Hildyard v. Fannel Studio, Inc.

547 S.W.2d 332
CourtCourt of Appeals of Texas
DecidedFebruary 24, 1977
Docket1161
StatusPublished
Cited by8 cases

This text of 547 S.W.2d 332 (Hildyard v. Fannel Studio, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hildyard v. Fannel Studio, Inc., 547 S.W.2d 332 (Tex. Ct. App. 1977).

Opinions

OPINION

NYE, Chief Justice.

This is an appeal from a bill of review in which the trial court refused to set aside a default judgment previously rendered. From an adverse judgment, plaintiffs appeal to this Court.

The 60-day period for filing the record on appeal expired July 10, 1976. Appellants filed a motion to extend the time to file the transcript on July 16, 1976, pursuant to Rule 21c, T.R.C.P. The transcript was received July 19, 1976. Appellee filed a motion to affirm on certificate on July 22, 1976.

The question before the Court is whether appellants complied with Rule 21c in their request for an extension of time. The motion was made within the 15 day period following the 60th day and states that the transcript could not be filed on time because the district clerk could not prepare the transcript according to the directions of the appellants by the due date. A certificate of the district clerk dated July 20, 1976, and attached to the appellee’s motion to affirm on certificate shows she received the request for preparation of the transcript on July 1, 1976, which was nine days before it was due to be filed in this Court. Appellants’ attorney’s motion also states that his own schedule of civil and criminal trials kept him very busy during the period when the transcript should have been filed.

Rule 21c became effective January 1, 1976, and considerably eased the strict requirements for timely filing the transcript. Prior to 1976, Rule 386 provided for late filing only if the appellant showed “good cause” why the record could not be filed during the 60-day period following judgment or order overruling the motion for new trial. This established a very strict standard as interpreted in Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952) and Patterson v. Hall, 430 S.W.2d 483 (Tex.Sup.1968). The appellant had the burden to show good cause not only for his failure to timely file, but also for his inability to timely file.

[334]*334With the 1976 amendments to the rules, the strict time limits for taking prescribed appellate steps were eased. A limited number of reported cases construe the meaning of “reasonable explanation” required by new Rule 21c. The Courts of Civil Appeals which have considered the issue are split in their interpretation of the rule.

A strict standard was announced by the Dallas Court in Sloan v. Passman, 536 S.W.2d 575 (Tex.Civ.App.—Dallas 1976, no writ). Justice Akin for the majority read into the rule a requirement for “reasonable diligence”. In its first of two holdings, the Court applied its “reasonable diligence” standard to the entire 60-day period, and not merely the time between the attorney’s receipt of the transcript and the expiration of 60 days. The appellant in Sloan v. Passman had delayed 42 days before requesting a transcript. No explanation at all was offered for this delay. The Court considered this lack of explanation conclusive against him.

In its second holding, the Court evaluated the appellant’s conduct between his receipt of the transcript and the 60th day, and concluded his diligence was insufficient to meet the “reasonable explanation” requirement of Rule 21c. The explanation for delay included illness of the attorney, an out-of-town trip by the attorney, and termination of employment by his office personnel on or about the due date. These events were held insufficient because the Court concluded reasonable diligence would have overcome all these difficulties and permitted timely filing.

A strong dissent in Sloan v. Passman was entered by Justice Guittard and reported in 538 S.W.2d 1 (Tex.Civ.App.—Dallas 1976, dissenting opinion). As stated hereafter, the dissent was subsequently cited by the Austin and Houston [14th Dist.] Courts of Civil Appeals upon their adoption of the standard proposed in the dissent. The dissent would define “reasonable explanation” as a showing that the delay resulted from inadvertence, accident or mistake. He would equate this standard with that applicable to avoidance of a default judgment upon prompt filing of a motion for new trial as announced in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939):

“ . . .A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident . . . .”

Justice Guittard would accept any plausible statement to show the delay was not deliberate or intentional, and would then determine reasonableness in the context of the length of delay. Sloan v. Passman (dissenting opinion), supra.

The Houston Court [14th Dist.] adopted the standard of the Sloan v. Passman dissent in Mulloy v. Mulloy, 538 S.W.2d 818 (Tex.Civ.App.-Houston [14th Dist.] 1976, no writ). Justice Cire wrote for the court stating: “We hold that a reasonable explanation under Rule 21c is ‘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 inadvertence, mistake, or mischance. . . . ’ Sloan v. Passman, 538 S.W.2d 1 (Tex.Civ.App.—Dallas 1976) (dissenting opinion).” The Mulloy Motion for extension of time was denied, however, because even this liberal test was not met by the appellant who offered no explanation for his failure to file within 60 days. His explanation only concerned delay occasioned by time needed to correct errors in the record which he discovered after the end of the 60-day period.

The Austin Court set the same standard for reasonable explanation, also citing the Sloan v. Passman dissent. Justice Shannon stated: “In our view, ‘reasonable explanation’ permits a showing that such failure to file timely was not deliberate or intentional, but rather was the result of inadvertence, mistake, or mischance.” Stieler v. Stieler, 537 S.W.2d 954 (Tex.Civ.App.—Austin 1976, writ ref. n. r. e.). The point of delay in the Stieler case occurred after appellant received the statement of facts. Appellant’s [335]*335explanation that time was needed to correct numerous errors in the statement of facts and that one of the attorneys had been ill was held sufficient despite a 38-day period before the due date, 28 of which passed before the attorney became ill.

One other court to comment on Rule 21c is the San Antonio Court in a per curiam opinion, Graves v. George Dullnig & Co., 538 S.W.2d 149 (Tex.Civ.App.—San Antonio 1976, no writ). The issue concerned the promptness of appellant in informing appel-lee that a cost bond had been filed. The Court commented on Rule 21c as manifesting a conscious effort to reduce the number of appeals being dismissed because of appellants’ failure to timely file the record.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hicks v. First National Bank in Dalhart
778 S.W.2d 98 (Court of Appeals of Texas, 1989)
Jones v. Jones
641 S.W.2d 342 (Court of Appeals of Texas, 1982)
Joslin v. Joslin
636 S.W.2d 519 (Court of Appeals of Texas, 1982)
Southern Pacific Transportation Co. v. Yendrey
605 S.W.2d 676 (Court of Appeals of Texas, 1980)
Brice v. Brice
581 S.W.2d 699 (Court of Appeals of Texas, 1979)
Continental Oil Co. v. Dobie
552 S.W.2d 183 (Court of Appeals of Texas, 1977)
Hildyard v. Fannel Studio, Inc.
547 S.W.2d 332 (Court of Appeals of Texas, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
547 S.W.2d 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hildyard-v-fannel-studio-inc-texapp-1977.