IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

CASE NO.: 1l-08592 CA 40

COMPLEX BUSINESS LITIGATION

PONTE GADEA DUPONT, LLC, derivatively on behalf of DP PROPERTY HOLDING, LLC, A Florida limited liability company,

Plaintiff
V.

UC NORTH DEVELOPMENT, LLC, a Florida limited liability company, DUPONT PROPERTY HOLDING, INC., a Florida corporation, DP PROPERTY HOLDING,LLC, a Florida limited liability company, EPIC WEST CONDO,LLC, a Florida limited liability company, and CMC CONSTRUCTION, [NC., a Florida corporation,
Defendants.

PLAINTIFF'S MOTION FOR RECONSIDERATION OF ATTORNEYS' FEE A\ryARD

Plaintiff Ponte Gadea Dupont, LLC, derivatively on behalf of DP Property Holding,LI-C,
moves this Court to reconsider and vacate the portion of its Septe mber 27 , 20 1 1 Order Granting

Defendant Dupont's Motion for Protective Order Postponing Deposition Scheduled for Rosh
Hashanah that awards Dupont attorneys' fees against Plaintiffs counsel. The grounds for this

Motion are set forth below.

1.

Defendant Dupont's Motion for Protective Order, filed on September

27

,2011, omits

to inform the Court that

Plaintiff

set the depositions

ofthe representatives from BB&T for September

29,2011, upon the agreement of counsel for all parties after two separate conference calls on
SeptemberT and8,2011. Onthoseconferencecalls,allcounselagreedtoaschedulethatprovided for Plaintiff to take the depositions of two third-party witnesses from BB&T before the depositions

of Plaintiffs' offrcers from Spain during the week of October 3,2011.

2.

The parties initially agreed to Friday, September 23,2011 for the depositions of

BB&T's representatives. However, the BB&T witnesses and their counsel were not available on that
date.

3.
a

During one ofthe scheduling conference calls, Mr. Kaplan indicated that he may have

conflict with one ofthe dates discussed for depositions, but that if so, he would send someone from

his office to attend in his place. Plaintiff relied on that statement in agreeing to make its witnesses

available during the week

of October 3,2011. Had the Defendants not agreed to the BB&T

s

depositions going forward before those ofthe Plaintiffl

witnesses, Plaintiff would have chosen other

dates for the depositions of its witnesses from Spain. By first agreeing to the dates, and then later asserting a conflict that was never mentioned on either conference call, the Defendants prejudiced

Plaintiff.

4.

On September 12, 2011,

undersigned advised

all

counsel that the BB&T

be noticed

representatives were available on September 29,201

I for deposition, and would

for

10

a.m. and

p.m., respectively. There was no objection from any of the Defendants' attorneys.

Plaintiff sent the Notices of Deposition for BB&T's witnesses on September 19, 201I.

5.

On September 21, 2011, Mr. Kaplan called Kelly R. Melchiondo to advise that

September 29,2011 was Rosh Hashanah, and to request that the deposition be moved. Ms.

Melchiondo asked if there was anyone else at Coffey Burlington who could attend the deposition in

Mr. Kaplan's place. Mr. Kaplan advised that no one from his firm could attend.

6.
the attorney for

Plaintiffls counsel made every effort to reschedule the deposition. Counsel spoke to BB&T about moving the depositions to Wednesday, September2,2}ll, but BB&T

was not available. Counsel also asked Defendants

201.1, and
7

if they were available on Friday, September 30,

Mr. Kaplan, and BB&T's attorney, advised that they were not available.
On September26,20lI,Kelly R. Melchiondo called Mr. Kaplan again to advise that

Plaintiff was having extreme difficulty in rescheduling the depositions according to the schedule to which the parties had all agreed, whereby the BB&T depositions would take place before the
depositions of Plaintiffs officers from Spain. Ms. Melchiondo again asked

if

anyone at Coffey

Burlington could attend instead of Mr. Kaplan, and again, Mr. Kaplan refused. Only then did Mr.
Kaplan mention that his clients were also unable to attend because of Rosh Hashanah.

8.

There are four defendants, each ofwhom has been represented by counsel at all

depositions so far. Counsel's request that Mr. Kaplan send another attorney from his firm was not
unreasonable, given the difficulties Plaintiff has encountered in scheduling these depositions. As

it

stands, one of the BB&T witnesses

will now be out of town until at least October 10, 2011.

Therefore, Plaintiff

will not have the opportunity to adhere to the schedule to which the parties

originally agreed.

9.

The Court should reconsider and vacate the portion of its September27,201

Order

Granting Dupont's Motion for Protective Order, to the extent that it awards attomeys' fees against

Plaintiffs' counsel, without permitting Plaintiffls counsel to explain the circumstances that led to its position. In his entire career, Plaintiffls counsel has never been sanctioned. A finding of sanctions
here, without even hearing

Plaintiff s explanation

of the circumstances, is not consistent with Florida

law.

10.

Moreover, Plaintiff did not arbitrarily select the September 29,2011 date, nor did it

refuse Mr. Kaplan's request out of disrespect for Mr. Kaplan's or his clients' religious beliefs.

Rather, Plaintiff was merely trying to enforce the dates to which the parties agreed, after two
scheduling conference calls, to avoid the great difficulty Plaintiffhas now encountered in scheduling the depositions according to the availability of the two BB&T witnesses, their attorney, and all of the attorneys on Defendants' side.

WHEREFORE, for the foregoing reasons, Plaintiff Ponte Gadea Dupont, LLC, derivatively
on behalf of DP Property Holding,LLC, respectfully requests that this (i) Court grant this Motion,

(ii) reconsider and vacate its attomeys' fee award against Plaintiffls counsel, and (iii) award all other
such reliefas

isjust and proper.

Respectfully Submitted, STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A. Attorneys for Plaintiff Ponte Gadea Dupont, LLC, derivatively on behalf of DP Property Holding, LLC Suite 2200, Museum Tower 150 West Flagler Street Miami, Florida 33130
Telephone :
Facsirn ile ;,3
305 05

-7 89

-3200
9

-7 89 -33

UGENE E. STEARNS lorida Bar No. 0149335

e

stearns @ stearnsweaver. com

KELLY R. MELCHIONDO Florida Bar No. 0582603

kmelchiondo@steamsweaver. com MARY BARZEE FLORES Florida Bar No. 797235 mbarzeefl ore s@stearnsweaver. com A. HI.]NT MARCKV/ALD Florida Bar No. 016744 hmarckwald@steamsweaver. com

CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that
a

true and correct copy of the foregoing was served this 27th

day of September,20ll, via e-mail and U.S. Mail, upon all counsel on the service list below.

Thomas K. Equels, Esq. teq uel slAeq uel s law. com Equels Law Firm 2601 S. Bayshore Drive Suite 600 Miami, Florida 33133 Attorney for DP Property Holding, LLC nd Epic l/est Condo, LLC Thomas Manick, Esq. tm@manicklaw.com Law Offices of Thomas Manick, P.A. 3059 Grand Avenue Suite 300 Miami, Florida 33133 Attorneyfor UC North Development, LLC and CMC Construction, Inc.

Robert Burlington, Esq. rburlin gton@ coffeyburlington. com Kevin C. Kaplan, Esq. kkaplan@coffeyburlin gton. com

Coffey Burlington 2699 S. Bayshore Drive

Penthouse

Miami, Florida 33133 Attorneys for Dupont Property Holding, Inc.

Clinton D. Flagg, Esq. cflagg@flagg-law.com The Law Offices of Clinton D. Flagg, P.A. Suite 112, Poinciana Professional Park 2640 Golden Gate Parkway Naples, Florida 34105 Attorney for CMC Construction, Inc.