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Filing # 105625917 E-Filed 03/30/2020 03:47:00 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
GOOD GATEWAY, LLC, Case No. 2010-CA-015315-O
Plaintiffs, COMPLEX BUSINESS
LITIGATION COURT
vs. Division: 43
ORLANDO GATEWAY PARTNERS, LLC, et al.,
Defendants. /
MOTION FOR RECONSIDERATION OF THIS
COURT’S ORDER DATED FEBRUARY 27, 2020 REGARDING
INSPECTION OF THE PROPERTY LOCATED IN GEORGIA
1. On February 25, 2020 Plaintiffs filed an Emergency Motion [1] to
Compel Defendants’ Compliance with Order for Inspection of Property, 2) for
Sanctions, and 3) Contempt (“Emergency Motion” or “Motion”). The Motion was
directed to Defendants’ Niloy and Rohan, LLC, and Chittranjan K. Thakkar.
2. A hearing was held on February 27, 2020 at which this Court entered
an Order on Plaintiffs’ Motion: 1) to Compel Defendants’ Compliance with Order
for Inspection of Property, 2) for Sanctions, and 3) Contempt. The Court Order
allowed the inspection of the real and personal property, at the date and time the
Court selected, limited the number of people allowed at and the length of, the
inspection. Thereafter, Plaintiffs inspected the property at the date and time set by
the Court. At the inspection of the property, the non-defendant, co-owner of the
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property, Saloni Thakkar, was represented and, notwithstanding her rights to bar the
inspection, allowed the inspection to proceed.
3. What the Plaintiffs attorney failed to tell the Court before the
“emergency” motion was filed or even at the hearing, is that the Plaintiffs’
foreclosure “sale” of the property could not take place due to the failure of the
Plaintiffs to comply with Georgia’s foreclosure procedures. That procedure requires
notice to and payment-in-full of a superior lienholder (Georgia uses a Security Deed,
similar to a Deed of Trust, rather than Mortgages to secure real property used as
collateral).
4. Thakkar has never denied Plaintiffs’ request for inspection of the
property.
5. What counsel for the Plaintiffs did not tell the Court, which the
attachments to the Emergency Motion support, is that Thakkar has didn’t refuse
Plaintiffs’ request for an inspection of the Georgia property referenced in the
Emergency Motion.
6. In fact, in ¶ 4 of the Emergency Motion, Plaintiffs’ counsel recited that
Thakkar consented to the inspection, which is a fact that had not changed.
7. Notwithstanding Thakkar’s willingness to allow the inspection, 350
Colonnade Trail, Alpharetta, GA 30022, the email Plaintiffs’ attached to the
Emergency Motion as Exhibit “C” was an email which properly states that “Chuck
Page 2 of 8
and Saloni own this property. Saloni has affirmed that she does not intend to allow
you to access this property. The property is in Georgia and neither the property, nor
Saloni, are within the jurisdiction of the court.”
8. That assertion of jurisdiction is correct, in fact, this Court did not assert
any jurisdiction over Saloni Thakkar in granting it Order, dated February 27, 2020.
It made it clear that the Defendants were to make the property available for
inspection. The Order did not address Saloni Thakkar’s interest.
9. What the Plaintiffs’ attorney failed to make clear to the Court is that
Thakkar always consented to the inspection of the Georgia property.
10. Additionally, Plaintiffs’ attorney failed to make it clear that the
“emergency” was based on an email from October 30, 2019 which was reconfirmed
to him. A Review of Exhibit “C” to the “Emergency” Motion makes it clear that
there was no “emergency”, but that was not disclosed to the Court.
11. Plaintiffs’ attorney based upon an incomplete and intentionally
deceiving recitation of the facts, then received an Order granting entitlement to fees
for filing the Emergency Motion.
12. The Defendants in this matter dispute the entitlement to fees, since the
Court appeared to be “tricked” by the Plaintiffs’ attorney.
Page 3 of 8
13. In fact, this “emergency” was manufactured by the Plaintiffs at the last
minute, caused the Defendants additional attorney fees, and disrupted the schedules
of the attorneys and the Court to deal with this “emergency”
14. Since the entry of the Order, Plaintiffs’ attorney has represented, that
Thakkar was held in contempt through the entry of the February 27, 2020 Order.
15. To the uninformed, the fact that the Court “Granted” the Motion against
the Defendants could be interpreted to be that Thakkar was held in contempt by the
Court. While those with legal experience realize that, in a civil matter, for a Court to
find someone in contempt, there must be a mechanism to “purge” the contempt along
with a finding of contempt, neither of which was included in the Order.
16. The Court’s Order was clear on the details of the inspection and held
that the Plaintiffs had an entitlement to fees and costs related to certain work
performed. The Order was entered on an emergent basis and contained hand-written
instructions from the Court, but it was just as clear that there was no finding of
Contempt and, since there was no mechanism to purge the Contempt, the Court did
not intend to find anyone “in contempt”, nor did the Defendants ever impede the
inspection of the Georgia property.
17. There was no emergency and the Defendants are entitled to their
attorneys’ fees and costs, not the Plaintiff.
Page 4 of 8
18. The defendants would like to make it clear to those who review the
February 27, 2020 that neither the entity nor the individual impeded the inspection
of the Georgia property nor was either held in contempt
19. The Order granting entitlement to fees and costs was based upon a false
“emergency” and false interpretation of Exhibit “C”.
Memorandum of Law.
Fla. R. Civ. P 1.540(a), is applicable to the relief sought and states: Clerical
mistakes in judgments, decrees, or other parts of the record and errors therein arising
from oversight or omission may be corrected by the court at any time on its own
initiative or on the motion of any party and after such notice, if any, as the court
orders. During the pendency of an appeal such mistakes may be so corrected before
the record on appeal is docketed in the appellate court, and thereafter while the
appeal is pending may be so corrected with leave of the appellate court.
A civil contempt proceeding is very different in origin and purpose from a
criminal contempt proceeding: If the purpose of the proceedings is to coerce action
or non-action by a party, the order of contempt is characterized as civil. This type
[of] contempt proceeding is ordinarily instituted by one of the parties to the litigation
who seeks to coerce another party to perform or cease performing an act. The order
of contempt is entered by the court for the private benefit of the offended party. Such
orders, although imposing a jail sentence, classically provide for termination of the
Page 5 of 8
contemnor's sentence upon purging himself of the contempt. The sentence is usually
indefinite and not for a fixed term. Consequently, it is said that the contemnor
"carries the key to his cell in his own pocket." Andrews v. Walton, 428 So. 2d 663
(Fla. 1983)
“The primary purpose of a civil contempt proceeding is to compel future
compliance with a court order.” International Union, United Mine Workers v.
Bagwell, 512 U.S. 821, 129 L. Ed. 2d 642, 114 S. Ct. 2552 (1994). A civil contempt
sanction is coercive in nature and is avoidable through obedience. Id. at 827. The
United States Supreme Court concluded that any coercive sanction ordered in a civil
contempt proceeding must afford the contemnor an opportunity to purge. . . “See
Bagwell, 512 U.S. at 82. This holding overruled a portion of the Florida Supreme
Court’s decision in Johnson v. Bednar, 573 So. 2d 822 (Fla. 1991), where the Florida
Supreme Court concluded that the necessity of a purge in imposing a civil contempt
sanction is only required where incarceration is ordered. However, after the Florida
Supreme Court issued its Bednar decision, the United States Supreme Court
concluded that any coercive sanction ordered in a civil contempt proceeding must
afford the contemnor an opportunity to purge.
The movants herein request that the Court reconsider the February 27, 2020
Order in order to correct what appears to be a clerical mistake to ensure that any
Page 6 of 8
reasonable person reading the Order, which was entered on an emergent basis, can
conclude this Court did not find the Defendants in contempt.
Further, Plaintiffs’ Exhibit “C” supports the fact that neither Defendant
impeded nor intended to impede, inspection of the Georgia property.
WHEREFORE, the Defendants respectfully request that the Court amend the
Order entered February 27, 2020 to make it clear that the Defendants never
attempted to impede the inspection of the Georgia property, disallow Plaintiffs’
entitlement to fees, find that the Defendants are entitled to fees for the
misrepresentation to the Court and for any further and additional relief the Court
deems just and prudent.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed
and served using the Court’s E-filing portal this 30th day of March 2020, to all
registered eportal parties.
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that I, with full authority to resolve this matter
attempted in good faith to contact opposing counsel, Clay Townsend by telephone
on:
1. Friday March 27, 2020 at 5:52 p.m. and left a message at 407-418-2075
Page 7 of 8
2. March 30, 2020 at 10:25 a.m. and left a message at 407-418-2075; and
3. March 30, 2020 I call Mr. Townsend’s cell phone at 10:27 and left a message
to discuss resolution of this motion without a hearing and the lawyer in my firm
was unable to speak with opposing counsel nor have I heard from him up to the
filing of this Motion.
Moffa & Breuer, PLLC
Counsel for “Defendants”
1776 N. Pine Island Rd. #102
Plantation, Florida 33322
Telephone 954-634-4733
FAX 954-337-0637
Email john@moffa.law
By: /s/ John A. Moffa
John A. Moffa, FBN 932760
Page 8 of 8
Preview
Filing # 105625917 E-Filed 03/30/2020 03:47:00 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA GOOD GATEWAY, LLC, Case No. 2010-CA-015315-O Plaintiffs, COMPLEX BUSINESS LITIGATION COURT vs. Division: 43 ORLANDO GATEWAY PARTNERS, LLC, et al., Defendants. / MOTION FOR RECONSIDERATION OF THIS COURT’S ORDER DATED FEBRUARY 27, 2020 REGARDING INSPECTION OF THE PROPERTY LOCATED IN GEORGIA 1. On February 25, 2020 Plaintiffs filed an Emergency Motion [1] to Compel Defendants’ Compliance with Order for Inspection of Property, 2) for Sanctions, and 3) Contempt (“Emergency Motion” or “Motion”). The Motion was directed to Defendants’ Niloy and Rohan, LLC, and Chittranjan K. Thakkar. 2. A hearing was held on February 27, 2020 at which this Court entered an Order on Plaintiffs’ Motion: 1) to Compel Defendants’ Compliance with Order for Inspection of Property, 2) for Sanctions, and 3) Contempt. The Court Order allowed the inspection of the real and personal property, at the date and time the Court selected, limited the number of people allowed at and the length of, the inspection. Thereafter, Plaintiffs inspected the property at the date and time set by the Court. At the inspection of the property, the non-defendant, co-owner of the Page 1 of 8 property, Saloni Thakkar, was represented and, notwithstanding her rights to bar the inspection, allowed the inspection to proceed. 3. What the Plaintiffs attorney failed to tell the Court before the “emergency” motion was filed or even at the hearing, is that the Plaintiffs’ foreclosure “sale” of the property could not take place due to the failure of the Plaintiffs to comply with Georgia’s foreclosure procedures. That procedure requires notice to and payment-in-full of a superior lienholder (Georgia uses a Security Deed, similar to a Deed of Trust, rather than Mortgages to secure real property used as collateral). 4. Thakkar has never denied Plaintiffs’ request for inspection of the property. 5. What counsel for the Plaintiffs did not tell the Court, which the attachments to the Emergency Motion support, is that Thakkar has didn’t refuse Plaintiffs’ request for an inspection of the Georgia property referenced in the Emergency Motion. 6. In fact, in ¶ 4 of the Emergency Motion, Plaintiffs’ counsel recited that Thakkar consented to the inspection, which is a fact that had not changed. 7. Notwithstanding Thakkar’s willingness to allow the inspection, 350 Colonnade Trail, Alpharetta, GA 30022, the email Plaintiffs’ attached to the Emergency Motion as Exhibit “C” was an email which properly states that “Chuck Page 2 of 8 and Saloni own this property. Saloni has affirmed that she does not intend to allow you to access this property. The property is in Georgia and neither the property, nor Saloni, are within the jurisdiction of the court.” 8. That assertion of jurisdiction is correct, in fact, this Court did not assert any jurisdiction over Saloni Thakkar in granting it Order, dated February 27, 2020. It made it clear that the Defendants were to make the property available for inspection. The Order did not address Saloni Thakkar’s interest. 9. What the Plaintiffs’ attorney failed to make clear to the Court is that Thakkar always consented to the inspection of the Georgia property. 10. Additionally, Plaintiffs’ attorney failed to make it clear that the “emergency” was based on an email from October 30, 2019 which was reconfirmed to him. A Review of Exhibit “C” to the “Emergency” Motion makes it clear that there was no “emergency”, but that was not disclosed to the Court. 11. Plaintiffs’ attorney based upon an incomplete and intentionally deceiving recitation of the facts, then received an Order granting entitlement to fees for filing the Emergency Motion. 12. The Defendants in this matter dispute the entitlement to fees, since the Court appeared to be “tricked” by the Plaintiffs’ attorney. Page 3 of 8 13. In fact, this “emergency” was manufactured by the Plaintiffs at the last minute, caused the Defendants additional attorney fees, and disrupted the schedules of the attorneys and the Court to deal with this “emergency” 14. Since the entry of the Order, Plaintiffs’ attorney has represented, that Thakkar was held in contempt through the entry of the February 27, 2020 Order. 15. To the uninformed, the fact that the Court “Granted” the Motion against the Defendants could be interpreted to be that Thakkar was held in contempt by the Court. While those with legal experience realize that, in a civil matter, for a Court to find someone in contempt, there must be a mechanism to “purge” the contempt along with a finding of contempt, neither of which was included in the Order. 16. The Court’s Order was clear on the details of the inspection and held that the Plaintiffs had an entitlement to fees and costs related to certain work performed. The Order was entered on an emergent basis and contained hand-written instructions from the Court, but it was just as clear that there was no finding of Contempt and, since there was no mechanism to purge the Contempt, the Court did not intend to find anyone “in contempt”, nor did the Defendants ever impede the inspection of the Georgia property. 17. There was no emergency and the Defendants are entitled to their attorneys’ fees and costs, not the Plaintiff. Page 4 of 8 18. The defendants would like to make it clear to those who review the February 27, 2020 that neither the entity nor the individual impeded the inspection of the Georgia property nor was either held in contempt 19. The Order granting entitlement to fees and costs was based upon a false “emergency” and false interpretation of Exhibit “C”. Memorandum of Law. Fla. R. Civ. P 1.540(a), is applicable to the relief sought and states: Clerical mistakes in judgments, decrees, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the record on appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court. A civil contempt proceeding is very different in origin and purpose from a criminal contempt proceeding: If the purpose of the proceedings is to coerce action or non-action by a party, the order of contempt is characterized as civil. This type [of] contempt proceeding is ordinarily instituted by one of the parties to the litigation who seeks to coerce another party to perform or cease performing an act. The order of contempt is entered by the court for the private benefit of the offended party. Such orders, although imposing a jail sentence, classically provide for termination of the Page 5 of 8 contemnor's sentence upon purging himself of the contempt. The sentence is usually indefinite and not for a fixed term. Consequently, it is said that the contemnor "carries the key to his cell in his own pocket." Andrews v. Walton, 428 So. 2d 663 (Fla. 1983) “The primary purpose of a civil contempt proceeding is to compel future compliance with a court order.” International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 129 L. Ed. 2d 642, 114 S. Ct. 2552 (1994). A civil contempt sanction is coercive in nature and is avoidable through obedience. Id. at 827. The United States Supreme Court concluded that any coercive sanction ordered in a civil contempt proceeding must afford the contemnor an opportunity to purge. . . “See Bagwell, 512 U.S. at 82. This holding overruled a portion of the Florida Supreme Court’s decision in Johnson v. Bednar, 573 So. 2d 822 (Fla. 1991), where the Florida Supreme Court concluded that the necessity of a purge in imposing a civil contempt sanction is only required where incarceration is ordered. However, after the Florida Supreme Court issued its Bednar decision, the United States Supreme Court concluded that any coercive sanction ordered in a civil contempt proceeding must afford the contemnor an opportunity to purge. The movants herein request that the Court reconsider the February 27, 2020 Order in order to correct what appears to be a clerical mistake to ensure that any Page 6 of 8 reasonable person reading the Order, which was entered on an emergent basis, can conclude this Court did not find the Defendants in contempt. Further, Plaintiffs’ Exhibit “C” supports the fact that neither Defendant impeded nor intended to impede, inspection of the Georgia property. WHEREFORE, the Defendants respectfully request that the Court amend the Order entered February 27, 2020 to make it clear that the Defendants never attempted to impede the inspection of the Georgia property, disallow Plaintiffs’ entitlement to fees, find that the Defendants are entitled to fees for the misrepresentation to the Court and for any further and additional relief the Court deems just and prudent. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed and served using the Court’s E-filing portal this 30th day of March 2020, to all registered eportal parties. CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that I, with full authority to resolve this matter attempted in good faith to contact opposing counsel, Clay Townsend by telephone on: 1. Friday March 27, 2020 at 5:52 p.m. and left a message at 407-418-2075 Page 7 of 8 2. March 30, 2020 at 10:25 a.m. and left a message at 407-418-2075; and 3. March 30, 2020 I call Mr. Townsend’s cell phone at 10:27 and left a message to discuss resolution of this motion without a hearing and the lawyer in my firm was unable to speak with opposing counsel nor have I heard from him up to the filing of this Motion. Moffa & Breuer, PLLC Counsel for “Defendants” 1776 N. Pine Island Rd. #102 Plantation, Florida 33322 Telephone 954-634-4733 FAX 954-337-0637 Email john@moffa.law By: /s/ John A. Moffa John A. Moffa, FBN 932760 Page 8 of 8