Not
final until disposition of timely filed motion for rehearing.
Cases
of Original Jurisdiction - Prohibition, Lower Tribunal Nos.
18-4917, 18-4923, 18-596.
Bilzin
Sumberg Baena Price & Axelrod LLP, Mitchell E. Widom, and
Raquel M. Fernandez; Kozyak Tropin & Throckmorton LLP,
Detra Shaw-Wilder, Javier A. Lopez, and Harley S. Tropin, for
petitioners.
Stearns Weaver Miller Weissler Alhadeff & Sitterson,
P.A., Alan H. Fein, and Jenea M. Reed; Zarco Einhorn
Salkowski & Brito, P.A., Colby G. Conforti, Robert M.
Einhorn, and Robert Zarco, for respondents.
Before
LOGUE, MILLER, and LOBREE, JJ.
MILLER, J.
Petitioners,
JJN FLB, LLC, 551 FLB 1, LLC, 551 FLB 2, LLC, 551 FLB 3, LLC,
551 FLB 4, LLC, FLB Hotel, LLC, FLB Restaurant, LLC, FLB
R-Units, LLC, FLB U-Units, LLC, and Bilzin Sumberg Baena
Price & Axelrod, LLP, seek writs of prohibition to
prevent the assigned trial judge from further presiding over
their civil disputes against respondents, CFLB Partnership,
LLC, CFLB Management, LLC, The Cantor Group Law P.A., Sharon
Dresser and The Estate of Steven L. Cantor, Hal J. Webb, Hal
J. Webb, P.A., Pruco Life Insurance Company, Neal Slafsky,
CPG Capital, LLC, and United Capital Financial Advisers, LLC.
All motions are grounded upon judicial findings within a
sanctions order rendered in an unrelated case. Given the
common underlying legal and factual issues, we have
consolidated the three separately-filed petitions, and for
the reasons explicated below, we grant relief.
FACTS
AND BACKGROUND
In two
of the petitions, petitioners are represented in the lower
tribunal by the law firm of Bilzin Sumberg Baena Price &
Axelrod, LLP (the "Law Firm").[1] In the remaining
petition, the Law Firm is a party to the litigation and the
General Counsel to the Law Firm has been disclosed as a
witness.
In
mid-September of 2019, after convening a multi-day
evidentiary hearing, the trial judge issued a detailed,
fifty-one-page sanctions order in an unrelated civil
case.[2] The tribunal found by clear and convincing
evidence that the Law Firm "[r]epeatedly made
unsubstantiated, false, and defamatory allegations in sealed
documents and in open court," violated the Rules of
Professional Conduct, misused attorney-client privileged
communications, and participated "in a scheme to bring
[fabricated criminal] charges."[3] The court imposed sanctions,
jointly and severally, against both the individual attorney
of record and the Law Firm.
Less
than ten days later, petitioners filed the subject
disqualification motions. See Fla. R. Jud. Admin.
2.330(e) ("A motion to disqualify shall be filed within
a reasonable time not to exceed [ten] days after discovery of
the facts constituting the grounds for the motion and shall
be promptly presented to the court for an immediate
ruling."). In their appended, incorporated affidavits,
petitioners asserted they harbored a well-founded fear that,
based upon the findings articulated within the sanctions
order in the unrelated case, they will not receive a fair
trial. The lower tribunal denied the motions and the instant
petitions ensued.
STANDARD
OF REVIEW
"[A]
writ of prohibition is the proper procedure for appellate
review to test the validity of a motion to disqualify."
Pilkington v. Pilkington, 182 So.3d 776, 778 (Fla.
5th DCA 2015) (citation omitted). We review "a trial
judge's determination on a motion to disqualify . . . de
novo." Parker v. State, 3 So.3d 974, 982 (Fla.
2009). "The standard for viewing the legal sufficiency
of a motion to disqualify is whether the facts alleged, which
must be assumed to be true, would cause the movant to have a
well-founded fear that he or she will not receive a fair
trial at the hands of that judge." Wall v.
State, 238 So.3d 127, 143 (Fla. 2018) (citation
omitted).
LEGAL
...