ANDRZEJ MADURA AND ANNA DOLINSKA-MADURA, APPELLANTS,
v.
PETER TUROSIENSKI, APPELLEE

Fla. 2d DCA | 2005-05-13
No. 2D03-4425
FULMER and WHATLEY, JJ„ Concur.
901 So. 2d 396 Florida District Court of Appeal, Second District (2005) 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

The Maduras appealed orders dismissing their complaint and denying their motion to disqualify the trial judge. The appellate court lacked jurisdiction over most orders as nonfinal, but treated the disqualification order denial as a petition for writ of prohibition and granted it, finding the judge should have recused himself based on alleged contact restrictions imposed on pro se litigants.


Holding

The motion to disqualify should have been granted. The notification prohibiting contact with the judge, accepted as true, would prompt a reasonably prudent person to fear inability to receive a fair and impartial trial. Rule 2.160(g), addressing successive motions, did not apply because the initial recusal was initiated by the predecessor judge, not requested by the Maduras.


Headnotes

[1] An order dismissing a complaint is not a final appealable order when a compulsory counterclaim remains pending.

[2] A notice of appeal from a nonfinal order may be treated as a petition for writ of prohibition.

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Key Quotes

“would prompt a reasonably prudent person to fear that he or she could not get a fair and impartial trial from the judge”

Establishes the standard for disqualification based on the alleged contact restrictions

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Facts & Procedural History

After a trial judge was assigned to the Maduras' case, they received notification from his judicial assistant that they were prohibited from any furth…

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Opinion of the Court
ALTENBERND, Chief Judge.

ALTENBERND, Chief Judge.

Andrzej Madura and Anna Dolins-ka-Madura filed a notice of appeal regarding a series of orders entered by the trial court, including an order dismissing Mr. Madura’s complaint against Peter Turo-sienski and an order denying Mr. and Mrs. Madura’s motion to disqualify the trial judge. The order dismissing Mr. Madura’s complaint is not a final appeal-able order in light of the compulsory counterclaim that remains pending involving these parties and the transaction at issue. See S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97 (Fla.1974); Bay & Gulf Laundry Equip. Co. v. Chateau Toiver, Inc., 484 So .2d 615, 616 (Fla. 2d DCA 1985); Pellegrino v. Horwitz, 642 So. 2d 124, 125 (Fla. 4th DCA 1994).

Further, we lack jurisdiction to review the order as a nonfinal appeal, and there is no basis to review it by petition for writ of certiorari. Similarly, we lack jurisdiction to review the nonfinal order on the amended motion for protective order and the nonfinal order denying Mr. and Mrs. Madura’s motion to dismiss Mr. Turosienski’s counterclaim.

As to the order denying the Madu-ras’ motion to disqualify the trial judge, we treat the notice of appeal as a petition for writ of prohibition and grant the petition. The Maduras’ pro se motion to disqualify complied with the technical requirements of Florida Rule of Judicial Administration 2.160. In the motion, the Maduras alleged that shortly after the trial judge was assigned to this ease, they received notification from his judicial assistant that they were prohibited from any further contact whatsoever with the judge or his staff, even though they were not represented by counsel.

We conclude this fact, which we must accept as true, see Knañch v. State, 866 So. 2d 165, 167 (Fla. 2d DCA 2004), would prompt a reasonably prudent person to fear that he or she could not get a fair and impartial trial from the judge.

Thus the motion to disqualify should have been granted. See Coleman v. State, 866 So. 2d 209, 210 (Fla. 4th DCA 2004).

Mr. Turosienski argues that the trial judge was permitted to pass upon the underlying facts in the motion pursuant to .rule 2.160(g) because the trial'judge was acting as a successor judge. Indeed, a prior judge had issued an order of disqualification which led to the reassignment of this case. Although the predecessor judge had issued the order on her own initiative pursuant to rule 2.160(i), the predecessor judge stated in her order: “Any subsequent motion to disqualify will be governed by the provisions of Fla. R. Jud. Admin. 2.160(g).”

Rule 2.160(g) addresses successive motions for disqualification and permits a judge considering a successive motion to pass upon the truth of the facts alleged to determine whether “he or she is in fact not fair or impartial in the case.” However, rule 2.160(g) applies only to a “successive motion by the same party.” Here, the initial recusal was entered on the judge’s initiative, not at the request of the Madu-ras. The predecessor judge could not, by order, alter this rule of procedure.

Additionally, we note that there is no indication that the successor judge in this case considered this motion as a successive motion or that he actually passed upon the truth of the facts alleged in the motion. Rather, the judge denied the motion without a hearing and did not dispute the facts in the order denying the motion. Those facts as alleged, however, required recusal.

There is no doubt the Maduras, who are representing themselves, have engaged in litigation tactics that would try the patience of any judge. Certainly a trial judge is permitted to take steps, within the bounds of due process, to prevent abuses of the judicial process. Our record does not establish precisely what occurred between the Maduras and the judge or his judicial assistant, nor is it clear what the presiding judge did as a result of those interactions. Our opinion is therefore not a comment on those matters. We simply conclude that the motion to disqualify the trial judge was legally sufficient and required recusal.

Appeal dismissed in part, treated in part as petition for writ of prohibition; petition for writ of prohibition granted.

FULMER and WHATLEY, JJ„ Concur.


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