Gutierrez v. Rubio
126 So. 3d 320
Fla. Dist. Ct. App.2013Background
- Plaintiffs Suarez, Gutierrez, and CMG Entertainment sue Rubio for breach of contract; Wolfe initially filed the state-court action in 2010 on plaintiffs’ behalf.
- Rubio hired Restrepo as her personal assistant in Sept. 2012 and fired him in Oct. 2012; Restrepo then retained Wolfe to represent him in an unrelated federal claim against Rubio.
- Movants sought disqualification of Wolfe in Nov. 2012 claiming Restrepo had access to confidential, privileged information and disclosed it to Wolfe.
- The trial court held a non-evidentiary hearing and granted Wolfe’s disqualification based on conflicting affidavits.
- Florida law treats disqualification as an extraordinary remedy; on these facts the court should have held an evidentiary proceeding to resolve material conflicts.
- The Florida Supreme Court granted certiorari, quashed the order, and remanded for an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the disqualification proper without an evidentiary hearing? | Affidavits alone were insufficient to prove disclosure. | Confidential-information issues were real and contested in affidavits. | Quash; remand for evidentiary hearing. |
| Did Restrepo’s access to information create an unfair tactical advantage? | Restrepo had access and disclosed information to Wolfe. | Disclosures and advantage contested; not proven yet. | Remand for evidentiary development; no ruling on merits. |
| Is pre-judgment certiorari review appropriate for pre-trial disqualification orders? | Disqualification is an extraordinary remedy subject to review. | Disqualification decisions are reviewable under certiorari in limited cases. | Certiorari granted; order quashed; remanded. |
Key Cases Cited
- Allstate Ins. Co. v. Bowne, 817 So.2d 994 (Fla. 4th DCA 2002) (disqualification is drastic and should be used sparingly)
- Freeman v. Chicago Musical Instrument Co., 689 F.2d 715 (7th Cir. 1982) (disqualification is extraordinary, protective, and can be misused)
- Transmark, U.S.A., Inc. v. State Dep’t of Ins., 631 So.2d 1112 (Fla. 1st DCA 1994) (extreme remedy; prudent to seek other remedies first)
- Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla. 1987) (pretrial certiorari relief is extraordinary and should not bypass interlocutory appeal)
- Henn v. Sandler, 589 So.2d 1334 (Fla. 4th DCA 1991) (recognizes narrow role of certiorari before judgment)
- Plaza Resorts v. Janus Amer. Grp., 811 So.2d 850 (Fla. 4th DCA 2002) (requires evidentiary determination on confidential-information issues)
- Whitener v. First Union Nat’l Bank, 901 So.2d 366 (Fla. 5th DCA 2005) (confirms need to show actual disclosure and unfair advantage)
- Stewart v. Bee-Dee Neon & Signs, Inc., 751 So.2d 196 (Fla. 1st DCA 2000) (discusses hiring personnel with client confidences)
- City of Apopka v. All Corners, Inc., 701 So.2d 641 (Fla. 5th DCA 1997) (disqualification required only with evidence of obtained confidential information)