Brake v. Murphy, 96-3026
| Decision Date | 07 May 1997 |
| Docket Number | No. 96-3026,96-3026 |
| Citation | 693 So.2d 663 |
| Parties | 22 Fla. L. Weekly D1120 Eileen M. BRAKE, et al., Petitioners, v. Eve E. MURPHY, et al., Respondents. |
| Court | Florida District Court of Appeals |
Robert M. Brake, Coral Gables, for petitioners.
Richard T. Kozek, Jr.; Robert Ginsburg, County Attorney, and Lee Kraftchick, Assistant County Attorney, for respondents.
Before SCHWARTZ, C.J., and NESBITT and JORGENSON, JJ.
In this "interminable litigation" 1 between the beneficiaries of an estate, petitioners point to a number of claimed errors. We find one point determinative, that being petitioners' argument that when confronted with record evidence of ex parte communication, the trial judge should have granted petitioners' motion for disqualification. We grant the instant petition, and vacate several rulings made after that communication, including the ruling of this court in Brake v. Murphy, 636 So.2d 72 (Fla. 3d DCA 1994), where we affirmed the surcharge order at issue. See Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965) ().
The underlying case began upon the death of Eileen Ellis Murphy, who died testate on March 30, 1988. In June 1988, pursuant to the deceased's will and codicil, Eileen M. Brake was appointed personal representative of the estate. Respondents, Eve Murphy and Richard Murphy, are two of the four beneficiaries in the estate. The underlying estate consisted essentially of one piece of commercial property.
On October 12, 1990, Eve Murphy and Richard Murphy filed a petition to surcharge Ms. Brake under adversary proceeding, alleging acts of malfeasance by Ms. Brake. On June 21, 1993, an order surcharging Ms. Brake was entered for $142,675. The surcharge order took under advisement all of Eve and Richard Murphy's attorney's fees and provided for the determination of same at a separate hearing. The surcharge order was later amended and subsequently affirmed on appeal. See Brake v. Murphy, 636 So.2d at 72.
The Supreme Court in Rose v. State, 601 So.2d 1181, 1183 (Fla.1992) concluded that "a judge should not engage in any conversation about a pending case with only one of the parties participating in that conversation." Explaining this conclusion the court observed:
Nothing is more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant. Even the most vigilant and conscientious of judges may be subtly influenced by such contacts. No matter how pure the intent of the party who engages in such contacts, without the benefit of a reply, a judge is placed in the position of possibly receiving inaccurate information or being unduly swayed by unrebutted remarks about the other side's case. The other party should not have to bear the risk of factual oversights or inadvertent negative impressions that might easily be corrected by the chance to present counter arguments.
Id.; see Rollins v. Baker, 683 So.2d 1138(Fla. 5th DCA 1996); Hanson v. Hanson, 678 So.2d 522 (Fla. 5th DCA 1996).
Generally, the critical determination in deciding the legal sufficiency of a motion to disqualify has been whether the facts alleged would prompt a reasonably prudent person to fear he would not receive a fair trial. Fischer v. Knuck, 497 So.2d 240 (Fla.1986); Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983); Hayslip v. Douglas, 400 So.2d 553 (Fla. 4th DCA 1981).
Here, attorney billing records reveal that respondents' counsel conferred with the trial judge on two separate occasions, shortly after which, the trial judge issued a surcharge order against petitioners. 2 Surprisingly, this fact was made blatantly clear from notations in the billing records submitted to petitioners when respondents sought to recover their legal fees. Those records indicated:
06/07/93 "Conference with Court re: Final Order re: Surcharge Order." .25
06/14/93 "Conference with Court re: Order for Surcharge." .25
Such ex parte communication would be especially disturbing when at issue, as in the instant case, was the highly sensitive issue of whether the estate's personal representative had knowingly and willfully breached her fiduciary duty to her fellow beneficiaries. Moreover, these notations on their face demonstrate that it was not an administrative matter for which the court was being consulted. The client was billed for attorney time. Also, a party in an administrative, secretarial, or clerical capacity, would not be conferring on two separate occasions as to the content of a surcharge order.
Respondents argue that this issue was not raised within ten days of the Brakes' receipt of the records at issue, and therefore petitioners waived this ex parte communication as a basis for disqualification. Fla. R. Jud. Admin. 2.160(e). There have been multiple previous appeals in this case including at least four petitions for writ of certiorari to review orders denying motions for disqualification of this probate judge. Petitioners response is that they filed the instant motion within days of their actual discovery of the ex parte communications. We conclude that under the circumstances, the timing of the motion did not preclude its viability. See Pistorino v. Ferguson, 386 So.2d 65, 67 (Fla. 3d DCA 1980); State v. Cannon, 166 So.2d 625 (Fla. 3d DCA 1964) cert. denied, 172 So.2d 597 (Fla.1965).
The certitude of our decision that the motion for disqualification should have been granted is reinforced by several highly questionable orders rendered after the surcharge order. First, in response to the persistent filing of what respondents termed continued meritless pleadings, respondents filed a petition to compel posting of a bond in order to file further pleadings. While the Brakes had never been cited for contempt in the course of the proceedings, Ms. Brake and her husband, Robert Brake, were, nonetheless, ordered to post a bond in the amount of $50,000, the bond to be applied and levied for fees and costs of future contempt proceedings. This ruling cannot stand. Under the instant facts the order was clearly a violation of the ...
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