LEVERITT & ASSOCIATES, P.A., A FLORIDA CORPORATION, G. RICHARD LEVERITT AND KAREN B. LEVERITT, PETITIONERS,
v.
ANGELA WILLIAMSON, RESPONDENT

Fla. 2d DCA | 1997-09-10
No. 97-01703
DANAHY, A.C.J., and CAMPBELL and BLUE, JJ., concur.
698 So. 2d 1316 Florida District Court of Appeal, Second District (1997) Positive Treatment
Cited by 1 case

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Leveritt & Associates petitioned for a writ of certiorari to quash a circuit court's affirmance of a trial court's denial of a motion to disqualify the judge. The Florida District Court of Appeal held that the circuit court erred in finding it lacked jurisdiction to review the disqualification order on direct appeal, and that the trial court's improper rebuttal of factual allegations in denying the motion established grounds for disqualification.


Holding

The circuit court had jurisdiction to review the disqualification ruling on direct appeal because any ruling or matter occurring before the final notice of appeal may be reviewed. The trial court's improper rebuttal of factual allegations contained in the motion to disqualify, as a matter of law, established sufficient grounds for the trial court's disqualification.


Headnotes

[1] A circuit court acting in its appellate capacity departs from the essential requirements of law, warranting certiorari, when it refuses to review a trial court's order de…

[2] A trial court's order denying a motion to disqualify is reviewable on appeal from the final judgment, even if not specifically noticed for appeal, as appellate courts may…

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Key Quotes

“In an appeal from a final order, the appellate court "may review any [ruling] or matter occurring before the filing of the final notice [of appeal]."”

Establishes that the circuit court had jurisdiction to review the disqualification ruling despite it not being separately noticed for appeal.

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Facts & Procedural History

Leveritt & Associates and the individual petitioners brought a bifurcated action against Williamson seeking dissolution of a partnership and accountin…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Leveritt and Associates, P.A., G. Richard Leveritt and Karen Leveritt petition this court to issue a writ of certiorari quashing the order of the circuit court acting in its appellate capacity which affirmed the final judgment entered by the trial court. Petitioners specifically challenge the circuit court’s ruling that it was without jurisdiction to consider the issue of whether the trial court erred in denying petitioner’s motion to disqualify the trial court.

We conclude that the circuit court’s refusal to review this issue on appeal was a departure from the essential requirements of law resulting in a material injustice, the test outlined in Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla.1995), and we, therefore, grant the petition, issue the writ, and quash the order of the circuit court. Because the order of the trial court denying the motion to disqualify improperly addressed the grounds raised in the motion, we order the circuit court to vacate any orders entered by the trial court after the denial of the motion and to remand to the trial court with instructions that a new trial judge be appointed to preside over the remainder of the proceedings.

The case below involves a bifurcated action seeking the dissolution of a partnership and an accounting of the affairs of the partnership. After the trial court determined that respondent was a partner of the petitioners, petitioners filed their motion to disqualify pursuant to Florida Rule of Judicial Administration 2.160.

The trial court denied the motion to disqualify arid, after hearing the second stage of the bifurcated trial, entered its final judgment for damages and supplemental judgment for attorney’s fees, both of which orders petitioners appealed to the circuit court. In its order denying the motion to disqualify, the trial court improperly reviewed and attempted to rebut the factual allegations contained in appellant’s motion. This, as a matter of law, establishes sufficient grounds for the trial court’s disqualification. See Cave v. State, 660 So. 2d 705 (Fla.1995); Bundy v. Rudd, 366 So. 2d 440 (Fla.1978).

The circuit court concluded it was without jurisdiction to consider the trial court’s order denying the motion for disqualification because it was not specifically noticed for appeal.

The circuit court erred in so concluding. In an appeal from a final order, the appellate court “may review any ruling or matter occurring before the filing of the final notice [of appeal].” Fla. R.App. P. 9.110(h).

The circuit court also concluded that a challenge to the denial of a motion to disqualify must be raised by way of a petition for writ of prohibition, and that such a writ cannot be used to revoke judgments already entered.

The circuit court is incorrect. A challenge to an order denying a motion to disqualify may be raised in a petition for writ of prohibition in accordance with the appellate rules, or it may be raised on direct appeal from the final judgment or order. See Barwick v. State, 660 So. 2d 685 (Fla.1995), cert. denied, — U.S. -, 116 S.Ct. 823, 133 L.Ed.2d 766 (1996); Edwards v. State, 689 So. 2d 1251 (Fla. 4th DCA 1997).

The circuit court’s determination that it was without jurisdiction to consider the trial court’s ruling on petitioners’ motion to disqualify was a departure from the essential requirements of law. Because the trial court, in denying petitioners’ motion, improperly ruled on the factual allegations contained therein, which, as noted, conclusively establishes sufficient grounds for disqualification, we conclude that the circuit court’s refusal to consider the issue was a departure from the essential requirements of law which resulted in a material injustice. We, therefore, quash the order of the circuit court. On remand, the circuit court shall vacate any orders entered by the trial court after the date of the order denying the motion to disqualify and remand to the trial court for further proceedings consistent with this opinion.

Certiorari granted.

DANAHY, A.C.J., and CAMPBELL and BLUE, JJ., concur.


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Citator

Cited By

  • Davis v. State (Fla. 2d DCA 2020)
    …courts of appeal in one or both of two ways—by a petition for a writ of prohibition, which can be filed immediately after the order denying the motion, or by way of a direct appeal from a final judgment. See Leveritt & Assocs., P.A. v. Williamson, 698 So. 2d 1316, 1318 (Fla. 2d DCA 1997) ("A challenge to an order denying a motion to disqualify may be raised in a petition for writ of prohibition . . . or it may be raised on direct appeal from the final judgment or order."). The advantages of using prohibition…

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