Chessler v. All American Semiconductor, Inc. , 2016 Fla. App. LEXIS 17700 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed November 30, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-2244
Lower Tribunal No. 05-13983
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David Chessler, et al.,
Petitioners,
vs.
All American Semiconductor, Inc., etc.,
Respondent.
On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade
County, Bronwyn C. Miller, Judge.
McIntyre, Thanasides, Bringgold, Elliott, Grimaldi & Guito, P.A., and
Jennifer E. Jones, Richard J. McIntyre, and Johnny Hightower (Tampa), for
petitioners.
Broad and Cassel, and Barbara Viota-Sawisch, Adam G. Rabinowitz, and
Joseph H. Picone (Fort Lauderdale), for respondent.
Before SUAREZ, C.J., and ROTHENBERG and LOGUE, JJ.
LOGUE, J.
The Defendants below, David Chessler and several companies he either
owns or controls, filed a petition for writ of certiorari to quash a non-final order
disqualifying their counsel, Richard J. McIntyre, and his law firm based on a
conflict of interest. We deny the petition for writ of certiorari because the
Defendants failed to meet the high standard for certiorari review.
In the underlying lawsuit, All American Semiconductor, Inc., as the assignee
of the claims of ParView, Inc., sued Chessler and his numerous business entities.
All American alleges, among other claims, that Chessler perpetrated fraudulent
transfers, conversion, breaches of contract, and breaches of fiduciary duty as the
former CEO of ParView.
Chessler was the past president and had sole control over the management
and operations of ParView, a company that manufactured, developed, and leased
GPS systems for golf courses. ParView became indebted to All American
Semiconductor, Inc., a company that provided computer hardware for ParView’s
GPS systems. ParView secured its debt to All American by entering into a series
of agreements in which All American was granted a first priority security interest
in ParView’s assets. All American now alleges in the underlying suit that at the
time ParView and All American entered into these security agreements, Chessler
improperly transferred Parview’s assets to himself, his entities, and third parties, to
ParView’s detriment.
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Richard J. McIntyre, the attorney whose disqualification is at issue here, was
the long-term attorney for ParView. He represented ParView in an earlier
bankruptcy proceeding in which similar legal claims relating to Chessler’s
potential misconduct were raised. Despite McIntyre’s former representation of
ParView, Chessler hired McIntyre to defend him in this matter. All American filed
an emergency motion to disqualify McIntyre as counsel based on a conflict of
interest.
Chessler maintains McIntyre’s former representation of ParView never
involved McIntyre in the pursuit of ParView’s claims against him. But after an
evidentiary hearing, the trial court found otherwise. It noted in a detailed eleven-
page order that (1) McIntyre was hired “to take any actions necessary to recover
any voidable transfers”; (2) McIntyre continued to represent ParView after a
bankruptcy examiner filed a report identifying ParView’s potential claims against
Chessler for wrongful transfers; and (3) in billing records submitted to the
bankruptcy judge, McIntyre described the work he undertook for ParView as
including “work on fraudulent transfer issues” and “attendance at the deposition of
Chessler.” The trial court also noted that McIntyre was likely privy to information
he obtained while representing ParView regarding ParView’s alleged payments to
Chessler—an issue now in dispute in the underlying lawsuit.
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The trial court granted All American’s motion for disqualification,
concluding in its written order that
[a] conflict of interest exists because McIntyre
represented ParView in the underlying bankruptcy
creating an irrefutable presumption that client
confidences were disclosed to McIntyre during the course
of his representation of ParView, and, as such,
confidences could be used to the detriment of [All
American], as Parview’s assignee. This would result in
an impermissible, unfair informational and tactical
advantage for the Defendants. McIntyre’s representation
of Chessler and his related entities would also create an
appearance of impropriety, which requires
disqualification.
We conclude that the facts of this case do not meet the high standard for
issuance of a petition for writ of certiorari of a non-final order. “To support a writ
of certiorari, the petitioner must demonstrate that the challenged non-final order (1)
departs from the essential requirements of law, (2) results in material injury for the
remainder of the case, and (3) such injury is incapable of correction on
postjudgment appeal.” Sea Coast Fire, Inc. v. Triangle Fire, Inc., 170 So. 3d 804,
807 (Fla. 3d DCA 2014). These last two factors are often referred to as “irreparable
harm.” Id.
The traditional manner of stating the test for certiorari of a non-final order is
somewhat misleading because it places the substantive issue before the
jurisdictional issue. As Judge Altenbernd recognized in an insightful review of the
history of the writ, “a petitioner must establish that an interlocutory order creates
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material harm irreparable by postjudgment appeal before this court has power to
determine whether the order departs from the essential requirements of the law.”
Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 649 (Fla. 2d
DCA 1995). For this reason, the test is best stated simply as: “there are two
indispensable ingredients to common law certiorari when sought to review pretrial
orders of the circuit courts: (1) irreparable injury to the petitioner that cannot be
corrected on final appeal (2) caused by a departure from the essential requirements
of law.” Bared & Co. v. McGuire, 670 So. 2d 153, 156 (Fla. 4th DCA 1996) (en
banc).
Here, without doubt, the order of disqualification at issue reflects a potential
irreparable injury “because denying a party counsel of his or her choice is a
material injury without appellate remedy.” Event Firm, LLC v. Augustin, 985 So.
2d 1174, 1175 (Fla. 3d DCA 2008). We therefore have jurisdiction and turn to
consider whether the order departs from the essential requirements of law.
To disqualify opposing counsel the movant must demonstrate that (1) “an
attorney-client relationship existed,” which “giv[es] rise to an irrefutable
presumption” that confidential information was disclosed during the relationship;
and (2) “the matter in which the law firm subsequently represented the interest
adverse to the former client was the same or substantially related to the matter in
which it represented the former client.” State Farm Mut. Auto. Ins. Co. v. K.A.W.,
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575 So. 2d 630, 633 (Fla. 1991); see also R. Regulating Fla. Bar 4-1.9 (governing
conflicts of interest). In a certiorari proceeding, moreover, “[t]he required
‘departure from the essential requirements of law’ means something far beyond
legal error. It means an inherent illegality or irregularity, an abuse of judicial
power, an act of judicial tyranny perpetrated with disregard of procedural
requirements, resulting in a gross miscarriage of justice.” Jones v. State, 477 So.
2d 566, 569 (Fla. 1985) (Boyd, C.J., concurring specially). Given the findings of
the trial court after the evidentiary hearing, the order of disqualification does not
constitute the type of essential illegality and gross miscarriage of justice which is
the focus of certiorari.
Certiorari denied.
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