Petition for Writ of Prohibition - Stopa Law Firm

JACQUELINE COUCH,IN THE DISTRICT COURT OF APPEALSECOND DISTRICT, LAKELAND, FLORIDAPetitioner,L.T. Case No. 09-19743-CI-05v. Case No.:HONORABLE W. DOUGLAS BAIRD andCHASE HOME FINANCE, LLC,Respondents.________________________/PETITION FOR WRIT OF PROHIBITIONPetitioner, Jacqueline Couch (“Couch”), by and through her undersignedcounsel, petitions this Court for a Writ of Prohibition, precluding the Honorable W.Douglas Baird (“the Judge”) from presiding over Case No. 09-19743-CI-05,currently pending in the Circuit Court of the Sixth Judicial Circuit in and forPinellas County, Florida (“the Case”), and as grounds would show:BASIS FOR THIS COURT’S JURISDICTION1. Couch moved to disqualify the Judge under Fla.R.Jud.Admin. 2.330.The Judge denied that motion. This Court has original jurisdiction underFla.R.App.P. 9.030(b)(3) to enter a Writ of Prohibition.NATURE OF THE RELIEF SOUGHT2. Couch seeks a Writ of Prohibition from this Court, precluding theJudge from presiding over the Case and directing that the Case be re-assigned to a

andomly-assigned judge.OVERVIEW3. In the course of litigation of the Case, the Judge denied an amendedmotion to dismiss filed by Petitioner without a hearing and without even readingthe motion. Then, when Petitioner’s undersigned counsel expressed concern withthe Judge’s conduct, the Judge represented that he had read the motion when, infact, he had not. Caught in this misrepresentation, and told a motion to disqualifywould be forthcoming, the Judge could only say “do what you need to do.”4. The facts, as set forth in detail, below, gave Petitioner a well-reasonedfear she would not receive a fair hearing or trial before the Judge. Her Motion toDisqualify Judge was legally sufficient and should have been granted.FACTS5. The facts, as set forth in the Motion to Disqualify Judge, are set forthbelow. See Appendix to Petition, 1.6. On May 17, 2010, Couch served her Motion to Dismiss Complaint.7. On or about June 6, 2010, Respondent, Chase Home Finance, LLC(“Respondent”), served its Response to Motion to Dismiss.8. On September 15, 2010, upon realizing this case was assigned to theJudge (the only judge in Pinellas County who denies motions to dismiss inforeclosure cases without a hearing), Couch’s undersigned counsel served an2

Amended Motion to Dismiss. The intent in doing so was to set forth the argumentsin written form to clarify the arguments prior to the Judge ruling on them without ahearing.9. On September 23, 2010, the Judge entered an Order directing theparties to file memoranda on the issue of dismissal.10. Couch complied with the Judge’s Order, as she filed a Reply andMemorandum in Support of Defendant’s Amended Motion to Dismiss.11. On November 17, 2010, the Court entered an Order DenyingDefendant’s Motion to Dismiss.12. The Order made no mention of the Amended Motion to Dismiss.Also, the Order contained lengthy rulings and legal citations on issues that werenot argued or presented in the Amended Motion to Dismiss (e.g. that anAssignment of Mortgage need not be attached to the Complaint, which issomething that Defendant did not argue at all). Hence, it seemed clear the Judgedenied the Amended Motion to Dismiss without a hearing and without reviewingthe document.13. It seemed clear the Amended Motion to Dismiss had not beenreviewed or considered, so Couch filed a Motion to Vacate Order Denying Motionto Dismiss. Essentially, Defendant argued that it was unfair for the Judge torequire her to Answer when her Amended Motion to Dismiss had never been heard3

and the Court was not even aware it had been filed.14. On May 4, 2011, the Judge presided over a hearing on the Motion toVacate. During the hearing, Couch’s undersigned counsel argued that the Ordershould be vacated because of this sequence of events, as set forth above. Inparticular, Couch argued that it was patently unfair and a violation of due processfor the Motion to Dismiss to be denied when the Judge never had a hearing on theAmended Motion to Dismiss and never even reviewed the content thereof.Couch’s counsel also noted that the Order contained citations to arguments thatwere not contained in the Amended Motion to Dismiss, so it could not have beendirected to the Amended Motion to Dismiss.15. In response, the Judge told Couch’s undersigned counsel, in opencourt, that the Order may have been “inartfully” drafted but that the Judge hadreviewed the Amended Motion to Dismiss prior to entering the Order and intendedto deny it.16. The undersigned was, respectfully, quite upset. After all, the Judgecould not have reviewed the Amended Motion to Dismiss because, for unknownreasons, it had not been filed. 1As such, respectfully, the Judge had been caught in,at best, an inadvertent misrepresentation, or, at worst, an intentional one. As such,1 The undersigned has seen many instances of documents being inadvertentlymisfiled by clerks, presumably a result of the massive volume of cases with whichthey are dealing.4

the undersigned told the Judge words to the effect of “respectfully, Judge, youcouldn’t have reviewed the Amended Motion to Dismiss because it had not evenbeen filed.”17. In response, the Judge looked at the Court file and said “here it is,” orwords to that effect, pointing to the Amended Motion to Dismiss. However, theundersigned immediately told the Judge that the copy of the Amended Motion toDismiss that he was looking at was attached to the Motion to Vacate, which wasfiled after the Order was entered. It was and is clear the Amended Motion toDismiss had not been filed as of the date of the Order denying it.18. The Judge then said words to the effect of “How am I supposed to ruleon the Amended Motion if it is not before me?” to which the undersignedresponded “that’s the point, Judge. The Amended Motion to Dismiss couldn’t andshouldn’t have been denied when you did not even know about it.”19. Unfortunately, by that point, it was clear the Judge had prejudged theAmended Motion to Dismiss and was no longer neutral and detached. After all,the Judge misrepresented to the undersigned that he had reviewed the AmendedMotion to Dismiss and intended to deny it (despite the “inartfully” drafted Order)when he necessarily could not have done those things because the AmendedMotion to Dismiss was not even in the Court file and there had been no hearing.As such, the undersigned made an ore tenus motion to disqualify, then asked for a5

grounds, the issue before this Court is whether the Motion presented legallysufficient grounds to disqualify the Judge. In other words, the issue is whether theMotion showed Couch’s fear that she would not receive a fair trial or hearingbecause of specifically described prejudice or bias of the Judge.SeeFla.R.Jud.Admin. 2.330(d). In adjudicating this issue, this Court should give nodeference to the lower court’s ruling, but should apply a de novo standard ofreview. See Chamberlain v. State, 881 So. 2d 1087 (Fla. 2004); Frengel v.Frengel, 880 So. 2d 763 (Fla. 2d DCA 2004).I. THE JUDGE’S RULING AGAINST PETITIONER WITHOUT AHEARING AND WITHOUT READING A MOTION, COUPLEDWITH THE JUDGE’S MISREPRESENTATION THAT HE HADREAD THE MOTION, REQUIRES HIS DISQUALIFICATION.25. Numerous Florida courts have prohibited a judge from presiding on acase where the judge has announced his pre-disposition to rule against a party. InMarvin v. State, for instance, the Fourth District ruled:A trial judge’s announced intention before a scheduled hearing tomake a specific ruling, regardless of any evidence or argument to thecontrary, is the paradigm of judicial bias and prejudice. We could notimagine a more telling basis for a party to fear that he will not receivea fair hearing.804 So. 2d 360, 363 (Fla. 4th DCA 2001) (quoting Gonzalez v. Goldstein, 633 So.2d 1183 (Fla. 4th DCA 1994)); see also Barnett v. Barnett, 727 So. 2d 311 (Fla. 2dDCA 1999) (requiring judicial disqualification where the judge’s comments during7

trial created the impression that he had prejudged the case); Wargo v. Wargo, 669So. 2d 1123 (Fla. 4th DCA 1996) (Writ of Prohibition issued where the judgebegan to rule without giving a party a chance to be heard).26. Couch’s argument in her Motion to Disqualify is even stronger thanthe cases set forth above. Here, the Judge not only pre-judged the AmendedMotion to Dismiss, she ruled against Couch without a hearing and without havingread her motion. Perhaps worse yet, when apprised of this conduct, the Judgemisrepresented that he had read the motion, prior to denying it, when he clearlyhad not.27. It is eminently reasonable for Couch to doubt her ability to get a fairhearing before the Judge when the Judge ruled against her without a hearing andwithout reading her motion. To put it differently:Would you think you were getting a fair hearing if the Judge ruledagainst you without a hearing and without reading your motion?28. It is eminently reasonable for Couch to doubt her ability to get a fairhearing before the Judge when, after denying her motion without a hearing andwithout reading it, the Judge misrepresented that he had read the motion (prior todenying it) when, in fact, he had not. To put it differently:Would you think you were getting a fair hearing if the Judge deniedyour motion without reading it, without a hearing, and thenmisrepresented to you that he had read your motion, prior to denyingit, when he had not?8

29. Respectfully, any reasonable person would question his/her ability toget a fair hearing under these circumstances.30. All Couch is asking is for a fair chance to be heard by a judge who hasnot already pre-determined the merits of her motion. Yes, the courts are inundatedwith cases. Respectfully, however, it cannot reach the point where judges deny amotion without reading it, without a hearing, and then falsely assert they had readthe motion (prior to denying it) when they had not.CONCLUSIONPetitioners’ Motion to Disqualify Judge was legally sufficient and shouldhave been granted. Applying a de novo standard of review, this Court should issuea Petition for Writ of Prohibition and direct that the Case be re-assigned to arandomly-assigned judge.9

CERTIFICATE OF SERVICEI HEREBY CERTIFY that a true and correct copy of the foregoing has beenfurnished via U.S. Mail to Honorable W. Douglas Baird, 315 Court Street, Room421, Clearwater, FL 33756, Ashleigh L. Politano, Esq., Florida Default LawGroup, P.O. Box 25018, Tampa, FL 33622 on this 3rd day of June, 2011.______________________________Mark P. Stopa, EsquireFBN: 550507STOPA LAW FIRM3650 Fifth Ave. N.St. Petersburg, FL 33713Telephone: (727) 667-4808Facsimile: (727) 667-4808MarkPStopa76@aol.comATTORNEY FOR PETITIONERSCERTIFICATE OF FONT COMPLIANCEI HEREBY CERTIFY that the instant Petition complies with the fontrequirements of Fla.R.App.P. 9.100(l).______________________________Mark P. Stopa, Esquire10