Motion for Temporary Restraining Order in TIMOTHY G. PLETTA vs. DWAYNE HATCHER, et al| Trellis.Law

On November 05, 2020 a Motion-Secondary was filed involving a dispute between Timothy G. Pletta, and Carrizalez, Alfonso Ovalle, Hatcher, Dwayne, for CNTR CNSMR COM DEBT in the District Court of Dallas County.

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FILED
3/22/2021 5:33 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Rhonda Burks DEPUTY

NO. DC20~-16552

TIMOTHY G. PLETTA, Trustee for IN THE DISTRICT COURT
and on behalf of the Ann Hennum
& Timothy Gerard Pletta Revocable
Trust,

Plainer ee,

VS DALLAS COUNTY, TEXAS

DWAYNE HATCHER, Indv. d/b/a
Hatcher Building & Construction
and ALFONSO OVALLE CARRIZALEZ,
Indv. and d/b/a Texas Cabinets,

Defendant 134 JUDICIAL DISTRICT

PLAINTIFF'S AMENDED OBJECTIONS AND RESPONSE TIN
OPP: ITI MERGENCY
_'T!

COMES NOW, TIMOTHY G. PLETTA, Trustee for and on behalf of the

Ann Hennum & Timothy Gerard Pletta Revocable Trust ("Plaintiff") in

the above-referenced and cause numbered action who files this its

Amended Objections and Response in Opposition to Emergency TRO

scheduled for hearing by FLORENCE (WEBB) HATCHER, HEIR, for and on

behalf of DWAYNE HATCHER, Indv. d/b/a Hatcher Building &

Construction, Deceased ("Defendant") and would show unto the Court

the following:

LAWFUL SERVICE OF PROCESS

1 Lawful service of process in Case Number DC20-16552 was

made on December 16, 2020, a copy of which are attached hereto as

Exhibit oaM and incorporated herein by reference. Heqwer v.

Edwards, 527 S.W 3rd 337 (Tex. App -- Dailas, 2017).

PLAINTIFF'S AMENDED OBJECTIONS AND RESPONSE TO EMERGENCY TRO Page 1
2 Lawful service of process was made in Case Number JS20-

00683-P on December 10, 2020, a copy of which are attached hereto

as Exhibit "B" and incorporated herein by reference. Hegwer v.

Edwards, 527 S.W.3rd 337 (Tex. App ~~ Dallas, 2017).

3 Any allegation Defendant was not served is false, to

which Plaintiff objects. In support, Plaintiff relies upon the

Writ of Scire Facias and Return of Service on file herein for which

Plaintiff requests the Court take judicial notice. Further, and if

necessary, Plaintiff offers the testimony of Michael Hernandez.

RCP _107(b) (3) NOT APPLICABL:

4 Plaintiff would further show TRCP 107(b) (3) identifying

“a description of what was served" is not applicable in this case,

as TRCP 107(a) provides: "The Officer or Authorized person

executing the Citation must complete a return of service."

5 In the present case, the Authorized person is serving and

executing a Writ of Scire Facias, not a Citation. A Writ of Scire

Facias requires only “a return of service of the Writ of Scire

Facias". Heqwer v. Edwards, 527 S.W.3rd 337 (Tex. App ~~ Dallas,

2017) citing Supak v.Zboril, 56 S.W.3d 785, 793-94 (Tex. App. --

Houston [14th Dist.} 2002, no pet.

6 Here, The Return on file does duly state, "The Writ of

Scire Facias was served on December 10, 2021" and included therein,

The Writ of Scire Facias, as certified by Gay Lane, Deputy, states

a copy of plaintiff's petition "accompanies this Scire Facias."

PLAINTIFF'S AMENDED OBJECTIONS AND RESPONSE TO EMER TRO Page 2
rrr.

NO PLEADINGS TO SUPPORT TRO AND MOTION FOR
NEW TRIAL/ SET ASIDE IS UNTIMEL’

7 Plaintiff would show Defendant has no pleadings which

either support or request a TRO, emergency or otherwise. There is
no sworn petition, no affidavit or grounds which even "set up" a

meritorious defense in violation of TRCP 680. In other words,

Defendant's entire application is based solely on a lawyer's

pleading, to which Plaintiff objects. Furthermore, no application
or compliance has been made with TRCP 634, which governs the stay

of a Writ of Execution to which Plaintiff objects.

8 By contrast, Plaintiff references its Notice of Filing

and Business Records Affidavit which demonstrates notice of the

Court's judgment was provided on January 27, 2021, a copy of which

is attached hereto as Exhibit "em and incorporated herein by

reference. Service by mail is complete upon mailing pursuant to

TRCP 2la(b) (1). Therefore, any Motion for New Trial would be due

on ox before February 15, 2021. Defendant's Motion for New Trial

was filed March 11, 2021; and is therefore, untimely to which

Plaintiff objects. See Generally, The Estate of Pollack v.

MeMurrey, 858 ss -W.2d 388 (Tex. 1993).

9 TRCP 5 prohibits the trial court from extending the time

period "for taking action under the rules relating to new trials.

Moritz v. Preiss, 121 S.W.3rd 715, 720 (Tex. 2003).

PLAINTIFF'S AMENDED OBJECTIONS AND RESPONSE TO EMERGENCY TRO Page 3
10. Additionally, contained in the Business Records Affidavit

is the admission of Dwayne Hatcher who states, "Fran is willing to

correct the issues on the cabinets, with the help of Texas cab."

In short, there is not now, no ever a meritorious defense nor a

probable right of recovery for Defendant, issues required by either

a TRO or a Motion for New Trial, to which Plaintiff objects.

it. Finally, Plaintiff objects as to lack of a conference or

3 day notice, as Defendant received the Writ of Execution on March

8, 2021, according to Martin Popick, Chief Deputy Constable, Denton

County Precinct Number 3, 400 N. Valley Parkway, #2044, Lewisville,

Texas 75067. Office 972-434-4773. Cell 972-821-1149,

12. As to the Justice of the Peace Court, Final Judgment was

signed and entered on March 17, 2021, where after having filed an

Answer, neither Defendant nor her attorney even bothered to appear

or file a Response in Opposition to the Motion for Summary

Disposition, a copy of which are attached hereto as Exhibit "D" and

incorporated herein by reference.

PLAINTIFF'S AMENDED OBJECTIONS AND RESPONSE TO EMERGENCY TRO Page 4
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Court

DENY and OVERRULE Defendant’s Application for TRO, Motion for New

Trial and/or Motion to Set Aside. Plaintiff prays for general

relief.

Respectfully submitted,

LAW a OF TIMOTHY G. PLETTA

By
TIMOTHY( G. PLETTA
State Bar No. 16071800

150 Bethel Road
Coppell, Texas 75019
Telephone: (972) 462-0321
Facsimile: (972) 462-0465
AttorneyPletta@HotMail.com

ATTORNEY FOR PLAINTIFF,
TIMOTHY G. PLETTA, Trustee for
and on behalf of the Ann Hennum
& Timothy Gerard Pletta Revocable
Trust

CERTIFICATE OF SERVICE

This is to certify a true and correct copy of this Plaintiff's
Objections and Response in Opposition to Emergency TRO has been
made on all parties, via e-mail, on this the 22nd day of March
2021.

&—__—
TIMOTHY G.f{ PLETTA

PLAINTIFF'S AMENDED OBJECTIONS AND RESPONSE TO EMERGENCY TRO Page 5
wmnpix I, Texas Ruves or Civit ProceDurE
TRCP 152

*
btted as in other cases; and said officer, on demand of a reasonable time after the death of the plaintiff, the clerk
party to whom any such costs are due, shall issue exe- upon the application of defendant, his agent or attorney,
in for costs at once. This rule shall not apply to execu- shall issue a scire facias for the heirs or the administrator
, administrators or guardians in cases where costs are or executor of such decedent, requiring him to appear and
\dged against the estate of a deceased person or of a prosecute such suit. After service of such scire facias, should
No execution shall issue in any case for costs until af- such heir or administrator or executor fail to enter appear-
ance within the time provided, the defendant may have the
judgment rendered therefor by the court.
(ct 29, 1940, eff. Sept. 1, 1941. suit dismissed.
SECTION 7. ABATEMENT AND DISCONTINU- ‘Oct. 29, 1940, eff. Sept. 1, 1941. Amended
by order of Dec. 5, 1989, eff.
April 1, 1984.
ANCE OF SUIT
Source: TRCS arts. 2078, 2079 (repealed).
TRCP 150, DEATH OF PARTY See also O'Connor’s Texas Rules, “Estate,” ch. 2-B, §4.3.2; “Motion
_ Where the cause of action is one which survives, no suit to Abate—Challonging the Suit,” ch. 31
‘Yall abate because of the death of any party thereto before
Ieverdict or decision of the court is rendered, but such suit ANNOTATIONS
ny proceed to judgment as hereinafter provided.
Oat 29, 1940, eff Sept. 1, 1941. Mayhew v. Dealey, 143 S.W.3d 356, 370-71 (TexApp.—
Source: TRCS art. 2078 (repealed), Dallas 2004, pet. denied). “Ordinarily, only the executor or
See also O'Connor's Texas Rules, “Plea to the Jurisdiction—Chal- administrator may bring suit to recover property belonging
‘feaing the Court, ’ “Motion to Abate—Challenging the Suit,” ch. to the estate, such as in a survival action. There are excep-
au tions to this general rule. The first exception is that heirs
at law may bring a survival action on behalf of the estate
when no administration is pending and none is necessary.
E ANNOTATIONS {KJ The second exception provides that heirs may bring suit
when the personal representative cannot, or will not, bring
Moore v. Johnson, 143 S.W.3d 339, 342 (TexApp.— the suit or when the personal representative's interests are
Tallas 2004, no pet). “The probate code [now Estates Code] antagonistic to those of the estate.”
‘tes not provide that letters are a prerequisite to filing or
‘taintaining a claim on behalf of an estate. Further, under TRCP 152. DEATH OF DEFENDANT
(RCP 150 and 151], where the cause of action is one that Where the defendant shall die, upon the suggestion of
sirvives, a pending suit does not abate upon the death of a death being entered of record in open court, or upon peti-
varty but may proceed to judgment. The heirs or executor tion of the plaintiff, the clerk shall issue a scire facias for
say appear and upon suggestion of death being entered of the administrator or executor or heir requiring him to ap-
may be made plaintaff and suit proceed in his or theix pear and defend the suit and upon the return of such ser
ume. There is no requirement that letters testamentary vice, the suit shall proceed against such administrator or
‘)pfiled or any particular proof be offered with the sugges-
‘on of death.” executor or heir.
Palomino y. Palomino, 960 S.W.2d 899, 900-01 Oct. 29, 1940, eff. Sept 1, 1941.
(lxApp—El Paso 1997, pet. denied). “The general rule in Source: TRCS art. 2080 (repealed).
“Txas is that a cause of action for divorce is purely personal See also O'Connor's Texas Rules, “Estate,” ch. 2-B, §4.3.2; “Motion
sad hecomes moot and abates upon the death of either to Abate—Challenging the Suit,” ch. 31.
.. . . However, when a trial court has rendered judg-
nent on the merits in a divorce case, the cause does not
wate when a party dies, and the cause cannot be ANNOTATIONS »
tsmnissed.” See also Pollard v. Pollard, 316 S.W.3d 246,
150-51 (TexApp—Dallas 2010, no pet.). Estate of Pollack v. McMurrey, 858 S.W.2d 388, 390
n2 (Tex 1993). “Scire facias. . . provides for substitution of
TRCP 151. DEATH OF PLAINTIFF
any person or persons succeeding to the rights of the origi-
Ifthe plaintiff dies, the heirs, or the administrator or nal party, whether executor, administrator, heir, or person
‘sseeutor of such decedent may appear and upon suggestion. holding the same practical relation.” See also Tolar v. To-
{such death being entered of record in open court, may be Jar, No. 12-14-00228-CV (TexApp.—Tyler 2015, no pet)
nade plaintiff, and the suit shall proceed in his or their (memo op.; 5-20-15) (P has duty to cause clerk to enter scire
tame, [fno such appearance and suggestion be made within facias).

O'Connor's Texas Ruies 1075
fenvix I. Texas Ruves or Crvit PROCEDURE
TRCP 21a

*
fling end service ofall pleedings
and motions
on all parties through the electronic filing manager if the email address
{toconsolidate
notice and service Rules 21, 72 and 73.
of the party or attorney to be served is on file with the
Source:
TRCS art. 2291 (repealed). electronic filing manager. If the email address of the party
Seealso O'Connor's Texas Rules, “Rules of Pleading’ ch. 1-B; ae or attorney to be served is not on file with the electronic fil.
Documents,”ch. 1-C; “Rulesfor Serving Documents,’
‘tial fotiona,” ch.5. ing manager, the document may be served on that party or
attorney under subparagraph (2).
Ff (2) Documents Not Filed Electronically. A document
ANNOTATIONS
not filed electronically may be served in person, mail, by
Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex 1999). commercial delivery service, by fax, by email, or by such
date of filing is when the document is first tendered other manner as the court in its discretion may direct.
we clerk [even if no filing fee ae aid). The filing [of the {b) When Complete.
gion for new trial] was comple’ . when [D] paid the
ing fee. At 319 n.3: The filing is not‘completed until the (1) Service by mail or commercial delivery service
218 paid, and absent emergency or other rare circum-
ances, the court should not consider it before then.” See
all be omnd] iplete upon deposit of the document, postpaid
shall
ant properly addressed, in the mail or with a commercial
w Tate v. E.. DuPont de Nemours & Co., 934 S.W.2d delivery service.
{4 (Tex 1996),
(2) Service by fax is complete on receipt. Service
High Rev Power, L.L.C. v. Freeport Logistics, Inc.,
0, 05-13-01360-CV, 2016 WL 6462392 (TexApp.—Dallas ompleted after 5:00 p.m, local time of the recipient shall
116, no pet.) (memo op.; 10-31-16). “Under rule 21(f)(6), be deemed served on the following day.
.an electronically filed document is deemed filed when (8) Electronic service is complete on transmission of
i transmitted to the filing party’s electronic service the document to the serving party's electronic filing service
‘wider. Although [D's] motion for new trial was never provider. The electronic filing manager will send confirma:
rwarded to the county clerk’s office, it was deemed filed
when it was successfully transmitted to [D's] electronic tion of service to the serving party.
tvice provider. (c) Time for Action After Service. Whenever a party
Perkins v. City of San Antonio, 293 S.W.3d 650, has the right or is required to do some act within a pre-
44-55 (TexApp—San Antonio 2009, no pet). TRCP 21 ‘is scribed period after the service of a notice or other paper
applicable to a trial setting. [When] the trial court's hear- upon him and the notice or paper is served upon him by

fh
fis j| dispositive of the merits of [the] underlying case,
earing [is] effectively a trial setting [and should be
werned by TRCP 245).”
mail, three days shall be added to the prescribed period.
(a) Who May Serve. Notice may be served by a party
"|
to the suit, an attorney of record, a sheriff or constable, or
Approximately $1,589.00 v. State, 230 S.W.3d 871,
{3-74 (TexApp.—Houston [14th Dist] 2007, no pet). “Rule by any other person competent to testify.
does not expressly require that a motion and notice of (e) Proof of Service. The party or attorney of record
raring be filed at least three days before hearing. However, shall certify to the court compliance with this rule in writ
dle 21 expressly requires that a motion and notice of hear- ing over signature and on the filed instrument. A certificate
¢ be served on opposing parties at the time of filing. by a party or an attorney of record, or the return of the of-
erefore, Rule 21 effectively requires that a motion and ficer, or the affidavit of any other person showing service of
ice of hearing be filed at least three days before hearing,
iless otherwise provided by the (TRCPs] or shortened by a notice shall be prima facie evidence of the fact of service.
ecourt” Nothing herein shall preclude any party from offering proof
that the document was not received, or, if service was by
TRCP 21a. METHODS OF SERVICE mail, that the document was not received within thrée days
(a) Methods of Service. Every notice required by these from the date that it was deposited in the mail, and upon
ies, and every pleading, plea, motion, or other form of so finding, the court may extend the time for taking the ac
quest required to be served under Rule 21, other than the tion required of such party or grant such other relief as it
tation to be served upon the filing of a cause of action and deems just
xept as otherwise expressly provided in these rules, may
{f) Procedures Cumulative. These provisions are
served by delivering a copy to the party to be served, or
cumulative of all other methods of service prescribed by
¢ party's duly authorized agent or attorney of record in
these rules.
‘emanner specified below:
‘Ang. 18, 1947, eff. Dec. 31, 1947. Amended
by orders of July 21, 1970,
(1) Documents Filed Electronically. A document filed eff. Jan. 1, 1971; Oct3, 1972, eff. Feb. 1, 1979; July 11, 1977, eff. Jan. 1,
ectronically under Rule 21 must be served electronically 1978; June 10, 1980, eff. Jan. 1, 1981; Dec.5, 1989, eff. April1, 1984; April

O'Connor's Texas Rutes 1015

es a =
Cuaprer 1, GENERAL Cu. 1-D
D. Rutes ror Sexvinc Documents §4.2.202)
*
(a) Service complete. E-service is complete when the document is sent to the serving party's electronic-
filing service provider (EFSP). Tex R. Civ. P. 21a(b)(3); of: Tex R. App. P. 9.5(c)(4) (same, for appeals). But cf. Tex R Civ. P.
601.4(a)(4) (in justice courts, document served by e-mail after 5:00 p.m. local time of recipient is deemed served on following
day). The EFM will send a confirmation notice of service to the e-serving party. Tex R. Civ, P. 21a(b)(3).
{(b) Signing documents, Any document that is e-seryed must contain an electronic signature, See Tex R
Civ. P. 21(6(7). See “Electronic signature,” ch. 1-B, §3.2.12(2)(b).
(c) Fees. Depending on the EFSP, a party may have to pay transaction and service fees. See
www.eliletexas.gov/fags.htm (select “Is there a fee to use eFileTexas.gov?”).
(2) Exception—e-mail not on file. Ifa document was e-filed but the e-mail address of the attorney or pro se
party to be served is not on file with the EFM, a party may serve the document as if it had not been e-filed—that is, by any
method under TRCP 21a(a){2). Tex. R Civ, P. 21a(a)(1).
2. Document was not e-filed. Ifa document was not e-filed, a party may serve it by any of the following methods.

Note
Certain documents, such as discovery requests on a party, are generally not e-filed or filed by other
traditional methods, See “Filing discovery,” ch. 6-A, §12.1. Parties required to serve unfiled documents
can use the EFM to serve those documents as long as the e-mail address of the attorney or pro se party
to be served is on file with the EFM. See www.efiletexas,goulfags.him (select “Can I use e-service without
filinga document with the court?”), If the e-mail address of the attorney or pro se party is not on file
with the EFM, the party can use the methods identified below.

(1) Mail. A party may serve documents by mail, Tex R. Civ. P. 2 1a(a)(2), Service by mail is complete upon
mailing, See Tex R. Civ. P. 21a(b)(1); cf, ‘Tex R. App. P. 9.5(c)(1) (for appeals, same). When a party serves a document by mail,
it invokes the “mailbox rule” in TRCP 21a, A document is considered served on the day it is deposited in the mail if all the
following conditions are met:
(a) The document was sent by U.S. mail, which includes regular mail or certified or registered mail. See Tex
R Civ. P. 21a(a)(2), (6)(2).
(b) The document was properly addressed to the other party and mailed with postage paid. Tex. R Civ. P.
21a(b)(1). Under TRCP 21a, a document that is properly addressed and mailed with postage paid is presumed to have been
received by the addressee. Thomas v. Ray, 889 S.W.2d 237, 238 (Tex 1994); see Tex R Civ. P. 21a(b)(1).
(c) The attorney of record or the party signed a certificate of service stating that the filed document was
served in compliance with TRCP 21a. Tex R. Civ. P. 21a(e). The certificate is prima facie evidence of the date of service. Shaw
v. National Cty. Mut. Fire Ins., 723 S.W.2d 236, 237 (TexApp.—Houston [1st Dist] 1986, no writ); see Tex R Civ. P. 21a(e)
(certificate is prima facie evidence of service); State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 642 (Tex 2001) (same).

Caution
The mailbox rule for filing with the clerk differs from the mailbox rule for serving a document on the
other party. The most important difference is that the ten-day grace period for receipt in TRCP 5 does
noi apply to service of documents on parties. Salazar v. Canales, 85 S.W.3d 859, 863-64 (Tex App.—
Corpus Christi 2002, no pet). See “Mail,” ch. 1-C, §4.1.2(1). Thus, when a document is mailed io the
other party on the date it is due, it is considered served on the other party on the date it was mailed, no
matter when the other party receives it

(2) Delivery. A party may serve documents by personal delivery or commercial delivery service. Tex R Civ. P.
21a(ay(2).
O'Connor's Texas Rues 43
Aprenvix I. Texas Rutes or Civit PRocepure
TRCP 637

*
district or county court, and shall require the officer to exe- thereof for which the judgment was recovered, to be speci-
fute it according to its terms, and to make the costs which fied therein, out of any property of the party against whom
have been adjudged against the defendant in execution and judgment was rendered, liable to execution.
the further costs of executing the writ. It shall describe the istory of TROP 633: Adopted aff. Sept. 1, 1941, by order
of Oct. 29,
1940 (3 TexB.J, 621 [1940)). Source:
TRCS art. 3783(6) (repealed).
judgment, stating the court in which, and the time when,
tendered, and the names of the parties in whose favor and TRCP 634, EXECUTION SUPERSEDED
against. whom the judgment was rendered. A correct copy clerk or justice of the peace shall immediately issue
of the bill of costs taxed against the defendant in execution a writ¢ deas su ending all further proceedings
‘phall be attached to the writ It shall require the officer to under xOC ion previously issued when a supersedeas
return it within thirty, sixty, or ninety days, as directed by bond is afterward filed and approved within the time
the plaintiff or his attorney.
prescribed by law or the
Histor by order
of Oct. 29,
Sept. 20, 1941, eff. Dec. 20, 1941 1940 (3 Tex. Sour TRCS art. 3' pealed),
TRCP 630. EXECUTION ON JUDGMENT FOR See also CPRC §§65.013, 66.014,
MONEY TRCP 635. STAY OF EXECUTION IN JUSTICE
When an execution is issued upon a judgment for a sum COURT
of money, or directing the payment simply of a sum of At any time within ten days after the rendition of any
money, it must specify in the body thereof the sum recovered judgment in a justice court, the justice may grant a stay of
or directed to be paid and the sum actually due when it is execution thereof for three months from the date of such
issued and the rate of interest upon the sum due. It must judgment, if the person against whom such judgment was
require the officer to satisfy the judgment and costs out of rendered shall, with one or more good and sufficient sure-
the property of the judgment debtor subject to execution by ties, to be approved by the justice, appear before him and
law, acknowledge themselves and each of them bound to the suc-
story of TRCP 690: Adopted eff. Sept. 1, 1942, by onder of Oct. 2 cessful party in such judgment for the full amount thereof,
1640 (8 TexB.J, 621 [1940)), Source: TRCS art. 3783(2) (repealed), with interest and costs, which acknowledgment shall be
entered in writing on the docket, and signed by the persons
TRCP 631. EXECUTION FOR SALE OF PARTIC- binding themselves as sureties; provided, no such stay of
ULAR PROPERTY execution shall be granted unless the party applying there-
‘An execution issued upon a judgment for the sale of par- for shall first file an affidavit with the justice that he has
ticular chattels or personal property or real estate, must not the money with which to pay such judgment, and that
particularly describe the prope erty, and shall direct the of- the enforcement of same by execution prior to three months
ficer to make the sale by previou giving the public notice would be a hardship upon him and would cause a sacrifice
of the time and place of sale required by law and these rules. of his property which would not likely be caused should said
History of TRCP 631: Adopted efl. Sept. 1, 1941,by order of Oct. 29, execution be stayed. Such acknowledgment shall be entered
1940
3 TexB4J, 621 [1940). Source: TRCS art. 3783(3) (repealed). by the justice on his docket and shail constitute a judgment
TRCP 632, EXECUTION FOR DELIVERY OF against the defendant and such sureties, upon which exe-
CERTAIN PROPERTY cution shall issue in case the same is not paid on or before
An execution issued upon a judgment for the delivery of the expiration of such day.
the possession of a chattel or personal property, or for the History of TRCP 635: Adopted eff. Sept. 1, 1941, by order of Oct 29,
1940 (3 TexB.J. 621 [1940]). Source: TRCS art. 2453 (repealed).
delivery of the possession of real property, shall particularly
describe the property, and designate the party to whom the
See also CPRC §§65.013, 65.014.
judgment awards the possession. The writ shal] require the TRCP 636, INDORSEMENTS BY OFFICER
officer to deliver the possession of the property to the party ‘The officer receiving the execution shall indorse thereon
entitled thereto. the exact hour and day when he received it. If he receives
t 29,
more than one on the same day against the same person he
History of TRCP 632: Adopted eff. Sept. 1, 1941, by order
1940 (3 TexB.J, 621 [1940)). Source: TRCS art. 37834) (repealed). shall number them as received.
History of TRCP 636: Adopted eff. Sept 1, 1941, by order of Oct. 29,
TRCP 633. EXECUTION FOR POSSESSION OR 1940 (3 TexB.J, 622 [1940)). Source: TRCS art. 3785, first sentence and
VALUE OF PERSONAL PROPERTY first part of second sentence (repealed in part by TROP),
Ifthe judgment be for the recovery of personal property TRCP 637. LEVY OF EXECUTION
or its value, the writ shall command the officer, in ease a When an execution is delivered to an officer he shall
delivery thereof cannot be had, to levy and collect the value proceed without delay to levy the same upon the property

O'Connor's Texas Rutes 1217

I
ee
Arrenpix I. Texas Ruves oF Civit Procepuit
TRCP 329b

*
it may have been postponed or continued by agreement of within the time prescribed by this rule for a motion for new
the parties with leave of the court. This subdivision is not trial and shall extend the trial court's plenary power
and
applicable to original or amended motions for new trial the time for perfecting an appeal in the same manner #34
which are governed by Rule 329b. motion for new trial. Each such motion shall be in writing
July 20, 1954 eff. Jan. 2, 1955. Amended by orders of March 19, 1967, and signed by the party or his attorney and shall specily
ff Sept 1, 1957; July 26, 1960, eff Jan. 1, 1961 the respects in which the judgment should be modified, ox
TRCP 329b. TIME FOR FILING MOTIONS rected, or reformed. The overruling of such a motion shell
‘The following rules shall be applicable to motions for new not preclude the filing of a motion for new trial, nor ghall
trial and motions to modify, correct, or reform judgments the overruling of a motion for new trial preclude the filing
(other than motions to correct the record under Rule 316) of a motion to modify, correct, or reform,
in all district and county courts: (h) Ifa judgment is modified, corrected or reformed
(a) Amotion
for new trial, if filed, shall be filed prior in any respect, the time for appeal shall run from the tine
to or within thirty days after the judgment or other order the modified, corrected, or reformed judgment is signed, bl
complained of is signed. if a correction is made pursuant to Rule 316 after expiry
tion of the period of plenary power provided by this rule,
{b) One or mare amended motions for new trial may complaint shall be heard on appeal that could have bea:
be filed without leave of court before any preceding motion presented in an appeal from the original judgment.
for new trial filed by the movant is overruled and within
July 20, 1954, eff. Jan. 1, 1955. Amended
by orders of July 26, 19%
thirty days after the judgment or other order complained of eff. Jan. 1, 1961; July 20, 1966, eff. Jan. 1, 1967; Oct. 3, 1972, eff. Fé
is signed. 1973; July 11, 1977, eff. Je 1, 1978; June 10, 1980, eff. Jan, 1, 1981; Dee
5, 1983, eff. April 1, ly 16, 1987, eff. Jan. 1, 1988,
{c)_ In the event an original or amended motion for
Comment—1988
new trial or a motion to modify, correct or reform a judg:
ment is not determined by written order signed within ‘Amended to conform with repeal of Rule 327,
seventy-five days after the judgment was signed, it shall be Source: New rule, See TRCP 3904}-(),
before dan. 1, 1955 changes
considered overruled by operation of law on expiration of
that period. See also O'Connor's Texas Rules, “Rules f

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TILLERY, DALE Track Judge’s New Case

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March 22, 2021

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November 05, 2020

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Motion-Secondary: TIMOTHY G. PLETTA vs. DWAYNE HATCHER, et al

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