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2012-07-23 FL - COLLETTE - Plaintiff's Reply to Defendant's Opposition to Motion to Reconsider

2012-07-23 FL - COLLETTE - Plaintiff's Reply to Defendant's Opposition to Motion to Reconsider

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Published by: Jack Ryan on Jul 24, 2012
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IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUITIN AND FOR PASCO COUNTY, STATE OF FLORIDA
Civil Division
Collettev.Obama,
et al.Case Number:
512012CA 2041WSPlaintiff's Reply to Defendant's Opposition to Motion to Reconsider
I, Jerry Collette, plaintiff, reply to defendants’ opposition, dated July 23, 2012, to my motion toreconsider and set aside the court’s venue order of July 16, 2012, transferring venue to LeonCounty, as follows:
Introduction
It appears that, yet again, defendants are trying to flimflam the court, and, perhaps, yet again, tothe level of attempted fraud upon the court. On the other hand, just as it was possible that thedefendants’ team of attorneys simply made honest mistakes before, they may have simply doneso again.
1
Procedural Issues
1.My motion is one fo
reconsideration
of the court’s order, not a
rehearing
on it. Yet, intheir opposition paper, defendants refer to my motion for 
reconsideration
as a motion for 
rehearing.
There is a difference.
2
2.A simple Google search with the terms
rehearing 
and
reconsideration
brings, at the verytop of 728.000 results, an article
3
from page 79 of the Florida Bar Journal of June, 2009,Volume 83, No. 6, entitled, “Reconsideration or Rehearing: Is There a Difference?” byJames H. Wyman. In its conclusion, that article states, in relevant part:
1
I take no position as the likelihood of either possibility.
2
Particularly in Florida.
3
Which is online at:http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/c0d731e03de9828d852574580042ae7a/0020ff826ad66c5852575c50049d2b4?OpenDocumentPlaintiff's Reply to Defendant's Opposition to Motion to Reconsider - Page 1 of 5
 
[...]
motions for reconsideration and motions for rehearing are separateand distinct under Florida law. A motion for rehearing is a creature of therules of procedure. It may only be directed at final orders
[….]
A motion for reconsideration is a creature of the common law. It may be directed atvirtually any nonfinal order and filed at any time until entry of judgment
[….]
4
3.The article goes on to recommend doing exactly as I did:
To avoid confusion and maintain clarity, the practitioner who seeks tohave a trial judge reconsider a nonfinal order should properly style themotion as one for reconsideration and not rehearing.
5
4.As the court stated in
 Monte Campbell Crane Co., Inc. v. Hancock,
510 So. 2d 1104,1105-1106 (Fla. 4th DCA 1987):
It is well settled that a trial court has the inherent authority to control itsown nonfinal orders prior to entry of final judgment.
North Shore Hospital,Inc. v. Barber,
143 So.2d 849, 851 (Fla. 1962);
 Alabama Hotel Co. v. J.L.Mott Iron Works,
86 Fla. 608, 98 So. 825 (Fla. 1924).
5.An order to transfer venue is a nonfinal order. Included in the court’s authority to controlits own nonfinal orders prior to entry of final judgment are the authorities to:a.Reconsider them, and b.Set them aside. 6.Accordingly:
4
Was there nobody on the entire team of defendant’s attorneys who knew the difference between amotion for reconsideration and motion for rehearing? Or, are defendants, yet again, trying to flimflam thecourt?
5
The rehearing that I have suggested would not be of an order, but would be of defendants’ originalmotion to transfer venue, however, any such rehearing would only occur if and after the court sets asidethe order of July 16, 2012, that transferred venue to Leon County. Therefore, at such a point, there would be no order in existence upon which to have a rehearing, but merely a then outstanding motion.Furthermore, I did not request, but merely suggested, a rehearing on this motion. I would willingly foregosuch a hearing and permit the court to simply deny the motion. My suggestion for a rehearing on it wassimply a courtesy to defendants.
Plaintiff's Reply to Defendant's Opposition to Motion to Reconsider - Page 2 of 5
 
a.Paragraphs 1 and 2 of defendants’ opposition paper should be disregarded asirrelevant; and b.The conclusion drawn therefrom, stated in paragraph 3 of their opposition paper,should be disregarded as incorrect.
Substantive Issues
7.Defendants began paragraph 4 of their opposition by quoting two sentences from mymotion to reconsider and set aside:
It turns out that property had
no bearing, whatsoever,
on the venueholding in
Tucker.
 
There was not even any property in the entirelitigation!
8.Defendants then went on to say,
“Contrary to plaintiff’s assertions,
[….]
However,instead of asserting anything contrary to my assertions, they simply quoted the secondsentence of Tucker,
6
and attached a copy of the entire case.9.Nothing in the second sentence o
Tucker 
7
states that:a.Property had any bearing on the venue holding; or  b.There was any property in the litigation.10.Contrary to defendants’ assertion, there is nothing in the second sentence of 
Tucker 
8
 
which is contrary to my assertions that the defendants quoted.11.Accordingly, defendants’ contention of paragraph 4 of their opposition document should be disregarded as nonsensical.
6
Which I mentioned in my motion to reconsider, at p. 4 #1, stating:
The
Tucker 
court mentions property only once, in
[which I misstated as]
the very first
[when it was, actually, the second]
sentence, simply to describe the history of the parties’transactions together, i.e., that previous dealings between them were related to a pieceof property. Other than that,
property had absolutely nothing whatsoever to do withthe Tucker case, or its venue holding.
7
 
Or anywhere else in the case.
8
 
Or anywhere else in the case.
Plaintiff's Reply to Defendant's Opposition to Motion to Reconsider - Page 3 of 5

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