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 |
| Citation | 312 So.3d 105 |
| Parties | AQUASOL CONDOMINIUM ASSOCIATION, INC., Appellant, v. HSBC BANK USA, NATIONAL ASSOCIATION, etc., Appellee. |
| Court | Florida District Court of Appeals |
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.
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.
In September 2013, HSBC filed an action to foreclose on a condominium unit in the Aquasol Condominium in Miami Beach.2In 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 counselhe 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.5Aquasol 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.
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.SeeTaylor v. Mazda Motor of Am., Inc., 934 So.2d 518(Fla. 3d DCA2005).
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.(quotingRivera 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.Seealso, Lomax v. Reynolds, 119 So.3d 562(Fla. 3d DCA2013);Clark v. Clark, 159 So.3d 1015(Fla. 1st DCA2015)();Campbell Soup Co. v. Roberts, 676 So.2d 435(Fla. 2d DCA1995).
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:
(Emphasis added.)
Aquasol contends that, because counsel is not permitted to make an oral motion for disqualification during trial, the trial court was required to grant a continuance to allow him to file a written motion.Aquasol's premise is incorrect, however, as this very circumstance is expressly provided for in Florida Rule of Judicial Administration2.330(e) :
A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling.Any motion for disqualification made during a hearing or trial must be based on facts discovered during the hearing or trial and may be stated on the record, provided that it is also promptly reduced to writing in compliance with subdivision (c) and promptly filed.A motion made during hearing or trial shall be ruled on immediately.7
(Emphasis added.)
Aquasol did not make an oral motion for disqualification, instead requesting a continuance of the trial to prepare a written motion.When the trial court denied the motion for continuance, Aquasol's counsel should have, pursuant to the rule, orally stated the motion for disqualification on the record.And although the requested continuance was denied at that point, the trial court shortly thereafter recessed the trial and advised counsel that he could take that opportunity to put his motion in writing and file it with the court.Upon returning to the bench to resume the trial, the trial court permitted counsel additional time to complete the written motion.Aquasol's counsel requested further additional time, which the trial court denied, and we find no abuse of discretion in the trial...
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Bodden v. State
...525 (Fla. 1997) ("[A]n adverse ruling is not sufficient to establish bias or prejudice."); Aquasol Condo. Ass'n, Inc. v. HSBC Bank USA, Nat'l Ass'n, 312 So.3d 105, 106-07 (Fla. 3d DCA Oct. 31, 2018). The fear of judicial bias must be objectively reasonable; the "subjective fear of a party s......