        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

                                [April 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.

        ON MOTION FOR REHEARING AND MOTION FOR REHEARING EN BANC

PER CURIAM.

  We grant the motion for rehearing, deny the motion for rehearing en
banc, vacate our prior opinion, and substitute the following in its place.

   Petitioners, Publix Supermarkets and Randolph Sapp, (collectively
referred to as Publix), bring this petition for writ of prohibition to disqualify
the trial judge in this wrongful death action against it. The suit arises
from a fatal collision involving a Publix tractor trailer whose driver was
using his cell phone with a hands-free device at the time of the crash.
Publix claims that the judge’s comments, at a hearing on the respondent’s
motion to add a claim for punitive damages, showed that the judge was
biased against its position, that the hands-free use of a cell phone while
driving, or a policy permitting such use, does not justify punitive damages,
because cell phone use while driving is not prohibited by law. The judge
indeed made multiple comments showing his predisposition that cell
phone use while driving, even if legal, is dangerous and should not be
allowed. Nevertheless, the judge denied Publix’s motion to disqualify.

    We conclude that Publix’s motion to disqualify was legally sufficient. 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 v. State, 118 So. 3d
770, 778 (Fla. 2013) (quoting Rodriguez v. State, 919 So. 2d 1252, 1274
(Fla. 2005)). Here, the trial judge’s multiple comments denigrating Publix’s
position regarding its cell phone policy would create fear in a reasonable
person that Publix would not receive a fair trial. The judge’s comments
tended to show a disdain not only for Publix’s legal position but for the
company’s lack of a policy prohibiting cell phone use while driving. Thus
the judge exhibited a bias against Publix, and the judge should have
disqualified himself.

   Petition granted.

MAY and CIKLIN JJ., concur.
WARNER, J., dissents with opinion.

WARNER, J., dissenting.

   I would deny the petition. See State ex rel. Gerstein v. Stedman, 233
So. 2d 142, 144 (Fla. 3d DCA), opinion adopted, 238 So. 2d 615 (Fla. 1970)
(“We do not subscribe to the view that a judge is necessarily disqualified
because he has formed an opinion as to the legal questions involved in the
case.”).

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