Lester Electrical of Nebraska, Inc. v. D. E. Jackson ( 1991 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-90-205-CV





LESTER ELECTRICAL OF NEBRASKA, INC.,

APPELLANT

vs.





D. E. JACKSON,

APPELLEE

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT

NO. CV89-0429-A, HONORABLE ROYAL HART, JUDGE

PER CURIAM

Appellant Lester Electrical of Nebraska, Inc. timely filed its appeal bond seeking to appeal from an adverse judgment of the district court of Tom Green County entered on May 7, 1990. Appellant has filed its motion for rehearing and reconsideration of motion to extend time to file statement of facts. Appellee D. E. Jackson has responded to the motion.

The record in the appeal was due to be filed with this Court on or before September 4, 1990. A motion for extension of time within which to file the record was due fifteen days later on September 19. Tex. R. App. P. Ann. 54(a), (c) (Pamp. 1990). On September 24, appellant filed, in this Court, its motion to extend time to file statement of facts asserting as a reasonable explanation the court reporter's inability to complete the statement of facts timely because of illness. Rule 54(c); see Garcia v. Kastner Farms, Inc., 774 S.W.2d 668 (Tex. 1989). This Court overruled the motion for to extend time because it was filed untimely. See B.D. Click v. Safari Drilling Co., 638 S.W.2d 860 (Tex. 1982).

Thereafter, appellant filed a motion for rehearing and reconsideration of motion to extend time to file statement of facts which asserts that a motion to extend time was in fact timely filed in this Court. Appellant erroneously filed a motion to extend time with the district clerk of Tom Green County on August 29. This motion was addressed to the district court, captioned with that court's cause number, and sought from the district court, an extension of time within which to file the statement of facts. Although not requested to do so, the district clerk forwarded a supplemental transcript, including this motion to extend time, to this Court. The Clerk of this Court filed the supplemental transcript on September 4. Appellant now proposes that a motion to extend time was filed in this Court on September 4 by the filing of the supplemental transcript.

Although neither addressed to or seeking relief from this Court, a motion to extend time to file statement of facts can be said to have been timely filed when the supplemental transcript was filed, in reliance on Mr. Penguin Tuxedo Rental & Sales, Inc. v. NCR Corp., 787 S.W.2d 371 (Tex. 1990); Biffle v. Morton Rubber Industries, Inc., 785 S.W.2d 143 (Tex. 1990). "[A]n instrument is deemed filed when placed in the custody or control of the clerk." Mr. Penguin Tuxedo, 787 S.W.2d at 372; Biffle, 785 S.W.2d at 144. Although not brought to the Clerk's attention to be docketed and placed before the Court, appellant's motion for extension was "in the custody and control of the clerk" on September 4.

In accepting the motion as timely filed, we do not condone counsel's mistake in misfiling the motion for extension of time in contravention of Rule 54(c), which expressly provides that a motion be filed "with the court of appeals." See Biffle, 785 S.W.2d at 144; Standard Fire Ins. Co. v. Shrader, 585 S.W.2d 678, 680 (Tex. 1990) (purpose of rule is to protect diligent party); see generally, Garcia, 774 S.W.2d at 670 (liberal standard of review encompasses negligence of counsel). We additionally note that the supplemental transcript was not forwarded to this Court at appellant's request, but rather on the initiative of the district clerk. ⁽¹⁾

We grant appellant's motion for rehearing and reconsideration of motion to extend time to file statement of facts. The statement of facts is due to be filed in this Court on or before November 5, 1990.

[Before Justices Carroll, Aboussie and Jones]

Filed: October 24, 1990

[Do Not Publish]

1. The disposition of appellant's motion does not, of course, determine any issue as to whether the supplemental transcript is properly before this Court.