Opinion
No. 1D19-1575
02-10-2020
John F. PULLINS, Petitioner, v. David G. CANDELARIA, an individual, Eddie E. Farah, an individual, Charlie E. Farah, an individual, and Farah and Farah P.A., a Florida Law Firm, Respondents.
John F. Pullins, pro se, Petitioner. Kimberly Kanoff Berman of Marshall Dennehey Warner Coleman & Goggin, Fort Lauderdale; Michael J. Obringer of Marshall Dennehey Warner Coleman & Goggin, Jacksonville, for Respondents.
John F. Pullins, pro se, Petitioner.
Kimberly Kanoff Berman of Marshall Dennehey Warner Coleman & Goggin, Fort Lauderdale; Michael J. Obringer of Marshall Dennehey Warner Coleman & Goggin, Jacksonville, for Respondents.
Per Curiam.
This petition for writ of prohibition seeks to disqualify the trial judge in a civil matter. Because Petitioner, John F. Pullins, had adequate remedies at law and did not attempt to avail himself of those remedies, we deny the petition.
Pullins, then plaintiff, sued for legal malpractice. On August 28, 2018, the trial judge granted the defendant's motion to dismiss and dismissed the suit with prejudice. That order was a final appealable order. See Fla. R. App. P. 9.030(b)(1)(A). Pullins then filed a motion to vacate the order of dismissal and an affidavit for disqualification of the trial judge. See § 38.10, Fla. Stat. (2018). The motion to vacate the order of dismissal was in the nature of a motion for rehearing or to alter or amend the order of dismissal and therefore likely tolled the time for rendition of the order of dismissal for purpose of appeal. See Fla. R. App. P. 9.020(h)(1)(B) & (D).
Pullins's affidavit for disqualification of the trial judge was not ruled upon within the requisite 30 days, so it was deemed to have been granted under rule 2.330(j), Florida Rules of Judicial Administration. Schisler v. State , 958 So. 2d 503, 505 (Fla. 3d DCA 2007) ("The trial court's failure to rule on [movant's] motion [for disqualification] within 30 days of its service therefore entitles [movant] to an order directing the clerk of the court to reassign this case."). However, Pullins did not "seek an order from the court directing the clerk to reassign the case" as permitted by rule 2.330(j), which would have provided him with an adequate legal remedy.
Additionally, Pullins did not seek to invoke our jurisdiction at that time by a petition for writ of prohibition or mandamus.
On December 4, 2018, the trial judge entered an order denying the motion to vacate the order of dismissal. Pullins did not file a notice of appeal from that order. See Fla. R. App. P. 9.110(b) (requiring a notice of appeal from a final order to be filed "within 30 days of rendition of the order to be reviewed"). On December 4, 2018, the trial judge also entered an untimely order denying the affidavit of disqualification.
Thereafter, Pullins again moved to disqualify the trial judge and moved twice to vacate various orders. On April 11, 2019, the trial judge ordered that the file be closed, stating that the judge no longer had jurisdiction over the case following the December 4, 2018, order denying the motion to vacate. On April 30, 2019, Pullins, then appellant, filed a notice of appeal from the order closing the file. We directed Pullins to show cause why the order closing the file was an appealable order and after receiving a response treated the appeal as seeking a writ of prohibition. See Fla. R. App. P. 9.040(c) ("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought ...").
"Prohibition will be invoked only in emergency cases to forestall an impending present injury where person seeking writ has no other appropriate and adequate legal remedy." English v. McCrary , 348 So. 2d 293, 297 (Fla. 1977). Pullins had an adequate remedy at law after the trial judge did not rule on the affidavit of disqualification within 30 days and also after the December 4, 2018, order denying the motion to vacate issued. He could have sought the assignment of a new judge, or he could have appealed the December 4th order which likely had delayed rendition of the August 28, 2018, order of dismissal with prejudice. "The writ of prohibition is never allowed to usurp the functions of an appeal." State, ex rel. B. F. Goodrich Co. v. Trammell , 140 Fla. 500, 192 So. 175, 176 (1939) ; see also Benton v. Circuit Court for the Second Judicial Circuit , 382 So. 2d 753 (Fla. 1st DCA 1980).
The April 30, 2019, notice of appeal was clearly untimely. Pullins sat on his rights, and we should not use our extraordinary writ power when remedies at law were available. See Mandico v. Taos Const., Inc., 605 So. 2d 850, 854 (Fla. 1992) (holding that a writ of prohibition "is very narrow in scope and operation" and should be issued only "where there is no other appropriate and adequate legal remedy"); Florida Dep't of Health v. TropiFlora, LLC, 265 So. 3d 673, 675 (Fla. 1st DCA 2019).
DENIED .
Makar, Bilbrey, and Kelsey, JJ., concur.