Pullins v. Candelaria
Decision Date | 10 February 2020 |
Docket Number | No. 1D19-1575,1D19-1575 |
Citation | 291 So.3d 168 |
Parties | John F. PULLINS, Petitioner, v. David G. CANDELARIA, an individual, Eddie E. Farah, an individual, Charlie E. Farah, an individual, and Farah and Farah P.A., a Florida Law Firm, Respondents. |
Court | Florida District Court of Appeals |
John F. Pullins, pro se, Petitioner.
Kimberly Kanoff Berman of Marshall Dennehey Warner Coleman & Goggin, Fort Lauderdale; Michael J. Obringer of Marshall Dennehey Warner Coleman & Goggin, Jacksonville, for Respondents.
This petition for writ of prohibition seeks to disqualify the trial judge in a civil matter. Because Petitioner, John F. Pullins, had adequate remedies at law and did not attempt to avail himself of those remedies, we deny the petition.
Pullins, then plaintiff, sued for legal malpractice. On August 28, 2018, the trial judge granted the defendant's motion to dismiss and dismissed the suit with prejudice. That order was a final appealable order. See Fla. R. App. P. 9.030(b)(1)(A). Pullins then filed a motion to vacate the order of dismissal and an affidavit for disqualification of the trial judge. See § 38.10, Fla. Stat. (2018). The motion to vacate the order of dismissal was in the nature of a motion for rehearing or to alter or amend the order of dismissal and therefore likely tolled the time for rendition of the order of dismissal for purpose of appeal. See Fla. R. App. P. 9.020(h)(1)(B) & (D).
Pullins's affidavit for disqualification of the trial judge was not ruled upon within the requisite 30 days, so it was deemed to have been granted under rule 2.330(j), Florida Rules of Judicial Administration. Schisler v. State , 958 So. 2d 503, 505 (Fla. 3d DCA 2007) (). However, Pullins did not "seek an order from the court directing the clerk to reassign the case" as permitted by rule 2.330(j), which would have provided him with an adequate legal remedy.*
On December 4, 2018, the trial judge entered an order denying the motion to vacate the order of dismissal. Pullins did not file a notice of appeal from that order. See Fla. R. App. P. 9.110(b) ( ). On December 4, 2018, the trial judge also entered an untimely order denying the affidavit of disqualification.
Thereafter, Pullins again moved to disqualify the trial judge and moved twice to vacate various orders. On April 11, 2019, the trial judge ordered that the file be closed, stating that the judge no longer had jurisdiction over the case following the December 4, 2018, order denying the motion to vacate. On April 30, 2019, Pullins, then appellant, filed a notice of appeal from the order closing the file. We directed Pullins to show cause why the order closing the file was an appealable order and after receiving a response treated the appeal as seeking a writ of prohibition. See Fla. R. App. P. 9.040(c) ().
"Prohibition will be invoked only in emergency cases to forestall an impending present injury where person seeking writ has no other appropriate and adequate legal remedy." English v. McCrary , 348 So. 2d 293, 297 (Fla. 1977). Pullins had an adequate remedy at law after the trial judge did not rule on the affidavit of disqualification within 30 days and also after the December 4, 2018, order denying the motion to vacate issued. He could have sought the assignment...
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...remedy at law. It is to be used only in an emergency, Tropiflora , and should not be used in place of an appeal, Pullins v. Candelaria , 291 So. 3d 168 (Fla. 1st DCA 2020). Petitioners have not demonstrated that their pending appeal is not an appropriate remedy to address the denial of thei......
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Sarasota Cnty. Pub. Hosp. Dist. v. Venice HMA, LLC
...warranted where there is an adequate remedy at law ... and should not be used in place of an appeal." (citing Pullins v. Candelaria , 291 So. 3d 168, 169 (Fla. 1st DCA 2020) )). In other words, "[p]rohibition lies to prevent an inferior tribunal from acting in excess of jurisdiction but not......
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Sarasota Cnty. Pub. Hosp. Dist. & Sarasota Cnty. v. Venice HMA, LLC
...warranted where there is an adequate remedy at law . . . and should not be used in place of an appeal." (citing Pullins v. Candelaria, 291 So. 3d 168, 169 (Fla. 1st DCA 2020))). In otherwords, "[p]rohibition lies to prevent an inferior tribunal from acting in excess of jurisdiction but not ......