or the court reporter " to file a supplemental appended transcription, if one is needed (emphasis added). The section does not place the burden of providing a supplemental transcription solely or exclusively upon the court reporter. Furthermore, the Order requires that the court reporter certify only the electronic statement of facts, not the appended transcript.

Regarding the reliability of the transcription of the audio tape records, the Order contains its own mechanism to ensure accuracy without regard to who actually prepares it. Section 5 of the Order provides that the transcription shall be presumed to be accurate unless an objection is made. If there is an objection, section 9 provides the procedure by which it may be resolved (if the parties cannot reach agreement, the appellate court may resolve the dispute by reviewing the certified electronic tape itself or may refer the matter to the trial court in a procedure analogous to that now described in Texas Rule of Appellate Procedure 55(a)).

Based on the above, we hold that, when an appeal is based on an electronic statement of facts, a party may append to his brief a transcription of the electronic record made by someone other than the court reporter who presided during the actual proceedings. We hold, further, that the backlog of the presiding reporter's workload is not, in itself, a sufficiently reasonable explanation to request an extension for a brief in the absence of showing why someone else could not prepare the transcription of the electronic record.

Nonetheless, Darley did request the court reporter to provide the transcription for his appendix. Uvatan argued that the request to the court reporter for that transcription was not timely. Both these facts are addressed to our sound discretion under Texas Rule of Appellate Procedure 74(n), in considering the reasonableness of Darley's request for an extension. It may be that the particular court reporter who did preside at the proceedings is backlogged in his or her work, but Darley has made no showing that another transcriber could not accomplish the task more quickly.

The purpose of the Order, as expressed in its preamble, is "to determine if significant reductions can be made in the time required for appellate procedures and in the cost thereof." One means by which The second justification that concerns us here is that Darley wants the entire statement of facts transcribed into his appendix. Again, he makes no showing that the entire statement of facts is necessary for the points that he wishes to urge upon appeal.

the Order can accomplish its purpose is to free appellants seeking a transcription of the statement of facts from having to rely on a single individual. An appellant remains free to utilize the services of the official court reporter, of course, but if that choice results in an unreasonable delay in filing his brief, the appellant should be prepared to justify that choice in explaining why he needs the extra time to prepare his brief.

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