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Lucy, Esq.
Lucy, Esq., Attorney
Category: Legal
Satisfied Customers: 29803
Experience:  Lawyer
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Hi Lucy, I thought I had posted a new question for you here

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Hi Lucy, I thought I had posted a new question for you here but i cant see it ?
Good morning,

I'm sorry, but I don't see any questions that haven't been answered. Can you repost it?
Customer: replied 4 years ago.
Yes, this is the question. Again, a new error in the file, as I am reviewing the docket with x-rays...

Plaintiff served a motion for leave to file a 2nd amended complaint in May 2012, but it is not filed, nor is the order granting the leave,, nor is the amended complaint to be found in the docket.

this is prejudiciable to me, and more so to my wife for the reason that there is a valid order to attach contracts as per rule 1.130 and there again, the order is ignored because the Plaintiff comes up with a back-rent claim. And the prejudice is that the amendment and the Final Judgment are founding themselves on an expired contract, replaced by 5 other successive contracts, that Plaintiff has voluntarily failed to attache in order to hide them to the attention of the Court as they invalidate his claims.

My lawyer however filed an answer to that amended complaint.

Question : Do I have the right to object NOW ?

If yes, which instrument ? OBECTION or part of my motion to leave to amend ?
The 2nd Amended Complaint should be attached to the Motion. The fact that your attorney files a response suggests that they must have at least served you with a copy. It's odd that it's not somewhere in the docket, though.

The problem is, since you filed an Answer, they're going to say that you waived any objection to the Second Amended Complaint. It's also hard to argue that the motion to amend wasn't granted - why file an Answer if the judge didn't allow the request? I realize that it was your attorney who filed it and not you, but he's your agent and his actions are attributable to you. Is there any way to ask him how he got the Second Amended Complaint, since you don't show it anywhere?

You may have a valid argument related to the plaintiff's repeated failure and refusal to produce documents that he had been ordered to produce. But I'm not sure that the fact that the Second Amended Complaint wasn't filed is the way to make that argument.
Customer: replied 4 years ago.
>>how he got the Second Amended Complaint, since you don't show it anywhere?

It was served to him.

The problem lies also with the order granting leave to file the amendment. It's not in the docket.

This is probably why Plaintiff could not file his amended complaint.
Now, this is also the one that is fraudulent and probably the best example for the Doctrine of Estoppel

.Previously Plaintiff was alleging that we ceased to reside at the property, now he alleges that we continued to reside at the property in view to claim back-rents on an expired contract.

The amendment is attaching the expired contract again, same situation that caused dismissal previously and the order to attach contracts.

In addition, it is fraudulent because Plaintiff has sent a sworn affidavit of loss to his insurance company, stating that the house was uninhabitable after the flood and we moved out and the lease was vacated, hence losses of rents.

Same rents as those claimed for in his amendment..

The lease contract in effect at the date where we vacated is not exhibited.
Instead, Plaintiff exhibits the expired one. Reason : if he exhibits the missing contracts that he was ordered to attach, his claims go to the ground asap.

I still feel like, by filing an Answer to the Second Amended Complaint, any objection to it not being filed is waived. The judge saw it as part of the Motion to Amend and a reply was filed. If he granted a Motion to Amend without seeing the Amended Complaint attached, the time to object would have been there.

If you're compiling errors for appeal, that may be something to mention (if you can find any place that it was raised earlier). But I don't think the judge would grant a new trial on that basis.
Customer: replied 4 years ago.
If he granted a Motion to Amend

There is no such order in the docket ?

Then why would your attorney file an Answer? It only makes sense for him to have done that if the judge granted the motion.
Customer: replied 4 years ago.
It could have been granted verbally, but my point is about the right to object to the order. How can it be exercised if the order is not filed, which is the case here ?.

I assume that my lawyer filed an answer 1 month later possibly by mistake because he had been served the motion for grant to leave to amend with the amended complaint attached and he must have thought that it was the right thing to do to counter the motion of my opponent. Alternatively, there was a hearing and a verbal order at the hearing.

In all likelihood, I have seen at the law library some cases where the court of appellate have voided written orders becuase they were not sufficiently founding themselves. So when it is a verbal order, would it not be logical to think that it's voidable or not operable ?
You're trying to void the order based on something that happened after it was entered. If the order was unfounded, that would have to be based on a circumstance that existed at the time it was entered.

It's also entirely possible that the judge stated at the hearing that the Amended Complaint served with the Motion would be accepted into the record. It would help if you had a recording from that hearing, or if your attorney is willing to tell you what happened. But I still stand by what I said initially, which is that filing the Answer waives all of these arguments. The time to object to a motion granting leave to amend a complaint is before the Answer is filed.

Also keep in mind that the standard for allowing amendment is extremely liberal and that these requests are usually granted. That makes it even more difficult to show that the judge abused his discretion in allowing it, which is the standard on appeal.
Customer: replied 4 years ago.
to be based on a circumstance that existed at the time it was entered.

Exactly,and the circumstances were the following :

Plaintiff attached - again - the expired contract that he had attached to his initial complaint.

That complaint was dismissed with leave to amend. Additionally an order to attach the missing contracts was issued.

It had been established that the contract was expired then .

That first order was never voided.

So when Plaintiff comes up with a SECOND Amended complaint and again attaches same expired contract, is he not in contempt of the court's first order ?

If any order is validating his motion, does it not need to explain why the court has a different opinion as to enforcing rule 1.130 ?

A verbal order issued at the trial hearing - IF THIS IS WHAT HAPPENED - can still be objected 10 days after it has been filed.

On which ground can i file an objection to a verbal order ?

ANSWER TO PLAINTIFF's motion : The above is not something to answer or to object to Plaintiff.

It's to be objected to the court.

So therefore is the fact of having filed an answer to his motion not irrelevant ?

Note that the filing (of my answer) must have taken place WELL AFTER THE ASSUMED VERBAL ORDER AT THE ASSUMED HEARING.

It's incredibly difficult to address these arguments, because there's a gaping hole in the facts. Why did you attorney file an Answer to a Complaint that was never filed? That doesn't make any sense. It doubly doesn't make sense if the Complaint was already dismissed. There has to be something that happened that you're not aware of. If a judge dismisses my case, and I for some reason file an Answer anyway, the case doesn't just continue - the case is over.

Putting all of that aside, you haven't said anything to make me think that you can raise an objection now, after trial is over, to the fact that the plaintiff served a Motion for Leave to file an Amended Complaint but never filed the Amended Complaint. This is because it's too late, because you never raised the argument earlier, and because filing a response to a document is going to waive objections to the document being filed. I can't file an Answer to a Complaint and then file a Motion to Dismiss later. These arguments have to be raised at the time they are relevant - not after the trial is over. Again, I'm sorry.
Customer: replied 4 years ago.
>>>to the fact that the plaintiff served a Motion for Leave to file an Amended Complaint but never filed the Amended Complaint.

Lucy, this is not my point at all. My point is about objecting the assumed order, read my reasons above. I seriously question the validity of it, other than not being filed.I also tend to believe that because it hasn't been filed, it is still objectionable.

Then I misunderstood, and I apologize.

I agree that the judge shouldn't have given leave to amend (assuming that he did) after the Complaint was dismissed. What you have to argue is that he abused his discretion in doing so. If the Complaint was dismissed with prejudice (you may have to go back and look at the order), the case should have been done and decided. If you filed a Motion opposing the request to amend the complaint back then, you have preserved the right to appeal the order allowing amendment (again, assuming that happened).
Customer: replied 4 years ago.
I did file a motion to strikeHowever, we see here that this court is entertaining confusing situations for a purpose or not. On the other hand, with the kind of mistakes my lawyer did, i have a hard time to try to put things straightRemember, I was granted a re-hearing, so I want to bring this in a motion, with other stuff. And what I want to bring is that if any order was granted to file the SECOND amended complaint, it would be an error if it does not stipulate why Plaintiff is not obliged here to follow the rule 1.130 and the previous order to attach the contracts and attaches the same contract as before, an expired one, that has caused involuntary dismissalCheck this link
Customer: replied 4 years ago.

I think the point here is denial of due process, when the order is not filed, therefore not objectionable.


Procedural jurisdiction defects can he heard anytime when the error quelifies as fundamental, as per the FL Bar opinions

Due process requires notice and an opportunity to be heard. That's why the rules allowing amendment are so liberal - the law prefers allowing cases to be heard on their merits, rather than dismissed on technicalities. So, I don't think that due process is the best argument here. You got your day in court.

The hearing that you're having should be rather narrowly focused. You made it sound like it's really just a motion for rehearing based on your letter, which addressed the judgment itself and errors at trial. I really don't think the judge is going to hear additional issues that weren't brought up in the motion or the letter.

A request to dismiss for lack of jurisdiction would be done via a Motion to Dismiss, not a Motion for New Trial or Motion for Rehearing following trial. But I'm still not following your thought process on claiming that the court didn't have jurisdiction. Jurisdiction just means whether a case can be brought in the first place. It doesn't tend to come into play on issues other than "Does the court have authority over this party?" and "Is the court allowed to hear this type of case?" (Contracts, tort, probate, etc.)
Customer: replied 4 years ago.

lack of jurisdiction would be on the person of my corporation when the final judgement is finding without any evidence , in an automatic way, that a check paid by plaintiff to my company is causing an unjust enrichment in my favor. There is a non-written and non found assumption that my corporation is automatically my alter ego. I have seen many cases being reversed when the court had considered that a company is the alter-ego of his CEO or shareholder without any findings whatsoever.

I have reveiwed many cases where it is made clear that the Court need to find some kind of behaviors and patterns of shareholders or officers to treat a Corporation as their alter-ego.

In order to reach that ppint, the corporation must be part of the trial.

Plaintiff is suing the wrong party, and becuase he failed to join indispensable party to action, he cannot claim thta a check to my corporation is a check to me. When looking at the merits, he was owing that money to the corporation, but the case was never against my corporation and there was no reason why it should have participated spontaneously.

What do you think?

BTW if the court vacates the amended final judgement, does it re-instate the final judgement and so the Court would need to vacate both ?

I think you already answere dto that one

I agree that the plaintiff sued the wrong party. If he wants to say that you and the corporation are the same, then there has to be findings of fact that you and the company are one and the same, and it sounds like that never happened.

It's up to the judge to decide whether to reinstate the original judgment or enter an entirely new judgment. He's allowed to do either.
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