Preview
Filing # 50923430 E-Filed 01/09/2017 01:02:17 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO. 13 - 18039 CA 01
SOUTH DADE LANDSCAPING, INC.;
And JOBRIZ BUILDERS CORP,
Plaintiffs
v.
ESTEBAN L. SUAREZ; ALFREDO
BRIZUELA; and JEAN DURET
Defendants
DEFENDANTS’ MOTION FOR DENIAL
OF TAYLOR’S REQUEST FOR RECONSIDERATION
The defendants, by undersigned counsel, move the court for an order denying Neil G.
Taylor’s “Motion For Reconsideration” pursuant to Rule 2.330(h) Fla. R. Jud. Admin.' For
grounds, the defendants will show the court that the motion fails to show that the order
granting Fla. Stat. 57.105 sanctions against Taylor was tainted with prejudice and that the
judge was therefore “disqualified” when he entered the order. Rath v. Network Mkt, L.C.,
944 So. 2d 485, 487 (Fla. 4" DCA 2006), rev. denied 958 So. 2d 920 (Fla. 2007).
“The purpose of reconsideration [under Rule 2.330(h) following recusal] is to
remove the taint of prejudice where rulings might be perceived as so tainted.
It should not be used merely to obtain “a second bite at the apple” with respect
to prior judicial rulings... [fany of the rulings made by the recused judge are
in error, then relief may be available on appeal from any final judgment.”
'Rule 2.330(h) states: “Prior factual or legal rulings by a disqualified judge may be
reconsidered and vacated by a successor judge based upon a motion for reconsideration,
which must be filed within 20 days...” (Emphasis supplied).Argument
On May 13, 2013, Taylor filed this action on behalf of the plaintiffs against the
individual owners of Jasco Construction Company seeking to pierce the corporate veil and
to impose personal liability on them for the debts of that corporation. See Dania Jai-Alai
Patace, Ine. v. Sykes, 450 So. 2d 1114 (Fla. 1984), The defendants immediately served the
plaintiffs with a request to produce evidence of their allegations but received none. The
plaintiffs later shamelessly admitted in deposition that they had no evidence to support their
claims and ultimately suffered a summary judgment on December 3, 2015.
The court then granted the defendants’ motion for sanctions against Taylor and the
plaintiffs on April 13, 2016, with the amount to be determined at a later date. Jorge C.
Borron, Esq. entered his appearance on behalf of Taylor a few days before the hearing. The
motion for sanctions was granted following a fully briefed and lengthy evidentiary hearing.
Neither Taylor, nor the plaintiffs, requested reconsideration of that order on its merits!
More than six months later, on October 26, 2016, the parties appeared for the
hearing to determine the amount of the sanctions at which time the judge sua sponte recused
himself at the start of the hearing because, “a few weeks ago,” he had asked Mr. Borron for
advice concerning his own homeowner’s insurance but was immediately “stopped” by Mr.
Borron reminding him that he had a case pending before him and, therefore, “nothing was
spoken.”THE COURT: Okay, [Il tell you what. I totally forgot that Borron was
in this case. I guess he came in the last minute. For whatever reason I forgot
he was in this case.
[called Borron a few weeks ago, a couple of weeks ago for purposes
of advice regarding my homeowner’s insurance, okay? It was, as a matter of
fact, very short-lived because he reminded me, and I stopped... And even
though nothing was spoken, it was just an advice asked because] know Borron
is a - specializes in insurance cases and so on and so forth... And so lam going
to voluntarily recuse myself of this case.
(Entire transcript is at Exhibit A).
Neither Mr. Borron, nor Taylor, nor the plaintiffs, nor the defendants, ever made a
suggestion for disqualification to the judge as there was absolutely no grounds for doing so.
More importantly, the judge’s brief and innocent contact with Taylor’s counsel did not
involve the case and could not logically impugn the ruling that the judge made months
earlier. Taylor does not, and clearly cannot, make the claim that it did. He simply disagrees
with the merits of the ruling which is not grounds for reconsideration under Rule 2.330(h).
Rath,v. Network Mkt. L.C., supra.
In support of his motion, Taylor cites Buckner v. Cowling, 135 So.2d 383 (Fla. 5"
DCA 2014). There, the court explicitly rejected the argument that reconsideration was
required by Rule 2.330(h) following recusal even when “the grounds for recusal were
known to the court at the time it entered the orders.” Jd. at 383 (emphasis supplied). The
court did allow a reconsideration because that appellant “filed a timely motion for
reconsideration challenging the merits of the orders.” Jd. In contrast, Taylor did not timely
seek reconsideration of the order on its merits! Instead, six months later, he improperly
attempts to use Rule 2.330(h) as a procedural vehicle to try to re-litigate the merits of the
order with a different judge. That, he cannot do.In sum, the order was entered months before the brief and innocent contact that the
judge had with Taylor’s own counsel and which was completely unconnected with any
possible taint of prejudice regarding the entry of that order. Therefore, the order was not
entered by a “disqualified judge” under the plain language of Rule 2.330(h). As such, the
motion for reconsideration pursuant to Rule 2.330(h) must be denied as no taint of prejudice
in the entry of the order has been shown as is required. Rath,v. Network Mét. L.C., supra.
WHEREFORE, it is prayed that this motion be granted.
Joseph J. Portuondo, Esq.
110 Merrick Way
Suite 3-B
Coral Gables, Florida 33134
PH: (305) 666 - 6640
Email: jip@portuondolaw.com
By: Joseph J. Portuondo-
Joseph J. Portuondo, Esq.
Fla. Bar No. 310034
Certificate of Service
| certify that the foregoing has been submitted to the Court’s Eportal system for
service to all parties on January 9, 2017.
By:J J.
Joseph J. Portuondo, Esq.EXHIBIT A
EXHIBIT APage 7
WN THE CIRCUIT COURT OF THE ELEVENTH
JUDICIAL CIRCUIT IN AND FOR,
MIAMEDADE COUNTY. FLORIDA
CASE NG. 13-18039 CA
SOUTH DADE LANDSCAPING, INC:
and JOBRIZ BUILDERS
CORPORATION,
Plaintitl,
ESTEBAN L, SUAREZ, et at
Defendants.
‘Transecipt of Proceedings held before the
Honorable ANTONIO MARIN at the Miami-Dade County
Courthouse, 73 West Flagler Sirect, Miami, Florida,
af 9:30 am, on Wednesday, October 26, 2018,
reported by MAURICIO MENDEZ, Court Reporter and
Notary Public in and for the State of Florida.
Le AD UR Se Le Re
bet >
Ep ie sd
fet poh Get tet he pb fed ak ft pet
PG Bb
(Thereupon, the following
proceedings were had:}
THE COURT: Okay. [i tell you what. I
tatally forgot that Borron was in this case. |
guess he came in the at last minute. For
whatever reason | forgot that he was in this
case.
I called Borron a few weeks ago, a couple
of weeks ago for purposes of advice regarding
my homeowners insurances, okay? It was, as a
matter of fact, very short-lived because he
reminded me, and I stopped. I was thinking on
really bailing out at the beginning. Then f
said ] want to wait to give you guys an
opportunity to opine about it, and because -- 1
mean, it's kind of clear that my rulings in
this case -- it really doesn't show any
predilection for the other side. Eve been
pretty much straightforward down the middie,
And so, whether or not -- Tsaid, well, Pm
going to announce what I perceive to be a
conflict. And, even though nothing was spoken,
ii was just an advice asked because I know
Borron is a -- specializes in insurance cases
and so on and so forth.
APPEARANCES
JORGE C. BORRON, LLC
By: JORGE BORRON, ESQ.
90] Ponce De Leon Boulevard, Suite 205
Coral Gates, Florida 33134
On bebalf of the Plaintiff
JOSEPH § PORTUONDO, ESQ.
By: JOSEPH 1. PORTUONDO, ESQ.
£80 Merrick Way, Suite 3-B
Coral Gables, Florida 33134
On behalf of the Defendants
ALSG PRESENT
SENT
Neil Tayler, Plaintiff
tas NS Be
i
VP OCS YAY
he
a3
14
is
16
17
18
13
20
21
22
23
24
25
Nevertheless, | thought it wasn't
appropriate after [ thought about it. And sol
wanted to bring it before you folks.
Mr. Portuonde may or may not have an
objection regarding that and would not ask me
fo recuse myself, and he may not have a problem
with that. Sonner (phonetic) here may have a
problem saying that | have to go beyond the
call of duty in order to appear to be
objective, so I'm in a situation -- it's a
lose/iose situation for me.
i think the best thing for me to do at
this time, whether Mr. Portuondo docsn't
have -- would not have a problem, or the
Plaintiff would sot have a problem, I have a
problem.
So even though nothing happened, just the
issue of transparency to me is primordial. To
me, it's the most important thing. [t's not me
or anything else other than the dignity and the
sanctity of the office. And so lam going to
voluntarily recuse myself of this case.
Bo you want to say something,
Mr. Portuondo? I want to give you guys an
opportunity to --
1 (Pages 1 te 4}
National Reporting Service
{305)
Elactronisaily signed by Mauricio Mendes (804-242-827-22 15}
S73-7295
QISSHTA 982 ho dc-BlCS BH4AROSECi
a
Fag:
MR. PORTUONDO: Just to clarify, you are
Rage 7
because I love you guys, And [ really like to
2 saying that you feel you have a conflict in # practice before you folks, but --
3 favor of Mr. Borron because of this 3 MR. PORTUONDO: Judge, when did this
a conversation that you had with him? a conversation take place?
5 THE COURT: H's a matter of the THE COURT: I don't remember. It was a
a appearance of impropriety. couple of weeks ago or something like that,
7 MR. PORTUONDO: But it's in favor of You know what, I thought that | wanted to
§ Mr, Borron because you consulted him about give you a reason why, not just to come up with
3 legal a-- fill up an order or do an order without a
10 THE COURT: Weil, fm not saying in favor face or without a background. And I felt that
Li because I've pretty much been straightforward. it was appropriate, And you folks deserve the
Re Itis ~ I don't think you have a complaint reason why because you're here today. And, you
ft bok jest
ma us
about my rulings in this particular case, I've
been pretty much down the line. And you may
not have a problem, and you may not find that
that is inappropriate --
MR, PORTUONDO: Let me just interrupt you
for one second, Judge. I've had this issue
before, it doesn't matter whether you have a
bak fk fon ed tet fet bat
CO Sb ne Le te me ca mo At oh ot
know, I feel apologetic about it.
MR. TAYLOR: There's nothing about this
case that's worth questioning the Court's
integrity.
THE COURT: So, if you guys want to adda
anything, Mr. Portuonde --
MR. PORTUONDO: We accept your recusal.
conflict or not, A judge can voluntarily 2 Even if we didn't want to, we don't have a
recuse himself, whether he has a conflict or ah choice, so we accept that.
not, There's nothing nobody can do to you or 2 THE COURT: Well, that's what [ said, that
force you to take s case. So it's a done deal. ga even if you don't have a problem -- because you
THE COURT: No, but, you know, 24 know who Tam, and you folks know who I am.
Mr, Portuondo ah And it’s impossible for me to act in a way that
Bage 8
i MR. BORRON: He just wants to explain, you 4 is not ethical. t's just not me. So you know
2 know, what the reason is, as apposed te so x where I'm coming from. It's just a matter of
3 leaving us -- 3 doing the right thing.
4 THE COURT, Because you know what, I've 4 MR. PORTUONDO: I got it,
& known you for a long, long time. 3 MR. BORRON: Thank you, your Honor,
6 MR. TAYLOR: Actually, Judge, it's Taylor, 6 THE COURT: Thank you,
2 not Sonner. I'm a lot better looking. f MR. TAYLOR: Thank you.
8 THE COURT: I'm sorry. You know what, 8 THE COURT: As a matter of fact, I'm going
3 I've known you for a long time. I've known you 9 to tell Paula to do an order for me.
10 forever. 16 (Thereupon, the proceedings were
ik Borron, I don't know. He used to take me iL concluded at 9:44 a.m.)
12 to the park for lithe walks, and my mother 1S
allowed that. So I know you guys for a long, 13
fong time. You know that I've been in the 14
1 trenches for many, many years, I know, you 15
16 know, all the angles. And, to me, it is 16
uy important to be transparent. 17
18 Twaat to look at Mr. Portuondo's face and 18
19 Mr. Taylor's face and Mr. Barron's face, And 19
20 you know what, Judge Marin -- in an abundance RG
21 of caution and trying to avoid any future ah
22 issues that may or may not inure to the benefit 22
23 of the -- adversely to one of the twa parties, 23
24 {think it's best -~- [think it’s best 24
25 practice for me at this time regretfully so 25
2 (Pages 5 to 9)
National Reporting Service
(305) 373-7295
Electronically signed by Mauricto Mendax (801-242-827-2215) (0135817 4-(962-4a36-99c8-64I4480Sbe1CERTIFICATE OF REPOR:
eon
STATE OF FLORIDA
3.
COUNTY OF MIAMEDADE ¢
ae
1, MAURICIO MENDEZ, Court Reporter, do herby
cenify dat E eporied stenographically the
proceedings in the above-siyled cause belie the
PONIO MARIN at the time and place a6 set
‘ing pages. numbered from 1 to
9, inclusive, constitute a true and comeet recent,
Yfirher certify that [sm not an attomey or
Th counsel of any of the panies, nor related to any of
the parties, nor financially intenssted in the
action,
WHINESS my hand and Official Seal to the “y
af biami, County of Miaeii-Dade,
November, 2016.
Bb i tpt
sence Coun Reporter
National Reporting Service
(305) 373-7295
Elactronicatly signed by Mauricio Mendez (601-242-827-2215) OUISHT SABI Ae 3e-B8c8-GO8I4 AIOE