Gallegos v. Truck Insurance Exchange

ON MOTION FOR REHEARING

On June 9, 1976, we denied appellant’s motion for extension of time for filing the *354record and held that appellant offered no “reasonable explanation” under Rule 21c1 for not filing a record which became misplaced while in possession of appellant’s attorney. We held that there was a calculated risk that the record would become lost or misplaced when it was kept by appellant’s attorney for over thirty days without filing it.

Appellant has now filed a motion for rehearing, wherein it is asserted that the record was not promptly filed by the attorney because he was not able to begin work on the brief because of the press of his trial docket. He planned to file the record on the sixtieth day so as to have maximum time available for preparing his brief.

Under the provisions of Rule 386, which governed extensions of time prior to the adoption of Rule 21c, it was necessary for the appellant to show good cause why said record could not be filed within sixty days. See Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952); Thompson v. Carter, Jones, Magee, Rudberg, Moss & Mayes, 514 S.W.2d 131 (Tex.Civ.App.—Dallas 1974, no writ); Watson v. Sellers, 477 S.W.2d 678 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ); Pollard v. American Hospital and Life Insurance Co., 472 S.W.2d 116 (Tex.1971). The harshness of this restrictive rule undoubtedly led to the adoption of Rule 21c with the accompanying amendment to Rule 386.

Rule 21c provides that the failure to timely file a record in the court of civil appeals will not authorize dismissal of the appeal if the defaulting party timely files a motion reasonably explaining his failure to meet the filing deadline. It has been held that a reasonable explanation 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.” Mulloy v. Mulloy, 538 S.W.2d 818, 1 Texas Court Reports 24 (Tex.Civ.App.—Houston [14th Dist.] 1976); Stieler v. Stieler, 537 S.W.2d 954 (Tex.Civ.App.—Austin 1976). While we recognize that some definitions of the word “inadvertence” include negligence, we express no opinion as to whether a negligent failure to timely file a record is a reasonable explanation under Rule 21c. Here there is no showing of negligence.

Rule 386 requires that the record be filed within sixty days from the rendition of the final judgment or order overruling motion for new trial, or perfection of writ of error. It does not require appellant to file the record as soon as possible. Certainly the record would have been filed without question if it had been tendered on the sixtieth day despite the fact that it had been in appellant’s possession for more than thirty days. The failure to timely file was not deliberate or intentional. Appellant was unable to timely file the record because it became lost. This is a reasonable explanation for appellant’s failure to timely file the record.

The motion for extension of time is granted under authority of Rule 21c to prevent loss of appellant’s appeal. The time for filing the record is extended until July 21, 1976.

. All references to rules are to Tex.R.Civ.P.