Buy This Entire Record For
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,
Isaac Aelion, et al., Respondents. Elite Parking, LLC, etc., et al., Petitioners,
Susan Chapman, Respondent. Lauren Michelle Perez, et al., Petitioners,
Lisa Espineira, Respondent. Homeowners Choice Property & Casualty Insurance Company, Inc., Petitioner,
Raul Avila and Doxanne Avila, Respondents. Southern Oak Insurance Company, Petitioner,
Kervene Gregory, Respondent. Safepoint Insurance Company, Petitioner,
Maxo Mardy and Marie G. Mardy, Respondents. Cristela Investments, Inc., Petitioner,
Becky L. Moore and Jack Moore, Respondents. Florida Capital Realty Luxury Inc., et al., Petitioners,
Charles Lacotera, et al., Respondents. Lakeview Gardens at Miami Lakes Condominium Association, Inc., etc., Petitioner,
KCC Investment Group, LLC, etc., Respondent. Charlyn Marshall, Petitioner,
Luis E. Sanchez, Respondent. Edison Insurance Company, Petitioner,
Alberto Loo and Ana Bernitz-Loo, Respondents. Randy Moses and Nohra Villaquiran, Petitioners,
Charles Luke, Respondent. The Belle Tower Condominium, Inc., et al., Petitioners,
Seema Mehta, et al., Respondents. 2020 Ponce Condominium Association, Inc., Petitioner,
2020 Ponce LLC, Respondent. Sayan Condominium Association, Inc., Petitioner,
Law Offices of Isaac Benmergui, P.A., Respondent. Hartford Insurance Company of the Midwest, Petitioner,
Jaqueline Dutkin, Respondent. Safepoint Insurance Company, Petitioner,
Quecline Pierre and Emille Pierre, Respondents. The Association for Retarded Citizens, South Florida, Inc., etc., Petitioner,
Claudia Zacarias, etc., Respondent. Gloria Milagros Casquero, et al., Petitioners,
Kimberly Kallstrom, Respondent. Safepoint Insurance Company, Petitioner,
Madeline Jean, Respondent. Homeowners Choice Property & Casualty Insurance Company, Petitioner,
Rosa Dunbar, Respondent. Safepoint Insurance Company, Petitioner,
Eligio Castellanos and Isabel Siles, Respondents. Precision Healthcare, Inc., etc., Petitioner,
Luis Escalera, Respondent. State of Florida and Office of the State Attorney of Miami-Dade County, Petitioners,
Anthony Schehtman, Respondent. Cuba Sabor, Inc., etc., Petitioner,
Traclaire Moreira, Respondent. Ford Motor Company, etc., et al., Petitioners,
Concepcion Gil, Respondent. Michael Murray, Petitioner,
Margarete Alves, etc., et al., Respondents.
final until disposition of timely filed motion for rehearing.
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
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
SALTER, EMAS and LINDSEY, JJ.
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
consolidated the twenty-seven petitions because of the common
underlying legal issues and similar records. 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.
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.
Standard of Review
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.
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.
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).
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
The Parties' Allegations
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.
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.
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]."
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,  has any position formally
supporting the Attorney Candidate's individual decision
to run for the judicial position.
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.
Applicable Law and Ethics Opinions
Case Law; Imputation to Attorney ...