3d DCA Watch -- Clash of the Titans Edition

Well kiddies it's that time again, that exulted moment of the week when our Judicial Gods deliver mammon to the supplicants, where dreams are made, hopes are dashed, and PCAs sprout like wild quinoa, yes it's straight from that cute little Courtroom By the Highway, a special Judicial Smackdown edition featuring two of our bestest and most spectacularly robed coffee-swillers, oh hail let's get right to it, it's 3d DCA Watch:

Cooper Tire v. Rodriguez:

Wow -- Salter against Cope, in an appeal handled by Rudy Sorondo (hey I forgot he has a beard too!) on one side and Laurie Waldman Ross on the other. Bring me some popcorn and a really uncomfortable chair like they have in the 3d DCA gallery, this is gonna be good!

Indeed it is.

This is an opinion denying a writ of prohibition after a trial judge refused to disqualify himself for ex parte changing a hearing date after talking only to plaintiff's counsel who was there before the judge on another matter. Oh, the trial judge also denied the defendant's motion for continuance using an order drafted by the plaintiff's lawyer before the defense had even filed the continuance motion.

What, you say?

I urge everyone to read this opinion because for me it highlights the chummy, informal, and annoyingly ad hoc manner that justice is (sometimes) dispensed inside 73 West Flagler. And I hate to say it, but I think Judge Salter's majority opinion here contributes to this maddeningly casual and clubby culture. For example, Judge Salter takes issue with Judge Cope's characterization in his dissent of the order denying the (unfiled) motion for continuance as follows:

The order resetting the discovery hearing is characterized by the dissent as one which denied a motion not yet made. But Cooper Tire’s counsel had asked opposing counsel to consent to a rescheduling and had indicated that the motion would be filed.

But it DID deny a motion not yet made (the order denies "Cooper’s motion to continue special set hearing") . Besides, asking counsel to consent to certain relief that may be requested in an actual motion is not the same as making the motion before the court! Judge Cope explains:

On September 4, plaintiff’s counsel visited the trial judge’s chambers and spoke to the judicial assistant to try to reschedule the September 16-17 hearing. The trial judge overheard the conversation and indicated that it might be possible to move the hearing to earlier dates, namely, September 11-12. The judge directed plaintiff’s counsel to prepare an order which denied the not-yet-filed motion for continuance. The judge signed the order.

Although defense counsel had not yet filed a motion for continuance, the order stated that the cause had come on to be heard on an ex parte basis “on Cooper’s motion to continue special set hearing (scheduling issue only).” The order stated that the court would “attempt to accom[m]odate the parties by entertaining the [discovery] motions on Sept. 11 & 12 depending on availability & weather conditions. If the court is not available on Sept. 11th & 12th the hearing shall take place as originally scheduled on 9/16 & 17.”

Plaintiff’s counsel faxed the order and cover letter to defense counsel, explaining how the order came to be entered. Defense counsel filed a motion for disqualification, which the trial court denied as legally insufficient.

Judge Salter also chastises defense counsel (Holland & Knight) for filing the motion to disqualify. In Judge Salter's view, the defense lawyers, after having their hearing date changed ex parte in an order drafted by plaintiff's counsel, should have immediately identified other proposed dates to the trial judge:

If those dates were not available for counsel, Cooper Tire could and should have immediately identified other available dates, filed its promised written motion for continuance, notified opposing counsel and the court, and requested an immediate telephonic hearing (or a so-called “add on” for the next motion calendar) to resolve the matter.

But the order says if the hearing does not go forward on the earlier, newly changed dates, then the hearing would proceed on the originally-scheduled date. What would be the point of moving for a continuance when the court has already denied it ex parte and indicated it would not change the hearing to another date?

Judge Cope pretty much sums it all up here:

In this case defense counsel had conveyed his intention to plaintiff’s counsel to file a motion to continue the September 16-17 hearing. Defense counsel had not yet filed the motion when, the next day, plaintiff’s counsel went to the judge’s chambers to request alternative dates from the judicial assistant. The judge became involved in the discussion and ruled that the defendant’s not-yet-filed motion for continuance would be denied. This was done without the defense having filed its motion and without being heard on the motion. These circumstances would give rise to a reasonable fear, when looked at from the viewpoint of the movant, that the movant would not receive a fair trial.

As much as I love Judge Salter, I have to say I agree.