BARNETT BANK OF SOUTH FLORIDA, N.A., APPELLANT,
v.
ALAN B. TARR, APPELLEE
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Barnett Bank appealed the dismissal of its contempt proceedings against an attorney after the trial judge simultaneously dismissed the case and recused himself. The Fourth District Court of Appeal reversed, holding that a judge cannot enter a substantive ruling (dismissing the contempt case) at the same time as recusing himself, and remanded for a new hearing.
The court reversed, holding that a trial judge errs when entering a substantive ruling (dismissing the contempt proceedings) simultaneously with an order of recusal. The court also held that denying the bank the opportunity to complete its case presentation was error.
[1] A trial court errs by entering an order on the merits simultaneously with an order of recusal.
[2] A trial judge's remark that they will not do anything further in a suit encompasses all defendants in that suit.
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Join FLexlaw to unlock all legal intelligence“the trial judge erred when he entered an order granting appel-lee's motion for leave to file a counterclaim, simultaneously with his order of recusal”
Establishes the controlling precedent from Barnett Bank of St. Lucie County v. Garrett that a judge cannot enter a substantive ruling simultaneously with recusal
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Join FLexlaw to unlock all legal intelligenceBarnett Bank brought contempt proceedings against an attorney. During the hearing, the trial judge refused to allow the bank to complete its case pres…
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LETTS, Judge.
At a contempt hearing, the trial judge refused to allow the bank, which brought contempt proceedings against an attorney, to complete its case. Instead, the trial judge dismissed the proceedings and simultaneously recused himself.1 We reverse.
In our view, the outcome is controlled by Barnett Bank of St. Lucie County v. Garrett, 468 So. 2d 467 (Fla. 4th DCA 1985), wherein we held that “the trial judge erred when he entered an order granting appel-lee’s motion for leave to file a counterclaim, simultaneously with his order of re-cusal.” The attorney/appellee in the case sub judice, argues that Garrett relied on an earlier decision, Weiner v. Weiner, 416 So. 2d 1260 (Fla. 4th DCA 1982), which our supreme court overturned in Fischer v. Knuck, 497 So. 2d 240 (Fla.1986). However, there is a distinction. In Fischer v. Knuck, it is clear that the trial judge’s ruling was not rendered simultaneously with the recusal and the trial judge s written order in that case was but a reduction of an earlier adverse oral ruling made prior to the recusal.
The attorney also argues that the trial judge’s recusal referred only to the other defendant and not to him. We disagree. At one point, the judge remarked:
You know, I’m not — At this point I’m not doing anything further IN THIS SUIT, so I can have the wonderful luxury of expressing to you the fact that Bay View should pay this money, (emphasis supplied.)
The “suit” of necessity encompasses both defendants.
As a consequence, we reverse the trial judge’s ruling dismissing the contempt proceedings and remand this cause for a new evidentiary hearing.
In view of this holding, it is unnecessary to set forth all the facts and ramifications of the trial judge’s additional ruling that denied the bank the opportunity to complete its presentation. Suffice it to say, that too was error. See In re Estate of McCoy, 445 So. 2d 680 (Fla. 2d DCA 1984); Carmichael v. Shelley Tractor and Equipment Co., 300 So. 2d 298 (Fla. 4th DCA 1974).
REVERSED AND REMANDED.
HERSEY, C.J., and DELL, J., concur. . The correctness of the trial judge's decision to recuse himself is not raised on appeal.
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Airborne Cable Television, Inc. v. Storer Cable TV OF Fla., Inc., 596 So. 2d 117 (Fla. 2d DCA 1992)…tion and before having acted upon it. See MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990); Stimpson Computing Scale Co., Inc. v. Knuck, 508 So. 2d 482 (Fla. 3d DCA 1987); see also Barnett Bank of South Florida, N.A. v. Tarr, 557 So. 2d 595 (Fla. 4th DCA 1990) (simultaneous entry of orders of dismissal and recusal error). Storer contends, however, that the judge acted properly because he had heard argument on the attorneys’ fee issue before the motion for recusal was filed. In support…
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Dream INN, Inc. v. Adrine Hester and Roy Hester, 691 So. 2d 555 (Fla. 5th DCA 1997)…Gilmer v. Shell Oil Co., 324 So. 2d 171 (Fla. 2d DCA 1975). Any order he entered after his recusal would be void. Bolt. Similarly, any order entered simultaneously with the order of recusal is void. See Barnett Bank of South Florida, N.A., v. Tarr, 557 So. 2d 595 (Fla. 4th DCA), rev. denied, 569 So. 2d 1281 (Fla.1990). Since the order granting new trial is void, and since a successor judge may hear matters not heard by the predecessor judge, a hearing de novo should be held by the successor judge on the moti…
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Maria v. Cheshire, 175 So. 3d 886 (Fla. 1st DCA 2015)…rt & Shipley, P.A., 85 So. 3d 1122 (Fla. 1st DCA 2012). An exception has been recognized where the trial judge’s written order was simply a reduction of an earlier adverse oral ruling made prior to the recusal. Barnett Bank of S. Fla., N.A. v. Tarr, 557 So. 2d 595, 595-96 (Fla. 4th DCA 1990). The record is silent as to whether the trial judge made an earlier oral ruling prior to his recusal. If there was no prior oral ruling, appellant would be entitled to relief under rule 1.540(b)(4) because the order dismi…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anne Marie Fischer v. Honorable Francis X. Knuck, 497 So. 2d 240 (Fla. 1986)
- Waldo S. Carmichael v. Shelley Tractor & Equip. Co., 300 So. 2d 298 (Fla. 4th DCA 1974)
- Harris v. Zeesman, 445 So. 2d 680 (Fla. 4th DCA 1984)
- Weiner v. Weiner, 416 So. 2d 1260 (Fla. 4th DCA 1982)
- Barnett Bank OF ST. Lucie Cnty. v. Garrett, 468 So. 2d 467 (Fla. 4th DCA 1985)