The Leila Corporation of St. Pete v. Ossi

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
THE LEILA CORPORATION OF ST. PETE, )
a Florida corporation, SUSAN J. AGIA, )
Individually and as trustee of the SUSAN )
J. AGIA LIVING TRUST, and DR. )
RAYMOND AGIA, )
)
Petitioners, )
)
v. ) Case No. 2D14-1960
)
FAREED OSSI and OSSI CONSULTING )
ENGINEERS, INC., a Florida corporation, )
and OSSI CONSTRUCTION, INC., a )
Florida corporation, )
)
Respondents. )
)
Opinion filed August 8, 2014.
Petition for Writ of Prohibition to the Circuit
Court for Hillsborough County, James M.
Barton, II, Judge.
Arnold D. Levine and Robert H. Mackenzie
of Arnold D. Levine & Associates, P.A.,
Tampa, for Petitioners.
Stuart Jay Levine and Heather A. DeGrave
of Walters Levine Klingensmith & Thomison,
P.A., Tampa, for Respondents Fareed Ossi,
Ossi Consulting Engineers, Inc., and Ossi
Construction, Inc.
David A. Rowland, General Counsel,
Thirteenth Judicial Circuit, Tampa, for
Respondent James M. Barton, II.
KELLY, Judge.
In this petition for writ of prohibition, the petitioners assert that Judge
James M. Barton, II, erroneously denied their motion to disqualify him as legally
insufficient. We reject that argument. The petitioners alternatively argue that Judge
Barton did not rule on their motion within thirty days of service of the motion as
prescribed by Florida Rule of Judicial Administration 2.330(j), and thus their motion
should have been "deemed granted." We also reject that argument and hold that the
petitioners' service of the motion to disqualify did not comport with the rules; thus, Judge
Barton's denial order was timely entered within thirty days of the date on which he
actually became aware of the motion. For the following reasons, we deny the petition
for writ of prohibition.
The underlying background facts in this case are somewhat convoluted
and mostly irrelevant to this decision. Suffice it to say that on October 11, 2012, Judge
Barton entered a final judgment against the petitioners, finding that both the petitioners
and the respondents engaged in a scheme to defraud one petitioner's creditors. The
court found that "the parties candidly admitted that they participated in the plan to hide
Dr. Agia's assets from a potential personal injury judgment creditor." Accordingly, rather
than considering the merits of the multiple claims and counterclaims in the lawsuit,
Judge Barton entered judgments providing no relief to any party, based on the doctrine
of unclean hands. The petitioners appealed to this court, and on January 17, 2014, this
court reversed and remanded for additional proceedings. Leila Corp. of St. Pete v.
Ossi, 138 So. 3d 470 (Fla. 2d DCA 2014). On January 23, 2014, within ten days of the
entry of this court's opinion, the petitioners filed a motion to disqualify Judge Barton,
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asserting that "it is clear from the provisions of the Final Judgment dated October 11,
2012, that although there is no basis in law or fact as evidenced by the opinion of the
Second District Court of Appeal dated January 17, 2014, Judge Barton unquestionably
believes that the Plaintiffs engaged in a conspiracy to defraud." Judge Barton did not
receive this motion until March 3, 2014. On March 24, 2014, Judge Barton denied the
motion to disqualify as facially insufficient. The petitioners filed a motion to vacate that
order, which the judge denied on April 10, 2014.
At the outset, we note that although Judge Barton did not question the
timing of the petitioners' motion to disqualify in denying the motion, it appears that any
concerns the petitioners had about bias against them should have been raised in
October 2012, when the final judgment was entered, yet they waited until this court
reversed Judge Barton's ruling to file their motion to disqualify. This court's ability to
second-guess the timeliness of the motion when it was not specifically deemed untimely
by the circuit judge may be circumscribed. See Santa Catalina Townhomes, Inc. v.
Mirza, 942 So. 2d 462, 464 (Fla. 4th DCA 2006) (en banc). But our analysis does not
depend on the timeliness of the motion, as it is clear that the facts alleged in the motion
do not demonstrate that Judge Barton was personally prejudiced against the petitioners
or that reasonable persons in their position would fear not receiving a fair trial on
remand "because of specifically described prejudice or bias of the judge." Fla. R. Jud.
Admin. 2.330(d)(1). Rather, Judge Barton made an adverse ruling (subsequently
overturned by this court) in the exercise of his legitimate judicial function. See
Santisteban v. State, 72 So. 3d 187, 194 (Fla. 4th DCA 2011) ("The fact that the judge
has made adverse rulings against the [movant] in the past is not an adequate ground for
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recusal, nor is the mere fact that the judge has previously heard the evidence.");
Claughton v. Claughton, 452 So. 2d 1073, 1073-74 (Fla. 3d DCA 1984) ("We cannot on
the record before us conclude that the statements set forth in the final judgment upon
which the petitioner based her application to disqualify the trial judge were so unrelated
to the issues being tried as to constitute other than adverse judicial rulings which under
well-settled law are not a basis for disqualification for bias or prejudice.").
Regardless of the timing, the motion to disqualify was procedurally
deficient as well as facially insufficient. First, it did not contain a certificate of service on
Judge Barton, even though rule 2.330(c) specifically requires the movant immediately to
serve a copy of the motion on the judge. We agree with Judge Barton's finding, in an
order denying the petitioners' motion to vacate the order denying their motion to
disqualify, that the lack of a certificate of service in and of itself is not fatal. See
Overcash v. Overcash, 91 So. 3d 254, 255 (Fla. 5th DCA 2012). But the means of
service was legally flawed.
The undisputed fact is that the petitioners attempted to serve a copy of the
motion on Judge Barton by leaving it in a multi-slot drop-box in a public hallway of the
courthouse on January 23, 2014. Next to the drop-box is an intercom for
communication with the judges' judicial assistants.1 The petitioners assert that they
1
The description of the drop-box was provided in a response on behalf of
Judge Barton, filed by the Thirteenth Judicial Circuit court counsel, as well as in the
Ossi respondents' response. We note that in his response, Judge Barton did not
address the facial sufficiency of the motion to disqualify or take any issue with any facts
recited in the petitioners' motion or petition. Thus, Judge Barton has not taken an
adversarial position requiring his disqualification by filing a response in this court. Cf.
Ellis v. Henning, 678 So. 2d 825, 827 (Fla. 4th DCA 1996) ("[W]e are compelled to grant
the writ of prohibition because the responses, filed on behalf of the trial judge by an
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validly assumed that this drop-box was meant to serve as a depository for the required
service of their motion for disqualification on the judge. However, Judge Barton did not
actually receive a copy of the motion until March 3, 2014, and he did not even know of
the existence of the motion prior to February 27, 2014, when the petitioners transmitted
a copy of a proposed order of disqualification to him.
The reason for the rule requiring service of a motion to disqualify on the
judge is to insure that the judge is actually aware of the existence of the motion. See
Tobkin v. State, 889 So. 2d 120, 122 (Fla. 4th DCA 2004). In this case, Judge Barton
was not actually aware of the existence of the motion until over thirty days after it had
been filed. This was due to the means of service chosen by the petitioners, which was
not only actually ineffective but procedurally improper.
Rule 2.330(c) requires the movant who files a motion to disqualify a judge
to "immediately serve a copy of the motion on the subject judge as set forth in Florida
Rule of Civil Procedure 1.080." Rule 1.080(a), in turn, directs that all documents filed in
an action "must be served in conformity with the requirements of Florida Rule of Judicial
Administration 2.516," which provides that virtually all service is to be by e-mail, with
certain limited exceptions applicable to parties not represented by an attorney.
Specifically, rule 2.516(b)(1)(C) provides that if a party is not represented by an
attorney, that party may nevertheless designate an e-mail address for service. In the
case of a party who has not designated an e-mail address, other specific options for
service are set out in rule 2.516(b)(2).
assistant attorney general . . . impermissibly took issue with the accuracy of plaintiffs'
allegations.").
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We realize that Judge Barton is not a party to this lawsuit.2 However,
because they are required to be served in accordance with these rules, judges should
probably be considered to be parties to the proceedings on motions to disqualify,
particularly since the service rules speak basically only to service on attorneys, parties
with designated e-mail addresses, and parties not represented by attorneys who do not
have designated e-mail addresses. In denying the petitioners' motion to vacate the
order denying their motion to disqualify, Judge Barton observed that the petitioners
could have served him electronically through the Thirteenth Judicial Circuit's scheduling
and case management service (JAWS), by e-mailing his judicial assistant, or by e-
mailing him personally at the address provided in The Florida Bar's online directory.
Our view is that these are all reasonable alternatives and that e-mail service on a judge
in this context should probably be required, but that is not the basis for our ruling.
Rather, even if the rules cannot be interpreted to require e-mail service on
Judge Barton, several alternatives are set out for service other than by e-mail. Rule
2.516(b)(2) provides that "[s]ervice on and by all parties who are not represented by an
attorney and who do not designate an e-mail address . . . must be made by delivering a
copy of the document or by mailing it to the party . . . ." Delivery is accomplished by
handing it to the party, leaving it at the party's office with a clerk or other person in
charge, or, "if there is no one in charge, leaving it in a conspicuous place therein." Rule
2.516(b)(2)(C) (emphasis supplied). Alternatively, delivery may be accomplished by
means of facsimile transmission. These rules plainly do not contemplate the means of
2
We note, however, that Judge Barton is a party to the proceedings in this
court by virtue of the filing of the petition for writ of prohibition, although his name is
omitted from the caption. See Fla. R. App. P. 9.100(e)(2).
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delivery that the petitioners attempted to use in this case—a drop-box in a publicly
accessible hallway. The 1967 Authors' Comment to rule 1.080 reinforces our
interpretation of the current version of the rules. The authors went to some lengths to
describe what was necessary to insure that the motion or other pleading or paper was
actually delivered to the party:
It should be noted that the copy must be left with the clerk or
person in charge of the office when that person is in the
office so that giving it to such person in the hall or elevator or
giving it to a clerk at the courthouse would not be a valid
service within the meaning of the rule . . . .
....
Where no one is in charge of the office, delivery may be
made by leaving the copy in a conspicuous place. This
provision covers the case where everyone is out of the office
but the door is left open . . . . The copy must be left in the
office and cannot be left outside and probably could not be
left on the threshold.
Fla. R. Civ. P. 1.080 cmt. (1967). These comments are not only instructive but also
reflect a common-sense interpretation of the meaning of actual delivery to a party's
office—the motion must be left within the office.
Moreover, on his page on the Thirteenth Judicial Circuit website, Judge
Barton has outlined certain instructions under the Procedures/Preferences tab. At the
conclusion of this page, in bold capitalized type, is this note: PLEASE SUBMIT ALL
MOTIONS AND ORDERS DIRECTLY TO THE PRESIDING JUDGE'S OFFICE ROOM
#516. http://www.fljud13.org/JudicialDirectory/JamesMBarton,II/ProceduresPreferenc
es.aspx (last visited July 17, 2014). There is nothing about the drop-box on his
website, and a finding that this hallway drop-box should be deemed an extension of the
judge's office would strain the meaning and distort the intent of the applicable rules.
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Accordingly, we hold that the petitioners' motion to disqualify Judge Barton
was legally insufficient and he correctly denied it as such. Furthermore, because
service was not accomplished in accordance with rules 1.080 and 2.516, the thirty-day
time within which Judge Barton was required to rule on the motion did not run until he
actually received it. Accordingly, the automatic grant provision of rule 2.330(j) was not
triggered.
The petitioners' petition for writ of prohibition is denied.
WALLACE and KHOUZAM, JJ., Concur.
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