JARED SCHMELZER v. DEAN FRANKEL

• Court: District Court of Appeal of Florida
• Decided: November 24, 2021
• Docket: 21-1689
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed November 24, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1689 Lower Tribunal No. 17-25652 ________________

Jared Schmelzer, Petitioner,

vs.

Dean Frankel, Respondent.

A Case of Original Jurisdiction – Prohibition.

Cozen O'Connor, and Ralf R. Rodriguez, for petitioner.

Friedman & Friedman, P.A., and John S. Seligman and Zachary A. Friedman; Ross & Girten, and Lauri Waldman Ross, for respondent.

Before MILLER, LOBREE and BOKOR, JJ.

BOKOR, J. Petitioner Jared Schmeltzer seeks a writ of prohibition directed to the

trial judge for comments that Schmeltzer claims amount to the trial judge’s

pre-trying the case or prejudging a defense or claim. Schmeltzer challenges

several of the trial judge’s comments. We focus on a colloquy between

Schmeltzer’s trial counsel and the trial judge regarding a motion in limine in

which the trial judge expressed concern over a possible line of questioning

regarding alleged spoliation of evidence to be introduced through

engineering architect/design expert, Jason Salvin. 1

Specifically, the trial court limited the line of questioning and prohibited

Salvin from being a conduit for what the trial court considered hearsay.

Schmeltzer files an appendix highlighting what he contends are

inappropriate comments by the trial court warranting disqualification.

However, Schmeltzer does not highlight the trial court’s comments a few

pages later during the same colloquy. See generally Camacho v. Kendall

Healthcare Grp., Ltd., 872 So. 2d 922, 923 (Fla. 3d DCA 2003) (noting that

the court must review all relevant parts of the record, not just the portions

presented by petitioner). Here, reviewing the transcript a few pages after the

highlighted colloquy, the trial court expressly allowed cross-examination of

1 To the extent Petitioner cites to other portions of the hearing transcript as alternative bases for the relief requested, we deny such relief without further comment.

2 the fact witness on the very issues Schmeltzer sought to introduce through

the expert witness: “Yeah, you’re calling him a liar. If you want to do all that,

say he’s lying, I mean, I guess you could do it. I guess you could…”

The issue becomes whether Schmeltzer can have an objectively

reasonable fear he won’t get a fair trial because of the trial judge’s rulings

that limited certain expert witness testimony, while at the same time allowed

cross examination on the same issue. Because we conclude the trial court

confined its remarks to the issue pending, namely, the scope of witness

testimony and the motion in limine, any argument regarding possible bias or

prejudice was unfounded. See Camacho, 872 So. 2d at 923; see also

Lukacs v. Ice, 227 So. 3d 222, 225 (Fla. 1st DCA 2017) (“[W]here a judge’s

comments are directed to the issue the judge is currently handling, a motion

to disqualify can be denied.”); ACS 550 LLC v. Florida Laundry Servs., Inc.,

319 So. 3d 678, 679 (Fla. 3d DCA 2021) (denying prohibition and citing

cases explaining that an adverse ruling, without more, is insufficient to show

bias); Shir Law Grp., P.A. v. Carnevale, 314 So. 3d 523, 525 (Fla. 3d DCA

2020) (finding that comments which bore narrowly on the issue before the

court were insufficient to warrant disqualification based on prejudice or bias).

The trial court’s comments during the extended discussion with

counsel reflected the trial judge’s use of the hearing and the motions in limine

3 for case management and streamlining of issues for what she viewed as a

straightforward case. The court explained the rationale for its decisions but

did not prejudge the ultimate issues of the case. While emphatic, upon

review of the entire hearing, such observations or mental impressions fail to

rise to the level of legally sufficient grounds for disqualification.

Petition denied.