Fabber v. Wessel
| Decision Date | 05 August 1992 |
| Docket Number | No. 92-0787,92-0787 |
| Citation | 604 So.2d 533 |
| Parties | Geraldine L. FABBER, Petitioner, v. Judge John D. WESSEL, Respondent. 604 So.2d 533, 17 Fla. L. Week. D1801 |
| Court | Florida District Court of Appeals |
or Certification of Questions Denied Oct. 5, 1992.
Christopher Q. Wintter of Wintter & Cummings, Hollywood, for petitioner.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Douglas J. Glaid, Asst. Atty. Gen., West Palm Beach, for respondent.
Keith F. Backer of Becker & Poliakoff, P.A., West Palm Beach, for plaintiff Mayfair of Boca Raton Condominium Ass'n Inc.
In her petition for a writ of prohibition, petitioner has established that she and her adversary below participated in court-ordered mediation. Later, the adversary brought a motion to compel compliance with a settlement agreement allegedly reached during the mediation and furnished the court with the specific terms of the asserted agreement. The trial judge denied enforcement upon a finding that no agreement had been reached. Petitioner later moved to disqualify the judge on the basis that privileged mediation communications had been disclosed to the judge by virtue of the motion to compel compliance and that she could no longer receive a fair trial from the judge as a result of the disclosure. The judge denied disqualification.
Section 44.102(3), Florida Statutes (1991), contains the following:
Notwithstanding the provisions of s. 119.14, all oral or written communications in a mediation proceeding, other than an executed settlement agreement, shall be exempt from the requirements of chapter 119 and shall be confidential and inadmissible as evidence in any subsequent legal proceeding, unless all parties agree otherwise.
Petitioner argues that the alleged terms of the putative agreement constitute "communications in a mediation proceeding", that the motion to compel compliance was a "subsequent legal proceeding", and that she did not enter into any agreement or agree to any disclosure. She cites to no particular prejudice, apart from the disclosure itself, but argues essentially that the mere act of disclosure or violation of section 44.102(3) establishes an unavoidable presumption of contamination of the neutrality of the judge who heard or read the disclosure and, hence, that disqualification is required as a matter of law.
Our very recent decision in Hudson v. Hudson, 600 So.2d 7 (Fla. 4th DCA 1992), supports her contention. The essential facts in Hudson are not measurably different from those here, but it was an appeal from a final judgment entered after a judge had previously refused to enforce an alleged settlement agreement from an earlier mediation. Concluding that the "confidentiality of the negotiations should remain inviolate until a written agreement is executed by the parties," we held that the "well was poisoned" by the simple fact of the disclosure of the unexecuted agreement and that the poison infected the ultimate judgment. Id. We are unable to distinguish Hudson on any principled basis.
Even if we could do so, we would still be forced to grant prohibition for an equally compelling reason. One of petitioner's grounds for disqualification of this trial judge was an assertion that he had demonstrated his partiality by assisting her adversary in a contested hearing. In the response filed in this court, the judge takes exception with the accuracy of petitioner's...
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