Preview
Filing # 193191535 E-Filed 03/04/2024 09:20:44 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
EDWARD GUERRETTE II,
Plaintiff/Counter-Defendant, Case No. 2021-CA-002799-CI
vs.
JAMES BAGLEY JR., JAMES BAGLEY III,
ACE HOSPITALITY LLC, CITICOMMUNITIES
LLC, COMMERCE BROKERAGE, LLC AND
CITI HOMES, LLC
Defendants/Counter-Plaintiffs
vs.
DESTINATION HOMES BY LANDMARK
LLC, GUERRETTE ENTERPRISES LLC,
LANDMARK CUSTOM BUILDER AND
REMODELING LLC,
Additional Counter-Defendants
__________________________________________/
DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR RECONSIDERATION
OF ORDER GRANTING MOTION TO COMPEL PRODUCITON OF DOCUMENTS
Defendants/Counter-Plaintiffs, James Bagley Jr., James Bagley III, Ace Hospitality LLC,
Citicommunities, LLC, Commerce Brokerage, LLC, and City Homes, LLC (“Defendants”),
oppose Plaintiff’s Motion for Reconsideration dated February 15, 2024 on the following grounds:
1. Plaintiff moves for reconsideration of the Court’s January 31, 2024 order
compelling Defendants to produce additional documents in discovery. Because Plaintiff has not
shown that reconsideration of the order is warranted, the Motion should be denied.
2. On June 29, 2023, Plaintiff filed a motion to compel the production of documents
responsive to Plaintiff’s First Request for Production served on July 27, 2022.
4862681.v1
3. The Court heard the motion to compel on November 3, 2023, and entered the order
granting the motion on January 31, 2024.
4. The order required Defendants to “produce all communications for the years 2019
and 2020 relating to [the specific transactions identified in Paragraphs 21 and 22 of the Plaintiff’s
Complaint] or to the Defendants’ defenses raised by Defendants relating to payment for these
transactions.”
5. The Court’s order granted the specific relief requested by Plaintiff at the hearing on
November 3, 2023. For example, Plaintiff expressly represented to the Court that he wanted
communications regarding “any transactions from ‘19 and ‘20”:
See Transcript of Proceedings Taken on November 3, 2023, a copy of which was e-filed by
Plaintiff on February 29, 2024, at 16:18-17:2.
6. Plaintiff further specified that he was “talking about the transactions…in ’19 and
’20” for purposes of his motion to compel:
2
4862681.v1
7. Plaintiff now moves the Court to reconsider the order to the extent that it did not
also include certain communications between the parties in 2021, arguing that his counsel
“misspoke at the hearing” and “failed to raise the 2021 year as the hearing time available was not
sufficient to go through all issues at the Motion to Compel hearing….” Motion at 3-4.
8. Failing to raise an issue or argument that was or should have been known to the
Plaintiff at the hearing on his motion to compel does not constitute an inadvertent mistake or
excusable neglect that would permit the Court to reconsider the order.
9. “The type of mistake envisioned by rule 1.540(b) is the type of honest and
inadvertent mistake made in the ordinary course of litigation, usually by the Court itself, and is
3
4862681.v1
generally for the purpose of ‘setting the record straight.’” Progressive Plumbing, Inc. v. Dixie
Constr. Prods., 912 So. 2d 646, 647 (Fla. 5th DCA 2005) (internal quotations and citation omitted).
Rehearing “may not be employed for relief from an attorney's tactical errors or judgmental
mistakes or in cases of attorney miscalculation.” Davidson v. Lenglen Condo Ass’n, 602 So. 2d
687, 688 (Fla. 4th DCA 1992) (citing Miller v. Fortune Ins. Co., 484 So. 2d 1221, 1223-24 (Fla.
1986)).
10. The “mistake” Plaintiff describes in his Motion falls into the latter category of
attorney tactical errors or miscalculations that do not support reconsideration of the order. Plaintiff
could have sought to compel communications from 2021, but deliberately chose not to do so.
Having gotten exactly what he asked for Plaintiff cannot now complain that he is entitled to more
simply because his lawyer forgot to ask for it.
11. Plaintiff also has offered no explanation for why he waited until after the close of
discovery to seek reconsideration of the order. If his lawyer simply ran out of time at the hearing,
as the Motion contends, Plaintiff should have brought the purported mistake to the Court’s
attention immediately, rather than waiting more than three months to do so. Plaintiffs’ failure to
act with reasonable diligence is independent grounds to deny the Motion. See Brown v. McMillian,
737 So. 2d 570, 571 (Fla. 1st DCA 1999) (“It is the movant’s burden under rule 1.540(b) to establish
the exercise of due diligence.”).
12. Finally, Plaintiff’s Motion neglects to mention that the parties are scheduled for an
evidentiary hearing on March 27 on Plaintiff’s motion for sanctions based on Defendants’
purported noncompliance with the order. Reconsideration of the order a mere three weeks before
the hearing would be highly prejudicial to Defendants amid their preparations for the hearing and
trial.
4
4862681.v1
13. For these reasons, Plaintiff’s Motion should be denied.
Dated: March 4, 2024.
/s/ Michael J. Furbush
Michael J. Furbush, Esq.
Florida Bar No. 70009
Michaela N. Kirn, Esq.
Florida Bar No. 1018863
DEAN, MEAD, EGERTON, BLOODWORTH,
CAPOUANO & BOZARTH, P.A.
420 S. Orange Avenue, Suite 700
Orlando, FL 32801
Telephone 407-841-1200
Facsimile 407-423-1831
Primary Emails: mfurbush@deanmead.com
mkirn@deanmead.com
Secondary Emails: mgodek@deanmead.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 4, 2024, I filed the foregoing with the Clerk of the
Court using Florida’s E-Portal, which will provide electronic copy to all counsel of record.
/s/ Michael J. Furbush
Michael J. Furbush, Esq.
Florida Bar No. 70009
Michaela N. Kirn, Esq.
Florida Bar No. 1018863
DEAN, MEAD, EGERTON, BLOODWORTH, CAPOUANO &
BOZARTH, P.A.
420 S. Orange Avenue, Suite 700
Orlando, FL 32801
Telephone 407-841-1200
Facsimile 407-423-1831
Primary Emails: mfurbush@deanmead.com
mkirn@deanmead.com
Secondary Emails: mgodek@deanmead.com
Attorneys for Defendants/Counter-Plaintiffs
5
4862681.v1
Preview
Filing # 193191535 E-Filed 03/04/2024 09:20:44 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA EDWARD GUERRETTE II, Plaintiff/Counter-Defendant, Case No. 2021-CA-002799-CI vs. JAMES BAGLEY JR., JAMES BAGLEY III, ACE HOSPITALITY LLC, CITICOMMUNITIES LLC, COMMERCE BROKERAGE, LLC AND CITI HOMES, LLC Defendants/Counter-Plaintiffs vs. DESTINATION HOMES BY LANDMARK LLC, GUERRETTE ENTERPRISES LLC, LANDMARK CUSTOM BUILDER AND REMODELING LLC, Additional Counter-Defendants __________________________________________/ DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR RECONSIDERATION OF ORDER GRANTING MOTION TO COMPEL PRODUCITON OF DOCUMENTS Defendants/Counter-Plaintiffs, James Bagley Jr., James Bagley III, Ace Hospitality LLC, Citicommunities, LLC, Commerce Brokerage, LLC, and City Homes, LLC (“Defendants”), oppose Plaintiff’s Motion for Reconsideration dated February 15, 2024 on the following grounds: 1. Plaintiff moves for reconsideration of the Court’s January 31, 2024 order compelling Defendants to produce additional documents in discovery. Because Plaintiff has not shown that reconsideration of the order is warranted, the Motion should be denied. 2. On June 29, 2023, Plaintiff filed a motion to compel the production of documents responsive to Plaintiff’s First Request for Production served on July 27, 2022. 4862681.v1 3. The Court heard the motion to compel on November 3, 2023, and entered the order granting the motion on January 31, 2024. 4. The order required Defendants to “produce all communications for the years 2019 and 2020 relating to [the specific transactions identified in Paragraphs 21 and 22 of the Plaintiff’s Complaint] or to the Defendants’ defenses raised by Defendants relating to payment for these transactions.” 5. The Court’s order granted the specific relief requested by Plaintiff at the hearing on November 3, 2023. For example, Plaintiff expressly represented to the Court that he wanted communications regarding “any transactions from ‘19 and ‘20”: See Transcript of Proceedings Taken on November 3, 2023, a copy of which was e-filed by Plaintiff on February 29, 2024, at 16:18-17:2. 6. Plaintiff further specified that he was “talking about the transactions…in ’19 and ’20” for purposes of his motion to compel: 2 4862681.v1 7. Plaintiff now moves the Court to reconsider the order to the extent that it did not also include certain communications between the parties in 2021, arguing that his counsel “misspoke at the hearing” and “failed to raise the 2021 year as the hearing time available was not sufficient to go through all issues at the Motion to Compel hearing….” Motion at 3-4. 8. Failing to raise an issue or argument that was or should have been known to the Plaintiff at the hearing on his motion to compel does not constitute an inadvertent mistake or excusable neglect that would permit the Court to reconsider the order. 9. “The type of mistake envisioned by rule 1.540(b) is the type of honest and inadvertent mistake made in the ordinary course of litigation, usually by the Court itself, and is 3 4862681.v1 generally for the purpose of ‘setting the record straight.’” Progressive Plumbing, Inc. v. Dixie Constr. Prods., 912 So. 2d 646, 647 (Fla. 5th DCA 2005) (internal quotations and citation omitted). Rehearing “may not be employed for relief from an attorney's tactical errors or judgmental mistakes or in cases of attorney miscalculation.” Davidson v. Lenglen Condo Ass’n, 602 So. 2d 687, 688 (Fla. 4th DCA 1992) (citing Miller v. Fortune Ins. Co., 484 So. 2d 1221, 1223-24 (Fla. 1986)). 10. The “mistake” Plaintiff describes in his Motion falls into the latter category of attorney tactical errors or miscalculations that do not support reconsideration of the order. Plaintiff could have sought to compel communications from 2021, but deliberately chose not to do so. Having gotten exactly what he asked for Plaintiff cannot now complain that he is entitled to more simply because his lawyer forgot to ask for it. 11. Plaintiff also has offered no explanation for why he waited until after the close of discovery to seek reconsideration of the order. If his lawyer simply ran out of time at the hearing, as the Motion contends, Plaintiff should have brought the purported mistake to the Court’s attention immediately, rather than waiting more than three months to do so. Plaintiffs’ failure to act with reasonable diligence is independent grounds to deny the Motion. See Brown v. McMillian, 737 So. 2d 570, 571 (Fla. 1st DCA 1999) (“It is the movant’s burden under rule 1.540(b) to establish the exercise of due diligence.”). 12. Finally, Plaintiff’s Motion neglects to mention that the parties are scheduled for an evidentiary hearing on March 27 on Plaintiff’s motion for sanctions based on Defendants’ purported noncompliance with the order. Reconsideration of the order a mere three weeks before the hearing would be highly prejudicial to Defendants amid their preparations for the hearing and trial. 4 4862681.v1 13. For these reasons, Plaintiff’s Motion should be denied. Dated: March 4, 2024. /s/ Michael J. Furbush Michael J. Furbush, Esq. Florida Bar No. 70009 Michaela N. Kirn, Esq. Florida Bar No. 1018863 DEAN, MEAD, EGERTON, BLOODWORTH, CAPOUANO & BOZARTH, P.A. 420 S. Orange Avenue, Suite 700 Orlando, FL 32801 Telephone 407-841-1200 Facsimile 407-423-1831 Primary Emails: mfurbush@deanmead.com mkirn@deanmead.com Secondary Emails: mgodek@deanmead.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 4, 2024, I filed the foregoing with the Clerk of the Court using Florida’s E-Portal, which will provide electronic copy to all counsel of record. /s/ Michael J. Furbush Michael J. Furbush, Esq. Florida Bar No. 70009 Michaela N. Kirn, Esq. Florida Bar No. 1018863 DEAN, MEAD, EGERTON, BLOODWORTH, CAPOUANO & BOZARTH, P.A. 420 S. Orange Avenue, Suite 700 Orlando, FL 32801 Telephone 407-841-1200 Facsimile 407-423-1831 Primary Emails: mfurbush@deanmead.com mkirn@deanmead.com Secondary Emails: mgodek@deanmead.com Attorneys for Defendants/Counter-Plaintiffs 5 4862681.v1