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Filing # 141170277 E-Filed 12/31/2021 10:58:53 AM
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CIVIL DIVISION
CASE NO. 18-34416 CA 01
YVETTE BONHEUR, as Personal
Representative of the Estate of LEGITIME
ELISBRUN,
Plaintiff,
v.
FLORIDA POWER & LIGHT COMPANY and
LEWIS TREE SERVICE, INC.,
Defendants.
/
DEFENDANT FLORIDA POWER & LIGHT COMPANY’S RESPONSE TO
PLAINTIFF’S MOTION FOR CASE MANAGEMENT/GUIDANCE, AND FOR
APPROPRIATE ORDERS WITH RESPECT TO DISCOVERY; MOTION TO
CONTINUE FOR PARENTAL LEAVE AND MOTION FOR SANCTIONS
Defendant FLORIDA POWER & LIGHT COMPANY (FPL) hereby files its Response to
Plaintiff’s Motion for Case Management/Guidance, and for Appropriate Orders with Respect to
Discovery; Motion to Continue any and all proceedings, events, depositions, non-emergency
hearings and/or matters in the instant action pursuant to Florida Rule of Judicial Administration
2.570. Defendant FPL also hereby files its Motion for Sanctions against Plaintiff’s counsel.
On January 1, 2020, the Supreme Court of Florida adopted the parental-leave continuance
rule which provides that generally:
[A] court shall grant a timely motion for continuance based on the
parental leave of the movant’s lead attorney in the case, due to the
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birth or adoption of a child, if the motion is made within a
reasonable time after the later of:
(1) the movant’s lead attorney learning of the basis for the
continuance; or
(2) the setting of the specific proceeding(s) or the
scheduling of the matter(s) for which the continuance is
sought…
On July 1, 2021, upon the undersigned lead counsel learning of her need for parental
leave, a Notice of Unavailability was filed with the Court and the issue as to why was discussed
multiple times with all parties subsequent thereto. See attached Notice as Exhibit A. The
Plaintiff filed nothing in response to Defense counsel’s Notice of Unavailability. Six (6) months
later in December 2021 and only one (1) month before the undersigned counsel is set for surgery
and parental leave, did Plaintiff file anything with the Court regarding counsel’s request for
parental leave. Plaintiff requested the Court’s guidance as to what was to occur during FPL Lead
Counsel’s parental leave and a hearing was held on December 14, 2021, on the matter. Your
Honor, stated at said hearing that the Court would not “trample” on case law already decided
regarding parental leave and further instructed the parties to work together on the setting of the
Plaintiff’s recently requested depositions.
Plaintiff then sent out correspondence to undersigned counsel seeking to set 4 depositions
to occur in the span of 4 weeks, which encompasses undersigned counsel’s religious holiday
season, as well as the religious holiday season and vacation of several FPL employees, including
those requested by Plaintiff.
It is also important to point out to the Court that the parties have entered into an Agreed
Trial Order signed by Your Honor. Said Order provides a fact witness cut-off date of July 8th,
2022, unless an extension is agreed to by the parties. See Exhibit B.
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Defense counsel provided Plaintiff with dates well within the AGREED trial order.
Specifically, FPL provided dates for the depositions to occur in May and June of 2022, almost 4
weeks before the fact witness discovery cut-off and 6 months before the case is set for trial in
November 2022. See email to Plaintiff’s counsel attached as Exhibit C. The dates were
unsatisfactory to Plaintiff and a second Motion for Court Guidance regarding undersigned
counsel’s parental leave was filed, which is the subject of this reply and motion.
More importantly and conveniently overlooked by Plaintiff’s counsels is what transpired
prior to Plaintiff’s seeking any Court guidance regarding parental leave and Plaintiff’s most
recent December request for depositions to occur ASAP. Below is a brief description of the
depositions being sought by Plaintiff and the history regarding the depositions:
a. William Salgado, a former FPL employee. Mr. Salgado was originally set and
noticed for deposition by Plaintiff to occur on July 20, 2021. Mr. Salgado’s
deposition, however, did not go forward, through no fault of FPL or its counsel, and
Plaintiff never re-noticed the deposition. Further, Plaintiff did not request new dates
from any party to reset the deposition until December 2021. In order to cooperate in
the litigation process and abide by the parties’ AGREED trial order and this Court’s
approval of that order, FPL provided timely dates for May and June 2022, which
Plaintiff has rejected. Instead, Plaintiff’s counsel filed its second Motion regarding
FPL lead counsel’s appropriate request for parental leave and objecting to the dates
provided for deposition.
b. Gregory Marciszewski, current FPL employee. Mr. Marciszewski’s deposition was
also previously coordinated by all parties on July 29, 2021. See emails attached as
Exhibit D dated July 29 and August 6, 2021, whereby FPL provided dates for
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September 28, 2021, and all parties agreed. Plaintiff counsel’s office replied asking
all parties to hold the date, which FPL did. However, once again, Plaintiff’s counsel
failed to notice the deposition for September 28, 2021, and failed to secure new dates
from the parties.
c. Continuation of deposition of FPL’s Corporate Representative, Iliana Rentz. Mrs.
Rentz deposition commenced on July 26 and continued on to July 27, 2021, at which
point time expired in accordance with the agreed time allotted by the parties to
conduct the deposition. On July 28, 2021, Defense lead counsel provided dates for
the continuation of the deposition. See July 28, 2021, email sent to OC attached as
Exhibit E providing dates to conclude Mrs. Rentz deposition on September 7th, 9th,
or 10th, 2021. Plaintiff’s counsel and Defense counsel then had a telephone
conversation whereby Plaintiff’s counsel rejected the opportunity to continue the
deposition of Mrs. Rentz and stated he was NOT going to recall the witness and did
not want to conclude the deposition. Mr. Brown went so far as to state that if FPL
wanted to conclude the deposition and have an opportunity to rehabilitate any portion
of the testimony, FPL would have to recall and reset the deposition of Mrs. Rentz.
d. Alvaro Maza, current FPL employee. Plaintiff’s counsel has been aware of Mr.
Maza’s involvement in this matter since July 27, 2021, and once again waited until
December 2021, (6 MONTHS after learning of the undersigned counsel’s need for
parental leave) to request Mr. Maza’s deposition and then demand that it occur in the
next 4 weeks or that another FPL attorney, who is NOT lead counsel, attend.
Nonetheless, FPL cooperated and provided dates for May and June 2022, when
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undersigned counsel returns from leave and over 1 month prior to the fact witness
discovery cut-off date outlined in the AGREED trial order discussed above.
The Supreme Court was clear in its language that the Court SHALL Grant the Parental
Leave Request/Continuance of any “proceeding or matter” in a case absent a finding a severe
prejudice. Florida caselaw is clear that it is not within Plaintiff Counsel’s purview to add
language to this or any Supreme Court’s Order. Nowhere in the language of the aforementioned
parental leave order does it state that the only continuance to be granted is that of a trial and yet
that seems to be the basis of Plaintiff’s Counsel’s entire argument. Furthermore, the Supreme
Court states in its order that if a party objects to the continuance, the objecting party must also
make prima facie showing of substantial prejudice. Plaintiff’s counsel has not provided this
court with a scintilla of evidence or even any argument as to how the Plaintiff is prejudiced by
the undersigned counsel’s parental leave. The reason for the lack of evidence is because it does
not exist. There is no substantial prejudice, or any prejudice AT ALL, to the Plaintiff, there is no
untimely delay, nor would one be created, if the Court were to deny Plaintiff’s Motion
suggesting that parental leave is not appropriate for undersigned counsel. On the contrary, it is
FPL and lead counsel who would be severely prejudiced if the Court were to determine that
parental leave does not apply to lead counsel on the case, who as stated previously, is set to give
birth on January 26, 2022.
Plaintiff’s counsel has had over 6 months to set these depositions and has failed to do so.
Most notably, in one instance Plaintiff’s counsel even denied previous opportunities provided to
counsel to conduct the depositions. Plaintiff counsels’ suggestion that another attorney from
FPL, as experienced as he/she may be, pick up the file and conduct 4 depositions in the midst of
that attorney’s own workload and considering he is not lead counsel on the file, serves only to
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harass undersigned counsel and would be prejudicial to FPL and unnecessary given the Supreme
Court’s Parental Leave Order and the status and posture of this case.
Plaintiff counsel’s flagrant disregard of the law and unprofessional insistence to
needlessly, proceed with their Motion to have Undersigned counsel’s parental leave denied, has
cost FPL and its counsel aggravation, time and money to prepare this reply and motion and
attend a hearing on the matter. Moreover, this is a clear waste of judicial economy and Plaintiff
counsels’ bad faith on the matter is evident. As such, FPL’s Motion for Monetary Sanctions as
against Plaintiff and its counsel should be Granted.
WHEREFORE, Defendant FPL requests that this Court deny Plaintiff’s Motion and
Grant FPL’s lead counsel’s request for parental leave and for sanctions.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via email
in compliance with Rule 2.516 this 31st day of December, 2021, to: Steven M. Singer, Esq.,
Steven M. Singer, PA, 7901 S.W. 6 Court, Suite 305, Plantation, FL 33324,
steven.m.singerpa@gmail.com; Joel H. Brown, Esq. and Jonathan Freidin, Esq., Freidin Brown,
PA, One Biscayne Tower, Suite 3100, 2 South Biscayne Blvd., Miami, FL 33131,
jhb@fblawyers.net; jf@fblawyers.net; mw@fblawyers.net; pleadings@fblawyers.net, Attorneys
for Plaintiffs; Michael K. Wilensky, Esq., Conroy Simberg, 3440 Hollywood Blvd., 2nd Floor,
Hollywood, FL 33021, mwilensky@conroysimberg.com, ddemarais@conroysimberg.com;
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eservicehwd@conroysimberg.com, Attorneys for Lewis Tree Service, Inc., and to all Counsel of
Record as listed in the Florida Courts E-Filing Portal.
FLORIDA POWER & LIGHT COMPANY
By: /s/ Angelica Torrents Roque
Angelica Torrents Roque, Esq.
Fla. Bar No. 0037874
Robert E. Boan, Esq.
Fla. Bar No. 353078
4200 West Flagler Street
LAW/SCS – Second Floor
Miami, FL 33134
Telephone: (305) 442-5115
Primary: angelica.roque@fpl.com
Co-Counsel: robert.boan@fpl.com
Secondary: miriam.corzo.garcia@fpl.com
Attorneys for Defendant FPL
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Preview
Filing # 141170277 E-Filed 12/31/2021 10:58:53 AM IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIVIL DIVISION CASE NO. 18-34416 CA 01 YVETTE BONHEUR, as Personal Representative of the Estate of LEGITIME ELISBRUN, Plaintiff, v. FLORIDA POWER & LIGHT COMPANY and LEWIS TREE SERVICE, INC., Defendants. / DEFENDANT FLORIDA POWER & LIGHT COMPANY’S RESPONSE TO PLAINTIFF’S MOTION FOR CASE MANAGEMENT/GUIDANCE, AND FOR APPROPRIATE ORDERS WITH RESPECT TO DISCOVERY; MOTION TO CONTINUE FOR PARENTAL LEAVE AND MOTION FOR SANCTIONS Defendant FLORIDA POWER & LIGHT COMPANY (FPL) hereby files its Response to Plaintiff’s Motion for Case Management/Guidance, and for Appropriate Orders with Respect to Discovery; Motion to Continue any and all proceedings, events, depositions, non-emergency hearings and/or matters in the instant action pursuant to Florida Rule of Judicial Administration 2.570. Defendant FPL also hereby files its Motion for Sanctions against Plaintiff’s counsel. On January 1, 2020, the Supreme Court of Florida adopted the parental-leave continuance rule which provides that generally: [A] court shall grant a timely motion for continuance based on the parental leave of the movant’s lead attorney in the case, due to the 1 birth or adoption of a child, if the motion is made within a reasonable time after the later of: (1) the movant’s lead attorney learning of the basis for the continuance; or (2) the setting of the specific proceeding(s) or the scheduling of the matter(s) for which the continuance is sought… On July 1, 2021, upon the undersigned lead counsel learning of her need for parental leave, a Notice of Unavailability was filed with the Court and the issue as to why was discussed multiple times with all parties subsequent thereto. See attached Notice as Exhibit A. The Plaintiff filed nothing in response to Defense counsel’s Notice of Unavailability. Six (6) months later in December 2021 and only one (1) month before the undersigned counsel is set for surgery and parental leave, did Plaintiff file anything with the Court regarding counsel’s request for parental leave. Plaintiff requested the Court’s guidance as to what was to occur during FPL Lead Counsel’s parental leave and a hearing was held on December 14, 2021, on the matter. Your Honor, stated at said hearing that the Court would not “trample” on case law already decided regarding parental leave and further instructed the parties to work together on the setting of the Plaintiff’s recently requested depositions. Plaintiff then sent out correspondence to undersigned counsel seeking to set 4 depositions to occur in the span of 4 weeks, which encompasses undersigned counsel’s religious holiday season, as well as the religious holiday season and vacation of several FPL employees, including those requested by Plaintiff. It is also important to point out to the Court that the parties have entered into an Agreed Trial Order signed by Your Honor. Said Order provides a fact witness cut-off date of July 8th, 2022, unless an extension is agreed to by the parties. See Exhibit B. 2 Defense counsel provided Plaintiff with dates well within the AGREED trial order. Specifically, FPL provided dates for the depositions to occur in May and June of 2022, almost 4 weeks before the fact witness discovery cut-off and 6 months before the case is set for trial in November 2022. See email to Plaintiff’s counsel attached as Exhibit C. The dates were unsatisfactory to Plaintiff and a second Motion for Court Guidance regarding undersigned counsel’s parental leave was filed, which is the subject of this reply and motion. More importantly and conveniently overlooked by Plaintiff’s counsels is what transpired prior to Plaintiff’s seeking any Court guidance regarding parental leave and Plaintiff’s most recent December request for depositions to occur ASAP. Below is a brief description of the depositions being sought by Plaintiff and the history regarding the depositions: a. William Salgado, a former FPL employee. Mr. Salgado was originally set and noticed for deposition by Plaintiff to occur on July 20, 2021. Mr. Salgado’s deposition, however, did not go forward, through no fault of FPL or its counsel, and Plaintiff never re-noticed the deposition. Further, Plaintiff did not request new dates from any party to reset the deposition until December 2021. In order to cooperate in the litigation process and abide by the parties’ AGREED trial order and this Court’s approval of that order, FPL provided timely dates for May and June 2022, which Plaintiff has rejected. Instead, Plaintiff’s counsel filed its second Motion regarding FPL lead counsel’s appropriate request for parental leave and objecting to the dates provided for deposition. b. Gregory Marciszewski, current FPL employee. Mr. Marciszewski’s deposition was also previously coordinated by all parties on July 29, 2021. See emails attached as Exhibit D dated July 29 and August 6, 2021, whereby FPL provided dates for 3 September 28, 2021, and all parties agreed. Plaintiff counsel’s office replied asking all parties to hold the date, which FPL did. However, once again, Plaintiff’s counsel failed to notice the deposition for September 28, 2021, and failed to secure new dates from the parties. c. Continuation of deposition of FPL’s Corporate Representative, Iliana Rentz. Mrs. Rentz deposition commenced on July 26 and continued on to July 27, 2021, at which point time expired in accordance with the agreed time allotted by the parties to conduct the deposition. On July 28, 2021, Defense lead counsel provided dates for the continuation of the deposition. See July 28, 2021, email sent to OC attached as Exhibit E providing dates to conclude Mrs. Rentz deposition on September 7th, 9th, or 10th, 2021. Plaintiff’s counsel and Defense counsel then had a telephone conversation whereby Plaintiff’s counsel rejected the opportunity to continue the deposition of Mrs. Rentz and stated he was NOT going to recall the witness and did not want to conclude the deposition. Mr. Brown went so far as to state that if FPL wanted to conclude the deposition and have an opportunity to rehabilitate any portion of the testimony, FPL would have to recall and reset the deposition of Mrs. Rentz. d. Alvaro Maza, current FPL employee. Plaintiff’s counsel has been aware of Mr. Maza’s involvement in this matter since July 27, 2021, and once again waited until December 2021, (6 MONTHS after learning of the undersigned counsel’s need for parental leave) to request Mr. Maza’s deposition and then demand that it occur in the next 4 weeks or that another FPL attorney, who is NOT lead counsel, attend. Nonetheless, FPL cooperated and provided dates for May and June 2022, when 4 undersigned counsel returns from leave and over 1 month prior to the fact witness discovery cut-off date outlined in the AGREED trial order discussed above. The Supreme Court was clear in its language that the Court SHALL Grant the Parental Leave Request/Continuance of any “proceeding or matter” in a case absent a finding a severe prejudice. Florida caselaw is clear that it is not within Plaintiff Counsel’s purview to add language to this or any Supreme Court’s Order. Nowhere in the language of the aforementioned parental leave order does it state that the only continuance to be granted is that of a trial and yet that seems to be the basis of Plaintiff’s Counsel’s entire argument. Furthermore, the Supreme Court states in its order that if a party objects to the continuance, the objecting party must also make prima facie showing of substantial prejudice. Plaintiff’s counsel has not provided this court with a scintilla of evidence or even any argument as to how the Plaintiff is prejudiced by the undersigned counsel’s parental leave. The reason for the lack of evidence is because it does not exist. There is no substantial prejudice, or any prejudice AT ALL, to the Plaintiff, there is no untimely delay, nor would one be created, if the Court were to deny Plaintiff’s Motion suggesting that parental leave is not appropriate for undersigned counsel. On the contrary, it is FPL and lead counsel who would be severely prejudiced if the Court were to determine that parental leave does not apply to lead counsel on the case, who as stated previously, is set to give birth on January 26, 2022. Plaintiff’s counsel has had over 6 months to set these depositions and has failed to do so. Most notably, in one instance Plaintiff’s counsel even denied previous opportunities provided to counsel to conduct the depositions. Plaintiff counsels’ suggestion that another attorney from FPL, as experienced as he/she may be, pick up the file and conduct 4 depositions in the midst of that attorney’s own workload and considering he is not lead counsel on the file, serves only to 5 harass undersigned counsel and would be prejudicial to FPL and unnecessary given the Supreme Court’s Parental Leave Order and the status and posture of this case. Plaintiff counsel’s flagrant disregard of the law and unprofessional insistence to needlessly, proceed with their Motion to have Undersigned counsel’s parental leave denied, has cost FPL and its counsel aggravation, time and money to prepare this reply and motion and attend a hearing on the matter. Moreover, this is a clear waste of judicial economy and Plaintiff counsels’ bad faith on the matter is evident. As such, FPL’s Motion for Monetary Sanctions as against Plaintiff and its counsel should be Granted. WHEREFORE, Defendant FPL requests that this Court deny Plaintiff’s Motion and Grant FPL’s lead counsel’s request for parental leave and for sanctions. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via email in compliance with Rule 2.516 this 31st day of December, 2021, to: Steven M. Singer, Esq., Steven M. Singer, PA, 7901 S.W. 6 Court, Suite 305, Plantation, FL 33324, steven.m.singerpa@gmail.com; Joel H. Brown, Esq. and Jonathan Freidin, Esq., Freidin Brown, PA, One Biscayne Tower, Suite 3100, 2 South Biscayne Blvd., Miami, FL 33131, jhb@fblawyers.net; jf@fblawyers.net; mw@fblawyers.net; pleadings@fblawyers.net, Attorneys for Plaintiffs; Michael K. Wilensky, Esq., Conroy Simberg, 3440 Hollywood Blvd., 2nd Floor, Hollywood, FL 33021, mwilensky@conroysimberg.com, ddemarais@conroysimberg.com; 6 eservicehwd@conroysimberg.com, Attorneys for Lewis Tree Service, Inc., and to all Counsel of Record as listed in the Florida Courts E-Filing Portal. FLORIDA POWER & LIGHT COMPANY By: /s/ Angelica Torrents Roque Angelica Torrents Roque, Esq. Fla. Bar No. 0037874 Robert E. Boan, Esq. Fla. Bar No. 353078 4200 West Flagler Street LAW/SCS – Second Floor Miami, FL 33134 Telephone: (305) 442-5115 Primary: angelica.roque@fpl.com Co-Counsel: robert.boan@fpl.com Secondary: miriam.corzo.garcia@fpl.com Attorneys for Defendant FPL 7