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Filing# 140847291 E-Filed 12/22/2021 02:24:53 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CIVIL DIVISION
TINA CACCAVALE
Plaintiff.
V Case No. CACE 19-019990
UNIVERSAL PROPERTY & CASUALTY
INSURANCE COMPANY
Defendant.
i
PLAINTIFF' S MOTION FOR PROTECTIVE ORDER
COMES NOW, the Plaintiff,TINA CACCAVALE ("Plaintiff'),
by and through
moves for a protective
the undersigned counsel, and pursuant to Fla. R. Civ. P. 1.280(c),
order limitingthe scope of any discovery and/or regardingthe depositionsof any forer
employees of Merlin Law (i)Kelly Kubiakl;(ii)Donna Alvarez;
Group, PA, particularly
(iii)Sandra Baldinelli;(iv) Farana Bradley; and (v) Tina Caccavale. As grounds of
support thereof,Plaintiff states the following:
Relevant Facts
1. This case arises from a property insurance claim made by Plaintiff to her
insurer, Defendant, Universal Property Insurance Company ("Defendanf'). Plaintiff
retained Merlin Law Group via a contingency fee agreement.
2. On or about late January 2021, Plaintiff s counsel notified Merlin that she
was leavingMerlin' s employ and startingher own law firm.
3 On February 1, 2021, Plaintiff dischargedthe Merlin law firm and elected
2
to have Kelly Kubiak, Esq. continue to represent her at her new firm
land/or Kubiak Law Group, PLLC
2
Attached hereto as Exhibit A.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/22/2021 02:24:52 PM.****
4. On or about March 18, 2021, Merlin field a Notice of Charging Lien in
this matterl
5. The partiessettled this matter through Mediation with retired Judge Tom
Lynch on July 26,2021. A copy ofthe Mediation DispositionReport is attached hereto as
Exhibit "C"
6. By dated October 14, 2021, Merlin' s attorney(s)
requestedthe depositionsin this matter4-
Introduction
What would normally be charging lien matter between
a simple,straight-forward
a law firm and one of its former attorneys/employees appears to have devolved into
"delay at all as well as an attempt
costs" litigation by Merlin to obtain discovery for the
Hillsborough County case it filed againstPlaintiff s counsel. Tactics such as these are
not uncommon with the Merlin Firm5. Because of the foregoing,and pursuant to Fla. R.
Civ. P. 1.280(c), requests that this Honorable Court grant its Motion
Plaintiff respectfully
for Protective Order as referenced below6.
Memorandum of Law
Plaintiff requests a protectiveorder regarding these discovery and depositions
pursuant to Fla. R. Civ. P. 1.280(c)which states in pertinentpart, as follows:
3
Copies of the Charging Lien is attached hereto as Composite Exhibit B.
4
A copy ofthe emaiFcorrespondence is attached hereto as Composite Exhibit D.
t?One federal courl judge.@pgcificqllystated that Merlin litigatedin bad faith. In Auto Owt-ers v. Summit
Park, (Order attached as Exhibit Ej, Merlin' s litigation tadtics were so outrageous that a federal district
court judge personally sanctioned two of Merlin's Florida-based attorneys $354,350,65 in fees and
expenses.
The judge noted that "it is proper to attribute (the individual MLG attorney's) bad faith to the Merlin
Firm given that the lawyers' actions were indistinguishablefrom those of [thel firm and in opposing Ithe
sanctions, the firm consistently accepted responsibility for conducting the underlying litigation." p.10.
Notably, a United States Court of Appeals affirmed the court' s ruling(Order attached as Exhibit F). While
reference to such other matters is not normally relevant, given the nature of Merlin' s litigation
tactics here,
it is pertinentfor the Court to have a clear understanding and context of how, and what, Merlin is doing in
this matter.
6
In the Wherefore paragraph.
2
Upon motion by a party or by the person from whom the
discovery is sought, and for good cause shown, the Court in
which the action is pending may make any order to protect a
party or person from annoyance, embarrassment, oppression,or
undue burden or expense that justicerequires,includingone or
more ofthe following(1)that the discoverynot be had; (2)that
discovery be had only on specified terms and conditions,
includinga designationof the time or place;(3) that discovery
may be had only by a method of discovery other than that
selected by the partiesseeking discovery; (4) that certain
matters not be inquiredinto,or that the scope of the discovery
be limited to certain matters; (5) that discovery be conducted
with no one present except persons designatedby the Court; (6)
that a depositionafter being sealed be opened only by order of
the Court; (7) that a trade secret or other confidential research,
development,or commercial information not be disclosed or be
disclosed only in a designated way; and (8) that the parties
simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed by the
Court.
I). THE VALUE OF MERLIN' S CHARGING LIEN IS THE ONLY ISSUE
BEFORE THE COURT; NOT THE VALUE OF ATTORNEY KUBIAK
AND/OR KUBIAK LAW GROUP, PLLC' S LEGAL SERVICES.
Stated in its simplestterms, Plaintiff originallycontracted with Merlin firm for
legalservices to be provided by attorney Kelly Kubiak, her associates,and legalstaff.
Plaintiff and Merlin entered into a written contingency fee agreement. After attorney
Kubiak left Merlin' s employ, Plaintiff dischargedMerlin as Plaintiff s attorney. Plaintiff
then elected to retain attorney Kubiak at her new firm to continue representingPlaintiff in
the underlying case. Merlin subsequentlyfiled a charging lien for fees and costs. These
facts are undisputed.
Searcy, Denney, Scarola, Barnhardt & Shipley,P.A. v. Polet, 651 So.ld 366 (jAa.
1995), holds that when a discharged law firm files a charging lien to recover fees and
'
costs, the Court' s role is to determine the value' of the discharged law firm's charging
lien (emphasis added).
3
To brieflysynopsize the pertinentfacts of Searcy,Taylor was a Florida licensed
attorney at the Searcy law firm and was assigned to work on the Poletz casel He
eventuallyleft the firm for other employment opportunities.Shortly thereafter,the
parents of Poletz discharged the Searcy law firm and retained Taylor at his new firm.
The Searcy law firm ultimatelyfiled a charging lien for fees and costs; and litigation
ensued over the value of Searcy's charginglien.
Searcy appealed the Court' s decision that their fee "should be determined by
using the Rowe factors but no contingency risk multipliershould be applied".Searcy at
367. The Florida Supreme Court stated that "we are now asked to decide whether the
lodestar method of computing reasonable attorneys fees... should be applied..."
Searcy at 368. The Court held that it should not; and reasoned as follows:
". . . the time reasonably devoted to the
while
and
representation a reasonable hourly rate are factors to be
considered in determining a proper quantum meruit award,
the courtmust consider all relevant factors surroundingthe
professionalrelationshipto ensure that the award is fair to
both the attorney and client. See Reid, Johnson, Downes,
Andrachik & Webster v. Lansbero, 68 Ohio St.3d 570,629
N.E.2d 431, 436-437 (1994) (totalityof circumstances
surrounding each situation should be considered in
determiningreasonable value of dischargedcontingent-fee
attorney's services in quantum meruit).Application of the
factors set forth in Rule Regulating The Florida Bar 4-
may provide
1.5(b),48 a good startingpoint. However,
7
Taylor spent approx. 340 hours working on Poletz. The case involved a traumatic brain injury.
8
Rule regulating the Florida Bar 4-1.5 provides the following factors to be considered in determining a
reasonable fee:
(1) the time and labor required, the novelty, complexity, and difficulty
of the questions involved, and the
skill to
requisite perform the legal service properly;
(2) the likelihood that the acceptance of the particular
employment will preclude other employment by the
lawyeri
(3) the fee, or rate of fee, customarilycharged in the localityfor the legal services of a comparable or
similar nature;
(4) the significance of, or amount involved in, the subject matter of the representation,the responsibility
involved in the representation, and the results obtained;
(5) the time limitations imposed by the client or by the circumstances and, as between attorney and client,
any additional or specialtime demands or requests of the attorney by the client;
(6) the nature and length of the professionalrelationship
with the client;
(7) the experience,reputation,diligence,and ability of the lawyer or lawyers performing the service and the
skill,expertise,or efficiencyof effort reflected in the actual providing of such services; and
4
because the factors relevant to the determination of the
reasonable value of services rendered will vary from case
to case, the court is not limited to consideration of
the Rowe factors. The court must consider any other factors
surroundingthe professional that would
relationship assist
the court in fashioning an award that is fair to both the
attorney and client. For example, the fee agreement itself,
the reason the attorney was discharged,actions taken by the
attorney or client before or after discharge,and the benefit
actuallyconferred on the client may be relevant to that
determination. The determination which factors are
as to
relevant in a given case, the weight to be given each factor
and the ultimate determination as to the amount to be
awarded are matters within the sound discretion of the trial
court". Searcy at 369.
Importantly,neither Searcy nor any of its progeny hold that a necessary step in
determining the value of the discharged law firm's charging lien is also determining the
value of the successor law firm's legalservices. Searcy was clear that the Court' s focus
on valuing'the legalservices o f the discharged law firm when it
'
is said:
In determining attorney fee to award to law firm that was discharged by client
from contingency fee contract, trial court should have considered totalityof
time reasonablyexpended and
factors present in case, instead of only considering
reasonable hourly rate for services. Searcy,Headnote [2]'.
II). MERLIN'S ASSERTION THAT THIS COURT MUST ALLOW
DISCOVERY10 AND MUST DETERMINE THE VALUE OF ATTORNEY
KUBIAK AND/OR KUBIAK LAW GROUP' S LEGAL SERVICES PRIOR
TO ITS DETERMINATION OF THE VALUE OF MERLIN' S CHARGING
LIEN IS A LEGAL FICTION BASED IN NEITHER LAW NOR FACT.
Defendanf s Motion to Compel Depositions falselyasserts that this Honorable
Court, in essence, is compelled to (i)allow Defendant to conduct discoveryinto the legal
(8) whether the fee is fixed or contingent,and, if fixed as to amount or rate, then whether the client's ability
to pay rested to any significantdegree on the outcome of the representation.
g
One noteworthy case thatreiterakswhat Searcy standsfor is Scherer v. Austin Roe Basquill, P.A., 2021
Hl 2446947, (2ndDCA). While the case involved a partner of a law firm leavingto start his own law firm
(as opposed to the instant matter where the departing attorney was neither a partner nor had any equity in
the firm), Scherer is an example of the Searcy progeny that looked to the Fla. Bar Rule 4-1.5 factors.
Additionally, the Scherer court also looked at the identical factors that the Florida Supreme Court looked to
when deciding the value' of the discharged firms legal services using a modified quantum meruit
'
application. Notably, nowhere does it suggest that the Court must, and/or even should, look at the
departinglawyer's legalservices (post-departure) nor the'value' ofthe departinglawyer's legalservices.
10
Regarding legal services provided by the successor law firm and the' value' of said services.
'
5
services provided to Plaintiffs by attorney Kubiak and/or Kubiak Law Group, and (ii)
Kubiak and/or Kubiak Law Group' s legalservices
'
must factor in the value' of attorney
providedto Plaintiff after Merlin was dischargedas its attorney, to wit:
Thus, for example, to determine the value of the services that should be
76.
awarded to MLG, the case law is clear (emphasis added) that one must consider
the value of the services that MLG provided (as against the value of the services
provided by KLG11) (emphasis added). Thus, if KLG settled the case one day or
very soon after the case was transferred to them, and little or no work of "value"
was performed, KLG is not entitled to a windfall of the entire contingency minus
the hourly fee determination. Instead,the Court would award MLG the entire fee
of that fee to the former counsel (MLG), since KLG did not provide sufficient
value to the client to warrant any fee (emphasis added).
Seemingly the one, and only,point that Plaintiff and Defendant can agree on in
this matter is that Searcy does speak to charging lien issues in Florida such as this.
Searcy says the "totality05 circumstances surrounding each situation should be
cons idered in determining reasonable value of discharged contingent-feeattorney's
services in quantum meruit" Id. at 369. After that,the partiesdiffer greatlyas to what
Searcy stands for.
Searcy addresses a specificissue
- [H]ow courts throughout the state of Florida
should value' a discharged law firm's (emphasis added) legalservices in the context of
'
a charginglien that is based on a contingency fee contract.
Merlin asserts that it is entitled to conduct discovery into the successor law firm' s
legal services provided to its ex-client. Further, Merlin asserts that this Court is
'
necessarilycompelled to value' the successor law firm' s legal services before it can
'
determine the value' of the discharged law firm' s legalservices. Neither Searcy nor the
Florida Bar Rule 4-1.5 stand for such an absurd proposition. Stated another way,
allowing such discovery opens up a Pandora' s box of discovery that is irrelevant and
11
Kubiak Law Group, PLLC
6
violative of, among privilegedcommunications
other things,Plaintiff s attorney/client
with Plaintiff s chosen lawyer(s).
As noted above, Plaintiff/Caccavale and Merlin are the two partieswho entered
into a contractual relationship.The Caccavale/Merlin fee agreement serves as the basis
of the charging lien. Merlin' s charging lien is at issue. That is the only charging lien at
issue. What the successor law firm has done since Merlin was dischargedis wholly
irrelevant. Proof is in the fact that even a cursory review of all the factors referenced by
Florida Bar Rule 4-1.5, as well as the factors set forth by the Florida Supreme Court in
Searcy, makes it apparent that the Court' s sole focus is on the discharged law firm as
opposed to the successor law firm. There is no suggestion,much less an assertion,by
either the Florida Supreme Court and/or the Florida Bar that a successor law firm' s legal
services somehow are relevant to a dischargedlaw firms charging lien. Such claims are
simply a legalfiction created by Merlin.
III). THE 'VALUE' OF EITHER ATTORNEY KUBIAK AND/OR KUBIAK
LAW GROUP' S LEGAL SERVICES PROVIDED TO PLAINTIFF AFTER
MERLIN'S DISCHARGE IS IRRELEFANT TO THE 'VALUE' OF
MERLIN' S CHARGING LIEN.
Neither Searcy, its progeny, nor Florida Bar Rule 4-1.5 contemplate that in a
charging lien casel2 a Court must (i)allow discovery related to the successor law firm' s
legalservices,or (ii)place a value' on the successor law firms legalservices.
'
Such a
request by Defendant is wholly irrelevant.
Relevant evidence is evidence that tends to prove or disprove a material fact. Fla.
Stat. §90.401. Analogous to a Motion in Limine when one party to a lawsuit is
attemptingto introduce irrelevant evidence to a jury,evidence on a purely collateral issue
that would only serve to confuse and mislead the jury is too remote and should be
12
Where a discharged law firm had a contingency fee agreement with a client such as this case.
7
excluded. Donahue v. Albertson's Inc., 471 So.2d 482, 483 (Fla.4th DCA 1985). To the
extent that evidence is relevant,it will nevertheless be ruled inadmissible if its probative
outweighed by the danger of unfair prejudicetoward Plaintiffs and
value is substantially
would likelymislead or confuse the jury.Fla. Stat. §90.403.
Whatever legal services attorney Kubiak and/or Kubiak Law Group, PLLC
provided after Plaintiff dischargedthe Merlin law firm and retained Kubiak Law Group is
'
irrelevant to valuing'Merlin' s legalservices while they representedPlaintiff.
IV). MERLIN' S DISCOVERY REQUESTS RUN AFOUL OF THE LAW,
ATTORNEY/CLIENT PRIVILEGE, AND WORK-PRODUCT.
Merlin' s attempt(s)to overreach in the discovery process and obtain irrelevant,
privileged communications,
attorney/client and/or work-product is objectionable.
Further, Merlin' s request(s)are obvious attempts to utilize the discoveryprocess in this
matter in order to hopefully generate discovery related to the Hillsborough County
lawsuit it has filed that involves Merlin and attorney Kubiak; to wit 78 of its Motion:
This Court cannot possiblymake that determination without discoveryfrom KLG
and Attorney Kubiak, as well as the Plaintiff and several others to leam: 1) the
"'
circumstances of the transfer of the case; 2) when the contingencywas "realized'
as that term is defined in the law; and 3) what value, if any, did KLG provide to
the client,4) among other relevant information absolutelyneeded to properly
prepare for the hearing.That includes obvious things such as production on and
depositions regarding KLG' s time sheets, the communications exchanged
between plaintiff and defense, the correspondence with the client before and after
KLG took over, among many other obvious thingsthat go to providingthis Court
with sufficient and critical evidence to also be considered when evaluatingthe
totality of the circumstances. If the KLG will not be challengingor otherwise
contestingMLG' s claim that it provided all the value to the client (thusentitling it
to the entire fee),then most of the discovery may not be necessary (except as it
.,
relates to the circumstances o f the transfer o f the case and the date o f"realization'
ofthe contingency).
'
Any inquiryinto the value' of legalservices provided by a successor law firm is
irrelevant to Merlin' s charging lien;and as such, is an overreach.
8
Most illustrative,however, of Merlin' s offensive overreaching discovery
request(s) is/are that Merlin insists that it is entitled to, among other things,
"correspondencewith the client before and after KLG took ovef'. In other words,
Merlin asserts that even after it was discharged as Plaintiff s attorney, it is entitled to the
privilegedcommunication(s) between Plaintiff and Kubiak
attorney/client Law Group.
Certiorari review "is appropriatein cases that allow discovery of privileged
information. This is because once privilegedinformation DCA 2005) is disclosed,there
is no remedy for the destruction of the privilegeavailable on direct appeal." Esmte OJ
Stephens v. Galen Health Care, Inc.,911 So.2d 277,279 (Fla.24 DCA). "Waiver of the
,,
attorney-clientand work-product privileges is not favored in Florida", Coates v.
&
Akerman, Senterfitt Eidson, P.A.,940 Sold 504 (7,nd DCA 2006) citingUG Ins. Corp
of Am. V. Johnson, 799 SO.2d 339, 341 (f
th
DCA 2001). "A party does not waive the
privilegemerely by bringingor defending a lawsuif',Coates
attorney-client at 508 citing
to Lee v. DCA 2005). The mere
ProgressiveExpress Ins. Co., 909 So.2d 475 (4?h fact
that two attorneys may be representinga singleclient on the same matter does not waive
that the client has to prevent his or her confidential communications to one
the privilege
of his or her lawyers from being revealed to the other lawyef'. Coates at 510 citingto
Volpe v. Conroy, Simberg & Ganon, P.A., 720 So.2d 537, 539 (4mDCA 1998). Merlin' s
attempts to use this Court' s time and resources to generate discovery in other cases is
improper.
WHEREFORE, the Plaintiff,TINA CACCAVALE, respectfullyrequests this
Honorable Court to enter an Order limitingthe scope of any discovery and/or the
depositionsas such:
9
1. Defendant is prohibited in discovery and/or in deposition(s)from
'
inquiringas to the value' of legalservices provided by attorney Kelly Kubiak and/or
Kubiak Law Group, PLLC subsequentto Merlin' s dischargeas Plaintiff s counsel.
2. Defendant is prohibited in discovery and/or in deposition(s) from
inquiring into the scope, extent, manner, and/or type of legal services provided by
attorney Kelly Kubiak and/or Kubiak Law Group, PLLC subsequent to Merlin' s
dischargeas Plaintiff s counsel.
3 Defendant is prohibited in discovery and/or in deposition(s)from
inquiringas to privilegedcommunications between Plaintiff and attorney
attorney/client
Kubiak and/or any member of Kubiak Law Group, PLLC.
4. Defendant is prohibited in discovery and/or in deposition(s)from
inquiringas to attorney Kubiak and/or Kubiak Law Group' s work-product.
5. Defendanf s discovery request(s)and/or inquiry during deposition(s)is
limited to the instant matter only.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoinghas been filed
with the court through the Florida Court' s E-Filing Portal to: Scott Mager, Esquire,
Magen Paruas, LLC, 2719 Hollywood Blvd., 2nd Floor, Hollywood, FL 33020;
Service@MPJustice.corn; on st
this 21?
day ofDecember, 2021.
/S/ Kelly L. Kubiak
KELLY L. KUBIAK, ESQ.
Florida Bar No. 108952
KUBIAK LAW GROUP, PLLC
4904 W. Cypress Street
Tampa, Florida 33607
TELEPHONE: (813) 542-0800
FACSIMILE: (813) 542-7899
Attorneys for Plaintiff
kkubiak@kubiaklawgroup.com
kubiakpleadings@kubiaklawgroup.com
10
Donna Alvarez
From: Donna Alvarez
Sent: Monday, November 29, 2021 10:10 AM
To: Donna Alvarez
Subject: FW: Please help
Message-----
-----Original
From: KellyKubiak
Sent:Monday, February 1, 2021 2:43 PM
To: Keona Williams
Cc: Donna Alvarez
Subject: FW: Please help
-----Original
Message-----
From: Tina Caccavale
Sent: Monday, February 1, 2021 2:39 PM
To: Kelly Kubiak
Subject: Please help
I want KellyKubiak to continue as my lawyer on both cases!
Thank you !!
Love & Light,
Tina Caccavale
Director of Operations
Treatment plan coordinator
Dr. Steven A. Rosenberg & Associates
7500 NW 5th street., Suite 115
33317
Plantation, FL
(954) 791-7172
The information contained message may be privileged,confidential and protected from disclosure. If the reader
in this
of this message is not the intended recipient, or an employee or agent responsible for delivering this message to the
intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is
strictlyprohibited. If you have received this communication in error, please notifyTina Caccavale at 954-791-7172,
from Dr. Steven A. Rosenberg and Associates or 7500 NW 5th Street., Suite #115, Plantation, Florida 33317 Notify
immediately and delete this message from your computer. Thank you!
This email has been scanned for spam and viruses by Proofpoint Essentials. Visit the following link to report this email
as spam:
1
EXHIBIT "A'
II
CAC0001
Filing# 123377614 E-Filed 03/18/2021 10:39:44 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, STATE OF FLORIDA
CIVIL DIVISION
TINA CACCAVALE,
Plaintiff, Case No. CACE 19-019990
V
UNIVERSAL PROPERTY & CASUALTY
INSURANCE COMPANY,
Defendant.
i
NOTICE OF CHARGING LIEN OF MERLIN LAW GROUP, P.A.
NOTICE IS HEREBY GIVEN THAT Merlin Law Group, P.A., as former counsel for
TINA
the Plaintiff, CACCAVALE, hereby gives notice of its intention to enforce a charging lien
for attorney'sfees and costs againstany property or funds received or receivable by Plaintiff in
this action whether by settlement,judgment, or otherwise or which was an issue in this instant
action,and in support thereof states as follows:
1. This charging lien results by operationof law.
2. Merlin Law Group, P.A. acted as counsel of record for Plaintiff until being
substituted as counsel of record by another law firm pursuant to the received confirmation of the
Plaintiff.
3 This notice is being filed to protect the rightsand interest of Merlin Law Group,
P.A. and remains in effect until released or withdrawn.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 18, 2021, the foregoinghas been electronically
filed
Portal system which will send a Notice of
with the Clerk of Court by usingthe Florida Courts e-Filing
1
EXHIBIT "B"
CAC0002
Electronic Filingto all counsel ofrecord as follows: Universal Property & CasualtyIns. Co., Tiffany
J. Brown, Esq., 1110 W Commercial Blvd., Ft. Lauderdale, FL 33309
tb0730@universalproperty.com and Kubiak Law Group, PLLC, Kelly Kubiak, Esq., 4904 W.
Cypress Street, Tampa, FL 33607, kkubiak@kubiaklawgroup.com,
kubiakpleadings@kubiaklawgroup.com
MERLIN LAW GROUP, P.A.
/s/ William F. Merlin, Jr., Esq.
William F. Merlin, Jr., Esquire
Florida Bar No. 0364721
Merlin Law Group, P.A.
777 Harbour Island Blvd., Suite 950
S.
Tampa, FL 33602
Tel: (813) 229-1000
Fax: (813) 229-3692
Prior Counsel for Plaintiffs
cmerlin@merlinlawgroup.com
smerriett@merlinlawgroup.com
trodriguez@merlinlawgroup.com
2
CAC0003
Filing# 131479076 E-Filed 07/27/2021 12:08:37 PM
IN THE CIRCUIT COURT OF THE 17thJUDICIAL CIRCUIT,
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO: CACE19-019990(21)
TINA CACCAVALE,
Plaintiff,
VS.
UNIVERSAL PROPERTY &
CASUALTY INSURANCE CO.,
Defendant,
i
MEDIATION DISPOSITION REPORT
A mediation conference was conducted on July 26, 2021 @ 9:30a.m. The conference
resulted in the following:
X Final agreement was made between the parties.
No agreement.
These proceedings have been adjourned.
I HEREBY CERTIFY that on this 27? ,th
day of July,2021 a copy of the foregoingwas
filed with the Clerk of Broward County by using the Florida Courts e-FilingPortal,which will
send an automatic e-mail message to the followingpartiesregisteredwith the e-FilingPortal
system: Kellly L. Kubiak, Esq.; kubiak@kubiaklawgroup.com Farheen Jahangir, Esq.;
fi1201@universalproperty.com .
RespectfullySubmitted,
/s/ Tom Lvnch
TOM LYNCH, P.A.
Florida Bar No: 238864
Florida Supreme Court Certified
Circuit Civil Mediator #33600R
.rd
1136 S.E. 3' Ave.
Fort Lauderdale, Fl. 33316
954-923-9263
tomlvnchmediation@gmail.com
EXHIBIT "C II
*
-# Complex/Business Litigation Personal Injury/PIP
Crime Victim Rights * Property Damage Claims
*
l<*P'.
Corporate/Contract Work State and Federal Appeals
Insurance Claims and Referrals for Criminal Defense,
Real Estate and All Other Areas of Law
www.MagerParuas.com South Florida Location:
Service@MPJustice.com 2719 Hollywood Blvd. Second Floor
=
Hollywood, FL 33020 (954) 763- 2800
=
Se Habla EspaAol
October 14,2021
VIA E-mail: kkubiak@kubiaklawgroup.com
dalvarez@kubiaklawgroup.com
Kelly L. Kubiak, Esq.
Kubiak Law Group
4904 W. Cypress Street
Tampa, FL 33607-3802
Re-. Tina Caccavale v. Universal Property & CasualtyInsurance Company
Case No. CACE 19-019990
Dear Kelly,
We would like to go ahead and follow-upon our previousrequest for dates of availability
for the
followingindividuals' deposition:
1. Kelly Kubiak
2. Donna Alvarez
3. Sandra Baldinelli
4. Farana Bradley
5. Tina Caccavale with limited topic list of communications and knowledge relatingto the
termination of MLG, the retention of KLG, the process and resolution of the case, as well
as charges,services,billingstatements of MLG and KLG, the actions/knowledgerelating
to the time and amount of settlement and any statement created or to
be created.
EXHIBIT "D II
Kelly L. Kubiak, Esq.
October 14,2021
Page 2 of 2
Please provide us with a selection of dates prior to December 23, 2021 for the coordination of
depositionsof the individuals listed above. If you would like to coordinate a dedicated day to
depose each of those listed above, so that we can try and eliminate the need to schedule mult*le
dates,we are happy to do so. Thank you in advance for your cooperationin this matter.
Very trulyyours,
#ehhecfulton
Jesse Fulton,Esq.
For the Firm
Case 1:14-cv-03417-LTB Document 105 Filed 08/01/16 USDC Colorado Page 1 of 17
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 14-cv-03417-LTB
AUTO-OWNERS INSURANCE COMPANY, a Michigan corporation,
Plaintiff/Counter-Defendant,
V.
SUMMIT PARK TOWNHOME ASSOCIATION, a Colorado corporation,
Defendant/Counter-Plaintiff.
MEMORANDUM OPINION AND ORDER
Babcock, J.
This insurance coverage dispute is before me on Auto-Owners Insurance Company's
("Auto-Owners") Motion for Sanctions [Doc. # 71]. I have reviewed the motion; the response of
Summit Park Townhome Association ("Summit Park") [Doc. # 94];the response of Summit
Park's former counsel of record, Merlin Law Group P.A., and Merlin attorneys William C.
Harris and David J. Pettinato individually[Doc. # 92]; Auto-Owners' reply [Doc. # 99]; Auto-
Owners' notice withdrawing certain statements in its reply [Doc. #100]; and all attachments to
I previouslytook oral argument on issues relevant to decidingthe motion and have
those filings.
determined that further oral argument would not be of material assistance.
For the followingreasons, I GRANT the motion and DISMISS WITH PREJUDICE
Summit Park's counterclaims in this matter pursuant to the Court's inherent authority.I also
assess an award of attorney's fees and expenses againstHarris and Pettinato individually
" "
EXHIBIT E
Case 1:14-cv-03417-LTB Document 105 Filed 08/01/16 USDC Colorado Page 2 of 17
pursuant to 28 U.S.C. § 1927. Finally,I award interest to Auto-Owners for the periodSummit
Park wrongfully withheld the appraisalfunds pursuant to Colo. Rev. Stat. § 5-12-102(1)(b).
L Facts
A. Background
Much ofthe background to the instant dispute has been set forth in a priororder, but I
summarize it here for the reader's convenience. See Auto-Owners Ins. Co. v. Summit Park
Townhome Ass'n, -No. 14-CV-03417-LTB, 2016 WL 1321507, at *1 (D. Colo. Apr. 5, 2016)
[Doc. # 69]. Auto-Owners brought this declaratory
judgment action to determine the extent of
coverage for damage caused by a 2013 hailstorm under a property insurance policy it issued to
Summit Park. Summit Park has since asserted counterclaims allegingbreach of contract, bad
faith breach of insurance contract, and unreasonable delay or denial of benefits under Colo. Rev.
Stat. §§ 10-3-1115, -1116. See Doc. # 45 at 19-23. From the outset of this case until May 2016,
when they withdrew, Summit Park's counsel of record was Merlin Law Group, P.A., and Merlin
attorneys William "Corey" Harris and David J. Pettinato (collectively,
"Merlin").
Shortlyafter this case was filed,Summit Park invoked the appraisalprovision of the
policy,under which "each party will select a competent and impartialappraiser,"the court
selects an umpire ifthe appraiserscannot agree on a selection,and a "decision agreed to by any
'..,
two" o f the three as to the "value o f the property and amount of loss' 'will be binding." Doc.
# 6-1 at 78. In April 2015, I ordered the appraisalprocess to proceed. Doc. # 17. Summit Park
selected George Keys as its appraiser and Auto-Owners selected Jim Koontz as its appraiser.
failure to reach agreement on various
Docs. # 24,29. In September 2015, upon the parties'
2
Case 1:14-cv-03417-LTB Document 105 Filed 08/01/16 USDC Colorado Page 3 of 17
aspects ofthe process, I imposed several guidelines.Doc. # 25. One ofthe guidelinesI
imposed stated:
An individual who has a known, direct,and material interest in the
outcome ofthe appraisalproceeding or a known, existing, and
substantial relationship a
with party may not serve as an appraiser.
Each appraisermust, after making a reasonable inquiry,disclose to
all partiesand any other appraiserany known facts that a
reasonable person would consider likelyto affect his or her
impartiality,including(a)a financial or personal interest in the
outcome of the appraisal; and (b) a current or previousrelationship
with any of the parties(includingtheir counsel or representatives)
or with any of the participants
in the appraisal proceeding,
witnesses, another appraiser,or
including licensed public adjusters,
the umpire. Each appraisershall have a continuingobligationto
disclose to the partiesand to any other appraiserany facts that he
or she learns after accepting appointment that a reasonable person
would consider likelyto affect his or her If an
impartiality.
appraiser discloses a fact requiredto be disclosed pursuant to this
paragraph and a party files an objection in this Court to the
appointment or continued services ofthe appraiserno later than 15
days after becoming aware of such fact (or from the date ofthis
order, whichever comes later), the objectionmay be a ground for
vacating an award made by the appraiser. The same objection
procedure shall apply in the event a party becomes aware of
information bearing on an appraiser'scompetency.
Id at 12-13. Iexplainedthatthisguideline"willminimizetheriskthattheappraisalawardwill
need to be vacated" pursuant to the policy language requiringthat the appraisersbe impartial.
Id at 9. I also directed that "[t]hepartiesand their counsel shall make every reasonable effort to
ensure that the appraisalprocess proceeds in accordance with this order." Id at 14-15. At the
end ofthe order, I provided the followingnotice:
NOTICE IS GIVEN THAT, IF THE COURT FINDS THAT THE
PARTIES AND/OR THEIR COUNSEL HAVE NOT COMPLIED
WITH THIS ORDER, THE COURT WILL IMPOSE
SANCTIONS AGAINST THE PARTIES AND/OR THEIR
COUNSEL PURSUANT TO THE COURT'S INHERENT
AUTHORITY.
3
Case 1:14-cv-03417-LTB Document 105 Filed 08/01/16 USDC Colorado Page 4 of 17
Id at 15. I will refer to this as the "disclosure order." Upon the appraisers'
failure to reach an
agreement regardingthe selection of an umpire,I appointedRobert J
Preview
Filing# 140847291 E-Filed 12/22/2021 02:24:53 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CIVIL DIVISION TINA CACCAVALE Plaintiff. V Case No. CACE 19-019990 UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY Defendant. i PLAINTIFF' S MOTION FOR PROTECTIVE ORDER COMES NOW, the Plaintiff,TINA CACCAVALE ("Plaintiff'), by and through moves for a protective the undersigned counsel, and pursuant to Fla. R. Civ. P. 1.280(c), order limitingthe scope of any discovery and/or regardingthe depositionsof any forer employees of Merlin Law (i)Kelly Kubiakl;(ii)Donna Alvarez; Group, PA, particularly (iii)Sandra Baldinelli;(iv) Farana Bradley; and (v) Tina Caccavale. As grounds of support thereof,Plaintiff states the following: Relevant Facts 1. This case arises from a property insurance claim made by Plaintiff to her insurer, Defendant, Universal Property Insurance Company ("Defendanf'). Plaintiff retained Merlin Law Group via a contingency fee agreement. 2. On or about late January 2021, Plaintiff s counsel notified Merlin that she was leavingMerlin' s employ and startingher own law firm. 3 On February 1, 2021, Plaintiff dischargedthe Merlin law firm and elected 2 to have Kelly Kubiak, Esq. continue to represent her at her new firm land/or Kubiak Law Group, PLLC 2 Attached hereto as Exhibit A. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/22/2021 02:24:52 PM.**** 4. On or about March 18, 2021, Merlin field a Notice of Charging Lien in this matterl 5. The partiessettled this matter through Mediation with retired Judge Tom Lynch on July 26,2021. A copy ofthe Mediation DispositionReport is attached hereto as Exhibit "C" 6. By dated October 14, 2021, Merlin' s attorney(s) requestedthe depositionsin this matter4- Introduction What would normally be charging lien matter between a simple,straight-forward a law firm and one of its former attorneys/employees appears to have devolved into "delay at all as well as an attempt costs" litigation by Merlin to obtain discovery for the Hillsborough County case it filed againstPlaintiff s counsel. Tactics such as these are not uncommon with the Merlin Firm5. Because of the foregoing,and pursuant to Fla. R. Civ. P. 1.280(c), requests that this Honorable Court grant its Motion Plaintiff respectfully for Protective Order as referenced below6. Memorandum of Law Plaintiff requests a protectiveorder regarding these discovery and depositions pursuant to Fla. R. Civ. P. 1.280(c)which states in pertinentpart, as follows: 3 Copies of the Charging Lien is attached hereto as Composite Exhibit B. 4 A copy ofthe emaiFcorrespondence is attached hereto as Composite Exhibit D. t?One federal courl judge.@pgcificqllystated that Merlin litigatedin bad faith. In Auto Owt-ers v. Summit Park, (Order attached as Exhibit Ej, Merlin' s litigation tadtics were so outrageous that a federal district court judge personally sanctioned two of Merlin's Florida-based attorneys $354,350,65 in fees and expenses. The judge noted that "it is proper to attribute (the individual MLG attorney's) bad faith to the Merlin Firm given that the lawyers' actions were indistinguishablefrom those of [thel firm and in opposing Ithe sanctions, the firm consistently accepted responsibility for conducting the underlying litigation." p.10. Notably, a United States Court of Appeals affirmed the court' s ruling(Order attached as Exhibit F). While reference to such other matters is not normally relevant, given the nature of Merlin' s litigation tactics here, it is pertinentfor the Court to have a clear understanding and context of how, and what, Merlin is doing in this matter. 6 In the Wherefore paragraph. 2 Upon motion by a party or by the person from whom the discovery is sought, and for good cause shown, the Court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression,or undue burden or expense that justicerequires,includingone or more ofthe following(1)that the discoverynot be had; (2)that discovery be had only on specified terms and conditions, includinga designationof the time or place;(3) that discovery may be had only by a method of discovery other than that selected by the partiesseeking discovery; (4) that certain matters not be inquiredinto,or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designatedby the Court; (6) that a depositionafter being sealed be opened only by order of the Court; (7) that a trade secret or other confidential research, development,or commercial information not be disclosed or be disclosed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the Court. I). THE VALUE OF MERLIN' S CHARGING LIEN IS THE ONLY ISSUE BEFORE THE COURT; NOT THE VALUE OF ATTORNEY KUBIAK AND/OR KUBIAK LAW GROUP, PLLC' S LEGAL SERVICES. Stated in its simplestterms, Plaintiff originallycontracted with Merlin firm for legalservices to be provided by attorney Kelly Kubiak, her associates,and legalstaff. Plaintiff and Merlin entered into a written contingency fee agreement. After attorney Kubiak left Merlin' s employ, Plaintiff dischargedMerlin as Plaintiff s attorney. Plaintiff then elected to retain attorney Kubiak at her new firm to continue representingPlaintiff in the underlying case. Merlin subsequentlyfiled a charging lien for fees and costs. These facts are undisputed. Searcy, Denney, Scarola, Barnhardt & Shipley,P.A. v. Polet, 651 So.ld 366 (jAa. 1995), holds that when a discharged law firm files a charging lien to recover fees and ' costs, the Court' s role is to determine the value' of the discharged law firm's charging lien (emphasis added). 3 To brieflysynopsize the pertinentfacts of Searcy,Taylor was a Florida licensed attorney at the Searcy law firm and was assigned to work on the Poletz casel He eventuallyleft the firm for other employment opportunities.Shortly thereafter,the parents of Poletz discharged the Searcy law firm and retained Taylor at his new firm. The Searcy law firm ultimatelyfiled a charging lien for fees and costs; and litigation ensued over the value of Searcy's charginglien. Searcy appealed the Court' s decision that their fee "should be determined by using the Rowe factors but no contingency risk multipliershould be applied".Searcy at 367. The Florida Supreme Court stated that "we are now asked to decide whether the lodestar method of computing reasonable attorneys fees... should be applied..." Searcy at 368. The Court held that it should not; and reasoned as follows: ". . . the time reasonably devoted to the while and representation a reasonable hourly rate are factors to be considered in determining a proper quantum meruit award, the courtmust consider all relevant factors surroundingthe professionalrelationshipto ensure that the award is fair to both the attorney and client. See Reid, Johnson, Downes, Andrachik & Webster v. Lansbero, 68 Ohio St.3d 570,629 N.E.2d 431, 436-437 (1994) (totalityof circumstances surrounding each situation should be considered in determiningreasonable value of dischargedcontingent-fee attorney's services in quantum meruit).Application of the factors set forth in Rule Regulating The Florida Bar 4- may provide 1.5(b),48 a good startingpoint. However, 7 Taylor spent approx. 340 hours working on Poletz. The case involved a traumatic brain injury. 8 Rule regulating the Florida Bar 4-1.5 provides the following factors to be considered in determining a reasonable fee: (1) the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill to requisite perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyeri (3) the fee, or rate of fee, customarilycharged in the localityfor the legal services of a comparable or similar nature; (4) the significance of, or amount involved in, the subject matter of the representation,the responsibility involved in the representation, and the results obtained; (5) the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or specialtime demands or requests of the attorney by the client; (6) the nature and length of the professionalrelationship with the client; (7) the experience,reputation,diligence,and ability of the lawyer or lawyers performing the service and the skill,expertise,or efficiencyof effort reflected in the actual providing of such services; and 4 because the factors relevant to the determination of the reasonable value of services rendered will vary from case to case, the court is not limited to consideration of the Rowe factors. The court must consider any other factors surroundingthe professional that would relationship assist the court in fashioning an award that is fair to both the attorney and client. For example, the fee agreement itself, the reason the attorney was discharged,actions taken by the attorney or client before or after discharge,and the benefit actuallyconferred on the client may be relevant to that determination. The determination which factors are as to relevant in a given case, the weight to be given each factor and the ultimate determination as to the amount to be awarded are matters within the sound discretion of the trial court". Searcy at 369. Importantly,neither Searcy nor any of its progeny hold that a necessary step in determining the value of the discharged law firm's charging lien is also determining the value of the successor law firm's legalservices. Searcy was clear that the Court' s focus on valuing'the legalservices o f the discharged law firm when it ' is said: In determining attorney fee to award to law firm that was discharged by client from contingency fee contract, trial court should have considered totalityof time reasonablyexpended and factors present in case, instead of only considering reasonable hourly rate for services. Searcy,Headnote [2]'. II). MERLIN'S ASSERTION THAT THIS COURT MUST ALLOW DISCOVERY10 AND MUST DETERMINE THE VALUE OF ATTORNEY KUBIAK AND/OR KUBIAK LAW GROUP' S LEGAL SERVICES PRIOR TO ITS DETERMINATION OF THE VALUE OF MERLIN' S CHARGING LIEN IS A LEGAL FICTION BASED IN NEITHER LAW NOR FACT. Defendanf s Motion to Compel Depositions falselyasserts that this Honorable Court, in essence, is compelled to (i)allow Defendant to conduct discoveryinto the legal (8) whether the fee is fixed or contingent,and, if fixed as to amount or rate, then whether the client's ability to pay rested to any significantdegree on the outcome of the representation. g One noteworthy case thatreiterakswhat Searcy standsfor is Scherer v. Austin Roe Basquill, P.A., 2021 Hl 2446947, (2ndDCA). While the case involved a partner of a law firm leavingto start his own law firm (as opposed to the instant matter where the departing attorney was neither a partner nor had any equity in the firm), Scherer is an example of the Searcy progeny that looked to the Fla. Bar Rule 4-1.5 factors. Additionally, the Scherer court also looked at the identical factors that the Florida Supreme Court looked to when deciding the value' of the discharged firms legal services using a modified quantum meruit ' application. Notably, nowhere does it suggest that the Court must, and/or even should, look at the departinglawyer's legalservices (post-departure) nor the'value' ofthe departinglawyer's legalservices. 10 Regarding legal services provided by the successor law firm and the' value' of said services. ' 5 services provided to Plaintiffs by attorney Kubiak and/or Kubiak Law Group, and (ii) Kubiak and/or Kubiak Law Group' s legalservices ' must factor in the value' of attorney providedto Plaintiff after Merlin was dischargedas its attorney, to wit: Thus, for example, to determine the value of the services that should be 76. awarded to MLG, the case law is clear (emphasis added) that one must consider the value of the services that MLG provided (as against the value of the services provided by KLG11) (emphasis added). Thus, if KLG settled the case one day or very soon after the case was transferred to them, and little or no work of "value" was performed, KLG is not entitled to a windfall of the entire contingency minus the hourly fee determination. Instead,the Court would award MLG the entire fee of that fee to the former counsel (MLG), since KLG did not provide sufficient value to the client to warrant any fee (emphasis added). Seemingly the one, and only,point that Plaintiff and Defendant can agree on in this matter is that Searcy does speak to charging lien issues in Florida such as this. Searcy says the "totality05 circumstances surrounding each situation should be cons idered in determining reasonable value of discharged contingent-feeattorney's services in quantum meruit" Id. at 369. After that,the partiesdiffer greatlyas to what Searcy stands for. Searcy addresses a specificissue - [H]ow courts throughout the state of Florida should value' a discharged law firm's (emphasis added) legalservices in the context of ' a charginglien that is based on a contingency fee contract. Merlin asserts that it is entitled to conduct discovery into the successor law firm' s legal services provided to its ex-client. Further, Merlin asserts that this Court is ' necessarilycompelled to value' the successor law firm' s legal services before it can ' determine the value' of the discharged law firm' s legalservices. Neither Searcy nor the Florida Bar Rule 4-1.5 stand for such an absurd proposition. Stated another way, allowing such discovery opens up a Pandora' s box of discovery that is irrelevant and 11 Kubiak Law Group, PLLC 6 violative of, among privilegedcommunications other things,Plaintiff s attorney/client with Plaintiff s chosen lawyer(s). As noted above, Plaintiff/Caccavale and Merlin are the two partieswho entered into a contractual relationship.The Caccavale/Merlin fee agreement serves as the basis of the charging lien. Merlin' s charging lien is at issue. That is the only charging lien at issue. What the successor law firm has done since Merlin was dischargedis wholly irrelevant. Proof is in the fact that even a cursory review of all the factors referenced by Florida Bar Rule 4-1.5, as well as the factors set forth by the Florida Supreme Court in Searcy, makes it apparent that the Court' s sole focus is on the discharged law firm as opposed to the successor law firm. There is no suggestion,much less an assertion,by either the Florida Supreme Court and/or the Florida Bar that a successor law firm' s legal services somehow are relevant to a dischargedlaw firms charging lien. Such claims are simply a legalfiction created by Merlin. III). THE 'VALUE' OF EITHER ATTORNEY KUBIAK AND/OR KUBIAK LAW GROUP' S LEGAL SERVICES PROVIDED TO PLAINTIFF AFTER MERLIN'S DISCHARGE IS IRRELEFANT TO THE 'VALUE' OF MERLIN' S CHARGING LIEN. Neither Searcy, its progeny, nor Florida Bar Rule 4-1.5 contemplate that in a charging lien casel2 a Court must (i)allow discovery related to the successor law firm' s legalservices,or (ii)place a value' on the successor law firms legalservices. ' Such a request by Defendant is wholly irrelevant. Relevant evidence is evidence that tends to prove or disprove a material fact. Fla. Stat. §90.401. Analogous to a Motion in Limine when one party to a lawsuit is attemptingto introduce irrelevant evidence to a jury,evidence on a purely collateral issue that would only serve to confuse and mislead the jury is too remote and should be 12 Where a discharged law firm had a contingency fee agreement with a client such as this case. 7 excluded. Donahue v. Albertson's Inc., 471 So.2d 482, 483 (Fla.4th DCA 1985). To the extent that evidence is relevant,it will nevertheless be ruled inadmissible if its probative outweighed by the danger of unfair prejudicetoward Plaintiffs and value is substantially would likelymislead or confuse the jury.Fla. Stat. §90.403. Whatever legal services attorney Kubiak and/or Kubiak Law Group, PLLC provided after Plaintiff dischargedthe Merlin law firm and retained Kubiak Law Group is ' irrelevant to valuing'Merlin' s legalservices while they representedPlaintiff. IV). MERLIN' S DISCOVERY REQUESTS RUN AFOUL OF THE LAW, ATTORNEY/CLIENT PRIVILEGE, AND WORK-PRODUCT. Merlin' s attempt(s)to overreach in the discovery process and obtain irrelevant, privileged communications, attorney/client and/or work-product is objectionable. Further, Merlin' s request(s)are obvious attempts to utilize the discoveryprocess in this matter in order to hopefully generate discovery related to the Hillsborough County lawsuit it has filed that involves Merlin and attorney Kubiak; to wit 78 of its Motion: This Court cannot possiblymake that determination without discoveryfrom KLG and Attorney Kubiak, as well as the Plaintiff and several others to leam: 1) the "' circumstances of the transfer of the case; 2) when the contingencywas "realized' as that term is defined in the law; and 3) what value, if any, did KLG provide to the client,4) among other relevant information absolutelyneeded to properly prepare for the hearing.That includes obvious things such as production on and depositions regarding KLG' s time sheets, the communications exchanged between plaintiff and defense, the correspondence with the client before and after KLG took over, among many other obvious thingsthat go to providingthis Court with sufficient and critical evidence to also be considered when evaluatingthe totality of the circumstances. If the KLG will not be challengingor otherwise contestingMLG' s claim that it provided all the value to the client (thusentitling it to the entire fee),then most of the discovery may not be necessary (except as it ., relates to the circumstances o f the transfer o f the case and the date o f"realization' ofthe contingency). ' Any inquiryinto the value' of legalservices provided by a successor law firm is irrelevant to Merlin' s charging lien;and as such, is an overreach. 8 Most illustrative,however, of Merlin' s offensive overreaching discovery request(s) is/are that Merlin insists that it is entitled to, among other things, "correspondencewith the client before and after KLG took ovef'. In other words, Merlin asserts that even after it was discharged as Plaintiff s attorney, it is entitled to the privilegedcommunication(s) between Plaintiff and Kubiak attorney/client Law Group. Certiorari review "is appropriatein cases that allow discovery of privileged information. This is because once privilegedinformation DCA 2005) is disclosed,there is no remedy for the destruction of the privilegeavailable on direct appeal." Esmte OJ Stephens v. Galen Health Care, Inc.,911 So.2d 277,279 (Fla.24 DCA). "Waiver of the ,, attorney-clientand work-product privileges is not favored in Florida", Coates v. & Akerman, Senterfitt Eidson, P.A.,940 Sold 504 (7,nd DCA 2006) citingUG Ins. Corp of Am. V. Johnson, 799 SO.2d 339, 341 (f th DCA 2001). "A party does not waive the privilegemerely by bringingor defending a lawsuif',Coates attorney-client at 508 citing to Lee v. DCA 2005). The mere ProgressiveExpress Ins. Co., 909 So.2d 475 (4?h fact that two attorneys may be representinga singleclient on the same matter does not waive that the client has to prevent his or her confidential communications to one the privilege of his or her lawyers from being revealed to the other lawyef'. Coates at 510 citingto Volpe v. Conroy, Simberg & Ganon, P.A., 720 So.2d 537, 539 (4mDCA 1998). Merlin' s attempts to use this Court' s time and resources to generate discovery in other cases is improper. WHEREFORE, the Plaintiff,TINA CACCAVALE, respectfullyrequests this Honorable Court to enter an Order limitingthe scope of any discovery and/or the depositionsas such: 9 1. Defendant is prohibited in discovery and/or in deposition(s)from ' inquiringas to the value' of legalservices provided by attorney Kelly Kubiak and/or Kubiak Law Group, PLLC subsequentto Merlin' s dischargeas Plaintiff s counsel. 2. Defendant is prohibited in discovery and/or in deposition(s) from inquiring into the scope, extent, manner, and/or type of legal services provided by attorney Kelly Kubiak and/or Kubiak Law Group, PLLC subsequent to Merlin' s dischargeas Plaintiff s counsel. 3 Defendant is prohibited in discovery and/or in deposition(s)from inquiringas to privilegedcommunications between Plaintiff and attorney attorney/client Kubiak and/or any member of Kubiak Law Group, PLLC. 4. Defendant is prohibited in discovery and/or in deposition(s)from inquiringas to attorney Kubiak and/or Kubiak Law Group' s work-product. 5. Defendanf s discovery request(s)and/or inquiry during deposition(s)is limited to the instant matter only. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoinghas been filed with the court through the Florida Court' s E-Filing Portal to: Scott Mager, Esquire, Magen Paruas, LLC, 2719 Hollywood Blvd., 2nd Floor, Hollywood, FL 33020; Service@MPJustice.corn; on st this 21? day ofDecember, 2021. /S/ Kelly L. Kubiak KELLY L. KUBIAK, ESQ. Florida Bar No. 108952 KUBIAK LAW GROUP, PLLC 4904 W. Cypress Street Tampa, Florida 33607 TELEPHONE: (813) 542-0800 FACSIMILE: (813) 542-7899 Attorneys for Plaintiff kkubiak@kubiaklawgroup.com kubiakpleadings@kubiaklawgroup.com 10 Donna Alvarez From: Donna Alvarez Sent: Monday, November 29, 2021 10:10 AM To: Donna Alvarez Subject: FW: Please help Message----- -----Original From: KellyKubiak Sent:Monday, February 1, 2021 2:43 PM To: Keona Williams Cc: Donna Alvarez Subject: FW: Please help -----Original Message----- From: Tina Caccavale Sent: Monday, February 1, 2021 2:39 PM To: Kelly Kubiak Subject: Please help I want KellyKubiak to continue as my lawyer on both cases! Thank you !! Love & Light, Tina Caccavale Director of Operations Treatment plan coordinator Dr. Steven A. Rosenberg & Associates 7500 NW 5th street., Suite 115 33317 Plantation, FL (954) 791-7172 The information contained message may be privileged,confidential and protected from disclosure. If the reader in this of this message is not the intended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictlyprohibited. If you have received this communication in error, please notifyTina Caccavale at 954-791-7172, from Dr. Steven A. Rosenberg and Associates or 7500 NW 5th Street., Suite #115, Plantation, Florida 33317 Notify immediately and delete this message from your computer. Thank you! This email has been scanned for spam and viruses by Proofpoint Essentials. Visit the following link to report this email as spam: 1 EXHIBIT "A' II CAC0001 Filing# 123377614 E-Filed 03/18/2021 10:39:44 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, STATE OF FLORIDA CIVIL DIVISION TINA CACCAVALE, Plaintiff, Case No. CACE 19-019990 V UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. i NOTICE OF CHARGING LIEN OF MERLIN LAW GROUP, P.A. NOTICE IS HEREBY GIVEN THAT Merlin Law Group, P.A., as former counsel for TINA the Plaintiff, CACCAVALE, hereby gives notice of its intention to enforce a charging lien for attorney'sfees and costs againstany property or funds received or receivable by Plaintiff in this action whether by settlement,judgment, or otherwise or which was an issue in this instant action,and in support thereof states as follows: 1. This charging lien results by operationof law. 2. Merlin Law Group, P.A. acted as counsel of record for Plaintiff until being substituted as counsel of record by another law firm pursuant to the received confirmation of the Plaintiff. 3 This notice is being filed to protect the rightsand interest of Merlin Law Group, P.A. and remains in effect until released or withdrawn. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 18, 2021, the foregoinghas been electronically filed Portal system which will send a Notice of with the Clerk of Court by usingthe Florida Courts e-Filing 1 EXHIBIT "B" CAC0002 Electronic Filingto all counsel ofrecord as follows: Universal Property & CasualtyIns. Co., Tiffany J. Brown, Esq., 1110 W Commercial Blvd., Ft. Lauderdale, FL 33309 tb0730@universalproperty.com and Kubiak Law Group, PLLC, Kelly Kubiak, Esq., 4904 W. Cypress Street, Tampa, FL 33607, kkubiak@kubiaklawgroup.com, kubiakpleadings@kubiaklawgroup.com MERLIN LAW GROUP, P.A. /s/ William F. Merlin, Jr., Esq. William F. Merlin, Jr., Esquire Florida Bar No. 0364721 Merlin Law Group, P.A. 777 Harbour Island Blvd., Suite 950 S. Tampa, FL 33602 Tel: (813) 229-1000 Fax: (813) 229-3692 Prior Counsel for Plaintiffs cmerlin@merlinlawgroup.com smerriett@merlinlawgroup.com trodriguez@merlinlawgroup.com 2 CAC0003 Filing# 131479076 E-Filed 07/27/2021 12:08:37 PM IN THE CIRCUIT COURT OF THE 17thJUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO: CACE19-019990(21) TINA CACCAVALE, Plaintiff, VS. UNIVERSAL PROPERTY & CASUALTY INSURANCE CO., Defendant, i MEDIATION DISPOSITION REPORT A mediation conference was conducted on July 26, 2021 @ 9:30a.m. The conference resulted in the following: X Final agreement was made between the parties. No agreement. These proceedings have been adjourned. I HEREBY CERTIFY that on this 27? ,th day of July,2021 a copy of the foregoingwas filed with the Clerk of Broward County by using the Florida Courts e-FilingPortal,which will send an automatic e-mail message to the followingpartiesregisteredwith the e-FilingPortal system: Kellly L. Kubiak, Esq.; kubiak@kubiaklawgroup.com Farheen Jahangir, Esq.; fi1201@universalproperty.com . RespectfullySubmitted, /s/ Tom Lvnch TOM LYNCH, P.A. Florida Bar No: 238864 Florida Supreme Court Certified Circuit Civil Mediator #33600R .rd 1136 S.E. 3' Ave. Fort Lauderdale, Fl. 33316 954-923-9263 tomlvnchmediation@gmail.com EXHIBIT "C II * -# Complex/Business Litigation Personal Injury/PIP Crime Victim Rights * Property Damage Claims * l<*P'. Corporate/Contract Work State and Federal Appeals Insurance Claims and Referrals for Criminal Defense, Real Estate and All Other Areas of Law www.MagerParuas.com South Florida Location: Service@MPJustice.com 2719 Hollywood Blvd. Second Floor = Hollywood, FL 33020 (954) 763- 2800 = Se Habla EspaAol October 14,2021 VIA E-mail: kkubiak@kubiaklawgroup.com dalvarez@kubiaklawgroup.com Kelly L. Kubiak, Esq. Kubiak Law Group 4904 W. Cypress Street Tampa, FL 33607-3802 Re-. Tina Caccavale v. Universal Property & CasualtyInsurance Company Case No. CACE 19-019990 Dear Kelly, We would like to go ahead and follow-upon our previousrequest for dates of availability for the followingindividuals' deposition: 1. Kelly Kubiak 2. Donna Alvarez 3. Sandra Baldinelli 4. Farana Bradley 5. Tina Caccavale with limited topic list of communications and knowledge relatingto the termination of MLG, the retention of KLG, the process and resolution of the case, as well as charges,services,billingstatements of MLG and KLG, the actions/knowledgerelating to the time and amount of settlement and any statement created or to be created. EXHIBIT "D II Kelly L. Kubiak, Esq. October 14,2021 Page 2 of 2 Please provide us with a selection of dates prior to December 23, 2021 for the coordination of depositionsof the individuals listed above. If you would like to coordinate a dedicated day to depose each of those listed above, so that we can try and eliminate the need to schedule mult*le dates,we are happy to do so. Thank you in advance for your cooperationin this matter. Very trulyyours, #ehhecfulton Jesse Fulton,Esq. For the Firm Case 1:14-cv-03417-LTB Document 105 Filed 08/01/16 USDC Colorado Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO LEWIS T. BABCOCK, JUDGE Civil Case No. 14-cv-03417-LTB AUTO-OWNERS INSURANCE COMPANY, a Michigan corporation, Plaintiff/Counter-Defendant, V. SUMMIT PARK TOWNHOME ASSOCIATION, a Colorado corporation, Defendant/Counter-Plaintiff. MEMORANDUM OPINION AND ORDER Babcock, J. This insurance coverage dispute is before me on Auto-Owners Insurance Company's ("Auto-Owners") Motion for Sanctions [Doc. # 71]. I have reviewed the motion; the response of Summit Park Townhome Association ("Summit Park") [Doc. # 94];the response of Summit Park's former counsel of record, Merlin Law Group P.A., and Merlin attorneys William C. Harris and David J. Pettinato individually[Doc. # 92]; Auto-Owners' reply [Doc. # 99]; Auto- Owners' notice withdrawing certain statements in its reply [Doc. #100]; and all attachments to I previouslytook oral argument on issues relevant to decidingthe motion and have those filings. determined that further oral argument would not be of material assistance. For the followingreasons, I GRANT the motion and DISMISS WITH PREJUDICE Summit Park's counterclaims in this matter pursuant to the Court's inherent authority.I also assess an award of attorney's fees and expenses againstHarris and Pettinato individually " " EXHIBIT E Case 1:14-cv-03417-LTB Document 105 Filed 08/01/16 USDC Colorado Page 2 of 17 pursuant to 28 U.S.C. § 1927. Finally,I award interest to Auto-Owners for the periodSummit Park wrongfully withheld the appraisalfunds pursuant to Colo. Rev. Stat. § 5-12-102(1)(b). L Facts A. Background Much ofthe background to the instant dispute has been set forth in a priororder, but I summarize it here for the reader's convenience. See Auto-Owners Ins. Co. v. Summit Park Townhome Ass'n, -No. 14-CV-03417-LTB, 2016 WL 1321507, at *1 (D. Colo. Apr. 5, 2016) [Doc. # 69]. Auto-Owners brought this declaratory judgment action to determine the extent of coverage for damage caused by a 2013 hailstorm under a property insurance policy it issued to Summit Park. Summit Park has since asserted counterclaims allegingbreach of contract, bad faith breach of insurance contract, and unreasonable delay or denial of benefits under Colo. Rev. Stat. §§ 10-3-1115, -1116. See Doc. # 45 at 19-23. From the outset of this case until May 2016, when they withdrew, Summit Park's counsel of record was Merlin Law Group, P.A., and Merlin attorneys William "Corey" Harris and David J. Pettinato (collectively, "Merlin"). Shortlyafter this case was filed,Summit Park invoked the appraisalprovision of the policy,under which "each party will select a competent and impartialappraiser,"the court selects an umpire ifthe appraiserscannot agree on a selection,and a "decision agreed to by any '.., two" o f the three as to the "value o f the property and amount of loss' 'will be binding." Doc. # 6-1 at 78. In April 2015, I ordered the appraisalprocess to proceed. Doc. # 17. Summit Park selected George Keys as its appraiser and Auto-Owners selected Jim Koontz as its appraiser. failure to reach agreement on various Docs. # 24,29. In September 2015, upon the parties' 2 Case 1:14-cv-03417-LTB Document 105 Filed 08/01/16 USDC Colorado Page 3 of 17 aspects ofthe process, I imposed several guidelines.Doc. # 25. One ofthe guidelinesI imposed stated: An individual who has a known, direct,and material interest in the outcome ofthe appraisalproceeding or a known, existing, and substantial relationship a with party may not serve as an appraiser. Each appraisermust, after making a reasonable inquiry,disclose to all partiesand any other appraiserany known facts that a reasonable person would consider likelyto affect his or her impartiality,including(a)a financial or personal interest in the outcome of the appraisal; and (b) a current or previousrelationship with any of the parties(includingtheir counsel or representatives) or with any of the participants in the appraisal proceeding, witnesses, another appraiser,or including licensed public adjusters, the umpire. Each appraisershall have a continuingobligationto disclose to the partiesand to any other appraiserany facts that he or she learns after accepting appointment that a reasonable person would consider likelyto affect his or her If an impartiality. appraiser discloses a fact requiredto be disclosed pursuant to this paragraph and a party files an objection in this Court to the appointment or continued services ofthe appraiserno later than 15 days after becoming aware of such fact (or from the date ofthis order, whichever comes later), the objectionmay be a ground for vacating an award made by the appraiser. The same objection procedure shall apply in the event a party becomes aware of information bearing on an appraiser'scompetency. Id at 12-13. Iexplainedthatthisguideline"willminimizetheriskthattheappraisalawardwill need to be vacated" pursuant to the policy language requiringthat the appraisersbe impartial. Id at 9. I also directed that "[t]hepartiesand their counsel shall make every reasonable effort to ensure that the appraisalprocess proceeds in accordance with this order." Id at 14-15. At the end ofthe order, I provided the followingnotice: NOTICE IS GIVEN THAT, IF THE COURT FINDS THAT THE PARTIES AND/OR THEIR COUNSEL HAVE NOT COMPLIED WITH THIS ORDER, THE COURT WILL IMPOSE SANCTIONS AGAINST THE PARTIES AND/OR THEIR COUNSEL PURSUANT TO THE COURT'S INHERENT AUTHORITY. 3 Case 1:14-cv-03417-LTB Document 105 Filed 08/01/16 USDC Colorado Page 4 of 17 Id at 15. I will refer to this as the "disclosure order." Upon the appraisers' failure to reach an agreement regardingthe selection of an umpire,I appointedRobert J