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Sands Pointe Ocean Beach Resort Condominium Association, Inc. v. Aelion

Florida Court of Appeals, Third District

June 6, 2018

Sands Pointe Ocean Beach Resort Condominium Association, Inc., etc., Petitioner,
v.
Isaac Aelion, et al., Respondents. Elite Parking, LLC, etc., et al., Petitioners,
v.
Susan Chapman, Respondent. Lauren Michelle Perez, et al., Petitioners,
v.
Lisa Espineira, Respondent. Homeowners Choice Property & Casualty Insurance Company, Inc., Petitioner,
v.
Raul Avila and Doxanne Avila, Respondents. Southern Oak Insurance Company, Petitioner,
v.
Kervene Gregory, Respondent. Safepoint Insurance Company, Petitioner,
v.
Maxo Mardy and Marie G. Mardy, Respondents. Cristela Investments, Inc., Petitioner,
v.
Becky L. Moore and Jack Moore, Respondents. Florida Capital Realty Luxury Inc., et al., Petitioners,
v.
Charles Lacotera, et al., Respondents. Lakeview Gardens at Miami Lakes Condominium Association, Inc., etc., Petitioner,
v.
KCC Investment Group, LLC, etc., Respondent. Charlyn Marshall, Petitioner,
v.
Luis E. Sanchez, Respondent. Edison Insurance Company, Petitioner,
v.
Alberto Loo and Ana Bernitz-Loo, Respondents. Randy Moses and Nohra Villaquiran, Petitioners,
v.
Charles Luke, Respondent. The Belle Tower Condominium, Inc., et al., Petitioners,
v.
Seema Mehta, et al., Respondents. 2020 Ponce Condominium Association, Inc., Petitioner,
v.
2020 Ponce LLC, Respondent. Sayan Condominium Association, Inc., Petitioner,
v.
Law Offices of Isaac Benmergui, P.A., Respondent. Hartford Insurance Company of the Midwest, Petitioner,
v.
Jaqueline Dutkin, Respondent. Safepoint Insurance Company, Petitioner,
v.
Quecline Pierre and Emille Pierre, Respondents. The Association for Retarded Citizens, South Florida, Inc., etc., Petitioner,
v.
Claudia Zacarias, etc., Respondent. Gloria Milagros Casquero, et al., Petitioners,
v.
Kimberly Kallstrom, Respondent. Safepoint Insurance Company, Petitioner,
v.
Madeline Jean, Respondent. Homeowners Choice Property & Casualty Insurance Company, Petitioner,
v.
Rosa Dunbar, Respondent. Safepoint Insurance Company, Petitioner,
v.
Eligio Castellanos and Isabel Siles, Respondents. Precision Healthcare, Inc., etc., Petitioner,
v.
Luis Escalera, Respondent. State of Florida and Office of the State Attorney of Miami-Dade County, Petitioners,
v.
Anthony Schehtman, Respondent. Cuba Sabor, Inc., etc., Petitioner,
v.
Traclaire Moreira, Respondent. Ford Motor Company, etc., et al., Petitioners,
v.
Concepcion Gil, Respondent. Michael Murray, Petitioner,
v.
Margarete Alves, etc., et al., Respondents.

         Not final until disposition of timely filed motion for rehearing.

          Cases of Original Jurisdiction - Prohibition. Lower Tribunal Nos. 17-2393, 17-12776, 18-630, 15-20238, 17-9595, 16-17320, 16-31754, 17-10806, 18-2576, 17-3509, 17-5970, 16-20727, 18-3930, 17-28537, 17-23745, 16-28208, 16-679, 17-29555, 17-21342, 15-24532, 17-15949, 16-14752, 15-27515, 15-6352, 17-7889, 07-46876, 15-6858

          Cole Scott & Kissane, P.A., and Scott A. Cole and Kathryn L. Ender, for petitioners.

          Panter, Panter & Sampedro, P.A., and Brett A. Panter and David Sampedro; Joel S. Perwin; VM Diaz & Partners, LLC, and Victor M. Diaz, Jr., Ailyn Popowski and Justin L. DiBiasio; Goldberg & Rosen, P.A., and Judd G. Rosen; Perry & Neblett, P.A., and David Avellar Neblett; David B. Pakula (Pembroke Pines); The Mineo Salcedo Law Firm, P.A., and John Salcedo (Davie); Mario Serralta; Neufeld Kleinberg & Pinkiert, P.A., and David A. Kleinberg; DeMahy Labrador Drake, et al., and Kenneth R. Drake and Tiya S. Rolle; Mase Tinelli Mebane & Briggs, P.A., and Curtis J. Mase and William R. Seitz; L.E. Burgess, P.A. and Laura E. Burgess; Florin Roebig, and Michael Lynn Walker (Palm Harbor); The Law Offices of Grey & Mourin, P.A., and Lourdes Rodriguez Brea; The Patino Law Firm, and Richard Patino and Nikolas Mario Salles; Waldman Barnett, P.L., and Glen H. Waldman, Eleanor T. Barnett and Jeffrey R. Lam; Phillips, Cantor & Shalek, P.A., and Gary S. Phillips (Hollywood); Lauren J. Luck; Strems Law Firm, and Cecile S. Mendizabal; Raul R. Lopez; Kelley Uustal, PLC, and Josiah Graham (Fort Lauderdale); McLuskey, McDonald & Hughes, P.A., and John E. Hughes, III; The Monfiston Firm, P.A., and Daniel L. Monfiston; The Cochran Firm, and Scott W. Leeds (Plantation); Rogers Towers, P.A., and P. Brandon Perkins (Fort Myers); Gaebe Mullen Antonelli & DiMatteo, and James S. Robertson and Elaine D. Walter; Evan Michael Feldman; Alan Goldfarb; Leeder Law, and Thomas H. Leeder (Plantation); Sivyer Barlow & Watson, P.A. and Melissa A. Giasi (Tampa), for respondents.

          Before SALTER, EMAS and LINDSEY, JJ.

          SALTER, JUDGE

         Defendants represented by a law firm (through various attorneys within that firm; collectively, the "Law Firm") in twenty-six cases (and a plaintiff in a twenty-seventh case, also represented by the Law Firm) pending in the civil division of the Miami-Dade Circuit Court, petition for writs of prohibition to prevent an incumbent judge (the "Incumbent Judge") from presiding over any further matters in those cases. The petitions are grounded on the undisputed fact that a member of the Law Firm (the "Attorney Candidate")-though an attorney who is not counsel of record for any of the petitioners-is the sole opponent of the Incumbent Judge in an upcoming judicial election.

         We have consolidated the twenty-seven petitions because of the common underlying legal issues and similar records.[1] The petitions followed the denial of motions for disqualification by the Incumbent Judge. The respondents in the consolidated cases rely on responses filed in two of the cases, to which the petitioners have filed separate replies.

         For the reasons detailed in this opinion, we deny all of the consolidated petitions based on the records before us. This opinion addresses: (1) our standard of review; (2) the legal sufficiency of the petitioner/party allegations; (3) applicable legal and ethical guidance; (4) the parties' legal arguments; and (5) the limitations of this opinion.

         I. Standard of Review

         The facts alleged in the underlying motions to disqualify the Incumbent Judge must be assumed to be true. Wall v. State, 238 So.3d 127, 143 (Fla. 2018). The legal sufficiency of a motion to disqualify is a question of law which we review de novo. Id. at 142. That review assesses the movant's compliance with a statute and a rule of judicial administration.

         Section 38.10, Florida Statutes (2018), requires that the applicant for disqualification file "an affidavit stating fear that he or she will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against that applicant or in favor of the adverse party, " and that "Every such affidavit shall state the facts and the reasons for the belief that any such bias or prejudice exists and shall be accompanied by a certificate of counsel of record that such affidavit and application are made in good faith." The procedural requirements for such a motion are further described in Florida Rule of Judicial Administration 2.330.

         Rule 2.330(d)(1), as pertinent here, requires that a party moving for disqualification demonstrate a fear that the movant "will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge[.]" (Emphasis provided).

         Additionally, Canon 3E(1) of the Florida Code of Judicial Conduct states that a judge should disqualify himself or herself in a proceeding "in which the judge's impartiality might reasonably be questioned, including but not limited to instances where (a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding." (Emphasis provided).

         II. The Parties' Allegations

         In reviewing the motions for disqualification for specific facts and fears, we consider whether the allegations "would place a reasonably prudent person in fear of not receiving a fair and impartial trial." MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1335 (Fla. 1990); Barber v. MacKenzie, 562 So.2d 755, 757 (Fla. 3d DCA 1990). Any alleged bias or prejudice must be actual, not presumptive. See, e.g., Jackson v. State, 599 So.2d 103, 107 (Fla.), cert. denied, 506 U.S. 1004 (1992).

         In the cases before us, the verified motions for disqualification evidence a common template. The body of the motion recites that: a named member of the Law Firm is the Attorney Candidate running against the Incumbent Judge; the Incumbent Judge is presiding in the pending case; and this results in "inherent prejudice or bias" by the Incumbent Judge against both the movant represented by the Law Firm and the Law Firm itself.

         The motions then address the legal authorities governing judicial disqualification, though none of these authorities address the particular facts at issue here. The verification signed by the Law Firm's client (the movant) declares that the signatory has "read the foregoing motion for disqualification, " and "the facts alleged therein are true and correct to the best of my knowledge and belief." Finally, the signatory declares, "As set forth in the Motion, I fear that I will not receive a fair trial or hearing because of the described prejudice or bias of [the Incumbent Judge]."

         Notably, there is no allegation or evidence that the Attorney Candidate is counsel of record in any of the pending cases. There is no allegation that any member of the Law Firm is associated with the Attorney Candidate's campaign (as Chair or Treasurer, for example). There is no allegation whether the Law Firm approves or disapproves of the Attorney Candidate's campaign, or whether the Law Firm itself, as a professional association, [2] has any position formally supporting the Attorney Candidate's individual decision to run for the judicial position.

         Nor does any movant describe any conduct or comment by the Incumbent Judge, whether in-court or out-of-court, alleged to evidence bias or prejudice against the party or the Law Firm in the particular case. In short, the motions allege in a conclusory way that the movants anticipate "inherent" prejudice or bias that will arise against the entire Law Firm of which the Attorney Candidate is a part.[3]

         III. Applicable Law and Ethics Opinions

         A. Case Law; Imputation to Attorney ...


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