RESPONSE TO EMERGENCY MOTION FOR STAY OF JEFF …RESPONSE TO EMERGENCY MOTION FOR STAY OF JEFF...
Transcript of RESPONSE TO EMERGENCY MOTION FOR STAY OF JEFF …RESPONSE TO EMERGENCY MOTION FOR STAY OF JEFF...
iN T}IE DISTRICT COURT OF APPEALOF THE STATE OF FLORIDA, FIRST DISTRICT
STATE OF FLORIDA, DEPARTMENTOF FINANCIAL SERVICES
Appellants,
V.
PETER R. BROWN CONSTRUCTION, iNC.
Appellee.
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Case No. 1D12-5053L.T. No.: 2011-CA-001706
RESPONSE TO EMERGENCY MOTION FOR STAY OF JEFF ATWATER
PETER R. BROWN CONSTRUCTION, INC. ("Appellee"), by and through
its undersigned counsel and in response to the Emergency Motion for Stay filed by
CFO, Jeff Atwater hereby adopts its response to the Emergency Motion for Stay
filed on behalf of Robert C. "Bud" Kneip. The response with respect to Mr. Kneip
is equally applicable to Mr. Atwater. A copy of the Response is attached hereto.
Dated this 30th day of November, 2012.
Respectfully submitted,
Is! Robert H. BuesingROBERT H. BUE SINGFlorida Bar No. 236535rbuesing@trenam. cornGREGG E. HUTTFlorida Bar No. [email protected], KEMKER
iN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FIRST DISTRICT
STATE OF FLORIDA, DEPARTMENT OF FINANCIAL SERVICES
Appellants,
V.
Case No. 1D12-5053 L.T. No.: 2011 -CA-001706
PETER R. BROWN CONSTRUCTION, INC.
App ellee.
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RESPONSE TO EMERGENCY MOTION FOR STAY OF JEFF ATWATER
PETER R. BROWN CONSTRUCTION, INC. ("Appellee"), by and through
its undersigned counsel and in response to the Emergency Motion for Stay filed by
CFO, Jeff Atwater hereby adopts its response to the Emergency Motion for Stay
filed on behalf of Robert C. "Bud" Kneip. The response with respect to Mr. Kneip
is equally applicable to Mr. Atwater. A copy of the Response is attached hereto.
Dated this 30th day of November, 2012.
Respectfully submitted,
Is! Robert H. Buesing ROBERT H. BUESING Florida Bar No. 236535 [email protected] GREGG E. HUTT Florida Bar No. 0010435 [email protected] TRENAM, KEMKER
E-Copy Received Nov 30, 2012 5:40 PM
101 East Kennedy Boulevard, Suite 2700Post Office Box 1102Tampa, Florida 33601-1102(813) 223-7474Attorneys for Appellee
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Response to Emergency Motion for
Stay of Jeff Atwater has been furnished by U.S. and Electronic Mail to Thomas J. Maida, Esq.
([email protected]) ([email protected]), (jmckee(,foley.com) Foley & Lardner LLP, 106
East College Ave., Suite 900, Tallahassee, FL 32301-7732, Clifford A. Taylor, Esq.
(Clifford.taylordms.myflorida.com) ([email protected] ), Office of
General Counsel, Department of Management Services, 5060 Esplanade Way, Suite 1 60D,
Tallahassee, FL 323 99-0950 and Michael Davidson, Esq.,
([email protected]) and Richard T. Donelan, Jr., Esq.
([email protected]), State of Florida, Department of Financial Services, 200
East Gaines Street, Tallahassee, FL 32399 this 30th day of November, 2012.
Is! Robert H. BuesingAttorney
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7113496v1
101 East Kennedy Boulevard, Suite 2700 Post Office Box 1102 Tampa, Florida 33601-1102 (813) 223-7474 Attorneys for Appellee
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Response to Emergency Motion for
Stay of Jeff Atwater has been furnished by U.S. and Electronic Mail to Thomas J. Maida, Esq.
([email protected]) ([email protected]), (jmckee(,foley.com) Foley & Lardner LLP, 106
East College Ave., Suite 900, Tallahassee, FL 32301-7732, Clifford A. Taylor, Esq.
([email protected] ) ([email protected] ), Office of
General Counsel, Department of Management Services, 5060 Esplanade Way, Suite 1 60D,
Tallahassee, FL 32399-0950 and Michael Davidson, Esq.,
([email protected] ) and Richard T. Donelan, Jr., Esq.
([email protected] ), State of Florida, Department of Financial Services, 200
East Gaines Street, Tallahassee, FL 32399 this 30th day of November, 2012.
Is! Robert H. Buesing Attorney
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7113496v1
IN THE DISTPJCT COURT OF APPEALOF THE STATE OF FLORIDA, FIRST DISTRICT
STATE OF FLORIDA, DEPARTMENTOF FINANCIAL SERVICES
Appellants,
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PETER R. BROWN CONSTRUCTION, INC.
Appellee.
/
Case No. 1D12-5053L.T. No.: 201 1-CA-001706
RESPONSE TO EMERGENCY MOTION FOR STAY
PETER R. BROWN CONSTRUCTION, INC. ("Appellee"), by and through
its undersigned counsel and pursuant to this Court's Order of November 20, 2012,
hereby responds to the Emergency Motion for Stay filed by the Florida Department
of Financial Services ("DFS"). For the reason stated herein, this Court should
deny the Emergency entry of an Order staying the Order of the trial court requiring
DFS' Chief of Staff Robert C. "Bud" Kneip to be deposed in this action.
1. This action is set for non-jury trial before Chief Judge Charles Francis
of the Second Judicial Circuit in and for Leon County, Florida, Case No. 2011-CA-
001706 on December 17, 18 and 19, 2012.
2. Decisions regarding discovery are true discretionary acts and an
appellate court must defer to the superior vantage point of the trial judge who has
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FIRST DISTRICT
STATE OF FLORIDA, DEPARTMENT OF FINANCIAL SERVICES
Appellants,
1
Case No. 1D12-5053 L.T. No.: 201 1-CA-001706
PETER R. BROWN CONSTRUCTION, INC.
Appellee.
/
RESPONSE TO EMERGENCY MOTION FOR STAY
PETER R. BROWN CONSTRUCTION, INC. ("Appellee"), by and through
its undersigned counsel and pursuant to this Court's Order of November 20, 2012,
hereby responds to the Emergency Motion for Stay filed by the Florida Department
of Financial Services ("DFS"). For the reason stated herein, this Court should
deny the Emergency entry of an Order staying the Order of the trial court requiring
DFS' Chief of Staff Robert C. "Bud" Kneip to be deposed in this action.
1. This action is set for non-jury trial before Chief Judge Charles Francis
of the Second Judicial Circuit in and for Leon County, Florida, Case No. 2011-CA-
001706 on December 17, 18 and 19, 2012.
2. Decisions regarding discovery are true discretionary acts and an
appellate court must defer to the superior vantage point of the trial judge who has
seen the parties first hand and is more fully informed regarding the case. Sugerm ill
Woods Civic Ass 'n, Inc. v. Southern States Utilities, 687 So. 2d 1346 (Fla.. 1 DCA
1997). A trial court thus possesses broad discretion in granting or refusing
discovery motions, determining the scope of discovery and protecting parties
against abuse of discovery procedures which will only be overturned where the
trial court abuses its discretion. National Security Fire & Casualty Co. v. Dune,
751 So. 2d 777 (Fla. 5th DCA 2000). Indeed, it has been stated that a trial judge's
discovery rulings should be overturned only if the rulings would cause irreparable
damage. Thomson v. Deane, 703 So. 2d 1251 (Fla. 5th DCA 1997). Here, of
course, the only damage if any is taking a couple of hours of time from each of
three deponents which falls far short of being any significant harm.
3. Here, the Case Management Order, provided a discovery cut-off date
of October 31, 2012. Prior to that date, Appellee exhausted all of its available
discovery by deposing all subordinates involved in the issue at hand in the lawsuit,
which included: Shane Lewis, Glenn Elmer, Bill Dubose, Mark Merry, Christina
B. Smith and Paul Whitfield. In addition, Appellee requested and obtained all
relevant documentation from DFS.1
4. To make sure that DFS received a full opportunity to present
information without the need for depositions of the three remaining witnesses
l The issue before the Court and the relevance of discovery is well set out in the2
seen the parties first hand and is more fully informed regarding the case. Sugerm ill
Woods Civic Ass 'n, Inc. v. Southern States Utilities, 687 So. 2d 1346 (Fla. 1 DCA
1997). A trial court thus possesses broad discretion in granting or refusing
discovery motions, determining the scope of discovery and protecting parties
against abuse of discovery procedures which will only be overturned where the
trial court abuses its discretion. National Security Fire & Casualty Co. v. Dune,
751 So. 2d 777 (Fla. 51h DCA 2000). Indeed, it has been stated that a trial judge's
discovery rulings should be overturned only if the rulings would cause irreparable
damage. Thomson v. Deane, 703 So. 2d 1251 (Fla. 51 DCA 1997). Here, of
course, the only damage if any is taking a couple of hours of time from each of
three deponents which falls far short of being any significant harm.
3. Here, the Case Management Order, provided a discovery cut-off date
of October 31, 2012. Prior to that date, Appellee exhausted all of its available
discovery by deposing all subordinates involved in the issue at hand in the lawsuit,
which included: Shane Lewis, Glenn Elmer, Bill Dubose, Mark Merry, Christina
B. Smith and Paul Whitfield. In addition, Appellee requested and obtained all
relevant documentation from DFS. 1
4. To make sure that DFS received a full opportunity to present
information without the need for depositions of the three remaining witnesses
l The issue before the Court and the relevance of discovery is well set out in the 2
(Robert C. "Bud" Kneip, Jeff Atwater, Chief Financial Officer and Richard T.
Donelan, Jr., Bsq.), Appellee also issued its Notice of Deposition pursuant to Fla.
R. Civ. P. 1.310(B)(6). In that Notice, Appellee identified numerous relevant areas
of inquiry. In response, DFS tendered no additional witnesses aside from those
already deposed.
5. At no time has DFS suggested that other employees besides Mr.
Atwater, Mr. Kneip and Mr. Donelan could speak for or answer questions
appropriate for those witnesses. It has never been suggested that decision-making
occurred only at the lower level and that these three individuals had no personal
involvement.
6. Without the benefit of a stay from either the trial court or this Court,
DFS refused to produce Mr. Kneip. Although Mr. Donelan was produced, the
Department refused to allow him to be placed under oath or answer any questions.
Bach of these actions was taken without stays and was contemptuous of the process
at hand.
7. On November 27, 2012, Judge Francis conducted an additional
hearing on the question of whether Mr. Atwater should be deposed. At that
hearing the Judge ruled that Mr. Atwater was personally involved in the decisions
hearing transcript, beginning at p. 31, in the Appendix to the Petition.3
(Robert C. "Bud" Kneip, Jeff Atwater, Chief Financial Officer and Richard T.
Donelan, Jr., Bsq.), Appellee also issued its Notice of Deposition pursuant to Fla.
R. Civ. P. 1.31 0(B)(6). In that Notice, Appellee identified numerous relevant areas
of inquiry. In response, DFS tendered no additional witnesses aside from those
already deposed.
5. At no time has DFS suggested that other employees besides Mr.
Atwater, Mr. Kneip and Mr. Donelan could speak for or answer questions
appropriate for those witnesses. It has never been suggested that decision-making
occurred only at the lower level and that these three individuals had no personal
involvement.
6. Without the benefit of a stay from either the trial court or this Court,
DFS refused to produce Mr. Kneip. Although Mr. Donelan was produced, the
Department refused to allow him to be placed under oath or answer any questions.
Bach of these actions was taken without stays and was contemptuous of the process
at hand.
7. On November 27, 2012, Judge Francis conducted an additional
hearing on the question of whether Mr. Atwater should be deposed. At that
hearing the Judge ruled that Mr. Atwater was personally involved in the decisions
hearing transcript, beginning at p. 31, in the Appendix to the Petition. 3
which led up to the dispute at the heart of this case and ordered that Mr. Atwater be
deposed. A stay was granted only through November 30, 2012.2
8. At the same hearing the Judge was advised that Mr. Kneip failed to
appear for his deposition even though no stay had been received from either the
appellate court or the circuit court. The Judge reiterated his earlier ruling and also
made clear that the December 17 trial date must be respected. The Judge said he
would make himself available on short notice and expected the depositions to go
forward. The Judge reminded counsel for DFS that Mr. Kneip had written a letter
on January 17, 2012 (the last Exhibit of the Appendix to the Petition for Writ of
Cerciorari) in which Mr. Kneip said:
"Typically this matter would be handled at a different levelwithin the organization, but the egregious nature of thisresubmittal compels me to bring this to your attention. I amcertain that neither you nor the secretary would condone thisbehavior and I look forward to your resolution of the immediatematter of this invoice. It is my sincere hope that the Court willsoon come to a decision on the larger question of statutoryinterpretation to provide closure for all the parties involved. Inthe meantime payment for this invoice is once again rejected."
In other words, Mr. Kneip was personally involved as a fact witness in evaluating
the issues which are the core of this case. Judge Francis stated that it was this
personal involvement which clearly distinguishes this case from the cases cited by
DFS, all of which involve agency heads who were able to tender lower ranking
A transcript is attached.4
which led up to the dispute at the heart of this case and ordered that Mr. Atwater be
deposed. A stay was granted only through November 30, 2012 . 2
8. At the same hearing the Judge was advised that Mr. Kneip failed to
appear for his deposition even though no stay had been received from either the
appellate court or the circuit court. The Judge reiterated his earlier ruling and also
made clear that the December 17 trial date must be respected. The Judge said he
would make himself available on short notice and expected the depositions to go
forward. The Judge reminded counsel for DFS that Mr. Kneip had written a letter
on January 17, 2012 (the last Exhibit of the Appendix to the Petition for Writ of
Cerciorari) in which Mr. Kneip said:
"Typically this matter would be handled at a different level within the organization, but the egregious nature of this resubmittal compels me to bring this to your attention. I am certain that neither you nor the secretary would condone this behavior and I look forward to your resolution of the immediate matter of this invoice. It is my sincere hope that the Court will soon come to a decision on the larger question of statutory interpretation to provide closure for all the parties involved. In the meantime payment for this invoice is once again rejected."
In other words, Mr. Kneip was personally involved as a fact witness in evaluating
the issues which are the core of this case. Judge Francis stated that it was this
personal involvement which clearly distinguishes this case from the cases cited by
DFS, all of which involve agency heads who were able to tender lower ranking
A transcript is attached. 4
personnel who had more detailed knowledge. For example, in Home v. School
Board of Miami-Dade County, 901 So. 2d 238 (Fla. 1 DCA 2005), the agency
head was able to swear that he had no personal knowledge of the facts giving to
rise to the respondent's claims and that any information known by him was also
known by his former staff members. Where the deposing party can certify that the
higher ranking persons testimony is necessary and relevant to the matter before the
Court and that the information is not equally available from a lesser ranking
government official then the depositions should be allowed. The Department of
Agriculture and Consumer Services v. Broward County, 810 So. 2d 1056, 1058
(Fla. 1 DCA 2002).
9. The testimony of lower ranking staff members described the decision
which is the subject of this case as a "plaza level" decision meaning one that
occurred at the plaza level of the State Capitol Building where the CFO and the
CFO's Chief of Staff maintain their offices. The lower ranking members operate
out of other state office buildings away from the Capitol.
10. The undisputed testimony to date, is that immediately upon assuming
office in January 2011, Jeff Atwater as CFO convened a meeting to discuss the
specific issue that is the subject of this case. Attending that meeting were Mr.
Kneip and Mr. Donelan, among others. Shortly thereafter, Mr. Kneip sent his
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personnel who had more detailed knowledge. For example, in Home v. School
Board of Miami-Dade County ) 901 So. 2d 238 (Fla. 1 DCA 2005), the agency
head was able to swear that he had no personal knowledge of the facts giving to
rise to the respondent's claims and that any information known by him was also
known by his former staff members. Where the deposing party can certify that the
higher ranldng persons testimony is necessary and relevant to the matter before the
Court and that the information is not equally available from a lesser ranking
government official then the depositions should be allowed. The Department of
Agriculture and Consumer Services v. Broward County ) 810 So. 2d 1056, 1058
(Fla. 1st DCA 2002).
9. The testimony of lower ranking staff members described the decision
which is the subject of this case as a "plaza level" decision meaning one that
occurred at the plaza level of the State Capitol Building where the CFO and the
CFO's Chief of Staff maintain their offices. The lower ranking members operate
out of other state office buildings away from the Capitol.
10. The undisputed testimony to date, is that immediately upon assuming
office in January 2011, Jeff Atwater as CFO convened a meeting to discuss the
specific issue that is the subject of this case. Attending that meeting were Mr.
Kneip and Mr. Donelan, among others. Shortly thereafter, Mr. Kneip sent his
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letter of January 17, 2012 in which he stated that while this matter would normally
be handled at a different level, that he himself had gotten involved.
11. Also after that meeting, Mr. Atwater called in a newspaper reporter
and gave a statement to the press with factual inaccuracies. For example, Mr.
Atwater's interview says that this particular purchase of historical framed
photographs was prohibited by the Art In Public Buildings Statute. In fact, the Art
In Public Buildings Statute has utterly no application to the expenditures at issue, a
fact well known to Mr. Donelan and others before Mr. Atwater's interview.
12. Shortly after the January meeting and the press interview, DFS
changed its position arid abandoned the Art In Public Buildings Statute and instead
cited to a rule that purports to prohibit payment for "decorative items." DFS'
Bureau of Auditing and other staff members now concede that the decorative items
rule has no application to architectural items. (It is apparent from the context of
the rule that it is for decorative items placed on a government employee's desk
such as plants, picture frames for family photos and the like. No one can ever
recall the decorative items rule being applied to architectural decorations and
obviously government buildings have wallpaper, carpeting, wood paneling and
other architecturally decorative items.)
13. Given the limited time to meet the trial schedule, this Court should
balance the harm of letting the depositions go forward, which is negligible, against
letter of January 17, 2012 in which he stated that while this matter would normally
be handled at a different level, that he himself had gotten involved.
11. Also after that meeting, Mr. Atwater called in a newspaper reporter
and gave a statement to the press with factual inaccuracies. For example, Mr.
Atwater's interview says that this particular purchase of historical framed
photographs was prohibited by the Art In Public Buildings Statute. In fact, the Art
In Public Buildings Statute has utterly no application to the expenditures at issue, a
fact well known to Mr. Donelan and others before Mr. Atwater's interview.
12. Shortly after the January meeting and the press interview, DFS
changed its position and abandoned the Art In Public Buildings Statute and instead
cited to a rule that purports to prohibit payment for "decorative items." DFS'
Bureau of Auditing and other staff members now concede that the decorative items
rule has no application to architectural items. (It is apparent from the context of
the rule that it is for decorative items placed on a government employee's desk
such as plants, picture frames for family photos and the like. No one can ever
recall the decorative items rule being applied to architectural decorations and
obviously government buildings have wallpaper, carpeting, wood paneling and
other architecturally decorative items.)
13. Given the limited time to meet the trial schedule, this Court should
balance the harm of letting the depositions go forward, which is negligible, against
the harm of overruling the trial judge who is most familiar with the relevance of
this evidence. By simply letting the deposition go forward as ordered by the trial
court, justice is served as the case is kept on its appropriate trial schedule and a
person who by his own written admission had personally involved himself in
this decision can explain the process he went through and the assumptions he made
at the time of this decision making process.
14. The cases which protect high-ranking officials from being compelled
to testify are based on the concept that there should be an efficient operation of
government agencies unless the agency had a senior official uniquely able to
provide relevant information which cannot be obtained from other sources, then it
is best to rely on lower ranking personnel who are tendered with a representation
that the lower ranking personnel are reasonable substitutes. See, e.g. Department
of Agricultural and Consumer Services v. Broward County, 810 So. 2d 1056 (Fla.
13t DCA 2002) (Agricultural Commissioner, Charles Bronson, tendered a Deputy
Commissioner as a reasonable substitute). Here, neither Mr. Kneip, Mr. Atwater
nor Mr. Donelan have tendered anyone as reasonable substitutes because they were
the ones on the "plaza level" who personally involved themselves in the decision
making process at issue.
15. In Mr. Atwater's case, his letter says that he personally will review all
invoices and make all decisions and he personally went to the newspaper reporter
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the harm of overruling the trial judge who is most familiar with the relevance of
this evidence. By simply letting the deposition go forward as ordered by the trial
court, justice is served as the case is kept on its appropriate trial schedule and a
person who - by his own written admission - had personally involved himself in
this decision can explain the process he went through and the assumptions he made
at the time of this decision making process.
14. The cases which protect high-ranking officials from being compelled
to testify are based on the concept that there should be an efficient operation of
government agencies unless the agency had a senior official uniquely able to
provide relevant information which cannot be obtained from other sources, then it
is best to rely on lower ranking personnel who are tendered with a representation
that the lower ranking personnel are reasonable substitutes. See, e.g. Department
of Agricultural and Consumer Services v. Broward County, 810 So. 2d 1056 (Fla.
1 " DCA 2002) (Agricultural Commissioner, Charles Bronson, tendered a Deputy
Commissioner as a reasonable substitute). Here, neither Mr. Kneip, Mr. Atwater
nor Mr. Donelan have tendered anyone as reasonable substitutes because they were
the ones on the "plaza level" who personally involved themselves in the decision
making process at issue.
15. In Mr. Atwater's case, his letter days that he personally will review all
invoices and make all decisions and he personally went to the newspaper reporter
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to discuss the project. He has also spent considerable energy in the litigation
asserting that as a constitutional officer only he as CFO makes these decisions,
obviously with consultation with people such as his Chief of Staff Mr. Kneip and
his attorney, Mr. Donelan.
16. Given all the time these gentlemen have devoted to this specific issue,
there is no need to be concerned about the efficient operation of the agency by
deposing officials who have no personal knowledge of what happened. Here, these
senior parties claimed control of the decision making process from lower ranked
staff and in fact, made decisions, issued letters, took positions and managed the
process.
17. Under these circumstances and given the exceedingly small harm
associated with allowing the depositions to go forward compared to the significant
harm in delaying these proceedings, the Motion for Emergency Stay should be
denied. The depositions should be allowed to proceed during the week of
December 3, 2012 as set by the trial court and the appeal rendered moot,
Dated this 30th day of November, 2012.
Respectfully submitted,
/5/ Robert H. BuesingROBERT H. BUBSINGFlorida Bar No. 236535rbuesing(2itrenam.comGREGG E. HIJTTFlorida Bar No. 0010435
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to discuss the project. He has also spent considerable energy in the litigation
asserting that as a constitutional officer only he as CFO makes these decisions,
obviously with consultation with people such as his Chief of Staff Mr. Kneip and
his attorney, Mr. Donelan.
16. Given all the time these gentlemen have devoted to this specific issue,
there is no need to be concerned about the efficient operation of the agency by
deposing officials who have no personal knowledge of what happened. Here, these
senior parties claimed control of the decision making process from lower ranked
staff and in fact, made decisions, issued letters, took positions and managed the
process.
17. Under these circumstances and given the exceedingly small harm
associated with allowing the depositions to go forward compared to the significant
harm in delaying these proceedings, the Motion for Emergency Stay should be
denied. The depositions should be allowed to proceed during the week of
December 3, 2012 as set by the trial court and the appeal rendered moot.
Dated this 30th day of November, 2012.
Respectfully submitted,
Is! Robert H. Buesing ROBERT H. BUBSING Florida Bar No. 236535 rbuesing(2itrenam.com GREGG E. HUTT Florida Bar No. 0010435
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ghuft(,trenarn. cornTRENAM, KEMKER101 East Kennedy Boulevard Suite 2700Post Office Box 1102Tampa, Florida 33601-1102(813) 223-7474Attorneys for Appellee
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Response to Emergency Motion for
Stay has been furnished by U.S. and Electronic Mail to Thomas J. Maida, Bsq.
(TMaidaFo1ey.com) ([email protected]), ([email protected]) Foley & Lardner LLP, 106
East College Ave., Suite 900, Tallahassee, FL 32301-7732, Clifford A. Taylor, Bsq.
([email protected]) ([email protected] ), Office of
General Counsel, Department of Management Services, 5060 Esplanade Way, Suite 1 60D,
Tallahassee, FL 32399-0950 and Michael Davidson, Esq.,
([email protected]) and Richard T. Donelan, Jr., Esq.
(Richard.Donelanmyfloridacfo.com), State of Florida, Department of Financial Services, 200
East Gaines Street, Tallahassee, FL 32399 this 30th day of November, 2012.
Is! Robert H. BuesingAttorney
7109307v1
ghuft(,trenam. corn TRENAM, KEMKER 101 East Kennedy Boulevard, Suite 2700 Post Office Box 1102 Tampa,Florida 33601-1102 (813) 223-7474 Attorneys for Appellee
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Response to Emergency Motion for
Stay has been furnished by U.S. and Electronic Mail to Thomas J. Maida, Esq.
(TMaida(Fo1ey.com) ([email protected]), ([email protected]) Foley & Lardner LLP, 106
East College Ave., Suite 900, Tallahassee, FL 32301-7732, Clifford A. Taylor, Esq.
([email protected]) ([email protected] ), Office of
General Counsel, Department of Management Services, 5060 Esplanade Way, Suite 1 60D,
Tallahassee, FL 323 99-0950 and Michael Davidson, Esq,,
([email protected]) and Richard T. Donelan, Jr., Esq.
(Richard.Donelan(myfloridacfo.com), State of Florida, Department of Financial Services, 200
East Gaines Street, Tallahassee, FL 32399 this 30th day of November, 2012.
Is! Robert H. Buesing Attorney
'ii
7109307v1
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IN THE CIRCUIT COURT OF THESECOND JUDICIAL CIRCUIT, INAND FOR LEON COUNTY, FLORIDA
CASE NO. 2011 CA 1706
SIGNATURE ART GALLERY,. INC.,
Plaintiff,vs.STATE OF FLORIDA, DEPARTMENT OF FINANCIALSERVICES, and DEPARTMENT OF M2NAGEMENTSERVICES, and PETER R. BROWN CONSTRUCTION,INC., and JEFF ATWATER in his capacity asCHIEF FINANCIAL OFFICER OF THE STATE OFFLORIDA,
Defendants,
PETER R. BROWN CONSTRUCTION, INC.,Cross-Plaintiff,
vs.STATE OF FLORIDA, DEPARTMENT OF MANAGEMENTSERVICES,
Cross-Defendant/
PROCEEDINGS: MOTION HEARING
BEFORE: JUDGE CHARLES A. FRANCIS
DATE: NOVEMBER 27, 2012
TIME: COMMENCED: 3:45 P.M.
LOCATION: LEON COUNTY COURTHOUSECOURTROOM 3CTALLAHASSEE, FL
REPORTED BY: DANA W. REEVESCourt Reporter andNotary Public in and forState of Florida at Large
PREMIER REPORTING114 W. 5TH AVENUE
TALLAHASSEE, FLORIDA(850) 894-0828
PPVMTP.P RRPflRTT1Ji
(850) 894-0828premier-reporting. com
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IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA
CASE NO. 2011 CA 1706
SIGNATURE ART GALLERY,. INC.,
Plaintiff, vs. STATE OF FLORIDA, DEPARTMENT OF FINANCIAL SERVICES, and DEPARTMENT OF M2NAGEMENT SERVICES, and PETER R. BROWN CONSTRUCTION, INC., and JEFF ATWATER in his capacity as CHIEF FINANCIAL OFFICER OF THE STATE OF FLORIDA,
Defendants,
PETER R. BROWN CONSTRUCTION, INC., Cross-Plaintiff,
vs. STATE OF FLORIDA, DEPARTMENT OF MANAGEMENT SERVICES,
Cross-Defendant /
PROCEEDINGS: MOTION HEARING
BEFORE: JUDGE CHARLES A. FRANCIS
DATE: NOVEMBER 27, 2012
TIME: COMMENCED: 3:45 P.M.
LOCATION: LEON COUNTY COURTHOUSE COURTROOM 3C TALLAHASSEE, FL
REPORTED BY: DANA W. REEVES Court Reporter and Notary Public in and for State of Florida at Large
PREMIER REPORTING 114 W. 5TH AVENUE
TALLAHASSEE, FLORIDA (850) 894-0828
PPVMTP.P RRP0RTT1Ji
(850) 894-0828 premier-reporting. corn
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APPEARANCES:
REPRESENTING THE PLAINTIFF:
THOMAS J. MAIDA, ESQ.FOLEY & LARDNER106 E. COLLEGE AVENUESUITE 900TALLAHASSEE, FL 32301
REPRESENTING THE DEFENDANT/CROSS-PLAINTIFF,PETER BROWN CONSTRUCTION, INC.:
ROBERT H. BUESING, ESO.TRENAM KEMKER101 E. KENNEDY BLVD.SUITE 2700TAMPA, FL 33601
PEPRESENTING THE DEFENDANT:
MICHAEL DAVIDSON, ESQ.200 E. GAINES STREET612 LARSON BUILDINGTALLAHASSEE, FL 32399
(850) 894-0828premier-reporting. corn
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APPEARANCES:
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REPRESENTING THE PLAINTIFF:
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THOMAS J. MAIDA, ESQ. FOLEY & LARDNER
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106 E. COLLEGE AVENUE SUITE 900
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TALLAHASSEE, FL 32301
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REPRESENTING THE DEFENDANT/CROSS-PLAINTIFF, PETER BROWN CONSTRUCTION, INC.:
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ii. ROBERT H. BUESING, ESQ. TRENAM KEMKER
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101 E. KENNEDY BLVD. SUITE 2700
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TAMPA, FL 33601
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REPRESENTING THE DEFENDANT:
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MICHAEL DAVIDSON, ESQ. 200 E. GAINES STREET
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612 LARSON BUILDING TALLAHASSEE, FL 32399
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PROCEEDINGSTHE COURT: Okay. We're here on the Motion
for Protective Order to quash the subpoena for the
CF notice of deposition I'm sorry for the
Chief Financial Officer, is that correct?
MR. DAVIDSON: That's correct, Your Honor.
THE COURT: All right. I've read you motion
carefully, so since we don't have a whole lot of
time, let's concentrate on this. The last time we
had the same issues. Last time I granted the
protective order without a hearing, I think, on
MR. BUESING: No, Judge Cooper.
THE COURT: I did it without a hearing, if I
remember correctly.
MR. DAVIDSON: Your Honor, we did have a
hearing.
MR. BUESING: We had a hearing.
THE COURT: We had the hearing on that. rid I
think I gave y'all leave without prejudice. I
believe it was denied with leave if you meet the
standards of the case law that are applicable
that you could then do it again. So that's where
we are here. I'm going to go ahead and go right to
the people wanting to take the deposition. I think
it's cross-notice, is that correct?PRFMT PW.PORrPTN(
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PROCEEDINGS
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THE COURT: Okay. We're here on the Motion
3
for Protective Order to quash the subpoena for the
4
CF -- notice of deposition -- I'm sorry -- for the
5
Chief Financial Officer, is that correct?
6
MR. DAVIDSON: That's correct, Your Honor.
7
THE COURT: All right. I've read you motion
8
carefully, so since we don't have a whole lot of
9
time, let's concentrate on this. The last time we
10
had the same issues. Last time I granted the
protective order without a hearing, I think, on --
12
MR. BUESING: No, Judge Cooper.
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THE COURT: I did it without a hearing, if I
14
remember correctly.
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MR. DAVIDSON: Your Honor, we did have a
16
hearing.
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MR. BUESING: We had a hearing.
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THE COURT: We had the hearing on that. And I
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think I gave y'all leave without prejudice. I
20
believe it was denied with leave if you meet the
21
standards of the case law that are applicable --
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that you could then do it again. So that's where
23
we are here. I'm going to go ahead and go right to
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the people wanting to take the deposition. I think
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it's cross-notice, is that correct? PREMTER PW.PORrPTN(
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MR. BtJESING: That's right, Your Honor.
THE COURT: Okay. Tell me what it is that
wasn't discovered in all of the depos and all of
the pleadings and all of the memos and all of the
hearing the two days of hearings and all the
other things we've had that the CFO would have
personally that has not been discoverable by those
procedures. I think that is the test we have to go
through.
MR. BtJESING: Yes, thank you, Your Honor.
Robert Buesing representing Peter R. Brown
Construction, Inc.
Your recollection is correct. On October
19th, we had a hearing and the at the hearing, I
sought to demonstrate to the Court Mr. Atwater's
personal knowledge and involvement. And I just
want to refresh you on a couple of those points.
went through a series of letters, newspaper
articles, statements that have been made, and Mr.
Atwater's own over his own signature. For example,
the day after he arrived, he said he was going to
personally review all invoices himself and make
those decisions. He wrote another letter in March
to Senator Haridopolos where he said, you know,
unfortunately, I have to approve any payment unlessPREMIER REPORTING(850) 894-0828
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MR. BtJESING: That's right, Your Honor.
THE COURT: Okay. Tell me what it is that
wasn't discovered in all of the depos and all of
the pleadings and all of the memos and all of the
hearing -- the two days of hearings and all the
other things we've had that the CFO would have
personally that has not been discoverable by those
procedures. I think that is the test we have to go
through.
MR. BtJESING: Yes, thank you, Your Honor.
Robert Buesing representing Peter R. Brown
Construction, Inc.
Your recollection is correct. On October
19th, we had a hearing and the -- at the hearing, I
sought to demonstrate to the Court Mr. Atwater's
personal knowledge and involvement. And I just
want to refresh you on a couple of those points.
went through a series of letters, newspaper
articles, statements that have been made, and Mr.
Atwater's own over his own signature. For example,
the day after he arrived, he said he was going to
personally review all invoices himself and make
those decisions. He wrote another letter in March
to Senator Haridopolos where he said, you know,
unfortunately, I have to approve any payment unless PREMIER REPORNG
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it's expressly prohibited by law, even if I
disagree and so on. So there was a lot of personal
knowledge.
And I also want to remind the Court that there
was a lot of history here on this specific issue.
Having started in an August 11th newspaper article
in which the courthouse was described as a Taj
Mahal courthouse. There was a lot of history in
the campaign that Mr. Atwater had running for this
office, where he was falsely accused of being
personally responsible for this somehow. And then
immediately after he assumed the office, his first
official action, according to the depositions, is
he has this group to talk about this specific
project. And on the second day, after he's sworn
in, he brings in the newspaper reporter to describe
this as the most outrageous project ever, it's
worse than I thought. He goes through a long
description of this project. So I think I did a
good job of showing through documentary evidence
that Mr. Atwater personally involved himself. He
personally said, I'm the person who's going to
review these invoices. I'm going to make the
decision. And he personally has an issue and,
(850) 894-0828premier-reporting. com
55
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it's expressly prohibited by law, even if I
2
disagree and so on. So there was a lot of personal
3
knowledge.
4
And I also want to remind the Court that there
5
was a lot of history here on this specific issue.
6
Having started in an August 11th newspaper article
7
in which the courthouse was described as a Taj
8
Mahal courthouse. There was a lot of history in
9
the campaign that Mr. Atwater had running for this
10
office, where he was falsely accused of being
11
personally responsible for this somehow. And then
12
immediately after he assumed the office, his first
13
official action, according to the depositions, is
14
he has this group to talk about this specific
15
project. And on the second day, after he's sworn
16
in, he brings in the newspaper reporter to describe
17
this as the most outrageous project ever, it's
18
worse than I thought. He goes through a long
19
description of this project. So I think I did a
20 good job of showing through documentary evidence
21
that Mr. Atwater personally involved himself. He
22
personally said, I'm the person who's going to
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review these invoices. I'm going to make the
24
decision. And he personally has an issue and,
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THE COURT: Well, that's where I'm going. Let
me ask you this, letTs assume you could show he has
a bias position towards this.
MR. BUESING: Yes, sir.
THE COURT: Where does that take what case
law do you have to tell me that does something?
Because our issue is still whether it's a fixture
and whether it's an appropriation, is it not? I
mean, that's our issue here today.
MR. BUESING: No, the bias is always relevant.
That's we're under the court of Supreme Court
law, bias is always relevant. And recall that what
youTve got to face at the trial in December is DFS
is going to come in through their employees who
know perfectly well what the boss wants. They're
going to come in through their employees and
they're going present themselves as having done a
careful, independent, impartial analysis, which
caused them to pay for 99 percent of everything in
this building, but this one item was plucked out as
part of this impartial process.
What I'm seeking to show is that that was not
an impartial process. That was a very biased
process, that everybody knew exactly what the boss
wanted and the boss was deeply and personallyPREMIER PORT[N(850) 894-0828
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THE COURT: Well, that's where I'm going. Let
2
me ask you this, let's assume you could show he has
3
a bias position towards this.
4
MR. BUESING: Yes, sir.
5
THE COURT: Where does that take -- what case
6
law do you have to tell me that does something?
7
Because our issue is still whether it's a fixture
8
and whether it's an appropriation, is it not? I
9
mean, that's our issue here today.
10
MR. BUESING: No, the bias is always relevant.
11
That's -- we're under the court of -- Supreme Court
12
law, bias is always relevant. And recall that what
13
you've got to face at the trial in December is DFS
14
is going to come in through their employees who
15
know perfectly well what the boss wants. They're
16
going to come in through their employees and
17
they're going present themselves as having done a
18
careful, independent, impartial analysis, which
19
caused them to pay for 99 percent of everything in
20
this building, but this one item was plucked out as
21
part of this impartial process.
22
What I'm seeking to show is that that was not
23
an impartial process. That was a very biased
24
process, that everybody knew exactly what the boss
25
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involved in all of that. Now, here1s what I get
after the hearing on October 19th. I deposed Shane
Lewis. He's on some of the documents. He's, like,
down six layers. I deposed Glenn Elmer. He's
down, like, five layers. Didn't know much. This
is all plaza level stuff. And that's a phrase the
witnesses use to describe the senior people in the
Department at the plaza level to make these
decisions, referring to the Capitol. Then I
deposed the boss, Christine Smith, of those people
who runs the Bureau of Auditing. She denied having
any real discussions with Mr. Atwater at all.
She's not in the plaza level. She, again, says,
that's plaza level stuff. I deposed Bill DuBois.
Bill DuBois helped with the audit. Bill DuBois was
involved one of the things that happened here
and Mr. Donelan I'm going to get to him in a
second. But one of the reactions of the DFS was to
propose new legislation, which I'm going to argue
in December. That sort of confirms that the
current law allowed for payment, which is why they
were proposing new legislation. You wouldn't need
it if the current law didn't provide for payment.
But so Bill DuBois could not speak to the very
senior people. On the senior level, I the onlyPPPMTRR PI.PflRTTK1(
(850) 894-0828premier-reporting. com
77
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involved in all of that. Now, here's what I get
2
after the hearing on October 19th. I deposed Shane
3
Lewis. He's on some of the documents. He's, like,
4
down six layers. I deposed Glenn Elmer. He's
5
down, like, five layers. Didn't know much. This
6
is all plaza level stuff. And that's a phrase the
7
witnesses use to describe the senior people in the
8
Department at the plaza level to make these
9
decisions, referring to the Capitol. Then I
10
deposed the boss, Christine Smith, of those people
11
who runs the Bureau of Auditing. She denied having
12
any real discussions with Mr. Atwater at all.
13
She's not in the plaza level. She, again, says,
14
that's plaza level stuff. I deposed Bill DuBois.
15
Bill DuBois helped with the audit. Bill DuBois was
16
involved -- one of the things that happened here
17
and Mr. Donelan -- I'm going to get to him in a
18
second. But one of the reactions of the DFS was to
19
propose new legislation, which I'm going to argue
20
in December. That sort of confirms that the
21
current law allowed for payment, which is why they
22
were proposing new legislation. You wouldn't need
23
it if the current law didn't provide for payment.
24
But -- so Bill DuBois could not speak to the very
25
senior people. On the senior level, I -- the only PPPMTRR PI.PflRT1K1(
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person I was successful in being able to depose was
a man named Paul Whitfield who worked at the plaza
level with Mr. Kneip who's the Chief of Staff and
Mr. Atwater. Mr. Whitfield is not able to describe
Mr. Atwater1s thinking process, Mr. Atwater's
decision making process. So Mr. Whitfield also
doesn't really he wasn't involved in everything
Mr. Atwater was doing. He happened to be present
at that meeting that took place on the day he was
sworn in, but he, you know, he's not the person who
was managing this process.
So I deposed all those people. I've not been
able to get any answers on Mr. Atwater1s thinking
process. Mr. Atwater's review personal review
of the bill, which is what he said he did. Mr.
Atwater's letters that he sent. Mr. Atwater1s
experience going through political campaign when
this became the number one issue in the campaign
and how that has affected him going forward.
Now, I did some other deposition notices.
did a 1.310(b) (6) notice of the Department. And I
listed category after category. If I haven't named
the person already, who's the best person to answer
these questions? I'm inviting them to propose
people to me if they think 11m missing somebody.PRMTRT RPflPTTM((850) 894-0828
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person I was successful in being able to depose was
a man named Paul Whitfield who worked at the plaza
level with Mr. Kneip who's the Chief of Staff and
Mr. Atwater. Mr. Whitfield is not able to describe
Mr. Atwater's thinking process, Mr. Atwater's
decision making process. So Mr. Whitfield also
doesn't really -- he wasn't involved in everything
Mr. Atwater was doing. He happened to be present
at that meeting that took place on the day he was
sworn in, but he, you know, he's not the person who
was managing this process.
So I deposed all those people. I've not been
able to get any answers on Mr. Atwater's thinking
process. Mr. Atwater's review -- personal review
of the bill, which is what he said he did. Mr.
Atwater's letters that he sent. Mr. Atwater's
experience going through political campaign when
this became the number one issue in the campaign
and how that has affected him going forward.
Now, I did some other deposition notices.
did a 1.310(b) (6) notice of the Department. And I
listed category after category. If I haven't named
the person already, who's the best person to answer
these questions? I'm inviting them to propose
people to me if they think I'm missing somebody. PRMTRT RPflPTTM(
(850) 894-0828 premier-reporting. corn
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Mr. Davidson responded by email. It said, there is
nobody else, besides the people you've already
deposed, who can shed any more light on those
topics.
Now, one of the topics was Mr. Atwater's
election campaign. He said, nobody at the
Department can spoke well, even I know that
Mr. Atwater's personal thoughts. He said, nobody
can do that. A lot of these cases, by the way --
the way the senior person avoids being deposed is
he proposes somebody else and says, here's the
person who really did it, they can answer all your
questions. At no point in this process has Mr.
Davidson said, oh, don't worry, Mr. somebody else
can answer those questions. He's never purported
to say that.
Now, there's two other depositions I attempted
to take and I was unable to take. I attempted to
take Robert Blunt and Kneip. They moved for
protective order. You denied that motion. They
refused to produce them. They filed something with
the First DCA and it's still pending. Okay. Then
I noticed Mr. Richard Donelan, Junior, who is an
attorney. However, the documents that we received
from the Department are loaded with Mr. DonelanPRPMT1R RP.PORTTN1
(850) 894-0828premier-reporting. com
1
Mr. Davidson responded by email. It said, there is
2
nobody else, besides the people you've already
3
deposed, who can shed any more light on those
4
topics.
5
Now, one of the topics was Mr. Atwater's
6
election campaign. He said, nobody at the
7
Department can spoke - well, even I know that --
8
Mr. Atwater's personal thoughts. He said, nobody
9
can do that. A lot of these cases, by the way --
10
the way the senior person avoids being deposed is
11
he proposes somebody else and says, here's the
12
person who really did it, they can answer all your
13
questions. At no point in this process has Mr.
14
Davidson said, oh, don't worry, Mr. somebody else
15
can answer those questions. He's never purported
16
to say that.
17
Now, there's two other depositions I attempted
18
to take and I was unable to take. I attempted to
19
take Robert Blunt and Kneip. They moved for
20
protective order. You denied that motion. They
21
refused to produce them. They filed something with
22
the First DCA and it's still pending. Okay. Then
23
I noticed Mr. Richard Donelan, Junior, who is an
24 attorney. However, the documents that we received
25
from the Department are loaded with Mr. Donelan PRPMT1R RP.PORTTN1
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doing things such as writing the proposed
legislation to fix this so it won't happen the next
time. Mr. Donelan is involved, not as an attorney,
not in confidential situations, but Mr. Donelan
is he's all over this issue and one reason he's
an interesting witness is he straddles both the
Sink administration and the Atwater administration,
is what looks through this issue continuously. So
they brought Mr. Donelan to the deposition, would
not allow us to swear him, would not allow him even
to state his name, and I put on the record all the
different questions I was going to ask him, the
different documents I had that showed his
involvement and they refused to allow him to be
deposed. I filed a motion for sanctions and a
motion to compel, which is, I guess, not formally
set for today, but I just want Your Honor to know
that that piece is sitting there.
So, I tried. I tried to with Bud Kneip who is
plaza level. They refused. It's up on the First
DCA. I tried with Richard Donelan. He came over,
he wouldn't even allow us to put him under oath and
say a word. I tried with the 30(b) (6) style
motion. Give me somebody else. They had nobody
else to give me. And I've already established atPRIMTRR PPRPT1(850) 894-0828
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1010
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doing things such as writing the proposed
2
legislation to fix this so it won't happen the next
3
time. Mr. Donelan is involved, not as an attorney,
4
not in confidential situations, but Mr. Donelan
5
is -- he's all over this issue and one reason he's
6
an interesting witness is he straddles both the
7
Sink administration and the Atwater administration,
8
is what looks through this issue continuously. So
9
they brought Mr. Dorielan to the deposition, would
10
not allow us to swear him, would not allow him even
11
to state his name, and I put on the record all the
12
different questions I was going to ask him, the
13
different documents I had that showed his
14
involvement and they refused to allow him to be
15
deposed. I filed a motion for sanctions and a
16
motion to compel, which is, I guess, not formally
17
set for today, but I just want Your Honor to know
18
that that piece is sitting there.
19
So, I tried. I tried to with Bud Kneip who is
20
plaza level. They refused. It's up on the First
21
DCA. I tried with Richard Donelan. He came over,
22
he wouldn't even allow us to put him under oath and
23
say a word. I tried with the 30(b) (6) style
24
motion. Give me somebody else. They had nobody
25
else to give me. And I've already established at PRIMTRR PPRPT1
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the last hearing, by carefully going through all
those letters and all the statements of Mr.
Atwater, that this is one of those cases that fits
squarely in the testimony elicited is necessary and
relevant and unavailable from a lesser ranking
officer.
I also want to remind the Court that we've
been going around and around with Mr. Davidson on
whether DFS and the CFO, Mr. Atwater, are one in
the same for this purposes of this case. And
they have spent a lot of time saying Mr. Atwater is
somehow different, he's a constitutional officer,
he's a different entity, he's got to be named as a
separate party. Well, that's fine. We all said,
okay. He's now been named as a separate party.
He's now a party in this action. He's claiming
that he's a separate entity. He's claiming that he
gets to make his own decisions. He's got himself
deeply, personally involved here. They've not
proposed anyone else who could possibly answer
these questions. I have met the legal standard.
can cite you the cases again if you want, but what
it says is, if it's established that the testimony
to be elicited is necessary and relevant and
unavailable from a lesser ranking officer. HerePRiMTFP RFPOPTTN1(850) 894-0828
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the last hearing, by carefully going through all
those letters and all the statements of Mr.
Atwater, that this is one of those cases that fits
squarely in the testimony elicited is necessary and
relevant and unavailable from a lesser ranking
officer.
I also want to remind the Court that we've
been going around and around with Mr. Davidson on
whether DFS and the CFO, Mr. Atwater, are one in
the same for this -- purposes of this case. And
they have spent a lot of time saying Mr. Atwater is
somehow different, he's a constitutional officer,
he's a different entity, he's got to be named as a
separate party. Well, that's fine. We all said,
okay. He's now been named as a separate party.
He's now a party in this action. He's claiming
that he's a separate entity. He's claiming that he
gets to make his own decisions. He's got himself
deeply, personally involved here. They've not
proposed anyone else who could possibly answer
these questions. I have met the legal standard.
can cite you the cases again if you want, but what
it says is, if it's established that the testimony
to be elicited is necessary and relevant and
unavailable from a lesser ranking officer. Here PRiMTFP RFPO77TN1
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it's necessary. Itts clearly relevant. As I said,
bias alone makes it relevant. And unavailable from
a lesser ranking officer. Theytve never even
suggested there was anybody else who could possibly
answer Mr. Atwater's thinking process, what Mr.
Atwater's going through, Mr. Atwater's supposed
this hearing that he conducted. This is all Mr.
Atwater and he's personally put himself in the
middle.
So, I'm going to ask Your Honor to deny the
motion at this time. If it helps everybody
understand where we are, I've already been advised
theytre going to immediately file an appeal to the
First DCA anyway. So it's not, like, Thursday
morning Mr. Atwater is going to show up, but at
least let's get this on record that I've now
touched the bases. You've asked me touch all those
bases. I've touched them to the very best of my
ability. And this is one of those cases that do
exist where somebody has placed themselves
personally in the middle of all this and the fact
that he's the senior ranking official does not mean
that he doesn't have to submit just the way all the
rest of us submit.
THE COURT: All right. Mr. Maida, you havePREMIER REPORTIN((850) 894-0828
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it's necessary. It's clearly relevant. As I said,
bias alone makes it relevant. And unavailable from
a lesser ranking officer. They've never even
suggested there was anybody else who could possibly
answer Mr. Atwater's thinking process, what Mr.
Atwater's going through, Mr. Atwater's supposed --
this hearing that he conducted. This is all Mr.
Atwater and he's personally put himself in the
middle.
So, I'm going to ask Your Honor to deny the
motion at this time. If it helps everybody
understand where we are, I've already been advised
they're going to immediately file an appeal to the
First DCA anyway. So it's not, like, Thursday
morning Mr. Atwater is going to show up, but at
least let's get this on record that I've now
touched the bases. You've asked me touch all those
bases. I've touched them to the very best of my
ability. And this is one of those cases that do
exist where somebody has placed themselves
personally in the middle of all this and the fact
that he's the senior ranking official does not mean
that he doesn't have to submit just the way all the
rest of us submit.
THE COURT: All right. Mr. Maida, you have PREMIER REPORTIN( (850) 894-0828
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anything further to add to that before I let Mr.
Davidson reply?
MR. MAIDA: Yeah, sure. Thank you, Your
Honor. Just very, very briefly. I think the most
important thing that I and Mr. Buesing touched
on. The thing you have to know is that for the
past five months, since July, the Department of
Financial Services has said repeatedly, and the CFO
in it's most recent pleadings in response to our
third complaint, has confirmed that he was the
person who made the decision. He is the only
person who can decide whether to pay Signature
Gallery. He's it. Who else do we go to?
Your Honor, I ask what we want to ask at
this deposition, I want to know why he made the
decision he made to deny payment. He made that
decision personally, apparently. I want to know
what factors the CFO took into consideration when
he made those decisions.
I want to ask what factors did he refuse to
consider, which are not even mentioned in the final
order he entered in the 17.05 proceeding. I'd like
to ask whether the CFO, as Mr. Davidson
represented, was the sole individual who decided
not to deny payment.PP.MTF.R RFPOPPTNG
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anything further to add to that before I let Mr.
2
Davidson reply?
3
MR. MAIDA: Yeah, sure. Thank you, Your
4
Honor. Just very, very briefly. I think the most
5
important thing that I -- and Mr. Buesing touched
6
on. The thiig you have to know is that for the
7
past five months, since July, the Department of
8
Financial Services has said repeatedly, and the CFO
9
in it's most recent pleadings in response to our
10
third complaint, has confirmed that he was the
11
person who made the decision. He is the only
12
person who can decide whether to pay Signature
13
Gallery. He's it. Who else do we go to?
14
Your Honor, I ask -- what we want to ask at
15
this deposition, I want to know why he made the
16
decision he made to deny payment. He made that
17
decision personally, apparently. I want to know
18 what factors the CFO took into consideration when
19
he made those decisions.
20
I want to ask what factors did he refuse to
21
consider, which are not even mentioned in the final
22
order he entered in the 17.05 proceeding. I'd like
23
to ask whether the CFO, as Mr. Davidson
24
represented, was the sole individual who decided
25 not to deny payment.
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I want to ask whether the CFO relied on the
advice of others. And if so, who they are.
I want to know whether the fixed capitol
outlay defense is the CFO's current only reason for
denying payment, because that switches depending on
which pleading you read.
Pd like to ask Mr. Atwater whether he's
abandoned once and for all the State the
archived state building's argument. The decorative
items were a competitive bidding process.
On at leas.t two occasions, with the 17.05
proceedings, the CEO said he would not approve
payments to Signature. I'd like to ask the CFO,
what did the CFO do to inform himself to the
underlying fact prior to making those statements?
I could go on.
But those are specific questions that I'd like
to ask and to which I think I'm entitled to an
answer, because the CFO has said through his
lawyers he's the one and only person who made those
decisions. There's no one else I can ask. So for
those reasons, in support of Peter Brown's
deposition notice, we would ask the motion for
protective order be denied.
THE COURT: Okay.PRIMTFR RPORTTNG(850) 894-0828
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I want to ask whether the CEO relied on the
2 advice of others. And if so, who they are.
3
I want to know whether the fixed capitol
4 outlay defense is the CEO's current only reason for
5
denying payment, because that switches depending on
6 which pleading you read.
7
I'd like to ask Mr. Atwater whether he's
8 abandoned once and for all the State -- the
9 archived state building's argument. The decorative
10
items were a competitive bidding process.
11
On at least two occasions, with the 17.05
12 proceedings, the CEO said he would not approve
13 payments to Signature. I'd like to ask the CFO,
14 what did the CFO do to inform himself to the
15 underlying fact prior to making those statements?
16
I could go on.
17
But those are specific questions that I'd like
18
to ask and to which I think I'm entitled to an
19 answer, because the CEO has said through his
20
lawyers he's the one and only person who made those
21
decisions. There's no one else I can ask. So for
22
those reasons, in support of Peter Brown's
23
deposition notice, we would ask the motion for
24 protective order be denied.
25
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MR. DAVIDSON: Your Honor, opposing counsel is
doing a great job of trying a case they havent
pled, okay. To be relevant, the testimony sought
to be elicited must be probative to something at
issue in the pleadings. So, let's look at the
pleadings, everybody in this courtroom seems to
have ignored around here recently.
Count I of the third amended complaint is a
count that sounds in contract. It alleges the
breach of a contract between DMS and Peter Brown.
It does not allege that the Department is a party
to that contract. Now, how in the world can the
Court award relief against the Department on the
basis of a contract to which it's not a party?
Okay. Thatts elementary contract law. You can't
do that. They didn't even allege we're a party to
the contract in question. It's a contract-based
complaint. How does anything that they're talking
about, about elections and bias and this and that
go to prove anything or disprove anything relative
to Count I, which is a contract count involving a
contract to which neither the CFO nor the
Department are a party? It's not relevant
testimony to their allegations.
Count II is a breach of an implied covenant ofPRFMT1P PJ.PflRPTN(
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MR. DAVIDSON: Your Honor, opposing counsel is
2
doing a great job of trying a case they haven't
3
pled, okay. To be relevant, the testimony sought
4
to be elicited must be probative to something at
5
issue in the pleadings. So, let's look at the
6
pleadings, everybody in this courtroom seems to
7
have ignored around here recently.
8
Count I of the third amended complaint is a
9
count that sounds in contract. It alleges the
10
breach of a contract between DMS and Peter Brown.
11
It does not allege that the Department is a party
12
to that contract. Now, how in the world can the
13
Court award relief against the Department on the
14
basis of a contract to which it's not a party?
15
Okay. That's elementary contract law. You can't
16
do that. They didn't even allege we're a party to
17
the contract in question. It's a contract-based
18
complaint. How does anything that they're talking
19
about, about elections and bias and this and that
20
go to prove anything or disprove anything relative
21
to Count I, which is a contract count involving a
22
contract to which neither the CFO nor the
23
Department are a party? It's not relevant
24
testimony to their allegations.
25
Count II is a breach of an implied covenant of PREMIER REPORTING (850) 894-0828
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good faith and fair dealing based on the same
contracts to which neither the CFO nor the
Department are a party. Moreover, Count II does
not allege that the Department or the CFO engage in
any bad faith or unfair dealing. The sole
allegation there is directed to the Department of
Management Services. They're the ones alleged to
have breached that covenant, not the Department or
the CFO. So, once again, how does testimony about
electioneering and decision making and what did you
think and what did you not think, have to do with
Count II, which alleges bad faith against DMS. How
can the CFO give any testimony that's going to bare
anything on that topic?
Count III, it's promissory estoppel. TheyTre
suing the Department for promissory estoppel. Yet,
you would look at that Count, it does not allege
anywhere that the Department made any
representation to anybody upon which they relied to
their declaration at a later time. That allegation
is made solely and directed only towards the
Department of Management Services. Once again, how
does the Department's testimony, or the CFO's
testimony, going to bear on the promissory estoppel
count when there's no allegation in that Count thatPR1MT1R PnPITKW(850) 894-0828
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good faith and fair dealing based on the same
2
contracts to which neither the CFO nor the
3
Department are a party. Moreover, Count II does
4
not allege that the Department or the CFO engage in
5
any bad faith or unfair dealing. The sole
6
allegation there is directed to the Department of
7
Management Services. They're the ones alleged to
8
have breached that covenant, not the Department or
9
the CFO. So, once again, how does testimony about
10
electioneering and decision making and what did you
11
think and what did you not think, have to do with
12
Count II, which alleges bad faith against DMS. How
can the CFO give any testimony that's going to bare
14
anything on that topic?
15
Count III, it's promissory estoppel. They're
16
suing the Department for promissory estoppel. Yet,
17
you would look at that Count, it does not allege
18
anywhere that the Department made any
19
representation to anybody upon which they relied to
20
their declaration at a later time. That allegation
21
is made solely and directed only towards the
22
Department of Management Services. Once again, how
23
does the Department's testimony, or the CFO's
24
testimony, going to bear on the promissory estoppel
25
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the Department or the CFO did anything to invoke
promissory estoppel.
Count IV is for declaratory relief.
It's declaratory they are seeking declaratory
relief on two contracts to neither of which is the
CFO or the Department a party. They're seeking
relief as a declaration of rights of response to
his obligations as to the subcontract between Peter
Brown and Signature Art in the main contract
between DMS and Peter Brown. We weren't a party to
those contracts and, in fact, Mr. Kneip and Mr.
Atwater were not even in Tallahassee by the time
both of these contracts had been executed and fully
performed. Everything that happened on all these
contracts happened before they even got to
Tallahassee. So how could they have any personal
knowledge that bears on anything that happened to
them with something that happened before that point
in time?
And again, case law is clear. You cannot
declare the rights or obligations under a contract
relative to a party who's not a party to the
contract. You can't do that. So how is anything
Mr. Kneip or I'm sorry, Mr. Atwater would have
to say about their elections, about statements theyPRFMTFR RIPORPT1W(850) 894-0828
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the Department or the CFO did anything to invoke
2 promissory estoppel.
3
Count IV is for declaratory relief.
4
It's declaratory -- they are seeking declaratory
5 relief on two contracts to neither of which is the
6
CFO or the Department a party. They're seeking
7 relief as a declaration of rights of response to
8
his obligations as to the subcontract between Peter
9
Brown and Signature Art in the main contract
10
between DMS and Peter Brown. We weren't a party to
11
those contracts and, in fact, Mr. Kneip and Mr.
12
Atwater were not even in Tallahassee by the time
13
both of these contracts had been executed and fully
14 performed. Everything that happened on all these
15 contracts happened before they even got to
16
Tallahassee. So how could they have any personal
17
knowledge that bears on anything that happened to
18
them with something that happened before that point
19
in time?
20
And again, case law is clear. You cannot
21
declare the rights or obligations under a contract
22 relative to a party who's not a party to the
23 contract. You can't do that. So how is anything
24
Mr. Kneip or -- I'm sorry, Mr. Atwater would have
25
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made to their staff afterwards, about how he made
decisions in his capacity as a constitutional
officer, how would that bear on anything that
that's in Count IV of the third amended complaint?
Then we go to Count VI, which is really Count
V1 they mis-numbered it, in mandamus. Mandamus is
strictly a matter of law. You don't even take
testimony in mandamus actions. It's strictly a
paper pleading case. You don't take testimony in
mandamus cases. It's a matter of is there
discretion or is it ministerial? All right. Is
there a clear legal right to the relief sought?
All right. All those elements that are mandamus
are all matters of law, not of fact. How could
anything Mr. Atwater have to say bear on the
mandamus count? And that's their whole complaint.
They're whole complaint is outside what they're
arguing. What they have to argue is that what they
want to do, what they want was is relevant that
is probative to prove a claim or establish a
defense based on thepleadings. And these are the
pleadings. And the pleadings don't involve any of
those matters.
Now, they have taken deposition testimony from
the lowest ranking people on the audit team, thePRMTFT RPORTTN(4(850) 894-0828
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made to their staff afterwards, about how he made
2
decisions in his capacity as a constitutional
3
officer, how would that bear on anything that
4
that's in Count IV of the third amended complaint?
5
Then we go to Count VI, which is really Count
6
V 1 they mis-numbered it, in mandamus. Mandamus is
7
strictly a matter of law. You don't even take
8
testimony in mandamus actions. It's strictly a
9
paper pleading case. You don't take testimony in
10
mandamus cases. It's a matter of -- is there
II
discretion or is it ministerial? All right. Is
12
there a clear legal right to the relief sought?
13
All right. All those elements that are mandamus
14
are all matters of law, not of fact. How could
15
anything Mr. Atwater have to say bear on the
16
mandamus count? And that's their whole complaint.
17
They're whole complaint is outside what they're
18
arguing. What they have to argue is that what they
19
want to do, what they want was -- is relevant that
20
is probative to prove a claim or establish a
21
defense based on thepleadings. And these are the
22
pleadings. And the pleadings don't involve any of
23
those matters.
24
Now, they have taken deposition testimony from
25
the lowest ranking people on the audit team, the PHH;MIH;R RPORTTN(4
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people that did the actual grunt work and explain
to them what their grunt work was, how it was
passed up to another level, all the way up through
the Division Director, a Bureau Director, to the
Deputy Chief of Staff who testified how he took it
to the CFO personally and said, here's what we got.
What they want to do is, they want to put Mr.
Atwater on the stand and argue with him. Why'd you
do this? Why1d you do that? Why1d you do the next
thing? You don't get to do that to the CFO any
more than you get to do that to the Governor and
put him on a deposition stand and say, why'd you
veto this bill? I want to know why you vetoed this
bill. Put it how could you do this? How could
you do that? You can't do that to a Governor and
you can't do it to a CFO either. The only way you
can reach a CFO or any other constitutional
officer, who has constitutional authority, is
mandamus or certiorari. Neither one of these
matters go to that. And the mandamus count is
facially flawed because it doesn't plead that
ther&s a clear legal right. It doesn1t plead that
it's at their discretion. And it doesn't
conclude doesn't say that they have no other
avenue of law. In fact, their other four countsPREMIER REPORTTN((850) 894-0828
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people that did the actual grunt work and explain
2
to them what their grunt work was, how it was
3
passed up to another level, all the way up through
4
the Division Director, a Bureau Director, to the
5
Deputy Chief of Staff who testified how he took it
6
to the CFO personally and said, here's what we got.
7
What they want to do is, they want to put Mr.
8
Atwater on the stand and argue with him. Why'd you
9
do this? Why 1 d you do that? Why 1 d you do the next
10
thing? You don't get to do that to the CFO any
11
more than you get to do that to the Governor and
12
put him on a deposition stand and say, why'd you
13
veto this bill? I want to know why you vetoed this
14
bill. Put it -- how could you do this? How could
15
you do that? You can't do that to a Governor and
16
you can't do it to a CFO either. The only way you
17
can reach a CFO or any other constitutional
18
officer, who has constitutional authority, is
19
mandamus or certiorari. Neither one of these
20
matters go to that. And the mandamus count is
21
facially flawed because it doesn't plead that
22
there's a clear legal right. It doesn't plead that
23
it's at their discretion. And it doesn't
24
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25
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show that they believe they do have an adequate
remedy of law.
So how does anything the CFO is going to
testify to, that they've outlined here today, going
to go to any of the counts in the pleadings? And
that's the test for relevancy. It's not whether
they would prove something's that's not got
anything to do with the pleadings, it's not going
to prove some abstract concept for them to be
proving. It's not going to prove a political angle
they want to fool with. Itts called will it prove
or disprove a claim or defense that's in the
pleadings? And these are the pleadings. And
nothing they've talked about has anything do to
with the pleadings.
In fact, if you read their depositions they've
taken, neither Mr. Buesing or Mr. Maida, anybody
else asked any witness even one question about a
term or condition of these contracts and how those
contracts were treated b.y me or anything else like
that, not one question has been directed to that.
It's all been directed to a silly notion of bias,
which, as you yourself would recognize, at the last
hearing they've not come anywhere near prove
close to proving. In fact, you're and they givePRMIER REPORTING(850) 894-0828
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show that they believe they do have an adequate
remedy of law.
So how does anything the CFO is going to
testify to, that they've outlined here today, going
to go to any of the counts in the pleadings? And
that's the test for relevancy. It's not whether
they would prove something's that's not got
anything to do with the pleadings, it's not going
to prove some abstract concept for them to be
proving. It's not going to prove a political angle
they want to fool with. It's called will it prove
or disprove a claim or defense that's in the
pleadings? And these are the pleadings. And
nothing they've talked about has anything do to
with the pleadings.
In fact, if you read their depositions they've
• taken, neither Mr. Buesing or Mr. Maida, anybody
else asked any witness even one question about a
term or condition of these contracts and how those
contracts were treated b.y me or anything else like
that, not one question has been directed to that.
It's all been directed to a silly notion of bias,
which, as you yourself would recognize, at the last
hearing they've not come anywhere near prove --
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you nothing new today. Nothing new today in that
regard. And your own words were, I'm not
comfortable yet and I have had documented to me
what you need to get to even raise the issue of
bias. They give you nothing new in that regard
here today. It's the same old song they gave you
last time. It didn't sing well then, it's not
singing any better today.
But the real test here is relevancy. They
have all these nice theories that have nothing to
do with their pleadings. All they want to do is
put the CFO on the hot-seat and grill him and
disagree with hini and argue with him. You don1t
get to do that to hini any more than you get to do
that to the Governor. That's the long and short of
it. It's got to be relevant to the pleadings.
Nothing they've brought is relevant to the
pleadings. That's why there should be a protective
order entered to protect him from abusive discovery
like our other ones have been subjected to.
MR. BUESING: Your Honor, as to the pleading,
Count IV, declaratory relief under 86.091 allows
each party in it's pleadings, which I have done on
behalf of Peter R. Brown Construction, to ask that
we be joined in the declaration. I ask that DFS bePRFMIER REPORTING(850) 894-0828
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1 you nothing new today. Nothing new today in that
2 regard. And your own words were, I'm not
3 comfortable yet and I have had documented to me
4 what you need to get to even raise the issue of
5 bias. They give you nothing new in that regard
6 here today. It's the same old song they gave you
7 last time. It didn't sing well then, it's not
8 singing any better today.
9 But the real test here is relevancy. They
10 have all these nice theories that have nothing to
11 do with their pleadings. All they want to do is
12 put the CFO on the hot-seat and grill him and
13 disagree with him and argue with him. You don't
14 get to do that to him any more than you get to do
15 that to the Governor. That's the long and short of
16 it. It's got to be relevant to the pleadings.
17 Nothing they've brought is relevant to the
18 pleadings. That's why there should be a protective
19 order entered to protect him from abusive discovery
20 like our other ones have been subjected to.
21 MR. BUESING: Your Honor, as to the pleading,
22 Count IV, declaratory relief under 86.091 allows
23 each party in it's pleadings, which I have done on
24 behalf of Peter R. Brown Construction, to ask that
25 we be joined in the declaration. I ask that DFS be
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joined in same declaration. I asked that Signature
Art Gallery be joined in the same declaration. And
then I asked for supplemental relief in accordance
with Fla. Stat. 86.061, which will include
compelling DFS to cure the default by making
payment.
We have a contract with DMS that's true. But
DFS is playing a role. It's a that's the whole
point of this three-day trial we have coming up.
They're playing a role because they're refusing to
pay for the contract we have. The declaratory
judgment count, which we're allowed to plea as we
did, and say, Judge, bring everybody together, hear
all the facts and then decide, declare, what the
parties rights are in accordance with this. So it
is fully pled. I don't know where counsel thinks
it's not pled. I dont know what w&ve been doing
here for a year in this lawsuit if it's not to deal
with the decision by Mr. Atwater to not pay. So
hes wrong on that point.
The other point, constitutional officer verses
agency head. We're having this over and over and
over and let's go through it one more time. The
cases I cited to Your Honor, lets put them on the
record. Home -- H-O-R-N-E versus School BoardPREMIER REPORTING(850) 894-0828
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1
joined in same declaration. I asked that Signature
2 Art Gallery be joined in the same declaration. And
3 then I asked for supplemental relief in accordance
4 with Fla. Stat. 86.061, which will include
5 compelling DFS to cure the default by making
6 payment.
7 We have a contract with DMS that's true. But
8 DFS is playing a role. It's a -- that's the whole
9 point of this three-day trial we have coming up.
10 They're playing a role because they're refusing to
II pay for the contract we have. The declaratory
12 judgment count, which we're allowed to plea as we
13
did, and say, Judge, bring everybody together, hear
14 all the facts and then decide, declare, what the
15 parties rights are in accordance with this. So it
16 is fully pled. I don't know where counsel thinks
17
it's not pled. I don't know what we've been doing
18 here for a year in this lawsuit if it's not to deal
19 with the decision by Mr. Atwater to not pay. So
20
he's wrong on that point.
21 The other point, constitutional officer verses
22 agency head. We're having this over and over and
23 over and let's go through it one more time. The
24 cases I cited to Your Honor, let's put them on the
25 record. Home -- H-O-R-N-E -- versus School Board
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of Miami, Dade County, 901 So.2d 238 (1st DCA 2005)
points with approval Department of Agriculture and
Consumer Services versus Broward County, 810 So.2d
1056, also First DCA. It says, in circumstances
such as these, the agency head agency head
should not be subject to deposition or objection
unless and until opposing parties have exhausted
other discovery and can demonstrate that the agency
head is uniquely able to provide relevant
information which cannot be obtained from other
sources. Okay. Agency head.
Mr. Atwater wears two hats. They went to
pretend he only has one hat. He a constitutional
officer, he's like the Governor, he's above he's
going to there's a statute that says he is the
agency head for the Department of Financial
Services. Which, I assume, is why Mr. Maida in the
first instance said, I've named the Department. By
definition, that includes the head of the
Department. But they made this noise, oh, he's a
constitutional officer, whatever. Fine. We'll
bring him in with both hats on. But I want to
depose him on his agency head hat. That's the one
that we're all talking about here. Because
remember the description he just gave, we workedPPIMTWT PDCPmTk1(Z
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1 of Miami, Dade County, 901 So.2d 238 (1st DCA 2005)
2 points with approval Department of Agriculture and
3
Consumer Services versus Broward County, 810 So.2d
4
1056, also First DCA. It says, in circumstances
5 such as these, the agency head -- agency head --
6 should not be subject to deposition or objection
7 unless and until opposing parties have exhausted
8 other discovery and can demonstrate that the agency
9
head is uniquely able to provide relevant
10
information which cannot be obtained from other
11 sources. Okay. Agency head.
12
Mr. Atwater wears two hats. They went to
13 pretend he only has one hat. He a constitutional
14 officer, he's like the Governor, he's above -- he's
15 going to -- there's a statute that says he is the
16 agency head for the Department of Financial
17
Services. Which, I assume, is why Mr. Maida in the
18
first instance said, I've named the Department. By
19
definition, that includes the head of the
20
Department. But they made this noise, oh, he's a
21 constitutional officer, whatever. Fine. We'll
22
bring him in with both hats on. But I want to
23
depose him on his agency head hat. That's the one
24
that we're all talking about here. Because
25 remember the description he just gave, we worked
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our way up the chain, facts get brought up to this
plaza level meeting, decisions are made, things
then roll back down. Now, what role is he acting
there? He's acting as the agency head. He's the
boss of an agency. It's not Mr. Atwater going of f
and doing documents all by himself. He's operating
as agency head. And the cases say agency head's
are subject to deposition.
So again, their two arguments, it's not pled
is nonsense. It's pled all over this case. And
he's somehow different than all the rest of the
agency heads. He's different than the head of the
Department of Agriculture and he's different than
the head of the Department of Education and all the
other Department heads who've been subject to this
rule of law. He's not different. He's an agency
head and he needs to sit for this deposition.
I don't know why counsel thinks we were ever
abusive. I certainly it's not my professional
style to ever be abusive. And that's a whole
separate issue. He can stop a deposition if he
thinks somebody's being abusive. But, you know,
we're talking about professionally asking a series
of questions that relate to his unique knowledge,
his unique information that is not equallyPRFMT1'.R RlP1)RITNG
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our way up the chain, facts get brought up to this
plaza level meeting, decisions are made, things
then roll back down. Now, what role is he acting
there? He's acting as the agency head. He's the
boss of an agency. It's not Mr. Atwater going of f
and doing documents all by himself. He's operating
as agency head. And the cases say agency head's
are subject to deposition.
So again, their two arguments, it's not pled
is nonsense. It's pled all over this case. And
he's somehow different than all the rest of the
agency heads. He's different than the head of the
Department of Agriculture and he's different than
the head of the Department of Education and all the
other Department heads who've been subject to this
rule of law. He's not different. He's an agency
head and he needs to sit for this deposition.
I don't know why counsel thinks we were ever
abusive. I certainly -- it's not my professional
style to ever be abusive. And that's a whole
separate issue. He can stop a deposition if he
thinks somebody's being abusive. But, you know,
we're talking about professionally asking a series
of questions that relate to his unique knowledge,
his unique information that is not equally PRFMT1'.R 77P7RITNG
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available from lesser ranking government officials.
MR. DAVIDSON: May I reply, Your Honor?
THE COURT: You may. They've replied to your
motion, so I'm going to let you reply.
MR. DAVIDSON: Thank you, Your Honor.
Mr. Buesing likes to conflate things here and try
to confuse things that are fairly simply.
Statutorily, yes, Mr. Atwater is designated by the
legislature as the head of the Department of
Financial Services. That's true. But he is also
elected to this position of Chief Financial Officer
of the State, which is a separate office. When he
exercise the powers given to him by the
constitution, he is not the head of the Department
of -- the Department of Financial Services, he is
the Chief Financial Officer, when he has to sign
the statutory powers given to him under Chapter
20.121, he's the agency head of the Department of
Financial Services. That Department does not have
the authority to say, yay or nay to issuing a state
warrant. Only the CFO has that final authority.
That's easy to understand. When he exercises that
final authority, he's a constitutional officer,
he's not acting as an agency head, okay. It may be
that the legislature could have done it differentlyPPRMTI'R PTPflPT11(
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1 available from lesser ranking government officials.
2
MR. DAVIDSON: May I reply, Your Honor?
3
THE COURT: You may. They've replied to your
4 motion, so I'm going to let you reply.
5
MR. DAVIDSON: Thank you, Your Honor.
6
Mr. Buesing likes to conflate things here and try
7
to confuse things that are fairly simply.
8
Statutorily, yes, Mr. Atwater is designated by the
9
legislature as the head of the Department of
10
Financial Services. That's true. But he is also
11 elected to this position of Chief Financial Officer
12 of the State, which is a separate office. When he
13 exercise the powers given to him by the
14 constitution, he is not the head of the Department
15 of -- the Department of Financial Services, he is
16
the Chief Financial Officer, when he has to sign
17
the statutory powers given to him under Chapter
18
20.121, he's the agency head of the Department of
19
Financial Services. That Department does not have
20
the authority to say, yay or nay to issuing a state
21 warrant. Only the CFO has that final authority.
22
That's easy to understand. When he exercises that
23
final authority, he's a constitutional officer,
24
he's not acting as an agency head, okay. It may be
25
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than that. That's the way they did It, okay.
That's the way the constitution and the statutes
come together.
Now, as far as what they've pled, again, in
Count IV they are pleading the existence of two
contracts. And the case law that we've cited to
the Court is very clear. When a contract is at
issue, the only people whose rights and obligations
under the contract can be declared are those that
are party to the contract or could possibly in the
future become a party to the contract. We've cited
that case to the Court. There is no possibility we
ever were or ever could be become a party to these
two contracts. We have no rights or obligations
because we don!t belong to them. All right.
That's the red herring. You can name anybody you
want to name. But to argue that they can ask them
anything they want because of this, that and the
next thing, is simply to say that the final order
is some including the recommended order backing it
up, probably some forty-something pages long, in
which the CFO explains in great detail why he
decided what he did as a constitutional officer.
They need to go further than that and just argue
with him and say, well, why did you do this, andPRThMTRP PPRT1(850) 894-0828
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than that. That's the way they did it, okay.
That's the way the constitution and the statutes
come together.
Now, as far as what they've pled, again, in
Count IV they are pleading the existence of two
contracts. And the case law that we've cited to
the Court is very clear. When a contract is at
issue, the only people whose rights and obligations
under the contract can be declared are those that
are party to the contract or could possibly in the
future become a party to the contract. We've cited
that case to the Court. There is no possibility we
ever were or ever could be become a party to these
two contracts. We have no rights or obligations
because we don't belong to them. All right.
That's the red herring. You can name anybody you
want to name. But to argue that they can ask them
anything they want because of this, that and the
next thing, is simply to say that the final order
is some including the recommended order backing it
up, probably some forty-something pages long, in
which the CFO explains in great detail why he
decided what he did as a constitutional officer.
They need to go further than that and just argue
with him and say, well, why did you do this, and PRThMTRP PPR11
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why'd you do that, why did you do this and why did
you do that?
Once again, the way that is reviewable by the
courts is not in a contract action, alleging
breaches of the contracts to which the CFO or the
Department were not parties. That's reviewable by
the courts in mandamus and in certiorari. This is
not a cert action. Their mandan1us action is
fatally flawed because of what the flaws that are
allegations and mandanius actions are not witness
cases, they're strictly on the law. You don't
call you don't have a bench trial in mandamus
cases. It's all done on paper. So there's nothing
the CFO can say or Mr. Atwater in either capacity
can testify to that would affect the mandamus
action.
So what they want to do is, they want to drag
him through the mud, ask him a lot of questions,
argue with him about his decisions as a
constitutional officer under the guise of examining
an agency head. In neither case, wearing neither
hat, would anything he have to say be probative to
their allegations.
THE COURT: well, I think -- I've heard
enough. I'm ready to rule on this.PR1M1IF.R RIPORTTN(
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why'd you do that, why did you do this and why did
you do that?
Once again, the way that is reviewable by the
courts is not in a contract action, alleging
breaches of the contracts to which the CFO or the
Department were not parties. That's reviewable by
the courts in mandamus and in certiorari. This is
not a cert action. Their mandamus action is
fatally flawed because of what the flaws that are
allegations and mandamus actions are not witness
cases, they're strictly on the law. You don't
call -- you don't have a bench trial in mandamus
cases. It's all done on paper. So there's nothing
the CFO can say or Mr. Atwater in either capacity
can testify to that would affect the mandamus
action.
So what they want to do is, they want to drag
him through the mud, ask him a lot of questions,
argue with him about his decisions as a
constitutional officer under the guise of examining
an agency head. In neither case, wearing neither
hat, would anything he have to say be probative to
their allegations.
THE COURT: well, I think -- I've heard
enough. I'm ready to rule on this. PR1M1IF.R RIPORTTN(
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There1s a lot of inconsistencies going on from
both sides with pleadings and I know it's because
of the nature of this is very unique and difficult
case for both of you. And I understand that. But
we've been researching from the day we started on
this and I've spent a lot of time on this. Itve
got two of my best staff attorneys sitting over
here and theytve worked they're tired of me
asking to look at this angle and look at that
angle, what about this angle and that angle. But
that's not what wetre here the one reason.
You say they're not a party to the contract,
but there's a declaratory judgment action here. In
all of the papers that have been filed by you on
behalf of DFS and that whole report that you just
mentioned says, it's not DM5' property, it's not
their right to do this and that, it's the CFO's
right, or the Comptroller's right, you've got to
combine them off and on all throughout, and only
the CFO has certain authority.
And so, I think the Comptroller in those
arguments make him a party to almost any time you
have any payment required by the State, he's a
party. And you're making him the sole party in
this case. You're makinq him the one and onlyPPMTR1R P('R'PTJ(
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There's a lot of inconsistencies going on from
both sides with pleadings and I know it's because
of the nature of this is very unique and difficult
case for both of you. And I understand that. But
we've been researching from the day we started on
this and I've spent a lot of time on this. I've
got two of my best staff attorneys sitting over
here and they've worked -- they're tired of me
asking to look at this angle and look at that
angle, what about this angle and that angle. But
that's not what we're here -- the one reason.
You say they're not a party to the contract,
but there's a declaratory judgment action here. In
all of the papers that have been filed by you on
behalf of DFS and that whole report that you just
mentioned says, it's not DMS' property, it's not
their right to do this and that, it's the CFO's
right, or the Comptroller's right, you've got to
combine them off and on all throughout, and only
the CFO has certain authority.
And so, I think the Comptroller in those
arguments make him a party to almost any time you
have any payment required by the State, he's a
party. And you're making him the sole party in
this case. You're making him the one and only PREMIER REPORTING (850) 894-0828
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party who can make the call. And I think they have
a right, if due process means anything and I'm
not saying there's anything improper yet, but the
question is, do they have the right to inquire as
to biases that might have affected due process of
the whole -- all the audits? All of the hearing?
And anything else. That's the issue that they've
raised. And they're asking for declaratory
judgment here. They've gone out -- they went back
and tried to take the deposition -- and I like I
said, I originally denied I think Mr. Kneip's
deposition for protective order. The sole reason
was the language in his letter. This is at a much
higher level. This isn't down here at the staff
level. All this -- this has to be handled up here
at this level. And that was in the and that's
why I didn't even have a hearing on that one. It's
very clear that he was involved personally. And
he's saying in his own letter, nobody else.
All of the pleadings here have told me it
doesn't matter what anybody else thinks, the CFO
makes this call. However, I think it's important
that they have a right to inquire as to whether or
not instructions were given all the way up and down
the ladder as the head of DFS or as Comptroller toPRIMTRP PFPORrPTN1
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1 party who can make the call. And I think they have
2 a right, if due process means anything -- and I'm
3 not saying there's anything improper yet, but the
4 question is, do they have the right to inquire as
5
to biases that might have affected due process of
6
the whole -- all the audits? All of the hearing?
7
And anything else. That's the issue that they've
8 raised. And they're asking for declaratory
9
judgment here. They've gone out -- they went back
10 and tried to take the deposition -- and I -- like I
11 said, I originally denied I think Mr. Kneip's
12
deposition for protective order. The sole reason
13 was the language in his letter. This is at a much
14
higher level. This isn't down here at the staff
15
level. All this -- this has to be handled up here
16 at this level. And that was in the -- and that's
17 why I didn't even have a hearing on that one. It's
18 very clear that he was involved personally. And
19
he's saying in his own letter, nobody else.
20
All of the pleadings here have told me it
21
doesn't matter what anybody else thinks, the CFO
22 makes this call. However, I think it's important
23
that they have a right to inquire as to whether or
24 not instructions were given all the way up and down
25
the ladder as the head of DFS or as Comptroller to PRIMTRP P}'.PORTTN(
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the people conducting these audits or whatever was
said that would affect the due process and the
final hearing that resolved it on all of this,
based upon this person's testimony, and what I will
hear on the three-day trial we have coming up.
I'm going to deny the motion for protective
order. And I'm going to direct counsel that you
have a very tight leash here. It is a
constitutional officer we're dealing with. I don't
think you have the right to inquire as to all of
his thinking processes. I think you have a right
to inquire as to factual matters and directions he
may have given, or not given, those types of
things. I don't think you can ask him why he did
something other than what his employ, what
instructions and what information he received,
subject to work product requirements from counsel.
I think there's a work product issue going to be
here, too.
So, I'm just telling you, tight leash. If I
have to have a special master sit over it, I will
do that at a certain point, because I'm not going
to have somebody and I don't think counsel is
going to abuse one of our constitutional but
this is heated. It's gotten pretty hot off and onPPRMTJP RPflRrPTTII'
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the people conducting these audits or whatever was
said that would affect the due process and the
final hearing that resolved it on all of this,
based upon this person's testimony, and what I will
hear on the three-day trial we have coming up.
I'm going to deny the motion for protective
order. And I'm going to direct counsel that you
have a very tight leash here. It is a
constitutional officer we're dealing with. I don't
think you have the right to inquire as to all of
his thinking processes. I think you have a right
to inquire as to factual matters and directions he
may have given, or not given, those types of
things. I don't think you can ask him why he did
something other than what his employ, what
instructions and what information he received,
subject to work product requirements from counsel.
I think there's a work product issue going to be
here, too.
So, I'm just telling you, tight leash. If I
have to have a special master sit over it, I will
do that at a certain point, because I'm not going
to have somebody -- and I don't think counsel is
going to abuse one of our constitutional -- but
this is heated. It's gotten pretty hot off and on PPRMTJP RPflRrPTTII'
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throughout here, its a long process, everybody
here's subject to a lot of interest in both
sides here and I understand that. I understand the
significance of it to the person who provided the
material, who's caught and I don't mind telling
you, I'm very concerned throughout this case that
the person who was requested to do the work, did
the work as requested, signed off by everybody,
might be caught in this. And that's the way it
works out, that's the way it works out. The law
might have to be changed. But I'm not going to
allow that to happen without at least having a full
exploration of all the options here and in a
neutral non-bias way.
And I'm not saying there's anything bias
anywhere else, yet. I'm just saying, I think they
have a right to inquire because that will possibly
lead to relevant information concerning the
declaration and including all of the arguments
we've had back and forth through all of this. Who
gets to determine whether it's a fixture or not, is
that the same as whether theres a payment
authorized or not? Who gets deference as to
determinations? Secretary of State, Department of
Management Services? The Comptroller has the finalPREMIER REPORT IN(850) 894-0828
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3131
1
throughout here, it's a long process, everybody
2
here's subject to -- a lot of interest in both
3
sides here and I understand that. I understand the
4
significance of it to the person who provided the
5
material, who's caught -- and I don't mind telling
6
you, I'm very concerned throughout this case that
7
the person who was requested to do the work, did
8
the work as requested, signed off by everybody,
9
might be caught in this. And that's the way it
10
works out, that's the way it works out. The law
11
might have to be changed. But I'm not going to
12
allow that to happen without at least having a full
13
exploration of all the options here and in a
14
neutral non-bias way.
15
And I'm not saying there's anything bias
16
anywhere else, yet. I'm just saying, I think they
17
have a right to inquire because that will possibly
18
lead to relevant information concerning the
19
declaration and including all of the arguments
20
we've had back and forth through all of this. Who
21
gets to determine whether it's a fixture or not, is
22
that the same as whether there's a payment
23
authorized or not? Who gets deference as to
24
determinations? Secretary of State, Department of
25
Management Services? The Comptroller has the final PREMIER REPORT IN (850) 894-0828
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say. All of these issues have been raised. And I
don't see how we go through this at all without the
Comptroller1s directions and what have you as to
factual matters and audits and what have you, being
subject to deposition in this particular case.
It1s unique to him. And I think any preconceived
biases that might be out there could possibly
affect the hearing that was held on due process
issue.
MR. DAVIDS0N Your Honor, you1ve had nothing
new given to you today on bias and you rejected
that same argument the last time you heard this.
There's nothing new today that's been given to you.
THE COURT: I think the notices they've tried
to give, the information that are you denying
what he's telling me, that these people told him
that's on the plaza level, we can't do that.
MR. DAVIDSON: Your Honor, what they tell
you what they tell you is simply, I'm not the
decision maker, I assist the decision maker.
THE COURT: There you go --
MR. DAVIDSON: But that's the way it always is
in every level of government.
THE COURT: No. It's quite unique here. It's
quite unique here in this case. I'm going to denyPRFMT.P PI'.PORTTN(
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1 say. All of these issues have been raised. And I
2
don't see how we go through this at all without the
3
Comptroller's directions and what have you as to
4
factual matters and audits and what have you, being
5 subject to deposition in this particular case.
6
It's unique to him. And I think any preconceived
7
biases that might be out there could possibly
8 affect the hearing that was held on due process
9
issue.
10
MR. DAVIDSON: Your Honor, you've had nothing
11
new given to you today on bias and you rejected
12
that same argument the last time you heard this.
13
There's nothing new today that's been given to you.
14
THE COURT: I think the notices they've tried
15
to give, the information that -- are you denying
16 what he's telling me, that these people told him
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that's on the plaza level, we can't do that.
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MR. DAVIDSON: Your Honor, what they tell
19
you -- what they tell you is simply, I'm not the
20
decision maker, I assist the decision maker.
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THE COURT: There you go --
22
MR. DAVIDSON: But that's the way it always is
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in every level of government.
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THE COURT: No. It's quite unique here. It's
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the motion for protective order.
Now, let me say this, if you want a stay you
better go to the First District and ask for it.
MR. DAVIDSON: I take it Im required to
ask you for a stay by the Rules.
THE COURT: I'll give you a well, what's
our -- trial date's the 14th?
MR. DAVIDSON: 17th.
MR. BUESING: 17th through the 19th.
THE COURT: The 5th is the date -- and I'm
going to hold to this people. No matter what's
going on on all these other proceedings, unless we
have something else ruled on. We have issues
framing to be resolved by y'all by the 5th and
pretrial information to be done. And I really want
that honed in on because there's been about 1,000
issues thrown out over the last year-and-a-half,
but I think it's one or two issues that will to
resolve the case. And I want y'all to sit down and
make sure you hone in on t. And also, during this
deposition, I want you to keep that in mind. That
the issue that we're really litigating here is
whether there's appropriation that covers this,
whether this particular work fits into it.
MR. DAVIDSON: Your Honor, with all duePR}MTIR R}PORTTN1(850) 894-0828
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the motion for protective order.
2
Now, let me say this, if you want a stay you
3
better go to the First District and ask for it.
4
MR. DAVIDSON: I take it -- I'm required to
5 ask you for a stay by the Rules.
6
THE COURT: I'll give you a -- well, what's
7 our -- trial date's the 14th?
8. MR. DAVIDSON: 17th.
9
MR. BUESING: 17th through the 19th.
10
THE COURT: The 5th is the date -- and I'm
11 going to hold to this people. No matter what's
12 going on on all these other proceedings, unless we
13
have something else ruled on. We have issues
14
framing to be resolved by y'all by the 5th and
15 pretrial information to be done. And I really want
16
that honed in on because there's been about 1,000
17
issues thrown out over the last year-and-a-half,
18
but I think it's one or two issues that will to
19
resolve the case. And I want y'all to sit down and
20
make sure you hone in on it. And also, during this
21
deposition, I want you to keep that in mind. That
22
the issue that we're really litigating here is
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whether there's appropriation that covers this,
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whether this particular work fits into it.
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MR. DAVIDSON: Your Honor, with all due PPTMT1.R RI.POR'PT1J(
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respect, that.s not in the pleadings. They haven!t
pled that.
THE COURT: With all do respect, Mr. Davidson,
it's been made the whole subject of this from day
one. I'm overruling you. 11m going to grant a
stay, 24 hours, to apply for whatever you need, to
file what you need to file.
MR. DAVIDSON: Judge, can I ask for 48,
because we1re going to be in mediation all day
tomorrow.
THE COURT: 48 hours will be fine.
MR. DAVIDSON: Thank you.
THE COURT: Let's see, what1s the date?
Today's Tuesday?
MR. DAVIDSON: Yes, sir.
THE COURT: All right. Friday morning by
Friday by noon.
MR. DAVIDSON: Very good.
MR. MAIDA: Your Honor, one final point. And
if the stay is not granted by the District Court of
Appeal, is this Court directing Mr. Atwater to
appear for his deposition?
THE COURT: Since I've given at least the 48
hours, I'm not going to direct that he appear
tomorrow. It will be continued to a date beforePRFMT}UR P1.PflPTTN(
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1 respect, that'.s not in the pleadings. They haven't
2 pled that.
3
THE COURT: With all do respect, Mr. Davidson,
4
it's been made the whole subject of this from day
5
one. I'm overruling you. I'm going to grant a
6
stay, 24 hours, to apply for whatever you need, to
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file what you need to file.
8
MR. DAVIDSON: Judge, can I ask for 48,
9
because we're going to be in mediation all day
10
tomorrow.
11
THE COURT: 48 hours will be fine.
12
MR. DAVIDSON: Thank you.
13
THE COURT: Let's see, what's the date?
14
Today's Tuesday?
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MR. DAVIDSON: Yes, sir.
16
THE COURT: All right. Friday morning by --
17
Friday by noon.
18
MR. DAVIDSON: Very good.
19
MR. MAIDA: Your Honor, one final point. And
20
if the stay is not granted by the District Court of
21
Appeal, is this Court directing Mr. Atwater to
22 appear for his deposition?
23
THE COURT: Since I've given at least the 48
24
hours, I'm not going to direct that he appear
25
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the trial, before we finalize issues on the 5th,
unless otherwise stated by the Appellate Court.
But not tomorrow. I want them to have a chance to
file their request to the District Court.
MR. MAIDA: Your Honor, our concern is that if
and when a stay is not granted within that 48 hour
period and we try to reschedule it, their just not
going to produce him --
THE COURT: No, I will issue an order on that
if you if we have a problem with the schedule
before the 5th, I'm saying, before the 5th, unless
otherwise stayed by the District Court, that
deposition will be taken. And they will make him
available for that date. If he's not available,
we'll go accordingly.
MR. MAIDA: And Your Honor, since no stay has
been issued with regard to Mr. Kneip, can we also
apply an order directing him to appear?
THE COURT: Yeah, I don't see why he has not
appeared. I'm surprised -- I didn't know about
this. Unless there was a stay, he had a duty to
appear.
MR. BUESING: Well, there was no stay.
MR. DAVIDSON: The First District has issued
an order to which we have responded. They've askedPRRMTPP PP.PORPT1\J?
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the trial, before we finalize issues on the 5th,
unless otherwise stated by the Appellate Court.
But not tomorrow. I want them to have a chance to
file their request to the District Court.
MR. MAIDA: Your Honor, our concern is that if
and when a stay is not granted within that 48 hour
period and we try to reschedule it, their just not
going to produce him --
THE COURT: No, I will issue an order on that
if you -- if we have a problem with the schedule
before the 5th, I'm saying, before the 5th, unless
otherwise stayed by the District Court, that
deposition will be taken. And they will make him
available for that date. If he's not available,
we'll go accordingly.
MR. MAIDA: And Your Honor, since no stay has
been issued with regard to Mr. Kneip, can we also
apply an order directing him to appear?
THE COURT: Yeah, I don't see why he has not
appeared. I'm surprised -- I didn't know about
this. Unless there was a stay, he had a duty to
appear.
MR. BUESING: Well, there was no stay.
MR. DAVIDSON: The First District has issued
an order to which we have responded. They've asked PRRMTPP PP.PORP11\J?
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us to treat our notice of appeal to non-final
orders petition for certiorari. We have filed that
today. They've directed the Appellee to show cause
why the emergency stay order should not be the
order to stay motion should not be granted. And
they have until Friday to do that.
THE COURT: Well, I'm not going to jump in the
middle of their procedure. They've got a
determination proceeding whether the issue of stay,
emergency stay. I'm not going to issue an order in
conflict with that.
MR. BUESING: But they are not denying at this
point
THE COURT: I'm not going to issue any order
that affect that. We'll just have to wait until
after Friday or after any other -- y'all will be
filing a lot of stuff between now and Friday.
We'll see where we are.
But I am putting everybody on notice, we have
short hearing notice. And I've got three and four
days, they're going to be hours if we need to to
get it done.
MR. BUESING: May I appear by telephone if
it's a situation where I'm not in town?
THE COURT: Yes, you may.PRFMTTR RPC)RTT1J(
(850) 894-0828prend er-reporting. com
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us to treat our notice of appeal to non-final
orders petition for certiorari. We have filed that
today. They've directed the Appellee to show cause
why the emergency stay order should not be the
order to stay motion should not be granted. And
they have until Friday to do that.
THE COURT: Well, I'm not going to jump in the
middle of their procedure. They've got a
determination proceeding whether the issue of stay,
emergency stay. I'm not going to issue an order in
conflict with that.
MR. BUESING: But they are not denying at this
point --
THE COURT: I'm not going to issue any order
that affect that. We'll just have to wait until
after Friday or after any other -- y'all will be
filing a lot of stuff between now and Friday.
We'll see where we are.
But I am putting everybody on notice, we have
short hearing notice. And I've got three and four
days, they're going to be hours if we need to to
get it done.
MR. BUESING: May I appear by telephone if
it's a situation where I'm not in town?
THE COURT: Yes,yoPCu may.
PRFMTTR R)RTT1J(
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MR. BUESING: And, Judge, Mr. Donelan we1ve
got a motion to compel his attendance on October
31st. So, I guess, I'll be talking to your JA
about getting a telephonic hearing on that --
THE COURT: Correct.
MR. BUESING: If it's a lengthy with
attachments, we it1s all in the file there.
It's ready to be read and ruled on if you'd like to
go up here and
MR. DAVIDSON: And, Your Honor, just for the
record, we have had pending for quite some time a
motion for judgment on the pleadings which has
since been amended. And we asked the Court to set
it for hearing. It1s not yet been set. We think
it1s a dispositive motion. I would like to get it
closed sometime before the trial. I don't know --
THE COURT: We're probably going to have --
we're going to try and fit a couple hour blocks in
before the trial to handle all motions that are
pending. But right now, let's proceed. Let's get
ready for trial.
MR. MAIDA: Yes, sir.
MR. DAVIDSON: Thank you, Your Honor.
MR. BUESING: Thank you, Judge.
(Whereupon, the proceedings were concluded atPRFMTF.R FPORPTN1(850) 894-0828
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1
MR. BUESING: And, Judge, Mr. Donelan -- we've
2 got a motion to compel his attendance on October
3
31st. So, I guess, I'll be talking to your JA
4
about getting a telephonic hearing on that --
5
THE COURT: Correct.
6
MR. BUESING: If it's a lengthy -- with
7
attachments, we -- it's all in the file there.
8
It's ready to be read and ruled on if you'd like to
9 go up here and --
10
MR. DAVIDSON: And, Your Honor, just for the
11
record, we have had pending for quite some time a
12
motion for judgment on the pleadings which has
13
since been amended. And we asked the Court to set
14
it for hearing. It's not yet been set. We think
15
it's a dispositive motion. I would like to get it
16
closed sometime before the trial. I don't know --
17
THE COURT: We're probably going to have --
18 we're going to try and fit a couple hour blocks in
19
before the trial to handle all motions that are
20
pending. But right .now, let's proceed. Let's get
21
ready for trial.
22
MR. MAIDA: Yes, sir.
23
MR. DAVIDSON: Thank you, Your Honor.
24
MR. BUESING: Thank you, Judge.
25
(Whereupon, the proceedings were concluded at PRFMTF.R HKPOWNTN1 (850) 894-0828
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PREMIER REPORTING
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CERTIFICATE OF REPORTER
STATE OF FLORIDACOUNTY OF LEON
I, DANA W. REEVES, Professional Court
Reporter, certify that the foregoing proceedings were
taken before me at the time and place therein
designated; that my shorthand notes were thereafter
translated under my supervision; and the foregoing
pages, numbered 3 through 38, are a true and correct
record of the aforesaid proceedings.
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 the action.
DATED this 29TH day of November, 2012.
DANA W. REEVESNOTARY PUBLICCOMMISSION #EE182380EXPIRES MARCH 22, 2016
9RENIER REPORTING(850) 894-0828
premier-reporting. com
3939
1
CERTIFICATE OF REPORTER
2
3 STATE OF FLORIDA COUNTY OF LEON
4
5
I, DANA W. REEVES, Professional Court
6 Reporter, certify that the foregoing proceedings were
7 taken before me at the time and place therein
8 designated; that my shorthand notes were thereafter
9 translated under my supervision; and the foregoing
10 pages, numbered 3 through 38, are a true and correct
ii
record of the aforesaid proceedings.
12
13
I further certify that I am not a relative,
14 employee, attorney or counsel of any of the parties, nor
15 am I a relative or employee of any of the parties'
16 attorney or counsel connected with the action, nor am I
17
financially interested in the action.
18
DATED this 29TH day of November, 2012.
19
20
21
DANA W. REEVES NOTARY PUBLIC
22
COMMISSION #EE182380 EXPIRES MARCH 22, 2016
23
24
25 9RENIER REPORTING (850) 894-0828
premier-reporting. corn