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  • SOUTH DADE LANDSCAPING INC VS SUAREZ, ESTEBAN L Equitable Relief document preview
  • SOUTH DADE LANDSCAPING INC VS SUAREZ, ESTEBAN L Equitable Relief document preview
  • SOUTH DADE LANDSCAPING INC VS SUAREZ, ESTEBAN L Equitable Relief document preview
  • SOUTH DADE LANDSCAPING INC VS SUAREZ, ESTEBAN L Equitable Relief document preview
  • SOUTH DADE LANDSCAPING INC VS SUAREZ, ESTEBAN L Equitable Relief document preview
  • SOUTH DADE LANDSCAPING INC VS SUAREZ, ESTEBAN L Equitable Relief document preview
  • SOUTH DADE LANDSCAPING INC VS SUAREZ, ESTEBAN L Equitable Relief document preview
  • SOUTH DADE LANDSCAPING INC VS SUAREZ, ESTEBAN L Equitable Relief document preview
						
                                

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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