       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                  PUBLIX SUPER MARKETS, INC., and
                          RANDOLPH SAPP,
                             Petitioners,

                                     v.

MONICA OLIVARES, individually, and as Personal Representative of the
             ESTATE OF ALBERTO OLIVARES,
                         Respondent.

                              No. 4D19-2202

                             [January 8, 2020]

   Petition for writ of prohibition to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; William W. Haury, Jr., Judge; L.T. Case
No. CACE18-006314.

  Edward G. Guedes and Adam M. Hapner of Weiss Serota Helfman Cole
and Bierman, P.L., Coral Gables, for petitioner Publix Supermarkets, Inc.

  Cindy J. Mishcon of Lewis Brisbois Bisgaard & Smith LLP, Fort
Lauderdale, for petitioner Randolph Sapp.

   Raymond Valori, Michael Freedland and Melissa Gunion of Freedland
Harwin Valori, P.L., Fort Lauderdale, and Kara Rockenbach Link and
Daniel M. Schwarz of Link & Rockenbach, P.A., West Palm Beach, for
respondent.

WARNER, J.

    Petitioners seek a writ of prohibition to disqualify the trial judge from
presiding in this negligence case involving a claim of punitive damages.
They claim that the judge is biased against them on an issue central to
their defense on the punitive damage claim. After careful review of the
transcripts of proceedings, we deny the writ. We conclude that the
comments, taken in context, do not create a reasonable fear that the judge
is biased or had prejudged the issues involved.
    This petition arises in an underlying wrongful death case. The
Respondents/plaintiffs (the decedent’s spouse and his estate, hereinafter
referred to as plaintiffs) allege that the decedent was driving his car
through an intersection on a green light, while petitioner/defendant
Randolph Sapp was driving a Publix delivery truck on a cross street
approaching a red light at the same intersection. Sapp, who was on his
cell phone at the time, drove through the red light and collided with the
decedent’s car, causing his death. Plaintiffs alleged that cell phone use by
the driver contributed to distracting the driver, causing the accident.

   After two hearings, one on the plaintiffs’ motion to amend to claim
punitive damages, petitioners Publix and Sapp filed a motion to disqualify
the trial judge based upon several comments made during the hearings.
They claim that these comments show the court’s bias against their
position that the hands-free use of a cell phone, or a policy permitting it,
does not justify punitive damages, because cell phone use in a vehicle is
not prohibited by law. The judge, who had encountered the issue of cell
phone use in other cases, engaged defense counsel in questioning based
upon the Socratic method, posing hypotheticals to test the defense
argument. The judge ruled against petitioners and granted the motion to
amend to add a claim of punitive damages.

   In this petition, we do not address whether the judge was right or wrong
as a matter of law in allowing the claim for punitive damages. We only
address whether the judge should be disqualified because of the comments
made on the issue throughout the hearing.

   To clearly understand the comments made, we recite at length the
proceedings at both hearings. The comments with which the Petitioners
take issue are bolded for understanding by the reader.

   The plaintiffs filed their initial complaint against Sapp and Publix in
March 2018. Publix moved for summary judgment on some issues, but at
a hearing in February 2019, plaintiffs sought to continue or for the court
to deny the motion because of outstanding discovery. During that hearing,
plaintiffs’ attorney noted he was requesting T-Mobile records. The judge
queried whether they knew that Sapp was on the phone, and counsel
stated they knew Sapp was on the phone at the time of the accident.
Counsel then stated:

      MR. VALORI: We know he was on the phone, we’re trying to
      figure out whether he was on the phone during the other 7 or
      8 accidents that he had.


                                     2
      THE COURT: Publix doesn’t have a policy about talking and
      driving?

      MR. RUFF: Publix has a policy that says you follow, it’s a
      federal note[] of safety act, and that is, you could be on the
      phone but it has to be hands free. There’s no evidence, in this
      case, that the use of the phone, in this accident, was anything
      other than hands free.

      MR. VALORI: That’s part of the story, your Honor.

      THE COURT: Are you going to change that policy, at some
      point?

      MR. RUFF: That’s nothing I could speak to and I would charge
      if they asked me for an opinion on that.

Defense counsel went on to argue other matters, and the court ultimately
denied the motion without prejudice because of the outstanding discovery.
The defense did not move to disqualify the judge for this single comment.

    In April 2019, after conducting extensive additional discovery, the
plaintiffs moved to amend the complaint to plead punitive damages,
presenting proffers of evidence from depositions and exhibits. The
plaintiffs argued that Sapp could be held liable for punitive damages
because he was grossly negligent—his conduct was “so reckless or wanting
in care that it constituted a conscious disregard or indifference to the life,
safety, or rights of persons exposed to such conduct.” § 768.72(2)(b), Fla.
Stat. (2018). The plaintiffs alleged that Sapp was speeding and inattentive.
He was talking on his cell phone while driving, “for the expressed purpose
of distracting himself from the driving task,” which he did “continually and
habitually.” As to Publix, the plaintiffs argued that the company could be
held liable for punitive damages because it “actively and knowingly
participated” in Sapp’s conduct, “knowingly condoned, ratified, or
consented” to Sapp’s conduct, and itself “engaged in conduct that
constituted gross negligence and that contributed to the loss, damages, or
injury suffered by [the plaintiffs].” § 768.72(3), Fla. Stat. (2018). The
plaintiffs alleged that Publix negligently trained Sapp and “ratified” his cell
phone use and speeding.

  At a hearing in June, the parties sought to address both a renewed
motion for summary judgment by Publix with respect to claims of negligent


                                      3
hiring and retention, and the plaintiffs’ motion to amend to add a claim for
punitive damages. Publix posited that because it conceded Sapp was
within the course and scope of his employment at the time of the accident,
there could be no cause of action for negligent hiring and retention, as
those causes of action were limited to circumstances where an employee
was acting outside the scope of employment. The judge questioned
counsel on that and posed a hypothetical regarding drinking:

      THE COURT: Let’s go back to my initial question. Are you
      telling me you cannot have conduct that is both within and
      without the course and scope of employment at the same
      time?

      MR. RUFF: I believe that would be correct, Your Honor. But
      that’s not an issue.

      THE COURT: What if he were drinking?

      MR. RUFF: If he were drinking and we challenged it, it would
      be a question of fact for the jury, whether he was inside or
      outside the course and scope. Here, there is no challenge.
      They’re admitting he was inside the course and scope.

The judge and Publix’s attorney continued to debate the validity of the
negligent retention claim and course and scope of employment, using the
drunken employee hypothetical, until plaintiffs’ counsel suggested that he
proffer the evidence to support the punitive damage claim to explain the
context of the direct liability claims and punitive damage claim against
both Sapp and Publix. He then made an extensive proffer.

   The plaintiffs maintained that Sapp was grossly negligent. The
proffered evidence showed that he was driving downhill on a curved road,
approaching a red light in a residential neighborhood with a forty-mile-
per-hour speed limit. He was driving fifty-one miles per hour one minute
before the accident but slowed to forty-four miles per hour immediately
before impact. He was “oblivious to the red light” because he was talking
on his cell phone to a friend (and fellow Publix truck driver), which he did
“pretty much continuously” throughout the day. He ran the red light,
causing the accident. The decedent’s car was the second car through the
intersection, showing how flagrantly Sapp disobeyed the red light signal.

   An expert on commercial trucking explained how commercial drivers
required special training and special licensing for driving rigs weighing as


                                     4
much as 80,000 pounds. The plaintiffs presented evidence that Publix
specially trains its truck drivers on managing speed, looking ahead at
traffic, scanning at intersections, paying attention to their surroundings,
and avoiding distracted driving. A truck driver “is required to exhibit a
higher level of skill than a driver of a regular car.” Video clips from these
training sessions were played in court. The plaintiffs’ attorney then laid
out how this training and Publix’s cell phone policy were inconsistent.
While training emphasized speed management, scanning and
attentiveness, particularly at intersections, and avoiding distractions,
Publix also permitted hands-free cell phone use.

      These things [speed, scanning, attentiveness] are interrelated
      concepts, and they build on each other. There’s a wealth of
      evidence here, Your Honor, that both show that Publix knew
      that its policy [allowing cell phone use] was highly dangerous,
      and that everyone here knew that this man shouldn’t have
      been talking on the phone and certainly shouldn’t have been
      talking on the phone all day long. He shouldn’t have been
      speeding; he shouldn’t have been speeding on a curve; he
      shouldn’t have been speeding when he approached the
      intersection; and he certainly should be scanning, which he
      wasn’t because he didn’t see Mr. Olivares until the very last
      second.

Even Sapp confirmed in his deposition that he had not abided by his
training when he was speeding, particularly around a curve and through
an intersection. The Publix fleet safety specialist agreed in his deposition
testimony that Sapp’s actions had not conformed to Publix training.

    The plaintiffs produced a copy of the Florida Commercial Driver’s
License (FCDL) handbook which specifically addressed distraction by the
use of cell phones. The handbook warns against such distractions and
specifically states, “Note that hands-free devices are no less likely than
handheld cell phone devices to cause you to become distracted. Attention
is diverted from the driving task while using either device.” Publix training
also stressed avoidance of distractions, including cell phones,
admonishing employees: “[S]tay focused. Don’t let common distractions
get you into trouble. If you need to look at a map, read paperwork, or
handle a phone call, find a safe place to pull over.” Specifically, Publix
training videos showed the deadly results of being on a cell phone while
driving. One involved a similar deadly crash as the one in the instant case,
where a driver was on his phone at the time of the accident.



                                     5
    In his deposition, Sapp admitted he knew that cell phone use while
driving could be deadly. Yet he was on the phone at the time of the
accident, when he violated all of the other cautionary driving skills. Phone
records showed that he had been on his phone most of the day. He
admitted that he was in the habit of talking on his phone to friends most
of the day, and despite this tragic incident, he would continue to use his
cell phone while driving. The plaintiff maintained that not only was he
intentionally engaging in distracting behavior while driving, but Publix
knew about it and condoned it by also having managers call him while he
was driving. Counsel argued:

      Your Honor, he’s intentionally distracting himself from the
      driving task. That’s one of the keys here, Your Honor. This
      man is not taking a call from his wife who’s having a baby,
      who’s going to the hospital or something like that. He’s just
      doing this to pass the time. No one at Publix ever disciplined
      him for talking on the phone, because he’s allowed to talk on
      the phone . . . .

      Publix supervisors would call him while he was driving. So
      Publix obviously, beyond just their policy, they know he’s on
      the phone because they’re talking to him while he’s driving.
      They admitted to it[.]

Publix’s company-wide policy permitted a truck driver to talk on the phone
so long as it was hands-free, and the driver only touched one button. The
safety supervisor conceded that if Publix policies deviated from the policies
in the FCDL handbook, the drivers could follow the Publix policies. And
he further agreed that talking on the cell phone was multi-tasking which
led to reduced attentiveness. The plaintiffs quoted from the supervisor’s
deposition:

      “Just so we’re clear, Publix’s policy allows the driver to
      essentially talk on the phone as much as they want. Correct?”
      “Correct.” “They can have business calls with corporate
      people from Publix. Correct?” “Yes.” “They can have as many
      personal calls as they want. Right?” “Correct.” “In fact, they
      can talk on the phone all day long about fishing or whatever
      they want, with their friends, while they’re operating an 18-
      wheel truck. Correct?” “Correct.”

Another Publix regional fleet safety specialist conceded that cell phone use
was not advisable and could result in driver distraction. He agreed that


                                     6
the Publix policy on cell phone use was unsafe, according to his deposition
testimony.

   The supervisors also testified that Publix does not monitor cell phone
use by their drivers or investigate whether use of cell phones was involved
in any driver accident. In addition to not reviewing cell phone use in driver
accidents, Publix also did not monitor such matters as speeding, unless
the driver receives a ticket.

   In sum, plaintiffs argued that through the foregoing evidence they made
a showing which would provide a reasonable basis to recover punitive
damages. The standard was conscious indifference to the life, safety and
rights of the person exposed to such conduct. Where the standard is met,
an employer can be held vicariously liable for such damages if the
employer actively participated in it or condoned or ratified the conduct.

   After reviewing various cases in which accidents included use of cell
phones, plaintiffs’ attorney addressed the defendants’ argument that
because cell phone use has not been declared illegal by either federal or
state law, it can’t be the basis of punitive damages in this case:

      There is no basis for what they’re saying. There is no case law
      that supports that. I defy them to show you a case that says
      because our policy doesn’t violate the law, that we’re not
      subject to punitive damages based on all the knowledge that
      we had of what was wrong; and especially where at every other
      company, the industry standard is to have a policy that’s a no
      cell phone policy.

   Defense counsel commenced his response by noting for the court the
seriousness of making a claim for punitive damages. A defendant has a
substantive right not to be subject to punitive damages without an
evidentiary basis. At this point, the court interjected:

      THE COURT: You don’t think there’s been sufficient
      evidentiary proffer thus far?

      MR. RUFF: I do not.

      THE COURT: Tell me why.

Defense counsel explained that the core of the plaintiffs’ argument for
punitive damages was the use of cell phones, and no Florida case had ever


                                     7
held that punitive damages, based upon cell phone use, were allowed. The
plaintiffs had not even cited a trial court case where punitive damages,
based upon cell phone use, were allowed. Responding to that the court
said:

      THE COURT: You don’t have a single case on appeal
      concerning cell phones. I have permitted punitive damages
      for cell phones in multiple cases thus far.

Defense counsel then noted that both Federal Motor Carrier Safety
Administration and Florida statutes allow the use of cell phones while
driving. When the Florida Legislature took up the issue, they banned
texting but allowed cell phone use. The judge then interjected: “Because
they all talk on the phone while they’re driving to Tallahassee.”
Defense counsel stated that he “could not speak to that.” He noted as
recently as this summer the legislature made texting while driving a
primary offense but still did not prohibit hands-free cell phone use. He
queried how it could be egregious conduct when the legislature considered
prohibiting it and did not.

   Defense counsel did not think that Sapp driving four miles over the
speed limit could amount to “criminal” conduct for purposes of punitive
damages. The court interjected that Sapp also ran a red light. Defense
counsel argued that the essence of Plaintiffs’ negligence claim against
Sapp was based upon the fact that he was distracted. Defense counsel
pointed out that Sapp, who had driven for Publix since 2005, had never
had even a speeding ticket. Sapp not only attended an initial training
session but also attended yearly training sessions. The court then asked:
“Just out of curiosity, why do you have training materials that say, No cell
phone, and then have a policy that does not support it?” Counsel
responded that some of the videos were about texting and did not cover
the cell phone as used by Sapp. He also compared the Publix cell phone
policy with that of the Federal Motor Carrier Safety Administration
regulations which he said were nearly identical. Companies should be
able to rely on the federal regulations.

    Defense counsel addressed plaintiff counsel’s statement that everyone
in the industry has banned cell phones by stating:

      MR. RUFF: The comment made by Mr. Valori, that everybody
      in the industry has banned cell phone use, that’s just pure
      argument. There’s nothing in the evidence that suggests that
      everybody has banned cell phones and Publix is the only one


                                     8
      out there that hasn’t done that. . . . Your Honor cannot accept
      what Mr. Valori says is true. And certainly, if he’s going to say
      that the entire industry has banned cell phones, why hasn’t
      he proved it?

      THE COURT: Say that one more time.

      MR. RUFF: If you’re going to make a comment that Publix is
      in violation of industry standards, you have to do more than
      just say that’s there.

      THE COURT: Some companies have a no cell phone in the
      car policy, don’t they?

      MR. RUFF: I would be guessing. I would imagine somebody
      out there, in all the companies of America, somebody has a no
      cell phone policy.

      THE COURT: I think there’s more than just somebody,
      isn’t there? . . .

      MR. RUFF: I don’t know. I would be guessing if I commented
      on that.

   The court then asked defense counsel to assume that if the court found
sufficient evidence to support punitive damages against Sapp, then why
should he not allow them to be pled against Publix also? Defense counsel
began by arguing that it depended upon the basis upon which they were
sought, i.e., either the various acts of gross negligence by Sapp or the
Publix corporate policy. The court then pointed to section 768.72(3)(a),
Florida Statutes, “that the employer actively and knowingly participated in
the cell phone use.” While defense counsel noted that Sapp was not on
the phone with his manager at the time of the accident, the court pointed
out that the managers frequently communicated with Sapp by phone while
he was driving. Defense counsel sought to limit active participation to
what occurred at the time of the accident.

   Defense counsel argued that it would be wrong to hold Publix to
account for punitive damages when Sapp violated its training policies. But
the court noted that Sapp was acting in accordance with Publix policy in
talking on the cell phone. Defense counsel complained that the entire case
against Publix for punitive damages came down to the cell phone policy,
even though Publix had trained Sapp appropriately. The court then asked


                                     9
counsel to address section 768.72(3)(b), which permits punitive damages
where an employer knowingly condoned, ratified, or consented to the
conduct. Counsel argued that if one starts with the proposition that cell
phone use is completely legal both in federal regulation and state
regulation, to which the court interjected, “At least right now, there is
no law that specifically prohibits it in the [S]tate of Florida.” Defense
counsel continued to argue the point to which the court interjected a
hypothetical:

      MR. RUFF: . . . To do one isolated thing, to allow a driver to
      do something that is expressly legal and that your industry,
      your regulatory body, tells you, you can do it; and then to
      show them videos about what could happen -- I mean, cell
      phone use -- people talk on the cell phone all the time and
      haven’t been in an accident because of cell phones. The reality
      of the situation is --

      THE COURT : People drive drunk all the time and don’t get
      in accidents.

      MR. RUFF: That’s a good point. People have a few drinks and
      drive, and they’re fine. People talk on the cell phone a few
      minutes, and they’re fine. It’s when you let it get out of hand.
      From a Publix standpoint, you’re looking at Publix’s policy for
      doing that. There’s no evidentiary showing that Publix has
      this out-of-control fleet because of their cell phone policy.

   Counsel continued and addressed some of the cases cited by the
plaintiffs. Eventually, the court noted, “It still goes back to 768.72.”
Counsel argued the case law and the theories of negligence under which
the plaintiffs were alleging liability on behalf of Publix. The court then
asked another hypothetical:

      THE COURT: Mr. Ruff, let me ask you this: If I were to find
      that speaking on the phone -- which some say is found to
      be four times more dangerous than driving while drunk --
      was the basis for the improper conduct, why would that
      not be sufficient?

      MR. RUFF: Because the pleadings would control in that case,
      and the Plaintiff is alleging that he’s inside the course and
      scope of employment.



                                    10
      THE COURT: You’re telling me you can’t have -- that goes back
      to my question that I started off the afternoon with, if you can
      have a situation that is both inside the scope and outside the
      scope, and the same set of facts.

The court and defense counsel continued to discuss the issue of scope of
employment.

    The court inquired whether Publix had not ratified the conduct of
speaking on the cell phone when Publix managers used it to communicate
with the drivers. Counsel responded that Publix was not a direct actor but
then admitted upon questioning by the court that section 768.72 did not
require direct action. The court found that, at least as to section
768.72(3)(b), direct action was not required. Finally, counsel again
reiterated that there was no case that has allowed punitive damages for
cell phone use, to which the court responded, “At least not yet.” Shortly
thereafter counsel concluded his argument.

    Turning to the plaintiffs’ attorney, the court asked counsel to respond,
specifically as to whether the sole ground for punitive damages against
Publix was its policy on cell phone use, to which counsel responded that
it was not. He contended that they proffered evidence that Publix failed to
monitor its drivers for speeding, failed to investigate the use of cell phones
in accidents, and exercised “willful blindness” to its drivers’ use of cell
phones.

    After further argument, the court ultimately granted the motion to
amend to add punitive damages, relying on both section 768.72(3)(a) and
(b).

    Within ten days of the hearing, Publix and Sapp both filed motions to
disqualify the judge. They alleged that the court was biased against their
cell phone policy and the use of cell phones while driving. They cited the
bolded comments in the preceding record as their evidence of judicial bias.
The court denied the motion as legally insufficient, and this petition for
writ of prohibition was then filed.

    “Whether the motion [to disqualify a trial judge] is legally sufficient is a
question of law, and the standard of review of a trial judge’s determination
of a motion to disqualify is de novo.” Gregory v. State, 118 So. 3d 770, 778
(Fla. 2013). To be “legally sufficient” the alleged facts must create a
reasonable fear that the party will not receive a fair trial. Id. Subjective
fear is not sufficient; instead, the fear must be objectively reasonable. Id.


                                      11
However, “where a judge’s comments are directed to the issue the court is
currently handling, a motion to disqualify can be denied.” Lukacs v. Ice,
227 So. 3d 222, 224 (Fla. 1st DCA 2017); Eugene J. Strasser, M.D., P.A. v.
Bose Yalamanchi, M.D., P.A., 783 So. 2d 1087, 1092 (Fla. 4th DCA 2001)
(trial judge’s comments did not require disqualification when made on the
issues, after becoming acquainted with all the pleadings and affording the
party the opportunity to address the relevant issues). When a judge has
prejudged a case without allowing the opposing party to present argument,
denying due process, and issuing gratuitous prejudicial remarks,
disqualification may be warranted. See Wargo v. Wargo, 669 So. 2d 1123,
1124-25 (Fla. 4th DCA 1996). However, a judge may form mental
impressions and opinions throughout the course of the case so long as the
judge does not prejudge the case. 669 So. 2d at 1124-25. In addition,
“Adverse or unfavorable legal rulings, without more, are not legally
sufficient grounds for disqualification.” Pilkington v. Pilkington, 182 So. 3d
776, 779 (Fla. 5th DCA 2015).

    In light of these principles, the comments made by the trial judge do
not warrant disqualification. All the comments at the hearing on the
motion to amend were directed to the issue of whether the use of cell
phones while driving, and a policy to permit such use, could provide a
reasonable showing to support a claim for punitive damages. Every
allegedly objectionable statement made was relevant to the issue and
showed that the judge engaged in a Socratic questioning method to analyze
the issue. At no point did the court cut off the defense argument or
disparage the argument or defense counsel, although it was apparent that
the judge did not agree with it. The court clearly did not deny defense
counsel the opportunity to argue his case and the legal issues involved.
Mere mental impressions or opinions formed in the progress of argument
do not require disqualification.

   The trial judge stated that he had allowed punitive damage claims in
other cases, which was a direct response to defense counsel’s
representation that there were not any trial court decisions allowing claims
for punitive damages based upon cell phone use. And the trial court’s
response “at least not yet” to defense counsel’s later repetition of this point,
was simply indicative of the fact that with multiple cases in which the trial
judge allowed punitive damages, at least some of those might end up in an
appellate court on the issue. Similarly, the judge’s statement that there is
no law prohibiting cell phone use in vehicles “at least right now,” reflects
what defense counsel himself brought up—that is, whether to prohibit the
use of cell phones in vehicles continues to be addressed before the
legislature.


                                      12
    When counsel objected to the plaintiffs’ argument that Publix’s policy
was contrary to industry standards and was not supported by proof, the
trial judge was testing counsel’s commitment to this argument by asking
whether some companies prohibited cell phone use. These types of
questions are common in testing the positions of parties.

   The judge’s question, in which he noted that “some say” that cell phone
use is significantly more dangerous than drunk driving, was part of a
hypothetical directed to defense counsel’s argument. The judge asked
counsel to explain why it would not be enough to permit a claim of punitive
damages to proceed under those circumstances.            Defense counsel
responded, directing the court to the pleadings and the scope of
employment issue, he did not suggest that the judge was addressing a
“fact” not in the record. Even if the court was remembering evidence
presented in another case, questioning on such hypotheticals is well
within the type of questioning commonly found in legal discourse.
Certainly, it is common in appellate questioning.

   We conclude that none of the judge’s comments either individually or
collectively show bias or prejudice on behalf of the judge which would
prevent Publix or Sapp from receiving a fair trial. The trial court did not
disparage counsel or the parties. The parties both had ample time to argue
their positions. And the court did not rule prior to the completion of their
presentations.

    The petitioners’ complaints in seeking disqualification target the court’s
rejection of their position that cell phone use cannot form the basis of a
punitive damage claim when it has not been declared to be illegal. This is
a legal argument which can be appealed by defendants should punitive
damages be imposed by a jury. It is not grounds for disqualification of a
judge. This judge had encountered this issue in other cases and had
allowed punitive damage claims to proceed. Simply because a judge has
ruled on an identical legal issue in a prior case does not compel the judge
to step aside in subsequent cases involving the same issue. “The fact that
a judge has previously made adverse rulings is not an adequate ground
for recusal.” Jackson v. State, 599 So. 2d 103,107 (Fla. 1992). Judges
frequently encounter identical legal issues in different cases. We know of
no authority which would disqualify a judge from hearing a subsequent
case because the judge had ruled adversely to the party’s legal position in
a prior case.




                                     13
   Concluding that none of the judge’s allegedly objectionable comments
at the June hearing require disqualification, we deny the writ. As to the
single comment at the first hearing, the petitioners did not move to
disqualify at that time, and therefore the motion is untimely as to that
comment. Even if it were timely, it appears to us to be a gratuitous remark
asking if Publix would be changing its cell phone policy, which defense
counsel responded to with some humor, suggesting that he would have to
charge to give advice. We do not deem the comment, standing alone or in
combination with the comments from the June hearing, to raise a
sufficient, objective ground for disqualification.

   The petition is denied.

MAY, J., concurs.
CIKLIN, J., dissents with opinion.

CIKLIN, J., dissenting.

   I respectfully dissent because I believe this case presents a textbook
example of when disqualification is required following allegations of well-
founded, objectively reasonable fears of not being able to receive a fair trial
based on the trial court’s repeated off-hand comments and questions
regarding a fundamentally critical issue in the case.

    My firm opinion in this particular situation has nothing to do with any
rulings, adverse or otherwise, by the trial court or the identity of the trial
judge or the respondent’s highly enthusiastic defense of the trial court in
its responsive briefing. This is about a cold, analytical review of the record
below and our determination as to whether the trial court’s impartiality
“might reasonably be questioned.”

   Contrary to the dictates of Florida Rule of Judicial Administration
2.330(f), concerning a trial court’s strictly limited consideration on a
motion to disqualify, the majority ventures far beyond the legal sufficiency
threshold and by leaps and bounds goes through great pains to parse the
context and meaning of the trial court’s highly problematic words. The
majority urges that we should ignore the plain meaning of the spoken
words of the trial judge that are spread throughout this record and dig
deeply outside of the four corners of the disqualification motion. In an
apparent effort to salvage the trial court’s continued participation in this
matter, the majority suggests that the trial court was doing nothing more
than “engag[ing] defense counsel in questioning based upon the Socratic
method, posing hypotheticals to test the defense argument.”


                                      14
   As a trial judge, I often took advantage of opportunities to engage in
spirited discussions with the advocates before me. I thought it helped me
do a better job as a jurist. Plus, I believe, lawyers and litigants alike
enjoyed the robust intellectual conversations, particularly if it gave them
an opportunity to focus in on the individualized concerns and all-
important mental impressions and observations of the court. As our sister
court held in Pilkington, 182 So. 3d at 779, a judge may make comments
from the bench reflecting his or her observations or mental impressions.
But trial judges who say too much and thus risk appearing to have
prejudged the case or to be biased, do so at their own peril. All good
intentions of the trial court aside, the question of disqualification focuses
on the judge’s comments through the lens of the litigant—not on how a
judge grades him or herself as to the ability to act fairly and impartially.
See Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983).

    Whether the trial court was using Socratic methodology or not, the
black and white record reveals that the trial court objectively stepped over
the line and in so doing, delivered to Publix a legally recognized fear that
it would not receive a fair and impartial administration of this case. A
motion to disqualify is legally sufficient, and must be granted if the facts
alleged “would create in a reasonably prudent person a well-founded fear
of not receiving a fair and impartial trial.” Gregory, 118 So. 3d at 778
(quoting Rodriguez v. State, 919 So. 2d 1252, 1274 (Fla. 2005)).

   Publix filed a detailed, focused and verified motion to disqualify. When
objectively reviewed, the sworn contents of the motion were more than
legally sufficient to align with the Code of Judicial Conduct and Florida
Rules of Judicial Administration thereby requiring disqualification.

    Simply stated, the trial judge made numerous comments that would
legally and objectively lead a reasonably prudent person to believe that the
trial court has a personal bias, including multiple statements indicating
that (1) it independently investigated facts and expressly considered
evidence outside of the record, (2) it had pre-judged the case and (3) it
personally believed that talking on a cell phone while driving is extremely
reckless and that Publix should do something about it to prohibit it in the
future.

   Within the four corners of its sworn motion to disqualify, Publix alleged:

   •   At the February 2019 summary judgment hearing, the trial
       judge asked, “Publix doesn’t have a policy about talking and


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      driving?”  When counsel responded that Publix permits
      hands-free cell phone use while driving, the trial judge
      pressed: “Are you going to change that policy, at some point?”

  •   At the June 2019 hearing on the plaintiffs’ motion to amend,
      the trial judge showed a predisposition to permit the plaintiffs
      to plead punitive damages when he interrupted defense
      counsel’s argument almost immediately by asking, “You don’t
      think there’s been sufficient evidentiary proffer thus far?”

  •   At the June 2019 hearing, the trial judge repeatedly
      analogized cell phone use with drunk driving and stated,
      without evidentiary support from the plaintiffs, that “some
      say” cell phone use has been “found to be four times more
      dangerous than driving while drunk.”

  •   At the June 2019 hearing, the trial judge stated, without
      evidentiary support, that multiple companies have banned
      cell phone use while driving.

  •   At the June 2019 hearing, the trial judge considered as a basis
      for his ruling that he had allowed punitive damages for cell
      phone use in “multiple” other cases, without naming those
      cases so that Publix could adequately, fairly and intelligently
      respond.

  •   At the June 2019 hearing, the trial judge stated, without
      evidentiary support, that the Florida Legislature has not
      banned cell phone use while driving only because legislators
      like to talk on their phones while they drive to Tallahassee.

  •   At the June 2019 hearing, the trial judge expressed a belief
      that the law on cell phone use while driving will soon change.

  •   At the June 2019 hearing, the trial judge expressed a belief
      that there will soon be case law on allowing punitive damages
      for cell phone use while driving.

   Viewed from the petitioners’ perspective, see Moskowitz v. Moskowitz,
998 So. 2d 660, 662 (Fla. 4th DCA 2009), any one of these individual
statements—many of which were unfounded—would by itself create in a
reasonably prudent person a well-founded fear that the judge had



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prejudged the issue and was biased against their position. See Gregory,
118 So. 3d at 778; Wargo, 669 So. 2d at 1124-25.

    Even when ascribing the very best intentions on the part of the trial
judge, based on this record and the trial court’s comments as a whole, the
Canon requires that Publix’s motion for disqualification be granted. I find
it unfathomable to hold any other way because the record on review should
lead us to the inescapable conclusion that this trial judge should not
continue to preside over this case.

  I would grant the petition and direct the clerk to randomly assign this
matter to one of the other 89 judges in Florida’s 17th Judicial Circuit.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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