Opinion
1D23-1133
05-31-2023
Hunter Allen Goeb, Petitioner, v. Johnny Lee Lunford and CDS Manufacturing, Inc., Respondents.
Brian J. Lee of Morgan &Morgan, Jacksonville, for Petitioner. No appearance for Respondents.
Petition for Writ of Prohibition-Original Jurisdiction.
Brian J. Lee of Morgan &Morgan, Jacksonville, for Petitioner.
No appearance for Respondents.
TANENBAUM, J, concurring in part and dissenting in part.
The petitioner sought prohibition from this court to the trial judge handling his civil suit because he thought the judge improperly denied his motion to disqualify. On May 18, 2023, a majority of the panel hearing the matter in this court rendered an order denying the petition. I would have dismissed the petition instead, and now I write briefly to explain why.
Upon my review of the petition, at least, the petitioner did not sufficiently plead even a preliminary basis for relief. That was the meaning behind our not ordering a response from the respondent before disposing of this original proceeding. See Fla. R. App. P. 9.100(h) (providing for a show-cause order or some other ordering of a response "[i]f the petition demonstrates a preliminary basis for relief"). According to the petitioner, the trial judge presiding in his lawsuit improperly continued to exercise jurisdiction over his case, instead of granting his motion to disqualify.
That motion, in turn, was based on the judge's sharp-elbow critique of counsel's suggested obstructive behavior in discovery. Discovery is a judicially created litigation tool, which means it is under the firm control and enforcement of the trial judge. Members of The Florida Bar are officers of the court. Accordingly, a trial judge's simple, one-off exercise of his or her authority to manage discovery through those officers (including taking counsel to task upon suspicion of recalcitrance or dilatoriness, which appears to be what happened here) should not translate into hurt feelings or offense on the part of counsel or a fear of partiality on the part of the counsel's client. Cf. Fla. R. Gen. Prac. &Jud. Admin. 2.330(e)(1) (providing for a party's reasonable fear "that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge").
Simply put, enforcement (in the form of a stiff talking-to) in one discrete instance during a short Zoom® hearing, as a legal question, cannot equate to prejudice or bias. Indeed, imagine how it might appear to the respondents if the judge took no action at all in the face of their allegations regarding the petitioner's failure to respond to discovery; would they then have a basis to file a motion to disqualify? Rule 2.330 should not be read so broadly as to risk putting trial judges in no-win situations when they are called upon to enforce discovery obligations and controls.
Prohibition is a prerogative writ. Denial of a petition for the writ should be reserved for when a panel exercises its discretion not to issue one even though there may be some legal merit to the request. In this case, there was no exercise of discretion for me. The allegations in the petition were insufficient to make out "a preliminary basis for relief," so I would have dismissed it as such.