IN THE DISTRICT COURT OF APPEAL

SECOND DISTRICT, LAKELAND, FLORIDA

JACQUELINE COUCH,

Petitioner, L.T. Case No. 09-19743-CI-05

v. Case No.:

HONORABLE W. DOUGLAS BAIRD and

CHASE HOME FINANCE, LLC,

Respondents.
________________________/

PETITION FOR WRIT OF PROHIBITION

Petitioner, Jacqueline Couch (“Couch”), by and through her undersigned

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

Pinellas County, Florida (“the Case”), and as grounds would show:

BASIS FOR THIS COURT’S JURISDICTION

1. Couch moved to disqualify the Judge under Fla.R.Jud.Admin. 2.330.

The Judge denied that motion. This Court has original jurisdiction under

Fla.R.App.P. 9.030(b)(3) to enter a Writ of Prohibition.

NATURE OF THE RELIEF SOUGHT

2. Couch seeks a Writ of Prohibition from this Court, precluding the

Judge from presiding over the Case and directing that the Case be re-assigned to a
randomly-assigned judge.

OVERVIEW

3. In the course of litigation of the Case, the Judge denied an amended

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.”

4. The facts, as set forth in detail, below, gave Petitioner a well-reasoned

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

below. See Appendix to Petition, 1.

6. On May 17, 2010, Couch served her Motion to Dismiss Complaint.

7. On or about June 6, 2010, Respondent, Chase Home Finance, LLC

(“Respondent”), served its Response to Motion to Dismiss.

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

foreclosure cases without a hearing), Couch’s undersigned counsel served an

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Amended Motion to Dismiss. The intent in doing so was to set forth the arguments

in written form to clarify the arguments prior to the Judge ruling on them without a

hearing.

9. On September 23, 2010, the Judge entered an Order directing the

parties to file memoranda on the issue of dismissal.

10. Couch complied with the Judge’s Order, as she filed a Reply and

Memorandum in Support of Defendant’s Amended Motion to Dismiss.

11. On November 17, 2010, the Court entered an Order Denying

Defendant’s Motion to Dismiss.

12. The Order made no mention of the Amended Motion to Dismiss.

Also, the Order contained lengthy rulings and legal citations on issues that were

not argued or presented in the Amended Motion to Dismiss (e.g. that an

Assignment of Mortgage need not be attached to the Complaint, which is

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

reviewed or considered, so Couch filed a Motion to Vacate Order Denying Motion

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

should be vacated because of this sequence of events, as set forth above. In

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

directed to the Amended Motion to Dismiss.

15. In response, the Judge told Couch’s undersigned counsel, in open

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,

at best, an inadvertent misrepresentation, or, at worst, an intentional one. As such,

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

on the Amended Motion if it is not before me?” to which the undersigned

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

“do what you need to do.”

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

having read that motion and without a hearing.

21. On May 6, 2011, Couch timely filed her Motion to Disqualify Judge.

See Appendix to Petition, 1.

22. On May 11, 2011, the Judge entered an Order denying that Motion.

See Appendix to Petition, 2.

ARGUMENT

23. Fla.R.Jud.Admin. 2.330 imparts several obligations on a litigant who

seeks disqualification of a judge. Couch complied with all such requirements.

First, Couch satisfied the timeliness requirement of Fla.R.Jud.Admin. 2.330(e) by

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.

24. As there was plainly no basis to deny the Motion on procedural

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grounds, the issue before this Court is whether the Motion presented legally

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

because of specifically described prejudice or bias of the Judge. See

Fla.R.Jud.Admin. 2.330(d). In adjudicating this issue, this Court should give no

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.

Frengel, 880 So. 2d 763 (Fla. 2d DCA 2004).

I. THE JUDGE’S RULING AGAINST PETITIONER WITHOUT A

HEARING AND WITHOUT READING A MOTION, COUPLED
WITH THE JUDGE’S MISREPRESENTATION THAT HE HAD
READ THE MOTION, REQUIRES HIS DISQUALIFICATION.

25. Numerous Florida courts have prohibited a judge from presiding on a

case where the judge has announced his pre-disposition to rule against a party. In

Marvin v. State, for instance, the Fourth District ruled:

A trial judge’s announced intention before a scheduled hearing to

make a specific ruling, regardless of any evidence or argument to the
contrary, is the paradigm of judicial bias and prejudice. We could not
imagine a more telling basis for a party to fear that he will not receive
a fair hearing.

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

began to rule without giving a party a chance to be heard).

26. Couch’s argument in her Motion to Disqualify is even stronger than

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

without reading her motion. To put it differently:

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

denying it) when, in fact, he had not. To put it differently:

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

get a fair hearing under these circumstances.

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

the motion (prior to denying it) when they had not.

CONCLUSION

Petitioners’ Motion to Disqualify Judge was legally sufficient and should

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

421, Clearwater, FL 33756, Ashleigh L. Politano, Esq., Florida Default Law

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

CERTIFICATE OF FONT COMPLIANCE

I HEREBY CERTIFY that the instant Petition complies with the font

requirements of Fla.R.App.P. 9.100(l).

______________________________
Mark P. Stopa, Esquire

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