TexLawyer : Good morning. I'll be assisting you with your question.
TexLawyer : The issue is less about whether the clerk will accept the late filing, and more about whether or not the motion will be ruled upon.
TexLawyer : Here's the problem with filing a motion after you've filed your notiece of appeal:
TexLawyer : In every state I'm aware of, the trial court loses jurisdiction over the case as soon as the notice of appeal is filed. This means that anything filed after the notice is filed will not be ruled upon by the trial court. If the trial court does not make a ruling on something, you take that issue up on appeal.
TexLawyer : So, if you file the motion for new trial after the notice of appeal, the trial court can't rule on it. If the trial court can't rule on it, it can't be the basis for a point of error on appeal.
TexLawyer : I can see that you are connected to this chat, but may be having difficulty posting a reply (or else I can't see it). If that is the case, I can switch to a Q&A format, which usually corrects the problem. I'll wait a few minutes before doing so just to make sure.
>>>the late filing
it would not be a late filing, let me clarify.
My motion for a new trial has been filed in a timely fashion in March. I want to file a motion to leave to amend that motion as I have some sworn affidavits.
My intention is to file both together ( Notice of Appeal and motion to amend ).
I need to file a notice of appeal on the amended final judgement tomorrow as a precaution to the complexity of the case. Judge has done a whole series of mistakes, and there is a re-hearing on a "deemed" motion to amend the amended final judgment scheduled for beginning of June.
My view is that I will file a notice of appeal on the amended final judgment because the "deemed" motion will be denied regardless a of any consideration of law etc... That is the assumption we need to work with. Not sure that motion and the order are tolling the time to appeal ? I am checking this right now, but if you have some opinion, I'd be glad to hear.
So if it;s not the case in June I will find myself with a situation reverting to the amended final judgment with an order of the court and then I will lose my rights to appeal.
I am also intending file a notice of appeal on a previous order denying my motion to strike or dismiss.
I will have a question about that next.
i understand this is a bit complex. I am not interested with whatever this Judge will decide or not. I am also looking at filing a lot of documentation and pleadings that was not filed on purpose by my opponent to begin with, not by my previous lawyer who was a total failure.
Of course, in the light of what you say, the crucial question would then to evaluate if the deemed motion to rehear is tolling the time to appeal.