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Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 100053
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Had a ex parte petition filed by another party in florida

Customer Question

had a ex parte petition for injunction filed by another party in florida which was denied, hearing was set prior to hearing filed a demure pleading because petition was so vague one couldn't file a answer based on such vagueness. day of hearing judge didn't hold hearing in timely manner, however 3 hours later I developed a medical emergency that required me to go to the hospital, the court was informed of this emergency. While in the er she summarily proceeded as if I failed to respond and issued and final order of dv injunction and falsified the court minutes. What would be proper to vacate such order as I was completely denied due process?
JA: Thanks. Can you give me any more details about your issue?
Customer: my daughter was molested as a minor by people I had given trust to, she became unruly over time to the point that she battered me. dcf and law enforcement investigated said not enough evidence to prosecute perpetrators and found her to have been an unruly child as far as I was concerned. I forbided her any contact with perp but it had continued covertly. I grounded her to her room one day and she struck me with hard kickes and punches which forced me to stop her by grabbing her her d causing her to sit on her legs so her violence had to come to n end, I then notified leo. upon independent investigations it was found the my force was justified and her allegation of child abuse was unfounded. 6 months later she filed for injuction. It should be noted that during the six months I have been in and out of the hospital because 4 weeks later from her battery on me I suffered I series of strokes from deep tissue contusions by blunt force trauma. the er emergency was I was in extreme pain due to kidney stone which I passed late afternoon after release from emergency room. the demur pleading I filed was due to her allegation being so vague even a bar atty coulded file a meaningful responsive pleading and I was moving to dismiss petition on that and the courts finding that ex-parte petition failed to meet the requirements which would allow a court to grant such relief
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Submitted: 10 months ago.
Category: Family Law
Expert:  Ely replied 10 months ago.

Hello and welcome to JustAnswer. Please note: This is general information only for educational purposes only, and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. If this is a final decree/judgment, then one can (a) file for a motion for reconsideration/rehearing, or (b) file for a formal appeal.

For motion for reconsideration/rehearing, see HERE and HERE.

If this was for an order while the matter is still pending, then one would file for a motion for reconsideration, but typically the Court does not reconsider temporary injunctions while the DV restraining matter is still pending.

Good luck.

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Customer: replied 10 months ago.
This Judge entered a final dv injunction without a legal factual bases and falsified the record as if I left the court without just cause or notice of medical emergency and treated the matter as a summary default. She never addressed my demur pleading, never specified the factual grounds that is required, never provided me with an opportunity to be heard or present exculpatory evidence and testimony; after knowledge of medical emergency which the Court was fully made aware of. Now correct me if I'm wrong but when a court "approaches a "red Light" all traffic must stop except for emergency vehicles." In other words the court can't proceed in a matter when a party has a known bona-fide medical emergency that immediately prevents his/ her opportunity to be heard as doing such is highly prejudicial and a complete denial of due process and the court loses all jurisdiction when it acts outside the privy of the law; further it is an abuse of discretion and misconduct of office to do so especially falsifying the court minutes. [yes she really did falsify the court minutes with knowledge. I have it in writing as proof and I have witnesses which know for certain what she wrote into the record was intentionally misleading.] So how do I best correct the record and vacate this order which should be void abnitio based on the fraud and denial of due process?
Expert:  Ely replied 10 months ago.
Hello,
Thank you for your follow up.
DUE PROCESS is generally reserved for criminal matters. Here, you are dealing with a decision you disagree with. So the way to appeal/motion to have it overturned - please see my first answer for this.
It may have been fraud as well, but one needs to follow the civil remedies available. Someone in your situation is angry at the Judge and that is understandable, however consider that the motion/appellate process is set up to appeal just this. One may wish to consider filing an appeal, so as to have another (group?) Judge panel consider the matter.
Please note: If I tell you simply what you wish to hear, this would be unfair to you. I want to be honest with you and sometimes this means providing information that is not optimal. Negative ratings are reserved for experts who are rude or for erroneous information. Please rate me on the quality of my information; do not punish me for my honesty.
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Customer: replied 10 months ago.
I'm aware of rule FLORIDA CIVIL RULES OF PROCDURES RULE1.530 and 1.540 but not familiar with time filing factors, but this judges conduct is beyond egregious in this matter. iT DEFIES any ability of the tenants of fair and impartiality.
Expert:  Ely replied 10 months ago.

I understand. Are you asking how to file a complaint against the Judge, then?

Customer: replied 10 months ago.
I'm not angry I'm offended because she should not have summarily proceeded after being informed that I needed immediate medical attention even the bailiffs new I needed medical attention and is the only reason for leaving the court house. I either went by private transport or disrupt the court by having paramedics take me. The bailiff preferred I go without him having to summons an ambulance. There were matters before her which legally did not allow her to proceed. My only concern is reinstatement of my legal rights as there existed no legal basis for an injunction to be issued against me. This was stated in the ex parte ruling and supported by law enforcement and Department of Children Services after thorough investigation. I'm looking for time factor for seeking redress. A complaint to the judicial review board will deal with the judges misconduct of office. I need to know the time factor and proper type pleading in this matter to quash the final order.
Expert:  Ely replied 10 months ago.
Okay.
If final decree/judgment (as it sounds that it is), then 10 days for motion for reconsideration/rehearing. Or, notice of appeal should be filed in 30 days after final decree/judgment.
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Customer: replied 10 months ago.
it is a "final judgment of injunction for protection against Domestic Violence without minor children - After notice" . My daughter filed the ex-parte on her 18th birthday and no issues existed to warrant such conduct. {she was being manipulated by the perpetrator that sexually molested her, and we have evidence of this but can't prove the molestation itself because it was discovered after the fact when physical evidence was already destroyed, This is why the perp., isn't being prosecuted at present time}. Even you would not have been able to file a responsive pleading to her allegations as they were so vague that one could only demur and move to quash for being void for vagueness. As stated the court initially found "no basis to issue a temporary injunction and further found her not to be a victim of domestic violence or as having a reasonable cause to believe she was in imminent danger of becoming a victim of Domestic Violence or any other grounds for which an injunction could be granted and there wasn't sufficient factual basis u[on which the court could enter a Temporary injunction for protection." those were the courts own words.
Expert:  Ely replied 10 months ago.

Right. Then 10 days for motion for reconsideration/rehearing. Or, notice of appeal should be filed in 30 days after final decree/judgment.

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Customer: replied 10 months ago.
Why this judge falsified the record and proceeded as if a default occurred is beyond any reasonable belief. Only the medical emergency prevented me from being able to participate at the alleged hearing as I had witnesses present ready to testify based on their own knowledge. This is why this matter should be void abnitio as it truly is unfounded even by dcf and Law enforcements own investigations. I was the one battered not my daughter and the physical and medical evidence shows this.
Expert:  Ely replied 10 months ago.

It would be void from the beginning (not quite the proper use of that Latin phrase but I understand the intended meaning) but only if that fraud is proven, which may be via appeal.

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Customer: replied 10 months ago.
I'm not seeking anything against my daughter. I am disappointment she would engage in deceit and resorted to violence because she didn't like being grounded to her room for being disrespectful and failing to follow house rules, but that isn't grounds to strike a person with intent to cause great bodily harm by using karate on a parent. I never even told her the extent of the injuries she caused me but DCF was fully aware. This is overall a sad situation and I just want my legal rights restored.
Expert:  Ely replied 10 months ago.
Thank you for your reply. I am not sure what you are asking here as a follow up. We have discussed ways to appeal the matter both via the trial court and the appellate courts, and the time windows to do this in.
What else can I answer for you?
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Customer: replied 10 months ago.
In response to your comment It isn't my word against the Judge but the judges' own acts and deeds that will convict her and third party witnesses. I'm just shocked a person with knowledge of the law, the ability to stop and prevent injuries failed to do so and in fact gave aid to the fraud upon the court with such knowledge. yes fraud is a matter of proof but when it is the parties own acts and deeds that prove the fraud by itself, that is more then prima facia evidence. her words against her own acts. She might as well come clean become she basically will be litigating against herself.
Expert:  Ely replied 10 months ago.

Judges are human too, and are prone to mistakes, bias, and negligent behavior. While the system generally weeds out bad Judges, this may not always be the case, I am afraid.

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Customer: replied 10 months ago.
Ok off the vacate under the rules. It is sad that a judge would engage in unethical practice but she isn't immune when her conduct is criminal in nature as Judge Murphy found out for fighting with a defense attorney.
Expert:  Ely replied 10 months ago.

Good luck in your matter. Agreed, the system is far from perfect at times.

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Customer: replied 10 months ago.
It is always acceptable to receive information that is not necessarily what one wants to hear but never acceptable to intentionally mislead or falsify a record. Clarity on matters is always helpful. I have read way too many case law decisions over the years and I know for certain it doesn't support the judges conduct in this matter. I'm aware of over 3600 cases that were vacated when judges acted in the manner that this judge engaged in. No I'm not a bar member but have done research for lawyers over the years and I know some issues can be confusing even for seasoned litigators, so clarity helps.
Expert:  Ely replied 10 months ago.
Okay. Again, best of luck.
Expert:  Ely replied 10 months ago.
Hello again. I am checking in because you have not rated positively. To me this means you may have another question. Please let me know – I am simply touching base. Thanks!