Third District Court of Appeal
State of Florida
Opinion filed October 28, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D26-1540
Lower Tribunal No. 24-18418-FC-04
Kristen Martinez,
Appellant,
vs.
Omar Guardia,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Charles Kenneth Johnson, Judge.
Maria del Carmen Calzon, for appellant.
Perez-Abreu & Martin-Lavielle, P.A., and Javier Perez-Abreu and Andy W. Acosta, for appellee.
Before MILLER, GOODEN, and REBULL, JJ.
MILLER, J.
This is a nonfinal appeal from an order denying the disqualification of
counsel in a high-conflict dissolution proceeding. Appellant, Kristen
Martinez, challenges an order denying her motion to disqualify trial court
counsel for appellee, Omar Guardia. On appeal, she contends that by
securing payment of their fees with a mortgage on disputed property, counsel
ran afoul of rule 4-1.8 of the Rules Regulating The Florida Bar. We need not
decide this issue because the trial court’s finding that the motion was
untimely is well supported.
I
A
Martinez and Guardia were once romantically involved. Since 2023,
they have been embroiled in a series of legal disputes, including dissolution,
ejectment, domestic violence, and partition proceedings. The case before
us involves the dissolution action. Martinez has claimed that she and
Guardia entered into a common law marriage in Colorado. Guardia has
denied they were ever married and counter-petitioned to establish the
paternity of Martinez’s minor child.
Two properties are relevant to this appeal. The first is titled solely in
Guardia’s name. The second is owned jointly by the parties. In 2023,
Guardia sued to partition the jointly owned property, which is also subject to
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foreclosure proceedings because a secured loan held by PennyMac went
unpaid. The partition action remains pending.
That same year, Guardia filed an ejectment action, seeking to oust
Martinez from the property titled in his name. Months later, Martinez
obtained a final injunction against domestic violence that awarded her sole
possession of that very property. Guardia successfully moved to have the
injunction modified to restore his exclusive possession. That injunction is the
subject of a separate, pending appeal.
Now come the facts on which this appeal turns. In June 2025, Guardia
granted his lawyers, Javier Perez-Abreu and Perez-Abreu & Martin-Lavielle,
P.A. (collectively “Perez-Abreu”) mortgages on both properties to secure his
unpaid legal fees and costs. The mortgages were recorded the same month
in the public records of Miami-Dade County.
Martinez discovered the mortgages. On December 9, 2025, she filed
a quiet title action seeking to invalidate both mortgages, and that action
remains pending. Later the same month, the parties proceeded to trial on
the ejectment case. Final judgment of ejectment was entered against
Martinez on January 20, 2026. That judgment is on appeal, as well.
On May 18, 2026, eleven months after the mortgages were recorded
and five months after she moved to invalidate them, and four months after
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she lost the ejectment trial, Martinez moved to disqualify Perez-Abreu in all
seven cases. She claimed that counsel had improperly “obtain[ed] a
financial interest in the properties through mortgages and notes issued by
Guardia . . . without the knowledge of Martinez,” and that Perez-Abreu would
have to testify as material witnesses about their own financial stake.
Martinez maintains that the conduct underlying each motion differs from
“case to case.” It does not. The seven motions are virtually identical.
Guardia filed an omnibus response, arguing, among other things, that
the disqualification motion was untimely. At a multi-day hearing, Martinez
first told the court that no evidentiary hearing was needed because the
outcome hinged on legal argument. On the second day, she reversed
course. The trial court declined to take evidence, as no one disputed that
the security interests existed. See First Fid. Tr. Servs., Inc. v. Shelter Cove
Condo. Ass’n, Inc., 329 So. 3d 222, 228 (Fla. 1st DCA 2021) (“It is true that
‘where material facts are in dispute, an evidentiary hearing is required[;]’
[h]owever, an evidentiary hearing is not required for a motion to disqualify
counsel where the factual allegations warranting disqualification are not in
dispute.” (citations omitted)). The court denied the motion as untimely and
legally insufficient under Lee v. Gadasa Corp., 714 So. 2d 610 (Fla. 1st DCA
1998). This appeal followed.
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II
A
We review an order on a motion seeking the disqualification of counsel
for abuse of discretion. See Young v. Achenbauch, 136 So. 3d 575, 580–81
(Fla. 2014); Schneider v. Tirikian, 410 So. 3d 79, 80 (Fla. 3d DCA 2025).
B
Martinez contends, as she did below, that the security interest in the
property confers a stake in the litigation that requires disqualification and
violates rule 4-1.8(i) of the Rules Regulating The Florida Bar. Perez-Abreu
counters that Martinez waived disqualification by failing to act with
“reasonable promptness,” Lee, 714 So. 2d at 612 (quoting Transmark,
U.S.A. v. State, Dep’t of Ins., 631 So. 2d 1112, 1116 (Fla. 1st DCA 1994)),
and alternatively argues that Martinez lacks standing, the security interest is
consistent with rule 4-1.8(i), and Guardia could only encumber his own
interest in the property, so Martinez’s interest remains unaffected. Because
it is dispositive on these facts, we write only to address timeliness.
C
It is long established that disqualification of a party’s chosen counsel
is “an extraordinary remedy—one that should be rare.” Phinney v. Phinney,
427 So. 3d 1041, 1042 (Fla. 3d DCA 2025). Courts view motions to
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disqualify with disfavor and skepticism, and for good reason. Such motions
interfere with a party’s right to the lawyer of his choice and may be misused
to frustrate and delay the proceedings. See Alexander v. Tandem Staffing
Sols., Inc., 881 So. 2d 607, 608–09 (Fla. 4th DCA 2004). The movant bears
the burden of establishing that disqualification is obligatory. See State v. De
La Osa, 28 So. 3d 201, 203 (Fla. 4th DCA 2010).
The motion must be timely. “A motion to disqualify should be made
with reasonable promptness after the party discovers the facts which lead to
the motion.” Lee, 714 So. 2d at 612 (quoting Transmark, 631 So. 2d at
1116). We acknowledge that “[t]here is no bright-line rule governing the
amount of time within which a party can be found to be reasonably prompt.”
See Glob. Lab Partners, LLC v. Patroni Enters., LLC, 327 So. 3d 453, 457
(Fla. 1st DCA 2021). The inquiry instead turns on the facts.
The purpose of requiring “reasonable promptness” is evident. Undue
delay suggests a strategic motive, and disqualification is not a means for a
litigant “to deprive his opponent of counsel of his choice after completing
substantial preparation of the case.” Transmark, 631 So. 2d at 1116.
In evaluating whether a disqualification motion is timely, courts
consider (1) when the movant learned of the grounds for disqualification; (2)
whether the movant kept litigating rather than moving for disqualification; and
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(3) whether the nonmovant would suffer prejudice. See Zayas-Bazan v.
Marcelin, 40 So. 3d 870, 872–73 (Fla. 3d DCA 2010) (“A party can waive his
right to seek disqualification of the opposing party’s counsel by failing to
promptly move for disqualification upon learning of the facts leading to the
alleged conflict.”); Glob. Lab Partners, 327 So. 3d at 457 (holding the
circumstances did not support a finding of waiver where the motion to
disqualify was filed “between pleadings and discovery, a natural demarcation
in the proceedings, and the motion was not preceded by a great deal of work
done by either side’s counsel”); Case v. City of Miami, 756 So. 2d 259, 261
(Fla. 3d DCA 2000) (“Under the circumstances in this case, the
disqualification of retirees’ counsel would result in a serious injustice to their
case.”).
D
Here, the factors support the trial court’s decision. Martinez had
constructive knowledge of the purported conflict as soon as the mortgages
were recorded in June 2025, eleven months before she filed her motions to
disqualify. This knowledge is imputed by Florida’s recording statute. See
Fla. Stat. § 695.11 (entitled “Instruments deemed to be recorded from time
of filing”); see also Tikhomirov v. Bank of N.Y. Mellon, 223 So. 3d 1112, 1114
n.2 (Fla. 3d DCA 2017) (quoting Whitburn, LLC v. Wells Fargo Bank, N.A.,
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190 So. 3d 1087, 1091 (Fla. 2d DCA 2015) (“The act of recording an
instrument in accordance with [Florida's recording] statute constitutes
constructive notice of a prior encumbrance on the property which is the
subject of the instrument.”) (citing Fla. Stat. § 695.11)). But we need not rely
on constructive knowledge alone, since Martinez’s own quiet title complaint
established that she had actual knowledge no later than December 2025, six
months before she filed her disqualification motions.
Despite this knowledge, Martinez continued litigating on multiple fronts.
She tried the ejectment case to verdict; and it was only after losing that case
and the injunction modification that she finally moved for disqualification.
This course of action supports a finding of waiver. See Transmark, 631 So.
2d at 1116 (holding a ten-month delay sufficient to waive right to seek
disqualification of opposing counsel); L.E.B. v. D.D.C., 304 So. 3d 54, 58
(Fla. 2d DCA 2020) (holding a fourteen-month delay sufficient to waive a
motion for disqualification).
The record further supports an inference of prejudice to Guardia, the
nonmovant. The dissolution docket contains 215 entries; 198 predate the
disqualification motions. Of those, 121 entries appear between the recording
of the mortgages and the filing of the motions. In that period, the parties
conducted substantial discovery, agreed to timesharing orders, attended
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mediation, filed numerous motions, and noticed depositions. This is the
“great deal of work” by counsel that weighs in favor of a finding of prejudice
and against disqualification. Glob. Lab Partners, 327 So. 3d at 457. We
therefore find ample support for the conclusion that the motion was a thinly
veiled attempt to obtain a strategic advantage, and we affirm the order under
review.
Affirmed.
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