Frederick J. Keitel, III, FJK Properties, Inc., and FJK IV Properties, Inc. v. Thomas D. Agostino, Sr.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
FREDERICK J. KEITEL, III, FJK PROPERTIES, INC.,
and FJK IV PROPERTIES, INC.,
Petitioners,
v.
THOMAS D. AGOSTINO, SR.,
Respondent.
No. 4D14-2368
[October 8, 2014]
Petitioner for writ of prohibition to the Fifteenth Judicial Circuit, Palm
Beach County; Meenu Sasser, Judge; L.T. Case No.
502013CA004692XXXXMB.
Frederick J. Keitel, III, Palm Beach, for petitioners.
Eric Christu and Jonathan P. Hart of Shutts & Bowen, LLP, West Palm
Beach, for respondent.
GROSS, J.
This is a petition for writ of prohibition following a judge’s denial of a
motion to disqualify her from presiding over a civil case after petitioners
set the judge for a deposition to gather information to support their motion
for recusal. We conclude that the motion to recuse and its supporting
documents were not legally sufficient and deny the petition.
We state the allegations of the petition without any finding as to their
veracity. There are several related cases between the parties pending in
the Fifteenth Judicial Circuit. Three cases were in front of Judge Cox;
another was in front of Judge Sasser. Judge Cox agreed that all of the
cases could be transferred to his division; Judge Sasser denied the
petitioners’ motion to transfer. At a hearing on February 4, 2014, Judge
Sasser said that she had “communications with Judge Cox.” Judge Cox
recused himself from all of petitioner’s cases on March 5, 2014.
Without any reference to anything of record, petitioner “believes Judge
Sasser defamed [him] and sabotaged [his] cases before Judge Cox, causing
Judge Cox to have prejudice against [petitioner] and ultimately causing
Judge Cox to recuse himself.”
Petitioner sought to take the depositions of Judges Cox and Sasser. At
a May 14 case management hearing which petitioner did not attend, Judge
Sasser discussed petitioner’s attempt to depose her with G. Michael
Keenan, another lawyer in the case. Nothing Judge Sasser said at the
hearing is sufficient to recuse her; she discussed pending matters.
On May 19, 2014, there was a hearing on petitioner’s motion to compel
Judge Sasser’s deposition. Petitioner argued his motion. He told the
judge:
I did consult, Your Honor with former judges, prosecutors,
lawyers, former law clerks, and Supreme Court Justices about
this case before I even filed the deposition notices. Without
going into violating any privileges that I received from them, I
think universally everyone I spoke to said the same thing:
They feel that your actions in defaming me and defaming our
–
Judge Sasser cut petitioner’s argument short, pointing out that it was “not
appropriate for this matter.” After hearing briefly from opposing counsel,
the Judge passed the ruling on to another judge with a related motion.
Petitioner moved to recuse Judge Sasser. He alleged,
[u]pon information and belief, [that] Judge Sasser has
maliciously continued to defame and sabotage me to other
judges, to the point that she has made it the gossip of the
courthouse to unduly prejudice me, my clients and my cases
before other judges I appear before, and poisoning the well for
all judges in Palm Beach County, to the point where I cannot
get a fair and impartial hearing in Palm Beach County due to
the undue influence of Judge Sasser, and all the related cases
should be transferred outside of Palm Beach County to an
independent judge.
He also alleged that lawyer Keenan told him that, at the May 14 hearing,
he “felt fear and intimidation” and “personally felt threatened.” Keenan
filed no affidavit. Petitioner argued that Judge Sasser “has become
antagonistic, prejudiced and biased” against petitioner because he “sought
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to depose her.” Judge Sasser denied the motion to recuse as legally
insufficient.
Under Florida Rule of Judicial Administration 2.330, a motion to
disqualify must “allege specifically the facts and reasons upon
which the movant relies as the grounds for disqualification.” Fla.
R. Jud. Admin. 2.330(c)(2). The motion must show “that the party
fears that he or she will not receive a fair trial or hearing because
of specifically described prejudice or bias of the judge.” Fla. R. Jud.
Admin. 2.330(d)(1).
Louissant v. State, 125 So. 3d 256, 259 (Fla. 4th DCA 2013).
The purported incidents of defamation and sabotage are tied to nothing:
nothing in the record, nothing the judge said at a hearing, nothing from
anyone who heard a defamatory statement. While Mr. Keitel may have felt
afraid at the May 14 hearing, nothing Judge Sasser said could reasonably
have induced his fear. “A legally sufficient motion for disqualification
cannot be based upon rumors or gossip about what the trial judge
allegedly said to unidentified people, at unidentified times, and under
unidentified circumstances.” Barwick v. State, 660 So. 2d 685, 693 (Fla.
1995) (finding motion legally insufficient) (receded from on other grounds
in Topps v. State, 865 So. 2d 1253 (Fla. 2004)). No objective information
contained in the motion to recuse was legally sufficient to support the
standard for disqualification.1
That Judge Sasser and Judge Cox may have communicated about
related cases is of no moment. There is nothing improper about two judges
conferring about related cases. See McCorkle v. United States, 6:06-CV-
950-ORL19JGG, 2007 WL 177683 (M.D. Fla. 2007) (where court stated
that any communications it had with magistrate judge “incident to this
matter were conducted in a judicial capacity and provide no basis for
recusal”).
1We agree with Judge Sharp’s observation in Dura-Stress, Inc. v. Law, 634 So. 2d
769, 770 (Fla. 5th DCA 1994), where she pointed out that no Florida case has
allowed disqualification based solely on hearsay:
Although the party moving for disqualification of a judge need not
have personal knowledge of the facts asserted in an affidavit filed to
establish a basis to disqualify a judge, the affiant clearly must have
some first-hand knowledge upon which to swear to the truth of the
facts alleged. Otherwise, the affidavit is not truly an affidavit.
Id. (footnote omitted).
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Finally, petitioner cannot bootstrap his attempt to depose the judge into
a conflict that would force her recusal. The general rule is that “litigants
may not probe into a judge’s mental process” by setting her for deposition.
United States v. Roebuck, 271 F. Supp. 2d 712, 720-21 (D.V.I. 2003); see
Stein v. Prof’l Ctr., S.A., 666 So. 2d 264, 266 (Fla. 3d DCA 1996) (holding
that judge could not be deposed to “testify as to the meaning of an order
previously entered”).
We have found no case where a judge has been “required to submit to
discovery or compelled to testify in connection with a motion for his
disqualification.” Roebuck, 271 F. Supp. 2d at 720; see also Cheeves v.
Southern Clays, Inc., 797 F. Supp. 1570, 1580 (M.D. Ga. 1992); In re
McCarthy, 368 F.3d 1266 (10th Cir. 2004) (involving attempt to take
discovery from trial judge who denied motion for recusal). We agree with
the policy reasons articulated in Cheeves against allowing compulsory
discovery from a presiding judge in support of a motion to recuse the judge:
Embroiling the presiding judge in the adversarial processes of
any case is not only unseemly, it is calculated to give rise at
the least to a resulting appearance of bias against the
aggressor litigant although, as previously noted, that species
of boot strap bias cannot be recognized, as a matter of law, as
a disqualifying circumstance. To do so would simply invite
manipulated harassment by any lawyer unscrupulous
enough to willingly embark on a course of conduct designed
to disqualify an otherwise impartial judge whose views are
thought to be adverse to the interests of the client. Such a
tactic would, at worst, cause an unjustified voluntary
disqualification of the presiding judge or, at least, cause
endless delay in the litigation while those maneuvers are in
process.
Cheeves, 797 F. Supp. at 1582-83.
The petition for writ of prohibition is denied.
LEVINE and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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