TERREL VIALVA,

v.

CHELSII NUNEZ,

Third District Court of Appeal State of Florida

Opinion filed October⁶, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1292 Lower Tribunal No. 20-698-K ________________

Terrel Vialva, Petitioner,

vs.

Chelsii Nunez, Respondent.

A Case of Original Jurisdiction – Prohibition.

Joyce Law, P.A., and Richard F. Joyce, for petitioner.

No appearance for respondent.

Before LOGUE, MILLER and LOBREE, JJ.

LOGUE, J.

Terrel Vialva petitions for a writ of prohibition disqualifying the trial court based upon prejudice against Vialva’s chosen attorney. We have previously

FACTS

The underlying case involves a paternity action filed by Chelsii Nunez against Vialva. For the first six months of the litigation, Vialva represented himself without counsel. He then hired present counsel. Shortly afterwards, Vialva moved to disqualify the trial court for prejudice against his counsel. The affidavits supporting Vialva’s motion attest that the trial judge said in a prior case certain comments that we have held warrant disqualification. Murphy v. Collins, 307 So. 3d 102, 106 (Fla. 3d DCA 2020). Nunez filed a response noting counsel was hired after the identity of the trial judge was known and contending “the new subsection of the Florida Rules of General Practice and Judicial Administration 2.330 specifically prohibits exactly what [Vialva’s counsel] is trying to achieve.”

Vialva timely filed a petition for a writ of prohibition.

ANALYSIS

“A motion to disqualify is governed substantively by section 38.10, Florida Statutes . . . and procedurally by Florida Rule of [General Practice and] Judicial Administration 2.330.” Peterson v. State, 221 So. 3d 571, 581 (Fla. 2017) (alterations omitted) (quoting Gore v. State, 964 So. 2d 1257, 1268 (Fla. 2007)). The only restriction Rule 2.330 places on the right to disqualify a trial judge for prejudice against a party’s chosen counsel is that the motion cannot be made based on a claimed prejudice against the party’s “substitute” or “additional” counsel. In this regard, subsection (f) of the Rule reads in pertinent part: (f) Prohibition Against Creation of Grounds for Disqualification Based Upon Appearance of Substitute or Additional Counsel. Upon the addition of new substitute counsel or additional counsel in a case, the party represented by

Id. (emphasis added). Under basic principles of textual interpretation, the expression in the rule of certain prohibitions excludes the existence of other prohibitions. Delong v. Fla. Fish & Wildlife Conservation Comm’n, 145 So. 3d 123, 127 (Fla. 3d DCA 2014) (discussing the doctrine of expressio unius est exclusio alterius). Because the Rule prohibits motions to disqualify based on prejudice only against substitute or additional counsel, by implication it does not prohibit motions based on prejudice against initial counsel. We are interpreting a rule, not drafting one. “Our task is to apply the text, not to improve upon it.” Pavelic & LeFlore v. Marvel Ent. Grp., 493 U.S. 120, 126 (1989) (Scalia, J.). Substitution of counsel involves one attorney replacing, or substituting for, another attorney. Fla. R. Gen. Prac. & Jud. Admin. 2.505(e)(3)–(4) (discussing requirements for substitution of counsel); see also Bryan A. Garner, Garner’s Dictionary of Legal Usage 858 (3d ed. 2011) (defining “substitute” as “to put a person or thing in place of another”). And one cannot retain an “additional” attorney unless one already has an attorney. A person representing himself or herself is, by definition, without the assistance of

We grant the petition but withhold issuance of the writ confident that the able and experienced trial judge involved will promptly comply.

Petition granted; writ withheld.