Avesta Communities, LLC, Rex v. Fred

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
AVESTA COMMUNITIES, LLC, and
PETER REX a/k/a PETER REYNOLDS,
Appellants,
v.
PAUL FRED,
Appellee.
No. 2D2025-0367
March 25, 2026
Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Hillsborough County; Darren D. Farfante, Judge.
Michael P. Beltran of Beltran Litigation, Tampa, for Appellant Peter Rex
a/k/a Peter Reynolds.
Samuel J. Salario, Jr., and Jessica Slatten of Lawson Huck Gonzalez,
PLLC, Tampa, for Appellant Avesta Communities, LLC.
Daniel E. Nordby and Ricky L. Polston of Shutts & Bowen, LLP,
Tallahassee; Erik R. Matheney, Ella A. Shenhav, Michael P. Silver, Alyssa
L. Cory and Ashlyn R. Banks of Shutts & Bowen, LLP, Tampa, for
Appellee.
LUCAS, Chief Judge.
An ongoing dispute among a company's owners and a change in
lawyers among law firms gave rise to a motion to disqualify counsel. The
circuit court denied the motion following an evidentiary hearing.

2
However, because the court below prohibited a key witness's testimony at
that hearing, we must reverse the court's order.
I.
The underlying controversies in this case are somewhat
complicated, but since our resolution of this appeal turns on a fairly
discrete issue, we can summarize the case before us as follows. Avesta
Communities, LLC, is a Delaware limited liability company owned by four
members: Peter Rex, Paul Fred, Nathaniel Fischer and, through a
separate LLC, Robert Reynolds. Through various subsidiary entities,
Avesta Communities does business in Florida, mostly revolving around
real estate. Historically, Mr. Rex has served as the managing member of
Avesta Communities and as the manager of Avesta Communities'
affiliated companies.
For some time, there has been a brewing dispute between Mr. Fred,
on the one hand, and the co-owners and management of Avesta
Communities, on the other, as to how Avesta Communities has been run
and how it has disbursed its revenues. That dispute turned into a
lawsuit, which Mr. Fred filed on November 5, 2020, against Avesta
Communities. On January 3, 2022, Mr. Fred filed a second amended
complaint, which asserted both direct and derivative claims against
Avesta Communities, its three other co-owners, as well as others.1
1 In a derivative claim, a member or shareholder of a corporate
entity purports to bring an action on behalf of that entity to recover
damages for the corporate entity. See generally § 605.0802, Fla. Stat.
(2022); Iezzi Fam. Ltd. P'ship v. Edgewater Beach Owners Ass'n, 254 So.
3d 584, 586 (Fla. 1st DCA 2018) ("A derivative suit has been defined as
an action in which a stockholder seeks to enforce a right of action
existing in the corporation; the injury sustained by the stockholder
bringing such suit is basically the same as the injury sustained by other

3
Over the years, Shutts & Bowen, LLP (Shutts Firm) has represented
certain subsidiaries of Avesta Communities in a variety of matters.
Several attorneys at the Shutts Firm provided legal representation for
these affiliates, including Matthew Meyer, Esq., a shareholder at the
Shutts Firm since 2021.
Prior to 2021, Mr. Meyer was the managing partner of the Tampa
office of Ansa Assuncao, LLP (Ansa Firm). In April 2019 Michael Beltran,
Esq., joined Mr. Meyer at the Ansa Firm as a shareholder. Mr. Beltran
had represented Avesta Communities, Avesta Communities' affiliates,
and Mr. Rex since 2013. And according to a sworn declaration Mr.
Beltran filed, he had been advising Avesta Communities and Mr. Rex on
matters related to Mr. Fred's ongoing disputes with Avesta and its
members since at least 2016.
Mr. Beltran would practice alongside Mr. Meyer at the Ansa Firm
until Mr. Beltran's departure in 2020. In a declaration, Mr. Beltran
averred that during that time, Avesta Communities engaged the Ansa
Firm to advise it on a matter known as "MaxProp," which concerned the
company's ongoing dispute with Mr. Fred (which, at that point, had not
yet blossomed into litigation). According to Mr. Beltran's declaration,
while he and Mr. Meyer worked together at the Ansa Firm, they met with
Avesta Communities' executives and general counsel over lunch to
discuss the company's legal issues. Mr. Beltran further averred that he
prepared an extensive memorandum for Mr. Rex addressing potential
stockholders in the corporation." (emphasis omitted) (quoting Leppert v.
Lakebreeze Homeowners Ass'n, 500 So. 2d 250, 252 (Fla. 1st DCA
1986))). Mr. Fred's operative complaint is now on its fifth iteration, but it
arises from the same operative allegations and continues to assert both
individual and derivative claims that seek various forms of relief against
Avesta Communities and others.

4
controversies with Mr. Fred, including issues that are now the subject of
Mr. Fred's litigation. Mr. Beltran declared that Mr. Meyer approved
assigning a Philadelphia partner to assist Mr. Beltran in his
representation and that Mr. Meyer was copied on Mr. Beltran's billing
time entries, including those concerning the dispute with Mr. Fred.
Those billing entries, according to Mr. Beltran's declaration, "provide[d]
detailed narratives . . . [and] contained confidential and privileged case
information." Finally, Mr. Beltran averred that when he left the Ansa
Firm, Mr. Meyer handed him a jump drive that included the file for the
Ansa Firm's representation of Avesta Communities.
Fast forward to 2024. After three years of litigation, on May 28,
2024, the Shutts Firm filed a notice of appearance on behalf of Mr. Fred
in the underlying lawsuit. Avesta Communities and Mr. Rex promptly
voiced their objection to the Shutts Firm regarding its representation,
and when the firm declined to withdraw, they filed a motion for
disqualification. The motion, as later amended, asserted several grounds
for disqualification, including the alleged acquisition of confidential
information the Shutts Firm acquired through Mr. Meyer, as well as the
Shutts Firm's past and ongoing representation of Avesta Communities'
affiliate companies. According to Avesta Communities and Mr. Rex, the
Shutts Firm's representation of Mr. Fred violated Rules Regulating the
Florida Bar 4-1.7 (conflict of interest with current clients), 4-1.9 (conflict
of interest with former clients), and 4-1.10 (imputation of conflicts of
interest).
The circuit court scheduled an evidentiary hearing on the
disqualification motion for January 10, 2025. The court directed the

5
parties to exchange witness lists ahead of time. Mr. Fred included Mr.
Beltran on his witness list; Avesta Communities and Mr. Rex did not.2
The evidentiary hearing before the circuit court lasted the better
part of a day. Multiple witnesses were called, and much of their
testimony concerned the structure of Avesta Communities and its
affiliated companies, the extent of the Shutts Firm's representation and,
perhaps most critically, what information Mr. Meyer had acquired about
Avesta Communities and Mr. Fred's dispute when he was the managing
shareholder of the Ansa Firm's Tampa office and worked alongside Mr.
Beltran (again, Mr. Beltran averred that he had represented Avesta
Communities concerning this very controversy).
Mr. Beltran was present in the courtroom for the hearing.
However, when Avesta Communities and Mr. Rex attempted to call Mr.
Beltran to testify, the Shutts Firm objected on the ground that he had
not been included on Avesta Communities' witness list. Mr. Fred's
counsel, Erik Matheney, Esq., argued that if Avesta Communities had
listed Mr. Beltran as a witness, that "would have affected our game plan"
and "[t]here could have been a witness or an affidavit or whatever that we
would have utilized to address whatever he's going to testify to." Both
Mr. Beltran and counsel for Avesta Communities stated that Mr.
Beltran's testimony would remain within the scope of his previously filed
declaration, and since Mr. Fred had already received that declaration and
had, in fact, listed Mr. Beltran as one of his own witnesses, Mr. Fred
would sustain no prejudice if the court heard Mr. Beltran's live
testimony.
2 Appellate counsel for Avesta Communities and Mr. Rex candidly
conceded that this was an oversight, likely the result of amending their
motion between the time of the original filing and the hearing.

6
The circuit court sustained Mr. Fred's objection. It made no finding
of prejudice but instead, referencing Mr. Beltran's anticipated testimony,
simply stated: "I don't need that. I mean, if he's telling me you've got a
declaration, and you're going to admit it into evidence, so if he's not
disclosed as a witness, I'll sustain Mr. Matheny's objection." The court
did allow Mr. Beltran to proffer his testimony, but the judge absented
himself from the courtroom when the proffer was made.
In his proffer, Mr. Beltran affirmed that he would not have testified
outside the scope of his declaration but would "clarify and augment some
of the facts and provide additional details." And, indeed, his proffer
elaborated on several facts that were in dispute, including the nature of
his conversations with Mr. Meyer when they worked together at the Ansa
Firm, what that representation entailed, how involved Mr. Meyer had
been with that representation, and potential rebuttal to another witness'
testimony. Mr. Beltran testified:
I explained the [Amended and Restated Limited Liability
Company Agreement of Avesta Communities LLC (ACOA)] to
Mr. Meyer. I explained the 20-year noncompete and waiver of
fiduciary duties and then there were other things both in the
AC[OA] and the MaxProp memo, tag-along, drag-along, major
decisions, provisions, thing[s] of that nature. I explained that
to Matt Meyer.
He further stated, "Matt Meyer knew about the case." And when he
recounted talking to Mr. Meyer over the telephone about the potential for
moving to disqualify the Shutts Firm, Mr. Beltran testified:
When [Mr. Meyer] called me back on Monday, I told him
what I was going to have to do. I described our interactions
and he accepted that we had worked on the Avesta matter,
that I had worked on the Avesta matter. . . .
I said I regretted that I had to do this, that we were good
friends and that I hope it didn't change that, and he said to
me that if he gets dis—his firm gets disqualified because of

7
something that he did when we were together at Ansa, then
that was just something he was going to live with or he wasn't
going to be mad or they weren't going to be mad at him, he
wasn't going to be mad at me.
The circuit court did not ever hear, much less consider, any of this
proffered testimony.
Based on the evidence it did consider, the court denied Avesta
Communities' motion to disqualify. In a detailed order, the court
correctly observed that it had to undertake a factual inquiry as to
whether Mr. Meyer had obtained actual knowledge of material
confidential information.3 Relying solely on Mr. Beltran's declaration and
weighing that against Mr. Meyer's declaration (in which he averred he
could not recall the details of any prior meeting with Avesta Communities
or any "Avesta-related information"), the court concluded that Avesta
Communities failed to establish a prima facie case for disqualification.
Alternatively, the circuit court held that, even if Avesta Communities had
shown a prima facie case, the Shutts Firm had sufficiently demonstrated
that it should not be disqualified "based on the detail regarding its prior
representations and the derivative nature of this action."
3 Rule 4-1.10's comment on confidentiality states as follows:
A lawyer may have general access to files of all clients of
a law firm and may regularly participate in discussions of
their affairs; it should be inferred that such a lawyer in fact is
privy to all information about all the firm's clients. . . .
Application of subdivisions (b) and (c) depends on a
situation's particular facts. In any inquiry, the burden of
proof should rest on the firm whose disqualification is sought.
Subdivisions (b) and (c) operate to disqualify the firm
only when the lawyer involved has actual knowledge of
relevant information protected by rules 4-1.6 and 4-1.9(b) and
(c).
(Emphasis added.)

8
This timely appeal was then filed.
II.
We have jurisdiction to review orders on motions for
disqualification of counsel under Florida Rule of Appellate Procedure
9.130(a)(3)(E). Our review of an order granting or denying a motion to
disqualify counsel would be for an abuse of discretion. See Pagidipati v.
Vyas, 353 So. 3d 1204, 1211 (Fla. 2d DCA 2022) (quoting Kaplan v.
Divosta Homes, L.P., 20 So. 3d 459, 461 (Fla. 2d DCA 2009)). We
explained the balance of interests a trial court must consider when
ruling on a motion to disqualify in Pagidipati, 353 So. 3d at 1211:
Due to the gravity of the rights involved, including the
party's right to counsel and the attorney's right to freely
practice law, "disqualification of counsel 'is an extraordinary
remedy and should only be resorted to sparingly.' " Balaban
v. Philip Morris USA Inc., 240 So. 3d 896, 899 (Fla. 4th DCA
2018) (quoting Manning v. Cooper, 981 So. 2d 668, 670 (Fla.
4th DCA 2008)). Nonetheless, "courts should not hesitate to
disqualify an attorney where the circumstances justify such a
severe remedy." Id.
The case at bar, however, also presents a preliminary issue of
whether Mr. Beltran should have been allowed to provide live testimony
at the disqualification hearing. We have not had an occasion to state
what the standard of review should be when, as here, a court convenes
an evidentiary hearing on a motion to disqualify counsel, requires a prior
exchange of witness lists, and then disallows a witness' testimony
because of a failure to include that witness on a list. In the context of a
trial, our review of such a ruling would be for an abuse of discretion. See
generally Gaspar's Passage, LLC v. RaceTrac Petroleum, Inc., 243 So. 3d
492, 500 (Fla. 2d DCA 2018) ("We also review the trial court's decision to
exclude late-disclosed witnesses or exhibits for an abuse of discretion.").

9
We will review this issue for an abuse of discretion, recognizing that the
context of the evidentiary proceeding—whether a jury trial, nonjury trial,
or an evidentiary hearing that does not adjudicate any claim or defense—
may impact the outer boundaries of a judge's discretionary decision to
exclude an unlisted fact witness.
III.
There were multiple grounds argued for disqualification, but our
resolution of this appeal requires us to address only one, the potential
imputed disqualification of the Shutts Firm by virtue of Mr. Meyer and
Mr. Beltran's prior work together at the Ansa Firm. Rule Regulating the
Florida Bar 4-1.10(b) provides:
(b) Former Clients of Newly Associated Lawyer. When a
lawyer becomes associated with a firm, the firm may not
knowingly represent a person in the same or a substantially
related matter in which that lawyer, or a firm with which the
lawyer was associated, had previously represented a client
whose interests are materially adverse to that person and
about whom the lawyer had acquired information protected
by rules 4-1.6 and 4-1.9(b) and (c) that is material to the
matter.
In Scott v. Higginbotham, 834 So. 2d 221, 223 (Fla. 2d DCA 2002),
we explained:
[U]nder rule 4–1.10(b), in order to establish a prima facie case
for disqualification, the moving party must show that the
newly associated attorney acquired confidential information
in the course of the attorney's prior representation. Gaton [v.
Health Coal., Inc.], 745 So. 2d [510,] 511 [(Fla. 3d DCA 1999)];
Koulisis [v. Rivers], 730 So. 2d [289,] 292 [(Fla. 4th DCA
1999)]. After the moving party meets this burden, the burden
shifts to the firm whose disqualification is sought to show
that the newly associated attorney has no knowledge of any
material confidential information. Id.

10
In order to establish its prima facie case for disqualification under
Rule 4-1.10(b), Avesta Communities would have to show that Mr. Meyer,
now a shareholder at the Shutts Firm which represents Mr. Fred,
acquired confidential information from Mr. Beltran concerning the matter
now in litigation against Avesta Communities. Mr. Beltran's testimony
was self-evidently essential to Avesta Communities' motion to disqualify.
Mr. Fred hasn't suggested otherwise. And the circuit court's order noted
that Avesta Communities described this argument as its "strongest basis
for disqualification."
Given what was at stake, we cannot discern a reasonable basis for
the court's decision not to allow Mr. Beltran to testify at the
disqualification hearing. Depending on whether his proffer or Mr.
Meyer's declaration was believed, Mr. Meyer, the former managing
shareholder at Mr. Beltran's prior firm, may have acquired actual
knowledge of the very dispute that is now in litigation.
In that regard, we should explain the context of judicial discretion
here. Trial judges are, of course, afforded considerable flexibility to
manage their dockets and set parameters for their hearings. But the
hearing below was not a civil jury trial, in which private citizens are
called upon to sacrifice their time to resolve a private dispute, where
clients and their counsel invest considerable preparation, and where the
presiding judge must remain especially vigilant about the proceeding's
timely and orderly progression. Nor was it a bench trial, which often
requires a significant investment of docket time and party resources to
reach a final adjudication. This was an evidentiary hearing on an issue
that was ancillary to the merits of the case. The court had already set
aside a day for the hearing, and there was no indication from the record

11
that if there wasn't enough time to accommodate Mr. Beltran's live
testimony a continuance of the hearing couldn't have been convened.4
In Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981), the
supreme court provided guidance when considering a pretrial failure to
disclose a witness at trial. The Binger court explained:
It follows, of course, that a trial court can properly
exclude the testimony of a witness whose name has not been
disclosed in accordance with a pretrial order. The discretion
to do so must not be exercised blindly, however, and should
be guided largely by a determination as to whether use of the
undisclosed witness will prejudice the objecting party.
Prejudice in this sense refers to the surprise in fact of the
objecting party, and it is not dependent on the adverse nature
of the testimony. Other factors which may enter into the trial
court's exercise of discretion are: (i) the objecting party's
ability to cure the prejudice or, similarly, his independent
knowledge of the existence of the witness; (ii) the calling
party's possible intentional, or bad faith, noncompliance with
the pretrial order; and (iii) the possible disruption of the
orderly and efficient trial of the case (or other cases). If after
considering these factors, and any others that are relevant,
the trial court concludes that use of the undisclosed witness
will not substantially endanger the fairness of the proceeding,
the pretrial order mandating disclosure should be modified
and the witness should be allowed to testify.
Id. at 1313–14 (footnotes omitted).
Binger's construction of judicial discretion during a trial should
apply perforce to this evidentiary hearing. As should the precaution we
issued in Gaspar's Passage about excluding key witnesses:
4 We are not suggesting that a trial court can't impose witness and
exhibit disclosure requirements in advance of an evidentiary hearing on a
motion to disqualify counsel, nor that it can't enforce violations of those
requirements. We simply observe that enforcement of such orders
should be tempered by what is at stake at the hearing and in light of the
factors discussed in Binger v. King Pest Control, 401 So. 2d 1310 (Fla.
1981).

12
" '[T]he right to call witnesses is one of the most important
due process rights of a party[,] and accordingly, the exclusion
of the testimony of expert witnesses must be carefully
considered and sparingly done.' " [AT & T Wireless Servs., Inc.
v. Castro, 896 So. 2d 828, 832 (Fla. 1st DCA 2005)] (first
alteration in original) (quoting State v. Gerry, 855 So. 2d 157,
161 (Fla. 5th DCA 2003)); see also State Farm Mut. Auto. Ins.
Co. v. Bowling, 81 So. 3d 538, 541 (Fla. 2d DCA 2012) ("A
trial court should only exclude witnesses under the most
compelling of circumstances. . . ." (quoting Keller Indus. v.
Volk, 657 So. 2d 1200, 1203 (Fla. 4th DCA 1995))). This is
especially true "when the witness sought to be excluded is a
party's only witness or one of the party's most important
witnesses because if the witness is stricken, that party will be
left unable to present evidence to support [its] theory of the
case." Bowling, 81 So. 3d at 541 (quoting Pascual v. Dozier,
771 So. 2d 552, 554 (Fla. 3d DCA 2000)); see also Keller
Indus., 657 So. 2d at 1202–03.
243 So. 3d at 501 (second and fourth alteration in original); see also
Pascual v. Dozier, 771 So. 2d 552, 554 (Fla. 3d DCA 2000) ("[A] trial court
should exercise caution when the witness sought to be excluded is . . .
one of the party's most important witnesses . . . .").
The court below made no finding that Mr. Beltran testifying at the
disqualification hearing would have resulted in any kind of prejudice at
all. See Louisville Scrap Material Co. v. Petroleum Packers, Inc., 566 So.
2d 277, 278 (Fla. 2d DCA 1990) (concluding trial court abused discretion
by prohibiting expert from testifying and observing "[t]his is not a case
where a party was taken by surprise regarding witness testimony, at the
time of trial, or was not aware of what would be the subject matter of the
testimony prior to trial"); Callari v. Winkeljohn, 329 So. 3d 795, 797 (Fla.
3d DCA 2021) (stating that a court's failure to analyze the Binger factors
when excluding a late-disclosed witness' testimony "will result in
reversal" (quoting Montero v. Corzo, 320 So. 3d 976, 980 (Fla. 3d DCA
2021))); Deutsche Bank Nat'l Tr. Co. ex rel. LSF MRA Pass-Through Tr. v.

13
Perez, 180 So. 3d 1186, 1189 (Fla. 3d DCA 2015) ("Here, the trial court
incorrectly refused to even consider whether Perez would be prejudiced
by allowing the bank's witness to testify at trial.").
Moreover, from this record we cannot see what prejudice there
could have been had the court simply allowed him to testify. All that Mr.
Fred could say on this point was that Avesta Communities failed to
include Mr. Beltran on its witness list, and that if he had been disclosed
as a potential witness, Mr. Fred "may have secured additional witnesses
or affidavits . . . in preparation for the evidentiary hearing."5 But that
level of generality doesn't tell us anything of substance and fails to evince
the requisite prejudice, the "surprise in fact," that Binger requires under
these circumstances.
Finally, the remaining Binger factors further demonstrate the abuse
of discretion here: the Shutts Firm was well aware of Mr. Beltran and the
scope of his testimony (they had, after all, included him on their own
witness list); there was no evidence that the failure to include Mr. Beltran
on Avesta Communities' list was done intentionally or in bad faith; and
since this was an evidentiary hearing on a motion to disqualify, there
5 We can readily dispense of Mr. Fred's argument that Avesta
Communities sustained no harm from the court's decision because it
admitted and considered Mr. Beltran's written declaration. See Fisher v.
Perez, 947 So. 2d 648, 652 (Fla. 3d DCA 2007) ("A strong preference
exists in law for live testimony." (first citing Silverman v. Millner, 514 So.
2d 77, 79 (Fla. 3d DCA 1987); then citing Jean v. Sanitation Inc., 596 So.
2d 1245, 1247 (Fla. 4th DCA 1992); and then citing LoBue v. Travelers
Ins., 388 So. 2d 1349, 1351 (Fla. 4th DCA 1980) (disapproved of on other
grounds by Barth v. Khubani, 748 So. 2d 260, 262 n.7 (Fla. 1999)))). And
as we recounted earlier, Mr. Beltran's proffer substantively expounded on
his prior written declaration and, potentially, provided impeachment
evidence against another witness' testimony.

14
was no trial being disrupted. In sum, Mr. Beltran's testimony was
critical in this hearing, and he should have been allowed to testify.
IV.
Accordingly, we reverse the order denying the motion to disqualify
and remand this matter to the circuit court to convene an evidentiary
hearing in accordance with this opinion. We make no comment on the
merits of the other arguments raised in this appeal or the evidence that
was presented below. The court is free to reconsider its ruling in light of
such further evidence and arguments as the parties may present.
Reversed and remanded with instructions.
BLACK and SLEET, JJ., Concur.
Opinion subject to revision prior to official publication.