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Legalease
Legalease, Lawyer
Category: Legal
Satisfied Customers: 14511
Experience:  15 years exp all aspects of general law
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QUESTION FOR LEGALEASE/MARY ONLY.Hi Mary,This is the

Resolved Question:

QUESTION FOR LEGALEASE/MARY ONLY.


Hi Mary,


This is the background:


 


A final judgment was entered. Thereafter an amended judgment was entered after plaintiff sent a letter to the court with a proposed amended judgment on grounds of scrivener's error, and the court signed and issued the amended judgment.


 


I sent a letter of protest to the court before being notified of the amended judgment by mail.


 


The mails crossed while en route, so my letter is dated and delivered the day after  the amended judgment was issued.


 


 


Obviously, this was just a trick of my opponent to add substantial alterations in my disfavor, and correct some major errors of law.


 


 


I filed post judgment motions to vacate the amended judgment and for a new trial, all denied without hearing.


 


 


Thereafter a motion for rehearing and a rehearing was granted and occurred in the following way:


 


 


The judge ignored my prior post-judgment motions but deemed my above correspondence of protest as motion to rehear. However, the court  limited the rehearing to only one of the alterations, despite my further multiple objections, all recorded.


 


Thereafter an order to amend the amended final judgment was issued, after which a 2nd amended final judgment was issued.


 


I filed a notice of appeal from the 2nd amended final judgment and from the order amending the first amended final judgment, but I did not include the final judgment in my notice, in the belief that this was part of the appeal of the 2nd FJ.


 


After having reviewed a major book of appellate procedures and practice at the law library, I am pretty much confused with 2 conflicting things I read there.


First I read that Rule 9.110(h) states that the court may review any ruling or matter occurring prior to filing the notice of appeal, and it gives reference to Saul v. Basse Fla. 2nd DCA, stating that an appeal from a final order callsup for review of all necessary interlocutory steps leading to that final order, wheter thet were separately appealed or not. Citing also Ross v. Phillips

---


On the other hand, I am also reading that " the extent of an appellate court's jurisdiction on appeal from an amended final judgment is limited to those issues that were added or  modified by the amended judgment since the rendition of the original final judgment."


"An amended final judgment does not revive issues that remain unchanged from  the original final judgment"


QUESTION :

What are typically the options to correct in such situation :

1.) Filing a motion to leave to amend my notice of appeal by explaining that the purpose of  the amendment is to clarify that my appeal from both the order amending the amended final judgment and on the 2nd amended judgment was implicitly including the interlocutory steps  as per FRAP Rule 9.110(h), hence including the Final Judgment and the amended final judgment .


2) Do nothing, the DCA will review the entire case.


3) Other ?

Submitted: 11 months ago.
Category: Legal
Expert:  Legalease replied 11 months ago.

Hello there

-

The court will review all of the steps leading up to the final amended judgment if they feel that it is necessary to do so. When a matter goes up on appeal, the entire record goes up to the Appeals court as well and is usually first reviewed by a clerk to the judges who makes the determination regarding whether what they have in front of them is sufficient or if they have to seek additional materials before reviewing the matter. It seems to me that the manner in which you approached this is sufficient because you do not want to turn the situation into one of overkill where you are filing a motion to the appeals court telling them what they should be reviewing -- based upon the law of appeals cases, they will generally review what they feel is sufficient to make a ruling of the legal points of the matters in front of them.

-

MARY

-

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Customer: replied 11 months ago.
Thank you for your information. "Overkill" is what I have in mind, and the record has been transmitted, following my instructions to the clerk. it includes the final judgment.

Now, on a practical side, my understanding is that I will file my brief discussing all the matters common to the final judgments globally, and be specific on the alterations only of the 1st and 2nd amended final judgment, (which is only 1 alteration).

Is that correct ?
Expert:  Legalease replied 11 months ago.

Pieter -

-

Yes. You want to point out where the mistakes were made between the judgments and which judgment is the correct one (if any). You want to show why the changes requested by the other side were more than just minor scrivener's errors that needed to be corrected by the lower court.

-

MARY

Legalease, Lawyer
Category: Legal
Satisfied Customers: 14511
Experience: 15 years exp all aspects of general law
Legalease and 11 other Legal Specialists are ready to help you
Customer: replied 11 months ago.
Yes, thank you so much Mary, I am pretty much covered on that part, we have an obvious case of lack of adjudicative and subject matter jurisdictions.

The court relied on Ruled 1.540 (4) or possibly (5) IMPLICITLY to deem my correspondence as motion, because it was the only available vehicle at the time it ordered my correspondence to be deemed as motion.

That forces the court to vacate the first amended judgment, while it had no adjudicative jurisdiction to issue a second amended judgment, because that could be done only under Rule 1.530 (d) within 10 days of FJ ( not applicable, was past the 10 days) . Rule 1.530(g) is not applicable because I had filed a motion for New Trial prior to the order deeming motion above, and it was eventually denied without hearing. And, finally, the lower court had not kept jurisdiction on the subject matter it altered after the FJ.

So what i needed to square out is whn I am arguing my brief, that i don't shoot in my own foot because I have substantial case law to argue why the 2 successive amendments are invalid, but then it would revert us to the FJ itself.

This is the reason of my question. If the FJ itself is not in the scope of the review, I was wondering what should be done typically about it.

The information you provided makes a lot of sense. The way I see it is to file a motion to leave to amend my notice of appeal ONLY when the DCA would come up with the objection that the FJ is out of the scope of their review.

About the overkill objection, it's very important... the DCA is expecting me to do a lot of errors and to try to correct them, which will moot my appeal, so I need to keep a low profile and shoot only very approrpiate bullets.
Expert:  Legalease replied 11 months ago.
good luck
Customer: replied 11 months ago.
Thank you

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