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Ok, but the affidavits are showing that the Plaintiff lied blatently - perjury - at the hearing, and there was no way I could have called these witnesses at the trial hearing, I had only 3 days notice due to the Court sending the order setting trial hearing to a wrong address.
I already filed one but in the meantime I collected further evidence.The problem is that the judge is ignoring thta motion because it is petitioning a re-hearing and alternatively to vacate under both 1.530 and 1.540, and she has deemed a letter that was not meant to that purpose "motion to rehear and re-consider the amended final judgment"Basically, I am very confused as to what she tries to achieve with all her "mistakes" in favor of Plaintiff whose sister is a federal judge.This is just the tip of the iceberg, the list is almost endless
you will be limited to arguing what is in the record,Yes, thank you for that essential info. I have checked this, but I have gathered contradictory informations as to what is exaclty in there while I am also analyzing rule 9.200 of FL Rules of Appellate Proc. and other rules related.However, the infos i have gotten from multiple lawyers - including the 2 previous lawyers that I had on the case - and what I have also read, is that I can appeal on the non-final orders too. In fact I have reviewed also many case laws related to appeals of non-final orders.Now the question is : there will be a hearing on a deemed motion to re-hear or reconsider the amended final judgment, if I understand well.My question is : is that motion hearing ALSO as a re-hearing to argue about the amendments or just to issue an order denying (or granting...) a re-hearing ? The reconsideration part , does this not mean : the court will hear AT THE MOTION HEARING your contentions as expressed in your letter and decide if they are valid or not and then what ???Assuming valid : a new final order is issued ???Assuming invalid : the amended final judgment is confirmed after a re-hearing ???
you have a filed motion that is not set for hearing, you would need to contact the court and ask that it be set. I did, but the judge's assistant was not clear on that after she had asked the judge and told me that they would answer later.I then sent a letter to the judge to confirm the phone conversation:Upon 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 : if the motion is invalidThe deemed motion is invalid, totally.The order is invalid too because it does not address my motions prior to above Order following my correspondence.My correspondence cannot be a deemed motion substituting my prior motion.It can;t be a motion to re-hear the amended final judgment issues because any lawful act requesting any action needs an intent of the author otherwise it is an error, nobody can be deemed requesting anything he was not aware of.I was not aware of the ISSUED final judgment when I answered to the judge, because it was en route in the mail, not notified yet to me.So if it is deemed motion,it can only be motion to re-hear the Final Judgement - not the amended judgment that I jad no knowledge of - and argue about the amendments and then validate or invalidate them.So this letter, when deemed motion cannot result in validating or invalidating the amended final judgment, it's not intended to that purpose, and the order is void if it's for a rehearing on the final judgment.My prior motion is intended to that purpose:My prior motion served on March 20th (one week earlier) and filed on March 22nd ( was an extensive contention of theDEFENDANT'S AMENDED MOTION TOV ACATE OR ALTERNATIVELY TO AMEND AMENDED FINAL JUDGMENTCOMES NOW Defendant (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 Cowt on March 13,2013, underauthority of Florida Rules of Civil Procedure 1.530(g), 1.540(b)(1), l.090(e) and 1.] 90.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 andCASE NO. 2011-CA-008243 MB AH Page 4 of 14effect); 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);ARGUMENT1. On January 8th, 2013, at trial hearing, this Court ordered Plaintiff and Defendant tosubmit their proposed final judgment before January 18th, 2013, together with an “ordercover sheet circuit civil division” and notified Defendants by mail.2. On Friday January 18th, 2013, at 12.06 PM Eastern Time, Plaintiff’s Counsel belatedlyemailed his copy of proposed Final Judgment to Defendant.3. On February 25, 2013, this Court entered a final judgment against Defendants.4. The text of the Amended Final Judgment is verbatim the text submitted by Plaintiff’scounsel.5. Notwithstanding the above, on March 6, 2013, Plaintiff’s counsel wrote a letter to Hon.Judge enclosing a new proposed amended final judgment.(See Exhibit 1, correspondence, dated March 6th, 2013, of Plaintiff’s Counsel to Hon.Judge attaching copy of Final Judgment issued February 25th 2013,and Plaintiff’s proposed amended final judgment.)6. By this correspondence, Plaintiff was now seeking pre-judgment interests to be addedand to compound with the already granted post-judgment interests.7. Using small prints and by means of a footnote, Plaintiff’s counsel expedited thecalculations of interests in a confusing manner.8. Plaintiff’s counsel was using an unknown and/or discretionary date to start hiscalculations from, together with a complicated set of discretionary interest rates.9. On March 14, 2013, Defendant yyy wrote a letter to Hon.Judge , objecting to the entry of the proposed amended judgment onthe grounds that it does not conform to the judgment entered by this Court and that it isnot being submitted to correct a “scrivener's error,” but rather, to add substantial amountsnot included in her final judgment, and, as such, that it was a drastic deviation from theoriginal judgment entered by this Court.(See Defendants’ letter to the Hon. Judge attached as Exhibit 2, inreply to Plaintiff’s letter dated March 6th, 2013, here attached as Exhibit 1)10. Plaintiff, instead, was obligated to petition this Court to Amend said FinalJudgment as per Florida Rules of Civil Procedure.11. Plaintiff is thereby severely attempting to deprive Defendant of his property.12. Furthermore, in his said letter, Plaintiff’s Counsel confusingly alleges “scrivener’s errors”as the reason to amended final judgment, when - de facto - he is the scrivener of theproposed final judgment.13. In addition, the Amended Final Judgment was issued without Defendants having anylegal means to be part of any process of law, to plead their objections.14. Under the Fifth Amendment to the U.S. Constitution, “No person shall … be deprived oflife, liberty, or property, without due process of law.”
ETC... ETC...AS I CAN SEE IT IT IS AN ABUSE OF DISCRETIONI have NOTHING to gain with the deemed motion, because right now I have an amended final judgment that is invalid as per the numerous cases indicated here above, and EASY TO APPEAL, because NO PRIOR HEARING .So if the court wants to move itself to re-hear, this is my best bet BECAUSE I think that it can oky rehear the FINAL JUDGMENT and then will have to grant my REAL MOTION first, otherwise the contradictions, errors and incoherences will continue on and on.This is my point of view so far, what do you think ?
Thank you for the advice.
Can you clarify : makes your initial motion a moot issue, and concentrate on your second motion that you filed ?
Initial motion is my motion to vacate or amend the amended final judgment , presently ignored by the judgeSecond motion is my motion for a New TrialThird motion is not mine really, it's what the judge deemed to be mine but I am not agreeing and am rather looking at vacating the order because the amended final judgment is easy to appeal when it was issued without a hearing.
OK, sound a good advice.Ask for my "REAL" motion and my "DEEMED" motion to be heard together, correct ?
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