Third District Court of Appeal
State of Florida
Opinion filed December 2, 2020.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1328
Lower Tribunal Nos. 16-1219 & 14-13703
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The Shir Law Group, P.A., et al.,
Petitioners,
vs.
Dario Carnevale, Esq., et al.,
Respondents.
A Case of Original Jurisdiction – Prohibition.
ADR Miami, LLC, and Juan Ramirez Jr.; Robert E. Menje, PLLC, and Robert
E. Menje (Pembroke Pines), for petitioners.
Kozyak Tropin & Throckmorton, LLP, and Javier A. Lopez, Tal J. Lifshitz,
and John I. Criste, Jr., for respondents.
Before EMAS, C.J., and LOGUE and HENDON, JJ.
LOGUE, J.
In this case’s fourth interlocutory appearance in this Court, 1 Petitioners The
Shir Law Group, P.A., Guy M. Shir, Esq., and Stuart J. Zoberg, Esq. (collectively,
“the Shir Lawyers”), seek a writ of prohibition to disqualify the trial judge from
further presiding over this action.
The Shir Lawyers argue they have a well-founded fear that the trial judge will
not be fair and impartial based upon certain comments made by the judge. The
comments were made during a two-day evidentiary hearing on their opponents’
claim that the Shir Lawyers committed perjury in responding to an interrogatory.
In a motion to the trial court, the Shir Lawyers claimed knowledge of the
redacted, confidential parts of a settlement agreement that they had unsuccessfully
attempted to obtain through discovery. The interrogatory at issue asked the source
of their knowledge. In their answer, the Shir Lawyers identified the source as their
trial lawyer and asserted the attorney client privilege. At the hearing, after Mr. Shir
and Mr. Zoberg had completed their testimony, but while several other witnesses
remained to be called, the trial court made the following comments to the Shir
Lawyers’ counsel:
1
See Shir Law Grp., P.A. v. Carnevale, 45 Fla. L. Weekly D1575 (Fla. 3d DCA July
1, 2020) (denying the Shir Lawyers’ petition for prohibition to disqualify the trial
judge); Shir Law Grp., P.A. v. Carnevale, 302 So. 3d 349 (Fla. 3d DCA 2019)
(denying the Shir Lawyers’ emergency petition for prohibition to disqualify the trial
judge); Shir Law Grp., P.A. v. Carnevale, 271 So. 3d 152, 155 (Fla. 3d DCA 2019)
(granting the Shir Lawyers’ petition to quash carte blanche discovery order).
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[G]etting back to your last statement, I am troubled by the fact
that your client would testify to having knowledge of what can only be
construed as part of what is contained in the unredacted settlement
agreement from [a female attorney for a third party]. Yet, there is a
sworn statement where he says it is attorney-client privilege. She does
not represent him.
Secondly, there is testimony that he just stated that any
information that he had regarding that document or the terms thereof
came from conversations with you as his attorney. So that alone makes
me question the veracity and truthfulness of his testimony.
I am going to continue listening to the rest of this afternoon’s
questions and I will be able to make a determination on this issue once
I hear all of the information.
The test for determining the legal sufficiency of a motion
for disqualification is whether the facts alleged would cause a reasonably prudent
person to fear that he or she could not get a fair and impartial trial. The analysis must
focus on what a reasonably prudent person would believe, not on the subjective fears
of the movant or the subjective intent of the judge. Law Offices of Herssein &
Herssein, P.A. v. United Servs. Auto. Ass’n, 229 So. 3d 408, 409 (Fla. 3d DCA
2017), approved, 271 So. 3d 889 (Fla. 2018).
The Shir Lawyers assert that the trial judge’s comments fall within the line of
authority holding that disqualification is required when the comments made by the
judge indicate that he or she has prejudged the case or is biased. See Pilkington v.
Pilkington, 182 So. 3d 776, 779 (Fla. 5th DCA 2015). Specifically, the Shir Lawyers
cite to the principle that
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[t]he judge’s commentary concerning the credibility of the petitioner .
. . , before the completion of the petitioner’s direct examination or
presentation of any witnesses in support of her case, is sufficient to
create in a reasonably prudent person a well-founded fear that she
would not receive a fair hearing before this judge.
S.S. v. Dep’t of Children & Families, 298 So. 3d 1184, 1185 (Fla. 3d DCA
2020) (citing Brown v. St. George Island, Ltd., 561 So. 2d 253, 257 n.7 (Fla. 1990)).
This line of authority, however, is tempered by a further line of cases. “While
a judge may not prejudge a case, it is well-settled that a judge may form mental
impressions and opinions during the course of hearing evidence.” Erlinger v.
Federico, 242 So. 3d 1177, 1181 (Fla. 1st DCA 2018) (citing Lukacs v. Ice, 227 So.
3d 222, 224 (Fla. 1st DCA 2017)). The comments here—made only after the two
main witnesses, Mr. Shir and Mr. Zoberg, had completed their testimony—bore
narrowly on the issue before the trial court, namely whether the Shir Lawyers had
committed perjury in their answers to the interrogatory. See Lukacs, 227 So. 3d at
224 (contrasting circumstances where disqualification was appropriate because the
comments on credibility were unnecessary to resolve the issue before the court to
circumstances where disqualification was not appropriate “where a judge’s
comments are directed to the issue the court is currently handling”).
Moreover, the trial court’s comments were coupled with the following
statement: “I am going to continue listening to the rest of this afternoon’s questions
and I will be able to make a determination on this issue once I hear all of the
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information.” Thus, the court qualified its comments with an indication that it was
withholding judgment until all evidence has been presented and considered. On
balance, a reasonably prudent person would understand that the trial court’s
comments as no more than the sharing of the sort of interim mental impressions
which are a natural part of the decision making process—and not as an indication
that the trial judge had prejudged the case. Pilkington, 182 So. 3d at 779.
Petition denied.
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