Third District Court of Appeal State of Florida
Opinion filed June 29, 2022. Not final until disposition of timely filed motion for rehearing.
________________
Nos. 3D21-0773 & 3D21-945 Lower Tribunal No. 19-37110 ________________
Menada, Inc., etc., Petitioner,
vs.
Gabriela Arevalo, etc., Respondent.
Writs of Certiorari to the Circuit Court for Miami-Dade County.
Lewis Brisbois Bisgaard & Smith LLP and Todd R. Ehrenreich and David L. Luck and Stefanie R. Phillips, for petitioner.
Podhurst Orseck, P.A. and Aaron S. Podhurst and Steven C. Marks and Stephen F. Rosenthal and Kristina M. Infante; Scott M. Sandler, P.A., and Scott M. Sandler, for respondent.
Before FERNANDEZ, C.J., and SCALES and LOBREE, JJ.
LOBREE, J. Petitioner, defendant below, seeks writs of prohibition challenging
orders denying its first and second disqualification motions based on alleged
ex parte communication between respondent and the former-presiding judge
in this wrongful death case. As to the order denying the first disqualification
motion, we treat the petition for writ of prohibition as a petition for writ of
certiorari, 1 grant relief, and quash the order. We also quash the order
denying the second disqualification motion as having been entered by the
trial court in the absence of jurisdiction.
Respondent filed suit in December 2019 against petitioner for the
wrongful death of her son. The case was assigned to a circuit court judge in
Section CA-08 in the General Jurisdiction Division of the Eleventh Judicial
Circuit. The case proceeded before the judge until January 15, 2021, when,
pursuant to standard judicial rotation procedures, the judge was transferred
from the civil division to the family court division. The case then continued
before the successor judge in the civil division. In March 2021, counsel was
1 In response to our order to show cause why the matter is not moot given that the judge at issue no longer serves on the bench, petitioner represents that if we find it was entitled to disqualification, it intends to move for reconsideration of specific orders under Florida Rule of General Practice and Judicial Administration 2.330(j). In this circumstance, we exercise our authority to treat the petition for writ of prohibition as a petition for writ of certiorari. See Barber v. MacKenzie, 562 So. 2d 755, 757 (Fla. 3d DCA 1990); Pilkington v. Pilkington, 182 So. 3d 776, 778 (Fla. 5th DCA 2015).
2 contacted by the prior-presiding judge’s judicial assistant in order to schedule
a hearing on petitioner’s motion for clarification as to an order entered by
that judge before transferring out of the civil division. Petitioner objected to
the prior-presiding judge hearing the motion, asserting that the case was now
assigned to the successor judge, who had proceeded to hear matters in the
case. The judicial assistant responded that “she had been notified that the
parties had requested that [the prior judge] reassert his jurisdiction of the
case.” (Mot. Disqualify 18 ¶ 32) (emphasis in original). Petitioner then filed
its first disqualification motion, alleging that the prior-presiding judge had
engaged in improper ex parte communication with respondent’s counsel,
and that it was “never privy to any request or communication regarding any
attempt to bring this action back before a judge now serving in the Family
Division.” Id. at 9. The prior-presiding judge denied the disqualification
motion and conducted a hearing on the motion for clarification later the same
day. The first of these petitions followed.
“The standard of review of a trial judge’s determination on a motion to
disqualify is de novo.” L. Offs. of Herssein & Herssein, P.A. v. United Servs.
Auto. Ass’n, 271 So. 3d 889, 893 (Fla. 2018) (quoting Parker v. State, 3 So.
3d 974, 982 (Fla. 2009)). “The standard for determining the legal sufficiency
of a motion to disqualify is whether the facts alleged, which must be assumed
3 to be true, ‘would place a reasonably prudent person in fear of not receiving
a fair and impartial trial.’” Id. at 894 (quoting MacKenzie v. Super Kids
Bargain Store, Inc., 565 So. 2d 1332, 1335 (Fla. 1990)). “Actual bias or
prejudice need not be shown, rather it is the appearance of bias or prejudice
which requires disqualification.” State v. Oliu, 183 So. 3d 1161, 1163 (Fla.
3d DCA 2016). “For that reason, in cases addressing motions for
disqualification based on ex parte communications with a judge, the issue is
not whether an ex parte communication actually prejudices one party at the
expense of another. Instead, ‘[t]he impartiality of the trial judge must be
beyond question.’” R.J. Reynolds Tobacco Co. v. Alonso, 268 So. 3d 151,
154 (Fla. 4th DCA 2019) (quoting Rose v. State, 601 So. 2d 1181, 1183 (Fla.
1992)); see also Rose, 601 So. 2d at 1183 (“The most insidious result of ex
parte communications is their effect on the appearance of the impartiality of
the tribunal.”).
Respondent urges that the ex parte communication as alleged
concerned only the scheduling of a hearing, which fits within the
administrative exception to the prohibition on ex parte communications.
Indeed, the Florida Supreme Court held in Rose that “a judge should not
engage in any conversation about a pending case with only one of the parties
participating in that conversation. Obviously, . . . this would not include
4 strictly administrative matters not dealing in any way with the merits of the
case.” 601 So. 2d at 1183. But the simple scheduling of a hearing is not
what happened here.
Taking the facts of the disqualification motion as true, as we must, the
ex parte contact went beyond the administrative scheduling of a hearing and
ventured into merits-based communication concerning the prior-presiding
judge’s retention of this case after having been transferred out of the division,
and after the successor judge in the civil division had proceeded in the case.
To be sure, such a procedural mechanism for retaining a case after judicial
rotation to another division exits, but not without authorization from the Chief
Judge of the Eleventh Judicial Circuit or one of her designated Administrative
Judges. See Eleventh Judicial Circuit Administrative Order 08-07 (providing
that “[n]o case shall be retained or heard by a Judge when transferred to
another division” and setting forth five exceptions to the Order including “[i]n
the interest of justice and judicial economy, with the approval of the
Administrative Judges involved”). However, there is no record evidence that
any such approval was given, and none of the exceptions set forth in AO 08-
07 apply here. Thus, we find that petitioner could have “an objectively
reasonable, well-grounded fear of not receiving a fair and impartial trial,”
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Third District Court of Appeal State of Florida
Opinion filed June 29, 2022. Not final until disposition of timely filed motion for rehearing.
________________
Nos. 3D21-0773 & 3D21-945 Lower Tribunal No. 19-37110 ________________
Menada, Inc., etc., Petitioner,
vs.
Gabriela Arevalo, etc., Respondent.
Writs of Certiorari to the Circuit Court for Miami-Dade County.
Lewis Brisbois Bisgaard & Smith LLP and Todd R. Ehrenreich and David L. Luck and Stefanie R. Phillips, for petitioner.
Podhurst Orseck, P.A. and Aaron S. Podhurst and Steven C. Marks and Stephen F. Rosenthal and Kristina M. Infante; Scott M. Sandler, P.A., and Scott M. Sandler, for respondent.
Before FERNANDEZ, C.J., and SCALES and LOBREE, JJ.
LOBREE, J. Petitioner, defendant below, seeks writs of prohibition challenging
orders denying its first and second disqualification motions based on alleged
ex parte communication between respondent and the former-presiding judge
in this wrongful death case. As to the order denying the first disqualification
motion, we treat the petition for writ of prohibition as a petition for writ of
certiorari, 1 grant relief, and quash the order. We also quash the order
denying the second disqualification motion as having been entered by the
trial court in the absence of jurisdiction.
Respondent filed suit in December 2019 against petitioner for the
wrongful death of her son. The case was assigned to a circuit court judge in
Section CA-08 in the General Jurisdiction Division of the Eleventh Judicial
Circuit. The case proceeded before the judge until January 15, 2021, when,
pursuant to standard judicial rotation procedures, the judge was transferred
from the civil division to the family court division. The case then continued
before the successor judge in the civil division. In March 2021, counsel was
1 In response to our order to show cause why the matter is not moot given that the judge at issue no longer serves on the bench, petitioner represents that if we find it was entitled to disqualification, it intends to move for reconsideration of specific orders under Florida Rule of General Practice and Judicial Administration 2.330(j). In this circumstance, we exercise our authority to treat the petition for writ of prohibition as a petition for writ of certiorari. See Barber v. MacKenzie, 562 So. 2d 755, 757 (Fla. 3d DCA 1990); Pilkington v. Pilkington, 182 So. 3d 776, 778 (Fla. 5th DCA 2015).
2 contacted by the prior-presiding judge’s judicial assistant in order to schedule
a hearing on petitioner’s motion for clarification as to an order entered by
that judge before transferring out of the civil division. Petitioner objected to
the prior-presiding judge hearing the motion, asserting that the case was now
assigned to the successor judge, who had proceeded to hear matters in the
case. The judicial assistant responded that “she had been notified that the
parties had requested that [the prior judge] reassert his jurisdiction of the
case.” (Mot. Disqualify 18 ¶ 32) (emphasis in original). Petitioner then filed
its first disqualification motion, alleging that the prior-presiding judge had
engaged in improper ex parte communication with respondent’s counsel,
and that it was “never privy to any request or communication regarding any
attempt to bring this action back before a judge now serving in the Family
Division.” Id. at 9. The prior-presiding judge denied the disqualification
motion and conducted a hearing on the motion for clarification later the same
day. The first of these petitions followed.
“The standard of review of a trial judge’s determination on a motion to
disqualify is de novo.” L. Offs. of Herssein & Herssein, P.A. v. United Servs.
Auto. Ass’n, 271 So. 3d 889, 893 (Fla. 2018) (quoting Parker v. State, 3 So.
3d 974, 982 (Fla. 2009)). “The standard for determining the legal sufficiency
of a motion to disqualify is whether the facts alleged, which must be assumed
3 to be true, ‘would place a reasonably prudent person in fear of not receiving
a fair and impartial trial.’” Id. at 894 (quoting MacKenzie v. Super Kids
Bargain Store, Inc., 565 So. 2d 1332, 1335 (Fla. 1990)). “Actual bias or
prejudice need not be shown, rather it is the appearance of bias or prejudice
which requires disqualification.” State v. Oliu, 183 So. 3d 1161, 1163 (Fla.
3d DCA 2016). “For that reason, in cases addressing motions for
disqualification based on ex parte communications with a judge, the issue is
not whether an ex parte communication actually prejudices one party at the
expense of another. Instead, ‘[t]he impartiality of the trial judge must be
beyond question.’” R.J. Reynolds Tobacco Co. v. Alonso, 268 So. 3d 151,
154 (Fla. 4th DCA 2019) (quoting Rose v. State, 601 So. 2d 1181, 1183 (Fla.
1992)); see also Rose, 601 So. 2d at 1183 (“The most insidious result of ex
parte communications is their effect on the appearance of the impartiality of
the tribunal.”).
Respondent urges that the ex parte communication as alleged
concerned only the scheduling of a hearing, which fits within the
administrative exception to the prohibition on ex parte communications.
Indeed, the Florida Supreme Court held in Rose that “a judge should not
engage in any conversation about a pending case with only one of the parties
participating in that conversation. Obviously, . . . this would not include
4 strictly administrative matters not dealing in any way with the merits of the
case.” 601 So. 2d at 1183. But the simple scheduling of a hearing is not
what happened here.
Taking the facts of the disqualification motion as true, as we must, the
ex parte contact went beyond the administrative scheduling of a hearing and
ventured into merits-based communication concerning the prior-presiding
judge’s retention of this case after having been transferred out of the division,
and after the successor judge in the civil division had proceeded in the case.
To be sure, such a procedural mechanism for retaining a case after judicial
rotation to another division exits, but not without authorization from the Chief
Judge of the Eleventh Judicial Circuit or one of her designated Administrative
Judges. See Eleventh Judicial Circuit Administrative Order 08-07 (providing
that “[n]o case shall be retained or heard by a Judge when transferred to
another division” and setting forth five exceptions to the Order including “[i]n
the interest of justice and judicial economy, with the approval of the
Administrative Judges involved”). However, there is no record evidence that
any such approval was given, and none of the exceptions set forth in AO 08-
07 apply here. Thus, we find that petitioner could have “an objectively
reasonable, well-grounded fear of not receiving a fair and impartial trial,”
Rodgers v. State, 948 So. 2d 655, 673 (Fla. 2006), and conclude that
5 disqualification was appropriate. We therefore grant the petition and quash
the order denying petitioner’s first disqualification motion.
The prior-presiding judge also denied petitioner’s second
disqualification motion, which alleged that the judge had improperly
commented on the merits of the first disqualification motion at the hearing on
the motion for clarification. See, e.g., Stelzer v. Chin, 987 So. 2d 785, 785-
86 (Fla. 3d DCA 2008) (stating rule that trial court exceeds proper scope of
inquiry on motion to disqualify by addressing merits of motion). The denial
was entered one day after we had entered an order to show cause that
stayed proceedings in the trial court. See Fla. R. App. P. 9.100(h) (“In
prohibition proceedings, the issuance of an order directing the respondent to
show cause shall stay further proceedings in the lower tribunal.”). Because
the trial court lacked jurisdiction to enter an order while our stay was in place,
the order is a nullity. Dragomirecky v. Town of Ponce Inlet, 891 So. 2d 633,
634 (Fla. 5th DCA 2005) (“[A]n order entered without jurisdiction is a nullity,
and cannot be considered harmless error.”). Accordingly, we also grant the
second petition and quash the order denying petitioner’s second motion for
disqualification. See Webking v. Webking, No. 1D21-3496, 2022 WL
2187210 (Fla. 1st DCA June 17, 2022); Stokes v. Jones, 317 So. 3d 262,
6 263 (Fla. 1st DCA 2021); Ming v. NS FOA, LLC, 291 So. 3d 144, 145–46
(Fla. 4th DCA 2020).
Petitions granted; orders quashed.