HomeMy Public PortalAboutRobert Sweetapple Transcript 12/22/14Page 1
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO. 50 2013 CA 17717 AA
CHRISTOPHER F. O'HARE,
Plaintiff,
vs
TOWN OF GULF STREAM,
Defendant.
VIDEOTAPED DEPOSITION OF ROBERT SWEETAPPLE
TAKEN AT THE INSTANCE OF THE PLAINTIFF
Boca Raton, Florida
Monday, December 22, 2014
11:31 a.m. - 2:34 p.m.
Stenographically Reported by
Mary Ann Hengstler, RPR
Notary Public, State of Florida
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hengstler (501-151-220.3837)
Electronically signed by Mary Hengstler (501-151.220.3837) 8a281478.857d.4716-9e71.80559ed1289a
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APPEARANCES:
JONES FOSTER JOHNSTON & STUBBS, P.A.
505 South Flagler Drive, Suite 110
West Palm Beach, Florida 33401
Counsel for the witness
joconnor@jonesfoster.com
BY: JOANNE M. O'CONNOR, ESQUIRE
GMM/MADISON P.A.
401 South County Road, #3272
Palm Beach, Florida 33480
Counsel for the Plaintiff
service@g3mlaw.com
BY: MARK J. HANNA, ESQUIRE
ALSO PRESENT: Bill Ring
Lou Radar (by phone)
Christopher O'Hare
Florida Court Reporting
561-689-0999
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Electronically signed by Mary Hengstler (501-151-220-3837)
Electronically signed by Mary Hengstler (501-151-220-3837) 6a2B1478-857d-471b-9e71-80559ed1289a
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INDEX
WITNESS
ROBERT SWEETAPPLE
Direct Examination by Mr. Hanna
EXHIBITS FOR IDENTIFICATION
Plaintiff's Exhibit A
(Memorandum dated 4/10/98 to
Mayor Kaleel from Paul Nicoletti)
Plaintiff's Exhibit B
(4/7/98 letter from Edwin Jonas to
Paul Nicoletti)
Plaintiff's Exhibit C
(E-mail dated 9/8/14 to Mark Hanna
from Robert Sweetapple)
Plaintiff's Exhibit D
(Warranty Deed dated 7/14/96)
Plaintiff's Exhibit E
(Quit claim deed dated 3/1/01)
Florida Court Reporting
561-689-0999
PAGE
3
PAGE
8
W;
in
01
No
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Electronically signed by Mary Hen gstler (501.151-2204837)
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The videotaped deposition of ROBERT SWEETAPPLE
was taken before me, MARY ANN HENGSTLER, Registered
Professional Reporter, RPR -CP, Notary Public, State of
Florida at Large, at 20 S.E. 3rd Street, in the City of
Boca Raton, County of Palm Beach, State of Florida,
beginning at the hour of 11:31 a.m., on Monday,
December 22, 2014, pursuant to Notice filed herein, at
the instance of the Plaintiff in the above -entitled cause
pending before the above-named Court.
THEREUPON,
ROBERT SWEETAPPLE,
being by me first duly sworn to testify the whole truth,
as hereinunder certified, testified as follows:
DIRECT EXAMINATION
BY MR. HANNA:
Q. Can you tell us your name.
A. Robert Sweetapple.
Q. And what is your professional address?
A. 20 Southeast 3rd Street, Boca Raton, Florida.
Q. Do you -- What firm are you practicing at,
under?
A. Sweetapple, Broeker and Varkas, P.L.
Q. What type of firm is that?
A. That's a LLC law firm. And my firm Sweetapple
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hengstler (501-151-220.9897(
Electronically signed by Mary Hengstler (501-151-220-9837) 6a281478.857d-471b-9e71.80559ed1289a
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and Varkas, PA is a member of that.
Q. Do you have any other locations for that
firm?
A. Yes. We have an office in downtown Miami, 44
West Flagler Street.
Q. Okay. And what is your residence address?
A. 333 Northeast Spanish Trail, Boca Raton.
Q. What is your work telephone number?
A. The office number is 561-392-1230.
Q. And was that the same number that you used in
1997, 1998?
A. I believe so.
Q. Okay.
A. In Boca.
Q. What about in Miami, do you have that number?
A. It's 305-374-5623 I think. Had that number
for 30 something years.
Q. And do you have a fax number?
A. I wouldn't know the fax number anymore. I
don't --
Q. Well, is the, is the fax number to the best
of your knowledge the same as it was in 1997, 1998?
A. I presume.
Q. What is your professional e-mail address that
you use?
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hengstler (501-151-2203837)
Electronically signed by Mary Hengstler (501.151.2203837) Sa281478-857d471 b-9e71.80559ed1289a
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A. They have pleadings@Sweetapplelaw.com or
something.
Q. I mean for your personal, or your
professional use individually?
A. RSweetapple@Sweetapplelaw.com.
Q. Do you have a personal e-mail account?
A. I believe so.
Q. What are the -- What is that address?
A. I don't know what it is. It's something that
was set up with my phone. I don't use it very often.
Q. Okay. Well, when you communicate with other
people, clients, do you use your professional e-mail
address or your personal?
A. Well, I think that's, that's my business
information. I'm not going to discuss that. We're
here to depose me regarding allegations that I
represented Mr. O'Hare in 1998. The way I conduct my
business is confidential business information, and I'm
happy to give you my public information which I've
done.
Q. Well, there is possibility that you
communicated by Mr. O'Hare through e-mail.
A. In 1998?
Q. Yes.
A. I did not have e-mail in 1998.
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hengstler (501.151.220.3837)
Electronically signed by Mary Hengstler (501-151-220-3837) 5a281478 -857d-471 b-9e71-80559ed1289a
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Q. When did you get e-mail?
A. Last five years.
Q. Okay.
A. I don't think they had e-mail in 1998.
Q. Well, also there's, the standard as you know
is the same or similar matter as the current
litigation, and there are e-mail communications that
might be pertinent currently in 2014.
A. I don't, I don't think so. You can ask the
judge that.
Q. Okay.
A. I'm not going to provide you with any of my
e-mails now.
Q. Okay.
A. You're alleging --
Q. Well, let's, let's get this out of the way.
A. Okay. We know what the matter is now.
The --
MR. RADAR: Mark, Mark, excuse me.
MR. HANNA: Yes.
MR. RADAR: Is there a way to turn up the
volume because both of you, your questions and his
answers, seem to be breaking in and up, breaking
up, going in and out.
THE WITNESS: We turned the phone around and
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hen gstler (501-151-220-3837)
Electronically signed by Mary Hengstler (501-151-220.3837) 6a281478-857d-471b-9e71.80559ed1289a
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I've turned it up as high as it will go.
MR. RADAR: Okay. Thanks.
BY MR. HANNA:
Q. Okay. Regarding the subpoena and the notice
of deposition, there was an exhibit attached to it
requesting that you bring documents.
MS. O'CONNOR: Do you have an extra copy,
Mark, by chance?
MR. HANNA: Yeah, I think so. I'm going to
mark that as Exhibit A.
BY MR. HANNA:
Q. I believe we covered, in the records
custodian depositions, you produced all the documents
that refer to Christopher O'Hare.
A. Other than the documents I told you I
obtained from the clerk of the Town of Ocean Ridge.
Q. Right. Now regarding number... Okay. Number
eight: "Any and all documents or communications
between you and Paul Nicoletti."
Did you bring those with you?
A. I did not. I'm asserting a work product
privilege as to my communications with Mr. Nicoletti
that occurred this year.
Q. Okay. Are there documents that exist?
A. Yes.
Florida Court Reporting
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Electronically signed by Mary Hengstler (501-157.220-3837)
Electronically signed by Mary Hengstler (501-151-2204837) 6a281478.857d-471b-9e71.80559ed1289a
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Q. Okay. All right. Item number 10: "Any and
all documents or communications between Robert A.
Sweetapple and Joel Chandler that refer or concern
Christopher F. O'Hare or Shelly Childers O'Hare."
A. I'm asserting a work product privilege as to
those.
Q. Okay. Are there documents that exist?
A. I'm not going to disclose that.
Q. Well, you've filed documents with the Clerk
of Courts in other court cases.
Have you filed all the documents or is there
other documents that exist?
A. I'm not going to disclose that.
Q. Okay. Any and all documents or
communications -- or I'm sorry, number 11. "Any and
all documents or communications that refer to or
concern Robert A. Sweetapple's representation of
Christopher O'Hare or Shelly O'Hare between Robert A.
Sweetapple and any of the following people: John
Randolph, Joanne O'Connor, William Thrasher, Scott
Morgan, Joan Orthwein, Thomas Stanley, Donna White,
Robert Ganger."
Are there any such documents?
A. Are you talking about representation in 1998?
Q. No. I'm talking about discussing the subject
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Electronically signed by Mary Hengstler (501.151-220-7837) 6a281478-857d-471b-9e71.80559ed1289a
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Page 10
matter of the motion to disqualify in your prior
representation of Mr. O'Hare.
A.
I'm not
going to discuss my
work
product.
That would
be my
work product.
Q.
So you're
refusing to answer
that
question?
A.
Yeah.
Q.
Okay.
And you didn't bring
any
documents
with you?
A.
I didn't.
I'm not going to
give
you my work
product with
my clients
that concern your
clients. If
we could
do that,
we wouldn't need to
have
litigation
process.
Q. All right. When did you graduate from law
school?
A. I graduated from law school in 1979. Seems
like a moment ago.
Q. Okay. No kidding. Of course I was only in
eighth grade then. You have a little bit on me.
When you graduated from law school, what did
you do after that?
A. I was employed by a litigation firm in the
AmeriFirst building in downtown Miami by the name of
Bartel, Shupert and Dubinski, and I began trying cases.
Q. What kind of matters did you handle?
A. I, at that firm, handled criminal cases,
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Page 11
domestic cases, medical malpractice cases, personal
injury cases, legal malpractice cases, fraud and unfair
deceptive trade practice cases, gun running cases in
federal court, paternity cases. It was a five -man firm
that at that time handled every type of litigation
under the sun. Quite, quite an education.
Q. Now when you say litigation, would you become
involved in cases that were already filed or did you
start them from inception?
A. When I arrived, I had just left an internship
with the Public Defender's Office my last year at the
University of Florida. And the judge who recommended
me to Stan Bartel had indicated that I had substantial
trial experience during the Mariel boatlift as an
intern, and I immediately began trying cases for the
firm, their cases. And then as I brought in cases I
would work on them.
Q. Okay. And that was in Miami?
A. Downtown Miami.
Q. Were you primarily plaintiff or defense?
A. There was no, no such thing.
Q. Pretty much even mix?
A. Depended on what type of case it was.
Q. Okay. And approximately how many cases would
you handle a year do you think?
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A.
How many files did I have?
Q.
Yeah.
A.
Or how many trials did I have?
Q.
How many trials or files in a
year?
A.
I tried probably half a dozen
jury trials in
my first
year. I probably had 40 cases.
Q.
And that number 40, I know that's
an
estimate,
would that be a caseload that
you would
carry, about 40 cases for years?
A.
I'd say that's typically been
my caseload --
Q.
Okay.
A.
-- my entire career.
Q.
So you --
A.
That's about as many as I can
effectively
handle.
Q. Okay. So you have about, around 40 cases a
year, some are previous cases, some are new cases?
A. Right. Back then. Now of course I have
lawyers in Miami and lawyers here that work cases up
for me. So I guess you would call my caseload a lot
higher, but back then I was, I was the low man on the
totem pole.
Q. Okay. Now after you left that firm, what did
you do?
A. I opened up my own practice in August of 1981
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Electronically signed by Mary Hengstler(501-151.220.3837) 6a281478-857d-471b-9e71-80559ed1289a
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with Mark Kamilar. Was a firm called Sweetapple and
Kamilar, and I continued to try cases.
Q. How do you spell Kamilar?
A. K -a -m -i -l -a -r.
Q. And that was in Miami?
A. Yes.
Q. How long did that firm last?
A. I was with Mark three years, and then I
relocated to Boca Raton.
Q. What brought you to Boca Raton?
A. I had settled a substantial legal malpractice
case in 1984, I believe, for a man named Rafaello
Russo. He took the proceeds of that settlement and
opened a restaurant on Palmetto Park Road, and invited
me and my wife to come up regularly to dine. And at
that point we were thinking about starting a family,
and I wanted to ultimately live on the water. I grew
up in Fort Lauderdale. All my wealthy friends lived on
the water, and I, I never got to. So I thought maybe
I'd realize my dream of living on the water in Boca
Raton and could raise a family in some place other than
Miami. And in 1986 I moved.
Q. I understand why you would want to get out of
Miami.
A. I enjoy going to Miami now. But when you're
Florida Court Reporting
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Electronically signed by Mary Hengstler (501.151-220-3837) 6a281478-857d471b.9e71-80559ed1289a
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starting to have a family, it's the suburban flight,
right?
Q. Yeah. Nice, nice place to visit.
A. Yeah. I went down last Wednesday for my
daughter's UM graduation, and she insisted we go to
Monty's, and as we sat there, I said, I stood on that
very table right there in May of 1980 celebrating
passing the Bar. So it's nice to go full circle. Nice
to visit, but I much prefer living here.
Q. So then '86 you moved to Boca?
A. Mm-hmm.
Q. And did you join another firm or did you --
A. No. I commuted to Miami until 1989.
Q. Okay.
A. And in 1989 I opened a second office in, in
Boca. My Colgate roommate, Doug Broeker, was a partner
of Fowler White, and I convinced him to come work with
me and to take over the Miami office.
Q. Okay.
A. But I worked at both offices for some time
and then realized that was not a good way to make it to
60.
Q. That's a hefty commute.
When did you start working primarily out of
the Boca Raton office?
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Electronically signed by Mary Hengstler (501-151-220-3837) 6a281478 -857d-471 b -9e71-80559 ed1289a
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A. I bought a building in Boca in December of
'89. My daughter was born, my first daughter was born
in February of '89. I would say by '89 I was spending
at least three days a week in Boca. The fax machine
had been invented, I got a Miami line. So I typically
would go down two days a week.
Q. Okay. And at some point Alexander Varkas
joined the firm?
A. Oh, Alex joined the firm before Doug Broeker.
Alex has been with me 28 years.
Q. Okay. So around 1990 -- When did you --
Where did you practice from when you moved to Boca;
where was the office located?
A. Palmetto Park Road. 465 East Palmetto Park
I•...
Q. How long were you at that location?
A. I think 'til 198. I think I sold the
property in '98.
Q. Okay. Where did you go after that?
A. Bought a building on Boca Raton Road, where I
was until last year.
Q. And now you're at?
A. 20 Southeast 3rd Street.
Q. What was the address for the Boca Raton
Boulevard?
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Electronically signed by Mary Hengstler (501.151.220-3637) 6a281478 -857d-471 b-9e71.80559ed1289a
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A. 465, I think, Boca Raton Road. I think.
It's been awhile. Been a whole, whole year now.
Building's been knocked down.
Q. In 1998 did you have any associates that
worked for you?
A. Yes. I'm pretty sure I did, but I couldn't
remember which of them. I've had associates throughout
the years.
Q. Okay. What about Edwin Jonas?
A. Edwin Jonas was of counsel to my firm for a
period of time, maybe about a year. I'm estimating.
He had moved down from New Jersey, had, at the time I
thought substantial experience, maybe it was like ten
years of experience, handled real estate and
administrative matters that I didn't handle. And as I
recall, he ended up somehow being in my office suite,
either he shared space or he gave me time for, you
know, did work on my cases for rent, and I sent him
matters to handle that, you know, I didn't typically
do, real estate. In this case it looks like I referred
Mr. O'Hare to him involving a code enforcement matter,
which I don't do typically. I don't think I've done
more than one code enforcement hearing, or maybe two in
my entire career. And he would either bill the clients
on the cases that he handled or he would work for me
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Page 17
and I would pay him on my cases. That's my best
recollection of how it worked.
Q. Okay. When he would work on his cases, did
he do it under your law firm?
A. He used my stationery. He had moved down --
The way I met him is he was renting a house that I
owned, used to own in, in my neighborhood in Boca. And
I became friendly with him. And he was a lawyer in
north -- in New Jersey, and he, he was a member of the
Bar here and he was looking to, you know, get
established in Florida. And, you know, I didn't want
to make him a partner. I didn't -- Obviously wasn't in
a position to hire him as a ten year practitioner, and
we came up somehow with the idea he'd be of counsel to
the firm.
Q. When you say he's of counsel; what was the
meaning of that?
A. I mean, I, I don't even know what the terms
of the arrangement were as I'm sitting here. I don't
know if this was a formal agreement. I don't know -- I
don't remember the specifics of it. I have a general
recollection that that's how it worked. Somewhere
around those lines.
Q. In the late '90s what kind of cases were you
handling?
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A. The late '90s, I would say -- When did I
become Board Certified; do you know?
Q. No.
A. I think I became Board Certified as a civil
trial lawyer maybe 20 years ago, and as a business
litigator 15 years ago.
The progression of my practice has been, even
though I've tried ever type of case I can think of
before a jury and handled every type of case I can
think of, my practice basically funneled, and I stopped
handling federal and state criminal cases in about
1984. I stopped doing domestic cases probably around
the late '90s. I didn't handle any personal injury
cases.
I would say most of my cases were civil and
business related in some form, commercial related,
probate. Mostly, you know, nonpersonal injury, non,
non-domestic, noncriminal litigation.
Q. And did you handle any civil rights claims?
A. I've handled 1983 cases and those types of
cases, yes.
Q. What about defamation cases?
A. First jury trial I tried before Lenore
Nesbitt in 1980 was a defamation case.
Q. Okay. And you currently represent Gulf
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Page 19,
Stream, the Town of Gulf Stream, correct?
A. I think that's a matter of public record, but
I'm not going to discuss any details of that.
Q. Well, you represent them, that's --
A. Yeah, I do represent them.
Q. Okay. Have you represented other
municipalities or government entities?
A. I would have to go back and look. I'd have
to go back and look. I think we have represented City
of Miami, noise and abatement boards and other
government entities.
I typically have sued government entities
and, and eminent, defended eminent domain cases. I was
doing a lot of eminent domain at the end of, in the
'90s, now that you mention it.
Q. Okay.
A. But we have represented, you know,
governments from time to time. I know that we did
quite a bit of work for City of Miami.
Q. Now eminent domain, what, what is that?
A. Eminent domain is the power of the sovereign
to take property for an alleged public use. I was
involved in all the Mizner Park takings. I represented
the largest landowner in Boca Raton in the 1990s
regarding the eminent domain cases of the city and the
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Boca Raton Community Redevelopment Agency, both at the
trial level and at the Fourth District Court of Appeal,
including for the development of Mizner Boulevard and
other roadways that were ancillary to the development
of Mizner Park.
And in a little full circle moment, since I
like those little stories. Joanne's secretary, Mary,
was Adams Weaver's secretary in 1989, and I worked with
her regularly because Adams Weaver was my opposing
counsel on many of those cases. He represented the
Boca Raton CRA. So when I call Joanne now I get to
chat with Mary. So it's a small, small town.
Q. Have you ever had, handled civil RICO cases?
A. Yes.
Q. Against who?
A. Matter of public record. I think I have a
form of one that we prepared that we've been using.
And research, extensive research files on civil RICO.
Q. Okay. Well, what -- Who did you represent,
the plaintiff or the defendant?
A. I don't remember. I'd have to look at the
research files and the form files.
Q. Did any of them ever go to trial?
A. I don't think that, I don't think we have
actually tried plaintiffs or defendants RICO.
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Q. Okay.
A. I've, I've handled continuing criminal
enterprise cases also, which is the, a criminal cousin
of RICO. I handled those in the eastern and western
districts of the Federal courts of Louisiana, in
Lafayette and New Orleans.
Q. What did those cases involve?
A. Those cases involved a criminal enterprise
that was alleged to be actually ultimately convicted of
running marijuana and money laundering. I represented
a lawyer at some point who ended up pleaing to a
criminal, continuing criminal enterprise. He was from
Miami and he was charged in the Western District of
Louisiana.
Q. Okay. Do you ever handle any public records
litigation?
A. I have made numerous public records requests.
I've never sued for fees. Never, never actually gone
after fees or defended a claim for public records on
behalf of an entity prior to this litigation.
Q. Well, when you say you've made numerous
public records requests, and you said that no
litigation --
A. Yeah.
Q. -- resulted from it.
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A. Yeah, I've, I've made Sunshine requests and
public records requests obviously since the law has
been in effect.
Q. Why wasn't there any litigation out of that?
A. Because I, I've rarely, I've rarely -- I've
seen a lot more litigation in public records requests
of late that is not bona fide, and I have never had a
problem, in terms of getting records from government
ultimately, and I've always made discrete requests for
documents I really need for a, for a lawsuit, and
they've been provided.
Q. So the governmental entities provided the
records requested?
A. Yeah. But I've never seen a situation where
a group of people have inundated a clerk with thousands
of public records requests in order to close the town
down under the guise of trying to get open government.
But I -- of course, I guess when you practice law
enough you get to see everything in this world.
Q. Have you reviewed the cases that have been
filed in Christopher O'Hare versus Town of Gulf Stream?
A. That's my work product. I'm not going to
disclose that.
Q. Well, have you reviewed them? I'm not asking
for any --
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A. I'm not going to tell you what I've done as a
lawyer. I'm not going to tell you what I've
researched, I'm not going to tell you what I've
written, I'm not going to tell you what I've thought.
I'm not going to tell you who I've spoken to. That's,
that's my client's private business information. They
hired me to perform a service, and I intend to perform
it.
Q. So what is the basis of your refusal to
testify about that?
A. Work product privilege.
Q. Okay. Now getting back to the areas that you
practice. Has it changed in the last, say, ten years
since '98?
A. My practice has varied throughout depending
on any number of circumstances. The clients I've
gotten, the nature of the economy. I handled some
major lender liability cases in the first recession
that I was involved in, which was 1981, and sued some
banks, and they were fairly high profile cases. And as
a result, I was hired to handle a mass of lender
liability case in 2002 that listed to 2007.
As a result of that, I ended up getting a lot
of lender liability claims during this last recession.
I ended up representing a major boat manufacturer,
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Donzi, Fountain, Proline and Baja. So I ended up
getting a lot of commercial litigation in North
Carolina and other states for that company.
So my practice really is driven by, by my
clients. I get, I get called in to handle complex
litigation matters by clients, not only in the State of
Florida but in over a dozen, over a dozen states in the
country.
Q. Now in 1998 you represented some Ocean Ridge
residents against the Town of Ocean Ridge?
A. I don't know if it was 1998. I don't think
it was 1998.
Q. 1998, 1999?
A. I'm not sure of the year.
Q. Okay.
A. I don't remember. But I, I, I handled
litigation in, in the circuit court, and I think it was
before a judge who is in the criminal division now.
He's been in the criminal division forever.
MS. O'CONNOR: Judge Rapp.
THE WITNESS: Yeah, Judge Rapp I think had
the case.
BY MR. HANNA:
Q. What did that case involve?
A. It involved a dispute between adjoining
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property owners regarding the development rights of a
piece of property that had been sold by the Audubon
Society, generally.
Q. One second.
(Discussion off the record).
MR. HANNA: Lou's having trouble hearing you.
I'll speak up.
THE WITNESS: Okay. Lou, can you hear me
now? Lou. Hello.
BY MR. HANNA:
Q. Lou?
A. Lou? Lou, can you hear us?
MR. RADAR: Yeah, now I can hear you. I'm
trying to get Chris to give me a cell phone
connection because I'm only hearing about half of
what's being asked and about half of what's being
answered.
MR. O'HARE: Yeah, but I didn't want to do
that until everybody agrees.
THE WITNESS: Okay. So you want me to switch
to cell phone? We'll switch to cell phone.
MR. RADAR: What did you just say?
THE WITNESS: Okay. We're going to switch to
cell phone. You have him on?
MR. O'HARE: I didn't put it on speaker.
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I'll try it.
MR. RADAR: Hello.
MR. O'HARE: Lou, can you hear us now?
MR. RADAR: Yeah, I can hear you, Chris,
right now. Let's see if I can hear him talking.
THE WITNESS: All right, Lou. Can you hear
me?
MR. RADAR: Yes, I can hear you.
MR. HANNA: Can you hear me, Lou? Lou, can
you hear me?
MR. RADAR: Yeah, I can hear you now.
MR. O'HARE: Hopefully I won't get any calls.
BY MR. HANNA:
Q. All right. You were telling us about the
case of, the Audubon Society, nature preserve I think
it was.
A. That was a, yeah, that was a piece of
litigation I handled that had multiple, multiple
parties. And when I was advised that Mr. O'Hare
thought that I had represented him in the past, I
presumed that that was, that he somehow was involved
with that group, and I -- They pulled the pleadings and
he was not one of the parties that I represented in
that case.
Q. Okay. You represented the individuals in
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that case; not the town?
A. I think I represented individuals. I think
one of the, one of my clients was a, an elected
official. I don't think the Town was a party to the
litigation as I recall. Although they were a party to
mediations.
Q. Okay.
A. That's my general recollection. I haven't
looked for that purpose.
Q. Okay. Bernd Schulte's name?
A. Bernd Schulte was a commissioner I guess.
Q. And Rich Lucibella?
A. Right.
Q. They were the property owners around it?
A. Right. And that, that just is why I was most
concerned when Mr. O'Hare testified I had been at a
meeting with Mr. Nicoletti with him at Town Hall,
because I don't believe I've ever, I was ever in the
old Town Hall in Ocean Ridge. Even in that case.
Q. Okay.
A. At least I have no recollection of ever
being, being in that building. I drove by it a hundred
times taking my kids to Gulf Stream for 19 years.
Q. Have you discussed the contents or the
allegations of the Motion to Disqualify with any of the
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other attorneys representing Gulf Stream?
A. First of all, I'm not going to discuss that,
because that would be my work product and lawyer
client.
Q. Okay.
MR. O'HARE: I'm not asking for the content;
just if it happened.
BY MR. HANNA:
Q. Have you discussed any contents of the
allegations in the Motion to Disqualify with anybody
from the Town, any of the Town officials?
A. I'm not going to discuss that because that
would be work product. That would be in conjunction
with my representation of the Town.
Q. Okay. We're asking --
A. This is a motion filed in this case.
Q. I'm asking for whether it occurred, not
whether -- not for the content.
A. Well, you, the content is in your question.
So that's silly. I heard your client say that to you
and I laughed at how silly of a notion that is. You
can't ask a question that has the content in it and
then say it doesn't have the content.
Q. Have you ever represented Christopher O'Hare
before?
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A. Not that I have any recollection of.
Q. Okay.
A. And if you have something to refresh my
recollection, I'd love to see it. I see from my
records he was in my office apparently, and I could
have had an initial conference with him before he was
sent to -- before this was assigned or given to
Mr. Jonas.
For 35 years I've met with people and I do
not charge for initial consults. If someone talks to
me on the phone and I think that I should speak to
them, and there's something that's of a legal nature
that I should pursue, I don't write time slips for my
first consult.
So it's possible that he came in and talked
to me. It's possible he spoke to me on the phone. I'm
not doubting that. I just don't have any recollection
of him or any matter for him.
Q. Okay. Have you seen the memorandum from Paul
Nicoletti?
A. I, I saw that when I obtained it from the
Town of Ocean Ridge. It makes reference to me being on
a conference call with Mr. Jonas and calling
Mr. Nicoletti.
Q. Do you have any recollection of that phone
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call?
A. None at all
occurred.
But I have no doubt it
Page 30
MR. HANNA: I'm going to mark this as Exhibit
A -- or what are we -- Yeah, this is Exhibit A on
this one.
THE WITNESS: I'll just write it here and
then you can put a thing on it.
(Plaintiff's Exhibit A).
BY MR. HANNA:
Q. And is that the memorandum from Paul
Nicoletti to the Ocean Ridge Town Commissioners
regarding that phone call?
A. Yeah. The first time I saw this was before
your client's depo. I obtained it from Town of Ocean
Ridge.
Q. And we had sent that to you also.
A. I think I'd obtained it before you did.
Q. All right.
A. Because I was there riaht after you were
there.
Q. Now regarding the phone call, you indicated
that you have no recollection of it but that the phone
call occurred?
A. No, I said I'm not disputing it occurred.
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Q. Okay.
A. I have no knowledge one way or the other.
But it, it certainly, it certainly looks like something
I would do in the course and scope of representing a
client.
Q. Okay.
A. And it would be consistent that Mr. Jonas, if
there was a litigation issue, would involve me, and
appears I made a phone call. I guess had the case not
resolved itself three days after this memo and there
would have been litigation, then I would have gotten
involved.
Q. Well, in the memorandum you discuss, it
discusses that, threats of a civil rights and
defamation case, are those the kind of cases that you
would have handled against public entities back in
1998?
A. It would depend on the facts. In this case,
from looking at everything that I've seen now, it
appears that the O'Hares had some approval already for
use of a building, and that a government under color of
law was attempting to deny them of the use of their
property. So I was probably thinking in terms of a
1983 action, and I had brought 1983 actions, including
all the way to the United States Supreme Court.
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Q. What are the damages that you typically would
seek to recover in these kind of cases?
A. There's no such, there's no such thing as
typical. I mean, the last 1983 case I handled was
against the chief judge of Broward County.
Q. Okay.
A. For locking another judge out of the
courthouse. I mean, what would the damages be? It
depends on the facts of the case. Some cases you get
an injunction.
Q. Are there any mental or emotional distress
components to a 1983 action?
A. I don't know. I would have to go look at the
law.
Q. Have you ever made --
A. I, I, I don't, I don't, I don't recall.
Under Florida law obviously you'd need a touching.
Would have to be the tort of outrage or a touching.
And I've, I've, I don't recall ever, you know, pleading
emotional damages in a 1983 case, but I'd have to go
back and look at the law.
Q. What about other cases that you could file
against a public entity for some property type dispute?
A. That would depend on -- you're asking me for
my legal opinion now. I would have to research it and
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look at the, the theories.
Q. Who is Heath King?
A. Heath King is a counselor who I met through a
client of mine over 25 years ago. Probably the
smartest man I've ever met.
Q. What type of -- Was he a psychotherapist? Is
he a physician?
A. He's not a physician. And I don't know his,
you know, his full CV. He was a professor at Yale
University and is a highly published thinker and
writer. I don't know if his training is in psychology,
interdisciplinary studies. But I -- He was appointed
by the court to counsel one of my clients, and the
client raved about him probably closer to, closer to 25
year, I'd say 25 years ago. And maybe 22 years ago,
somewhere in that range. And I met him, and since then
I've referred family members, friends, friends of my
children, clients. And even when I get stressed out,
I'll invite him to lunch.
Q. Okay. Now when you say you refer clients
there, are they ever related for treatment for a
pending case?
A. No. No, no. I don't handle cases, I don't
think I've filed a case where I've hired a psychologist
or a psychiatrist to testify, because I haven't handled
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any personal injury type cases or cases where I've
sought pain and suffering. I've never used him as an
expert or, or consulted him in that regard.
The first time I, I learned of he, he'd been
appointed by a court, a client of mine threw a vase at
his son in a construction trailer. And I didn't handle
the criminal case, but the judge ordered him to go to
anger management therapy with Mr. King.
But I've sent people that are having stress,
you know, from litigation.
having marital counseling.
depressed.
I've sent people who are
I've sent people who are
I mean, I can give you a little personal
background on why I do that. But early in my career I
had a young man in my office, about 1981, young Cuban
boy who was very distressed, and I didn't know anything
about sending people to counseling. And he kept
telling me -- I'm haunted even to this day -- he would
say Paula, Paula, I love her but she doesn't love me.
And he would rage. And, and I just thought, well, this
guy seems a little wacko, and within a month he had
stalked Paula's brother and murdered him in a grocery
store in Hialeah. And I've had clients and friends
who've killed themselves who've been in litigation.
So I've learned the hard way that any time I
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see anybody in our society which is very stressful that
is having any kind of issue, that typically being a
litigator and filing lawsuits doesn't relieve stress,
it causes it. So I've probably referred 50 to a
hundred people to Heath King, and I know he's referred
people to psychiatrists and psychologists and others.
But I've done it in the hope that I won't have to hear
about a client killing another person or another client
killing themselves.
But I don't do it for purposes of obtaining
testimony. Nor do I ever speak with Mr. King about
anyone I send to talk to him. And I certainly wouldn't
do that. And I saw that in your motion and I thought
that was pretty irresponsible to suggest it.
Q. Now regarding Heath King, did you refer
Mr. O'Hare to Mr. King?
A. I have no recollection of ever doing that,
but as I said to Mr. O'Hare, I think in your presence
at the depo, the fact that he says I went to -- that I
referred him to Heath King is... makes, makes me very
confident that he and I at some point spoke. And I
don't doubt that, his statement that I suggested or
recommended Heath King to him.
Q. Now normally would you --
A. I still refer people to Heath King regularly.
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Q. After having discussed their problems with
them; isn't that true?
A. No, not necessarily. I mean, I've, I've
recommended people to Heath King at a cocktail party.
I've recommended people to Heath King when I've heard
that a girl was not eating because her boyfriend broke
up with her at St. Andrews and she was a friend of my,
my daughter. And I've said, I never even met this girl
but tell her mother she should call Heath King and find
out where the best treatment could be for her.
Q. But you just don't arbitrarily tell somebody
to go to Heath King?
A. Not arbitrarily. I mean, I recommended one
of my best friends go to Heath King when he told me he
was getting divorced. The minute I heard divorce, I
said, don't do that alone. Go talk to a professional.
Q. But you have --
A. Without knowing any details.
Q. -- you have no recollection of what you and
Chris O'Hare talked about that resulted in you
referring him to Heath King?
A. I have no, I have no recollection of even
referring him to Heath King, or giving him his name or
phone number.
Q. Do you have any recollection of meeting Chris
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O'Hare?
A. I have no recollection of meeting Chris
O'Hare.
Q. Okay.
A. And I've racked my brain.
Q. Do you have any recollection of discussing
this case with Edwin Jonas?
A. None.
Q. Okay. Do you have any recollection of
receiving payment by Mr. O'Hare?
A. None.
Q. Do you have any recollection of --
A. Do you have anything to refresh my
recollection, like a check or a retainer agreement or
an invoice or something?
Q. We'll get to that.
A. Okay. I mean, I wish you -- I'm as curious
as you are what happened.
Q. Okay. Do you recall or have any recollection
regarding payment to Edwin Jonas for his work in the
O'Hare case?
A. I have, I have absolutely -- I've racked my
brain and I have absolutely no recollection of, of
Mr. O'Hare.
Q. Who is Diane Scully?
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561-689-0999
Electronically signed by Mary Hen gstler (501-151.220.7877)
Electronically signed by Mary Hengstler (501-151-220-7877) 8a281478-857dd71 b-9e71-80559ed1289a
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A. Diane Scully was Diane Faulk.
Q. Okay.
A. And she was my brother's girlfriend after
high school or after college for many years, and I
considered her a dear friend, just through my brother.
She's -- My brother's five years younger than me. I
think she's probably two or three years younger than
me. So I didn't know her in high school but I knew her
after.
Very dear person. Wonderful person. Her
brother, Kenny, is a good friend of my brother's, and
has been for 30 something years. And I see him once or
twice a year. I see Diane once or twice a year.
Typically at my brother's Christmas party. And her,
her older brother I knew at Nova High School. He was
in my class. But he unfortunately died about ten years
ago. So I've not seen or talked to him.
Q. Who passed away?
A. Dale.
Q. Dale. Who is Dale?
A. Dale is Diane's brother who was my age.
Q. Okay. When did your, you said your brother
dated Diane Scully?
A. Dated --
Q. Diane Faulk.
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hengstler (501-151-220-3877)
Electronically signed by Mary Hengstler (501-151.220-7877) 6a281478.857d-471b-9e71.80559ed1289a
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A. -- for some period of time.
Q. What was the time period?
A. I, you know -- I know it wasn't high school.
And I don't know if it was when he was at Florida State
or when he was, when he had graduated. It was 20 -- I
mean, she's been married for 20 years I would say.
Q. How long did --
A. He's been married, he's been married at least
that long I think. I mean, you're going back.
Q. So is it in the '80s, '90s?
A. I -- Let's see, I graduated from Nova in
1972. He graduated in '77. So I think it would have
been late '70s or early 180s.
Q. Okay. And you maintain contact with her
through the --
A. I see her, I see her at different things.
And I grew up in Plantation. I still have a lot of
friends in Plantation.
Q. Okay.
A. My brother lives on Gordon Island in Fort
Lauderdale. So I go there. He's got triplets, I see
them regularly, I'm down there.
Q. Does she refer cases to you?
A. No.
Q. Okay.
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hengstler (501-151-220-3837)
Electronically signed by Mary Hengstler (501-151-220-3837) 6x281478.857d.471b-9e71.80559ed1289a
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A. No, I haven't -- I mean, when I -- That's
another thing, when I heard from, at his depo that
Diane Faulk gave him my name. Surmising, speculating
the reason I don't have any time listed, even if he did
call me, how many ever times he says he called me, is
if he was sent by Diane or anybody I considered family,
if I didn't have a case for that person I didn't end up
appearing, it's not unusual that I would not give a
bill.
Q. When you, when you take on a case, are they
already in litigation at that point?
A. I have to say that now, at this point in my
career, I'm called in to try cases and take over cases
probably as often as I'm called in at the beginning of
cases.
For instance, this litigation is fairly
typical of my practice. I have people come in, and
I've tried cases, you know, that have a whole filing
cabinet and have a month to get ready.
I just got hired on a case before Judge
Hurley that's going to trial in February that I'm
getting geared up to try over the holidays.
Q. Well, do you ever get calls from people that,
whatever, the incident just happened, nothing has been
filed, and you take them on as a client?
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hengstler (501-151-220.9877)
Electronically signed by Mary Hengstler (501-151-220-7877) 6a281478 -857d-471 b -9e71-8 0559ed 1 289a
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A. Oh, sure. That used to be the nature of my
practice when I started.
Q. Okay.
A. And obviously it's changed.
Q. Did they all result in filing of litigation?
A. Well, I typically don't get hired unless, you
know -- People come in to see me for litigation.
People are sent to me for litigation.
Q. Well, in the late '90s, did you ever have any
cases that you signed the person up but for whatever
reason it never was filed, a form of litigation?
A. If that happened, it would be extremely rare.
I normally don't get a retainer, you know, to handle
litigation unless there's litigation. To file a
lawsuit or defend a lawsuit.
People come in -- When people come in to hire
me when it's not already a pending case, it's for
purpose of defending a case that's been filed or for
filing a case.
Q. Okay. So a case that's already in
litigation, that's typically when someone would come to
you?
A. Absolutely. Yeah, I don't, I don't just
consult with people or...
Q. Now when you consult with people that have
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hengstler (501-151-220-3837)
Electronically signed by Mary Hengstler (501-151-2204837) 8a281478-857d-471b.9e71.80559ed1289a
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the case in litigation, do you always take the case?
A. Of course not.
Q. Do you -- Strike that.
Have you been contacted by people that are
involved in litigation and you've filed a different
litigation out of that as a result of the first filed
suit?
A. You mean when people come back to me?
Q. Yes.
A. Sure. I have clients that I've represented
for decades.
Q. Okay.
A. I have clients that I've handled --
Mr. Russo, for instance, I handled a personal injury
case for, his divorce, a criminal case, a legal
malpractice case. I could write a book on litigation
just on that one client.
Q. Well, do you have a new representation
contract every time you have a new case or do you have
t�
A. It depends on the nature of the
representation. If I'm taking on a contingency
commercial case, if I'm going to have co -counsel. For
instance, I'm filing class actions now with the Farmer,
Jaffe, Weissing firm down in Lauderdale against some
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hengstler (501-151-220.3837)
Electronically signed by Mary Hengstler(501-151-220.3837) 6a281478.857d-471b-9e71.80559ed1289a
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entities in Broward that include potential RICO claims
that we're researching now. If I have co -counsel, even
though I already have one case for these people that I
just got a judgment against the same entity in front of
Judge Ross, you know, it's now going to have other
lawyers involved, it's going to have contingency
factors. So I have a new fee agreement, even though I
represented some of the same people through a trial.
Q. What kind of fee agreement would you use --
Strike that.
There's the fee representation contract and
there's also some, attorneys use an engagement letter?
A. I've, I've used -- I use different types of
agreements for different types of matters. I've
charged flat fees, nonrefundable fees, contingency
fees, hourly fees. Engagement letters. I have form
retain, retainer agreements that have different boxes
that are checked for the type of case it is.
M6261 -IN
Q. Do you still have financial records from
A. No.
Q.
Why don't
you
have
any
of those records?
A.
Because
they
would
have
been purged years and
years ago. Because I can only afford so much warehouse
space. If I had all my records from '98, A, by now the
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hen gstler (501.151.220.3837)
Electronically signed by Mary Hengstler (501.151-220-3837) 8a281478-857dd71b.ge71-80559ed1289a
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cockroaches would have eaten them all, because even my
seven-year-old records look like they're food for...
that's what happens to all these people's disputes,
they end up being eaten by cockroaches.
Q. Well, do you have any records from 1998 for
any closed client file?
A. I haven't looked to see, but I'd be very
surprised. Other than the research I told you about.
Q. Other than the research files.
A. I --
Q. How far, what is your -- Do you have a set
timeframe where you purge files?
A. Seven years. Well, I mean, we go in
periodically, like every other year, every year. Right
now it's when the -- I have a warehouse space that's
probably 2000 feet of files, and when you don't have
room to put the files from here, we end up throwing
out, you know, files that are over seven years old.
Q. Okay.
A. I'm hoping with all these electronic records,
that I won't have all this filing.
Q. Except you're going to have gazillion --
A. Discs.
Q. -- discs of everything and 15 copies of the
same thing.
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561-689-0999
Electronically signed by Mary Hengstler (501-151.220-3837)
Electronically signed by Mary Hengstler (501-151-220-3837) 6a281478.857d471b-9e71.80559ed1289a
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So, then, there are no files, other than the
research files, from any cases in 1997, 1998, 1999 in
your possession?
A. That would be my best guess, although I
haven't gone through all of the files. But I -- The
times I've been in the warehouse, I've never seen
anything from the 1990s or 1980s.
Q. Is it possible, then, that a file for
Christopher O'Hare was opened and destroyed?
A. Anything's possible. You're asking me to
speculate.
Q. Okay. Well, just because -- You have, you've
presented us with, in the records custodian deposition
with the few documents that you have representing
Mr. O'Hare. Are you contending that that proves that
you didn't represent O'Hare or that there was no file
open?
A. Not at all.
Q. Okay.
A. Not at all. I'm taking Mr. O'Hare at his
word that he was sent to me by Diane Scully, that he
met with me, that he talked to me, that I recommended
to him that he go talk to Heath King. I can see that
the day before a letter was sent by Mr. Jonas as of
counsel to my firm. We opened him up in our system.
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hengstler (501-151-220-3837)
Electronically signed by Mary Hengstler (501.151.220.3837) 6a281478 -857d471 b-9e71-80559ed1289a
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And I'm contending that it looks like I never filled
out a time slip.
Q. Okay.
A. Now did, did Mr. Jonas render a bill? Was
there a bill typed up without a, without time slips
because it was one week's representation? Did
Mr. O'Hare call me on the phone and, and ask me
questions about, about other things? I have no, I have
absolutely no recollection and no way of knowing.
Q. Okay. So in October 1997, it's possible that
Mr. O'Hare called you regarding the Pace, Emmett Pace
versus Ocean Ridge litigation that he was involved
with?
A. It's possible. I have no recollection.
Q. Well, that's consistent with --
A. With '07?
Q. Of '97?
A. '97?
Q. Yes. That's consistent with how your
practice operated then, somebody in litigation that
would bring you in to help them with that case; isn't
that true?
A. Well, it's, it's possible that he called me
because he had a litigation matter. It's possible.
Q. But that's something you would have handled?
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hengstler (501-151-2204877)
Electronically signed by Mary Hengstler (501-151-2204877) 6a281478.857d-471b-9e71.80559ed1289a
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A. No, someone calls me about a litigation
matter, I would speak to them generally. Whether or
not I would handle it or not, I'd need to know what the
case is about. I have no recollection of any
litigation with an Emmett Pace.
Q. Okay.
A. I think that's one of the files they went to
look at online to see if I ever was involved in it.
I've got no letters or documents. I mean, if you have
something that shows in his calendar that he met with
me in October and talked about somebody, show it to me.
I don't think it's going to help refresh my
recollection, because I've listened to his depo, I've
seen all the documents, and I still don't have a
recollection of him.
Q. Okay. Well, because you don't have a
recollection of it, does that mean that it didn't
happen?
A. Absolutely not.
Q. Okay.
A. No, I think it's likely that, I think it's
likely, based on everything I'm seeing, that he did
meet and talk with me at some point, especially judging
from this, that we opened a client number for him.
Because no other lawyer in the firm would decide that a
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hen gstler (501.151-220.3837)
Electronically signed by Mary Hengstler (501.151-220-3837( 6a281478.857d-471b-9e71.80659ed1289a
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case goes to Edwin Jonas or someone else, it would have
been me.
Q. Did you ever handle cases with Edwin Jonas?
A. I presume so.
Q. What was Edwin Jonas' role in the firm? Now
you've already said of counsel.
A. Right.
Q. Was he --
A. He, he -- I know that he had experience in
real estate. I didn't do any, you know, I do no
transactional work at all. And I represented a lot of
developers. I know that whenever there was a real
estate case that came in, a closing, I gave that to
him.
You know, other than that, I don't have a
recollection of what -- I see from this document that
I, he got involved in a code enforcement case. But I
have no -- I can't recall any specific case that I
worked on with him.
Q. Okay. I'm going to show you --
MR. HANNA: I'm going to mark this, what is
this?
THE REPORTER: B.
MR. HANNA: B?
(Plaintiff's Exhibit B).
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561-689-0999
Electronically signed by Mary Hen gstler (501.151-220-3837(
Electronically signed by Mary Hen gstler (501-151-220-3837( 6a281478 -857d-471 b-9e71-80559ed1289a
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BY MR. HANNA:
Q. Can you tell us what that is?
A. This is a letter that you obtained and I
obtained from the Ocean Reef clerk, or Ocean --
Q. Ridge.
A. Ocean Ridge clerk.
Q. We know what you meant. Is this your, look
like your letterhead from 1998?
A. Yes.
Q. Who was Jeffrey Bennett?
A. Jeffrey Bennett was an associate in the firm,
and it's my brother-in-law.
Q. Okay.
A. What about Paul Feltman.
A. Paul Feltman was an associate in the firm.
Q. And Alexander Varkas, was he a partner or
member, shareholder, whatever it is was?
A. Yeah. Well, named.
Q. Yeah. Now how did Jeffrey Bennett function
in the firm?
A. He was paid a salary.
Q. Okay. But what kind of role? Would he --
A. He did litigation. All we did was
litigation.
Q. Now did they work separately or was it a
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561-689-0999
Electronically signed by Mary Hengstler (501-151-220.7877)
Electronically signed by Mary Hengstler(501-151-220-7877) 6a281478 -857d-471 b-9e71-80559ed1289a
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team -type situation?
A. It depended on the case. I mean, there were
cases that associates had that I would supervise and
they would primarily be responsible for. Then there
were cases that Jeff and I went to the Florida Supreme
Court on. Depended on the case.
Q. Now how did, if it did function differently,
did Edward Jonas function for the firm?
A. That's what I'm telling you, he was there
for, for a defined period of time when he was trying to
establish in Florida, and had, you know, ten years or
more experience as a lawyer. And he handled -- I
didn't supervise him, you know. I didn't treat him
like an associate. I would send him things. And I
don't remember specifically, but I suspect that, you
know, if he handled it, he would bill for it and he
would get the fee. I, I have a vague recollection, but
it, I have no, I would not rely on it, that either,
either -- Because I own the building. So he had an
office. And I think that I credited -- If he did work
on one of my cases, I'd credit it towards his rent
maybe. Something like that, you know. It was some,
some, some dealing with the fact that he was, you know,
operating out of my building.
Q. Do you, do you think maybe you paid him
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hengstler (501-151-220-3837)
Electronically signed by Mary Hengstler (501-151-220-3837) Will 478-857d-471 b-9e71-80559ed1289a
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Page 51
hourly?
A. No, I don't think I paid him hourly. I think
I might have paid him for his time in a case or he got
his fees in the case, but I got a credit for what he
owed for rent. I have some general recollection,
something like that, but I could -- I would never swear
to it.
Q. Did he work on cases for you?
A. I don't remember what he worked on. I would
think, I would think that I had cases that he helped me
with.
Q. Okay.
A. But I, I can't remember one case that he
worked on. I haven't spoken to him in 15 years.
Q. Do you know where Edwin Jonas is?
A. No idea.
Q. Have you tried to find him?
A. No.
Q. Okay. Now regarding Paul Nicoletti, he was
the Ocean Ridge town attorney. Did you have any
contact with Mr. Nicoletti for the litigation involving
the Audubon property, Rich Lucibella?
A. I, I don't know.
Q. Okay.
A. I don't, I don't remember him. I remember
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hengstler (501-151-220-3837)
Electronically signed by Mary Hengstler(501.151.220.3837) 6a281478.857d-471b.9e71-80559ed1289a
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that Ken Spillias was, was the attorney, I think, for
the Town. It's my recollection, now that you mention
it. I haven't thought about that for years. But I do
remember Ken. I've litigated with Ken on a number of
cases, and I seem to remember Ken was involved in
mediations in that case.
Q. How long did that case last?
A. I don't remember.
Q. Referring you back to Exhibit B, the letter.
It says Exhibit A on the bottom but it's really Exhibit
B.
A. The letter to Mr. Nicoletti?
Q. Yeah.
A. Which says Edwin Jonas, and then he, he typed
it looks like of counsel for firm under the stationery.
So that shows you what a transient arrangement it was.
Q. Well, who was, in the corner it says ERJ:CSE;
do you know who that would be?
A. Edward R. Jonas and Carol Eugene.
Q. Okay.
A. Who was a paralegal who then became a
paralegal for North Miami. I smile when I see those
initials because when I started practicing in 1980 she
was at, she's a, was a Haitian woman, who was about 20,
and she was studying at Miami Dade Junior College, and
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hengsller (501-151-220-3837(
Electronically signed by Mary Hengstler (501-151-220-3837( 6a281478.857d-47lb-9e71-80559edl289a
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Page 53
I was, got a call and was asked if we would consider
mentoring her. We did. She became a paralegal, and
she ultimately ended up working for the City of North
Miami Beach. She was with us for 10 or 15 years. It's
U -e -g -e -n -e. Carol Eugene. And I think she's in North
Miami. So that's, that's who typed the letter if you
want to contact her.
Q. Okay. Well, in the -- So it's possible she
typed "of counsel" for the firm?
A. Looks like a typewriter.
Q. Yeah.
A. So it's possible we even had a typewriter in
1990.
Q. I'm saying she -- You indicated Mr. Jonas
typed that in.
A. Well, I don't know who typed it. I, I don't
remember ever seeing this letter 'til, 'til I got it
from the clerk.
Q. Okay. In the second paragraph it says, "In
order to properly represent Mr. O'Hare at the Special
Master proceeding, we would need an additional 30 days
to prepare."
What do you take the "we" meaning?
A. I would think it would mean him and whoever
he's working with.
Florida Court Reporting
561-689-0999
Electronically signed by Mary Hengstler (501-151-220.3837)
Electronically signed by Mary Hengstler (501.151-220.3837) 6a281478.857d-471b-9e71.80559ed12B9a
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Q. Okay. Would that have been possibly you?
A. Possibly me.
Q. You have no recollection of it?
A. I have absolutely no recollection of this.
Q. But based on this the firm, Sweetapple,
Broeker and Varkas, P.A. representing Christopher
O'Hare?
A. Well, I think that's a legal conclusion for
the judge. It's of counsel. The Settlement Agreement
says he represented the O'Hares, not the firm.
Q. Okay.
A. So that's a legal representation. You know,
I don't think any of this is even relevant to the, to
the determination based on, even if everything your
client said is true, I don't think that it, it
qualifies as a representation in the same or similar
matter under any stretch.
And, you know, my legal opinion, which I've
told you, is that this is just a bad faith litigation
strategy. Even if everything you said were true. But
I'm not here to give my legal opinion. I'll let the
judge decide if my firm was representing him.
Q. Why do you say that it's not similar? And
you make the representation it was similar.
A. Because you look at -- Because how, how --t.
Florida Court Reporting
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Electronically signed by Mary Hen gstler(501.151.220-3837)
Electronically signed by Mary Hen gstler (501-151-220-3837) 6a281478-857dd71 b-9e71-80559ed1289a
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has nothing to do with --
Q. Okay.
A. -- anything that's happened 16 years later.
Q. Okay. Well, have --
A. It couldn't. Your whole argument's legally
preposterous, and I'll be, I'm obviously seeking fees
under 57.105. And I just filed my motion in the
O'Boyle case, and after we have our evidentiary hearing
in this case I expect I'll do the same thing.
Q. Okay. Well, you're making the argument that
it's not the similar case.
A. Did this case involve a group of individuals
filing thousands of public records requests to Gulf
Stream and other towns in the, in the state for
purposes of, of frustrating and abusing process and
closing governments and shaking down governments to get
attorney's fees for a law firm that we allege is not a
bona fide law firm?
Q. Where do you, where do you get the contention
that that's where, that's what they're doing?
A. I'm just -- I'm saying is that what this case
is -- That's what I think, that's what I think the
current litigation is going to. I'll be filing
pleadings that you'll have before this evidentiary
hearing. There'll be a number of pleadings filed. And
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when you see what this case is all about, I don't think
the litigation that you've described in 1998 had any
involvement with public records requests. I don't
think it had any involvement with the O'Boyle law firm.
I don't think it had any involvement with bogus, not
for profits that have been defrauding entities
throughout the state and holding themselves out as not
for profits. So we'll have, the judge will --
Q. Are you familiar, are you familiar with all
the cases Mr. O'Hare has filed?
A. I'm not appearing in all the cases
Mr. O'Hare's filed.
Q. Okay.
A. I haven't -- So, so, no, I'm not.
Q. You've indicated before that you are
appearing, you're entering appearances in all of
Mr. O'Hare's cases.
A. That's for you to testify to. I --
Q. Okay. You didn't send an e-mail to that
effect?
A. Not all his cases in terms of his, his -- I'm
handling the public records requests cases.
Q. That's all, that's all you're doing for the
Town of Ocean Ridge?
A. I intend to appear --
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Q. Sorry. The Town of Gulf Stream.
A. I intend to appear in all of his public
records request cases. There's insurance counsel and
other counsel in those cases.
Q. Did you ever make a representation that
you're going to be pursuing a civil RICO case against
Mr. O'Hare?
A. I'm not going to discuss confidential
settlement communications.
Q. That's not confidential settlement
communications. It's items that have been, that are
public record with Town of Gulf Stream.
A. I have, I have communicated with counsel on
that subject, and I'm not going to discuss those
communications.
Q. Have you discussed it with Mr. Morgan?
A. That's work product. I'm not going to
discuss it.
Q.
That's
the basis of your
objection?
A.
Yeah.
Yeah, that's work
product.
Q.
Okay.
A.
I think
the Town is, has
actually voted to
bring civil RICO
claims against Mr.
O'Hare and
Mr. O'Boyle, and
I understand --
Q.
But you
have nothing to do
with that?
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A. I'm not going to -- That's my work product.
MR. HANNA: I'm going to show you, we'll mark
this as Exhibit C.
(Plaintiff's Exhibit C).
THE WITNESS: This is a reference to your
public records request cases. I don't know if you
have other cases that you're involved in.
BY MR. HANNA:
Q. Well, are you familiar with Mr. O'Hare's
Federal lawsuit?
A. Just generally.
Q. Okay. Well, you know that that's a 1983
action civil rights case?
A. I haven't -- I don't, I'm not familiar with
that.
Q. Defamation?
A. I'm not familiar with that.
Q. It's not similar to -- Would those case,
would those cause of actions be similar to what you
were --
A. I'm not --
Q. -- threatening Ocean Ridge with?
A. I'm not handling, I'm not -- The federal case
I understand there's insurance counsel. Right?
Q. Right.
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A. I've not been asked to take over any federal
case. And I don't know if you're handling it or not
but... I'm, I'm -- Have you filed a motion to
disqualify me in the federal case?
Q. No.
A. I presume you filed them in the public
records request cases.
Q. Is that your, an e-mail from you, does that
fairly accurately depict the e-mail?
A. Yes. But this was in reference to our
discussion of public records request cases.
Q. That's an e-mail you sent me?
A. Yes.
Q. Yes.
MR. HANNA: Where are the -- do you have the
exhibits? I can't tell you how many times I've
walked out with exhibits in my hand.
THE WITNESS: I'm famous for it.
BY MR. HANNA:
Q. So, then, as we sit here today, the only
cases you're representing the Town of Gulf Stream
against Mr. O'Hare are public records cases; that's it?
A. No, the only case that I have appeared in is
a public records case.
Q. So --
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A. But I am not -- I, I, I have not -- I'm, I've
not been asked to appear in any federal case that's
pending.
Q. Okay. So under your rational, until you
actually file a lawsuit and you file, or file a notice
of appearance, there's no representation?
A. I'm not here to give legal opinions or legal
conclusions.
Q. It's not -- I'm asking you to clarify your
response. You're saying because you never entered an
appearance, or because no lawsuit's been filed, that
you don't represent the, the Town of Gulf Stream in
these cases?
A. Are you asking me a fact question?
Q. Yes.
A. Okay. I, I have not reviewed your federal
case.
Q. Okay.
A. I have not been asked to give any opinions on
your federal case. I have not given any opinions on
your federal case. There's insurance counsel that's
handling that case.
Q. What about the lawsuit that the Town of Gulf
Stream filed against Mr. O'Hare regarding Polo Cove?
A. I have not reviewed that file.
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Q. Okay.
A. Nor have I been asked to provide any legal
services on that case.
MR. HANNA: Why don't we take a quick break.
THE WITNESS: Okay.
(Off the record).
BY MR. HANNA:
Q. Back on. What color was your hair in 1997?
A. Probably all brown.
Q. Okay. That was from your deposition of
Chris, you wanted to know what color your hair was.
A. Probably all brown. I was being facetious I
think.
Q. Yeah.
A. I know that my daughter was born in February
of that year. So while Mrs. O'Hare talks about her
being distracted. I don't think I slept in 1998. I
remember the colic and the walking on the dune more
than anything else.
Q. All right. Let's get back to it. See what
I've already covered.
All right. Joel Chandler; do you know him?
A. I'm not going to discuss my work product and
conversations with Joel Chandler. I didn't know him, I
didn't know him in 1998.
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Q. Well, currently you're dealing with Joel
Chandler as part of the representation of the Town of
Gulf Stream?
A. I'm not going to discuss that.
Q. You haven't filed any affidavits from Joel
Chandler?
A. I'm not gonna, I'm not going to discuss my
work product with Joel Chandler.
Q. Well, did you use Joel Chandler to make the
allegations against Christopher O'Hare regarding civil
RICO?
A. I'm not going to discuss any of my
conversations regarding Mr. O'Hare in this litigation,
any of my discussion with witnesses, any of my work
product or research or anything else in this
litigation.
Q. What about the conversations you've had with
non Town personnel where you've made representations to
Mr. O'Hare that you were going to file civil RICO cases
against him?
A. I'm not going to discuss any communications
I've had with any witnesses or any individuals
regarding the litigation.
Q. Did Mr. Chandler ever make any statements
against Christopher O'Hare?
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A. I'm not going to, I'm not going to disclose
the communications I've had with Mr. Chandler regarding
Mr. O'Hare.
Q. Okay. Well, did you represent that you
stopped Joel Chandler from providing information about
Christopher O'Hare?
A. I'm not going to disclose my conversations
even with you regarding Mr. Chandler that were made
during confidential settlement and mediation
proceedings, but...
Q. You're asserting that because it occurred in
a settlement --
A. I'm not going to disclose my --
Q. Didn't you tell, didn't you tell --
A. The purpose for this deposition is
exclusively to determine whether or not your motion for
leave to disqualify me has any merit. The fact that
you're attempting to do something else that's not even
designed to solicit admissible evidence shows that, you
know, you're acting in bad faith.
Q. No.
A. So I'm not going to, I'm not going to testify
about --
Q. This is --
A. -- settlement negotiations.
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Q. Didn't you tell Mr. Desousa that settlement,
the privilege for settlement negotiations doesn't apply
in --
A. I'm not, I'm not going to give you legal
opinions or conversations with lawyers.
Q. Okay. Now with Mr. Chandler, the reason why
it would be relevant is because you told Mr. O'Hare and
others --
A. Mr. O'Hare?
Q. Yes.
A. -- that you stopped Joel Chandler from
discussing Mr. O'Hare when he gave his statement.
A. I have not spoken to Mr. O'Hare outside the
presence of any attorney. And I've only spoken to
Mr. O'Hare in a settlement conference that was deemed
to be a mediation conference.
Q. Do you remember telling me that you stopped
Mr. O'Hare --
A. I'm --
Q. -- or stopped Mr. Chandler from giving
information about Mr. O'Hare?
A. No, I'm not going to talk about our
conversations, other than to tell you that what you're
saying is false. I actually told you that I did not
have what Mr. O'Hare told me about Mr. -- Mr. Chandler
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Page 65
told me about Mr. O'Hare on the videotape, that I had
the discussions with him after the videotape. And
Mr. Chandler has made statements to me regarding
Mr. O'Hare, but they are my work product.
Q. Okay.
A. And, and I think that would have been clear
to you because I was able to, to ask Mrs. O'Hare about
Mr. Chandler's presence at meetings with Mr. O'Hare and
his attorney and the things that were discussed between
Mr. Chandler and Mr. O'Hare.
Q. Okay. Well, what were those things that were
discussed between Mr. Chandler?
A. That's my work product. But it's pretty
clear from my questioning and from Mrs. O'Hare's
answers that obviously Mr. Chandler or someone has
given me information about Mr. O'Hare's involvement
with Mr. Chandler and their attempts to use public
records requests for their illicit and illegal
purposes.
And I actually read from an e-mail at Mr. --
Mrs. O'Hare's deposition where they talked about head
shots, targeting, making money. And while, while
Mrs. O'Hare talked about the fact that she thought it
was slimy; her testimony of who she was referring to
doesn't exactly jive with Mr. Chandler's. But when I
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Page 66
take Mr. Chandler's depo next month, you'll find my
work product. And I will be taking Mr. Chandler's
deposition next month, in this case.
Q. Okay.
A. Because I want to have all of my discovery I
can have done before I file my amended pleadings in
this litigation, which I intend to do before the Motion
to Disqualify me is heard.
Q. All right, then. When did you meet Joel
Chandler?
A. I'm not going to disclose my work product.
Q. Do you have any e-mails or confidential
information from -- given to you by Joel Chandler from
Mr. O'Hare?
A. I'm not going to disclose my work product.
Q. Do you have any --
A. But if your, if you want non -work product, I
suggest you look at pleadings and responses that were
filed Friday in the case of Caffey (phonetic), an
alleged not-for-profit entity, that Mr. Ring is --
MS. O'CONNOR: Is that Lou Radar calling?
THE WITNESS: Is Lou trying to get on?
MR. HANNA: Oh, yeah. Chris, how do you get
Lou on?
MR. O'HARE: I'm sorry, what's going on?
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THE WITNESS: Mr. Ring, who is sitting here
is apparently a director of Caffey and an employee
or partner of Mr. O'Boyle's, as well as the
resident member of the O'Boyle law firm. And that,
that entity, Caffey, sued my law firm, and there is
a response that was filed Friday, as well as a
motion to transfer that case to Judge Blanc. And
if you read my response, I think you'll, you'll see
our legal position.
BY MR. HANNA:
Q. What's that motion regarding?
A. A motion for order to show cause. There's a
response to it that we filed that outlines the law.
Q. For what?
A. For whether or not documents are confidential
or not. Aside from the crime fraud exception and the
fact there was joint representation by Mr. Chandler by
the firm that Mr. Ring ran and the Caffey organization
that he ran, and Mr. O'Boyle. Who somehow, Mr. Mitch
Berger showed up before Judge Blanc and said that
Caffey had given him, Mr. O'Boyle's attorney all the
records that they say I have that are confidential.
But Mr. O'Boyle testified he has nothing to do with
Caffey, which is apparently contrary to everything that
I have been able to learn from my work product.
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But if you're interested in my legal
opinions, I'm not going to give them to you. And if
you're interested in my work product, I'm not going to
give it to you. If you'd like to see my legal position
with regard to the issue of confidentiality, I suggest
you look at the bogus lawsuit that Caffey has filed
against my law firm, alleging that there's an
appropriate order to show cause, and my response as to
why there's no privilege. If there was a privilege,
it's been waived. Why the crime fraud exception
creates no privilege because Caffey was involved in
fraudulent and criminal conduct.
Q. Do you have any documents from Joel Chandler
that were generated by Mr. O'Hare or any of his
attorneys?
A. I'm not going to disclose my work product at
this time.
Q. You've already, you've already indicated that
you've disclosed this to the court so...
A. I disclosed -- You have to read my pleading,
and you'll see the pleading.
Q. Isn't it true that a matter that's not
confidential in the client's hand isn't confidential
just because the lawyer has it?
A. I'm not going to debate the law with you. I
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just said, if you want to talk about Caffey, I'm making
you aware that there are pleadings --
Q. I'm not talking about Caffey.
A. -- that were filed.
Q. I'm talking about Christopher O'Hare.
A. Christopher O'Hare, what do you want, what do
you want -- You want my work product with regard to
Christopher O'Hare? Do you want to know what I'm
thinking? Do you want to know what I'm going to do?
Q. No, I want to know what you've been given by
a third person, that's not work product, that's
information, that's facts, it's documents.
A. Then I suggest you look at the other bogus
case that was filed which was the Caffey versus
Chandler file where I was subpoenaed, and there's a
memo in that case, as part of our motion for protective
order, that discusses when something's work product and
when it's not.
I'm asserting the work product privilege and
I'm happy to debate the law with the judge with you.
Q. What cases do you represent the Town of Gulf
Stream in versus Mr. O'Hare?
A. I'm not going to disclose that. I've told
you, cases I'm not, but I'm not going to disclose what
I am doing.
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Q. Do you remember a Sun Sentinel reporter named
Merl Augustin? Augustin. A -u -g -u -s -t -i -n?
A. I don't recognize that name.
Q. Do you remember them possibly from coverage
of the Ocean Ridge matters?
A. From when, 1998?
Q. Yes.
A. Which Ocean Ridge matter are you referring
to?
Q. The apartment complex that you were involved
in with the code enforcement?
A. I don't even recall being involved in an
apartment complex, much less a reporter. Do you have
some article you can show me that I'm quoted in?
Q. You've been given the articles that we have
regarding the incident. I'm not sure if you were
quoted in any of them.
A. I've looked. I didn't see my name anywhere,
and I didn't recognize or remember anything in the
article.
Q. That's what I'm asking you.
A. None.
Q. If it jogged any memory --
A. None.
Q. -- or did it help you remember anything?
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Page 71
A. None.
Q. Di you ever represent Emil Dancui in regard
to Mizner Park?
A. I did.
Q. Did you ever have a retainer agreement with
him?
A. I don't recall. I, I represented him in a
suit against the City of -- I think a derivative suit.
I think I represented him as Mayor of Boca Raton. You
asked if I represented other entities.
Q. You also represented him in an ethics
violation?
A. Right. Because he did not -- Because I did
not charge him and I did it without a charge, as I
recall they deemed that to be a donation to him. I did
it as a public service when they tried to open a, a
business on land that was zoned for public use in
Mizner Park.
Q. Now when was that, what timeframe? Early
'90s, late 90s?
A. Let's see, Mizner Park opened in early 190s,
'90, I'd say it was '93, '94 that I represented the
Mayor of Boca Raton.
Q. And that involved a administrative hearing
with the State of Florida?
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A. Oh, that was after we filed the lawsuit. We
filed the lawsuit, as I recall Emil, I represented
Emil, and I filed the lawsuit saying that the city was
using public land for a private department store. And
then Mike Moskowitz, then after Emil filed it, a group
of citizens came in, they hired Mike Moskowitz, and the
development was stopped. And then Al Travasos, who was
a city councilman on the other side of the issue, filed
an ethics charge against Emil, and I went to
Tallahassee for that. And they found -- They
reprimanded him because he and I both candidly admitted
that I was not doing this for money, that I did it
because he asked me, because I thought it was the right
thing to do. And that was deemed to be a donation or,
or something.
Q. But the case itself involved land use and
lease agreements regarding the properties?
A. The land use -- The case involved a bond
issue that had designated specific areas of Mizner Park
to be used for public amenities; to wit museums. And
the Town attempted to locate a retail operation and it
signed a lease. And that was before Judge Redd, and I
think Scott Richardson was my co -counsel. Early -- I
mean, you're talking, now we're talking 30 years ago.
That's my best recollection.
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But normally I have a pretty good
recollection when, you know, people have, when I've
done something that I had some kind of involvement in.
That was a lawsuit and it went on for some time.
Q. Scott Morgan.
A. Scott Morgan.
Q. Yes.
A. Mayor of Gulf Stream.
Q. Did you know him before he was the Mayor?
A. Not well. But I knew, I knew him casually,
socially. Never represented him or had any dealings
with him.
Q. Now when you say socially. Were you guys
good friends or?
A. He had his -- No. His, one of his daughters
was at Gulf Stream when my oldest or second daughter
was there. And his son was at Gulf Stream when my
youngest daughter was there. So when he did go to the
school and I was at the school I would see him there.
Q. Okay. How did you become involved with these
lawsuits with Gulf Stream?
A. I'm not going to discuss my work product, my,
my communications with my client on that topic.
Q. Was it Scott Morgan that contacted you about
getting involved?
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A. I'm not going to discuss that.
Q. Before he was Mayor?
A. I'm not going to discuss that.
Q. And you represented Scott Morgan prior to
representing the town?
A. I appeared at a deposition of Scott Morgan.
Q. Okay. So that wasn't representing him?
A. I, I think it was in his individual capacity.
Q. But do you consider that representing him?
A. Well, that's a legal conclusion. But my
opinion would be that I represented him at a
deposition, yes.
Q. Well, is there, was there attorney/client
privilege between you and Scott Morgan as a result of
that representation or --
A. That's a legal conclusion.
Q. So as you stand here today, you don't know
whether you had attorney/client privilege with Scott
Morgan when you represented him during that deposition?
A. In other words, did I discuss something that
was privileged?
Q. Yes.
A. A, I'm not going to answer that, because if I
did it would be privileged. I appeared at a deposition
and made objections on the record so...
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Q. But you don't consider that to be
representation?
A. If I, if I -- I didn't say that. I said I
represented him in a deposition. Whether or not I had
lawyer/client communications with him that I would
consider privileged, that's privileged.
Q. I said do you feel that that would be
applicable to your communications?
A. Why are my feelings being asked about here?
Why aren't we dealing with --
Q. Not your feelings. I'm asking you, when you
represented Mr. Morgan individually, was there an
attorney/client relationship?
A. That's a legal conclusion. And, and I don't
think it has -- I'm not going to discuss other, other
legal work I've done for people.
Q. Well, did you -- Do you have to have a
representation contract for there to be attorney/client
privileged relationship involved?
A. Why are you, why are you asking me to give
legal opinions on matters that are obvious black letter
law? I served as the vice chair of the Ethics
Committee for the Florida Bar for many years. You know
and I know that for there to be a lawyer/client
representation there doesn't have to be a written
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agreement, there doesn't have to be payment. There's
all kinds of cases on this.
Q. Thank you.
A. Okay. So --
Q. So what's the answer to my question?
A. So if you're, if you're saying that
subjectively Mr. O'Hare thought I was his lawyer on
something, you're going to make that argument to the
Court. But my opinion on what the state of the Florida
law is on that subject is really unnecessary.
Q. Have you ever testified as an expert before?
A. I have. On dozens of occasions.
Q. Okay. Do you consider yourself an expert in
the legal field?
A. Depends on the area.
Q. Okay. Well, regarding client relationships?
A. I have testified dozens of times on the topic
of legal fees, because I was the chair of the Fee
Arbitration Committee in Dade County for many years.
And I'm not here as an expert, you haven't paid me. If
you want to call an expert at the time of our hearing
to disqualify me, you're welcome to do whatever you
need to do.
But I'm not here as an expert. I'm not going
to give you my legal opinions. Even though I
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Page 77
volunteered a couple of them to you so I get you to
move on to something relevant.
But what, what, why do you want to know if
I'm, if I'm a legal expert?
Q. Well, I'm asking you some questions regarding
whether you had a representation agreement with a
client. You've already testified that --
A. That's not calculated to lead to discovery of
admissible evidence in this case, and I'm not going to
answer it. Keep going. I'm not going to talk about my
other clients.
Q. Okay. Mr., Mr. O'Hare, did you represent him
or not? Yes or no?
A. I -- I, I don't have any recollection of
Mr. O'Hare.
Q. Despite seeing the memorandum, despite seeing
your letterhead signed by Edwin Jonas --
A. Mm-hmm.
Q. -- you do not feel that you had any
represent -- any attorney/client relationship with
Mr. O'Hare in 1998?
A. I have no recollection of having any
communication with Mr. O'Hare at all. None whatsoever.
I don't, I don't -- I didn't recognize Mr. O'Hare when
he came up to me at City Hall. So whether or not the
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documents you have produced and Mr. O'Hare's testimony
will establish a lawyer/client relationship or the
extent of it will be decided by Judge Blanc; not me.
Do you have a retainer agreement? Do you
have a billing? Do you have, do you have any notes?
Do you have a memo to him? An e-mail? We didn't have
e-mails. Do you have any communication between he and
I?
He's testified as if I've been to his house,
I've been to the City Hall with him. He made all these
allegations in his motion before he went looking for
records. And then you went scrambling to City Hall to
see what you could find. And I've heard about press
conferences. It seems that Mr. O'Hare has a very
active recollection of my events.
Q. So Mr. O'Hare's delusional, then?
A. I don't know if he's delusional, but he seems
to be making statements about a representation that
doesn't seem to be borne out by any documents I've
seen. I've asked repeatedly, do you have something
concrete to refresh my recollection? He's testified
about payments. He said he got money, put money in my
trust account and got a refund. I looked at my, my
billing package and there's no, no trust account
deposit. Normally my retainers on litigation are
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Page 79
nonrefundable. And my initial retainer is a
nonrefundable retainer. So if he got a refund, that
would indicate to me that that's outside the norm of my
practice, A. And, B, how much work would I have done
if I would have given him a refund? But my records
show no time in my system for me representing
Mr. O'Hare.
Q. But those --
A. And I make a living filling out time slips
and getting paid for my time.
Q. Those records aren't your complete file in
this matter.
A. They could be. They could be. I may not
have anything more than that. I may not have ever had
any more than that. That's why I'm waiting for
Mr. O'Hare, who has made all of these statements under
oath, to show me something that bears this out where I
represented him in litigation with his neighbor, where
I represented him with regard to a State Attorney.
Where I, you know, was at a press conference, where I
was at City Hall with him. Where I came to his home,
you know. I'm, I'm waiting, I'm waiting to see just
how senile I am.
Q. So Mr. O'Hare's testimony regarding that
isn't sufficient in your mind?
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Page 80
A. I, I attend, either myself or to have counsel
there, and I think Mr. O'Hare is subject to
considerable impeachment, but that's just my legal
opinion. This isn't the place to debate it. The place
to do that is in the courtroom, and we will.
Q. Did you represent Shelly O'Hare also?
A. I, I saw Mrs. O'Hare for the first time at
that deposition. I don't remember ever seeing her in
my life. I don't remember ever being at her house. I
don't believe I was ever at City Hall with Mr. O'Hare.
And she testified she was in the Class of '74. I was
in the Class of '72 at Nova High School. Maybe I saw
her in high school. I don't even know what her maiden
name was.
Q.
Well, if Shelly O'Hare
was the owner of the
building,
the subject building --
A.
She wasn't.
Q.
If she was --
A.
That's a hypothetical.
She wasn't.
Q.
Okay.
MR. HANNA: (Handing).
Mark these as -- What
are
they? Where are we at?
C and D?
THE REPORTER: D.
MR. HANNA: D and E.
Take a look at those.
MS. O'CONNOR: Which one's
D and which one's
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Page 81
E?
MR. HANNA: The 2000 -- Hold on a second.
The 1996 deed is D, and E would be the March 1st,
2001, deed.
(Plaintiff's Exhibit D and E).
THE WITNESS: So you're testifying she owned
it with Mr. O'Hare?
BY MR. HANNA:
Q. Yes. There was --
A. The Settlement Agreement said to the
contrary; didn't it?
Q. No, the Settlement Agreement was signed by
Shelly O'Hare also.
A. Some document referred to a --
Q. No, this was the deeds for these properties.
A. Yeah, but one of the documents you show me
from, at the deposition, referred to an entity, an LLC
or something.
Q. Right. That's what they -- In March 2001
they sold the property or transferred the property to
Ocean Ridge Holdings, LLC, in 2001. '96 they owned it
together.
A. Okay.
Q. The code enforcement hearings were against
them personally.
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Page 82
A. Personally? Okay. Well, then, that makes me
feel like Mr. Jonas at least had the right parties on
the Settlement Agreement.
Q. Okay.
A. When I look at this now. Because the
Settlement Agreement referred to them individually, and
at the depo there was a reference to an LLC owning it.
But that occurred after the settlement.
Q. So as part of the representation, your firm
would have represented Shelly O'Hare also?
A. I don't even concede that my firm represented
Mr. O'Hare. I think that Mr. Jonas did. I made a
phone call for Mr. O'Hare based on that memo.
Q. So when you made that phone call, you don't
consider that to be representation?
A. That will be for the judge to decide. I,
I --
Q. Okay.
A. I would think that if you make a phone call
for somebody, that could be deemed representation.
Q. Okay.
A. I think, I think that --
Q. But your position is that you did not
represent Christopher O'Hare?
A. My, my position is I don't even recall him.
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Page 83
Q. Okay.
A. And all I have is what you, what I've gotten
from the clerk of --
Q. Do you remember conversations with Edwin
Jonas about the O'Hare case?
A. No.
Q. Okay. Do you remember if you referred the
case to Edwin Jonas?
A. The only thing that has refreshed my
recollection about any of this are the documents you've
shown me here and the Settlement Agreement which has
his name on it, and the fact that it was a Monday and
it shows who was there and I wasn't, and last week
when, pursuant to your subpoena, they gave me a screen
shot of Mr. O'Hare and it has Mr. Jonas' initials on
April 6th, the day before he wrote the letter that he
signed of counsel.
Q. How far back do the financial records go for
your firm?
A. For the Day Pics records?
Q. Whatever the financial records indicating
whether there was a deposit made.
A. I don't know. I haven't asked.
Q. Okay.
A. That, the Day Pics records I presume go back
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Page 84
from when
we started with Day Pics.
Q.
When did you -- What is Day Pics?
A.
That was the program that we used for, for
generating
bills.
Q.
Case management --
A.
Case management.
Q.
-- system? Like Client Profiles?
A.
It's a dinosaur.
Q.
Time Slips, whatever?
A.
It's a dinosaur.
Q.
It's not Client Profiles at least.
A.
Compared to what I have now it's a dinosaur
but...
Q.
Well, did you check any bank records?
A.
I don't have bank records back to 1998.
Q.
Okay. So those records wouldn't exist
currently?
A.
I imagined if we knew which bank. I mean, I
think I banked with Boca Bank when I --
Q.
Okay.
A.
In the '90s. I don't think Boca Bank -- I
don't even know who Boca Bank is now.
Q.
So it probably would be impossible to get
those?
A.
I'm speculating. I haven't tried. I thought
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Page 85
Mr. O'Hare, based on his testimony in his deposition,
would have, have some documentation to help refresh my
recollection.
Q. And the name --
A. To solidify his position.
Q. And the name of the bank that you had was
Boca Bank?
A. I remember I banked with Boca Bank for some
time in the '90s. And they were at Mizner Park. And
Phil Pye was the president.
Q. Have you read any of the Florida Statutes
regarding the public records law?
A. Sure.
Q. Have you --
A. Are we here to get my legal opinion on public
records law which is the subject of our litigation?
Q. I'm going to ask you some questions about
this particular case.
A. I'm not going to answer questions in a Motion
For Leave to Disqualify me --
Q. Okay.
A. -- about the underlying lawsuit and the law
that pertains to it.
Q. Didn't you just in Shelly O'Hare's deposition
take the contrary position, that that was appropriate
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subject matter to inquire with her about?
A. I can ask witnesses questions, material
witnesses and parties. I'm the lawyer in this case,
Mr. Hanna. There's a whole different standard. I
could have moved for a protective order as to my depo,
but because I wanted to have a complete record of the
testimony as it relates to your Motion to Disqualify, I
agreed to appear before you even subpoenaed me.
But I'm not going to debate the law that
underlies this litigation. Except in the courtroom.
Q. Did you take part in filing the Bar complaint
against Jonathan O'Boyle?
A. I'm not going to testify about any
administrative or criminal proceedings that have been
filed by anybody. And I'm certainly not going to
discuss Bar complaints, which I presume are to be
confidential.
Q. Do you have your --
A. Are you, are you referring to Mr. Chandler's
sworn affidavit that was filed that concerned
allegations of Jonathan O'Boyle's felony practice of
law in the State of Florida? Unauthorized practice of
law? That's, that's --
Q. No. What are you talking about?
A. Mr., Mr. Chandler's affidavit was filed in
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Page 87
one or more of these public records cases. I think in
the Caffey case as well. And he's made allegations
that Mr. Jonathan O'Boyle was practicing law full-time
in the State of Florida, was not licensed, was handling
cases, was taking over cases. But that's, that's,
that's filed -- that's his testimony in a, in a case,
and that will go to the issue of whether or not the
O'Boyle law firm has any entitlement to fees when we
get to that juncture in the pleadings, which we're not
there yet.
But as to a Bar complaint, I would presume
that that would be confidential, and I'm not going to
testify or talk about Bar complaints.
Q. Well, the affidavit from Joel Chandler, where
was that? That was filed in something?
A. Yeah. It's been filed repeatedly in cases.
It's filled in the O'Boyle case. It's filed in the
Caffey case. It's a matter of public record.
Q. Okay.
A. And he goes into great detail.
Q. Did you file that in any of Mr. O'Hare's
cases or was it filed in Mr. O'Hare's cases?
A. I don't think it's been filed in Mr. O'Hare's
case.
Q. Does it mention Mr. O'Hare?
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Page 88
A. I have to look -- You have to look at it and
see. It's a matter of public record.
Q. What about his sworn statement, was that
filed with anything?
A. I'm not going to testify -- I'm not going to
disclose my work product in that regard. I've
disclosed to you public records.
Q. That's what I'm asking you, if his statement
was filed in anything?
A. I'm not going to disclose where that, that
has gone. If anywhere.
Q. And what's the basis for not discussing the
bar complaints?
A. Work product and confidentiality of
proceedings, pursuant to Florida law.
Q. Okay. Did you meet with Scott Morgan prior
to his deposition on March 26th?
A. I'm not going to discuss my meetings or
discussions with people.
(Thereupon, Mr. King left the room).
Q. So anything that I ask you regarding Scott
Morgan and any communications you've had with him,
you're not going to answer?
A. Not in the context of me --
Q. Okay.
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A. -- providing any legal representation or
something he might deem was legal representation. It's
the client's right to decide subjectively whether or
not I was an attorney, and to decide subjectively
whether or not they communicated to me in a
confidential manner, as you know.
So I would never presume to disclose what
people said to me until I've spoken to that person and
had their permission. Because I don't want to be the
subject of a Bar complaint, because I haven't yet.
Q. Now regarding the public records cases that
are pending by Mr. O'Hare and the Town of Gulf Stream;
you've made an appearance in one case?
A. That's correct.
Q. Why did you make an appearance in one case
and not the others?
A. Well, you filed a motion to disqualify me,
and I thought the best thing to do was before filing my
pleadings and amending my pleadings and filing answers,
affirmative defenses and counterclaims, that I owed it
to Mr. O'Hare, and the court system, to let the judge
decide whether or not you filed this motion in bad
faith as a litigation strategy, or whether or not the
Court thinks there's any merit to it whatsoever. And
you filed a motion to disqualify me --
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Page 90
Q. Why would it be --
A. You filed a motion to disqualify me in cases
I haven't even appeared in yet.
Q. The cases you indicated that you were going
to be filing an appearance in.
A. Right.
Q. You filed a notice of appearance in, when in
this case, 17717?
A. I don't know the date I filed that.
Q. April 30th?
A. It's a matter of record.
Q. Okay. So you file a motion, you file an
appearance in one case in April?
A. Mm-hmm.
Q. You don't file any other appearances until
September 8th when you indicated that you're going to
be involved in all the cases against Mr. O'Hare in
Gulf, against Gulf Stream. How is that bad faith, or
how is that litigation strategy, to file the motion to
disqualify, after you notify us that you're going to be
taking on all the cases?
A. Mr. Hanna --
Q. Yes.
A. -- I'm not going to argue my case with you.
It's my legal opinion, as often is the case, that
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opposing parties file motions to disqualify counsel
because they don't want that counsel to be litigating
against them and to try to stop the litigation.
Your, your theory, your theory that any of
the representation that I'm undertaking for Gulf Stream
in any way relates to anything that I achieved for
Mr. O'Hare in 1998 is so preposterous that it's silly.
The cases and the ethics opinions say that means I have
to be attacking a result I obtained for him in the
prior representation. That's the standard. Okay? I
have to be doing something now that actually affects a
result I obtained for him in 1998.
Mrs. O'Hare's statements that I know
Mr. O'Hare's mind or, or your, your ridiculous
pleadings that Gulf Stream borders Ocean Ridge, okay,
are legally preposterous.
Q. Okay.
A. You are wasting everyone's time and money.
That's my opinion.
Q. Okay. Your opinion --
A. So don't ask me --
We're talking about your opinion here. If a
client discloses --
A. I'm not going to keep debating my opinions
with you.
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Q. A client discloses to you mental health or
healthcare information to the lawyer --
A. Mm-hmm.
Q. -- and the lawyer could use that in
representing his new client; isn't that true?
A. Okay. I'm not going to debate --
Q. You're making these statements but you don't
want, you don't want to back it up.
A. Because you keep wanting to have an argument
with me about the law.
Q. I'm not --
A. Let's do it in court.
Q. You're making these arguments that that's
not a --
A. Okay.
Q. How could Mr. O'Hare's, your prior
representation of Mr. O'Hare, how could he -- how could
you possibly use that against Mr. O'Hare in his current
litigation. You sent Mr. O'Hare to a mental healthcare
professional.
A. No, I didn't.
Q. Yes, you did.
A. I don't think, I don't think Dr. King is a
psychologist or a psychiatrist.
Q. He's a psychotherapist.
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A. He's not, he's not a mental healthcare
professional. He's a counselor.
Q. So Dr. King is not a mental, mental health --
A. I don't -- I wouldn't use that term for him.
I don't think he's a psychiatrist --
Q. What do you call him?
A. -- or a psychologist.
Q. What would you call him?
A. I'd call him a counselor.
Q. Okay. He doesn't provide mental healthcare
services?
A. That's a conclusion I can't even reach. I
don't know.
Q. Well, you've --
A. I've never seen --
Q. -- you've made the conclusion before when you
referred people to him.
A. He's --
Q. You talked about the daughter of somebody
that had anorexia --
A. Right.
Q. -- or wasn't eating.
A. Yeah.
Q. That's not a mental health issue?
A. No, but he sends people to various doctors
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and to professionals and rehab, and he's been involved
in putting people in rehab, sending them to eating
disorder people, psychiatrists. He works with
psychologists. He's done anger management classes.
He's done all kinds of counseling.
Q. Okay.
A. I don't know that I would call him a mental
health professional. I mean, you could call him that I
guess. I don't know the definition.
What I'm suggesting to you, Mark, is that I
don't think your motion is bona fide. This isn't the
place to discuss that. Let's try it before the judge.
You think it's going to take three hours. I think it's
going to take 30 -minutes.
Q. 30 minutes after a five hour deposition?
A. Listen, we'll, we'll --
THE REPORTER: I'm sorry?
THE WITNESS: We'll discuss this some other
time. I've given you my, my opinion. I'm sitting
here answering your questions about my involvement
in 1998.
BY MR. HANNA:
Q. Which you --
A. That you --
Q. -- you have no recollection of having any
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involvement; that's right?
A. I had -- I don't remember Mr. O'Hare at all.
Q. You don't remember referring Mr. O'Hare to
Heath King?
A. That's the fourth time you've asked me that
question.
Q. Yes. Do you remember referring Mr. O'Hare to
Heath King?
A. I do not remember ever talking to Mr. O'Hare.
I don't remember ever meeting him. And what I've said
to you, on at least three occasions is, it was my, it
has been my practice, since at least 25 years ago, that
for any number of reasons I have, I have recommended 50
to a hundred, maybe more than a hundred people, that if
they have any kind of issue at all that involves
anything, emotional, social, interpersonal, that I,
that I give them his name. And I have been, you
know --
That, that has been your answer three or four
times.
My question is, do you recall specifically
referring Chris O'Hare to Heath King?
A. Okay.
Q. Not speculating on what you have done with
other people. I'm talking about this specific
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Page 96
instance. Do you remember; yes or no?
A. Let me, let me try again. Let me try again.
No for the third or fourth time to that exact answer.
And what I'm going to do, at the end of the deposition,
is I'm going to have an associate make a list of every
time you've asked the same question, and then we'll ask
the judge whether or not I should get fees for being
here.
Q. Typical, the threatening.
A. I'm not threatening. I'm saying that's what
I'm going to do. Because you don't understand that
you're asking the same --
Q. Because you editorialize every time someone
asks you a yes or no question?
A. We're here, we're here at 20 of two. I've
told you no, but I've told you also that if Mr. O'Hare
says that I recommended Heath King to him, that's
likely true. Because that would be very consistent
with my pattern of practice. And as I said to you and
him prior to this depo, and I've said twice in this
depo, the fact that he says that makes me believe that
he and I discussed Heath King and that I recommended
Heath King for some reason.
Q. What about the fact that Mr. O'Hare says that
you discussed his mental health and issues that were
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Page 97
going on in his life?
A. I don't have any recollection of that at all.
And, and I -- I don't.
Q. So you believe part of it but not all of it?
MS. O'CONNOR: Objection. Mischaracterizes
his testimony.
THE WITNESS: I'm speculating. I'm
speculating. I have, I have no recollection at all
of Mr. O'Hare or speaking to him. So I'm
speculating that what he said about Heath King is
accurate.
MR. HANNA: Let's take a quick break.
THE WITNESS: Okay.
(Off the record).
MR. HANNA: One last inquiry.
MR. O'HARE: Are we back on the record?
MR. HANNA: Yeah.
MR. O'HARE: Okay.
BY MR. HANNA:
Q. Do you have a situation with Delray Beach, or
Deerfield Beach, the Deerfield Beach Club?
A. I have a lawsuit, yes, I'm representing.
Q. What does that involve?
A. It's a matter of public record. There's a
lawsuit pending regarding land use of oceanfront
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property.
Q. Is there any --
A. It's almost settled, but we're waiting for a
vote of the council to approve a settlement. There's a
stay that's been entered.
Q. Now did you put a mobile trailer on to the
property?
A. My client did, yes.
Q. Who's your client?
A. Deerfield Beach Club, LLC.
Q. Are you a member?
A. I'm, I'm a member. I think it's in a
corporation I'm the president.
Q. Okay. What was the purpose of putting the
trailer on the beach?
A. To use it. It's got paddle boards in it and
beach chairs and suntan lotion and coolers, and I think
right now my son is there with about eight of his
college friends playing volleyball and hanging out.
Q. Would you consider the parking of the trailer
to be harassment?
A. No. It's perfectly legal. It's a lawful use
of the property.
Q. Okay. So actually using, doing something
that's legal or you have a right to do wouldn't be
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Page 99
considered harassment?
A. It depends. You can -- Legal actions can be
harassment. There are things you can do that are legal
that are harassment. You're asking me a legal opinion
in certain matters, sure.
Q. How many times have you sued the, or
threatened to sue the City of Boca Raton?
A. How many times have I sued them?
Q. Or threatened to sue them.
A. I don't know. In terms of actually suing
them... I sued them in the Emil Dancui case. I sued
them in a land use case in the '90s that I, that I got
a summary judgment from Judge Baker on involving the
redevelopment of Palmetto Park Road.
Most of the time I've litigated with them
they've been the plaintiff, eminent domain. How many
times have I sued them, other than those two... Land
use, other land use cases? I can't think of any other
cases where I've sued them other than those two.
Q. Were those multiple clients or a single
client?
A. The case, the case that we got a summary
judgment before Moses Baker in 1998 or whatever that
changed the land use on Boca Raton Road was a two
plaintiffs case.
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Page 100
Q. What percentage of your, of the lawsuits that
you have handled, how many would you say that were
against a government body?
A. What percentage?
Q. Yeah.
A. Five.
Q. Five percent. Over the years?
A. Yeah.
Q. Okay.
A. Maybe less. The adage is you don't sue City
Hall unless you can win.
Q. That question was how many times you've sued,
percentage that you've actually sued, represented a
party against a government entity?
A. Against any government entity?
Q. Yeah.
A. I'd still say about five percent. I mean,
I -- You don't, you don't take on litigation against
governments unless you are well funded and you have a
clear claim. So I've -- You know, I'm talking about --
I mean, I have a case against Sunrise in federal court
now. I have a case that we just filed against Palm
Beach Gardens. I would say if I have a hundred cases
in my office, I never have more than five against a
government entity.
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Page 101
Q. And the other 95 percent, who are they?
A. They're commercial, general, you know, gamut
of civil litigation. But non -PI, non-domestic.
Q. Okay.
A. You're not going to ask me what I want for
Christmas?
Q. What do you want for Christmas?
A. I don't know. World peace?
Q. That's a copout answer.
A. Pretty funny. I keep telling my family
there's nothing I need but that's because I don't want
them to spend any more money.
Q. Same with me. Don't get me any gifts.
A. Please, let's stop the shopping now.
Q. Last minute gifts are usually expensive.
A. Oh, boy. I'm going to leave here and go to
the bank.
MR. HANNA: All right. I don't have anything
further.
THE WITNESS: Okay. Thank you very much. I
hope you guys have a great holiday. I'll read.
MS. O'CONNOR: He'll read.
(Proceedings were concluded at 2:34 p.m.)
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Page 102
CERTIFICATE OF OATH
STATE OF FLORIDA
COUNTY OF PALM BEACH
I, Mary Hengstler, the undersigned authority,
certify that ROBERT SWEETAPPLE personally appeared
before me and was duly sworn.
WITNESS my hand and official seal this 26th day of
January, 2015.
Agsahk
%SIR'
Mary Hengstler
Notary Public, State of Florida
My Commission #EE147085
Expires: December 23, 2015
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Page 103
C E R T I F I C A T E
THE STATE OF FLORIDA, )
COUNTY OF PALM BEACH. )
I, MARY ANN HENGSTLER, Registered
Professional Reporter, do hereby certify that I was
authorized to and did stenographically report the
foregoing deposition; and that the transcript is a true
and correct transcription of the testimony given by the
witness.
I further certify that I am not a relative,
employee, attorney or counsel of any of the parties,
nor am I a relative or employee of any of the parties'
attorney or counsel connected with the action, nor am I
financially interested in the action.
Dated this 26th day of January, 2015.
,-�na)u4, a4z"A -
MAR U
NN HENGSTL , RPR -CP
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