DeGennaro v. Janie Dean Chevrolet, Inc., 91-0022

• Decision Date: 17 June 1992
• Docket Number: No. 91-0022,91-0022
• Parties: Anthony DeGENNARO and Claudia DeGennaro, Appellants, v. JANIE DEAN CHEVROLET, INC., a Florida corporation, Dale Sorensen Real Estate, Inc., and Olga Lacey, Appellees. 600 So.2d 44, 17 Fla. L. Week. D1509
• Court: Florida District Court of Appeals

Page 44

600 So.2d 44

Anthony DeGENNARO and Claudia DeGennaro, Appellants, v. JANIE DEAN CHEVROLET, INC., a Florida corporation, Dale Sorensen Real Estate, Inc., and Olga Lacey Appellees.

No. 91-0022.

600 So.2d 44, 17 Fla. L. Week. D1509

District Court of Appeal of Florida Fourth District.

June 17, 1992.

Appeal from the Circuit Court for Indian River County; Paul B. Kanarek, Judge.

Arthur J. England, Jr., and Linda Ann Wells of Fine Jacobson Schwartz Nash Block & England, Miami, for appellants.

Richard M. Goldstein and Susan E. Trench of Goldstein & Tanen, P.A., Miami, for appellee-Janie Dean Chevrolet, Inc.

PER CURIAM.

AFFIRMED.

GLICKSTEIN, C.J., and POLEN, J., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge, specially concurring.

I concur in the majority's affirmance and write separately only on the issue of whether this court's previous denial of an application for prohibition bars relitigation in this appeal of the judicial disqualification issue earlier raised by prohibition. I would adopt the position of the Third District set out in Obanion v. State, 496 So.2d 977 (Fla. 3d DCA 1986), rev. denied, 504 So.2d 768 (Fla.1987), to that effect.

In Obanion, the Third District held that the denial of prohibition on a speedy trial claim would bar the relitigation of the speedy trial claim on plenary appeal. In my view this view is sound since the Florida Supreme Court has held that the district courts must afford defendants relief by prohibition on speedy trial claims. Pursuant to Sherrod v. Franza, 427 So.2d 161 (Fla.1983), district courts have no choice but to consider prohibition applications in speedy trial cases on their merits.

Similarly, the Florida Supreme Court has held that prohibition in the district courts is the appropriate remedy to review trial court orders denying applications to disqualify a trial court judge. In Bundy v. Rudd, 366 So.2d 440, 442 (Fla.1978), the court held:

Once a basis for disqualification has been established, prohibition is both an appropriate and necessary remedy. Brown v. Rowe, 96 Fla. 289, 118 So. 9 (1928). Accordingly, the writ of prohibition must issue directing respondent to disqualify himself in all proceedings presently pending against the petitioner. We assume, however, that the formal issuance of the writ will be unnecessary.

This court, of course, follows the above holdings of the Supreme Court and addresses the merits of the issues raised in applications for prohibition on speedy trial or disqualification grounds.

While much...