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Roger
Roger, Attorney
Category: Legal
Satisfied Customers: 27223
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Hi Kirk, How are you doing today ? i have a question for you

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Hi Kirk,
How are you doing today ? i have a question for you specifically today, as you have shown great ability to find similar law cases.

I'd like to know what is your opinion and case laws, based on Rule 1.130, when Plaintiff comes up with a complaint referring to a contractual environment and several contracts. Eventually he attaches only 1 of the contracts. We notice this, file a motion to dismiss (for other resons too) and the court grants the motion with leave to amend within 20 days and attach the contracts. Plaintiff comes 4 months later and court denies our motion to strike or dismiss his amended complaint to which the contracts are not attached, and orders to file answers within 20 days instead.

I have already reviewed why that second order could be invalid when Plaintiff had failed to file any motion to enlarge time to file his amended complaint etc...

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.

In other words, is there an error of the Court when overruling the first order to dismiss the claim by denying our motion to strike/dissmiss in which we were contending the absence of the contracts ( and other failures of plaintiff) ?
Submitted: 1 year ago.
Category: Legal
Expert:  Roger replied 1 year ago.

Hi - thanks for looking me up! I'll do my best to get you the information you need!

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/

Customer: replied 1 year ago.

without first having been granted leave of court

100% POSITIVE I have the amended complaint and the docket contents in front of my eyes


Please 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.

Expert:  Roger replied 1 year ago.

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.

Customer: replied 1 year ago.

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?

Expert:  Roger replied 1 year ago.
OK.

Well, you may be stuck due to timing. In order to do this, you would likely have had to file a motion for contempt OR an appeal of the decision denying your motion to strike within 30 days of the court's order.

Thus, if that time has already passed and a final judgment has already been entered, it's probably too late to file a contempt motion.
Customer: replied 1 year ago.

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...,

Expert:  Roger replied 1 year ago.
The rule says that the documents SHALL be attached, which is an absolute requirement. However, I'm not sure what the penalty for failing to do so is. I'll try to look something up on that.

However, it the party eventually filed a complaint with the exhibits, that likely cured the defect.
Customer: replied 1 year ago.

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...

Expert:  Roger replied 1 year ago.
I do remember that from our earlier talks. Sorry I forgot about that.

Let me see if I can find a case that says what the penalty for failing to do this is. However, I'm afraid that because the issue wasn't raised at the time that your right to appeal has passed.
Customer: replied 1 year ago.

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 motion

Plaintiff ignored this Court's order by failing to file an amended complaint with all
contract attachments within twenty (20) days. In fact, Plaintiff waited four (4) months to file his
amended complaint. Consequently, Plaintiff s amended complaint should be stricken.

Moreover, Paragraph 25 of the initial
complaint stated that the First Option expired on June 30, 2009, and Paragraphs 26 and 29 alleged
the existence of yet a second and a third written option contract. Plaintiff initially failed to attach
either of these alleged agreements, and was required to do so in its amended complaint pursuant to
the agreed court order.

Expert:  Roger replied 1 year ago.
The case of ROBERT E. HUGHES, SR., Appellant, v. HOME SAVINGS OF AMERICA, F.S.B., Appellee.
CASE No. 95-02725, COURT OF APPEAL OF FLORIDA, SECOND DISTRICT, 675 So. 2d 649 says:

The sole basis of the motion to dismiss was that the plaintiff had failed to attach copies of exhibits referenced in the amended complaint in violation of rule 1.130, Florida Rules of Civil Procedure. The only exhibits that were referenced in the amended complaint were the note and mortgage, and copies were attached to the complaint in the file. The motion to dismiss, therefore, had no merit.

The fact that such exhibits were attached to the original complaint does not [**4] breathe life into the amended complaint which was void of exhibits. The Eigen court stated the following:

"We also reject the bank's contention that the amended complaint was sufficient because copies of the instruments had been attached to the original complaint." 492 So. 2d at 827.

Thus, it is definitely true that this is a basis to have a case dismissed according to this case. However, I just do know about whether or not the issue is waived if you proceed to trial without filing an interlocutory appeal - - I don't see any case law about that.
Expert:  Roger replied 1 year ago.
Here's the case overview:

Plaintiff bank filed suit to foreclose on defendant mortgagor's property. Plaintiff amended its complaint to add a party with interest in the property. The amended complaint did not have exhibits attached, and defendant never answered the amended complaint. Though defendant filed a motion to dismiss plaintiff's amended complaint because it failed to include exhibits, in contravention of Fla. R. Civ. P. 1.130, the trial court entered summary judgment for plaintiff. Defendant appealed. The court found that defendant's motion to dismiss was meritorious because plaintiff's attachment of exhibits to the initial complaint did not render the amended complaint sufficient. Further, defendant's counsel was not notified of the hearing on plaintiff's motion for summary judgment or on defendant's motion
to dismiss. Finally, summary judgment could not have been granted before defendant answered the amended complaint because defendant's affirmative defense of payment raised a genuine issue of fact. The court therefore reversed the order granting summary judgment to plaintiff.

OUTCOME: The order granting summary judgment to plaintiff bank was reversed because defendant mortgagor's motion to dismiss the amended complaint for failure to have exhibits attached was meritorious, defendant's affirmative defense of payment created a genuine issue of material fact, and defendant's counsel was not notified of the hearing on plaintiff's motion for summary judgment or defendant's motion to dismiss.

Customer: replied 1 year ago.

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

 

Expert:  Roger replied 1 year ago.
The above case doesn't involve an interlocutory appeal - - it was an appeal after summary judgment was granted. Summary judgment is a final judgment of the merits of the case.

This would be the same as going to trial and getting a verdict - - it's just summarily done because the court finds no merit to the claims of the non-moving party.

The main thing this case says is that if exhibits do not accompany the complaint, it is grounds for dismissal.
Roger, Attorney
Category: Legal
Satisfied Customers: 27223
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Roger
Roger
Litigation Attorney
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BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters