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Motion for Rehearing and or Reconsideration

Motion for Rehearing and or Reconsideration

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Published by John Carroll
This is a copy of the Motion for Rehearing and Reconsideration I filed in the case against WaterSound, Watercolor, et al
This is a copy of the Motion for Rehearing and Reconsideration I filed in the case against WaterSound, Watercolor, et al

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Published by: John Carroll on Jun 18, 2011
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12/10/2012

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I THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUITI AD FOR WALTO COUTY, FLORIDACIVIL DIVISIOJOH P. CARROLL,Plaintiff, Case o.: 09CA002021v.WATERSOUD BEACH COMMUITY ASSOCIATIO, IC.,
 Florida Corporation
DAVID LILIETHAL,
individuallyand as Director,
MARY JOULE
,
SADRA MATTESO,ROALD VOELKER,WATERCOLOR COMMUITY ASSOCIATIO, IC.JOH DOE and JAE DOEDefendants. ____________________________________________/PLAITIFF’S MOTIO FOR REHEARIG AD/OR MOTIO FOR RECOSIDERATIO
 Comes now the Plaintiff, John Carroll who makes this Motion for Rehearing and/or Reconsideration and states as follows:1. This Motion is based upon the conflict between procedural and substantive law thathas affected the course of the proceedings herein.2. The course of the proceedings at bar are being controlled by a Case ManagementOrder that has failed to mention basic elements such as Mediation and Amendment to Pleadings.3. In strict conformance with Florida Statue 768.72 and Florida Rule 1.190 (f), on May23, 2011, Plaintiff Carroll filed his Motion Seeking Leave to Amend his Complaint to Add a Claimfor Punitive Damages with Supporting Memorandum of Law and Proffer of Evidence.
 
4. Carroll immediately delivered said Motion to all Counsel of Record.5. Florida Statute 768.72 and all the case law referencing same require the Plaintiff toconduct meaningful discovery and proffer evidence prior to seeking punitive damages.
768.72 Pleading in civil actions; claim for punitive damages.— (1) In any civil action, no claim for punitive damages shall be permitted unlessthere is a reasonable showing by evidence in the record or proffered by theclaimant which would provide a reasonable basis for recovery of such damages.The claimant may move to amend her or his complaint to assert a claim forpunitive damages as allowed by the rules of civil procedure. The rules of civilprocedure shall be liberally construed….”
6. The proffer of evidence threshold under one of Carroll’s claims, Negligence, is set toan even greater standard.
 see
Carraway v. Revell, 116 So. 2d 16 - Fla: Supreme Court 19597. Carroll seeks punitive damages in a variety of his causes including Libel and Slander,Breaches of Contract and Fiduciary Duty, Negligence, etc.8. To meet the evidentiary burden mandated by Florida Statute, Carroll’s Motionincluded 55 pages of Motion and Proffer of Evidence, and then included 429 pages of EvidenceExhibits.9. Carroll’s Motion met all the burdens of Florida Statute 768.72.10. The procedural vs substantive conflict lies in the progress of this case. Carroll wasmet with stiff resistance to any and all discovery on the part of the Defendants during the first 14months of the case. The case docket shows that Carroll sought the Court’s assistance no less than 4times to compel any meaningful discovery on the part of the Defendants.11. The Defendants allowed no meaningful discovery until after he filed his currentcomplaint (the 2
nd
Amended). In other words, Carroll’s Motion for Leave to Amend Adding a Claimfor Punitive Damages is his first Amendment since any meaningful Discovery.
 
12. On June 2, 2011, this Court heard Plaintiff’s Motion seeking Leave to Amend hisComplaint to Add a Claim for Punitive Damages and denied that claim. From the hearing:
Mr. Carroll: .. .. .. ..I worked very hard to discoverevidence in this case over motion after motion to compeldiscovery from the defendants, and it's only within thelast five months that I started getting all of thesedocuments, et cetera, 4,000 pages that are relevant tothis case. That's all I have, Your Honor.THE COURT: I'm going to find that we're at a point wherediscovery has been closed and this motion is untimely, soI would deny it -- that motion.
13. On June 17, 2011, the Court heard various Motions and other pre-trial issues. Whenthe parties and the Court asked about Carroll’s intentions regarding the denial of his Motion to Seek Punitive Damages Carroll informed the Court that he would make a Motion for Rehearing or Reconsideration upon the Court’s entrance of the Order of Denial.14. The Court informed the parties that the Order has been filed with the Clerk and askedCarroll for a commitment. Carroll promised the Court that based upon the argument of Counsel,Florida Statute and Case Law he’d make the Motion immediately (This Motion).15. Carroll reminds the Court of the proffer by the Defendants at the hearing todaywherein they stated unequivocally that they would not feel prejudiced by the proximity of trial:
1 IN THE CIRCUIT COURT IN AND FOR WALTON COUNTY,2 FLORIDA3JOHN P. CARROLL,45 Plaintiff,6 vs. CASE NO. 09-CA-20217 WATERSOUND BEACH COMMUNITYASSOCIATION, et al,89 Defendant.

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