petition for writ of prohibition

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

Case No.: 4D13-

LT CASE NO.

502012CA017039XXXXMB

LEWIS KASMAN,

Petitioner,

vs.

WEISS, HANDLER & CORNWELL, P.A.,

a Corporation; HENRY B. HANDLER, and

CAROL A. KARTAGENER;

Respondent.

/

PETITION FOR WRIT OF PROHIBITION

Pursuant to rules 9.100 and 9.030(b)(3) of the Florida Rules of Appellate

Procedure, the Petitioner, LEWIS KASMAN., by and through the undersigned

counsel, respectfully petitions this Court for a Writ of Prohibition precluding the

HONORABLE CATHERINE M. BRUNSON, Circuit Court Judge, from

continuing to preside in the underlying case (Case No.

502012CA017039XXXXMB AO), based upon the Petitioner's belief that he will

not receive a fair and equitable treatment due to Judge Brunson's clear bias toward

the Petitioner and favoritism toward the underlying Defendants and their counsel.

BASIS FOR JURISDICTION

This Court has jurisdiction to issue a Writ of Prohibition under Article V

Section 4(b)(3) of the Florida Constitution and Rules 9.030(b)(3) and 9.100 of the

Florida Rules of Appellate Procedure. Prohibition is recognized as the proper

avenue for seeking the immediate review of the trial court's denial of a motion for

disqualification. Sutton v. State, 975 So. 2d 1073 (Fla. 2008); Cabada v. Costelloe,

888 So.2d 756 (Fla. 4th DCA 2004).

STANDARD OF REVIEW

Whether a motion to disqualify is legally sufficient is a pure question of law,

and should be reviewed by the appellate court de novo. Parker v. State, 3 So.3d

974 (Fla. 2009); see also Lynch v. State, 2 So.3d 47 (Fla. 2008) (whether a motion

to disqualify is legally sufficient is a question of law reviewed de novo.)

STATEMENT OF THE FACTS

Petitioner was party to a dissolution of marriage action in the Court below

that was subject to media attention and prolonged proceedings. (See 15th Judicial

Circuit Case No. 502007DR002635XXXXSB.) As a part of those proceedings, the

Former Wife sought the incarceration of the Former Husband for failure to pay

child support that the Honorable Charles E. Burton verbally indicated he would

order and requested counsel for Petitioner's former wife, Carol A. Kartagener of

the Weiss, Handler law firm, prepare an order. The oral ruling was never reduced

to writing.

Shortly thereafter, the case was reassigned to Judge Martin H. Colin

pursuant to normal reassignment procedures in the court below. At that point,

Carol A. Kartagener and Henry B. Handler lied to Judge Colin that there was a

written order requiring child support payments and that this Petitioner had violated

said Order; no such written order existed for this Petitioner to be in violation.

Further, Carol A. Kartagener and Henry B. Handler, both attorneys at the Weiss,

Handler law firm, never disclosed to Mr. Kasman or his counsel of the existence of

the decision in Baez v. Koelemij which required the disclosure of a past

relationship between Judge Colin and the Weiss, Handler law firm. See Baez, 960

So.2d 918 (Fla. 4th DCA 20071.) In the end, this Petitioner spent 8 days in the

Palm Beach County Jail while his family gathered $40,000.00 to pay his supposed

past due child support. Before the proceedings were concluded by Final Judgment,

new counsel for this Petitioner had the order which placed this Petitioner in jail set

aside based on the fact that there was no underlying order awarding child support.

Petitioner has subsequently filed a Civil Action in the 15th Judicial Circuit

(the lower tribunal) seeking damages against the law firm that prosecuted the

motions which resulted in his improper incarceration, which is now known as

1 Interestingly, in that case, this Court noted, "While Judge Colin may not have been required to disclose this

relationship because Ms. Savitt is not a spouse or relative of the third degree, see Code of Judicial Conduct

Canon 3(E)(1)(d) and Florida Rule of Judicial Administration 2.330(d), it would seem disclosure of the relationship

would have been prudent under the catch-all phrase of the commentary of the judicial canons, which states that a

judge should disclose information that the judge might consider relevant to the question of disqualification."

Weiss, Handler & Cornwell, P.A.; Carol A. Kartagener, the attorney who lied to

Judge Colin about the existence of an order awarding child support; and Henry B.

Handler, the managing attorney at the firm who oversaw the case and without

question was aware of the lies told by his subordinate and supported by him. The

essential claim of the cause of action is for False Imprisonment. That matter is not

yet at issue.

During the handling of this case and the Former Wife's case alleging

malpractice against Weiss, Handler and Cornwell, P.A. law firm, the Judge

Brunson has acted in a manner that leads the Petitioner to the inescapable

conclusion that she will not provide fair and impartial justice to Petitioner during

the pendency of this litigation. Specifically, Petitioner has received information

that the Honorable Peter Blanc spoke to the Judge Brunson and demanded that she

dismiss "the Kasman cases." To add proverbial fuel to the fire, in their non-

permitted Response to the Motion to Disqualify Judge, counsel for the Defendants

stated that this conduct was not subject to any sanction and should be approved.

Also, Judge Brunson has permitted Judge Colin, who is wholly invested in the case

below, to sit in her courtroom, force her to acknowledge his presence and then

subsequently ruled in a fashion that was in the best interest of Judge Colin.

Petitioner filed a Motion to Disqualify Trial Judge on August 14, 2013. (See

Exhibit A). On August 27, 2013, Judge Brunson denied Petitioner's Motion to

Disqualify Judge ex parte stating it was legally insufficient. (See Exhibit B)

ARGUMENT AND AUTHORITIES

The Petitioner filed the Motion to Disqualify in a timely manner, pursuant to

Rule 2.330(2) of the Florida Rules of Administrative Procedure. Additionally, the

Motion was made in compliance with Rule 2.330(c), as well as Chapter 38.10,

Florida Statutes (2013) as the Motion:

1) Was made in writing,

2) Specifically alleged the facts and reasons underlying the motion,

3) Was sworn by the Petitioner,

4) States that no other motions to disqualify have been filed by the

same party in the cause, and

5) Was served upon Judge Brunson.

The factual basis alleged in the Petitioner's Motion to Disqualify was also

legally sufficient to require Judge Brunson to disqualify herself. Specifically, the

Motion establishes this Judges blatant and egregious conduct that is in total

disregard for the Code of Judicial Conduct when address the Petitioner's interests

in this matter and the Former's Wife's related case. In total, Judge Brunson's bias

against the Petitioner is evidenced in the following:

1. Judge Brunson has permitted her courtroom to turn into a circus with a Judge and Louis M. Silber, Chair of the Fourth District Nomination

Commission, who have no business in the matter at hand, to be seen

in her courtroom in a plainly evident attempt to push Judge Brunson

to rule in a certain fashion. Judge Brunson has not inquired publically

why they were in the courtroom nor sought to remove them or close

the courtroom.

2. Petitioner alleged Judge Brunson met with Former Chief Judge Peter Blanc where she was told to dismiss both the case below and the

Former Wife's professional malpractice case. As stated earlier,

counsel for the Defendants, and presumably the Defendants

themselves, stated in a pleading that such conduct should be approved

of by the courts, not discouraged.

As stated previously, this was the initial effort to disqualify a judge in this

action and is therefore subject to a lesser level of scrutiny that a successive motion

would be pursuant to Florida law. Specifically, when determining whether a

motion to disqualify is legally sufficient, the trial court is required to accept the

facts alleged by the movant as true, viewing them from the movant's perspective.

Siegel v. State, 860 So.2d 90 (Fla. 4th DCA 2003); Marshall v. Bookstein, 789

So.2d 455 (Fla. 4th DCA 2001.)

Judicial disqualification is required in any situation where the presented

facts are reasonably sufficient to create a well-founded fear in the mind of the

moving part that he or she will not receive fairness and neutrality. Martin v. State,

804 So.2d 360 (Fla. 4th DCA 2001.) The issue of whether a party has a well-

grounded fear that it will not receive impartial justice, so as to support a motion to

disqualify, is not a question of what the judge feels, but the feeling of the mind of

the movant and the basis for that feeling. J.R. v. State, 959 So.2d 833 (Fla. 4th

DCA 2007); Corie v. City of Riviera Beach, 954 So.2d 68 (Fla. 4th DCA 2007.)

The rules governing disqualification of trial judges permit trial courts only to

conduct a bare determination of the motion's legal sufficiency in order to prevent

an adversarial atmosphere from developing between the judge and litigant Tableau

Fine Art Group, Inc. v. Jacaboni, 853 So.2d 299 (Fla. 2003). Said rules are

designed to keep the courts free from prejudice and bias. Id.

In total, this lower court was required to accept the well-plead facts of the

Motion to Disqualify as true and view them from the Petitioner's perspective in

determining whether the motion's allegations were sufficient to require

disqualification. See Siegel, Marshall.

The Code of Judicial Conduct Canon 3B(3) requires "A judge shall require

order and decorum in proceedings before the judge." An orderly and respectful

courtroom is obviously essential to the carriage of proper justice. Judge Brunson,

by permitting another Judge and the Chair of the Judicial Nominating Committee

for this court to sit in the courtroom and jesture at Judge Brunson is wholly

inappropriate. Further, permitting such an atmosphere clearly creates a legitimate

fear on behalf of this Petitioner that Judge Brunson cannot carry out fair justice in

the court below.

With regard to the second allegation, regarding the alleged ex parte order

from Judge Blanc to Judge Brunson to "dismiss the Kasman cases", this clearly

creates an undeniable justifiable fear on the Petitioner's behalf that he will not

receive a fair trial. The fear is two-fold: first, that this Judge is under that level of

pressure from a former Chief Judge of the Circuit Court below and second, that the

Judge made no effort to disclose any contact with the Chief Judge regarding this

case. The Code of Judicial Conduct in Canon 3B(7) states that "A judge shall not

initiate, permit, or consider ex parte communications, or consider other

communications made to the judge outside the presence of the parties concerning a

pending or impending proceeding." The Canon does grant an exception to permit

inter-judicial communication, but only to the degree that it assists "the judge in

carrying out the judge's adjudicative responsibilities" (Canon 3B(7)(c).) It would

be wholly unreasonable to presume that this permits one Judge, especially a more

senior Judge, to pressure another Judge to dismiss an action, especially without

discussing the underlying merits of said action. It is clear that the well-plead

assertion of the Petitioner in the Motion in the court below created an

impermissible reasonable level of fear that requires disqualification. See

Holter v. Dohnansky, 917 So. 2d 242, 243 (Fla. 5th DCA 2005.)

Chapter 38.10 and Rule 2.330 create a substantive right to request

disqualification of a trial judge when a litigant fears that he or she will not receive

fairness and neutrality because of the prejudice or bias of the presiding judge in the

cause of action. An impartial judge is a basic right of every litigant in this country.

It is the duty of the courts, including appellate courts, to scrupulously guard the

right of a litigant to the impartiality of a judge and to refrain from attempting to

exercise jurisdiction in any matter where the judge's qualifications to do so are in

serious question, through the eyes of the moving party. Hayslip v. Douglas 400

So.2d 553 (Fla. 4th DCA 1981.) A judge must not only be impartial, but she must

leave the impression of impartiality on all who attend court. Anderson v. State, 287

So.2d 322, 324 (Fla. 1st DCA 1973).

CONCLUSION

The Petitioner's Motion to Recuse is legally sufficient, as is in compliance

with Florida Statute 38.10 and Rule 2.330 of the Florida Rules of Administrative

Procedure, and alleges facts that are reasonably sufficient to create a well-founded

fear, in the mind of the Petitioner, that he will not receive fairness and equality,

should Judge Brunson be permitted to continue presiding in this cause. The

Petitioner will be irreparably harmed should this Court permit Judge Brunson's bias

and favoritism to continue to permeate these proceedings, and thus, this Court

should:

1. Immediately grant an Order to Show Cause to the Respondents as to why

this Petition should not be granted, and

2. Grant this petition and issue a Writ of Prohibition forthwith.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of this document was e-mailed to Pete L.

DeMahy, counsel for Defendants., 150 Alhambra Circle, Coral Gables, Fl 33134,

e-mail address [email protected], [email protected]; and by U.S.

mail to The Honorable Catherine M. Brunson, Circuit Court Judge, 205 N. Dixie

Highway, West Palm Beach, Florida 33401 on August 14, 2013.

Respectfully submitted,

NICHOLAS T. STEFFENS & ASSOCIATES, P.A.

NICHOLAS T. STEFFENS

For the Firm

Attorney for Petitioner

Florida Bar No.: 10873

6810 S.R. 7, Second Floor

Coconut Creek, FL 33073

Telephone: (954) 757-1687

Fax: (954) 301-6333

E-Mail: [email protected]

Secondary E-Mail: [email protected]

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the above brief has been prepared in accordance

with the Florida Rules of Appellate Procedure in New Times Roman 14 point Font.

NICHOLAS T. STEFFENS

For the Firm

Attorney for Petitioner

Florida Bar No.: 10873

6810 S.R. 7, Second Floor

Coconut Creek, FL 33073

Telephone: (954) 757-1687

Fax: (954) 301-6333

E-Mail: [email protected]

Secondary E-Mail: [email protected]

petition for writ of prohibition

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