 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Marathon Corp. v. Pitzner8/2/2001
t should not consider [the motion] before then." Id. at 319 n.3.
In Tate, the appellant timely presented her motion for new trial to the district court, but did not pay the filing fee until after the motion had been overruled by operation of law, but while the trial court still had plenary jurisdiction. Tate, 934 S.W.2d at 83. The Supreme Court held that late payment of the filing fee at this time was sufficient to extend the appellate timetables, but specifically "express no opinion about whether a motion for new trial, even though extending the appellate timetable, properly preserves error for appeal if, as in this case, the filing fee is not paid until after the motion is overruled by operation of law." Id. at 84 n.1.
Other courts have suggested that a trial court has no authority to hear a motion for new trial before the filing fee has been paid. See Finley v. J.C. Pace Ltd., 4 S.W.3d 319, 321 (Tex. App.-Houston [1st Dist.] 1999, no pet.) (where appellant never paid filing fee); Polley v. Odom, 937 S.W.2d 623, 625-26 (Tex. App.-Waco 1997, no writ) (where appellant did not pay filing fee until after trial court lost plenary jurisdiction); Spellman, 887 S.W.2d at 482 (where filing fee was not paid until brought to appellants' attention by appellees some seven months after motion was heard and denied by trial court).
In a case very similar to this case, where the filing fee for a motion for new trial was not paid until after the trial court had lost plenary jurisdiction, this Court held that while filing a motion for new trial without payment of the filing fee does not affect the appellate timetable, it
does affect the trial court's discretion to hear and determine the motion. If the movant fails to pay the required fee, the trial court should refuse to consider the motion, as suggested by Jamar. While this may then amount to a waiver of the specific grounds raised in the motion for new trial, we do not believe that it should retroactively invalidate the filing of that motion for purposes of the appellate deadlines and appellate court jurisdiction. Ramirez v. Get "N" Go #103, 888 S.W.2d 29, 31 (Tex. App.-Corpus Christi 1994, writ denied).
In a footnote, we specifically stated that we were not addressing the issue of whether failure to timely pay the required filing fee results in the lack of preservation of any appellate issues. Id. at 31 n.1.
In Kvanvig v. Garcia, 928 S.W.2d 777, 778 (Tex. App.-Corpus Christi 1996, orig. proceeding), the defendant failed to pay the filing fee until nearly three months after the trial court timely granted her motion for new trial. The plaintiff, who did not object to the lack of payment of the filing fee, or otherwise object in the trial court, then sought a writ of prohibition to prevent the trial judge from granting the new trial on the ground that the trial court had no authority to grant a motion for new trial filed without payment of the proper fee. In denying the petition for writ of prohibition, this Court held that:
pon a sufficient showing of nonpayment, the trial court has discretion to refuse to act upon a motion for new trial until the filing fee is paid. Nevertheless, though it may have no obligation until the fee is paid, we conclude that the trial court in its discretion may consider and rule upon a motion for new trial from the time that it is tendered to the clerk and "conditionally filed." Id. at 779.
However, Kvanvig did not address the effect of the late payment of the filing fee on the preservation of issues on direct appeal.
We conclude that the reasoning of Jamar, Tate, Finley, Ramirez, Polley and Spellman apply to the instant case, where
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|