Promaxima Fitness, Inc. v. Keener

ORDER PER CURIAM. On February 25, 1992, we issued an order that gave the appellants notice they filed the transcript late and no party had filed a motion to extend time to file the transcript. In our order, we gave the parties 10 days to file a response to show why we should not dismiss the appeal. The appellants filed a response and asked us to continue with the appeal. The appellants contend their motion to extend the time to file the statement of facts also requested an extension for the transcript. The appellants’ counsel concedes that the motion to extend only refers to the “statement of facts,” but explains that he thought the term “statement of facts” included the entire record from the trial court. In the affidavit attached to the motion to extend, the appellants’ counsel recited that, “I have requested a statement of facts including Plaintiff's Original Petition, Defendants’ Original Answer, transcript of trial proceedings, all exhibits entered at trial, and the final judgment ” (emphasis added). Only the transcript contains a case’s original petition, answer, and final judgment. See Tex.R.App.P. 51(a). Accordingly, we interpret counsel’s use of the term “statement of facts” in the motion to extend to refer to both the transcript and statement of facts. See Riviea v. Marine Drilling Co., 787 S.W.2d 189, 191 (Tex.App.—Corpus Christi, no writ) (court reporter’s affidavit that included request for extension to file statement of facts was interpreted to be a motion for extension of time); McDonald v. Brennan, 704. S.W.2d 136, 139 (Tex.App.—El Paso 1986, writ ref’d n.r.e.) (motion to extend time to file the “record” interpreted to be a motion for extension to file both the transcript and statement of facts). We instruct the clerk to mark the transcript she had previously marked “received” as “filed.” It is so ORDERED.