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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 27189
Experience:  Began practicing law in 1992
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Customer Question

in Missouri probate court, I want to ask a judge to reconsider a denial for my request for a continuation. How long do I have to ask for reconsideration? How long to appeal the decision?
Submitted: 2 years ago.
Category: Legal
Expert:  Dwayne B. replied 2 years ago.
Are you asking about a motion for continuance? If so, are you asking about appealing the denial of the motion?
Customer: replied 2 years ago.


That is correct.


 

Customer: replied 2 years ago.


That is correct

Expert:  Dwayne B. replied 2 years ago.
There is no specific time limit on asking for reconsideration of a motion for continuance although at some point an appeals court would say you waive the right to reconsider and should have filed a new motion. There is no specific time though.

You can't appeal the denial of a motion for continuance. It can't appealed until a final judgment is entered. Most people don't realize it but most orders of the court are not appealable until the case is over.

Please ask any follow up questions you have in this thread.
Customer: replied 2 years ago.

I am confused by both of your answers. According to what other people have told me and things I have read you have either 10 days or 30 days to ask for reconsideration. If that is wrong good but where can I find this for sure.


The judge denied the continuation request and went on to have the hearing without me there. Decided against me obviously with biased information. So is the case considered over? How can it be over if one party feels it has not been heard.

Expert:  Dwayne B. replied 2 years ago.
That is not correct. They are talking about filing an appeal of the final judgment, and the time limit is ten days after the judgment becomes final. If someone is telling you different they have never been to law school or practiced law.

However, if the judge ruled against you and you lost the case then you can appeal the case and the motion at the same time. That is different than just appealing the denial of the motion which was the first question.

The information on the rules regarding the time for appeal from the different courts are at http://www.courts.mo.gov/page.jsp?id=842

The judge isn't required to hear all parties he is just required to give all parties a chance to be heard. What you probably want to do at this point is file a motion for new trial or a motion for reconsideration of the judgment and then to appeal if that is not granted. The motion for reconsideration of the judgment, as opposed to the denial of the continuance, would be thirty days.
Customer: replied 2 years ago.


Just to verify, I will file a motion to reconsider the judgement along with reconsidering the denial of continuation. I assume I present this request to the judge that made the decision.


 


If he responds against me again, I can then appeal both issues.


 


If I get a negative response, I can then file a motion for a new trial?


 


If this is correct so far would I be able to request a different judge?

Expert:  Dwayne B. replied 2 years ago.
A motion for new trial and a motion for reconsideration are really the same thing. You would file them in the same court that the case was in before. If they are denied or the judge doesn't rule on them by the time limit then you would file an appeal.

You can't request a new judge at this stage.

If you would like any additional information or have more questions please don’t hesitate to ask but please do so my clicking on the Reply to Expert tab.

We work for Positive Ratings, please click on one of the top three ratings or one of the Smile Faces, as this would be appreciated. We have recently implemented a new rating and feedback system. Please be aware that you are rating my courtesy and service as a professional, and not necessarily whether you like the information that you are receiving. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. When looking at the answer I ask you to bear in mind I can’t control what the law is and whether it helps you, I can only tell you what it says, and I assume you want truthful information.

PLEASE DO NOT use the rating system to ask for more information or in an attempt to tell the website that you didn’t like the substance of the answer as it gives a NEGATIVE rating to me personally if your rating is one of the lower two.

I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Customer: replied 2 years ago.


Can you direct me to an ex of one so I'll get the format right?


 


I'm not sure how this works. Do I get a certain number of questions each time? If I get back to you tommorrow, do I pay again?


 


Thanks for your help. I appreciate getting that cleared up.

Expert:  Dwayne B. replied 2 years ago.
Once you give a rating, hopefully a positive one, then the question remains open for a couple of weeks and you can ask follow ups. If you are a subscriber then you pay the monthly fee and that is all. If not then you only pay when you open a new thread and accept in that thread.

I don't know of any forms or examples of these motions that are online. They are usually drafted from scratch.

If you would like any additional information or have more questions please don’t hesitate to ask but please do so my clicking on the Reply to Expert tab.

We work for Positive Ratings, please click on one of the top three ratings or one of the Smile Faces, as this would be appreciated. We have recently implemented a new rating and feedback system. Please be aware that you are rating my courtesy and service as a professional, and not necessarily whether you like the information that you are receiving. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. When looking at the answer I ask you to bear in mind I can’t control what the law is and whether it helps you, I can only tell you what it says, and I assume you want truthful information.

PLEASE DO NOT use the rating system to ask for more information or in an attempt to tell the website that you didn’t like the substance of the answer as it gives a NEGATIVE rating to me personally if your rating is one of the lower two.

I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Customer: replied 2 years ago.


hello,


I am still just a little confused. I understand you think it best that I file a motion for reconsideration on the denial of my request not to close the case. At this time would I also be filing a request to reconsider for the denial of a continuance? If so should they be done separately or in a document together? If I don't like the decision, do I have 30 days to appeal?


thank you


C

Expert:  Dwayne B. replied 2 years ago.
If the judgment was already rendered you file the motion for reconsideration or motion for new trial on the entire case and you include as many separate points as you have. You don't actually file a separate motion for reconsideration of the denial of the continuance since a judgment was rendered.

The reasoning is that the judge reconsidering the motion for continuance doesn't do anything now, by itself, because you have a judgment entered and so you have to handle the judgment.

If you would like any additional information or have more questions please don’t hesitate to ask but please do so my clicking on the Reply to Expert tab.

We work for Positive Ratings, please click on one of the top three ratings or one of the Smile Faces, as this would be appreciated. We have recently implemented a new rating and feedback system. Please be aware that you are rating my courtesy and service as a professional, and not necessarily whether you like the information that you are receiving. Please bear in mind I can’t control what the law is and whether it helps you, I can only tell you what it says, and I assume you want truthful information.

PLEASE DO NOT use the rating system to ask for more information or in an attempt to tell the website that you didn’t like the substance of the answer as it gives a NEGATIVE rating to me personally if your rating is one of the lower two.

I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Customer: replied 2 years ago.

It seems that I am suppose to prove the decision was wrong and I have to do that without a hearing? This does not seem right. Why didn't we have a hearing without me there to begin with?


 

Expert:  Dwayne B. replied 2 years ago.
You received notice of the setting correct?

You filed a motion for continuance, but did you have a hearing on it?
Customer: replied 2 years ago.


Not sure what you mean by setting.


I objected to the statement of accounts the lawyer had drawn up.


 


I was notified of a hearing date. I live in a different state and had another scheduled appointment of importance so I asked for a continuation.


The continuation request was denied and at the same time on the same document denied my request for a hearing and overruled objections to the statement aaccounts


 


I never had a hearing and by the way, did not have the opportunity to be heard considering the hearing was scheduled when I could not go.

Expert:  Dwayne B. replied 2 years ago.
You are not looking at it the way a court and the law looks at it.

The court, and the law, look at it as you chose to do something else rather than attend court. Your hearing was set and you didn't attend and therefore you waived any right to be heard.

The judge considers their setting to be the most important appointment.

I'm not saying that I don't think your continuance shouldn't have been granted, and I'm not saying the judge was correct, so please don't kill the messenger. I'm just telling you that the way our justice system works, the only one who can say that something is more important than your hearing date is the judge.

Read http://lessonsinlaw.com/motion-for-continuance-information/ when you get a chance.

I understand what you are saying and of course you are free to argue that, but you're not going to win arguing anything unless it is inside of a Motion to Reconsider / Motion for New Trial. The judge and then the appeal court is going to say it is waiver or it is moot.
Customer: replied 2 years ago.


I certainly understand what you are saying and I do believe you. BUT I want to give it a try. The reason partly has to do with miscommunication on the part of the judge. Maybe not. But for practical purposes, let's say there is a reason. What is the best way for me to present it to the judge? You said separate points. Would it simply be an additional Point in the


Motion to Reconsider the judgement overruling objections in statement of account


OR


Motion to Reconsider the judgement denying request for continuation


OR


Motion to Reconsider the judgment to overrule objections in statement of account and to reconsider the judgment denying requested continuance.

Expert:  Dwayne B. replied 2 years ago.
Based on what you've said, there is no reason not to do both. Do a Motion to Reconsider the Denial of the Motion for Continuance and then use it as a point in the motion asking him to undo the judgment that he entered. There is no disadvantage to doing it that way.

In the motion asking the judge to undo the judgment put every point possible because that is the motion that the court of appeals is going to focus on if the judge doesn't grant a new hearing.

If you would like any additional information or have more questions please don’t hesitate to ask but please do so my clicking on the Reply to Expert tab.

We work for Positive Ratings, please click on one of the top three ratings or one of the Smile Faces, as this would be appreciated. We have recently implemented a new rating and feedback system. Please be aware that you are rating my courtesy and service as a professional, and not necessarily whether you like the information that you are receiving. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. When looking at the answer I ask you to bear in mind I can’t control what the law is and whether it helps you, I can only tell you what it says, and I assume you want truthful information.

PLEASE DO NOT use the rating system to ask for more information or in an attempt to tell the website that you didn’t like the substance of the answer as it gives a NEGATIVE rating to me personally if your rating is one of the lower two.

I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.

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