Is there any rule for that or is it discretionary ?If the judge can backdate at her discretion, she will do so....Now this is where things become trickier. The judge backdates but then she needs to file the order, right ?So the order will be rendered at the date of the filing, in terms of appeal ?
new issuance date if the order is backdated : where will this date be mentioned ? On the order ? 2 dates then ?The order is deeming my correspondence to the judge motion for reconsideration and rehearing.The motion is set for hearing in June.What is the hearing all about : determining if the amended final jugment should be reconsidered or re-heard and issuing an order granting or denying a re-hearing ?
Ok, thank you for the valuable info.Now here is the tricky part : the judgment could not be amended the way it went, becuase the amendments are a substantial deviation of the final judgment and this requires a hearing before issuing that judgment, which has not been the case.There are almost identical case laws by the ton. Plaintiff's lawyer sent a letter to the judge with a proposed amended FJ stating it needed to be amended due to a clerical mistake. The Court moved itself sua sponte as per 1.540(a) and the judge signed the proposed amended FJ as isSo the amended final judgment is voidable without a hearing.Here is where I am slightly confused : the judge will hear me as to why the amended FJ cold not be amended without a hearing, OK. But after hearing my stuff politely, or pretending to, will she not say to me : I heard you, now you've got your hearing , you've been a pain in the neck, go back home, the amendments themselves are OK, so I issue now an order re-validating my amended final judgment and denying the 'deemed" (by her) motion to resonsider and rehear ?Is thta motion hearing a valid hearing to validate the amended final judgment ? I hope I am not too confused here...Or can I argue that a re-hearing is indispensable becuase there are other reasons than those in my correspondence, and it can't be exposed in 15 minutes of time ? the judge can then tell me that she's not interested with my other stuff that is not in my letter ?
Are you seeing a rule which states the court must hold a hearing when its revision of the judgment is not based on a motion from a party?There are rules that states that a judgment cannot be substantially altered and rendered without a hearing of both parties, like the 5th Amendment.The only possibility for a court to change a judgment is when it has a clerical mistake. 1.540 (a)Other amendments are ruled by 1.530I have been extensively through this with multiple lawyers and I have almost identical case laws of amended judgments invalidated by the DCA and the Supreme Courtif you have a different opinion, I' be glad to know, but then why would the judge deem my correspondence motion to reconsider or re-hear and not just ignore it ?
The goal I am trying to achieve here is to evaluate the situation and see what should be done.I filed a motion to re-hear and to vacate the amended final judgment based on 1.530 and 1.540 (b) 7 days before the judged deemed my letter motion to rehear pursuant to same rule 1.530I have noticed also in an article of the FL Bar that only one 1.530 motion can be filed.Why would a juge deem a letter "motion" when it was written before the judgment and was merely a protest against opponent's request to amend the final judgment based on an alleged clerical mistake that is actually a substantila deviation requiring a hearing ?
Do you disagree with the judgment's substance on some grounds that does not have to do with what was proved at trial?
Yes, I do. Plaintiff blatently lied but i did not have the witnesses and documentation to prove this due to the fact that I was notified to a wrong address and mail was returned to the clerk ( several times), so I was aware of the trial hearing 3 days before.Now I have a whole array of sworn affidavits and reports showing that Plaintiff lied (perjury).
I agree that the most important thing is to find the best way to come up with my affidavit and other evidences to fight the case.Your advice seems very smart, but my head is a bit scrambled.i would certainly understand things better if I was less focus on the fact that Plaintiff 's sister is not also a federal judge, who helped him in the past as per his own declarations, and who could manage to have a lawyer work on his case for NOTHING ( contingency fee) for 3 years, and put it back to track after a motion to dismiss with 20 days to file an amended complain and bring the numerous contracts related to his pleadings, and who came 4 months later without a single contracts and convinced the judge to deny our second motion to strike and dismiss... this is just the beginning of the list. Plaintiff blatently lied at the trial hearing - perjury - and I have now a whole set of documented sworn affidavits to prove it. I have filed a motion pursuant to 1.530 and 1.540 (b) to vacate, and alternatively to amend the amended final judgment, ONE WEEK before the order of the judge deeming my correspondence as motion. the judge ignores it...My question is : is your suggestion/option better than filing an re-amended motion on my motion case that is aiming at vacating the judgment, file with my affidavits there, move to vacate the deemed motion order too, and ask for a hearing on my re-amended motion which i expect to be denied, but then file an appeal on invalid amended final judgment ( you don;t buy that part, i know, but FYI in your Jory V State : With regard to the May 7 judgments and sentences, the state concedes that there is no dispute that the sentences are “internally inconsistent and a clerical error.”The judge is deliberately ignoring my motion. I sent her a letter 4 weeks ago, no order to deny came up yet.I got an order to deny my motion of New Trial, that's all.Possibly, get a writ of mandamus to force the judge, and after the orders are rendered, file an appeal on the judgment , the order granting motion to dismiss, the 2nd amended complaint, and the order (future) to deny my REAL motion and probably the order denying my motion to vacate the order deeming my correspondence as motion.This is a lot of work, but i am now retired and tactically, there is going to be a moment where plaintiff's lawyer will stop investing his time for free and as I know plaintiff well personally, this guy will drop the ball too when he needs to pay anyone. So this would be the time to offer a deal.
Thank you for that valuable info. To put 100% of the weight on the appeal side is the realistic approach, as I feel it.What you are telling me above that the Court has disconnected things that should be connected, right ?1.From what I'm understanding, you've filed a motion for new trial, which has been denied?2.So, in my mind your motion for rehearing must be on the court's ruling on your motion for new trial.1. Yes, and there was no hearing2. I assume that you are referring to the deemed motion with your motion for rehearing ? If yes, then the answer is : when I wrote my letter I was unaware that the judge had signed the proposed amended final judgment of my opponent. I was just protesting to his correspondence of which he had sent me a copy. See :Dear Judge ,,,,I am in receipt of Plaintiff's proposed Amended Judgment, which he asks you tosign, and a copy of the cover letter sent to you.I am hereby objecting to the entry of the proposed Amended Judgment on thegrounds that it does not conform to the judgment entered by your Honor and it isnot being submitted to correct a "scrivener's error", but rather, to add amountswhich were not included in the Judgment.By submitting the subject Amended Judgment for your Honor's signature, thePlaintiff is seeking to revise and completely change the Judgment entered by yourHonor by adding pre‐judgment interest which the Judgment did not contain.May I respectfully XXXXX XXXXX Honor's attention to the Judgment already enteredat the end of trial in this matter and which specifically states, "This Judgment shallbear interest at the statutory rate until fully satisfied"..A normal reading of this statement is that interest does not accrue on any amountuntil it is reduced to judgment. The judgment in the instant case was entered onFebruary 25, 2013. Therefore, no interest accrued until the date on whichjudgment was entered. Plaintiff's contention that pre‐judgment interest is due isunjustified and without basis and amending the judgment to include prejudgmentinterest is not a mere 'scrivener's error' , but rather, a drastic deviationfrom the judgment entered by the Court.Amending an order or judgment due to a scrivener's error is not intended to, norshould it change the meaning or intent of the judgment as entered by the court.Plaintiff's proposed Amended Final Judgment is not the result of correcting ascrivener's error and it substantially changes the judgment as entered by thecourtFor all of the foregoing reasons, I am objecting to the entry of the proposedAmended Judgment submitted by the Plaintiff.Respectfully submitted,The deemed motion March 26th:THIS MATTER is before the Court on the Court's receipt of Defendant, 's correspondence dated March 14, 2013, and received by the Court on March 18, 2013. TheCourt having reviewed said correspondence, the court file, and being otherwise advised, finds that saidcorrespondence is deemed to be Defendant, 's Pro Se Motion forReconsideration and Rehearing, and on consideration, it is herebyORDERED AND ADJUDGED that the Defendant contactthe undersigned's judicial assistant within 10 days of the date of this Order to set said Motion for hearingwith notice to all parties of record.My Motion to Vacate or alternatively to amend amended final judgment was served on March 20th and filed on March 22nd then amended and serviced again on March 28th and filed on April 2nd.
I checked the docket then and there was no order deeming motion filedI was not aware of anything. Same applies for my motion for a new trial served on March 25th and filed on March 26th ( date of the deemed order.... ) and denied on April 5th.That is the day I sent the following letter to the judge:Dear JudgeUpon receipt of your Order deeming my correspondence motion to rehear, I havecontacted your secretary immediately and took good note of the possible hearing etc...I am also respectfully XXXXX XXXXX my filed motion and following amendedmotion to vacate or alternatively to amend amended final judgment, served onMarch 20th and March 28th, 2013, prior to above Order.Yours very respectfully,QUESTION : What should a judge have done and ruled typically in this case?Obviously she is ignoring my motion to vacate/amend pursuant 1.530 and 1.540 (b) so far and there is a reason.Now, each time I service something to Plaintiff's counsel, it pretty much looks like there is a communication with the judge and an immediate reaction from the judge to protect him. Lately I had another example.From my long business experience, something that's corrupted always ends up falling into pieces down the road.
FOR ZDN LAW ONLY :MEMORANDUM OF LAW1. Clerical Error and judicial error or mistake of law."A trial court may correct a clerical error 'at any time on its own initiativepursuant to Florida Rule of Civil Procedure 1.540(a), but judicial errors, which includeerrors that affect the substance of a judgment, must be corrected within ten dayspursuant to Florida Rule of Civil Procedure 1.530[(g)], or by appellate review." Bolton v.Bolton, 787 So. 2d 237, 238-39 (Fla. 2d DCA 2001). As stated in Byers v. Callahan,848 So. 2d 1180, 1184 (Fla. 2d DCA 2003), "[t]he 'clerical mistakes' referred to by Rule1.540(a) are only 'errors or mistakes arising from accidental slip or omission, and noterrors or mistakes in the substance of what is decided by the judgment or order.' Townof Hialeah Gardens v. Hendry, 376 So. 2d 1162, 1164 (Fla. 1979) (quoting Keller v.Belcher, 256 So. 2d 561, 563 (Fla. 3d DCA 1971)."In N.Arnold Malone v. Kelly Y. PERCIVAL, 875 So.2d 1286 (Fla.App. 2 Dist.2004):”with respect to the addendum to the final judgment of dissolution, however, weconclude that reversal is required because the addendum–which purports to correctscrivener's errors–in fact constitutes an unauthorized amendment of the final judgment.”And: “The changes in the final judgment made by the trial court were, however, beyondthe scope of the clerical corrections to final judgments authorized by rule 1.540(a)“Also:” A change in the amount of child support required to be paid is substantive, notclerical. See State v. Thomas, 675 So. 2d 1024, 1025 (Fla. 1st DCA1996); Peters v.Peters, 479 So. 2d 840, 841 (Fla. 1st DCA 1985)”See Bird Lakes Dev. Corp. v. Meruelo, 582 So.2d 119 (Fla. 3rd DCA 1991) (as a result ofa mathematical error, the judgment did not reflect the decision actually made by thecourt.)CASE NO. 2011-CA-008243 MB AH Page 3 of 14In Ventriglia v. Vaughan, 623 So.2d 836 (Fla. 2nd DCA 1993), the court distinguishedclerical errors from judicial errors. The court explained that a judicial error is one thataffects the substance of the order or judgment.See also Department of Revenue ex rel. Thomas v. Thomas, 675 So.2d 1024 (Fla. 1stDCA 1996) and Clearwater Oaks Bank v. Plumtree, 477 So.2d 1023 (Fla. 2nd DCA1985).In contrast, a judicial error is one that is brought about by an intentional but incorrectjudicial act. The trial judge has no authority to make a substantive change in a finaljudgment in the guise of correcting a clerical error. If the mistake is one that has amaterial effect on the matter in controversy, then it cannot be regarded as a clericalmistake. For example, the courts have held that a mistake in the application of the law isnot a clerical error.2. Mistake of Law.A mistake in the application of the law is not a clerical error and, therefore, is not subjectto correction under rule 1.540(a) See Curbelo v. Ullman, 571 So.2d 443 (Fla. 1990);Allstate Ins. Co. v. Ramjit, 788 So.2d 402 (Fla. 3rd DCA 2001); Tucker v. Ohren, 739So.2d 684 (Fla. 4th DCA 1999); Harrison v. La Placida Community Ass’n, Inc., 665So.2d 1138 (Fla. 4th DCA 1996)3. Nature of Judgment.An error that results in a material change in the judgment is not a clerical error.See Department of Envtl. Regulation v. Apelgren, 611 So.2d 72 (Fla. 4th DCA 1992);See also Dolin v. Dolin, 654 So.2d 223 (Fla. 5th DCA 1995) (the trial judge attempted tochange the nature of the final order from indirect criminal contempt to civil contempt);Gulfstream Micro Sys., Inc. v. Kingbridge Boca Assocs., 564 So.2d 554(Fla. 4th DCA1990) (the proposed amendment to the judgment substantially changed its impact and effect); Freeman v. Sanders, 562 So.2d 834 (Fla. 1st DCA 1990) (the error affected thesubstantial terms of the dismissal).4. Seeking relief from judgment based on a mistake of law"A party seeking relief from judgment based on a mistake of law has two alternatives. Hemay file a motion pursuant to Florida Rule of Civil Procedure 1.530(g) within ten daysafter entry of the final judgment or file an appeal within thirty days." See Barrios v.Draper, 423 So. 2d 1002, 1003 (Fla. 3d DCA 1982).A final order can be vacated on a timely motion alleging mistake, inadvertence, surpriseor excusable neglect. See Everett v. Florida Transp. Servs., Inc., 744 So.2d 1038 (Fla. 4thDCA 1999)) (reversing the denial of a rule 1.540(b) motion and vacating an earlierjudgment holding that the action was barred by the statute of limitations, because thecomplaint contained an error as to the date of injury);
FOR ZDN LAW ONLYDEFENDANT 'S AMENDED MOTION TOV ACATE OR ALTERNATIVELY TO AMEND AMENDED FINAL JUDGMENTCOMES NOW Defendant xxx (hereinafter "Defendant"), within theperiod prescribed by the Rules of Court, and hereby files this motion to amend his previousmotion to amend Amended Final Judgment entered by this Court on March 13,2013, underauthority of Florida Rules of Civil Procedure 1.530(g), 1.540(b)(1), l.090(e) and 1.] 90.==========================ORDER SPECIALLY SETTING HEARINGTHE COURT will call up for oral argument on Defendants ' Motion for Reconsideration and Rehearing,pursuant to Order entered March 26, 2013, and Plaintiff's (ERRONEOUS FIRST NAME !!!) 's Motion forEntitlement to Attorneys Fees and Motion for Amounts of Fees, if time permits, on June4, 2013 at ----. The court has reserved one (1) hourfor the hearing.
if it was properly pled by the Plaintiff.It was not plead at all, and it adds $20,000 to the relief.But my letter is complaining about the lack of hearing about the amendments and has nothing to do with the amended final judgment that I was totally unaware of when I wrote it.Therefore my letter implies to vacate the amended final judgment, hear the parties again about the pre-judgment interest and a loan refund that was added too, and re-issue a new judgment. That is what I wanted, so my best bet is to get things straight here.Besides, why would the judge deem a letter motion to reconsider and re-hear when I had already filed such motion one week earlier ?Plaintiff's sister is a federal judge, and his lawyer has been working for 3 years on the case with no compensation, he's on contigency fees. He had conversations with me about this is in the past, in the sense that she had already "helped" him. Of course he lied to her and when he asked for her help he was in a very tough fiancial situation. He had asked me for a loan few months before. So his case was dismissed first with leave to amend within 20 days with the condition he would bring the various contracts he was alleging then. 4 months later he came with an amended complaint and no contracts, my lawyer filed a motion to strike or dismiss, it was denied by the judge????What happened during the 4 months...No serious lawyer would work on contingency fees on an unjust enrichment case.This what you see here is only one of the items on the long list of bizarre things of this case.
your file Motion for Rehearing is part of the recordWill do today, thank you.However, in Florida, it does not have to be pled,Thank you for that info, I am going to do some serious case law researches. Because it does not need to be pled, it could have been granted by the court at the trial hearing, but why would it mean that it could have been added without a hearing to an amended final order ? (At a hearing, I can object, here not.)But here is the botXXXXX XXXXXne of the logic of all this: if we agree that there was no need for a hearing - a contradictory process where both parties are heard before a decision is rendered -, why would the court "CREATE" one with a bizarre decision of deeming a letter a motion for a hearing ?The answer, for me, is that the court believes a hearing is necessary, but it does not like my motion because it's also a motion to vacate the orders, so this is what came out.But I seriously doubt that the starting date does needs to be pled in a complex unjust enrichment situation. Here it has been set arbitrarily. It's very controversial in FL. Also, to compound the pre and post-judgment interests is another issue of the amended FJ which is highly controversial and should not be decided without a hearing. Then, to add a loan refund to the judgment, for an incorrect amount, does not look good to, and I was disputing that during the hearing, because i am not the lender, ti is my Company that had been ignored by Plaintiff for the purpose of distorting the facts. Judge would not listen to me even after addmitting to evidence the checks drafted by Plaintiff to my Company ( a corporation that I am just a majority shareholder of )About the starting date of the interests, I have seen that some cases deem it to the date the claim was filed. Now Plaintiff's claim was dismissed and he had 20 days to file an amended complaint.It took him 4 months to convince his sister to help him and then his lawyer to continue to work for free.So he came 4 months later without attaching the required contracts and with a remarkable want of prosecution and a highly discretionary decision of the court, our second motion to strike/dismiss his amended complaint was denied. (???) . This seems highly appealable on the grounds of want of prosecution and abuse of discretion.Why should I pay the 4 months interests on a want of prosecution ?Do I not have the right to argue about these issues in a hearing prior to seeing a decision rendered against my interests ?And why would my motion be ignored and replaced by a deemed motion on a letter requesting merely the judge to ignore Plaintiff's letter.?I have stricly nothing to gain from the deemed motion thta is shading my REAL MotionAlthough I suspect the filing of your motion had perhaps not reached his desk.I checked the filings in the docket 2 days BEFORE the order ( the date and hours of filings are mentioned ). My motion was in there. The deemed motion then is highly critiziable and the court erred severely when the order says :TheCourt having reviewed said correspondence, the court file, My gut feeling is that I should request an order to add my motion to the hearing and act from there on.
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