Date: June 7th, 2023 4:13 PM
Author: Sienna Cracking Ceo
Complete text:
Plaintiff respectfully moves this Court to disqualify the Honorable Gloria
Walker (the "Trial Judge") from this case pursuant to Florida Rule of General
Practice and Judicial Administration 2.330. In support of this Motion, Plaintiff states:
1. THE FACTS AND REASONS UPON WHICH THE MOVANT RELIES AS THE GROUNDS FOR DISQUALIFICATION
.1 Florida Rule of General Practice and Judicial Administration 2.330 allows a
party to seek disqualification of the assigned trial judge where the party feels he will not receive a fair trial or hearing because of a specifically described prejudice
or bias of the judge. The Rule provides that, upon receipt of a legally sufficient motion to disqualify, "the judge shall immediately enter an order granting
disqualification and proceed no further in the action."
]
"2022 CA 003042" 174571608 Filed at Alachua CountyClerk 06/05/2023 10:19:24AM EDT
2. The facts constituting the grounds for this Motion were discovered on May 31, 2023, at the hearing on Defendant's Motion to Dismiss (the "Hearing"). They are
being presented to the Court for an immediate ruling. Thus, this motion is timely
filed.
3. This Motion is filed with all due respect to the Court and Trial Judge. Under the
circumstances as outlined below, Counsel, has an ethical responsibility as advocate to seek the remedy of disqualification.
4. Plaintiff fears he will not receive a fair hearing, because of the Court's continuing demonstrable prejudice stemming from Defendants' ex parte communications
with the Trial Judge and prejudice against him at the Hearing of May 31, 2023 manifesting in a the Trial Judge's accusation that Plaintiff is "forum shopping," and the Trial Judge's stated intention of entering an order enjoining Plaintiff from
filing suit against Defendants or refiling this case in another county. 5. Florida Rule of Judicial Administration 2.330(h) states that:
The judge against whom an initial motion to disqualify under subdivision (el is directed may determine only the legal sufficiency ofthe motion and shall not pass on the truth ofthe facts alleged. Ifa n y motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action.
6. A recitation of the facts forming the basis for this fear will demonstrate this fear is well-founded.
7. Plaintiff reasonably believes the Trial J u d g e is prejudiced against him. The Trial Judge has taken on the role of advocate for the Defendants, and is no longer an
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impartial arbitrator in this matter. The actions of the court in (1) inquiring into
an attorneys'work product and decision making, (2) sua sponte, without a notice
hearing or motion of any Party, declaring an its intention to enjoin and otherwise bar Plaintiff from filing another lawsuit against Defendants or refiling this case in another county, (3) directing Defendants to put into the written record by way of proposed orders that Plaintiffis allegedly "forum shopping," and (4) receiving and otherwise reviewing ex parte communications, i.e., attorneys fee logs and records, transmitted from Defendants to the Trial Judge. Thus, the Plaintiff fears that he will not receive a fair hearing is well-founded, objective, and reasonable.
8. "When a judge enters into the proceedings and becomes a participant or an
advocate, a shadow is cast upon judicial neutrality." R.O. v. State, 46 So. 3d 124,
126 (Fla. 3d DCA 2010); see also Williams v. State, 160 So. 3d 541, 544 (Fla. 4th DCA 2015). Trial judges must studiously avoid the appearance of favoring one party in a lawsuit, and suggesting to counsel or a party how to proceed strategically constitutes a breach of this principle. See Chastine v. Broome, 629 So.2d 293 (Fla. 4th DCA 1993) (holding that a trial judge's provision of strategic advice to a party during a trial demonstrated impermissible bias); see also J.F. v. State, 718 So.2d 251 (Fla. 4th DCA 1998) (disapproving a trial judge who assisted with a delinquency prosecution by requesting the production of additional State's evidence).
9. "Prejudice of a judge is a delicate question to raise, but when raised as a bar to the trial of a cause, if predicated on grounds with a modicum ofreason, the judge against whom raised should be prompt to recuse himself." Livingston v. State,
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441 So.2d 1083, 1085 (emphasis added). Where there is any legally sufficient basis, whether factually accurate or not, for a founded fear of possible prejudice to exist in the mind of a [party], recusal is mandated. See, e.g., Management Corporation of America, Inc. v. Grossman, 396 So.2d 1169 (Fla. 3rd DCA 1981).
10. In the instant case, a reasonably prudent person, would be in fear that the Court, because of the Trial Judge's prejudice or bias deprived him of fair and impartial treatment.
II. THE FACTS AND REASONS UPON WHICH THE MOVANT RELIES AS THE GROUNDS FOR DISQUALIFICATION
1. On May 31, 2023, at the Hearing, the Trial Judge stated that she received "attorneys fee" logs and other communications from the Defendants. Such logs, records, and communications were not served in a contemporaneous manner on Plaintiff and constitute ex parte communications with the Trial Judge.
12. As a result of Defendants' ex parte communications with theTrialJudge Plaintiff reasonable questions the impartiality of the Trial Judge.
13. On May 31, 2023, at the Hearing, after the Trial Judge sua sponte inquired why this case was filed in Alachua County, the Trial Judge expressed her opinion that Plaintiff was allegedly "forum shopping." As a result of the Trial Judge's statement, Plaintiff reasonably questions the impartiality of the Trial Judge.
14. At the Hearing, after the Trial Judge sua sponte stated her opinion that Plaintiff was forum shopping, she declared her intention to enter an order to bar or otherwise enjoin Plaintiff from filing suit against Defendants in another venue in the State ofFlorida.
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15. Even fi the Trial Judge ultimately does not use the words "temporary injunction" in its order, an order barring Plaintiff from filing suit is effectively an order
imposing a temporary injunction. See Leposky v. Ego, 348 So. 3d 1160, 1162 (Fla. 4th DCA 2022). "To be entitled to a temporary injunction, a party must prove that: (1) irreparable harm will result fi the temporary injunction is not
entered; (2) an adequate remedy at law is unavailable; (3) there is a substantial likelihood of success on the merits; and (4) entry of the temporary injunction will serve the public interest. The party seeking the injunction has the burden to provide competent substantial evidence, and the court's order must contain clear, definite, and unequivocally sufficient factual findings to support each of the four elements." Leposky v. Ego, 348 So. 3d 1160, 1162 (Fla. 4th DCA 2022) (cleaned up).
16. The Trial Judge violated Plaintiff's right to the due process of law when it did not allow him to testify or present countervailing evidence of why a temporary
injunction should not issue, and over Plaintiff's counsel objection, stated remarks to the effect of that the Court has made its ruling, and to file a motion
fi Plaintiff disagreed with it. See Hinners v. Hinners, 312 So. 3d 938, 942 (Fla. 4th DCA 2021) (recognizing that the entry of a temporary injunction without an evidentiary hearing violates due process); Platinum Coast Fin. Corp. v. Farino's, Inc., 662 So. 2d 724, 724 (Fla. 2d DCA 1995) (reversing a temporary injunction where the trial court "failed to permit the appellants to present countervailing evidence of why a temporary injunction should not issue"). Leposky, 348 So. 3d at 1162.
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17. Further, the Trial Judge violated Florida Rule of Civil Procedure 1.610, which states:
(1) A temporary injunction may be granted without written or oral notice to the adverse party only if:
(A) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard
in opposition; and
(B) the movant's attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required.
(2) Every temporary injunction granted without notice shall be endorsed with the date and hour of entry and shall be filed forthwith
in the clerk's office and shall define the injury, state findings by the court why the injury may be irreparable, and give the reasons why the order was granted without notice if notice was not given. The
temporary injunction shall remain in effect until the further order of the court.
18. Defendants have not shown by affidavit or verified pleading that they would
suffer an immediate and irreparable injury, loss, or damage will result unless the Court entered an injunction or that there is not an adequate remedy at law.
Further, there are no findings by the Trial Judge as to why any purported and speculative injuries to Defendants are "irreparable" or why this injunction was
granted without a properly noticed hearing. Nor could it because even fi Plaintiff were to ultimately file another lawsuit against Defendants in another venue (and Plaintiff were to somehow by liable to Defendants), a sum of money or damages would be appropriate recompense (a lawsuit seeking monetary damages is unmistakably an action at law). State Farm Mut. Auto. Ins. Co. v. Green, 579 So.
2d 402, 403 (Fla. 5th DCA 1991). Moreover, there is no discussion why Defendants would have a «substantial likelihood of success on the merits" or
why an order enjoining him from suing a debt collector and creditor that threatened him and his family would "serve the public interest."
19. Second, the Trial Judge did not require Defendants to post a bond as required by Florida Rule of Civil Procedure 1.610(b). See Shir Law Grp., P.A. v. Carnevale, 317 So. 3d 211, 214 (Fla. 3d DCA 2021) (reversing temporary injunction because
"the order failed to contain sufficient factual findings to support each prong of
the four-part injunction test, and the lower court failed to set an appropriate
bond"); see also Fla. R. Civ. P. 1.610(b) ("No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems
proper, conditioned for the payment of costs and damages sustained by the
adverse party if the adverse party is wrongfully enjoined.").
20. Third, setting aside the issues stemming from the fundamental requirements of
law, ie, a violation of Plaintiff's constitutional right to due process or an entitlement to bond, the form of the Trial Judge's injunction violated Florida Rule
of Civil Procedure 1.6.10(c) by prohibiting Plaintiff from filing suit against Defendant for facts that gives rise to the Complaint in this case in venue outside
of Alachua County. The Rule states that "[e]very injunction shall specify the reasons for entry, shall describe in reasonable detail the act or acts restrained without reference to a pleading or another document." The incorporation by reference to the Complaint in this action plainly renders the
injunction defective.
21. There has not been a properly noticed evidentiary hearing on any injunction-
let alone on whether Plaintiff should be enjoined from filing other lawsuits
against Defendants or refiling this case in another county. Rule 1.610(a)(2) requires reasonable notice, which is "defined as notice that provides a meaningful opportunity to prepare and defend against the allegations of the
motion or complaint. It means the ability to offer evidence and to secure a record of the proceedings." Harrison v. Palm Harbor MRI, Inc., 703 So.2d 1117 (Fla. 2d DCA 1997). In Harrison, the court held that seven days was sufficient under that standard. See Nelson Tree Serv., Inc. v. Gray, 978 So. 2d 198, 200-01 (Fla. Ist DCA 2008). Plaintiff and his counsel only learned that the Court was considering whether to enter an injunction against him when the Trial Judge announced from the bench it had already decided that it was taking such action against Plaintiff. After Plaintiff's counsel objected to that, the Trial Judge told Plaintiff that she had made her ruling and that Plaintiff could "file a motion."
22. Further, there has been no motion filed by any Party to this case moving the Court for an injunction. The Trial Judge sua sponte issued it thereby entering
the litigation as a party. See R.O. v. State, 46 So. 3d 124, 126 (Fla. 3d DCA 2010); see also Williams v. State, 160 So. 3d 541, 544 (Fla. 4th DCA 2015). When counsel for Plaintiff objected to the Trial Judge's inquiry and injunction against Plaintiff, the Trial Judge stated words to the effect that she had made her decision and to "file a motion." The Trial Judge's failure to afford Plaintiff with either notice or a fair opportunity to be heard deprived him of his constitutional right to the due process of law under the United States and Florida Constitutions, statutory rights under Florida Statutes, and violated the Florida Rules of Civil Procedure and Judicial Administration.
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23. Further, the Trial Judge's accusation a n d determination that Plaintiff allegedly
"forum shopped" by availing himself of his statutory rights to choose the county
to file suit against nonresidents Defendants under section 47.011, Florida Statutes, "is simply inappropriate in the context of the venue statutes." Houchins v. Florida E. Coast Ry. Co., 388 So. 2d 1287, 1291 (Fla. 3d DCA 1980); § 47.011, Fla. Stat. ("Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents."). As the
Third District observed, a "court cannot give the defendant greater rights than the legislature has seen fit to grant in this statutory scheme by pejoratively describing the plaintiff's exercise of his statutory right to choose a forum as
forum shopping." Id. It wrote:
If a defendant seeks to be relieved from the plaintiff's choice of
forum, his exclusive remedy lies in demonstrating his entitlement to transfer under Chapter 47, Florida Statutes. Sage v. Travelers Indemnity Company of Hartford, 239 So.2d 831 (Fla. 4th DCA 1970). If a defendant, as here, fails in that showing, the plaintiff's choice of forum controls. A court cannot give the defendant greater rights than the legislature has seen fit to grant in this statutory scheme by
pejoratively describing the plaintiff's exercise of his statutory right to choose a forum as "forum shopping." The use of the phrase "forum shopping" is simply inappropriate in the context of the venue statutes.
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We do not overlook that under Section 47.122, Florida Statutes (1979), a court may transfer a case in "the interests ofjustice." But "interests of justice" is merely an alternative ground for transfer
under established principles of law, not a panacea for ailing motions or the erroneously perceived injustice of "forum shopping." See, e. g. Carborundum Corporation, Pollution Control Division U.
Bay Fabricators, Inc., 461 F.Supp. 437 (D.Tenn. 1978) (transfer to a
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forum where the defendant could compel the attendance of live
witnesses to offset an otherwise unfair advantage to the plaintiff); Aguacate Consolidated Mines, Inc. v. Deeprock, Inc., 566 F.2d 523 (5th Cir. 1978 (transfer to forum where action not limitations
barred); Vaughn v. American Basketball Association, 419 F.Supp. 1274 (S.D.N.Y.1976) (transfer to forum where law of state within the federal district would require interpretation); Smithline Corp. v. Sterling Drug, Inc., 406 F.Supp. 52 (D.Del.1975); and Continental Grain Co. v. Barge FBL-585, 364 U.S. 14, 80 S.Ct. 1470, 4 L. Ed.2d 1540 (1960) (transfers to forum in which related case involving identical issue pending). But see Ashland Oil, I nc. v. Florida Department of Transportation, supra (holding that the convenience of the court is not a ground for transfer).
Houchins, 388 So. 2d at 1291.
24. Indeed, "i]t is well established that where venue is proper in more than one
county, the choice of forum rests with the plaintiff. See Taylor v. Dasilva, 401
So.2d 1161 (Fla. 3d DCA 1981); Houchins v. Florida E.C. Ry. Co., 388 So.2d 1287
(Fla. 3d DCA 1980). PV Holding Corp. v. Tenore, 721 So.2d 430 (Fla. 3d DCA 1998).
25. Moreover, even if lawfully permitted, the Trial Judge could not make such a finding that Plaintiff "forum shopped" because that conclusion was not supported by competent substantial evidence in the record. The Trial Judge
cannot rely on the unsworn unverified argument of counsel or a party as evidence. See e.g., State v. Brugman, 588 So. 2d 279 (Fla. 2d DCA 1991) (a court, nor anyone "can make a factual determination based on an attorney's unsworn statements.").
26. As a result of the Trial Judge's unsupported statements and opinion that Plaintiff was "forum shopping," and her stated intention of entering an order enjoining Plaintiff from filing suit against Defendants--or refiling this case in
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another county-Plaintiff reasonable questions the impartiality of the Trial Judge and reasonably fears that he will not be able to get a fair hearing or trial in this cause.
27. Regarding the issue of disqualification alone, it's important to explain that the motion is legally sufficient, because the facts articulated therein (if assumed true) objectively establish an absolute basis for disqualification. Absent argument from the Defense raising the issue of "forum shopping" it's wholly inappropriate for the trial court to opine sua sponte. M.D. Parker Assocs. U. Connor, 339 So. 3d 375 (Fla. 4th DCA 2022) provides some further guidance: Of equal importance, however, is also a longstanding, well-established Florida Supreme Court rule that provides a trial judge may not address the truth of the facts alleged in a motion to disqualify:
Regardless of whether [the trial judge] ruled correctly in denying the motion for disqualification as legally insufficient, our rules clearly provide, and we have repeatedly held, that a judge who is presented with a motion for his disqualification "shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification."
When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of
partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification. Our disqualification rule, which limits the trial judge to a bare determination of legal sufficiency, was expressly designed to prevent what occurred in this case-the creation of "an intolerable adversary atmosphere" between the trial judge a n d t h e litigant.
MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1339 (Fla. 1990) (quoting Bundy, 366 So.2d at 442).
The trial judge should have succinctly ruled on the motion in a few
words or less, communicated nothing further and moved on. But that didn't happen and the trial judge chose to take issue with Parker's sworn suggestions of bias by then irreparably entering a
detailed, three-page point-by-point written order applying individual scrutiny to each of Parker's allegations:
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First, in the motion to disqualify, Parker asserted that thetrial judge
denied her motion to depose an expert witness because the trial
judge, in open court, agreed with and adopted Parker's opponent's position that Parker's request to depose the expert was "dilatory." In
the order denying the motion to disqualify, the trial judge took issue with and contradicted Parker's allegation and in an apparent
attempt to correct Parker, indicated that the judge had simply determined that "Parker had not shown good cause to take the disposition, given the late date and closeness to the trial period."
Second, in Parker's motion to disqualify, Parker alleged that the trial judge refused to issue a ruling on Parker's motion to continue and
kept it pending because, Parker swore, the trial judge believed that Parker's motion for continuance was "being sought for purely
strategic reasons" and was "wholeheartedly subscribing to [Parker's opponent's unfounded assertions of intentionally dilatory conduct."
M.D. Parker Assocs. v. Connor, 339 So. 3d 375 (Fla. 4th DCA 2022).
28. Accordingly, because this motion to disqualify is legally sufficient, the Court
must grant it and disqualify the Trial Judge.
III. DATES OF ALL PREVIOUSLY GRANTED MOTIONS TO DISQUALIFY FILED UNDER THIS RULE
29. There have been no dates of any previously granted motions to disqualify filed under this rule in the case because no parties have requested such relief.
30. There have been no dates of the orders granting those motions to disqualify filed under this rule in the case because no parties have requested such relief.
CONCLUSION
WHEREFORE, Plaintiff respectfully moves this Court to disqualify the Trial Judge.
IV.
(http://www.autoadmit.com/thread.php?thread_id=5351486&forum_id=2#46400314)