Full Opinion

Third District Court of Appeal State of Florida Opinion filed January 15, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-2114 Lower Tribunal No. 14-22854 ________________ Harout Samra, Petitioner, vs. Vicken Bedoyan, et al., Respondents. A Case of Original Jurisdiction – Prohibition. Homer Bonner Jacobs Ortiz, P.A., and Christopher J. King and Jose A. Ortiz; Leon Cosgrove, LLP, and Scott B. Cosgrove, for petitioner. Dorta Law, and Matias R. Dorta and Gonzalo R. Dorta, for respondent Vicken Bedoyan. Before EMAS, C.J., and FERNANDEZ and LOGUE, JJ. EMAS, C.J. INTRODUCTION Petitioner, Harout Samra, seeks issuance of a writ prohibiting the trial judge from presiding further in the underlying case, following the trial court’s order denying Samra’s motion for disqualification. We grant the petition and remand for reassignment of the case to another judge. BACKGROUND Aside from the actual causes of action being prosecuted and defended in the case below, this cause has already been the subject of substantial litigation involving Samra’s former counsel, Jose Ferrer (“Ferrer”) and Bilzin Sumberg Baena Price & Axelrod, LLP (“the Bilzin firm”). 1 Here are the brief allegations 2 necessary to place the present issue in its proper context: In 2014, Samra sued, among others, his former partner, Vicken Bedoyan, and the case proceeded to a liability-only jury trial with Judge William Thomas presiding. Samra prevailed in that phase upon a finding that Bedoyan breached a partnership agreement. As the parties prepared for the second phase—a trial on damages—the Bilzin firm filed a motion to strike Bedoyan’s pleadings based upon 1 As it is unnecessary to our disposition, we decline to reprise the entangled background and procedural history of the case below, but would refer the reader to our companion opinion in JJN FLB, LLC v. CFLB P’ship, LLC, 44 Fla. L. Weekly D2706 (Fla. 3d DCA 2019). 2 These allegations are taken from Samra’s motion to disqualify, and are accepted as true for our purposes. Sands Pointe Ocean Beach Resort Condo. Ass’n, Inc. v. Aelion, 251 So. 3d 950, 954 (Fla. 3d DCA 2018) (citing Wall v. State, 238 So. 3d 127, 143 (Fla. 2018)). 2 allegations of misconduct by Bedoyan and/or his attorneys. Bedoyan thereafter filed a motion to disqualify the Bilzin firm from the case based upon allegations of misconduct by the Bilzin firm’s lawyers. Judge Thomas held a hearing, denied the motion, and soon after disqualified himself sua sponte. The case was reassigned to Judge Butchko. Bedoyan then sought reconsideration of Judge Thomas’ order denying the motion to disqualify the Bilzin firm, and Bedoyan filed an additional motion seeking sanctions against Ferrer and the Bilzin firm for alleged misconduct. Soon thereafter, the Bilzin firm voluntarily withdrew from its representation of Samra, and Samra engaged Homer Bonner Jacobs Ortiz, P.A., to represent him in the impending damages phase trial. Notwithstanding the Bilzin firm’s withdrawal, the motion seeking sanctions against Ferrer and the Bilzin firm remained pending, and Judge Butchko proceeded to a two-day evidentiary hearing on the motion. Importantly, Samra did not attend this two-day evidentiary hearing on the motion for sanctions; in fact, Samra’s new counsel (Homer Bonner) was instructed by Judge Butchko that it could not attend the hearing.3 3 The apparent reason for this directive was the underlying claim by Bedoyan that attorney-client privileged communications had been illegally intercepted: those communications were going to be played and discussed during the hearings and, because of their privileged nature, Samra’s new counsel (and presumably Samra himself) could not be permitted to listen to the recordings or a discussion of their contents. 3 Following the evidentiary hearing, Judge Butchko issued a fifty-one-page order imposing sanctions upon Ferrer and the Bilzin firm, finding, inter alia: “privileged attorney client telephone communications were illegally intercepted without the consent of all participants and, at a minimum, highly suspicious under circumstances that should have alerted Mr. Ferrer not to use them.” Judge Butchko described the recordings as containing “suspect information acquired through suspect circumstances in bad faith” and found “that there were portions of the recordings that were altered or incomplete.” Judge Butchko concluded that the Bilzin firm had acted “in bad faith and without factual basis in an attempt to gain a tactical advantage in the action which had the effect of damaging the reputation and credibility of” opposing counsel. Samra alleges that these findings implicated Samra in the wrongdoing. Moreover, Judge Butchko held a status conference on the day the sanctions order issued and Samra alleges that, at that hearing, Judge Butchko accused Samra of engaging in “salacious,” “horrifying,” and “improper . . . maneuvers” which “derailed the case.” Shortly thereafter, Samra moved to disqualify Judge Butchko from presiding further in this case. Judge Butchko denied the motion, and this petition for writ of prohibition followed. LEGAL ANALYSIS 4 Upon being presented with an initial motion for disqualification, a trial judge is tasked solely with determining whether the motion is legally sufficient; 4 if it is, “the judge shall immediately enter an order granting disqualification and proceed no further in the action.” Fla. R. Jud. Admin. 2.330(f). “The legal sufficiency of a motion to disqualify is a question of law which we review de novo.” Sands Pointe Ocean Beach Resort Condo. Ass’n v. Aelion, 251 So. 3d 950, 954 (Fla. 3d DCA 2018) (citing Wall v. State, 238 So. 3d 127, 142 (Fla. 2018)). A motion to disqualify is legally sufficient when the alleged facts “would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Id. (quoting MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332, 1335 (Fla. 1990)). Of significance here, this court has previously noted that “a judge should disqualify himself or herself in a proceeding ‘in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer.” Id. (quoting Fla. Code Jud. Conduct, Canon 3E(1)). See also Lowman v. Racetrac Petroleum, Inc., 220 So. 3d 1282, 1284 (Fla. 1st DCA 2017) (holding that “as an indication of a bias which may create a party’s fear of not receiving an impartial hearing, there is no appreciable difference” between statements directed 4 It is the litigant’s point of view, rather than the judge’s perception of his ability to be fair and impartial which must be considered in determining whether the motion is legally sufficient. See MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332, 1334 (Fla. 1990)). 5 toward petitioner or his counsel 5); Kline v. JRD Mgmt. Corp., 165 So. 3d 812 (Fla. 1st DCA 2015) (granting writ of prohibition to party where judge had previously, in an unrelated case, found party’s attorney to be not credible); Michaud-Berger v. Hurley, 607 So. 2d 441, 446 (Fla. 4th DCA 1992) (noting party moving to disqualify “is entitled to enter the courtroom with confidence that she will receive a fair trial”); Hayslip v. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981) (noting it was understandable that a client would have a well-founded fear that the judge would be impartial after discovering the judge’s antipathy toward his lawyer). See also Tower Grp., Inc. v. Doral Enters. Joint Ventures, 760 So. 2d 256 (Fla. 3d DCA 2000) (holding motion to disqualify legally sufficient and recusal required where moving party’s attorney was an opponent of the judge’s reelection campaign). We recognize of course that a judge’s adverse rulings or factual findings following an evidentiary hearing cannot ordinarily serve as a basis for a party to seek to disqualify the trial judge. See, e.g., Aquasol Condo. Ass’n, Inc. v. HSBC Bank USA, N.A., 43 Fla. L. Weekly D2416 (Fla. 3d DCA Oct. 31, 2018); Clark v. Clark, 159 So. 3d 1015 (Fla. 1st DCA 2015). In the instant case, however, neither Samra 5 In this case, Judge Butchko’s fifty-one-page sanctions order described in detail thirty-four “Bad Faith Misstatement[s] of Fact” and four “Bad Faith Misstatement[s] of Law” by the Bilzin firm in connection with the firm’s representation of Samra. Bilzin’s withdrawal came after commencement of the evidentiary hearing on the motion for sanctions. Each of the instances of misrepresentations and misconduct found by Judge Butchko involved events that occurred during the Bilzin firm’s representation of Samra. 6 nor his counsel was permitted to attend or participate in the hearing, Samra was afforded no opportunity to hear the testimony, review the exhibits, cross-examine the witnesses, or present a response or rebuttal to the evidence presented by Bedoyan at the hearing. Samra had no opportunity to contest, or defend against, the allegations of egregious misconduct or provide any argument or input prior to rendition of the trial court’s fifty-one-page order. Thus, Samra was effectively rendered a non-party to the very proceedings that led to the trial court’s findings of facts and imposition of sanctions. Further, a motion to strike Samra’s pleadings remains pending, and the allegations set forth in that motion overlap substantially with the allegations set forth in the prior sanctions motion against the Bilzin firm. Judge Butchko has already held an evidentiary hearing on the allegations contained in the prior sanctions motion, and has already made findings of egregious conduct and granted sanctions relief. After reviewing the fifty-one-page order and the transcript of the status conference (described supra), we hold that a reasonably prudent person might conclude that the findings of egregious misconduct against Ferrer and the Bilzin firm implicated Samra, 6 and that Samra expressed a reasonable and well-founded fear that he would not receive a fair trial from Judge Butchko. 6 For example, one instance of “Bad Faith Conduct” found by Judge Butchko involved the Bilzin firm “[a]ssisting Plaintiff in the disclosure of attorney-client privileged materials to the U.S. Attorneys' Office and not notifying opposing counsel immediately” (emphasis added). It would also be reasonable for one to infer, from 7 We recognize the delicate and difficult position Judge Butchko was placed in by the events as they unfolded in this case, and our decision does not address the merits of the findings, conclusions, or sanctions imposed in the fifty-one-page order. Indeed, a reading of that order evidences a thoughtful and deliberate approach taken by Judge Butchko in making her determinations. Nevertheless, the unique circumstances of this case, combined with Samra’s allegations, which must be accepted as true, compel our conclusion that the trial judge should have granted Samra’s motion for disqualification as legally sufficient. We therefore grant the petition, quash the order denying the motion to vacate and remand for reassignment of the case to a new trial court judge,7 and for further proceedings. other findings contained in the sanctions order, that Judge Butchko concluded Samra was at the very least aware of the misconduct engaged in by the Bilzin firm. 7 Bedoyan alludes to the likelihood that Judge Butchko will soon be leaving the division to which this case is assigned and that this petition will therefore be rendered moot. However, the granting of this petition and the disqualification of Judge Butchko would permit Samra to seek reconsideration of orders previously entered by the disqualified judge. See Fla. R. Jud. Admin. 2.330(h) (providing: “Prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration. . . .”); Barber v. McKenzie, 562 So. 2d 755 (Fla. 3d DCA 1990). 8