TERREL VIALVA v. CHELSII NUNEZ

Third District Court of Appeal
State of Florida
Opinion filed October 6, 2021.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-1292
Lower Tribunal No. 20-698-K
________________
Terrel Vialva,
Petitioner,
vs.
Chelsii Nunez,
Respondent.
A Case of Original Jurisdiction – Prohibition.
Joyce Law, P.A., and Richard F. Joyce, for petitioner.
No appearance for respondent.
Before LOGUE, MILLER and LOBREE, JJ.
LOGUE, J.
Terrel Vialva petitions for a writ of prohibition disqualifying the trial court
based upon prejudice against Vialva’s chosen attorney. We have previously
recognized the extraordinary demands our law places on trial judges: “the
trial court, no matter how much his or her patience is taxed . . . , must never
abandon the outlook and appearance of a dispassionate and objective
magistrate.” Masten v. State, 159 So. 3d 996, 997–98 (Fla. 3d DCA 2015).
Because Vialva sufficiently attested that this standard was not met here, we
grant the petition.
FACTS
The underlying case involves a paternity action filed by Chelsii Nunez
against Vialva. For the first six months of the litigation, Vialva represented
himself without counsel. He then hired present counsel. Shortly afterwards,
Vialva moved to disqualify the trial court for prejudice against his counsel.
The affidavits supporting Vialva’s motion attest that the trial judge said in a
prior case certain comments that we have held warrant disqualification.
Murphy v. Collins, 307 So. 3d 102, 106 (Fla. 3d DCA 2020). Nunez filed a
response noting counsel was hired after the identity of the trial judge was
known and contending “the new subsection of the Florida Rules of General
Practice and Judicial Administration 2.330 specifically prohibits exactly what
[Vialva’s counsel] is trying to achieve.”
2
Although the court had previously granted other litigants’ motions to
disqualify filed after the Murphy decision was issued, the trial court denied
Vialva’s motion. Citing to the Rule, the order denying the motion states:
Law Offices of [Vialva’s counsel] have entered an
appearance on behalf of [Vialva] in this ongoing lawsuit, with full
knowledge of the assigned Judge. Counsel cannot now move to
disqualify on grounds of bias against the attorney . . . . A Court’s
decision to disqualify from one case is not a basis to seek
disqualification in another case, otherwise a Judge will serve only
at the whim of counsel.
Vialva timely filed a petition for a writ of prohibition.
ANALYSIS
“A motion to disqualify is governed substantively by section 38.10,
Florida Statutes . . . and procedurally by Florida Rule of [General Practice
and] Judicial Administration 2.330.” Peterson v. State, 221 So. 3d 571, 581
(Fla. 2017) (alterations omitted) (quoting Gore v. State, 964 So. 2d 1257,
1268 (Fla. 2007)). The only restriction Rule 2.330 places on the right to
disqualify a trial judge for prejudice against a party’s chosen counsel is that
the motion cannot be made based on a claimed prejudice against the party’s
“substitute” or “additional” counsel. In this regard, subsection (f) of the Rule
reads in pertinent part:
(f) Prohibition Against Creation of Grounds for
Disqualification Based Upon Appearance of Substitute or
Additional Counsel. Upon the addition of new substitute
counsel or additional counsel in a case, the party represented by
3
such newly appearing counsel is prohibited from filing a motion
for disqualification of the judge based upon the new attorney’s
involvement in the case.
Id. (emphasis added).
Under basic principles of textual interpretation, the expression in the
rule of certain prohibitions excludes the existence of other prohibitions.
Delong v. Fla. Fish & Wildlife Conservation Comm’n, 145 So. 3d 123, 127
(Fla. 3d DCA 2014) (discussing the doctrine of expressio unius est exclusio
alterius). Because the Rule prohibits motions to disqualify based on
prejudice only against substitute or additional counsel, by implication it does
not prohibit motions based on prejudice against initial counsel. We are
interpreting a rule, not drafting one. “Our task is to apply the text, not to
improve upon it.” Pavelic & LeFlore v. Marvel Ent. Grp., 493 U.S. 120, 126
(1989) (Scalia, J.).
Substitution of counsel involves one attorney replacing, or substituting
for, another attorney. Fla. R. Gen. Prac. & Jud. Admin. 2.505(e)(3)–(4)
(discussing requirements for substitution of counsel); see also Bryan A.
Garner, Garner’s Dictionary of Legal Usage 858 (3d ed. 2011) (defining
“substitute” as “to put a person or thing in place of another”). And one cannot
retain an “additional” attorney unless one already has an attorney. A person
representing himself or herself is, by definition, without the assistance of
4
counsel. See, e.g., Amend. VI, U.S. Const. (providing an accused in a
criminal prosecution has the right to assistance of counsel). Because
Vialva’s counsel is not “substitute counsel or additional counsel,” the Rule
does not prohibit Vialva’s motion.
The Rule and the case law agree on this point. While some cases have
prohibited the filing of a motion to disqualify based on prejudice against
counsel when counsel was hired after the identity of the trial judge was
known, those cases involved claims of prejudice against additional or
substitute counsel. For example, Town Centre of Islamorada, Inc. v. Overby,
592 So. 2d 774, 775–76 (Fla. 3d DCA 1992), involved a motion to disqualify
based on the addition of “local co-counsel” brought into the case “five months
after filing.” Similarly, Sume v. State, 773 So. 2d 600, 601 (Fla. 1st DCA
2000), involved “an alleged conflict between the judge and an attorney
recently retained as co-counsel.” Neither of these cases involved a claim of
prejudice against initial counsel.
The distinction that both the Rule and the case law makes between
motions to disqualify based on initial counsel (allowed) and additional or
substitute counsel (disallowed) reflects the great deference our law gives to
a party’s right to choose his or her counsel, at least initially. The right to
choose one’s lawyer is “at the heart of one of the most important
5
associational rights.” Coral Reef of Key Biscayne Devs., Inc. v. Lloyd’s
Underwriters at London, 911 So. 2d 155, 157 (Fla. 3d DCA 2005). At the
same time, the Rule is designed to address the problem of lawyers, who are
already retained, advising their clients to hire substitute or additional counsel
as a means of forum shopping. As the Supreme Court explained:
“subdivision (f) . . . is amended in order to eliminate the ability of manipulation
by practitioners who create grounds for disqualification through the
appearance of substitute or additional counsel.” In re Amends. to Fla. Rules
of Jud. Admin.–2020 Regular-Cycle Rep., 310 So. 3d 374, 376 (Fla. 2021)
(emphasis added). For these reasons, Vialva was not prohibited from filing
the motion.
We grant the petition but withhold issuance of the writ confident that
the able and experienced trial judge involved will promptly comply.
Petition granted; writ withheld.
6