A motion to disqualify opposing counsel has to be made with “reasonable promptness” after the movant learns the facts behind it, and a party who keeps litigating for months can waive it. The Third District Court of Appeal applied that rule on October 28, 2026, in Martinez v. Guardia, No. 3D2026-1540, and affirmed an order denying a motion to disqualify a husband’s lawyers in a dissolution case. Judge Miller wrote the opinion. The panel also included Judges Gooden and Rebull.
The dispute
The parties were once romantically involved and have been in a series of legal disputes since 2023: dissolution, ejectment, domestic violence, and partition. Martinez claims they entered a common law marriage in Colorado. Guardia denies they were ever married. The opinion does not decide whether a marriage exists. The appeal concerns only an order denying disqualification of counsel in the dissolution action.
The mortgages
In June 2025, Guardia gave his lawyers mortgages on two properties, one titled in his name and one jointly owned, to secure unpaid fees and costs. The mortgages were recorded that month. Martinez filed a quiet title action to invalidate them on December 9, 2025, and that action remains pending. Final judgment of ejectment was entered against her on January 20, 2026. On May 18, 2026, she moved to disqualify the lawyers in all seven related cases, arguing they had acquired a financial interest in the properties and would have to testify about it. She relied on rule 4-1.8 of the Rules Regulating The Florida Bar.
The trial court’s ruling
The trial court declined to take evidence because no one disputed that the security interests existed. It denied the motion as untimely and legally insufficient.
Motion to disqualify opposing counsel: why timeliness decided it. The Third DCA reviewed for abuse of discretion and said it “need not decide” the rule 4-1.8 issue because the untimeliness finding was well supported. It treated disqualification of a party’s chosen counsel as an extraordinary remedy and weighed three factors: when the movant learned the grounds, whether she kept litigating instead of moving, and whether the other side would be prejudiced.
On the first factor, recording the mortgages gave constructive notice in June 2025, eleven months before the motion, and her own quiet title complaint showed actual knowledge no later than December 2025. On the second, she tried the ejectment case to verdict and moved only after losing that case and the injunction modification. The court cited decisions finding waiver after ten- and fourteen-month delays. On the third, the dissolution docket had 215 entries, 198 before the motions and 121 between the recording and the motions, including discovery, mediation and depositions. The court concluded the motion was “a thinly veiled attempt to obtain a strategic advantage.”
What this does and does not mean
The court did not decide whether a lawyer taking a mortgage on disputed property to secure fees violates rule 4-1.8, whether the movant had standing, or whether the trial court was right that the motion was legally insufficient. It said there is no bright-line rule for how much time is too long, so the result turns on these facts. The opinion describes a separate pending appeal of an injunction modification and a pending appeal of the ejectment judgment, and decides neither. The opinion is not final until any timely motion for rehearing is decided.
Related decisions: Can a Court Assign 100% of Business Debt in Equitable Distribution When the Couple Owns 51%? Not on This Record, the Fifth DCA Says Must a Florida Divorce Judgment Classify Each Debt as Marital or Nonmarital? Yes, the Fifth DCA Held, and Remanded for Findings
Read the opinion (PDF): Download the opinion (PDF)
Source: Martinez v. Guardia, No. 3D2026-1540 (Fla. 3d DCA Oct. 28, 2026). This article is general information, not legal advice.