39 Fla. L. Weekly D256c
Judges — Disqualification — Judge erred in ruling on
motions two days before he recused himself on his own initiative where grounds
for recusal were known to court at time of rulings — Relief not available on
appeal, as party is not entitled to have disqualified judge’s orders vacated as
a matter of right — Because party filed timely motion for reconsideration
challenging merits of orders entered by disqualified judge, upon remand
successor judge should grant that motion and reconsider those prior rulings
motions two days before he recused himself on his own initiative where grounds
for recusal were known to court at time of rulings — Relief not available on
appeal, as party is not entitled to have disqualified judge’s orders vacated as
a matter of right — Because party filed timely motion for reconsideration
challenging merits of orders entered by disqualified judge, upon remand
successor judge should grant that motion and reconsider those prior rulings
ROBERT BUCKNER, et al., Appellants, v. JANET COWLING, JERRY COWLING, et al.,
Appellees. 5th District. Case No. 5D13-2971. Opinion filed January 31, 2014. Non
Final Appeal from the Circuit Court for Hernando County, Richard Tombrink, Jr.,
Judge. Counsel: Frank A. Miller, Carl F. Yeich and Susanne M. Suiter of
Caglianone, Miller & Lao, P.A., Brooksville, for Appellants. James R. Spears
of Law Office of James R. Spears, PLLC, Orlando, for Appellees.
Appellees. 5th District. Case No. 5D13-2971. Opinion filed January 31, 2014. Non
Final Appeal from the Circuit Court for Hernando County, Richard Tombrink, Jr.,
Judge. Counsel: Frank A. Miller, Carl F. Yeich and Susanne M. Suiter of
Caglianone, Miller & Lao, P.A., Brooksville, for Appellants. James R. Spears
of Law Office of James R. Spears, PLLC, Orlando, for Appellees.
(PER CURIAM.) Robert Buckner appeals from the trial court’s nonfinal orders
granting Janet and Jerry Cowling’s motion to set aside an order of dismissal and
granting the Cowlings’ motion for extension of time to serve summons and
complaint. Buckner raises two issues on appeal, only one of which merits
discussion. He argues that the trial judge erred in ruling on those two motions,
when, two days later, the judge recused himself on his own initiative. Buckner
contends that the court should not have ruled on the Cowlings’ motions because
the grounds for recusal were known to the court at the time it entered the
orders. Accordingly, he asks this Court to reverse those orders and remand with
instructions to set them aside.
granting Janet and Jerry Cowling’s motion to set aside an order of dismissal and
granting the Cowlings’ motion for extension of time to serve summons and
complaint. Buckner raises two issues on appeal, only one of which merits
discussion. He argues that the trial judge erred in ruling on those two motions,
when, two days later, the judge recused himself on his own initiative. Buckner
contends that the court should not have ruled on the Cowlings’ motions because
the grounds for recusal were known to the court at the time it entered the
orders. Accordingly, he asks this Court to reverse those orders and remand with
instructions to set them aside.
Prior rulings of a disqualified judge may be reconsidered and vacated by a
successor judge upon the filing of a motion for reconsideration. See Fla.
R. Jud. Admin. 2.330(h). Although an order entered by a judge who is later
disqualified is subject to reconsideration by a successor judge, a party is not
entitled to have the order vacated as a matter of right. See
Schlesinger v. Chem. Bank, 707 So. 2d 868, 869 (Fla. 4th DCA 1998);
see also Doe ex rel. Doe v. Publix Supermarkets, 814 So. 2d 1249,
1251 (Fla. 2d DCA 2002) (“Orders entered by a disqualified judge are voidable
not void.” (quoting Schlesinger, 707 So. 2d at 869)). Thus, we cannot
grant Buckner the relief that he seeks on appeal. However, because Buckner filed
a timely motion for reconsideration challenging the merits of the orders entered
by the disqualified judge, upon remand the successor judge should grant that
motion and reconsider those prior rulings.
successor judge upon the filing of a motion for reconsideration. See Fla.
R. Jud. Admin. 2.330(h). Although an order entered by a judge who is later
disqualified is subject to reconsideration by a successor judge, a party is not
entitled to have the order vacated as a matter of right. See
Schlesinger v. Chem. Bank, 707 So. 2d 868, 869 (Fla. 4th DCA 1998);
see also Doe ex rel. Doe v. Publix Supermarkets, 814 So. 2d 1249,
1251 (Fla. 2d DCA 2002) (“Orders entered by a disqualified judge are voidable
not void.” (quoting Schlesinger, 707 So. 2d at 869)). Thus, we cannot
grant Buckner the relief that he seeks on appeal. However, because Buckner filed
a timely motion for reconsideration challenging the merits of the orders entered
by the disqualified judge, upon remand the successor judge should grant that
motion and reconsider those prior rulings.
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. (EVANDER,
COHEN and WALLIS, JJ., concur.)
COHEN and WALLIS, JJ., concur.)
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