ROBERT BUCKNER, ET AL., APPELLANTS,
v.
JANET COWLING, JERRY COWLING, ET AL., APPELLEES
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Buckner appeals from a trial court's nonfinal orders granting the Cowlings' motions to set aside a dismissal and extend time to serve summons and complaint. The appellate court holds that while orders by a disqualified judge are voidable (not void) and subject to reconsideration, Buckner cannot have them automatically vacated on appeal, but his timely motion for reconsideration should be granted by the successor judge upon remand.
Orders entered by a disqualified judge are voidable, not void, and a party is not entitled to have such orders automatically vacated as a matter of right on appeal. However, a successor judge must grant a timely motion for reconsideration and reconsider the prior rulings of the disqualified judge.
[1] Orders entered by a judge who is later disqualified are voidable, not void.
[2] Prior rulings of a disqualified judge may be reconsidered and vacated by a successor judge upon the filing of a motion for reconsideration.
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Join FLexlaw to unlock all legal intelligence“Orders entered by a disqualified judge are voidable not void.”
Establishes the legal standard that orders by a disqualified judge are subject to reconsideration but not automatically vacated.
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Join FLexlaw to unlock all legal intelligenceRobert Buckner appealed from two nonfinal orders issued by a trial judge granting Janet and Jerry Cowling's motion to set aside an order of dismissal …
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Robert Buckner appeals from the trial court’s nonfinal orders granting Janet and Jerry Cowling’s motion to set aside an order of dismissal and granting the Cowlings’ motion for extension of time to serve summons and complaint. Buckner raises two issues on appeal, only one of which merits discussion. He argues that the trial judge erred in ruling on those two motions, when, two days later, the judge recused himself on his own initiative. Buckner contends that the court should not have ruled on the Cowlings’ motions because the grounds for recusal were known to the court at the time it entered the orders. Accordingly, he asks this Court to reverse those orders and remand with instructions to set them aside.
Prior rulings of a disqualified judge may be reconsidered and vacated by a successor judge upon the filing of a motion for reconsideration. See Fla. R. Jud. Admin. 2.330(h). Although an order entered by a judge who is later disqualified is subject to reconsideration by a successor judge, a party is not entitled to have the order vacated as a matter of right. See Sehlesinger v. Chem. Bank, 707 So.2d 868, 869 (Fla. 4th DCA 1998); see also Doe ex rel. Doe v. Publix Supermarkets, 814 So.2d 1249, 1251 (Fla. 2d DCA 2002) (“Orders entered by a disqualified judge are voidable not void.” (quoting Schlesinger, 707 So.2d at 869)). Thus, we cannot grant Buckner the relief that he seeks on appeal. However, because Buckner filed a timely motion for reconsideration challenging the merits of the orders entered by the disqualified judge, upon remand the successor judge should grant that motion and reconsider those prior rulings.
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
EVANDER, COHEN and WALLIS, JJ., concur.
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Citator
Cited By
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Davis v. State (Fla. 2d DCA 2020)…t is not impossible to tell whether the denial of a legally sufficient disqualification motion is harmful is confirmed by the fact that when a judge is disqualified, we do not automatically set his or her prior orders aside. See Buckner v. Cowling, 135 So. 3d 383, 383 (Fla. 5th DCA 2014) ("[A] party is not entitled to have [an order by a judge who is later disqualified] vacated as a matter of right."); Rath v. Network Mktg., L.C., 944 So. 2d 485, 486-87 (Fla. 4th DCA 2006) (denying a petition for a writ of m…
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Williams v. State, 241 So. 3d 958 (Fla. 1st DCA 2018)
Authorities Cited
- Schlesinger v. Chem. Bank & G & E II Holding Corp., 707 So. 2d 868 (Fla. 4th DCA 1998)
- DOE v. Publix Super Mkts., Inc., 814 So. 2d 1249 (Fla. 2d DCA 2002)