Murphy - Response to Petition for Writ 7-28-17-FINAL · this Response to Petition for Writ of...
Transcript of Murphy - Response to Petition for Writ 7-28-17-FINAL · this Response to Petition for Writ of...
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICT
Michael Connolly,
Petitioner,
vs. Case No. 5D17–1172L.T. Case No. 2017–CA–000168–O
Gabriel Murphy andGCM Holdings Ltd.,
Respondents.
/
RESPONDENTS’ RESPONSE TO PETITION FORWRIT OF CERTIORARI
COMES NOW, Respondents, GABRIEL MURPHY (“Respondent
Murphy”) and GCM HOLDINGS LTD (“Respondent GCM”) (together the
“Respondents”), by and through their undersigned counsel, pursuant to Florida
Rule of Appellate Procedure 9.100 and this Court’s order dated July 20, 2017, file
this Response to Petition for Writ of Certiorari (“Petition”), against MICHAEL
CONNOLLY (“Petitioner”), seeking dismissal of the Petition, and in support
thereof, asserts:
INTRODUCTORY SUMMARY
This Court should dismiss the Petition for lack of certiorari jurisdiction
because Petitioner failed to meet the high burden of demonstrating that Petitioner
is irreparably harmed and lacks any other adequate remedy of law. See Bared &
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Co., Inc. v. McGuire, 670 So. 2d 153, 156 (Fla. 4th DCA 1996) (finding certiorari
review is only available “if it satisfactorily appears that no other adequate remedy
is afforded by law”) (citations omitted; original emphasis). Petitioner failed to
utilize, and has not exhausted, all (or even any) remedies at the trial court, such as
a motion for reconsideration or request for an evidentiary hearing. Dismissal is
appropriate (not merely a denial) as Petitioner failed to meet the minimum
threshold for this Court’s certiorari jurisdiction. Even if this Court finds that it has
jurisdiction, this Court should nevertheless deny the Petition because the Petitioner
waived his right to object by failing to comply with Rule 1.410(e) and because the
Order (defined herein) complies with the essential requirements of law.
STANDARD OF REVIEW
The Florida Supreme Court pronounced that “certiorari is an extraordinary
remedy and should not be used to circumvent the interlocutory appeal rule which
authorizes appeal from only a few types of non–final orders.” Reeves v. Fleetwood
Homes of Florida, Inc., 889 So. 2d 812, 822 (Fla. 2004). For this Court to grant
certiorari review, the petitioner must prove: “(1) a departure from the essential
requirements of the law, (2) resulting in material injury for the remainder of the
case (3) that cannot be corrected on post judgment appeal.” Williams v. Oken, 62
So. 3d 1129, 1132 (Fla. 2011). The last two elements (referred as “irreparable
harm”) must be considered first to see if jurisdiction exists Id. If there is no
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irreparable harm, then the petition must be dismissed. See Nucci v. Target Corp.,
162 So. 3d 146, 151 (Fla. 4th DCA 2015).
Should the Court find irreparable harm and grant the extraordinary writ, then
the Court evaluates the first element on the merits. See Williams, 62 So. 3d at
1132. Meeting the first element for extraordinary relief is a tough standard
because:
“The required departure from the essential requirements of law meanssomething far beyond legal error. It means an inherent illegality orirregularity, an abuse of judicial power, an act of judicial tyrannyperpetrated with disregard of procedural requirements, resulting in agross miscarriage of justice. The writ of certiorari properly issues tocorrect essential illegality but not legal error.”
Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 527 (Fla. 1995) (citations
omitted)(finding “As a case travels up the judicial ladder, review should
consistently become narrower, not broader.”). Because certiorari review stems
from the sound discretion of the trial court, certiorari review is an abuse of
discretion standard of review. See Williams, 62 So. 3d at 1132.
Certiorari review is not de novo, and an appellate court does not substitute
its judgment for the lower court’s judgment on the substantial competent evidence
that was before the trial court when the order on appeal was rendered. See D.H. v.
State, 952 So. 2d 603, 605 (Fla. 1st DCA 2007). Nor is certiorari a substitute for an
appeal. See Cotton States Mut. Ins. v. D'Alto, 879 So. 2d 67, 71 (Fla. 1st DCA
2004).
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“Certiorari is not available to review every erroneous discovery ruling.”
Nucci, 162 So. 3d at 151. Certiorari is an extraordinary remedy that is available
only in limited instances. See Cotton States, 879 So. 2d 67. The purported
discovery error must be serious – not merely an error – to merit certiorari relief as
discovery is broad and relevancy is given wider application for discovering
information that may lead to admissible evidence. See Nucci, 162 So. 3d at 151.
STATEMENT OF THE CASE AND FACTS
The instant action from Orange County, in the Ninth Circuit of Florida, Case
No. 2017–CA–000168–O before the Honorable Christi L. Underwood (“Florida
Litigation”) centers around a deposition of a non–party/Petitioner, who was
subpoenaed to deposition in the county of his residence, which stems from the
underlying pending complex civil action in Johnson County District Court in the
Tenth Judicial Circuit of Kansas, styled Crowd Shout, Ltd. v. Westmark Capital,
LLC and Gabriel Murphy (which includes multiple counter–claims and Cross–
Claims by Respondent GCM including declaratory relief for unauthorized lawsuits
(Count II), tortious interference (Count IV, V, VI) and civil conspiracy (Count IX)
against additional parties outside of the Florida Litigation and this Petition, Case
No. 15CV00453 (“Kansas Litigation”). See [A–6], p. 11–12, 15–21 and 27 (also p.
217–218, 221–227 and 233 of 508).
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In the Kansas Litigation, the Plaintiff is purportedly Crowd Shout, Ltd
(“Crowd Shout”)1. See Supplemental Appendix [B–1]2 (“Memorandum in
Opposition”) [B–1], p. 1–3 (also p. 27–29 of 314). The Defendants are Westmark
Capital, LLC (solely owned by Respondent GCM) and Respondent Murphy. See
[A–1], p. 1 (also p. 7 of 508). The Cross–Claim Plaintiff is Crowd Shout
Holdings, Ltd. (“Holdings” or “CSH”), which is the sole owner of Crowd Shout.
The Cross–Claim Defendants and Defendants are Crowd Shout, Kevin John Perks
and Kevin John Perks’ then employer, Integrated–Capabilities, Ltd. See [A–6], p.
1 (also p. 207 of 508).
In the Kansas Litigation, Respondent Murphy’s Counterclaims include:
• Count I – Declaratory Judgment Regarding Validity of November StockTransfer as to Crowd Shout, Kevin John Perks, and Integrated–Capabilities,Ltd.
• Count II – Declaratory Judgment Regarding Validity of Herne Proxy as toCrowd Shout, Kevin John Perks, and Integrated–Capabilities, Ltd.
• Count III – Declaratory Judgment Regarding the Valid Directors of, andControl of, Crowd Shout and Holdings
1 Since January of 2015 and as detailed in his initial responsive pleading in theKansas Litigation (See Supp. A. [B–1], p. 1–2), Respondent Murphy hasasserted that Petitioner and his Manx–based fiduciary (Kevin John Perks) haveunlawfully usurped the legal standing of Crowd Shout. Respondents contendthat Petitioner (along with others) are the actual plaintiffs in the KansasLitigation.
2 All citations to Respondents’ Supplemental Appendix (Supp. A.) per Rules9.100(g) and 9.200 are designated by the symbol “[B–__],” which refers to theAppendix tab at which the document is contained. Additionally, any documentthat is a transcript in Petitioner’s Appendix will be cited in the same mannerexcept it will contain a page and line reference such as “[A–__] at pg:L”.
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• Count IV – Breach of Fiduciary Duty as to Kevin John Perks andIntegrated–Capabilities, Ltd.
See [A–4], p. 13–27 (also p. 67–73 of 508).
In the Kansas Litigation, Respondent GCM’s Cross–Claim Petition counts
include:
• Count I – Declaratory Relief as to Directors• Count II – Declaratory Relief as to Suits unauthorized• Count III – Money Had and Received as to Kevin John Perks and
Integrated–Capabilities, Ltd.• Count IV – Tortious Interference – Registrations as to Kevin John Perks and
Integrated–Capabilities, Ltd.• Count V – Tortious Interference – Expectancy as to Kevin John Perks and
Integrated–Capabilities, Ltd.• Count VI – Tortious Interference – Operations as to Kevin John Perks and
Integrated–Capabilities, Ltd.• Count VII – Declaratory Relief – Validity of Stock Transfer From Herne
Holdings, Ltd. to GCM Holdings, Ltd. – Cross Petition against Kevin JohnPerks and Integrated–Capabilities, Ltd. and Counterclaim against CrowdShout.
• Count VIII – Breach of Fiduciary Duty as to Kevin John Perks andIntegrated–Capabilities, Ltd.
• Count IX – Civil Conspiracy as to Kevin John Perks and Integrated–Capabilities, Ltd.
See [A–6], p. 10–27 (also p. 216–233 of 508)
Respondents agree with the general overview of the Petitioner’s statement of
the case and procedural posture. However, Respondents disagree with various
factual allegations as to the underlying legal dispute in the Kansas Litigation.
Respondents disagree with Petitioner’s (i) description of the duces tecum as having
no connection with the Kansas Litigation; (ii) Plaintiff’s claim of three (versus
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two) shareholders in Holdings; and (iii) the Board of Directors of Holdings (Kevin
John Perks, as director of Integrated–Capabilities, Ltd) not recognizing the Share
Transfer – when it was the very same Board of Directors, who at that time
approved of, and executed, the Share Transfer as the then directors of Respondent
GCM and Herne Holdings Ltd. (“Herne”). See Supp. A. [B–1], (“Memorandum in
Opposition”), “Exhibit C”, p. 37–39 (also p. 63–65 of 314). Rather, it is Petitioner,
as the 80% controlling shareholder of Digital Technology, LLC (“Digital”), who
repudiates the Share Transfer, the validity of which is the subject of the Kansas
Litigation. See [A–9] (incomplete copy)3, “Exhibit H”, p. 4 (also p. 368 of 508)
and Supp. A. [B–1] (complete copy), p. 18, ¶2–4 (also p. 44–45 of 314). The
original ownership structure of Crowd Shout prior to the Share Transfer is shown
below:
3 As shown from the Complete Docket History in the Florida Proceedings (SeeSupp. A. [B–8]), Respondent Murphy’s Motion to Compel Deposition (See Supp.A. [B–9]) is 103 pages in length (p. 176–278 of 314) with 15 exhibits (A–O).However, [A–9] of Petitioner’s Appendix (which purports to be a copy ofRespondents’ Reply in Opposition to Petitioner’s Motion for Protective Order &Motion to Compel Deposition) is only 65 pages (p. 311–375 of 508). Curiously,[A–9] of Petitioner’s Appendix omits the Affidavit of Service (defined herein)and excludes exhibits J, K, L, M, N and O.
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See Supp. A. [B–9], p. 3. At issue in the Kansas Litigation (among other things) is
the dispute of the Share Transfer of Herne’s shares. In the Share Transfer, GCM
acquired Herne’s shares and thus a controlling interest of Crowd Shout; however,
Digital (controlled by Petitioner) disputes the validity of the Share Transfer and
Respondent GCM’s controlling interest. See Supp. A. [B–9], p. 3–4 (also p. 29–30
of 314).
Petitioner accurately notes the main dispute between the parties is over the
validity of the Share Transfer from November 10, 2014, which is subject to the
terms of the Shareholders’ Agreement of Holdings, which is governed by the Laws
of the Republic of Malta (“Malta”). See Petition, p. 4, ¶2. Also on November 10,
2014, Crowd Shout held a board meeting whereby a resolution was passed
requiring a Notice of Indemnification Claim (“Claim”) be served upon Digital. See
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[A–5], “Exhibit C”, p. 1–2 (also p. 147–148 of 508), ¶B. The Notice cites various
violations of Petitioner’s non–compete agreement with Crowd Shout and seeks
indemnification under the terms of the Asset Purchase Agreement. See Supp. A.
[B–9], “Exhibit J”4 (p. 258–262 of 314). The Claim also asserts revenue
manipulation practices by Contech, LLC, which does business as Sonobi Media
(“Sonobi”). See [A–5], p. 19 (also p. 129 of 508), ¶137. As alleged in the record
by Respondent Murphy, at present, Sonobi owes a sizable payment of over
$370,440.805 to Crowd Shout. See [A–8], p. 2 (also p. 286 of 508), ¶6 and [A–2],
“Notice”, p. 5 (also p. 41 of 508), ¶30 and ¶36. The record demonstrates that
Petitioner is the Chief Executive Officer and material owner of Sonobi. See [A–8],
p. 2 (also p. 312 of 508), ¶4.
As alleged in the record by Respondent Murphy, at all times relevant hereto,
Third Party Defendant Kevin John Perks has also acted as Digital’s [controlled by
Petitioner] registered fiduciary in the Isle of Man and Malta, and takes instruction
from Petitioner in collateral litigation underway in the related jurisdictions
involving Respondents. See [A–7], p. 2 (also p. 236 of 508), ¶1. Respondent
GCM asserts that Petitioner and his Manx–based fiduciary have unlawfully
4 Omitted by Petitioner in [A–9] of Petitioner’s Appendix, see footnote 2 herein.5 Before statutory interest and the recovery of “all costs incurred, including
reasonable attorneys’ fees”, pursuant to the Sonobi Web Publisher Agreement.See [A–8], last page of “Exhibit A” (also p. 309 of 508), ¶19.
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usurped Crowd Shout’s legal standing and to this day, masquerades under the guise
of its authority. See [A–6], p.1 (also p. 207 of 508), ¶1. Leading up the Kansas
Litigation were continuing disputes as to the ownership of Crowd Shout between
Respondent GCM and Digital, including involvement of other parties and
[Petitioner’s attorneys] Cobb Cole, P.A, demonstrating Petitioner’s intricate web of
involvement in the Kansas Litigation. See, e.g., [A–4], [A–5], [A–6], [B–3], [B–
4].
In the Kansas Litigation, on or around February 3, 2015, Respondent
Murphy filed the Memorandum in Opposition, and on or around July 15, 2015,
Respondent GCM filed a Motion for Order to Show Cause (“Motion for Cause”).
See Supp. A. [B–2] (p. 148 – 153 of 314). Several weeks later, on or around
August 3, 2015, Respondent GCM filed Additional Suggestions in Support of
Intervenor’s Second Motion to Intervene (“Intervenor’s Additional Suggestions”).
See Supp. A. [B–3] (p. 154–156 of 314). Three days later, on or around August 6,
2015, Respondent GCM filed Further Suggestions in Support of Intervenor’s
Second Motion to Intervene (“Intervenor’s Further Suggestions”). See Supp. A.
[B–4] (p. 157–160 of 314). Later that year on or around December 9, 2015,
Respondent GCM filed GCM Holdings Ltd. Motion to Enforce (“Motion to
Enforce”). See Supp. A. [B–5] (p. 161–169). About two months thereafter and
after a hearing on the Motion to Enforce, the Kansas Court entered an order
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entitled “Journal Entry – Motions to Enforce” signed by the Judge and attorneys of
record (“Order to Enforce”). See Supp. A. [B–6] (p. 170 – 171 of 314).
In the Kansas Litigation, Respondent GCM issued a Subpoena Duces Tecum
for Deposition and Notice to Take Video–Taped Deposition of Non–Party Michael
Connolly and Exhibit “A” (together the “Notice of Deposition”). See [A–2]. The
Notice was served upon Petitioner by AMIC Process Services, LLC in Winter Park
on December 13, 2016 at 2:45 p.m., which affidavit of service was filed in the
Kansas Litigation on December 22, 2016 (“Affidavit of Service”). See Supp. A.
[B–7] (p. 172 of 314). The Affidavit of Service was also included as “Exhibit M”6
to Respondent Murphy’s Motion to Compel Deposition. See Supp. A. [B–7],
“Exhibit M”, p. 97 (also p. 272 of 314).
As a result of being served with the Notice of Deposition, on January 5,
2017, Petitioner initiated the Florida Litigation with his Complaint. Supp. A. [B–
8]. In addition, on or about January 5, 2017, Petitioner filed his Motion for
Protective Order as to the deposition of Petitioner in the Florida Litigation
(“Motion for Protective Order”). See [A–3]. On or about January 11, 2017,
Respondent Murphy filed his Reply in Opposition to Michael Connolly’s Motion
for Protective Order & Motion for Emergency Hearing to Compel Deposition &
6 Omitted by Petitioner in [A–9] of Petitioner’s Appendix, see footnote 2
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Order to Appear to Show Cause & for Sanctions (“Motion to Compel
Deposition”). See Supp. A. [B–9] (p. 176–278 of 314).
On or about February 28, 2017 in the Florida Litigation, Respondent
Murphy filed Additional Suggestions in Support of Motion to Compel Deposition
of Michael Connolly (“Additional Suggestions”), acknowledging that there were
various related lawsuits indirectly being commandeered presently by Petitioner
against Respondents in the Isle of Man and the Malta, which are intertwined with
the Kansas Litigation – particularly the Malta Proceedings, as to a pending judicial
declaration as to shareholder control of Plaintiff’s parent (Holdings) in the Kansas
Litigation. See [A–4], p. 21 (also p. 67 of 508).
On March 7, 2017, this Court held a non–evidentiary hearing on the Motion
for Protective Order and Motion to Compel Deposition (“Hearing”). See [A–17].
At the Hearing and to aid the trial, counsel for both the Petitioner and Respondents
furnished the court with a demonstrative aid depicting organizational charts for the
parties and related entities/parties at involved in the Kansas Litigation (the
“Demonstrative Aids”). See Supp. A. [B–10], p. 1–2 (also p. 279–280 of 314) and
[A–17] at 12:6–25 and 13:1–11. Later in the Hearing and at the request of
Respondent Murphy, the undersigned withdrew the duces tecum from the
Subpoena without prejudice to avoid additional the briefing schedule for the duces
tecum requests and avoid further delay of the Deposition, which had been initially
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scheduled to occur over two months prior to the Hearing. See [A–17] at 45:23–25;
46:1–9.
Counsel for Petitioner sought to limit the scope, the use of the Deposition in
collateral litigation, time timeframe for which the Deposition had to occur, the
designation of Petitioner individually versus one of Petitioner’s companies, as well
as the methodology (video–tape) of the Deposition. See [A–17] at 25:5–19 and
47:23–25 and 50:3–24. When Petitioner’s counsel raised concerns over
Respondent Murphy putting the Deposition in “inappropriate places,” the
undersigned briefly conferred with Respondent Murphy and it was agreed that the
parties “would stipulate that it [Deposition] would not be put online”. See [A–17]
at 49:15–16. During the Hearing and at the conclusion of the Hearing, counsel for
Petitioner twice opined to the trial court that the rulings and safeguards for
Petitioner “seems fair”. See [A–17] at 48:15 and at 51:3.
The lower court properly noted that “what’s discoverable is not always
admissible” and that the trial court “wouldn’t want to foreclose another judge in a
different jurisdiction from making a decision about whether or not a deposition
testimony was admissible” since it “could be used for impeachment…” See [A–
17] at 51:10–15.
Over a month later/six weeks later, on or about April 17, 2017, as a result of
the ruling at the Hearing, the trial court entered its Order Compelling Deposition of
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Plaintiff, which included various safeguards/limitations for Petitioner’s Deposition
(“Order”). See [A–0]. As a result of the Order, Petitioner unilaterally choose the
date of his deposition to occur on April 24, 2017 – the last possible day for
Petitioner to comply with paragraph three (3) of the Order (“Deposition”). See [A–
0], ¶3.
However, just five (5) days prior to his scheduled Deposition on April 19,
2017, Petitioner filed his Emergency Motion to Stay Pending Appeal (“Emergency
Motion to Stay”). In response and on or around April 26, 2017, Respondents filed
Defendants’ Verified Response in Opposition to Plaintiff’s Emergency Motion to
Stay Pending Appeal (“Verified Response”). See Supp. A. [B–11] (p. 281–314 of
314). As a result of a hearing on the Emergency Motion to Stay, on May 4, 2017,
the trial court entered its Order Granting Emergency Motion for Stay Pending
Appeal (“Order Staying”).7
The factual disputed issue is whether the Order, which compelled
Petitioner’s Deposition, with numerous safeguards, is appropriate discovery
(assuming this Court gets past the jurisdictional hurdle and threshold issues
7 The Emergency Motion to Stay, the Verified Response, and the Order Staying arebeyond the scope of the Petition as they occurred subsequent to the Order onappeal. However, they are cited for context as to arguments/facts presented by thePetitioner which Respondents believe are outside the scope of the Petition andshould not be considered. See previously filed Respondents’ Motion to Strike withthis Court (which was denied) and Section II.D herein.
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including Petitioner’s waiver of objections) given the Petitioner’s intricate spider–
web involvement in the underlying dispute of the Kansas Litigation.
SUMMARY OF ARGUMENT
This Court should dismiss the Petition because this Court does not have
certiorari jurisdiction. Petitioner failed to meet the high burden of irreparable
injury to warrant an extraordinary writ as to a non–final discovery order regarding
a deposition of Petitioner. Petitioner failed to prove irreparable injury because he
did not exhaust all pre–trial remedies at the trial court level; nor did Petitioner even
allege such in the Petition.
Even if this Court determines that the Petitioner made a prima facie showing
of irreparable harm in the Petition to have jurisdiction to review on the merits, this
Court should deny the Petition because Petitioner failed to demonstrate prima facie
a departure from the essential requirements of law on the merits. Rather, the trial
court properly exercised discretion to enter the Order with proper safeguards in
place for Petitioner that complies with the essential requirements of the law.
Importantly and as a threshold issue, the Petition is without merit as the
Petitioner failed to timely file an objection or motion for protective order within
ten (10) days of being served with the Notice of Deposition per Florida Rule of
Civil Procedure 1.410(e)(1). Because the Petitioner failed to timely object or seek
relief, any redress with this Court of the Order is fruitless.
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In addition, the trial court properly determined the Deposition was relevant
and necessary to allow Respondents to discover information that could lead to
admissible evidence. The Petitioner – as a non–party – cannot object as to
relevancy and did not prove the Deposition was a ‘fishing expedition’ for the
purpose of annoyance, embarrassment, oppression, or undue burden/expense. The
duces tecum component was withdrawn by Respondents without prejudice and not
included in the Order on appeal; thus, all arguments as to the duces tecum are
irrelevant, not ripe, and outside the scope of this Petition. Moreover, the purported
‘bad acts’ of Respondent Murphy are entirely irrelevant to this certiorari review
and outside the scope for determining whether the Order complied with the
essential requirements of the law. Accordingly, this Court should dismiss the
Petition for lack of jurisdiction, or in the alternative, deny the Petition on the
merits.
ARGUMENT TO DISMISS PETITION,OR IN THE ALTERNATIVE, DENY THE PETITION
I. This Court Should Dismiss the Petition For Lack of CertiorariJurisdiction Because Petitioner Failed to Prove Irreparable InjuryBy Being Deposed.
This Court should dismiss the Petition because this Court does not have
jurisdiction as Petitioner failed to meet the high burden and minimum threshold of
irreparable injury. Appellate grants of writs of certiorari are very few and far
between, to wit:
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“writ provides a remedy only if the petitioner meets the heavy burdenof showing that a clear departure from the essential requirements oflaw has resulted in otherwise irreparable harm, it is extremely rarethat erroneous interlocutory rulings can be corrected by resort tocommon law certiorari. It is anticipated that because the most urgentinterlocutory orders are appealable under this rule, there will be veryfew cases in which common law certiorari will provide relief.”
Bared & Co., Inc. v. McGuire, 670 So. 2d 153, 155 (Fla. 4th DCA 1996) (citing to
Fla. R. App. P. 9.130 (1977 Committee Notes); original emphasis).
This Court must evaluate the “two indispensable ingredients to common law
certiorari when sought to review pretrial orders of the circuit courts: (1) irreparable
injury to the petitioner that cannot be corrected on final appeal (2) caused by a
departure from the essential requirements of law.” Bared & Co., Inc. v. McGuire,
670 So. 2d 153, 156 (Fla. 4th DCA 1996). Indeed, for the first prong as to
irreparable injury to determine if this Court has jurisdiction to move to the second
prong on the merits, the Petitioner must prove “the absence of an adequate remedy
by appeal or writ of error or other remedy afforded by law.” Id. at 155. Here, this
Court should dismiss the Petition because Petitioner failed to meet his burden and
minimum threshold warranting dismissal of the Petition.
A. No Irreparable Injury Exists Because Petitioner Failed to ExhaustAll Pre–Trial Remedies at the Trial Court.
This Court should dismiss the Petition because Petitioner failed to meet the
high burden of irreparable harm because he did not exhaust all pre–trial remedies
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at the trial court level; nor did Petitioner even allege he did so in the Petition. See
Petition.
In Florida, “[b]ecause the trial court retains inherent authority to
reconsider... any of its nonfinal rulings prior to entry of the final judgment, a
motion for reconsideration may be filed at any time before the entry of final
judgment.” Seigler v. Bell, 148 So. 3d 473, 479 (Fla. 5th DCA 2014) (citing to
Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998)). Undoubtedly, “a trial
court may sua sponte reconsider and amend or vacate its interlocutory orders prior
to final judgment.” Id.; see also Bettez v. City of Miami, 510 So. 2d 1242, 1243
(Fla. 3d DCA 1987)(“It is well settled in this state that a trial court has inherent
authority to reconsider, as here, any of its interlocutory rulings prior to entry of a
final judgment or final order in the cause.”).
In fact, because Petitioner has pre–trial remedies with the trial court (which
the trial court has the authority to consider prior to final judgment), Petitioner, by
definition, cannot demonstrate irreparable injury. See Arnone v. State, 701 So. 2d
577, 579 (Fla. 2d DCA 1997). In Arnone, the Second DCA dismissed the petition
for writ because the Petitioner “has a possible pretrial remedy in the trial court, as
well as a right to raise the issue on any subsequent direct appeal.” Id.
Here, Petitioner had/has numerous pre–trial remedies at the trial court level
that were not pursued. Missing from the record is, including, without limitation:
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• a motion for reconsideration (during the six (6) weeks–plus time period
from the Hearing to the Order or during the approximate month time
period from the Order to the Deposition);
• a request for evidentiary hearing as to the purported ‘bad acts’ of
Respondent Murphy that may warrant further restrictions on the
Deposition;
• a request for extended briefings as to any of the objectionable terms of
the ruling/Order [as the trial judge initially ruled as to the duces tecum
request for the Deposition (before the duces tecum was withdrawn by
Respondent GCM without prejudice)];
• a motion to quash (within 10 days of the service date of the rescheduled
Deposition); or
• a new/renewed motion for protective order (within 10 days of the service
date of the rescheduled Deposition) based upon the additional complaints
that are now addressed in the Petition but which were not addressed at
the trial court level (such as Respondent Murphy not being in
attendance).
Any of the above trial court remedies could possibly provide Petitioner with relief
to avoid purported irreparable injury at the Deposition. However, no such relief
was ever pursued by Petitioner at the trial court. Instead, Petitioner went from the
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[first] Order on the Deposition to this Court, without any intermediary trial
attempts to cure the purported errors of law or fundamental concerns. This failure,
in and of itself, is sufficient to dismiss the Petition for lack of jurisdiction. See
Arnone, 701 So. 2d at 579.
In addition to filing various pleadings, Petitioner had trial court remedies at
the actual Deposition he could have invoked without necessitating this Petition
seeking an extraordinary writ. During the Deposition, counsel for Petitioner could
have instructed Petitioner not to answer to preserve a privilege, to enforce a
limitation on evidence directed by the court from the Order, or to present a motion
to terminate or limit the Deposition because the “examination is being conducted
in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress”
Petitioner. Fla. R. Civ. P. 1.310(c) & (d). Indeed, these remedies could be utilized
to protect Petitioner’s fear of ‘cat out of the bag’ material, further illustrating that
there is no irreparable injury. Due to the Petition and the Order Staying, the
Deposition has yet to occur. Thus, Petitioner had additional trial court remedies
that could cure the alleged irreparable injury demonstrating that this Court does not
have jurisdiction because Petitioner did not exhaust all trial court remedies before
expending this Court’s time and financial resources unnecessarily. See Arnone, 701
So. 2d at 579.
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Accordingly, this Court should dismiss the Petition because this Court does
not have jurisdiction. Petitioner failed to meet the high burden to overcome the
extremely rare finding of irreparable injury sufficient for appellate review of a
non–final discovery order that can be remedied at the trial court level.
II. Even if this Court finds it has Jurisdiction, this Court ShouldNevertheless Deny the Petition on the Merits Because PetitionerFailed to Show the Order Departed from Essential LegalRequirements.
Even if this Court determines that the Petitioner made a prima facie showing
of irreparable harm in the Petition to have jurisdiction to review on the merits, this
Court should deny the Petition because Petitioner failed to demonstrate prima facie
a departure from the essential requirements of law on the merits. After
determining that the Petition meets the threshold of a prima face showing of
irreparable harm, this Court must determine “whether the order is a departure from
the essential requirements of law.” Bared, 670 So. 2d at 156.
Certiorari should be denied because the Order does not depart from the
essential requirements of law; rather the Order provides adequate safeguards and
limitations to ensure proper protections and “use for legal, valid purposes”. In fact,
when the trial court was fashioning the language to be included in the Order,
counsel for Petitioner agreed that it “seemed fair.” See [A–17] at 51:3. Curiously,
what was considered a fair ruling for Petitioner in the trial court at that time is the
Page 22 of 49
exact same ruling Petitioner now complains is not only unfair but also is a
departure from the essential requirements of law.
A. Trial Court Properly Exercised Discretion to Compel theDeposition Because Petitioner Waived Objections to DepositionBy Failing to File Objection/Motion for Protective Order Within10 Days of Service Per Rule 1.410.
As a threshold issue, this Court should deny the Petition because the trial
court properly compelled the Deposition of Petitioner per the Order (with
safeguards) because Petitioner waived his right to object by failing to file an
objection or motion for protective order within ten (10) days of service of the
Notice of Deposition.
A party may compel by subpoena the deposition of any non–person and
record by video the deposition of that non–party. See Fla. R. Civ. P. 1.310(a) and
(b)(4). Should the non–party have objections to the deposition or information
requested, such non–party must file an objection/motion for protective
order/motion to quash subpoena within ten (10) days of service of the notice of
deposition (or sooner if the deposition is set to occur in less than ten (10) days).
See Fla. R. Civ. P. 1.410(e)(1). If the subpoenaed non–party timely objects or files
a motion to quash or protective order within the ten (10) days after receiving
service of the subpoena, then the party issuing the subpoena must obtain a court
order allowing the deposition to take place. See Fla. R. Civ. P. 1.410(e)(1). Absent
a timely objection within the ten (10) days after service of the subpoena for
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deposition, the non–party is not entitled to protection from the court and may be
held in contempt for failing to appear at the deposition. See Fla. R. Civ. P.
1.410(f).
Should the deponent “not show by a timely motion to quash that the
subpoena duces tecum requested by petitioner is ‘unreasonable and oppressive’ as
required by Fla. R. Civ. P. 1.410(b) nor show by a motion for a protective order
that good cause is present to limit or prohibit the discovery sought by petitioner
due to ‘annoyance, embarrassment, oppression, or undue burden or expense’ as
required by Fla. R. Civ. P. 1.280(c),” then the deposition shall proceed as noticed.
Don Mott Agency, Inc. v. Pullum, 352 So. 2d 107, 107 (Fla. 2d DCA 1977)
(reversing an order quashing a subpoena duces tecum and protective order).
Failure to timely file an objection/motion for protective order within ten (10)
days of service waives the deponent’s objections. Id.; see also Ins. Co. of N. Am.
v. Noya, 398 So. 2d 836, 838 (Fla. 5th DCA 1981) (referencing the Donn Mott
case, stated “Failure to take such timely action waives these objections”).
Although failing to timely object still allows a party to assert a privilege or
exemption outside of permissible discovery, “Rule 1.140(b) and (c) expressly
require a party to file timely motions to quash, or for a protective order, or written
objections, in order to limit discovery of documents and materials otherwise within
the scope of discovery.” Id.
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Here, Petitioner failed to timely file an objection/motion for protective order
thus waiving his arguments/objections to the Deposition proceeding. As shown in
the complete docket history for both the Kansas Litigation and the Florida
Litigation, there was never any attempt by Petitioner to quash the Deposition. See
Supp. A. [B–0] (p. 5–26 of 314) and Supp. A. [B–8] (p. 173–175 of 314). The
Petition and requests therein are inappropriate because the Motion for Protective
Order was not timely made within the ten (10) days after service of process on
Petitioner of the subpoena for his deposition.
Petitioner was validly served with the Notice of Deposition by AMIC
Process Services, LLC in Winter Park on December 13, 2016 at 2:45 p.m. for the
Deposition scheduled on January 6, 2017. See Supp. A. [B–7] (also p. 172 of 314).
Petitioner was, therefore, required to file an objection to his appearance at the
Deposition no later than December 23, 2016. See Fla. R. Civ. P. 1.410(e)(1).
Petitioner failed to do so. See [A–3] and [B–8].
In fact, Petitioner failed to file any objection or his Motion for Protective
Order to his deposition until the day prior to the Deposition – mere hours before
the Deposition was to take place. See [A–3]. Therefore, Petitioner waived his
objection to appear at the deposition and was properly compelled by the trial court
to appear for his Deposition.
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Moreover, a non–party that makes a timely objection is not entitled to a
protective order quashing the requirement to appear at the deposition unless the
non–party presents a factual showing by affidavit or otherwise of why a subpoena
is unreasonable or oppressive as to the non–party. See Sunrise Shopping Center,
Inc. v. Allied Stores Corp., 270 So. 2d 32, 34 (Fla. 4th DCA 1972). If no facts are
presented to the trial judge, then she has no basis on which to grant a motion to
quash or protective order as there would be no basis for that judge to invoke her
broad judicial discretion over the discovery issue. Id.
Here too, Petitioner fails. The Petitioner’s late–filed Motion for Protective
Order was not verified. [A–3] No affidavits were filed/submitted. Supp.A. [B–8].
At the Hearing, Petitioner failed to personally appear, resulting in no evidence or
factual testimony being present8. There was no factual basis at the Hearing for the
trial court to even attempt to make a ruling on the waived objections from the
untimely Motion for Protective Order.
Accordingly, on this issue alone for failure to comply with Rule1.410 (both
for timely relief and lack of facts presented to trial court), this Court should deny
the Petition allowing the Deposition to proceed per the Order.
8 See [A–17] at 2:16, showing Respondent Murphy as the only party present for theHearing.
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B. Trial Court Properly Exercised Discretion to Compel theDeposition Because the Purpose of Petitioner’s Deposition is forObtaining Relevant Discovery.
This Court should find that the trial court properly compelled the Deposition
of Petitioner because discovery is broad at the trial court level and the Deposition
sought relevant discovery. In civil matters:
“Parties may obtain discovery regarding any matter, notprivileged, that is relevant to the subject matter of the pendingaction, whether it relates to the claim or defense of the partyseeking discovery or the claim or defense of any other party,including the existence, description, nature, custody, condition,and location of any books, documents, or other tangible thingsand the identity and location of persons having knowledge ofany discoverable matter. It is not ground for objection that theinformation sought will be inadmissible at the trial if theinformation sought appears reasonably calculated to lead to thediscovery of admissible evidence.”
Fla. R. Civ. P. 1.280(b)(1). Certainly, “[d]iscovery scope in civil cases must be
relevant to the subject matter of the case and must be admissible or reasonable
calculated to lead to admissible evidence.” Allstate Insurance Co. v. Langston, 655
So.2d 91, 94 (Fla. 1995).
Should a party or non–party believe the requested discovery goes beyond the
scope, such person has grounds of relief via a motion for protective order, to wit:
“Upon motion by a party or by the person from whomdiscovery is sought, and for good cause shown, the court inwhich the action is pending may make any order to protect aparty or person from annoyance, embarrassment, oppression,or undue burden or expense that justice requires.”
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Fla. R. Civ. P. 1.280(c) (emphasis added). The reasons for preventing a deposition
are limited to annoyance, embarrassment, oppression, or undue burden/expense –
not relevancy of the requested deposition. Id. Indeed, “a non–party who challenges
discovery may not contend that the materials sought are not relevant to the
underlying action.” Dade County Med. Ass'n v. Hlis, 372 So. 2d 117, 121 (Fla. 3d
DCA 1979) (finding exception to the general rule where a medical association has
an independent claim of confidentiality regarding medical records) (emphasis
added).
Thus, here, the Petitioner’s argument that the Deposition is not relevant is
moot as he cannot make such claim as a non–party. See Dade County, 372 So. 2d
at 121. Petitioner does not fall within the limited exceptions to the rule as he has no
independent grounds in which to claim an objection on relevancy; nor has
Petitioner alleged such exception. Rather, Petitioner falls within the general
category of being unhappy to be brought into litigation and being deposed as a
non–party. Florida provides litigants with the ability to discover information that
“appears reasonably calculated to lead to the discovery of admissible evidence.”
Fla. R. Civ. P. 1.280(b)(1).
Again, “[o]rdinarily, orders denying discovery are not reviewable by
certiorari because the harm from such orders can generally be rectified on appeal.”
Toomey v. N. Tr. Co., 182 So. 3d 891, 893 (Fla. 3d DCA 2016) (citations omitted).
Page 28 of 49
Of course, the exception to the general rule exists where “discovery orders cause
irreparable injury.” Id. (citation omitted). In Toomey, the Court found that such an
exception existed when “the denial of leave to perpetuate testimony by a terminally
ill person is a matter which may be entertained by petition for writ of certiorari.”
Id. No such extreme level of severity exists in this case as Petitioner is simply
trying to further limit the trial court’s Order, which already limited and properly
addressed obtaining relevant discovery.
Here, the trial court determined after the lengthy Hearing regarding the
complex Kansas Litigation, including numerous causes of action including tortious
interference and civil conspiracy, that the Deposition was reasonable, legitimate,
and relevant to the Kansas Litigation and/or was reasonably calculated to lead to
admissible evidence. See A–0, Order on appeal. The same continues to hold true
given the extensive number of causes of action and related parties and entities at
issue in the Kansas Litigation, evidenced in part by the extensive causes of action
at issue and in part by the Demonstrative Aids that were furnished to this trial court
for consideration at the Hearing – with the consent of both attorneys of record. See
Supp. A. [B–10], p. 1–2 (also p. 279–280 of 314).
Despite relevancy being irrelevant for a non–party, the trial court already
ordered a relevancy protection in the Order by including in paragraph five (5) the
statement that “[p]laintiff’s deposition testimony is ordered in the Johnson County,
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Kansas litigation, case number 15–CV–00453, which may be used for any legal,
valid purpose in litigation, including collateral litigation proceedings as long as it is
consistent with, and subject to Federal, State, and/or applicable rules of evidence.”
See A–0, Order ¶5. The trial court made clear at the Hearing that the Deposition
was ordered for the Kansas Litigation upon Petitioner’s counsel clarifying that it
was not for purposes of the Malta Litigation. See [A–17 at 47:12–16]. The
Deposition is therefore already limited to what is relevant in the Kansas Litigation.
Petitioner primarily argues that the Deposition and duces tecum are a
“fishing expedition” to a non–party. As to the purported “fishing expedition,”
Petitioner primarily supports his argument by (a) the duces tecum requests; and (b)
one sentence [partial argument] in the Hearing transcript by the undersigned.
As to the duces tecum, which was withdrawn at the Hearing by Respondent
GCM without prejudice, all arguments by Petitioner in the Petition are premature
and not ripe as the duces tecum is not at issue in the Order or at all at this
procedural posture – assuming that the trial court can overcome Petitioner’s failure
to timely object per Rule 1.410(e). Only if and when Respondent GCM decides to
pursue the duces tecum portion of the Deposition would Petitioner need legal
redress – which can and should be done at the trial court level, not for appellate
determination for the first examination. If and when such does occur, Petitioner’s
objections should be denied as Petitioner failed to timely objection per Rule
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1.410(e). Because the Respondent GCM withdrew the duces tecum portion
without prejudice and the Order compelled the Deposition without the duces
tecum, the trial court has not even had the first opportunity to review and make a
factual determination (should it deem worthy given Petitioner’s failure to timely
object). Petitioner is, in essence, asking this Court to become the trier of fact as to
the legal sufficiency of the duces tecum when the trial court has not been afforded
such opportunity yet. Thus, all arguments in the Petition as to the duces tecum are
not ripe for determination and this Court is without jurisdiction to make any
determination on the same.
As to the Deposition scope and the undersigned’s quoted sentence, although
the undersigned did make the statement cited in the Petition, the undersigned also
provided an extensive explanation (when later given the opportunity to respond in
detail) to the trial court. The specific answer as to ‘additional causes of action’
was “In part, yes, Your Honor.” See [A–17] at 37:16. Admittedly, on February 28,
2017, Respondent Murphy filed his Additional Suggestions, acknowledging that
there were various related court actions indirectly initiated by Petitioner underway
against Respondents in the Isle of Man and Malta, which are intimately intertwined
with the Kansas Litigation – particularly the Malta Litigation as to declaratory
relief as to shareholder control of plaintiff’s parent (Holdings) in the Kansas
Litigation. See [A–4], p.21 (also p. 67 of 508), “Count I”. However, contrary to
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the assertions in the Petition, nowhere in the Additional Suggestions does it state
that the Deposition is for use solely or exclusively for the Malta Proceedings;
rather the Additional Suggestions consistently state the need for the Deposition for
use in the Kansas Litigation and the Malta Proceedings.
Interestingly, counsel for Petitioner also acknowledged the intimate
relationship between the Malta Proceedings and the Kansas Litigation at the
Hearing, arguing that there was, in essence, (although not true) a stay in the Kansas
Litigation while the Kansas court waited to hear the outcome from the Malta
Litigation. See [A–17] at 21:10–14,17–18. Because there has never been any
court order (or any request by the parties) in Kansas Litigation staying that
proceeding, the instant trial court was able to make a determination of the
Deposition at the Hearing to result in the Order. See [A–0]. Thus, to the extent that
the Deposition may be indirectly used in other proceedings is not, in and of itself,
determinative in the generic sense of a ‘fishing expedition.’
Even if the intertwining of the five (5) related court actions underway in
Kansas, the Isle of Man and Malta may be deemed to be included under the
umbrella of a ‘fishing expedition,’ the undersigned clarified at the Hearing there
were numerous other related reasons justifying the Deposition specifically related
and targeted upon the Kansas Litigation. See [A–17] at 38:5–17.
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At the Hearing (evidenced by the Hearing transcript, [A–17]), the
undersigned articulated numerous reasons and justifications for the necessity and
relevancy of the Deposition of Petitioner, including, without limitation:
• Page 5, lines 13 – 18• Page 10, lines 4 – 13, lines 18 – 20• Page 11, lines 15 – 21• Page 14, lines 12 – 25 and continuing on page 15, lines 1 – 6• Page 16, lines 3 – 7• Page 16, lines 20 – 25 and continuing on page 17, lines 1 – 9• Page 27, lines 21 – 25 and continuing on page 28, lines 1 – 11• Page 28, lines 16 – 21• Page 28, line 25 and continuing on pages 29, 30 and page 31, lines 1 – 19• Page 33, lines 17 – 25 and continuing on page 34, lines 1 – 8• Page 34, line 25 and continuing on page 35, lines 1 – 11 and lines 15 – 18• Page 36, lines 21 – 25 and continuing on page 37, lines 1 – 11• Page 38, lines 5 – 17
See [A–17], Hearing transcript.
Moreover, there are numerous pleadings in the record which directly tie
Petitioner to the causes of action and related factual issues in the Kansas Litigation
and thus the Florida Litigation. In Respondent Murphy’s initial pleading filed on
February 3, 2015 in the Kansas Litigation (“Memorandum in Opposition”), the
specific references to Petitioner (and Digital) which identify the connections
between Petitioner and the Kansas Litigation, are found on, without limitation, on:
• Pages 3 – 4; and• Second paragraph on page 16; and• Last paragraph on page 18 and first paragraph on page 19.
See [B–1], (p. 27–147 of 314) – Memorandum in Opposition.
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Other glaring examples of the intimate ties between Petitioner, Digital and
Sonobi to the Kansas Litigation and the direct damage caused to Respondent GCM
by Petitioner’s actions are also detailed within Respondent GCM’s Intervenor’s
Additional Suggestions and specifically within ¶4–7, p. 2 (also p. 155 of 314) of
Supp. A. [B–3]. In Respondent GCM’s Intervenor’s Further Suggestions,
Respondent GCM alleges that Petitioner’s instruction of plaintiff’s counsel in the
Kansas Litigation and Petitioner’s role in the civil conspiracy tortuously interferes
with the operations of Crowd Shout. See Supp. A. [B–4] (Intervenor’s Further
Suggestions) ¶2–8, p. 1–3 (also p. __ of 314). Intervenor’s Further Suggestions
also alleges the concert of action underway between Petitioner and Petitioner’s
companies (Digital and Sonobi) with third parties intended to damage the Website
and Respondent GCM’s interest therein. See Supp. A. [B–4].
In addition, pleadings in the Florida Litigation demonstrate extensive
relevant facts which specifically tie Petitioner to the claims and causes of action in
the Kansas Litigation. In the record and at the trial court level, Respondent
Murphy’s Motion to Compel Deposition (See Supp. A. [B–9], p. 176–278 of 314)
specifically identifies the various connections between the Petitioner, Digital,
Sonobi and the Kansas Litigation, including, without limitation:
• Paragraph 6 (and Exhibit D attached thereto); and• Paragraph 7; and• Paragraph 10; and
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• Paragraph 11 – 13 (and Exhibit E attached thereto); and• Paragraphs 20 – 22; and• Exhibits A–E (pages 325–365 of 508 of Petitioner’s Appendix) also
demonstrate the intimate relationship between Connolly/Digital/Sonobi onone hand, and Crowd Shout, on the other.
See Supp. A. [B–9] (p. 176–278 of 314) – Motion to Compel Deposition.
Also in the record and at the trial court level in the Florida Proceedings,
Respondent Murphy filed Additional Suggestions, which specifically identifies the
connections between the Petitioner, Digital, Sonobi and the Kansas Litigation,
including, without limitation:
• Paragraphs 3 – 6; and• Paragraphs 8 – 11; and• Paragraph 14 (and Exhibit A attached thereto); and• The sole exhibit (Exhibit A) (pages 294–310 of 508 of Petitioner’s
Appendix) which includes four (4) letters from Cobb Cole, P.A. (attorneysfor Petitioner) to Crowd Shout, which clearly demonstrates the relevancy ofDigital/Sonobi/Connolly within the dispute in the Kansas Litigation.
See [A–8], Additional Suggestions.
Moreover, the complexities of this case demonstrate the Petitioner’s
involvement with the parties and issues in the Kansas Litigation to warrant the
Deposition. The Demonstrative Aids submitted to the trial judge by counsel (See
Supp. A. [B–10], p. 1–2 (also p. 279–280 of 314)) for the parties show the
agreement of Petitioner’s intimate relationship with Crowd Shout via his
controlling interest in Digital and Sonobi. Further, Petitioner was the undisputed
owner of a certain PayPal account which Petitioner unilaterally shut–down in
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August of 2015 and is consequently subject to a Motion for Order to Show Cause
(“Motion for Cause”), as filed by Respondent GCM as a result. See Supp. A. [B–
2] (p. 148–153 of 314). The parties agree with the severe complexity of the issues
between the parties (See [A–17] at 10:7 and 12:21–22), such as the need to explore
a variety of subject matters encompassing a multitude of companies (Crowd Shout,
Holdings, Sonobi, Digital, Integrated–Capabilities Ltd.) over the course of the past
five years, when the relationship between Respondents and Petitioner commenced
with the acquisition of the Website by Crowd Shout from Digital in August of
2012. See [A–1], p. 2 (also p. 8 of 508), ¶10.
As evidenced by Cobb Cole P.A.’s four (4) letters with Crowd Shout (See
[A–9], “Exhibit A”), Petitioner’s claim of a “fishing expedition” is wholly without
merit – so much so that that the trial court heard argument on the purported
‘fishing expedition’ and overruled such argument to allow the Deposition to
proceed with appropriate safeguards in the Order. See [A–17] at 37:17–25, 38:1–
2, 49:15–25, 50:1–25 and 51:1–3.
As evidenced by the pleadings in the Kansas Litigation,9 the pleadings in the
Florida Litigation,10 and as argued at the Hearing, the Respondents have a
9 Including, without limitation: Memorandum in Opposition, Intervenor’sAdditional Suggestions and Intervenor’s Further Suggestions. See Supp. A. [B–1], p. 3–4, 18, ¶2–4 (also p. 29–30, 44–45 of 314) and ¶4–7, p. 2 (also p. 155 of
Page 36 of 49
legitimate need to take the Deposition of the Petitioner for the Kansas Litigation as
the trial court found at the Hearing and evidenced by the Order. See A–0. Because
this Petition is not a de novo review (assuming this Court does not dismiss the
Petition for lack of jurisdiction), recitation of all the specific factual allegations as
to the factual connections of Petitioner to the Kansas Litigation is not necessary.
Of note for context perspective is the reminder that the trial court heard argument
and determined that Petitioner’s Deposition testimony was reasonable and
necessary for the discovery of information that could lead to admissible evidence,
especially considering the complex nature of this case. For example, Petitioner is a
Florida resident and cannot be subpoenaed to appear in Kansas, making the
videotaped nature of the Deposition vital for trial to a jury in the Kansas Litigation.
In addition, Respondent GCM argued that Petitioner was a vital person at the heart
of the dispute in the Kansas Litigation – being an undisputed owner of Digital –
one of the three entities that where the original shareholders to Holdings the sole
shareholder of Crowd Shout (the purported plaintiff in the Kansas Litigation), as
well as managing/owning/controlling the entities that maintained written contracts
314) of Supp. A. [B–3] and ¶2–8, p. 1–3 (also p. 157–159 of 314) of Supp. A.[B–4]
10 Including, without limitation: Motion to Compel Deposition and AdditionalSuggestions. See 6, 7, 10, 11–13, 20–22 and Exhibits “A–E” of Supp. A. [B–9](p. 176–278 of 314) and ¶3–6, 8–11, 14 and “Exhibit A” of [A–8] (p. 285–288,294–310 of 508).
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with Crowd Shout, implicating damage considerations for discovery. See [A–17]
at 30:18–22. The trial court considered the applicable pleadings, the argument of
counsel, and the applicable law and rules of procedure to make her ruling, which
resulted in the Order compelling the Deposition to proceed with the itemized
reasonable safeguards to appease Petitioner’s concerns in the Motion for Protective
Order.
Accordingly, this Court should deny the Petition as the Order complied with
the essential requirements of law in that it compelled the Deposition for the
purpose to allow Respondents to obtain information to lead to admissible evidence.
C. Trial Court Properly Exercised Discretion to Compel the
Deposition with the Order Providing for Reasonable Limitations
and Safeguards.
This Court should deny the Petition because the Order complied with the
essential requirements of law. Respondent GCM’s Notice for Deposition fully
complied with the requirements of Rule 1.310(b)(4), Fla. R. Civ. P. because it (1)
notified Petitioner that the deposition would be videotaped; (2) gave the name and
address of the operator of the video; and (3) stated the method for recording the
testimony. Respondent GCM’s Notice for Deposition clearly states that the
operator is U.S. Legal Support whose address is 20 North Orange Avenue, Suite
1209, Orlando, Florida 32801. The Notice for Deposition also clearly stated that
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the deposition would be recorded in both video tape and stenographic means by
U.S. Legal Support.
The legal sufficiency of the Order addressed the Petitioner’s concerns in the
Motion for Protective Order by including safeguards that were argued, discussed
and negotiated at the Hearing that counsel for Petitioner agreed “seemed fair.” See
[A–17] at 51:3. When the issue of not videotaping the deposition was brought
before the court upon Petitioner’s unsubstantiated allegations that Respondent
Murphy has a history of putting videotaped depositions in “inappropriate places”
arose, the trial court asked Respondents’ attorney to comment on the request to
establish parameters of a protective order regarding the use of video. See [A–17]
at 49:4–18. Respondents made no argument and unhesitatingly agreed to a
stipulated order limiting the use of the videotape as Respondents have no intention
of using it improperly. Id.
Moreover, the lower court and the parties discussed the use of the videotape
at length, including the appropriate use of a videotaped deposition and the lower
court’s ability to foreclose use of the videotape in litigation in another jurisdiction,
including and specifically, Malta. See [A–17] at 49:19–51:16. The lower court
properly noted that “what’s discoverable is not always admissible” and that the
trial court “wouldn’t want to foreclose another judge in a different jurisdiction
Page 39 of 49
from making a decision about whether or not a deposition testimony was
admissible” since it “could be used for impeachment…” See [A–17] at 51:10–15.
When the lower court was fashioning the language to be included in the
written Order, Petitioner twice agreed that it “seems fair.” See [A–17] at 48:15 and
51:3. Remarkably, what Petitioner considered a fair ruling in the lower court at
that time is the exact same ruling Petitioner now complains is not only unfair but
also is a departure from the essential requirements of law. The Order specifically
provided for limiting terms – after back and forth discussion with the trial court
and both attorneys of record – in paragraph 5 as to how the videotape portion could
be utilized, which protects for the alleged ‘cat out of the bag’ issue. See [A–0], ¶5.
This Court should deny the Petition because the trial court evaluated the
issues as to the Motion for Protective Order and heard argument, and – in essence
– had a discussion and negotiation with both attorneys of record in reaching what
appeared to be fair and reasonable compromises for allowing and subsequently
ordering the Deposition to proceed (and arguably to avoid further litigation over
the same issue, such as this extraordinary request for a writ of certiorari).
D. The Trial Court Properly Exercised Discretion in Not ReviewingEvidence Outside the Scope of the Hearing as to Issues of Law.
Petitioner attempts to bring arguments and evidence before this Court that
were not reviewed by the lower court when it ruled at the Hearing and cannot be
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considered by this Court in determining whether irreparable harm exists. Even
though this Court denied Respondents’ Motion to Strike the Petition, this Court
should nevertheless not consider the alleged ‘bad acts’ of Respondent Murphy
when determining the merits of the Petition. A basic tenet of appellate review is
that the appellate court may not consider matters outside the record before the
lower court at the time the appealable decision was rendered. See Altchiler v.
State, Dep’t of Prof’l Regulation, Div. of Professions, Bd. of Dentistry, 442 So. 2d
349, 350 (Fla. 1st DCA 1983).
An appellate court may not expand the record that was before the trial court
in rendering the decision appealed and attempt to evaluate new evidence that a
petitioner does not put before the lower court prior to its rendering a decision. See
Dresner v. City of Tallahassee, 164 So. 2d 208, 211 (Fla. 1964)(stating that the
scope of review on certiorari is limited to exploring the record to determine
whether the lower court’s decision was supported by evidence); see also Pierson v.
Sharp, 283 So. 2d 880, 881 (acknowledging that the burden is on a petitioner to
provide an appellate court with a record adequate to support its appeal and the
failure to do so precludes appellate review). The record in an appeal is limited to
the documents filed in the lower court, exhibits that are not physical evidence, and
transcripts of proceedings filed in the lower court. See Fla. R. App. P. 9.200(a)(1).
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The extraordinary writ of certiorari is not a ‘free for all’ for Petitioner to
bring new arguments and evidence in an attempt to circumvent the sound
discretion of the trial court on interlocutory orders. Yet, Petitioner seeks to have
this Court review hundreds of pages of documents and arguments in Petitioner’s
Appendix that were not before the trial court when the Hearing occurred11 and
when the oral pronouncement at that hearing was reduced to writing in a
ministerial act by the lower court on April 17, 2017 into the Order.12 See [A–17] at
12:10–23. In fact, documentation in Petitioner’s Appendix as to Respondent
Murphy’s purported ‘bad acts’ that justify protection from the Deposition did not
appear in the lower court record until April 19, 2017 – AFTER the Hearing and
Order – when Petitioner filed its Motion to Stay pending appeal in the lower court,
11 This Court denied the Respondents’ Motion to Strike on this issue. In thosebriefings, the transcript was cited. Counsel for Petitioner handed the trial court astack of materials to review. The undersigned counsel for Respondents objectedas the Hearing was not evidentiary. The trial court said “ok” and did not reviewthe materials (although the transcript did not specifically include a ruling of“sustained” as to the objection). Nowhere in the transcript or the record does itdemonstrate that the trial court actually considered such materials whenrendering the oral ruling at the Hearing, and the stack of materials were notincluded in the record of the Hearing.
12 See Knott v. Knott, 395 So. 2d 1196, 1198 (Fla. 3d DCA 1981)(stating that thereduction of an order to writing is a ministerial act); see also Lazy Flamingo,USA, Inc. v. Greenfield, 834 So. 2d 413, 415 (Fla. 2d DCA 2003)(noting thevalidity and binding authority of an oral order of the court even though awritten one has not yet been entered).
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which the lower court granted. The Order Staying the trial court proceedings
pending this appeal is not on appeal and outside the scope of the record.
In the Petition, Petitioner stated numerous alleged factual allegations against
Respondent Murphy, most of which were never stated within the Petitioner’s
Motion for Protective Order or brought up at the Hearing. The Hearing was based
upon legal argument; the Hearing was not evidentiary. No evidence or testimony
was taken (other than the Demonstrative Aids (See [B–10, p. 1–2 (also p. 279–280
of 314)) and various filed pleadings from the Kansas Litigation were furnished to
the trial court for reference. See [A–17].
If Petitioner wanted the trial court to review the Order and take into
consideration new facts/legal arguments, Petitioner should have filed a motion for
reconsideration prior to filing the Petition to allow this trial court to review the
Order and hold an evidentiary hearing. Petitioner failed to do so and instead
immediately filed the Petition alleging facts outside of the record. Generally, “it is
inappropriate to raise an issue for the first time on appeal” and appellate courts will
not consider issues not raised in front of the trial judge. See, e.g., Dober v.
Worrell, 401 So. 2d 1322, 1332–24 (Fla. 1981).
To distract this Court with various ‘red herrings,’ Petitioner conjectures
numerous ‘bad acts’ of Respondent Murphy to justify why Petitioner should be
protected from the Deposition and why the trial court violated the essential
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requirements of law for this Court to consider evidentiary issues such as credibility
of a witness, authenticity, and foundation – yet no such evidence was presented at
the Hearing before the trial court and now presented for this Court’s first
determination. For example, Petitioner alleges that the videotaping should not
occur because Respondent Murphy ‘cannot be trusted’ to comply with the Order
restricting the use of the Deposition for court proceedings and not generally online.
See [A–0], Order. To support this radical argument and request, Petitioner
incorrectly states that Respondent Murphy has been found in contempt numerous
times of orders entered in the Kansas Litigation. As the complete docket history in
the Kansas Litigation reveals, there are, nor has there ever been, any contempt
orders entered against Respondents in the Kansas Litigation. Petitioner’s assertion
of such is pure fiction. See Supp. A. [B–0] (p. 5–26 of 314). Also lacking from
Petitioner’s 500+ page Appendix is Petitioner’s reference to any such order or
finding from the Kansas Litigation that Respondents apparently violated. See
Appendix. Even if such really did exist, it should have been presented to the trial
court and not to this Court for an initial factual determination.
Furthermore, such argument is akin to improper character impeachment
under Chapter 90 Evidence Code, Florida Statutes, which prevents a litigant from
presenting argument that simply because a party did something previously it means
that the litigant will do the same thing this time. See e.g. F.S. §90.609 & §90.610.
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If such is improper at the trial court level, such improper character impeachment
should certainly be improper in a petition for writ of certiorari.
Petitioner goes on to inaccurately state that an order of protection of stalking
has been issued against Respondent Murphy. While it is correct that Respondent
Murphy was accused of harassment of two Kansas residents over a year ago, the
parties to that action (non–parties/not the Petitioner) settled their issues outside of
court, and Respondent Murphy consented to entry of the order upon the assent to
mutual terms13. Thus, Petitioner is attempting to use half–truths to create spin and
to purport that Respondent Murphy is violent and this Court should grant the
extraordinary relief of precluding Respondent Murphy (a named defendant in the
Kansas Litigation) from being present at the Deposition. Indeed, Petitioner is
asking this Court to make such a factual finding and determination which goes
beyond the scope of certiorari review as it was not in the Motion for Protective
Order nor discussed at the Hearing.
Petitioner’s request for such a new and extreme remedy from this Court to
exclude Respondent Murphy (who is a party in the Kansas Litigation) from
attendance at the Deposition is beyond the scope. No such request was made of
the lower court and no proffer of evidence supporting this request was put on
13 See [A–11] (pages 437 – 441) – the two Final Orders which both state,“ORDERS ARE ENTERED BY CONSENT WITHOUT ANY FINDING OFFACT OR FAULT”.
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record. [A–17] and [B–8]. No additional motion or request for rehearing was made
of the lower court prior to Petitioner’s filing for the extraordinary writ. See Supp.
A. [B–8] (p. 173–175 of 314). Instead, Petitioner seeks to have this Court review
new arguments and false allegations that were not of record at the time the Order
was orally pronounced at the Hearing or reviewed prior to the entry of the Order.
Therefore, this Court should not consider the request to have Respondent Murphy
precluded from personally attending the Deposition.
Even if this Court did review the documents in Petitioner’s Appendix, all
allegations made in the Petition are conjecture and require inference upon
inference. Petitioner has asserted other unsubstantiated factual allegations in his
Petition that are patently false in an apparent attempt to prejudice this Court by
presenting ‘red herrings’ and ‘bashing’ of the Respondent with purported facts that
are outside the record and would be disproven upon an evidentiary hearing.
Nonetheless, the undersigned did respond to some of these disparaging and false
allegations in Respondents’ Verified Response, which was verified by
Respondents. See Supp. A. [B–11], p. 6–7 (also p. 287–288 of 314), ¶28 (a)–(e).
To the extent a factual response is necessary given Respondents’ assertion
that such purported ‘bad acts’ are beyond the scope, Respondents respond with
facts from the record. As detailed in Intervenor’s Additional Suggestions (Supp.
A. [B–3], p. 154–156) and Intervenor’s Further Suggestions (Supp. A. [B–4], p.
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157–160), Petitioner’s attacks of Respondent Murphy’s purported ‘bad acts’ as
analogous to the ‘pot calling the kettle black’. As alleged in the record,
Petitioner’s actions to tortuously interfere with the operations of Crowd Shout
while usurping its legal standing and attempting to operate under the guise of its
authority is well documented in the Kansas Litigation; yet the record is absent of
documented ‘bad behavior’ by the Respondents. See Supp.A. [B–0]. As detailed
in ¶2–4 of Intervenor’s Further Suggestions (p. 157–158 of 314), Petitioner is
instructing and acting in concert with plaintiff’s counsel in the Kansas Litigation.
Petitioner’s ‘bad act’ carried out by Adam Gasper resulted in Respondent GCM
filing its Motion to Enforce. See Supp. A. [B–5], p. 161–169 of 314.
Consequently, and after a hearing on the Motion to Enforce, the Kansas court
granted Respondent GCM’s Motion to Enforce the Kansas court orders. See Supp.
A. [B–6] (“Order to Enforce”). Meanwhile, Petitioner is subject to the Motion for
Cause for Petitioner unilaterally shutting down the PayPal account and the Sonobi
account used by Crowd Shout, which effectively dried–up most of the revenue
generated by the Website. See [B–4], ¶6, p. 2 (also p. 149 of 314). Petitioner’s
conduct, outlined in the record, relating to the Kansas Litigation underscores the
need for the Deposition to occur, as Respondents have alleged tens of millions of
dollars of damages as a direct result of Petitioner’s actions.
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Therefore, this Court should not consider the factual allegations of purported
‘bad acts’ of Respondent Murphy in considering whether the Deposition should
take place because the trial court properly exercised its discretion and entered the
Order with appropriate and reasonable safeguards based upon the facts and issues
in existence at the time of the Hearing.
CONCLUSION/REQUEST FOR RELIEF
This Court should find that it does not have jurisdiction and dismiss the
Petition for lack of certiorari jurisdiction because Petitioner failed to meet the
extraordinary burden of demonstrating that Petitioner is irreparably harmed and
lacks any other adequate remedy of law. Petitioner failed to exhaust all trial court
remedies such as a motion for reconsideration, an evidentiary hearing, or
instructing the Petitioner not to answer questions at the Deposition/seeking relief at
the Deposition if such question occurred that was believed to be for annoyance,
embarrassment, oppression, or undue burden/expense. Even if the Court
determines it has jurisdiction, this Court should deny the Petition because
Petitioner waived his right to object by failing to comply with Rule 1.410(e) and
because the trial court properly exercised discretion to enter the Order with
adequate safeguards which complied with the essential requirements of law.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on July 28, 2017, a true and correct copy of the
foregoing was e–filed via eDCA portal and furnished via email to: attorneys for
Petitioner, Andrea Kurak, Esquire and Kelly Parsons Kwiatek, Esquire, Cobb Cole,
P.A., 149 South Ridgewood Avenue, Suite 700, Daytona Beach, Florida 32115–
2491, [email protected], [email protected], and
Lauren C. Heatwole, Esq.Florida Bar No.: 674583Heatwole Law Firm, P.A.1415 E. Robinson Street, Suite BOrlando, Florida 32801Telephone: (407) 490–2467Facsimile: (407) 641–9530Email: [email protected]: [email protected]: [email protected] for the Respondents,Gabriel Murphy and GCM Holdings Ltd
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CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Response complies with the font
requirements of Fla. R. App. P. 9.100(l).
Lauren C. Heatwole, Esq.Florida Bar No.: 674583Heatwole Law Firm, P.A.1415 E. Robinson Street, Suite BOrlando, Florida 32801Telephone: (407) 490–2467Facsimile: (407) 641–9530Email: [email protected]: [email protected]: [email protected] for the Respondents,Gabriel Murphy and GCM Holdings Ltd