Michaud-Berger v. Hurley

• Decision Date: 18 September 1992
• Docket Number: MICHAUD-BERGER,No. 92-2216,92-2216
• Citation: 607 So.2d 441
• Court: Florida District Court of Appeals
• Parties: 17 Fla. L. Week. D2201 Donna S., etc., et al., Petitioners, v. Honorable Daniel T.K. HURLEY, Respondent.

Page 441

607 So.2d 441

17 Fla. L. Week. D2201

Donna S. MICHAUD-BERGER, etc., et al., Petitioners, v. Honorable Daniel T.K. HURLEY, Respondent.

No. 92-2216.

District Court of Appeal of Florida,

Fourth

District.

Sept. 18, 1992.

Motions for Rehearing, Rehearing en banc and Certification

Denied Oct. 13, 1992.

Jack Scarola of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for petitioners.

Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., West Palm Beach, and George H. Moss of Moss, Henderson, Van Gaasbeck, Blanton & Koval, P.A., Vero Beach, for North American Van Lines; James M. Walker of Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., Miami, for Effort Enterprises, Inc. and Alvin Youngblood, parties in interest.

No appearance for respondent.

DELL, Judge.

Petitioner Donna S. Michaud-Berger filed suit to recover damages for the wrongful death of her husband and three children and for personal injuries. She has filed a petition for writ of prohibition to disqualify the Honorable Daniel T.K. Hurley from presiding in the trial of this matter. We grant the petition.

The trial of this case began on July 20, 1992. On July 22, 1992, respondent declared a mistrial as a result of problems that occurred during jury selection. The trial began again. Late in the afternoon of July 23, respondent issued a 45-page memorandum opinion and final judgment in the case of Scheller v. American Medical International, Inc., No. 80-5519 AF (Fla. 15th Cir.Ct. July 23, 1992). The final judgment in that case denied the law firm of Searcy, Denney, Scarola, Barnhart & Shipley, P.A.'s claim for a charging lien and contained numerous findings of fact concerning Attorney John Scarola. John Scarola and Christian D. Searcy, partners in the foregoing law firm, represent petitioner in the proceedings before the trial court in the case sub judice.

In the Scheller final judgment, respondent made the following statements in regard to Mr. Scarola's representation:

The concepts of material breach and an attorney' [sic] duty of loyalty to the client are ingrained in the law. A lawyer has no greater duty than to serve the client within the law. The claim in this case that the Code of Professional Responsibility somehow justified an eleventh-hour demand that the client execute a written contract in "Scheller VI" is pure sophistry. It masked greed, overreaching and attempted extortion. Nothing in this scenario justifies a departure from traditional contract law.

The next morning, when the trial resumed in this case, the following colloquy occurred between Mr. Scarola and respondent:

MR. SCAROLA: Your Honor, with regard to the Court's order, the Court has entered an order finding that I have engaged in what--

THE COURT: May I stop you for a moment, Mr. Scarola?

MR. SCAROLA: Yes, sir.

THE COURT: You have a motion that you are filing?

MR. SCAROLA: I do not have a written motion.

THE COURT: You do not have a written motion?

MR. SCAROLA: No, sir, I DID not have an opportunity to prepare a written motion and this is more in the nature of an inquiry at this point than it is in a motion.

THE COURT: Can you tell me the subject of the matter of the inquiry without going into detail?

MR. SCAROLA: Yes, sir, I can. I need to inquire whether it's possible for me to continue to participate in this proceeding without prejudicing my client?

THE COURT: I really think that's a decision you need to make.

MR. SCAROLA: Well, sir, I don't think that it's a decision that I can, that I can make without some input from the Court, and if the Court is not inclined to give me any input, then I don't think that I would have any alternative but to withdraw.

In the absence of some assurance from the Court that the Court's findings with regard to my past conduct would have no potential bearing whatsoever upon any aspect of this litigation, if I cannot receive that assurance from the Court I don't have any alternative but in the interest of my client to withdraw from further participation.

I think that my client deserves that reassurance. If I can't give it--

THE COURT: Let me stop you for a second, Mr. Scarola. I want you to know that if that were not the case the Court on its own would have alerted you to that fact. But my inquiry is as to whether you need to file any kind of a motion?

MR. SCAROLA: No, sir, I think that I am satisfied that if that's the Court's response I can give my client the reassurance that she needs that my continued participation will not be of any prejudice to her....

....

THE COURT: I want to assure you, Mr. Scarola, without question, without reservation that your presence in this case would in no way affect the manner in which the Court would discharge its responsibilities and I am well satisfied with that.

MR. SCAROLA: Thank you, sir.

Mr. Searcy then began his opening statement which apparently consumed most of the morning. Shortly before the court recessed for lunch, Mr. Searcy stated:

And the evidence in this case will show that inadequate [sic] measure of damages for Donna, and you need to listen to the evidence and make sure it does in fact show the preview that I discussed with you. But I think the evidence will show that the verdict to measure the damages of Donna Michaud should be no less than ten million dollars.

The trial court sustained defendants' objection on the ground that the foregoing statement constituted argument because Mr. Searcy mentioned a specific amount of damages. After the noon recess, defense counsel moved for a mistrial arguing that Mr. Searcy had violated the court's ruling by writing the words "ten mil" on a handwritten jury verdict form after the objection was sustained. The trial court had authorized Mr. Searcy's use of the handwritten jury verdict form to aid him in the discussion of the elements of damages during opening argument. At this point, another exchange occurred between the court, Mr. Searcy and defense counsel:

MR. SEARCY: ....

I certainly in all instances am going to abide with the Court's rules. I would like to tell the Court that I have in many, many instances in opening statement have talked with the jury about the amount that I believe the evidence will show the damages should be, and I can give the Court transcripts of opening statements in many, many instances where I have done that.

So I'd like to assure the Court that in doing that I believe and do believe that I was perfectly appropriate in doing that. I think you have great discretion in your ruling and once you ruled that I immediately left that subject and did not return to it.

MR. BURNETT: My objection was made--commenced prior to any dollar figure being put on that or spoken. I can't say put on because I didn't know he put it on.

MR. SEARCY: That's not true, Your Honor. I was writing that and saying there is ten million and writing it while I said it, and you'll notice from the record that I didn't even get to finish writing "million" because when Mr. Burnett objected I interrupted right where I was in mid-stream.

MR. BURNETT: If that's not a final argument, Judge.

THE COURT: Thank you very much.

Mr. Searcy, you pride yourself on being an excellent lawyer and you know and I know that what you did is wrong. You know it.

MR. SEARCY: No, sir, I do not. I take exception to that, sir.

THE COURT: It is wrong and that would be my ruling. I get the impression you're going to push as far as you can go and I can't let you do that. I want to have a fair trial.

Now that is wrong in opening statement. I'm going to grant the motion for mistrial. Bring in the jury panel.

Mr. Searcy then stated that he wished to file a motion. The court recessed the trial until Monday, July 27, and asked that the motion be filed as soon as possible. On Sunday, July 26, petitioner delivered a copy of the motion for disqualification to respondent. On Monday, petitioners filed a verified motion for disqualification together with a certificate of good faith. ¹

Petitioner alleged in her verified motion for disqualification that she had read the memorandum opinion and final judgment in Scheller, a headline and article from the Palm Beach Post dated July 24, excerpts of the transcripts from the court proceedings on July 24 and the affidavits of Christian D. Searcy and John Scarola. She stated in part that:

7. From my reading of the attached documents I fear I will not receive a fair trial in the Court where my suit is pending on account of the prejudice of Judge Hurley against my attorneys, Christian D. Searcy and John Scarola. I fear that what I perceive to be a demonstrated prejudice on the part of Judge Hurley towards Mr. Searcy and Mr. Scarola has and will continue to extend to me as their client.

8. From reading Judge Hurley's 45 page Order, I don't see how Judge Hurley could possibly have the respect for Mr. Scarola's integrity that I believe a Court must [have] for a lawyer to be an effective advocate before the Court.

....

12. From my reading of the excerpts from my own trial, I am afraid that Judge Hurley is prejudiced against my attorney Chris Searcy. I understand that Judges make rulings all of the time in trials and I do not complain that Judge Hurley ruled against me. However, it inescapably appears that Judge Hurley has impliedly accused my attorney of being less than truthful with him. After my attorney explained to the Judge that he acted in good faith and on the belief that he was right, but would certainly abide with the Judge's ruling, Judge Hurley stated "Mr. Searcy, you pride yourself on being an excellent lawyer and you know and I know that what you did is wrong. You know it". [sic] From my reading of this excerpt, this statement implying a lack of veracity on the part of my attorney was not in any way necessary for the court's ruling. It appears to me to be an expression of prejudice against my attorney unrelated to a ruling of the Court...