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Electronically Filed 10/18/2013 11:18:16 AM ET
IN THE CIRCUIT COURT OF THE
11" JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
PFS INVESTMENTS INC., a
Foreign corporation, and
LAWRENCE MAURICE COOK,
Petitioners,
CASE NO.: 13-28368-CA 25
v.
BERNETTA DeSHAZIOR,
Respondent.
Ne SSS SS SH SH HH SL
PETITIONERS’ MEMORANDUM IN OPPOSITION TO
RESPONDENT’S EMERGENCY MOTION TO DISQUALIFY JUDGE
PFS Investments Inc. and Lawrence Maurice Cook (“Petitioners”) submit this
memorandum in opposition to Respondent DeShazior’s Emergency Motion to Disqualify Judge.
Respondent has moved for an order disqualifying Circuit Judge Cueto in this matter.
Respondent’s motion lacks a legally sufficient basis for disqualification, as her motion
and supporting affidavit show no factual foundation to support the contention that Respondent
reasonably fears that she will not receive a fair trial or hearing because of prejudice or bias of the
judge. The motion should be denied.
I. The Motion is Legally Insufficient and Should be Denied
Respondent’s motion is predicated on Rule 2.330 of the Florida Rules of Judicial
Administration and Fla. Stat. § 38.10...Respondent relies. specifically on subsection (d)(1) of
BROAD and CASSEL
One Biscayne Tower, 21st Floor 2 South Biscayne Blyd. Miami, Florida 33131-1811 305.373.9400Case No.: 13-28368-CA 25
Rule 2.330, under which a motion to disqualify must show “that the party fears that he or she
will not receive a fair trial or hearing because of a specifically described prejudice or bias of the
judge.” The rule and statute have long been construed to require a showing that the alleged fear
of bias is an objectively reasonable fear on the facts alleged. See MacKenzie v. Super Kids
Bargain Store, Inc., 565 So.2d 1332 (Fla. 1990). Respondent claims to fear bias or prejudice on
the part of Judge Cueto based on the allegation that he denied her motion for a stay pending an
appeal of the Court’s order of vacatur without actually having read her motion for stay.!
Under Rule 2.330, such a motion to disqualify is presented to the judge whose
disqualification is being sought, and that judge is charged to “determine only the legal
sufficiency of the motion and shall not pass on the truth of the facts alleged.” Fla. R. Jud.
Admin. 2,330(f). The rule goes on to provide: “If any motion is legally insufficient, an order
denying the motion shall immediately be entered.” Id?
Respondent's motion to disqualify should be denied because it is legally insufficient. It is
not enough for a party moving for disqualification merely to assert that the party subjectively
fears that she will not receive a fair trial or hearing because of claimed prejudice. Rather, the test
under Rule 2.330(d)(1) is an objective one: “A determination must be made as to whether the
facts alleged would place a reasonably prudent person in fear of not receiving a fair and
' In an effort to bolster her motion, Respondent also cites to other rulings and actions of Judge Cueto that were
adverse to her positions. All of those instances pre-date the October 4, 2013 hearing on Petitioners’ Motion to
Vacate, however, and, accordingly, as Respondent herself acknowledges, those matters are all outside the ten-day
time limit for a disqualification motion under Rule 2.330(e). Accordingly, any motion based on those matters would
be untimely.
2 Rule 2.330(f) also provides that “[nJo other reason [other than legal insufficiency] for denial shall be stated, and an
order of denial shall not take issue with the motion.”
2
BROAD and CASSEL
One Biscayne Tower, 21st Floor 2 South Biscayne Blvd. Miami, Florida 33131-1811 305.373.9400Case No.: 13-28368-CA 25
impartial trial.” Livingston v. State, 441 So.2d 1083, 1087 (Fla. 1983) (emphasis added). The
Supreme Court has said:
The law is well established that the asserted facts must be
“reasonably sufficient” to create a “well-founded fear” in the mind
of a party that he or she will not receive a fair trial... .. A verified
motion for disqualification must contain an actual factual
foundation for the alleged fear of prejudice.
Fischer v. Knuck, 497 So.2d 240, 242 (Fla. 1986) (citations omitted) (emphasis added).
II. The Rulings of a Court are Not Sufficient Grounds for Recusal
The factual allegations of Respondent’s motion in this case do not remotely approach the
requisite showing of an objective “factual foundation for the alleged fear of prejudice.” Id. As
the basis or ground for her alleged “fear”, Respondent relies on the allegation that Judge Cueto
denied her motion to stay the vacatur order pending appeal without having read the motion itself.
That allegation, even if true, shows no hint of bias or prejudice or basis for inferring bias or
prejudice, The cases have repeatedly held that complaints about a court’s rulings are insufficient
to require disqualification or recusal. See Barwick v, State, 660 So.2d 685, 692 (Fla. 1995);
Lomax v. Reynolds, 119 So.2d 562 (Fla. 3d DCA 2013)3 And if, indeed, the stay motion was
denied without Judge Cueto having read it, that would hardly suggest prejudice, for Judge Cueto
plainly knew from the opposition brief and proposed order submitted by Petitioners everything
that any judge needed to know to rule upon the motion to stay — that is, that the motion was
asking for a stay pending appeal of an order that was plainly non-final and non-appealable. The
brief and proposed order that Petitioners submitted in opposition to the stay motion informed the
* Rule 2.330(a) provides that, if the disqualification is granted, the prior rulings of the disqualified judge “may be
reconsidered and vacated or amended by a successor judge... .” Respondent would doubtless welcome the
opportunity afforded by a disqualification to “appeal” the non-appealable vacatur order to a successor judge of this
Court.
3
BROAD and CASSEL
One Biscayne Tower, 21st Floor 2 South Biscayne Blvd. Miami, Florida 33131-1811 305.373.9400Case No.: 13-28368-CA 25
judge that the Respondent’s motion was asking for a stay pending appeal. Because the relevant
statute and case law make it abundantly clear that a vacatur order directing a new arbitration
hearing is not appealable, nothing that Respondent could possibly have said in support of her
motion for stay could have made the slightest difference. Because there could be no appeal,
there could be no stay pending appeal.
As there is an obvious and logical explanation for denial of the stay motion without
actually reading it, the denial of the motion without reading it raises no reasonable inference
whatsoever of prejudice or partiality. The alleged facts relied upon for the disqualification
motion, accordingly, fail the test for legal sufficiency. The facts alleged are not such that “would
place a reasonably prudent person in fear of not receiving a fair and impartial trial” or hearing.
Livingston v. State, 441 So.2d at 1087.
CONCLUSION
The motion fails to show a legally sufficient basis for disqualification under Rule
2.330(d)(1). The judge’s denial of Respondent’s patently meritless stay motion, even if based
solely on reading Petitioners’ brief in opposition to the Motion, shows no ground for a reasonable
or “well-founded” fear of partiality as required by the decisions of the Florida Supreme Court.
Accordingly, the motion should be denied.
Respecjfully submitted,
le Donner, Esq.
AND CASSEL
Amy Steele Donner, Esq.
Florida Bar No. 184548
4
BROAD and CASSEL
One Biscayne Tower, 21st Floor 2 South Biscayne Blvd. Miami, Florida 33131-1811 305.373.9400Case No.: 13-28368-CA 25
ADonner@BroadandCassel.com
Ischwartz@broadandcassel.com
Attorneys for Petitioners
One Biscayne Tower, 21" Floor
2 S. Biscayne Boulevard
2 South Biscayne Boulevard
Miami, Florida 33131
Telephone: 305.373.9425
Facsimile: 305.995.6385
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing was sent
via email to: to Frank R. Rodriguez, Esq., Andrew V. Tramont, Esq., and Paulino A. Nunez,
Esq., Counsel for Respondent, Guerra, & Nunez, 255 Alhambra Circle, Suite 1150, Coral Gables,
FL 33134, and Lawrence A. Kellogg, Esq., and Jason Kellogg, Co-Counsel for Respondent,
Levine Kellogg Lehman Schneider & Grossman LLP, 201 South Biscayne Boulevard, 2"
Floor, Miami Center, Miami, Florida 33131, on this LI lay of October, 2013.
5
BROAD and CASSEL
One Biscayne Tower, 21st Floor 2 South Biscayne Blvd. Miami, Florida 33131-1811 305.373.9400
Preview
Electronically Filed 10/18/2013 11:18:16 AM ET IN THE CIRCUIT COURT OF THE 11" JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA PFS INVESTMENTS INC., a Foreign corporation, and LAWRENCE MAURICE COOK, Petitioners, CASE NO.: 13-28368-CA 25 v. BERNETTA DeSHAZIOR, Respondent. Ne SSS SS SH SH HH SL PETITIONERS’ MEMORANDUM IN OPPOSITION TO RESPONDENT’S EMERGENCY MOTION TO DISQUALIFY JUDGE PFS Investments Inc. and Lawrence Maurice Cook (“Petitioners”) submit this memorandum in opposition to Respondent DeShazior’s Emergency Motion to Disqualify Judge. Respondent has moved for an order disqualifying Circuit Judge Cueto in this matter. Respondent’s motion lacks a legally sufficient basis for disqualification, as her motion and supporting affidavit show no factual foundation to support the contention that Respondent reasonably fears that she will not receive a fair trial or hearing because of prejudice or bias of the judge. The motion should be denied. I. The Motion is Legally Insufficient and Should be Denied Respondent’s motion is predicated on Rule 2.330 of the Florida Rules of Judicial Administration and Fla. Stat. § 38.10...Respondent relies. specifically on subsection (d)(1) of BROAD and CASSEL One Biscayne Tower, 21st Floor 2 South Biscayne Blyd. Miami, Florida 33131-1811 305.373.9400Case No.: 13-28368-CA 25 Rule 2.330, under which a motion to disqualify must show “that the party fears that he or she will not receive a fair trial or hearing because of a specifically described prejudice or bias of the judge.” The rule and statute have long been construed to require a showing that the alleged fear of bias is an objectively reasonable fear on the facts alleged. See MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla. 1990). Respondent claims to fear bias or prejudice on the part of Judge Cueto based on the allegation that he denied her motion for a stay pending an appeal of the Court’s order of vacatur without actually having read her motion for stay.! Under Rule 2.330, such a motion to disqualify is presented to the judge whose disqualification is being sought, and that judge is charged to “determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged.” Fla. R. Jud. Admin. 2,330(f). The rule goes on to provide: “If any motion is legally insufficient, an order denying the motion shall immediately be entered.” Id? Respondent's motion to disqualify should be denied because it is legally insufficient. It is not enough for a party moving for disqualification merely to assert that the party subjectively fears that she will not receive a fair trial or hearing because of claimed prejudice. Rather, the test under Rule 2.330(d)(1) is an objective one: “A determination must be made as to whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and ' In an effort to bolster her motion, Respondent also cites to other rulings and actions of Judge Cueto that were adverse to her positions. All of those instances pre-date the October 4, 2013 hearing on Petitioners’ Motion to Vacate, however, and, accordingly, as Respondent herself acknowledges, those matters are all outside the ten-day time limit for a disqualification motion under Rule 2.330(e). Accordingly, any motion based on those matters would be untimely. 2 Rule 2.330(f) also provides that “[nJo other reason [other than legal insufficiency] for denial shall be stated, and an order of denial shall not take issue with the motion.” 2 BROAD and CASSEL One Biscayne Tower, 21st Floor 2 South Biscayne Blvd. Miami, Florida 33131-1811 305.373.9400Case No.: 13-28368-CA 25 impartial trial.” Livingston v. State, 441 So.2d 1083, 1087 (Fla. 1983) (emphasis added). The Supreme Court has said: The law is well established that the asserted facts must be “reasonably sufficient” to create a “well-founded fear” in the mind of a party that he or she will not receive a fair trial... .. A verified motion for disqualification must contain an actual factual foundation for the alleged fear of prejudice. Fischer v. Knuck, 497 So.2d 240, 242 (Fla. 1986) (citations omitted) (emphasis added). II. The Rulings of a Court are Not Sufficient Grounds for Recusal The factual allegations of Respondent’s motion in this case do not remotely approach the requisite showing of an objective “factual foundation for the alleged fear of prejudice.” Id. As the basis or ground for her alleged “fear”, Respondent relies on the allegation that Judge Cueto denied her motion to stay the vacatur order pending appeal without having read the motion itself. That allegation, even if true, shows no hint of bias or prejudice or basis for inferring bias or prejudice, The cases have repeatedly held that complaints about a court’s rulings are insufficient to require disqualification or recusal. See Barwick v, State, 660 So.2d 685, 692 (Fla. 1995); Lomax v. Reynolds, 119 So.2d 562 (Fla. 3d DCA 2013)3 And if, indeed, the stay motion was denied without Judge Cueto having read it, that would hardly suggest prejudice, for Judge Cueto plainly knew from the opposition brief and proposed order submitted by Petitioners everything that any judge needed to know to rule upon the motion to stay — that is, that the motion was asking for a stay pending appeal of an order that was plainly non-final and non-appealable. The brief and proposed order that Petitioners submitted in opposition to the stay motion informed the * Rule 2.330(a) provides that, if the disqualification is granted, the prior rulings of the disqualified judge “may be reconsidered and vacated or amended by a successor judge... .” Respondent would doubtless welcome the opportunity afforded by a disqualification to “appeal” the non-appealable vacatur order to a successor judge of this Court. 3 BROAD and CASSEL One Biscayne Tower, 21st Floor 2 South Biscayne Blvd. Miami, Florida 33131-1811 305.373.9400Case No.: 13-28368-CA 25 judge that the Respondent’s motion was asking for a stay pending appeal. Because the relevant statute and case law make it abundantly clear that a vacatur order directing a new arbitration hearing is not appealable, nothing that Respondent could possibly have said in support of her motion for stay could have made the slightest difference. Because there could be no appeal, there could be no stay pending appeal. As there is an obvious and logical explanation for denial of the stay motion without actually reading it, the denial of the motion without reading it raises no reasonable inference whatsoever of prejudice or partiality. The alleged facts relied upon for the disqualification motion, accordingly, fail the test for legal sufficiency. The facts alleged are not such that “would place a reasonably prudent person in fear of not receiving a fair and impartial trial” or hearing. Livingston v. State, 441 So.2d at 1087. CONCLUSION The motion fails to show a legally sufficient basis for disqualification under Rule 2.330(d)(1). The judge’s denial of Respondent’s patently meritless stay motion, even if based solely on reading Petitioners’ brief in opposition to the Motion, shows no ground for a reasonable or “well-founded” fear of partiality as required by the decisions of the Florida Supreme Court. Accordingly, the motion should be denied. Respecjfully submitted, le Donner, Esq. AND CASSEL Amy Steele Donner, Esq. Florida Bar No. 184548 4 BROAD and CASSEL One Biscayne Tower, 21st Floor 2 South Biscayne Blvd. Miami, Florida 33131-1811 305.373.9400Case No.: 13-28368-CA 25 ADonner@BroadandCassel.com Ischwartz@broadandcassel.com Attorneys for Petitioners One Biscayne Tower, 21" Floor 2 S. Biscayne Boulevard 2 South Biscayne Boulevard Miami, Florida 33131 Telephone: 305.373.9425 Facsimile: 305.995.6385 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing was sent via email to: to Frank R. Rodriguez, Esq., Andrew V. Tramont, Esq., and Paulino A. Nunez, Esq., Counsel for Respondent, Guerra, & Nunez, 255 Alhambra Circle, Suite 1150, Coral Gables, FL 33134, and Lawrence A. Kellogg, Esq., and Jason Kellogg, Co-Counsel for Respondent, Levine Kellogg Lehman Schneider & Grossman LLP, 201 South Biscayne Boulevard, 2" Floor, Miami Center, Miami, Florida 33131, on this LI lay of October, 2013. 5 BROAD and CASSEL One Biscayne Tower, 21st Floor 2 South Biscayne Blvd. Miami, Florida 33131-1811 305.373.9400