Berta Cantera Chaviano and Toni L. Villaverde v. Greater Miami Caterers, Inc. etc.

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-3029
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BERTA CANTERA CHAVIANO and
TONI L. VILLAVERDE,
Petitioners,
v.
GREATER MIAMI CATERERS, INC.,
d/b/a Master Host, et al.,
Respondents.
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Petition for Writ of Prohibition—Original Jurisdiction.
June 22, 2018
WINOKUR, J.
Petitioners, a worker’s compensation claimant and her
attorney, seek a writ of prohibition to disqualify a Judge of
Compensation Claims (JCC) in three different workers’
compensation cases. We dismiss the petition as moot.
In one case, the JCC entered an order denying a motion for
disqualification as legally insufficient. Petitioners then filed this
petition for writ of prohibition, seeking the JCC’s disqualification.
This Court then stayed proceedings below. See Fla. R. App. P.
9.100(h). The JCC left the bench before this Court ruled on this
petition. The JCC did not rule on the motions to disqualify in the
two other cases before he left.
After the JCC left office, Petitioners filed a motion for
clarification as to the extent of this Court’s stay. In the motion,
Petitioners state that a new JCC was appointed, and that the
issue of the prior JCC’s refusal to grant Petitioners’ motion for
disqualification is now moot. As a result, this Court ordered
Petitioners to show cause why it should not dismiss this action as
moot.
In their response, Petitioners repeated a list of complaints
about the prior JCC’s actions and how they allegedly
demonstrated bias against the claimant. Petitioners requested
“clarification amounting to reversal as to JCC’s denial of his
recusal as to the matter and not just a dismissal as moot,” and
requested this Court to “remand the matter to the newly
appointed judge to preside over this matter de novo so that all
perceptions of bias and taint is removed for good.”
It is difficult to understand Petitioners’ position. In their
motion for clarification, Petitioners asserted that the issue
regarding the prior JCC’s refusal to disqualify himself is moot.
This is correct and should end the inquiry. See James Mitchell &
Co. v. Gallagher, 651 So. 2d 700, 701 (Fla. 1st DCA 1995)
(holding that motion to disqualify an official is moot when the
official is no longer in office). The fact that the prior JCC will no
longer preside over Petitioners’ cases renders a petition to
disqualify him unnecessary.
However, Petitioners also ask this Court to reverse all of the
prior JCC’s interlocutory orders upon which they base their
claims of bias. Because a writ of prohibition is preventative, not
corrective, it should not be used as a substitute for an appeal.
See generally Sparkman v. McClure, 498 So. 2d 892 (Fla. 1986);
S. Records & Tape Serv. v. Goldman, 502 So. 2d 413 (Fla. 1986).
The current JCC is not bound by orders of the prior JCC. See
Booth v. Booth, 91 So. 3d 272, 274 n.1 (Fla. 1st DCA 2012)
(holding that “[p]rior to final judgment, a successor judge has the
power to vacate or modify a predecessor’s interlocutory rulings”)
(quoting Hull & Co. v. Thomas, 834 So. 2d 904, 905 (Fla. 4th DCA
2003)); Strominger v. AmSouth Bank, 991 So. 2d 1030, 1034 (Fla.
2d DCA 2008) (holding that “a nonfinal or temporary order may
be revisited by a judge at any time before the conclusion of the
case, even by a successor judge”). An incorrect ruling may serve
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as a basis for appeal. For this reason, a writ of prohibition is
inappropriate to require the current JCC to revisit orders of the
prior JCC, and such action would be beyond the scope of the
petition.
DISMISSED.
WETHERELL and RAY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Toni L. Villaverde of Toni L. Villaverde, PLLC, Coral Gables, for
Petitioners.
Wendy E. Knecht of Miller, Kagan, Rodriguez and Silver, P.L.,
West Palm Beach, for Respondents.
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