Airborne Cable Television, Inc. v. Storer Cable TV of Florida, Inc., 91-00887

• Decision Date: 13 March 1992
• Docket Number: No. 91-00887,91-00887
• Citation: 596 So.2d 117
• Parties: AIRBORNE CABLE TELEVISION, INC., a Florida corporation, James J. Boczar, P.A., and James J. Boczar, Appellants, v. STORER CABLE TV OF FLORIDA, INC., a Florida corporation, Appellee. 596 So.2d 117, 17 Fla. L. Week. D716
• Court: Florida District Court of Appeals

Page 117

596 So.2d 117

AIRBORNE CABLE TELEVISION, INC., a Florida corporation James J. Boczar, P.A., and James J. Boczar Appellants, v. STORER CABLE TV OF FLORIDA, INC., a Florida corporation Appellee.

No. 91-00887.

596 So.2d 117, 17 Fla. L. Week. D716

District Court of Appeal of Florida Second District.

March 13, 1992.

James J. Boczar of James J. Boczar, P.A., Sarasota, for appellants.

Terry S. Bienstock and Philip J. Kantor of Bienstock & Cunningham, P.A., Miami, and John P. Harllee, III, and Kimberly A. Bald of Harllee, Porgess, Hamlin & Hamrick, P.A., Bradenton, for appellee.

FRANK, Judge.

Airborne Cable Television, Inc., and its attorney, James J. Boczar, appeal from an order granting the motion of plaintiff Storer Cable TV of Florida, Inc., for attorney's fees. We reverse the order, which was entered when the judge was faced with a pending motion for disqualification.

Storer sued Airborne for tortious interference with a business relationship, Florida R.I.C.O. Act violations, and unjust enrichment. Airborne retaliated with antitrust counterclaims against Storer and other defendants, alleging conspiracy and monopolization. Among those sued were Storer's lawyer and her law firm, the general manager of Storer's cable system in Sarasota and Manatee Counties, Storer's commercial accounts manager for that same district, another cable company, and other unnamed coconspirators. Storer moved to dismiss and to strike the counterclaim as a sham pleading, and the other defendants moved to dismiss. Two days after a hearing on those motions, Airborne voluntarily dismissed the counterclaim as to all parties except Storer. Storer and the other counterdefendants then moved for attorney's fees, under section 57.105, Florida Statutes, for the filing of what they contended was a counterclaim completely devoid of justiciable issues of law or fact. At a hearing on September 5, 1990, the judge granted Storer's motion to dismiss, held that the motion to strike was moot, and held that Airborne's voluntary dismissals rendered the other motions to dismiss moot. The judge did not rule on the attorneys' fees issue at that time. Eight days later Airborne filed a motion to disqualify the judge on the grounds that he was biased against Airborne and that he had ex parte communications with Storer's lawyers, resulting in Storer's advance knowledge of the outcome of the motions to dismiss.

The motion to disqualify the judge was filed on September 13, 1990 and it was heard on September 15, 1990. On November 2, 1990 the judge granted Storer's motion for attorney's fees and assessed over $17,000 against the company and its lawyer. Not until November 6, 1990 did the judge recuse himself.

Had the trial judge followed the more prudent course, he would have taken no further substantive action once aware of the recusal motion and before having acted upon it. See MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla.1990); Stimpson Computing Scale Co., Inc. v. Knuck, 508 So.2d 482 (Fla. 3d DCA 1987); see also Barnett Bank of South Florida, N.A. v. Tarr, 557 So.2d 595 (Fla. 4th DCA 1990) (simultaneous entry of orders of dismissal and recusal error).

Storer contends, however, that the judge acted properly because he had heard argument on the attorneys' fee issue before the motion for recusal was filed. In support of its claim Storer relies upon Fischer v. Knuck, 497 So.2d 240 (Fla.1986), a case that modified an earlier stated absolute prohibition against the entry of any orders by a judge who had effected recusal. See Wishoff v. Polen, 468 So.2d 1035 (Fla. 4th DCA 1985); Gilmer v. Shell Oil Co., 324 So.2d 171 (Fla. 2d DCA 1975). The outcome in Fischer was based upon a distinctly different procedural setting. The trial court had entertained and received evidence on an issue, had orally pronounced a ruling, and was then presented with a disqualification motion. Our supreme court held it permissible for the judge to rule on the pending matter before deciding the propriety of recusal based upon the particular circumstance expressed below:

When a judge has heard the testimony and arguments and rendered an oral ruling in a proceeding, the judge retains the authority to perform the ministerial act of reducing that ruling to writing. However, any substantive change in the trial judge's ruling would not be a ministerial act.

497 So.2d at 243 (emphasis added). Our case is...