HomeMy Public PortalAboutPRR 15-1817RECORDS REQUEST (the "Request")
Date of Request: 3/1212015
Requestor's Request ID#:
1074
REQUESTEE: Custodian of Records Town of Gulf Stream
REQUESTOR: Asset Enhancement, Inc.
REQUESTOR'S CONTACT INFORMATION: E -Mail: records @commerce - group.com
Fax: 954- 360 -0807 or Contact Jill Mohler, Records Custodian at imohler(d),commerce- arouD.com;
(954) 570 -3507; Address: 1280 West Newport Center Drive, Deerfield Beach, FL 33442
REQUEST:
Please provide copies of all documents (including, without limitation, Billings,
Payments, Plans, Estimates, Contracts, Drafts of on rac s, Memos, a ers and
vid Vitale
during the period beginning January 1 2014 through the date of this Reguest.
ADDITIONAL INFORMATION REGARDING REQUEST:
THIS REQUEST IS MADE PURSUANT TO ARTICLE I, SECTION 24 OF THE FLORIDA CONSTITUTION AND CHAPTER 119,
FLORIDASTATUTES
IF THE PUBLIC RECORDS BEING SOUGHT ARE MAINTAINED BY YOUR AGENCY IN AN ELECTRONIC FORMAT PLEASE
PRODUCE THE RECORDS IN THE ORIGINAL ELECTRONIC FORMAT IN WHICH THEY WERE CREATED OR RECEIVED.
SEE 6119.01(2)(F). FLORIDA STATUTES. IF NOT AVAILABLE IN ELECTRONIC FORM, IT IS REQUESTED THAT THIS
RECORDS REQUEST BE FULFILLED ON 1I X 17 PAPER NOTE: IN ALL CASE (UNLESS IMPOSSIBLE) THE COPIES
SHOULD BE TWO SIDED AND SHOULD BE BILLED IN ACCORDANCE WITH Section 119.07(4) (a) (2)
ALSO PLEASE TAKE NOTE OF 4119.07(1)(H) OF THE FLORIDA STATUTES, WHICH I PROVIDES THAT 'IF A CIVIL ACTION
IS INSTITUTED WITHIN THE 30 -DAY PERIOD TO ENFORCE THE PROVISIONS OF THIS SECTION WITH RESPECF TO
THE REQUESTED RECORD, THE CUSTODIAN OF PUBLIC RECORDS MAY NOT DISPOSE OF THE RECORD EXCEPT BY
ORDER OF A COURT OF COMPETENT JURISDICTION AFTER NOTICE TO ALL AFFECTED PARTIES."
ALL ELECTRONIC COPIES ARE REQUESTED TO BE SENT BY E -MAIL DELIVERY
PLEASE PROVIDE THE APPROXIMATE COSTS (IF ANY) TO FULFILL THIS PUBLIC RECORDS REQUEST IN ADVANCE.
It will be required that the Requestor approve of any costs, asserted by the Agency (as defined in Florida Statute, Chapter 119.01
(Dentitions)), in advance of any costs Imposed to the Requestor by the Agency.
'BY FULFILLING THIS RECORDS REQUEST, THE AGENCY ACKNOWLEDGES THAT THE RESPONSIVE DOCUMENTS
ARE `PUBLIC RECORDS" AS DEFINED IN CHAPTER 119, FLORIDA STATUTES ".
UP/NP/FLRR
3.2.2015
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
March 17, 2015
Asset Enhancement, Inc. [mail to: records @commerce- group.com]
Re: GS #1817 (1074)
Please provide copies of all documents (including, without limitation, billings, payments, plans,
estimates, contracts, drafts of contracts, memos, letters and emails) ("Documents') generated,
stored, created, or received by David Vitale during the period beginning January 1, 2014 through
the date of this request.
Dear Asset Enhancement, Inc. [mail to: recordsna,commerce- erouo.coml,
The Town of Gulf Stream has received your public records requests dated March 12, 2015. If your
request was received in writing, then the requests can be found at the following link:
hU: / /www2.gulf- stream. oreJ WebLink8 /0 /doc /40969/Pagel.asoxx. If your request was verbal,
then the description of your public records request is set forth in the italics above. Please refer to
the referenced number above with any future correspondence.
The Town of Gulf Stream is currently working on a large number of incoming public records
requests. The Town will use its very best efforts to respond to you in a reasonable amount of time
with the appropriate response or an estimated cost to respond.
Sincerely,
Town Clerk, Custodian of the Records
Kelly Avery
From:
Robert Sweetapple <rweetapple @sweetapplelaw.com>
Sent:
Tuesday, September 02, 2014 9:51 AM
To:
Mark Hanna
Cc:
Robert Sweetapple; Scott Morgan; Joanne M. O'Connor; David Vitale
Subject:
Re: O'Hare - meeting 9/2 or 9/3
Follow Up Flag:
Follow up
Flag Status:
Flagged
Just the lovely Joanne and my law clerk.
Regards, Bob Sweetapple
> On Sep 2, 2014, at 9:43 AM, "Mark Hanna" <mhanna @g3mlaw.com> wrote:
> Who will be attending besides you and Scott? It will be Chris, Lou Roeder and me.
> Mark J. Hanna
> 561- 723 -8284
> markjhanna @icloud.com
> Sent from iPhone. It has a small keyboard & I have fat fingers. Please forgive any typos or grammatical errors
>> On Aug 30, 2014, at 3:43 PM, Robert Sweetapple <rweetapple @sweetapplelaw.com> wrote:
>> Look forward to it. Hope you get a chance to enjoy the Labor Day weekend.
>> Regards, Bob Sweetapple
>>> On Aug 29, 2014, at 12:12 PM, "Mark Hanna" <mhanna @g3mlaw.com> wrote:
>>> That will work. See you at 9:30 on Wednesday Sept 3 at your office in Boca.
>>> Mark J. Hanna
>>> 561- 723 -8284
>>> markjhanna @icloud.com
>>> Sent from iPhone. It has a small keyboard & I have fat fingers. Please forgive any typos or grammatical errors.
»» On Aug 29, 2014, at 10:24 AM, Robert Sweetapple <rweetapple @sweetapplelaw.com> wrote:
»» We can all meet at my office Wednesday Sept. 3 at 9:30 if that works for your side.
»» Regards, Bob Sweetapple
» »> On Aug 27, 2014, at 11:14 AM, "Mark Hanna" <mhanna @g3mlaw.com> wrote:
» »> Any word if we can meet either day? Chris has some closings /project meetings to set but he want to keep open
for this.
» »> Mark J. Hanna
» »> 561- 723 -8284
» »> markjhanna @icloud.com
»»> Sent from Whone. It has a small keyboard & I have fat fingers. Please forgive any typos or grammatical errors.
Kelly Avery
From:
Robert Sweetapple <rsweetapple @sweetapplelaw.com>
Sent:
Monday, February 23, 2015 9:05 PM
To:
Scott Morgan; David Vitale
Subject:
FW: SERVICE OF COURT DOCUMENT CASE No.: 50- 2014 -CA- 004474
Attachments:
14CA4474
_Order_Granting_Defendants Motion for_Leavefo_ File _Amended_Answer_Affirmative_Def
e nses_an d_Cou ntercl a i m. pdf
Importance:
High
Follow Up Flag:
Follow up
Flag Status:
Flagged
ROBERT A. SWEETAPPLE, ESQ.
Sweetapple, Broeker & Varkas, P.L.
20 SE 3b Street
Boca Raton, FL 33432
(561) 392 -1230 (t)
(5611394-6102 (t)
rsweetapple@sweetapplelaw.com
STATEMENT OF CONFIDENTIALITY
The information in this e-mail is confidential and may be legally privileged. If you are not the named addressee, or if this
message has been addressed to you in error, you are directed not to read, disclose, reproduce, distribute, disseminate,
maintain, save or otherwise use this email. Please contact the sender at the above number immediately. Delivery of this
message to any person other than the intended recipient(s) is not intended in any way to waive privilege or confidentiality.
From: Pleadings <pleadings @sweetaPDIelaw.com>
Date: Monday, February 23, 2015 at 10:32 AM
To: Cynthia Bailey <cbailev @sweetapplelaw.com>, Bob Sweetapple < rsweetapple @sweetapplelaw.com >, Debbie Smith
<dsmith @sweeta pplelaw.com>
Subject: FW: SERVICE OF COURT DOCUMENT CASE No.: 50- 2014 -CA- 004474
From: CAD - DIVISION AA[ SMTP:CAD- DIVISIONAA @PBCGOV.ORGI
Sent: Monday, February 23, 2015 10:31:14 AM
To: Cynthia Bailey; Pleadings; Joanne Marie 0; Mitchell Wayne Berger;
arichman @ionesfoster .com; csmith @culversmithlaw.com:
ddesouza @desouzalaw.com: drtCWbergersingerman.com;
Lrandolph @ionesfoster.com; mmacfarlane @ionesfoster.com;
mvega @bergersingerman.com; sweber @bergersingerman.com
Cc: CAD- DIVISION AA
Subject: SERVICE OF COURT DOCUMENT CASE No.: 50- 2014 -CA- 004474
Importance: High
Auto forwarded by a Rule
• This email is from the Fifteenth Judicial Circuit
• Case Number: 50-2014-CA-004474
• MARTIN OBOYLE V TOWN OF GULF STREAM
" O r d e r s A t t a c h e d :
O r d e r G r a n t i n g D e f e n d a n t ' s M o t i o n f o r L e a v e t o F i l e A m e n d e d A n s w e r , A f f i r m a t i v e D e f e n s e s a n d
C o u n t e r c l a i m
" D i v i s i o n A A , 5 6 1 3 5 5 - 1 7 2 1
I n a c c o r d a n c e w i t h t h e 1 5 t h J u d i c i a l C i r c u i t ' s A d m i n i s t r a t i v e O r d e r 2 . 3 1 0 - 4 / 1 3 , p l e a s e e n s u r e t h a t p r i m a r y a n d s e c o n d a r y
e m a i l a d d r e s s e s a r e r e g i s t e r e d w i t h C o u r t A d m i n i s t r a t i o n a t h t t p s : H e - s e r v i c e s . c o . p a l m - b e a c h . f l . u s / s c h e d u l i n g / .
F o r a b e t t e r t r a n s l a t i o n o f t h i s d o c u m e n t , c o n t a c t C A D - A D A C d p b c g o v . o r g .
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO.: 502014CA004474XXXXMB -AA
MARTIN E. O'BOYLE,
Plaintiff(s),
vs.
TOWN OF GULF STREAM,
Defendant(s).
ORDER GRANTING DEFENDANT'S MOTION FOR LEAVE TO FILE
AMENDED ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM
THIS MATTER came before the Court upon the Defendant's Motion for Leave to
File Amended Answer, Affirmative Defenses and Counterclaim. The Court has
reviewed the motion, the response from Plaintiff, and has considered argument of
counsel. After review and consideration, the Court finds as follows:
1. The Plaintiff has stipulated that all records that should be produced
pursuant to the public records request at issue in this cause have been produced by the
Defendant.
2. Nonetheless, the Plaintiff opposes Defendant's motion and seeks an
expedited hearing to allow the Court to determine the Plaintiff's potential entitlement to
attorney's fees pursuant to Florida Statute §119.12.
3. The proposed Affirmative Defenses and Counterclaim raised by Defendant
allege not simply malicious motives and public harm, see News Press Publishing Co.,
Inc. v. Gadt, 388 So.2d 276 (Fla. 2d DCA 1980), but a pattern of fraudulent conduct
intended to make it impossible to comply with Florida Statute 119 through timely
production, thereby mandating Plaintiffs entitlement to fees. The affirmative defenses
and counterclaim address not solely the Defendant's intent, but the reasonableness of
the process by which the Plaintiff makes his record requests.
4. In this instance, all records have been produced and affirmative defenses
have been raised regarding the process by which the Plaintiff makes his public record
requests. The Court will be unable to resolve the remaining issues pursuant to the
statute until the parties have completed their discovery on the claims and affirmative
defenses. The counterclaim in many respects addresses the same factual issues as
the affirmative defenses.
Accordingly, it is
ORDERED AND ADJUDGED as follows:
A. The Defendant's Motion for Leave to File Amended Answer, Affirmative
Defenses and Counterclaim is granted.
B. The most recently filed Amended Answer, Affirmative Defenses and
Counterclaim is hereby deemed filed.
C. The Plaintiff /Counter - Defendant shall have twenty (20) days to respond.
D. Plaintiffs Motion to Sever the Counterclaim is denied without prejudice.
DONE AND ORDERED in Chambers, at West Palm Beach, Palm Beach County,
Florida, on this a3 day of February, 2015.
PETER D. BLANC, Circuit Judge
Copies furnished VIA JUDICIAL E- SERVICE to:
MITCHELL W. BERGER, ESQ., Berger Singerman, LLP, mberger(a),bergersinaerman.com;
sweber(abergersingerman.com; drt(a)bergersingerman.com; drtabergersingerman.com;
mvegana bergersingerman.com (954) 525 -9900
DANIEL DESOUZA, ESQ., DeSouza Law, PA, ddesouza(aa)desouzalaw.com (954) 603 -1340
D. CULVER SMITH, III, ESQ., Culver Smith, PA, csmith(a)culversmithlaw.com (561) 598 -6800
ROBERT A. SWEETAPPLE, ESQ., Sweetapple, Broeker & Varkas, PL, plead ingsCQsweetapplelaw.com;
rsweetapple(a)sweetaoplelaw.com (561) 392 -1230
JOANNE O'CONNOR, ESQ. /JOHN C. RANDOLPH. ESQ. /ASHLEE A. RICHMAN, ESQ., Jones Foster
Johnston & Stubbs, PA, ioconnora'onesfoster.com; mmacfarlane(a,ionesfoster.com;
irandolph(o)ionesfoster.com; arichman(a)ionesfoster.com (561) 659 -3000
2
Kelly Avery
From: OConnor, Joanne M. <JOConnor @jonesfoster.com>
Sent: Sunday, March 15, 2015 7:25 PM
To: Robert Sweetapple
Cc: David Vitale; 'scottmorgan75 @gmail.com'; Bould, Karen
Subject: O'Hare - Order on motion to disqualify
Attachments: 1 LM4121 -order proposed motion disqualify sweetapple.DOCX
Importance: High
Follow Up Flag: Follow up
Flag Status: Flagged
Please find my proposed order attached. It is due to be submitted by email to Judge Blanc by close of business
tomorrow.
By copy to my paralegal, Karen Bould, I ask that she complete the missing pinpoint citations and find proper cite to
Rombula case cited by Plaintiff. No need to run negative keycite as these cases have all been vetted.
Mary — please add signature line for judge at the end.
CHRISTOPHER F. O'HARE,
Plaintiff,
V.
TOWN OF GULF STREAM,
Defendant.
IN THE CIRCUIT COURT OF THE FIFTEENTH
JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR
PALM BEACH COUNTY.
CASE NO: 502013CA017717XXXXMB AA
ORDER DENYING PLAINTIFF'S AMENDED AND SUPPLEMENTAL
VERIFIED MOTION TO DISQUALIFY DEFENSE COUNSEL
THIS CAUSE came before the Court on March 11, 2015 for an evidentiary hearing on
Plaintiff's Amended and Supplemental Verified Motion to Disqualify Defense Counsel
( "Disqualification Motion "). Having heard the argument of counsel, reviewed the
Disqualification Motion and Defendant's written opposition, considered the testimony of the
witnesses, the documents and other evidence introduced by the parties, and otherwise been fully
advised in the premises, the Court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
A. The Instant Public Records Lawsuit
This suit is one of some two dozen Public Records Act suits filed by Plaintiff against the
Town. The Complaint asserts two counts of (1) unreasonable delay and (2) automatic delay'
arising out of a public records request Plaintiff made to the Town on Sunday, September 29,
' By Count II, Plaintiff asserts that an acknowledgment letter sent by the Town acknowledging Plaintiffs public
records requests imposed an "automatic delay" on the Town's response. In another public records suit brought by
Martin O'Boyle against the Town, Judge Lucy Brown found as a matter of law that such an acknowledgment, which
is required by the Public Records Act, does not constitute an automatic delay and granted the Town summary
judgment on June 24, 2014.
2013 for a "Satellite Image of Town of Gulf Stream Boundary — in digital file form." (Compl. ¶¶
16 -17). On January 15, 2015, the Town sought leave to file Affirmative Defenses and a
Counterclaim and that motion for leave is pending. Those defenses and counterclaim assert that
Plaintiff has unclean hands and has conspired with another Town resident, Martin O'Boyle, and
others including their attorneys at The O'Boyle Law Firm to inundate the Town with thousands
of public records requests and thereafter brought lawsuits. The Town has asserted the same
defenses and counterclaim in other public records suits brought by Plaintiff and has been granted
leave to assert a similar counterclaim against Plaintiff in another public records lawsuit brought
by Mr. O'Boyle. (See Pl.'s Exhibits 8, 9).
Plaintiff began making public records requests to the Town in 2012. Prior to bringing
public records suits against the Town in 2013, Plaintiff had never been engaged in public records
litigation.
B. Other Pending Litigation Between Plaintiff and the Town
In addition to the public records suits, Plaintiff has brought a number of additional
lawsuits against the Town. These include a 2013 federal civil rights suit brought by Mark Hanna,
Esq. on behalf of Plaintiff against the Town, Town Manager William Thrasher and Town police
officer David Ginsberg arising out of a purported illegal search of Plaintiffs home at 2520
Avenue Au Soleil in 2011. (See Pl.'s Exhibit 12). Insurance counsel for the Town, not Mr.
Sweetapple, is defending this case. Plaintiff has also sued the Town over a "solar sandwich roof'
that he seeks to install on his home at 2520 Avenue Au Soleil. Further, together with Mr.
O'Boyle, Plaintiff has sued the Town pursuant to the Anti -Shush law.
The Town has sued Plaintiff over a boat that he has moored behind the mayor's house
with banners painted on it that mocks some of the Town leaders. The Town, together with
1)
private contractor The Wantmann Group, has also recently filed a putative class action for
violation of RICO against Plaintiff, Mr. O'Boyle and others in federal court arising out of their
actions in making public records requests and filing public records suits since 2013. (See Exhibit
11). Mr. Sweetapple shared information that he gathered in defending the public records suits
during the past year with the attorneys at Richman, Greer, PA., who are prosecuting the federal
RICO suit.
C. Attorney Sweetapple's Representation of the Town in the Public Records Cases
Robert Sweetapple, Esq. is a trial attorney who has practiced in Florida for 35 years. The
Defendant, Town of Gulf Stream ( "Town ") engaged him in or about 2014 to defend numerous
public records lawsuits including the aforementioned public records suits brought by Plaintiff.
Although Plaintiff suggests that by an e -mail to Mr. Hanna in September 2014 (Pl.'s Exhibit 7),
Mr. Sweetapple expressed an intent to appear on behalf of the Town in all pending cases brought
by Mr. Hanna on behalf of O'Hare, the Court finds credible Mr. Sweetapple's testimony he has
only been engaged to defend the public records suits. The Court also credits Mr. Sweetapple's
undisputed testimony that insurance counsel for the Town is defending Plaintiff's federal civil
rights suit, the only other suit brought by Mr. Hanna for Plaintiff in the record
D. Plaintiffs Prior Disputes with Ocean Ridge, Boynton Beach and Gulf Stream
Prior to moving to Gulf Stream in 2004, Plaintiff resided in the Town of Ocean Ridge.
Plaintiff and his wife purchased an apartment complex at 21 Tropical Drive in Ocean Ridge in
1996 and thereafter constructed improvements including a pitched roof. In November 1997,
Plaintiff contacted Attorney Sweetapple about assisting him with a claim brought against Ocean
Ridge by an individual named Emmett Pace. Pace had sued the Town (and perhaps Plaintiff in
his capacity as a commissioner) and claimed that the O'Hare's improvements blocked his ocean
3
view. According to O'Hare, Mr. Sweetapple suggested that Plaintiff should contribute toward a
settlement of that litigation. Plaintiff had intended to hire Mr. Sweetapple if the case did not
settle but it did.
Thereafter, the Town of Ocean Ridge cited Plaintiff in March 1998 for a code
enforcement violation related to the 21 Tropical Drive complex. While it is clear that the Plantiff
retained Mr. Sweetapple's law firm, Sweetapple, Broeker & Varkas, P.L. to assist him in some
capacity with that code enforcement matter, the scope of any involvement by Mr. Sweetapple is
unclear. Edwin Jonas, an attorney who worked as of counsel with Mr. Sweetapple at the time,
testified that he met with Plaintiff on several occasions at the offices of Sweetapple, Broeker &
Varkas, P.L. regarding the code enforcement matter. (See Pl.'s Ex. 1) Consistent with Mr. Jonas'
testimony, the record reflects several communications between Mr. Jonas and Ocean Ridge
Town Attorney, Paul Nicoletti, followed by a Settlement Agreement signed by Mr. Jonas on
behalf of the O'Hare's. (See Pl.'s Exhibit 3). In light of this testimony and evidence, the Court
declines to credit Plaintiffs testimony that he never met Mr. Jonas until a meeting at Town Hall
to procure a settlement. The Court finds it much more credible that Mr. Jonas was handling the
matter subject to some level of ultimate review by Mr. Sweetapple. In any event, it is clear is that
any representation by Sweetapple, Broeker & Varkas, P.L. of Plaintiff regarding the Ocean
Ridge code enforcement violation was extremely limited: the March 1998 code enforcement
violation was settled by mid -April 1998. The O'Hare's sold the apartment building at 21
Tropical Drive in Ocean Ridge in or about 2004 when they moved to Gulf Stream.
The Disqualification Motion references a potential representation by Mr. Sweetapple of
Plaintiff for a Sunshine Law violation in Ocean Ridge in 1998, but no evidence was presented to
the Court regarding any such representation.
0
Other than the Ocean Ridge matters relating to 21 Tropical Drive, Plaintiff recalled brief
discussions with Mr. Sweetapple regarding a zoning issue in Boynton Beach in 1999 and a
screen enclosure and brick wall he sought to construct at a home he used to own on Middle Lane
in Gulf Stream in 2005. Mr. Sweetapple had no recollection of these matters.
E. Unidentified Information Plaintiff Shared with Sweetapple
Mr. Sweetapple referred Plaintiff to a therapist in 1998. At the last of several meetings, in
1999, the therapist made a comment that suggested to Plaintiff that Attorney Sweetapple had
shared with the therapist some confidential information that Plaintiff has never shared with
anyone but Mr. Sweetapple and another, unidentified person. Mr. Sweetapple has no recollection
of Plaintiff confiding personal, confidential information in him some 16 years ago.
Notwithstanding the betrayal of confidence Plaintiff now describes, when Plaintiff met
Mr. Sweetapple again in March 2014, 9 years after they last spoke regarding the brick wall and
screen enclosure, Plaintiff greeted Mr. Sweetapple "like an old friend." Plaintiff knew that Mr.
Sweetapple was defending the Town's mayor -elect in public records litigation brought against
the Town by Mr. O'Boyle in March 2014. Plaintiff also knew that Mr. Sweetapple had formally
appeared on behalf of the Town in this case in April 2014 and, by late July 2014, knew that Mr.
Sweetapple was exploring RICO claims, The record was nevertheless devoid of any evidence
that Plaintiff took any action to alert Mr. Sweetapple to his concerns of the purported breach of
his confidence, waiting to file his Disqualification Motion until after settlement discussions
failed in September 2014.
CONCLUSIONS OF LAW
As Plaintiff acknowledges, the disqualification of counsel is an extraordinary remedy
used sparingly. Am. Mot. at 12, citing Frank-, Weinberg & Black, P.A. v. Effman, 916 So. 2d 921,
5
923 (Fla. 4 °i DCA 2005). Indeed, "the disqualification of a party's counsel in a civil case is an
immensely unusual remedy, one that must be employed only in limited circumstances." Allstate
Ins. Co. v. Bowne, 817 So. 2d 994, 998 (Fla. 4 °i DCA 2002) (collecting cases). "A client's choice
of counsel is entitled to `substantial deference,' and a movant seeking to sever that relationship
through disqualification must meet a high standard of proof." [CITE] Courts are skeptical of
disqualification motions because they are often made for tactical purposes or to harass the other
party. See Bowne, 817 So. 2d at 998 (citing Freeman v. Chicago Musical Instr. Co., 689 F.2d
715, 721 -22 (7"' Cir. 1982)). See also Prudential Ins. Co. of Am. v. Anodyne, Inc., 365 F. Supp.
2d 1232, 1237 (S.D. Fla. 2005); Hernandea v. Royal Caribbean Guises LTD, 2010 U.S. Dist.
LEXIS 98113, at *2, 2010 WL 3522210 (S.D. Fla. Sept. 7, 2010).
Plaintiff asserts that Attorney Sweetapple should be disqualified pursuant to Rule 4 -1.9 of
the Rules Regulating the Florida Bar, which governs "Conflict of Interest: Former Client." To
prevail on a motion to disqualify under Rule 4 -1.9, the movant must establish: (1) the existence
of a prior attorney- client relationship and (2) that the matters in the pending suit are substantially
related to the previous matter or cause of action. See Waldrep v. Waldrep, 985 So. 2d 700,
(Fla. 4"' DCA 2008). The Court need not even address whether an attorney- client relationship
existed between Attorney Sweetapple and Plaintiff at any time in 1997 -99 because, even if it did,
Plaintiff has woefully failed to satisfy his burden of proof that matters in the Instant Lawsuit are
substantially related to any previous matter identified by Plaintiff.
"Before a client's former attorney can be disqualified from representing adverse
interests, it must be shown that the matters presently involved are substantially related to the
matters in which prior counsel represented the former client." Waldrep, 985 So. 2d at
0
(internal citations omitted). Yet, as the Florida Supreme Court has observed, Rule 4 -1.9 is not to
be broadly applied to require disqualification:
[A] lawyer who recurrently handled a type of problem for a former client is not
precluded from later representing another client in a wholly distinct problem of
that type even though the subsequent representation involves a position adverse to
the former client.
Health Care & Retirement Corp. of Ant., Inc. v. Bradley, 961 So. 2d 1071, (Fla. 01 DCA
2007) (citing Comment to R. Reg. Fla. Bar 4 -1.9). The Comment to Rule 4 -1.9 narrowly defines
"substantially related," as follows:
Matters are "substantially related" for the purposes of this rule if they
involve the same transaction or legal dispute, or if current matter
would involve the matters attacking work that the lawyer performed for
the former client.
Bradley, 961 So. 2d at _ (quoting In re Amendments to the Rules Regulating the Florida Bar,
933 So. 2d 417, 445 (Fla. 2006) (emphasis added).
The Fourth District's analysis of the substantially related standard in Bradley is
instructive. Bradley affirmed the denial of a motion to disqualify counsel who represented the
estate of a former nursing home patient, who had filed suit for negligence due to a fall and the
existence of pressure ulcers. Bradley, 961 So. 2d at 1074. While an associate at Cole, Scott &
Kissane, P.A., the lawyer had previously billed some 2,100 hours from 2001 to 2004 defending
the same nursing home in over sixty (60) cases, many of which were negligence matters relating
to falls and pressure ulcers. See id. at . The attorney thereafter left and went to work at
Gordon & Doner in January 2005 and the nursing home moved to disqualify the attorney and his
new firm. See id. Relying on the Comment to Rule 4.1 -9, found that while the lawyer had
handled the same "type of problem" for his former client — negligence cases involving patients
who suffered from pressure ulcers or falls, the case before it raised a "wholly distinct problem of
7
that type." See id. at 1074 (citation omitted). Because "each negligence case turns on its own
facts," the Court found the attorney's work did not involve attacking work he had done for the
former client. See id.
Applying Bradley, Judge Kenneth Marra in Morgan Stanley & Co. v. Solomon, 2008 U.S.
Dist. LEXIS 15799 (S.D. Fla. Feb. 19, 2009) likewise refused to disqualify an attorney who
represented plaintiffs in securities arbitrations against Morgan Stanley. That attorney had
previously worked as an associate at Greenberg Traurig from 2001 through 2006, during which
time he represented Morgan Stanley in securities litigation including handling arbitration claims
and class actions involving securities. 2010 U.S. Dist. LEXIS 15799 at *2. Indeed, "[t]he vast
majority of the cases were arbitrations arising out of suits brought against Morgan Stanley by
individuals who lost money in investments." Id. The attorney billed some 1,500 hours of time in
the two -years a represented Morgan Stanley, from 2001 through 2003. See id. As in Bradley, the
attorney had "switched sides and brought cases under the same legal theories as those previously
defended." Id. at *12. However, each case involved unique facts and there was no evidence that
the attorney would be attacking his own prior legal work. See id. at * 12. As a result, the matters
were not substantially related and disqualification was not warranted under Rule 4- 1.9(a), See id.
at *13. See also Hernandez, 2010 U.S. Dist. LEXIS 98113, at *22 (applying Bradley and
refusing to disqualify plaintiffs counsel who previously represented Royal Caribbean in lawsuits
over a 9 year period, including slip and fall cases where the case before it involved "a slip and
fall due to the proximity of the staircase to the Flo Rider surfing activity" and was not
substantially related to prior slip and fall cases at other locations).
Plaintiff has woefully failed to satisfy his burden to establish that any prior actions in
Ocean Ridge, Boynton Beach or Gulf Stream are "substantially related" to the present public
Q
records litigation in which Mr. Sweetapple represents the Town. While Plaintiffs
Disqualification Motion speaks to "similar underpinnings," that is not the pertinent standard.
There is no evidence that any lawsuit between the Town and Plaintiff, whether handled by Mr.
Sweetapple or not, arises out of the issues Plaintiff had in Ocean Ridge in 1997 and 1998,
Boynton Beach in 1999 or Gulf Stream in 2005. Plaintiff was never previously engaged with
public records litigation, which is the basis of the instant lawsuit. Even if the Court were to find
that Mr. Sweetapple had any involvement with Plaintiffs current Section 1983 suit against the
Town, Mr. Sweetapple never previously represented him in a Section 1983 action and the current
suit arises out of a 2011 police action involving a residence that Plaintiff did not even own when
he previously interacted with Mr. Sweetapple. Similarly, the federal RICO litigation arises out of
Plaintiffs conduct in making public records requests and filing public records lawsuits in 2013
and later. It is not even the same "type of problem" as Plaintiff had previously in Ocean Ridge,
Boynton Beach or Gulf Stream.
No actions by Attorney Sweetapple on behalf of the Town in this case would involve
attacking any work previously done for Plaintiff. Indeed, Plaintiff conceded as much in his
Amended Motion. See Am. Mot. Disqualify at ¶ 17 ( "In this case, Attorney Sweetapple is not
being accused of switching sides in the same case. "). Plaintiff s reliance on cases like Rombola v.
Botchey, [Case No. 1D13 -2169] (Fla. I" DCA 2014) in which an attorney at Kubicki
Draper, who had represented the defendant at trial and in filing a post -trial motion for new trial,
went to work for plaintiffs counsel and sought to oppose his own previously filed motion. See
id. at _ ( "switching sides and turning against a former client in the same ongoing case without
client consent presents one of the most compelling cases for broad prophylactic judicial action. ")
See also Young v. 4chenbalich, 136 So. 3d 575 (Fla. 2014) (disqualifying counsel in action that
W,
arose out of settlement of original class action), Key Largo Rest. v. T.H. Old Town Assocs., Ltd.,
759 So.2d 690, 693 (Fla. 5 °i DCA 2000) (finding matters substantially related when first matter
involved a landlord- tenant dispute that was eventually settled and the second matter involved
litigation over the settlement and the pleadings in both lawsuits); Ford v. Piper Aircraft Cap.,
436 So.2d 305 (Fla. 5`h DCA 1983) (affirming disqualification of lawyer for injured plaintiff who
previously represented one of the defendants in a matter involving a crash of the same aircraft
and had discussed matters relating to the crash with that party). Nor is there any evidence that
litigation of the instant public records suit would involve testimony or evidence presented in the
first. See Galaxy Fireworks, Inc. v. Ko=ar, 150 So.3d 256 (Fla. 2d DCA 2014) ( "If the litigation
of the second matter might involve testimony or evidence presented in the first, those cases likely
would be substantially related for disqualification purposes. ").
In light of the foregoing, the Court finds no grounds to disqualify Mr. Sweetapple under
Rule 4- 1.9(a).
The Court further finds no grounds exist to disqualify Mr. Sweetapple under Rule 4-
1.9(b).Rule 4- 1.9(b) prohibits an attorney from "us[ing] information relating to the representation
to the disadvantage of the former client..." Plaintiff suggests that Mr. Sweetapple possesses
private, confidential information about him that, if publically disclosed, would require him to
dismiss all of his pending lawsuits against the Town. Mr. Sweetapple avers that he has no such
information.
At the outset, the Court found credible and persuasive Mr. Sweetapple's testimony that
he has no recollection of Plaintiff divulging to him any confidential and private information that
Plaintiff divulged to him back in 1999. Even crediting Plaintiffs testimony that he revealed such
information to Mr. Sweetapple, there is no evidence that Mr. Sweetapple recalls that information
10
some 16 years later. As the Comment to Rule 4 -1.9 recognizes, "[i]nformation acquired in a prior
representation may have been rendered obsolete by the passage of time." Plaintiff has failed to
present any evidence to suggest that Mr. Sweetapple has any present knowledge of the
purportedly confidential information. On these facts, there can a no substantial risk that Mr.
Sweetapple can or will use any confidential information to Plaintiff's disadvantage. See, e.g.,
Solomon, 2009 U.S. Dist. LEXIS 15799, at * 18 (refusing to disqualify attorney who conferred
with Morgan Stanley managers and in -house counsel, was exposed to Morgan Stanley's
settlement evaluations and had ranked arbitrators for Morgan Stanley several years had passed
and no showing was made that attorney possessed any recollection of Morgan Stanley's arbitrator
rankings).
Further, the Court finds that Plaintiff failed to plead, let alone to prove, that any of the
confidential information he purportedly disclosed to Mr. Sweetapple in 1999 is material to the
instant public records litigation. See AGIC, Inc. v. North American Risk Serns., Inc., 120 So. 3d
189, 192 (Fla. 5 "' DCA 2013) (issue is whether attorney received confidential information
material to the issues in the underlying litigation). Courts have rejected the argument that an
attorney should be disqualified simply because he obtained from the former client confidential
information that it not generally known or discoverable, noting that "[t]hat is the case with any
attorney - client relationship." Hernandez, 2010 U.S. Dist. LEXIS 98113, at *17 (emphasis
added). Indeed, as the Fourth District has recognized, the application of Rule 4 -1.9 "creates an
irrefutable presumption that confidences were disclosed' between the client and the attorney."
Waldrep, 985 So.2d at _. Yet even when an attorney- client relationship is shown, "the party
seeking disqualification must show that the current case involves the same subject matter or
substantially related matter in which the lawyer previously represented the moving party." Id.
11
See also Galaxy Fireworks, 150 So. 3d at 257 -58 ( "But Kozar had another burden —he had to
demonstrate that the matter in which Mason is now adverse to him is "the same or substantially
related to" the matter in which Mason previously represented him. ") (finding trial court departed
from essential requirements of law by disqualifying counsel where movant failed to establish second
prong — substantially related matters).
The Court finds that Plaintiff has failed to satisfy his burden to establish that Mr.
Sweetapple has confidential information material to the instant lawsuit that can be used against _
Plaintiff. Plaintiff failed to disclose the confidential information, let alone to describe in any way
how that information is material to this lawsuit. At the hearing, Plaintiff was unwilling to
disclose the confidential information either publically or in camera, the latter after giving notice
to the press and the public as required by Fla. R .Jud. Admin. 2.420 and Administrative Order
2.303 -9/09. Plaintiffs counsel instead went forward based on Mr. Sweetapple's representation
that he had no recollection of the information and that, even if he did, Mr. Sweetapple would be
bound by the attorney - client privilege. Although Plaintiff now generally asserts that the potential
disclosure of this information to others would require him to dismiss all of his pending lawsuits
against the Town, the Court is not persuaded by that testimony. The record showed that Plaintiff
has known since March 2014, when Mr. Sweetapple defended the deposition of mayor -elect
Mayor Scott Morgan in a public records suit brought by Mr. O'Boyle against the Town, and
certainly since April 2014 when Mr. Sweetapple formally appeared in this case, that Mr.
Sweetapple was defending public records suits on behalf of the Town. By late July 2014,
Plaintiff knew that Mr. Sweetapple was exploring affirmative actions against Plaintiff on behalf
of the Town. Yet Plaintiff greeted Mr. Sweetapple "like an old friend" at the Morgan deposition
and failed to take any action to disqualify him until immediately after a failed settlement
12
conference in September 2014. Certainly if the information possessed by Mr. Sweetapple were
of such concern to Plaintiff, he would have sought disqualification or, at least, expressed some
concern to Mr. Sweetapple sooner than he did.
The Court reserves jurisdiction with regard to all issues pertaining to entitlement and amount
of attorneys' fees and costs, to be detemilned upon proper motion.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via the E- Filing Portal this day of , 2014 to: MARK J. HANNA,
Esquire, GMM/Madison, P.A., 401 South County Road, #3272, Palm Beach, Florida 33480
(mhannaCa,g3mlaw.com and eservice(a),g3mlaw.com) and to CHRISTOPHER F. O'HARE, 2520
Avenue Au Soleil, Gulf Stream, Florida 33483 (pinegd(@,gmail.com) and to ROBERT
SWEETAPPLE,
Esquire, 20 SE
Third Street, Boca
Raton, Florida 33432
( len adingsna,sweetanplelaw.com;
rsweetannle
(a),sweetannlelaw.com)
and to LOUIS L. ROEDER,
Esquire, 7414 Sparkling Lake Road, Orlando, Florida 32819 (eservice2015(a,gmail.com and
lou(@louroeder.com).
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
Attorneys for Town of Gulf Stream
505 South Flagler Drive, Ste. 1100
West Palm Beach, FL 33402 -3475
Telephone: 561- 659 -3000
Facsimile: 561- 650 -5300
By: /s/ Joanne M. O'Connor
Joanne M. O'Connor
Florida Bar No. 498807
ioconnor(@,ionesfoster.com
13
Kelly Avery
From: Robert Sweetapple <rweetapple @sweetapplelaw.com>
Sent: Monday, March 16, 2015 9:54 AM
To: OConnor, Joanne M.
Cc: Robert Sweetapple; David Vitale; scottmorgan75 @gmail.com; Bould, Karen
Subject: Re: O'Hare - Order on motion to disqualify
Follow Up Flag: Follow up
Flag Status: Flagged
Thanks. I am editing this AM and will forward to Mary this AM.
Regards, Bob Sweetapple
On Mar 15, 2015, at 7:26 PM, OConnor, Joanne M. <JOConnorCd)ionesfoster.com> wrote:
Please find my proposed order attached. It is due to be submitted by email to Judge Blanc by close of
business tomorrow.
By copy to my paralegal, Karen Bould, I ask that she complete the missing pinpoint citations and find
proper cite to Rombula case cited by Plaintiff. No need to run negative keycite as these cases have all
been vetted.
Mary — please add signature line forjudge at the end.
<1 LM4121 -order proposed motion disqualify sweetapple.DOCX>
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
May 5, 2015
Asset Enhancement, Inc. [mail to: records(cDcommerce- sroun.coml,
Re: GS #1817 (1074)
Please provide copies of all documents (including, without limitation, billings, payments, plans,
estimates, contracts, drafts of contracts, memos, letters and emails) ( "Documents') generated,
stored, created, or received by David Vitale during the period beginning January 1, 2014 through
the date of this request.
Dear Asset Enhancement, Inc. [mail to: recordsna,commerce- group.coml,
The Town of Gulf Stream received your public records requests on March 12, 2015. You should
be able to view your original requests at the following link http://www2.sulf-
stream. ors/ WebLink8 /0 /doc /40969/Pasel.asyx. In future correspondence, please refer to this
public records request by the above referenced numbers.
The responsive documents can be found at the same above link.
We consider this matter closed.
Sincerely,
Town Clerk, Custodian of the Records