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Law Educator, Esq.
Law Educator, Esq., Attorney
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Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Question for Paul MJD - ONLYI am processing your advice

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Question for Paul MJD - ONLY I am processing your advice about objecting the orders, but one of the weeak points is that it requires a discretionary decision of the court to let me file late. So if this goes to appeal, I will appeal theorder but from what i have seen in case laws and FL Bar recommendations, the magistrates will rule first on the appropriateness of the decision and may determine thta it was to the discretion of the judge to deny my objection, so my case may be weak in the court of appellate. Also, I am still collecting sworn affidavits of witnesses thta will show the lies and perjury of my opponent. So I need to buy myself some time. Why not - when i am ready - file a motion to vacate the order deeming motion based on the very serious grounds of judicial mistake (1.540 (b) ) and vacate subsequent order setting calendar hearing and matters to hear with all the grounds I have, asking substitution of my REAL motion for the matters to be heard at next hearing in June ? Same motion would also ask for reconsideration of the order denying new trial and I would put in there everything I possibly can contend, so eventually if that new motion is ignored, I will file a writ of mandamus because I am about to be heard on a wrong cause, and if my motion is denied, I will file an appeal. I understand these writ have little chance to be considered by the DCA, but if I don't find for my rights, should I expect the courts to do so in my place ?

Thank you for your new question.

The determination of the validity of any discretionary ruling made by a judge is under the "abuse of discretion" standard. This is one of the hardest standards to meet for a person filing an appeal. Under abuse of discretion you must show that no other reasonable judge hearing the same evidence and facts could have reasonably reached the same conclusion. You can imagine how difficult that is to prove. This is why many appeals of rulings that are discretionary to the court are denied.

Also, if you file what they believe to be a frivolous appeal, you will end up paying the attorney's fees for the other party. So if you think your case is weak, you have a good chance of getting hit hard with their attorney's fees for the appeal.

Affidavits are not evidence, they are hearsay. They cannot be considered by the appellate court and the appellate court can only consider what was presented in the trial court below, no new evidence.

If you have evidence of perjury, which you can file a motion to reconsider/vacate based on newly discoverered fraud and attach the affidavits to that motion, you would still have to have every one of those people who wrote the affidavit appear in court and testify in order to prove your case. An affidavit is hearsay because it cannot be questioned by the other party and thus deprives them of their constitutional right to due process under the confrontation clause (to confront and question witnesses against them).

It sounds like you are trying to grasp at straws with this to delay the inevitable and what is going to happen is you are going to end up getting the bill for the opponent's attorney's fees for you doing so.

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Customer: replied 4 years ago.

Thank you for the advices.

It sounds that I did not make myself clear because I am also confused by how I can be deemed anything in a court against my own pleadings and intent.

My point is the following : the deemed motion came after my motion that was requiring 2 things:

- to vacate the amended FJ on the grounds that it was issued without a hearing and the changes were substantial.

- to rehear and amend the final judgment not only on pre-jusgment interests, but on a several other issues that do not make any sense at all.

The final judgment was drafted by my opponent and signed as is by the judge. Same for the Amended one.

The abnormalities of the FJ do not come out of my brain, I have taken multiple advices about it.

AFTER HAVING FILED MY MOTION targeting the Amended FJ, the argument that it was not on the desk of the judge is invalid or a mistake of the court, because the court order deeming motion specifies that it had reviewed the record.

I have also reviewed and taken a screenshot of the record a few days earlier and my motion was in there.

So this is yet another mistake. I have immediately sent a letter to the judge informing about the existence of my prior motion.

Prior motion and that letter are being ignored.

So my point is not to have a hearing to discuss about the pre-judgment interests, as scheduled now against my will. I have no interest in asking that and I have never asked for such.

My point in my correspondence deemed motion is that I want the final judgment to be amended after a contradictory hearing of the amendments, which are also including a loan refund. Not the amended final judgment that I ignored about.

I am not supposed to know in advance what the court may decide when it gets such correspondence of my opponent with a proposed amended judgment. Am I ?

The Court hasn't informed me that it will grant automatically whatever the opponent requests, regardless of any validity. even if it's been the case and i can prove it, here and on multiple other occasions.

As you mention, “No person shall … be deprived of
life, liberty, or property, without due process of law.”

This amended final judgment is adding $20,000 to the relief and compounding the pre and post judgment interests, which is not allowed in FL, highly controversial for the least and determines arbitrarily the date of start of the interests, then makes me a benificiary of a loan refund for an erroneous amount, when I am not the lender and the evidence showing this clearly was admitted at the trial hearing.

It was amended without hearing on the grounds of a clerical mistake.

I am confident that this amended final order is "highly appealable".

I made my point with my motion, the judge does not want to hear it as it results of her last order limiting the hearing strictly to her own motion.

This is why I feel I need now to sum up all what went wrong in that case pursuant of 1.540 (b) and my grounds are very serious, including the deemed motion, then ask to be heard and if my motion is denied then appeal, regardless of any hearing of deemed motion or not.

I understand I may get an order asking me to pay the opponent's lawyer fees, but they already made a settlement proposal and because I lost the case I am already in that situation.

With 1.540(b) my logic is that I am not depending on the discretion of the judge to file new stuff, as long as it fits to the conditions.

Anything I will do late, I agree, is of no interest to me. With 1.540(b) I have 1 year. So my point is to come up with something solid.

Thank you for your response.

I thought we had discussed that if this was not a proper motion and the judge considered it a motion incorrectly, that you can move to vacate based on the facts of denial of due process and the fact the judge issued an order a motion that was never made by you.

You are not supposed to know in advance what the court will do, you are supposed to know what your opponent has asked the court to do and have an opportunity to file an objection and get a hearing to present your evidence in opposition to the motion.

Based on everything above, you have grounds here for an appeal, such as issuing an order on a motion you never made, denial of due process and improper charging of interest and also the amending of an alleged clerical error. All of this can be taken up to the court of appeals to get reversed.
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Customer: replied 4 years ago.

was not a proper motion and the judge considered it a motion incorrectly

Sorry,I didn't get that part,I haven't reach clarity yet anyway but I will spend a few days reviewing cases now..

Denial of due process is the keyword here, and a few cases of deemed motions and other issues.

Thank you for your response. Yes, plus don't forget the improper adding and calculation of the interest you mentioned above is also another issue for appeal.