MENADA, INC., etc. v. GABRIELA AREVALO, etc.

Third District Court of Appeal
State of Florida

Opinion filed June 29, 2022.
Not final until disposition of timely filed motion for rehearing.

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Nos. 3D21-0773 & 3D21-945
Lower Tribunal No. 19-37110
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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

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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).

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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

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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

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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

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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,

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263 (Fla. 1st DCA 2021); Ming v. NS FOA, LLC, 291 So. 3d 144, 145–46

(Fla. 4th DCA 2020).

Petitions granted; orders quashed.

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