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TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4258
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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I am currently involved in a lawsuit the has moved from JP

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I am currently involved in a lawsuit the has moved from JP court to county court. To appeal to county court from JP court I had to come up with an appeal bond in the amount of $2,500. Yesterday I received a letter when I went home via first class mail that they were filing a motion to dismiss based on what they say is an incorrect bond amount. I received this after 5pm my time and did not sign for the certified mail copy. Today when I look at the court website it says case disposed and the trial has been cancelled. My question is for certificate of service, don't I have to sign for the motion to be consider proper? Can they just dismiss my case without giving me an opportunity to respond?
Submitted: 1 year ago.
Category: Legal
Expert:  TexLaw replied 1 year ago.
Hi,

In what state is the case filed?
Customer: replied 1 year ago.

Texas

Expert:  TexLaw replied 1 year ago.
Sorry, a few more questions:

1. They only provided you with a letter and not an actual copy of the motion?

2. Was the motion filed in the county court or in the JP court?
Customer: replied 1 year ago.

Motion was filed in county court. Provided the motion in the first class letter but I only received it yesterday and did not sign for the actual certified mail copy.

Expert:  TexLaw replied 1 year ago.
I need you to look at the envelope and see when the letter was stamped as received by the post office.

Also, I need you to look at the actual motion for a part called the "certificate of service" and tell me what it says.

Thanks
ZDN
Customer: replied 1 year ago.

I says the letter was received July15th and the certificate of service says ' this is to certify that on the 11th day of July, 2013, a true and correct copy of plaintiff's Motion to Dismiss for Want of Prosecution was served on Defendant******** at Address by e-certified mail #9171969009350038397384 return receipt requested and First Class Mail.


 


How can it be served 4 days before the post office accepted it?

Expert:  TexLaw replied 1 year ago.
Exactly. The post office stamp must be the same day as the certificate of service or the service was defective. You were supposed to get this at least 3 days prior to the hearing.

You need to file a Motion to Reconsider in the County Court and make the envelope an exhibit to demonstrate that their motion to dismiss was not properly served on you and that you did not have any fair notice of the hearing and thus your due process rights were violated, in addition to the violation of Texas Rule of Civil Procedure 21a.

Further, TRCP 91a3 requires that a party grant you 21 days notice prior to a motion to dismiss being heard by the court.

Finally TRCP 571 requires at least 5 day notice of any defect in the appeal bond before the appeal is dismissed.

Expert:  TexLaw replied 1 year ago.
Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Best Regards,
ZDN
Customer: replied 1 year ago.

I also see that TX RCP under 91.a2 requires that the motion to dismiss must state that it is made pursuant to this rule. Their motion does not do that. it also says that it needs to be filed within 60 days after the first pleading containing the challenged cause of action
is served on the movant; 91a3(a)


 


They are well passed 90 days since they put in the initial pleading. (February)


 


Is it possible I can defeat their motion based on these?

Expert:  TexLaw replied 1 year ago.
I think you need to argue both that 91a3 requires specific compliance and that they missed their 90 day window; and that 571 requires at least 5 days notice, so no matter which way the court decides, the defendant did not comply with the rules on notice and the ruling must be reconsidered with their motion be stricken.

I think it is very possible to defeat the ruling with these arguments.
Expert:  TexLaw replied 1 year ago.
Please let me know if you have any further questions.

Best Regards,
ZDN
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4258
Experience: Lead trial/International commercial attorney licensed 11 yrs
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TexLaw
TexLaw
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Lead trial/International commercial attorney licensed 11 yrs