Motion for Protective Order in MCINVALE, RANDOLPH vs. SOUTHERN OAK INSURANCE COMPANY| Trellis.Law

On January 13, 2020 a Motion,Ex Parte was filed involving a dispute between Mcinvale, Donna, Mcinvale, Randolph, and Southern Oak Insurance Company, for INSURANCE CLAIM in the District Court of Bay County.

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Filing # 143941846 E-Filed 02/15/2022 12:19:53 PM

IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT
IN AND FOR BAY COUNTY, FLORIDA
CIVIL DIVISION

RANDOLPH & DONNA MCINVALE

Plaintiff,

v. Case No. 20000077CA

SOUTHERN OAK INSURANCE COMPANY

Defendant.
__________________________________________/

PLAINTIFFS MOTION FOR PROTECTIVE ORDER

COMES NOW, the Plaintiffs, RANDOLPH AND DONNA MCINVALE

(“Plaintiff”), by and through the undersigned counsel, and pursuant to Fla. R. Civ. P.

1.280(c), moves for a protective order limiting the scope of any discovery and/or

regarding the depositions of any former employees of Merlin Law Group, PA,

particularly: (i) Kelly Kubiak1; (ii) Donna Alvarez; (iii) Sandra Baldinelli; (iv) Farana

Bradley; (v) Lisa Lieberher; (vi) Randolph McInvale and (vii) Donna McInvale. As

grounds of support thereof, Plaintiff states the following:

Relevant Facts

1. This case arises from a claim made by the Plaintiffs to their insurance

company Southern Oak Insurance Company (“Defendant”), for damages sustained to

their property. Plaintiffs retained the Merlin Law Group via a contingency fee

agreement.

2. On or about late January 2021, Plaintiff’s counsel notified Merlin that she

was leaving Merlin’s employ and starting her own law firm.

1
and/or Kubiak Law Group, PLLC
3. On February 3, 2021, Plaintiffs discharged the Merlin law firm and elected

to have Kelly Kubiak, Esq. continue to represent her at her new firm2

4. On or about March 20, 2021, Merlin field a Notice of Charging Lien in

this matter3.

5. On or about March 3, 2021, the Plaintiff and Defendant settled the

insurance claim.

6. By email/correspondence dated September 14, 2021, Merlin’s attorney(s)

requested the depositions in this matter4.

Introduction

What would normally be a simple, straight-forward charging lien matter between

a law firm and one of its former attorneys/employees appears to have devolved into

“delay at all costs” litigation as well as an attempt by Merlin to obtain discovery for the

Hillsborough County case it filed against Plaintiff’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), Plaintiff respectfully requests that this Honorable Court grant its Motion

for Protective Order as referenced below6.

Memorandum of Law

2
Attached hereto as Exhibit A.
3
Copies of the Charging Lien is attached hereto as Composite Exhibit B.
4
A copy of the email/correspondence is attached hereto as Composite Exhibit C.
4
One federal court judge specifically stated that Merlin litigated in bad faith.In Auto Owners v. Summit
Park, (Order attached as Exhibit D), Merlin’s litigation tactics 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 indistinguishable from those of [the] firm and in opposing [the]
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 E). While
reference to such other matters is not normally relevant, given the nature of Merlin’s litigation tactics here,
it is pertinent for 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
Plaintiff requests a protective order regarding these discovery and depositions

pursuant to Fla. R. Civ. P. 1.280(c) which states in pertinent part, as follows:

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 justice requires, including one or
more of the following (1) that the discovery not be had; (2) that
discovery be had only on specified terms and conditions,
including a designation of the time or place; (3) that discovery
may be had only by a method of discovery other than that
selected by the parties seeking discovery; (4) that certain
matters not be inquired into, or that the scope of the discovery
be limited to certain matters; (5) that discovery be conducted
with no one present except persons designated by the Court; (6)
that a deposition after 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 simplest terms, Plaintiff originally contracted with Merlin firm for

legal services to be provided by attorney Kelly Kubiak, her associates, and legal staff.

Plaintiff and Merlin entered into a written contingency fee agreement. After attorney

Kubiak left Merlin’s employ, Plaintiff discharged Merlin as Plaintiff’s attorney. Plaintiff

then elected to retain attorney Kubiak at her new firm to continue representing Plaintiff in

the underlying case. Merlin subsequently filed a charging lien for fees and costs. These

facts are undisputed.

Searcy, Denney, Scarola, Barnhardt & Shipley, P.A. v. Polet, 652 So.2d 366 (Fla.

1995), holds that when a discharged law firm files a charging lien to recover fees and

3
costs, the Court’s role is to determine the ‘value’ of the discharged law firm’s charging

lien (emphasis added).

To briefly synopsize the pertinent facts of Searcy, Taylor was a Florida licensed

attorney at the Searcy law firm and was assigned to work on the Poletz case7. He

eventually left 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 ultimately filed a charging lien for fees and costs; and litigation

ensued over the value of Searcy’s charging lien.

Searcy appealed the Court’s decision that their fee “should be determined by

using the Rowe factors but no contingency risk multiplier should 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:

“. . . while the time reasonably devoted to the
representation and a reasonable hourly rate are factors to be
considered in determining a proper quantum meruit award,
the court must consider all relevant factors surrounding the
professional relationship to ensure that the award is fair to
both the attorney and client. See Reid, Johnson, Downes,
Andrachik & Webster v. Lansberry, 68 Ohio St.3d 570, 629
N.E.2d 431, 436–437 (1994) (totality of circumstances
surrounding each situation should be considered in
determining reasonable value of discharged contingent-fee
attorney's services in quantum meruit). Application of the
factors set forth in Rule Regulating The Florida Bar 4–
8
1.5(b),4 may provide a good starting point. 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 requisite to perform the legal service properly;
(2) the likelihood that the acceptance of the particular employment will preclude other employment by the
lawyer;
(3) the fee, or rate of fee,customarily charged in the locality for 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;
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
surrounding the professional relationship that would 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
actually conferred on the client may be relevant to that
determination. The determination as to which factors are
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 itsprogeny 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 legal services. Searcy was clear that the Court’s focus

is on ‘valuing’ the legal services of the discharged law firm when it said:

In determining attorney fee to award to law firm that was discharged by client
from contingency fee contract, trial court should have considered totality of
factors present in case, instead of only considering time reasonably expended and
reasonable hourly rate for services. Searcy, Headnote [2]9.

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.

(5) the time limitations imposed by the client or by the circumstances and, as between attorney and client,
any additional or special time demands or requests of the attorney by the client;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the
skill, expertise, or efficiency of effort reflected in the actual providing of such services; and
(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 significant degree on the outcome of the representation.
9
One noteworthy case that reiterates what Searcy stands for is Scherer v. Austin Roe Basquill, P.A., 2021
WL 2446947, (2nd DCA). While the case involved a partner of a law firm leaving to 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 isan 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 itsuggest that the Court must, and/or even should, look at the
departing lawyer’s legal services (post-departure) nor the ‘value’ of the departing lawyer’s legal services.
10
Regarding legal services provided by the successor law firm and the ‘value’ of said services.
5
Defendant’s Motion to Compel Depositions falsely asserts that this Honorable

Court, in essence, is compelled to (i) allow Defendant to conduct discovery into the legal

services provided to Plaintiffs by attorney Kubiak and/or Kubiak Law Group, and (ii)

must factor in the ‘value’ of attorney Kubiak and/or Kubiak Law Group’s legal services

provided to Plaintiff after Merlin was discharged as its attorney, to wit:

¶6. Thus, for example, to determine the value of the services that should be
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 “totality of circumstances surrounding each situation should be

considered in determining reasonable value of discharged contingent-fee attorney’s

services in quantum meruit” Id. at 369. After that, the parties differ greatly as to what

Searcy stands for.

Searcy addresses a specific issue – [H]ow courts throughout the state of Florida

should ‘value’ a discharged law firm’s (emphasis added) legal services in the context of

a charging lien 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

necessarily compelled to ‘value’ the successor law firm’s legal services before it can

determine the ‘value’ of the discharged law firm’s legal services. Neither Searcy nor the

Florida Bar Rule 4-1.5 stand for such an absurd proposition. Stated another way,

11
Kubiak Law Group, PLLC
6
allowing such discovery opens up a Pandora’s box of discovery that is irrelevant and

violative of, among other things, Plaintiff’s attorney/client privileged communications

with Plaintiff’s chosen lawyer(s).

As noted above, Plaintiff/McInvale and Merlin are the two parties who entered

into a contractual relationship. The McInvale/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 discharged is 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 discharged law firms charging lien. Such claims are

simply a legal fiction 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 IRRELEVANT 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 case12 a Court must (i) allow discovery related to the successor law firm’s

legal services, or (ii) place a ‘value’ on the successor law firms legal services. 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

attempting to introduce irrelevant evidence to a jury, evidence on a purely collateral issue

12
Where a discharged law firm had a contingency fee agreement with a client such as this case.
7
that would only serve to confuse and mislead the jury is too remote and should be

excluded. Donahue v. Albertson's Inc., 472 So.2d 482, 483 (Fla. 4th DCA 1985). To the

extent that evidence is relevant, it will nevertheless be ruled inadmissible if its probative

value is substantially outweighed by the danger of unfair prejudice toward Plaintiffs and

would likely mislead or confuse the jury. Fla. Stat. §90.403.

Whatever legal services attorney Kubiak and/or Kubiak Law Group, PLLC

provided after Plaintiff discharged the Merlin law firm and retained Kubiak Law Group is

irrelevant to ‘valuing’ Merlin’s legal services while they represented Plaintiff.

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,

attorney/client privileged communications, and/or work-product is objectionable.

Further, Merlin’s request(s) are obvious attempts to utilize the discovery process 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 ¶8 of its Motion:

This Court cannot possibly make that determination without discovery from KLG
and Attorney Kubiak, as well as the Plaintiff and several others to learn: 1) the
circumstances of the transfer of the case; 2) when the contingency was “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 absolutely needed 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 things that go to providing this Court
with sufficient and critical evidence to also be considered when evaluating the
totality of the circumstances. If the KLG will not be challenging or otherwise
contesting MLG’s claim that it provided all the value to the client (thus entitling it
to the entire fee), then most of the discovery may not be necessary (except as it
relates to the circumstances of the transfer of the case and the date of “realization”
of the contingency).

Any inquiry into the ‘value’ of legal services 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,

“correspondence with the client before and after KLG took over”. In other words,

Merlin asserts that even after it was discharged as Plaintiff’s attorney, it is entitled to the

attorney/client privileged communication(s) between Plaintiff and Kubiak Law Group.

Certiorari review “is appropriate in cases that allow discovery of privileged

information. This is because once privileged information DCA 2005) is disclosed, there

is no remedy for the destruction of the privilege available on direct appeal.” Estate of

Stephens v. Galen Health Care, Inc., 911 So.2d 277, 279 (Fla. 2nd DCA). “Waiver of the

attorney-client and work-product privileges is not favored in Florida”, Coates v.

Akerman, Senterfitt & Eidson, P.A., 940 So.2d 504 (2nd DCA 2006) citing TIG Ins. Corp

of Am. V. Johnson, 799 SO.2d 339, 341 (4th DCA 2001). “A party does not waive the

attorney-client privilege merely by bringing or defending a lawsuit”, Coates at 508 citing

to Lee v. Progressive Express Ins. Co., 909 So.2d 475 (4th DCA 2005). The mere fact

that two attorneys may be representing a single client on the same matter does not waive

the privilege that the client has to prevent his or her confidential communications to one

of his or her lawyers from being revealed to the other lawyer”. Coates at 510 citing to

Volpe v. Conroy, Simberg, & Ganon, P.A., 720 So.2d 537, 539 (4th DCA 1998). Merlin’s

attempts to use this Court’s time and resources to generate discovery in other cases is

improper.

WHEREFORE, the Plaintiffs, RANDOLPH AND DONNA MCINVALE

respectfully requests this Honorable Court to enter an Order limiting the scope of any

discovery and/or the depositions as such:

9
1. Defendant is prohibited in discovery and/or in deposition(s) from

inquiring as to the ‘value’ of legal services provided by attorney Kelly Kubiak and/or

Kubiak Law Group, PLLC subsequent to Merlin’s discharge as Plaintiffs 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

discharge as Plaintiffs counsel.

3. Defendant is prohibited in discovery and/or in deposition(s) from

inquiring as to attorney/client privileged communications between Plaintiff and attorney

Kubiak and/or any member of Kubiak Law Group, PLLC.

4. Defendant is prohibited in discovery and/or in deposition(s) from

inquiring as to attorney Kubiak and/or Kubiak Law Group’s work-product.

5. Defendant’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 foregoing has been filed
with the court through the Florida Court’s E-Filing Portal to: Scott Mager, Esquire,
nd
Mager, Paruas, LLC, 2719 Hollywood Blvd., 2 Floor, Hollywood, FL
33020; Service@MPJustice.com; Scott@MPJustice.com; Cecile@MPJustice.com 15th
day of February, 2022.

/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: Thursday, February 4, 2021 10:53 AM
To: Sandra Baldinelli
Subject: FW: Kubiak Law Group

From: Kelly Kubiak
Sent: Wednesday, February 3, 2021 3:44 PM
To: Keona Williams ; Donna Alvarez
Subject: FW: Kubiak Law Group

From: Donna McInvale
Sent: Wednesday, February 3, 2021 3:40 PM
To: Kelly Kubiak
Subject: Re: Kubiak Law Group

Dear Ms. Kubiak,

My husband, Randolph, and I would like to use you and Kubiak Law Group to continue to represent us in our
case against our insurance company, Southern Oakes. If you need any more information from us, please do
not hesitate to contact us.

Blessings,
Donna McInvale
Randolph McInvale
(850) 867-6527

On Wed, Feb 3, 2021 at 12:07 PM Kelly Kubiak wrote:

EXHIBIT "A"
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1
McInvale0001
Filing # 123454559 E-Filed 03/20/2021 04:14:01 PM

IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT
IN AND FOR BAY COUNTY, FLORIDA
CIVIL DIVISION

RANDOLPH and DONNA MCINVALE,

Plaintiffs, Case No.: 20000077CA

SOUTHERN OAK INSURANCE
COMPANY,

Defendant.
________________________________________/

NOTICE OF CHARGING LIEN OF MERLIN LAW GROUP, P.A.

NOTICE IS HEREBY GIVEN THAT Merlin Law Group, P.A., as former counsel for

the Plaintiffs, RANDOLPH and DONNA MCINVALE, hereby give notice of its intention to

enforce a charging lien for attorney’s fees and costs against any property or funds received or

receivable by Plaintiffs 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 operation of law.

2. Merlin Law Group, P.A. acted as counsel of record for Plaintiffs until being

substituted as counsel of record by another law firm pursuant to the received confirmation of the

Plaintiffs.

3. This notice is being filed to protect the rights and interest of Merlin Law Group,

P.A. and remains in effect until released or withdrawn.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 20, 2021, the foregoing has been electronically filed

EXHIBIT "B"
1

McInvale0002
with the Clerk of Court by using the Florida Courts e-Filing Portal system which will send a Notice of

Electronic Filing to all counsel of record as follows: Cole Scott & Kissane, P.A., Aram Megerian,

Esq., Christopher Thibodeaux, Esq., 4301 West Boy Scout Blvd., Suite 400, Tampa, FL 33607,

aram.megerian@csklegal.com, Christopher.thibodeaux@csklegal.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 S. Harbour Island Blvd., Suite 950
Tampa, FL 33602
Tel: (813) 229-1000
Fax: (813) 229-3692
Prior Counsel for Plaintiffs
cmerlin@merlinlawgroup.com
smerriett@merlinlawgroup.com
trodriguez@merlinlawgroup.com

McInvale0003
Complex/Business Litigation * Personal Injury/PIP
Crime Victim Rights * Property Damage Claims
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
______________________________________________
Se Habla Español Hollywood, FL 33020 ▪ F

September 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: Randolph & Donna McInvale v. Southern Oak Insurance Company
Case No. 20-000077-CA

Dear Kelly,

As we have now agreed upon a date for Mr. Duffy to be deposed in his capacity as managing
attorney and corporate representative, we would like to go ahead and follow-up on our previous
request for dates of availability for the following individuals’ deposition:

1. Kelly Kubiak
2. Donna Alvarez
3. Sandra Baldinelli
4. Farana Bradley
5. Lisa Lieberher
6. Randolph McInvale with limited topic list of communications and knowledge relating to
the termination of MLG, the retention of KLG, the process and resolution of the case, as
well as charges, services, billing statements of MLG and KLG, the actions/knowledge
relating to the time and amount of settlement and any closing/distribution statement created
or to be created.
7. Donna McInvale with limited topic list of communications and knowledge relating to the
termination of MLG, the retention of KLG, the process and resolution of the case, as well
as charges, services, billing statements of MLG and KLG, the actions/knowledge relating
to the time and amount of settlement and any closing/distribution statement created or to
be created.

EXHIBIT "C"
Kelly L. Kubiak
September 14, 2021
Page 2 of 2

We are available to take these depositions on any of the following dates:

September 20-24, 27-30, 2021
October 1, 4-8, 11-15, 18-22, 25-29, 2021, and
November 1-5, and 8-12, 2021

Please let us know which of the dates provided above can be scheduled for the deposition of 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 multiple dates, we are happy to
do so. Thank you in advance for your cooperation in this matter.

Very truly yours,

Jesse Fulton
Jesse Fulton, Esq.
For the Firm

2719 Hollywood Blvd. ▪ Second Floor ▪ Hollywood, FL 33020 ▪ (954) 763-2800
Case l: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. 1 4-cv-034 1 7-LTB

AUTO-OWNERS INSURANCE COMPANY, a Michigan corporation,

Plaintiff/Counter-Defendant,

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

those filings. I previously took oral argument on issues relevant to deciding the motion and have

determined that further oral argument would not be of material assistance.

For the following reasons, 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 against Harris and Pettinato individually

EXHIBIT
EXHIBIT "D"
"D"
Case l: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 period Summit

Park wrongfully withheld the appraisal funds pursuant to Colo. Rev. Stat.§ 5-12-102(l)(b).

I. Facts

A. Background

Much of the background to the instant dispute has been set forth in a prior order, 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 alleging breach of contract, bad

faith breach of insurance contract, and unreasonable delay or denial of benefits under Colo. Rev.

Stat. §§ 10-3-1 1 15, -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").

Shortly after this case was filed, Summit Park invoked the appraisal

Case Info

Judge

GOODMAN, JAMES J JR Track Judge’s New Case

Case No.

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Document Filed Date

February 15, 2022

Case Filing Date

January 13, 2020

County

Parties

KUBIAK, KELLY L Attorney for the Plaintiff
MCINVALE, DONNA Plaintiff
MCINVALE, RANDOLPH Plaintiff
SOUTHERN OAK INSURANCE COMPANY Defendant
THIBODEAUX, CHRISTOPHER Attorney for the Defendant
Scott Mager Attorney
Jesse Fulton Attorneys for Plaintiffs
Paydon Broeder Attorneys for Defendants
Kara Hartman Attorney
Aram Megerian Attorney
Michael Duffy Attorney
William Merlin Attorneys for Plaintiffs
Kelly Lenahan Attorney
Christina Bayern Attorney
Leer Thompson Attorney
Mary Fortson Attorney
Lee Watson Attorney

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Motion,Ex Parte: MCINVALE, RANDOLPH vs. SOUTHERN OAK INSURANCE COMPANY

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