
    Adam S. NACOL, Appellant, v. METALLIC DEVELOPMENT CORPORATION, Appellee. METALLIC DEVELOPMENT CORPORATION, Appellant, v. George W. POE et al., Appellees.
    Nos. 17994, 18012.
    Court of Civil Appeals of Texas, Fort Worth.
    June 19, 1980.
    Rehearing Denied July 17, 1980.
    William V. Browning, Wichita Falls, for appellant Nacol.
    Walter Nelson, Burkburnett, for appellee Metallic Development Corp.
    Nunn, Griggs & Steakley, and Charles R. Griggs, Sweetwater, for appellees George W. Poe, Joe A. Poe and John Schattel.
   OPINION ON MOTION TO REVERSE AND REMAND BECAUSE OF INABILITY TO OBTAIN A STATEMENT OF FACTS AND ON MOTION FOR EXTENSION OF TIME TO FILE STATEMENT OF FACTS.

PER CURIAM.

By our opinion we factually conclude that appellant Adam S. Nacol failed to establish by the form of proof appropriate to his motion for reversal that he could not, at an appropriate time, have secured for presentation to counsel for appellee, Metallic Development Corporation, a proposed statement of facts. We furthermore conclude that by application of rules of law to the foregoing factual conclusion that Nacol is not entitled to have the case remanded for another trial because the aforesaid appellee might have approved such statement of facts had the opportunity to do so been afforded; and that the presumption of law is that the appellee would have approved such statement of facts had it been afforded the opportunity.

As a result Nacol’s seventh motion for extension of time within which to file statement of facts is likewise to be denied, and is herewith denied. By the same factual finding and legal conclusion good cause for any further extension of time cannot exist and necessity therefor cannot be reasonably explained. (Nacol is in the peculiar position of seeking an extension of time to file a statement of facts which at the same time he represents as not possible to be secured).

Á result of our holding is that Nacol, who has perfected his appeal and timely filed the transcript, is to be heard on his appeal without benefit of any statement of facts. The same will also be true of Metallic Development Corporation’s appeal.

Having made the holdings aforesaid the clerk of our court will be directed to set the pending cases for hearing at as early date as possible after the computable time (from this date) for briefs of all interested parties to be filed.

The peculiar situation which has occasioned our action was born in the injury of the court reporter after the case had been appealed and while, presumably, he was working on the Nacol statement of facts. Because of his injury he ceased to perform any duties as official court reporter, with a daughter succeeding him as such in the same court. This daughter was Holly Hanks, who, when Nacol originally filed motion to have this court reverse the judgment and remand the cause to the trial court for retrial because of inability to secure a statement of facts from her father, supplied him with her affidavit in support. In that affidavit she stated:

“I have attempted to [prepare the statement of facts] but I have been unable to read James Hanks’ notes of the testimony and evidence. The sound recording made during the trial is not audible and I cannot transcribe the record from the sound recording. I do not believe any other court reporter, or any other person could transcribe his notes or the sound recording.”

Countering the Nacol motion, and in contradiction of Holly Hanks’ affidavit in support, there was a contest in support of which was appended a further affidavit of Holly Hanks. In the later affidavit she stated the fact of having made the earlier affidavit, and continues:

“Since that time further search has resulted in my finding the original tape which is audible, and with the use of this tape, I will be able to transcribe my father’s notes.
“On January 11, 1979 I informed Judge Kirk that I had located the original tape and that I was now in a position to transcribe the testimony in this case.
“On the same day during a recess of the trial then in progress, I informed Walter Nelson [counsel for Metallic Development
Corporation] that I had located the original tapes, and that the tapes I had previously listened to were more than likely made for the use of a typist, and that with the original tape I would be able to transcribe my father’s notes, and would do so immediately after the termination of the trial now in progress.
“I also informed Walter Nelson, that approximately two weeks prior to that date, January 11, 1979, by telephone I had informed Mr. William V. Browning [Nacol’s attorney] that I had located the original tapes and I asked him for instructions. He told me to do nothing toward transcribing the testimony in this case until the Court of Civil Appeals had an opportunity to act [on his pending motion for reversal because of inability to secure a statement of facts].”

Since the date contest was filed to Na-col’s motion to have the judgment reversed to date of this opinion there has been ample time for Nacol to have contradicted the proof submitted as part of the contest. There has been no contradiction. Nacol has merely requested that we take action on his motion. At a prior time Nacol apparently was able to have Holly Hanks prepare a statement of facts to be presented to Metallic Development Corporation counsel, thus affording opportunity to its counsel to approve such as the statement of facts in the case. This has not been done by Nacol.

Established by affidavit in support of Na-col’s motion for reversal is that in the event counsel for Metallic Development Corporation should not agree to any proposed statement of facts the record could not be established by corrective action of the trial judge. Tex.R.Civ.P. 377, “Statement of Facts”, sub. (d) “Approval of Trial Court Unnecessary” (1967). We hold that fact immaterial under the circumstances. We furthermore hold that it is to be presumed that the appellee (Metallic) would have agreed to the proposed statement of facts had the appellant (in this case Nacol) seen fit to have the notes of the official court reporter transcribed and presented for that purpose.

For the same reasons that we deny Na-eol’s motion for reversal and remand we deny motion for further extension of time to complete his record. We deem the state of the evidence to have established that Nacol has failed in the required showing, to-wit: that his motion reasonably explain the need for further extension of time.

Both motions are denied.  