Nolan v. Ramsey , 33 Tex. Sup. Ct. J. 193 ( 1990 )

OPINION

SPEARS, Justice.

Stephan Nolan, Nathlia Wolf Air, Inc. and Catherine M. Nolan (“Nolan”), appellants before the Honorable Second Court of Appeals, moved that court to extend the time for filing their motion for rehearing. Erich and Deanna Ramsey, appellees in the court of appeals, opposed the motion. The court overruled Nolan’s motion, and Nolan seeks relief from that order in this court.

In Banales v. Jackson, 610 S.W.2d 732 (Tex.1980), this court set forth the procedure for review of a court of appeals’ order granting or denying an extension of time to file a motion for rehearing. Accord Anderson v. Coleman, 626 S.W.2d 301 (Tex.1981). The standard of review was prescribed by what was then Rule 21(c) of the Texas Rules of Civil Procedure, which stated in pertinent part:

Any order of the court of appeals granting or denying a motion for late filing of any such instruments [including a motion to extend the time to file a motion for rehearing] shall be reviewable by the supreme court for arbitrary action or abuse of discretion.

With the adoption of the Texas Rules of Appellate Procedure, this court repealed Rule 21(c), and the language quoted neither survived nor was carried over into the appellate rules. Banales, however, has not been overruled. Thus, this court’s procedure for reviewing a court of appeals’ ruling on a motion for an extension of time to file a motion for rehearing remains intact; only the standard of review to be applied has been cast in doubt. We see no reason to adopt a different standard than the one previously provided by Rule 21(c). Accordingly, until some future change in the appellate rules, we will continue to review such rulings for arbitrary action or abuse of discretion. We also continue to follow the procedure for reviewing such rulings set out in Banales.

An extension of time to file a motion for rehearing in this case was requested because counsel for Stephan Nolan and Nathlia Wolf Air, Inc.¹ had recently given birth and was away from her office on maternity leave. The reasons for the court of appeals’ denial of the motion do not appear in the record. We conclude that the motion reasonably explains Nolan’s need for an extension of time, as required by Rule 100(g), Texas Rules of Appellate Procedure. The court of appeals abused its discretion in denying the requested extension. See Garcia v. Kastner Farms, Inc., 774 S.W.2d 668 (Tex.1989).

Nolan is entitled to file a motion for rehearing and to have the court of appeals rule on it. Nolan is extended fifteen days from the date of this opinion in which to file such motion. The case is to remain in the court of appeals for ruling on the motion.

1 . Catherine Nolan is pro se, but she joined in the motion for extension of time.