Key Points

  • The Third District Court of Appeal affirmed the denial of Kristen Martinez's motion to disqualify Omar Guardia's lawyers in a Miami-Dade dissolution case.
  • The court held the motion untimely and did not decide whether the lawyers' mortgages on disputed property, taken to secure their fees, violated rule 4-1.8(i) of the Rules Regulating The Florida Bar.
  • Recording the mortgages in June 2025 gave Martinez constructive knowledge under Florida's recording statute, and her December 2025 quiet title complaint showed actual knowledge, yet she waited until May 2026 to move.
  • Martinez kept litigating, including trying and losing the ejectment case, and 121 docket entries of work between recording and the motion supported an inference of prejudice to Guardia.
  • The panel concluded the motion was a thinly veiled attempt to obtain a strategic advantage.

A Florida appeals court on Oct. 28 upheld a trial judge's refusal to disqualify the lawyers for a man in a contentious Miami-Dade County family case, holding that his former partner waited too long to object to the lawyers' mortgages on disputed property.

The Third District Court of Appeal affirmed an order by Miami-Dade Circuit Judge Charles Kenneth Johnson denying Kristen Martinez's motion to disqualify Javier Perez-Abreu and his firm, Perez-Abreu & Martin-Lavielle, P.A., from representing Omar Guardia. Judge Miller wrote the opinion for a three-judge panel that also included Judges Gooden and Rebull. No judge wrote separately.

The panel left open the question Martinez had pressed, whether lawyers who secure their fees with a mortgage on property at stake in the litigation violate 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," Judge Miller wrote. The court instead held that recording the mortgages in county records gave Martinez constructive knowledge of them, and that Martinez's months of continued litigation afterward amounted to waiver.

Martinez and Guardia were once romantically involved, and since 2023 they have fought in dissolution, ejectment, domestic violence and partition proceedings, according to the opinion. Martinez has claimed the two 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 at the center of the dispute. One is titled solely in Guardia's name, and he sued in 2023 to eject Martinez from it. The other is jointly owned, the subject of a pending partition suit Guardia filed and of foreclosure proceedings over an unpaid PennyMac loan. Martinez later won a domestic violence injunction awarding her sole possession of Guardia's property, but Guardia persuaded the court to modify it and restore his exclusive possession.

In June 2025, Guardia gave Perez-Abreu mortgages on both properties to secure his unpaid legal fees and costs, and the mortgages were recorded that month in Miami-Dade County's public records. On Dec. 9, 2025, Martinez filed a quiet title action seeking to invalidate both mortgages. Later that month the parties tried the ejectment case, and a final judgment of ejectment was entered against Martinez on Jan. 20, 2026.

On May 18, 2026, Martinez moved to disqualify Perez-Abreu in all seven cases between the parties. She argued the lawyers had improperly "obtain[ed] a financial interest in the properties through mortgages and notes issued by Guardia . . . without the knowledge of Martinez" and would have to testify as material witnesses about their own stake. Martinez maintained on appeal that the conduct underlying each motion differed from case to case. "It does not. The seven motions are virtually identical," Judge Miller wrote.

At a multi-day hearing, Martinez first told the trial court that no evidentiary hearing was needed, then reversed course on the second day. The judge declined to take evidence because no one disputed that the security interests existed. Johnson denied the motion as untimely and legally insufficient under Lee v. Gadasa Corp., a 1998 First District decision.

On appeal, Perez-Abreu argued that Martinez waived disqualification by failing to act with "reasonable promptness," and alternatively that she lacked standing, that the mortgages complied with rule 4-1.8(i), and that Guardia could encumber only his own interest in the property. The panel addressed only timeliness, calling it dispositive.

Quoting a 2025 Third District decision, Judge Miller wrote that disqualifying a party's chosen counsel is "an extraordinary remedy—one that should be rare," and that courts view such motions with disfavor. "Such motions interfere with a party's right to the lawyer of his choice and may be misused to frustrate and delay the proceedings," Judge Miller wrote. Although no bright-line deadline applies, the court looked to three factors: when the movant learned of the grounds, whether she kept litigating instead, and whether the other side would be prejudiced.

Each factor cut against Martinez. "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," Judge Miller wrote, citing Florida's recording statute, Section 695.11. The court added that it did not need to rely on that alone, because "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."

Martinez kept litigating in the meantime. "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," the opinion said. The panel cited earlier Florida appellate decisions finding waiver after delays of 10 and 14 months.

The record also supported an inference of prejudice to Guardia, the court held. Of the 215 entries on the dissolution docket, 198 predated the disqualification motions, and 121 fell 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 mediation, filed numerous motions, and noticed depositions," Judge Miller wrote.

"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," the court concluded.

Martinez was represented on appeal by Maria del Carmen Calzon. Guardia was represented by Javier Perez-Abreu of Perez-Abreu & Martin-Lavielle, P.A., the lawyer and firm Martinez had sought to disqualify.

The opinion is not final until the court disposes of any timely motion for rehearing. The ruling leaves Perez-Abreu in place as Guardia's counsel in the dissolution case. Martinez's quiet title suit challenging the mortgages and Guardia's partition action remain pending, and the ejectment judgment and the modified injunction are the subject of separate appeals, according to the opinion.