Riviea v. Marine Drilling Co. , 1990 Tex. App. LEXIS 684 ( 1990 )

OPINION

SEERDEN, Justice.

A statement of facts was presented to us for filing subsequent to perfecting an appeal in this case. The question presented is whether we have the authority to file such record. We conclude that we do have such authority and order the statement of facts filed.

It is not necessary to go into the complete procedural history of this case. It is sufficient to state that all procedural rules were complied with through the granting of appellant’s second motion to extend the time for filing the statement of facts. In granting the second motion for extension of time, the court advised the attorneys of record, the court reporter, and the trial court as follows:

The appellant’s second motion for extension of time to file statement of facts was granted by the Court on this day. The time has been extended to December 28, 1989, and the court will expect the statement of facts to be filed by that date. Otherwise, the court reporter may be ordered to appear before this court to show cause why the statement of facts cannot be timely filed.

On January 3, 1990, contemporaneously with the presentation of the statement of facts, an affidavit from the court reporter was received by the court which contained reasonable explanations why the statement of facts could not be filed in December. The affidavit contained a request for extension to January 3, 1990. This affidavit is the only request to permit the filing after December 28, 1989, and the only explanation for not filing the statement of facts until January 3, 1990, received by this court until receipt of Appellant’s Third Motion for Extension to File Statement of Facts. This motion was received by the court on January 18, 1990. This court has, sua sponte, questioned its authority to accept the statement of facts.

Tex.R.App.P. 54(a) provides the method for computing the time limitation for filing the transcript and statement of facts in the courts of appeals. It also provides that a court has the authority to consider all timely-filed transcripts and statements of fact, but shall have no authority to consider a late-filed transcript or statement of facts, except as permitted by this rule.

Tex.R.App.P. 54(c) provides for the granting of an extension of time for late filing if a motion reasonably explaining the need therefor is filed by appellant in the court of appeals “not later than fifteen days after the last date for filing the appellate record.”

In B.D. Click v. Safari Drilling Corp., 638 S.W.2d 860 (Tex.1982), our Supreme Court held that a court of appeals does not have authority to consider a motion for extension of time to file the record which is filed more than fifteen days after the due date. This rule applies to subsequently filed motions for extension of time, as well as the original motion. Chojnacki v. The Court of Appeals For the First Supreme Judicial District, 699 S.W.2d 193 (Tex.1985).

Thus, unless we can consider the court reporter’s affidavit as a motion for extension of time or consider the due date for timely filing the statement of facts to be a date other than December 28, 1989, we have no authority to file the statement of facts or to consider it in deciding this appeal.

The First Rule of the 1989 Texas Rules of Civil Procedure states:

Rule 1. Objective of Rules

The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction.

In discussing the 1981 amendments to the Rules of Civil Procedure, the Supreme Court in B.D. Click observed, “[t]he laudable goal of these revisions was to eliminate, insofar as practical, the jurisdictional requirements which sometimes resulted in disposition of appeals without consideration of the merits.” B.D. Click Co., 638 S.W.2d at 861.

Generally, a “motion” is an application for an order of the court. Lindley v. Flores, 672 S.W.2d 612, 614 (Tex.App.—Corpus Christi 1984, no writ). As such, it is in the nature of a pleading. In the due course of litigation, a motion request for a court order should be made by a party or his attorney; however, the court may act on its own “motion,” as in this case or, for example, as in the case of a trial court granting a new trial as authorized by Tex. R.Civ.P. 320.

The request by the court reporter for additional time to file the record is certainly a request for an order of the court to grant her the additional time. Moreover, such request is generally in compliance with or in anticipation of the court’s instructions made in granting the second extension of time for filing the statement of facts where she was told that if the statement of facts was not filed by December 28, 1989, we might require her to appear to show cause why it cannot be timely filed.

In keeping with the purpose of the rules of appellate procedure, we interpret this affidavit as a motion to extend the time for filing. As such, it was filed within fifteen days of December 28, 1989, and is entitled to consideration by the court.

Our order granting the second motion to extend the time for filing the statement of facts can also be construed as being “open ended” with respect to a deadline. By advising the parties, and the court reporter in particular, that if the statement of facts was not filed by December 28, 1989, she could be required to appear to show cause why it could not be timely filed, we implied that a “timely filing” date could be set at the show cause hearing.

By taking the approach discussed above, we honor the principles expressed in Tex.R. Civ.P. 1. At the same time, no violence is done to the principle of fixing the date for the finality of judgments recognized in B.D. Click and carried forward in Tex.R. App.P. 54(c).

We hold that the time for filing the record of this case may be extended to January 3, 1990; we permit such extension and order the statement of facts filed.

NYE, C.J., dissents on motion.