October 7, 1981.
William H. Scott, Jr., Browne Moore, Taylor Moore, Houston, for relators.
Robert L. Joseph, William G. Burnett, Sinton, for respondents.
This is a motion by Michael and Sheri Anderson seeking review of the order of the court of civil appeals denying their motion to extend time to file a motion for rehearing. Michael and Sheri obtained a judgment awarding equitable relief against J. C. Anderson in the trial court, and J. C. perfected an appeal. The court of civil appeals wrote two opinions, the first dated May 28, 1981. J. C. filed a motion for rehearing, and on June 25 the court handed down a second opinion which affirmed the judgment of the trial court and refused to consider Michael and Sheri's cross points on exemplary damages. Anderson v. Anderson, 618 S.W.2d 927 (Tex.Civ.App. 1981).
On July 7 Michael and Sheri filed a timely motion for extension of time for filing a motion for rehearing under Rule 21c. The court denied the 21c motion on July 23. On July 27 Michael and Sheri tendered their motion for rehearing complaining of the court's refusal to consider their cross points on exemplary damages. The clerk refused to file it. Michael and Sheri filed a motion to review under Rule 21c. We grant the motion.
Rules referred to are Texas Rules of Civil Procedure.
Michael and Sheri have followed the guidelines set out in Banales v. Jackson, 610 S.W.2d 732 (Tex. 1980), for seeking review of the court of civil appeals' order denying their 21c motion. They filed a motion within thirty days from the date of the denial of the 21c motion which was accompanied by the following documents: (1) the petition for review, (2) a copy of the 21c motion that was filed in the court of civil appeals, (3) the supporting affidavit filed in that court, (4) the clerk's certificate showing the orders of the court of civil appeals, and (5) a brief.
Our review of an order denying an extension of time for filing a motion for rehearing is limited to the record the movant made in the court of civil appeals. An examination of the record indicates that Michael and Sheri's attorney had suffered a heart attack and was hospitalized at the time the motion for rehearing should have been filed. This meets the test of "reasonably explaining" the need for an extension of time under Rule 21c.
We hold that Michael and Sheri are entitled to file their motion for rehearing, and the court of civil appeals should consider and rule upon it. In future appeals of this nature, where the parties have complied with the guidelines established in Banales v. Jackson, supra, we will review the record and, without hearing oral argument or issuing an opinion, either grant or deny the motion.