Jenkins v. Truck Insurance Exchange , 1979 Tex. App. LEXIS 3095 ( 1979 )

OPINION ON MOTION FOR EXTENSION OF TIME TO FILE STATEMENT OF FACTS

Judgment in this case was signed by the trial court on December 27, 1977. The transcript was filed with the clerk of the court of civil appeals within the required sixty-day period. Tex.R.Civ.P. 386. However, no statement of facts was filed with the clerk of this court within the required sixty-day period.

The attorney for appellant has filed a motion to extend the time in which to file the statement of facts. In his motion, the attorney says that upon receiving the transcript from the clerk of the trial court, he learned "that the Statement of Facts was not included with the Transcript as requested."

We are confronted with the situation where the attorney mistakenly requested his statement of facts from the clerk of the trial court rather than the court reporter. The issue before us is whether we should grant an extension of time for filing the statement of facts under these circumstances.

Tex.R.Civ.P. 21c(1) provides:

"An extension of time may be granted for late filing in a court of civil appeals of a transcript, statement of facts, motion for rehearing, or application to the supreme court for writ of error, if a motion reasonably explaining the need therefor is filed within fifteen (15) days of the last date for filing as prescribed by the applicable rule or rules." (Emphasis added.)

The term "reasonably explaining" as used in Tex.R.Civ.P. 21c was construed by our supreme court in Meshwert v. Meshwert,549 S.W.2d 383 (Tex. 1977). Our supreme court wrote:

"We hold, . . . that 'reasonably explaining' means any plausible statement of circumstances indicating that failure to file within the sixty-day period was not deliberate or intentional, but was the result of inadvertance, mistake or mischance." Id. at 384.

We have concluded that an attorney who has requested the statement of facts from the clerk of the trial court rather than the court reporter has made a "mistake". Such a mistake is a reasonable explanation within the meaning of Tex.R.Civ.P. 21c so as to authorize the late filing of a statement of facts.

Appellants' motion for extension of time to file a statement of facts is granted.