Matthew Gruber v. Carly A. Orshan

• Court: District Court of Appeal of Florida
• Decided: July 1, 2026
• Docket: 3D2026-0923
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed July 1, 2026. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D26-0923 Lower Tribunal No. 25-23407-FC-04 ________________

Matthew Gruber, Petitioner,

vs.

Carly A. Orshan, Respondent.

A Case of Original Jurisdiction—Prohibition and Mandamus.

Felix & Baseman, and Mark F. Baseman (Tampa), for petitioner.

Orshan, Spann & Fernandez-Mesa, and Steven P. Spann, for respondent.

Before SCALES, C.J., and GORDO and LOBREE, JJ.

SCALES, C.J. In his petition for a writ of prohibition or, in the alternative, a writ of

mandamus, Petitioner Matthew Gruber asserts that, because Respondent

Carly A. Orshan is the step-daughter of the Eleventh Judicial Circuit’s Chief

Judge and is represented by the Chief Judge’s husband’s law firm, no judge

in the circuit is able to adjudicate fairly and objectively the underlying

paternity action. In support of his petition, Petitioner points to several judges

in the circuit’s family division who have either sua sponte disqualified

themselves or granted Petitioner’s disqualification motions.

In his disqualification motions filed below (which Petitioner also served

on the circuit’s Chief Judge), Petitioner sought the recusal of the family law

division judge assigned to his case and sought either (i) the assignment of a

temporary judge by the Chief Justice of the Florida Supreme Court, or (ii) a

transfer of venue. Each assigned judge granted Petitioner’s disqualification

motion but, citing a lack of authority to do so, declined the additional relief

Petitioner sought in his motions. This petition ensued.

Petitioner seeks a writ from this Court either (i) prohibiting any judge

from the Eleventh Judicial Circuit from adjudicating the paternity case, or (ii)

compelling the circuit’s Chief Judge either to change venue or to request,

pursuant to Florida Rule of General Practice and Judicial Administration

2 2.215(b)(4),1 the Chief Justice of the Florida Supreme Court to temporarily

assign the case to a judge from another circuit. We dismiss that portion of

the petition seeking prohibition and deny that portion of the petition seeking

mandamus.

A. Prohibition

Prohibition lies as a remedy for a party to challenge an assigned

judge’s denial of a disqualification motion. JJN FLB, LLC v. CFLB P’ship,

LLC, 283 So. 3d 922, 925 (Fla. 3d DCA 2019). We have been cited no

authority, however, that supports Petitioner’s sought remedy of having this

Court issue a prohibition writ that disqualifies all of the circuit’s eighty-one

judges. Even if, below, Petitioner had sought unsuccessfully such a blanket

disqualification from a judge assigned to the case (which he has not), we are

doubtful prohibition would lie as a remedy.

For prohibition to lie, there must be no other appropriate legal remedy.

English v. McCrary, 348 So. 2d 293, 297 (Fla. 1977). And, because a party

may appeal an assigned judge’s order denying a motion for blanket

1 In relevant part, rule 2.215(b)(4) reads: “If it appears to the chief judge that the speedy, efficient, and proper administration of justice so requires, the chief judge may request the chief justice of the supreme court to assign temporarily an additional judge or judges from outside the circuit to duty in the court requiring assistance.”

3 disqualification,2 prohibition would not lie even if Petitioner had filed such an

unsuccessful motion below.

Therefore, without reaching the merits of Petitioner’s arguments, we

dismiss that portion of the petition seeking a writ from this Court disqualifying

all of the circuit’s judges. See Owens v. State, 314 So. 3d 478, 479 (Fla. 3d

DCA 2020) (dismissing prohibition petition because petitioner “had a legal

remedy in the form of a direct appeal.”).

B. Mandamus

As an alternative to prohibition, Petitioner seeks a writ of mandamus

requiring the Chief Judge to rule on those portions of his disqualification

motions either: (i) to transfer the case to another venue; or (ii) to request,

pursuant to rule 2.215(b)(4), the Chief Justice to assign a temporary judge

from outside the circuit to preside over the case. Mandamus lies only to

2 See Wickham v. State, 998 So. 2d 593, 596-97 (Fla. 2008). In Wickham, a postconviction case involving a defendant sentenced to death, Wickham filed an unsuccessful motion in the postconviction court seeking to prohibit all of the circuit’s judges from adjudicating his postconviction motion. On appeal from the trial court’s denial of Wickham’s postconviction motion, the Florida Supreme Court reversed, finding “unique and extraordinary circumstances” of potential judicial bias in its ruling that the postconviction court should have disqualified all of the circuit’s judges. 998 So. 2d at 596. Wickham, relied upon by Petitioner, is plainly distinguishable both because Wickham (unlike Petitioner) filed a motion in the lower court seeking blanket disqualification, and (unlike the instant case) because Wickham sought appellate relief, rather than prohibition.

4 compel a lower tribunal to perform a ministerial duty. Carnevale v. Shir, 390

So. 3d 717, 719 (Fla. 3d DCA 2024) (“Mandamus . . . is available as a

remedy only when the act sought to be compelled is purely ministerial. To

be purely ministerial in character means that the trial court has no room for

the exercise of discretion and its action is directed by law.”).

Consistent with and as contemplated by the applicable rules, all of

Petitioner’s disqualification motions were adjudicated by judges who had

been assigned to the underlying paternity case. See Fla. R. Gen. Prac. &

Jud. Admin. 2.330(d) and (g) (requiring that a disqualification motion be

served “on the subject judge”) and 2.330(h) and (i) (providing that

disqualification motions be adjudicated by the judge against whom

disqualification is sought). While rule 2.215(b)(4) allows a circuit’s Chief

Judge to ask the Chief Justice to assign temporary judges to a circuit, no

authority has been cited to us that a Chief Judge – who has never presided

over any portion of the case – has a ministerial duty to adjudicate a party’s

request that the Chief Judge invoke the rule (or that such a request is even

cognizable as a motion).

Similarly, while Florida Family Law Rule of Procedure 12.060(b)

provides a mechanism for the assigned judge to adjudicate a motion that

alleges the filing was made in the wrong venue, we have been cited no

5 authority that a circuit’s Chief Judge has a ministerial duty to adjudicate a

party’s request to change venue under the circumstances alleged here.

Therefore, we deny that portion of the petition seeking a writ of

mandamus to compel the Chief Judge to rule on his motions. Carnevale, 390

So. 3d at 719.

Petition dismissed in part and denied in part.