NORTON KENT EUART, PETITIONER,
v.
CHARLES FERNSELL, RESPONDENT
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The Florida District Court of Appeal, Fourth District, granted a petition for writ of certiorari to quash an order denying a motion for protective order because the judge who signed the order was not the judge who conducted the hearing on the motion. The court disapproved this practice and remanded for the hearing judge to sign the order and reconsider the issue of whether the petitioner's failure to waive reading and signing of his deposition affected the outcome.
The practice of having a different judge sign an order than the judge who conducted the hearing is anomalous and must be disapproved. The petition for writ of certiorari is granted and the order is quashed without prejudice, requiring the original hearing judge to sign any future order after reconsidering the effect of the deponent's failure to waive reading and signing.
[1] A trial judge who did not conduct a hearing should not sign an order denying a motion heard by another judge, even if the first judge is available.
[2] A petition for writ of certiorari may be granted to quash an order improperly signed by a judge who did not conduct the relevant hearing.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It appears that the trial judge who conducted the hearing on December 11, 1981, upon petitioner's motion for protective order was not the judge who signed the order on December 29, 1981, denying the motion, notwithstanding the availability of the first judge. Such practice is anomalous and must be disapproved.”
Establishes the improper practice at issue and the court's disapproval of allowing different judges to conduct hearings and sign orders.
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Join FLexlaw to unlock all legal intelligenceA hearing on petitioner's motion for protective order was conducted on December 11, 1981, by a trial judge. However, a different judge signed the orde…
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GLICKSTEIN, Judge.
It appears that the trial judge who conducted the hearing on December 11, 1981, upon petitioner’s motion for protective order was not the judge who signed the order on December 29, 1981, denying the motion, notwithstanding the availability of the first judge. Such practice is anomalous and must be disapproved. See Delehant v. Delehant, 409 So. 2d 213 (Fla. 4th DCA 1982); Bradford v. Foundation & Marine Construction Co., 182 So. 2d 447 (Fla. 2d DCA 1966), cert. denied, 188 So. 2d 821 (Fla.1966); and Dash v. Dash, 306 So. 2d 543 (Fla. 3d DCA 1974). Accordingly, we grant the petition for writ of certiorari and quash the order. However, we do so without prejudice to respondent to obtain a proper order from the trial judge who conducted the hearing. Perhaps in the interest of judicial economy we would have simply relinquished jurisdiction for the entry of an order to be properly signed nunc pro tunc. However, it further appears from the transcripts made available to us that the deposition of petitioner considered by the trial judge may not have reflected the fact that petitioner did not waive reading and signing.
The trial judge who conducted the hearing of December 11, 1981, should sign any future order and should consider — with appropriate memoranda of law from the parties — what effect, if any, the deponent’s not having waived the reading and signing of his deposition had upon the primary issue in this matter. As a final expression, we remind the petitioner, his related appeal having been dismissed, that neither the trial court nor this court should reconsider the matters involved therein.
HURLEY, J., concurs.
LETTS, J., dissents with opinion.
LETTS, Judge,
dissenting.
As written, the opinion appears to stand for the proposition that a writ of certiorari may be available whenever one judge is substituted for another without any showing of prejudice. It is also interesting that not even the petitioner thought this grounds for the issuance of a writ in his original petition and it was this court which first introduced the subject.
I also cannot see a departure from the essential requirements of the law in this case even if there was reversible error.
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- Bradford v. Found. & Marine Constr. Co., Inc., 182 So. 2d 447 (Fla. 2d DCA 1966)
- Concord Shopping Ctr. v. Litowitz, 188 So. 2d 821 (Fla. 1966)
- Edgar v. Quality Roofing Tile Co., 188 So. 2d 821 (Fla. 1966)
- Dash v. Dash, 306 So. 2d 543 (Fla. 3d DCA 1974)
- Delehant v. Dorothea Margaret Delehant, 409 So. 2d 213 (Fla. 4th DCA 1982)