Samuel D. Rosen v. Tiffany of Bal Harbour Condominium Association, Inc.
CourtDistrict Court of Appeal of Florida
Date FiledMay 27, 2020
Docket3D20-0688
StatusPublished
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
Third District Court of Appeal
State of Florida
Opinion filed May 27, 2020.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D20-688
Lower Tribunal No. 18-21414
________________
Samuel D. Rosen,
Petitioner,
vs.
Tiffany of Bal Harbour Condominium Association, Inc.,
Respondent.
A Case of Original Jurisdiction – Prohibition.
Beighley, Myrick, Udell & Lynne, P.A., and Maury L. Udell, for petitioner.
Litchfield Cavo, LLP, and Geralyn M. Passaro and Krystal A. Acosta (Fort
Lauderdale), for respondent.
Before EMAS, C.J., and HENDON and GORDO, JJ.
PER CURIAM.
Petitioner Samuel Rosen seeks our issuance of a writ of prohibition following
the trial court’s order denying Rosen’s fourth motion to disqualify the trial judge in
the lower court case. Were we to reach the merits, we might well deny the petition
and conclude that the trial court properly denied the motion to disqualify as legally
insufficient. Instead, however, we are constrained to grant this petition. After we
issued an order directing a response to the petition, the trial judge personally 1 filed
a response which took issue with, and purported to refute, factual allegations in the
underlying motion to disqualify. In doing so, the trial judge created an adversarial
atmosphere and an independent basis for disqualification. See Gieseke v. Moriarty,
471 So. 2d 80 (Fla. 4th DCA 1985) (granting prohibition where trial judge, in filing
her own response to the Fourth District’s order to show cause why relief should not
be granted, undertook to controvert the asserted grounds for disqualification).
We grant the petition and remand for reassignment of the action below.
1
Although our standard order permits the trial judge to file a response, such a
response is rare. More to the point, on those occasions when such a response is filed,
it is ordinarily by the Circuit Court’s Office of General Counsel, or by the Attorney
General’s Office, on behalf of the trial court, and even then should not attempt to
refute the factual allegations asserted in support of the underlying motion. Masten
v. State, 159 So. 3d 996 (Fla. 3d DCA 2015); Ellis v. Henning, 678 So. 2d 825 (Fla.
4th DCA 1996). We have previously noted that in a prohibition proceeding such as
this “it is the safer practice for the judge to remain silent and let the adversarial party
supply the response.” Masten, 159 So. 3d 997 (quoting Ellis, 678 So. 2d 828).
2