Friday, November 29, 2019

LUXCOM update – Palmetto Bay filed a strong response, objecting to LUXCOM’s last-minute motion to allow the filing of an Amended Petition. 2 depositions of experts are set for Dec 5 & 6.

The parties are making final preparations for the December 18-20 Final Hearing set in this case.  First  the small bites, the deposition updates:

  • 12/05/2019, 09:30 AM, the deposition, of Michele C. Mellgren, Petitioner’s Expert Witness, is set to be taken by attorneys for Palmetto Bay.
  • 12/06/2019, 10:00 AM, the deposition of Mark Alvarez is set to be taken by the attorney for Petitioner, LUXCOM.

Now the big issue.  Palmetto Bay filed a Response in Opposition to Petitioner Motion for Leave to Serve Amended Petition(CLICK HERE to view online). 

For background, CLICK HERE, to view the PRIOR RELATED POST of November 25, 2019, LUXCOM filed a last-minute motion to allow the filing of an Amended Petition (total 647 pages).  

As I stated in that post, LUXCOM's right to file this amended petition is far from automatic. The judge has to approve this motion, to allow the filing of this amended petition. The Judge may DENY this motion and force LUXCOM to try this case on December 18th based solely upon the original petition.

The amended petition is based upon an expert hired by Luxcom, identified as Michele C. Mellgren, AICP, identified as a professional urban planner and the principal of The Mellgren Planning Group, Inc. You can review her report, identified as ‘Exhibit "Q-1”’ located on Page 564 of 647.

Palmetto Bay has objected, correctly pointing out the the court numerous issues as t why this proposed amendment is untimely and prejudicial to Palmetto Bay. I strongly recommend that time is taken to read this response in full. Palmetto Bay’s attorneys argue that this Amendment should be rejected by the judge for many good reasons:

First, the Amendment at this late stage is untimely. Palmetto Bay’s attorneys argue that the Petitioner should have known the alleged shortcomings of the Plan Amendment when filing its original Petition. 

Prejudice to Palmetto Bay. It is argued in the Response that any permission to allow amendment to the proceedings, after conclusion of written discovery, would be prejudicial to Palmetto Bay. 

Palmetto Bay’s attorneys argue that Petitioner’s Amendment “…should not be permitted to delay the final hearing, as any exigency is caused entirely by Petitioner’s strategic decision to spring the Expert Report and Amended Petition less than four weeks prior to final hearing.” (emphasis added).

Finally, as stated by Attorneys for Palmetto Bay:
The Expert Report is a sort of Trojan Horse, by which numerous new issues or new nuances of argument are to be introduced into the proceedings, without clear and concise statement of which portion of the Amended Petition governs the proceedings
IMPACT: one of two things will happen. First (and most likely) – the motion to amend will be DENIED by the court and the case will proceed to trial solely upon the original Petition filed August 28, 2019, due to the untimeliness of this last-minute Amendment, or (and much less likely, but possible), the motion will be granted, but a continuance will be required to prevent prejudice to Palmetto Bay.

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