National Union Fire Ins. Co. of Pittsburgh, Pennsylvania v. Ninth Court of Appeals

• Decision Date: 27 October 1993
• Docket Number: No. D-3492,D-3492
• Parties: NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, Relator, v. The NINTH COURT OF APPEALS, Respondent.
• Court: Texas Supreme Court

Page 58

864 S.W.2d 58

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, Relator, v. The NINTH COURT OF APPEALS, Respondent.

No. D-3492.

Supreme Court of Texas.

Oct. 27, 1993.

George W. Vie, III, Galveston, for relator.

E. Casey Magan, Houston, for respondent.

OPINION

CORNYN, Justice.

In this original mandamus proceeding, National Union Fire Insurance Company seeks relief from a January 28, 1993, order of the Ninth Court of Appeals in which it withdrew an October 15, 1992, order that had granted National an extension of time to file an electronic statement of facts. National's appeal arises from an adverse judgment in a workers' compensation action filed in Liberty County by Floyd Smith, the real party in interest. 852 S.W.2d 1. The effect of the court's January 28, 1993, order is that National has no statement of facts timely filed with the court of appeals. National argues that the court of appeals abused its discretion in withdrawing its earlier order, which allowed National an extension of time to file the statement of facts, and that it has no adequate remedy at law. We agree, and conditionally grant the writ.

The record of proceedings in the trial court, which National seeks to file with the court of appeals, consists of an electronic tape recording. This type of record is permitted by our order adopting rules for making a record of court proceedings by electronic recording in Liberty County. See Misc. Docket No. 91-0058, Adoption of Rules for Liberty County for Making a Record of Court Proceedings by Electronic Recording. These rules require, however, that the court recorder "shall file the statement of facts with the court of appeals within fifteen days of the perfection of an appeal or writ of error." Id. at p. 4. Because National perfected its appeal on September 15, 1992, its statement of facts was due by September 30, 1992. ¹ On October 14, 1992, within the fifteen days' grace period allowed for such motions by TEX.R.APP.P. 54(c), National filed its motion to extend time to file the statement of facts, and the court of appeals granted that motion on October 15, postponing National's deadline until November 17, 1992. On November 10th, however, Smith urged the court of appeals to withdraw the order extending National's deadline and to dismiss the appeal, claiming that National's October 14 motion did not reasonably explain the reason for delay. After a response by National and a reply by Smith, on January 28, 1993, the court of appeals withdrew its order of October 15, 1992, disregarding the statement of facts already filed on November 17, 1992. As a result, National has no timely filed statement of facts upon which to base its appeal. The court of appeals did not, however, dismiss the appeal.

Abuse of Discretion

TEX.R.APP.P. 54(c) ² provides:

An extension of time may be granted for late filing in a court of appeals of a transcript or statement of facts, if a motion reasonably explaining the need therefor is filed by appellant with the court of appeals not later than fifteen days after the last date for filing the record. Such motion shall also reasonably explain any delay in the request required by Rule 53(a).

(emphasis added). One thing is immediately clear from the rule: the court of appeals "may" grant such a motion, but it is not required to do so. And, although we hold that the court of appeals abused its discretion, it did so not by refusing National an extension of time, but by basing its decision on an erroneous legal standard for judging the reasonableness of the movant's explanation. It would not necessarily have been an abuse of discretion to deny the extension of time; Rule 54(c) specifically makes such a decision discretionary. ³ Even "if a motion reasonably explaining the need therefor is filed," the court is not compelled to grant the motion. While a court of appeals may not grant a motion that lacks a reasonable explanation, the mere presence of a reasonable explanation does not require that the court of appeals grant the motion. Nothing in the remainder of Rule 54(c) divests the court of appeals of the discretion granted it by the word "may" in the first line.

In its opinion withdrawing its original order, the court of appeals held that National's motion was deficient because it "failed to reasonably explain the need for an extension of time for the late filing of the statement of facts in this case." 852 S.W.2d at 2. By holding that National's explanation failed to meet the standard for reasonableness in Rule 54(c), the court of appeals misapplied legal principles, and at that level committed an abuse of discretion. ⁴ In Garcia v. Kastner Farms, Inc., 774 S.W.2d 668 (Tex.1989), we defined "reasonably explaining" in the context of TEX.R.APP.P. 41(a) as follows:

In Meshwert [Meshwert v. Meshwert, 549 S.W.2d 383 (1977) ], we defined the phrase "reasonably explaining," to mean "any plausible statement of circumstances indicating that failure to file within the [required] period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance."

Id. at 669. In fact, "[a]ny conduct short of deliberate or intentional noncompliance qualifies ... even if that conduct can also be characterized as professional negligence." Id. at 670. Under this generous standard, it is clear that National's explanation of its need for an extension of time qualifies as a reasonable explanation.

National's original Motion to Extend Time filed on October 14, 1992, contained ample evidence of a reasonable explanation for its need for an extension of time. National was confused about almost every element of the proper procedures that must be followed in counties authorized to make records of court proceedings by electronic recording. First, National recited the date that the judgment was signed, and from that calculated that October 19, 1992, being 120 days from that date, was the last timely date to file the statement of facts. Second, its motion related that the clerk had advised it of the fifteen-days-from-perfection deadline, but National believed the clerk to be mistaken. Third, while professing knowledge of certain rules for Harris and Dallas County, National explained that to its knowledge this court had yet to adopt rules relating to the making of a record by electronic recording for Liberty County. Fourth, National's motion explained that it needed time "so that the court reporter may transfer to this Court the certified cassette copy of the original recording of the trial proceeding." Fifth, National's motion requested an order from the court of appeals "setting out the requirements of the parties relating to any appendix and written transcription of all portions of the recorded statement of facts relevant to the error asserted." Any one of these five aspects of its motion provides a reasonable explanation under the requirements of Rule 54(c)--National was mistaken as to its obligations under this court's Adoption of Rules for Liberty County for Making a Record of Court Proceedings by Electronic Recording. ⁵

Through nine orders of this court, courts in twelve counties operate under essentially identical rules for electronic recording. ⁶ There are eleven rules, the last of which specifically provides that the overall effect on the remainder of the rules of procedure should be minimal 11. Other Provisions. Except to the extent inconsistent with these rules, all other statutes and rules governing the procedures in civil actions shall continue to apply to those proceedings of which a record is made by electronic tape recording.

There are, however, important differences in those counties in which electronic recording is permitted, such as the elimination of the need for a stenographic record and provision for a different deadline for filing the statement of facts, calculated from perfection of the appeal and not the signing of the judgment. ⁷ While we do not approve of counsel's inattention and lack of awareness of these special rules, there is no evidence that National's mistake was deliberate or intentional. Consequently, we hold that National's mistake constitutes a reasonable explanation, and the court of appeals abused its discretion by holding otherwise.

Smith argues that National's motion was further deficient in that it was not supported by either an affidavit of the court reporter or the certificate of the trial judge explaining when the statement of facts would be available for filing as required by TEX.R.APP.P. 73(i). Rule 73(i) provides:

when an extension of time is requested for filing the statement of facts, the facts relied upon to reasonably explain the need for an extension must be supported by the affidavit of the court reporter, or the certificate of the trial judge, which shall include the court reporter's estimate of the earliest date when the statement of facts will be available for filing.

(emphasis added). In this case, neither the court reporter nor trial judge had personal knowledge of any of the facts upon which National's explanation turned. As we have already concluded that National's own mistake as to its obligations under the special electronic recording rules suffices as a reasonable explanation, the lack of a supporting affidavit or certificate is not relevant under these facts.

No Adequate Remedy at Law

Absent mandamus, National's relief consists of proceeding through an appeal that, without a statement of facts, amounts to a useless exercise. It is difficult for a court of appeals to engage in a meaningful appellate review without the benefit of a properly filed statement of facts. In this context, it must be said that National has no adequate remedy at law. ⁸ Cf. Walker, 827 S.W.2d at 843.

Conclusion

The Ninth Court of Appeals abused its discretion by misapplying the legal principles for interpreting the phrase "reasonably explains" in TEX.R.APP.P. 54(c). National's mistake as to its obligations under the...