HANI N. JADA vs NANCY C. HARRISON, ESQUIRE, P.L. AND NANCY C. HARRISON, ESQUIRE

• Court: District Court of Appeal of Florida
• Decided: August 11, 2023
• Docket: 23-0535
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

HANI N. JADA,

Petitioner,

v. Case No. 5D23-535 LT Case No. 2022-CA-002130

NANCY C. HARRISON, ESQUIRE, P.L. AND NANCY C. HARRISON, ESQUIRE,

Respondents.

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Opinion filed August 11, 2023

Petition for Writ of Prohibition, Michael S. Sharrit, Respondent Judge.

Hani N. Jada, Jacksonville, Pro se.

Paul M. Eakin, of The Law Office of Nancy C. Harrison, Esq., P.L., Atlantic Beach, for Respondents.

WALLIS, J.

Petitioner, Hani N. Jada, seeks a writ of prohibition following the denial

of his second motion to disqualify the presiding judge, wherein he alleged that the judge commented on the allegations of bias contained within the first

motion to disqualify. “A writ of prohibition is the proper procedure for

appellate review to test the validity of a motion to disqualify.” Time Warner

Ent. Co. v. Baker, 647 So. 2d 1070, 1071 (Fla. 5th DCA 1994).

Florida Rule of General Practice and Judicial Administration 2.330(h)

clearly informs a trial judge against whom an initial motion to disqualify is

filed that he “may determine only the legal sufficiency of the motion and shall

not pass on the truth of the facts alleged.” The same rule further explains

that “[n]o other reason for denial shall be stated, and an order of denial shall

not take issue with the motion.” Fla. R. Gen. Prac. & Jud. Admin. 2.330(h).

The Florida Supreme Court has provided additional guidance by

stating that:

Regardless of whether respondent ruled correctly in denying the motion for disqualification as legally insufficient, our rules clearly provide, and we have repeatedly held, that a judge who is presented with a motion for his disqualification “shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification.” When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification.

Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978) (Internal citations omitted).

2 Furthermore, while a judge may “explain the status of the record” when

denying a motion to disqualify, if the trial court “comments on the validity or

truthfulness of the motion’s allegations of bias, prejudice, or partiality, the

judge creates an independent ground for disqualification.” Pilkington v.

Pilkington, 182 So. 3d 776, 779 (Fla. 5th DCA 2015).

Here, the court’s order denying the first motion went beyond merely

determining the legal sufficiency of the motion or explaining “the status of the

record,” and instead “took issue with the motion.” Fla. R. Gen. Prac. & Jud.

Admin. 2.330(h). Thus, the trial court’s order on the first motion violated rule

2.330(h) and created an independent basis for disqualification. Accordingly,

we grant the petition for writ of prohibition.

PROHIBITION GRANTED.

EISNAUGLE, J., concurs. SOUD, J., concurs, with opinion.

3 Case No. 5D23-0535 LT Case No. 2022-CA-002130

SOUD, J., concurring

Under existing Florida law, I am bound to concur with the Court’s

granting of this petition. To be clear, however, there is utterly nothing in the

record before us that establishes any reasonable basis to suggest the

respected trial judge was biased or partial.

The first motion to disqualify filed in the case under review was due to

be denied because it was legally insufficient. Indeed, the record makes

clear that the conclusory, speculative first motion to disqualify is fraught

with conspiratorial misunderstandings of legal proceedings and

determinations.

Nonetheless, for the reasons set forth in this Court’s opinion, and

given binding precedent, the petition sub judice must be granted—even if

regrettably—because the trial court’s order denying the first motion to

disqualify did something more than simply declare the motion’s legal

insufficiency when it commented on certain assertions within the motion.

As such, this provided an independent and legally sufficient ground for

disqualification as raised in Petitioner’s second motion to disqualify.

It cannot be reiterated too strongly to the esteemed trial judges in this

State that, when denying motions to disqualify, less is truly more. 4