DARIO CARNEVALE v. ROGENIA TRADING, INC., etc.

• Court: District Court of Appeal of Florida
• Decided: April 26, 2023
• Docket: 22-1970
• 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.

________________

Nos. 3D22-1970, 3D22-1999 Lower Tribunal Nos. 14-13703, 18-7447 ________________

Dario Carnevale, et al., Petitioners,

vs.

Rogenia Trading, Inc., etc., et al., Respondents.

Cases of Original Jurisdiction – Prohibition.

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

The Tome Law Firm, P.A., and Jay R. Tome (Davie), for respondents.

Roniel Rodriguez IV, P.A., and Roniel Rodriguez IV, for Michael I. Feldman, Esquire, as amicus curiae.

Before LOGUE, 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 note 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 discretion. Prohibition does not

lie unless the record clearly refutes the successor judge’s decision to deny

2 the motion.”) (citations and quotations omitted). 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.”).

Petition denied.