Richard H. Partin, M.D., and Richard H. Partin, P.A. v. Solange Magalhaes, Paulo Magalhaes, and Omega Women's Center, LLC

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RICHARD H. PARTIN, M.D., and RICHARD H. PARTIN, P.A.,
Petitioners,
v.
SOLANGE MAGALHAES, PAULO MAGALHAES, and OMEGA WOMEN'S
CENTER, LLC,
Respondents,
No. 4D14-4861
[May 6, 2015]
Petition for writ of prohibition from the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Dale Ross, Judge; L.T.
Case No. CACE 13-22713 08.
Dinah Stein, Shannon Debus-Horn of Hicks, Porter, Ebenfeld & Stein,
P.A., Miami, and Michael A. Petruccelli of Fann & Petruccelli, Fort
Lauderdale, for petitioners.
Roberta Deutsch, Boca Raton and Mark A. Leibowitz of Wolpe &
Leibowitz, LLP, Miami, for respondents.
PER CURIAM.
Petitioners seeks a writ of prohibition to review the denial of their
motion to disqualify the trial judge. As the underlying motion to disqualify
was timely and legally sufficient, we grant the petition and remand with
directions to reassign the case to a successor judge.
Pending below is a professional negligence case against petitioners.
Petitioner, Dr. Partin, appeared for deposition in early April 2014, at which
time plaintiffs learned that he was no longer associated with his former
employer. Dr. Partin refused to answer questions regarding the
circumstances surrounding his then recent termination. Soon after, the
trial judge granted plaintiffs’ motion to compel him to appear for deposition
and answer questions regarding his termination. Dr. Partin complied.
Dissatisfied with Dr. Partin’s responses during his second deposition,
plaintiffs sought to obtain his employment records and personnel file
directly from his former employer via non-party production. Petitioners
objected and a hearing followed. At the hearing on plaintiffs’ request for
non-party production, petitioners attempted to argue that Dr. Partin
complied with the judge’s previous order by appearing for a second
deposition and plaintiffs’ non-party production request to his former
employer constituted a new and independent discovery request. The judge
cut-off petitioners’ counsel and expressed his prejudgment of the matter.
The judge then granted plaintiffs’ motion, ordered the production, and
imposed monetary sanctions against petitioners.
Petitioners moved for reconsideration, and the court held another
hearing. During these hearings, the judge made acerbic comments about
petitioners and exhibited overall hostility toward both petitioners and their
counsel. After the judge denied petitioners’ motion for reconsideration,
petitioners filed the subject motion to disqualify. The judge also denied
this motion, finding that it was untimely and legally insufficient.
Upon exercising our de novo review, we find that petitioners met their
burden in this case. First, the motion to disqualify was timely in light of
the comments made at the hearing on petitioners’ motion for
reconsideration, and/or from the “cumulative effect of events occurring
within a short space of time.” Chillingworth v. State, 846 So. 2d 674, 676
(Fla. 4th DCA 2003). Second, based on what transpired at the hearings
on plaintiffs’ request for non-party production and petitioners’ motion for
reconsideration, we conclude that a reasonably prudent person would be
in fear of not receiving a fair and impartial trial. We recognize that
generally a trial judge’s expression of dissatisfaction with counsel or a
party’s behavior does not warrant disqualification. Ellis v. Henning, 678
So. 2d 825, 827 (Fla. 4th DCA 1996). However, the hearing transcripts
indicate that the judge’s actions went beyond a mere expression of
dissatisfaction and were misguided in part because of his
misunderstanding or confusion surrounding the independent discovery
requests and his unwillingness to consider petitioners’ counsel’s
explanation accordingly. See generally Castillo v. Castillo, 150 So. 3d 1255(Fla. 4th DCA 2014); Peterson v. Asklipious, 833 So. 2d 262, 263−64 (Fla.
4th DCA 2002); Wargo v. Wargo, 669 So. 2d 1123 (Fla. 4th DCA 1996).
Consequently, the petition for writ of prohibition is granted.
We note that Florida Rule of Judicial Administration 2.330(h) provides
that prior factual or legal rulings by the disqualified judge may be
reconsidered, vacated or amended by a successor judge upon motion filed
within twenty days of the order of disqualification. Chillingworth, 846 So.
2d at 676 (citing Leslie v. Leslie, 840 So. 2d 1097, 1098 (Fla. 4th DCA
2003)). Thus, upon proper motion, the successor judge may revisit the
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discovery and sanction orders imposed. Id. at 676 (“By saying that, we are
neither suggesting any error in those rulings nor the propriety of those
orders.”).
Petition for writ of prohibition granted.
DAMOORGIAN, C.J., WARNER and TAYLOR, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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