Court Records
Filing # 166969369 E-Filed 02/16/2023 03:08:58 PM
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
CA FLORIDA HOLDINGS, LLC, CASE NO.: 50-2019-CA-014681-AG
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.
RESPONSE IN OPPOSITION TO STATE
MOTION TO ALTER OR AMEND O1W
FOR ATTORNEYS' FEES UNDER
A Cos
Y DAVE ARONBERG'S
G THE AMENDED MOTION
STATUTES SECTION 57.105
Plaintiff, CA FLORIDA HOLDINGS, L the Publisher of The Palm Beach Post ("The
gef
Post"), submits this Response and Memorandum in Opposition to State Attorney Dave Aronberg's
("State Attorney" or "Mr. Aron rg") Peibruary I, 2023 Motion to Alter or Amend Order Denying
7. 4„, the Amended Motion fo rneys' Fees under Florida Statutes Section 57.105 ("Motion to
Alter"). For the S ns sedforth below, the Motion to Alter should be denied.
INTRODUCTION
e Attorney's Motion to alter should be denied. There is no reason to alter or amend
the Court's January 31, 2023 Order Denying the Amended Motion for Attorneys' Fees Under
Florida Statutes Section 57.105 (the "Order). The Court correctly determined that the State
Attorney sought relief at the September 6 and 8, 2022 evidentiary hearing (the "Hearing") based
upon both his July I, 2020 self-described "place-marker" Motion for Section 57.105 Attorneys'
Fees (the "First Motion"), which he expressly incorporated into his November 9, 2020 Amended
FILED: PALM BEACH COUNTY. FL, ABRUZZO. CLERK. 02/16/2023 03:08:58 PM
EFTA02735068
Motion for Section 57.105 Attorneys' Fees (the "Amended Motion"), as well as the Amended
Motion. The Court's Order properly disposed of both motions, even though the State Attorney
had fused them together such that the Amended Motion superseded his First Motion. As the docket
reflected two motions, it was appropriate for the Order to expressly dispose of both motions. Thus,
the Court correctly held: "Accordingly, the July 1, 2020 Motion for Attorneys' Fees is DENIED."
ARGUMENT
The July I, 2020 Motion for Attorneys' Fees—which the State A
to as a "place-marker" motion—was expressly incorporated into a
Attorney's Amended Motion for Fees filed on November 9 ,2
c4)made clear that the State Attorney always intended to flu ed motion supplementing his
The t 'Sic Motion (an 11-page motion with The
ate Attorney's barebones argument from
two-page enclosure letter into the Amended
Ex. "A". The Amended Motion also sought fees
red by the First Motion. See id. at 7 and Ex. "F". Further,
gued that his Amended Motion related back to the First Motion
f the Amended Motion could be cured by utilizing the First Motion's
e.g., Hrg. Tr. at 15:2-11, 18:2-12. The Amended Motion was the only motion
orney set for hearing, and reset several times, before (and after) the December 20,
self referred
ed by the State
self-described "place-marker" First Motion.
exhibits, totaling 59 pages) expressly incorpo
his one-page First Motion and its
Motion. See Amended Motion,
including those for the time pe
the State Attorney inco
such that the noti
57.105 notic
that th
ate Attorney's filings
2021 Final Judgment. See Hrg. Tr. at 128: 1-4. These and other facts set forth herein demonstrate
that the "place-marker' First Motion was superseded by the Amended Motion and the State
Attorney abandoned the First Motion upon the filing of his Amended Motion. See, e.g., Gannon
v. Cackler, 281 So. 3d 587, 596 (Fla. 2d DCA 2019) ("When a party files an amended brief in this
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court, we regard the amended filing as a new and separate document and disregard the old one.");
Hayes v. State, 59 So. 3d 384, 385 (Fla. 4th DCA 2011) ("The amended motion superseded the
original one."). Once incorporating the arguments contained in the First Motion with the new
arguments set forth in the Amended Motion, the State Attorney was required to provide a new safe
harbor notice, and his failure to do so was fatal to "both" motions. Thus, it was entiiely correct
for the Court to deny both motions as it did in the Order.
Despite the State Attorney's statement in the Motion to Alter that . Motion "was
n
C a
never heard by the Court," the arguments set forth in the First Moti fried over into the
Amended Motion) were argued by the parties, heard by the Co th nng, and addressed in V
othe parties' written closing arguments. Even though it w n v perly noticed for hearing by
e State Attorney's counsel argued
ded Motion, and in the alternative to his
we would ask Your Honor, in the alternative,
the State Attorney, during the Hearing on Septembe
that the First Motion be considered, as a part
Amended Motion. See Hrg. Tr. at 18: 2 ("
... that you would rule on our on for attorneys' fees if it came down to it because, in
the end, the arguments are the me, d the real difference in the filing of the amended motion
1Z0for attorneys' fees is that ' ded the final tabulation of my firm's fees, as well as affidavits ..
. of fees and an a vit of sonable fees from our expert"); see also State Attorney Aronberg's
Written Clos ment at 2. And over the objection of The Post, the Court heard the matters
raised rst Motion, incorporated into the Amended Motion. Thus, the State Attorney
conceded that the arguments contained in the First Motion were included in the Amended Motion
argued by the parties and denied by the Court.
To protect its rights, The Post, over objection, defended against the issues raised by the
"place-marker" First Motion and the Amended Motion at the Hearing. See generally Hrg. Tr. at
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26 -31; see also Hrg. Tr. at 28:15 - 29:7 ("So the first place-marker motion, Exhibit 14, it's — the
motion itself is one page. There's an enclosure letter that came with it, and it's two pages. So three
pages total. The motion itself says nothing except we're going to prevail, and this is your notice,
we want fees. But the enclosure letter says, along the lines I believe Mr. Wyler said this in his
opening, that the defendant Aronberg nor the office of the state attorney is in custody o control of
the 2006 grand jury materials sought therein. However, the first motion corn failed to
address the main reason why the state attorney was a parr to the lass suit, c use it could
object to the clerk providing the grand jury records....") (emph is ad ?
While The Post raised procedural arguments precludi e Motion, The Post, by precludi
Closing Argument. See Hrg. Tr. at 26-31; Written st ment of The Palm Beach Post at
tnecessity, defended against the merits of the First Motio ri e Hearing and in its Written
Sti r
5-9, 10-17; id. at 8 ("The barebones 'place o n fails to meet the high burden of section
57.105. The Court must look at the sub ce, o ack thereof, of that motion, as of that moment
in the timeline, to determine whet a me the State Attorney met his burden of showing the
claim was frivolous or, in othe at the Post knew or should have known at that time there
was no longer any justici 1 im. . . . There was only one purported basis for sanctions stated
in the first 'pia otion (technically, in the enclosure letter to that one-page motion)
regarding th tory relief claim in Count I—the argument that the State Attorney did not
have or custody of the Epstein grand jury materials. Did that argument alone end the
matter as to the State Attorney? No. Did that argument alone make the State Attorney's joinder
in this case so frivolous as to be completely untenable? Absolutely not.") (internal citations
omitted).
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EFTA02735071
The Post also noted and argued that the "place-marker" First Motion was filed months
before Mr. Aronberg's fundamental change of his legal position such that he no longer objected to
the Clerk's production of Epstein grand jury records if ordered by the Court, as Mr. Aronberg first
stated in a reply brief in support of his First Motion on October 14, 2020. See Written Closing
Argument of The Palm Beach Post at 9; Hrg. Tr. at 29:14 — 31:6 ("So clearly there's ew stuff in
the amended motion for fees. But Mr. Wyler said they said the same arguments. Ttr t -- That's
not true. The amended motion clearly makes new arguments not in the firs rker motion.
It also references new documents, like the state attorney's motion for udgment and Mr.
Aronberg's affidavit, both which were filed in August of 20 rtantly, the amended V ?
Ce lemotion also raises new positions. . . . As you will see in e v ce, the position that the state
attorney had, [`]no objection['], or, [`]never had a b ti to the clerk producing grand juryS vra
Sic materials[',] was new, and you'll hear from G n g urig attorney Stephen Mendelsohn that s it
this is exactly the position that the Post tryi to get and Mr. Mendelsohn was trying to get
from the state attorney. And you'll June 23rd, 2020, letter Mr. Mendelsohn wrote to the
state attorney, he said the state is named here because they are a party that is tasked with
protection of the grand j tem. You have the right to object to the release of grand jury
materials. That's you' here. And, once we had this notice right here of saying they don't
object, we di him. So he first said on the record, on October 14th, 1 have no objection to
the p f the Epstein grand jury materials. We dismissed him October 2 O.").
Faced with the denial of his only pending motion for fees (the Amended Motion), the State
Attorney's Motion to Alter is an improper attempt to use a procedural sleight of hand to reargue
his superseded First Motion. The State Attorney never considered the First Motion as anything
other than a "place-marker" that was intended to be and was superseded by the Amended Motion.
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EFTA02735072
And once that happened, the State Attorney's failure to provide the requisite safe harbor notice
mandated that both motions be denied. The State Attorney now seeks to reargue matters expressly
argued during the Hearing, which in any event were barred by the failure to provide the required
safe harbor. The Court should deny the State Attorney's attempt to reargue the Hearing and obtain
a second bite at the apple.
The State Attorneys' Motion to Alter is an attempt to have it both w9 The State
Attorney's filings and arguments to the Court demonstrate that he conside i 7.105 motions
to be unitary, such that the First Motion became part of and was s by the Amended
Motion. Now, faced with an Order that denied his motions o failure to comply with
the notice requirements of 57.105, he argues that his F is somehow a separate and
distinct motion from his Amended Motion. This oald reject the State Attorneys' new
attempt to split his motions. The Order is coret 4Afd d not be amended or altered.
ION
Based on the foregoing, th rney's Motion to Alter or Amend the Order should
be denied.
6
Respectfully submitted,
/s/ Lauren Whetstone
LAUREN WHETSTONE
Florida Bar No. 45192
MARK F. BIDEAU
Florida Bar No. 564044
GREENBERG TRAURIG, P.A.
777 South Flagler Drive, Suite 300 East
West Palm Beach, FL 33401
Tel.: [Phone Redacted]
[Email Redacted]
bideaumQgtlaw.com
[Email Redacted]
[Email Redacted]
FLServiceOztlaw.com
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STEPHEN A. MENDELSOHN
Florida Bar No. 849324
GREENBERG TRAURIG, P.A.
401 East Las Olas Boulevard, Suite 2000
Fort Lauderdale, FL 33301
Tel.: [Phone Redacted]
mendelsohns(4atlaw.com
smithl®gtlaw.com
MICHAEL J. GRYGIEL
(Admitted Pro Hac Vic
GREENBERG TRAUR
54 State Street, 6th
Albany, NY I
Tel.: 518.689.
ielm
N ARAN
ro Hac Vice)
RG TRAURIG, P.A.
0
entury Park East, Suite 1900
Angeles, CA 90067
el.: [Phone Redacted]
[Email Redacted]
riveraal~law.com
Counsel for Plaintiff CA Florida Holdings,
LLC, Publisher of The Palm Beach Post
CERTIFICATE OF SERVICE
I HEFtE CER IFY that a true and accurate copy of the foregoing has been
electronica 1 ith the Florida E-File Portal for e-service on all parties of record herein on
Feb , 23.
/s/ Lauren Whetstone
Lauren Whetstone, Esq.
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