Filing # 106710408 E-Filed 04/27/2020 09:12:36 AM

IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE
COUNTY, FLORIDA

CIRCUIT CIVIL DIVISION

CASE NO.: 19-30366 CA-01 (06)

STEVEN MIRO,

Plaintiff(s),
CITY OF MIAMI’S
vs. RESPONSE TO NON-PARTY’S
MOTION FOR SANCTIONS AGAINST
CITY OF MIAMI, CITY OF MIAMI AND ITS COUNSEL

Defendant(s).
_________________________________/

The Defendant, CITY OF MIAMI (“CITY”), pursuant to Fla. Stat. 57.105, hereby responds

to the Non-Party’s motion for Sanctions Against City of Miami and its Counsel, and as grounds

therefore states:

FACTS

1. The City filed an Emergency Motion to Disqualify David Winker, Esq from Representing

Former City Employee Tanja Quintana on March 6, 2020. See Ex. A, attached.

2. On the same date, Mr. David Winker, the attorney for Ms. Quintana, emailed the City and

stated the following:

I am putting all of you on notice that if this Motion is not withdrawn

immediately I will be filing a Motion to Strike and asking the court
to impose sanctions for this improper and frivolous filing.

See Ex. B, attached.

3. Mr. Winker did not attach a motion to his email, nor did he mention “57.105.”

4. On March 19, 2020, 13 days after filing its motion, the City withdrew the motion to

disqualify Mr. Winker. See Ex. C, attached.

 CASE NO.: 19-30366 CA-01 (06)

5. A week after the City filed its notice of withdraw, Mr. Winker filed a motion for sanctions

against the City and its attorneys. [D.E. 105247129, Efiled 3/20/2020 5:54:12 PM].

ARGUMENT

Florida Statute Section 57.105 permits a party to seek sanctions against another party if a

party files a pleading for the “purpose of unreasonable delay.” Sec. 57.105 (2), Fla. Stat. (2020).

Such sanction, however, may only be sought after the 21-day safe harbor period. Sec. 57.105 (4),

Fla. Stat (2020) (“A motion by a party seeking sanctions under this section must be served but may

not be filed with or presented to the court unless, within 21 days after service of the motion, the

challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or

appropriately corrected.”).

Mr. Winker’s motion fails for three reasons. First, Mr. Winker failed to service the City

with his motion. See Sec. 57.105 (4) (requiring “service of the motion.”). Mr. Winker never

attached a motion to his March 6, 2020, email nor did he even mention his intention of filing a

motion pursuant to Section 57.105. Second, Mr. Winker filed his motion a week after the City

withdrew its motion. Third, the City withdrew the motion merely 13 days after filing the motion.

Mr. Winker’s filing, therefore, fails to comply with the strict language in Section 57.105, providing

for a 21-day safe harbor position. Id. See also Davidson v. Ramirez, 970 So. 2d 855 (Fla. 3d DCA

2007) (reinforcing 21-day safe harbor requirement).

Even if the Court found that Mr. Winker abided by the plain language of Section 57.105,

the City’s motion does not lack merit nor was it done for the purpose of unreasonable delay. In

fact, the City did not want to delay the proceedings in this case which is why Ms. Tanja Quintana’s

deposition was taken on April 14, 2020. The City stands by its prior motion, and the reasons cited

Page 2 of 4
 CASE NO.: 19-30366 CA-01 (06)

therein.

WHEREFORE, the City requests that this Court deny the Non-Party Motion for Sanctions.

VICTORIA MÉNDEZ, City Attorney

KEVIN R. JONES,
Division Chief for Labor & Employment
STEPHANIE K. PANOFF
Assistant City Attorney
Attorneys for City of Miami
444 S.W. 2nd Avenue, Suite 945
Miami, FL 33130-1910
Tel.: (305) 416-1800
Fax: (305) 416-1801
Email: krjones@miamigov.com,
skpanoff@miamigov.com
Secondary Email: Yillescas@miamigov.com

By: /s/ Stephanie K. Panoff

Stephanie K. Panoff
Florida Bar No. 69214

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished to those individuals

on the attached Service List by e-mail generated by My Florida Courts E-Filing Portal this 27th

day of April, 2020.

By: /s/ Stephanie K. Panoff

Stephanie K. Panoff
Florida Bar No. 69214

Page 3 of 4
 CASE NO.: 19-30366 CA-01 (06)

SERVICE LIST

Matthew Seth Sarelson, P.A.

255 Giralda Avenue, Suite 500
Coral Gables, FL 33134
305-773-1952
msarelson@sarelson.com
Attorney for the Plaintiff

David J. Winker, Esq.

2222 SW 17th Street
Miami, FL 33145
(305) 801-8700
dwinker@dwrlc.com

Page 4 of 4
Filing # 104472125 E-Filed 03/06/2020 12:40:29 PM

IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE
COUNTY, FLORIDA

CIRCUIT CIVIL DIVISION

CASE NO.: 19-30366 CA-01 (06)

STEVEN MIRO,

Plaintiff(s),

vs.

CITY OF MIAMI,

Defendant(s).
_________________________________/

CITY OF MIAMI’S EMERGENCY MOTION TO DISQUALIFY DAVID WINKER, ESQ

FROM REPRESENTING FORMER CITY EMPLOYEE TANJHA QUINTANA/ DEMAND
FOR EVIDENTIARY HEARING AND OTHER MISCELLANEOUS RELIEF

COMES NOW THE DEFENDANT, CITY OF MIAMI (hereinafter “CITY”), by and

through the undersigned and pursuant to the Fla. R. Civ. Procedure, and hereby files this motion

to disqualify David Winker, Esq., from representing former City employee Tanjha Quintana and

moves this Honorable Court for an evidentiary hearing, order disqualifying David Winker and

other miscellaneous relief the Court deems just and proper under the circumstances. As grounds

therefore the City would state as follows:

MATERIAL FACTS IN SUPPORT OF MOTION

1. On or about June 4, 2018, Mr. Miro’s employment with the City of Miami was

terminated. Miro had been employed in Commissioner Joe Carollo’s office as a low-level aid.

2. On or about July of 2018, the City received a letter from Mr. Matthew Sarelson,

Esq., alleging that Mr. Miro was terminated because of his participation in an investigation relating

to Commissioner Carollo.
 CASE NO.: 19-30366 CA-01 (06)

3. In that same letter, Mr. Sarelson alleged that because of Mr. Miro alleged

participation in an investigation, Mr. Miro was entitled to whistleblower protection and his

termination was in violation of the applicable State laws on the matter.

4. Pursuant to the mandates of Florida Law, Mr. Sarelson requested and received a

hearing before the City’s Civil Service Board. The hearing is a required administrative step in

order to bring a whistleblower claim against the City.

5. Miro’s chief claim was that he was fired for his alleged participation in an

investigation concerning Commissioner Carollo. The City’s counter to that allegation was that

Mr. Miro was fired for misconduct related to his mistreatment of the four female staff members

in the office.

6. Ms. Quintana was one of those women.

7. The Civil Service Board hearing was held over two days on or about April 2 - 3

2019.

8. From the date of Mr. Sarelson’s letter in July 18th to a certain date of in 2019, Ms.

Quintana was a City employee represented by this office and considered a client of this office.

9. During that time the undersigned as well as other lawyers in the office had

numerous attorney client sessions with Ms. Quintana (and other members of the office) where, for

over a year, our mental impressions of the claims, strategies for defense and confidential

information was shared in preparation for the defense of not only the administrative hearing but

also the present suit.

10. During the hearing Ms. Quintana, as well as other employees in Commission

Carollo’s office, testified under oath.

11. Sometime in 2019 Ms. Quintana ceased to be a City Employee.

A
Page 2 of 8
Emergency Motion
 CASE NO.: 19-30366 CA-01 (06)

12. In and around January 31, 2020, a recall committee began collecting signatures in

an effort to recall Commissioner Joe Carollo.

13. One of the primary charges in support of the recall petition is the investigation

involving Mr. Miro.

14. Mr. Miro’s allegations in the present case and the allegations in support of the recall

effort share the exact same nucleus of relevant facts.1

15. On or about March 2, 2020 the recall committee filed their petition with the City

Clerk and the petition was rejected because it was facially untimely.

16. The recall committee filed a mandamus action in this circuit to force the City and

the City Clerk to deliver the petition to the Supervisor of Elections for Miami-Dade County. See

Robert F. Piper, III, individually and as Chair of TAKE BACK OUR CITY, A Miami Political

Committee vs. The City of Miami and Todd Hannon (IOC), Case. No: 20-4799-CA-01

17. There are two lawyers advancing the mandamus claim: Juan-Carlos Planas, Esq

and David Winker, Esq.

18. The undersigned discovered that Mr. Winker had contact with Ms. Quintana (or

someone on her behalf) in the afternoon of Wednesday, March 4, 2020 2, as the undersigned was

attempting to prep Ms. Quintana 3 for her deposition, which is currently scheduled for Monday

March 9, 2020 at 2 p.m.

1
Mr. Miro is actively participating in the recall efforts and is potentially on the recall committee.
2
The undersigned and Mr. Winker only had cursory discussions about this matter because Mr.
Winker indicated that he was “running into a meeting” but that he would get back to the
undersigned concerning the City’s effort to speak to Ms. Quintana. Ms. Winker has not returned
the City’s telephone calls.
3
As a matter of course the City continues to represent former City employees even after there
separation so long at the reason for the separation was unrelated to the pending action-especially
if the separation occurs in the middle of the litigation as it did here.

Page 3 of 8
Emergency Motion
 CASE NO.: 19-30366 CA-01 (06)

19. At the time of the initial phone call, the undersigned did not know that Mr. Winker

was the lawyer for the recall committee. The undersigned did not discover the connection until

later that evening.

20. After the discovery of Mr. Winker’s representation of the recall committee, the

undersigned attempted to contact him on Thursday, March 5, 2020. Those attempts included

multiple emails requesting a conference call be set up and a follow up phone call to his office.

21. Mr. Winker spoke to the undersigned’s assistant, acknowledged the efforts to speak

to him and responded, “Ill get back to you.”

22. Finally, the undersigned called Mr. Winker from his cell phone on or around 2 p.m.

on Thursday and received a text response, “Ill call you later.”

23. By the time this motion was filed, Mr. Winker has failed to materially respond to

any of the City’s efforts to speak to him.

24. Mr. Winker filed a notice of appearance last night at 7:30 p.m.

25. Mr. Sarelson was contacted about this issue on Thursday March 5, 2020.

26. From these facts, the undersigned has to ask the following the question:

“Out of over 100,000 Florida Bar members available for Ms. Quintana’s representation

how does she find her way to Mr. Winker days before her deposition?”

MEMORANDUM OF LAW

In State Farm Mutual Automobile Insurance Company v. K.A.W., 575 So. 2d 630, 634 (Fla.

1991), the Florida Supreme Court set out the standard to determine when an attorney should be

disqualified for having a conflict of interest in a case. The F.S.C. held that counsel may be

disqualified upon showing:

Page 4 of 8
Emergency Motion
 CASE NO.: 19-30366 CA-01 (06)

(1)An attorney/client relationship existed, thereby giving rise to

an irrefutable presumption that confidences were disclosed
during the relationship, and (2) the matter in which the law firm
subsequently represented the interest adverse to the former client
was the same or substantially related to the matter in which it
represented the former client.

K.A.W., 575 So. 2d at 634. Such disqualification may be raised by opposing counsel during

litigation. Id.; see also In In re Gopman v. Gopman, 531 F. 2d 262, 265 (5th Cir. 1976) (holding

Government had standing to challenge conflict of interest of union counsel, stating “When an

attorney discovers a possible ethical violation concerning a matter before a court, he is not only

authorized but is in fact obligated to bring the problem to the court’s attention.”)

In K.A.W., the law firm at issue represented a plaintiff in a personal injury action and had

previously represented a named defendant in the same personal injury action. K.A.W., 575 So. 2d

at 631. The Court held that the insurance company co-defendant had standing to seek

disqualification and granted such request because the law firm “was in the position to use

confidential information gained during the course of the prior representation…in the subsequent

action.” Gibson, 884 So. 2d at 1050 (referring to K.A.W. holding). The Court relied on Rule 4-1.9,

which provides:

A lawyer who has formerly represented a client in a matter

shall not thereafter:
(a) Represent another person in the same or a substantially
related matter in which that person's interests are materially
adverse to the interests of the former client unless the former
client consents after consultation; or
(b) Use information relating to the representation to the
disadvantage of the former client except as rule 4–1.6 would
permit with respect to a client or when the information has
become generally known.

K.A.W., 575 So. 2d at 632. The Court discussed the importance of Rule 4-1.9, stating, “[o[ur legal

system cannot function fairly or effectively if an attorney has an informational advantage in the

Page 5 of 8
Emergency Motion
 CASE NO.: 19-30366 CA-01 (06)

form of confidences gained during a former representation of his client’s current opponent.” Id.

Thus, the plaintiff firm’s continued representation called into question the fair or efficient

administration of justice. Id.

The Court also held that the party raising disqualification is not required to show proof of

prejudice. Id. At 634. Further, there is an irrefutable presumption that confidences were disclosed

between an attorney and his/her client once it has been established an attorney/client relationship

existed. Anderson Trucking Service Inc. v. Gibson, 884 So. 2d 1046, 1049 (Fla. 5th DCA 2004).

Lastly, it is the perception of impropriety, and not necessarily a showing of impropriety, that is

important. General Accident Insurance Co. v. Borg-Wagner Acceptance Corp., 483 So. 2d 505

(Fla. 4th DCA 1986). In other words, how much of an advantage one party may gain over the other

cannot be measured, but the possibility that it exists requires disqualification. Id. (disqualifying

firm for inadvertently receiving privileged work product via email from court); see also Double T

Corp. vs. Jalis Development, 682 So. 2d 1160 (Fla. 5th DCA 1996) (disqualifying attorney who

gained access to other party’s attorney-client privilege).

In this case, there is no question that the City represented Ms. Quintana during her

employment with the City. Southern Bell Telephone and Telegraph Co. vs. Deason, 632 So. 2d

1377 (Fla. 1994) (setting standard of attorney/client privilege between corporation’s attorney and

employees). Further, the City’s prior representation of Ms. Quintana is from this same case.

Ms. Quintana, along with three other females, made a complaint regarding the Plaintiff’s

hostile and offensive conduct toward them. Mr. Miro was terminated as a result of their complaints.

Ms. Quintana, as well as the other females, were thereafter witnesses in this case before the Civil

Service Board proceeding, the proceeding the Plaintiff was required to file prior to filing this

Page 6 of 8
Emergency Motion
 CASE NO.: 19-30366 CA-01 (06)

instant action. At all times during these proceedings, Ms. Quintana was represented by the City of

Miami.

WHEREFORE, the City requests the Court grant this motion in all respects and grant the

following relief:

1. Grant an evidentiary hearing into this matter;

2. Issue an order disqualifying Mr. Winker as counsel for Ms. Quintana;

3. To the extent Ms. Quintana requires alternate counsel, grant a delay of Ms. Quintana’s deposition

until a time when she can obtain new counsel;

4. Any other relief deemed just and appropriate by this Court.

VICTORIA MÉNDEZ, City Attorney

KEVIN R. JONES,
Division Chief for Labor & Employment
Attorneys for City of Miami
444 S.W. 2nd Avenue, Suite 945
Miami, FL 33130-1910
Tel.: (305) 416-1800
Fax: (305) 416-1801
Email: krjones@miamigov.com
Secondary Email: Yillescas@miamigov.com

By: //S Kevin R. Jones ___________

Kevin R. Jones
Florida Bar No. 0119067

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished to those individuals

on the attached Service List by e-mail generated by My Florida Courts E-Filing Portal this 6th day

of March, 2020.

By: //S Kevin R. Jones ___________

Kevin R. Jones
Florida Bar No. 0119067

Page 7 of 8
Emergency Motion
 CASE NO.: 19-30366 CA-01 (06)

SERVICE LIST

Matthew Seth Sarelson, P.A.

255 Giralda Avenue, Suite 500
Coral Gables, FL 33134
305-773-1952
msarelson@sarelson.com
Attorney for the Plaintiff

David J. Winker, Esq.

2222 SW 17th Street
Miami, FL 33145
(305) 801-8700
dwinker@dwrlc.com

Page 8 of 8
Emergency Motion
From: David Winker
To: Mendez, Victoria; Jones, Kevin R.
Cc: Illescas, Yolanda; Panoff, Stephanie K.; Fernandez, Stephanie M
Subject: Demand to withdraw improper Motion in STEVEN MIRO vs CITY OF MIAMI
Date: Friday, March 6, 2020 2:38:03 PM
Attachments: Emergency Motion.pdf

CAUTION: This is an email from an external source. Do not click links or open attachments
unless you recognize the sender and know the content is safe.
Victoria and Kevin:

I am in receipt of the attached Emergency Motion to disqualify me from representing Tanjha

Quintana.

I am putting all of you on notice that if this Motion is not withdrawn immediately I will be
filing a Motion to Strike and asking the court to impose sanctions for this improper and
frivolous filing.

The "argument" that I have a conflict of interest is non-sensical and obviously intended for the
purpose of delay.

The City is not acting in good faith and wasting the court's time.  This is nothing more than a
disguised Motion for Protective Order masquerading as a Motion to Disqualify in an attempt
to prevent my client from being represented by counsel of her choice.

David Winker, Esq.

305 801 8700

---------- Forwarded message ---------

From: <eservice@myflcourtaccess.com>
Date: Fri, Mar 6, 2020, 12:41 PM
Subject: SERVICE OF COURT DOCUMENT CASE NUMBER 132019CA030366000001
STEVEN MIRO vs CITY OF MIAMI
To:

Notice of Service of Court Documents

Filing Information

Filing #: 104472125
Filing
03/06/2020 12:40:29 PM ET
Time:
Filer: Kevin R. Jones Esq. 305-416-1800
Court: Eleventh Judicial Circuit in and for Miami-Dade County, Florida
Case #: 132019CA030366000001
Court Case
2019-030366-CA-01
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Title File
Emergency Motion Emergency Motion.pdf

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N/A Yillescas@miamigov.com
David J Winker dwinker@dwrlc.com
davidjwinker@gmail.com
davidjwinker@gmail.com
Kevin R. Jones Esq. Krjones@miamigov.com
Yillescas@miamigov.com
Matthew Seth Sarelson P.A. P.A. msarelson@sarelson.com
Stephanie K. Panoff skpanoff@miamigov.com
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Filing # 105130210 E-Filed 03/19/2020 09:39:53 AM

IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE
COUNTY, FLORIDA

CIRCUIT CIVIL DIVISION

CASE NO.: 19-30366 CA-01 (06)

STEVEN MIRO,

Plaintiff(s),

vs.

CITY OF MIAMI,

Defendant(s).
_________________________________/

THE CITY OF MIAMI’S NOTICE OF VOLUNTARY WITHDRAWAL OF ITS MOTION TO

DISQUALIFY MR. DAVID WINKER, ESQ FROM REPRESENTING FORMER CITY
EMPLOYEE TANJHA QUINTANA DURING THESE PROCEEDINGS

COMES NOW The Defendant, CITY OF MIAMI (“CITY”), by and through undersigned

counsel, and hereby withdraws its previous Motion to Disqualify Mr. David Winker, Esq., and as

grounds therefore states:

The City stands behind its previous motion on this matter but instead of litigating an

ancillary matter related to a potential conflict, the City wishes to litigate the case on the facts

alleged in the Complaint. The City, therefore, prefers to move forward to trial on the merits and

as such withdrawals its motion to disqualify Mr. David Winker, Esq. The City requests this matter

be set for trial as soon as practical.

VICTORIA MÉNDEZ, City Attorney

KEVIN R. JONES,
Division Chief for Labor & Employment
Attorneys for City of Miami
444 S.W. 2nd Avenue, Suite 945

C
 CASE NO.: 19-30366 CA-01 (06)

Miami, FL 33130-1910
Tel.: (305) 416-1800
Fax: (305) 416-1801
Email: krjones@miamigov.com
Secondary Email: Yillescas@miamigov.com

By: //S Kevin R. Jones ___________

Kevin R. Jones
Florida Bar No. 0119067

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished to those individuals

on the attached Service List by e-mail generated by My Florida Courts E-Filing Portal this 19th

day of March, 2020.

By: //S Kevin R. Jones ___________

Kevin R. Jones
Florida Bar No. 0119067

Page 2 of 3
1309225
 CASE NO.: 19-30366 CA-01 (06)

SERVICE LIST

Matthew Seth Sarelson, P.A.

255 Giralda Avenue, Suite 500
Coral Gables, FL 33134
305-773-1952
msarelson@sarelson.com
Attorney for the Plaintiff

David J. Winker, Esq.

2222 SW 17th Street
Miami, FL 33145
(305) 801-8700
dwinker@dwrlc.com

Page 3 of 3
1309225