The hearing proceeded but the motions were denied.
“This, too, was not a close call,” Judge Ed Nicholas said during a May 3 hearing at the Manatee County Judicial Center, as he delivered his verdict on the fourth in a series of denied motions.
The motions were made by defendant John Metz in a lawsuit filed August 2017 by Bradenton Beach ex-Mayor Jack Clarke and joined by the city against six now-former board members, including Metz.
The lawsuit alleges Metz, Reed Mapes, Tjet Martin, Patty Shay and Bill and Rose Vincent — all members of city boards at the time — violated Florida’s Government-in-the-Sunshine Laws by discussing city matters at a meeting of the now-defunct grass-roots group Concerned Neighbors of Bradenton Beach.
Metz, a former planning and zoning board member, and the only defendant represented by an attorney, filed motions to compel completion of a deposition given March 20 by city attorney Ricinda Perry and to disqualify her as co-counsel in the lawsuit.
Additionally, Metz filed a motion to compel answers to interrogatories and for the award of his attorney’s fees, as well as a motion for production of documents from the city.
During the May 3 hearing, Jodi Ruberg of Kirk Pinkerton P.A. of Sarasota, representing Metz, said that more time was needed to depose Perry, since she is a “very important person in this trial, because her affidavit expresses legal and fact opinions.”
She said the defense would like another full day to depose Perry.
Attorney Robert Watrous of Sarasota, representing Clarke and the city, said the defense already spent nearly six hours deposing Perry, adding that attorney Thomas Shults asked Perry irrelevant questions during the March 20 deposition and should have more wisely used his time.
Additionally, Watrous said, when asked for more time to depose Perry, the plaintiffs agreed to three more hours.
“In this situation, I think the reason they want to set another entire full day of deposition is because of harassment,” Watrous said, adding that Metz has publicly made derogatory comments about Perry’s professional abilities and has filed five lawsuits against the city in four years.
Nicholas ordered that Perry be required to sit for three more hours of deposition.
“Mr. Shults is simply going to have to do the best that he can to focus his questions a bit more pointedly,” the judge said.
He also denied Metz’s request for compensation of his attorney’s fees.
Ruberg’s argument to disqualify Perry as co-counsel during trial included that Perry didn’t file to be co-counsel with Watrous on the suit until nine months after the suit began, on May 9, 2018, to participate in a pretrial hearing that day.
Ruberg also cited state statutes providing that Perry can’t “be both an advocate and a witness,” unless the matter being considered is uncontested or disqualification would create a hardship for the client — neither of which apply.
She said Perry will be called as a fact witness to testify about agenda items that were “reasonably foreseeable” to come before the P&Z and other city boards, as well as city documents, including the land development code and comprehensive plan.
Additionally, she cited statutes that state an attorney serving as counsel and witness could “confuse or mislead” the judge and jury.
“She should not have the benefit of testifying as a fact witness, but then the benefit of also sitting at legal counsel’s table,” Ruberg said in closing.
In rebuttal, Watrous said Perry would not be questioning witnesses or otherwise conduct litigation during the trial, but would have a seat at the counsel table to assist Watrous with the suit.
Nicholas said it is unusual for an attorney representing a particular party to be called as a witness in the matter. He said if it were a jury trial, he could understand Ruberg’s argument that it might be difficult for a jury to distinguish between Perry as a witness or as counsel, but since it is nonjury, confusion is not an issue.
He denied the motion to disqualify Perry as co-counsel in the lawsuit.
Metz also motioned to compel answers to interrogatories posed to the city but that remained insufficiently answered, according to Metz.
Watrous argued that the plaintiff had provided sufficient answers to the interrogatories, that the requested information could be found by the defense in documents already provided to them and further disclosure would violate attorney-client privilege.
“They are asking us to do their job and asking me to give a list of questions in the trial,” Watrous said. “That’s improper.”
Nicholas agreed with Watrous that relevant information, including amended answers to interrogatories filed by the city were sufficient, and denied Metz’s motion to compel.
The final motion Ruberg argued was a request for production of the full transcript, including the client-attorney portion — for a Sept. 6, 2017, shade meeting — and award of attorney fees dealing with the request.
A shade meeting allows a government body to privately meet with counsel to discuss litigation strategy, settlement negotiations or expenditures. The meeting is publicly noticed and is opened and closed in an open meeting, with motions made during the closing session.
According to state statute, the private portion of the meeting is transcribed by a court reporter and made available to the public after the case is closed.
Ruberg claimed that the meeting was not noticed properly since Watrous’ name wasn’t listed on the written notice of the meeting, just the title of “special litigation counsel.”
She also said since the meeting involved the city — a public entity — the information from the shade meeting, including the private discussion, is public record.
Watrous responded that there was a roll call at the beginning and conclusion of the public portion of the meeting, wherein he identified himself as the special counsel, which was included in the transcript provided to the defendants.
“The notice is proper, the announcements were proper, this is a non-veiled attempt to invade attorney-client privilege, one of the most sacrosanct privileges recognized by the law,” he said.
Nicholas agreed with Watrous and denied Metz’s motion to compel and award costs.
“The request for the transcript of the shade meeting is not well-taken and is denied,” Nicholas said.
Depositions for the lawsuit are set to continue through June, with a trial planned for mid-July.
As of May 3, the lawsuit has cost the city more than $200,000.