Kenn Air Corp. v. Gainesville-Alachua County Regional Airport Authority

• Decision Date: 25 February 1992
• Docket Number: GAINESVILLE-ALACHUA,No. 91-1664,91-1664
• Citation: 593 So.2d 1219
• Parties: 17 Fla. L. Weekly D558 KENN AIR CORP., a Florida Corporation, Petitioner, v.COUNTY REGIONAL AIRPORT AUTHORITY, Respondent.
• Court: Florida District Court of Appeals

Page 1219

593 So.2d 1219

17 Fla. L. Weekly D558

KENN AIR CORP., a Florida Corporation, Petitioner, v. GAINESVILLE-ALACHUA COUNTY REGIONAL AIRPORT AUTHORITY, Respondent.

No. 91-1664.

District Court of Appeal of Florida First District.

Feb. 25, 1992.

Dana G. Bradford, II, Steven E. Brust, of Baumer, Bradford, Walters & Liles, P.A., Jacksonville and Ronald A. Carpenter, Lucy Goddard, of Carpenter & Goddard, P.A., Gainesville, for petitioner.

Leonard E. Ireland, Jr., of Clayton, Johnston, Quincy, Ireland, Felder, Gadd, Smith & Roundtree, Gainesville and Stephen J. DeMontmollin, Gainesville, for respondent.

ERVIN, Judge.

Petitioner, Kenn Air Corp., filed its petition for writ of certiorari seeking review of an order entered by the circuit court in Kenn Air's pending action against respondent, Gainesville-Alachua County Regional Airport Authority (GACRAA), ¹ which denied Kenn Air's motion to disqualify GACRAA's attorney, Leonard E. Ireland, Jr., and his law firm, Clayton, Johnston, Quincy, Ireland, Felder, Gadd, Smith & Roundtree, from the action. We agree with petitioner that the lower court's order constitutes a departure from the essential requirements of law for which no adequate remedy on appeal exists. We therefore grant the petition and issue the writ.

In 1986 the City of Gainesville (City) sued Kenn Air's predecessor-in-interest, Charter Leasing Corp. (Charter), in connection with a dispute over a lease under which Charter was a tenant of the City at the Gainesville-Alachua County Regional Airport. Charter operated a fixed-base operation (FBO), providing fuel and general aviation services to private aircraft. The suit involved an area called "the hill" and surrounding property located on Charter's leasehold which the City claimed it was entitled to improve under its lease with Charter. Charter protested the improvement, and engaged Leonard E. Ireland, Jr. (Ireland), to defend it in the action. Ireland, on behalf of Charter, reached an agreement with the City to permit its agents to enter the premises and remove the hill. The parties' agreement expressly reserved Charter's right to seek damages in connection with the City's construction efforts.

After the City made the improvements, Ireland filed a counterclaim on behalf of Charter against the City for damages associated with the City's redevelopment of the leasehold. It was alleged that Charter was entitled to damages because the City's improvements (1) hindered Charter's ability to locate properly sized T-hangars for servicing its customers, (2) diverted the flow of water from a nearby creek onto Charter's premises, resulting in a retention area which limited its ability to place the T-hangars on its premises, (3) took property without just compensation, and (4) destroyed two buildings during removal of the hill. The case was eventually voluntarily dismissed without prejudice, pursuant to joint stipulation of the parties.

On March 4, 1988, Kenn Air acquired the rights and interests of Charter by virtue of its purchase from the United States Bankruptcy Court, Northern District of Florida, of all of Charter's tangible and intangible assets. Pursuant to the bill of sale, Kenn Air acquired Charter's leasehold interest in, leasehold improvements on, and contract rights to Charter's leases at the airport, as well as all causes of action attendant thereto.

Kenn Air filed suit in September 1989 against GACRAA seeking declaratory relief and damages associated with GACRAA's revision of the rules and regulations governing FBOs. ² Specifically, Kenn Air alleged that the revisions were carried out in bad faith and in complete derogation of Kenn Air's rights under the lease which it had obtained from the Charter purchase. Moreover, Kenn Air claimed that GACRAA's revisions, to the detriment of Kenn Air, were consistent with GACRAA's and the City's long-standing pattern of bad faith and preferential treatment of various FBOs at the airport. In November 1989, after determining that the damages associated with the City's redevelopment of the then Charter-leased property were severe, Kenn Air filed an amended complaint adding two counts, wherein it sought damages and inverse condemnation associated with the City's actions regarding the hill property in 1986.

GACRAA engaged Mr. Ireland and his firm to represent it in the action. When Ireland first made an appearance on behalf of GACRAA, Kenn Air was unaware of his involvement in the 1986 hill litigation and thus did not initially object to his representation. During the course of reviewing Charter's business records, Kenn Air's president, Kenneth Brown, discovered Ireland's participation in the earlier litigation. Brown also discovered other documents and business records disclosing that Ireland, as attorney for Charter, was also involved in other lawsuits against the City, each involving disputes over various lease agreements.

After fully reviewing all of Charter's litigation and correspondence files in the above matters, Kenn Air's counsel wrote to Ireland and requested that he disqualify himself and his firm from the present litigation. When Ireland refused, Kenn Air filed its motion to disqualify pursuant to Rules 4-1.6, 4-1.7, 4-1.9, and 4-3.7 of the Rules Regulating The Florida Bar. Kenn Air alleged that it was the successor-in-interest to Charter and that one of the substantial matters to be litigated in the action was whether Kenn Air was entitled to damages for "reconfiguration" of the leasehold premises known as the hill, an issue which was similar to that involved in the action Ireland brought on behalf of Charter in 1986. Consequently, Kenn Air alleged that an irrebuttable presumption existed that client confidences were disclosed to Ireland during the course of his representation of Charter, Kenn Air's predecessor-in-interest, and that such confidences could be used to the detriment of Kenn Air if Ireland continued as counsel for GACRAA, which would be an impermissible unfair advantage. Additionally, Kenn Air contended that Ireland acquired knowledge of material facts and circumstances in his prior representation of Charter in numerous other disputes against the City regarding FBO leaseholds, and that the prior Charter actions were substantially similar to the claims set out in Kenn Air's complaint.

The matter came on for hearing, and following the submission of evidence, including Charter's litigation files, the trial court entered the order denying Kenn Air's motion to disqualify Ireland and his firm. In so doing the court found that no ethical violation had occurred and no relationship existed between Ireland and Kenn Air which would require granting the motion to disqualify. Kenn Air now seeks certiorari review of that order.

The requisites to the issuance of a writ of certiorari are that the petitioner demonstrate that the lower court exceeded its jurisdiction in rendering the order or that the order does not conform to the essential requirements of law and may cause material injuries in subsequent proceedings for which remedy by appeal will be inadequate. Ford Motor Co. v. Edwards, 363 So.2d 867, 869 (Fla. 1st DCA 1978). Orders granting or denying motions to disqualify a party's attorney may be appropriately reviewed by certiorari. See, e.g., Jenkins v. Harris Ins., Inc., 572 So.2d 1011 (Fla. 1st DCA 1991); Campbell v. American Pioneer Sav. Bank, 565 So.2d 417 (Fla. 4th DCA 1990); Ford v. Piper Aircraft Corp., 436 So.2d 305 (Fla. 5th DCA 1983), review denied, 444 So.2d 417 (Fla.1984); Sears, Roebuck & Co. v. Stansbury, 374 So.2d 1051 (Fla. 5th DCA 1979).

Rule 4-1.6 of the Rules Regulating The Florida Bar provides that, except in limited circumstances not applicable here, "[a] lawyer shall...