Filing # 104508735 E-Filed 03/06/2020 06:07:07 PM

IN THE CIRCUIT COURT OF THE

ELEVENTH 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).

_________________________________/

DAVID WINKER, ESQ.’s MOTION TO STRIKE

THE CITY OF MIAMI’S EMERGENCY MOTION
TO DISQUALIFY DAVID WINKER, ESQ. AND
FOR SANCTIONS PURSUANT TO FLA. STAT. § 57.105

DAVID WINKER, ESQ. respectfully moves, pursuant to Fla. R. Civ. P § 1.140(f), to

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

ESQ. filed March 6, 2020 and seeks entry of an award of sanctions against the City of Miami and

its counsel of record, and states the following in support:

1. Undersigned counsel represents Tanjha Quintana (“Quintana”), who is a non-party

witness scheduled to be deposed in this case on Monday, March 8, 2020 at 2pm.

2. The City of Miami asks in its Motion to Disqualify:

“Out of over 100,000 Florida Bar members available for Ms. Quintana’s
representation how does she find her way to Mr. Winker?”

3. The answer to this question is none of the city’s business, but undersigned counsel is

a well-known and respected attorney in the city of Miami who has repeatedly and

successfully represented his client’s interests before and against the city of Miami.

4. The City is clearly upset that Quintana retained undersigned counsel and resulted in

this meritless Motion to Disqualify.

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5. The "argument" made by the City is that undersigned counsel somehow has a conflict

of interest representing Quintana as a non-party witness in a deposition because the

City’s legal department allegedly represented her in the past and the undersigned is

counsel of record in other lawsuits against the City.

6. The City of Miami’s position is devoid of legal merit, nonsensical and not supported

by Florida law.

7. The caselaw cited by the City is inapposite to the matter at hand as it stands for the

concept that a lawyer may not represent parties with interests adverse to those of a

former client if the present and previous subjects of representation are substantially

related. Of course, under that standard, undersigned counsel does not have any

conflict whatsoever in this matter.

8. The argument that the City can prevent Quintana from choosing her counsel of choice

is offensive and contrary to fundamental precepts of Florida law. The Florida

Supreme Court has held that the “special trust and confidence” inherent in the

attorney-client relationship is personal in nature and dependent on the client’s trust in

the lawyer and therefore a client’s power to choose, discharge, or replace a lawyer

borders on the absolute under Florida law. Rosenberg v. Levin, 409 So. 2d 1016,

1021 (Fla. 1982).

9. The City is not acting in good faith and wasting the time of this Court.

10. Section 57.105(1), Fla. Stat., provides:

Upon the court’s initiative or motion of any party, the court shall award a
reasonable attorney’s fee to be paid to the prevailing party in equal
amounts by the losing party and the losing party’s attorney on any claim
or defense at any time during a civil proceeding or action in which the
court finds that the losing party or the losing party’s attorney knew or
should have known that a claim or defense when initially presented to the

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 court or at any time before trial: (a) Was not supported by the material
facts necessary to establish the claim or defense; or (b) Would not be
supported by the application of then-existing law to those material facts.

11. Undersigned counsel sent to the City’s counsel of record the email attached hereto as

Exhibit A offering them the opportunity to withdraw their meritless Motion to

Disqualify, but the City continues to push forward with this meritless effort.

12. Undersigned counsel hereby requests entry of an award of sanctions against the City

and its counsel of record pursuant to Fla. Stat. § 57.105. Counsel of record for the

City knew or should have known that the claim that undersigned counsel’s

representation of his client Tanjha Quintana, a non-party witness, is a prohibited

conflict of interest is preposterous and not supported by the material facts necessary

to establish such a claim, nor supported by applicable law.

RELIEF REQUESTED

WHEREFORE, undersigned counsel request the Court grant this Motion to Strike, enter

an award of sanctions against Defendant and its counsel of record pursuant to Fla. Stat. § 57.105,

and grant such further relief the Court deems just and proper.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document is being served,

pursuant to Rule 2.516(b), Fla. R. Jud. Admin., via Florida Courts e-Filing Portal to the names

and e-mail addresses provided by all parties, counsel of record and pro se parties.

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Respectfully submitted,

By:____s./ DJW______________
David J. Winker, Esq., B.C.S.
Fla. Bar. No. 73148
David J. Winker, P.A.
2222 SW 17th St
Miami, Fl 33145
305-801-8700
dwinker@dwrlc.com

March 6, 2020

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EXHIBIT A