742 S.W.2d 777 | Tex. App. | 1987
AMERIPHONE, INC., Appellant,
v.
TEX-NET, INC., Appellee.
Court of Appeals of Texas, San Antonio.
Kimberly L. Lemons, San Antonio, Leon J. Barish, Austin, for appellant.
Michael Flume, San Antonio, for appellee.
Before ESQUIVEL, CANTU and CHAPA, JJ.
ON APPELLANT'S MOTION TO EXTEND TIME FOR FILING STATEMENT OF FACTS
PER CURIAM.
Appellant has moved for a 63 day extension of time in which to file his statement of facts. The motion is denied.
Final judgment in this case was signed on July 30, 1987. TEX.R.APP.P. 53(a) states that in order to present a statement of facts on appeal, the appellant shall make a written request to the official court reporter for its preparation at or before the time prescribed for perfecting the appeal. In the instant case, the appeal was due to be perfected by October 19, 1987. TEX.R.APP.P. 41(a).
The affidavit of Kimberly L. Lemons states that she filed the Request for Preparation of the Statement of Facts on behalf of appellant with the District Clerk's office on August 28, 1987 after being informed by the Clerk's officer that this would be sufficient. The affidavit further states that she was aware of TEX.R.APP.P. 53(a). The court reporter states in his affidavit that his first notice of any appeal of this cause was a telephone call from appellant on October 26, 1987. We hold that appellant has failed to comply with TEX.R.APP. P. 53(a) in that the request to the court reporter was not given timely and was not in writing.
Furthermore, appellant has not reasonably explained the late request. TEX.R. APP.P. 54(c). Appellant's motion does not attempt to explain the delay in making the request, but only alleges that the request for the preparation of the statement of facts was timely filed and that the court reporter has not completed his preparation of the statement of facts due to his busy schedule. However, the affidavits clearly disclose that the required request to the court reporter was neither timely nor in writing. Further, the court reporter's affidavit contradicts the motion, contending that the only reason for requesting the *778 extension is the lack of timely notice by the appellant.
The rules clearly provides that "it is the appellant's duty to cause the statement of facts to be filed with the Clerk of the Court of Appeal." TEX.R.APP.P. 53(k). It also imposes upon the appellant the duty to provide the required written and timely notice "to the official reporter." TEX.R. APP.P. 53(a). Appellant relied on suggestions that contravene the Texas Rules of Appellate Procedure at his own peril.
The motion for extension of time to file the statement of facts is denied.