response to emergency motion for stay of jeff …response to emergency motion for stay of jeff...

iN T}IE DISTRICT COURT OF APPEALOF THE STATE OF FLORIDA, FIRST DISTRICT

STATE OF FLORIDA, DEPARTMENTOF FINANCIAL SERVICES

Appellants,

V.

PETER R. BROWN CONSTRUCTION, iNC.

Appellee.

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Case No. 1D12-5053L.T. No.: 2011-CA-001706

RESPONSE TO EMERGENCY MOTION FOR STAY OF JEFF ATWATER

PETER R. BROWN CONSTRUCTION, INC. ("Appellee"), by and through

its undersigned counsel and in response to the Emergency Motion for Stay filed by

CFO, Jeff Atwater hereby adopts its response to the Emergency Motion for Stay

filed on behalf of Robert C. "Bud" Kneip. The response with respect to Mr. Kneip

is equally applicable to Mr. Atwater. A copy of the Response is attached hereto.

Dated this 30th day of November, 2012.

Respectfully submitted,

Is! Robert H. BuesingROBERT H. BUE SINGFlorida Bar No. 236535rbuesing@trenam. cornGREGG E. HUTTFlorida Bar No. [email protected], KEMKER

iN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FIRST DISTRICT

STATE OF FLORIDA, DEPARTMENT OF FINANCIAL SERVICES

Appellants,

V.

Case No. 1D12-5053 L.T. No.: 2011 -CA-001706

PETER R. BROWN CONSTRUCTION, INC.

App ellee.

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RESPONSE TO EMERGENCY MOTION FOR STAY OF JEFF ATWATER


its undersigned counsel and in response to the Emergency Motion for Stay filed by

CFO, Jeff Atwater hereby adopts its response to the Emergency Motion for Stay

filed on behalf of Robert C. "Bud" Kneip. The response with respect to Mr. Kneip

is equally applicable to Mr. Atwater. A copy of the Response is attached hereto.



Is! Robert H. Buesing ROBERT H. BUESING Florida Bar No. 236535 [email protected] GREGG E. HUTT Florida Bar No. 0010435 [email protected] TRENAM, KEMKER

E-Copy Received Nov 30, 2012 5:40 PM

101 East Kennedy Boulevard, Suite 2700Post Office Box 1102Tampa, Florida 33601-1102(813) 223-7474Attorneys for Appellee

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Response to Emergency Motion for

Stay of Jeff Atwater has been furnished by U.S. and Electronic Mail to Thomas J. Maida, Esq.

([email protected]) ([email protected]), (jmckee(,foley.com) Foley & Lardner LLP, 106

East College Ave., Suite 900, Tallahassee, FL 32301-7732, Clifford A. Taylor, Esq.

(Clifford.taylordms.myflorida.com) ([email protected] ), Office of

General Counsel, Department of Management Services, 5060 Esplanade Way, Suite 1 60D,

Tallahassee, FL 323 99-0950 and Michael Davidson, Esq.,

([email protected]) and Richard T. Donelan, Jr., Esq.

([email protected]), State of Florida, Department of Financial Services, 200

East Gaines Street, Tallahassee, FL 32399 this 30th day of November, 2012.

Is! Robert H. BuesingAttorney

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7113496v1

101 East Kennedy Boulevard, Suite 2700 Post Office Box 1102 Tampa, Florida 33601-1102 (813) 223-7474 Attorneys for Appellee



Stay of Jeff Atwater has been furnished by U.S. and Electronic Mail to Thomas J. Maida, Esq.

([email protected]) ([email protected]), (jmckee(,foley.com) Foley & Lardner LLP, 106


([email protected] ) ([email protected] ), Office of


Tallahassee, FL 32399-0950 and Michael Davidson, Esq.,

([email protected] ) and Richard T. Donelan, Jr., Esq.

([email protected] ), State of Florida, Department of Financial Services, 200


Is! Robert H. Buesing Attorney

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7113496v1

IN THE DISTPJCT COURT OF APPEALOF THE STATE OF FLORIDA, FIRST DISTRICT

STATE OF FLORIDA, DEPARTMENTOF FINANCIAL SERVICES

Appellants,

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Appellee.

/

Case No. 1D12-5053L.T. No.: 201 1-CA-001706

RESPONSE TO EMERGENCY MOTION FOR STAY


its undersigned counsel and pursuant to this Court's Order of November 20, 2012,

hereby responds to the Emergency Motion for Stay filed by the Florida Department

of Financial Services ("DFS"). For the reason stated herein, this Court should

deny the Emergency entry of an Order staying the Order of the trial court requiring

DFS' Chief of Staff Robert C. "Bud" Kneip to be deposed in this action.

1. This action is set for non-jury trial before Chief Judge Charles Francis

of the Second Judicial Circuit in and for Leon County, Florida, Case No. 2011-CA-

001706 on December 17, 18 and 19, 2012.

2. Decisions regarding discovery are true discretionary acts and an

appellate court must defer to the superior vantage point of the trial judge who has

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FIRST DISTRICT

STATE OF FLORIDA, DEPARTMENT OF FINANCIAL SERVICES

Appellants,

1

Case No. 1D12-5053 L.T. No.: 201 1-CA-001706


Appellee.

/

RESPONSE TO EMERGENCY MOTION FOR STAY


its undersigned counsel and pursuant to this Court's Order of November 20, 2012,

hereby responds to the Emergency Motion for Stay filed by the Florida Department

of Financial Services ("DFS"). For the reason stated herein, this Court should

deny the Emergency entry of an Order staying the Order of the trial court requiring

DFS' Chief of Staff Robert C. "Bud" Kneip to be deposed in this action.

1. This action is set for non-jury trial before Chief Judge Charles Francis

of the Second Judicial Circuit in and for Leon County, Florida, Case No. 2011-CA-

001706 on December 17, 18 and 19, 2012.

2. Decisions regarding discovery are true discretionary acts and an

appellate court must defer to the superior vantage point of the trial judge who has

seen the parties first hand and is more fully informed regarding the case. Sugerm ill

Woods Civic Ass 'n, Inc. v. Southern States Utilities, 687 So. 2d 1346 (Fla.. 1 DCA

1997). A trial court thus possesses broad discretion in granting or refusing

discovery motions, determining the scope of discovery and protecting parties

against abuse of discovery procedures which will only be overturned where the

trial court abuses its discretion. National Security Fire & Casualty Co. v. Dune,

751 So. 2d 777 (Fla. 5th DCA 2000). Indeed, it has been stated that a trial judge's

discovery rulings should be overturned only if the rulings would cause irreparable

damage. Thomson v. Deane, 703 So. 2d 1251 (Fla. 5th DCA 1997). Here, of

course, the only damage if any is taking a couple of hours of time from each of

three deponents which falls far short of being any significant harm.

3. Here, the Case Management Order, provided a discovery cut-off date

of October 31, 2012. Prior to that date, Appellee exhausted all of its available

discovery by deposing all subordinates involved in the issue at hand in the lawsuit,

which included: Shane Lewis, Glenn Elmer, Bill Dubose, Mark Merry, Christina

B. Smith and Paul Whitfield. In addition, Appellee requested and obtained all

relevant documentation from DFS.1

4. To make sure that DFS received a full opportunity to present

information without the need for depositions of the three remaining witnesses

l The issue before the Court and the relevance of discovery is well set out in the2

seen the parties first hand and is more fully informed regarding the case. Sugerm ill

Woods Civic Ass 'n, Inc. v. Southern States Utilities, 687 So. 2d 1346 (Fla. 1 DCA

1997). A trial court thus possesses broad discretion in granting or refusing

discovery motions, determining the scope of discovery and protecting parties

against abuse of discovery procedures which will only be overturned where the

trial court abuses its discretion. National Security Fire & Casualty Co. v. Dune,

751 So. 2d 777 (Fla. 51h DCA 2000). Indeed, it has been stated that a trial judge's

discovery rulings should be overturned only if the rulings would cause irreparable

damage. Thomson v. Deane, 703 So. 2d 1251 (Fla. 51 DCA 1997). Here, of

course, the only damage if any is taking a couple of hours of time from each of

three deponents which falls far short of being any significant harm.

3. Here, the Case Management Order, provided a discovery cut-off date

of October 31, 2012. Prior to that date, Appellee exhausted all of its available

discovery by deposing all subordinates involved in the issue at hand in the lawsuit,

which included: Shane Lewis, Glenn Elmer, Bill Dubose, Mark Merry, Christina

B. Smith and Paul Whitfield. In addition, Appellee requested and obtained all

relevant documentation from DFS. 1

4. To make sure that DFS received a full opportunity to present

information without the need for depositions of the three remaining witnesses

l The issue before the Court and the relevance of discovery is well set out in the 2

(Robert C. "Bud" Kneip, Jeff Atwater, Chief Financial Officer and Richard T.

Donelan, Jr., Bsq.), Appellee also issued its Notice of Deposition pursuant to Fla.

R. Civ. P. 1.310(B)(6). In that Notice, Appellee identified numerous relevant areas

of inquiry. In response, DFS tendered no additional witnesses aside from those

already deposed.

5. At no time has DFS suggested that other employees besides Mr.

Atwater, Mr. Kneip and Mr. Donelan could speak for or answer questions

appropriate for those witnesses. It has never been suggested that decision-making

occurred only at the lower level and that these three individuals had no personal

involvement.

6. Without the benefit of a stay from either the trial court or this Court,

DFS refused to produce Mr. Kneip. Although Mr. Donelan was produced, the

Department refused to allow him to be placed under oath or answer any questions.

Bach of these actions was taken without stays and was contemptuous of the process

at hand.

7. On November 27, 2012, Judge Francis conducted an additional

hearing on the question of whether Mr. Atwater should be deposed. At that

hearing the Judge ruled that Mr. Atwater was personally involved in the decisions

hearing transcript, beginning at p. 31, in the Appendix to the Petition.3

(Robert C. "Bud" Kneip, Jeff Atwater, Chief Financial Officer and Richard T.

Donelan, Jr., Bsq.), Appellee also issued its Notice of Deposition pursuant to Fla.

R. Civ. P. 1.31 0(B)(6). In that Notice, Appellee identified numerous relevant areas

of inquiry. In response, DFS tendered no additional witnesses aside from those

already deposed.

5. At no time has DFS suggested that other employees besides Mr.

Atwater, Mr. Kneip and Mr. Donelan could speak for or answer questions

appropriate for those witnesses. It has never been suggested that decision-making

occurred only at the lower level and that these three individuals had no personal

involvement.

6. Without the benefit of a stay from either the trial court or this Court,

DFS refused to produce Mr. Kneip. Although Mr. Donelan was produced, the

Department refused to allow him to be placed under oath or answer any questions.

Bach of these actions was taken without stays and was contemptuous of the process

at hand.

7. On November 27, 2012, Judge Francis conducted an additional

hearing on the question of whether Mr. Atwater should be deposed. At that

hearing the Judge ruled that Mr. Atwater was personally involved in the decisions

hearing transcript, beginning at p. 31, in the Appendix to the Petition. 3

which led up to the dispute at the heart of this case and ordered that Mr. Atwater be

deposed. A stay was granted only through November 30, 2012.2

8. At the same hearing the Judge was advised that Mr. Kneip failed to

appear for his deposition even though no stay had been received from either the

appellate court or the circuit court. The Judge reiterated his earlier ruling and also

made clear that the December 17 trial date must be respected. The Judge said he

would make himself available on short notice and expected the depositions to go

forward. The Judge reminded counsel for DFS that Mr. Kneip had written a letter

on January 17, 2012 (the last Exhibit of the Appendix to the Petition for Writ of

Cerciorari) in which Mr. Kneip said:

"Typically this matter would be handled at a different levelwithin the organization, but the egregious nature of thisresubmittal compels me to bring this to your attention. I amcertain that neither you nor the secretary would condone thisbehavior and I look forward to your resolution of the immediatematter of this invoice. It is my sincere hope that the Court willsoon come to a decision on the larger question of statutoryinterpretation to provide closure for all the parties involved. Inthe meantime payment for this invoice is once again rejected."

In other words, Mr. Kneip was personally involved as a fact witness in evaluating

the issues which are the core of this case. Judge Francis stated that it was this

personal involvement which clearly distinguishes this case from the cases cited by

DFS, all of which involve agency heads who were able to tender lower ranking

A transcript is attached.4

which led up to the dispute at the heart of this case and ordered that Mr. Atwater be

deposed. A stay was granted only through November 30, 2012 . 2

8. At the same hearing the Judge was advised that Mr. Kneip failed to

appear for his deposition even though no stay had been received from either the

appellate court or the circuit court. The Judge reiterated his earlier ruling and also

made clear that the December 17 trial date must be respected. The Judge said he

would make himself available on short notice and expected the depositions to go

forward. The Judge reminded counsel for DFS that Mr. Kneip had written a letter

on January 17, 2012 (the last Exhibit of the Appendix to the Petition for Writ of

Cerciorari) in which Mr. Kneip said:

"Typically this matter would be handled at a different level within the organization, but the egregious nature of this resubmittal compels me to bring this to your attention. I am certain that neither you nor the secretary would condone this behavior and I look forward to your resolution of the immediate matter of this invoice. It is my sincere hope that the Court will soon come to a decision on the larger question of statutory interpretation to provide closure for all the parties involved. In the meantime payment for this invoice is once again rejected."

In other words, Mr. Kneip was personally involved as a fact witness in evaluating

the issues which are the core of this case. Judge Francis stated that it was this

personal involvement which clearly distinguishes this case from the cases cited by

DFS, all of which involve agency heads who were able to tender lower ranking

A transcript is attached. 4

personnel who had more detailed knowledge. For example, in Home v. School

Board of Miami-Dade County, 901 So. 2d 238 (Fla. 1 DCA 2005), the agency

head was able to swear that he had no personal knowledge of the facts giving to

rise to the respondent's claims and that any information known by him was also

known by his former staff members. Where the deposing party can certify that the

higher ranking persons testimony is necessary and relevant to the matter before the

Court and that the information is not equally available from a lesser ranking

government official then the depositions should be allowed. The Department of

Agriculture and Consumer Services v. Broward County, 810 So. 2d 1056, 1058

(Fla. 1 DCA 2002).

9. The testimony of lower ranking staff members described the decision

which is the subject of this case as a "plaza level" decision meaning one that

occurred at the plaza level of the State Capitol Building where the CFO and the

CFO's Chief of Staff maintain their offices. The lower ranking members operate

out of other state office buildings away from the Capitol.

10. The undisputed testimony to date, is that immediately upon assuming

office in January 2011, Jeff Atwater as CFO convened a meeting to discuss the

specific issue that is the subject of this case. Attending that meeting were Mr.

Kneip and Mr. Donelan, among others. Shortly thereafter, Mr. Kneip sent his

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personnel who had more detailed knowledge. For example, in Home v. School

Board of Miami-Dade County ) 901 So. 2d 238 (Fla. 1 DCA 2005), the agency

head was able to swear that he had no personal knowledge of the facts giving to

rise to the respondent's claims and that any information known by him was also

known by his former staff members. Where the deposing party can certify that the

higher ranldng persons testimony is necessary and relevant to the matter before the

Court and that the information is not equally available from a lesser ranking

government official then the depositions should be allowed. The Department of

Agriculture and Consumer Services v. Broward County ) 810 So. 2d 1056, 1058

(Fla. 1st DCA 2002).

9. The testimony of lower ranking staff members described the decision

which is the subject of this case as a "plaza level" decision meaning one that

occurred at the plaza level of the State Capitol Building where the CFO and the

CFO's Chief of Staff maintain their offices. The lower ranking members operate

out of other state office buildings away from the Capitol.

10. The undisputed testimony to date, is that immediately upon assuming

office in January 2011, Jeff Atwater as CFO convened a meeting to discuss the

specific issue that is the subject of this case. Attending that meeting were Mr.

Kneip and Mr. Donelan, among others. Shortly thereafter, Mr. Kneip sent his

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letter of January 17, 2012 in which he stated that while this matter would normally

be handled at a different level, that he himself had gotten involved.

11. Also after that meeting, Mr. Atwater called in a newspaper reporter

and gave a statement to the press with factual inaccuracies. For example, Mr.

Atwater's interview says that this particular purchase of historical framed

photographs was prohibited by the Art In Public Buildings Statute. In fact, the Art

In Public Buildings Statute has utterly no application to the expenditures at issue, a

fact well known to Mr. Donelan and others before Mr. Atwater's interview.

12. Shortly after the January meeting and the press interview, DFS

changed its position arid abandoned the Art In Public Buildings Statute and instead

cited to a rule that purports to prohibit payment for "decorative items." DFS'

Bureau of Auditing and other staff members now concede that the decorative items

rule has no application to architectural items. (It is apparent from the context of

the rule that it is for decorative items placed on a government employee's desk

such as plants, picture frames for family photos and the like. No one can ever

recall the decorative items rule being applied to architectural decorations and

obviously government buildings have wallpaper, carpeting, wood paneling and

other architecturally decorative items.)

13. Given the limited time to meet the trial schedule, this Court should

balance the harm of letting the depositions go forward, which is negligible, against

letter of January 17, 2012 in which he stated that while this matter would normally

be handled at a different level, that he himself had gotten involved.

11. Also after that meeting, Mr. Atwater called in a newspaper reporter

and gave a statement to the press with factual inaccuracies. For example, Mr.

Atwater's interview says that this particular purchase of historical framed

photographs was prohibited by the Art In Public Buildings Statute. In fact, the Art

In Public Buildings Statute has utterly no application to the expenditures at issue, a

fact well known to Mr. Donelan and others before Mr. Atwater's interview.

12. Shortly after the January meeting and the press interview, DFS

changed its position and abandoned the Art In Public Buildings Statute and instead

cited to a rule that purports to prohibit payment for "decorative items." DFS'

Bureau of Auditing and other staff members now concede that the decorative items

rule has no application to architectural items. (It is apparent from the context of

the rule that it is for decorative items placed on a government employee's desk

such as plants, picture frames for family photos and the like. No one can ever

recall the decorative items rule being applied to architectural decorations and

obviously government buildings have wallpaper, carpeting, wood paneling and

other architecturally decorative items.)

13. Given the limited time to meet the trial schedule, this Court should

balance the harm of letting the depositions go forward, which is negligible, against

the harm of overruling the trial judge who is most familiar with the relevance of

this evidence. By simply letting the deposition go forward as ordered by the trial

court, justice is served as the case is kept on its appropriate trial schedule and a

person who by his own written admission had personally involved himself in

this decision can explain the process he went through and the assumptions he made

at the time of this decision making process.

14. The cases which protect high-ranking officials from being compelled

to testify are based on the concept that there should be an efficient operation of

government agencies unless the agency had a senior official uniquely able to

provide relevant information which cannot be obtained from other sources, then it

is best to rely on lower ranking personnel who are tendered with a representation

that the lower ranking personnel are reasonable substitutes. See, e.g. Department

of Agricultural and Consumer Services v. Broward County, 810 So. 2d 1056 (Fla.

13t DCA 2002) (Agricultural Commissioner, Charles Bronson, tendered a Deputy

Commissioner as a reasonable substitute). Here, neither Mr. Kneip, Mr. Atwater

nor Mr. Donelan have tendered anyone as reasonable substitutes because they were

the ones on the "plaza level" who personally involved themselves in the decision

making process at issue.

15. In Mr. Atwater's case, his letter says that he personally will review all

invoices and make all decisions and he personally went to the newspaper reporter

7

the harm of overruling the trial judge who is most familiar with the relevance of

this evidence. By simply letting the deposition go forward as ordered by the trial

court, justice is served as the case is kept on its appropriate trial schedule and a

person who - by his own written admission - had personally involved himself in

this decision can explain the process he went through and the assumptions he made

at the time of this decision making process.

14. The cases which protect high-ranking officials from being compelled

to testify are based on the concept that there should be an efficient operation of

government agencies unless the agency had a senior official uniquely able to

provide relevant information which cannot be obtained from other sources, then it

is best to rely on lower ranking personnel who are tendered with a representation

that the lower ranking personnel are reasonable substitutes. See, e.g. Department

of Agricultural and Consumer Services v. Broward County, 810 So. 2d 1056 (Fla.

1 " DCA 2002) (Agricultural Commissioner, Charles Bronson, tendered a Deputy

Commissioner as a reasonable substitute). Here, neither Mr. Kneip, Mr. Atwater

nor Mr. Donelan have tendered anyone as reasonable substitutes because they were

the ones on the "plaza level" who personally involved themselves in the decision

making process at issue.

15. In Mr. Atwater's case, his letter days that he personally will review all

invoices and make all decisions and he personally went to the newspaper reporter

7

to discuss the project. He has also spent considerable energy in the litigation

asserting that as a constitutional officer only he as CFO makes these decisions,

obviously with consultation with people such as his Chief of Staff Mr. Kneip and

his attorney, Mr. Donelan.

16. Given all the time these gentlemen have devoted to this specific issue,

there is no need to be concerned about the efficient operation of the agency by

deposing officials who have no personal knowledge of what happened. Here, these

senior parties claimed control of the decision making process from lower ranked

staff and in fact, made decisions, issued letters, took positions and managed the

process.

17. Under these circumstances and given the exceedingly small harm

associated with allowing the depositions to go forward compared to the significant

harm in delaying these proceedings, the Motion for Emergency Stay should be

denied. The depositions should be allowed to proceed during the week of

December 3, 2012 as set by the trial court and the appeal rendered moot,



/5/ Robert H. BuesingROBERT H. BUBSINGFlorida Bar No. 236535rbuesing(2itrenam.comGREGG E. HIJTTFlorida Bar No. 0010435

8

to discuss the project. He has also spent considerable energy in the litigation

asserting that as a constitutional officer only he as CFO makes these decisions,

obviously with consultation with people such as his Chief of Staff Mr. Kneip and

his attorney, Mr. Donelan.

16. Given all the time these gentlemen have devoted to this specific issue,

there is no need to be concerned about the efficient operation of the agency by

deposing officials who have no personal knowledge of what happened. Here, these

senior parties claimed control of the decision making process from lower ranked

staff and in fact, made decisions, issued letters, took positions and managed the

process.

17. Under these circumstances and given the exceedingly small harm

associated with allowing the depositions to go forward compared to the significant

harm in delaying these proceedings, the Motion for Emergency Stay should be

denied. The depositions should be allowed to proceed during the week of

December 3, 2012 as set by the trial court and the appeal rendered moot.



Is! Robert H. Buesing ROBERT H. BUBSING Florida Bar No. 236535 rbuesing(2itrenam.com GREGG E. HUTT Florida Bar No. 0010435

8

ghuft(,trenarn. cornTRENAM, KEMKER101 East Kennedy Boulevard Suite 2700Post Office Box 1102Tampa, Florida 33601-1102(813) 223-7474Attorneys for Appellee



Stay has been furnished by U.S. and Electronic Mail to Thomas J. Maida, Bsq.

(TMaidaFo1ey.com) ([email protected]), ([email protected]) Foley & Lardner LLP, 106

East College Ave., Suite 900, Tallahassee, FL 32301-7732, Clifford A. Taylor, Bsq.

([email protected]) ([email protected] ), Office of


Tallahassee, FL 32399-0950 and Michael Davidson, Esq.,


(Richard.Donelanmyfloridacfo.com), State of Florida, Department of Financial Services, 200


Is! Robert H. BuesingAttorney

7109307v1

ghuft(,trenam. corn TRENAM, KEMKER 101 East Kennedy Boulevard, Suite 2700 Post Office Box 1102 Tampa,Florida 33601-1102 (813) 223-7474 Attorneys for Appellee



Stay has been furnished by U.S. and Electronic Mail to Thomas J. Maida, Esq.

(TMaida(Fo1ey.com) ([email protected]), ([email protected]) Foley & Lardner LLP, 106


([email protected]) ([email protected] ), Office of


Tallahassee, FL 323 99-0950 and Michael Davidson, Esq,,


(Richard.Donelan(myfloridacfo.com), State of Florida, Department of Financial Services, 200


Is! Robert H. Buesing Attorney

'ii

7109307v1

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IN THE CIRCUIT COURT OF THESECOND JUDICIAL CIRCUIT, INAND FOR LEON COUNTY, FLORIDA

CASE NO. 2011 CA 1706

SIGNATURE ART GALLERY,. INC.,

Plaintiff,vs.STATE OF FLORIDA, DEPARTMENT OF FINANCIALSERVICES, and DEPARTMENT OF M2NAGEMENTSERVICES, and PETER R. BROWN CONSTRUCTION,INC., and JEFF ATWATER in his capacity asCHIEF FINANCIAL OFFICER OF THE STATE OFFLORIDA,

Defendants,

PETER R. BROWN CONSTRUCTION, INC.,Cross-Plaintiff,

vs.STATE OF FLORIDA, DEPARTMENT OF MANAGEMENTSERVICES,

Cross-Defendant/

PROCEEDINGS: MOTION HEARING

BEFORE: JUDGE CHARLES A. FRANCIS

DATE: NOVEMBER 27, 2012

TIME: COMMENCED: 3:45 P.M.

LOCATION: LEON COUNTY COURTHOUSECOURTROOM 3CTALLAHASSEE, FL

REPORTED BY: DANA W. REEVESCourt Reporter andNotary Public in and forState of Florida at Large

PREMIER REPORTING114 W. 5TH AVENUE

TALLAHASSEE, FLORIDA(850) 894-0828

PPVMTP.P RRPflRTT1Ji

(850) 894-0828premier-reporting. com

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IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, IN AND FOR LEON COUNTY, FLORIDA

CASE NO. 2011 CA 1706

SIGNATURE ART GALLERY,. INC.,

Plaintiff, vs. STATE OF FLORIDA, DEPARTMENT OF FINANCIAL SERVICES, and DEPARTMENT OF M2NAGEMENT SERVICES, and PETER R. BROWN CONSTRUCTION, INC., and JEFF ATWATER in his capacity as CHIEF FINANCIAL OFFICER OF THE STATE OF FLORIDA,

Defendants,

PETER R. BROWN CONSTRUCTION, INC., Cross-Plaintiff,

vs. STATE OF FLORIDA, DEPARTMENT OF MANAGEMENT SERVICES,

Cross-Defendant /

PROCEEDINGS: MOTION HEARING

BEFORE: JUDGE CHARLES A. FRANCIS

DATE: NOVEMBER 27, 2012

TIME: COMMENCED: 3:45 P.M.

LOCATION: LEON COUNTY COURTHOUSE COURTROOM 3C TALLAHASSEE, FL

REPORTED BY: DANA W. REEVES Court Reporter and Notary Public in and for State of Florida at Large

PREMIER REPORTING 114 W. 5TH AVENUE

TALLAHASSEE, FLORIDA (850) 894-0828

PPVMTP.P RRP0RTT1Ji

(850) 894-0828 premier-reporting. corn

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APPEARANCES:

REPRESENTING THE PLAINTIFF:

THOMAS J. MAIDA, ESQ.FOLEY & LARDNER106 E. COLLEGE AVENUESUITE 900TALLAHASSEE, FL 32301

REPRESENTING THE DEFENDANT/CROSS-PLAINTIFF,PETER BROWN CONSTRUCTION, INC.:

ROBERT H. BUESING, ESO.TRENAM KEMKER101 E. KENNEDY BLVD.SUITE 2700TAMPA, FL 33601

PEPRESENTING THE DEFENDANT:

MICHAEL DAVIDSON, ESQ.200 E. GAINES STREET612 LARSON BUILDINGTALLAHASSEE, FL 32399

(850) 894-0828premier-reporting. corn

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APPEARANCES:

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REPRESENTING THE PLAINTIFF:

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THOMAS J. MAIDA, ESQ. FOLEY & LARDNER

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106 E. COLLEGE AVENUE SUITE 900

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TALLAHASSEE, FL 32301

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REPRESENTING THE DEFENDANT/CROSS-PLAINTIFF, PETER BROWN CONSTRUCTION, INC.:

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ii. ROBERT H. BUESING, ESQ. TRENAM KEMKER

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101 E. KENNEDY BLVD. SUITE 2700

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TAMPA, FL 33601

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REPRESENTING THE DEFENDANT:

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MICHAEL DAVIDSON, ESQ. 200 E. GAINES STREET

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612 LARSON BUILDING TALLAHASSEE, FL 32399

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PROCEEDINGSTHE COURT: Okay. We're here on the Motion

for Protective Order to quash the subpoena for the

CF notice of deposition I'm sorry for the

Chief Financial Officer, is that correct?

MR. DAVIDSON: That's correct, Your Honor.

THE COURT: All right. I've read you motion

carefully, so since we don't have a whole lot of

time, let's concentrate on this. The last time we

had the same issues. Last time I granted the

protective order without a hearing, I think, on

MR. BUESING: No, Judge Cooper.

THE COURT: I did it without a hearing, if I

remember correctly.

MR. DAVIDSON: Your Honor, we did have a

hearing.

MR. BUESING: We had a hearing.

THE COURT: We had the hearing on that. rid I

think I gave y'all leave without prejudice. I

believe it was denied with leave if you meet the

standards of the case law that are applicable

that you could then do it again. So that's where

we are here. I'm going to go ahead and go right to

the people wanting to take the deposition. I think

it's cross-notice, is that correct?PRFMT PW.PORrPTN(


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PROCEEDINGS

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THE COURT: Okay. We're here on the Motion

3

for Protective Order to quash the subpoena for the

4

CF -- notice of deposition -- I'm sorry -- for the

5

Chief Financial Officer, is that correct?

6

MR. DAVIDSON: That's correct, Your Honor.

7

THE COURT: All right. I've read you motion

8

carefully, so since we don't have a whole lot of

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time, let's concentrate on this. The last time we

10

had the same issues. Last time I granted the

protective order without a hearing, I think, on --

12

MR. BUESING: No, Judge Cooper.

13

THE COURT: I did it without a hearing, if I

14

remember correctly.

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MR. DAVIDSON: Your Honor, we did have a

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hearing.

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MR. BUESING: We had a hearing.

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THE COURT: We had the hearing on that. And I

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think I gave y'all leave without prejudice. I

20

believe it was denied with leave if you meet the

21

standards of the case law that are applicable --

22

that you could then do it again. So that's where

23

we are here. I'm going to go ahead and go right to

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the people wanting to take the deposition. I think

25

it's cross-notice, is that correct? PREMTER PW.PORrPTN(


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MR. BtJESING: That's right, Your Honor.

THE COURT: Okay. Tell me what it is that

wasn't discovered in all of the depos and all of

the pleadings and all of the memos and all of the

hearing the two days of hearings and all the

other things we've had that the CFO would have

personally that has not been discoverable by those

procedures. I think that is the test we have to go

through.

MR. BtJESING: Yes, thank you, Your Honor.

Robert Buesing representing Peter R. Brown

Construction, Inc.

Your recollection is correct. On October

19th, we had a hearing and the at the hearing, I

sought to demonstrate to the Court Mr. Atwater's

personal knowledge and involvement. And I just

want to refresh you on a couple of those points.

went through a series of letters, newspaper

articles, statements that have been made, and Mr.

Atwater's own over his own signature. For example,

the day after he arrived, he said he was going to

personally review all invoices himself and make

those decisions. He wrote another letter in March

to Senator Haridopolos where he said, you know,

unfortunately, I have to approve any payment unlessPREMIER REPORTING(850) 894-0828

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MR. BtJESING: That's right, Your Honor.

THE COURT: Okay. Tell me what it is that

wasn't discovered in all of the depos and all of

the pleadings and all of the memos and all of the

hearing -- the two days of hearings and all the

other things we've had that the CFO would have

personally that has not been discoverable by those

procedures. I think that is the test we have to go

through.

MR. BtJESING: Yes, thank you, Your Honor.

Robert Buesing representing Peter R. Brown

Construction, Inc.

Your recollection is correct. On October

19th, we had a hearing and the -- at the hearing, I

sought to demonstrate to the Court Mr. Atwater's

personal knowledge and involvement. And I just

want to refresh you on a couple of those points.

went through a series of letters, newspaper

articles, statements that have been made, and Mr.

Atwater's own over his own signature. For example,

the day after he arrived, he said he was going to

personally review all invoices himself and make

those decisions. He wrote another letter in March

to Senator Haridopolos where he said, you know,

unfortunately, I have to approve any payment unless PREMIER REPORNG


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it's expressly prohibited by law, even if I

disagree and so on. So there was a lot of personal

knowledge.

And I also want to remind the Court that there

was a lot of history here on this specific issue.

Having started in an August 11th newspaper article

in which the courthouse was described as a Taj

Mahal courthouse. There was a lot of history in

the campaign that Mr. Atwater had running for this

office, where he was falsely accused of being

personally responsible for this somehow. And then

immediately after he assumed the office, his first

official action, according to the depositions, is

he has this group to talk about this specific

project. And on the second day, after he's sworn

in, he brings in the newspaper reporter to describe

this as the most outrageous project ever, it's

worse than I thought. He goes through a long

description of this project. So I think I did a

good job of showing through documentary evidence

that Mr. Atwater personally involved himself. He

personally said, I'm the person who's going to

review these invoices. I'm going to make the

decision. And he personally has an issue and,


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it's expressly prohibited by law, even if I

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disagree and so on. So there was a lot of personal

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knowledge.

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And I also want to remind the Court that there

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was a lot of history here on this specific issue.

6

Having started in an August 11th newspaper article

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in which the courthouse was described as a Taj

8

Mahal courthouse. There was a lot of history in

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the campaign that Mr. Atwater had running for this

10

office, where he was falsely accused of being

11

personally responsible for this somehow. And then

12

immediately after he assumed the office, his first

13

official action, according to the depositions, is

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he has this group to talk about this specific

15

project. And on the second day, after he's sworn

16

in, he brings in the newspaper reporter to describe

17

this as the most outrageous project ever, it's

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worse than I thought. He goes through a long

19

description of this project. So I think I did a

20 good job of showing through documentary evidence

21

that Mr. Atwater personally involved himself. He

22

personally said, I'm the person who's going to

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review these invoices. I'm going to make the

24

decision. And he personally has an issue and,

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THE COURT: Well, that's where I'm going. Let

me ask you this, letTs assume you could show he has

a bias position towards this.

MR. BUESING: Yes, sir.

THE COURT: Where does that take what case

law do you have to tell me that does something?

Because our issue is still whether it's a fixture

and whether it's an appropriation, is it not? I

mean, that's our issue here today.

MR. BUESING: No, the bias is always relevant.

That's we're under the court of Supreme Court

law, bias is always relevant. And recall that what

youTve got to face at the trial in December is DFS

is going to come in through their employees who

know perfectly well what the boss wants. They're

going to come in through their employees and

they're going present themselves as having done a

careful, independent, impartial analysis, which

caused them to pay for 99 percent of everything in

this building, but this one item was plucked out as

part of this impartial process.

What I'm seeking to show is that that was not

an impartial process. That was a very biased

process, that everybody knew exactly what the boss

wanted and the boss was deeply and personallyPREMIER PORT[N(850) 894-0828


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THE COURT: Well, that's where I'm going. Let

2

me ask you this, let's assume you could show he has

3

a bias position towards this.

4

MR. BUESING: Yes, sir.

5

THE COURT: Where does that take -- what case

6

law do you have to tell me that does something?

7

Because our issue is still whether it's a fixture

8

and whether it's an appropriation, is it not? I

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mean, that's our issue here today.

10

MR. BUESING: No, the bias is always relevant.

11

That's -- we're under the court of -- Supreme Court

12

law, bias is always relevant. And recall that what

13

you've got to face at the trial in December is DFS

14

is going to come in through their employees who

15

know perfectly well what the boss wants. They're

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going to come in through their employees and

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they're going present themselves as having done a

18

careful, independent, impartial analysis, which

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caused them to pay for 99 percent of everything in

20

this building, but this one item was plucked out as

21

part of this impartial process.

22

What I'm seeking to show is that that was not

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an impartial process. That was a very biased

24

process, that everybody knew exactly what the boss

25

wanted and the boss was deeply and personally PREMIER REPORTING


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involved in all of that. Now, here1s what I get

after the hearing on October 19th. I deposed Shane

Lewis. He's on some of the documents. He's, like,

down six layers. I deposed Glenn Elmer. He's

down, like, five layers. Didn't know much. This

is all plaza level stuff. And that's a phrase the

witnesses use to describe the senior people in the

Department at the plaza level to make these

decisions, referring to the Capitol. Then I

deposed the boss, Christine Smith, of those people

who runs the Bureau of Auditing. She denied having

any real discussions with Mr. Atwater at all.

She's not in the plaza level. She, again, says,

that's plaza level stuff. I deposed Bill DuBois.

Bill DuBois helped with the audit. Bill DuBois was

involved one of the things that happened here

and Mr. Donelan I'm going to get to him in a

second. But one of the reactions of the DFS was to

propose new legislation, which I'm going to argue

in December. That sort of confirms that the

current law allowed for payment, which is why they

were proposing new legislation. You wouldn't need

it if the current law didn't provide for payment.

But so Bill DuBois could not speak to the very

senior people. On the senior level, I the onlyPPPMTRR PI.PflRTTK1(


77

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involved in all of that. Now, here's what I get

2

after the hearing on October 19th. I deposed Shane

3

Lewis. He's on some of the documents. He's, like,

4

down six layers. I deposed Glenn Elmer. He's

5

down, like, five layers. Didn't know much. This

6

is all plaza level stuff. And that's a phrase the

7

witnesses use to describe the senior people in the

8

Department at the plaza level to make these

9

decisions, referring to the Capitol. Then I

10

deposed the boss, Christine Smith, of those people

11

who runs the Bureau of Auditing. She denied having

12

any real discussions with Mr. Atwater at all.

13

She's not in the plaza level. She, again, says,

14

that's plaza level stuff. I deposed Bill DuBois.

15

Bill DuBois helped with the audit. Bill DuBois was

16

involved -- one of the things that happened here

17

and Mr. Donelan -- I'm going to get to him in a

18

second. But one of the reactions of the DFS was to

19

propose new legislation, which I'm going to argue

20

in December. That sort of confirms that the

21

current law allowed for payment, which is why they

22

were proposing new legislation. You wouldn't need

23

it if the current law didn't provide for payment.

24

But -- so Bill DuBois could not speak to the very

25

senior people. On the senior level, I -- the only PPPMTRR PI.PflRT1K1(


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person I was successful in being able to depose was

a man named Paul Whitfield who worked at the plaza

level with Mr. Kneip who's the Chief of Staff and

Mr. Atwater. Mr. Whitfield is not able to describe

Mr. Atwater1s thinking process, Mr. Atwater's

decision making process. So Mr. Whitfield also

doesn't really he wasn't involved in everything

Mr. Atwater was doing. He happened to be present

at that meeting that took place on the day he was

sworn in, but he, you know, he's not the person who

was managing this process.

So I deposed all those people. I've not been

able to get any answers on Mr. Atwater1s thinking

process. Mr. Atwater's review personal review

of the bill, which is what he said he did. Mr.

Atwater's letters that he sent. Mr. Atwater1s

experience going through political campaign when

this became the number one issue in the campaign

and how that has affected him going forward.

Now, I did some other deposition notices.

did a 1.310(b) (6) notice of the Department. And I

listed category after category. If I haven't named

the person already, who's the best person to answer

these questions? I'm inviting them to propose

people to me if they think 11m missing somebody.PRMTRT RPflPTTM((850) 894-0828


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person I was successful in being able to depose was

a man named Paul Whitfield who worked at the plaza

level with Mr. Kneip who's the Chief of Staff and

Mr. Atwater. Mr. Whitfield is not able to describe

Mr. Atwater's thinking process, Mr. Atwater's

decision making process. So Mr. Whitfield also

doesn't really -- he wasn't involved in everything

Mr. Atwater was doing. He happened to be present

at that meeting that took place on the day he was

sworn in, but he, you know, he's not the person who

was managing this process.

So I deposed all those people. I've not been

able to get any answers on Mr. Atwater's thinking

process. Mr. Atwater's review -- personal review

of the bill, which is what he said he did. Mr.

Atwater's letters that he sent. Mr. Atwater's

experience going through political campaign when

this became the number one issue in the campaign

and how that has affected him going forward.

Now, I did some other deposition notices.

did a 1.310(b) (6) notice of the Department. And I

listed category after category. If I haven't named

the person already, who's the best person to answer

these questions? I'm inviting them to propose

people to me if they think I'm missing somebody. PRMTRT RPflPTTM(


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Mr. Davidson responded by email. It said, there is

nobody else, besides the people you've already

deposed, who can shed any more light on those

topics.

Now, one of the topics was Mr. Atwater's

election campaign. He said, nobody at the

Department can spoke well, even I know that

Mr. Atwater's personal thoughts. He said, nobody

can do that. A lot of these cases, by the way --

the way the senior person avoids being deposed is

he proposes somebody else and says, here's the

person who really did it, they can answer all your

questions. At no point in this process has Mr.

Davidson said, oh, don't worry, Mr. somebody else

can answer those questions. He's never purported

to say that.

Now, there's two other depositions I attempted

to take and I was unable to take. I attempted to

take Robert Blunt and Kneip. They moved for

protective order. You denied that motion. They

refused to produce them. They filed something with

the First DCA and it's still pending. Okay. Then

I noticed Mr. Richard Donelan, Junior, who is an

attorney. However, the documents that we received

from the Department are loaded with Mr. DonelanPRPMT1R RP.PORTTN1


1

Mr. Davidson responded by email. It said, there is

2

nobody else, besides the people you've already

3

deposed, who can shed any more light on those

4

topics.

5

Now, one of the topics was Mr. Atwater's

6

election campaign. He said, nobody at the

7

Department can spoke - well, even I know that --

8

Mr. Atwater's personal thoughts. He said, nobody

9

can do that. A lot of these cases, by the way --

10

the way the senior person avoids being deposed is

11

he proposes somebody else and says, here's the

12

person who really did it, they can answer all your

13

questions. At no point in this process has Mr.

14

Davidson said, oh, don't worry, Mr. somebody else

15

can answer those questions. He's never purported

16

to say that.

17

Now, there's two other depositions I attempted

18

to take and I was unable to take. I attempted to

19

take Robert Blunt and Kneip. They moved for

20

protective order. You denied that motion. They

21

refused to produce them. They filed something with

22

the First DCA and it's still pending. Okay. Then

23

I noticed Mr. Richard Donelan, Junior, who is an

24 attorney. However, the documents that we received

25

from the Department are loaded with Mr. Donelan PRPMT1R RP.PORTTN1

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doing things such as writing the proposed

legislation to fix this so it won't happen the next

time. Mr. Donelan is involved, not as an attorney,

not in confidential situations, but Mr. Donelan

is he's all over this issue and one reason he's

an interesting witness is he straddles both the

Sink administration and the Atwater administration,

is what looks through this issue continuously. So

they brought Mr. Donelan to the deposition, would

not allow us to swear him, would not allow him even

to state his name, and I put on the record all the

different questions I was going to ask him, the

different documents I had that showed his

involvement and they refused to allow him to be

deposed. I filed a motion for sanctions and a

motion to compel, which is, I guess, not formally

set for today, but I just want Your Honor to know

that that piece is sitting there.

So, I tried. I tried to with Bud Kneip who is

plaza level. They refused. It's up on the First

DCA. I tried with Richard Donelan. He came over,

he wouldn't even allow us to put him under oath and

say a word. I tried with the 30(b) (6) style

motion. Give me somebody else. They had nobody

else to give me. And I've already established atPRIMTRR PPRPT1(850) 894-0828

premier-reporting . com

1010

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doing things such as writing the proposed

2

legislation to fix this so it won't happen the next

3

time. Mr. Donelan is involved, not as an attorney,

4

not in confidential situations, but Mr. Donelan

5

is -- he's all over this issue and one reason he's

6

an interesting witness is he straddles both the

7

Sink administration and the Atwater administration,

8

is what looks through this issue continuously. So

9

they brought Mr. Dorielan to the deposition, would

10

not allow us to swear him, would not allow him even

11

to state his name, and I put on the record all the

12

different questions I was going to ask him, the

13

different documents I had that showed his

14

involvement and they refused to allow him to be

15

deposed. I filed a motion for sanctions and a

16

motion to compel, which is, I guess, not formally

17

set for today, but I just want Your Honor to know

18

that that piece is sitting there.

19

So, I tried. I tried to with Bud Kneip who is

20

plaza level. They refused. It's up on the First

21

DCA. I tried with Richard Donelan. He came over,

22

he wouldn't even allow us to put him under oath and

23

say a word. I tried with the 30(b) (6) style

24

motion. Give me somebody else. They had nobody

25

else to give me. And I've already established at PRIMTRR PPRPT1

(850) 894-0828 premier-reporting . com

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the last hearing, by carefully going through all

those letters and all the statements of Mr.

Atwater, that this is one of those cases that fits

squarely in the testimony elicited is necessary and

relevant and unavailable from a lesser ranking

officer.

I also want to remind the Court that we've

been going around and around with Mr. Davidson on

whether DFS and the CFO, Mr. Atwater, are one in

the same for this purposes of this case. And

they have spent a lot of time saying Mr. Atwater is

somehow different, he's a constitutional officer,

he's a different entity, he's got to be named as a

separate party. Well, that's fine. We all said,

okay. He's now been named as a separate party.

He's now a party in this action. He's claiming

that he's a separate entity. He's claiming that he

gets to make his own decisions. He's got himself

deeply, personally involved here. They've not

proposed anyone else who could possibly answer

these questions. I have met the legal standard.

can cite you the cases again if you want, but what

it says is, if it's established that the testimony

to be elicited is necessary and relevant and

unavailable from a lesser ranking officer. HerePRiMTFP RFPOPTTN1(850) 894-0828


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the last hearing, by carefully going through all

those letters and all the statements of Mr.

Atwater, that this is one of those cases that fits

squarely in the testimony elicited is necessary and

relevant and unavailable from a lesser ranking

officer.

I also want to remind the Court that we've

been going around and around with Mr. Davidson on

whether DFS and the CFO, Mr. Atwater, are one in

the same for this -- purposes of this case. And

they have spent a lot of time saying Mr. Atwater is

somehow different, he's a constitutional officer,

he's a different entity, he's got to be named as a

separate party. Well, that's fine. We all said,

okay. He's now been named as a separate party.

He's now a party in this action. He's claiming

that he's a separate entity. He's claiming that he

gets to make his own decisions. He's got himself

deeply, personally involved here. They've not

proposed anyone else who could possibly answer

these questions. I have met the legal standard.

can cite you the cases again if you want, but what

it says is, if it's established that the testimony

to be elicited is necessary and relevant and

unavailable from a lesser ranking officer. Here PRiMTFP RFPO77TN1

(850) 894-0828 premier-reporting. com

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it's necessary. Itts clearly relevant. As I said,

bias alone makes it relevant. And unavailable from

a lesser ranking officer. Theytve never even

suggested there was anybody else who could possibly

answer Mr. Atwater's thinking process, what Mr.

Atwater's going through, Mr. Atwater's supposed

this hearing that he conducted. This is all Mr.

Atwater and he's personally put himself in the

middle.

So, I'm going to ask Your Honor to deny the

motion at this time. If it helps everybody

understand where we are, I've already been advised

theytre going to immediately file an appeal to the

First DCA anyway. So it's not, like, Thursday

morning Mr. Atwater is going to show up, but at

least let's get this on record that I've now

touched the bases. You've asked me touch all those

bases. I've touched them to the very best of my

ability. And this is one of those cases that do

exist where somebody has placed themselves

personally in the middle of all this and the fact

that he's the senior ranking official does not mean

that he doesn't have to submit just the way all the

rest of us submit.

THE COURT: All right. Mr. Maida, you havePREMIER REPORTIN((850) 894-0828

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it's necessary. It's clearly relevant. As I said,

bias alone makes it relevant. And unavailable from

a lesser ranking officer. They've never even

suggested there was anybody else who could possibly

answer Mr. Atwater's thinking process, what Mr.

Atwater's going through, Mr. Atwater's supposed --

this hearing that he conducted. This is all Mr.

Atwater and he's personally put himself in the

middle.

So, I'm going to ask Your Honor to deny the

motion at this time. If it helps everybody

understand where we are, I've already been advised

they're going to immediately file an appeal to the

First DCA anyway. So it's not, like, Thursday

morning Mr. Atwater is going to show up, but at

least let's get this on record that I've now

touched the bases. You've asked me touch all those

bases. I've touched them to the very best of my

ability. And this is one of those cases that do

exist where somebody has placed themselves

personally in the middle of all this and the fact

that he's the senior ranking official does not mean

that he doesn't have to submit just the way all the

rest of us submit.

THE COURT: All right. Mr. Maida, you have PREMIER REPORTIN( (850) 894-0828


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anything further to add to that before I let Mr.

Davidson reply?

MR. MAIDA: Yeah, sure. Thank you, Your

Honor. Just very, very briefly. I think the most

important thing that I and Mr. Buesing touched

on. The thing you have to know is that for the

past five months, since July, the Department of

Financial Services has said repeatedly, and the CFO

in it's most recent pleadings in response to our

third complaint, has confirmed that he was the

person who made the decision. He is the only

person who can decide whether to pay Signature

Gallery. He's it. Who else do we go to?

Your Honor, I ask what we want to ask at

this deposition, I want to know why he made the

decision he made to deny payment. He made that

decision personally, apparently. I want to know

what factors the CFO took into consideration when

he made those decisions.

I want to ask what factors did he refuse to

consider, which are not even mentioned in the final

order he entered in the 17.05 proceeding. I'd like

to ask whether the CFO, as Mr. Davidson

represented, was the sole individual who decided

not to deny payment.PP.MTF.R RFPOPPTNG


1313

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anything further to add to that before I let Mr.

2

Davidson reply?

3

MR. MAIDA: Yeah, sure. Thank you, Your

4

Honor. Just very, very briefly. I think the most

5

important thing that I -- and Mr. Buesing touched

6

on. The thiig you have to know is that for the

7

past five months, since July, the Department of

8

Financial Services has said repeatedly, and the CFO

9

in it's most recent pleadings in response to our

10

third complaint, has confirmed that he was the

11

person who made the decision. He is the only

12

person who can decide whether to pay Signature

13

Gallery. He's it. Who else do we go to?

14

Your Honor, I ask -- what we want to ask at

15

this deposition, I want to know why he made the

16

decision he made to deny payment. He made that

17

decision personally, apparently. I want to know

18 what factors the CFO took into consideration when

19

he made those decisions.

20

I want to ask what factors did he refuse to

21

consider, which are not even mentioned in the final

22

order he entered in the 17.05 proceeding. I'd like

23

to ask whether the CFO, as Mr. Davidson

24

represented, was the sole individual who decided

25 not to deny payment.

PP.MTF.R RFPOPPTNG


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I want to ask whether the CFO relied on the

advice of others. And if so, who they are.

I want to know whether the fixed capitol

outlay defense is the CFO's current only reason for

denying payment, because that switches depending on

which pleading you read.

Pd like to ask Mr. Atwater whether he's

abandoned once and for all the State the

archived state building's argument. The decorative

items were a competitive bidding process.

On at leas.t two occasions, with the 17.05

proceedings, the CEO said he would not approve

payments to Signature. I'd like to ask the CFO,

what did the CFO do to inform himself to the

underlying fact prior to making those statements?

I could go on.

But those are specific questions that I'd like

to ask and to which I think I'm entitled to an

answer, because the CFO has said through his

lawyers he's the one and only person who made those

decisions. There's no one else I can ask. So for

those reasons, in support of Peter Brown's

deposition notice, we would ask the motion for

protective order be denied.

THE COURT: Okay.PRIMTFR RPORTTNG(850) 894-0828


1414

I want to ask whether the CEO relied on the

2 advice of others. And if so, who they are.

3

I want to know whether the fixed capitol

4 outlay defense is the CEO's current only reason for

5

denying payment, because that switches depending on

6 which pleading you read.

7

I'd like to ask Mr. Atwater whether he's

8 abandoned once and for all the State -- the

9 archived state building's argument. The decorative

10

items were a competitive bidding process.

11

On at least two occasions, with the 17.05

12 proceedings, the CEO said he would not approve

13 payments to Signature. I'd like to ask the CFO,

14 what did the CFO do to inform himself to the

15 underlying fact prior to making those statements?

16

I could go on.

17

But those are specific questions that I'd like

18

to ask and to which I think I'm entitled to an

19 answer, because the CEO has said through his

20

lawyers he's the one and only person who made those

21

decisions. There's no one else I can ask. So for

22

those reasons, in support of Peter Brown's

23

deposition notice, we would ask the motion for

24 protective order be denied.

25

THE COURT: Okay. PRIMTFR RPORTTNG


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MR. DAVIDSON: Your Honor, opposing counsel is

doing a great job of trying a case they havent

pled, okay. To be relevant, the testimony sought

to be elicited must be probative to something at

issue in the pleadings. So, let's look at the

pleadings, everybody in this courtroom seems to

have ignored around here recently.

Count I of the third amended complaint is a

count that sounds in contract. It alleges the

breach of a contract between DMS and Peter Brown.

It does not allege that the Department is a party

to that contract. Now, how in the world can the

Court award relief against the Department on the

basis of a contract to which it's not a party?

Okay. Thatts elementary contract law. You can't

do that. They didn't even allege we're a party to

the contract in question. It's a contract-based

complaint. How does anything that they're talking

about, about elections and bias and this and that

go to prove anything or disprove anything relative

to Count I, which is a contract count involving a

contract to which neither the CFO nor the

Department are a party? It's not relevant

testimony to their allegations.

Count II is a breach of an implied covenant ofPRFMT1P PJ.PflRPTN(


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MR. DAVIDSON: Your Honor, opposing counsel is

2

doing a great job of trying a case they haven't

3

pled, okay. To be relevant, the testimony sought

4

to be elicited must be probative to something at

5

issue in the pleadings. So, let's look at the

6

pleadings, everybody in this courtroom seems to

7

have ignored around here recently.

8

Count I of the third amended complaint is a

9

count that sounds in contract. It alleges the

10

breach of a contract between DMS and Peter Brown.

11

It does not allege that the Department is a party

12

to that contract. Now, how in the world can the

13

Court award relief against the Department on the

14

basis of a contract to which it's not a party?

15

Okay. That's elementary contract law. You can't

16

do that. They didn't even allege we're a party to

17

the contract in question. It's a contract-based

18

complaint. How does anything that they're talking

19

about, about elections and bias and this and that

20

go to prove anything or disprove anything relative

21

to Count I, which is a contract count involving a

22

contract to which neither the CFO nor the

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Department are a party? It's not relevant

24

testimony to their allegations.

25

Count II is a breach of an implied covenant of PREMIER REPORTING (850) 894-0828

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good faith and fair dealing based on the same

contracts to which neither the CFO nor the

Department are a party. Moreover, Count II does

not allege that the Department or the CFO engage in

any bad faith or unfair dealing. The sole

allegation there is directed to the Department of

Management Services. They're the ones alleged to

have breached that covenant, not the Department or

the CFO. So, once again, how does testimony about

electioneering and decision making and what did you

think and what did you not think, have to do with

Count II, which alleges bad faith against DMS. How

can the CFO give any testimony that's going to bare

anything on that topic?

Count III, it's promissory estoppel. TheyTre

suing the Department for promissory estoppel. Yet,

you would look at that Count, it does not allege

anywhere that the Department made any

representation to anybody upon which they relied to

their declaration at a later time. That allegation

is made solely and directed only towards the

Department of Management Services. Once again, how

does the Department's testimony, or the CFO's

testimony, going to bear on the promissory estoppel

count when there's no allegation in that Count thatPR1MT1R PnPITKW(850) 894-0828


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good faith and fair dealing based on the same

2

contracts to which neither the CFO nor the

3

Department are a party. Moreover, Count II does

4

not allege that the Department or the CFO engage in

5

any bad faith or unfair dealing. The sole

6

allegation there is directed to the Department of

7

Management Services. They're the ones alleged to

8

have breached that covenant, not the Department or

9

the CFO. So, once again, how does testimony about

10

electioneering and decision making and what did you

11

think and what did you not think, have to do with

12

Count II, which alleges bad faith against DMS. How

can the CFO give any testimony that's going to bare

14

anything on that topic?

15

Count III, it's promissory estoppel. They're

16

suing the Department for promissory estoppel. Yet,

17

you would look at that Count, it does not allege

18

anywhere that the Department made any

19

representation to anybody upon which they relied to

20

their declaration at a later time. That allegation

21

is made solely and directed only towards the

22

Department of Management Services. Once again, how

23

does the Department's testimony, or the CFO's

24

testimony, going to bear on the promissory estoppel

25

count when there's no allegation in that Count that PR1M11R PnPITKW


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the Department or the CFO did anything to invoke

promissory estoppel.

Count IV is for declaratory relief.

It's declaratory they are seeking declaratory

relief on two contracts to neither of which is the

CFO or the Department a party. They're seeking

relief as a declaration of rights of response to

his obligations as to the subcontract between Peter

Brown and Signature Art in the main contract

between DMS and Peter Brown. We weren't a party to

those contracts and, in fact, Mr. Kneip and Mr.

Atwater were not even in Tallahassee by the time

both of these contracts had been executed and fully

performed. Everything that happened on all these

contracts happened before they even got to

Tallahassee. So how could they have any personal

knowledge that bears on anything that happened to

them with something that happened before that point

in time?

And again, case law is clear. You cannot

declare the rights or obligations under a contract

relative to a party who's not a party to the

contract. You can't do that. So how is anything

Mr. Kneip or I'm sorry, Mr. Atwater would have

to say about their elections, about statements theyPRFMTFR RIPORPT1W(850) 894-0828


1.71.7

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the Department or the CFO did anything to invoke

2 promissory estoppel.

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Count IV is for declaratory relief.

4

It's declaratory -- they are seeking declaratory

5 relief on two contracts to neither of which is the

6

CFO or the Department a party. They're seeking

7 relief as a declaration of rights of response to

8

his obligations as to the subcontract between Peter

9

Brown and Signature Art in the main contract

10

between DMS and Peter Brown. We weren't a party to

11

those contracts and, in fact, Mr. Kneip and Mr.

12

Atwater were not even in Tallahassee by the time

13

both of these contracts had been executed and fully

14 performed. Everything that happened on all these

15 contracts happened before they even got to

16

Tallahassee. So how could they have any personal

17

knowledge that bears on anything that happened to

18

them with something that happened before that point

19

in time?

20

And again, case law is clear. You cannot

21

declare the rights or obligations under a contract

22 relative to a party who's not a party to the

23 contract. You can't do that. So how is anything

24

Mr. Kneip or -- I'm sorry, Mr. Atwater would have

25

to say about their elections, about statements they PRFMTFR RIPORPT1W


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made to their staff afterwards, about how he made

decisions in his capacity as a constitutional

officer, how would that bear on anything that

that's in Count IV of the third amended complaint?

Then we go to Count VI, which is really Count

V1 they mis-numbered it, in mandamus. Mandamus is

strictly a matter of law. You don't even take

testimony in mandamus actions. It's strictly a

paper pleading case. You don't take testimony in

mandamus cases. It's a matter of is there

discretion or is it ministerial? All right. Is

there a clear legal right to the relief sought?

All right. All those elements that are mandamus

are all matters of law, not of fact. How could

anything Mr. Atwater have to say bear on the

mandamus count? And that's their whole complaint.

They're whole complaint is outside what they're

arguing. What they have to argue is that what they

want to do, what they want was is relevant that

is probative to prove a claim or establish a

defense based on thepleadings. And these are the

pleadings. And the pleadings don't involve any of

those matters.

Now, they have taken deposition testimony from

the lowest ranking people on the audit team, thePRMTFT RPORTTN(4(850) 894-0828


W.

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made to their staff afterwards, about how he made

2

decisions in his capacity as a constitutional

3

officer, how would that bear on anything that

4

that's in Count IV of the third amended complaint?

5

Then we go to Count VI, which is really Count

6

V 1 they mis-numbered it, in mandamus. Mandamus is

7

strictly a matter of law. You don't even take

8

testimony in mandamus actions. It's strictly a

9

paper pleading case. You don't take testimony in

10

mandamus cases. It's a matter of -- is there

II

discretion or is it ministerial? All right. Is

12

there a clear legal right to the relief sought?

13

All right. All those elements that are mandamus

14

are all matters of law, not of fact. How could

15

anything Mr. Atwater have to say bear on the

16

mandamus count? And that's their whole complaint.

17

They're whole complaint is outside what they're

18

arguing. What they have to argue is that what they

19

want to do, what they want was -- is relevant that

20

is probative to prove a claim or establish a

21

defense based on thepleadings. And these are the

22

pleadings. And the pleadings don't involve any of

23

those matters.

24

Now, they have taken deposition testimony from

25

the lowest ranking people on the audit team, the PHH;MIH;R RPORTTN(4


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people that did the actual grunt work and explain

to them what their grunt work was, how it was

passed up to another level, all the way up through

the Division Director, a Bureau Director, to the

Deputy Chief of Staff who testified how he took it

to the CFO personally and said, here's what we got.

What they want to do is, they want to put Mr.

Atwater on the stand and argue with him. Why'd you

do this? Why1d you do that? Why1d you do the next

thing? You don't get to do that to the CFO any

more than you get to do that to the Governor and

put him on a deposition stand and say, why'd you

veto this bill? I want to know why you vetoed this

bill. Put it how could you do this? How could

you do that? You can't do that to a Governor and

you can't do it to a CFO either. The only way you

can reach a CFO or any other constitutional

officer, who has constitutional authority, is

mandamus or certiorari. Neither one of these

matters go to that. And the mandamus count is

facially flawed because it doesn't plead that

ther&s a clear legal right. It doesn1t plead that

it's at their discretion. And it doesn't

conclude doesn't say that they have no other

avenue of law. In fact, their other four countsPREMIER REPORTTN((850) 894-0828


1919

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people that did the actual grunt work and explain

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to them what their grunt work was, how it was

3

passed up to another level, all the way up through

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the Division Director, a Bureau Director, to the

5

Deputy Chief of Staff who testified how he took it

6

to the CFO personally and said, here's what we got.

7

What they want to do is, they want to put Mr.

8

Atwater on the stand and argue with him. Why'd you

9

do this? Why 1 d you do that? Why 1 d you do the next

10

thing? You don't get to do that to the CFO any

11

more than you get to do that to the Governor and

12

put him on a deposition stand and say, why'd you

13

veto this bill? I want to know why you vetoed this

14

bill. Put it -- how could you do this? How could

15

you do that? You can't do that to a Governor and

16

you can't do it to a CFO either. The only way you

17

can reach a CFO or any other constitutional

18

officer, who has constitutional authority, is

19

mandamus or certiorari. Neither one of these

20

matters go to that. And the mandamus count is

21

facially flawed because it doesn't plead that

22

there's a clear legal right. It doesn't plead that

23

it's at their discretion. And it doesn't

24

conclude -- doesn't say that they have no other

25

avenue of law. In fact, their other four counts PREMIER REP0RTTN(


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show that they believe they do have an adequate

remedy of law.

So how does anything the CFO is going to

testify to, that they've outlined here today, going

to go to any of the counts in the pleadings? And

that's the test for relevancy. It's not whether

they would prove something's that's not got

anything to do with the pleadings, it's not going

to prove some abstract concept for them to be

proving. It's not going to prove a political angle

they want to fool with. Itts called will it prove

or disprove a claim or defense that's in the

pleadings? And these are the pleadings. And

nothing they've talked about has anything do to

with the pleadings.

In fact, if you read their depositions they've

taken, neither Mr. Buesing or Mr. Maida, anybody

else asked any witness even one question about a

term or condition of these contracts and how those

contracts were treated b.y me or anything else like

that, not one question has been directed to that.

It's all been directed to a silly notion of bias,

which, as you yourself would recognize, at the last

hearing they've not come anywhere near prove

close to proving. In fact, you're and they givePRMIER REPORTING(850) 894-0828


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show that they believe they do have an adequate

remedy of law.

So how does anything the CFO is going to

testify to, that they've outlined here today, going

to go to any of the counts in the pleadings? And

that's the test for relevancy. It's not whether

they would prove something's that's not got

anything to do with the pleadings, it's not going

to prove some abstract concept for them to be

proving. It's not going to prove a political angle

they want to fool with. It's called will it prove

or disprove a claim or defense that's in the

pleadings? And these are the pleadings. And

nothing they've talked about has anything do to

with the pleadings.

In fact, if you read their depositions they've

• taken, neither Mr. Buesing or Mr. Maida, anybody

else asked any witness even one question about a

term or condition of these contracts and how those

contracts were treated b.y me or anything else like

that, not one question has been directed to that.

It's all been directed to a silly notion of bias,

which, as you yourself would recognize, at the last

hearing they've not come anywhere near prove --

close to proving. In fact, you're -- and they give PRMIER REPORTING (850) 894-0828


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you nothing new today. Nothing new today in that

regard. And your own words were, I'm not

comfortable yet and I have had documented to me

what you need to get to even raise the issue of

bias. They give you nothing new in that regard

here today. It's the same old song they gave you

last time. It didn't sing well then, it's not

singing any better today.

But the real test here is relevancy. They

have all these nice theories that have nothing to

do with their pleadings. All they want to do is

put the CFO on the hot-seat and grill him and

disagree with hini and argue with him. You don1t

get to do that to hini any more than you get to do

that to the Governor. That's the long and short of

it. It's got to be relevant to the pleadings.

Nothing they've brought is relevant to the

pleadings. That's why there should be a protective

order entered to protect him from abusive discovery

like our other ones have been subjected to.

MR. BUESING: Your Honor, as to the pleading,

Count IV, declaratory relief under 86.091 allows

each party in it's pleadings, which I have done on

behalf of Peter R. Brown Construction, to ask that

we be joined in the declaration. I ask that DFS bePRFMIER REPORTING(850) 894-0828


2121

1 you nothing new today. Nothing new today in that

2 regard. And your own words were, I'm not

3 comfortable yet and I have had documented to me

4 what you need to get to even raise the issue of

5 bias. They give you nothing new in that regard

6 here today. It's the same old song they gave you

7 last time. It didn't sing well then, it's not

8 singing any better today.

9 But the real test here is relevancy. They

10 have all these nice theories that have nothing to

11 do with their pleadings. All they want to do is

12 put the CFO on the hot-seat and grill him and

13 disagree with him and argue with him. You don't

14 get to do that to him any more than you get to do

15 that to the Governor. That's the long and short of

16 it. It's got to be relevant to the pleadings.

17 Nothing they've brought is relevant to the

18 pleadings. That's why there should be a protective

19 order entered to protect him from abusive discovery

20 like our other ones have been subjected to.

21 MR. BUESING: Your Honor, as to the pleading,

22 Count IV, declaratory relief under 86.091 allows

23 each party in it's pleadings, which I have done on

24 behalf of Peter R. Brown Construction, to ask that

25 we be joined in the declaration. I ask that DFS be

PRFMIER REPORTING


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joined in same declaration. I asked that Signature

Art Gallery be joined in the same declaration. And

then I asked for supplemental relief in accordance

with Fla. Stat. 86.061, which will include

compelling DFS to cure the default by making

payment.

We have a contract with DMS that's true. But

DFS is playing a role. It's a that's the whole

point of this three-day trial we have coming up.

They're playing a role because they're refusing to

pay for the contract we have. The declaratory

judgment count, which we're allowed to plea as we

did, and say, Judge, bring everybody together, hear

all the facts and then decide, declare, what the

parties rights are in accordance with this. So it

is fully pled. I don't know where counsel thinks

it's not pled. I dont know what w&ve been doing

here for a year in this lawsuit if it's not to deal

with the decision by Mr. Atwater to not pay. So

hes wrong on that point.

The other point, constitutional officer verses

agency head. We're having this over and over and

over and let's go through it one more time. The

cases I cited to Your Honor, lets put them on the

record. Home -- H-O-R-N-E versus School BoardPREMIER REPORTING(850) 894-0828


2222

1

joined in same declaration. I asked that Signature

2 Art Gallery be joined in the same declaration. And

3 then I asked for supplemental relief in accordance

4 with Fla. Stat. 86.061, which will include

5 compelling DFS to cure the default by making

6 payment.

7 We have a contract with DMS that's true. But

8 DFS is playing a role. It's a -- that's the whole

9 point of this three-day trial we have coming up.

10 They're playing a role because they're refusing to

II pay for the contract we have. The declaratory

12 judgment count, which we're allowed to plea as we

13

did, and say, Judge, bring everybody together, hear

14 all the facts and then decide, declare, what the

15 parties rights are in accordance with this. So it

16 is fully pled. I don't know where counsel thinks

17

it's not pled. I don't know what we've been doing

18 here for a year in this lawsuit if it's not to deal

19 with the decision by Mr. Atwater to not pay. So

20

he's wrong on that point.

21 The other point, constitutional officer verses

22 agency head. We're having this over and over and

23 over and let's go through it one more time. The

24 cases I cited to Your Honor, let's put them on the

25 record. Home -- H-O-R-N-E -- versus School Board

PREMIER REPORTING (850) 894-0828


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of Miami, Dade County, 901 So.2d 238 (1st DCA 2005)

points with approval Department of Agriculture and

Consumer Services versus Broward County, 810 So.2d

1056, also First DCA. It says, in circumstances

such as these, the agency head agency head

should not be subject to deposition or objection

unless and until opposing parties have exhausted

other discovery and can demonstrate that the agency

head is uniquely able to provide relevant

information which cannot be obtained from other

sources. Okay. Agency head.

Mr. Atwater wears two hats. They went to

pretend he only has one hat. He a constitutional

officer, he's like the Governor, he's above he's

going to there's a statute that says he is the

agency head for the Department of Financial

Services. Which, I assume, is why Mr. Maida in the

first instance said, I've named the Department. By

definition, that includes the head of the

Department. But they made this noise, oh, he's a

constitutional officer, whatever. Fine. We'll

bring him in with both hats on. But I want to

depose him on his agency head hat. That's the one

that we're all talking about here. Because

remember the description he just gave, we workedPPIMTWT PDCPmTk1(Z


2323

1 of Miami, Dade County, 901 So.2d 238 (1st DCA 2005)

2 points with approval Department of Agriculture and

3

Consumer Services versus Broward County, 810 So.2d

4

1056, also First DCA. It says, in circumstances

5 such as these, the agency head -- agency head --

6 should not be subject to deposition or objection

7 unless and until opposing parties have exhausted

8 other discovery and can demonstrate that the agency

9

head is uniquely able to provide relevant

10

information which cannot be obtained from other

11 sources. Okay. Agency head.

12

Mr. Atwater wears two hats. They went to

13 pretend he only has one hat. He a constitutional

14 officer, he's like the Governor, he's above -- he's

15 going to -- there's a statute that says he is the

16 agency head for the Department of Financial

17

Services. Which, I assume, is why Mr. Maida in the

18

first instance said, I've named the Department. By

19

definition, that includes the head of the

20

Department. But they made this noise, oh, he's a

21 constitutional officer, whatever. Fine. We'll

22

bring him in with both hats on. But I want to

23

depose him on his agency head hat. That's the one

24

that we're all talking about here. Because

25 remember the description he just gave, we worked

PHKM I KH PPCRTTlJi


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our way up the chain, facts get brought up to this

plaza level meeting, decisions are made, things

then roll back down. Now, what role is he acting

there? He's acting as the agency head. He's the

boss of an agency. It's not Mr. Atwater going of f

and doing documents all by himself. He's operating

as agency head. And the cases say agency head's

are subject to deposition.

So again, their two arguments, it's not pled

is nonsense. It's pled all over this case. And

he's somehow different than all the rest of the

agency heads. He's different than the head of the

Department of Agriculture and he's different than

the head of the Department of Education and all the

other Department heads who've been subject to this

rule of law. He's not different. He's an agency

head and he needs to sit for this deposition.

I don't know why counsel thinks we were ever

abusive. I certainly it's not my professional

style to ever be abusive. And that's a whole

separate issue. He can stop a deposition if he

thinks somebody's being abusive. But, you know,

we're talking about professionally asking a series

of questions that relate to his unique knowledge,

his unique information that is not equallyPRFMT1'.R RlP1)RITNG


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our way up the chain, facts get brought up to this

plaza level meeting, decisions are made, things

then roll back down. Now, what role is he acting

there? He's acting as the agency head. He's the

boss of an agency. It's not Mr. Atwater going of f

and doing documents all by himself. He's operating

as agency head. And the cases say agency head's

are subject to deposition.

So again, their two arguments, it's not pled

is nonsense. It's pled all over this case. And

he's somehow different than all the rest of the

agency heads. He's different than the head of the

Department of Agriculture and he's different than

the head of the Department of Education and all the

other Department heads who've been subject to this

rule of law. He's not different. He's an agency

head and he needs to sit for this deposition.

I don't know why counsel thinks we were ever

abusive. I certainly -- it's not my professional

style to ever be abusive. And that's a whole

separate issue. He can stop a deposition if he

thinks somebody's being abusive. But, you know,

we're talking about professionally asking a series

of questions that relate to his unique knowledge,

his unique information that is not equally PRFMT1'.R 77P7RITNG


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available from lesser ranking government officials.

MR. DAVIDSON: May I reply, Your Honor?

THE COURT: You may. They've replied to your

motion, so I'm going to let you reply.

MR. DAVIDSON: Thank you, Your Honor.

Mr. Buesing likes to conflate things here and try

to confuse things that are fairly simply.

Statutorily, yes, Mr. Atwater is designated by the

legislature as the head of the Department of

Financial Services. That's true. But he is also

elected to this position of Chief Financial Officer

of the State, which is a separate office. When he

exercise the powers given to him by the

constitution, he is not the head of the Department

of -- the Department of Financial Services, he is

the Chief Financial Officer, when he has to sign

the statutory powers given to him under Chapter

20.121, he's the agency head of the Department of

Financial Services. That Department does not have

the authority to say, yay or nay to issuing a state

warrant. Only the CFO has that final authority.

That's easy to understand. When he exercises that

final authority, he's a constitutional officer,

he's not acting as an agency head, okay. It may be

that the legislature could have done it differentlyPPRMTI'R PTPflPT11(


2525

1 available from lesser ranking government officials.

2

MR. DAVIDSON: May I reply, Your Honor?

3

THE COURT: You may. They've replied to your

4 motion, so I'm going to let you reply.

5


6

Mr. Buesing likes to conflate things here and try

7

to confuse things that are fairly simply.

8

Statutorily, yes, Mr. Atwater is designated by the

9

legislature as the head of the Department of

10

Financial Services. That's true. But he is also

11 elected to this position of Chief Financial Officer

12 of the State, which is a separate office. When he

13 exercise the powers given to him by the

14 constitution, he is not the head of the Department

15 of -- the Department of Financial Services, he is

16

the Chief Financial Officer, when he has to sign

17

the statutory powers given to him under Chapter

18

20.121, he's the agency head of the Department of

19

Financial Services. That Department does not have

20

the authority to say, yay or nay to issuing a state

21 warrant. Only the CFO has that final authority.

22

That's easy to understand. When he exercises that

23

final authority, he's a constitutional officer,

24

he's not acting as an agency head, okay. It may be

25

that the legislature could have done it differently PR1MTTR R1PORTTN1


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than that. That's the way they did It, okay.

That's the way the constitution and the statutes

come together.

Now, as far as what they've pled, again, in

Count IV they are pleading the existence of two

contracts. And the case law that we've cited to

the Court is very clear. When a contract is at

issue, the only people whose rights and obligations

under the contract can be declared are those that

are party to the contract or could possibly in the

future become a party to the contract. We've cited

that case to the Court. There is no possibility we

ever were or ever could be become a party to these

two contracts. We have no rights or obligations

because we don!t belong to them. All right.

That's the red herring. You can name anybody you

want to name. But to argue that they can ask them

anything they want because of this, that and the

next thing, is simply to say that the final order

is some including the recommended order backing it

up, probably some forty-something pages long, in

which the CFO explains in great detail why he

decided what he did as a constitutional officer.

They need to go further than that and just argue

with him and say, well, why did you do this, andPRThMTRP PPRT1(850) 894-0828


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than that. That's the way they did it, okay.

That's the way the constitution and the statutes

come together.

Now, as far as what they've pled, again, in

Count IV they are pleading the existence of two

contracts. And the case law that we've cited to

the Court is very clear. When a contract is at

issue, the only people whose rights and obligations

under the contract can be declared are those that

are party to the contract or could possibly in the

future become a party to the contract. We've cited

that case to the Court. There is no possibility we

ever were or ever could be become a party to these

two contracts. We have no rights or obligations

because we don't belong to them. All right.

That's the red herring. You can name anybody you

want to name. But to argue that they can ask them

anything they want because of this, that and the

next thing, is simply to say that the final order

is some including the recommended order backing it

up, probably some forty-something pages long, in

which the CFO explains in great detail why he

decided what he did as a constitutional officer.

They need to go further than that and just argue

with him and say, well, why did you do this, and PRThMTRP PPR11


26

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why'd you do that, why did you do this and why did

you do that?

Once again, the way that is reviewable by the

courts is not in a contract action, alleging

breaches of the contracts to which the CFO or the

Department were not parties. That's reviewable by

the courts in mandamus and in certiorari. This is

not a cert action. Their mandan1us action is

fatally flawed because of what the flaws that are

allegations and mandanius actions are not witness

cases, they're strictly on the law. You don't

call you don't have a bench trial in mandamus

cases. It's all done on paper. So there's nothing

the CFO can say or Mr. Atwater in either capacity

can testify to that would affect the mandamus

action.

So what they want to do is, they want to drag

him through the mud, ask him a lot of questions,

argue with him about his decisions as a

constitutional officer under the guise of examining

an agency head. In neither case, wearing neither

hat, would anything he have to say be probative to

their allegations.

THE COURT: well, I think -- I've heard

enough. I'm ready to rule on this.PR1M1IF.R RIPORTTN(


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why'd you do that, why did you do this and why did

you do that?

Once again, the way that is reviewable by the

courts is not in a contract action, alleging

breaches of the contracts to which the CFO or the

Department were not parties. That's reviewable by

the courts in mandamus and in certiorari. This is

not a cert action. Their mandamus action is

fatally flawed because of what the flaws that are

allegations and mandamus actions are not witness

cases, they're strictly on the law. You don't

call -- you don't have a bench trial in mandamus

cases. It's all done on paper. So there's nothing

the CFO can say or Mr. Atwater in either capacity

can testify to that would affect the mandamus

action.

So what they want to do is, they want to drag

him through the mud, ask him a lot of questions,

argue with him about his decisions as a

constitutional officer under the guise of examining

an agency head. In neither case, wearing neither

hat, would anything he have to say be probative to

their allegations.

THE COURT: well, I think -- I've heard

enough. I'm ready to rule on this. PR1M1IF.R RIPORTTN(


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There1s a lot of inconsistencies going on from

both sides with pleadings and I know it's because

of the nature of this is very unique and difficult

case for both of you. And I understand that. But

we've been researching from the day we started on

this and I've spent a lot of time on this. Itve

got two of my best staff attorneys sitting over

here and theytve worked they're tired of me

asking to look at this angle and look at that

angle, what about this angle and that angle. But

that's not what wetre here the one reason.

You say they're not a party to the contract,

but there's a declaratory judgment action here. In

all of the papers that have been filed by you on

behalf of DFS and that whole report that you just

mentioned says, it's not DM5' property, it's not

their right to do this and that, it's the CFO's

right, or the Comptroller's right, you've got to

combine them off and on all throughout, and only

the CFO has certain authority.

And so, I think the Comptroller in those

arguments make him a party to almost any time you

have any payment required by the State, he's a

party. And you're making him the sole party in

this case. You're makinq him the one and onlyPPMTR1R P('R'PTJ(


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There's a lot of inconsistencies going on from

both sides with pleadings and I know it's because

of the nature of this is very unique and difficult

case for both of you. And I understand that. But

we've been researching from the day we started on

this and I've spent a lot of time on this. I've

got two of my best staff attorneys sitting over

here and they've worked -- they're tired of me

asking to look at this angle and look at that

angle, what about this angle and that angle. But

that's not what we're here -- the one reason.

You say they're not a party to the contract,

but there's a declaratory judgment action here. In

all of the papers that have been filed by you on

behalf of DFS and that whole report that you just

mentioned says, it's not DMS' property, it's not

their right to do this and that, it's the CFO's

right, or the Comptroller's right, you've got to

combine them off and on all throughout, and only

the CFO has certain authority.

And so, I think the Comptroller in those

arguments make him a party to almost any time you

have any payment required by the State, he's a

party. And you're making him the sole party in

this case. You're making him the one and only PREMIER REPORTING (850) 894-0828


W.

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party who can make the call. And I think they have

a right, if due process means anything and I'm

not saying there's anything improper yet, but the

question is, do they have the right to inquire as

to biases that might have affected due process of

the whole -- all the audits? All of the hearing?

And anything else. That's the issue that they've

raised. And they're asking for declaratory

judgment here. They've gone out -- they went back

and tried to take the deposition -- and I like I

said, I originally denied I think Mr. Kneip's

deposition for protective order. The sole reason

was the language in his letter. This is at a much

higher level. This isn't down here at the staff

level. All this -- this has to be handled up here

at this level. And that was in the and that's

why I didn't even have a hearing on that one. It's

very clear that he was involved personally. And

he's saying in his own letter, nobody else.

All of the pleadings here have told me it

doesn't matter what anybody else thinks, the CFO

makes this call. However, I think it's important

that they have a right to inquire as to whether or

not instructions were given all the way up and down

the ladder as the head of DFS or as Comptroller toPRIMTRP PFPORrPTN1


2929

1 party who can make the call. And I think they have

2 a right, if due process means anything -- and I'm

3 not saying there's anything improper yet, but the

4 question is, do they have the right to inquire as

5

to biases that might have affected due process of

6

the whole -- all the audits? All of the hearing?

7

And anything else. That's the issue that they've

8 raised. And they're asking for declaratory

9

judgment here. They've gone out -- they went back

10 and tried to take the deposition -- and I -- like I

11 said, I originally denied I think Mr. Kneip's

12

deposition for protective order. The sole reason

13 was the language in his letter. This is at a much

14

higher level. This isn't down here at the staff

15

level. All this -- this has to be handled up here

16 at this level. And that was in the -- and that's

17 why I didn't even have a hearing on that one. It's

18 very clear that he was involved personally. And

19

he's saying in his own letter, nobody else.

20

All of the pleadings here have told me it

21

doesn't matter what anybody else thinks, the CFO

22 makes this call. However, I think it's important

23

that they have a right to inquire as to whether or

24 not instructions were given all the way up and down

25

the ladder as the head of DFS or as Comptroller to PRIMTRP P}'.PORTTN(


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the people conducting these audits or whatever was

said that would affect the due process and the

final hearing that resolved it on all of this,

based upon this person's testimony, and what I will

hear on the three-day trial we have coming up.

I'm going to deny the motion for protective

order. And I'm going to direct counsel that you

have a very tight leash here. It is a

constitutional officer we're dealing with. I don't

think you have the right to inquire as to all of

his thinking processes. I think you have a right

to inquire as to factual matters and directions he

may have given, or not given, those types of

things. I don't think you can ask him why he did

something other than what his employ, what

instructions and what information he received,

subject to work product requirements from counsel.

I think there's a work product issue going to be

here, too.

So, I'm just telling you, tight leash. If I

have to have a special master sit over it, I will

do that at a certain point, because I'm not going

to have somebody and I don't think counsel is

going to abuse one of our constitutional but

this is heated. It's gotten pretty hot off and onPPRMTJP RPflRrPTTII'


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the people conducting these audits or whatever was

said that would affect the due process and the

final hearing that resolved it on all of this,

based upon this person's testimony, and what I will

hear on the three-day trial we have coming up.

I'm going to deny the motion for protective

order. And I'm going to direct counsel that you

have a very tight leash here. It is a

constitutional officer we're dealing with. I don't

think you have the right to inquire as to all of

his thinking processes. I think you have a right

to inquire as to factual matters and directions he

may have given, or not given, those types of

things. I don't think you can ask him why he did

something other than what his employ, what

instructions and what information he received,

subject to work product requirements from counsel.

I think there's a work product issue going to be

here, too.

So, I'm just telling you, tight leash. If I

have to have a special master sit over it, I will

do that at a certain point, because I'm not going

to have somebody -- and I don't think counsel is

going to abuse one of our constitutional -- but

this is heated. It's gotten pretty hot off and on PPRMTJP RPflRrPTTII'


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throughout here, its a long process, everybody

here's subject to a lot of interest in both

sides here and I understand that. I understand the

significance of it to the person who provided the

material, who's caught and I don't mind telling

you, I'm very concerned throughout this case that

the person who was requested to do the work, did

the work as requested, signed off by everybody,

might be caught in this. And that's the way it

works out, that's the way it works out. The law

might have to be changed. But I'm not going to

allow that to happen without at least having a full

exploration of all the options here and in a

neutral non-bias way.

And I'm not saying there's anything bias

anywhere else, yet. I'm just saying, I think they

have a right to inquire because that will possibly

lead to relevant information concerning the

declaration and including all of the arguments

we've had back and forth through all of this. Who

gets to determine whether it's a fixture or not, is

that the same as whether theres a payment

authorized or not? Who gets deference as to

determinations? Secretary of State, Department of

Management Services? The Comptroller has the finalPREMIER REPORT IN(850) 894-0828


3131

1

throughout here, it's a long process, everybody

2

here's subject to -- a lot of interest in both

3

sides here and I understand that. I understand the

4

significance of it to the person who provided the

5

material, who's caught -- and I don't mind telling

6

you, I'm very concerned throughout this case that

7

the person who was requested to do the work, did

8

the work as requested, signed off by everybody,

9

might be caught in this. And that's the way it

10

works out, that's the way it works out. The law

11

might have to be changed. But I'm not going to

12

allow that to happen without at least having a full

13

exploration of all the options here and in a

14

neutral non-bias way.

15

And I'm not saying there's anything bias

16

anywhere else, yet. I'm just saying, I think they

17

have a right to inquire because that will possibly

18

lead to relevant information concerning the

19

declaration and including all of the arguments

20

we've had back and forth through all of this. Who

21

gets to determine whether it's a fixture or not, is

22

that the same as whether there's a payment

23

authorized or not? Who gets deference as to

24

determinations? Secretary of State, Department of

25

Management Services? The Comptroller has the final PREMIER REPORT IN (850) 894-0828


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say. All of these issues have been raised. And I

don't see how we go through this at all without the

Comptroller1s directions and what have you as to

factual matters and audits and what have you, being

subject to deposition in this particular case.

It1s unique to him. And I think any preconceived

biases that might be out there could possibly

affect the hearing that was held on due process

issue.

MR. DAVIDS0N Your Honor, you1ve had nothing

new given to you today on bias and you rejected

that same argument the last time you heard this.

There's nothing new today that's been given to you.

THE COURT: I think the notices they've tried

to give, the information that are you denying

what he's telling me, that these people told him

that's on the plaza level, we can't do that.

MR. DAVIDSON: Your Honor, what they tell

you what they tell you is simply, I'm not the

decision maker, I assist the decision maker.

THE COURT: There you go --

MR. DAVIDSON: But that's the way it always is

in every level of government.

THE COURT: No. It's quite unique here. It's

quite unique here in this case. I'm going to denyPRFMT.P PI'.PORTTN(


3232

1 say. All of these issues have been raised. And I

2

don't see how we go through this at all without the

3

Comptroller's directions and what have you as to

4

factual matters and audits and what have you, being

5 subject to deposition in this particular case.

6

It's unique to him. And I think any preconceived

7

biases that might be out there could possibly

8 affect the hearing that was held on due process

9

issue.

10

MR. DAVIDSON: Your Honor, you've had nothing

11

new given to you today on bias and you rejected

12

that same argument the last time you heard this.

13

There's nothing new today that's been given to you.

14

THE COURT: I think the notices they've tried

15

to give, the information that -- are you denying

16 what he's telling me, that these people told him

17

that's on the plaza level, we can't do that.

18

MR. DAVIDSON: Your Honor, what they tell

19

you -- what they tell you is simply, I'm not the

20

decision maker, I assist the decision maker.

21

THE COURT: There you go --

22

MR. DAVIDSON: But that's the way it always is

23

in every level of government.

24

THE COURT: No. It's quite unique here. It's

25

quite unique here in this case. I'm going to deny PREMIER REPORTIN(


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the motion for protective order.

Now, let me say this, if you want a stay you

better go to the First District and ask for it.

MR. DAVIDSON: I take it Im required to

ask you for a stay by the Rules.

THE COURT: I'll give you a well, what's

our -- trial date's the 14th?

MR. DAVIDSON: 17th.

MR. BUESING: 17th through the 19th.

THE COURT: The 5th is the date -- and I'm

going to hold to this people. No matter what's

going on on all these other proceedings, unless we

have something else ruled on. We have issues

framing to be resolved by y'all by the 5th and

pretrial information to be done. And I really want

that honed in on because there's been about 1,000

issues thrown out over the last year-and-a-half,

but I think it's one or two issues that will to

resolve the case. And I want y'all to sit down and

make sure you hone in on t. And also, during this

deposition, I want you to keep that in mind. That

the issue that we're really litigating here is

whether there's appropriation that covers this,

whether this particular work fits into it.

MR. DAVIDSON: Your Honor, with all duePR}MTIR R}PORTTN1(850) 894-0828


3333

1

the motion for protective order.

2

Now, let me say this, if you want a stay you

3

better go to the First District and ask for it.

4

MR. DAVIDSON: I take it -- I'm required to

5 ask you for a stay by the Rules.

6

THE COURT: I'll give you a -- well, what's

7 our -- trial date's the 14th?

8. MR. DAVIDSON: 17th.

9

MR. BUESING: 17th through the 19th.

10

THE COURT: The 5th is the date -- and I'm

11 going to hold to this people. No matter what's

12 going on on all these other proceedings, unless we

13

have something else ruled on. We have issues

14

framing to be resolved by y'all by the 5th and

15 pretrial information to be done. And I really want

16

that honed in on because there's been about 1,000

17

issues thrown out over the last year-and-a-half,

18

but I think it's one or two issues that will to

19

resolve the case. And I want y'all to sit down and

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make sure you hone in on it. And also, during this

21

deposition, I want you to keep that in mind. That

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the issue that we're really litigating here is

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whether there's appropriation that covers this,

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whether this particular work fits into it.

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MR. DAVIDSON: Your Honor, with all due PPTMT1.R RI.POR'PT1J(


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respect, that.s not in the pleadings. They haven!t

pled that.

THE COURT: With all do respect, Mr. Davidson,

it's been made the whole subject of this from day

one. I'm overruling you. 11m going to grant a

stay, 24 hours, to apply for whatever you need, to

file what you need to file.

MR. DAVIDSON: Judge, can I ask for 48,

because we1re going to be in mediation all day

tomorrow.

THE COURT: 48 hours will be fine.

MR. DAVIDSON: Thank you.

THE COURT: Let's see, what1s the date?

Today's Tuesday?

MR. DAVIDSON: Yes, sir.

THE COURT: All right. Friday morning by

Friday by noon.

MR. DAVIDSON: Very good.

MR. MAIDA: Your Honor, one final point. And

if the stay is not granted by the District Court of

Appeal, is this Court directing Mr. Atwater to

appear for his deposition?

THE COURT: Since I've given at least the 48

hours, I'm not going to direct that he appear

tomorrow. It will be continued to a date beforePRFMT}UR P1.PflPTTN(


3434

1 respect, that'.s not in the pleadings. They haven't

2 pled that.

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THE COURT: With all do respect, Mr. Davidson,

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it's been made the whole subject of this from day

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one. I'm overruling you. I'm going to grant a

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stay, 24 hours, to apply for whatever you need, to

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file what you need to file.

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MR. DAVIDSON: Judge, can I ask for 48,

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because we're going to be in mediation all day

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tomorrow.

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THE COURT: 48 hours will be fine.

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MR. DAVIDSON: Thank you.

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THE COURT: Let's see, what's the date?

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Today's Tuesday?

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MR. DAVIDSON: Yes, sir.

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THE COURT: All right. Friday morning by --

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Friday by noon.

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MR. DAVIDSON: Very good.

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MR. MAIDA: Your Honor, one final point. And

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if the stay is not granted by the District Court of

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Appeal, is this Court directing Mr. Atwater to

22 appear for his deposition?

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THE COURT: Since I've given at least the 48

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hours, I'm not going to direct that he appear

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tomorrow. It will be continued to a date before PRFMT}UR P1.PflP9TN(


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the trial, before we finalize issues on the 5th,

unless otherwise stated by the Appellate Court.

But not tomorrow. I want them to have a chance to

file their request to the District Court.

MR. MAIDA: Your Honor, our concern is that if

and when a stay is not granted within that 48 hour

period and we try to reschedule it, their just not

going to produce him --

THE COURT: No, I will issue an order on that

if you if we have a problem with the schedule

before the 5th, I'm saying, before the 5th, unless

otherwise stayed by the District Court, that

deposition will be taken. And they will make him

available for that date. If he's not available,

we'll go accordingly.

MR. MAIDA: And Your Honor, since no stay has

been issued with regard to Mr. Kneip, can we also

apply an order directing him to appear?

THE COURT: Yeah, I don't see why he has not

appeared. I'm surprised -- I didn't know about

this. Unless there was a stay, he had a duty to

appear.

MR. BUESING: Well, there was no stay.

MR. DAVIDSON: The First District has issued

an order to which we have responded. They've askedPRRMTPP PP.PORPT1\J?


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the trial, before we finalize issues on the 5th,

unless otherwise stated by the Appellate Court.

But not tomorrow. I want them to have a chance to

file their request to the District Court.

MR. MAIDA: Your Honor, our concern is that if

and when a stay is not granted within that 48 hour

period and we try to reschedule it, their just not

going to produce him --

THE COURT: No, I will issue an order on that

if you -- if we have a problem with the schedule

before the 5th, I'm saying, before the 5th, unless

otherwise stayed by the District Court, that

deposition will be taken. And they will make him

available for that date. If he's not available,

we'll go accordingly.

MR. MAIDA: And Your Honor, since no stay has

been issued with regard to Mr. Kneip, can we also

apply an order directing him to appear?

THE COURT: Yeah, I don't see why he has not

appeared. I'm surprised -- I didn't know about

this. Unless there was a stay, he had a duty to

appear.

MR. BUESING: Well, there was no stay.

MR. DAVIDSON: The First District has issued

an order to which we have responded. They've asked PRRMTPP PP.PORP11\J?


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us to treat our notice of appeal to non-final

orders petition for certiorari. We have filed that

today. They've directed the Appellee to show cause

why the emergency stay order should not be the

order to stay motion should not be granted. And

they have until Friday to do that.

THE COURT: Well, I'm not going to jump in the

middle of their procedure. They've got a

determination proceeding whether the issue of stay,

emergency stay. I'm not going to issue an order in

conflict with that.

MR. BUESING: But they are not denying at this

point

THE COURT: I'm not going to issue any order

that affect that. We'll just have to wait until

after Friday or after any other -- y'all will be

filing a lot of stuff between now and Friday.

We'll see where we are.

But I am putting everybody on notice, we have

short hearing notice. And I've got three and four

days, they're going to be hours if we need to to

get it done.

MR. BUESING: May I appear by telephone if

it's a situation where I'm not in town?

THE COURT: Yes, you may.PRFMTTR RPC)RTT1J(

(850) 894-0828prend er-reporting. com

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us to treat our notice of appeal to non-final

orders petition for certiorari. We have filed that

today. They've directed the Appellee to show cause

why the emergency stay order should not be the

order to stay motion should not be granted. And

they have until Friday to do that.

THE COURT: Well, I'm not going to jump in the

middle of their procedure. They've got a

determination proceeding whether the issue of stay,

emergency stay. I'm not going to issue an order in

conflict with that.

MR. BUESING: But they are not denying at this

point --

THE COURT: I'm not going to issue any order

that affect that. We'll just have to wait until

after Friday or after any other -- y'all will be

filing a lot of stuff between now and Friday.

We'll see where we are.

But I am putting everybody on notice, we have

short hearing notice. And I've got three and four

days, they're going to be hours if we need to to

get it done.

MR. BUESING: May I appear by telephone if

it's a situation where I'm not in town?

THE COURT: Yes,yoPCu may.

PRFMTTR R)RTT1J(

(850) 894-0828 prender-reporting. corn

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MR. BUESING: And, Judge, Mr. Donelan we1ve

got a motion to compel his attendance on October

31st. So, I guess, I'll be talking to your JA

about getting a telephonic hearing on that --

THE COURT: Correct.

MR. BUESING: If it's a lengthy with

attachments, we it1s all in the file there.

It's ready to be read and ruled on if you'd like to

go up here and

MR. DAVIDSON: And, Your Honor, just for the

record, we have had pending for quite some time a

motion for judgment on the pleadings which has

since been amended. And we asked the Court to set

it for hearing. It1s not yet been set. We think

it1s a dispositive motion. I would like to get it

closed sometime before the trial. I don't know --

THE COURT: We're probably going to have --

we're going to try and fit a couple hour blocks in

before the trial to handle all motions that are

pending. But right now, let's proceed. Let's get

ready for trial.

MR. MAIDA: Yes, sir.


MR. BUESING: Thank you, Judge.

(Whereupon, the proceedings were concluded atPRFMTF.R FPORPTN1(850) 894-0828


3737

1

MR. BUESING: And, Judge, Mr. Donelan -- we've

2 got a motion to compel his attendance on October

3

31st. So, I guess, I'll be talking to your JA

4

about getting a telephonic hearing on that --

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THE COURT: Correct.

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MR. BUESING: If it's a lengthy -- with

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attachments, we -- it's all in the file there.

8

It's ready to be read and ruled on if you'd like to

9 go up here and --

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MR. DAVIDSON: And, Your Honor, just for the

11

record, we have had pending for quite some time a

12

motion for judgment on the pleadings which has

13

since been amended. And we asked the Court to set

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it for hearing. It's not yet been set. We think

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it's a dispositive motion. I would like to get it

16

closed sometime before the trial. I don't know --

17

THE COURT: We're probably going to have --

18 we're going to try and fit a couple hour blocks in

19

before the trial to handle all motions that are

20

pending. But right .now, let's proceed. Let's get

21

ready for trial.

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MR. MAIDA: Yes, sir.

23


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MR. BUESING: Thank you, Judge.

25

(Whereupon, the proceedings were concluded at PRFMTF.R HKPOWNTN1 (850) 894-0828


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1 4:45 p.m.)

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PREMIER REPORTING(850) 894-0828

Premier-reporting. com

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PREMIER REPORTING

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(850) 894-0828 Premier-reporting. corn

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CERTIFICATE OF REPORTER

STATE OF FLORIDACOUNTY OF LEON

I, DANA W. REEVES, Professional Court

Reporter, certify that the foregoing proceedings were

taken before me at the time and place therein

designated; that my shorthand notes were thereafter

translated under my supervision; and the foregoing

pages, numbered 3 through 38, are a true and correct

record of the aforesaid proceedings.

I further certify that I am not a relative,

employee, attorney or counsel of any of the parties, nor

am I a relative or employee of any of the parties'

attorney or counsel connected with the action, nor am I

financially interested in the action.

DATED this 29TH day of November, 2012.

DANA W. REEVESNOTARY PUBLICCOMMISSION #EE182380EXPIRES MARCH 22, 2016

9RENIER REPORTING(850) 894-0828


3939

1

CERTIFICATE OF REPORTER

2

3 STATE OF FLORIDA COUNTY OF LEON

4

5

I, DANA W. REEVES, Professional Court

6 Reporter, certify that the foregoing proceedings were

7 taken before me at the time and place therein

8 designated; that my shorthand notes were thereafter

9 translated under my supervision; and the foregoing

10 pages, numbered 3 through 38, are a true and correct

ii

record of the aforesaid proceedings.

12

13

I further certify that I am not a relative,

14 employee, attorney or counsel of any of the parties, nor

15 am I a relative or employee of any of the parties'

16 attorney or counsel connected with the action, nor am I

17

financially interested in the action.

18

DATED this 29TH day of November, 2012.

19

20

21

DANA W. REEVES NOTARY PUBLIC

22

COMMISSION #EE182380 EXPIRES MARCH 22, 2016

23

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25 9RENIER REPORTING (850) 894-0828


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