How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Ray Your Own Question

Ray
Ray, Lawyer
Category: Real Estate Law
Satisfied Customers: 30161
Experience:  Texas Attorney for 29 years dealing in real estate
8534270
Type Your Real Estate Law Question Here...
Ray is online now
A new question is answered every 9 seconds

What is difference in filing a notice of appeal and a motion

Resolved Question:

What is difference in filing a notice of appeal and a motion for a writ of mandamus? I had a case wrongfully dismissed that was my 'counterclaim' to a forcible detainer case for the reason of res judicata. I believed the court erred because the 1) a motion 'in limine' was granted and 2) the forcible detainer case prohibits counterclaims. The time allowed filing the different actions is between 20 days and 6 months.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ray replied 1 year ago.

RayAnswers :

Thanks for your question and good morning.

RayAnswers :

Here iy give notice of appeal and perfect your appeal you get a second trial in county court with a new judge.

RayAnswers :

Here is reference to that--the law here is the same state wide.

RayAnswers :

A writ of mandamus here is a new proceeding filed in a higher court to only have the court review the order that was reviewed.It is considered a new proceeding.The difference is where you only want a particular order reviewed.

RayAnswers :

Reference to that..

RayAnswers :

You would want to see if yous situation meets the requirements for a writ of mandamus.There are strict guidelines and if your case falls under these you may choose to proceed to seek one.

RayAnswers :

If it does not a regular appeal is possible and the advantage to that is you get in essence a retrial in county court and the lower court action is stayed.

RayAnswers :

It has been my pleasure to assist you today.Please let me know if you have more follow up.Thanks again.

RayAnswers :

Summary of the appeal process.

RayAnswers :

You are entitled to an appeal from a final JP judgment to the county court. Tex. R. Civ. P. 749. Since judges of justice courts are not required to be lawyers, and the justice courts are not courts of record, an appeal to the county court is heard de novo (an entirely new trial, with no weight being given to the decision below). Tex. R. Civ. P. 547b. Texas Rules of Civil Procedure 749 through 755 govern the appeal of forcible detainer actions to county court. A tenant may appeal either by filing an appeal bond or cash deposit in lieu (Rules 749 and 750), or by filing a pauper's affidavit (Rules 749a) before the expiration of five days from the signing of the judgment. Once this has been completed the appeal has been perfected (749c), and all action on the judgment must be stayed

RayAnswers :

Here are the rules referenced above.

RayAnswers :

Your chances in appeal may be greater than seeking a writ of mandamus here but thats your judgment call.

RayAnswers :

Here are the Texas Rules of Procedure referenced in the summary above.

RayAnswers :

Thanks again for letting me help you today and good luck here moving forward.

Customer:

Sorry it took so long to get back. I have 2 cases here. The first is the forcible detainer which was appealed to c**ty court. Before the end of time, it was remanded back to JP court. At that time, it seemed that neither clerk knew what court had jurisdiction, so i file motions to

RayAnswers :

Take your time here be glad to respond..

Customer:

vacate remand with both courts. The JP court ruled against stating lack of jusrisdiction. The motion has never been set for hearing in the county court. Will I still have the right and time (6 months) to file a writ of mandamus for what I see as a judicial error because the remand was out of time ?

RayAnswers :

If you are wanting to file mandamus here to argue the judicial error-- the order itself was legally wrong you would file application for writ of mandamus now.Again many are filed here few are granted so keep that in mind.

RayAnswers :

As far as an appeal here in county court you will have to file a bond or claim indigency and then you get a second hearing in county court as an appeal from jp court.The County Court is a court of record with a transcript and will likely have a lawyer for a judge so your arguments can be understood better.

RayAnswers :

I can only provide you with information here about your options.I cannot see the documents that are involved.You have to decide what your best options are to prevail given your facts.

Customer:

The small claims case for the 'counterclaim' to the forcible detainer was ruled 'res judicata' and dismissed for lack of jurisdiction also. Will that 'res judicata' finding count in another suit that has been filed in district court since the ruling was a dismissal. Will any findings of this case be moot if the original judgement is vacated?

RayAnswers :

If you have an appeal timely made and granted to county court it is a complete new hearing.None of the jp rulings are in effect.It is a new trial with a new judge.It is a second hearing here on the merits nothing carries over.

RayAnswers :

Trial de novo here means entirely new trial.You may have better chances here in county court.

Customer:

The appeal in the forcible detainer case was done, bond posted, but when I went to pay fees, case had already been remanded. After discussions between the County clerk and the JP

Customer:

Judge, I was allowed to pay the fees in county court. I proceeded to file the motions to vacate remand. In the JP court, it was denied and the bond proceeds were dispersed. In county court, the docket shows the motion and proposed order, but no date has been set for a hearing. Does this qualify for appeal to 3rd coa at this time or should there be a hearing on the motion first?

RayAnswers :

Again without seeing all the paper it appears that you would need the County Court to issue an Order which you could then make an application for writ of mandamus.This would be considered an interlocutory appeal of that order.

RayAnswers :

You might also want to see if legal aid here locally would help you with such an appeal or application for writ of mandamus.It can be complicated for sure.

RayAnswers :

I do hope you are able to prevail in all of this.

RayAnswers :

I appreciate the chance to help you.

Customer:

thanks. one last question (maybe). If I don't file a timely appeal

Customer:

do I still have the 180 days for filing a writ of mandamus?

RayAnswers :

You would still be able to file for a writ of mandamus.The appeal rules here from JP to County have strict and short timelines.

RayAnswers :

Reference.

RayAnswers :

Thanks for letting me help I hope it works out.

RayAnswers :

If you can leave a positive rating it is always appreciated.Take care.

Customer:

At this point, the judgements of the court are a dismissal of the 'counterclaim' breach of contract in Small Claims court and the Forcible Detainer. My option is to file the appeals and pay fees now or request a hearing on my motion in County Court, then file either an appeal of that Order or the writ of mandamus. I am missing anything?

RayAnswers :

No I think those are the options here for you in this matter.

Customer:

Thanks

Ray, Lawyer
Category: Real Estate Law
Satisfied Customers: 30161
Experience: Texas Attorney for 29 years dealing in real estate
Ray and other Real Estate Law Specialists are ready to help you
Expert:  Ray replied 1 year ago.
Thanks for letting me help you. I appreciate the chance to do so.If you have more real estate questions please post them for Ray, thanks again.

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • Tina

    Lawyer

    Satisfied Customers:

    4813
    16 years of legal experience including real estate law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    4813
    16 years of legal experience including real estate law.
  • http://ww2.justanswer.com/uploads/LA/lawpro/2012-6-25_171315_PT206740s.64x64.jpg Law Pro's Avatar

    Law Pro

    Lawyer

    Satisfied Customers:

    6227
    20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
  • http://ww2.justanswer.com/uploads/BA/barristerinky/2012-6-10_22423_office.64x64.jpg Barrister's Avatar

    Barrister

    Lawyer

    Satisfied Customers:

    4966
    13 years real estate, Realtor. Landlord 24+ years
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    4446
    I've more than 27 years legal experience. Additionally, in CA I held a Real Estate Broker's license.
  • http://ww2.justanswer.com/uploads/RA/rayanswers/2012-6-7_23346_Untitled1.64x64.jpg Ray's Avatar

    Ray

    Lawyer

    Satisfied Customers:

    4030
    Texas Attorney for 29 years dealing in real estate
  • http://ww2.justanswer.com/uploads/PH/philip.simmons/2012-6-7_161915_BIGPhilipSimmons.64x64.jpg P. Simmons's Avatar

    P. Simmons

    Lawyer

    Satisfied Customers:

    2377
    12+ yrs. of experience including real estate law.
  • http://ww2.justanswer.com/uploads/mnphillips2/2009-03-13_203105_10984459-249293407.jpeg Phillips Esq.'s Avatar

    Phillips Esq.

    Attorney-at-Law

    Satisfied Customers:

    2355
    B.A.; M.B.A.; J.D.
 
 
 
Chat Now With A Real Estate Lawyer
Ray
Ray
Real Estate Lawyer
30161 Satisfied Customers
Texas Attorney for 29 years dealing in real estate