Fuster-Escalona v. Wisotsky

• Decision Date: 30 November 2000
• Docket Number: No. SC93949.,SC93949.
• Citation: 781 So.2d 1063
• Parties: Francisco FUSTER-ESCALONA, Petitioner, v. Steven J. WISOTSKY, et al., Respondents.
• Court: Florida Supreme Court

781 So.2d 1063

Francisco FUSTER-ESCALONA, Petitioner, v. Steven J. WISOTSKY, et al., Respondents.

No. SC93949.

Supreme Court of Florida.

November 30, 2000.

Rehearing Denied March 21, 2001.

Francisco Fuster-Escalona, Petitioner, Indiantown, Florida, pro se.

Steven Wisotsky, Coconut Grove, Florida, pro se.

William J. Berger, Boca Raton, Florida; and Heidi F. Friedman of Panza, Maurer, Maynard & Neel, P.A., Fort Lauderdale, Florida, for Respondents.

PER CURIAM.

We have for review Fuster-Escalona v. Wisotsky, 715 So.2d 1053 (Fla. 4th DCA 1998), which expressly and directly conflicts with the decision in Lukowsky v. Hauser & Metsch, P.A., 677 So.2d 1383 (Fla. 3d DCA 1996). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The conflict issue is whether a motion to disqualify the trial judge provides a basis to dismiss the case for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e) when the motion remains pending for more than one year without being scheduled for a hearing.¹

On July 12, 1994, petitioner-an inmate at Martin Correctional Institution-filed a complaint against respondents Wisotsky and Nova Southeastern University. In October 1994, the trial court dismissed the complaint without prejudice for failure to state a cause of action. Petitioner filed a motion for rehearing² and, on November 15, 1994, filed a motion to disqualify the judge. No further record activity occurred until December 29, 1995, when respondent Nova filed a motion for dismissal for failure to prosecute. The trial court granted the motion and respondent Wisotsky filed a similar motion in January 1996. After the petitioner's response, the trial court dismissed the cause of action pursuant to rule 1.420(e).

The Fourth District Court of Appeal, on rehearing, affirmed the dismissal holding that "the mere filing of a motion to recuse the trial judge, without any attempt to set the motion for hearing, is not sufficient to excuse a plaintiffs lack of record activity during the year in which the motion—not noticed for hearing—remained pending." Fuster-Escalona v. Wisotsky, 715 So.2d 1053, 1054 (Fla. 4th DCA 1998). We disagree.

Section 38.10, Florida Statutes (1993), provides:

Disqualification of judge for prejudice; application; affidavits; etc.—Whenever a party to any action or proceeding makes and files an affidavit stating that he fears he will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of judges for the trial of causes in which the presiding judge is disqualified. Every such affidavit shall state the facts and the reasons for the belief that any such bias or prejudice exists and shall be accompanied by a certificate of counsel of record that such affidavit and application are made in good faith.

§ 38.10, Fla. Stat. (1993) (emphasis added). Florida Rule of Judicial Administration 2.160 establishes the procedural aspects of seeking disqualification. Rule 2.160 states that:

(f) Determination—Initial Motion. The judge against whom an initial motion to disqualify under subdivision (d)(1) is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If any motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion.

Fla. R. Jud. Admin. 2.160(f) (emphasis added).

This Court has strictly applied the above language because an allegation of judicial prejudice is always a serious matter. Thus, the rule provisions concerning "immediate" resolution have been accorded their plain meaning, which the Court has explained requires action that is "prompt" and "with dispatch." Livingston v. State, 441 So.2d 1083, 1085 (Fla.1983). Our comment on the adoption of rule 2.160 emphasizes a trial judge's responsibility to act quickly on such a motion: "We find the motion [to disqualify] should be ruled on immediately following its presentation to the court." Florida Bar re Amendment to Fla. Rules of Judicial Admin., 609 So.2d 465, 466 (1992). When a trial court fails to act in accord with the statute and procedural rule on a motion to disqualify, an appellate court will vacate a trial court judgment that flows from that error. See, e.g., Cave v. State, 660 So.2d 705, 708 (Fla.1995)

("[W]e find that Judge Walsh's conduct failed to follow the procedural process outlined in rule 2.160 and his error requires us to vacate Cave's sentence."). Here, the trial court's failure to immediately address the motion to disqualify is inconsistent with the relevant statute, rule, and caselaw. The trial judge is the manager of the docket and has the ultimate responsibility to rule on pleadings that are properly pled before the court, in accord with applicable rules of procedure and court precedent. See Toney v. Freeman, 600 So.2d 1099, 1100 (Fla.1992) ("Trial judges should be encouraged to take an active role in keeping themselves informed of the cases assigned to them."); Lukowsky v. Hauser & Metsch, P.A., 677 So.2d 1383, 1384 (Fla. 3d DCA 1996) ("[W]henever a dispositive motion is pending before the court, and the parties are awaiting the court's ruling on that motion, the duty to proceed rests squarely upon the court.").

The court's failure to promptly dispose of the motion to disqualify was aggravated in this instance by its decision to grant Nova's motion to dismiss for failure to prosecute while the motion to disqualify was still pending. See Lukowsky, 677 So.2d at 1384

(holding that an action cannot be dismissed for failure to prosecute when a dispositive motion is pending before the court). Respondent asserts an unpersuasive argument that a motion to disqualify is a nondispositive motion and, therefore, the pendency of such should not be considered record activity for purposes of deciding a motion to dismiss for failure to prosecute. To that end, respondent claims that a motion to disqualify a judge, even if granted, merely results in the installation of another judge and, thus, the case is not advanced in any way. We disagree. Record activity constitutes conduct that is greater than a passive effort to keep the case pending; it must be an affirmative action calculated to move the suit to judgment. See Toney, 600 So.2d at 1100. A motion to disqualify a judge is just such an action because until the matter is resolved the trial court cannot proceed. See § 38.10, Fla. Stat. (1993). Furthermore, the neutrality of judges is a "grave concern" even as to perception. Livingston, 441 So.2d at 1086. Under no circumstances may a judge sit in the trial of an action when his or her neutrality is shadowed or questioned. See id. at 1085. The truth-seeking function of a court proceeding is undermined when there remains an open question as to a judge harboring a prejudice against a litigant. See id. Logically, any decision by a judge under a cloud of prejudice would be suspect, thus undermining the integrity of the court proceeding and any movement toward judgment. Thus, we conclude that a motion to disqualify constitutes "record activity" with respect to a motion to dismiss for failure to prosecute.

The focus on the movant's "failure" to request a hearing on the motion to disqualify is unavailing. Clearly, it would have been better practice for the movant to request a hearing date in order to ensure that the trial court would address his motion. However, neither statute, rule, nor caselaw regarding motions to disqualify require that the movant request a hearing. This absence is in stark contrast to the emphasis on the immediacy with which the rule and caselaw require a judge to act when presented with such a motion. The district court, therefore, relied on a nonexistent requirement to undercut the effect of a pending motion to disqualify which, in turn, allowed the district court to affirm the trial court's order on the subsequently filed motion to dismiss.

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