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Filing # 141319373 E-Filed 01/04/2022 02:42:36 PM
IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL IRUIT
IN AND FOR MONROE COUNTY, FLORIDA
CIVIL DIVISION
JOSEPH PEREIRA
Plaintiff,
v. CASE NO.: 19-CA-90-M
CITIZENS PROPERTY INSURANCE
CORPORATION,
Defendant.
_______________________________________
PLAINTIFF’S MOTION FOR PROTECTIVE ORDER
COMES NOW, the Plaintiff, JOSEPH PEREIRA (“Plaintiff”), by and through
the undersigned counsel, and pursuant to Fla. R. Civ. P. 1.280(c), moves for a protective
order regarding the depositions of (i) Kelly Kubiak1; (ii) Donna Alvarez; (iii) Sandra
Baldinelli; (iv) Lisa Lieberher; and (v) Joseph Pereira; against Merlin Law Group, PA
(“Merlin”). As grounds of support thereof, Plaintiff states the following:
Relevant Facts
1. This case arises from a property insurance claim made by Plaintiff to his
insurer, Defendant, Citizens Property Insurance Corporation (“Defendant”). Plaintiff
retained the Merlin law firm 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.
3. On or about February 4, 2021, Plaintiff discharged the Merlin law firm
and elected to have Kelly Kubiak, Esq. continue to represent him at her new firm. 2
4. On or about March 18, 2021, Merlin filed a Notice of Charging Lien in
this matter3.
1
and/or Kubiak Law Group, PLLC
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5. On or about April 20, 2021, this matter settled through Mediation with
mediator, the Honorable Wayne Miller. See Mediation Report attached hereto as Exhibit
C.
6. By email/correspondence dated September 14, 2021, Merlin’s attorney(s)
requested the depositions of the aforementioned former employees of Merlin as well as
the Plaintiff4.
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 a
“delay at all costs” as well as an attempt to obtain discovery of facts of its personal case
against Plaintiff’s counsel tactics by Merlin5. Because of the foregoing, and pursuant to
Fla. R. Civ. Proc. 1.280(c), Plaintiff respectfully requests that this Honorable Court grant
its Motion for Protective Order as referenced below6.
Memorandum of Law
Plaintiff requests a protective order regarding these discovery and depositions
pursuant to Fla. R. Civ. Proc. 1.280(c) which states in pertinent part, as follows:
2
Attached hereto as Exhibit “A”
3 A copy of the Charging Lien is attached hereto as Exhibit B.
4
A copy of the email/correspondence is attached hereto as Exhibit D.
5
One federal court judge specifically stated that Merlin litigated in bad faith. In Auto
Owners v. Summit Park, (Order attached as Exhibit E), 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 F). 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.
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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 the Merlin law
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
costs, the Court’s role is to determine the ‘value’ of the discharged law firm’s charging
lien (emphasis added).
3
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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–
1.5(b),48 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
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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.
(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 is an
example of the Searcy progeny that looked to the Fla. Bar Rule 4-1.5 factors.
Additionally, the Scherer court also looked at the identical factors that the Florida
Supreme Court looked to when deciding the ‘value’ of the discharged firms legal services
using a modified quantum meruit application. Notably, nowhere does it suggest that the
Court must, and/or even should, look at the departing lawyer’s legal services (post-
departure) nor the ‘value’ of the departing lawyer’s legal services.
5
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II). MERLIN’S ASSERTION THAT THIS COURT MUST ALLOW
DISCOVERY 10 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.
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 Plaintiff 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, towit:
¶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.
10 Regarding legal services provided by the successor law firm and the ‘value’ of said
services.
11 Kubiak Law Group, PLLC
6
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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,
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/Donadio and Merlin are the two parties who entered into
a contractual relationship. The Donadio/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.
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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
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
12 Where a discharged law firm had a contingency fee agreement with a client such as this
case.
8
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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.
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
9
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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 Plaintiff, JOSEPH PEREIRA, respectfully requests this
Honorable Court to enter an Order limiting the scope of any discovery and/or the
depositions of Kelly Kubiak, Donna Alvarez, Sandra Baldinelli, Lisa Lieberher and
Joseph Pereira as such:
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 Plaintiff’s counsel.
2. Defendant is prohibited in discovery and/or in deposition(s) from
inquiring into the scope, extent, manner, and/or type of legal services provided by
attorney Kelly Kubiak and/or Kubiak Law Group, PLLC subsequent to Merlin’s
discharge as Plaintiff’s 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.
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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,
Mager, Paruas, LLC, 2719 Hollywood Blvd., 2nd Floor, Hollywood, FL 33020;
Service@MPJustice.com; Scott@MPJustice.com; Cecile@MPJustice.com on this 4th day
of January, 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
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Donna Alvarez
From: Kelly Kubiak
Sent: Saturday, February 6, 2021 11:06 AM
To: Keona Williams; Donna Alvarez
Subject: FW: Kubiak Law Group
From: Joe Pereira
Sent: Thursday, February 4, 2021 1:29 PM
To: Kelly Kubiak
Subject: Re: Kubiak Law Group
Yes as I indicated during our phone discussion, please do what is necessary to transfer my attorney of record to the
Kubiak Law Group ASAP.
As I indicated after more than two years of preparation with what seems to be little progress, we are anxious to finalize
our case.
Please acknowledge the transfer and acceptance to the Kubiak Law Group.
Regards, J J Pereira
Sent from Joe's iPhone
On Feb 3, 2021, at 10:57 AM, Kelly Kubiak wrote:
This email has been scanned for spam and viruses by Proofpoint Essentials. Click here to report this email as spam.
EXHIBIT "A"
1
PEREIRA0001
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Filing # 123454523 E-Filed 03/20/2021 04:06:12 PM
IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
CIVIL DIVISION
JOSEPH PEREIRA,
Plaintiff,
v. Case No. 19-CA-90-M
CITIZENS PROPERTY INSURANCE
CORPORATION,
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 Plaintiff, JOSEPH PEREIRA, hereby gives notice of its intention to enforce a charging lien for
attorney’s fees and costs against any property or funds received or receivable by Plaintiff in this
action whether by settlement, judgment, or otherwise or which was an issue in this instant action,
and in support thereof states as follows:
1. This charging lien results by operation of law.
2. Merlin Law Group, P.A. acted as counsel of record for Plaintiff until being
substituted as counsel of record by another law firm pursuant to the received confirmation of the
Plaintiff.
3. This notice is being filed to protect the 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
with the Clerk of Court by using the Florida Courts e-Filing Portal system which will send a Notice
EXHIBIT "B"
1
PEREIRA0002
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of Electronic Filing to all counsel of record as follows: Cole Scott & Kissane, P.A., Dana Battle,
Esq., Katrina Carrillo, Esq., 9150 South Dadeland Blvd., Suite 1400, Miami, FL 33256,
dania.battle@csklegal.com, Katrina.carrillo@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 Plaintiff
cmerlin@merlinlawgroup.com
smerriett@merlinlawgroup.com
trodriguez@merlinlawgroup.com
2
PEREIRA0003
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Filing # 133607212 E-Filed 08/28/2021 10:17:02 AM
In the Circuit Court of the Sixteenth
Judicial Circuit in and for Monroe
County, Florida
Case No. 19CA90M
Joseph Pereira
Plaintiff,
v.
Citizens Property Insurance Corporation
Defendant,
____________________________/ ,
MEDIATOR’S REPORT
In accordance with Fla. Rule of Civil Procedure 1.730, the undersigned Mediator
hereby reports to the Court the disposition of the mediation of the above captioned action.
The mediation was held on April 20, 2021. The disposition was as follows:
__XX___ The parties reached an agreement.
_______ No agreement was reached.
_______ A partial Agreement was reached.
_______ The parties agreed to continue the Mediation for __ Days.
Wayne Miller Mediation
2514 Linda Avenue
Key West, FL 33040
305 923 7000
Wmiller82052@gmail.com
By:/s/ Wayne M Miller
Wayne M Miller, Mediator
Dated: August 28, 2021
Copies to:
Counsel of record via email
EXHIBIT "C"
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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 ▪ (954) 763- 2800
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: Joseph Pereira v. Citizens Property Insurance Corporation
Case No. 19-CA-90-M
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. Lisa Lieberher
5. Joseph Pereira 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.
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
November 1-5, and 8-12, 2021
EXHIBIT "D"
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Kelly L. Kubiak, Esq.
September 14, 2021
Page 2 of 2
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
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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,
v.
SUMMIT PARK T
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Filing # 141319373 E-Filed 01/04/2022 02:42:36 PM IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL IRUIT IN AND FOR MONROE COUNTY, FLORIDA CIVIL DIVISION JOSEPH PEREIRA Plaintiff, v. CASE NO.: 19-CA-90-M CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. _______________________________________ PLAINTIFF’S MOTION FOR PROTECTIVE ORDER COMES NOW, the Plaintiff, JOSEPH PEREIRA (“Plaintiff”), by and through the undersigned counsel, and pursuant to Fla. R. Civ. P. 1.280(c), moves for a protective order regarding the depositions of (i) Kelly Kubiak1; (ii) Donna Alvarez; (iii) Sandra Baldinelli; (iv) Lisa Lieberher; and (v) Joseph Pereira; against Merlin Law Group, PA (“Merlin”). As grounds of support thereof, Plaintiff states the following: Relevant Facts 1. This case arises from a property insurance claim made by Plaintiff to his insurer, Defendant, Citizens Property Insurance Corporation (“Defendant”). Plaintiff retained the Merlin law firm 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. 3. On or about February 4, 2021, Plaintiff discharged the Merlin law firm and elected to have Kelly Kubiak, Esq. continue to represent him at her new firm. 2 4. On or about March 18, 2021, Merlin filed a Notice of Charging Lien in this matter3. 1 and/or Kubiak Law Group, PLLC 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 1 5. On or about April 20, 2021, this matter settled through Mediation with mediator, the Honorable Wayne Miller. See Mediation Report attached hereto as Exhibit C. 6. By email/correspondence dated September 14, 2021, Merlin’s attorney(s) requested the depositions of the aforementioned former employees of Merlin as well as the Plaintiff4. 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 a “delay at all costs” as well as an attempt to obtain discovery of facts of its personal case against Plaintiff’s counsel tactics by Merlin5. Because of the foregoing, and pursuant to Fla. R. Civ. Proc. 1.280(c), Plaintiff respectfully requests that this Honorable Court grant its Motion for Protective Order as referenced below6. Memorandum of Law Plaintiff requests a protective order regarding these discovery and depositions pursuant to Fla. R. Civ. Proc. 1.280(c) which states in pertinent part, as follows: 2 Attached hereto as Exhibit “A” 3 A copy of the Charging Lien is attached hereto as Exhibit B. 4 A copy of the email/correspondence is attached hereto as Exhibit D. 5 One federal court judge specifically stated that Merlin litigated in bad faith. In Auto Owners v. Summit Park, (Order attached as Exhibit E), 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 F). 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 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 2 Upon motion by a party or by the person from whom the discovery is sought, and for good cause shown, the Court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that 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 the Merlin law 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 costs, the Court’s role is to determine the ‘value’ of the discharged law firm’s charging lien (emphasis added). 3 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 3 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– 1.5(b),48 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 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 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. (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 is an example of the Searcy progeny that looked to the Fla. Bar Rule 4-1.5 factors. Additionally, the Scherer court also looked at the identical factors that the Florida Supreme Court looked to when deciding the ‘value’ of the discharged firms legal services using a modified quantum meruit application. Notably, nowhere does it suggest that the Court must, and/or even should, look at the departing lawyer’s legal services (post- departure) nor the ‘value’ of the departing lawyer’s legal services. 5 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 5 II). MERLIN’S ASSERTION THAT THIS COURT MUST ALLOW DISCOVERY 10 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. 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 Plaintiff 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, towit: ¶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. 10 Regarding legal services provided by the successor law firm and the ‘value’ of said services. 11 Kubiak Law Group, PLLC 6 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 6 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, 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/Donadio and Merlin are the two parties who entered into a contractual relationship. The Donadio/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. 7 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 7 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 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 12 Where a discharged law firm had a contingency fee agreement with a client such as this case. 8 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 8 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. 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 9 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 9 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 Plaintiff, JOSEPH PEREIRA, respectfully requests this Honorable Court to enter an Order limiting the scope of any discovery and/or the depositions of Kelly Kubiak, Donna Alvarez, Sandra Baldinelli, Lisa Lieberher and Joseph Pereira as such: 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 Plaintiff’s counsel. 2. Defendant is prohibited in discovery and/or in deposition(s) from inquiring into the scope, extent, manner, and/or type of legal services provided by attorney Kelly Kubiak and/or Kubiak Law Group, PLLC subsequent to Merlin’s discharge as Plaintiff’s 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. 10 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 10 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, Mager, Paruas, LLC, 2719 Hollywood Blvd., 2nd Floor, Hollywood, FL 33020; Service@MPJustice.com; Scott@MPJustice.com; Cecile@MPJustice.com on this 4th day of January, 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 11 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 11 Donna Alvarez From: Kelly Kubiak Sent: Saturday, February 6, 2021 11:06 AM To: Keona Williams; Donna Alvarez Subject: FW: Kubiak Law Group From: Joe Pereira Sent: Thursday, February 4, 2021 1:29 PM To: Kelly Kubiak Subject: Re: Kubiak Law Group Yes as I indicated during our phone discussion, please do what is necessary to transfer my attorney of record to the Kubiak Law Group ASAP. As I indicated after more than two years of preparation with what seems to be little progress, we are anxious to finalize our case. Please acknowledge the transfer and acceptance to the Kubiak Law Group. Regards, J J Pereira Sent from Joe's iPhone On Feb 3, 2021, at 10:57 AM, Kelly Kubiak wrote: This email has been scanned for spam and viruses by Proofpoint Essentials. Click here to report this email as spam. EXHIBIT "A" 1 PEREIRA0001 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 12 Filing # 123454523 E-Filed 03/20/2021 04:06:12 PM IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA CIVIL DIVISION JOSEPH PEREIRA, Plaintiff, v. Case No. 19-CA-90-M CITIZENS PROPERTY INSURANCE CORPORATION, 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 Plaintiff, JOSEPH PEREIRA, hereby gives notice of its intention to enforce a charging lien for attorney’s fees and costs against any property or funds received or receivable by Plaintiff in this action whether by settlement, judgment, or otherwise or which was an issue in this instant action, and in support thereof states as follows: 1. This charging lien results by operation of law. 2. Merlin Law Group, P.A. acted as counsel of record for Plaintiff until being substituted as counsel of record by another law firm pursuant to the received confirmation of the Plaintiff. 3. This notice is being filed to protect the 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 with the Clerk of Court by using the Florida Courts e-Filing Portal system which will send a Notice EXHIBIT "B" 1 PEREIRA0002 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 13 of Electronic Filing to all counsel of record as follows: Cole Scott & Kissane, P.A., Dana Battle, Esq., Katrina Carrillo, Esq., 9150 South Dadeland Blvd., Suite 1400, Miami, FL 33256, dania.battle@csklegal.com, Katrina.carrillo@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 Plaintiff cmerlin@merlinlawgroup.com smerriett@merlinlawgroup.com trodriguez@merlinlawgroup.com 2 PEREIRA0003 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 14 Filing # 133607212 E-Filed 08/28/2021 10:17:02 AM In the Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County, Florida Case No. 19CA90M Joseph Pereira Plaintiff, v. Citizens Property Insurance Corporation Defendant, ____________________________/ , MEDIATOR’S REPORT In accordance with Fla. Rule of Civil Procedure 1.730, the undersigned Mediator hereby reports to the Court the disposition of the mediation of the above captioned action. The mediation was held on April 20, 2021. The disposition was as follows: __XX___ The parties reached an agreement. _______ No agreement was reached. _______ A partial Agreement was reached. _______ The parties agreed to continue the Mediation for __ Days. Wayne Miller Mediation 2514 Linda Avenue Key West, FL 33040 305 923 7000 Wmiller82052@gmail.com By:/s/ Wayne M Miller Wayne M Miller, Mediator Dated: August 28, 2021 Copies to: Counsel of record via email EXHIBIT "C" 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 15 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 ▪ (954) 763- 2800 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: Joseph Pereira v. Citizens Property Insurance Corporation Case No. 19-CA-90-M 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. Lisa Lieberher 5. Joseph Pereira 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. 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 November 1-5, and 8-12, 2021 EXHIBIT "D" 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 16 Kelly L. Kubiak, Esq. September 14, 2021 Page 2 of 2 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 1/4/2022 2:42 PM eFiled - Kevin Madok, CPA, Clerk of the Court Page 17 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, v. SUMMIT PARK T