## Facts

- In a civil case, the trial judge conducted a case-management conference and offered to mediate if all parties and counsel agreed the mediation would not later be used as a ground to seek the judge’s disqualification.
- The parties and attorneys, including George M. Evans (counsel for defendant Vincent Antonucci), agreed; the judge then attempted mediation, which did not settle the case.
- During mediation, the judge made remarks that Antonucci and Evans interpreted as showing bias in favor of the plaintiff, Ted Williams.
- Antonucci insisted that Evans seek recusal based on the judge’s mediation remarks and Antonucci’s fear of prejudice.
- Evans researched the issue, consulted other attorneys, and then filed a motion to disqualify the judge under Florida procedure, citing the mediation comments.
- The trial judge immediately cited Evans for direct criminal contempt, asserting Evans “lied” when he agreed that mediation would not be used as a basis for disqualification.
- At the contempt hearing, Evans and Antonucci testified without contradiction that the motion was filed at Antonucci’s insistence and based on a genuine fear of judicial bias arising from the judge’s statements.

## Issues

1. Whether the evidence supported a finding that Evans intentionally lied to the court, constituting direct criminal contempt, by later filing a motion to disqualify after agreeing not to use the judge’s mediation efforts as a basis for recusal.
2. Whether uncontroverted and unimpeached testimony concerning the attorney’s motive for filing the disqualification motion could be disregarded to sustain a criminal contempt adjudication.

## Decision

- The Fifth District Court of Appeal reversed the adjudication and sentence for direct criminal contempt.
- The court remanded with directions to enter a judgment of not guilty.
- The court held the uncontroverted and unimpeached testimony regarding why the motion was filed had to be accepted.
- Because the record showed a good-faith basis for the motion and no evidence of a knowingly false assurance, the evidence did not support the trial court’s finding that Evans lied.

## Legal Principles

- Direct criminal contempt requires evidentiary support for intentional, contumacious conduct; it cannot rest on suspicion or disagreement with counsel’s litigation choices.
- Uncontroverted and unimpeached testimony as to a party’s or attorney’s motive must be accepted when assessing whether the evidence supports a criminal contempt finding.
- An attorney is not subject to direct criminal contempt for filing a judicial-disqualification motion when the motion is filed in good faith, prompted by a client’s genuine fear of bias, and supported by legal research, absent proof the attorney previously made a knowingly false representation to the court.

## Conclusion

The appellate court set aside the contempt conviction because the only evidence showed Evans filed the disqualification motion in good faith based on his client’s genuine concern about judicial bias, and the record did not support the trial court’s finding that Evans intentionally lied when he earlier agreed to permit the judge to mediate.


Evans v. State, 603 So. 2d 15 (Fla. Dist. Ct. App. 5th Dist. 1992)