Opinion
Case No. 4D02-4710
Opinion filed February 5, 2003
Petition for writ of prohibition to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Leroy H. Moe and J. Leonard Fleet, Judges; L.T. Case No. 02-14000 13.
Rosemary H. Hayes and Tina L. Caraballo of Hayes Associates, Orlando for petitioner.
Christine M. Duignan and E. Bruce Johnson of Johnson, Anselmo, Murdoch, Burke George, P.A., Fort Lauderdale, for respondents.
Petitioner, Southern Coatings, Inc., the plaintiff below, seeks relief barring Broward County Circuit Court Judge Leroy H. Moe from continuing to preside over a hearing set on defendants' entitlement to and award of sanctions against petitioner's attorney. Previously Judge Moe hadgranted petitioner's motion for disqualification as to the case-in-chief. We grant the petition.
Florida Rule of Judicial Administration 2.160(f) provides in pertinent part that "[i]f the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action") (emphasis added). It was improper for the trial court to retain jurisdiction, without the parties' agreement, to prospectively hold a hearing as to one issue in the case after disqualifying himself as to the balance of the case. See CH2M Hill S.E., Inc. v. Pinellas County, 598 So.2d 85, 88 (Fla. 2d DCA 1992) (holding that where the trial court proceeded in the case for several days prior to denying motion for disqualification presented in midst of trial, the judge's actions exceeded the proper scope of his inquiry, it was error for him to continue in the case, and a new trial was required); Airborne Cable Television, Inc. v. Storer Cable TV of Fla., Inc., 596 So.2d 117, 117-18 (Fla. 2d DCA 1992) (holding that the trial court should not have ruled on pending motion for attorney's fees after defendant filed motion for disqualification, which was before judge had indicated how he would determine fee issue; the subsequent entry of fee order could not be deemed a ministerial act fulfilling earlier ruling);State ex rel. Cobb v. Bailey, 349 So.2d 849, 850 (Fla. 1st DCA 1977) (holding that judge who recused himself in dissolution of marriage proceeding could not thereafter act immediately on imminent questions of temporary alimony and child support, and temporary use and possession of household items and car; thus he could not proceed to hear and determine nearly four weeks later, wife's subsequent motion for husband's alleged disobedience of temporary order, as recusal ended judge's power to take part in disposition of the case). Cf. Fischer v. Knuck, 497 So.2d 240 (Fla. 1986) (holding trial court retained authority to reduce order to writing subsequent to filing of motion for disqualification, where matters were tried and orally ruled upon prior to filing of motion);Coastal Petroleum Co. v. Mobil Oil Corp., 378 So.2d 336, 337 (Fla. 1st DCA 1980) (holding that trial judge who had recused himself as to issues severed and not yet tried had the authority to enter final judgment on certain issues when he specifically reserved jurisdiction to rule on those matters previously tried).
The petition for writ of prohibition is granted and the motion in question should be heard instead by the successor judge who is handling the balance of the case.
FARMER, SHAHOOD and GROSS, JJ., concur.