Post-Newsweek Stations, Florida, Inc. v. Kaye, POST-NEWSWEEK

• Decision Date: 03 September 1991
• Docket Number: 91-903,POST-NEWSWEEK,Nos. 91-1108,s. 91-1108
• Citation: 585 So.2d 430
• Parties: STATIONS, FLORIDA, INC., d/b/a WPLG Television, Susan Candiotti, Marcia Izaguirre, John Terenzio, G. William Ryan, and L. Stanley Paige, Petitioners, v. Honorable Robert P. KAYE, Respondent.STATIONS, FLORIDA, INC., d/b/a WPLG Television, Susan Candiotti, Marcia Izaguirre, John Terenzio, G. William Ryan, and L. Stanley Paige, Petitioners, v. SOUTHERN AIR TRANSPORT, INC., Respondent. 585 So.2d 430, 16 Fla. L. Week. D2295
• Court: Florida District Court of Appeals

Page 430

585 So.2d 430

POST-NEWSWEEK STATIONS, FLORIDA, INC., d/b/a WPLG

Television, Susan Candiotti, Marcia Izaguirre,

John Terenzio, G. William Ryan, and L.

Stanley Paige, Petitioners, v. Honorable Robert P. KAYE, Respondent.

POST-NEWSWEEK STATIONS, FLORIDA, INC., d/b/a WPLG

Television, Susan Candiotti, Marcia Izaguirre,

John Terenzio, G. William Ryan, and L.

Stanley Paige, Petitioners, v. SOUTHERN AIR TRANSPORT, INC., Respondent.

Nos. 91-1108, 91-903.

585 So.2d 430, 16 Fla. L. Week. D2295

District Court of Appeal of Florida Third District.

Sept. 3, 1991.

Steel, Hector & Davis, Donald M. Middlebrooks, Thomas R. Julin, Adalberto Jordan, Talbot D'Alemberte, and Edward M. Mullins, Miami, for petitioners.

Beckman & Kirstein, Washington, D.C., Dwight Sullivan, Robert A. Ginsburg and Roy Wood, Miami, for respondents.

Before HUBBART, BASKIN and LEVY, JJ.

ON PETITION FOR WRIT OF PROHIBITION/WRIT OF CERTIORARI

BASKIN, Judge.

Petitioners seek a writ of prohibition to restrain the trial judge from presiding and seek certiorari review of an order denying their motion to compel discovery. We deny both petitions.

First, we address the petition for writ of prohibition. The sole consideration in ruling on a motion for disqualification is whether the litigant requesting disqualification reasonably fears that he or she will not receive a fair or impartial trial. MacKenzie v. Super Kids Bargain Store, Inc. 565 So.2d 1332 (Fla.1990); Fischer v. Knuck, 497 So.2d 240 (Fla.1986); Livingston v. State, 441 So.2d 1083 (Fla.1983). Petitioners' trial court motion for disqualification is predicated on the possible extrapolated effects of the court's decision on the motion to compel discovery; it is not premised on existing facts. The motion does not demonstrate "some actual bias or prejudice so as to create a reasonable fear that a fair trial cannot be had...." Dragovich v. State, 492 So.2d 350, 353 (Fla.1986). The basis for petitioner's motion is the adverse judicial ruling, an improper ground for disqualification. Claughton v. Claughton, 452 So.2d 1073 (Fla. 3d DCA 1984); Nassetta v. Kaplan, 557 So.2d 919 (Fla. 4th DCA 1990). The trial court therefore correctly denied the motion for disqualification as legally insufficient. MacKenzie.

We turn next to the petition for writ of certiorari. To be reviewable by certiorari, an order must depart from the essential requirements of law, and there must be no adequate remedy on appeal. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987); American Southern Co. v. Tinter, Inc., 565 So.2d 891 (Fla. 3d DCA 1990); Feldman v. Glucroft, 553 So.2d 282 (Fla. 3d DCA 1989); General Development Corp. v. Stanislaus, 544 So.2d 306 (Fla. 3d DCA), review denied, 551 So.2d 461 (Fla.1989). A trial court has broad discretion to deny discovery motions, American Southern Co., 565 So.2d at 892, and certiorari may not be utilized to review rulings if the alleged error can be rectified on appeal. American Southern Co., 565 So.2d at 893. Any injury petitioners may suffer from the denial of their motion to compel discovery can be adequately remedied on appeal.

Prohibition denied; certiorari denied.

HUBBART, J., concurs.

LEVY, Judge (dissenting).

I respectfully dissent. A careful review of the facts reveals that the petitioners' motion to disqualify the trial judge was legally sufficient and thus the writ of prohibition should have been granted.

This case arises out of a lawsuit filed by Southern Air Transport, Inc., against petitioners Post-Newsweek Stations, Florida, Inc., d/b/a WPLG Television, et al., seeking damages for libel and slander. Southern Air Transport brought suit against the petitioners, which reported that Southern Air Transport's planes and pilots were being used by the CIA to transport drugs in exchange for guns used to arm the Nicaraguan Contras.

The defendant petitioners subsequently sought discovery of certain Southern Air Transport documents seeking information that went to the truth of the complained broadcast and to determine whether Southern Air Transport was acting as an agent or instrumentality of the United States government. Southern Air Transport refused to comply with certain discovery requests on an the basis that the information sought was irrelevant to the case, and would constitute a national security violation. Two of Southern Air Transport's principal officers also refused to answer certain questions posed during depositions on the same grounds. The petitioners then filed a motion to compel Southern Air Transport's president to provide certain discovery, and Southern Air Transport filed a motion for protective order. At the hearing on the motions, Southern Air Transport argued that the information sought could not be disclosed for national security reasons and suggested that the court hold an in camera interview with Southern Air Transport's president in order to determine the basis for the asserted national security privilege and the relevancy of the information. ¹ Over the petitioners' objections, the trial court held an ex parte meeting with Southern Air Transport's president during which the two conversed about the case for approximately one-quarter of an hour. ² The petitioners' defense counsel, the court reporter, and Southern Air Transport's own counsel were all excluded during this in camera private meeting. Thereafter, the trial court denied the petitioners' motion to compel stating: "Well, it is the nature of national security information and it is the nature of being immaterial and irrelevant in any event even it is it not determined to have been in the national interest or National Security Secrecy Act. So it does not make any difference either way."

The petitioners then filed a motion to disqualify the trial judge asserting that they had a reasonable fear that they would not receive a fair trial in front of the trial judge because of his private communication with Southern Air Transport's president. The trial court denied the motion and the petitioners sought a writ of prohibition from this Court to restrain the trial judge from presiding over the case.

A motion to disqualify a judge is legally sufficient if the attested facts demonstrate that a reasonably prudent person would be placed in fear of not receiving a fair and impartial trial. Livingston v. State, 441 So.2d 1083 (Fla.1983). As noted by the Florida Supreme Court in Livingston v. State, 441 So.2d at 1087:

The facts alleged in the motion need only show that "the party making it has a well grounded fear that he will not receive a fair trial at the hands of the judge." [Brown v.] Dewell, 131 Fla. at 573, 179 So. at 697 [ (1938) ]. "If the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there." [Davis v.] Parks, 141 Fla. at 518, 194 So. at 614 [ (1939) ]. Further, "it is a question of what feeling resides in the affiant's mind and the basis for such feeling." Dewell, 131 Fla. at 573, 179 So. at 697-98.

.... What is important is the party's reasonable belief concerning his or her ability to obtain a fair trial. A determination must be made as to whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.

Moreover, in...