ROLLE V. BIRKEN

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ROLLE V. BIRKEN

State: Florida

Court: Florida Third District Court

Docket No: 07-3251

Case Date: 04/09/2008

Preview:Third District Court of Appeal
State of Florida, January Term, A.D. 2008
Opinion filed April 9, 2008. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D07-3251 Lower Tribunal No. 01-14439 ________________

Shaniah Rolle, a minor by and through her natural parent and guardian, Queen Seriah Azulla Dabrio, and Queen Seriah Azulla Dabrio, individually,
Petitioners, vs.

Gary A. Birken, M.D., South Florida Pediatric Surgeons, P.A., etc., et al.,
Respondents.

A case of original jurisdiction--Prohibition. Burlington & Rockenbach and Philip M. Burlington (West Palm Beach); Sheldon J. Schlesinger and Scott M. Newmark (Fort Lauderdale), for petitioners. Stephens, Lynn, Klein, Lacava, Hoffman & Puya and Roberta G. Mandel; R.A. Cuevas, Jr., Miami-Dade County Attorney, and Eric K. Gressman, Assistant County Attorney; Abadin, Jaramillo, Cook, and Kimberly A. Cook and Erin E. Dardis, for respondents. Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.

SUAREZ, J. Plaintiffs petition for a writ of prohibition requiring the trial judge to disqualify himself from proceeding with this cause of action after comments he made following the filing of a Petition for Writ of Mandamus requesting that the cause be set for trial. We deny the petition. The facts and reasons given for disqualification of a trial court judge must be such that the actions of the trial court judge show personal bias or prejudice. See Levine v. State, 650 So. 2d 666 (Fla. 4th DCA 1995). The remarks of the trial court judge in the present case fail to demonstrate personal bias or prejudice and cannot be interpreted as creating in the petitioners an objectively reasonable wellgrounded fear that the petitioners will not receive a fair and impartial trial. See Rodgers v. State, 948 So. 2d 655, 673 (Fla. 2006) (holding that a motion to disqualify a judge is legally insufficient if it does not demonstrate an objectively reasonable, well-grounded fear of not receiving a fair and impartial trial), cert. denied, 128 S. Ct. 59 (2007). The trial judge's pro se response filed in this Court is not grounds for disqualification. The trial judge does not attempt to dispute the basis of the

charges of disqualification, try to explain his actions or pass on the truth as stated, any of which could be grounds for disqualification. Scholz v. Hauser, 657 So. 2d 950, 951 (Fla. 5th DCA 1995). All the trial court judge attempts to do in the pro se

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response is explain the record and what had transpired in this action. Kowalski v. Boyles, 557 So. 2d 885, 887 (Fla. 5th DCA 1990) (holding that in ruling on the legal sufficiency of a motion to disqualify, the judge may explain the status of the record). Unlike the facts in Rollins v. Baker, 683 So. 2d 1138 (Fla. 5th DCA 1996), relied upon by the dissent, there was no ex-parte communication here demonstrating bias on the part of the trial judge, and the trial judge did not "pass on the truth of the facts asserted" or comment on facts not alleged in the motion to disqualify. Rollins, 683 So. 2d at 1140. Likewise, the trial judge's response to the Petition for Writ of Prohibition does not argue that the allegations in the Motion to Disqualify are false--which would put him in an adversarial position of attempting to refute charges of partiality. See Hill v. Feder, 564 So. 2d 609 (Fla. 3d DCA 1990). The facts here are more analogous to the case of Nassetta v. Kaplan, 557 So. 2d 919 (Fla. 4th DCA 1990), where, in response to a motion to reduce bail, the trial judge's comment, that he did not care whether the lawyer, charged with fraud and grand theft, got out of jail, did not require recusal. In ruling on a motion for disqualification, the Fourth District held that the trial judge's "gratuitous remarks" did not require recusal. See Nassetta, 557 So. 2d at 920; see also Benson v. Tharpe, 685 So. 2d 1363, 1364 (Fla. 2d DCA 1996) (holding that judge's comment

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that his "hands were tied" did not establish that he was predisposed to impose adult sanctions for juveniles, but meant that his rulings were contingent upon a decision by the appellate court). Likewise, the remarks of the trial judge here, "I'm not

going to be threatened" and "I don't care what the Third District does with this case," do not require disqualification. The first is a gratuitous comment showing the judge's attempt to remain neutral, and the second indicates that he will abide by a decision from this Court directing him on whether to set the case for trial.1 Neither comment is grounds for the granting of a petition for writ of prohibition. The trial judge's comments must be read in context with the rest of the colloquy which took place at a hearing after the plaintiffs had filed their Petition for Writ of Mandamus, and which, apparently, were not objected to by plaintiffs. In fact, plaintiffs appreciated the effort the trial judge made to accommodate the plaintiffs in scheduling the expert's deposition. 2

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The Petition for Writ of Mandamus was granted on January 9, 2008. The pertinent context of the hearing is as follows: THE COURT: When is it scheduled for? MR. NEWMARK: No, no, it's not rescheduled. MS. COOK: It is. I gave them a date in January. MR. NEWMARK: She gave me a date in January of '08, three months down the line. It's unacceptable. I'm not setting it in January '08. THE COURT: Three months down the line? MR. NEWMARK: Right, from when it was set. THE COURT: Okay. When

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