Motion For Rehearing and or Reconsideration
Motion For Rehearing and or Reconsideration
P. CARROLL, Plaintiff, v. WATERSOU D BEACH COMMU ITY ASSOCIATIO , I C., Florida Corporation DAVID LILIE THAL, individually and as Director, MARY JOULE, SA DRA MATTESO , RO ALD VOELKER, WATERCOLOR COMMU ITY ASSOCIATIO , I C. JOH DOE and JA E DOE Defendants. ____________________________________________/ Case o.: 09CA002021
PLAI TIFFS MOTIO FOR REHEARI G A D/OR MOTIO FOR RECO SIDERATIO
Comes now the Plaintiff, John Carroll who makes this Motion for Rehearing and/or Reconsideration and states as follows: 1. This Motion is based upon the conflict between procedural and substantive law that
has affected the course of the proceedings herein. 2. The course of the proceedings at bar are being controlled by a Case Management
Order that has failed to mention basic elements such as Mediation and Amendment to Pleadings. 3. In strict conformance with Florida Statue 768.72 and Florida Rule 1.190 (f), on May
23, 2011, Plaintiff Carroll filed his Motion Seeking Leave to Amend his Complaint to Add a Claim for Punitive Damages with Supporting Memorandum of Law and Proffer of Evidence.
4. 5.
Carroll immediately delivered said Motion to all Counsel of Record. Florida Statute 768.72 and all the case law referencing same require the Plaintiff to
conduct meaningful discovery and proffer evidence prior to seeking punitive damages. 768.72 Pleading in civil actions; claim for punitive damages. (1) In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed. 6. The proffer of evidence threshold under one of Carrolls claims, Negligence, is set to
an even greater standard. see Carraway v. Revell, 116 So. 2d 16 - Fla: Supreme Court 1959 7. Carroll seeks punitive damages in a variety of his causes including Libel and Slander,
Breaches of Contract and Fiduciary Duty, Negligence, etc. 8. To meet the evidentiary burden mandated by Florida Statute, Carrolls Motion
included 55 pages of Motion and Proffer of Evidence, and then included 429 pages of Evidence Exhibits. 9. 10. Carrolls Motion met all the burdens of Florida Statute 768.72. The procedural vs substantive conflict lies in the progress of this case. Carroll was
met with stiff resistance to any and all discovery on the part of the Defendants during the first 14 months of the case. The case docket shows that Carroll sought the Courts assistance no less than 4 times to compel any meaningful discovery on the part of the Defendants. 11. The Defendants allowed no meaningful discovery until after he filed his current
complaint (the 2nd Amended). In other words, Carrolls Motion for Leave to Amend Adding a Claim for Punitive Damages is his first Amendment since any meaningful Discovery.
12.
On June 2, 2011, this Court heard Plaintiffs Motion seeking Leave to Amend his
Complaint to Add a Claim for Punitive Damages and denied that claim. From the hearing: Mr. Carroll: .. .. .. ..I worked very hard to discover evidence in this case over motion after motion to compel discovery from the defendants, and it's only within the last five months that I started getting all of these documents, et cetera, 4,000 pages that are relevant to this case. That's all I have, Your Honor. THE COURT: I'm going to find that we're at a point where discovery has been closed and this motion is untimely, so I would deny it -- that motion. 13. On June 17, 2011, the Court heard various Motions and other pre-trial issues. When
the parties and the Court asked about Carrolls intentions regarding the denial of his Motion to Seek Punitive Damages Carroll informed the Court that he would make a Motion for Rehearing or Reconsideration upon the Courts entrance of the Order of Denial. 14. The Court informed the parties that the Order has been filed with the Clerk and asked
Carroll for a commitment. Carroll promised the Court that based upon the argument of Counsel, Florida Statute and Case Law hed make the Motion immediately (This Motion). 15. Carroll reminds the Court of the proffer by the Defendants at the hearing today
wherein they stated unequivocally that they would not feel prejudiced by the proximity of trial:
1 2 3 JOHN P. CARROLL, 4 5 6 7 8 9 Defendant. Plaintiff, vs. WATERSOUND BEACH COMMUNITY ASSOCIATION, et al, CASE NO. 09-CA-2021 IN THE CIRCUIT COURT IN AND FOR WALTON COUNTY, FLORIDA
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_____________________________________________________ EXCERPT FROM PROCEEDINGS June 17, 2011 8:30 a.m. Walton County Courthouse Annex DeFuniak Springs, Florida BEFORE: The Honorable David Green Circuit Judge _____________________________________________________ KATHRYN B. PEACOCK Court Reporter 1009 Ridgewood Cove, S. Niceville, Florida 32578 (904)897-2864 APPEARANCES JOHN CARROLL, PRO SE P. O. Box 613524 WaterSound, FL 32461 PLAINTIFF GARY SHIPMAN, ESQUIRE Attorney at Law 1414 County Highway 283 South, Suite B Santa Rosa Beach, FL 32549 For the Defendants CHRISTOPHER L. GEORGE, ESQUIRE Attorney at Law Post Office Box 1034 Mobile, AL 36633 For the Defendants MARK D. DAVIS, ESQUIRE Attorney at Law P. O. Box 705 DeFuniak Springs, FL 32435 For the Defendant Voelker
(850) 897-2864
3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXCERPT FROM PROCEEDINGS, THE COURT: meeting today. MR. CARROLL: in today. I don't think I can get it We're not going to waive the
immediately if the Court will consider it. THE COURT: and it may not. All right. It may be granted
talking about something that hasn't happened yet. I don't know what your grounds would be
fully agree with whatever you say in your motion. I have not seen your motion, but there Number one, that I
grant your motion in which case we're going on with the trial and dealing with punitive damages. I would assume y'all are ready to go
ahead with the trial if I allow the punitive damages; right? MR. CARROLL: Can I help the parties? (850) 897-2864
4 1 2 3 4 5 6 7 8 9 10 11 12 THE COURT: right now. MR. SHIPMAN: Chris. MR. GEORGE: proceed, yes, sir. MR. SHIPMAN: THE COURT: We would. All right. So I grant your We would still be ready to That's more up to you, I'm asking them a question
motion to reconsider and allow punitive damages, we would still go to trial. option number one of the two options. (Excerpt concluded.) KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864 That's
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REPORTER'S HEARING CERTIFICATE STATE OF FLORIDA COUNTY OF OKALOOSA I, Kathryn B. Peacock, Freelance Court Reporter, certify that I was authorized to and did stenographically report the foregoing hearing; and that the transcript of requested excerpt is a true record of the testimony given by the witness. I further certify that I am not a relative, employee, attorney, or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or counsel connected with the action, nor am I financially interested in this action. KATHRYN B. PEACOCK Freelance Court Reporter
16.
In light of the foregoing fact that the Defendants affirmatively state that they are
prepared to defend against Carrolls punitive damages claims, there is no prejudice to Defendants. 17. This Court certainly has the power to reconsider any of its rulings on pretrial motions.
Bay Gulf, Inc. v. Anchor Seafood, Inc., 971 So 2d 842 (Fla 3d DCA 2007) (trial courts have inherent authority to reconsiders interlocutory orders); Oliver v. Stone, 940 So 2d 526 (Fla 2d DCA 2006); Oldock v. DL & B Enterprises, Inc., 966 So 2d 484 (Fla 2d DCA 2007) (trial court has ability to consider orders rendered by it at any time prior to entry of final judgment). 18. Recognizing that power, Carroll may file a motion for reconsideration or rehearing of
this ruling at bar. Rhea v. Hackney, 157 So 2d 190 (Fla 1934) (court has inherent power); Hollywood v. Cordasco, 575 So 2d 301 (Fla 4th DCA 1991) (trial court has inherent power to reconsider its orders); Arnold v. Massebeau, 493 So 2d 91, 92 (Fla 5th DCA 1986). 19. This is especially true in this case given that the ability to appeal a ruling during trial
is limited prior to rendition of a final judgment, Fla R App P 9.030; Fla R App P 9.130. 20. Again, Carroll restates that this Order is based on a squeeze between Substantive and
Procedural law. In light of the fact that the Defendants now state that they are ready to defend against Carrolls Claims seeking Punitive Damages, Carroll prays the Court Grant his Motion for Rehearing and/or Reconsideration in accordance with Marion County v. Kirk, 965 So 2d 330 (Fla 5th DCA 2007). When a Court is presented with evidence on timely rehearing that cures the basis for its earlier ruling should grant rehearing as it has been found to be an abuse of discretion to deny rehearing; and Edrington v. Edrington, 945 So 2d 608 (Fla 4th DCA 2006). When the motion for rehearing is based on newly discovered evidence, the motion should be granted when: 1) it appears that the new evidence is such that it will probably change the result of the proceedings, 2) the evidence has been discovered since the trial, 3) the evidence could not have been discovered before the trial by the exercise of due diligence, 4) the evidence is material to the issue, 5) the evidence is not merely cumulative or impeaching. Wherefore Plaintiff CARROLL moves to Grant his Motion for Punitive Damages and
thereby adopt his 3rd Amended Complaint filed therewith. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Christopher L. George, Esq., PO Box 1034, Mobile, AL 36633 and to Mark D. Davis, Esq., 694 Baldwin Ave. Suite 1, PO Box 705, DeFuniak Springs, FL 32435 and to Gary Shipman, Esq., 1414 Co. Hwy. 283, Suite B, Santa Rosa Beach, FL by hand delivery, e-mail and regular mail this 17th day of June, 2011. _____________________________ John P. Carroll