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Lucy, Esq.
Lucy, Esq., Attorney
Category: Legal
Satisfied Customers: 21077
Experience:  Lawyer
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QUESTION FOR LUCY ONLY Hi Lucy, I am using the account

Customer Question

QUESTION FOR LUCY ONLY

Hi Lucy,

I am using the account of my wife, but we have talked about our case for a while. Eventually I filed a notice of appeal but after that came an order denying my motion to strike the witness of my attorney, his own father actually, that came in the picture at the last minute, replacing allegedly another expert that the attorney had previously refused to disclose the name of. I wanted to strike that, but my motion was denied, and i wanted to appeal so i filed an amended notice in which I mentioned that it was a non-final order.

I got an order from the DCA asking me to show cause as to why the amended notice of appeal should not be stricken.

I am a bit confused because there is no final order here anymore, all we are waiting for is the hearing to determine the amount of the attorney fees.

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

When your case is fully resolved, the judge will enter a final order. Once that final order is entered, you'll be able to file a Notice of Appeal. Before the case is final, Rule 9.130 of Appellate Procedure only allows a few appeals, none of which seem to apply to what you've said. Before final judgment, a person can appeal orders that:
(A) concern venue;
(B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions;
(C) determine
(i) the jurisdiction of the person;
(ii) the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment;
(iii) the right to immediate monetary relief or child custody in family law matters;
(iv) the entitlement of a party to arbitration, or to an appraisal under an insurance policy;
(v) that, as a matter of law, a party is not entitled to workers' compensation immunity;
(vi) that a class should be certified;
(vii) that, as a matter of law, a party is not entitled to absolute or qualified immunity in a civil rights claim arising under federal law;
(viii) that a governmental entity has taken action that has inordinately burdened real property within the meaning of section 70.001(6)(a), Florida Statutes; or
(ix) the issue of forum non conveniens.
(D) grant or deny the appointment of a receiver, and terminate or refuse to terminate a receivership.
Following the hearing, the judge should enter a final order and you'll have the ability to appeal. Until then, any notice of appeal filed that doesn't fall within one of those categories will be stricken.
Customer: replied 1 year ago.

When your case is fully resolved, the judge will enter a final order

Thank you for the answer, so if i understand you correctly, we will have an evidentiary hearing on the issue of determining the amount of the fees of my opponent's lawyer, taxable to me, and the judge will issue an order that will set the amount of the fees, That order will be considered as final and it is the one I can appeal. Correct ?.

The order granting the attorney fees is part of the final order, as far as i am concerned, that is the 2nd Amended FJ,


 


It was issued in June I appealed in a timely fashion.

My wife, however, was taxed after Plaintiff's counsel filed a motion for attorney's fees, which occurred just before the 2nd Amd FJ.




Expert:  Lucy, Esq. replied 1 year ago.
The Second Amended Final Judgment should be the final order that would allow a person to file a Notice of Appeal. However, from your question, you said there is no final order. If you have a Judgment, even an amended one, you can use that as the basis for the Notice of Appeal unless it has been vacated or otherwise lifted.
Customer: replied 1 year ago.

However, from your question, you said there is no final order

Sorry, Lucy, I realize that I haven't expressed the issue correctly.

There is a final judgment, and I must have written incorrectly in my amended notice of appeal that the order denying the motion to strike that was issued AFTER the FJ, that order was non-final ?

Should I not re-amend my Notice and change the word non-final with "final" based on a scrivener's errorCrytitle="Cry"/>?

 

ADDENDUM TO JOINT NOTICE OF APPEAL

NOTICE IS GIVEN that Defendant/Appellant, hereby adds the following order of the lower court to their join-notice of appeal to the Fourth District Court of Appeal:

-ORDER DENYING DEFENDANTS MOTION TO STRIKE WITNESS AND ALLOWING THE OBJECTIONS TO BE CONSIDERED AS TO THE WEIGHT AND CREDIBILITY OF THE WITNESS TESTIMONY

The nature of the order was a non-final order.

Expert:  Lucy, Esq. replied 1 year ago.
It sounds like, essentially, you're appealing the judgment itself, and the reasons for appealing the judgment is that the judge made mistakes along the way that constituted a deprivation of due process. The denial of the Motion to Strike is just one of the ways that the judge denied due process. If there are other things that went wrong, that could all be included.

If you want to amend the Notice to show that you're appealing final order, then you would also want to clarify the orders that are being appealed.
Customer: replied 1 year ago.

Thank you, XXXXX XXXXX already went through this and I did list all the orders on my first Notice, this was an addendum becuase the above order came after i filed my Notice of Appeal


=============

Should I then file an amendment to the addendum in reply to the Court order

Appellant... scrivener error ... etc... hereby amends his addendum ... in the following way:

"A 2nd Amdd FJ was issued on June ..., to which the order is related, therefore the order is final.

Expert:  Lucy, Esq. replied 1 year ago.
One option is to file an Objection to the Motion to Strike, stating that the Notice is an addendum and that the Notice of Appeal is appealing the entry of a final order. The other option is to see if they will accept an Amended Notice clarifying that the appeal is related to the appeal of a final order.
Customer: replied 1 year ago.

Objection to the Motion to Strike

You mean an objection to the order denying the Motion to Strike ?

Expert:  Lucy, Esq. replied 1 year ago.
No. You said that you got an order stating that you need to tell them why the Notice of Appeal shouldn't be stricken. An objection to the order would mean saying "I shouldn't have to respond to this." The order suggested that the other party asked to strike your Amended Notice of Appeal. If the court sent it on their own initiative, then you'd file a Response.
Customer: replied 1 year ago.

The order suggested that the other party asked to strike your Amended Notice of Appeal

Actually the order does not mention that, it's signed by the Clerk, probably making sure things are in conformity.


If the other party has filed a motion to strike, I would have been served and notified, wouldn't I ?


 

Expert:  Lucy, Esq. replied 1 year ago.
Yes, you would. The clerk must have issued it on their own initiative.
Customer: replied 1 year ago.

Thank yo Lucy, so the caption here is "Response TO COURT ORDER etc..." and I will indicate it's a scrivener error and explain that it's liinked to FJ etc... in a few words




BTW, quick question, rule 1.090(e) of the lower court is also valid at the DCA ? It gives 5 extra days for orders issued and notified by mail . is there a similar rule at the DCA ?

Expert:  Lucy, Esq. replied 1 year ago.
In the appellate courts, Rule 9.420 applies. The language is similar. "If a party, court reporter, or clerk is required or permitted to do an act within some prescribed time after service of a document, and the document is served by mail, 5 days shall be added to the prescribed period."
Lucy, Esq., Attorney
Category: Legal
Satisfied Customers: 21077
Experience: Lawyer
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