MARY ROSE CUSIMANO, APPELLANT,
v.
FRED FLORIO & KINEMED, INC., APPELLEE
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A trial judge who recused himself due to a conflict of interest was later reassigned to the same case after the conflict was resolved. The appellate court reversed all orders entered after the recusal, holding that such orders are void regardless of whether the party objected to the reassignment, following the established rule from Kells v. Davidson.
All orders entered by the judge after his disqualification are void and of no effect, even though there was no objection to the reassignment. The failure to object does not cure the defect created by the initial recusal.
[1] Orders entered by a judge after disqualification are void, even if the parties do not object to the judge's reassignment.
[2] A judge's recusal based on a conflict of interest renders subsequent orders void, irrespective of whether the underlying conflict has been resolved.
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Join FLexlaw to unlock all legal intelligence“any orders entered after disqualification were void, even though there was no objection to the reassignment”
Establishes the core holding that void orders cannot be cured by lack of objection
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Join FLexlaw to unlock all legal intelligenceJudge Fleet recused himself in May 2001 because the law firm representing defendants (Holland & Knight) was also representing him on a personal matter…
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KLEIN, J.
The first trial judge assigned to this case recused, on his own, because the law firm representing the defendants was representing him on a personal matter. Sometime thereafter, the case was reassigned to the same judge, who was no longer represented by the law firm, and the case proceeded to final judgment. We are compelled to reverse because of the rule that any orders entered after disqualification were void, even though there was no objection to the reassignment.
The lawsuit was filed in June 2000, and in May 2001, Judge Fleet recused himself on his own, noting that the law firm representing the defendants was also representing him in a personal matter. The case was then reassigned to Judge Green. In April 2002, counsel were notified by Judge Green’s chambers and a supervisor from the clerk’s office that a hearing set the next day was being cancelled because the case was being reassigned to Judge Fleet. A. year later, during a hearing, Judge Fleet remarked, “I had originally recused because Holland & Knight was one of the law firms. And then that matter was later resolved and the case was put back into the division.”
There was no objection to the reassignment to Judge Fleet, and the case was concluded by entry of a judgment against plaintiff Cusimano on a counterclaim. She now argues that the case should not have been reassigned to Judge Fleet and that all of his orders following his recusal are void.
The present case is not unlike Kells v. Davidson, 102 Fla. 684, 136 So. 450 (Fla.1931), in which the trial judge had recused himself on his own and the case was reassigned to him without objection after the original reason for disqualification no longer existed. Our supreme court held that, even though there was no objection, all orders entered after the disqualification were void and of no effect. Davis v. State, 849 So. 2d 1137 (Fla. 1st DCA 2003) and Rogers v. State, 341 So. 2d 196 (Fla. 4th DCA 1976). See also Fisher v. State, 840 So. 2d 325 (Fla. 5th DCA 2003) (failure to object in trial court does not preclude appellate review of order which is void).
Reversed.
GROSS and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Fisher v. State, 840 So. 2d 325 (Fla. 5th DCA 2003)
- Rogers v. State, 341 So. 2d 196 (Fla. 4th DCA 1976)
- Nelson v. Lord, 102 Fla. 684 (Fla. 1931)
- Frank W. Kells and wife Rosa C. Kells v. Davidson, 102 Fla. 684 (Fla. 1931)
- Davis v. State, 849 So. 2d 1137 (Fla. 1st DCA 2003)