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JJN FLB, LLC v. CFLB Partnership, LLC

Florida Court of Appeals, Third District

November 6, 2019

JJN FLB, LLC, Petitioner,
v.
CFLB Partnership, LLC, et al., Respondents. JJN FLB, LLC, et al., Petitioners,
v.
CFLB Partnership, LLC, Respondent. Bilzin Sumberg Baena Price & Axelrod, LLP, Petitioner,
v.
The Cantor Group Law P.A., et al., Respondents.

         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 ...


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