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Filing # 144580403 E-Filed 02/24/2022 05:05:36 PM
IN THE CIRCUIT COURT OF THE 18TH JUDICIAL CIRCUIT,
IN AND FOR BREVARD COUNTY, FLORIDA
CASE NO. 2020-CA-029865-XXXX-XX
ROBERT ZIONS,
Plaintiff,
VS.
SHARON IRISH,
Defendant.
/
PLAINTIFF’S VERIFIED MOTION TO RECUSE TRIAL JUDGE
COMES NOW the Plaintiff, ROBERT ZIONS, by and through his undersigned counsel,
pursuant to Florida Statute §38.10, and Rule 2.330, Florida Rules of Judicial Administration, and
respectfully moves for the disqualification or recusal of the Honorable David Dugan, and in
support states as follows:
1 On February 14, 2022, Plaintiff, Sean Watts, brought forward a Motion to Recuse
Judge Dugan based on facts and circumstances surrounding the actions on that particular day in
the case of Sean Watts vs. Egon Runo Halvard Teodorson. While some of the facts brought
forward pre-date the timing component of a typical Motion to Recuse, this Court understood,
considered, and ruled that those prior facts come into consideration given the connection and
relationship to the allegations on February 14, 2022. As such, the Plaintiff sets forth the
following facts:
a. In CASE No. 2020-CA-020557, Sean Watts vs. Egon Runo Halvard Teodorson,
Judge Dugan determined and ruled that Plaintiff properly laid a factual basis
sufficient for recusal.!
' Disqualification may also be required where the judge has previously granted disqualification on the same grounds.
State v. Cam Voong Leng, 987 So.2d 236, 237 (Fla. 4th DCA 2008) (citing Walls v. State, 910 So.2d 432 (Fla. 4th
DCA 2005)).
Filing 144580403 ROBERT JOHN ZIONS VS S IRISH 05-2020-CA-029865-XXXX-XX
1 Recusal in cases involving Plaintiff’s attorney should be granted based
on this alone.
In CASE No. 2020-CA-020557, Sean Watts vs. Egon Runo Halvard Teodorson,
Judge Dugan, over objection by Plaintiff, allowed Defendant to proceed to trial
with three expert witnesses that were provided additional records and documents
well past the discovery cut-off and within days of trial. This runs counter to Judge
Dugan’s rulings and treatment of Plaintiff's law firm in the case of Tonya
Anderson vs. Anthony Caruso (see details below), where Judge Dugan ruled
completely opposite when Plaintiff's law firm presented with an issue much less
severe than Defendant in Watts.
Disparate treatment: In Sean Watts vs. Egon Runo Halvard Teodorson, Judge
Dugan refused to enforce the deadlines in the Case Management Order and Pre-
trial Stipulation as it relates to Defense witnesses. In fact, Judge Dugan told
Plaintiff that he couldn’t strictly enforce the order. However, in Tonya Anderson
vs. Anthony Caruso, Judge Dugan ruled in favor of Defense and specifically told
Plaintiffs law firm, “I need to enforce the order.” This was in relation to a simple
spine model.
In CASE No. 05-2018-CA-012960, Tonya Anderson vs. Anthony Caruso, Judge
Dugan granted a mistrial based upon Plaintiff's Life Care Planner receiving a
prior record that did not change her opinions. Judge Dugan declared that the
Defense was prejudiced because it changed part of the foundational basis.
Disparate treatment: In Watts, Judge Dugan allowed three (3) defense witnesses
to testify even though they received countless records within days of trial;
however, in Anderson, Judge Dugan declared a mistrial when Plaintiff law firm’s
Filing 144580403 ROBERT JOHN ZIONS VS S IRISH 05-2020-CA-029865-XXXX-XX
expert received a single record (from 9 years prior) that did not change her
opinion.
In CASE No. 05-2019-CA-024925, Ricardo Madrigal vs. City of Palm Bay,
Judge Dugan, over objection by Plaintiff, allowed Defendant to present testimony
of a surprise witness at trial. This witness was never disclosed before trial, and in
fact, the Defense did not even know they name of the individual - they simply
found a “tall, bald, white guy” that met a description by another witness. Judge
Dugan allowed this surprise testimony and gave no relief to Plaintiff.
In CASE No. 2019-CA-010088, Keith Dreiling vs. Wal-Mart Stores East, Judge
Dugan granted a Defense Motion for Summary Judgment when Plaintiff had
depositions of Defendant employees set for same day as hearing. This matter is up
on appeal.
In CASE No. 05-2019-CA-060772, William Benson yv. Progressive Select
Insurance Company, Judge Dugan granted a Defense Motion for Summary
Judgment just weeks before trial where there was a clear factual dispute on the
issues. Even Defense Counsel in subject case was shocked by the Court’s ruling.
2 As a result of the above facts, the Plaintiff has an objective, reasonable, and well-
founded fear that he cannot receive a fair and impartial trial, and believes in good faith that Judge
David Dugan is likely to rule against him and in favor of Defendant in all disputed matters.
3 In compliance with Rule 2.330(g), Florida Rules of Judicial Administration, this
Motion is timely.
4 Pursuant to Fla. Code of Judicial Conduct Cannon 3E (1), “A Judge shall
disqualify himself or herself in a proceeding in which the judge’s impartiality might be
reasonably questioned...”
Filing 144580403 ROBERT JOHN ZIONS VS S IRISH 05-2020-CA-029865-XXXX-XX
5 In compliance with Rule 2.330(c)(4), Fla. R. Jud. Admin., there have been no
previously granted motions to disqualify filed under this rule in the case.
6 Pursuant to Florida Statute § 38.10 and Rule 2.330(c)(3), Fla. R. Jud. Admin., the
contents of this Motion are sworn to by the Plaintiff in the Affidavit attached hereto as Exhibit A.
7 Pursuant to Rule 2.330(c)(5), Fla. R. Jud. Admin., counsel for Plaintiff is
separately certifying below that the Motion and the client's statements are made in good faith.
8 Pursuant to Rule 2.516 and Rule 2.330(d), Fla. R. Jud. Admin., a copy of this
Motion is being immediately served by email delivery upon the Honorable David Dugan.
MEMORANDUM OF LAW
9 Disqualification may also be required where the judge has previously granted
disqualification on the same grounds. State v. Cam Voong Leng, 987 So.2d 236, 237 (Fla. 4th
DCA 2008) (citing Walls v. State, 910 So.2d 432 (Fla. 4th DCA 2005)).
10. A motion for disqualification must be granted if the alleged facts would cause a
reasonably prudent person to have a well-founded fear that he/she would not receive a fair and
impartial trial. Rogers v. State, 630 So.2d 513 (Fla.1993); Mulligan v. Mulligan, 877 So.2d 791
792 (Fla. 4th DCA 2004). In determining whether the motion is legally sufficient, the allegations
“must be taken as true and must be viewed from the movant's perspective.” Siegel v. State, 861
So.2d 90, 92 (Fla. 4th DCA 2003).
11. “TA] judge may be disqualified due to prejudice towards an attorney where the
prejudice ‘is of such degree that it adversely affects the client.’ ” Jd. (quoting Ginsberg v. Holt,
86 So.2d 650, 651 (Fla.1956)).
12. When the Judge’s initial disqualification is not related to the issues of the
case, recusal should be granted in all cases with Plaintiffs attorney. See Walls v. State, 910
So.2d 432 (Fla. 4th DCA 2005).
Filing 144580403 ROBERT JOHN ZIONS VS S IRISH 05-2020-CA-029865-XXXX-XX
13. The trial judge previously granted a motion to disqualify on identical grounds. See
Walls y. State, 910 So.2d 432 (Fla. 4th DCA 2005).
14. Disqualification may also be required where the judge has previously granted
disqualification on the same grounds. State v. Cam Voong Leng, 987 So.2d 236, 237 (Fla. 4th
DCA 2008) (citing Walls v. State, 910 So.2d 432 (Fla. 4th DCA 2005)).
15. Having determined that the motion in Dunn was legally sufficient, the trial judge
erred in denying the motions to disqualify in these cases. In Walls v. State, 910 So.2d 432 (Fla.
4th DCA 2005), the petitioner sought disqualification of the trial judge because in another
unrelated case, the judge had granted a motion for disqualification based upon the judge's
acrimonious professional relationship with the attorney who also represented petitioner.
However, the trial judge denied that motion as legally insufficient. In granting prohibition relief,
the court in Walls observed that having granted the motion for disqualification in the first case,
thus indicating a finding that it was legally sufficient to show bias, the trial judge should have
likewise granted the motion filed on petitioner's behalf. In other words, where the alleged facts
are sufficient to establish a basis for disqualification, as the judge here determined was the case
with respect to the motion filed in Dunn, disqualification is also warranted in other cases in
which the same basis exists and disqualification is timely sought. Shands Teaching Hosp. &
Clinics, Inc. v. Samuel ex rel. Mathis, 926 So. 2d 441, 444 (Fla. Dist. Ct. App. 2006)
WHEREFORE, the Plaintiff, ROBERT ZIONS, respectfully requests that this Honorable
Court grant Plaintiffs Verified Motion to Recuse Trial Judge, and enter an Order of
disqualification of the Honorable David Dugan, and reassignment to another Circuit Judge.
Filing 144580403 ROBERT JOHN ZIONS VS S IRISH 05-2020-CA-029865-XXXX-XX
CERTIFICATE OF PLAINTIFF’S COUNSEL OF RECORD
I, Rodney M. Kernan, as counsel of record for the Plaintiff, and partner of Morgan &
Morgan, P.A., certify that pursuant to Rule 2.330 (c) (5), Fla. R. Jud. Admin, that the foregoing
factual allegations and statements in the foregoing Motion are made in good faith.
/s/ Rodney M, Kernan
Rodney M. Kerann, Esquire
FBN 0181307
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was filed on this 24" day of February, 2022,
by using the Florida Courts e-filing portal, which will send notice of electronic filing to Thomas Kevin
Knight, Esq., at KKnight@dsklawgroup.com; TKK Pleadings@DSKLawGroup.com:
PSGarcia@DSKLawgroup.com; ELamb@DSKLawgroup.com.; deBeaubien Simmons Knight
/s/ Rodney M. Kernan
Rodney M. Kernan, Esquire
FBN 0181307
Morgan & Morgan, P.A.
407 S. Washington Ave., Ste 3,
Titusville, FL 32796
321-603-6450, fax 321-603-6473
Primary email: RKernan@forthepeople.com
Secondary email: SBailey@forthepeople.com
Attorneys for Plaintiff
Filing 144580403 ROBERT JOHN ZIONS VS S IRISH 05-2020-CA-029865-XXXX-XX
Preview
Filing # 144580403 E-Filed 02/24/2022 05:05:36 PM IN THE CIRCUIT COURT OF THE 18TH JUDICIAL CIRCUIT, IN AND FOR BREVARD COUNTY, FLORIDA CASE NO. 2020-CA-029865-XXXX-XX ROBERT ZIONS, Plaintiff, VS. SHARON IRISH, Defendant. / PLAINTIFF’S VERIFIED MOTION TO RECUSE TRIAL JUDGE COMES NOW the Plaintiff, ROBERT ZIONS, by and through his undersigned counsel, pursuant to Florida Statute §38.10, and Rule 2.330, Florida Rules of Judicial Administration, and respectfully moves for the disqualification or recusal of the Honorable David Dugan, and in support states as follows: 1 On February 14, 2022, Plaintiff, Sean Watts, brought forward a Motion to Recuse Judge Dugan based on facts and circumstances surrounding the actions on that particular day in the case of Sean Watts vs. Egon Runo Halvard Teodorson. While some of the facts brought forward pre-date the timing component of a typical Motion to Recuse, this Court understood, considered, and ruled that those prior facts come into consideration given the connection and relationship to the allegations on February 14, 2022. As such, the Plaintiff sets forth the following facts: a. In CASE No. 2020-CA-020557, Sean Watts vs. Egon Runo Halvard Teodorson, Judge Dugan determined and ruled that Plaintiff properly laid a factual basis sufficient for recusal.! ' Disqualification may also be required where the judge has previously granted disqualification on the same grounds. State v. Cam Voong Leng, 987 So.2d 236, 237 (Fla. 4th DCA 2008) (citing Walls v. State, 910 So.2d 432 (Fla. 4th DCA 2005)). Filing 144580403 ROBERT JOHN ZIONS VS S IRISH 05-2020-CA-029865-XXXX-XX 1 Recusal in cases involving Plaintiff’s attorney should be granted based on this alone. In CASE No. 2020-CA-020557, Sean Watts vs. Egon Runo Halvard Teodorson, Judge Dugan, over objection by Plaintiff, allowed Defendant to proceed to trial with three expert witnesses that were provided additional records and documents well past the discovery cut-off and within days of trial. This runs counter to Judge Dugan’s rulings and treatment of Plaintiff's law firm in the case of Tonya Anderson vs. Anthony Caruso (see details below), where Judge Dugan ruled completely opposite when Plaintiff's law firm presented with an issue much less severe than Defendant in Watts. Disparate treatment: In Sean Watts vs. Egon Runo Halvard Teodorson, Judge Dugan refused to enforce the deadlines in the Case Management Order and Pre- trial Stipulation as it relates to Defense witnesses. In fact, Judge Dugan told Plaintiff that he couldn’t strictly enforce the order. However, in Tonya Anderson vs. Anthony Caruso, Judge Dugan ruled in favor of Defense and specifically told Plaintiffs law firm, “I need to enforce the order.” This was in relation to a simple spine model. In CASE No. 05-2018-CA-012960, Tonya Anderson vs. Anthony Caruso, Judge Dugan granted a mistrial based upon Plaintiff's Life Care Planner receiving a prior record that did not change her opinions. Judge Dugan declared that the Defense was prejudiced because it changed part of the foundational basis. Disparate treatment: In Watts, Judge Dugan allowed three (3) defense witnesses to testify even though they received countless records within days of trial; however, in Anderson, Judge Dugan declared a mistrial when Plaintiff law firm’s Filing 144580403 ROBERT JOHN ZIONS VS S IRISH 05-2020-CA-029865-XXXX-XX expert received a single record (from 9 years prior) that did not change her opinion. In CASE No. 05-2019-CA-024925, Ricardo Madrigal vs. City of Palm Bay, Judge Dugan, over objection by Plaintiff, allowed Defendant to present testimony of a surprise witness at trial. This witness was never disclosed before trial, and in fact, the Defense did not even know they name of the individual - they simply found a “tall, bald, white guy” that met a description by another witness. Judge Dugan allowed this surprise testimony and gave no relief to Plaintiff. In CASE No. 2019-CA-010088, Keith Dreiling vs. Wal-Mart Stores East, Judge Dugan granted a Defense Motion for Summary Judgment when Plaintiff had depositions of Defendant employees set for same day as hearing. This matter is up on appeal. In CASE No. 05-2019-CA-060772, William Benson yv. Progressive Select Insurance Company, Judge Dugan granted a Defense Motion for Summary Judgment just weeks before trial where there was a clear factual dispute on the issues. Even Defense Counsel in subject case was shocked by the Court’s ruling. 2 As a result of the above facts, the Plaintiff has an objective, reasonable, and well- founded fear that he cannot receive a fair and impartial trial, and believes in good faith that Judge David Dugan is likely to rule against him and in favor of Defendant in all disputed matters. 3 In compliance with Rule 2.330(g), Florida Rules of Judicial Administration, this Motion is timely. 4 Pursuant to Fla. Code of Judicial Conduct Cannon 3E (1), “A Judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might be reasonably questioned...” Filing 144580403 ROBERT JOHN ZIONS VS S IRISH 05-2020-CA-029865-XXXX-XX 5 In compliance with Rule 2.330(c)(4), Fla. R. Jud. Admin., there have been no previously granted motions to disqualify filed under this rule in the case. 6 Pursuant to Florida Statute § 38.10 and Rule 2.330(c)(3), Fla. R. Jud. Admin., the contents of this Motion are sworn to by the Plaintiff in the Affidavit attached hereto as Exhibit A. 7 Pursuant to Rule 2.330(c)(5), Fla. R. Jud. Admin., counsel for Plaintiff is separately certifying below that the Motion and the client's statements are made in good faith. 8 Pursuant to Rule 2.516 and Rule 2.330(d), Fla. R. Jud. Admin., a copy of this Motion is being immediately served by email delivery upon the Honorable David Dugan. MEMORANDUM OF LAW 9 Disqualification may also be required where the judge has previously granted disqualification on the same grounds. State v. Cam Voong Leng, 987 So.2d 236, 237 (Fla. 4th DCA 2008) (citing Walls v. State, 910 So.2d 432 (Fla. 4th DCA 2005)). 10. A motion for disqualification must be granted if the alleged facts would cause a reasonably prudent person to have a well-founded fear that he/she would not receive a fair and impartial trial. Rogers v. State, 630 So.2d 513 (Fla.1993); Mulligan v. Mulligan, 877 So.2d 791 792 (Fla. 4th DCA 2004). In determining whether the motion is legally sufficient, the allegations “must be taken as true and must be viewed from the movant's perspective.” Siegel v. State, 861 So.2d 90, 92 (Fla. 4th DCA 2003). 11. “TA] judge may be disqualified due to prejudice towards an attorney where the prejudice ‘is of such degree that it adversely affects the client.’ ” Jd. (quoting Ginsberg v. Holt, 86 So.2d 650, 651 (Fla.1956)). 12. When the Judge’s initial disqualification is not related to the issues of the case, recusal should be granted in all cases with Plaintiffs attorney. See Walls v. State, 910 So.2d 432 (Fla. 4th DCA 2005). Filing 144580403 ROBERT JOHN ZIONS VS S IRISH 05-2020-CA-029865-XXXX-XX 13. The trial judge previously granted a motion to disqualify on identical grounds. See Walls y. State, 910 So.2d 432 (Fla. 4th DCA 2005). 14. Disqualification may also be required where the judge has previously granted disqualification on the same grounds. State v. Cam Voong Leng, 987 So.2d 236, 237 (Fla. 4th DCA 2008) (citing Walls v. State, 910 So.2d 432 (Fla. 4th DCA 2005)). 15. Having determined that the motion in Dunn was legally sufficient, the trial judge erred in denying the motions to disqualify in these cases. In Walls v. State, 910 So.2d 432 (Fla. 4th DCA 2005), the petitioner sought disqualification of the trial judge because in another unrelated case, the judge had granted a motion for disqualification based upon the judge's acrimonious professional relationship with the attorney who also represented petitioner. However, the trial judge denied that motion as legally insufficient. In granting prohibition relief, the court in Walls observed that having granted the motion for disqualification in the first case, thus indicating a finding that it was legally sufficient to show bias, the trial judge should have likewise granted the motion filed on petitioner's behalf. In other words, where the alleged facts are sufficient to establish a basis for disqualification, as the judge here determined was the case with respect to the motion filed in Dunn, disqualification is also warranted in other cases in which the same basis exists and disqualification is timely sought. Shands Teaching Hosp. & Clinics, Inc. v. Samuel ex rel. Mathis, 926 So. 2d 441, 444 (Fla. Dist. Ct. App. 2006) WHEREFORE, the Plaintiff, ROBERT ZIONS, respectfully requests that this Honorable Court grant Plaintiffs Verified Motion to Recuse Trial Judge, and enter an Order of disqualification of the Honorable David Dugan, and reassignment to another Circuit Judge. Filing 144580403 ROBERT JOHN ZIONS VS S IRISH 05-2020-CA-029865-XXXX-XX CERTIFICATE OF PLAINTIFF’S COUNSEL OF RECORD I, Rodney M. Kernan, as counsel of record for the Plaintiff, and partner of Morgan & Morgan, P.A., certify that pursuant to Rule 2.330 (c) (5), Fla. R. Jud. Admin, that the foregoing factual allegations and statements in the foregoing Motion are made in good faith. /s/ Rodney M, Kernan Rodney M. Kerann, Esquire FBN 0181307 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was filed on this 24" day of February, 2022, by using the Florida Courts e-filing portal, which will send notice of electronic filing to Thomas Kevin Knight, Esq., at KKnight@dsklawgroup.com; TKK Pleadings@DSKLawGroup.com: PSGarcia@DSKLawgroup.com; ELamb@DSKLawgroup.com.; deBeaubien Simmons Knight /s/ Rodney M. Kernan Rodney M. Kernan, Esquire FBN 0181307 Morgan & Morgan, P.A. 407 S. Washington Ave., Ste 3, Titusville, FL 32796 321-603-6450, fax 321-603-6473 Primary email: RKernan@forthepeople.com Secondary email: SBailey@forthepeople.com Attorneys for Plaintiff Filing 144580403 ROBERT JOHN ZIONS VS S IRISH 05-2020-CA-029865-XXXX-XX