DARIO CARNEVALE v. GUY M. SHIR

• Court: District Court of Appeal of Florida
• Decided: April 26, 2023
• Docket: 22-1984
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 26, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1984 Lower Tribunal No. 16-1219 ________________

Dario Carnevale, et al., Petitioners,

vs.

Guy M. Shir, et al., Respondents.

A Case of Original Jurisdiction – Prohibition.

Squire Patton Boggs (US) LLP, and Alvin B. Davis, for petitioners.

Robert E. Menje, PLLC, and Robert E. Menje (Okeechobee), for respondents.

Before SCALES, HENDON and BOKOR, JJ.

BOKOR, J. Dario and Flavia Carnevale petition for writs of prohibition, seeking to

reverse the denial of their motions to disqualify the trial judge from presiding

over the three underlying cases. The Carnevales argue that the trial judge

exhibited bias due to certain social media postings evincing a friendly

relationship with a proposed third-party intervenor, Michael Feldman, Esq.,

and his counsel, as well as by allowing Mr. Feldman to participate in hearings

without having been formally added as a party.

Preliminarily, we hold that the motions to disqualify were properly

denied as a matter of law because the Carnevales already successfully

moved to disqualify a previous trial judge on this same basis earlier in the

litigation. A party may not seek a second disqualification of a successor

judge except in such instance where the party demonstrates actual bias or

prejudice. See Fla. R. Gen. Prac. & Jud. Admin. 2.330(i) (“If a judge has

been previously disqualified on motion for alleged prejudice or partiality

under subdivision (e), a successor judge cannot be disqualified based on a

successive motion by the same party unless the successor judge rules that

he or she is in fact not fair or impartial in the case.”). We review such a

determination under an abuse of discretion standard. See Delgado v. Miller,

48 Fla. L. Weekly D405 (Fla. 3d DCA Feb. 22, 2023) (“[A]n order denying

the disqualification of a successor judge is reviewed for an abuse of

2 discretion. Prohibition does not lie unless the record clearly refutes the

successor judge’s decision to deny the motion.”) (citations and quotations

omitted). After a thorough examination of the record, a reasonable jurist

could conclude that the allegations fail to rise to a level justifying recusal.

Accordingly, the petition for prohibition must fail. See id.

Additionally, we note that the Carnevales’ petitions contain

mischaracterizations of facts and procedural history that undermine their

claims of judicial bias and would support denial of the petitions on the merits.

Without summarizing the extensive procedural history, we note that, for

example, the petitions neglect to mention that Mr. Feldman’s attempts to

intervene were triggered by his claims that the Carnevales had proffered a

fraudulent consent judgment containing false statements about Feldman’s

and the Carnevales’ roles in relation to the underlying contract that formed

the basis for all three cases. Feldman therefore intervened to prevent the

improper allegations from negatively influencing the trial court, which could

have subjected Feldman to sanctions. Feldman and the Carnevales have

also filed competing motions for sanctions that led the trial court to defer its

ruling on the consent judgment. The trial judge was not, as the Carnevales

argue, “protecting” Feldman or “disregarding” the bifurcation of the three

cases by allowing Feldman to participate in the hearings at issue. See Wall

3 v. State, 238 So. 3d 127, 143 (Fla. 2018) (“[T]he context of the hearing and

history of the case as reflected in the record are relevant to understanding

whether a movant has a well-founded fear of judicial bias.”). Therefore,

contrary to the Carnevales’ recitation of the facts, the record reveals the trial

court made the best of a messy situation and attempted to provide notice

and an opportunity to be heard to all impacted parties. To the extent the

Carnevales—or any other party—objected to the procedure employed by the

court, the remedy does not lie in seeking to recuse or disqualify the trial

judge. See, e.g., Bodden v. State, 314 So. 3d 458, 461 (Fla. 3d DCA 2020)

(“To prevail on a petition for a writ of prohibition seeking to bar a trial judge

from presiding over a case requires more than mere disagreement with a

ruling on a given motion. This is because an adverse ruling is not a legally

sufficient ground to disqualify the trial judge.”); see also Sutton v. State, 975

So. 2d 1073, 1076–77 (Fla. 2008) (noting that prohibition, while “the proper

avenue for immediate review of whether a motion to disqualify a trial judge

has been correctly denied,” is “discretionary in nature and not a matter of

right”); Committee Notes, Fla. R. App. P. 9.100 (noting that “[a] lack of

supporting documents” to “support the allegations of fact contained in the

petition . . . may, of course, be considered by the court in exercising its

discretion not to issue an order to show cause”).

4 Petition denied.