IN THE FIFTH DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA RECEIVED, 6/26/2017 4:15 PM, Joanne P. Simmons, Fifth District Court of Appeal MICHAEL CONNOLLY, Plaintiff/Petitioner, Case No.: 5D17-1172 Trial Court Case No.: 2017-CA-000168-O v. GABRIEL MURPHY, GCM HOLDINGS LTD., Defendants/Respondents. / PETITIONER S RESPONSE TO APPELLEE S MOTION TO STRIKE PETITIONER S PETITION FOR WRIT OF CERTIORARI AND APPENDIX AND RELATED MOTION FOR SANCTIONS THERETO COMES NOW, Plaintiff/Petitioner, MICHAEL CONNOLLY ( Petitioner ), by and through his undersigned counsel, and files this Response to GABRIEL MURPHY and GCM HOLDINGS LTD. S ( Respondent ) Motion to Strike Appellant s Petition for Writ of Certiorari and Appendix and Related Motion for Sanctions Thereto. Background The Petition for Writ of Certiorari (the Petition ) was filed on April 19, 2017, in appeal of the trial court s order compelling the video-taped deposition of Petitioner, a non-party to the litigation out of which it stems, rendered on April 17, 2017. The order is the outcome of a hearing that took place on March 7, 2017 (the Hearing ). The crux of Petitioner s appeal relates to the need for a protective order in light of the fishing expedition for which Respondent intends to utilize the {042564-004 : AKURA/ATTYNOTE : 02150510.DOCX; 1} 1
deposition and the past actions and behavior of Respondent which necessitate appropriate limitations and restrictions in the conduct of any future deposition of Petitioner. Contrary to the assertions in Respondent s Motion, these matters were, in fact, before the trial court and at no time did the trial court agree that it would not consider the matters presented. Legal Analysis Respondent asserts that Petitioner for the first time included new documents in the Appendix to the Petition which were not part of the trial court record. See Motion 2. In fact, the record clearly demonstrates that the materials were presented to the trial court judge. See Hearing Tr. at 24:07-24:14. Petitioner agrees that counsel for Respondent objected to the materials, but upon such objection, the judge merely said Okay and then proceeded to discuss the content of the materials with Petitioner s counsel. See Hearing Tr. at 24:17-24:21 and 24:24-25:19. Respondent further asserts that the arguments in the Petition are based on facts and evidence not before the trial court, when in fact, the Petition did raise the concerns about Respondent s behavior in connection with discovery, and specifically, videotaped depositions in the context of other court proceedings, more than once over the course of the Hearing. See Hearing Tr. at 24:03-24:14 and 49:04-49:07. {042564-004 : AKURA/ATTYNOTE : 02150510.DOCX; 1} 2
Petitioner agrees that Rule 9.220, Florida Rules of Appellate Procedure, limits the content of an appendix to those portions of the record deemed necessary to an understanding of the issues presented. In this case, the documents which Petitioner presented to the trial court, and subsequently included in the Appendix to his Writ go to the very heart of the matter, specifically, the abuse of the Respondent in connection with discovery proceedings; the inappropriate use of video-taped discovery for the purpose of embarrassing and intimidating; and the creation of entire websites dedicated to maligning his opponents in litigation. Specifically, the documents show Respondent has created websites dedicated solely to disparage and harass third parties related to litigation in Kansas and uploaded several videotaped depositions of the parties with the intent to harass and intimidate. These materials and issues formed, in part, the basis of Petitioner s original motion in the trial court ( The deposition was noticed by [Respondent] in an effort to cause annoyance, embarrassment, and undue burden, and to harass [Petitioner] in the latest instance of [Respondent s] longstanding efforts to disrupt his life and businesses. A-3, 6); they were presented to the trial court; and they are central to an understanding of the issues presented in Petitioner s Writ. The cases which Respondent cites in support of its Motion are inapposite to the facts of the current case and taken out of context. In Department of Transportation v. Baird, 992 So. 2d 378, 382 (Fla. 5 th DCA 2008), this Court found {042564-004 : AKURA/ATTYNOTE : 02150510.DOCX; 1} 3
that it was improper for the circuit court, in its appellate function, to have addressed issues affecting [the parties] that had never been raised in the proceedings below and ordered injunctive relief against them with no prior notice. Petitioner concedes that such a result would raise procedural and due process concerns, however, in the present case, the Extra Record Documents which Respondent moves to strike were presented to the trial court and discussed at the Hearing. Respondent was certainly on notice of them, as Respondent was likewise presented with such materials at the Hearing, and the matters raised in them formed the basis of Petitioner s original motion in the trial court. Therefore, the procedural and due process concerns raised in Baird are simply not present in this case. Similarly, Respondent cites to Rosenberg v. Rosenberg, 511 So. 2d 593, 595, n. 3 (Fla. 5 th DCA 1987) for the proposition that [a]ppellate review is limited to the record as made before the trial court at the time of entry of a final judgment or orders complained of. In Rosenberg, after the case was set for oral argument, the appellant filed a motion for the court to take notice of a series of newspaper articles. This Court denied the motion, and in the footnote cited by Respondent, the Court went on to note that [i]f events occurred subsequent to the entry of the final orders under review which might have altered the trial court s decision, there are appropriate procedures... to bring these to the attention of the trial court.... In the present case, the material in Petitioner s Appendix were not only presented to the trial court, {042564-004 : AKURA/ATTYNOTE : 02150510.DOCX; 1} 4
they formed, in part, the basis upon which Petitioner sought a protective order in the first place. This is not an instance where Petitioner, after the fact, as was the case in Rosenberg, is trying to interject entirely new facts, circumstances, or post-hearing events into the proceedings. Further, Petitioner respectfully disagrees with Respondent s characterization of what occurred at the Hearing. Respondent states that the documents were never before the trial court. See Motion at 17. The transcript clearly indicates that the documents at issue were presented to the trial court at the Hearing, and the content of such documents were discussed. See Hearing Tr. at 24:03-24:14 and 49:04-49:07. Additionally, Petitioner disagrees with Respondent s conclusions regarding the trial court s treatment of such documents at the Hearing as reflected in footnote 1 of the Respondent s Motion, and Petitioner finds no record evidence supporting those conclusions. Specifically, as to the presentation of the documents at issue, Respondent states that upon Respondent s objection to the documents, [t]he trial court agreed and did not consider the materials. A review of the transcript of the Hearing does not support this conclusory statement. The exchange to which Respondent refers was as follows: Ms. Kwiatek: The other concern we have is simply Mr. Murphy s past behavior of when he has taken depositions throughout a number of cases, just his behavior in cases generally -- I ve got a copy here, Your honor -- is -- it s just the videotape nature of the deposition. There are blog {042564-004 : AKURA/ATTYNOTE : 02150510.DOCX; 1} 5
posts, he creates websites, there s post on YouTube. There s e-mails where he -- Ms. Heatwole: Your Honor -- Ms. Kwiatek: -- when he takes -- Ms. Heatwole: -- I m going to object to evidence being presented. There s no person -- no witness to present evidence, and this goes beyond the scope of the pleadings. -- The Judge: Okay. See Hearing Tr. 24:07-24:21. At no time did the trial court agree that it would not consider the materials. And later in the proceedings, when the parties were discussing briefing as to the duces tecum portion of the Notice of Deposition, Respondent claims that the trial court agreed that the materials would not be reviewed/considered. Again, this is a gross mischaracterization of what occurred at the Hearing. At no time was there any ruling or agreement from the court that the materials would not be reviewed or considered, and to the contrary, counsel for Petitioner noted that the materials would be included in the briefs that the parties were proposing to provide to the trial court. Counsel for Petitioner stated that she would use the materials in her response and the trial court stated [o]kay. See Hearing Tr. 42:17-42:19. {042564-004 : AKURA/ATTYNOTE : 02150510.DOCX; 1} 6
Despite Respondent s attempts to characterize the proceedings otherwise, the transcript makes clear that the materials at issue were before the trial court, and the inclusion of such materials in the Appendix to the Writ is not an attempt by Petitioner to put new or Extra Record evidence before this Court. Respondent also requests sanctions against Petitioner in the form of attorneys fees pursuant to Rule 9.410(a), Florida Rules of Appellate Procedure. Firstly, Petitioner urges that sanctions are not warranted because Petitioner s Writ and Appendix were not improper in any way, and Petitioner has not attempted to put evidence before this Court that was not before the trial court. But additionally, Petitioner would note that sanctions in the form of attorneys fees are not proper because Respondent failed to follow the procedures outlined in the Florida Rules of Appellate Procedure in order to obtain an award of fees; specifically, the process set forth in Florida Rule of Appellate Procedure 9.410. Rule 9.410 provides that a motion for attorneys fees as a sanction must be served on the party against whom sanctions are sought. Fla. R. App. P. 9.410. If the challenged paper is not corrected within twenty-one (21) days after service, the movant can then file the motion for sanctions with the appellate court. Id. Respondent did not comply with the foregoing provision and his claim for attorneys fees must be denied. {042564-004 : AKURA/ATTYNOTE : 02150510.DOCX; 1} 7
WHEREFORE, Petitioner respectfully requests that this Court deny GABRIEL MURPHY and GCM HOLDINGS LTD. S Motion to Strike Appellant s Petition for Writ of Certiorari and Appendix and Related Motion for Sanctions Thereto. By: /s/ Kelly Parsons Kwiatek ANDREA KURAK FLA. BAR NO. 0414069 KELLY PARSONS KWIATEK FLA. BAR NO. 860611 Primary Email: Andrea.Kurak@CobbCole.com Kelly.Parsons@CobbCole.com Secondary Email: Michele.Staples@CobbCole.com 149 S. Ridgewood Ave., Suite 700 Post Office Box 2491 Daytona Beach, FL 32115-2491 Telephone: (386) 323-9269 Facsimile: (386) 944-7958 ATTORNEY FOR PETITIONER, MICHAEL CONNOLLY {042564-004 : AKURA/ATTYNOTE : 02150510.DOCX; 1} 8
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 26th day of June, 2017, a true and correct copy of the above and foregoing was e-filed via edca and furnished via email to: Sarah Metz, Esq. Frank Ganz, Esq. Smith, Stout, Bigman & Brock, P.A. 444 Seabreeze Boulevard, Suite 900, Daytona Beach, FL 32118, smetz@daytonalaw.com fganz@daytonalaw.com; Lauren C. Heatwole, Esq. Heatwole Law Firm, P.A. 1415 E. Robinson Street, Suite B, Orlando, FL 32801 lauren@heatwolelaw.com kathryn@heatwolelaw.com shalanda@heatwolelaw.com /s/ Kelly Parsons Kwiatek Attorney {042564-004 : AKURA/ATTYNOTE : 02150510.DOCX; 1} 9