Aquasol Condo. Ass'n, Inc. v. HSBC Bank USA, Nat'l Ass'n

• Decision Date: 31 October 2018
• Docket Number: No. 3D17-352,3D17-352
• Parties: AQUASOL CONDOMINIUM ASSOCIATION, INC., Appellant, v. HSBC BANK USA, NATIONAL ASSOCIATION, etc., Appellee.
• Court: Florida District Court of Appeals

312 So.3d 105

AQUASOL CONDOMINIUM ASSOCIATION, INC., Appellant,
v.
HSBC BANK USA, NATIONAL ASSOCIATION, etc., Appellee.

No. 3D17-352

District Court of Appeal of Florida, Third District.

Opinion filed October 31, 2018.

Jacobs Legal, PLLC, and Bruce Jacobs, Miami, for appellant.

DeLuca Law Group, PLLC, and Shawn Taylor (Fort Lauderdale), for appellee.

Before LAGOA, EMAS and FERNANDEZ, JJ.

EMAS, J.

ON MOTION FOR REHEARING

We deny appellant's motion for rehearing, withdraw our previous opinion, and substitute the following opinion¹ in its stead:

INTRODUCTION

Appellant, Aquasol Condominium Association, Inc. ("Aquasol"), appeals from a final judgment of foreclosure in favor of appellee, HSBC Bank USA, N.A. ("HSBC"), following a nonjury trial. We affirm, finding no merit in the issues raised by appellant, and write to discuss two of those issues.

312 So.3d 107

PROCEEDINGS BELOW

In September 2013, HSBC filed an action to foreclose on a condominium unit in the Aquasol Condominium in Miami Beach.² In January 2017, the case proceeded to a nonjury trial. At trial, there was no dispute that at the time it filed the instant action, HSBC was the holder of the note that was secured by a mortgage. HSBC introduced, without objection, the original note, which was in HSBC's possession at the inception of the action.³

Nevertheless, Aquasol contended during the trial that HSBC Bank could not establish standing to foreclose because it was required to prove it was the holder and owner of the note. After hearing Aquasol's position in this regard, the trial court rejected the argument, advising counsel that under the law, HSBC was not required to establish it was the owner and holder of the note in order to establish standing, but must only establish that it was the holder or owner of the note.

Nevertheless, counsel for Aquasol⁴ continued to press this position, and repeatedly attempted to question one of HSBC's witnesses about whether HSBC owned the note. HSBC objected to the questions as irrelevant and the trial court sustained the objections and directed Aquasol's counsel to move on to a new line of questioning. Aquasol's counsel persisted nonetheless, through argument to (and with) the trial court and questions posed to the witness. The trial court advised counsel that the line of questioning was irrelevant, that the record had been preserved, and that if counsel continued this line of questioning, he would be held in contempt.

At that point, Aquasol's counsel orally moved for a continuance so he could prepare a written motion for disqualification of the trial judge, contending that the trial judge had "prejudged" the case. The trial judge denied the request for a continuance at that point, but took a recess shortly thereafter, advising Aquasol's counsel he could prepare and submit a written motion for disqualification, and that the trial court would address the written motion when the trial resumed. When the trial judge returned to the bench, Aquasol's counsel requested some additional time to complete the motion, which the trial court granted, and then denied a subsequent request for further additional time. Thereafter, the written motion was presented to the trial judge, who denied it as legally insufficient.

The trial proceeded to conclusion, and the trial court entered a final judgment of foreclosure in favor of HSBC, determining, inter alia, that HSBC had the requisite standing.⁵ Aquasol filed a motion for rehearing; however, that motion did not address in any fashion the trial court's mid-trial denial of Aquasol's motion for disqualification or denial of the motion for continuance.

312 So.3d 108

DISCUSSION AND ANALYSIS

1. The Motion for Disqualification

On appeal, Aquasol asserts that the trial court erred in denying its motion for disqualification. Generally, we review de novo a trial court's order denying a motion for disqualification. Gregory v. State, 118 So.3d 770, 778 (Fla. 2013). To the extent that Aquasol asserts error in the trial court's denial of its motion for continuance or for further additional time (to prepare a written motion) we review this claim for an abuse of discretion. See Taylor v. Mazda Motor of Am., Inc., 934 So.2d 518 (Fla. 3d DCA 2005).

A motion to disqualify a trial judge is properly denied where it is legally insufficient. Thompson v. State, 759 So.2d 650, 659 (Fla. 2000). In order to be legally sufficient, "a motion to disqualify a judge ‘must be well-founded and contain facts germane to the judge's undue bias, prejudice, or sympathy.’ " Id. (quoting Rivera v. State, 717 So.2d 477, 480-81 (Fla. 1998) ). Of significance, "an adverse ruling is not a legally sufficient ground to disqualify the trial judge." Id. at 660. See also, Lomax v. Reynolds, 119 So.3d 562 (Fla. 3d DCA 2013) ; Clark v. Clark, 159 So.3d 1015 (Fla. 1st DCA 2015) (noting: "It is well-settled that adverse rulings are insufficient to show bias"); Campbell Soup Co. v. Roberts, 676 So.2d 435 (Fla. 2d DCA 1995).

In the instant case, there was no dispute—and Aquasol conceded—that HSBC Bank was the holder of the note at the inception of the case. Thus, there was nothing in this regard for the trial court to "prejudge," as the parties were in agreement on this singular operative fact. The trial court's conclusion that one's status as a holder of the note is sufficient to confer standing was a legal determination made by the trial court after hearing significant argument from Aquasol's counsel, not a factual determination made prior to presentation of the evidence. Accordingly, Aquasol's motion to disqualify the trial judge was legally insufficient because it was premised on nothing more than its disagreement with an adverse legal ruling, and failed to establish that the court's actions "would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial." Rodriguez v. State, 919 So.2d 1252, 1274 (Fla. 2005).

Further, the trial court did not abuse its discretion in denying a continuance to Aquasol. At the beginning of the trial, the trial court had a discussion with counsel for both parties regarding the legal issue of whether HSBC had standing if it was only the holder (but not the owner) of the note. As discussed previously, the trial court addressed this legal issue and stated its conclusion on the record. Thereafter, when Aquasol's counsel began asking questions of HSBC's witness that went to ownership of the note, HSBC objected to the questions as irrelevant. The trial court sustained the objections, as Aquasol had already conceded HSBC was the holder of the note at inception, and the trial court determined that, as a matter of law, this was sufficient to establish standing.

Nevertheless, Aquasol's counsel insisted on circling back to the legal determination previously made by the court, and persisted in pursuing the same line of questioning deemed irrelevant by the court. After the trial court sustained several more objections to this line of questioning, and advised counsel to stop pursuing this line of questioning (under pain of contempt),⁶ the following exchange took place:

312 So.3d 109

MR. JACOBS [counsel for Aquasol]: I'm just putting on the record, Your Honor, that I asked the Court to consider whether the Court has already pre-judged the case and has already decided the issues before hearing all the evidence and hearing all the facts, before hearing all my arguments, which, I think, the fact that Your Honor –

THE COURT: What is your motion, Mr. Jacobs?

MR. JACOBS: I'm asking the Court to continue this trial so that I can file a proper motion for disqualification, and I do that with a heavy heart—

THE COURT: Okay, your motion's denied. Do you have any further questions for this witness?

MR. JACOBS: I'm laying the record, please, Your Honor. The Florida Supreme Court instructs that when a lawyer makes a motion to disqualify a judge, because that

...