Third District Court of Appeal

State of Florida 

Opinion filed June 29, 2022.

Not final until disposition of timely filed motion for rehearing.

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Nos. 3D21-0773 & 3D21-945

Lower Tribunal No. 19-37110

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Menada, Inc., etc.,

Petitioner,

vs.

Gabriela Arevalo, etc.,

Respondent.

Writs of Certiorari to the Circuit Court for Miami-Dade County.

Lewis Brisbois Bisgaard & Smith LLP and Todd R. Ehrenreich and 

David L. Luck and Stefanie R. Phillips, for petitioner.

Podhurst Orseck, P.A. and Aaron S. Podhurst and Steven C. Marks 

and Stephen F. Rosenthal and Kristina M. Infante; Scott M. Sandler, P.A., 

and Scott M. Sandler, for respondent.

Before FERNANDEZ, C.J., and SCALES and LOBREE, JJ. 

LOBREE, J.
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Petitioner, defendant below, seeks writs of prohibition challenging 

orders denying its first and second disqualification motions based on alleged 

ex parte communication between respondent and the former-presiding judge 

in this wrongful death case. As to the order denying the first disqualification 

motion, we treat the petition for writ of prohibition as a petition for writ of 

certiorari,

1 grant relief, and quash the order. We also quash the order 

denying the second disqualification motion as having been entered by the 

trial court in the absence of jurisdiction.

Respondent filed suit in December 2019 against petitioner for the 

wrongful death of her son. The case was assigned to a circuit court judge in 

Section CA-08 in the General Jurisdiction Division of the Eleventh Judicial 

Circuit. The case proceeded before the judge until January 15, 2021, when, 

pursuant to standard judicial rotation procedures, the judge was transferred 

from the civil division to the family court division. The case then continued

before the successor judge in the civil division. In March 2021, counsel was 

1 In response to our order to show cause why the matter is not moot given 

that the judge at issue no longer serves on the bench, petitioner represents 

that if we find it was entitled to disqualification, it intends to move for 

reconsideration of specific orders under Florida Rule of General Practice and 

Judicial Administration 2.330(j). In this circumstance, we exercise our

authority to treat the petition for writ of prohibition as a petition for writ of 

certiorari. See Barber v. MacKenzie, 562 So. 2d 755, 757 (Fla. 3d DCA 

1990); Pilkington v. Pilkington, 182 So. 3d 776, 778 (Fla. 5th DCA 2015).
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contacted by the prior-presiding judge’s judicial assistant in order to schedule 

a hearing on petitioner’s motion for clarification as to an order entered by 

that judge before transferring out of the civil division. Petitioner objected to 

the prior-presiding judge hearing the motion, asserting that the case was now 

assigned to the successor judge, who had proceeded to hear matters in the 

case. The judicial assistant responded that “she had been notified that the 

parties had requested that [the prior judge] reassert his jurisdiction of the 

case.” (Mot. Disqualify 18 ¶ 32) (emphasis in original). Petitioner then filed 

its first disqualification motion, alleging that the prior-presiding judge had 

engaged in improper ex parte communication with respondent’s counsel,

and that it was “never privy to any request or communication regarding any 

attempt to bring this action back before a judge now serving in the Family 

Division.” Id. at 9. The prior-presiding judge denied the disqualification 

motion and conducted a hearing on the motion for clarification later the same 

day. The first of these petitions followed.

“The standard of review of a trial judge’s determination on a motion to 

disqualify is de novo.” L. Offs. of Herssein & Herssein, P.A. v. United Servs. 

Auto. Ass’n, 271 So. 3d 889, 893 (Fla. 2018) (quoting Parker v. State, 3 So.

3d 974, 982 (Fla. 2009)). “The standard for determining the legal sufficiency 

of a motion to disqualify is whether the facts alleged, which must be assumed 
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to be true, ‘would place a reasonably prudent person in fear of not receiving 

a fair and impartial trial.’” Id. at 894 (quoting MacKenzie v. Super Kids 

Bargain Store, Inc., 565 So. 2d 1332, 1335 (Fla. 1990)). “Actual bias or 

prejudice need not be shown, rather it is the appearance of bias or prejudice 

which requires disqualification.” State v. Oliu, 183 So. 3d 1161, 1163 (Fla.

3d DCA 2016). “For that reason, in cases addressing motions for 

disqualification based on ex parte communications with a judge, the issue is 

not whether an ex parte communication actually prejudices one party at the 

expense of another. Instead, ‘[t]he impartiality of the trial judge must be 

beyond question.’” R.J. Reynolds Tobacco Co. v. Alonso, 268 So. 3d 151, 

154 (Fla. 4th DCA 2019) (quoting Rose v. State, 601 So. 2d 1181, 1183 (Fla. 

1992)); see also Rose, 601 So. 2d at 1183 (“The most insidious result of ex 

parte communications is their effect on the appearance of the impartiality of 

the tribunal.”).

Respondent urges that the ex parte communication as alleged 

concerned only the scheduling of a hearing, which fits within the 

administrative exception to the prohibition on ex parte communications. 

Indeed, the Florida Supreme Court held in Rose that “a judge should not 

engage in any conversation about a pending case with only one of the parties 

participating in that conversation. Obviously, . . . this would not include 
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strictly administrative matters not dealing in any way with the merits of the 

case.” 601 So. 2d at 1183. But the simple scheduling of a hearing is not 

what happened here.

Taking the facts of the disqualification motion as true, as we must, the 

ex parte contact went beyond the administrative scheduling of a hearing and 

ventured into merits-based communication concerning the prior-presiding 

judge’s retention of this case after having been transferred out of the division, 

and after the successor judge in the civil division had proceeded in the case. 

To be sure, such a procedural mechanism for retaining a case after judicial 

rotation to another division exits, but not without authorization from the Chief 

Judge of the Eleventh Judicial Circuit or one of her designated Administrative 

Judges. See Eleventh Judicial Circuit Administrative Order 08-07 (providing 

that “[n]o case shall be retained or heard by a Judge when transferred to 

another division” and setting forth five exceptions to the Order including “[i]n 

the interest of justice and judicial economy, with the approval of the 

Administrative Judges involved”). However, there is no record evidence that 

any such approval was given, and none of the exceptions set forth in AO 08-

07 apply here. Thus, we find that petitioner could have “an objectively 

reasonable, well-grounded fear of not receiving a fair and impartial trial,” 

Rodgers v. State, 948 So. 2d 655, 673 (Fla. 2006), and conclude that 
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disqualification was appropriate. We therefore grant the petition and quash 

the order denying petitioner’s first disqualification motion.

The prior-presiding judge also denied petitioner’s second

disqualification motion, which alleged that the judge had improperly 

commented on the merits of the first disqualification motion at the hearing on 

the motion for clarification. See, e.g., Stelzer v. Chin, 987 So. 2d 785, 785-

86 (Fla. 3d DCA 2008) (stating rule that trial court exceeds proper scope of 

inquiry on motion to disqualify by addressing merits of motion). The denial 

was entered one day after we had entered an order to show cause that 

stayed proceedings in the trial court. See Fla. R. App. P. 9.100(h) (“In 

prohibition proceedings, the issuance of an order directing the respondent to 

show cause shall stay further proceedings in the lower tribunal.”). Because 

the trial court lacked jurisdiction to enter an order while our stay was in place, 

the order is a nullity. Dragomirecky v. Town of Ponce Inlet, 891 So. 2d 633, 

634 (Fla. 5th DCA 2005) (“[A]n order entered without jurisdiction is a nullity, 

and cannot be considered harmless error.”). Accordingly, we also grant the 

second petition and quash the order denying petitioner’s second motion for 

disqualification. See Webking v. Webking, No. 1D21-3496, 2022 WL 

2187210 (Fla. 1st DCA June 17, 2022); Stokes v. Jones, 317 So. 3d 262, 
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263 (Fla. 1st DCA 2021); Ming v. NS FOA, LLC, 291 So. 3d 144, 145–46

(Fla. 4th DCA 2020).

Petitions granted; orders quashed.