Court Records
Filing # 131329589 E-Filed 07/23/2021 05:06:18 PM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CA FLORIDA HOLDINGS, LLC,
Publisher of THE PALM BEACH POST,
Plaintiff,
v. CASE NO.: 2019-CA-014681
DIVISION: AG
DAVE ARONBERG, as State Attorney of
Palm Beach County, Florida; SHARON R.
BOCK, as Clerk and Comptroller of Palm
Beach County, Florida.
Defendants. cos MEMORANDUM OF LAW IN SUPPORT OF DEF DAVE ARONBERG'S
AMENDED MOTION FOR A FEES
Defendant, DAVE ARONBERG, as Sta o of Palm Beach County, Florida,
(hereinafter the "State Attorney"), by and ugh el below, hereby submits the following
Memorandum of Law in Support of h. Motion for Attorneys' Fees, filed November 9,
2020, ("Amended Motion"), and • ereof states as follows:
LINE & BACK R • UND
I. On Nov 2019, Plaintiff filed its original Complaint that sought to create
a private right of IjQn un' er Fla. Stat. § 905.27, in the interest of "furthering justice", to compel
disclosure o the timony, minutes, and other evidence presented in 2006 to the Palm Beach
Coun uty, as to Jeffrey Epstein, (the "Requested Materials").
2. On November 26, 2019, the State Attorney and his office received an engagement
letter and attorney-client contract from the undersigned counsel and his law firm and later executed
said contract. (Def.Ex.11.
FILED: PALM BEACH COUNTY. FL, ABRUZZO, CLERK, 07/23/2021 05:06:18 PM
EFTA02733845
3. On December 6, 2019, the State Attorney filed his Motion to Dismiss Plaintiff's
Complaint. Notably, this filing put Plaintiff on notice that "Despite Plaintiff's allegations to the
contrary, Defendant Aronberg is not in custody or control of the records sought and is therefore
not a proper party to this action." On December 13, 2019, the Clerk also filed a Motion to Dismiss.
4. On January 17, 2020, Plaintiff filed its First Amended Complaint, whit in addition
to its original claim under § 905.27 Fla. Stat., ("Count II"), added a claim for D Relief,
("Count I"), that sought an order declaring that the State Attorney and disclose the
Requested Materials so Plaintiff could use those materials for the p se o rming the public.
5. On January 24, 2019, the State Attorney and t le ch filed an Answer to c
1,Count I of the First Amended Complaint and a Motion t m ount II ("Answer/Motion to
111c, Dismiss). This filing by the State Attorney again I tiff that:
It is significant to emphasize that d lalPubiffs allegations to the contrary,
Defendant Aronberg and the Office Attorney for the Fifteenth Judicial
Circuit are not in custody or co t of records sought herein, and therefore
Defendant Aronberg is not a p to this action. In fact, Defendant, Sharon
R. Bock, as Clerk and Com r alm Beach County, Florida, admits that it is
the custodian in possess' ocuments that are the subject of this action.
[See, Aronberg Answer/Motion smiss Count II, p. 12]
6. On Jja a 3„ Chief Judge Marx held a hearing on the State Attorney's and
Clerk's MotioCIiss Count II. [Def.Ex.2].
une 8, 2020, the Court entered its Order Granting Defendants' Motions to
Dismiss Ctfynt II of Plaintiff's First Amended Complaint with Prejudice ("Order"). IDef.Ex.31.
8. Immediately following the Court's Order, on June 8, 2020, the State Attorney,
through the undersigned counsel, served Plaintiff with a demand pursuant to § 57.105 Fla. Stat.,
to voluntarily dismiss/withdraw the First Amended Complaint and the claims against the State
Attorney, along with a Motion for Attorneys' Fees ("§ 57.105 Demand"). [Def.Ex.4]. As a result
2
EFTA02733846
of the Order, only Count I of Plaintiff's First Amended Complaint remained, which sought
Declaratory Relief under § 86.011, Fla. Stat.
9. In serving his § 57.105 Demand on Plaintiff, the State Attorney properly put
Plaintiff on notice that he would seek sanctions by filing the § 57.105 Motion for Attorneys' Fees
if Plaintiff failed to dismiss the remainder of its First Amended Complaint within 21 days of service
of the § 57.105 Demand.
10. Likewise, the State Attorney's § 57.105 Demand specifiO ed Plaintiff
that:
First and foremost, the [First Amended) Complaint is no by the material
facts necessary to establish the claims asserted neither Defendant
Aronberg, nor The Office of the State Attorney fo nth Judicial Circuit is
in custody or control of the 2006 grand jury mater s sought therein. Simply put,
the declaratory relief sought by the Plaintiff lagsords from my client that are
impossible for him or his office to produ raingly, Defendant Aronberg is
not a proper party to this action beca r what, he and his office do not
have possession, custody, or control e R uested Materials.
Moreover, even if the Plain
Aronberg would be unable
the requested documen
Attorney for the Fiftee
the 2006 Epstein grand j
o prevail in the declaratory action, Mr.
with any court order granting disclosure of
either Mr. Aronberg nor The Office of the State
'al Circuit have possession, custody, or control of
ords.
11. On J e 23(2020, Plaintiff's counsel sent a response to the § 57.105 Demand
refusing to w' e remainder of the First Amended Complaint as to the State Attorney.
[Def.Ex.5
12. After receiving Plaintiff's June 23, 2020, response refusing to withdraw the
remainder of the First Amended Complaint and waiting the prerequisite "21 days after service of
the motion" the State Attorney's § 57.105 Motion for Attorneys' Fees was filed with this Court on
July 1, 2020, (hereinafter "First Motion for Attorneys' Fees"). iDef.Ex.61.
3
EFTA02733847
13. Thereafter, on August 18, 2020, the State Attorney filed his Motion for Summary
Judgment, which included the Affidavit of the State Attorney ("Affidavit"), IDef.Ex.7], and
proceeded, on October 21, 2020, to file a Motion to Set Hearing on the State Attorney's Motion
for Summary Judgment after it became clear that there would be no resolution of this matter
without the Court's intervention.
14. Nonetheless, later the same day, October 21, 2020, rather t tting and
Judgment.
, pursuant to Rule
participating in a hearing on the merits as to State Attorney's Motion fo
Plaintiff filed its Notice of Dropping the State Attorney from the i
1.250(b), Florida Rules of Civil Procedure. 1Def.Ex.8].
15. As the filing of Plaintiff's Notice of Dro SI) tate Attorney operates as an
adjudication on the merits as to the State Attorne nded Motion for Attorneys' Fees,
("Amended Motion"), was filed November 9 elude the entirety of the State Attorney's
legal fees up to that date. IDef.Ex.9].
DUM OF LAW
I. LEGAL STANDARD
"The central p § 57.105, Fla. Stat., is, and always has been, to deter meritless
filings and thustine he administration and procedure of the courts. Thus, the post-1999
version of as expanded the circumstances where fees should be awarded and the purpose
is to d less filings." v. Bailynson, 268 So. 3d 762, 769 (Fla. 4th DCA 2019); See
Bionetics Corp. v. Kenniasty, 69 So. 3d 943, 948 (Fla. 2011). Accordingly, § 57.105, Fla. Stat.
provides the following language authorizing the award of attorneys' fees as sanctions in actions
such as the present litigation:
(I) Upon the court's initiative or motion of any party, the court shall award a
reasonable attorney's fee, including prejudgment interest, to be paid to the
4
EFTA02733848
prevailing party in equal amounts by the losing party and the losing party's attorney
on any claim or defense at any time during a civil proceeding or action in which
the court finds that the losing party or the losing party's attorney knew or should
have known that a claim or defense when initially presented to the court or at any
time before trial:
(a) Was not supported by the material facts necessary to establish the
claim or defense; or
(b) Would not be supported by the application of then-existing law to
those material facts.
Fla. Stat. § 57.105 (1).
Hence, in addition to a motion by any party, "Section 57.105(1 • d explicitly
confers upon the trial court the authority to award attorney's fees to t p g party upon the
court's initiative, if the court fords that the losing party .. . knew ou ave known that a claim
‘tor defense when initially presented to the court or at any t trial . . . [w]as not supported
fifby the material facts necessary to establish the clai e" or would not be supported by the
application of then-existing law to those mate . och v. ,47 So. 3d 320, 324 (Fla. 2d
DCA 2010).
Moreover, "[u]nder [§ 57.
intent that where a party files a eritl claim, suit or appeal, the party who is wrongfully required
to expend funds for atto is entitled to recoup those fees." County Conservation
Alliance v. Marti guy 3 So. 3d 856, 857 (Fla. 1st DCA 2011) (finding that "Courts are not
at liberty to the legislative mandate that courts shall impose sanctions in cases without
founda terial fact or law. The word "shall" in § 57.105, Fla. Stat., evidences the legislative
intent to impose a mandatory penalty to discourage baseless claims, by placing a price tag on
losing parties who engage in these activities. Section 57.105 expressly states courts "shall" assess
attorney's fees for bringing, or failing to dismiss, baseless claims or defenses.").
* tat.] the legislature has expressed its unequivocal
5
EFTA02733849
Additionally, "[s]ection 57.105 does not require a finding of frivolousness to justify
sanctions, but only a finding that the claim lacked a basis in fact or law" and "does not require a
party to show complete absence of a justiciable issue of fact or law." County Conservation
Alliance v. County, 73 So. 3d 856, 865 (Fla. 1st DCA 2011). However, "[w]here there is
an arguable basis in law and fact for a party's claim, a trial court may not sanction that arty under
section 57.105." Minto PBLH, LLC v. 1000 Friends of Florida, Inc., 228 So. 3d 1 la. 4th
AS'
0Finally, in determining an award of sanctions under § 57.1 court's findings
DCA 2017).
"must be based on substantial competent evidence" and the tria r make an inquiry into c)
t p?what the losing party knew or should have known dun e -establishment process, both
S /before and after the suit was filed." See Trust Mort , c. erlanti, 193 So. 3d 997, 1001 (Fla.
4th DCA 2016); See also Chue v. Lehman, 21 . , 891-92 (Fla. 4th DCA 2009). ? S D
H. THE STATE ATTORNEY'S
OF THE 21-DAY SAFE
WAS THE AMENDED
MOTION IS NEITHER IN VIOLATION
()VISION IN FLA. STAT. § 57.105(4), NOR
OOT UPON FILING.
A. The Amended oti n does not violate the 21-day safe harbor provision
because Plainti ped the State Attorney from the action prior to the filing
of the Ambrtd Motion.
"Section 05(4), Florida Statutes creates an opportunity to avoid the sanction of
attorney's ting a safe period for withdrawal or amendment of meritless allegations and
claims. . Bailynson, 268 So. 3d 762, 769 (Fla. 4th DCA 2019). Specifically, the relevant
portion of the Statute states:
A motion by a party seeking sanctions under this section must be served but may
not be filed with or presented to the court unless, within 21 days after service of the
motion, the challenged paper, claim, defense, contention, allegation, or denial is not
withdrawn or appropriately corrected.
Fla. Stat. § 57.105(4). Likewise, "[t]he primary purpose of the safe harbor provision of §
6
EFTA02733850
57.105(4), Fla. Stat., is to provide the recipient of a motion for an award of costs and attorney's
fees with notice and the opportunity to withdraw or abandon a frivolous claim before sanctions are
sought." MC Liberty Express, Inc. v. All Points Servs., 252 So. 3d 397, 404 (Fla. 3d DCA 2018).
Here, Plaintiff contends that the State Attorney "did not serve his Amended Motion at any
time before filing it, and thus failed to comply with the 21-day notice provision.... Def.Ex.10,
p. 6]. Plaintiff claims that for this reason alone the Amended Motion should be and cites
in support of their argument Lago v. Kame By Design, LLC, 120 So. 3d 73, DCA 2013)
(holding that "if a party files a subsequent or amended motion for t n er section 57.105
and raises an argument that was not raised in the original motio n 57.105 sanctions, the
tsubsequent motion must independently comply with the ay 'safe harbor' provision
of Section 57.105(4).").
Despite Plaintiff's assertion, the ins
forth therein does not apply based on
is istinguishable from Lago, as the rule set
timeline of this action. In Lago, the plaintiff
served its § 57.105 demand and g motion for attorneys' fees on June 30, 2011. After
waiting for the requisite 21 arbor period to pass, the plaintiff filed its motion for
attorneys' fees with the July 29, 2011. The plaintiff then filed an amended motion for
attorneys' fees w on September 20, 2011. The court entered an order granting the
plaintiff's m 57.105 attorneys' fees on October 25, 2011. The defendant filed a motion
for re d on September 5, 2012, the court reheard the argument for attorneys' fees,
ultimately upholding its October 25, 2011 order. Significantly, during the September 5, 2012
rehearing, the defendant withdrew its offending motion that triggered the plaintiff's § 57.105
7
EFTA02733851
demand and motion for attorneys' fees. Eventually, on August 7, 2013, the trial court's order was
remanded by the 4th DCA based on the rule set forth above.'
Thus, in Lago, because the case was still active when the plaintiff's amended motion for
attorneys' fees was filed and was not served on the defendant in compliance with the 21-day safe
harbor provision before it was filed with the court, pursuant to § 57.105, the defendant was entitled
to notice and an opportunity to change its position and withdraw its offending mot
AS" sanctioned.
The timeline of events in the instant action stands in stark
accordingly necessitates a different result. Here, Plaintiff was
57.105 Demand and its accompanying First Motion for A
A
23, 2020, Plaintiffs counsel sent a letter in response
i ik ,,I of the First Amended Complaint against the rney. After waiting for the requisite 21- te
day safe harbor period to pass, the State me S First Motion for Attorneys' Fees was properly
filed with the Court. Over 4-mon I er settlement negotiations failed and after the State
re being
Attorney's Motion for Su
party. PetEx.81. Signi
thus had no abi •
pattern, the e does not apply here.
'that of Lago and
the State Attorney's §
s on June 8, 2020. On June
aintift's refusal to drop the Count
ent was filed, Plaintiff dropped the State Attorney as a
only after Plaintiff dropped the State Attorney as a party, and
ge its position, was the Amended Motion filed. Based on this fact
Plaintiff's decision to drop the State Attorney as a party, the Florida Rules of Civil
Procedure and the courts of Florida are clear. Because Rule 1.250 specifies that a party is dropped
"in the manner provided for voluntary dismissal in Rule 1A20(aX1)," dropping a party therefore
I Notably, the court in Lago v. Kame By Design, LLC, 120 So. 3d 73, 75 (Fla. 4th DCA 2013), despite finding that the
plaintiff's amended motion for attorneys' fees was improper, the trial court was instructed to rule as to the plaintiff's
original motion for attorneys' fees as it was properly served and filed pursuant to § 57.105, Fla. Stat.
8
EFTA02733852
"operates as an adjudication on the merits." See, Siboni v. M, 52 So. 3d 779, 781 (Fla. 5th
DCA 2010); Rule 1.420(a)(1) Fla. R. Civ. P. Notably, Plaintiff admits that "the entire action,
which necessarily included Count I [of the First Amended Complaint], was dismissed as to [the
State Attorney] on October 21, 2020. [Def.Ex.I 0, p.'7]. Nonetheless, as a result of dropping the
State Attorney from the case, Plaintiff not only effectively made an admission that its allegations
against the State Attorney have no basis in fact or law, but also concluded the cast the State
Attorney and thereby became the losing party in this action. iS
Consequently, unlike the fact scenario and timeline in Lago, aintiff concluded
the instant litigation by dropping the State Attorney from t tio fore the filing of the
Amended Motion, it was impossible to give Plaintiff an p to respond and withdraw its
Count I of the First Amended Complaint since Plai ready done so, and therefore there
can be no violation of the 21-day safe harbor *o forth in Fla. Stat. § 57.105(4). c
Based on the foregoing, the State me Amended Motion does not violate the 21-day
safe harbor provision because PI ' i ped him from the action prior to the filing of the
Amended Motion, and therefo was not prejudiced by the filing of the Amended Motion.
Accordingly, as further below, Plaintiff has exposed itself to § 57.105 attorneys' fees as
sanctions for fail' the State Attorney as a party within the 21-day safe harbor period.
B. State Attorney's Amended Motion was not moot upon filing, but rather
÷ properly filed at the conclusion of the litigation to fully incorporate the
ntirety of the State Attorney's legal fees to date.
Oddly, Plaintiff also contends that because the State Attorney was dropped from the action
nineteen days before the State Attorney's Amended Motion was filed, the Amended Motion is
somehow moot. IDef.Ex.10]. Not only does Plaintiff fail to provide any authority in support of
this position, taking such a position lacks any logical reasoning or common sense. To be clear, the
9
EFTA02733853
State Attorney's First Motion for Attorneys' Fees was properly served and later filed pursuant to
the statutory instructions set forth in § 57.105. When Plaintiff failed to withdraw its remaining
claim against the State Attorney within the 21-day safe harbor period it exposed itself to sanctions
under the Statute despite eventually dropping the State Attorney more than 4-months after the §
57.105 Demand was made. As set forth at length above, Plaintiff's dropping of the State Attorney
as a party acted as an adjudication on the merits against Plaintiff. Thus, at that time11ft fe harbor
provision of § 57.105(4) no longer applied to Plaintiff because it acquiesc te Attorney's
demand, albeit late, no longer had any opportunity to respond, an
position or react to the Amended Motion as the State Attorney o er an active party in the
lawsuit.
\Furthermore, the Amended Motion was not t time of filing because when it was
i
c ites
ls ,filed it incorporated the entirety of the State ' from the time of serving the § 57.105 i tir
Demand through the time that the Sta tto was dropped from the case and the action si te
concluded. There is nothing impr r b the Amended Motion or any argument or authority
offered by Plaintiff that would ak Amended Motion moot. Likewise, amended motions for
attorneys' fees are filed c u tly as a matter of course to include the entirety of fees in a lawsuit.
Here, the State ey's tal legal fees were able to be calculated and submitted at the time of
filing the Motion.
he State Attorney's First Motion for Attorneys' Fees is not insufficient and
was properly filed in accordance with the procedures set forth in § 57.105.
Plaintiff argues that the State Attorney's First Motion for Attorneys' Fees "was insufficient
under Fla. Stat. § 57.105 when filed [because] it set forth no substantive arguments as to why
Count I of the Amended Complaint was [un]supportable based on material facts in the record or
the application of existing law to those facts." [Def.Ex.10, p. 8]. Despite Plaintiff's contention,
le to change its
10
EFTA02733854
Fla. Stat. § 57.105 has no such requirement regarding the contents of a motion for attorneys' fees
served in conjunction with a § 57.105 demand. In fact, regarding § 57.105 motions for attorneys'
fees the Statute is limited to the following language regarding the safe harbor provision:
A motion by a party seeking sanctions under this section must be served but may
not be filed with or presented to the court unless, within 21 days after service of the
motion, the challenged paper, claim, defense, contention, allegation, or denial is not
withdrawn or appropriately corrected.
Fla. Stat. § 57.105(4). Moreover, the State Attorney's June 8, 2020 § 57.105 D d s cifically
sets forth the reasons why Count I of the First Amended Complaint had • in fact or law.
Likewise, the State Attorney's First Motion for Attorneys' Fees spec states that:
[O]n June 8, 2020, Plaintiff was served with a copy o
letter from the undersigned attorney, in accordan
Statute, demanding dismissal of the [First Am
prior to the filing of this Motion. In sai
Plaintiff of the facts which establish that t
support of the facts or the law.
?SIC[Def.Ex.6]. Accordingly, the State Atto pro, rly put Plaintiff on notice that he would seek Az ‘ rame
tion, together with a
tion (4) of the above
mplaint, at least 21 days
fendant's attorney advised
ended] Complaint is without
attorneys' fees as sanctions under
during the 21-day safe harbor
for Attorneys' Fees, it
cannot be consid
In ad
eviden
f the First Amended Complaint was not withdrawn
ce, regardless of the length or breadth of the First Motion
roperly within the statutory procedures set forth in § 57.105 and
cient despite Plaintiff's contention.
aintiff asserts that "[a] motion for sanctions must be supported by the record
time it is filed" [and] "[b]ecause the First Motion was not so supported, it fails
under the [S]tatute." IDef.Ex.10, p. 8]. In support of this argument, Plaintiff asserts that there was
no record evidence supporting the State Attorney's statement from the § 57.105 Demand that it
was impossible for him to provide the Requested Materials because he has no possession, custody,
or control of them.
11
EFTA02733855
Despite Plaintiff's argument here, Plaintiff has failed to provide any supporting authority
whatsoever and there is no statutory requirement or language in § 57.105 that supporting record
evidence must exist to properly serve a § 57.105 demand and motion for attorneys' fees. "The
central purpose of § 57.105, Fla. Stat., is, and always has been, to deter meritless filings and thus
streamline the administration and procedure of the courts." v. Bailynson, 268 o. 3d 762,
769 (Fla. 4th DCA 2019). In this vein, a § 57.105 demand and accompanying mot' ttorneys'
fees can be filed at any time after a lawsuit is initiated, hence even directly e to the filing
of a complaint, regardless of whether any record evidence exists at e r support of the §
57.105 demand. In fact, § 57.105(1) specifically states in perti9s%p at:
[T]he cowl shall award a reasonable attorney's f y claim or defense at
pny time during a civil proceeding or action in ourt finds that the losing
party or the losing party's attorney knew o ave known that a claim or
defense when initially presented to the co t v time before trial:
(a) Was not supported by t facts necessary to establish the
claim or defense; or
(b) Would not be sup e application of then-existing law to
those material facts.
Fla. Stat. § 57.105(1).
Consequently, the foreg indicatcs that the State Attorney's First Motion for
Attorney's Fees, as rve an filed, is sufficient under § 57.105 to seek sanctions from
Plaintiff for i drop the State Attorney from the instant lawsuit within the 21-day
safe hart n after being notified why its First Amended Complaint had no basis
in fact or . Furthermore, as set forth at length above, despite Plaintiffs contention, the
State Attorney had no obligation to serve his Amended Motion prior to filing it with the
Cowl as Plaintiff had already dropped him from the case when it was filed.
12
EFTA02733856
III. THE COMPETENT, SUBSTANTIAL EVIDENCE ON THE RECORD SHOWS
THAT THERE IS NO ARGUABLE BASIS IN LAW OR FACT FOR THE ISSUES
RAISED IN PLAINTIFF'S COUNT I, WHICH NOT ONLY LACK A GOOD
FAITH ARGUMENT FOR THE INTERPRETATION OF EXISTING LAW OR
ESTABLISHMENT OF A NEW LAW WITH A REASONABLE EXPECTATION
OF SUCCESS, BUT ALSO ARE NEITHER NOVEL OR COMPLEX.
In determining an award of sanctions under § 57.105, the trial court's findings "must be
based on substantial competent evidence" and the trial court "must make an inqui
losing party knew or should have known during the fact-establishment pro
after the suit was filed." See Trust Mortg.. LLC c. Ferlanti, 193 So. 3d
2016); See also Chue v. Lehman, 21 So. 3d 890, 891-92 (Fla. 4th DC
Here Plaintiff relies on § 57.105(3Xa), which sets f
improper under the Statute:
3) Notwithstanding subsections
awarded:
(a) Under paragraph
defense was initially pres
extension, modificatio
new law, as it applt
pf success.
Fla. Stat. § 57.105(3)(a).
In support of pooh, Plaintiff unpersuasively relies on the court's determination in MC
Liberty Expr c. 11 Points Servs., Inc., 252 So. 3d 397, 403 (Fla. 3d DCA 2018) (finding
that "[w] reasonably believes the factual basis for its claim exists, it is entitled to
proceed w its claims and seek to prove those facts. If attempts to prove those facts are fruitless,
that is still not cause for sanctions where the party's initial belief was well founded." Likewise,
Plaintiff asserts that "even in absence of existing supportive law, if the claim at issue was presented
as a good-faith argument for the extension or modification of existing law or the establishment of
new law, with a reasonable expectation of success, the Court cannot sanction the party or its
o what the
th before and
I (Fla. 4th DCA
enario where sanctions arc
(1) , nTonetary sanctions may not be
urt determines that the claim or
court as a good faith argument for the
1 of existing law or the establishment of
aterial facts. with a reasonable expectation
13
EFTA02733857
attorney." See Key Biscayne Gateway Partners, Ltd. v. Village Council for Village of Key
Biscayne, 240 So. 3d 84, 87 (Fla. 3d DCA 2018).
A. The defense to the issuance of sanctions under § 57.105(3)(a) does not protect
Plaintiff because as applied to the material facts, Plaintiff has failed to provide
a good faith argument with a reasonable expectation of success.
Notably, Plaintiff's arguments exclude the limitation that the § 57.105(3Xa) d fense only
applies to demands made under § 57.105(1)(6). Accordingly, Plaintiff's attem revent an
award of sanctions here only applies to whether Plaintiff or Plaintiff's a ew or should
have known" that the First Amended Complaint "when initially p n e court or at any
time before trial ... (b) would not be supported by the applic • o n-existing law to those
material facts necessary to establish their claim." [See, OA.
Despite Plaintiff's argument that sanctions p 57.105(1)(b) are unjustified based
on the defense provided under § 57.105(3)(a h s argument fails as there is no arguable
basis in law that the State Attorney pm ' e ested Materials. In determining an award of .....„
sanctions under § 57.105, the trial " r t make an inquiry into what the losing party knew or
should have known during the ishmentprocess, both before and after the suit was filed."
See Tntst Mortg., LLC c. ti, 193 So. 3d 997, 1001 (Fla. 4th DCA 2016); See also Chue v.
Lehman, 21 So. 3 -92 (Fla. 4th DCA 2009). Here, Plaintiff's fact-establishment process
began befo o its original Complaint or First Amended Complaint were filed. Notably,
both p volved around Plaintiff's arguments for a private right of action under Fla. Stat.
§ 905.27 and whether The Palm Beach Post had constitutional and statutory standing to overcome
grand jury secrecy provisions "in furtherance of justice."
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EFTA02733858
As Plaintiff researched § 905, Fla. Stat. it would seem reasonable that Plaintiff would have
encountered § 905.17, Fla. Stat. during its fact-establishment process. Notably, regarding the
disclosure of grand jury materials, § 905.17(1) states:
The notes. records. and transcriptions are confidential and exempt from the
provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and shall be
released by the clerk only on request by a grand jury for use by the grand jury or
on order of the court pursuant to s. 905.27.
Accordingly, based on the clear, unambiguous statutory langua t fdith in §
57.105.17(1), only the Clerk, not the State Attorney, may release grand' als pursuant to t i
an order of the court. Thus, it is apparent that the State Attorney d hi office lack the legal
authority to obtain and deliver the Requested Materials dem y Plaintiff in Count I of the
First Amended Complaint.
Regardless of whether Plaintiff actually f controlling provision set forth in §
905.17(1) during its fact-establishment p Plaintiff was not only on constructive notice of
said statutory provision, Plaintiff wa y informed of this provision in several instances
prior to the State Attorney be*
research, statutory constructive ce, the State Attorney's affidavit, all of the pleadings and
C as a party. Nonetheless, based on Plaintiff's own r)
correspondence in
media accoun ief Judge Manes statements during the June 3, 2020 hearing, Plaintiff
should ha that Count 1 of the Amended Complaint "would not be supported by the
applicatio f then-existing law to [the] material facts" in this action. See § 57.105(1)(b).
well as through the State Attorney's office press release and social
B. Sanctions against Plaintiff are appropriate under § 57.105(1)(a) as Plaintiff
knew or should have known that Count I was not supported by the material
facts necessary to establish the claim or defense.
Even if Plaintiff were somehow successful in defending against sanctions based on a good
faith argument for a reasonable expectation of success pursuant to § 57.105(1)(6), sanctions would
15
EFTA02733859
still be appropriate against Plaintiff pursuant to § 57.105(a) regardless of Plaintiff's alleged "good
faith belief' or "reasonable expectation of success." Section 57.105(1Xa) states that "the court
ill award a reasonable attorney's fee ... on any claim or defense at any time during a civil
proceeding or action in which the court finds that the losing party or the losing party's attorney
knew or should have known that a claim or defense when initially presented to the court or at any
time before trial... (a) was not supported by the material facts necessary to estab
defense."
As to § 57.105(1Xa), the material facts showing that Plaint'
expectation of success have been open, obvious, and apparent involved in this matter
from the start. Specifically, the State Attorney's positio onsistent: neither he nor his
office has possession, custody, or control of the Re erials and therefore the declaratoryV i‘gb
S ,relief sought by Plaintiff seeks materials that i o • le for the State Attorney or his office to s i
produce and he is not a proper party to • tion Def.Ex.7,1 4113-4]. Again, these material facts tILr ase
negating Plaintiff's claim against S torney were not only set forth in the June 8, 2020, §
57.105 Demand Letter, but hay e basis for the State Attorney's defense in every pleading,
claim or
474, filing, and/or correspond ' this matter.
Plaintiff Id ha e known from the initiation of the case that the First Amended
Complaint w no pported by the material facts necessary to establish their claim for declaratory
relief; e very least, Plaintiff should have known that its First Amended Complaint was
not supported by the material facts after Judge Marx's statements during the June 3, 2020 hearing
on Defendant's Motion to Dismiss Plaintiff's Count II. During that hearing, Chief Judge Marx
drew a bright line as to when Plaintiff knew or should have known that Count I of the Amended
Complaint had no basis in fact or law since the relief sought thereby is impossible for the State
Oas no reasonable
16
EFTA02733860
Attorney to perform. Specifically, Chief Judge Marx made the following statements putting
Plaintiff on notice if they weren't already:
"I must look at the four corners of the motion, which alleges that the State Attorney,
Dave Aronberg, and the clerk and comptroller, Sharon Bock, actually have custody
and control of these grand jury proceeding. Whether that is true or not is not for
this court to determine because I'm looking simply at the four corners of the
complaint. But, not for nothing, I think we all know that they don't have control
and custody of the records." [June 8, 2020 Hearing Transcript, p. 3:18 — 4:1].
egec e"I think we can all agree ... that the state attorney doesn't have these r " [
8, 2020 Hearing Transcript, p. 5:17-19].
"I'm asking you, how are the clerk and the state attorney the ro endants?"
[June 8, 2020 Hearing Transcript, p. 8:4-6].
"I'm puzzled by the procedural posturing of this c g the state attorney.
And, you know, I'm further stymied by the fact t o ge in your complaint
that they have — particularly David Aronberg rney — that he has these
records." [June 8, 2020 Hearing Transcript,
"[O]■, let's run this all the way out. s you win and you get a judgment
against the State Attorney Dave at's he supposed to do with it? He
can't release the grand jury testi as no authority whatsoever to do that."
[June 8, 2020 Hearing Transc -22].
"And the only thing we'
attorney have to defen
They — even if you were
you what they do
"I'm sim
even d
8, 20
y about is why should the clerk and the state
etion when it's a [im]possibility of performance?
in and get a judgment against them, they cannot give
." [June 8, 2020 Hearing Transcript, p. 10:21 — 11:1].
ying *hy should these two entities have to defend this lawsuit when
ad if [you] win they can't give you what they don't have?" [June
g Transcript, p. 1 I:12-15].
u know, really, I want you to boil it down for me as to this — let's take it
all e way down the road. You win. You get a judgment against the clerk and the
state attorney. I know there's other reasons why you might have filed it this way.
But I'm just simply puzzled because I do hear what the clerk and the state attorney
are saying, and that is, performance is impossible. They don't have the records and
cannot — absolutely. There's not even an inch of wiggle room — that they could
release the records even if you got a judgment. It is solely a determination for the
court. I, frankly, think, you know, there's ways to get to your records. There's ways
to get confidential records. But it isn't by suing the state attorney and the clerk."
[June 8, 2020 Hearing Transcript, p. 16:12 — 17:3].
17
EFTA02733861
"Even assuming arguendo that they have the records — we know they don't — you
were to get a judgment against them, how would you expect them to perform?"
[June 8, 2020 Hearing Transcript, p. 17:6-9].
"What do you mean? What do you mean? They're not trying to block it. They're
saying that despite the fact — let's just talk about the clerk, because we all know the
state attorney doesn't have it." [June 8, 2020 Hearing Transcript, p. 17:23 — 18:2].
In fact, during the Motion to Dismiss hearing, Plaintiff's counsel, Ms. Boyagian,
acknowledged on the record the State Attorney's assertion that he does not ssession,
"My understanding is that the state attorney has asserted 0 not have
possession. It's not my understanding that the clerk has taken at sition. So the
clerk may indeed be the — someone who does have es , custody, and
control." [June 8, 2020 Hearing Transcript, p. 9:1-6
custody, or control of the Requested Materials:
"Two points, your Honor: One is that, again, t c not assert in her papers %I t,
that she does not have control. That is a po • •ci he State Attorney's Office
has asserted." [June 8, 2020 Hearing Tra p. 7:10 - 13].
Consequently, following the June 3 tion to Dismiss Hearing, at the very least,
Plaintiff knew or should have known .105(I)(a) that Count I of the Amended Complaint
"was not supported by the ma I necessary" to establish their claim. See Fla. Stat. §
57.105(1)(a). In fact, later theCd e day that Chief Judge Marx entered her Order Granting
Defendants' Motio to D Count II with Prejudice, the State Attorney's § 57.105 Demand
and accom • Motion for Attorneys' Fees was served on Plaintiff explaining the
impossibi i State Attorney being able to provide the Requested Materials. Accordingly,
the forego not only shows that § 57.105 sanctions are justified against Plaintiff, but also that
there is no arguable basis in fact that the State Attorney provide the Requested Materials.
C. Plaintiff's Count I is neither novel nor complex as it merely seeks declaratory
relief and because the State Attorney's lack of possession, custody, or control
of the Requested Materials creates an impossibility of performance.
Plaintiff also argues that "Where an issue is novel and complex, sanctions under Section
18
EFTA02733862
57.105(a) may not be imposed." Grove Key Marina, LLC v. Casamayor, 166 So. 3d 879 (Fla. 3d
DCA 2015). However, despite Plaintiff's reliance on Casamayor, there is nothing in the court's
opinion that stands for the proposition that Plaintiff accerts. Nonetheless, the Fist District Court
of Appeal in County Conservation Alliance v. County, 73 So. 3d 856, 864 (Fla. 1st
DCA 2011), stated that "[w]ere we to determine that complex cases are immune fro sanctions
under section 57.105, we would be abdicating our duty and violating Article g 3 of the
Florida Constitution." Moreover, while Plaintiff's Count II may fall int gory of being
"novel" since it sought a private right of action under § 905.27; how er, P afiff's Count I does
not rise to such a level as it merely seeks declaratory relief. R laintiff's arguments in
to support of Count I have no good faith basis or reasonable ta of success as further set forth
below.
Here, it is apparent that Plaintiff's Co td \I aratory relief is neither novel or complex.
All of the available facts since the initia • of th ase and thereafter have stood in stark contrast coli amie
to Plaintiff's alleged "well-found • and "good faith" argument in support of Count 1.
Oddly, in arguing for novelty a co exity, Plaintiff heavily relies on its Count II for a private
right of action under § 90 a. Stat. and whether The Palm Beach Post had constitutional and
statutory standin overt me grand jury secrecy provisions "in furtherance of justice." See. C
905.27.2 N tef Judge Marx's June 8, 2020 Order Dismissing Count II with Prejudice
alrcad d of any further argument on this matter, but nonetheless Plaintiff seems
compelled to continually attempt to raise the issue. Nonetheless, based on the dismissal with
2 Although Plaintiff makes an attempt to continually argue Count II after it was dismissed with prejudice it is
significant to note that an action asserts a theory of liability using more than one, but separate, factual scenarios
in support of the theory, and one of the factual scenarios meets the criteria for a 57.105(1) fee sanction because it is
not supported by law, the sanction must be ordered." v. Bailynson, 268 So. 3d 762, 769 (Fla. 4th DCA 2019).
19
EFTA02733863
prejudice of Count II, the only matter remaining before the Court is Plaintiffs Count I for
declaratory relief.
Here, Plaintiff's argument for novelty and complexity fails as to Count I, regardless of
Plaintiff's reliance on "Constitutional provisions and interpretive case law, along with Fla. Stat. §
905.27" ... "to propose a good faith interpretation of existing law in support of its decl tory relief
claim in Count I." [Def.Ex.10, p. 10]. The simple fact of the matter is that Count I er novel
or complex because Count I merely seeks declaratory relief and the S ey's lack of
possession, custody, or control creates an impossibility of performan o t I, which greatly
simplifies the determination of whether the State Attorney is li e
Additionally, Plaintiff was on notice and should that the State Attorney had should
no possession, custody, or control of the Requeste • as of November 26, 2019, at the g ra
Searliest, when the State Attorney's Motion to • filed in response to Plaintiff's original S d
Complaint. That filing specifically s that espite Plaintiff's allegations to the contrary,
Defendant Aronberg is not in cust of of the records sought and is therefore not a proper
party to this action." Beyond utl notice, as set forth above, based on Plaintiff's own
research, statutory const notice, the State Attorney's affidavit, all the pleadings and
correspondence i s ma r as well as through the State Attorney's office press release and social
media accou ief Judge Marx's extremely significant statements, Plaintiff should have
kno unt I of the Amended Complaint "(a) was not supported by the material facts
necessary to establish the claim or defense; and/or (b) would not be supported by the application
of then-existing law to those material facts." See § 57.105(1)(a) and (b). Finally, it is important
to note that in Plaintiff's Count I for declaratory relief, the court's role is not to create an
"extension, modification, or reversal of existing law or the establishment of a new law," but rather
20
EFTA02733864
is to provide an interpretation of existing law that clears up any ambiguity. Here, § 905.17(1 ) is
abundantly clear that only the Clerk can release grand jury materials pursuant to a court order; and,
it is likewise clear that not only has the State Attorney never had possession, custody, or control
of the Requested Materials, but he also lacks any legal authority to obtain and deliver the
Requested Materials.
Furthermore, as set forth in detail above and despite Plaintiff's contenti ere is no
arguable "good faith" basis in law and/or fact, under § 57.105(1)(a) or y reasonable
expectation of success as to Plaintiff's Count I; and therefore, sa
appropriate under § 57.105. See, Minto PBLH, LLC v. 1000 Fr' o7T7orida, Inc., 228 So. 3d
d 147, 149 (Fla. 4th DCA 2017). Moreover, under no set c Plaintiff have a reasonable
expectation of success against the State Attorney in
ic
to
at no time did the State Attorney have poss u c dy, or control over said documents. In c c
fact, Plaintiff acknowledged, admitted, acqu ed to the impossibility of the State Attorney
providing the Requested Material 'ntiff dropped the State Attorney from the action on
C.)
October 21, 2020.
inst Plaintiff are
e sought after documents because
IV. THE RECORD CE INDICATES THAT PLAINTIFF KNEW OR SHOULD
HAVE KN WN STATE ATTORNEY WAS NOT A PROPER PARTY, THAT
THERE ASIS IN FACT OR LAW AS TO COUNT I, AND THAT THERE
WAS ONABLE EXPECTATION OF SUCCESS.
e foregoing arguments and record evidence set forth at length above, it is
apparent t at no time did the State Attorney have possession, custody, or control of the
Requested Materials and has no legal authority to produce or disclose the Requested Materials.
These facts were constantly and continually communicated to Plaintiff via the State Attorney and
even through Chief Judge Marx. Further, there is no rule or authority mandating that record
evidence eixist in support of a § 57.105 demand when it is made. Thus, the State Attorney is
21
EFTA02733865
rendered an improper party in this action based on the foregoing and the impossibility of the State
Attorney producing or having the legal authority to produce the Requested Materials.
CONCLUSION
As set forth at length above, Defendant, Dave Aronberg, as State Attorney of Palm Beach
County, Florida, respectfully requests that the Court enter an order granting the State Attorney's
Amended Motion for Attorneys' Fees in its entirety and grant such other and
Court deems necessary or proper.
C.)
/s/Dou
SCH
yler
n eS
LER,LLC
as the
bs, Esq.
iN rouglar No.:asA.w 0y012erl2E6s1q.
No.: 10249
J. Scholz, Esq.
Fla. Bar No.: 119979 Ac ci .e
961687 Gateway Blvd., Suite 201-1
Fernandina Beach, Florida 32034
([Phone Redacted]
([Phone Redacted] Fax
Primary: [Email Redacted]
Attorneys
( S. \?1*. CERTIFICATE OF SERVICE
for Defendant, Dave Aronberg
ERTIFY that on this 23rd day of July, 2021, a copy of the foregoing has been
electroniciijy filed with the Florida E-File Portal for e-service on all parties of record herein.
/s/ Douglas A. Wyler
22
EFTA02733866