M.D. PARKER ASSOCIATES, INC d/b/a MELISSA PARKER INTERIORS, INC v. MICHEAL CONNOR, DALE CONNOR, and BESSENROTH BUILDERS INC.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
M.D. PARKER ASSOCIATES, INC., d/b/a
MELISSA PARKER INTERIORS, INC., a Florida Corporation,
Petitioner,
v.
MICHAEL CONNOR, DALE CONNOR, and
BESSENROTH BUILDERS INC., a Florida Corporation,
Respondents.
No. 4D22-506
[June 8, 2022]
Petition for Writ of Prohibition to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Paige Hardy Gillman, Judge; L.T.
Case No. 50-2019-CA-015480-XXXX-MB.
John R. Whittles and Elizabeth F. Olds of Mathison Whittles, LLP, Palm
Beach Gardens, for petitioner.
No response required for respondents.
PER CURIAM.
Denied.
CONNER, C.J., and DAMOORGIAN, J., concur.
CIKLIN, J., dissenting with opinion.
CIKLIN, J., dissenting.
M.D. Parker Associates, Inc. d/b/a Melissa Parker Interiors, Inc.
(“Parker”) petitions this court for issuance of a writ of prohibition seeking
review of an order denying its motion to disqualify the trial judge. Because
of the manner in which the trial judge chose to deny the motion, I would
grant the petition.
Melissa Parker, as the president of her corporation, filed an amended,
eight-page, sworn motion to disqualify the trial judge. In the motion,
Parker, citing a “reasonable fear that [her corporate entity] will not receive
a fair hearing in this cause or any cause presided upon by this trial judge,”
asserted three main reasons for its belief: (1) the trial court’s denial of
Parker’s motion to depose an expert witness; (2) the trial court’s “failure”
to issue a ruling on Parker’s pending motion to continue the scheduled
trial; and (3) the inclusion of “prejudicial” statements in the order denying
Parker’s motion for summary judgment, which Parker asserted would have
no “other purpose . . . than to generate prejudice” against Parker.
The trial judge rightfully denied Parker’s motion but then entered a
three-page written order with analysis determining that the motion was
“legally deficient”—contrary to the dictates of the Florida Supreme Court,
which limit the trial judge to a “bare determination of legal sufficiency”
when faced with a motion to disqualify. See Bundy v. Rudd, 366 So. 2d
440, 442 (Fla. 1978).
Motions to disqualify trial judges are governed by Florida Rule of
General Practice and Judicial Administration 2.330. Rule 2.330(h)
governs the parameters of a trial court’s ruling on such a motion as
follows:
(h) Determination -- Initial Motion. The judge against
whom an initial motion to disqualify under subdivision (e) is
directed may determine only the legal sufficiency of the motion
and shall not pass on the truth of the facts alleged. If any
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. Such an order does not
constitute acknowledgement that the allegations are true.
(Italicized emphasis added).
Based on longstanding, well-established case law, the trial judge had
no obligation to grant the motion for disqualification because it was legally
insufficient. See Thompson v. State, 759 So. 2d 650, 659 (Fla. 2000) (“[T]he
fact that a judge has ruled adversely to the party in the past does not
constitute a legally sufficient ground for a motion to disqualify.”).
Of equal importance, however, is also a longstanding, well-established
Florida Supreme Court rule that provides a trial court may not address
the truth of the facts alleged in a motion to disqualify:
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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 and
the 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:
First, in the motion to disqualify, Parker asserted that the trial 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.” In the order denying the
motion to disqualify, the trial judge took issue with Parker’s allegations
and disputed Parker by writing that the trial judge’s decision to delay a
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ruling on Parker’s motion for continuance was “simply a matter of the
Court’s management of its docket . . . .”
Third, in Parker’s motion to disqualify, Parker alleged that the trial
judge used incorrect numerical figures, in open court, in an effort to
prejudice Parker asserting that there was no discernible or “legitimate
reason for [the trial judge] to repeatedly state [incorrect numbers].” In the
order denying the motion to disqualify, the trial judge deemed the
assertions nothing more than “general and speculative.” 1
It would not be fair, however, to lay fault at the feet of this respected
trial judge or other trial courts who have made similar miscalculations
when addressing a disqualification motion. This is because the Florida
Supreme Court has made an exception to its mandate to “not take issue
with the motion” for disqualification where a trial judge’s elaboration in
denying the motion amounts to an explanation of the “status of the
record.” Barwick v. State, 660 So. 2d 685, 694 (Fla. 1995), abrogated on
other grounds by Topps v. State, 865 So. 2d 1253 (Fla. 2004).
The trial judge here apparently attempted to walk a tightrope and
explain only the “status of the record” when denying the motion to
disqualify—and thereby invoke the outlier “exception” found in Barwick.
In Barwick, the Florida Supreme Court addressed the appellant’s claim
that the trial judge improperly disputed the allegations in his motion to
disqualify. Id. at 693. Specifically, the appellant moved to disqualify in
part based on the trial judge’s rescission of a predecessor judge’s orders
granting appointment of defense experts, and in the order denying the
motion, the trial judge attached and explained the contents of transcripts
of the hearing where the orders were rescinded. Id. at 691, 693. The
transcript revealed that the appellant had been asked to resubmit its
requests for defense experts. Id. at 693. On appeal, the Florida Supreme
Court affirmed and explained that the trial judge’s statements did not
overstep the boundaries of established case law on orders denying motions
to disqualify. Id. at 694. The Court further explained that the references
to the transcript were nothing more “than a reference to how the [trial
court] initially dealt with matters that were raised in the motion for
disqualification,” and the Court concluded “that a trial judge is permitted
to explain the status of the record,” relying on Kowalski v. Boyles, 557 So.
2d 885 (Fla. 5th DCA 1990). Barwick, 660 So. 2d at 694.
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1 To be objective, I must concede that the trial court’s written response to Parker’s
third point in the motion for disqualification may come the closest to a seemingly
permitted “status of the record” exception to the Florida Supreme Court rule but
is still rather precarious—and just as ill-advised.
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In Kowalski, 557 So. 2d at 887, the Fifth District rejected an argument
that the trial judge was attempting to refute the charges of partiality when
it made certain statements on the record and concluded that the trial judge
“was merely stating the status of the record.” Since Kowalski, a smattering
of district courts have occasionally employed this so-called exception in
several cases to allow a trial judge to comment on the “status of the
record.” See, e.g., Pilkington v. Pilkington, 182 So. 3d 776, 780 (Fla. 5th
DCA 2015) (“The judge may comment factually on what transpired during
relevant proceedings when ruling upon a motion to disqualify.”); Rolle ex
rel. Dabrio v. Birken, 984 So. 2d 534, 536 (Fla. 3d DCA 2008) (trial judge’s
explanation of “the record and what had transpired in this action” was not
grounds for disqualification); Niebla v. State, 832 So. 2d 887, 888 (Fla. 3d
DCA 2002) (trial judge was “merely stating the status of the record” when,
prior to denying motion to disqualify, trial judge stated “I didn’t prejudge
the matter. I sat during the entire trial and determined at that time that
consecutive life sentences were appropriate”); Shuler v. Green Mountain
Ventures, Inc., 791 So. 2d 1213, 1215 (Fla. 5th DCA 2001) (explaining that,
while a trial judge “cannot pass on the facts of the truth alleged,” trial
judge may “explain the status of the record”). 2
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2 Given the realities, however, of the straightforward mandate of 2.330, it is
axiomatic that this “status of the record” exception is fraught with perils for an
unsuspecting trial judge. While Barwick remains good law until the Supreme
Court states otherwise, this 1995 opinion was the first and last Florida Supreme
Court case that used, permitted, or acknowledged the phrase “status of the
record” as an exception to the long-standing say-nothing rule.
Fast forward to 2021, and in January of that year, the Florida Supreme Court
reaffirmed its “say-nothing” rule and announced amendments to its rules
concerning judicial disqualification based on the recommendations of the Florida
Bar’s Rules of Judicial Administration Committee. See In re Amends. to Fla. Rules
of Jud. Admin.-2020 Regular-Cycle Report, 310 So. 3d 374, 375 (Fla. 2021).
Among the Committee’s proposed revisions was an addition to rule 2.330(h). The
Florida Supreme Court approved the recommendations and expressly reiterated
its prohibition on passing on the truth of the allegations within or taking issue
with a motion to disqualify. The Court also took the opportunity to add new
language clarifying that a trial judge’s determination of legal sufficiency “does not
constitute acknowledgment that the allegations are true.” A trial judge’s attempt
to simply state the “the status of the record” benefits no one other than a
reviewing court. However, any benefit conferred to the reviewing court by stating
the “status of the record” is greatly outweighed by the need to avoid any risk of
creating the “intolerable adversary atmosphere” between the trial judge and the
litigant, as warned against in Bundy, 366 So. 2d at 442.
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Importantly, Kowalski was the first Florida appellate court to ever use
the “status of the record” phrase, which included no citation to any
authority. Indeed, the two leading Florida Supreme Court cases in this
area of the law are between 33-44 years old and there have been no new
cases from the Florida Supreme Court on the issue of a so-called “status
of the record” exception in more than 27 years. Still, MacKenzie and
Bundy make clear, a trial judge’s mere elaboration alone can establish an
absolute basis for disqualification—even if the underlying motion for
disqualification was categorically deficient.
My colleagues in the Florida judiciary would be well-advised to look no
further than the plain meaning of the Florida Supreme Court-created rules
concerning judicial disqualification and thereby avoid the potential perils
associated with ignoring long-standing judicial administration doctrine.
Members of the Florida judiciary—particularly new judges just entering
the system—should be forewarned about reading the majority’s opinion (or
lack thereof) as a green light to replicate what occurred in this case.
When one thinks about it, a trial judge has nothing to lose and
everything to gain by remaining compliant with the rule. Indeed, a
disqualification motion is one of the few motions upon which a trial judge
is expected to say as little as possible when granting or denying the motion.
A trial judge will never be reversed or otherwise faulted for complying with
the rule by just summarily granting the motion or denying it. Every time,
however, a trial judge strays into seemingly innocuous “status of the
record” territory, he or she risks reversal solely because the trial judge was
determined to have the last word. In my opinion, taking that risk makes
little or no sense particularly when the trial judge has a risk-free, Florida
Supreme Court-approved option. Of late, even more judicial folklore has
percolated that suggests a trial judge—who has decided to grant a motion
to disqualify anyway—enjoys some type of unwritten exception permitting
the trial judge to ignore the rule and speak his or her piece. No such
exception exists by statute, case law, or Florida Supreme Court rule and
is impermissible.
When I was a new trial judge going through the intense curriculum of
the Florida Judicial College, 27 years ago, the faculty made clear to me
and my fellow rookie judges to adhere to the supreme court rule by saying
as little as possible when confronted with a motion for judicial recusal.
As much and as desperately as we might yearn to respond to a sworn
statement which unabashedly asserts our inability to be impartial and free
of judicial bias, the seasoned and wise women and men of the Florida
Judicial College were quite clear: A trial judge should resist all temptation
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to become indignant and should promptly and succinctly rule on the
motion in a few words or less, communicate nothing further, and move on.
* * *
Not final until disposition of timely filed motion for rehearing.
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