TOWN CENTRE OF ISLAMORADA, INC., CLARENCE HOBDY, MARGARET HOBDY, EDWARD HULSE, AUDREY HULSE, LEONARD LATRONICO, CELIA RODRIGUEZ, VIRGINIA SIEDOR, KURT WINSELMANN, AND MARY WINSELMANN, PETITIONERS,
v.
THE HONORABLE J. JEFFERSON OVERBY, CIRCUIT JUDGE, RESPONDENT; HOLIDAY ISLE RESORT & MARINA, INC., PETITIONER, V. THE HONORABLE J. JEFFERSON OVERBY, CIRCUIT JUDGE, RESPONDENT

Fla. 3d DCA | 1992-01-28
Nos. 91-1845, 91-1873
Before FERGUSON, LEVY and GODERICH, JJ.
592 So. 2d 774 Florida District Court of Appeal, Third District (1992) Caution
Cited by 24 cases

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Holding

The court held that allegations of judicial bias against counsel were legally sufficient to warrant disqualification in two cases, but not in a third where counsel joined the case after it was assigned to the judge.


Headnotes

[1] Bias or prejudice against a litigant's attorney is grounds for disqualification where the prejudice is of such a degree that it adversely affects the client.

[2] A litigant may not bring an attorney into a case after it has been assigned to a judge and then move to disqualify the judge on grounds of bias against the attorney.

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Facts & Procedural History

Petitioners sought to disqualify Judge Overby in three cases due to alleged bias against their law firm, Mattson & Tobin. The judge had previously mad…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Petitioners seek a writ of prohibition directing the trial judge to disqualify himself on three unrelated civil cases in which the law firm of Mattson & Tobin, P.A., is counsel for petitioners. Motions for disqualification filed in all three cases were denied petitioners. The affidavits alleging the basis for disqualification set forth the following facts:

At a luncheon meeting of the local bar association on July 11, 1990, Attorney Mattson announced that he planned to file suit against the clerk and judges of the 16th circuit challenging a local rule which required that a notice of hearing be filed with each motion.1 In a July 19, 1990, court hearing, Judge Overby stated that he would make no rulings in Mattson & Tobin cases because Chief Judge Fowler had imposed a stay in the law firm’s cases until the Ethics Committee issued an opinion on the propriety of Mattson’s remarks at the bar luncheon. Tobin informed the court that Judge Fowler had lifted the stay and that Mattson’s suit would be a “friendly suit.” Judge Overby responded thát he did not consider a threat of a lawsuit to be friendly and that the remark might warrant disciplinary measures by the Florida Bar. Based on the above incidents, Judge Ov-erby, between July 1990 and March 1991, granted motions for disqualification filed by Mattson & Tobin’s clients in nineteen cases. On July 1, and July 9, 1991, one month after two of petitioners’ cases were filed by Mattson & Tobin, Town Centre of Islamorada v. Monroe County, (91-20-281), and Hobdy v. Dolphins Plus, Inc., (91-20-298), the litigants filed motions to disqualify Judge Overby.

On May 6, 1991, five months after filing, the litigants in the third case of Agra-monte v. Holiday Isle Resort & Marina, Inc., (90-20-532), filed a motion to disqualify Judge Overby. As grounds for disqualification they alleged that the judge harbored prejudice toward Mattson & Tobin. Significantly, however, Mattson & Tobin was brought in as local counsel in the case after it had been assigned to Judge Over-by. A formal Notice of Appearance for Mattson & Tobin was not filed until one week after the motion for disqualification was made.

Judge Overby denied all three motions as untimely and legally insufficient. We affirm the trial court’s order relating to Agramonte, but reverse the orders relating to Town Centre and Hobdy.

Bias or prejudice against a litigant’s attorney is grounds for disqualification where the prejudice is of such a degree, that it adversely affects the client. Ginsberg v. Holt, 86 So. 2d 650 (Fla.1956); State ex rel. Davis v. Parks, 141 Fla. 516,194 So. 613 (1939); see generally Annotation, Disqualification of Judge for Bias Against Counsel for Litigant, 23 A.L.R.3d 1416 (1969); 48A C.J.S. Judges § 110, at 739 (1981). Therefore, a writ of prohibition granting disqualification has been issued in Florida under the following circumstances: where the judge “directs base vernacular towards an attorney ... in open court,” Olszewska v. Ferro, 590 So. 2d 11 (Fla. 3d DCA 1991); the judge says he will “deal with” attorney for having “gone over” his head, Lamendola v. Grossman, 439 So. 2d 960 (Fla. 3d DCA 1983); the judge states that client’s attorney “should not be in this case.” Hayslip v. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981); the judge delivers a tirade about the lawyer’s opposition to the judge’s appointment to other judicial positions, McDermott v. Grossman, 429 So. 2d 393 (Fla. 3d DCA 1983); or where attorneys for petitioners had testified against the judge at impeachment proceedings brought against the judge. Brewton v. Kelly, 166 So. 2d 834 (Fla. 2d DCA 1964).

We conclude that the allegations in the verified motions for disqualification, based on the trial judge’s comments and actions in the first two cases, were legally sufficient to support the claims of fear of prejudice. Fischer v. Knuck, 497 So. 2d 240 (Fla.1986). In view of the extra-judicial dispute between the judge and counsel, which occurred just eleven months prior to the filing of these cases, the litigants could reasonably have concluded that they would not receive a fair trial before the assigned judge. Livingston v. State, 441 So. 2d 1083 (Fla.1983).

In the case of Agramonte v. Holiday Isle Resort & Marina, our holding is different. Mattson & Tobin accepted the case as local co-counsel with full knowledge that it was already assigned to Judge Over-by. For that reason, the parties had no basis for a claim of judicial animosity. Ordinarily, a party may not bring an attorney into a case after it has been assigned to a judge, and then move to disqualify the judge on grounds that the judge has a bias against the attorney. See Brown v. Dugger, 547 So. 2d 1281 (Fla. 3d DCA 1989) (issue of recusal may be waived); Annotation, Waiver or Loss of Right to Disqualify Judge by Participation in Proceedings, 24 A.L.R. 4th 870 (1983).

The petition for writ of prohibition is granted in case 91-1845 and denied in case 91-1873.

. The challenge was successful. This court held, in Mattson v. Kolhage, 569 So. 2d 1358 (Fla. 3d DCA 1990), that the derk was required to accept all motions presented for filing in pending cases with or without notices of hearing.


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Citator

Cited By (14 total)

  • 5-H Corp. v. Padovano, 708 So. 2d 244 (Fla. 1997)
    …a complaint with the JQC, Judge Goldstein attempted to persuade Levine to forego his special public defender's fee in exchange for which the judge would withhold issuing the order to show cause."); see also Town Centre of Islamorada, Inc. v. Overby, 592 So. 2d 774, 775-76 (Fla. 3d DCA 1992)(granting prohibition petition to disqualify trial judge based upon "the trial judge’s comments and actions” and an "extra-judicial dispute between the judge and counsel," including a suggestion by the judge that counsel’s…
  • Olegard Sume and Frisner Boyer v. State, 773 So. 2d 600 (Fla. 1st DCA 2000)
    …as co-counsel long after Judge Foster had been assigned to the case. Because Cascone brought the conflict into the case, his client cannot now argue that the judge must step aside. As the court explained in Town Centre of Islamorada, Inc. v. Overby, 592 So. 2d 774 (Fla. 3d DCA 1992) “a party may not bring an attorney into a case after it has been assigned to a judge, and then move to disqualify the judge on grounds that the judge has a bias against the attorney.” The defendants attempt to distinguish Town Ce…
  • Sigmund Feuerman v. Honorable J. Jefferson Overby, 638 So. 2d 179 (Fla. 3d DCA 1994)
    …ion for disqualification on the ground that the motion was not legally sufficient. Feuer-man filed the petition before us. This court’s holdings in James v. Theobald, 557 So. 2d 591 (Fla. 3d DCA 1990), and Town Centre of Islamorada, Inc. v. Overby, 592 So. 2d 774 (Fla. 3d DCA 1992), mandate granting the petition for writ of prohibition. In James, the court held that a motion for recusal based on an attorney’s representation of a client in a lawsuit against a judge while the judge was in private practice was…

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Authorities Cited (12 total)

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