Preview
Filing # 181802201 E-Filed 09/14/2023 11:16:57 AM
_J
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO: 2023-CA-010153-XXXX-MB
PEDRO RUIZ RODRIGUEZ AND KARLA
GONZALEZ,
Plaintiffs,
vs.
STATE FARM FLORIDA INSURANCE
COMPANY,
Defendant,
DEFENDANT’S MOTION FOR SANCTIONS AGAINST THE PLAINTIFF DUE TO
SPOLIATION OF EVIDENCE, AND, MOTION FOR ADVERSE INFERENCE JURY
INSTRUCTIONS
COMES NOW the Defendant, STATE FARM FLORIDA INSURANCE COMPANY, by
and through undersigned counsel and hereby files this Motion and as grounds for such states as
follows.
FACTUAL BACKGROUND AND SUMMARY OF PLAINTIFF’S INSURANCE
CLAIM
1. The Plaintiff brought this action on or about May 9, 2023 as a result of alleged damages to the
insured property as a result of Hurricane Ian (date of loss September 28, 2022).
2. On June 12, 2023, the Defendant filed a Rule 1.350 Request for Entry Upon Land to Conduct
an Inspection.
3. The Defendant’s first effort to set said inspection was on June 20, 2023 - the Defendant was
met with no response. See Exhibit A, at Ex. A.
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*** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 09/14/2023 11:16:57 AM ***
4. The Defendant’s second effort to set said inspection was on June 22, 2023 - the Defendant
was met with no response. Id.
5. The Defendant’s third effort to set said inspection was on June 30, 2023 - the Defendant was
met with no response. Id.
6. The Defendant’s fourth effort to set said inspection was on July 7, 2023 - the Defendant was
met with no response. Id.
7. On July 10, 2023, the Defendant filed a Motion to Compel Entry Upon Land based upon
Plaintiffs above-referenced failures to respond. Id.
8. On July 17,2023, the Defendant contacted Plaintiff s counsel for a hearing date on said Motion
- the Defendant was met with no response for a fifth time. See Exhibit B.
9. On July 18, 2023, the Defendant again contacted Plaintiffs counsel for a hearing date on said
Motion - the Defendant was met with no response for a sixth time. Id.
10. Then on August 9, 2023, the undersigned authored correspondence to the Plaintiff in another
futile effort to act in good faith regarding the Motion to Compel and the prior Request for Entry
Upon Land, and further advised of Defendant’s concerns regarding spoliation of evidence
issues. See Exhibit C.1
11. In conjunction with the undersigned’s August 9, 2023 correspondence, the undersigned
proceeded to unilaterally schedule a hearing on its Motion to Compel to occur on September
20, 2023. See Exhibit D.
12. On August 10, 2023, rather than merely coordinate a date for the inspection as Defendant had
attempted to do for the two months prior, or even respond to Defendant’s efforts to coordinate
Within Defendant’s Answer and Affirmative Defenses, the Defendant asserted the insureds’ non-compliance with
- -
1
the SECTION I CONDITIONS Duties After Loss provision of the policy regarding the insureds’ failure to give
immediate notice of the loss to the Defendant. See Defendant’s Answer filed under separate cover.
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a hearing on the Motion, Plaintiff instead filed what it claimed to be an Emergency Motion for
Protective Order regarding Defendant’s unilaterally set hearing.
13. Also on August 10, the Plaintiff sought an emergency hearing on its Motion, but was directed
to the local rules of professional responsibility as well as the Circuit Court’s definition of what
constituted an “Emergency Motion”. See Composite Exhibit E.
14. Despite the fact that another month has elapsed and the Plaintiff has not sought to cooperate
whatsoever with either Defendant’s efforts to procure an inspection or even an amicable
hearing date on Defendant’s Motion, the property has now been unnecessarily subject to an
additional four months of exposure to the elements and spoliation of the evidence germane to
this case (i.e., the condition of Plaintiffs’ roof), thereby directly prejudicing Defendant’s ability
to conduct an inspection of same.
15. Therefore, the Defendant seeks an Order from this Honorable Court imposing substantive
sanctions, including but not limited to an adverse inference jury instruction and for any
additional relief deemed just and proper.
MEMORANDUM OF LAW
Defendant seeks an Order directing the Plaintiff to allow the Defendant to conduct an
inspection as permitted by Rule 1.350 within the next 15 days, enter an award of sanctions against
the Plaintiff for its failure to make discovery, and to further allow for an adverse inference jury
instruction against the Plaintiff. Such an Order would not only permit the Defendant the relief that
it has long sought from the Court (in its attempted efforts to avoid Court intervention) but to also
sanction the Plaintiff as a result of clear prejudice caused to the Defendant by way of Plaintiff s
actions. There is no doubt that the Plaintiffs actions, i.e., the subterfuge of the discovery process
of unnecessarily and improperly delaying the Defendant’s right to conduct an inspection of the
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roof, constitute Plaintiffs deliberate and contumacious disregard for the discovery process, which
has led to the spoliation of evidence of the one thing truly at-issue in this lawsuit - the condition
of the Plaintiffs’ roof.
Rule 1.380 of the Florida Rules of Civil Procedure discusses and governs sanctions with
regards to the abuse of the discovery process through litigation. The purpose of Rule 1.380 is to
protect the integrity of the judicial system and its litigants by imposing penalties on those who
engage in discovery abuses. Amlan, Inc. v. Detroit Diesel Corp., 651 So. 2d 701, 705 (Fla. 4th
DCA 1995). The remedies under Rule 1.380 promote the orderly movement of litigation. Mercer
v. Raine, 443 So. 2d 944, 946 (Fla. 1983). “Although [Rule 1.380] only speaks of a party who
fails to obey an order to provide or permit discovery, even in the absence of an order that evidence
must be preserved or produced, a trial court has the inherent power to impose sanctions on a party
who destroys evidence or perpetrates a fraud on the court.” Babe Elias Builders, Inc. v. Pernick,
765 So. 2d 119, 120 (Fla. 3d DCA 2000) citing Figgie Intern, v. Aiderman, 698 So.2d 563, 567
(Fla. 3d DCA 1997); Tramel v. Bass, 672 So.2d 78, 83 (Fla. 1st DCA 1996).
The “inherent powers [of a court] to perform efficiently its judicial functions, to protect its
dignity, independence and integrity...” necessarily includes the authority to impose appropriate
sanctions. Tramel v. Bass, 672 So.2d 78, 82 (Fla. 1st DCA 1996); see also Tri Star Investments,
Inc. v. Miele, 407 So.2d 292, 293 (Fla. 2d DCA 1981). The trial court is accorded “considerable
latitude in dealing with serious abuses of the judicial process.” Tramel v. Bass, 672 So.2d 78, 82
(Fla. 1st DCA 1996). In light of the court’s inherent authority to grant sanctions to ensure
compliance with the execution of justice, Defendant requests this court enter any or all of the
sanctions which have been established as available for discovery violations, including but not
limited to; adverse inference jury instruction, and monetary sanctions such as fees and costs.
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The law is clear that sanctions should be tailored to fit the violations which triggered them.
See Tramel v. Bass, 672 So.2d 78, 82 (Fla. 1st DCA 1996) (finding that the court has inherent
authority to impose appropriate sanctions). In this matter, Plaintiffs’ counsel’s actions are a
textbook case of spoliation of evidence based upon a now additional four months having elapsed
and the exposure of the Plaintiffs’ roof to the elements during the peak of the Florida Hurricane
Season. “Spoliation is the intentional destruction, mutilation, alteration, or concealment of
evidence.” Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla. 4th DCA 2006). Spoliation is
established when the party seeking sanctions proves that: (1) certain evidence existed at one time,
(2) the spoliator had a duty to preserve the evidence, and (3) the evidence was crucial to the
movant's prima facie case or defense. Id. In circumstances where the lost evidence was under the
sole control of the party against whom the evidence might have been used to effect, and where the
lost evidence is in fact critical to prove the other party’s claim, an adverse inference instruction
may be necessary to achieve justice in the jury’s determination of the case. Am. Hosp. Mgmt. Co.
v. Hettiger, 904 So. 2d 547, 550-51 (Fla. 4th DCA 2005). A duty to preserve evidence can
originate in a contract, statute, or a discovery request because such a duty does not exist at common
law. See Gayer v. Fine Line Constr. & Elec., Inc., 970 So. 2d 424, 426 (Fla. 4th DCA 2007) citing
Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 845 (Fla. 4th DCA 2004); see
also Strasser v. Yalamanchi, 783 So. 2d 1087, 1093 (Fla. 4th DCA 2001) (a party does have an
affirmative responsibility to preserve any items or documents that are the subject of a duly served
discovery request.); Figgie Int'l, Inc. v. Aiderman, 698 So. 2d 563, 567 (Fla. 3d DCA 1997) (the
duty of a litigant to preserve relevant evidence is established by the opposing party's submission
of a discovery request identifying documents of the same subject matter as those which the
receiving party possesses.) Courts in other jurisdictions have recognized that parties are on notice
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that a claim for discovery is reasonably foreseeable once they have knowledge that a claim has
been submitted to their insurance carrier. Smith v. Shipping Utils., Inc., No. Civ. 05-500-GPM,
2005 W1 3133494 at *3 (S.D. Ill. 2005); Keene v. Brigham & Women’s Hosp., Inc., 786 N.E. 2d
824, 833 (Mass. 2003)(holding that the duty to preserve evidence arose on day that the Plaintiff
filed notice with insurance carrier of a potential claim).
PLAINTIFF’S COUNSEL’S ACTIONS ARE A CLEAR VIOLATION OF THEIR DUTY~
TO PRESERVE EVIDENCE
In the case at hand, the Plaintiffs have hired an attorney to report the underlying claim and
was on notice from the initial filing of the claim. The Defendant’s denial of the Plaintiff s claim
was based, in part, on the Plaintiffs’ failure to timely report the loss as required by the provision
of the policy entitled: SECTION I - CONDITIONS - Duties After Loss. Since the time which
the Plaintiffs have made a claim to the Defendants for purported damages to the residence, the
Plaintiffs have thus been under an affirmative duty to not only preserve evidence but also to make
it available to the Defendant for purposes of inspection and discovery. See Smith; see also Keene.
In this action, the Defendant has made requests (formal and informal) by way of written
correspondence, Motion practice, and the filing of Inspection Requests permitted by the Rules of
Procedure for the better part of the last three months. Now only as a result of Defendant’s pursuit
of a Court Order by way of a Motion to Compel, is the Defendant permitted to inspect and conduct
discovery on the matters subject and pertinent to this action i.e., the condition of the property.
—
During the South Florida Summer/Hurricane season, it is not unreasonable for the Defendant to be
concerned with the Plaintiffs’ failure to preserve the condition of the property in the passing of
recent months as a result of Plaintiffs’ now deliberate delays.
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“Florida definitely recognizes a duty to preserve evidence after a lawsuit has been filed.”
Silhan v. Allstate Ins. Co., 236 F. Supp. 2d 1303, 1311 (N.D. Fla. 2002). See also Telectron, Inc.
v. Overhead Door Corp., 116 F.R.D. 107, 127 (S.D.Fla.1987) (imposing sanctions against a
litigant on notice that documents and information in its possession are relevant to litigation, who
destroys such documents and information). “[E]ven where an action has not been commenced and
there is only a potential for litigation, the litigant is under a duty to preserve evidence which it
knows or reasonably should know is relevant to the action” (quoting Fire Ins. Exchange v. Zenith
Radio Corp., 103 Nev. 648, 747 P.2d 911, 914 (1987)); Pennsylvania Lumberman's Mut. Ins. Co.
v. Florida Power & Light Co., 724 So.2d 629, 630 (Fla. 3d DCA 1998) (suggesting that in the
context of an action for spoliation of evidence, notification of potential litigation triggers the
obligation to preserve evidence).
Here, it cannot be disputed that the evidence at issue in this instance existed at one time (as
evidenced by Defendant’s Affirmative Defense of untimely reporting) but has since been subject
to the elements and passage of time, leading to the likely further destruction and deterioration of
the property, thereby causing it to be altered in its state than it was at the time which the purported
weather event initially occurred (in September 2022). The Plaintiff possessed a duty to preserve
any and all evidence because that was in existence at the time of the filing of this suit and, as such,
the evidence would have been subject to discovery.
Sanctions for spoliation may be imposed when a party fails to preserve evidence. Fleury
v. Biomet, Inc., 865 So. 2d 537, 539 (Fla. 2d DCA 2003). “Even when it is clear that evidence has
been lost while in the custody of a party, the appropriate sanction varies according to the
willfulness or bad faith, if any, of the party who lost the evidence, the extent of the prejudice
suffered by the other party, and what is required to cure the prejudice.” Id; see also Metropolitan
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Dade County v. Bermudez, 648 So.2d 197 (Fla. 1st DCA 1994); Federal Ins. Co. v. Allister Mfg.
Co.,622 So.2d 1348, 1350-52 (Fla. 4th DCA 1993); Rockwell InfI Corp. v. Menzies, 561 So.2d
677, 679-80 (Fla. 3d DCA 1990). “[W]here a party in possession loses or destroys crucial record
evidence, a burden is imposed on that party to prove that the loss or destruction was not in bad
faith.” Hernandez v. Pino, D.D.S., 482 So. 2d 450, 453 (Fla. 1986).
Here, the Plaintiffs cannot meet their burden to establish that the spoliation of the evidence
was not in bad faith, based upon the clear fact that their petition to the Court for an emergency
hearing on their Motion for Protective Order was not met with relief from the Court. In the time
which has since elapsed since June 2023 when Defendant first commenced its efforts to coordinate
an inspection of the property, the Plaintiffs have not once provided a reasonable alternative date
for the hearing on Defendant’s Motion to Compel Entry Upon Land, or even provide a reasonable
date for the occurrence of the inspection itself. Further evidenced by the Plaintiff’s lack of
response to Defendant’s Motion to Compel or Request for Entry Upon Land, it is clear from
the record that counsel for the Plaintiff has no basis in law or fact to deprive the Defendant
of its opportunity to inspect, other than to deliberately cause prejudice to the Defendant by
wav of the passage of additional time and causing for evidence to become destroyed.
COURTS AUTHORITY TO SANCTION
Courts have the inherent authority to sanction a spoliating party under Florida Rule of Civil
Procedure 1.380. See Fini v. Glascoe, 936 So. 2d 52, 55 (Fla. 4th DCA 2006). An order dismissing
a case for failure to comply with the discovery rules may be appropriate if the violation was willful
and deliberate. See Marr v. State Dept. ofTransp., 614 So. 2d 619 (Fla. 2d DCA 1993); see also
Belle Glade Chevrolet-Cadillac Buick Pontiac Oldsmobile, Inc. v. Figgie, 54 So. 3d 991, 996 (Fla.
4th DCA 2010) (finding that evidence showing “deliberate and contumacious disregard” of
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discovery orders supported severe sanctions such as striking pleadings and entering a default).
Although an order of dismissal is a severe sanction, a “deliberate and contumacious disregard of
the court's authority will justify application of this severest of sanctions, as will bad faith, willful
disregard or gross indifference to an order of the court, or conduct which evidences a deliberate
callousness.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983); see also Desimone v. Old
Dominion Insurance Co., 740 So.2d 1233,1234 (Fla. 4th DCA 1999) (“[W]here a party perpetrates
fraud on the court which permeates the entire proceedings, dismissal of the entire case is proper.”);
Precision Tune Auto Care, Inc. v. Radcliffe, 804 So. 2d 1287, 1291 (Fla. 4th DCA 2002) (finding
that various violations of discovery procedures evidenced a willful disregard of the court’s order
which justified the imposition of severe sanctions).
If this Court finds that the Plaintiffs or their Counsel have in fact engaged in the destruction
of evidence has permeated the entirety of the claim as the destroyed evidence would have
undoubtedly revealed information that exists as a central matter at issue in this lawsuit. The
Plaintiffs have yet to provide any information or insight to the Court or the undersigned as to the
basis for their failure to cooperate for purposes of an inspection of the subject property. Without
the ability to inspect the property, the Defendant is being deprived of its right to determine whether
the Plaintiffs’ case holds water.
Should the Court not find that dismissal is a proper remedy, Defendant respectfully
requests that the court enter an order imposing substantive sanctions, including an adverse
inference jury instruction. Such is permitted by the Supreme Court’s standard jury instruction,
301.11, which reads as follows:
The Florida Supreme Court Standard Jury Instructions 301.11 states:
a. Adverse Inference
Ifyou find that:
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(Name of Party) lost / destroyed / mutilated / altered / concealed or
otherwise caused the (described evidence) to be unavailable, while it was
within his or her possession, custody or control; and the (describe evidence)
would have been material in deciding the disputed issues in this case; then
you may, but are not required to, infer that this evidence would have been
unfavorable to (name ofparty). You may consider this, together with other
evidence, in determining the issues of the case.
In this action, the Defendant has submitted a proposed jury instruction to the Court for
consideration, which has been filed under separate cover.
At this point in the subject litigation, Defendant has been undoubtedly prejudiced in its
ability to prepare a full and complete defense. See Rockwell Int'l Corp. v. Menzies, 561 So. 2d
677, 680 (Fla. 3d DCA 1990) (degree of sanctions to be imposed must be related to degree of
prejudice sustained by non-offending party); Harrell v. Mayberry, 754 So. 2d 742, 745 (Fla. 2d
DCA 2000) (“Drastic sanctions, including default, are appropriate when a defendant alters or
without
destroys physical evidence, and when the plaintiff has demonstrated an inability to proceed
such evidence.”); Sponco Mfg, Inc. v. Alcover, 656 So. 2d 629, 630 (Fla. 3d. DCA. 1995). Even
and
“(i]n cases of negligent spoliation, courts prefer to utilize adverse evidentiary inferences
adverse presumptions during trial to address the lack of evidence.” Id.
CONCLUSION:
Defendant submits to the Court that the requested sanctions of dismissal and or an adverse
jury instruction are eminently necessary because, without the imposition of sanctions against
the
Plaintiff, Defendant is left with no other remedies for the prejudice imposed upon them by the
Plaintiffs’ allowance for the destruction and deterioration and spoliation of material evidence. The
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Court’s failure to do so would instead encourage Plaintiffs’ behavior and potentially reward it for
their disregard of the discovery process and the Defendant’s rights to conduct same.
Based on the foregoing, the Plaintiff had and currently still has a duty to preserve the
condition of the property so as to allow Defendant to inspect same, as it is the very subject matter
of this present litigation. Defendant respectfully requests this Honorable Court impose the
appropriate sanction given the Court’s broad authority to do so, including but not limited to
dismissal, striking of the pleadings, an adverse inference jury instruction, and monetary sanctions
such as fees and costs, for the aforementioned discovery violations. The Defendant believes the
degree of this sanction is related to the degree of prejudice Plaintiff has imposed on Defendant.
Allowing this case to continue without imposing an adverse instruction on the Plaintiff for failure
to preserve the subject evidence of this instant matter, would be severely prejudicial to the
Defendant and contrary the applicable law.
WHEREFORE, the Defendant, STATE FARM FLORIDA INSURANCE COMPANY,
respectfully seeks an Order from this Honorable Court imposing the appropriate sanction including
but not limited to dismissal, monetary sanctions, and/or entry of an adverse inference jury
instructions on the due to spoliation of evidence, and for any additional relief this Court deems
just and proper.
[THIS SPACE INTENTIONALLY LEFT BLANK]
[7030503/1]
CERTIFICATE OF SERVICE
hereby certify that a true and correct copy of the foregoing was served by E-Mail on
I
September 14,2023 to: Maria Corvaia O'Donnell, ESQ., The People's Law, P.A., 2436 N. Federal
Highway # 440, Lighthouse Point, FL 33064, eservice@peopleslawteam.com.
KIRWAN, SPELLACY, DANNER, ROBB,
/
& HICKMAN P.A.
Attorneys for Defendant
200 South Andrews Avenue 8th Floor
Fort Lauderdale, FL 33301
t: (954) 463-3QjQ«^ /
//_/_
f: (954) 46^010
Pleading^:pleaditfgg@kirwifnspellacv.com
BY:
/R. RYAN SMITH
FLORIDA BAR NO. 119396
[7030503/1]
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO: 2023-CA-010153-XXXX-MB
PEDRO RUIZ RODRIGUEZ AND KARLA
GONZALEZ,
Plaintiffs,
vs.
STATE FARM FLORIDA INSURANCE
COMPANY,
Defendant,
/
DEFENDANT’S MOTION TO COMPEL ENTRY UPON LANI) FOR INSPECTION
PURSUANT TO FLORIDA RULE OF CIVIL PROCEDURE 1.350
COMES NOW, Defendant, STATE FARM FLORIDA INSURANCE COMPANY, by
and through its undersigned counsel, hereby files this Motion to Compel Entry Upon Land for
Inspection Pursuant to Florida Rule of Civil Procedure 1.350, and in support thereof states
as
follows:
I. Plaintiff filed its Complaint on May 9, 2023, alleging damage to the real property
located at 10508 Vignon Court, Wellington, Florida 33449-8055 (the “Property”).
2. That, pursuant to the allegations in the Plaintiffs Complaint, the Plaintiff has
alleged that the aforementioned Hurrican Ian caused damage to the subject
property.
3. Defendant’s ability to inspect the Property is imperative and integral to the
Defendant’s defense of the subject action.
4. This Motion is made in good faith and not for the purpose of prejudice or delay
[6942456/1 ]
5. Pursuant to Florida Rule of Civil Procedure 1.350(a):
land oi
Any party may request any other part to permit entry upon designated
other property in the possession or control of the party upon whom the request is
served for the purpose of inspection and measuring, surveying, photographing,
or operation on it
testing, or sampling the property or any designated object
within the scope of rule 1.280(b).
6. . Defendant is clearly entitled to inspect the subject property within the proper
scope of discovery.
7. Defendant has incurred additional costs and unnecessary delays which have
a after
prevented its engineer to inspect the alleged damages and prepare report
inspection.
8. The undersigned has conferred with Plaintiffs counsel in good faith in attempt to
coordinate this inspection without necessity of court intervention in accordance
with Rule 1.380(a)(4), but Plaintiffs’ counsel failed to respond and/or cooperate
with Defendant’s requests for engineer entry upon the Property for the purpose of
as Exhibit A
inspection. Please see the email correspondence attached hereto
.
WHEREFORE, Defendant STATE FARM FLORIDA INSURANCE COMPANY
the Plaintiff to make the
respectfully requests this Honorable Court enter an Order compelling
premises located at 10508 Vignon Court, Wellington,
Florida 33449-8055 available for
or within
inspection by the Defendant and/or the Defendant’s agents, employees, representatives
ten (10) days, and for such and further relief as this court deems just and proper.
[Certificate of Service on next page]
[6942456/1]
CERTIFICATE OF SERVICE
was served by E-Mail on
hereby certify that a true and correct copy of the foregoing
I
The People's Law, P.A., 2436 N. Federal
July 10, 2023 to: Maria Corvaia O'Donnell, ESQ.,
Highway # 440, Lighthouse Point, FL 33064, eservice@peopleslawteam.com.
KIRWAN, SPELLACY, DANNER,
BROWNSTEIN, & ROBB P.A.
Attorneys for Defendant
200 South Andrews Avenue
8th Floor
Fort Lauderdale, FL 33301
t: (954) 463-3008
f: (954)463-3010
Pleadings: pleadings@kirwanspellacy.com
RY:_ /s/R, RYAN SMITH
R. RYAN SMITH
FLORIDA BAR NO. 119396
RRS/kp2
Matter #23-28737
[6942456/1]
EXHIBIT "A"
From: Mariaelena Tomas
Sent: Friday,Ouly 7, 2023 9:30 AM
To: 'eservice@peopleslawteam.com'
Cc: 'mariao'donnell@peopleslawteam.com'
Subject: FW: Rodriguez & Gonzalez v SF; [claim] 5940L201P; Matter# 23-28737^.,—--
■
Importance: High
’
Good Morning,
Hope this email finds you well.
Please be advised that this is our 4th & final attempt to mutually coordinate a property inspection
I have an engineer availed on Thursday, 8/17 @ 9:00 a.m.
Please let me know if that date works for your client.
From: Mariaelena Tomas
Sent: Friday, June 30, 2023 10:20 AM
To: 'mariao'donnell@peopleslawteam.com'
Cc:'eservice@peopleslawteam.com'
Subject: FW: Rodriguez & Gonzalez v SF ; [claim] 5940L201P ; Matter# 23-28737
Importance: High
3rd request
Good Morning, ___
Hope this email finds you well.
Our office would like to set up a property inspection on the above reference case for 7/11/23 at 9:00
A.M.
Please advise if that date/time is available and if the handling attorney will be attending.
from: Mariaelena Tomas
Sent: Thursday, June 22, 2023 11:44 AM
To: 'eservice@peopleslawteam.com' < eservice@peopleslawteam.com >
Subject: FW: Rodriguez & Gonzalez v SF ; [claim] 5940L201P ; Matter# 23-28737:
Importance: High
Good Afternoon,
This is my second request regarding the below
From: Mariaelena Tomas
Sent: Tuesday, June 20, 2023 9:31 AM
To: 'eservice@peopleslawteam.com'
Subject: Rodriguez & Gonzalez v SF ; [claim] 5940L201P ; Matter# 23-28737:. _
(
Good Afternoon,
Good Morning
Hope this email finds you well.
Our office would like to set up a property inspection on the above reference case for 7/11/23 at 9:00
A.M.
Please advise if that date/time is available and if the handling attorney will be attending.
Thank You,
Mariaelena Tomas
Legal Assistant to Ryan Smith, Esq.
KIRWAN SPELLACY, DANNER, BROWNSTEIN & ROBB
200 South Andrews Avenue
8th Floor
Fort Lauderdale, FL 33301
Phone:(954)463-3008
Fax: (954) 463-3010
E-Mail: Mloinas@kirwanspellacy.com
E-Notice: pleadings^kirwanspellacy.com
KI RWAN I SPELLACY
DAN X ER I BROWNSTEIN
ROBB
KIRWAN SPELLACY, DANNER, BROWNSTEIN & ROBB is an Insurance Defense Litigation firm with offices
in Miami-Dade, Broward, Palm Beach, Monroe, Collier, Lee, Martin, St. Lucie, Hillsborough, Indian River
counties.. Visit www.kirwanspellacy.com on the web for information on our Attorneys, Practice Areas,
Office Locations and Seminars.
CONFIDENTIALITY NOTICE: The information contained in this e-mail is intended only for the confidential
use of the recipient(s) named above. This message and its attachments are attorney-client privileged
communications, work product and mental impressions of the above sender. If the reader of this
are
message is not the intended recipient or if you have received this communication in error, you
at once and any
hereby notified that you have received this in error, that you should destroy it, notify us
review, dissemination or copying is strictly prohibited.
R^an^Smith
Sent: Thursday, September 14, 2023 10:08 AM
To: Alina Lazarre; 'dvasallo 'Maria O'Donnell'
Cc: 'dd159f9a6+matteri 565802020@maildrop.clio.com'
Subject: RE: Rodriguez 8i Gonzalez v SF ; [claim] 5940L201P ; Matter# 23-28737: D's MTC entry
From: Alina Lazarre
Sent: Tuesday, July 18, 2023 3:05 PM
To: 'dvasallo ; 'Maria O'Donnell'
Cc: 'ddl59f9a6+matterl565802020@maildrop.clio.com'
Subject: RE: Rodriguez & Gonzalez v SF ; [claim] 5940L201P; Matter# 23-28737: D's MTC entry
Good Afternoon,
I Hope all is well.
AT this time our office would like to coordinate the following attached above
Kindly advise which date/time works for your office
All times start at 8:30am - only dates judge have available
8/30
8/31
Thank you
♦ S c h e dNote*u l i n g
Please be advised that the dates provided may have been offered to others and will only be secured on a first come-first
serve basis.
For all scheduling matters, please send your request via email.
Dates given for depositions are NOT guaranteed and a hold will not be placed on the calendar until CONFIRMED.
After three attempts at coordinating hearings or depositions, we will move forward with unilaterally scheduling the
aforementioned hearing or deposition.
Alina Lazarre
Scheduler for Ryan Smith
200 South Andrews Avenue
8th Floor
Fort Lauderdale, Florida 33301
Phone:954.463.3008
Fax:954.463.3010
EXHIBIT "
alazarre@kirwanspellacv com
vww.kirwanspellacv.com
| KIRWAN | SPELLACY
J— —a | DANNER | WATKINS BROWNSTEIN
|
\ I I 11 It X ! r S A I 1 A w
KIRWAN, SPELLACY, DANNER, WATKINS & BROWNSTEIN is an Insurance Defense Litigation firm handling matters in
Miami-Dade, Broward, Palm Beach, Monroe, Collier, Lee, Charlotte, Martin, St. Lucie,
Hillsborough, Indian River, Brevard, Okeechobee, Highlands, Glades and Hendry counties.
CONFIDENTIALITY NOTICE: The information contained in this e-mail is intended only for the confidential use of the recipient(s) named above. This
message and its attachments are attorney-client privileged communications, work product and mental impressions of the above sender. If the reader of
this message is not the intended recipient or if you have received this communication in error, you are hereby notified that you have received this in
error, that you should destroy it, notify us at once and any review, dissemination or copying is strictly prohibited. Please consider the environment
before printing this email.
On Monday, July 17, 2023 at 10:00:46 AM EDT, Alina Lazarre wrote:
Good Morning,
I Hope all is well.
AT this time our office would like to coordinate the following attached above
Kindly advise which date/time works for your office
All times start at 8:30am
8/30
8/31
Thank you
*Scheduling Note*
Please be advised that the dates provided may have been offered to others and will only be secured on a first come-first serve basis.
2
Ryan Smith
From: Mariaelena Tomas
Sent: Wednesday, August 9, 2023 4:29 PM
To: 'dvasallo@peopleslawteam.com'
Cc: 'Maria O'Donnell'
Subject: SERVISE OF COURT DOCUMENT 2023-CA-010153
Attachments: Letter to OC re reinspection.pdf
RODRIGUEZ & GONZALEZ
vs.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
DOCUMENTS: LETTER REGARDING RE-INSPECTION
SENT: Ryan Smith, Esquire
PHONE: 954-463-3008
Thank You,
Mariaelena Tomas
Legal Assistant to Ryan Smith, Esq.
200 South Andrews Avenue
8th Floor
Fort Lauderdale, FL 33301
Phone: (954) 463-3008
Fax: (954) 463-3010
E-Mail: Mtomas@kirwanspellacy com
E-Notice: pleadings@kirwanspellacy.com
KIRWAN I SPELLACY
DANNER I ROBB
HICKMAN
ATTORNEYS AT LAW
KIRWAN, SPELLACY, DANNER, ROBB & Hickman is an Insurance Defense Litigation firm handling matters in
Miami-Dade, Broward, Palm Beach, Monroe, Collier, Lee, Martin, St. Lucie,
Hillsborough, Indian River counties.
CONFIDENTIALITY NOTICE: The information contained in this e-mail is intended only for the confidential use of the recipient(s) named above. This
message and its attachments are attorney-client privileged communications, work product and mental impressions oftl UI,1—“Stef of
1
EXHIBIT "
Kirwan Spellacy Danner
Lissette M. Alvarez
Christopher L. Kirwan Thomas R. Glasson
Patrick S. Spellacy David D. Hernandez
Scott E. Danner ROBB & HICKMAN Serghei lanachi
Nicole E. Jacomo
Michael A. Robb
ATTORNEYS AT LAW Juliette Orozco
Jeffrey R. Hickman
200 South Andrews Avenue, 8th Floor • Fort Lauderdale, Florida 33301 R. Ryan Smith
Telephone (954) 463-3008 • Facsimile (954) 463-3010 Geovanna Sotelo
www. kirwanspellacy. com Rachell Tejada
August 9, 2023
Maria Corvaia O'Donnell
The People's Law, P.A.
2436 N. Federal Highway # 440
Lighthouse Point, FL 33064
Re: Rodriguez & Gonzalez v SF
Date of Loss: 9/28/2022
Palm Beach Case No.: 2023-CA-010153
Dear Ms. O'Donnell:
write to you on this matter to call your attention to the efforts which my office has
I
undertaken with respect to a re-inspection of your client’s property. As a bit of brief
background, the Request for Entry Upon Land was filed with the Court on June 12, 2023. My
office then engaged in a repeated series of efforts to procure an inspection date without Court
intervention until eventually a Motion to Compel Entry Upon Land was filed with the Court on
July 10, 2023.
Since the filing of that Motion, my office has been met with continued delay tactics from
either your office, your client, or both. At this point, I am only left to believe that you are
refusing to allow my client to conduct a re-inspection in the property. This raises potential
spoliation of evidence issues with which I do not intend to take lightly.
At this point, I have directed my office to seek intervention from the Court and
unilaterally set a hearing on my above-referenced Motion. Should that result in the need for a
hearing, please be advised that I will be filing a separate Motion for Sanctions for spoliation.
Alternatively, let’s proceed amicably and set a date certain for the re-inspection to occur
within thirty days of the date of this correspondence.
Sincerely
R. RycM/SmCth/
R. Ryan Smith
RRS/rrs
Additional Offices: 19 West Flagler Street, Suite 1100 • Miami, FL 33130 - Telephone (786) 275-3140
2080 W. Indiantown Road, Suite 200 - Jupiter, FL 33458 • Telephone (561) 615-0333 - Facsimile (561) 744-4540
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO: 2023-CA-010153-XXXX-MB
PEDRO RUIZ RODRIGUEZ AND KARLA
GONZALEZ,
Plaintiffs,
STATE FARM FLORIDA INSURANCE
COMPANY,
Defendant,
(
NOTICE OF HEARING
Unilaterally set after several attempts on 8/9/2023
PLEASE TAKE NOTICE that the undersigned will call up the following:
DATE: September 20,2023
TIME: 08:30 A.M.
JUDGE: The Honorable Jaimie Goodman
LOCATION: VIA ZOOM
SPECIFIC MATTER TO BE HEARD:
Defendant’s Motion to Compel Entry upon land for Inspection
PLEASE GOVERN YOURSELF ACCORDINGLY.
** Movant counsel certifies that a good faith attempt to resolve this matter was made prior to my
noticing this motion for hearing, and the issues before the Court may be heard and resolved by
the Court within minutes.
[6984513/1] "
EXHIBIT
CERTIFICATE OF SERVICE
hereby certify that a true and correct copy of the foregoing was served by E-Mail on
I
August 9, 2023 to: Maria Corvaia O'Donnell, ESQ., The People's Law, P.A., 2436 N. Federal
Highway # 440, Lighthouse Point, FL 33064, eservicef5jpeopleslawteam.com.
KIRWAN, SPELLACY, DANNER, ROBB,
& HICKMAN P.A.
Attorneys for Defendant
200 South Andrews Avenue 8th Floor
Fort Lauderdale, FL 33301
t: (954) 463-3008
f: (954) 463-3010
Pleadings: pleadings@kirwanspellacy.com
BY: /s/ R. RYAN SMITH
R. RYAN SMITH
FLORIDA BAR NO. 119396
cc: Judicial Assistant
Claim #5940L201P
RRS/al2
Matter# 23-28737
If you are a person with a disability who needs any accommodation to participate in this proceeding, you are
entitled, at no cost to you, to the provision of certain assistance. Please contact the Miami Dade County Court's
ADA Coordinator at Lawson E. Thomas Courthouse Center, 175 N.W. 1st Ave., Suite 2702, Miami, FL 33128,
telephone numbers (305) 349-7175 for voice or (305) 349-7174 for TDD and 349-7355 for fax, within two working
days of your receipt of this document. If you are hearing or voice impaired, please call 711 for the Florida Relay
Service.
[6984513/1]
Ryan Smith
From: CAD-Division AD
Sent: Thursday, August 10, 2023 11:59 AM
To: dvasallo .
Cc: Mariaelena Tomas; Ryan Smith; Maria O'Donnell
Subject: RE: Emergency Hearing Request || Rodriguez and Gonzalez v. State Farm || 2023-
CA-010153-
-
Attachments: A.O. 3.206-0109 - Emergency Hearings in Circuit Civil Matters.pdf; PBC Bar Association
Standards of Professional Courtesy and Civility (v2014).pdf
Please familiarize yourself with the instructions and rules of this Circuit at
www. 15thcircuit.com. As to your email inquiry, please refer to Administrative Order
3.206 - Emergency Hearings in Circuit Civil Matters Administrative Orders by Topic | 15th
Circuit - (copy of which is attached for your reference).
*as to line 2 of your email. See also attached: (an example of) Standards of
Professional Courtesy and Civility.
To all a good day,
Maria Vasil Collins
Judicial Assistant to
The Honorable Jaimie Goodman
Main Judicial Complex
Circuit Civil Division “AD”
205 North Dixie Highway
West Palm Beach, FL 33401
Tel. 561-355-1523
Please be advised that Florida has a broad public records law, and all correspondence to me via
email may be subject to disclosure. Under Florida records law (SB80 effective 7-01-06), email
addresses are public records. If you do not want your email address released in response to a public
records request, do not send public records request to this entity. Instead, contact this office by phone
or in writing.
From: dvasallo .
Sent: Thursday, August 10, 2023 11:50 AM
To: CAD-Division AD
Cc:mtomas@kirwanspellacy.com; rsmith@kirwanspellacy.com; Maria O'Donnell
Subject: Emergency Hearing Request 11 Rodriguez and Gonzalez v. State Farm 11 2023-CA-010153-
This Message Is From an External Sender
This message came from outside your organization.
Good morning,
1
EXHIBIT
Our office would like to request an emergency hearing on our attached Motion for Protective Order and Motion
to Strike Defendant's Unilaterally Hearing.
The Defendant has set their Motion for Entry Upon Land for hearing without properly coordinating this hearing
on a mutually agreeable date with our office and is refusing to withdraw their notice to coordinate such hearing.
Your attention in this matter is highly appreciated!
Sincerely,
Diana, Vasallo
Legal Assistant to Maria O'Donnell
The People's Law Team, P.A.
2436 N. Federal Highway #440
Lighthouse Point, FL 33064
dva s allo@peopleslawteam.com
Under Florida law, e-mail addresses are public records. If you do not want your e-mail address released in response to a
public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing.
2
PREAMBLE I. Scheduling The attorneys also should cooperate with the calling of witnesses out
of turn when the circumstances justify it.
Attorneys are often retained to represent their clients in disputes or 1. Attorneys should endeavor to provide opposing counsel and prose
transactions. The practice of law is often an adversarial process. II. Discovery
litigants (collectively, "opposing counsel"), parties, witnesses, and
Attorneys are ethically bound to zealously represent and advocate in other affected persons, sufficient notice of depositions, hearings and 1. Attorneys should pursue dis
Preview
Filing # 181802201 E-Filed 09/14/2023 11:16:57 AM _J IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO: 2023-CA-010153-XXXX-MB PEDRO RUIZ RODRIGUEZ AND KARLA GONZALEZ, Plaintiffs, vs. STATE FARM FLORIDA INSURANCE COMPANY, Defendant, DEFENDANT’S MOTION FOR SANCTIONS AGAINST THE PLAINTIFF DUE TO SPOLIATION OF EVIDENCE, AND, MOTION FOR ADVERSE INFERENCE JURY INSTRUCTIONS COMES NOW the Defendant, STATE FARM FLORIDA INSURANCE COMPANY, by and through undersigned counsel and hereby files this Motion and as grounds for such states as follows. FACTUAL BACKGROUND AND SUMMARY OF PLAINTIFF’S INSURANCE CLAIM 1. The Plaintiff brought this action on or about May 9, 2023 as a result of alleged damages to the insured property as a result of Hurricane Ian (date of loss September 28, 2022). 2. On June 12, 2023, the Defendant filed a Rule 1.350 Request for Entry Upon Land to Conduct an Inspection. 3. The Defendant’s first effort to set said inspection was on June 20, 2023 - the Defendant was met with no response. See Exhibit A, at Ex. A. [7030503/1] *** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 09/14/2023 11:16:57 AM *** 4. The Defendant’s second effort to set said inspection was on June 22, 2023 - the Defendant was met with no response. Id. 5. The Defendant’s third effort to set said inspection was on June 30, 2023 - the Defendant was met with no response. Id. 6. The Defendant’s fourth effort to set said inspection was on July 7, 2023 - the Defendant was met with no response. Id. 7. On July 10, 2023, the Defendant filed a Motion to Compel Entry Upon Land based upon Plaintiffs above-referenced failures to respond. Id. 8. On July 17,2023, the Defendant contacted Plaintiff s counsel for a hearing date on said Motion - the Defendant was met with no response for a fifth time. See Exhibit B. 9. On July 18, 2023, the Defendant again contacted Plaintiffs counsel for a hearing date on said Motion - the Defendant was met with no response for a sixth time. Id. 10. Then on August 9, 2023, the undersigned authored correspondence to the Plaintiff in another futile effort to act in good faith regarding the Motion to Compel and the prior Request for Entry Upon Land, and further advised of Defendant’s concerns regarding spoliation of evidence issues. See Exhibit C.1 11. In conjunction with the undersigned’s August 9, 2023 correspondence, the undersigned proceeded to unilaterally schedule a hearing on its Motion to Compel to occur on September 20, 2023. See Exhibit D. 12. On August 10, 2023, rather than merely coordinate a date for the inspection as Defendant had attempted to do for the two months prior, or even respond to Defendant’s efforts to coordinate Within Defendant’s Answer and Affirmative Defenses, the Defendant asserted the insureds’ non-compliance with - - 1 the SECTION I CONDITIONS Duties After Loss provision of the policy regarding the insureds’ failure to give immediate notice of the loss to the Defendant. See Defendant’s Answer filed under separate cover. [7030503/1] a hearing on the Motion, Plaintiff instead filed what it claimed to be an Emergency Motion for Protective Order regarding Defendant’s unilaterally set hearing. 13. Also on August 10, the Plaintiff sought an emergency hearing on its Motion, but was directed to the local rules of professional responsibility as well as the Circuit Court’s definition of what constituted an “Emergency Motion”. See Composite Exhibit E. 14. Despite the fact that another month has elapsed and the Plaintiff has not sought to cooperate whatsoever with either Defendant’s efforts to procure an inspection or even an amicable hearing date on Defendant’s Motion, the property has now been unnecessarily subject to an additional four months of exposure to the elements and spoliation of the evidence germane to this case (i.e., the condition of Plaintiffs’ roof), thereby directly prejudicing Defendant’s ability to conduct an inspection of same. 15. Therefore, the Defendant seeks an Order from this Honorable Court imposing substantive sanctions, including but not limited to an adverse inference jury instruction and for any additional relief deemed just and proper. MEMORANDUM OF LAW Defendant seeks an Order directing the Plaintiff to allow the Defendant to conduct an inspection as permitted by Rule 1.350 within the next 15 days, enter an award of sanctions against the Plaintiff for its failure to make discovery, and to further allow for an adverse inference jury instruction against the Plaintiff. Such an Order would not only permit the Defendant the relief that it has long sought from the Court (in its attempted efforts to avoid Court intervention) but to also sanction the Plaintiff as a result of clear prejudice caused to the Defendant by way of Plaintiff s actions. There is no doubt that the Plaintiffs actions, i.e., the subterfuge of the discovery process of unnecessarily and improperly delaying the Defendant’s right to conduct an inspection of the [7030503/1] roof, constitute Plaintiffs deliberate and contumacious disregard for the discovery process, which has led to the spoliation of evidence of the one thing truly at-issue in this lawsuit - the condition of the Plaintiffs’ roof. Rule 1.380 of the Florida Rules of Civil Procedure discusses and governs sanctions with regards to the abuse of the discovery process through litigation. The purpose of Rule 1.380 is to protect the integrity of the judicial system and its litigants by imposing penalties on those who engage in discovery abuses. Amlan, Inc. v. Detroit Diesel Corp., 651 So. 2d 701, 705 (Fla. 4th DCA 1995). The remedies under Rule 1.380 promote the orderly movement of litigation. Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). “Although [Rule 1.380] only speaks of a party who fails to obey an order to provide or permit discovery, even in the absence of an order that evidence must be preserved or produced, a trial court has the inherent power to impose sanctions on a party who destroys evidence or perpetrates a fraud on the court.” Babe Elias Builders, Inc. v. Pernick, 765 So. 2d 119, 120 (Fla. 3d DCA 2000) citing Figgie Intern, v. Aiderman, 698 So.2d 563, 567 (Fla. 3d DCA 1997); Tramel v. Bass, 672 So.2d 78, 83 (Fla. 1st DCA 1996). The “inherent powers [of a court] to perform efficiently its judicial functions, to protect its dignity, independence and integrity...” necessarily includes the authority to impose appropriate sanctions. Tramel v. Bass, 672 So.2d 78, 82 (Fla. 1st DCA 1996); see also Tri Star Investments, Inc. v. Miele, 407 So.2d 292, 293 (Fla. 2d DCA 1981). The trial court is accorded “considerable latitude in dealing with serious abuses of the judicial process.” Tramel v. Bass, 672 So.2d 78, 82 (Fla. 1st DCA 1996). In light of the court’s inherent authority to grant sanctions to ensure compliance with the execution of justice, Defendant requests this court enter any or all of the sanctions which have been established as available for discovery violations, including but not limited to; adverse inference jury instruction, and monetary sanctions such as fees and costs. [7030503/1] The law is clear that sanctions should be tailored to fit the violations which triggered them. See Tramel v. Bass, 672 So.2d 78, 82 (Fla. 1st DCA 1996) (finding that the court has inherent authority to impose appropriate sanctions). In this matter, Plaintiffs’ counsel’s actions are a textbook case of spoliation of evidence based upon a now additional four months having elapsed and the exposure of the Plaintiffs’ roof to the elements during the peak of the Florida Hurricane Season. “Spoliation is the intentional destruction, mutilation, alteration, or concealment of evidence.” Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla. 4th DCA 2006). Spoliation is established when the party seeking sanctions proves that: (1) certain evidence existed at one time, (2) the spoliator had a duty to preserve the evidence, and (3) the evidence was crucial to the movant's prima facie case or defense. Id. In circumstances where the lost evidence was under the sole control of the party against whom the evidence might have been used to effect, and where the lost evidence is in fact critical to prove the other party’s claim, an adverse inference instruction may be necessary to achieve justice in the jury’s determination of the case. Am. Hosp. Mgmt. Co. v. Hettiger, 904 So. 2d 547, 550-51 (Fla. 4th DCA 2005). A duty to preserve evidence can originate in a contract, statute, or a discovery request because such a duty does not exist at common law. See Gayer v. Fine Line Constr. & Elec., Inc., 970 So. 2d 424, 426 (Fla. 4th DCA 2007) citing Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 845 (Fla. 4th DCA 2004); see also Strasser v. Yalamanchi, 783 So. 2d 1087, 1093 (Fla. 4th DCA 2001) (a party does have an affirmative responsibility to preserve any items or documents that are the subject of a duly served discovery request.); Figgie Int'l, Inc. v. Aiderman, 698 So. 2d 563, 567 (Fla. 3d DCA 1997) (the duty of a litigant to preserve relevant evidence is established by the opposing party's submission of a discovery request identifying documents of the same subject matter as those which the receiving party possesses.) Courts in other jurisdictions have recognized that parties are on notice [7030503/1] that a claim for discovery is reasonably foreseeable once they have knowledge that a claim has been submitted to their insurance carrier. Smith v. Shipping Utils., Inc., No. Civ. 05-500-GPM, 2005 W1 3133494 at *3 (S.D. Ill. 2005); Keene v. Brigham & Women’s Hosp., Inc., 786 N.E. 2d 824, 833 (Mass. 2003)(holding that the duty to preserve evidence arose on day that the Plaintiff filed notice with insurance carrier of a potential claim). PLAINTIFF’S COUNSEL’S ACTIONS ARE A CLEAR VIOLATION OF THEIR DUTY~ TO PRESERVE EVIDENCE In the case at hand, the Plaintiffs have hired an attorney to report the underlying claim and was on notice from the initial filing of the claim. The Defendant’s denial of the Plaintiff s claim was based, in part, on the Plaintiffs’ failure to timely report the loss as required by the provision of the policy entitled: SECTION I - CONDITIONS - Duties After Loss. Since the time which the Plaintiffs have made a claim to the Defendants for purported damages to the residence, the Plaintiffs have thus been under an affirmative duty to not only preserve evidence but also to make it available to the Defendant for purposes of inspection and discovery. See Smith; see also Keene. In this action, the Defendant has made requests (formal and informal) by way of written correspondence, Motion practice, and the filing of Inspection Requests permitted by the Rules of Procedure for the better part of the last three months. Now only as a result of Defendant’s pursuit of a Court Order by way of a Motion to Compel, is the Defendant permitted to inspect and conduct discovery on the matters subject and pertinent to this action i.e., the condition of the property. — During the South Florida Summer/Hurricane season, it is not unreasonable for the Defendant to be concerned with the Plaintiffs’ failure to preserve the condition of the property in the passing of recent months as a result of Plaintiffs’ now deliberate delays. [7030503/1] “Florida definitely recognizes a duty to preserve evidence after a lawsuit has been filed.” Silhan v. Allstate Ins. Co., 236 F. Supp. 2d 1303, 1311 (N.D. Fla. 2002). See also Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 127 (S.D.Fla.1987) (imposing sanctions against a litigant on notice that documents and information in its possession are relevant to litigation, who destroys such documents and information). “[E]ven where an action has not been commenced and there is only a potential for litigation, the litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action” (quoting Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648, 747 P.2d 911, 914 (1987)); Pennsylvania Lumberman's Mut. Ins. Co. v. Florida Power & Light Co., 724 So.2d 629, 630 (Fla. 3d DCA 1998) (suggesting that in the context of an action for spoliation of evidence, notification of potential litigation triggers the obligation to preserve evidence). Here, it cannot be disputed that the evidence at issue in this instance existed at one time (as evidenced by Defendant’s Affirmative Defense of untimely reporting) but has since been subject to the elements and passage of time, leading to the likely further destruction and deterioration of the property, thereby causing it to be altered in its state than it was at the time which the purported weather event initially occurred (in September 2022). The Plaintiff possessed a duty to preserve any and all evidence because that was in existence at the time of the filing of this suit and, as such, the evidence would have been subject to discovery. Sanctions for spoliation may be imposed when a party fails to preserve evidence. Fleury v. Biomet, Inc., 865 So. 2d 537, 539 (Fla. 2d DCA 2003). “Even when it is clear that evidence has been lost while in the custody of a party, the appropriate sanction varies according to the willfulness or bad faith, if any, of the party who lost the evidence, the extent of the prejudice suffered by the other party, and what is required to cure the prejudice.” Id; see also Metropolitan [7030503/1] Dade County v. Bermudez, 648 So.2d 197 (Fla. 1st DCA 1994); Federal Ins. Co. v. Allister Mfg. Co.,622 So.2d 1348, 1350-52 (Fla. 4th DCA 1993); Rockwell InfI Corp. v. Menzies, 561 So.2d 677, 679-80 (Fla. 3d DCA 1990). “[W]here a party in possession loses or destroys crucial record evidence, a burden is imposed on that party to prove that the loss or destruction was not in bad faith.” Hernandez v. Pino, D.D.S., 482 So. 2d 450, 453 (Fla. 1986). Here, the Plaintiffs cannot meet their burden to establish that the spoliation of the evidence was not in bad faith, based upon the clear fact that their petition to the Court for an emergency hearing on their Motion for Protective Order was not met with relief from the Court. In the time which has since elapsed since June 2023 when Defendant first commenced its efforts to coordinate an inspection of the property, the Plaintiffs have not once provided a reasonable alternative date for the hearing on Defendant’s Motion to Compel Entry Upon Land, or even provide a reasonable date for the occurrence of the inspection itself. Further evidenced by the Plaintiff’s lack of response to Defendant’s Motion to Compel or Request for Entry Upon Land, it is clear from the record that counsel for the Plaintiff has no basis in law or fact to deprive the Defendant of its opportunity to inspect, other than to deliberately cause prejudice to the Defendant by wav of the passage of additional time and causing for evidence to become destroyed. COURTS AUTHORITY TO SANCTION Courts have the inherent authority to sanction a spoliating party under Florida Rule of Civil Procedure 1.380. See Fini v. Glascoe, 936 So. 2d 52, 55 (Fla. 4th DCA 2006). An order dismissing a case for failure to comply with the discovery rules may be appropriate if the violation was willful and deliberate. See Marr v. State Dept. ofTransp., 614 So. 2d 619 (Fla. 2d DCA 1993); see also Belle Glade Chevrolet-Cadillac Buick Pontiac Oldsmobile, Inc. v. Figgie, 54 So. 3d 991, 996 (Fla. 4th DCA 2010) (finding that evidence showing “deliberate and contumacious disregard” of [7030503/1] discovery orders supported severe sanctions such as striking pleadings and entering a default). Although an order of dismissal is a severe sanction, a “deliberate and contumacious disregard of the court's authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evidences a deliberate callousness.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983); see also Desimone v. Old Dominion Insurance Co., 740 So.2d 1233,1234 (Fla. 4th DCA 1999) (“[W]here a party perpetrates fraud on the court which permeates the entire proceedings, dismissal of the entire case is proper.”); Precision Tune Auto Care, Inc. v. Radcliffe, 804 So. 2d 1287, 1291 (Fla. 4th DCA 2002) (finding that various violations of discovery procedures evidenced a willful disregard of the court’s order which justified the imposition of severe sanctions). If this Court finds that the Plaintiffs or their Counsel have in fact engaged in the destruction of evidence has permeated the entirety of the claim as the destroyed evidence would have undoubtedly revealed information that exists as a central matter at issue in this lawsuit. The Plaintiffs have yet to provide any information or insight to the Court or the undersigned as to the basis for their failure to cooperate for purposes of an inspection of the subject property. Without the ability to inspect the property, the Defendant is being deprived of its right to determine whether the Plaintiffs’ case holds water. Should the Court not find that dismissal is a proper remedy, Defendant respectfully requests that the court enter an order imposing substantive sanctions, including an adverse inference jury instruction. Such is permitted by the Supreme Court’s standard jury instruction, 301.11, which reads as follows: The Florida Supreme Court Standard Jury Instructions 301.11 states: a. Adverse Inference Ifyou find that: [7030503/1] (Name of Party) lost / destroyed / mutilated / altered / concealed or otherwise caused the (described evidence) to be unavailable, while it was within his or her possession, custody or control; and the (describe evidence) would have been material in deciding the disputed issues in this case; then you may, but are not required to, infer that this evidence would have been unfavorable to (name ofparty). You may consider this, together with other evidence, in determining the issues of the case. In this action, the Defendant has submitted a proposed jury instruction to the Court for consideration, which has been filed under separate cover. At this point in the subject litigation, Defendant has been undoubtedly prejudiced in its ability to prepare a full and complete defense. See Rockwell Int'l Corp. v. Menzies, 561 So. 2d 677, 680 (Fla. 3d DCA 1990) (degree of sanctions to be imposed must be related to degree of prejudice sustained by non-offending party); Harrell v. Mayberry, 754 So. 2d 742, 745 (Fla. 2d DCA 2000) (“Drastic sanctions, including default, are appropriate when a defendant alters or without destroys physical evidence, and when the plaintiff has demonstrated an inability to proceed such evidence.”); Sponco Mfg, Inc. v. Alcover, 656 So. 2d 629, 630 (Fla. 3d. DCA. 1995). Even and “(i]n cases of negligent spoliation, courts prefer to utilize adverse evidentiary inferences adverse presumptions during trial to address the lack of evidence.” Id. CONCLUSION: Defendant submits to the Court that the requested sanctions of dismissal and or an adverse jury instruction are eminently necessary because, without the imposition of sanctions against the Plaintiff, Defendant is left with no other remedies for the prejudice imposed upon them by the Plaintiffs’ allowance for the destruction and deterioration and spoliation of material evidence. The [7030503/1] Court’s failure to do so would instead encourage Plaintiffs’ behavior and potentially reward it for their disregard of the discovery process and the Defendant’s rights to conduct same. Based on the foregoing, the Plaintiff had and currently still has a duty to preserve the condition of the property so as to allow Defendant to inspect same, as it is the very subject matter of this present litigation. Defendant respectfully requests this Honorable Court impose the appropriate sanction given the Court’s broad authority to do so, including but not limited to dismissal, striking of the pleadings, an adverse inference jury instruction, and monetary sanctions such as fees and costs, for the aforementioned discovery violations. The Defendant believes the degree of this sanction is related to the degree of prejudice Plaintiff has imposed on Defendant. Allowing this case to continue without imposing an adverse instruction on the Plaintiff for failure to preserve the subject evidence of this instant matter, would be severely prejudicial to the Defendant and contrary the applicable law. WHEREFORE, the Defendant, STATE FARM FLORIDA INSURANCE COMPANY, respectfully seeks an Order from this Honorable Court imposing the appropriate sanction including but not limited to dismissal, monetary sanctions, and/or entry of an adverse inference jury instructions on the due to spoliation of evidence, and for any additional relief this Court deems just and proper. [THIS SPACE INTENTIONALLY LEFT BLANK] [7030503/1] CERTIFICATE OF SERVICE hereby certify that a true and correct copy of the foregoing was served by E-Mail on I September 14,2023 to: Maria Corvaia O'Donnell, ESQ., The People's Law, P.A., 2436 N. Federal Highway # 440, Lighthouse Point, FL 33064, eservice@peopleslawteam.com. KIRWAN, SPELLACY, DANNER, ROBB, / & HICKMAN P.A. Attorneys for Defendant 200 South Andrews Avenue 8th Floor Fort Lauderdale, FL 33301 t: (954) 463-3QjQ«^ / //_/_ f: (954) 46^010 Pleading^:pleaditfgg@kirwifnspellacv.com BY: /R. RYAN SMITH FLORIDA BAR NO. 119396 [7030503/1] IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO: 2023-CA-010153-XXXX-MB PEDRO RUIZ RODRIGUEZ AND KARLA GONZALEZ, Plaintiffs, vs. STATE FARM FLORIDA INSURANCE COMPANY, Defendant, / DEFENDANT’S MOTION TO COMPEL ENTRY UPON LANI) FOR INSPECTION PURSUANT TO FLORIDA RULE OF CIVIL PROCEDURE 1.350 COMES NOW, Defendant, STATE FARM FLORIDA INSURANCE COMPANY, by and through its undersigned counsel, hereby files this Motion to Compel Entry Upon Land for Inspection Pursuant to Florida Rule of Civil Procedure 1.350, and in support thereof states as follows: I. Plaintiff filed its Complaint on May 9, 2023, alleging damage to the real property located at 10508 Vignon Court, Wellington, Florida 33449-8055 (the “Property”). 2. That, pursuant to the allegations in the Plaintiffs Complaint, the Plaintiff has alleged that the aforementioned Hurrican Ian caused damage to the subject property. 3. Defendant’s ability to inspect the Property is imperative and integral to the Defendant’s defense of the subject action. 4. This Motion is made in good faith and not for the purpose of prejudice or delay [6942456/1 ] 5. Pursuant to Florida Rule of Civil Procedure 1.350(a): land oi Any party may request any other part to permit entry upon designated other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, or operation on it testing, or sampling the property or any designated object within the scope of rule 1.280(b). 6. . Defendant is clearly entitled to inspect the subject property within the proper scope of discovery. 7. Defendant has incurred additional costs and unnecessary delays which have a after prevented its engineer to inspect the alleged damages and prepare report inspection. 8. The undersigned has conferred with Plaintiffs counsel in good faith in attempt to coordinate this inspection without necessity of court intervention in accordance with Rule 1.380(a)(4), but Plaintiffs’ counsel failed to respond and/or cooperate with Defendant’s requests for engineer entry upon the Property for the purpose of as Exhibit A inspection. Please see the email correspondence attached hereto . WHEREFORE, Defendant STATE FARM FLORIDA INSURANCE COMPANY the Plaintiff to make the respectfully requests this Honorable Court enter an Order compelling premises located at 10508 Vignon Court, Wellington, Florida 33449-8055 available for or within inspection by the Defendant and/or the Defendant’s agents, employees, representatives ten (10) days, and for such and further relief as this court deems just and proper. [Certificate of Service on next page] [6942456/1] CERTIFICATE OF SERVICE was served by E-Mail on hereby certify that a true and correct copy of the foregoing I The People's Law, P.A., 2436 N. Federal July 10, 2023 to: Maria Corvaia O'Donnell, ESQ., Highway # 440, Lighthouse Point, FL 33064, eservice@peopleslawteam.com. KIRWAN, SPELLACY, DANNER, BROWNSTEIN, & ROBB P.A. Attorneys for Defendant 200 South Andrews Avenue 8th Floor Fort Lauderdale, FL 33301 t: (954) 463-3008 f: (954)463-3010 Pleadings: pleadings@kirwanspellacy.com RY:_ /s/R, RYAN SMITH R. RYAN SMITH FLORIDA BAR NO. 119396 RRS/kp2 Matter #23-28737 [6942456/1] EXHIBIT "A" From: Mariaelena Tomas Sent: Friday,Ouly 7, 2023 9:30 AM To: 'eservice@peopleslawteam.com' Cc: 'mariao'donnell@peopleslawteam.com' Subject: FW: Rodriguez & Gonzalez v SF; [claim] 5940L201P; Matter# 23-28737^.,—-- ■ Importance: High ’ Good Morning, Hope this email finds you well. Please be advised that this is our 4th & final attempt to mutually coordinate a property inspection I have an engineer availed on Thursday, 8/17 @ 9:00 a.m. Please let me know if that date works for your client. From: Mariaelena Tomas Sent: Friday, June 30, 2023 10:20 AM To: 'mariao'donnell@peopleslawteam.com' Cc:'eservice@peopleslawteam.com' Subject: FW: Rodriguez & Gonzalez v SF ; [claim] 5940L201P ; Matter# 23-28737 Importance: High 3rd request Good Morning, ___ Hope this email finds you well. Our office would like to set up a property inspection on the above reference case for 7/11/23 at 9:00 A.M. Please advise if that date/time is available and if the handling attorney will be attending. from: Mariaelena Tomas Sent: Thursday, June 22, 2023 11:44 AM To: 'eservice@peopleslawteam.com' < eservice@peopleslawteam.com > Subject: FW: Rodriguez & Gonzalez v SF ; [claim] 5940L201P ; Matter# 23-28737: Importance: High Good Afternoon, This is my second request regarding the below From: Mariaelena Tomas Sent: Tuesday, June 20, 2023 9:31 AM To: 'eservice@peopleslawteam.com' Subject: Rodriguez & Gonzalez v SF ; [claim] 5940L201P ; Matter# 23-28737:. _ ( Good Afternoon, Good Morning Hope this email finds you well. Our office would like to set up a property inspection on the above reference case for 7/11/23 at 9:00 A.M. Please advise if that date/time is available and if the handling attorney will be attending. Thank You, Mariaelena Tomas Legal Assistant to Ryan Smith, Esq. KIRWAN SPELLACY, DANNER, BROWNSTEIN & ROBB 200 South Andrews Avenue 8th Floor Fort Lauderdale, FL 33301 Phone:(954)463-3008 Fax: (954) 463-3010 E-Mail: Mloinas@kirwanspellacy.com E-Notice: pleadings^kirwanspellacy.com KI RWAN I SPELLACY DAN X ER I BROWNSTEIN ROBB KIRWAN SPELLACY, DANNER, BROWNSTEIN & ROBB is an Insurance Defense Litigation firm with offices in Miami-Dade, Broward, Palm Beach, Monroe, Collier, Lee, Martin, St. Lucie, Hillsborough, Indian River counties.. Visit www.kirwanspellacy.com on the web for information on our Attorneys, Practice Areas, Office Locations and Seminars. CONFIDENTIALITY NOTICE: The information contained in this e-mail is intended only for the confidential use of the recipient(s) named above. This message and its attachments are attorney-client privileged communications, work product and mental impressions of the above sender. If the reader of this are message is not the intended recipient or if you have received this communication in error, you at once and any hereby notified that you have received this in error, that you should destroy it, notify us review, dissemination or copying is strictly prohibited. R^an^Smith Sent: Thursday, September 14, 2023 10:08 AM To: Alina Lazarre; 'dvasallo 'Maria O'Donnell' Cc: 'dd159f9a6+matteri 565802020@maildrop.clio.com' Subject: RE: Rodriguez 8i Gonzalez v SF ; [claim] 5940L201P ; Matter# 23-28737: D's MTC entry From: Alina Lazarre Sent: Tuesday, July 18, 2023 3:05 PM To: 'dvasallo ; 'Maria O'Donnell' Cc: 'ddl59f9a6+matterl565802020@maildrop.clio.com' Subject: RE: Rodriguez & Gonzalez v SF ; [claim] 5940L201P; Matter# 23-28737: D's MTC entry Good Afternoon, I Hope all is well. AT this time our office would like to coordinate the following attached above Kindly advise which date/time works for your office All times start at 8:30am - only dates judge have available 8/30 8/31 Thank you ♦ S c h e dNote*u l i n g Please be advised that the dates provided may have been offered to others and will only be secured on a first come-first serve basis. For all scheduling matters, please send your request via email. Dates given for depositions are NOT guaranteed and a hold will not be placed on the calendar until CONFIRMED. After three attempts at coordinating hearings or depositions, we will move forward with unilaterally scheduling the aforementioned hearing or deposition. Alina Lazarre Scheduler for Ryan Smith 200 South Andrews Avenue 8th Floor Fort Lauderdale, Florida 33301 Phone:954.463.3008 Fax:954.463.3010 EXHIBIT " alazarre@kirwanspellacv com vww.kirwanspellacv.com | KIRWAN | SPELLACY J— —a | DANNER | WATKINS BROWNSTEIN | \ I I 11 It X ! r S A I 1 A w KIRWAN, SPELLACY, DANNER, WATKINS & BROWNSTEIN is an Insurance Defense Litigation firm handling matters in Miami-Dade, Broward, Palm Beach, Monroe, Collier, Lee, Charlotte, Martin, St. Lucie, Hillsborough, Indian River, Brevard, Okeechobee, Highlands, Glades and Hendry counties. CONFIDENTIALITY NOTICE: The information contained in this e-mail is intended only for the confidential use of the recipient(s) named above. This message and its attachments are attorney-client privileged communications, work product and mental impressions of the above sender. If the reader of this message is not the intended recipient or if you have received this communication in error, you are hereby notified that you have received this in error, that you should destroy it, notify us at once and any review, dissemination or copying is strictly prohibited. Please consider the environment before printing this email. On Monday, July 17, 2023 at 10:00:46 AM EDT, Alina Lazarre wrote: Good Morning, I Hope all is well. AT this time our office would like to coordinate the following attached above Kindly advise which date/time works for your office All times start at 8:30am 8/30 8/31 Thank you *Scheduling Note* Please be advised that the dates provided may have been offered to others and will only be secured on a first come-first serve basis. 2 Ryan Smith From: Mariaelena Tomas Sent: Wednesday, August 9, 2023 4:29 PM To: 'dvasallo@peopleslawteam.com' Cc: 'Maria O'Donnell' Subject: SERVISE OF COURT DOCUMENT 2023-CA-010153 Attachments: Letter to OC re reinspection.pdf RODRIGUEZ & GONZALEZ vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY DOCUMENTS: LETTER REGARDING RE-INSPECTION SENT: Ryan Smith, Esquire PHONE: 954-463-3008 Thank You, Mariaelena Tomas Legal Assistant to Ryan Smith, Esq. 200 South Andrews Avenue 8th Floor Fort Lauderdale, FL 33301 Phone: (954) 463-3008 Fax: (954) 463-3010 E-Mail: Mtomas@kirwanspellacy com E-Notice: pleadings@kirwanspellacy.com KIRWAN I SPELLACY DANNER I ROBB HICKMAN ATTORNEYS AT LAW KIRWAN, SPELLACY, DANNER, ROBB & Hickman is an Insurance Defense Litigation firm handling matters in Miami-Dade, Broward, Palm Beach, Monroe, Collier, Lee, Martin, St. Lucie, Hillsborough, Indian River counties. CONFIDENTIALITY NOTICE: The information contained in this e-mail is intended only for the confidential use of the recipient(s) named above. This message and its attachments are attorney-client privileged communications, work product and mental impressions oftl UI,1—“Stef of 1 EXHIBIT " Kirwan Spellacy Danner Lissette M. Alvarez Christopher L. Kirwan Thomas R. Glasson Patrick S. Spellacy David D. Hernandez Scott E. Danner ROBB & HICKMAN Serghei lanachi Nicole E. Jacomo Michael A. Robb ATTORNEYS AT LAW Juliette Orozco Jeffrey R. Hickman 200 South Andrews Avenue, 8th Floor • Fort Lauderdale, Florida 33301 R. Ryan Smith Telephone (954) 463-3008 • Facsimile (954) 463-3010 Geovanna Sotelo www. kirwanspellacy. com Rachell Tejada August 9, 2023 Maria Corvaia O'Donnell The People's Law, P.A. 2436 N. Federal Highway # 440 Lighthouse Point, FL 33064 Re: Rodriguez & Gonzalez v SF Date of Loss: 9/28/2022 Palm Beach Case No.: 2023-CA-010153 Dear Ms. O'Donnell: write to you on this matter to call your attention to the efforts which my office has I undertaken with respect to a re-inspection of your client’s property. As a bit of brief background, the Request for Entry Upon Land was filed with the Court on June 12, 2023. My office then engaged in a repeated series of efforts to procure an inspection date without Court intervention until eventually a Motion to Compel Entry Upon Land was filed with the Court on July 10, 2023. Since the filing of that Motion, my office has been met with continued delay tactics from either your office, your client, or both. At this point, I am only left to believe that you are refusing to allow my client to conduct a re-inspection in the property. This raises potential spoliation of evidence issues with which I do not intend to take lightly. At this point, I have directed my office to seek intervention from the Court and unilaterally set a hearing on my above-referenced Motion. Should that result in the need for a hearing, please be advised that I will be filing a separate Motion for Sanctions for spoliation. Alternatively, let’s proceed amicably and set a date certain for the re-inspection to occur within thirty days of the date of this correspondence. Sincerely R. RycM/SmCth/ R. Ryan Smith RRS/rrs Additional Offices: 19 West Flagler Street, Suite 1100 • Miami, FL 33130 - Telephone (786) 275-3140 2080 W. Indiantown Road, Suite 200 - Jupiter, FL 33458 • Telephone (561) 615-0333 - Facsimile (561) 744-4540 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO: 2023-CA-010153-XXXX-MB PEDRO RUIZ RODRIGUEZ AND KARLA GONZALEZ, Plaintiffs, STATE FARM FLORIDA INSURANCE COMPANY, Defendant, ( NOTICE OF HEARING Unilaterally set after several attempts on 8/9/2023 PLEASE TAKE NOTICE that the undersigned will call up the following: DATE: September 20,2023 TIME: 08:30 A.M. JUDGE: The Honorable Jaimie Goodman LOCATION: VIA ZOOM SPECIFIC MATTER TO BE HEARD: Defendant’s Motion to Compel Entry upon land for Inspection PLEASE GOVERN YOURSELF ACCORDINGLY. ** Movant counsel certifies that a good faith attempt to resolve this matter was made prior to my noticing this motion for hearing, and the issues before the Court may be heard and resolved by the Court within minutes. [6984513/1] " EXHIBIT CERTIFICATE OF SERVICE hereby certify that a true and correct copy of the foregoing was served by E-Mail on I August 9, 2023 to: Maria Corvaia O'Donnell, ESQ., The People's Law, P.A., 2436 N. Federal Highway # 440, Lighthouse Point, FL 33064, eservicef5jpeopleslawteam.com. KIRWAN, SPELLACY, DANNER, ROBB, & HICKMAN P.A. Attorneys for Defendant 200 South Andrews Avenue 8th Floor Fort Lauderdale, FL 33301 t: (954) 463-3008 f: (954) 463-3010 Pleadings: pleadings@kirwanspellacy.com BY: /s/ R. RYAN SMITH R. RYAN SMITH FLORIDA BAR NO. 119396 cc: Judicial Assistant Claim #5940L201P RRS/al2 Matter# 23-28737 If you are a person with a disability who needs any accommodation to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact the Miami Dade County Court's ADA Coordinator at Lawson E. Thomas Courthouse Center, 175 N.W. 1st Ave., Suite 2702, Miami, FL 33128, telephone numbers (305) 349-7175 for voice or (305) 349-7174 for TDD and 349-7355 for fax, within two working days of your receipt of this document. If you are hearing or voice impaired, please call 711 for the Florida Relay Service. [6984513/1] Ryan Smith From: CAD-Division AD Sent: Thursday, August 10, 2023 11:59 AM To: dvasallo . Cc: Mariaelena Tomas; Ryan Smith; Maria O'Donnell Subject: RE: Emergency Hearing Request || Rodriguez and Gonzalez v. State Farm || 2023- CA-010153- - Attachments: A.O. 3.206-0109 - Emergency Hearings in Circuit Civil Matters.pdf; PBC Bar Association Standards of Professional Courtesy and Civility (v2014).pdf Please familiarize yourself with the instructions and rules of this Circuit at www. 15thcircuit.com. As to your email inquiry, please refer to Administrative Order 3.206 - Emergency Hearings in Circuit Civil Matters Administrative Orders by Topic | 15th Circuit - (copy of which is attached for your reference). *as to line 2 of your email. See also attached: (an example of) Standards of Professional Courtesy and Civility. To all a good day, Maria Vasil Collins Judicial Assistant to The Honorable Jaimie Goodman Main Judicial Complex Circuit Civil Division “AD” 205 North Dixie Highway West Palm Beach, FL 33401 Tel. 561-355-1523 Please be advised that Florida has a broad public records law, and all correspondence to me via email may be subject to disclosure. Under Florida records law (SB80 effective 7-01-06), email addresses are public records. If you do not want your email address released in response to a public records request, do not send public records request to this entity. Instead, contact this office by phone or in writing. From: dvasallo . Sent: Thursday, August 10, 2023 11:50 AM To: CAD-Division AD Cc:mtomas@kirwanspellacy.com; rsmith@kirwanspellacy.com; Maria O'Donnell Subject: Emergency Hearing Request 11 Rodriguez and Gonzalez v. State Farm 11 2023-CA-010153- This Message Is From an External Sender This message came from outside your organization. Good morning, 1 EXHIBIT Our office would like to request an emergency hearing on our attached Motion for Protective Order and Motion to Strike Defendant's Unilaterally Hearing. The Defendant has set their Motion for Entry Upon Land for hearing without properly coordinating this hearing on a mutually agreeable date with our office and is refusing to withdraw their notice to coordinate such hearing. Your attention in this matter is highly appreciated! Sincerely, Diana, Vasallo Legal Assistant to Maria O'Donnell The People's Law Team, P.A. 2436 N. Federal Highway #440 Lighthouse Point, FL 33064 dva s allo@peopleslawteam.com Under Florida law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing. 2 PREAMBLE I. Scheduling The attorneys also should cooperate with the calling of witnesses out of turn when the circumstances justify it. Attorneys are often retained to represent their clients in disputes or 1. Attorneys should endeavor to provide opposing counsel and prose transactions. The practice of law is often an adversarial process. II. Discovery litigants (collectively, "opposing counsel"), parties, witnesses, and Attorneys are ethically bound to zealously represent and advocate in other affected persons, sufficient notice of depositions, hearings and 1. Attorneys should pursue dis