Time Warner Entertainment Co., L.P. v. Baker, No. 94-2741

CourtCourt of Appeal of Florida (US)
Writing for the CourtTHOMPSON; Baker; GOSHORN; DAUKSCH; DAUKSCH; Baker
Citation647 So.2d 1070
Parties20 Fla. L. Weekly D93 TIME WARNER ENTERTAINMENT COMPANY, L.P., Petitioner, v. Hon. Joseph P. BAKER, Circuit Court Judge, etc., Respondent.
Decision Date30 December 1994
Docket NumberNo. 94-2741

Page 1070

647 So.2d 1070
20 Fla. L. Weekly D93
TIME WARNER ENTERTAINMENT COMPANY, L.P., Petitioner,
v.
Hon. Joseph P. BAKER, Circuit Court Judge, etc., Respondent.
No. 94-2741.
District Court of Appeal of Florida,
Fifth District.
Dec. 30, 1994.

Stuart W. Gold, Cravath, Swaine, & Moore, P.A., New York City, and Howell W. Melton, Jr., Steven L. Brannock and Theodore W. Small, Jr., Holland & Knight, P.A., Tampa, for petitioner.

No appearance for respondent.

THOMPSON, Judge.

The defendant in the underlying case, Time Warner Entertainment Co., L.P. ("Time Warner"), petitions for a writ of prohibition. Time Warner provides cable service for the plaintiffs below, Margo Mauldin and Brian E. Cooley. The plaintiffs sued Time Warner both on an individual basis and as members of a class. Among other claims, the plaintiffs charged Time Warner with unfair and deceptive trade practices. The claims arose from the change in the Federal Communications Commission's [FCC] regulations which took effect 1 September 1993. The FCC regulations were intended to reduce

Page 1071

the rates for those customers served by a cable system not deemed to have effective competition.

In response to the new regulations, Time Warner changed its system. Under its new system for basic service, Time Warner provided the standard 13 channels regulated locally, plus approximately 25 other channels regulated by the FCC. However, Time Warner made 3 channels previously available under the basic service--WTBS, WGN, and AMC--"a la carte " channels which were available for an extra $3 a month. The plaintiffs claimed they were charged for these channels unless they affirmatively opted out, and they claimed they were not told that they could opt out.

At a pre-trial hearing held on 7 October 1994 on the case, the respondent, Judge Joseph P. Baker, pursuant to Florida Code of Judicial Conduct, Canon 3A(4), informed the parties that he had spoken to Professor Michael Flynn of Nova University about the case. That canon allows a judge to "obtain the advice of a disinterested expert on the law applicable to a proceeding before [the judge] if [t]he [judge] gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond." Fla.Code Jud.Conduct, Canon 3A(4). Judge Baker indicated he might discuss the case with Professor Flynn in the future.

Time Warner looked into Professor Flynn's background and found that he had "served as chief of the Consumer and Business Affair Practices Division for the Attorney General of the State of Washington," and "authored several articles in the consumer affairs field adopting a pro-plaintiff perspective." Time Warner's counsel, Howell Melton, wrote a letter to Judge Baker on 14 November 1994, suggesting the Judge should cease any further communication with Professor Flynn and asking him to transfer the case. Time Warner's counsel questioned whether Professor Flynn was a "disinterested expert" in light of his pro-consumer and, hence, pro-plaintiff stance.

Judge Baker responded to Time Warner with a three page letter of his own dated 17 November 1994. He wrote that, in accordance with Florida Code of Judicial Conduct, Canon 3A(4), he routinely tells the parties about people he knows who have special experience and with whom he might discuss a case. Judge Baker said although he had spoken to Professor Flynn, he did not ask the professor's advice on the case because he had already made his ruling. Judge Baker said he had also told Professor Flynn he was writing an opinion, and the professor indicated he would be interested in reading it. Judge Baker stated he remained impartial in the case and said the very things that made Professor Flynn an expert were the things that Time Warner believed disqualified him as an expert. Time Warner thereafter moved to disqualify Judge Baker from the case on the basis of bias. Judge Baker denied the motion without comment on 30 November 1994. Time Warner then petitioned for a writ of prohibition. We deny the writ.

We make these observations before discussing the writ pending before us. First, we have jurisdiction. A writ of prohibition is the proper procedure for appellate review to test the validity of a motion to disqualify. Mangina v. Cornelius, 462 So.2d 602 (Fla. 5th DCA 1985); Hayslip v. Douglas, 400 So.2d 553, 555 (Fla. 4th DCA 1981). Second, a review of the file indicates that Time Warner has not complied with Florida Rules of Judicial Administration 2.160 for the disqualification of trial judges. Section 38.10, Florida Statutes (1993), gives Time Warner the substantive right to seek disqualification of Judge Baker, however, Florida Rules of Judicial Administration 2.160 sets forth the procedure to be followed. See Brown v. St. George Island, Ltd., 561 So.2d 253 (Fla.1990) (the statute creates the substantive right, but the process of disqualification is procedural and the procedures are governed by the rules of procedure). Time Warner's motion was untimely filed although, in other respects, it complied with the specific requirements of Florida Rules of Judicial Administration 2.160(c) 1. The motion was required

Page 1072

to be filed within a maximum of 10 days after Time Warner became aware of the facts which constituted the grounds for disqualification. Fla.R.Jud.Admin. 2.160(e). Time Warner became aware of Judge Baker's consultation with Professor Flynn on 7 October 1994. Time Warner did not file its motion until 23 November 1994. Finally, the only basis for the disqualification of Judge Baker was that he was biased because of his communication with Professor Flynn. Time Warner...

To continue reading

Request your trial
6 practice notes
  • Pilkington v. Pilkington, No. 5D15–3829.
    • United States
    • Court of Appeal of Florida (US)
    • December 31, 2015
    ...is the proper procedure for appellate review to test the validity of a motion to disqualify." Time Warner Entm't Co. v. Baker, 647 So.2d 1070, 1071 (Fla. 5th DCA 1994) (citing Mangina v. Cornelius, 462 So.2d 602, 602 (Fla. 5th DCA 1985) ; Hayslip v. Douglas, 400 So.2d 553, 555 (Fla. 4th DCA......
  • Wright v. Wright, Case No. 5D18-3354
    • United States
    • Court of Appeal of Florida (US)
    • December 6, 2018
    ...Prohibition is the proper remedy when a trial judge denies a motion to disqualify. Time Warner Entm't Co. v. Baker , 647 So.2d 1070, 1071 (Fla. 5th DCA...
  • Rivera v. Bosque, Case No. 5D15-3755
    • United States
    • Court of Appeal of Florida (US)
    • November 24, 2015
    ...is the proper procedure for appellate review to test the validity of a motion to disqualify." Time Warner Entm't Co. v. Baker, 647 So. 2d 1070, 1071 (Fla. 5th DCA 1994) (citing Mangina v. Cornelius, 462 So. 2d 602 (Fla. 5th DCA 1985)). Motions to disqualify are governed substantively by sec......
  • Carrow v. The Florida Bar, No. 2D03-50.
    • United States
    • Court of Appeal of Florida (US)
    • July 11, 2003
    ...prohibition. Bundy v. Rudd, 366 So.2d 440 (Fla.1978); Rucks v. State, 692 So.2d 976 (Fla. 2d DCA 1997); Time Warner Entm't Co. v. Baker, 647 So.2d 1070 (Fla. 5th DCA 1994). Accordingly, we treat this portion of the appeal as a petition for writ of A motion to disqualify a trial judge must c......
  • Request a trial to view additional results
6 cases
  • Pilkington v. Pilkington, No. 5D15–3829.
    • United States
    • Court of Appeal of Florida (US)
    • December 31, 2015
    ...is the proper procedure for appellate review to test the validity of a motion to disqualify." Time Warner Entm't Co. v. Baker, 647 So.2d 1070, 1071 (Fla. 5th DCA 1994) (citing Mangina v. Cornelius, 462 So.2d 602, 602 (Fla. 5th DCA 1985) ; Hayslip v. Douglas, 400 So.2d 553, 555 (Fla. 4th DCA......
  • Wright v. Wright, Case No. 5D18-3354
    • United States
    • Court of Appeal of Florida (US)
    • December 6, 2018
    ...Prohibition is the proper remedy when a trial judge denies a motion to disqualify. Time Warner Entm't Co. v. Baker , 647 So.2d 1070, 1071 (Fla. 5th DCA...
  • Rivera v. Bosque, Case No. 5D15-3755
    • United States
    • Court of Appeal of Florida (US)
    • November 24, 2015
    ...is the proper procedure for appellate review to test the validity of a motion to disqualify." Time Warner Entm't Co. v. Baker, 647 So. 2d 1070, 1071 (Fla. 5th DCA 1994) (citing Mangina v. Cornelius, 462 So. 2d 602 (Fla. 5th DCA 1985)). Motions to disqualify are governed substantively by sec......
  • Carrow v. The Florida Bar, No. 2D03-50.
    • United States
    • Court of Appeal of Florida (US)
    • July 11, 2003
    ...prohibition. Bundy v. Rudd, 366 So.2d 440 (Fla.1978); Rucks v. State, 692 So.2d 976 (Fla. 2d DCA 1997); Time Warner Entm't Co. v. Baker, 647 So.2d 1070 (Fla. 5th DCA 1994). Accordingly, we treat this portion of the appeal as a petition for writ of A motion to disqualify a trial judge must c......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT