Full Opinion

Third District Court of Appeal State of Florida Opinion filed March 31, 2021. Not final until disposition of timely filed motion for rehearing. ________________ Nos. 3D20-1556 & 3D20-0803 Lower Tribunal Nos. 20-14774, 20-2778, 18-3226, & 18-2898 ________________ Orazio Amadio Afanasiev, Petitioner, vs. Ligia Carolina Romero Alvarez, et al., Respondents. Cases of Original Jurisdiction – Prohibition. G&F Law Group, LLP and I. Albert Gonzalez and Alexander C. Flint and Ariel Rapaport, for petitioner. Wicker Smith O’Hara McCoy and Ford, P.A. and Brandon J. Hechtman; Klein Park & Lowe, P.L. and Alex Diaz and Andrew M. Feldman; Marsicano + Leyva PLLC and Lauren A. Marsicano and Carolina Leyva, for respondents. Before SCALES, LINDSEY and LOBREE, JJ. SCALES, J. Orazio Amadio Afanasiev (“Afanasiev”) filed petitions seeking writs of prohibition (that we consolidate herein) to preclude the trial court from continuing to preside over his dissolution of marriage, domestic violence, and malicious prosecution proceedings below. Afanasiev’s disqualification motions, asserting that the trial court was required to recuse herself because she would be a material witness in Afanasiev’s malicious prosecution action, were legally insufficient. Hence, we deny the petitions to the extent they are based on this ground. Because, however, the trial court filed a Bar complaint (that remains pending) against counsel for Afanasiev for conduct occurring in this Court, Afanasiev, due to the unique facts and circumstances of this case, may reasonably question the trial court’s impartiality. We therefore grant the consolidated petitions on this ground and prohibit the trial court from presiding over any of the three pending cases involving Afanasiev’s counsel. I. Factual and Procedural Background A. Dissolution and Domestic Violence Cases Afanasiev and Ligia Carolina Romero Alvarez (“Alvarez”) married in Venezuela in 2002. The couple and their minor children migrated to Florida in 2014. Four years later, Alvarez filed for divorce (lower tribunal number 18-2898). Almost simultaneously, Alvarez petitioned for a permanent 2 domestic violence injunction against Afanasiev (lower tribunal number 18- 3226). Both the dissolution case and Alvarez’s domestic violence injunction proceeding were assigned to Miami-Dade Circuit Court Judge Migna Sanchez-Llorens (“the trial court”) in the family court division. The trial court granted a temporary injunction in the domestic violence action, which was renewed several times for a period of approximately eighteen months. In July 2018, Alvarez’s counsel, Vanessa Torres, sent a letter to the trial court advising that Torres wanted to withdraw from her representation of Alvarez. In this letter, Torres did not specify a reason for withdrawing but indicated that she had an ethical concern. The trial court granted the withdrawal and Alvarez engaged her current counsel. On February 3, 2019, Afanasiev filed a motion for involuntary dismissal of Alvarez’s domestic violence action, a motion he amended on March 1, 2019. In this amended motion, Afanasiev asserted, among other things, that Alvarez’s allegations against him were fraudulent and a ruse to remain in the country through a U-Visa, as Alvarez’s immigration status had thus far depended on her marriage to Afanasiev. In this motion, Afanasiev speculated that Torres’s withdrawal was tied to Torres’s concerns about Alvarez’s fraudulent allegations against him. On April 3, 2019, the trial court denied Afanasiev’s dismissal motion. 3 In September 2019, however, the trial court dismissed the domestic violence petition due to the insufficiency of the evidence. Notwithstanding this dismissal, the trial court, at the September 9, 2019 final hearing on Alvarez’s injunction petition, found in oral remarks that Alvarez was credible and, on the trial court’s own motion, issued a stay away order. This order required Afanasiev to refrain from contact with Alvarez, except on child- related matters. We reversed this stay away order as having been entered in violation of Afanasiev’s due process rights. See Afanasiev v. Alvarez, 299 So. 3d 474, 475 (Fla. 3d DCA 2020). B. Afanasiev Files Malicious Prosecution Case and Disqualification Motions in the Dissolution and Domestic Violence Cases (Case Number 3D20-803) On February 5, 2020, Afanasiev filed a malicious prosecution action (assigned to the circuit court’s civil division) against Alvarez and her current counsel (lower tribunal numbers 20-2778 and 20-14774). In his complaint, Afanasiev reiterates allegations he earlier made in his amended motion to dismiss the domestic violence action, namely: (i) Alvarez’s domestic violence action was part of a ruse to secure a U-Visa to remain in the United States; and (ii) the withdrawal of prior counsel Torres indicated Alvarez’s fraudulent intentions. The complaint names Alvarez’s current counsel and law firm as co-defendants because, allegedly, they persisted in the fraud on the court. 4 In this action, Afanasiev seeks compensatory damages related to emotional distress and attorney’s fees in defending Alvarez’s domestic violence action. Shortly after filing his malicious prosecution action, Afanasiev, on February 18, 2020, filed, in the dissolution and domestic violence actions, 1 nearly identical motions to disqualify the trial court. While these disqualification motions generally alleged that the trial court is biased against Afanasiev, the gravamen of the disqualification motions was that, because the malicious prosecution action arose from the dissolution and domestic violence cases (over which the trial court presided), the trial court will be a material witness in Afanasiev’s malicious prosecution action. On February 21, 2020, the trial court summarily denied both disqualification motions. Afanasiev then filed his first petition for writ of prohibition with this Court, challenging the trial court’s denial of both motions (case number 3D20-803). C. The Zoom Transfer Hearing and The Erroneous Filing in this Court On March 12, 2020, Alvarez and her counsel filed a joint motion in the malicious prosecution case, requesting that it be transferred from the circuit court’s civil division to the family law division and be presided over by the trial court. On May 29, 2020, Afanasiev filed his response in opposition to 1 While the substantive judicial labor in the domestic violence action ended with the dismissal of the petition, there remains pending in that action a motion to tax costs. 5 the transfer. On September 8, 2020, Alvarez’s motion to transfer was heard at a virtual Zoom hearing conducted by the administrative judge of the civil division. The administrative judge granted Alvarez and her counsel’s motion and transferred the malicious prosecution case to the family division to be presided over by the trial court.2 On September 10, 2020, Afanasiev filed an emergency motion in this Court in case 3D20-803, seeking to stay all proceedings before the trial court, alleging that the trial court had appeared as a spectator at the September 8th hearing before the administrative judge. In pertinent part, this emergency stay motion alleged that the trial court “[r]emarkably,” “appeared at the hearing, via Zoom, on [Alvarez’s] Motion to Transfer.” Afanasiev “question[ed] the motive” for the judge’s appearance at the hearing, as well as “whether her appearance . . . had any influence or effect on [its] outcome,” “reinforc[ing] [Afanasiev’s] objectively reasonable fear that he will not receive a fair . . . hearing” before the assigned judge. This accusation by Afanasiev’s counsel turned out to be erroneous, a case of mistaken identity. On September 11, 2020, the day after filing the 2 Afanasiev filed a petition for writ of certiorari in this Court (case number 3D20-1455) seeking to quash the administrative judge’s September 8, 2020 transfer order. On October 13, 2020, this Court dismissed the petition in an unelaborated order. 6 emergency stay motion, Afanasiev’s counsel filed a notice in case 3D20-803, retracting the assertion that the trial court attended the virtual Zoom hearing, and labeling it a belief that was, at the time, “honest, yet mistaken,” and which counsel “[n]either knew [to be] false or thought to be false.” On September 15, 2020, in an unelaborated order entered in 3D20-803, we denied Afanasiev’s emergency stay motion. D. Afanasiev Files Disqualification Motion in the Malicious Prosecution Case On September 18, 2020, Afanasiev filed a motion in the malicious prosecution case requesting that the trial court recuse herself in that case. The gravamen of this disqualification motion, again, was that the trial court would be a material witness in the malicious prosecution action, arising from her presiding in the domestic violence action. On September 30, 2020, the trial court summarily denied the disqualification motion in an unelaborated order. E. The Trial Court’s Bar Complaint against Afanasiev’s Counsel and Afanasiev’s Second Petition for Writ of Prohibition (Case Number 3D20- 1556) On the same day that trial court denied Afanasiev’s disqualification motion in the malicious prosecution case – September 30th – she prepared and forwarded to the Florida Bar an ethics complaint directed toward three of Afanasiev’s attorneys. This Bar complaint, which remains pending, 7 asserted that the erroneous representation contained in Afanasiev’s September 10, 2020 emergency stay motion (filed in this Court in case number 3D20-803) constituted a potential violation of six rules of professional conduct. While the trial court’s Bar complaint included a copy of Afanasiev’s September 10, 2020 emergency motion filed in this Court, it did not include a copy of the September 11, 2020 retraction of, and apology for, the erroneous information that Afanasiev’s counsel also filed in this Court (though the Bar complaint does make reference to the retraction). Thereafter, on October 26, 2020, Afanasiev filed another petition for writ of prohibition in this Court (case 3D20-1556), seeking to preclude the trial court from continuing to preside over the malicious prosecution action. In this second prohibition petition, Afanasiev raises two distinct grounds. First, Afanasiev asserts that the trial court erred in determining that his September 18, 2020 disqualification motion (based on the trial court’s alleged status as a material witness in the malicious prosecution case) was legally insufficient. Second, Afanasiev asserts that the trial court is biased against Afanasiev and his counsel, as evidenced by the Bar complaint that alleged Afanasiev’s counsel made “knowingly false statements” to this Court. As discussed in more detail below, Afanasiev did not first file a successive disqualification motion in the trial court, raising this bias ground. 8 The following day, Afanasiev filed a motion in this Court (case 3D20- 1556) both for an emergency stay in the malicious prosecution proceeding and for consolidation of his two prohibition petition cases (3D20-803 and 3D20-1556). On November 2, 2020, we granted a stay in all cases and ordered that Afanasiev’s two prohibition petition cases travel together before the same panel. We now consolidate the cases for the purposes of this opinion and grant prohibition. II. Analysis A. Disposition of “Material Witness” Ground for Prohibition3 After filing his malicious prosecution action, Afanasiev filed three disqualification motions – one each in the dissolution action, the domestic violence case, and the malicious prosecution case. Each motion asserted that, because Afanasiev would be calling the trial court as a material witness in his malicious prosecution action, she must disqualify herself as a presiding judge. The trial court denied each disqualification motion, and we discern no error in her rulings on the motions. 3 We review de novo an order denying a motion for disqualification of a trial judge. Valdes-Fauli v. Valdes-Fauli, 903 So. 2d 214, 216 (Fla. 3d DCA 2005) (“Allegations in a motion to recuse or disqualify a trial judge are reviewed under a de novo standard as to whether the motion is legally sufficient as a matter of law. A motion to recuse or disqualify a judge is legally sufficient when the alleged facts would create in a reasonably prudent person a well- founded fear of not receiving a fair and impartial trial.”) (citations omitted). 9 For us to grant prohibition on this ground, we would necessarily have to conclude that the trial court would have been a material witness in Afanasiev’s malicious prosecution action, and therefore prohibited from presiding. 4 Under the facts of this case, however, we are doubtful the trial court could have been compelled to testify, as a material witness or otherwise, in Afanasiev’s malicious prosecution case. In Stein v. Professional Center, S.A., 666 So. 2d 264, 265-66 (Fla. 3d DCA 1996), we granted certiorari and quashed a subpoena that required a trial judge to testify as to the meaning of an order she had previously entered. We concluded that giving such testimony was not one of the “certain discrete occasions where a trial judge may be subpoenaed to testify as to certain relevant facts in a case.” Id. at 266. 5 Afanasiev provides no persuasive authority that supports broadening Stein’s enumerated “discrete occasions” 4 Pursuant to Florida Rule of Judicial Administration 2.330(d)(2), if a judge is a material witness for or against a party, there exists a ground for disqualification of the judge. 5 In Stein, this Court noted such occasions as: “(1) a criminal defendant’s demeanor during trial when a subsequent issue arises in post-conviction proceedings as to the defendant’s mental competence to stand trial; or (2) the terms of an oral settlement agreement made before the judge when that agreement was never memorialized on the record because the proceedings were not transcribed by a court reporter.” Stein, 666 So. 2d at 266 (footnote omitted). 10 that would require a trial judge to testify regarding proceedings over which the trial court presided. Under the facts of this case, we decline Afanasiev’s invitation to do so here, especially in the context of a prohibition (rather than a certiorari) proceeding. Hence, because it is highly unlikely the trial court could be compelled to testify in Afanasiev’s malicious prosecution case, we deny prohibition based on the “material witness” grounds asserted in Afanasiev’s disqualification motions and raised in his petitions. B. Bias Ground – Disqualification Based on the Pending Bar Complaint We now turn to the other ground asserted in Afanasiev’s second prohibition petition filed in our Court: disqualification is required because of the trial court’s bias, as evidenced by the filing of the pending Bar complaint. In our view, the circumstances changed significantly when the trial court filed the Bar complaint against Afanasiev’s counsel. 1. Discretion to Reach the Merits of the Bias Ground Before we address the merits of this bias ground, though, we first must address whether this Court should even reach its merits, because Afanasiev did not first file below a successive disqualification motion asserting this bias ground. While prohibition is an original proceeding, governed by Florida Rule of Appellate Procedure 9.100, in the disqualification context it is more like an 11 appeal, normally sought to review the trial court’s denial of a motion for disqualification. State v. Borrego, 105 So. 3d 616, 618 (Fla. 3d DCA 2013). In this case, though, Afanasiev raises the bias ground for disqualification for the first time in his second prohibition petition (3D20-1556) filed in this Court, without raising it below in a successive disqualification motion. The trial court’s September 30th order denying Afanasiev’s September 18th disqualification motion was entered on the same day the trial court filed the Bar complaint. It is, therefore, entirely reasonable to suppose that the trial court would have denied a successive rule 2.330 disqualification motion had Afanasiev filed one. Indeed, if the trial court were of the belief that her filing of the Bar complaint evidenced bias against Afanasiev’s counsel, presumably she would have recused herself. On this record, therefore, we conclude it would have been futile for Afanasiev to have sought disqualification below based on the bias ground first raised here in his second prohibition petition. The law does not require futile acts (for the preservation of error). See State v. Roberts, 963 So. 2d 747, 749 (Fla. 3d DCA 2007). Therefore, given this case’s unique procedural history, and the apparent futility of requiring Afanasiev to have first raised this bias ground in 12 a successive disqualification motion, we exercise our discretion to reach this issue in this proceeding. 6 2. The Merits of Afanasiev’s Bias Claim There is little Florida case law explicating the circumstances requiring disqualification when a trial court has filed a Bar complaint against a lawyer. The parties have identified two, contrasting cases that each party, respectively, argues is persuasive. Our job is to determine which case more closely resembles, and therefore controls, this case. Afanasiev argues that this case should be controlled by Kline v. JRD Management Corp., 165 So. 3d 812 (Fla. 1st DCA 2015), while Alvarez argues that this case is more similar to 5-H Corp. v. Padovano, 708 So. 2d 244 (Fla. 1997). We analyze each case below. In Padovano, the Florida Supreme Court held “a Florida judge’s mere reporting of perceived attorney unprofessionalism to the Florida Bar, in and of itself, is legally insufficient to support judicial disqualification.” Id. at 248. In Padovano, an attorney appearing before the First District Court filed a motion for rehearing in which he attacked the integrity of the panel that ruled 6 It appears that the parties, too, recognized the futility of Afanasiev’s filing a successive disqualification motion. In their briefing on the role of the Bar complaint, neither party has suggested it would be improper for us to address this issue. 13 on his case and used profane language to describe the opposition’s arguments. Id. at 245. The First District instructed its clerk to forward a copy of the motion to the Florida Bar. Id. In a related appeal for the same client, this attorney sought the disqualification of all First District judges. When four of those judges declined to recuse, and a panel was assembled, the attorney applied for a writ of prohibition to the Florida Supreme Court. Id. at 246. After holding that judicial disqualification was not merited, and denying prohibition, the Florida Supreme Court acknowledged that, after a judge refers a report to the Florida Bar, “disqualification remains available where it can be shown that ‘the judge has a personal bias or prejudice concerning a party or a party’s lawyer.’” 7 Id. at 248. Thus, while disqualification is not automatic, a party is not foreclosed from seeking disqualification after a judge makes a Bar complaint against counsel appearing before the judge. With these principles in mind, we view Kline as a more fitting precedent for the instant case. In Kline, the petitioner in a workers’ compensation case sought disqualification of a Judge of Compensation Claims (“JCC”) after the JCC made allegations of ethical and criminal violations against the petitioner’s attorney in another case and referred the attorney to the Florida 7 Citing Fla. Code Jud. Conduct, Canon 3E(1)(a) (emphasis in opinion). 14 Bar. Kline, 165 So. 3d at 814. The JCC denied the motion for disqualification based on Padovano. Id. Supporting the JCC’s report to the Florida Bar were findings by the JCC that the petitioner’s attorney was not a credible person, that the attorney had made false statements and had done so with conscious and criminal intent. Id. at 815. The First District Court distinguished Padovano by concluding that what occurred in Kline went beyond the “mere reporting of unprofessionalism” to the Florida Bar. Id. The First District Court found the facts in Kline to be more akin to cases that involve the disqualification of a trial judge for showing prejudice in questioning the veracity of a party, citing to Brown v. St. George Island, Ltd., 561 So. 2d 253, 254-55 (Fla. 1990). Thus, the First District found a “factual foundation” for the petitioner’s reasonable fear of bias. Id. The trial court filed her Bar complaint against all three of Afanasiev’s counsel of record based on the mistake of one of them, a mistake that occurred in this Court. It appears that she gave little weight to the immediate retraction or the apology by the attorney who committed the mistake. Her Bar complaint explicitly focuses on counsels’ veracity and ties it to breaches of ethics. We do not question the trial court’s intentions or sincerity, or her right to protect her own integrity and the integrity of the judicial system. We 15 do not criticize her for filing the Bar complaint. 8 But her pending Bar complaint against Afanasiev’s counsel establishes, in the three cases below, cumulatively and objectively, a factual foundation that supports disqualification. The ethical breaches described in the Bar complaint concern untruthfulness and raise the prospect of a courtroom in which the judge distrusts the lawyer. Given the allegations against Afanasiev’s counsel contained in the pending Bar complaint, we think, under this case’s unique facts and circumstances, Afanasiev has established the requisite showing of a reasonable fear that he will not receive a fair trial or hearing because of a specifically disclosed prejudice or bias of the trial court. See Fla. R. Jud. Admin. 2.330(d)(1). We therefore grant prohibition9 and preclude Judge Migna Sanchez-Llorens from presiding over the dissolution action (lower tribunal 8 Obviously, we express no opinion on the merits of the Bar complaint. 9 Citing Barber v. MacKenzie, 562 So. 2d 755, 757 (Fla. 3d DCA 1990), the dissent suggests that, because the trial court has been transferred from the circuit court’s family division to its civil division, prohibition is no longer an available remedy. We generally agree that, under Barber, when a subsequently transferred trial judge had entered an order denying a disqualification motion, we treat prohibition petitions directed toward such orders as certiorari petitions. We decline, however, to do so under the unique circumstances presented in this case. Here, certiorari relief – that is, quashing the disqualification order entered below – is unavailable as a 16 number 18-2898), the domestic violence action (lower tribunal number 18- 3226), or the malicious prosecution action (lower tribunal numbers 20-2778 and 20-14774). Prohibition granted. LINDSEY, J., concurs. remedy because no disqualification order was entered below on the bias ground raised in Afanasiev’s second prohibition petition and upon which our remedy is premised. Additionally, in Afanasiev’s Status Report and Suggestion of Nonmootness filed with this Court, Afanasiev makes the unrebutted assertion that respondents might seek to have the cases transferred to the civil division where the trial court has been reassigned (and where the malicious prosecution action was originally assigned) so that the trial court may continue to preside over them. Barber is, therefore, inapplicable because, under the facts of this case, prohibition, rather than certiorari, remains the more appropriate remedy. 17 Afanasiev v. Romero Alvarez 3D20-1556, 3D20-803 LOBREE, J. (dissenting). I fully agree with the majority that the allegations of the disqualification motions apart from the Bar referral do not warrant relief by prohibition. However, I would deny relief as well as to the claim of bias associated with the Bar referral, based upon Padovano, which notes: All Florida judges are, first and foremost, attorneys and members of The Florida Bar. See generally art. V, § 8, Fla. Const. As such, Florida judges, just like every other Florida attorney, have an obligation to maintain the integrity of the legal profession and report to The Florida Bar any professional misconduct of a fellow attorney. See R. Regulating Fla. Bar 4–8.3(a). This obligation is reiterated in the Florida Code of Judicial Conduct, which explicitly provides that “[a] judge who receives information or has actual knowledge that substantial likelihood exists that a lawyer has committed a violation of the Rules Regulating The Florida Bar shall take appropriate action.” Fla. Code Jud. Conduct, Canon 3D(2). Padovano, 708 So. 2d at 246. These mandates, cited in the referral letter at issue herein, gave the trial court the grounds, if not the duty, to make the report to The Florida Bar. Id. at 247. The referral contains no findings regarding the alleged conduct, nor anything to support “a clear implication that the judge will not believe the complaining party’s testimony in the future.” Kline, 165 So. 3d at 815 (quoting Brown, 561 So. 2d at 257 n.7). The 18 majority’s holding that this referral now disqualifies the judge from presiding further in these cases “would not only contradict both the letter and spirit of the canons and rules discussed above, but also discourage Florida judges from reporting questionable attorney behavior to The Florida Bar for fear of the possible repercussions (such as those sought in the present case).” Padovano, 708 So. 2d at 247. “Encouraging such reporting also eliminates any incentive for an attorney to seek a Florida judge's disqualification by intentionally provoking that judge into filing a report with The Florida Bar” and “discourages underhanded ‘judge shopping’ and ‘forum shopping.’” Id. Further, during the pendency of these proceedings, the judge whose proposed disqualification is at issue herein transferred to another division pursuant to a routine reassignment, and another judge is now the presiding judge in the trial court actions. Accordingly, prohibition is no longer an available remedy, and our review now must be by certiorari. See Barber v. Mackenzie, 562 So. 2d at 757 (citing English v. McCrary, 348 So. 2d 293, 296-97 (Fla. 1977)); Pilkington v. Pilkington, 182 So. 3d 776, 778 (Fla. 5th DCA 2015). Afanasiev suggests that this matter is not moot because Romero may seek to transfer the actions back to the prior judge. This speculation falls short of the harm required for relief by certiorari. Accordingly, I respectfully dissent. 19