Melissa Azrack, etc. v. John M. McDonald, etc.

• Court: District Court of Appeal of Florida
• Decided: May 10, 2024
• Docket: 2024-0642
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 10, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-0642 Lower Tribunal No. 21-2070-CP-02 ________________

Melissa Azrack, etc., Petitioner,

vs.

John M. McDonald, etc., et al., Respondents.

A Case of Original Jurisdiction – Prohibition.

The Ferraro Law Firm, and Leslie B. Rothenberg; Barry S. Franklin & Associates, P.A., and Barry S. Franklin, for petitioner.

Kluger, Kaplan, Silverman, Katzen & Levine, P.L., and Bruce A. Katzen, Lauren S. Fallick, and Madeleine E. Gross; Samson Appellate Law, and Daniel M. Samson, for respondents.

Before SCALES, LINDSEY, and MILLER, JJ.

LINDSEY, J. Before us is a petition for writ of prohibition seeking disqualification of

the trial judge. Florida Rule of General Practice and Judicial Administration

2.330(e) sets forth the grounds for a motion to disqualify. Relevant here is

the following: “the party reasonably fears that he or she will not receive a fair

trial or hearing because of specifically described prejudice or bias of the

judge . . . .” Fla. R. Gen. Prac. & Jud. Admin. 2.330(e)(1). “The judge against

whom an initial motion to disqualify under subdivision (e) is directed may

determine only the legal sufficiency of the motion and shall not pass on the

truth of the facts alleged. . . . If the motion is legally sufficient, the judge shall

immediately enter an order granting disqualification and proceed no further

in the action. Such an order does not constitute acknowledgement that the

allegations are true.” Fla. R. Gen. Prac. & Jud. Admin. 2.330(h). The test

for legal sufficiency is whether the facts alleged, taken as true, would cause

a reasonably prudent person to fear that he or she will not receive a fair trial

or hearing. See Casner v. Fury Mgmt., Inc., 324 So. 3d 1029, 1029 (Fla. 3d

DCA 2021). “[T]he standard is the reasonable effect on the party seeking

disqualification, not the subjective intent of the judge.” Id. at 1030 (quoting

Haas v. Davis, 37 So. 3d 983, 983 (Fla. 3d DCA 2010)). We take no position

on the allegations other than to acknowledge them as true for purposes of

ruling on this petition. And a trial judge’s determination similarly extends no

2 further than to do the same. Given this standard, the allegations, no matter

how inflammatory or salacious, are not necessarily a reflection on the trial

judge as they cannot be responded to, examined in the context of the

motives of the trial judge, nor challenged via cross-examination.

Accordingly, based on the record before us, we are compelled to grant

the petition, but we withhold issuance of the writ as we are confident the trial

judge will comply.

Petition granted.