Sisk v. Parker, 8162

• Decision Date: 19 July 1971
• Docket Number: No. 8162,8162
• Citation: 469 S.W.2d 727
• Parties: R. O. SISK, Jr., Appellant, v. Mary M. PARKER, Appellee.
• Court: Texas Court of Appeals

Page 727

469 S.W.2d 727

R. O. SISK, Jr., Appellant, v. Mary M. PARKER, Appellee.

No. 8162.

Court of Civil Appeals of Texas Amarillo.

July 19, 1971.

Rehearing Denied Aug. 9, 1971.

C. J. Humphrey, Amarillo, for appellant.

Culton, Morgan Britain & White, Sam R. Cummings, Amarillo, for appellee.

REYNOLDS, Justice.

Appellant has appealed from a judgment rendered against him for damages for breach of contract. The judgment of the trial court is reversed and rendered.

Initially we are confronted with appellee's motion challenging our jurisdiction of this appeal. Previously, as provided by Rule 386, Texas Rules of Civil Procedure, appellant had timely filed his verified motion requesting an enlargement of time within which to file the record. In his motion, appellant alleged that the transcript could be completed and timely filed within the initial sixty-day period prescribed by Rule 386, but the court reporter had advised that the statement of facts could not be completed, due to press of court business, within such period of time. Acting on the then existent facts, this court granted an extension of time. The record was completed and filed after the regular sixty-day period, but within the enlarged time authorized. Following the filing of the parties' briefs on the merits, appellee filed her motion to dismiss the appeal for want of jurisdiction. A decision thereon was reserved pending the submission of the case on the merits, and the case now has been submitted.

In her motion to dismiss the appeal for want of jurisdiction, appellee does not question either the timeliness of the appellate procedural steps or the truth of the matters set out in appellant's verified motion alleged to constitute good cause for the extension of time authorized. Rather, the thrust of appellee's motion is that appellant's verified motion did not show good cause authorizing the extension of time granted because the said motion was not accompanied by an affidavit from the court reporter certifying the reasons why he was unable to prepare the statement of facts within the sixty-day period prescribed by Rule 386. In this connection, appellee represents that most of the courts of civil appeals, including this court, direct that a motion for extension of time for filing the appellate record must be supported by an affidavit from the official responsible for preparing the appellate instrument--in this case, the court reporter--as a prerequisite to show good cause required by Rule 386 to authorize such enlargement of time.

Thus, in this appeal, we must determine whether Rule 386 requires an affidavit from the official whose record could not be completed within the sixty-day period to support the motion seeking an extension of time; and, if Rule 386 does not make mandatory such supporting affidavit, whether a procedural rule of this court pronounces such requirement.

We have reviewed Rule 386 from this perspective and in light of the cases cited by appellee, and we are convinced that the rule makes no such requirement. What the rule does require, before an appellate court can properly authorize an extension of time within which the record may be filed, is a '* * * motion * * * showing good cause to have existed within such sixty-day period why said transcript and statement of facts could not be so filed * * *' within such sixty-day period. Our indagation of the authorities annotated under the rule does not reveal any case holding that the rule makes mandatory such an affidavit as advocated by appellee. Rather, the cases hold that such motion as required by Rule 386 must show good cause to merit an enlargement of time, and that good cause depends on the circumstances shown to exist in each case. It is true, as asserted by appellee, that some courts of civil appeals require a motion for extension of time to be accompanied by an affidavit from the official who is unable to complete his record within the sixty-day period. See Rhodes v. Turner, 164 S.W.2d 743 (Tex.Civ.App.--Fort Worth 1942, no writ); Carter v. City of Fort Worth, 357 S.W.2d 581 (Tex.Civ.App.--Fort Worth 1962, writ ref'd n.r.e.); and Rehkopf v. Texarkana Newspapers, Inc., 460 S.W.2d 939 (Tex.Civ.App.--Texarkana 1970, writ ref'd n.r.e.), cited by appellee. But those cases do not hold that Rule 386 makes mandatory such an affidavit, but only that it is a policy of the particular court to require such supporting affidavit.

Appellee cites Bradshaw v. Bradshaw, 187 S.W.2d 688 (Tex.Civ.App.--Amarillo 1945, no writ); Darden v. Davies, 217 S.W.2d 892 (Tex.Civ.App.--Amarillo 1949, no writ); and Rigdon v. Panhandle Pub. Co., 233 S.W.2d 230 (Tex.Civ.App.-- Amarillo 1950, no writ), as authority for the assertion that this court requires a supporting affidavit from the official who is unable to complete his record within the sixty-day period. Contrary to appellee's representation, these cases do not announce, and we have found no case from this court announcing, such a mandatory procedural rule or policy. In each of the cited cases the motion for an extension of time, unaccompanied by affidavit or other proof, was contested, and in the last two cases noted, the contesting motions were supported by exhibits negating the existence of good cause for an extension of time. In Bradshaw, no reason at all was given in the unverified motion to explain the failure to procure the record for filing within the time fixed by Rule 386. In Darden, there was no attempt to show good cause for failure to tender the transcript to be filed, and good cause was not shown for an extension of time for filing the statement of facts. And in Rigdon, good cause was not shown for an extension of time for filing the record. In each case an extension of time was denied, but the denial was founded upon the failure, in light of all the attendant facts and circumstances, to show good cause authorizing an extension, and not for the reason that the motion was not supported by an affidavit from the official whose instrument was at issue.

Where a motion for extension of time to file the record is predicated on the inability of an official to complete his record within the sixty-day period prescribed by Rule 386, it would be the better procedural practice, and one encouraged by this court, to accompany such motion with an affidavit or statement from the official. But since Rule 386 does not specify such requirement, this court is not constrained to promulgate such mandatory procedural rule or policy. There will be instances where such affidavit or statement cannot be obtained; i.e., where the district clerk or court reporter for some reason is unable or refuses to execute such an affidavit. The latter situation arose in Wigley v. Taylor, 393 S.W.2d 170 (Tex.1965), and our Supreme Court said, 'We cannot approve denial of a motion for extension of time because of absence of a written statement of a public official who, although affirming inability to perform an official duty within a limited time, refuses to put the affirmation in writing.'

Even though it would be the preferable practice, we hold, therefore, that neither Rule 386 nor a procedural rule or policy of this court requires that a motion for extension of time within which to file the record on appeal must be accompanied by an affidavit or statement from the official whose record cannot be completed within the sixty-day period prescribed by Rule 386. Inasmuch as the absence of such an affidavit is the only basis for appellee's motion to dismiss this appeal, the motion is overruled.

Appellant and appellee entered into a written agreement, drafted by appellee's attorney in two designated parts, concerning two tracts of land owned by appellee. After describing the two tracts of land, the instrument provided:

'It is the desire of (appellant) to purchase Tract No. 1 described above and the desire of both of the Parties hereto to enter into a joint venture regarding Tract No. 2 described above upon the following terms and conditions:'

There followed part A of the agreement, drawn in the usual form for the sale and purchase of real estate, providing for the conveyance by appellee of tract No. 1 to appellant for a consideration of $9,000.00, which was fully performed by the parties prior to the time suit was filed. Part A of the instrument made no reference to part B, the portions of which material to this suit are as follows:

'B. The Parties hereto have agreed, and do hereby agree to form a corporation for the purpose of owning and operating an apartment house or houses to be situated upon Tract No. 2 described above, said business to be conducted under the firm name of 'PARKER SISK APARTMENTS, INC.', if such name is available upon the following terms and conditions:

'1. (Appellee) will furnish, without cost to the corporation, Tract No. 2 described above. (Appellant) agrees to construct in a good and workman like manner at least three duplex or triplex Apartment Building Units on said property. (Appellant) will furnish his knowledge, experience and supervision for the construction of such Apartment Building Units and will pass on to the corporation any discounts, rebates or other refunds received by him in the construction of such Units.

'a. It is contemplated that the corporation hereto will secure a commitment from a Savings and Loan Association for the full costs of the improvements to be located upon Tract No. 2 such loan to to be repaid in equal monthly installments over a period of not less than fifteen (15) years and including interest of not more than seven per cent (7%) per annum on the unpaid balance .

'b. It is contemplated that plans and specifications will be agreed upon by the Parties hereto and accepted by the loan company and construction will begin within six (6) months from the date hereof and that construction will proceed without unreasonable delay until completed. Construction will not begin until a commitment satisfactory to both parties has...