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If the court entered an order of dismissal subject to an amendment being filed within 20 days, and IF the amendment was not timely filed, then the motion to dismiss should have been final at that point.
Also, you are correct that IF the amended complaint was filed without first having been granted leave of court, it should be void as well.
Honestly, I would have filed a motion to strike the amended complaint just as you did because the party was out of time under the previous court order. I really don't know why the judge allowed the filing out of time.
IF the judge will not strike the amended complaint, then you should have grounds to file a motion for contempt against the other party for failing to abide by the previous court order - - by (1) not filing within the 20 day period and (2) because the contracts aren't attached as the court previously ordered.
Your best option going forward is to try and rely on the previously entered court order as the judge and the other party are required to abide by it.
Obviously, I don't know all of the facts, but I don't understand why the judge allowed the amended complaint when it was filed months too late - - that's the glaring mistake. However, if the judge allows it, then you can rely on fact that the party is in contempt by failing to provide the contracts/
without first having been granted leave of court100% POSITIVE I have the amended complaint and the docket contents in front of my eyesPlease note that these are past errors that i am now reviewing and gathering for my appeal.Please note also :The judge denied our motion to strike the amended complaint or dismiss. That this sounds incredible, yes it is truly incredible but based on the first dismissal and 4 months of waiting, I was hospitalized and under treatment during the whole case, as my first lawyer had GUARANTEED that this could not happen.My second lawyer failed miserably to defend me while I was hospitalized and unavailable.
In that case, the only thing that I can see you could do is ask the court to hold him in contempt of court for violating the order by failing to provide the documents and by failing to file the amended document on time.
That would seem to be the next move on this.
Ok, but the final judgment has been issued this January 2013 after the trial hearing and before, we had filed a motion to strike/dismiss the amended complaint in 2012, and it was denied then.So can I ask the court now to hold him in contempt after all this?
yes, this is what I had been told so far, thank you.This is matter for appeal, but I still need to know about my previous:I need to review this under the aspect of failure to attach the contracts and as to what are the consequences of ignoring both the Rule 1.130 of Fl Rules of Civil Proc. and an order of the Court related.If by chance you can let me know of a law case that rules this sort of situation and what kind of grounds for appeal is in there. I know alrrady the order of the court to deny my motion to strike/dismiss is very surprising on an late amended complaint that has not requested leave of court etc...,
Thank you for the info. The party never produced the exhibits, and instead, used a contract - that was obsolete - for his allegations and despite the fact it was followed by 2 further and successive contracts and time was of the essence of that first expired contract.The final judgment is founding itself on that same first contract ( expired)As we talk, there is practically nothing straight in that court case.I agree, my counsel should have filed an interlocutory appeal on that order and stop the case right there, but when I asked him why he didn;t after the facts ( I was hospitalized and unavailable) he told me there was nothing to do about it and we had to wait the final judgment to file an appeal...
Well I was told and checked that the right of appeal is not passed because there was no final judgment then, which tolls all appeals of non final orders., and the issue was raised, again, in my 2nd motion to dismiss/strike ? Remember there was a complaint, then a motion to dismiss with leave to amend, then an amended complain, then a motion to dismiss/strike the amended complain and then the order denying my 2nd motionPlaintiff ignored this Court's order by failing to file an amended complaint with allcontract attachments within twenty (20) days. In fact, Plaintiff waited four (4) months to file hisamended complaint. Consequently, Plaintiff s amended complaint should be stricken.Moreover, Paragraph 25 of the initialcomplaint stated that the First Option expired on June 30, 2009, and Paragraphs 26 and 29 allegedthe existence of yet a second and a third written option contract. Plaintiff initially failed to attacheither of these alleged agreements, and was required to do so in its amended complaint pursuant tothe agreed court order.
The appeals on non-final order are tolled until a final order is issued, as per FL rules of Appellate Proc., I have checked thta and it confirma what the lawyers told me. If you have another opinion or text, let me know.The interlocutory appeal needs a situation of emergency to be valid.i am 100% sure of this because I have read many articles too, especially the principle in FL is that the lower court loses jurisdiction when an appeal is filed and to avoid the courts to interfere as much as possible, if not at all. tosimplify the administration of justice
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