Court Records
Filing # 158742612 E-Filed 10/06/2022 04:54:02 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.
DAVE ARONBERG, as State Attorney of
Palm Beach County, Florida; SHARON R.
BOCK, as Clerk and Comptroller of Palm
Beach County, Florida.
Defendants.
CLOSING ARGUMENT OF DEFEND
CASE NO.: 19-CA-014681
(V ASA
RONBERG
The matter of Defendant, DAVE ARONBERG's Att4dpd won for Attorneys' Fees, brought
i
pursuant to § 57.105, Florida Statutes, was heard on Sep before 2 and September 8, 2022, the
AnsHonorable Luis Delgado. Plaintiff, CA FLORID N GS, LLC, Publisher of the PALM BEACH
co%POST, appeared and was represented by n R. etstone, Esq., Mark F. Bideau, Esq., and Gerard
Buitrago, Esq. of Greenberg Traurig. DAVE ARONBERG, as State Attorney of Palm Beach
County, Florida, appeared and w rep ed by Douglas A. Wyler of Scholz & Wyler, LLC.
I. INTRODUCTIO
The instant 1 suit a inst the State Attorney was misguided and improper from the start. The
material facts s ng Plaintiff's claim has no reasonable expectation of success in either fact or law
has been o , and apparent to everyone involved in this matter — except Plaintiff and its attorneys.
Specifica Mr. Aronberg's position has been consistent: neither he nor his office has possession, custody,
or control of the Requested Materials and therefore the declaratory judgment sought by Plaintiff seeks
materials that are impossible for the State Attorney or his office to produce and he is not a proper party to
this action.
Although Mr. Aronberg's position has been continuous throughout the litigation, Plaintiff is unable
to assert the same position. Despite suing Mr. Aronberg to provide access and disclose the requested
*** FILED: PALM BEACH COUNTY, FL ABRUZZO, CLERK. 10/06/2022 04:54:02 PM ***
EFTA02734930
records, during the evidentiary hearing Plaintiff's witness disingenuously contended that once Mr.
Aronberg said he had no objection to the Clerk releasing the records pursuant to a court order, "the Post
accomplished everything that it needed from the State Attorney in the amended complaint." [2022-09-08
Transcript, 6-13]. For all intents and purposes, Plaintiff and its lawyers attempted to amend their complaint
on the stand and reframe it as though it sought something entirely different from Mr. Aronberg: a voiced
non-objection vs. access to and disclosure of confidential court records of which the state mey has no
possession, custody, or control.
Moreover, this Court, at the conclusion of the evidentiary hearing on 8, 2022, made
several requests to the parties concerning issues and case authorities it w het t ave addressed in the
parties' written closing arguments and proposed judgments. One o ssues directed to Mr. Aronberg
requested a discussion of Lago v. Kame By Design, LLC, 120 5 (Fla. 4th DCA 2013) (holding
that "if a party files a subsequent or amended motion s ti s under section 57.105 and raises an
argument that was not raised in the original moti n 57.105 sanctions, the subsequent motion s e
must independently comply with the twen ne- 'safe harbor' provision of Section 57.105(4).").
Plaintiff attempts to persuade the Cou e authority of Logo that Mr. Aronberg is not entitled to §
57.105 sanctions because his A ndedl lion for Attorneys' Fees was not served before filing, and
therefore allegedly failed to omply Milt the 21-day notice provision.
Because this ' ue co cems one of jurisdiction, Mr. Aronberg wishes to be abundantly clear at the
outset: It mak nce whether the Court proceeds on the original Motion for Attorneys' Fees or
on the Am e e n for Attorneys' Fees, and if the Court has any concerns over the efficacy of the Logo
case in th atter, Mr. Aronberg encourages the Court to proceed on the original Motion for Attorneys'
Fees. Such was the remedy directed by the Fourth District Court of Appeal in Lago, and such would be the
simple remedy in this case, should the Court find a lack of compliance with the Amended Motion for
Attorneys' Fees' 21 -day safe harbor provision. Certainly, however, Lago does not compel the Court to
'See Pomeranz & Landsman Corp. v. Miami Marlins Baseball Club, L.P., 143 So. 3d 1182, 1183 (Fla. 4th DCA 2014).
2
EFTA02734931
disregard the Amended Motion. First, in contrast to Lago, no new arguments were raised in the Amended
Motion for Attorneys' Fees that were no already raised in the original motion for section 57.105 sanctions.
Lago, 120 So. 3d at 75. Although the original Motion was more condensed in its form than the Amended
Motion, it clearly stated Mr. Aronberg's intention to seek attorneys' fees under § 57.105, and it discussed
the 21-day safe harbor provision that commenced on June 8, 2020 with the service of the motion together
with a letter demanding dismissal of the First Amended Complaint. Notably, the orig. a Motion for
Attorneys' Fees expressly referenced, thereby incorporating, the June 8, 2020 , in hich the
Defendant's attorney advised the Plaintiff of the facts which establish that the Fi n ed Complaint is
without support in fact or law. The June 8, 2020 letter was introduced i o evi4ence at the evidentiary
c:,hearing by stipulation. This letter laid out in detail the specific reasoA ronberg is entitled to attorneys'
,fees as a sanction under § 57.105, the same reasons argued atAcc e • ary hearing and in the Amended
Motion.
Second, unlike Lago, the moving party ( ‘I\ ot been dismissed or dropped from the case
at the time his amended motion for attorneys' w led, which entitled the Lagos to a second notice and
an opportunity to change their position wi w their offending motion before being sanctioned. Here,
Aronbcrg as a Defendant at the time the Amended Motion
for Attorneys' Fees was fil More pecifically, the timeline of events in the instant action stands in stark
contrast to that of La and n essitates a different result.
in contrast, Plaintiff had already
Here, P served with the State Attorney's § 57.105 Demand and its accompanying First
Motion for Fees on June 8, 2020. On June 23, 2020, Plaintiff's counsel sent a letter in response
indicating aintiff's refusal to drop Count I of the First Amended Complaint against the State Attorney.
After waiting for the requisite 2I -day safe harbor period to pass, the State Attorney properly filed its First
Motion for Attorneys' Fees. Over four months later, after settlement negotiations failed and after the State
Attorney's Motion for Summary Judgment was filed, Plaintiff dropped the State Attorney as a party on
October 21, 2020. Significantly, only after Plaintiff dropped the State Attorney as a party, and thus had no
ability to change its position, was the Amended Motion filed. Thus, the Lago rule does not apply here and
3
EFTA02734932
Plaintiff is unable to provide any case law or authority that fits the fact pattern of the instant case.
In short, Mr. Aronberg's § 57.105 Demand Letter and fee motions follow the proper statutory
procedures and do not violate the 21-day safe harbor provision set forth in § 57.105(4) because Plaintiff
dropped Mr. Aronberg as a party prior to the filing of the Amended Motion for Attorneys' Fees. The safe
harbor provisions became meaningless and irrelevant once Plaintiff dropped Mr. Aronberg from its lawsuit.
Plaintiff and its attorneys no longer needed notice and an opportunity to withdraw their clai declaratory
relief as they had already done so by dropping Mr. Aronberg. Their instant claim to such
notice is disingenuous, considering the impossibility and redundancy of droppi
C
nberg from the
same lawsuit twice.
As further set forth below, the record evidence shows that P and its lawyers knew or should
have la:own prior to filing this lawsuit that the declaratory relydc¢jrq s under 57.105(IXa), because it
issis unsupported by the material facts necessary to esA 7ind under 57.105(1Xb) because it is
unsupported by the application of the law to the m ts
Plaintiff and its attorneys' knew or should ha
fact following Judge Marx's comm the June 3, 2020 hearing. Moreover, Plaintiff and its
attorneys certainly knew or shout 'n that there were no justiciable issue of law or fact regarding
their declaratory relief clai when t were served with the § 57.105 Demand Letter on June 8, 2020.
The record e er demonstrates that Mr. Aronberg properly complied with § 57.105 in
serving his d d filing the requisite fee motions. There was nothing improper or violative as
to Mr. rsuit of attorneys' fees for defending against a claim with no basis in fact or law.
Conseque Plaintiff and its attorneys have exposed themselves to sanctions under § 57.105 and Mr.
Aronberg prays the Court find that he is entitled to such relief.
H. STATEMENT OF FACTS
1. On November 14, 2019, Plaintiff filed a Complaint against the State Attorney and
Clerk seeking to create a private right of action under Fla. Stat. § 905.27, in the interest of "furthering
fa . Alternatively, Mr. Aronberg contends that
e declaratory relief claim lacks any basis in law or
4
EFTA02734933
justice", to compel disclosure of the testimony, minutes, and other evidence presented in 2006 to the
Palm Beach County grand jury, as to Jeffrey Epstein, (the "Requested Materials").
2. On November 26, 2019, the State Attorney and his office received a contingency fee
engagement letter and attorney-client contract from his counsel Douglas A. Wyler and the law firm of
Scholz & Wyler, LLC, which was executed by the State Attorney's office.
3. On December 6,2019, the State Attorney filed his Motion to Dismiss, whic ut Plaintiff
on notice that "Defendant Aronberg is not in custody or control of the [Requeste ate J and is
therefore not a proper party to this action."
4. On January 17, 2020, Plaintiff filed its First Amended Co amt, h in addition to its
original claim under§ 905.27 Fla. Stat., ("Count II"), added a claim fo
sought an order declaring that the State Attorney and the Clerk di
5. On January 24, 2020, the State Attorney
‘Complaint and a Motion to Dismiss Count II, which.11 i tufted Plaintiff that:
Relief, ("Count I"), that
lease the Requested Materials.
wer to Count I of the First Amended
Defendant Aronberg and the Office of a to ttorney for the Fifteenth Judicial Circuit
are not in custody or control of recor sought herein, and therefore Defendant
Aronberg is not a proper party to t . In fact, Defendant, Sharon R. Bock, as Clerk
and Comptroller of Palm B y, Florida, admits that it is the custodian in
possession of the docume subject of this action.
6. On June 3, 2020,
Motions to Dismiss Count
7. D that hearing, Judge Manes made several statements putting Plaintiff on notice
of the State A 's impossibility of performance as to Plaintiff's lawsuit in its entirety. See, Ex.J13,
pgs. 2
Judge Marx held a hearing on the State Attorney's and Clerk's
8. On June 8, 2020, the Court entered its Order Granting Defendants' Motions to Dismiss
Count II of Plaintiffs First Amended Complaint with Prejudice, leaving only Plaintiff's Count I seeking
declaratory relief.
5
EFTA02734934
9. Immediately following the Court's Order, on June 8, 2020, Plaintiff was served 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").
10. In serving his § 57.105 Demand, the State Attorney 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 the First Amended Complaint within 21 days of service of the § 57.105 De and.
specificall nn Plaintiff jic ,
that:
11. The State Attorney's June 8, 2020, § 57.105 Demand
First and foremost, the Complaint is not supported by the mate
establish the claims asserted because neither Defendant Aronberg,
State Attorney for the Fifteenth Judicial Circuit is in custod
jury materials sought therein. Simply put, the declarato
seeks records from my client that are impossible
Accordingly, Defendant Aronberg is not a proper
what, he and his office do not have possessio
materials.
In addition to the foregoing material fac
your claims are also not supported b
action for declaratory relief fails b
in Section 905.27(2), Florida S
fct)ecessary to
e Office of the
of the 2006 grand
tight by the Plaintiff,
his office to produce.
action because no matter
!or control of the requested
the claims asserted in the Complaint,
lication of current law. Specifically, your
car, unambiguous statutory language found
states:
When such disclosure is court pursuant to subsection (I) for use in a civil
case, it may be disclosed all p tes to the case and to their attorneys and by the latter to
their legal associates and yees. However the grand iury testimony afforded such
persons by the cou only be used in the defense or prosecution of the civil or criminal
case and for no othe u ose whatsoever.
Moreover,
would
I
J
if the Plaintiff were to prevail in the declaratory action, Mr. Aronberg
to comply with any court order granting disclosure of the requested
ause neither Mr. Aronberg nor The Office of the State Attorney for the
dicial Circuit have possession, custody, or control of the 2006 Epstein grand
rds.
12. On June 23, 2020, Plaintiffs counsel, Stephen Mendelsohn, sent a response to the §
57.105 Demand refusing to withdraw the remainder of the First Amended Complaint.
13. After receiving Plaintiff's response and waiting the requisite "21 days after service of
the motion," the State Attorney's § 57.105 Motion for Attorneys' Fees was filed with the Court on July
1, 2020, ("First Motion for Attorneys' Fees").
6
EFTA02734935
14. On August 18, 2020, the State Attorney filed his Motion for Summary Judgment,
which includes an Affidavit made by the State Attorney.
15. Mr. Aronberg's affidavit confirms that (a) neither the State Attorney nor his office is
in possession, custody, or control of the Requested Materials; (b) the declaratory relief sought by
Plaintiff seeks materials that are impossible for the State Attorney or his office to produce; (c) neither
the State Attorney nor his office have legal authority to obtain and deliver the Request Materials;
(d) the State Attorney repeatedly made these facts evident to Plaintiff and the publ' t o through A e
the pleadings and correspondence in this matter, but also through an office p e and the State
Attorney's public social media accounts; (e) neither the State Attorney n have the authority
Is after a criminal case
he Requested Materials from
to demand that the Clerk grant the State attorney access to grand
has concluded; (f) neither the State Attorney nor his office hag „41
tli\the Clerk's office in this or any other instance; and (g) as sole custody and possession of
the Requested Materials.'
16. On October 21, 2020, Plain 'lc s Notice of Dropping the State Attorney,
pursuant to Rule I.250(b), Fla.R.Civ.P.
17. On November 9, 2
Fees, ("Amended Motion"), pu nt t § 57.105, Fla. Stat., which included the entirety of the State
174.Attorney's legal fees up to tc.
18. Li Ise, M . Aronberg's counsel, Mr. Wyler filed his Affidavit of Attorneys' Fees
on November 0 d a Verified Affidavit of Reasonable Attorneys' Fees by Mr. Robert Winess,
Esq.
Ai ler.te Attorney filed his Amended Motion for Attorneys'
19. On April 22, 2021, Plaintiff filed its Motion for Summary Judgment against the Clerk
as the sole remaining Defendant in this action.
20. The hearing on Plaintiff's Motion for Summary Judgment took place October 22, 2021
and final judgment was entered in favor of the Clerk on December 20, 2021.
2 Mr. Aronberg testified and confirmed the contents of his Affidavit during the evidentiary hearing that was held
September 6,2022 and September 8,2022.
7
EFTA02734936
21. On April 13, 2022, Mr. Aronberg's counsel, Mr. Wyler filed his Amended &
Supplemental Affidavit of Attorneys' Fees and Costs as well as Mr. Aronberg's Notice of Dropping
Claim for Attorney Fee Multiplier.
22. On April 14, 2022, the Amended and Supplemental Affidavit of Reasonable
Attorney's Fees and costs, verified by Mr. Robert Winess, Esq., was filed with the Court.
III. ENTITLEMENT TO & 57.105 ATTORNEYS' FEES AS SANCTIONS
A. Legal Standard
"The central purpose of section 57.105 is, and always has been, to deter
streamline the administration and procedure of the courts. Thus, the post-
has expanded the circumstances where fees should be awarded and
Our supreme court has also stated that section 57.105 treat
attorney's fees by creating a safe period for withdrawal or
A
Alifilings and thus
of section 57.105
sees to deter meritless filings.
nity to avoid the sanction of
of meritless allegations and claims."
v. Bailynson, 268 So. 3d 762, 769 (Fla. 4th Accordingly, § 57.105, Fla. Stat. provides
the following language authorizing the award o att s' fees as sanctions in actions such as the present
* r.
litigation:
(1) Upon the court's init
attorney's fee, including
amounts by the losing part
time during a civil
losing party's attorn
presented
dcfen
of
at
Fla. Stat. § .105(1).
Thus, "(s)ection 57.105(1) clearly and explicitly confers upon the trial court the authority to award
attorney's fees to the prevailing party upon the courts initiative, if the court finds that the losing party .
knew or should have known that a claim or defense when initially presented to the court or at any time before
trial. . . twists not supported by the material facts necessary to establish the claim or defense" or would not
ion of any party, the court shall award a reasonable
ent interest, to be paid to the prevailing party in equal
the losing party's attorney on any claim or defense at any
ng or action in which the court finds that the losing party or the
or should have known that a claim or defense when initially
courtkfr at any time before trial:
s not supported by the material facts necessary to establish the claim or
Would not be supported by the application of then-existing law to those
8
EFTA02734937
be supported by the application of then-existing law to those material facts. v. M, 47 So. 3d 320,
324 (Fla. 2d DCA 2010).
Moreover, "[u]nder [§ 57.105, Fla. Stat.] the legislature has expressed its unequivocal intent that
where a party files a meritless claim, suit or appeal, the party who is wrongfully required to expend funds for
attorneys' fees is entitled to recoup those fees." County Conservation Alliance v. County, 73
So. 3d 856, 857 (Fla. 1st DCA 2011) (finding that "[c]ourts are not at liberty to disreg legislative
mandate that courts shall impose sanctions in cases without foundation in material c r law e word
'shall' in § 57.105, Fla. Stat., evidences the legislative intent to impose a mandat to discourage
baseless claims, by placing a price tag on losing parties who engage th vities." (Quoting
Albritton v. Ferrera, 913 So. 2d 5, 8-9 (Fla. 1st DCA 2005 "section 57.105 expressly
states courts 'shall' assess attorney's fees for bringing to dismiss, baseless claims or
defenses.") Id.
e( S yFinally, in determining an award of san ns u lef § 57.105, the trial court's findings "must be
based on substantial competent evidence" e tri 1 court "must make an inquiry into what the losing
party knew or should have known du -establishment process, both before and after the suit was
filed." See Trust Mortg., LLC c. 193 So. 3d 997, 1001 (Fla. 4th DCA 2016). (Emphasis added).
B. Sanctions against Plaintiff and its attorneys are appropriate under § 57.105(1)(a) as
they knew or should have known that the declaratory relief claim was not supported
by material facts necessary to establish it.
m st, the record testimony, exhibits, and authorities show that sanctions under § First
57.105( i. ified against Plaintiff and its attorneys as there is no arguable basis in fact to establish
that the Stat Attorney provide the grand jury records he was sued to produce.
Here, Plaintiff and its attorneys had a due diligence obligation to determine the operative facts and
law prior to this lawsuit being filed, and therefore knew or should have known from the outset that Mr.
Aronberg was not a proper party to this action. Despite their due diligence obligation, throughout the
litigation Plaintiff was informed numerous times that Mr. Aronberg was an improper party to the lawsuit
9
EFTA02734938
because not only is it impossible for him to produce the requested records as he has no possession, custody,
or control over them, but also because the statutes that govern the disclosure of grand jury records clearly
and unambiguously do not grant such authority or power to the State Attorney.
The material facts showing that Plaintiff's claim has no reasonable expectation of success against
the State Attorney have been open, obvious, and apparent to everyone involved in this matter from the start.
Specifically, Mr. Aronberg's position has been consistent: neither he nor his office has po
or control of the Requested Materials and therefore the declaratory relief sought by P
that are impossible for the State Attorney or his office to produce, and he is not a
Again, these material facts negating Plaintiff's claim against the State At
,custody,
materials
y to this action.
re not only set forth in
ii tathe June 8, 2020, § 57.105 Demand Letter, but have been the basis f to Attorney's defense in every
pleading, filing, and/or correspondence in this matter. Mr. Ar
his first Motion to Dismiss and the Motion to Dismiss C
and a Twitter post pinned to the top of his account t
Letter. Notably, Plaintiff even admitted in i
possession of the requested records. [E
Plaintiff and its attorneys,
ifically made these assertions in
as in a press release from his office,'
Sr 2 2020
the press release, and his § 57.105 Demand
to , Memorandum of Law that the Clerk is in
Aronberg-000262).
eir initial research, knew or should have known prior to suing
Mr. Aronberg that he is not roper rty. Likewise, Plaintiff and its attorneys knew or should have known
this ultimate fact and t then remaining claim for declaratory relief was unsupported by the material facts
necessary to es llowing the June 3, 2020 Motion to Dismiss hearing before Judge Marx. And at
the very and its attorney's certainly knew or should have known that their claim lacked any
basis in fa or law once they were served with the § 57.105 Demand Letter on June 8, 2020.
During the June 3, 2020 hearing, Judge Marx drew a bright line as to when Plaintiff and its attorneys
knew or should have known that Plaintiff's entire lawsuit against Mr. Aronberg had no basis in fact or law
3 Plaintiff to this day has never informed its readers that the State Attorney issued a press release that announced the
creation a web portal with all the public records related to the case. Plaintiff also ignored Mr. Aronberg's statement in
the press release that "I have never seen or had access to the Epstein Grand Jury transcripts, as the State Attorney's
office has never possessed them."
10
EFTA02734939
since the relief sought by Plaintiff is impossible for the State Attorney to perform. Specifically, Chief
Judge Marx made the following statements putting Plaintiff on notice if they weren't already:
"... not for nothing, I think we all know that they don't have control and custody of the
records." [June 3, 2020 Hearing Transcript, p. 3:18 — 4: I].
"I think we can all agree ... that the state attorney doesn't have these records." [June 3,
2020 Hearing Transcript, p. 5:17-19].
"I'm asking you, how are the clerk and the state attorney the proper defendants?" [ e
3, 2020 Hearing Transcript, p. 8:4-6].
"I'm puzzled by the procedural posturing of this case naming the state
you know, I'm further stymied by the fact that you allege in your co
have—particularly David Aronberg the State Attorney — that he has
3, 2020 Hearing Transcript, p. 8:8-14].
"[ma let's run this all the way out. Let's say you win a
the State Attorney Dave Aronberg. What's he suppo
the grand jury testimony. He has no authority wh
Hearing Transcript, p. 8:18-22].
"And the only thing we're here today about i
have to defend a civil action when it's a
you were to win and get a judgment a
have." [June 3, 2020 Hearing Tran
"I'm simply saying why sho
down the road if [you] w
Hearing Transcript, p. I
. And,
t t they
5." [June
t a judgment against
it? He can't release
o that." [June 3, 2020
ou d the clerk and the state attorney
ity of performance? They — even if
'they cannot give you what they don't
:21 — 11:1].
entities have to defend this lawsuit when even
give you what they don't have?" [June 3, 2020
"And, you know, ally, I nt you to boil it down for me as to this — let's take it all the
way down the road. in. You get a judgment against the clerk and the state attorney.
I know th ' othe reasons why you might have filed it this way. But I'm just simply
puzzled se I d hear what the clerk and the state attorney are saying, and that is,
perfo possible. They don't have the records and cannot — absolutely. There's
not inc of wiggle room — that they could release the records even if you got a
t is solely a determination for the court. I, frankly, think, you know, there's
get to your records. There's ways to get confidential records. But it isn't by
the state attorney and the clerk." [June 3, 2020 Hearing Transcript, p. 16:12 —
17. ].
"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 3, 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 3, 2020 Hearing Transcript, p. 17:23 — 18:2].
11
EFTA02734940
Ex.JI3, pgs. 227-231.
Notably, despite the clear, unambiguous message sent by Judge Marx to Plaintiff and its counsel,
Plaintiff's witness, when questioned about Judge Manes statements regarding Mr. Aronberg's
impossibility of performance, attempted to pass off her comments as non-authoritative:
Mr. Mendelsohn: I took her statements as complete dicta since they were not before her
as a question on the motion to dismiss. I did not know what personal knowledge sh had
of what the state attorney's possession or non-possession was. So I did not cr t as
being anything but a dicta statement from her.
[2022-09-06 Transcript, 164:8-13].
C h)Mr. Mendelsohn's response is unpersuasive. Black's Law Dicti es "Dictum," (Pl.
Dicta), as: "(I) A statement of opinion or belief considered authoritative beca the dignity of the person
making it. (2) A familiar rule; a maxim." It was improper for
A
Judge Mane asMarx's and not give them any credit e
(litcomments should have been held in high esteem and ct e to Plaintiff and its attorneys. It is also
e the
s in
tements notifying Plaintiff and its attorneys of
anes notification should have carried more weight
'nt they were clearly informed by the Court that no matter
significant that Judge Marx went out her way to
Mr. Aronberg's impossibility of perfonna
with Plaintiff and its attorneys beca
sohn and Plaintiff to disregard
e Chief Judge at the time and her
what, even if they were to someh wi the lawsuit, the State Attorney would not be able to access and
turn over the requested mat
Accordin yen
mate
gh Plaintiff and its attorneys were informed of Mr. Aronberg's impossibility
of performan to udge Manes statements, they were undoubtedly on notice of this material fact
follow' e 3, 2020 hearing. Thus, upon being served with Mr. Aronberg's § 57.105 Demand Letter
on June 8, 2 20, Plaintiff and its attorneys knew or should have known that Mr. Aronberg was improper
party to the action and that their remaining claim for declaratory relief was unsupported by the material
facts necessary to establish it.
Notably, Mr. Mendelsohn admitted in his testimony that he and Plaintiff were unsure of who to
sue, when he said: "I wanted to see, you know, who to sue, to be honest with you, in this case." [2022-09-
12
EFTA02734941
06 Transcript, 110: 4-5].° Even after detailing at length the hundreds of hours Plaintiff's attorneys'
apparently researched who to sue and how to bring this case, Plaintiff and its attorneys knew or should have
known, based on the relevant authorities and information available to them, that Mr. Aronberg was never a
proper party to this lawsuit. Plaintiff and its attorneys knew or should have known this if not prior to the
lawsuit being filed, then definitely when they were served with the 57.105 Demand Letter. [2022-09-08
Transcript, 149:6-10].
Of additional importance regarding Plaintiff and its attorneys' decision to r. nberg to
release the 2006 Jam Epstein grand jury records, is Mr. Mendelsohn's reli• re Grand Jury
Proceedings, 832 F.2d 554 (I I d' Cir. 1987). Mr. Mendelsohn testified th he specifically relied on this
4c,case with regard to the state attorney necessarily being a party. -09-08 Transcript, 111:18-23].
Importantly, however, the state attorney was never sued to pand ntial records in In re Grand Jury
irSofficial to produce what they do not have and hav to produce. Consequently, Plaintiff and its cn mriii,
attorneys' research was flawed. They knew sho have known through their research that suing the
State Attorney was not the proper aven plishing what they sought. If Plaintiff had just followed
ey rely, there would be no lawsuit and no § 57.105 Demand.
There is no factual scenari wherein r. Aronberg could comply with what he was sued for and despite
being notified of this t n rous times, Plaintiff and its attorneys persisted with their action against Mr.
Aronberg beyo fler being served with the § 57.105 Demand.
Al cance here is Plaintiff and Mr. Mendelsohn's attempt to pivot their argument and
move the alposts from what they demanded in the First Amended Complaint, which alleged that Mr.
Aronberg "is in possession and/or control of documents that are subject of this action" [CA/Aronberg-
Proceedings. Rather, the state attorney was subpoenaed ic
the lead of the party in the case u
edly different from suing an elected
The Palm Beach Post wrote an article dated September 8, 2022, which notably included the above quote and further
corroborates Mr. Aronberg's allegations of Plaintiff's bad faith since Plaintiff and its attorneys should have known
who to sue before improperly suing Mr. Aronberg..
13
EFTA02734942
000117], and sought disclosure and public access from him as to the requested records for the purpose of
informing the public. [CA/Aronberg-000136].
Despite suing Mr. Aronberg to provide access and disclose the requested records, Mr. Mendelsohn
disingenuously asserted that once Mr. Aronberg said he had no objection to the Clerk releasing the records
pursuant to a court order, "the Post accomplished everything that it needed from the State Attorney in the
amended complaint." [2022-09-08 Transcript, 6-13]. For all intents and purposes, Plainti
attempted to amend their complaint on the stand and reframe it as though it sou
different from Mr. Aronberg: a voiced non-objection vs. access to and disclo
records of which the state attorney has no possession, custody, or control.
There is nothing in the First Amended Complaint that Pia'
show the Court that all they sued Mr. Aronberg for was to "n
basis for filing the present lawsuit against the State At
State Attorney merely to force him to announ
Constitutional officer is a bewildering clai
Mr. Aronberg has never had control o
imps the release of the documents has im
ing fro the State Attorney in any of its pleadings.
hn stated that Mr. Aronberg "originally voiced objection, then he changed it
has never demanded such a
Further, Mr. ndel
its lawyers
g entirely
fidential court
its attorneys can point to and
s is nowhere close to a proper
laintiff to now assert that it sued the
d not object to a decision of a separate
considering Plaintiff was repeatedly informed that
ments. As such, Mr. Aronberg's lack of "objection" to
pon its possible disclosure by the Clerk. This is why Plaintiff
to neutrality." [ Transcript, 200:10-11]. Again, Mr. Mendelsohn is disingenuous, as he is basing
this "voice tie " on the legal position asserted in the State Attorney's Motion to Dismiss, but fully
ignored Aronberg's consistent position that he has never had possession, custody or control of the
grand jury records. Nonetheless, Mr. Aronberg's ostensible "change to neutrality" was not a change of
position because it has always been impossible for Mr. Aronberg to perform as to Plaintiff's declaratory
relief claim?
s Notably, Black's Law Dictionary defines "Declaratory Judgment" as "a binding adjudication that establishes the
rights and other legal relations of the parties without providing for or ordering enforcement." Accordingly, Plaintiff's
14
EFTA02734943
Based on the foregoing, it is apparent that the record testimony, exhibits, and authorities show that
sanctions under § 57.105(1)(a) are justified against Plaintiff and its attorneys as there is no arguable basis
in fact to establish that the State Attorney provide the grand jury records he was sued to produce. Thus,
sanctions against Plaintiff and its attorneys are appropriate under § 57.105(1Xa), as they knew or should
have known that Count I was not supported by the material facts necessary to establish their claim for
declaratory relief.
C. Sanctions against Plaintiff and its attorneys are appropriate and 7.1 1Xb) as
they knew or should have known that the declaratory relief clyipl not supported
by the application of the law to the material facts.
Not only is it actually impossible for Mr. Aronberg to produce th
because he has no possession, custody, or control over them; it
Aronberg to produce the requested grand jury records bee
disclosure of grand jury records clearly and unambiguo
attorney. Accordingly, the record testimony, e i? S a
ted grand jury records,
ise legally impossible for Mr.
tutes and rules that govern the
nt such authority or power to the state
authorities show that sanctions under §
57.105(1)(b) are also justified against Plaint' d ttorneys since there is no arguable basis in law to
establish that the State Attorney was e provide the grand jury records he was sued to produce.
Here, as before, Plaintiff and its ew or should have known through their initial research that
their declaratory relief clai was uns pported by the application of the law to the material facts.
Text, context d se are the ordinary tools used for discerning statutory meaning, with the
overarching pri "that judges lack the power to construe an unambiguous statute in a way which
would ext or limit its express terms or its reasonable and obvious implications. To do so would
be an abro Lion of legislative power." Horowitz v. Plantation Gen. Hasp. Ltd. P 'ship, 959 So. 2d 176, 182
(Fla. 2007). Here, the plain language of sections 905.17 and 905.27(2) is clear and unambiguous and,
therefore, controls. Tellingly, when Mr. Mendelsohn was asked whether clear, unambiguous statutory
language is controlling, he dodged the question. [2022-09-08 Transcript, 155:23 — 156:8].
declaratory relief claim also has no basis in fact or law as a declaratory judgment in its favor would only establish its
rights, not enforcement of releasing the requested records.
15
EFTA02734944
Specifically, Florida Statutes, § 905.27(2), which governs the exceptions to disclosure of grand jury
records, states:
When such disclosure is ordered by a court pursuant to subsection (1) for use in a civil
case, it may be disclosed to all parties to the case and to their attorneys and by the latter
to their legal associates and employees. However, the grand jury testimony afforded such
persons by the court can only be used in the defense or prosecution of the civil or criminal
case and for no other purpose whatsoever. (Emphasis added).
Mr. Aronberg asserted his position of impossibility of performance under the law as appli
facts based on the plain language of § 905.27. In fact, Mr. Aronberg made argumen
Plaintiff and Plaintiff's counsel in his original Motion to Dismiss, the Motion
57.105 Demand Letter, and the Motion for Summary Judgment.
Mr. Mendelsohn even confirmed that he and his firm r
Aronberg anyway. [2022-09-08 Transcript, 155:11-13; 160:15
requested materials were not being sought in connection
Transcript, 15-18].
Further, this same argument was ulf tely ized in Judge Hafele's Final Judgment in favor of (SI\ the Clerk since the Plaintiff admitt 'd seek to use the requested materials in the defense or
fically, the Final Judgment in favor of the Clerk states:
the material
statute to
Count 2, the §
5.17 and 905.27, but sued Mr.
endelsohn also admitted that the
ing criminal or civil case. [2022-09-08
prosecution of a civil or criminal
Ex.J30.
In interpreting a st ute, the curt must respect the role of the legislature, the legislative
process, and the Ian f the statute. "'A court's function is to interpret statutes as they
are written rve ect to each word in the statute."' State v. Sampaia, 291 So. 3d 120,
125 (Fla. 4 A 2 0) (quoting Fla. Dept of Revenue v. Fla. Mun. Power Agency, 789
So. 2d 32 Ia. 2001). "[W]hen legislation is clear 'our task is to apply the text, not
impro it. ' Kaplan v. Epstein, 219 So. 3d 932, 933 (Fla. 4th DCA 2017) (quoting
Pa Flare v. Marvel Entertainment Group, 493 U.S. 120, 126 (1989). "It is our
uty to interpret the law as given us by the people in the Constitution or by the
slature. We are not permitted to substitute judicial cerebration for law or that which
we tank the law should be and command that it be enforced." in re investigation of Circuit
Judge of Eleventh Judicial Circuit of Florida, 93 So. 2d 601, 608 (Fla. 1957). "As courts,
we should never forget that in construing acts of the legislature, we are concerned only
with the power of the legislature to enact the law. Our peculiar social and economic views
have no place in such a consideration." Tyson v. Lanier, 156 So. 2d 833, 838 (Fla. 1963).
Again, Plaintiff admittedly was attempting to gain access to the requested records for public
disclosure purposes that had no connection to a pending criminal or civil case. Section 905.27(2) clearly
16
EFTA02734945
and unambiguously states that disclosure of records like those requested here "can only be used in the
defense or prosecution of the civil or criminal case and for no oilier purpose vdiatsoever." Accordingly,
based on Plaintiff's attorneys' research and experience they knew or should have known that the declaratory
relief claim was unsupported by the application of the law to the material facts.
Moreover, Florida Statutes § 905.17 states the following:
The notes, records, and transcriptions are confidential and exempt from the prov s of
s. 119.07(1) and s. 24(a), Art 1 of the State Constitution and shall be released b rk
only on request by a grand jury for use by the grand jut,' or on order of the c
to s. 905.27. (Emphasis added).
C odMr. Mendelsohn admits to being aware of this statutory provision in his respect ed Mr. Aronberg,
the State Attorney anyway. [2022-09-08 Transcript, 155:11-13; 160:15-16 . etheless, here, the plain
language of sections 905.17 and 905.27(2) is clear and unambigu
Plaintiff and its attorneys knew or should have known If itial research that their declaratory
'IC* relief claim was not supported by the application of t material facts. V to
In addition to the foregoing, prior to ft
have known the proper legal mechanism
Florida Rules of General Practice an
erefore, controls. Accordingly,
he suit Plaintiff and its attorneys knew or should
ing the grand jury records they seek: Rule 2.420(j),
dministration, which only requires the filing of a "motion"
seeking disclosure. Here, the evid e s ws Plaintiff and its lawyers failed to follow the proper procedure
Iryin requesting the records so • his case as detailed at length in Judge Hafele's Final Judgment in favor
of the Clerk. Nola all Pla ntiff had to do was file a Motion Seeking Disclosure in the underlying case
and serve the ereto. That underlying case is State of Florida v. Jeffrey Epstein, Case No. 2006-
CF-94 rt er Mr. Aronberg nor his office is a party thereto. Furthermore, when asked whether he
was famili ith the foregoing rule prior to filing this lawsuit, Mr. Mendelsohn responded "absolutely."
[2022-09-08 Transcript 183:22 - 184:1]. Consequently, prior to filing the instant lawsuit Plaintiff and its
attorneys knew or should have known that their declaratory relief claim against the State Attorney was
unsupported by the application of the law to the material facts.
17
EFTA02734946
Finally, the above legal arguments, which have been presented to Plaintiff and its lawyers several
times, including Mr. Aronberg's 57.105 demand letter, show that it is legally impossible for Mr. Aronberg
to produce the requested grand jury records because the statutes and rules that govern the disclosure of
grand jury records clearly and unambiguously do not grant such authority or power to the State Attorney.
Accordingly, the record testimony, exhibits, and authorities demonstrate that sanctions under § 57.105( I )(b)
are justified against Plaintiff and its attorneys, as there is no arguable basis in law to establi
Attorney provide the grand jury records he was sued to produce. Here, as before, Pla"
knew or should have known through their initial research that their declaratory re
by the application of the law to the material facts.
at the State
attorneys
as unsupported
D. Mr. Aronberg's Amended Motion for Attorney does not violate the 21-da)
safe harbor provision because Plaintiff drop
prior to the filing of the Amended Motion.
"Section 57.105(4), Florida Statutes creates an
by creating a safe period for withdrawal or ame
Bailynson, 268 So. 3d 762, 769 (Fla. 4th DC
A motion by a party seeking
filed with or presented to th co
challenged paper, claim, efens ,
appropriately corrected.
Fla. Stat. § 57.105(4).
e Attorney from the action
o avoid the sanction of attorney's fees
eritless allegations and claims." v.
ifically, the relevant portion of the Statute states:
der this section must be served but may not be
, within 21 days after service of the motion, the
ontention, allegation, or denial is not withdrawn or
Likewise, e pririary purpose of the safe harbor provision of § 57.105(4), Fla. Stat., is to
provide the
to with
Points Serv,
f a motion for an award of costs and attorney's fees with notice and the opportunity
;don a frivolous claim before sanctions are sought." MC Liberty Express, Inc. v. A!!
252 So. 3d 397, 404 (Fla. 3d DCA 2018). (Emphasis added).
Here, Plaintiff contends that the State Attorney failed to serve his Amended Motion at any time
before filing it, and therefore failed to comply with the 21-day notice provision. Plaintiff claims that for
this reason alone the Amended Motion should be denied and cites in support of its argument Lego v. Kame
By Design, LLC, 120 So. 3d 73, 75 (Fla. 4th DCA 2013) (holding that "if a party files a subsequent or
18
EFTA02734947
amended motion for sanctions under section 57.105 and raises an argument that was not raised in the original
motion for section 57.105 sanctions, the subsequent motion must independently comply with the 21-day
'safe harbor' provision of Section 57.105(4).").
The instant case, however, is distinguishable from Lago. In Lago, the moving party (Kame) had
not been dismissed or dropped from the case at the time his amended motion for attorneys' fees was filed,
so the Lagos still had an opportunity to change their position and Kame was thus required o ve a second
safe-harbor notice. In Logo, the case was still active when the plaintiff filed its otion for
attorneys' fees, which meant that the defendant was entitled to notice and an y to change its
position and withdraw its offending motion before being sanctioned.
The timeline of events in the instant action stands in stark to that of Lago and necessitates
a different result. Here, Plaintiff was served with the S ey's § 57.105 Demand and its
accompanying First Motion for Attorneys' Fees on June June 23, 2020, Plaintiffs counsel sent
a letter in response indicating Plaintiff's refusalto of the First Amended Complaint against the
State Attorney. After waiting for the requisi e harbor period to pass, the State Attorney properly
filed its First Motion for Attorneys' F ur months later, after settlement negotiations failed and
after the State Attorney's Motion r Su Judgment was filed, Plaintiff dropped the State Attorney as
a party on October 21, 202 Signi r ntly, only after Plaintiff dropped the State Attorney as a party, and
thus had no ability to ang its position, was the Amended Motion filed. Thus, the Lago rule does not
apply here and ti nable to provide any case law or authority that fits the fact pattern of the instant
case.
in, because Mr. Arenberg had already been dropped as a party when his Amended Motion for
Attorneys' Fees was filed, the safe harbor provision became meaningless and irrelevant as Plaintiff and its
attorneys no longer needed notice and an opportunity to withdraw their claim for declaratory relief, as they
had already done so. In this instance, the safe harbor provision was moot upon Plaintiffs dropping of Mr.
Arenberg as a party and no additional 21-day safe harbor period was necessary.
The Florida Rules of Civil Procedure and the courts of Florida are clear. Because Rule 1.250
19
EFTA02734948
specifies that a party is dropped "in the manner provided for voluntary dismissal in Rule 1.420(a)(1),"
dropping a party therefore "operates as an adjudication on the merits." See, Siboni v. M, 52 So. 3d 779,
781 (Fla. 5ih DCA 2010); Rule 1.420(aX1) 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. [DelEx.10, p.7]. As a result of dropping the State Attorney from the case,
4., Plaintiff not only effectively made an admission that its allegations against the State Attom y ye no basis
in fact or law, but also concluded the case as to the State Attorney and thereby beca losi g party in
this action.
Consequently, unlike the fact scenario and timeline in Lago, becaus Plaint] concluded the instant
litigation by dropping the State Attorney from the action before the
impossible to give Plaintiff an opportunity to respond and
Plaintiff had already done so, and therefore there can
f the Amended Motion, it was
declaratory relief claim since
n of the 21-day safe harbor provision
set forth in Fla. Stat. § 57.105(4). As stated earli se of the 21-day safe harbor provision of §
57.105(4) is to give the recipient a chance t ang urse and drop the movant from the lawsuit, IMC
Liberty Express, 252 So. 3d at 404, b p ose is moot when the recipient has already dismissed its
claim. After waiting four months o fin rop the State Attorney from its lawsuit, Plaintiff is Dying to
avoid sanctions by someho claimin at it should have been given an extra 21 days to dismiss the State
Attorney after the law it wa ver. r Plaintiff's argument turns Lago's on its head and makes no legal sense.
Based a oing, the State Attorney's Amended Motion does not violate the 21-day safe
harbor pro use Plaintiff dropped him from the action prior to the filing of the Amended Motion,
and there Plaintiff was not prejudiced by the filing of the Amended Motion. Accordingly, as further set
forth below, Plaintiff has exposed itself to § 57.105 attorneys' fees as sanctions for failing to drop the State
Attorney as a party within the 21-day safe harbor period.
20
EFTA02734949
E. Mr. Aronberg's Amended Motion for Attorneys' Fees did not raise additional
or new legal arguments pertaining to the entitlement of fees.
In any event, unlike the movant in Logo, Mr. Aronberg's Amended Motion for Attorneys' Fees did
not raise new or additional legal arguments pertaining to the entitlement to fees. Specifically, although the
original Motion for Attorneys' Fees was more condensed in its form than the Amended Motion, it
nonetheless stated Mr. Aronberg's intention to seek attorneys' fees under § 57.105, and it disc the 21-
day safe harbor provision that commenced on June 8, 2020 with the service of the motion er with the
§57.105 Demand Letter to dismiss the First Amended Complaint and its remaini for declaratoryifhp:i )
relief.
CaANotably, the original Motion for Attorneys' Fees expressly referen d thereby incorporated,
the June 8, 2020 § 57.105 Demand Letter in which the unde nsel advised Plaintiff and its
hi\attorneys of the facts that establish that the declaratory re ' c without support of the facts or the
"ctlaw. The Demand Letter was introduced into evide e e e identiary hearing by stipulation and laid NI,out in detail the specific reasons Mr. Aronberg • tit! o attorneys' fees as a sanction under § 57.105,
which are the same reasons argued at the a earing and in the Amended Motion.
Plaintiff's counsel indisput' this correspondence, and in fact filed a letter dated June
23, 2020, disputing the assertion , refusing to withdraw the declaratory relief claim against Mr.
Aronberg, and insisting inst Mr. Aronberg withdraw his § 57.105 demand. The Amended Motion
for Attorneys' F ply in ludes the procedural events in this case which had not yet occurred at the
time the origi on ad been filed, and discusses the reasonableness of attorneys' fees incurred from
the dat rvice of the § 57.105 demand to the filing of the Amended Motion. To be clear, the
Amended M tion does not include any new or additional grounds for an award of attorneys' fees and based
on the foregoing was not improperly filed.
Also, in thoroughly researching the relevant authorities, there does not appear to be any case law
requiring a motion for attorneys' fees under § 57.105 to be pled with specificity in such a manner to preclude
relief if pleading requirements are not met. Likewise, Mr. Aronberg's fee motions comply with Rule 1.525,
21
EFTA02734950
Florida Rules of Civil Procedure, which states: "Any party seeking a judgment taxing costs, attorneys'
fees, or both shall serve a motion no later than 30 days after filing of the judgment." Mr. Aronberg clearly
complied with the Statutes and Rules as he filed his original Motion for Attorney's fees on July I, 2020,
more than 21 days after serving his §57.105 Demand Letter, and he filed his Amended Motion for
Attorneys' Fees on November 9, 2020, which was within 30 days of being dropped as a party on October
21, 2020. Thus, even if the Court were to find the Amended Motion to be improper, it can ti proceed on
the original Motion for Attorneys' Fees. In fact, despite finding that the plaintiff's ded otion for
attorneys' fees was improper in Lago, the appellate court instructed the trial to the plaintiff's
original motion for attorneys' fees, since it was properly served and filed ttsuagt to § 57.105, Fla. Stat.
Lago, 120 So. 3d at 75.
Accordingly, the foregoing shows that notice intent of r provision was satisfied based
on the timing of Mr. Aronberg's § 57.105 Demand Le i ee motions. Thus, the only remaining
requirement pertains to the sufficiency of the evid ed at the evidentiary hearing.
F. S7.105(3Xa) Defense is Ina
Plaintiffs reliance on § 57.lfl 3 s a defense to Mr. Aronberg's attorney fee claim is
inapplicable. Specifically, § 57.1
3) Notwithstandi subsec ns (1) and (2), monetary sanctions may not be awarded:
(a) Under pare Xb) if the court determines that the claim or defense was
initially preset ed to e court as a good faith argument for the extension, modification, or
reversal of ling la or the establishment of new law, as it applied to the material facts,
with a xpectation of success.
Plaintiff a ist the language of the statute in two different ways to suit its argument. First,
Plaintiff toils entirely to recognize that the 57.105(3Xa) defense applies only to claims made under
57.105(1)(b). Here, Mr. Aronberg asserted his claim for 57.105 sanctions under both sections (1Xa) and
(I)(b), so none of Plaintiff's attempts at trying to establish good faith have any effect on Mr. Aronberg's
assertion under § 57.105(1Xa) — that Plaintiff's declaratory relief claim fails because it is unsupported by
the material facts necessary to establish it.
Moreover, Plaintiff attempts to add a word that is nowhere found in the statute: "interpretation."
22
EFTA02734951
Plaintiff argues that its declaratory relief claim was presented to the Court as "a good faith argument for the
interpretation of existing law or at least, the establishment of a new law." Nonetheless, the 57.105(3Xa)
defense only applies to claims arguing for the "extension, modification, or reversal of existing law or the
establishment of a new law...." Here, Plaintiff's claim for declaratory relief only sought interpretation of §
905.27, not an extension, modification, or reversal of the Statute. Plaintiff's only claim that sought to create
a "new law" was its Count 2, which was dismissed with prejudice and is not part of Mr. A
for sanctions.
Plaintiff's argument that sanctions pursuant to §57.105(1)(b) are unjustifi
also fails because there is no arguable basis in law that the State Attome
rg's claim
"S§ 57.105(3Xa)
provide the Requested
Materials. [See, I.C., supra.]. In determining an award of sanctio § 57.105, the trial court "must
make an inquiry into what the losing party knew or should have gthefact-establishmentprocess,
both before and after the suit was fi led." See Trust Mon erlanti, 193 So. 3d 997, 1001 (Fla. 4th
DCA 2016); See also Chue v. Lehman, 21 So. 3d (Fla. 4th DCA 2009). Here, Plaintiff's fact-
establishment process began before either of it rigi omplaint or First Amended Complaint were filed.
Both of Plaintiff's pleadings revolved
905.27 and whether it had const
"in furtherance of justice."'
Nonetheless, rida w regarding the disclosure of grand jury materials, § 905.17(1), states:
ments for a private right of action under Fla. Stat. §
'statutory standing to overcome grand jury secrecy provisions
and transcri i tions are con :dentin! and exempt from the provisions
I) and s. 24(a), Art. I of the State Constitution and shall be released by the
request by a grand jury for use by the grand jury or on order of the court
t to s. 905.27. (Emphasis added.)
Acc Singly, based on the clear, unambiguous statutory language set forth in § 57.105.17(1), only
the Clerk, not the State Attorney, may release grand jury materials pursuant to an order of the court. Thus,
7 Significantly, any and all arguments offered by Plaintiff regarding the "furtherance of justice" exception set forth in
§ 905.27, Florida Statutes is moot since Count 2 was dismissed with prejudice and is not the subject of Plaintiff's
remaining claim for declaratory relief, Mr. Aronberg's § 57.105 Demand Letter or the Amended Motion for Attorneys'
Fees.
23
EFTA02734952
it was easily apparent that the State Attorney and his office lack the legal authority to obtain and deliver the
Requested Materials demanded by Plaintiff in Count I of the First Amended Complaint.
As set forth at length above, the clear, unambiguous statutory language in §§ 905.17 and 905.27(2),
Fla. Stat., and Plaintiff's admissions that it had researched these provisions prior to suing Mr. Aronberg
indicate that Plaintiff and its attorneys knew or should have known through their initial research that their
declaratory relief claim was unsupported by the application of the law to the material fac gardless of
whether Plaintiff actually knew of the controlling provision set forth in § 905.1 dun its fact-
establishment process, Plaintiff was not only on constructive notice of said s ision, but was
specifically informed of this provision in several instances prior to the Sta Atto ey being dropped as a
party. Based on Plaintiff's own research, statutory constructive noti ate Attorney's affidavit, all of
the pleadings and correspondence in this matter as well as th to Attorney's office press release
and social media accounts, and Chief Judge Marx's sta g the June 3, 2020 hearing, Plaintiff
knew or should have known that Count I of the omplaint "would not be supported by the
application of then-existing law to [the] mat fac ' 'n this action. See § 57.105(1)(b).
Furthermore, as set forth in d r and despite Plaintiff's contentions, there is no arguable
"good faith" basis in law and/or f tun 57.105(1)(a) or (b), or any reasonable expectation of success
as to Plaintiff's Count I; an herefore, sanctions against Plaintiff arc appropriate under § 57.105. See Minto
PBLH, LLC v. 1000 F 'ends orida, Inc., 228 So. 3d 147, 149 (Fla. 4th DCA 2017). Moreover, under
no set of facts d' have a reasonable expectation of success against the State Attorney in obtaining
the sought ents because at no time did the State Attorney have possession, custody, or control
over said uments. In fact, Plaintiff acknowledged, admitted, and acquiesced to the impossibility of the
State Attorney providing the Requested Materials when Plaintiff dropped the State Attorney from the action
on October 21, 2020.
G. Finding of Frivolousness Not a Factor
"Section 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
24
EFTA02734953
justiciable issue of fact or law." County Conservation Alliance v. County, 73 So. 3d 856, 865
(Fla. 1st DCA 2011). As set forth above, it is clear that Plaintiff's declaratory relief claim fails under §
57.105(1Xa) because it is unsupported by the material facts necessary to establish it, and under §
57.105(IXb) because it is unsupported by the application of the law to the material facts. In fact, although
neither the word "frivolous" nor any of its derivatives are found in the Statute, Plaintiff's claim for
declaratory relief is nothing more than a frivolous claim.
In determining an award of sanctions under § 57.105, the trial court's findi ust based on
substantial competent evidence" and the trial court "must make an inquiry into I ing party knew
or should have known during the fact-establishment process, both before a aft a suit was filed." See
Trust Mortg., LLC v. Ferlanti, 193 So. 3d 997, 1001 (Fla. 4th 016). In this vein, although
frivolousness is not required but is nonetheless present here, eatherby Assocs. v. Ballack, 783
So. 2d 1138 (Fla. 4ih DCA 2001) can be helpful to the Co n e fining the timing of when the sanctions
against Plaintiff and its attorneys began to accrue Al cc sanctions are appropriate against Plaintiff's
attorneys.
As to the first issue, although aAljby court's analysis revolves around frivolousness, defined
as lacking any justiciable issues o law o ct, it applied the following 2-prong analysis: "First, the court
must determine whether t suit w frivolous when initially filed. If it was not, then the court must
determine whether th uit e frivolous after the suit was filed."
Here, guidance of Weatherby, substantial competent evidence was introduced to the
Court sho aintiff and its counsel knew or should have known prior to filing the instant lawsuit
that there re no justiciable issues of law or fact. As previously discussed, under § 57.105(1)(a) Plaintiff
and its attorneys through their initial research should have known prior to suing Mr. Aronberg that he is not
a proper party and should never have been sued by Plaintiff because he has no access, custody or control
of the requested records and his performance is impossible.
Likewise, Plaintiff and its attorneys knew or should have known this ultimate fact and that their
remaining claim for declaratory relief was unsupported by the material facts necessary to establish it
25
EFTA02734954
following the June 3, 2020 Motion to Dismiss hearing before Judge Marx. During that hearing, Judge Marx
drew a bright line as to when Plaintiff and its attorneys knew or should have known that Plaintiff's entire
lawsuit against Mr. Aronberg had no basis in fact or law since the relief sought by Plaintiff is impossible
for the State Attorney to perform. At the very least, however, Plaintiff and its attorneys definitely knew or
should have known that there were no justiciable issue of law or fact regarding their declaratory relief claim
when they were served with the § 57.105 Demand Letter on June 8, 2020. In fact, at no ti e s Plaintiff
produced any evidence whatsoever to support its claim, since it is patently impossib th fa wally and
legally, for Mr. Aronberg to produce the records he was sued to produce.
Likewise, under § 57.105(1Xb) Plaintiff and its attorneys knew or s uld h ve known through their
initial research that their declaratory relief claim was unsupport application of the law to the
material facts. As set forth above, the record testimony, exhib orities show that sanctions under
§ 57.105(1)(b) are also justified against Plaintiff and its
to establish that the State Attorney provide the I jeords he was sued to produce, pursuant to §§
905.27(2) and 905.17, Florida Statutes, as w R 2.420 of the Rules of Judicial Administration.
As to the second issue of whet ns are appropriate against Plaintiff's attorneys as well as
Plaintiff, the Weatherby court stat
When assessing attorney's
that there were no j
not act in g faith
se there is no arguable basis in law
against a losing party's attorney, the trial court must find
e issues of law or fact and that the losing party's attorney did
on the representations of his or her client.
§ 57.501(1), Fl: . Here, based on the testimony of Mr. Mendelsohn, it is apparent that Plaintiff
was relyin n a rneys to determine any justiciable issues of law or fact and that Plaintiff's attorneys
were not ing on representations of their client in determining Mr. Aronberg's capacity for access,
custody, and control of the requested documents. Plaintiff argued that it wanted access to the grand jury
records for purposes of public disclosure and relied on its attorneys to accomplish that goal. Accordingly,
there is no good faith defense to apply on the part of Plaintiff's attorneys as there is no record evidence that
their actions were made in good faith based on representations of their client; therefore, sanctions are
appropriate against both Plaintiff and their attorneys.
26
EFTA02734955
H. Conclusion as to Entitlement
Despite Plaintiff's arguments to the contrary, the record evidence shows that Plaintiff and its
lawyers knew or should have known prior to filing this lawsuit that the declaratory relief claim fails under
57.105(1Xa), because it is unsupported by the material facts necessary to establish it; and under
57.105(IXb) because it is unsupported by the application of the law to the material facts. Alternatively,
Mr. Aronberg contends that Plaintiff and its attorneys' knew or should have known the d tory relief
claim lacks any basis in law or fact following Judge Marx's comments during the 20 hearing.
Moreover, Plaintiff and its attorneys certainly knew or should have known that no justiciable
issue of law or fact regarding their declaratory relief claim when they re sefved with the § 57.105
Demand Letter on June 8, 2020.
Moreover, as set forth above, Mr. Aronberg's § 1 nd Letter follows the proper
procedures and does not violate the 21-day safe harbor use Plaintiff dropped Mr. Aronberg
as a party prior to the filing of the Amended Motio eys' Fees. Further, Plaintiff's §57.105(3)(a)
defense is wholly inapplicable to Mr. Mon s c under § 57.105(1Xa) and likewise does not apply
to Mr. Aronberg's § 57.I05(1)(b) clai si ce intiff's claim for declaratory relief is not a claim for the
extension, modification, or reve 1 of g mg law or the establishment of new law with a reasonable
expectation of success.
Rather, the rd e ence shows that Mr. Aronberg properly complied with § 57.105 in serving
his demand let d g the requisite fee motions. There was nothing improper or violative as to Mr.
Aronberg' f attorneys' fees for defending against a claim with no basis in fact or law.
Conseque , Plaintiff and its attorneys have exposed themselves to sanctions under § 57.105 and Mr.
Aronberg prays the Court find that he is entitled to such relief.
IV. REASONABLENESS OF REQUESTED FEES & COSTS
As discussed at length above, Mr. Aronberg is entitled to attorneys' fees and costs as sanctions
against Plaintiff under § 57.105, Florida Statutes because Plaintiff's claim for declaratory relief fails for
having no basis in fact or law.
27
EFTA02734956
At the direction of Judge Hafele, the panics agreed that should the Court find Mr. Aronberg entitled
to attorneys' fees as sanctions, expert witnesses would be waived as to the reasonableness phase of the
hearing. Likewise, Plaintiff has stipulated to the undersigned counsel's hourly rate of $425.00/hour.
Here, the record evidence as to reasonableness of the sanctions sought by Mr. Aronberg consists
of: (1) the invoice of the undersigned counsel's law firm regarding this matter [Ex.J32]; (2) the
undersigned's Amended & Supplemental Affidavit of Attorneys' Fees & Costs [Ex.J3 and (3) the
ylAmended and Supplemental Affidavit of Reasonable Attorneys' Fees and Costs b t R Winess,
Esq.
sought by Mr. Aronberg total $61,840.00.
Plaintiff's Bench Memo Regarding Atto
item attorneys' fees sought by Mr. Aronberg
fees for Travel Time in the amount of $
of Florida disagree when sanction
Significantly, although the above-referenced invoice totals $69,41 f.50 iq fees, it is important to
Ac inote that the above-referenced affidavits certify fees sought only as 8, 2020, the date Plaintiff was
rrliS, served with Mr. Aronberg's § 57.105 Demand Letter, forwa , e , total amount of attorneys' fees
‘J\ ections takes issue with several of the line-
sanctions. Specifically, Plaintiff contends that the
not compensable. Despite their contention, the courts
, as here:
Although travel ti e is generally not compensable, travel time may be awarded as part of
a sanction under c rcumstances, such as where a party was aware that his actions
could result ' unn ssary litigation." Palm Beach Polo Holdings, Inc. v. Stewart Title
Guar. Co So. 3 858, 862 (Fla. 4th DCA 2014); See Eve's Garden, Inc. v. Upshaw
& Ups In 01 So. 2d 976, 979 (Fla. 2d DCA 2001) (affirming award of attorney's
fees el time and concluding that "travel time may be awarded when fees are
a sanction"); See also Graham v. R.J. Tobacco Co., 2017 U.S. Dist.
1838 (11th Cir. Fla., Nov. 17, 2017) (finding that attorney travel time is
ble where attorney's fees are sought as sanctions).
Additionally, Plaintiff contests several of the fees sought as "Administrative Entries"; however, a
review of the contested entries clearly shows that while some may be classified as "clerical" or
"ministerial," several cannot. Accordingly, proper and compensable time entries were made on 07/01/2020,
08/18/2020, 10/14/2020, 11/09/2020, 07/23/2021, 07/29/2021, and 08/21/2021, which total $4,462.50, and
should be included in any fee award to Mr. Aronberg.
28
EFTA02734957
Plaintiff also contests "Relation Back" time entries in the amount of 527,540.00. Here, Plaintiff
attempts to recalculate the fees sought by Mr. Aronberg to begin on October 14, 2020, the date of Mr.
Aronberg's Response to Plaintiff's Memorandum of Law in Opposition to First Motion for Attorneys' Fees.
As stated above, Plaintiff and its attorneys knew or should have known that their declaratory relief claim
had no basis in fact or law from the initiation of this lawsuit or at the very least as of service of Mr.
Aronberg's § 57.105 Demand Letter on June 8, 2020. Similarly, Plaintiff's argument i t alternative
starts the attorney fee clock on July I, 2020, which also fails for the aforemention n As to the
remainder of the fees contested by Plaintiff, Mr. Aronberg and the unders sel leave their
C
V. CONCLUSION
Based on the foregoing, Defendant, DAVE ARO , tate Attorney of Palm Beach
County, Florida, respectfully requests the Court en granting his Amended Motion for
Attorneys' Fees as well as such other and fun the Court deems just or proper.
CERT AT F SERVICE
pik )I HEREBY CERTIFY that o i 6 y of October, 2022, a copy of the foregoing was been
electronically filed with the Florid -Fib ortal for e-service on all parties of record herein.
determination to the learned hands of the Court.
SCHOLZ & WYLER, LLC
Is/ Douglas A. Wyler
Arthur I. Esq.
Fla. Bar No.: 108249
Richard J. Scholz, Esq.
Fla. Bar No.: 0021261
Douglas A. Wyler, Esq.
Fla. Bar No.: 119979
961687 Gateway Blvd., Suite 201-I
Fernandina Beach, Florida 32034
([Phone Redacted]
([Phone Redacted] Fax
Primary: jacobsscholzlaw(gcomeast.net
29
EFTA02734958