DREAM INN, INC., ETC., ET AL, APPELLANTS,
v.
ADRINE HESTER AND ROY HESTER, HER HUSBAND, APPELLEES

Fla. 5th DCA | 1997-04-11
No. 95-2956
GRIFFIN, J., and PERRY, B., Jr., Associate Judge, concur.
691 So. 2d 555 Florida District Court of Appeal, Fifth District (1997) Caution
Cited by 12 cases

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Holding

An order granting a new trial without specific written reasons is void if entered simultaneously with the judge's recusal, and a successor judge must hear the motion anew.


Headnotes

[1] An order granting a new trial must specify the grounds therefor, and absent such specification, an appellate court shall relinquish jurisdiction for the entry of an order…

[2] An order entered simultaneously with an order of recusal is void.

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Facts & Procedural History

After a jury verdict for the defendants, the trial judge, who had previously commented on the potential collusion of the parties, recused himself and …

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Opinion of the Court
THOMPSON, Judge.

THOMPSON, Judge.

Dream Inn, Inc., John J. Kinberger and Cynthia Kinberger (collectively “Dream Inn”), appeal an order of the trial court granting Adrine and Roy Hester’s (“the Hes-ters”) motion for a new trial. Dream Inn argues, and the Hesters agree, that the order was improvidently entered since the trial court did not give specific written reasons for granting the motion. The Hesters argue this court should relinquish jurisdiction for Judge Kennedy to enter reasons for ordering a new trial. Dream Inn argues Judge Kennedy is unavailable because he recused himself at the same time he entered the order for new trial, and therefore, this court shotdd reverse his order and reinstate the verdict. We quash the order for new trial and remand this cause for the successor judge to hear the motion for new trial.

The Hesters sued Dream Inn for damages arising out of a slip-and-fall at the Dream Inn Motel. During a conference, held after the jury had been selected but before opening statement, Judge Kennedy learned the Kinbergers are the Hesters’ daughter and son-in-law. Judge Kennedy said “Obviously, this is a collusive lawsuit.” The trial proceeded and the trial court entered a judgment for the defendants after the jury returned a verdict in their favor. Thereafter, the Hesters filed a motion for Judge Kennedy’s disqualification based upon his statement at the conference. The Hes-ters also moved for a new trial on unrelated grounds. Judge Kennedy denied the motion for disqualification. A hearing was held on the motion for new trial and Judge Kennedy reserved ruling. Subsequently, he entered an order recusing himself upon his own motion, and simultaneously entered an order granting the Hesters a new trial. No reasons for the rulings were given in either order. All the parties agree that because the order granting a new trial did not specify reasons, it was not in compliance with Rule 1.530(f), Florida Rules of Civil Procedure, which provides:

Order Granting to Specify Grounds. All orders granting a new trial shall specify the specific grounds therefor. If such an order is appealed and does not state the specific grounds, the appellate court shall relinquish its jurisdiction to the trial court for entry of an order specifying the grounds for granting the new trial.

See also Prime Motor Inns, Inc. v. Waltman, 480 So. 2d 88 (Fla.1985); Wackenhut Corp. v. Canty, 359 So. 2d 430 (Fla.1978) (holding the trial court must give specific grounds in an order granting a new trial.)

Dream Inn argues that Judge Kennedy’s recusal renders him unavailable to proceed in the matter, and that under Groover v. Walker, 88 So. 2d 312 (Fla.1956), his successor may not correct errors of law committed by him. Citing State Farm Mutual Automobile Insurance Co. v. Brooks, 657 So. 2d 17 (Fla. 3d DCA 1995), Dream Inn argues this court should reverse the order granting a new trial and reinstate the judgment. In Brooks, a judge entered an order for new trial without giving reasons. On appeal, the district court relinquished jurisdiction for entry of an order stating specific reasons for the order granting new trial. The district court learned that the judge who entered the order had died and had been replaced by a successor. Citing Groover, the district court stated that a successor judge may not correct errors of law made by a predecessor judge, and hence, may not review and reverse on the merits and on the same facts the final orders and decrees of his predecessor. Because the judge was unavailable, the district court reviewed the order granting new trial without the benefit of the trial court’s reasoning. Having reviewed the record, the court reversed the order granting new trial.

The Hesters argue that Judge Kennedy is available and that he should be given the opportunity to complete what they consider a mere ministerial act, entering specific grounds for the motion for new trial. Although recognizing the general rule that a judge who recused himself may not enter subsequent orders, Bolt v. Smith, 594 So. 2d 864 (Fla. 5th DCA 1992), they argue this is an exceptional case.

Judge Kennedy declared himself unfit to proceed in the case when he entered the order of recusal. Regardless of his reasons for recusing himself, they are sufficient to prevent further involvement in the case. 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 motion for new trial. We note further that Florida Rule of Judicial Administration 2.160(h) allows a successor judge upon motion to reconsider, vacate or amend prior factual or legal rulings made by a disqualified judge.

Accordingly, the order granting new trial is quashed as void and the cause remanded for a hearing before the successor judge on the motion for new trial.

JUDGMENT QUASHED and REMANDED with directions.

GRIFFIN, J., and PERRY, B., Jr., Associate Judge, concur.


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Citator

Cited By

  • LEA v. Wigton, 705 So. 2d 723 (Fla. 5th DCA 1998)
    …by entering the order denying the motion to strike the respondents’ affirmative defenses. In this regard, once an order disqualifying a judge is entered, the judge is prohibited from any further participation in the case. Dream Inn, Inc. v. Hester, 691 So. 2d 555, 556 (Fla. 5th DCA 1997). As a result, any order entered by a judge after that judge has been disqualified is void. Bolt v. Smith, 594 So. 2d 864 (Fla. 5th DCA 1992). However, more is required for issuance of a writ of certiorari. Specifically, a…
  • Goolsby v. State, 914 So. 2d 494 (Fla. 5th DCA 2005)
    …e that the order denying Goolsby’s rule 3.850 motion is void and without effect because Judge Waller, having previously recused herself, was without authority to enter any orders on the merits of the postconviction motion. Dream Inn, Inc. v. Hester, 691 So. 2d 555, 556 (Fla. 5th DCA 1997) (explaining that any order a judge enters simultaneously with the order of recusal, as well as after his recusal, is void). For the foregoing reasons, we treat Goolsby’s filing as a petition for writ of mandamus, grant the p…
  • Collado v. Heriberto Collado, 858 So. 2d 1255 (Fla. 5th DCA 2003)
    …al Order ...” is granted. As this court explained in Lea v. Wigton, 705 So. 2d 723 (Fla. 5th DCA 1998): [O]nce an order disqualifying a judge is entered, the judge is prohibited from any further participation in the case. Dream Inn, Inc. v. Hester, 691 So. 2d 555, 556 (Fla. 5th DCA 1997). As a result, any order entered by a judge after that judge has been disqualified is void. Bolt v. Smith, 594 So. 2d 864 (Fla. 5th DCA 1992). Id. at 723; see also Meaweather v. State, 732 So. 2d 499 (Fla. 1st DCA 1999); Deb…

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