Opinion
Case No. 2D03-4425.
Opinion filed April 8, 2005.
Appeal from the Circuit Court for Sarasota County, Andrew D. Owens, Jr., Judge.
Andrzej Madura, pro se.
Anna Dolinska-Madura, pro se.
Jason A. Lessinger and Mark D. Dungan of Icard, Merrill, Cullis, Timm, Furen Ginsburg, P.A., Sarasota, for Appellee.
Andrzej Madura and Anna Dolinska Madura filed a notice of appeal regarding a series of orders entered by the trial court, including an order dismissing Mr. Madura's complaint against Peter Turosienski and an order denying Mr. and Mrs. Madura's motion to disqualify the trial judge. The order dismissing Mr. Madura's complaint is not a final appealable order in light of the compulsory counterclaim that remains pending involving these parties and the transaction at issue. See S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97 (Fla. 1974); Bay Gulf Laundry Equip. Co. v. Chateau Tower, Inc., 484 So. 2d 615, 616 (Fla. 2d DCA 1985); Pellegrino v. Horwitz, 642 So. 2d 124, 125 (Fla. 4th DCA 1994). Further, we lack jurisdiction to review the order as a nonfinal appeal, and there is no basis to review it by petition for writ of certiorari. Similarly, we lack jurisdiction to review the nonfinal order on the amended motion for protective order and the nonfinal order denying Mr. and Mrs. Madura's motion to dismiss Mr. Turosienski's counterclaim.
As to the order denying the Maduras' motion to disqualify the trial judge, we treat the notice of appeal as a petition for writ of prohibition and grant the petition. The Maduras' pro se motion to disqualify complied with the technical requirements of Florida Rule of Judicial Administration 2.160. Neither the trial judge nor this court may pass upon the truth of the allegations in the motion. See Knarich v. State, 866 So. 2d 165, 167 (Fla. 2d DCA 2004). In the motion, the Maduras alleged that shortly after the trial judge was assigned to this case, they received notification from his judicial assistant that they were prohibited from any further contact whatsoever with the judge or his staff, even though they were not represented by counsel. We conclude this fact, which we must accept as true for the purposes of this review, would prompt a reasonably prudent person to fear that he or she could not get a fair and impartial trial from the judge.
We note that the Maduras, who are representing themselves, have engaged in litigation tactics that would try the patience of any judge. Certainly a trial judge is permitted to take steps, within the bounds of due process, to prevent abuses of the judicial process. Our record does not establish precisely what occurred between the Maduras and the judge or his judicial assistant, nor is it clear what the presiding judge did as a result of those interactions. Our opinion is therefore not a comment on those matters. We simply conclude that the motion to disqualify the trial judge was legally sufficient and required recusal.
Appeal dismissed in part, treated in part as petition for writ of prohibition; petition for writ of prohibition granted.
FULMER and WHATLEY, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.