Gallegos v. Truck Insurance Exchange

539 S.W.2d 353

• Court: Court of Appeals of Texas
• Decided: July 14, 1976
• Docket: A3775, A3803
• Status: Published

Opinions

PER CURIAM.

On May 25, 1976, appellant filed his motion for an extension of time to file the record in his appeal from a judgment non obstante veredicto entered on March 22, 1976. The record was due to be filed on or before May 21, 1976. Rule 386, Tex.R. Civ.P. In support of said motion, it is averred by appellant’s attorney “that in the afternoon of May 21, 1976, the file of Mar-cello Gallegos, containing the transcript and statement of facts was placed with a number of closed files by an employee of this firm and shortly thereafter taken to a storage area in a separate part of the office facility.” It was further averred that the transcript and statement of facts were not located until Tuesday, May 25, 1976.

Rule 21c, Tex.R.Civ.P., effective January 1, 1976, provides in part that the failure of a party to timely file a transcript or statement of facts in the court of civil appeals will not authorize a loss of the appeal if the defaulting party files within fifteen days of the last date for timely filing “a motion reasonably explaining such failure.”

We agree that a lost record constitutes a reasonable explanation for failure to timely file same providing that no lack of diligence is otherwise shown. Here the transcript was delivered to appellant’s attorney on April 5, 1976, and the statement of facts was certified by the court reporter on April 9, 1976. No explanation, reasonable or otherwise, has been given why the completed record was not filed prior to the last day. It was a calculated risk that it could become lost or misplaced if kept by appellant’s attorney for over thirty days without filing it. In this situation, appellant has failed to give a reasonable explanation for his failure to timely file the record.

The motion for extension of time is denied.