Inman's Corp. v. Transamerica Commercial Finance Corp.

825 S.W.2d 473, 1992 Tex. App. LEXIS 761, 1992 WL 35159
CourtCourt of Appeals of Texas
DecidedFebruary 12, 1992
Docket05-91-01131-CV
StatusPublished
Cited by14 cases

This text of 825 S.W.2d 473 (Inman's Corp. v. Transamerica Commercial Finance Corp.) 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
Inman's Corp. v. Transamerica Commercial Finance Corp., 825 S.W.2d 473, 1992 Tex. App. LEXIS 761, 1992 WL 35159 (Tex. Ct. App. 1992).

Opinions

OPINION

LAGARDE, Justice.

This presubmission opinion addresses appellants’ motion and supplemental motion to extend time to file the statement of facts. The issue is whether appellants, who made an untimely request, may rely upon a cross-appellant’s timely request to the court reporter to prepare the statement of facts in conjunction with appellants’ motions to extend time to file the statement of facts. We hold that appellants cannot rely upon the cross-appellant’s timely request. We deny appellants’ motions to extend time to file the statement of facts.

Transamerica Commercial Finance Corporation sued appellants, Inman’s Corporation, Wade H. Gaylor, and Mary S. Gaylor (the Movants). The Movants countersued Transamerica and filed a third-party petition against Philips Consumer Electronics Company. Philips and Transamerica filed cross-claims against each other. After the trial court entered its final judgment, the Movants perfected their appeal. On the last date for perfecting an appeal and for making a request to the court reporter, Transamerica filed a cash deposit in lieu of cost bond and made a written request. One week thereafter, the Movants made an untimely request for the statement of facts. The Movants filed a timely motion and timely supplemental motion to extend time to file the statement of facts. Both Transamerica and Philips objected to the Movants’ motion and supplemental motion because neither motion reasonably explained the Movants’ delay in making the Movants’ request to the court reporter, as required by rule 54(c) of the Texas Rules of Appellate Procedure. Transamerica filed a conditional motion and conditional amended motion to extend time to file the statement of facts. Transamerica wants its motions granted only if the Movants’ motions are granted. If the Movants’ motions are denied, Transamerica appears to incorrectly assume that the Movants’ appeal will be dismissed for want of jurisdiction. Tex. R.App.P. 54(a).

TRANSAMERICA’S AND PHILIPS’S ARGUMENTS

Transamerica and Philips argue that, because both the Movants’ motion and supplemental motion failed to reasonably explain the Movants’ delay in making a written request for the statement of facts, this Court should deny both motions. This [475]*475argument assumes that the Movants may not rely upon Transamerica’s timely request and must rely strictly upon their own request.

Transamerica asserts that the Movants may not rely upon its timely request because it is not an appellant. Transamerica explains that it does not want to appeal and that the only reason it filed a cost bond was to secure a cross-appeal in the event the Movants perfected an appeal. There is nothing conditional about Transamerica’s cash deposit in lieu of cost bond; Trans-america perfected an appeal and is, therefore, an appellant. Tex.R.App.P. 3(a). Transamerica has never moved to dismiss its appeal. Tex.R.App.P. 59(a).

Transamerica further asserts that the Movants cannot rely upon its timely request because Transamerica filed its request only with respect to its cross-appeal. Transamerica’s request asked for all the portions of the statement of facts not requested by the Movants. Tex.R.App.P. 53(b). However, because the Movants had not requested any portion of the statement of facts at the time Transamerica filed its request, Transamerica’s request effectively became a request for the entire statement of facts. We further note that Trans-america’s request was not a partial request. Tex.R.App.P. 53(d). We, therefore, hold that Transamerica’s request was not limited to its cross-appeal. Transamerica also appears to argue that the Movants may not rely upon its request because its request was conditional by virtue of its appeal being conditional. As noted earlier, there was nothing conditional about Trans-america’s cash deposit. To the extent Transamerica argues that its request was conditional, its argument is without merit.

Philips argues that the Movants may not rely upon Transamerica’s request because Transamerica is not an appellant by virtue of the fact that Transamerica was the prevailing party overall, although the trial court denied Transamerica some of the relief it sought. Because Transamerica perfected an appeal independently of the Mov-ants, Transamerica is a party taking an appeal and is, therefore, an appellant. Tex. R.App.P. 3(a). Philips’s argument that Transamerica is not an appellant has no merit.

THE MOVANTS’ ARGUMENTS

The Movants argue that their request was timely pursuant to rule 53(b), in that the Movants filed their request within ten days of Transamerica’s request. Rule 53(b) provides:

Other Requests. Within ten days after service of a copy of appellant’s request, any party may in the same manner request additional portions of the evidence and other proceedings to be included.

Tex.R.App.P. 53(b) (emphasis added). Rule 53(b) applies when an appellant requests a partial statement of facts and another party wants additional portions of the statement of facts, not requested by the appellant, included in the appellate record. Because Transamerica did not request a partial statement of facts, we hold that rule 53(b) does not apply. The Movants’ reliance upon rule 53(b) has no merit.

The Movants argue that a request by one party should be for the benefit of all parties in the same manner a motion for new trial filed by one party extends the appellate timetables for all the parties. Tex.R.App.P. 41(a)(1). Rule 41(a)(1) expressly provides that a timely motion for new trial extends the appellate timetables for all the parties, whereas rule 53(a) does not expressly state that a request by one party inures to the benefit of all the parties. Because the motion-for-new-trial analogy is distinguishable, the Movants’ reliance upon that analogy is without merit.

RULES 53(a) AND 54(c)
Rule 53(a) provides:
Appellant’s Request. The appellant, at or before the time prescribed for perfecting the appeal, shall make a written request to the official reporter designating the portion of the evidence and other proceedings to be included therein. A copy of such request shall be filed with the clerk of the trial court and another copy served on the appellee. Failure to timely request the statement of facts [476]*476under this paragraph shall not prevent the filing of a statement of facts or a supplemental statement of facts within the time prescribed by Rule 54(a).

Tex.R.App.P. 53(a). Rule 53(a) requires “the appellant” to make a written request for the statement of facts. Tex.R.App.P. 53(a). An “appellant” is “the party taking the appeal ... to the court of appeals.” Tex.R.App.P. 3(a). Pursuant to this definition, both the Movants and Transamerica are appellants.

Rule 54(c) states:
Extension of Time. An extension of time may be granted for late filing in a court of appeals of a transcript or statement of facts, if a motion reasonably explaining the need therefor is filed by appellant with the court of appeals not later than fifteen days after the last date for filing the record. Such motion shall also reasonably explain any delay in the request required by Rule 53(a).

Tex.R.App.P. 54(c) (emphasis added).

When an appellant wants to extend the time to file the statement of facts, the appellant must “reasonably explain any delay in the request required by Rule 53(a).” Tex.R.App.P.

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Bluebook (online)
825 S.W.2d 473, 1992 Tex. App. LEXIS 761, 1992 WL 35159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/inmans-corp-v-transamerica-commercial-finance-corp-texapp-1992.