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Chris T., JD
Chris T., JD, Attorney
Category: Legal
Satisfied Customers: 3396
Experience:  Experienced in both state and federal court.
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Appeal technical issue. It is my understanding that the clerk

Resolved Question:

Appeal technical issue. It is my understanding that the clerk will close the docket at the time I file a notice of appeal. I have some timing issues though and what would happen if I file my Notice of Appeal tomorrow and an amended motion for a New Trial on Tuesday ? Will that amended motion be part of the docket sent to the court of appellate ? I am waiting for some notarized affidavits in particular and the motion is not ready yet.
Submitted: 11 months ago.
Category: Legal
Expert:  Chris T., JD replied 11 months ago.

TexLawyer : Good morning. I'll be assisting you with your question.
TexLawyer : The issue is less about whether the clerk will accept the late filing, and more about whether or not the motion will be ruled upon.
TexLawyer : Here's the problem with filing a motion after you've filed your notiece of appeal:
TexLawyer : In every state I'm aware of, the trial court loses jurisdiction over the case as soon as the notice of appeal is filed. This means that anything filed after the notice is filed will not be ruled upon by the trial court. If the trial court does not make a ruling on something, you take that issue up on appeal.
TexLawyer : So, if you file the motion for new trial after the notice of appeal, the trial court can't rule on it. If the trial court can't rule on it, it can't be the basis for a point of error on appeal.
TexLawyer : I can see that you are connected to this chat, but may be having difficulty posting a reply (or else I can't see it). If that is the case, I can switch to a Q&A format, which usually corrects the problem. I'll wait a few minutes before doing so just to make sure.
Customer:

>>>the late filing

it would not be a late filing, let me clarify.

My motion for a new trial has been filed in a timely fashion in March. I want to file a motion to leave to amend that motion as I have some sworn affidavits.

My intention is to file both together ( Notice of Appeal and motion to amend ).

I need to file a notice of appeal on the amended final judgement tomorrow as a precaution to the complexity of the case. Judge has done a whole series of mistakes, and there is a re-hearing on a "deemed" motion to amend the amended final judgment scheduled for beginning of June.

My view is that I will file a notice of appeal on the amended final judgment because the "deemed" motion will be denied regardless a of any consideration of law etc... That is the assumption we need to work with. Not sure that motion and the order are tolling the time to appeal ? I am checking this right now, but if you have some opinion, I'd be glad to hear.

So if it;s not the case in June I will find myself with a situation reverting to the amended final judgment with an order of the court and then I will lose my rights to appeal.

I am also intending file a notice of appeal on a previous order denying my motion to strike or dismiss.

I will have a question about that next.

i understand this is a bit complex. I am not interested with whatever this Judge will decide or not. I am also looking at filing a lot of documentation and pleadings that was not filed on purpose by my opponent to begin with, not by my previous lawyer who was a total failure.


Of course, in the light of what you say, the crucial question would then to evaluate if the deemed motion to rehear is tolling the time to appeal.



Expert:  Chris T., JD replied 11 months ago.
I've switched to a Q&A format, which usually corrects any technical issues that may exist with the chat function.
Expert:  Chris T., JD replied 11 months ago.
What state are you in?
Customer: replied 11 months ago.

FL

Customer: replied 11 months ago.

As per FL Bar Journal :

Florida Rule of Appellate
Procedure
Rule 9.020(h) lists the following “authorized” motions as suspending rendition:

- Motion for Rehearing

it adds the following :

It is important to remember that even if the motion is authorized, it must also be timely.

Expert:  Chris T., JD replied 11 months ago.
You should take a look at Fla. R. App. P. 9.020(h). http://www.4dca.org/applellate%20rules2007.pdf

Any proper motion should toll the time to file, whether deemed or otherwise. http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/0/abeec8b08255981085256adb005d6193?OpenDocument&Highlight=0,appellate*
Expert:  Chris T., JD replied 11 months ago.
Based on what you've said, I don't see any reason your amended motion for new trial would be considered untimely.
Customer: replied 11 months ago.

Thank you for the info.

The situation is very tricky though :

ORDER DEEMING DEFENDANT'S
CORRESPONDENCE DATED MARCH 14,2013 AS
. PRO SE MOTION FOR RECONSIDERATION AND REHEARING


Dated March 26th by the Judge

Amended final judgement is dated March 13th

Correspondence is dated March 14th and received March 15th by the Court Administration ( I put it in the judge's box after it was stamped)

Judge declares that she received it on March 18th.... ???

FL RULES OF CIVILPROC 1530 (d) On Initiative of Court. Not later than 10 days
after entry of judgment or within the time of ruling on
a timely motion for a rehearing or a new trial made by
a party, the court of its own initiative may order a
rehearing or a new trial for any reason for which it
might have granted a rehearing or a new trial on
motion of a party.

WHAT IS within the time of ruling on
a timely motion for a rehearing ?

WHAT IF the order is invalid ?


I am rather looking at filing my Notices of Appeal and together filing a motion to relinquish jurisdiction in order to allow the trial court to rule on my motions for new trial and rehearing ?

Expert:  Chris T., JD replied 11 months ago.
OK. 1530(d) would apply to a situation where the judge orders a new trial on his own motion, otherwise known as sua sponte. That doesn't seem to be the case here, assuming I'm understanding your question correctly. Since a motion for new trial must be filed within 10 days of the final judgment being entered, the judge would have that same 10 days. So, if the judge signed the amended final judgment on March 13th, you (or the judge, if acting under 1530(d) authority) would have 10 days to file a motion for new trial. Once that motion for new trial is filed, it tolls the time to file your notice of appeal under 9.020(h).
Customer: replied 11 months ago.

The new trial is a different motion. I need to clarify here.

The 1530(d) is not applying to my case, I am sorry i did not mention that this is not my point. My question is the following : I posted a correspondance to the judge in his box at the Court House on March 15 th ( stamped by the Court Admin )

Judge says she received it on March 18th even though the stamp of the Court administration says March 15th.

Then Judge issues an order deeming that letter motion to rehear ( nothing to do with my motion for a New trial, I insist ) on March 26th.

My question is the following :

Is that order within the time of ruling on
a timely motion for a rehearing ? If not, is it not invalid ?

What is that time ? 10 days ? Does the Court have 10 days after the Amended final judgement to issue an order to deem a correspondence a motion to rehear ?
Remember, without the motion and the order, my time to appeal was over about April 12th

Expert:  Chris T., JD replied 11 months ago.
Yes, it would be timely since it was within 10 days of the judge's order. It should be calculated from when it is file stamped, not when the judge "deemed" it.
Customer: replied 11 months ago.

Ok, thank you for the info, appreciated.

Actually I had another question related to another motion.

I haven't seen (yet) in the FL RULES OF CIVIL PROCEDURES any article defining when a timely filed post-judgment motion is dismissed by operation of law.


When I Google all what I find is the Alabama rules and case law, where it's 90 days without a Court order.

It's probably in the FL Statutes ? Any idea ?

Expert:  Chris T., JD replied 11 months ago.
I've researched this issue, and I can't find any law giving a specific time frame. Keep in mind that not every state allows motions to be overruled by operation of law. You could repost that question specifically, but I was unable to find anything in statute or case law.
Customer: replied 11 months ago.

not every state allows motions to be overruled by operation of law.

Would this not be a denial by operation of law, when the judge ignores my motion ?

Thank you for the info anyway. Would I rather search the FL Statutes for such kind of text and if there is no local rule to be found should the Federal Rules of C.Proc. be applicable then ?

The deadline is important if there are some appeals going on

Expert:  Chris T., JD replied 11 months ago.
No, you would not then rely on the federal rules. If the judge won't rule, you will have to file a writ of mandamus, which is a request to an appellate court to order the trial court to do something - in your case, rule on the motion.
Chris T., JD, Attorney
Category: Legal
Satisfied Customers: 3396
Experience: Experienced in both state and federal court.
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