Oldaker v. Lock Const. Co.

• Court: Texas Civil Court of Appeals
• Writing for the Court: ELLIS
• Citation: Oldaker v. Lock Const. Co., 528 S.W.2d 71 (Tex. Ct. App. 1975)
• Decision Date: 29 August 1975
• Docket Number: No. 8550,8550
• Parties: Charles Ray OLDAKER, Appellant, v. LOCK CONSTRUCTION COMPANY et al., Appellees.

Page 71

528 S.W.2d 71

Charles Ray OLDAKER, Appellant, v. LOCK CONSTRUCTION COMPANY et al., Appellees.

No. 8550.

Court of Civil Appeals of Texas, Amarillo.

Aug. 29, 1975.

Rehearing Denied Oct. 14, 1975.

Splawn Law Offices, Inc., Carroll Cobb, Lubbock, for appellant.

Little & Little, Jack Little, Big Spring, Key, Carr, Evans & Fouts, Donald M. Hunt, Crenshaw, Dupree & Milam, Lubbock, for appellees.

ELLIS, Chief Justice.

Plaintiff, Charles Ray Oldaker, brought suit for damages for personal injuries sustained when a joint of oil field line pipe struck him while the pipe was being loaded onto the tractor-trailer tandem rig which he drove for Billy Walker Trucking Company. Billy Walker Trucking Company was requested by defendant, CP Construction Company, to deliver line pipe to a pipeline construction site in eastern New Mexico. CP Construction Company was under a written contract with defendant, Mobil Pipeline Company, to construct the pipeline. The site of the alleged injury was the Mallet Tank Farm, an oil field equipment facility maintained by Mobil Pipeline Company near Sundown, Hockley County, Texas. Defendant, Lock Construction Company, was under contract with Mobil Pipeline Company to clean and rework oil field pipe for reuse.

At the conclusion of plaintiff's evidence, the trial court withdrew the case from the jury and rendered judgment that the plaintiff and intervener, Hartford Insurance Company, take nothing by their suit on the basis of defendants' motions for instructed verdict. Affirmed.

Plaintiff-appellant predicates his appeal on one point of error urging in effect that the trial court erred in holding that no question of fact of actionable negligence, upon which the appellant's case is premised was raised by the evidence. Defendants-appellees respond, initially, with a motion to dismiss the appeal for want of jurisdiction because of failure to timely file the transcript and statement of facts, or, in the alternative to strike the statement of facts as untimely filed. Appellees further respond with various counterpoints.

Under the provisions of Tex.R.Civ.P. 386 appellant filed a motion to extend time to file the transcript and record on November 22, 1974, seventy-four days after appellant's motion for new trial was overruled by operation of law. Tex.R.Civ.P. 329(b). Appellant's motion was granted the same day as filed extending the time to file the transcript and statement of facts to November 29, 1974, a period of seven days.

On November 26, 1974, the transcript was received and filed by the clerk of this Court; the statement of facts was received by the clerk on December 2, 1974 in an envelope postmarked November 27, 1974. The transcript and statement of facts were deemed filed within the extended period, even though the statement of facts was not received by the clerk until after the expiration of the extended period. Tex.R.Civ.P. 5, 386.

Since appellant's motion was timely filed under Tex.R.Civ.P. 386, a consideration of the grounds asserted therein was left to the sound discretion of this Court to determine whether good cause was presented to grant the motion. Patterson v. Hall, 430 S.W.2d 483 (Tex.1968); Parks v. Purnell, 135 Tex. 182, 141 S.W.2d 585 (1940). Whether good cause exists is a factual determination based upon all the peculiar circumstances surrounding the delay in filing, and the recognized basis for setting aside such a determination is upon the establishment of arbitrary action or an abuse of discretion. Patterson v. Hall, supra; Wigley v. Taylor, 393 S.W.2d 170 (Tex.1965).

In applying Rule 386 to the facts it is proper that we seek to avoid a narrow construction to the end that the appeal can be heard on the merits. Parks v. Purnell, supra; Novosad v. Clary, 431 S.W.2d 422 (Tex.Civ.App.--Houston (1st Dist.) 1968, writ dism'd). Particularly, a narrow construction will be avoided where excuse of the delay will not cause harm to any party. City of Corpus Christi v. Gregg, 267 S.W.2d 478 (Tex.Civ.App.--San Antonio 1954, no writ). In the instant case no harm is alleged to have resulted from the granting of appellant's motion to extend time to file.

By sworn statement contained in the motion to extend time, counsel for appellant related that on October 15, 1974, he mailed a properly executed written request for transcript with proper address and postage affixed, directed to the district clerk. By further statement of appellant's counsel and by affidavit of the district clerk, on the following day, October 16, counsel had a conversation with the clerk concerning the transcript. In that same conversation, the district clerk indicated to counsel that the written request had not been received. Since it had been mailed on the previous day, counsel believed that it would soon be received by the clerk. In fact, the written request mailed by counsel on October 15 was not received, and, after the expiration of sixty days from the date appellant's motion for new trial was overruled, the district clerk mailed the cost bill to counsel, the clerk having assumed that the appeal had been abandoned.

A second written request for the transcript was filed with the district clerk on November 21, 1974, the seventy-third day after motion for new trial was overruled.

We have examined many cases and have found none with facts analogous to the facts in this case. We have found in Harrison v. Benavides, 327 S.W.2d 610 (Tex.Civ.App.--San Antonio 1959, no writ), that the question of jurisdiction has been conveniently divided into three categories as follows:

(1) Where the record has not been filed in this Court within sixty days from the date of judgment and no motion is filed within seventy-five days, or a motion having been granted, the record is not filed within the time allowed under the terms of the order; (2) where the motion, together with the affidavits, shows on the face of the record that the transcript and/or statement of facts, as the case may be, could have been filed within the time allowed by the rule, and thus the motion is insufficient as a matter of law; (3) where the record has not been filed within the sixty-day period provided by Rule 386, T.R.C.P., but a motion has been timely filed which attempts to show 'good cause' why the record could not be filed within the sixty-day period, thus presenting a fact issue to be determined by the Court of Civil Appeals.

The facts of the instant case do not fall within either of the first two categories. Here, a timely motion was filed which raised a fact issue of good cause, i.e., why the transcript Could not be filed within the sixty-day period under Rule 386. Certainly, the motion and affidavit do not show on the face of the record that the transcript could have been filed within the sixty-day period. The district clerk did not receive a written request for preparation of the transcript until after the expiration of the sixty-day period. We do not, in the instant case, have facts that show the transcript was completed and ready to be filed before the expiration of the sixty-day period.

The Supreme Court in Patterson v. Hall, supra, focused on the distinction between fact situations as under Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952), category (2) above, where the transcript or statement of facts was in the counsel's possession, ready to be filed, but was not timely filed, and fact situations such as the instant case where counsel did not have the transcript in his possession within the sixty-day period, and therefore, could not have filed the same within that period. The Supreme Court went on to hold that the Court of Civil Appeals in Patterson was in error in holding as a matter of law that since the appellants did not show that they Could not have obtained the statement of facts for filing within the sixty-day period, they failed to show that they could not have filed the statement of facts within the required period.

The Court in Patterson further stated that appellant must promptly request the preparation of the statement of facts after giving notice of appeal. The same rule of promptness applies to the time for requesting the preparation of the transcript in the instant case. Tex.R.Civ.P. 376. However, the determination of 'promptly' is not limited by any fixed number of days; rather, it is a determination made upon relative factors. The rule of promptness restated in Patterson is one of reasonable time when all attendant facts and circumstances surrounding the act to be performed are considered. The Court in Patterson avoided the application of a narrow and arbitrary meaning of the word 'promptly.' The Court instead reiterated that the Court of Civil Appeals '. . . has a duty to decide, in the light of all attendant facts and circumstances, the preliminary question of whether the request for the record was made within a reasonable time after notice of appeal was given.' Patterson v. Hall, supra, at 486. This duty to decide calls upon the sound discretion of the Court to make a determination which has some rational basis in fact.

We recognize that appellant's counsel did not exercise exemplary diligence in all respects. However, we note that upon becoming cognizant of the true situation and since the seventy-five day period had not expired, appellant's counsel proceeded to again make written request to the district clerk to prepare the transcript and to seek the extension of time which was granted.

We believe that from a full consideration of all the peculiar circumstances of this case, including the absence of a showing of harm, it has not been established that this Court acted arbitrarily or abused its discretion in granting the extension.

Alternatively, appellee asks that the statement of facts be stricken as untimely filed. It is well settled that timely filing of the transcript confers jurisdiction on the Court of Civil Appeals to consider the appeal even if the statement of facts is never filed. Root...