Filing # 49470997 E-Filed 11/30/2016 05:39:36 PM

IN THE CIRCUIT COURT FOR THE THIRTEENTH JUDICIAL CIRCUIT

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL DIVISION
SEAFARER EXPLORATION CORP.,

CASE NO.: 14 CA-8902

Plaintiff,
vs.

DIV: L

DARRELL VOLENTINE,
Defendant.
_____________________________________________/
DEFENDANTS MOTION TO VACATE THE COURTS ODER GRANTING AWARD
OF PLAINTIFFS ATTORNEYS FEES FOR APRIL 07, 2016 HEARING
Defendant, DARRELL VOLENTINE, by and through his undersigned counsel, files
this Motion to Vacate the Courts Order Granting Award of Plaintiffs Attorneys Fees for
April 07, 2016 Hearing (the Order) in accordance with Fla. R. Civ. P. 1.540(b), and states
the following:
BACKGROUND
1.

On May 18, 2016, the Court did enter an Order, inter alia, granting an award

of those Plaintiffs attorneys fees which had accrued as a result of prosecuting what the
Plaintiff alleged was a violation of the October 24, 2014 Injunction (the Injunction).
2.

The Order was entered subsequent to an April 07, 2016 hearing (the

Hearing) on two motions: Plaintiffs Motion for Order to Show Cause, filed December
06, 2015, and Defendant's Motion for Criminal Contempt against Attorney Craig Huffman
and Cleartrust LLC, filed March 01, 2016. The Court denied both Motions but awarded
attorney's fees to Craig Huffman for bringing Plaintiffs Motion for Order to Show Cause.
3.

The Order was entered, however, under factual findings made by the Court

which were based on the inaccurate, whether mistaken or intentionally misrepresented,

testimony of the Plaintiffs witness, Kyle Kennedy.

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RULE OF LAW AND JURISDICTION

The Florida Rules of Civil procedure provide that, [o]n motion and upon

4.

such terms as are just, the court may relieve a party or a party's legal representative from
a final judgment, decree, order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect ... (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse
party. Fla. R. Civ. P. 1.540.
5.

This Motion is timely filed in accordance with Fla. R. Civ. P. 1.540(b).

6.

The purpose of rule 1.540(b)(5) is to enable the court to grant relief against

an unjust decree, and [it] should be liberally construed to advance such a remedy. Id.
(Citing Cutler Ridge Corp. v. Green Springs, Inc., 249 So. 2d 91, 93 (Fla. 3d DCA 1971)).
The Court retains jurisdiction to hear this Motion. Normally, after rendition

7.

of a final judgment the trial court loses jurisdiction over the case, but rule 1.540 provides
an exception. Travelers Commer. Ins. Co. v. Harrington, 187 So. 3d 879, 884 (Fla. 1st
DCA 2016). (Citing Bank One, Nat'l Ass'n. v. Batronie, 884 So. 2d 346, 348-49 (Fla. 2d
DCA 2004)).
KYLE KENNEDYS TESTIMONY
8.

At the Hearing, Kyle Kennedy, the CEO of Plaintiff, was sworn in by the

Court. (Transcript of the April 7, 2016 Hearing filed with the Court by the Plaintiff on July
01, 2016, hereinafter T, at 45/6-8).
9.

Mr. Kennedy testified that he was familiar with the postings contained in

Exhibit A (Plaintiffs Exhibit A) filed December 06, 2015 in conjunction with the Plaintiffs
Motion for the Order to Show Cause. (T 46/18-211).
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10.

Mr. Volentine asserts that the following sworn testimony as delivered by Mr.

Kennedy at the Hearing was patently incorrect (emphasized, infra) and, further, was
material to the Courts determination in that April 07, 2016 Hearing and the subsequent
Order:
a. Mr. Kennedy first testified about the posting dated July 23, 2015.
(T 47/23). Mr. Kennedy testified that there was information in the posting
prejudicial to the company:
HUFFMAN: All right. And are those postings then do those postings reveal
any information that is prejudicial to the company and untrue -- that you
see?
KENNEDY: Yes. (T 48/7-10)
b. To bolster that inaccurate contention, Mr. Kennedy referred to the posting
dated July 19th. Kennedy read the post into the record and the Court did rely
on his representation that the posts were made on the Seafarer Exploration
board:
HUFFMAN: Can you give me an example?
KENNEDY: Sure.
HUFFMAN: And, if you could, read us the date.
KENNEDY: This is an example. Here's one on 7.19. it's the one in front of
me.
HUFFMAN: 7.19 of what year?
KENNEDY: 7.19.2015. It says, I held the stock and other scammy, trashy,
so called cover stocks before and they all lost value. Because unknown to
3

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shareholders, they were meant to be scammy from the beginning. E-A-H

and then O-R-V. I don't know what that means. More ammo for their evil
master. That was in reflection to me. But remember, some ducks were
never meant to fly. But this one is real. Glad to be part of it. (T 48/17-25).
THE COURT: What in there, in your estimation, has referred it to your
company? None of the part you read did.
KENNEDY: This [sic?] all of these posts are posted under Seafarer
Explorations post.
THE COURT: l see, they're -- they're in the group. (T 49/1-7).
c. Mr. Kennedy then referenced a post that contained the word koward
spelled with a K and speculated to the court, lacking basis, foundation, and
personal knowledge, as to the mindset of Mr. Volentine:
HUFFMAN: Mr. Kennedy, on the coward that is spelled with a K, have you
seen other references to the K and who that is meant to be?
KENNEDY: Yes.
HUFFMAN: Who is that meant to be?
KENNEDY: It's meant to reflect me because of my initial KK.
(T 50/16-21).

RECONCILING THE EVIDENCE

11.

The Plaintiff's Motion for Order to Show Cause, heard at the Hearing, is

based upon the postings contained within Plaintiffs Exhibit A. Contrary to the sworn
4

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testimony of Mr. Kennedy, none of the postings in Plaintiffs Exhibit A were posted under
Seafarer Exploration or on the Seafarer Exploration board. All of the postings contained
within Plaintiffs Exhibit A, and all of the postings Mr. Kennedy testified about were
posted about, and on, the board of Endurance Exploration, another company which Mr.
Volentine is interested in, and with which neither the Plaintiff, nor its affiliates had, relevant
to the time period in question, any affiliation known to Mr. Volentine.
12.

Insofar as the posts relied on by the Court in its ruling at the Hearing are

in no way attributable in their nature or through implication as reference to the Plaintiff or

its affiliates, but are instead directly attributable, as intended by Mr. Volentine, as
reference to Endurance Exploration, Mr. Kennedys contention that untruthful information
prejudicial to Seafarer Exploration was proffered by Mr. Volentine after the entry of the
Injunction is entirely without merit.
13.

Mr. Kennedy lacks the requisite basis, foundation, and personal knowledge,

and failed to present evidence showing otherwise, to testify as to the mindset of Mr.
Volentine or to Mr. Volentines intentions as they relate to the posts offered in Plaintiffs
Exhibit A. In conformity with Fla. Stat. 90.604, Mr. Kennedy should have never been
allowed to speculate as to Mr. Volentines mindset or intentions.
14.

Mr. Volentines posts on the Endurance Exploration board were meant as a

testament as to his belief in the integrity of that Endurance Exploration, and neither as
disparaging to, nor as reference in any way to, Seafarer Exploration.
15.

More than 6 months subsequent to the Hearing, the Plaintiff did stipulate

that none of the posts on Plaintiffs Exhibit A used at the April 7, 2016 hearing were

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posted on the actual Seafarer Exploration Board of Investorshub.Com. (See Plaintiffs

Notice of Correction filed with the Court on October 18, 2016).
CONCLUSION
16.

The Plaintiff and its Counsel either knew or should have known that its

Motion for Order to Show Cause was not supported by the material facts necessary to
establish its claim when the Plaintiff initially presented the claim to the court or at any time
before trial.
17.

The Plaintiff and its Counsel did know that its presentation of the evidence

at the Hearing was materially inconsistent both with its pleadings and as an accurate
representation of the facts
18.

The Court did rely in good faith on the inaccurate evidence as presented by

the Plaintiff, both in hearing the Parties motions, and in ruling on those motions. In
reliance on the inaccurate evidence offered by the Plaintiff the Court did, at the Hearing,
view Mr. Volentine in a negative light and stated:
You know, I've got to wonder what goes through the mind of [Mr.
Volentine] when he agrees to an injunction that says he won't do stuff and
then turns around and is going to do it anyway. I mean, it's not the kind of
thing a rational person does because it exposes you to a lot of legal liability
that even if the things that he said were opinion... (T 54/23-25, 55/1-5).
And as a result, the things that [Kyle Kennedy] read to me while he
was under oath are the kinds of things that you're just not allowed to do. So
those findings are good enough to support the idea that [sic] was necessary

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to bring a proceeding to enforce the injunction and falls within the exception
of the Attorney Fee Shifting Rule. (T 55/15-21).
19.

The Plaintiff never took action to voluntarily dismiss its action or to amend

its pleadings prior to the Hearing, or to bring timely notice to the Court of the inaccuracies
of its evidence as presented at that Hearing.
20.

Mr. Volentine, having had to defend himself at the Hearing, having been

ordered to pay the attorneys fees of the Plaintiff which have accrued as a result of
prosecuting the Hearing, and having to continue in ongoing litigation as a result of the
Hearing, has been, and continues to be, subject to an unjust financial hardship, not limited
to those costs of litigation arising from this action.
21.

Defendant requests that the Court:

a. VACATES the Courts order awarding the Plaintiff attorneys fees for the
April 07, 2016 Hearing, consistent with Fla. R. Civ. P. 1.540(b) (1) or (3),
b. and accordingly DISMISSES the December 07, 2016 hearing for
determination of the Plaintiffs attorneys fees;
c. VACATES the Courts ruling with regard to the denial of the Defendants
Motion for Criminal Contempt and for Sanctions against counsel for the Plaintiff
and Cleartrust, LLC;
d. VACATES the Courts ruling with regard to the $2,500 supplemental fine;
e. and STRIKES the Plaintiffs December 06, 2015 motion leading to, and Mr.
Kennedys testimony heard at, and any other evidence offered by the
Plaintiff in relation to, the May 18, 2016 Hearing.

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WHEREFORE,

defendant

DARRELL

VOLENTINE by

and

through

the

undersigned counsel, requests that the Court enter an Order granting this motion and
grant such other relief as is consistent with this motion.

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Motion was served by
e-mail and JAWS upon all parties of record this 30TH day of NOVEMBER, 2016.
Respectfully Submitted,
/s/ Nathaniel C Griffin
NATHANIEL C GRIFFIN

123820
Fla. Bar No.

The Janus Law Group, P.A.

Counsel for DEFENDANT
1110 Pinellas Bayway S, #202
Tierra Verde, FL 33715
(e) nglaw@yahoo.com
(c) 727.459.7891

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