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Lucy, Esq.
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Hi Lucy, while I am reviewing the 1.540 (b), I have another

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Hi Lucy, while I am reviewing the 1.540 (b), I have another difficult question. I don't know if you remember, but when Plaintiff sent his letter to the court alleging a scrivener's error and changing in fact the substance of the judgment with a proposed amended judgment, i posted a letter to object after asking multiple advices. The letter says a a conclusion : For all of the foregoing reasons , I am objecting to the entry of the proposed Amended Judgment submitted by the Plaintiff. Immediately after I had posted the letter to the judge's box, I received by mail the amended final judgment that was the exact same document sent by plaintiff now signed by the court. So I immediately filed a motion to vacate and next a motion for a new trial. To my greatest surprise, I was next notified by mail that the judge was deeming my correspondence motion to rehear and reconsideration. Furthermore, after the hearing was set on the calendar, the judge issued a new order setting the hearing of the deemed motion and issued an order denying my motion for a New Trial 1.530 Now, when I read the article of the FL Bar that I am going to attach here, i am very confused as to the regularity of all this based on various consideration that I will explain next. To begin with, the FL Bar article says that there can be only one motion 1.530. So the judge denied my motion 1.530, ignored my motion based on 1.540 (b) to vacate the amended final judgment, and deemed my letter motion for reconsideration and rehear, when it was just an objection to the entry of the amended final judgment based on an alleged scrivener's error, that was not a scrivener's error when it results in changing the substance. So, to begin with, we have 2 motions 1.530, a faulty situation apparently, and that is my first question. Then, I am very confused as to what could be decided at the hearing of the deemed motion. Typically, will the court, AT THE NEXT HEARING of the deemed motion, grant or deny a new trial re-hearing If the reconsideration is granted, what will be the remedy or the relief and how is it going to be materialized ? New final judgment ? Addendum to amended final judgment modifying some terms ? The discussion about my motion 1.540(b) needs to be in another question, to simplify here

Submitted: 1 year ago.
Category: Legal
Expert:  Lucy, Esq. replied 1 year ago.
Hi,

Essentially, the Plaintiff's letter attaching the Proposed Amended Judgment was treated as a Motion to Amend, and your letter was a Motion in Opposition to that motion. However, the judge granted the motion before your letter was received (the fact that you got it right after likely means that the judge signed it at least a couple of hours before - most stuff isn't docketed immediately).

As far as what's going to be heard, you're going to explain why you don't believe that the judgment should have been amended based on a clerical error, and the other side will try to argue that it WAS a clerical error. Usually, if your request was allowed, their motion would be denied, and things would move from there. Here, since the judge already issue a new judgment based on their request, he would have to vacate the amended judgment, which would just reinstate the original judgment.

Since the request for a new trial was already denied, I don't think he would grant a new trial rehearing or listen to arguments on that topic. The judge gets to control the hearing, and he won't want to hear a lot of argument on something he's already decided.
Customer: replied 1 year ago.

the Plaintiff's letter attaching the Proposed Amended Judgment was treated as a Motion to Amend and your letter was a Motion in Opposition to that motion.

I am confused here and questioning very seriously the validity of all this: Plaintiff has an attorney, why would the attorney not file a regular motion to amend based on 1.530 (g) invoking 1.540(a) SCRIVENER'S ERROR as described in many law cases reviewed by the FL DCA's.

Note :The letter of plaintiff's counsel is asking to enter a new judgment based on scrivener's error



In particular, the situation here is very similar to N.Arnold Malone v. Percival DCA of FL 2nd District

With respect to the addendum to the final judgment of dissolution,
however, we conclude that reversal is required because the addendum–which purports to correct scrivener's errors–in fact constitutes an unauthorized amendment of the final
judgment....

..The trial court sua sponte included in the addendum the following provision ...



"A trial court may correct a clerical error 'at any time on its own initiative'
pursuant to Florida Rule of Civil Procedure 1.540(a), but judicial errors, which include
errors that affect the substance of a judgment, must be corrected within ten days
pursuant 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 Rule
1.540(a) are only 'errors or mistakes arising from accidental slip or omission, and not
errors or mistakes in the substance of what is decided by the judgment or order.' Town
of Hialeah Gardens v. Hendry, 376 So. 2d 1162, 1164 (Fla. 1979) (quoting Keller v.
Belcher, 256 So. 2d 561, 563 (Fla. 3d DCA 1971)."

The provisions in the addendum to the final judgment
thus were unauthorized under rule 1.540(a), and the addendum order of the trial court is
therefore reversed.
Affirmed in part and reversed in part.

There is a whole array of DCA case reviews in that appeal showing a very constant opinion of the DCA's


So here I am totally confused, because the DCA considers in such situation thta the Court has moved sua sponte to amend based on 1.540(a) scrivener's error as was alleged by plaintiff.



Expert:  Lucy, Esq. replied 1 year ago.
"Why" is always hard to answer, because it's hard to know what other people are thinking. My best guess is that the lawyer sent the letter because he did not want to deal with a formal motion, which requires that you have time to respond and possibly a hearing. It looks like he thought the judge would just make the change without going through that process - and he was right.

It sounds like the case you've pasted is exactly on point. I agree with your assessment that this wasn't handled properly. That's certainly an argument that can be made at the hearing.
Customer: replied 1 year ago.

which requires that you have time to respond and possibly a hearing.



I follow you here, and I follow you on the letter-motion assimilation too, since the court has the authority to amend on a scrivener's error.

I follow you also that the judge is not likely to change anything, nor listen to anything else than a mere discussion about the changes themselves.

However, I am totally confused here about the followings:

If the judge beleives he did right by issuing the amended FJ without a prior hearing, why would he not simply let things go and issue a final order denying my 2 motions ?

This comes down to one question : can a motion 1.530(g) to amend a judgment be granted without a hearing ?




 


 


 


 

Expert:  Lucy, Esq. replied 1 year ago.
I really don't know why the judge decided to grant a hearing. I'm as confused as you are. I'd like to think it's because you raised some interesting points that gave him reason to think and he wants a chance to ask you some questions, but I don't know. There are many reasons that may have nothing to with anything I've thought of.

A judge is not required to grant a hearing before ruling on a motion, whether he is allowing it or denying it.
Customer: replied 1 year ago.

Ok, so if I understand well, a judge can change a final judgment based on a motion 1.530(g) of a party and the opposing party has a certain time to oppose (which is how many days ? 10 days ?) and if no opposition, the amended FJ is issued ?

Expert:  Lucy, Esq. replied 1 year ago.
The judge doesn't have to grant a motion if no opposition is received. If he reads it and doesn't believe that it meets the requirements of Rule 1.530, he can deny it even without an opposition.

Rule 1.530 requires that opposing affidavits to a motion brought under that rule be served within 10 days after service of the motion.
Customer: replied 1 year ago.

Ok, but my question is precisely the reverse. Can a judge grant a motion 1.530(g) without a hearing ?

Expert:  Lucy, Esq. replied 1 year ago.
Yes, he can. I'm sorry - that got a little lost in one of my above responses. The judge has discretion and only has to order a hearing if he believes that one is necessary.
Customer: replied 1 year ago.

Ok, so let me summarize this thread and the mixture of confusion and errors we are confronted with.... if I am correct, just answer by yes or no:

1) the letter of the plaintiff's counsel can be interpretated as a motion, however it's logically a "motion" or a request forthe Court to issue a new FJ sua sponte based on 1.540(a) scrivener's error as it claims so and the court issued a new judgment ?

2)If that plaintiff's letter would be construed as a motion based on 1.530(g) it would be void because too late. (more than 10 days after FJ). ?

3) Judge is deeming my letter a motion to rehear and reconsider if the entry of amended FJ was right or not and without specifying pursuant to what rule, but obviously it can be only under 1.530(a) ? ( very important for me to know, I will have a follow up NEW question ).

4) If the information of the FL Bar article is correct, there can be only one motion under 1.530. Does the judge have the authority to deem my letter motion under 1.530 when there is already such motion in the docket ?

5) Judge denies my 1.530 motion AFTER issuing the deem motion order, so we have a problem here too if FL Bar is correct, when TWO 1.530 motions were co-existing ?

6) However, the order is void for a multiple and more or less arguable reasons, more particularly one reason : the motion to rehear MUST be timely, 10 days as per 1.530 (b) and my letter was received 19 days after the FJ was recorded and dated 18 days after. ?

7) The title of the order is "deeming.... correspondence .... motion for reconsideration and rehearing "


8)The amended FJ is a final order, and there is no such motion for reconsideration on a final judgment in the FL Rules of Court?

I have seen in the local newspapers that that judge has made 2 errors in criminal lawsuits... with the number of errors here and elsewhere, I am astound.

Final question :

However, here, my feeling is that the judge believes that a re-hearing is necessary to validate the amendments, otherwise the judgment could be voided with an appeal. What do you think ?

Expert:  Lucy, Esq. replied 1 year ago.
1) Yes.

2) No, because it's a motion under 1.540 to correct a clerical error, which can be done at any time.

3) Yes

4) There is nothing in the rule that says only one motion is allowed.

5) No. See #4.

6) This is really too complicated for a yes or no, but I think you're oversimplifying. A judge can reject a motion that's filed late, and usually will, but you'd have to show that he abused his discretion in treating the letter as a motion. The order isn't void, because he ordered a hearing and you're having a hearing. It's the type of interim order that usually isn't vacated, so it's likely not going to be found to be void, no matter what happens at the hearing.

7) Yes


8) No. The rule on motions is broad enough to allow a motion for reconsideration.


However, here, my feeling is that the judge believes that a re-hearing is necessary to validate the amendments, otherwise the judgment could be voided with an appeal. What do you think ?

I did wonder at one point if that is why the judge granted the hearing. He figures that you're likely to appeal and wants to create a solid record, because judges don't like having their decisions overturned on appeal.
Lucy, Esq., Attorney
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