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JACQUELINE COUCH,
v. Case No.:
Respondents.
________________________/
counsel, petitions this Court for a Writ of Prohibition, precluding the Honorable W.
Douglas Baird (“the Judge”) from presiding over Case No. 09-19743-CI-05,
currently pending in the Circuit Court of the Sixth Judicial Circuit in and for
The Judge denied that motion. This Court has original jurisdiction under
Judge from presiding over the Case and directing that the Case be re-assigned to a
randomly-assigned judge.
OVERVIEW
motion to dismiss filed by Petitioner without a hearing and without even reading
the motion. Then, when Petitioner’s undersigned counsel expressed concern with
the Judge’s conduct, the Judge represented that he had read the motion when, in
fact, he had not. Caught in this misrepresentation, and told a motion to disqualify
would be forthcoming, the Judge could only say “do what you need to do.”
fear she would not receive a fair hearing or trial before the Judge. Her Motion to
Disqualify Judge was legally sufficient and should have been granted.
FACTS
5. The facts, as set forth in the Motion to Disqualify Judge, are set forth
8. On September 15, 2010, upon realizing this case was assigned to the
Judge (the only judge in Pinellas County who denies motions to dismiss in
in written form to clarify the arguments prior to the Judge ruling on them without a
hearing.
10. Couch complied with the Judge’s Order, as she filed a Reply and
Also, the Order contained lengthy rulings and legal citations on issues that were
something that Defendant did not argue at all). Hence, it seemed clear the Judge
denied the Amended Motion to Dismiss without a hearing and without reviewing
the document.
13. It seemed clear the Amended Motion to Dismiss had not been
to Dismiss. Essentially, Defendant argued that it was unfair for the Judge to
require her to Answer when her Amended Motion to Dismiss had never been heard
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and the Court was not even aware it had been filed.
14. On May 4, 2011, the Judge presided over a hearing on the Motion to
Vacate. During the hearing, Couch’s undersigned counsel argued that the Order
particular, Couch argued that it was patently unfair and a violation of due process
for the Motion to Dismiss to be denied when the Judge never had a hearing on the
Amended Motion to Dismiss and never even reviewed the content thereof.
Couch’s counsel also noted that the Order contained citations to arguments that
were not contained in the Amended Motion to Dismiss, so it could not have been
court, that the Order may have been “inartfully” drafted but that the Judge had
reviewed the Amended Motion to Dismiss prior to entering the Order and intended
to deny it.
16. The undersigned was, respectfully, quite upset. After all, the Judge
could not have reviewed the Amended Motion to Dismiss because, for unknown
reasons, it had not been filed.1 As such, respectfully, the Judge had been caught in,
1
The undersigned has seen many instances of documents being inadvertently
misfiled by clerks, presumably a result of the massive volume of cases with which
they are dealing.
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the undersigned told the Judge words to the effect of “respectfully, Judge, you
couldn’t have reviewed the Amended Motion to Dismiss because it had not even
been filed.”
17. In response, the Judge looked at the Court file and said “here it is,” or
words to that effect, pointing to the Amended Motion to Dismiss. However, the
undersigned immediately told the Judge that the copy of the Amended Motion to
Dismiss that he was looking at was attached to the Motion to Vacate, which was
filed after the Order was entered. It was and is clear the Amended Motion to
Dismiss had not been filed as of the date of the Order denying it.
18. The Judge then said words to the effect of “How am I supposed to rule
responded “that’s the point, Judge. The Amended Motion to Dismiss couldn’t and
shouldn’t have been denied when you did not even know about it.”
19. Unfortunately, by that point, it was clear the Judge had prejudged the
Amended Motion to Dismiss and was no longer neutral and detached. After all,
the Judge misrepresented to the undersigned that he had reviewed the Amended
Motion to Dismiss and intended to deny it (despite the “inartfully” drafted Order)
when he necessarily could not have done those things because the Amended
Motion to Dismiss was not even in the Court file and there had been no hearing.
As such, the undersigned made an ore tenus motion to disqualify, then asked for a
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continuance to file a written motion to disqualify. In response, the Judge said only
20. Tellingly, at no point did the Judge quibble with the undersigned’s
indications that the Court had ruled on the Amended Motion to Dismiss without
21. On May 6, 2011, Couch timely filed her Motion to Disqualify Judge.
22. On May 11, 2011, the Judge entered an Order denying that Motion.
ARGUMENT
filing the Motion on May 6, 2011, just two days after learning of the facts that gave
rise to the Motion. See Appendix to Petition 1. Second, the Motion complied with
Fla.R.Jud.Admin. 2.330(c), as it alleged, in writing and under oath, the reasons the
Judge should be disqualified, was mailed to the Judge, and included the
undersigned’s certification that the Motion was made in good faith. See Appendix
to Petition 1.
sufficient grounds to disqualify the Judge. In other words, the issue is whether the
Motion showed Couch’s fear that she would not receive a fair trial or hearing
deference to the lower court’s ruling, but should apply a de novo standard of
review. See Chamberlain v. State, 881 So. 2d 1087 (Fla. 2004); Frengel v.
case where the judge has announced his pre-disposition to rule against a party. In
804 So. 2d 360, 363 (Fla. 4th DCA 2001) (quoting Gonzalez v. Goldstein, 633 So.
2d 1183 (Fla. 4th DCA 1994)); see also Barnett v. Barnett, 727 So. 2d 311 (Fla. 2d
DCA 1999) (requiring judicial disqualification where the judge’s comments during
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trial created the impression that he had prejudged the case); Wargo v. Wargo, 669
So. 2d 1123 (Fla. 4th DCA 1996) (Writ of Prohibition issued where the judge
the cases set forth above. Here, the Judge not only pre-judged the Amended
Motion to Dismiss, she ruled against Couch without a hearing and without having
read her motion. Perhaps worse yet, when apprised of this conduct, the Judge
misrepresented that he had read the motion, prior to denying it, when he clearly
had not.
27. It is eminently reasonable for Couch to doubt her ability to get a fair
hearing before the Judge when the Judge ruled against her without a hearing and
Would you think you were getting a fair hearing if the Judge ruled
against you without a hearing and without reading your motion?
28. It is eminently reasonable for Couch to doubt her ability to get a fair
hearing before the Judge when, after denying her motion without a hearing and
without reading it, the Judge misrepresented that he had read the motion (prior to
Would you think you were getting a fair hearing if the Judge denied
your motion without reading it, without a hearing, and then
misrepresented to you that he had read your motion, prior to denying
it, when he had not?
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29. Respectfully, any reasonable person would question his/her ability to
30. All Couch is asking is for a fair chance to be heard by a judge who has
not already pre-determined the merits of her motion. Yes, the courts are inundated
with cases. Respectfully, however, it cannot reach the point where judges deny a
motion without reading it, without a hearing, and then falsely assert they had read
CONCLUSION
have been granted. Applying a de novo standard of review, this Court should issue
a Petition for Writ of Prohibition and direct that the Case be re-assigned to a
randomly-assigned judge.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via U.S. Mail to Honorable W. Douglas Baird, 315 Court Street, Room
Group, P.O. Box 25018, Tampa, FL 33622 on this 3rd day of June, 2011.
______________________________
Mark P. Stopa, Esquire
FBN: 550507
STOPA LAW FIRM
3650 Fifth Ave. N.
St. Petersburg, FL 33713
Telephone: (727) 667-4808
Facsimile: (727) 667-4808
MarkPStopa76@aol.com
ATTORNEY FOR PETITIONERS
I HEREBY CERTIFY that the instant Petition complies with the font
______________________________
Mark P. Stopa, Esquire
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