IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA

CASE NO. 4D18-_______ L.T. CASE NO. 2013-001321-CA

MAGGY HURCHALLA, Defendant-Petitioner, v. LAKE POINT PHASE I, LLC, and LAKE POINT PHASE II, LLC, Florida Limited Liability Companies, Plaintiffs-Respondents. /

MAGGY HURCHALLA’S PETITION FOR EXPEDITED WRITS OF PROHIBITION, MANDAMUS, AND CERTIORARI

CARLTON FIELDS JORDEN BURT, P.A. Suite 4200, Miami Tower 100 Southeast Second Street Miami, Florida 33131 Telephone: (305) 530-0050 By: RICHARD J. OVELMEN JUSTIN S. WALES RACHEL A. OOSTENDORP

TALBOT D’ALEMBERTE 121 N. Monroe Tallahassee, Florida 32301 Telephone: (850) 577-0683 By: TALBOT D’ALEMBERTE LITTMAN, SHERLOCK & HEIMS, P.A. P.O. Box 1197 Stuart, Florida 34995 Telephone: (772) 287-0200 By: VIRGINIA P. SHERLOCK HOWARD K. HEIMS

Counsel for Defendant/Petitioner Maggy Hurchalla

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TABLE OF CONTENTS Page

TABLE OF CONTENTS ........................................................................................ i

TABLE OF AUTHORITIES ................................................................................. ii

INTRODUCTION ................................................................................................. 1

BASIS FOR INVOKING JURISDICTION ........................................................... 2

STATEMENT OF THE CASE AND FACTS ........................................................ 2

NATURE OF THE RELIEF SOUGHT ................................................................. 7

ARGUMENT........................................................................................................10

I. The Trial Judge Has Failed To Act As A Neutral Arbiter And Mrs. Hurchalla Will Be Irreparably Harmed Absent A Writ Of Prohibition Disqualifying The Judge. ................................................10

II. A Rule 9.100(D) Petition For Writ Of Mandamus Is Necessary To Require The Trial Court To Allow Inspection And Copying Of The Letter To Ensure That It Is Made Part Of The Record. ..........15

III. Certiorari Review Of The Court’s Denial Of Defendant’s Motion For Entry Of Dismissal And Decision To Impose Sanctions Is Proper Because The Court Departed From The Essential Requirements Of The Law And Defendant Faces Irreparable Harm. ..............................................................................18

CONCLUSION ....................................................................................................23

CERTIFICATE OF COMPLIANCE.....................................................................25

ii

TABLE OF AUTHORITIES Page(s)

Cases

State ex rel. Bank of America v. Rowe, 118 So. 5 (Fla. 1928) ....................................................................................... 14

Barnett v. Barnett, 727 So. 2d 311 (Fla. 2d DCA 1999) ................................................................. 10

State ex rel. Boyles v. Fla. Parole & Prob. Comm’n, 436 So. 2d 207 (Fla. 1st DCA 1983) ................................................................ 18

Brake v. Murphy, 693 So. 2d 663 (Fla. 3d DCA 1997) ................................................................. 15

Brandal v. State Farm Mutual Auto. Ins. Co., 310 So. 2d 780 (Fla. 1st DCA 1975) ................................................................ 19

Carey v. Piphus, 435 U.S. 247 (1978) ......................................................................................... 12

Concerned Citizens for Judicial Fairness, Inc. v. Yacucci, 162 So. 3d 68 (Fla. 4th DCA 2014).................................................................. 13

Dade Cty. Classroom Teachers’ Assn., Inc. v. State Bd. Of Educ., 269 So. 2d 657 (Fla. 1972) ............................................................................... 19

Dep’t of Highway Safety & Motor Vehicles v. Clay, 152 So. 3d 1259 (Fla. 5th DCA 2014) (Cohen, J., concurring) ......................... 12

Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So. 2d 51 (Fla. 3d DCA 1982) ................................................................... 19

Edwards-Freeman v. State, 138 So. 3d 507 (Fla. 4th DCA 2014) ................................................................ 10

English v. McCrary, 348 So. 2d 293 (Fla. 1977) ............................................................................... 14

Epley v. Washington Cty., 358 So. 2d 592 (Fla. 1st DCA 1978) ................................................................ 19

TABLE OF AUTHORITIES (Continued)

Page

iii

Gonzalez v. Fla., 2018 WL 1022822 (Fla. 2d DCA, Feb. 23, 2018) ...................................... 15, 18

Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607 (8th Cir. 1980) .............................................................................. 8

Hancock v. Piper, 186 So. 2d 489 (Fla. 1966) ............................................................................... 20

Hogan v. Fla., 983 So. 2d 656 (Fla. 2d DCA 2008) ........................................................... 16, 18

Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951) (Frankfurter, J., concurring) ............................................ 12

Marshall v. Jerrico, 446 U.S. 238 (1980) ..................................................................................... 8, 12

Mathews v. Eldridge, 424 U.S. 319 (1976) ......................................................................................... 12

McCurdy v. Collins, 508 So. 2d 380 (Fla. 1st DCA 1987) .................................................................. 9

McGuire v. Florida Lottery, 17 So. 3d 1276 (Fla. 1st DCA 2009) ................................................................ 19

Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976) ......................................................................................... 13

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ........................................................................................... 8

Nodar v. Galbreath, 462 So. 2d 803 (Fla. 1984) ................................................................................. 9

Padalla v. Fla., 895 So. 2d 1251 (Fla. 2d DCA 2005) ............................................................... 13

TABLE OF AUTHORITIES (Continued)

Page

iv

Sutton v. State, 975 So. 2d 1073 (Fla. 2008) ............................................................................. 14

Video Intern. Prod. Inc. v. Warner-Amex Cable Comm., 858 F.2d 1075 (5th Cir. 1988) ............................................................................ 9

Constitutional Provisions

First Amendment .......................................................................................... 8, 9, 22

Art.V, § 4(b)(3). Fla. Const. .................................................................................... 2

Statutes

§ 57.105, Fla. Stat. ............................................................................................ 7, 21

Rules

Fla. R. App. P. 9.030(b)(2)(A) ................................................................................ 2

Fla. R. App. P. 9.030(b)(3)...................................................................................... 2

Fla. R. App. P. 9.100 ............................................................................................... 2

Fla. R. App. P. 9.100(d) ................................................................................ 1, 8, 15

Fla. R. App. P. 9.100(f) ........................................................................................... 1

Fla. R. App. P. 9.100(h) ................................................................................ 1, 8, 10

Fla. R. App. P. 9.200(a)(1) .................................................................................... 16

Fla. R. Jud. Admin. 2.330(d) ................................................................................. 10

Fla. R. Jud. Admin. 2.420(b)(1) .............................................................................. 1

Fla. R. Jud. Admin. 2.420(c) ................................................................................. 17

Other Authorities

Padovano, Fla. App. Prac., § 30.2, 768 (2018) ..................................................... 15

TABLE OF AUTHORITIES (Continued)

Page

v

Padovano, Fla. App. Prac., § 30.3, 777 (2018) ............................................... 10, 18

Padovano, Fla. App. Prac., § 30.5, 781–82 (2018) ................................................ 18

1

INTRODUCTION

Pursuant to Florida Rules of Appellate Procedure 9.100(d), (f), and (h),

Petitioner-Defendant Maggy Hurchalla moves the Court for several measures of

extraordinary relief stemming from the trial court’s improper actions during and

after trial. Specifically, Mrs. Hurchalla seeks:

1. A writ of prohibition reversing the trial court’s decision denying her motion

for disqualification, which was made following an ex parte meeting after the

commencement of trial during which the judge strongly advised Mrs.

Hurchalla that she would certainly lose the case, that the public project she

criticized was a good project, and that she could avoid a damage award by

signing a letter consenting to a permanent gag order regarding the Lake

Point project and making an abject written apology he purportedly prepared

for her to deliver to Plaintiffs;

2. A petition pursuant to Rule 9.100(d) Fla. R. App. P. for writ of mandamus to

compel compliance with rule 2.420(b)(1) Fla. R. Admin. P. to provide

access to the letter which was read aloud by the trial court during that in

camera unreported session, which is material to Mrs. Hurchalla’s motion for

disqualification and which she would file to establish a complete judicial

record of the relevant proceedings below; and

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3. A writ of common law certiorari to review (a) the trial court’s denial of

Mrs. Hurchalla’s motion for entry of dismissal with prejudice of what had

been a previously-dismissed without prejudice claim for a permanent gag

order on her; and (b) the sua sponte granting of sanctions against Mrs.

Hurchalla and her counsel with a hearing to be set as to the amount because

her motion for final judgment “had been filed for purposes of delay.”

The court’s actions throughout these proceedings continue to demonstrate

bias against Mrs. Hurchalla, denial of her fundamental due process right to a

neutral arbiter, a continued violation of her First Amendment rights, and a

departure from the essential requirements of the law. As a result, without the relief

sought, Mrs. Hurchalla faces irreparable harm, leaving no adequate remedy on

plenary appeal.

BASIS FOR INVOKING JURISDICTION

Petitioner invokes this Court’s jurisdiction under article V, section 4(b)(3) of

the Florida Constitution and Florida Rules of Appellate Procedure 9.030(b)(2)(A),

9.030(b)(3), and 9.100.

STATEMENT OF THE CASE AND FACTS

This case was originally filed by Respondents-Plaintiffs Lake Point Phase I

& Phase II, LLC, against Martin County, the South Florida Water Management

District (SFWMD), and Maggy Hurchalla. After the county and the district settled,

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the case went forward on a claim of tortious interference with a contract against

Mrs. Hurchalla, the only remaining defendant. The alleged contract was between

government actors Martin County and SFWMD. Lake Point claimed it was a party

to this inter-local government agreement by virtue of a unilateral Consent and

Joinder executed by Lake Point as to four specific sections of the agreement. The

only action Mrs. Hurchalla took was contacting public officials to exercise her

First Amendment right under the Free Speech and Petition clauses to voice her

opposition to this public project.

The case proceeded to trial with Mrs. Hurchalla as the sole defendant. After

opening statements, and after Plaintiffs had just barely begun their case-in-chief,

the trial judge asked counsel if they would agree to meet ex parte with him to

discuss resolution of the case; both parties agreed. (App. 120–21, 128). Defendant

and her lawyers then met in chambers with the trial judge. They were startled

when the judge announced that, after observing the proceedings, he was convinced

that the Defendant—who had not yet presented evidence—could not prevail.

(App. 129). The judge expressed his personal view that the project that the

Defendant had criticized was a “good project” and said he thought Mrs. Hurchalla

may have realized this and had been “overzealous” in questioning its

environmental benefits. (App 118).

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The judge then advised her that the case could be resolved if Mrs. Hurchalla

would send the Plaintiffs a letter apologizing for her criticism and agreeing to

never criticize Lake Point in the future, including its public contracts with the

government. (App. 119, 129). He said that he had drafted a letter from Mrs.

Hurchalla to the Plaintiffs that would, in his opinion, resolve the case without any

money judgment against her. The trial judge later said on the record that the

document he had referred to was not a letter, but an “outline of the ability to

possibly settle this case” and said that he had not suggested that the Defendant sign

anything. (App 118).

Mrs. Hurchalla’s undisputed testimony revealed that the judge had drafted

what he asserted “would be an appropriate letter for her to issue as an apology.”

The letter/outline “included a statement that she [the Defendant] would never again

say anything bad about Lake Point.” (App. 118).

There was no court reporter present and no recording of this session with the

judge, but defense counsel—shaken by the judge’s remarkable proposal that Mrs.

Hurchalla give up her constitutional right to criticize Lake Point’s interaction with

her government—raised the issue in open court with all parties, counsel, and a

court reporter present. A copy of that proceeding is attached in the appendix and

incorporated by reference. See (App. 115–139).

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At the reported session in open court, defense counsel placed on the record

her memory of the events that morning, and Mrs. Hurchalla testified under oath,

stating that she did not believe she could receive a fair trial from the trial judge

who had characterized the Plaintiffs’ project as “good” and “wonderful,” who

thought it appropriate to urge that Mrs. Hurchalla apologize for criticizing the

public project, and who wanted her to promise to censor herself by never further

criticizing the project. (App. 117–19, 129–30). Following Mrs. Hurchalla’s

testimony, she moved for disqualification, which was immediately denied. (App.

138).

Defense counsel also made a request to inspect and copy the letter that the

court had read to her out loud in chambers, and had suggested that the Defendant

sign, so that it would be made a part of the record. (App. 119 (“I would like to ask

that the Court include in the record the letter that you read out loud as your

suggestion that she sign.”)). Defense counsel has since requested that the

document be maintained, (App. 140), but the trial judge has not provided it or

otherwise ruled on her request.

The jury ultimately awarded a verdict and damages against Mrs. Hurchalla

in the amount of nearly $4.4 million dollars based solely on her Free Speech

activity. (App. 212). Following trial, defense counsel requested the court to delay

entry of final judgment until they could analyze the issue of finality of the

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judgment. (App. 213). Specifically, Plaintiffs had asserted a claim (Count IV)

seeking an injunction to prevent Mrs. Hurchalla from criticizing the Lake Point

project. (App. 021). That Count previously had been dismissed with leave to

amend in twenty days. (App. 026–36, 037). When the Plaintiffs did not amend

within that time, defense counsel sought a final order of dismissal. (App. 039–40).

That motion was denied and the court entered an order stating, “Plaintiffs may seek

leave of Court on grounds alleged to replead Count IV of the amended complaint

at any time prior to the conclusion of this action.” (App. 066).

Defense Counsel subsequently filed a motion for entry of an order for

dismissal of Count IV with prejudice. (App. 226–28). During a hearing on the

motion and Plaintiff’s motion for entry of judgment, the court first described Mrs.

Hurchalla’s motion as “curious” and then stated that the defense motion was “one

of the most spurious arguments I have ever heard as a judge.” (App. 247, 254).

Defense counsel explained that she did not object to entry of the final

judgment, but stated that she was concerned with “finality” with respect to the

previously dismissed claim for injunctive relief which Plaintiffs were expressly

authorized to re-plead at any time until conclusion of the litigation. Absent entry

of a final judgment upon Plaintiffs’ failure to re-plead within the period established

by the prior court order, the Defendant would be denied finality as to that claim.

(App. 250–54). Unpersuaded by counsel’s argument, the court proceeded to

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discuss sanctions under section 57.105, Florida Statutes. (App. 260–61, 266).

Though Plaintiffs’ counsel did not move for sanctions, the judge ruled that the

Defendant’s motion relating to entry of judgment on Count IV had been “done for

purposes of delay.” (App. 268).

In the Order entered after the hearing, the court stated that, “if Plaintiff [sic]

desires to go forward on the imposition of attorney fees against the Defendant and

Defendant’s Counsel,” a one-hour evidentiary hearing would be set to consider the

amount of the sanctions to be imposed. (App. 318).

NATURE OF THE RELIEF SOUGHT

The nature of the relief sought by this Petition is (1) a writ of prohibition

reversing the trial court’s decision denying Mrs. Hurchalla’s motion for

disqualification and quashing the court’s order entered on February 28, 2018,

denying Mrs. Hurchalla’s motion for entry of dismissal with prejudice and granting

sanctions against Mrs. Hurchalla and her counsel; (2) a writ of mandamus to

compel the inspection and copying of the draft apology letter read aloud by the

trial court during an unreported ex parte session with Mrs. Hurchalla and her

counsel; and (3) a writ of common law certiorari to review the trial court’s denial

of Mrs. Hurchalla’s motion for entry of dismissal with prejudice and granting

sanctions against Mrs. Hurchalla and her counsel.

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Petitioner respectfully requests, pursuant to Fla. R. App. P. 9.100(h), that

this Court enter an order directing Respondent to either show cause why relief

should not be granted or respond to the Petition, which, with regard to the request

for prohibition, will operate to stay further proceedings in the trial court.

Petitioner also requests that a stay of proceedings be entered pursuant to Fla.

R. App. P. 9.100(d). Rule 9.100(d) provides that where, as here, a petition seeks

review of an order excluding the public from access to any proceeding or record,

the Court “shall immediately consider the petition to determine whether a stay of

proceedings in the lower tribunal or the order under review is appropriate and, on

its motion or that of any party, may order a stay on such conditions as may be

appropriate.” The review of such orders under this Rule shall be expedited.

A stay of proceedings is necessary here in light of the continued and patent

violations of Mrs. Hurchalla’s fundamental due process right to a neutral arbiter,

see Marshall v. Jerrico, 446 U.S. 238, 242 (1980), and her First Amendment right

to communicate with public officials about matters of public policy. See New York

Times Co. v. Sullivan, 376 U.S. 254, 271 (1964) (“Those who won our

independence believed . . . that public discussion is a political duty; and that this

should be a fundamental principle of the American government . . . . The

constitutional protection does not turn upon ‘the truth, popularity, or social unity of

the ideas and beliefs which are offered.’”); Gorman Towers, Inc. v. Bogoslavsky,

9

626 F.2d 607, 614 (8th Cir. 1980) (“the private citizens and their lawyer were

absolutely privileged by the First Amendment to petition for the zoning

amendment that cause plaintiffs’ damages”); Video Intern. Prod. Inc. v. Warner-

Amex Cable Comm., 858 F.2d 1075, 1082 (5th Cir. 1988) (“parties who petition

the government . . . cannot be prosecuted under the antitrust laws even though their

petitions are motivated by anticompetitive intent”).

The Supreme Court of Florida has repeatedly and consistently held that

statements made by a citizen to a political authority regarding matters of public

concern are also protected by a common law qualified privilege, and there can be

no recovery for conduct based on privileged statements absent express malice. See

Nodar v. Galbreath, 462 So. 2d 803, 810 (Fla. 1984); see also McCurdy v. Collins,

508 So. 2d 380 (Fla. 1st DCA 1987). As a result of the trial judge’s demonstrated

bias and failure to serve as a neutral arbiter throughout these proceedings, and

given the importance of the rights in jeopardy here, including through the judge’s

and Plaintiffs’ attempts to silence Mrs. Hurchalla, Mrs. Hurchalla faces irreparable

harm without a stay of proceedings pending review. She therefore respectfully

requests that this Court review her Petition on an expedited basis.

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ARGUMENT I. THE TRIAL JUDGE HAS FAILED TO ACT AS A NEUTRAL

ARBITER AND MRS. HURCHALLA WILL BE IRREPARABLY HARMED ABSENT A WRIT OF PROHIBITION DISQUALIFYING THE JUDGE.

Petitioner seeks a writ of prohibition disqualifying the trial judge from any

further activity in this case. Petitioner also requests that this Court enter an order

directing Respondent to either show cause why relief should not be granted or

respond to the Petition, which will operate to stay further proceedings in the trial

court. See Fla. R. App. P. 9.100(h).

This Court has jurisdiction over a petition for extraordinary relief “to review

the denial of a motion to disqualify the judge presiding over the proceedings in the

lower tribunal.” Padovano, Fla. App. Prac., § 30.3, 777 (2018); see also Edwards-

Freeman v. State, 138 So. 3d 507 (Fla. 4th DCA 2014) (granting in part petition for

writ of prohibition and quashing order denying motion for disqualification);

Barnett v. Barnett, 727 So. 2d 311 (Fla. 2d DCA 1999). “[T]he improper use of

judicial power by a particular judge causes harm that cannot be adequately

corrected on appeal.” Padovano, § 30.3, 777.

Florida Rule of Judicial Administration 2.330(d) provides that a party may

seek disqualification on the ground “that the party fears that he or she will not

receive a fair trial or hearing because of specifically described prejudice or bias of

the judge.” Under Rule 2.330(f), a trial judge’s discretion in ruling on a party’s

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motion to disqualify is limited to “only the legal sufficiency of the motion” and

whether the party sufficiently alleged facts demonstrating a justifiable fear that he

or she will not be able to receive a fair trial or hearing. Once the moving party

demonstrates the “legal sufficiency” of their disqualification motion, the judge

“shall immediately enter an order granting disqualification and proceed no further

in the action.”

Here, Mrs. Hurchalla testified under oath that she did not believe she could

get a fair trial from the judge after he first expressed his opinion that the

development she was accused of criticizing was a “good project,” urged Mrs.

Hurchalla to apologize for criticizing the project, and then wanted her to promise

not to criticize it in the future. Following her testimony, she properly moved to

disqualify the judge for his actions, which was summarily denied. Under Florida

Rule of Judicial Administration 2.330, the judge’s summary denial of Mrs.

Hurchalla’s disqualification motion was improper and beyond his judicial

authority.

By declaring prior to the presentment of Mrs. Hurchalla’s case that she

would lose because the Lake Point project was “a good project” the trial judge also

demonstrated that he was not a neutral arbiter. During their ex parte meeting, the

trial judge went as far as specifically telling Mrs. Hurchalla that he had spent many

years watching juries and had a great deal of experience. He viewed this as a bad

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jury for her, that the jurors were not environmentalists, that they had been riveted

by Plaintiffs’ introductory statement, and that there was no way Mrs. Hurchalla

would win. (App. 117).

By essentially holding a coercive “settlement” conference in the middle of

trial while presiding over that trial, making an ex parte, in camera declaration to

Mrs. Hurchalla that she would lose, and even drafting and reading a proposed

“resolution” offer, the trial judge violated his duty to be a neutral arbiter, acted

beyond his authority, and demonstrated blatant bias in favor of Plaintiffs and

against Mrs. Hurchalla. As the United States Supreme Court has held in a long

line of decisions:

The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decision making process. See Carey v. Piphus, 435 U.S. 247, 259-262, 266-267 (1978). The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. See Mathews v. Eldridge, 424 U.S. 319, 344 (1976). At the same time, it preserves both the appearance and reality of fairness, “generating the feeling, so important to a popular government, that justice has been done,” Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 172 (1951) (Frankfurter, J., concurring), by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.

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Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980); see also Dep’t of

Highway Safety & Motor Vehicles v. Clay, 152 So. 3d 1259, 1260 (Fla. 5th DCA

2014) (Cohen, J., concurring) (“A neutral arbiter is the linchpin of due process and

the foundation upon which the system of justice is built.”); Padalla v. Fla., 895 So.

2d 1251 (Fla. 2d DCA 2005).

The trial court’s proposed “settlement” reflects extraordinary bias because it

proposes a remedy that would not have been available to Plaintiffs or possible to

impose since it amounts to an unconstitutional permanent prior restraint upon Mrs.

Hurchalla’s speech. See Concerned Citizens for Judicial Fairness, Inc. v. Yacucci,

162 So. 3d 68, 73 (Fla. 4th DCA 2014) (“[P]rior restraints on speech and

publication are the most serious and the least tolerable infringement on First

Amendment rights.” (quoting Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559

(1976)). One of Plaintiffs’ objectives in the litigation had been to enjoin the

Defendant from speaking about the Lake Point project and the requested injunction

was denied without prejudice earlier. The judge’s proffered letter confirmed his

view that indefinitely silencing Mrs. Hurchalla was acceptable.

Although the trial court’s coercive actions during its in camera ex parte

proceeding with Defendant and her counsel alone are grounds sufficient for

disqualification, as discussed below, the trial court’s refusal to file or otherwise

provide to the parties the letter it had drafted for Mrs. Hurchalla and the failure to

14

rule on Mrs. Hurchalla’s request for that document, are further indicia that this

judge should be disqualified from continuing to proceed over the post-trial motions

and sanctions hearing in this action.

Prohibition is “clearly recognized” as an appropriate remedy to prevent

judicial action when the judge is biased. See Sutton v. State, 975 So. 2d 1073,

1076–77 (Fla. 2008) (citing State ex rel. Bank of America v. Rowe, 118 So. 5, 8

(Fla. 1928)). Here, a writ of prohibition is necessary to prevent continued harm to

Mrs. Hurchalla, and she is left with no other appropriate and adequate legal

remedy. See English v. McCrary, 348 So. 2d 293, 297 (Fla. 1977). The court’s

display of bias peaked during trial, and counsel moved for disqualification.

Although trial has completed, the court still has before it a number of post-trial

motions, including Defendant’s motion for judgment notwithstanding the verdict,

and motion for new trial, filed on February 28, 2018, as well as the sanctions

hearing on Defendant’s motion for entry of dismissal with prejudice. In light of

the court’s behavior during trial, Defendant is unlikely to receive a fair

adjudication of her well-supported post-trial motions—as is demonstrated by the

court’s suggestion and pursuit of sanctions on Defendant’s dismissal motion

despite its having been fully based upon well-established law. This is precisely the

type of harm that a writ of prohibition is intended to address and prevent.

Prohibition is therefore required.

15

Finally, Mrs. Hurchalla requests that the trial court’s February 28, 2018,

order denying her motion for entry of dismissal with prejudice be quashed. The

disqualification occurred at the time the trial judge demonstrated bias and a refusal

to act as a neutral arbiter during trial, and the judge should have been prevented

from further judicial action. The order entered after that disqualification is void.

See, e.g., Brake v. Murphy, 693 So. 2d 663, 666 (Fla. 3d DCA 1997) (quashing

order entered after disqualification of trial judge).

II. A RULE 9.100(D) PETITION FOR WRIT OF MANDAMUS IS NECESSARY TO REQUIRE THE TRIAL COURT TO ALLOW INSPECTION AND COPYING OF THE LETTER TO ENSURE THAT IT IS MADE PART OF THE RECORD.

Petitioner seeks a writ of mandamus under Fla. R. App. P. 9.100(d)

compelling the trial judge to produce and make available for inspection and

copying the draft letter, or “outline,” that he read to Mrs. Hurchalla so it is made

part of the record for this case. Petitioner also requests that a stay of proceedings

be entered pursuant to Fla. R. App. P. 9.100(d), which provides that the Court shall

immediately determine whether a stay of proceedings is appropriate when

reviewing orders excluding the public access to any proceeding or record.

This Court has jurisdiction over a petition for writ of mandamus to compel

“a public officer or agency to perform a duty required by law . . . .” Padovano,

Fla. App. Prac., § 30.2, 768 (2018); see also Fla. R. App. P. 9.100(d) (providing

for expedited appellate review of denials of access to judicial records); Fla. R. Jud.

16

Admin 2.051(d) (same); see also Gonzalez v. Fla., 2018 WL 1022822, at *1 (Fla.

2d DCA, Feb. 23, 2018) (“[A] mandamus petition . . . is the appropriate vehicle for

challenging the denial of access to judicial records”) (citing Hogan v. Fla., 983 So.

2d 656, 658 (Fla. 2d DCA 2008)).

The trial judge’s assessment that the Lake Point project was a “wonderful”

project, (App 119), and his suggestion that Mrs. Hurchalla apologize and engage in

future self-censorship regarding the developer’s project lies at the heart of

Defendant’s motion to disqualify. The trial court stated that the document it had

referred to during the meeting with Defendant and her counsel was not a letter, but

an “outline” of suggestions. Mrs. Hurchalla testified and her counsel stated that

they perceived the document that was read aloud to them by the judge as a letter he

had drafted to be signed by Mrs. Hurchalla as a gag order and an apology to the

Plaintiffs. (App. 118, 129). But however it is characterized, the document is

significant because it should reveal the exact words the judge used and it may

provide information about the document’s origin. Production of the document also

will reveal whether it was a draft letter or merely an “outline.”

Proceedings held before a judge are part of the record, and, indeed, are

required to be filed as part of the record on appeal. See Fla. R. App. P. 9.200(a)(1)

(“Except as otherwise designated by the parties, the record shall consist of all

documents filed in the lower tribunal, all exhibits that are not physical evidence,

17

and any transcript(s) of proceedings filed in the lower tribunal[.]”). As discussed,

the letter is material to Defendant’s disqualification motion and is an essential part

of the record on review of the court’s denial of that motion.

Under Florida’s Rule of Judicial Administration 2.420, “the public should

have access to all records of the judicial branch of government, except as provided

below.” Judicial records are defined as “all records regardless of physical form,

characteristics, or means of transmission, made or received in connection with the

transaction of official business by any judicial branch entity.” Fla. R. Jud. Admin

2.420(b)(1). A limited number of exemptions are provided in Rule 2.420(c);

however, none of the listed exemptions applies here to preclude Mrs. Hurchalla

and the public from being allowed to inspect and copy the letter the trial judge

wrote and presented to Mrs. Hurchalla for her to sign. Moreover, Fla. R. Jud.

Admin. 2.420(d) sets forth the procedures and standards for designating a court

record confidential, none of which applies or was followed here.

The judge may not refuse to make this document part of the record, nor may

he simply ignore Mrs. Hurchalla’s motion and withhold a ruling. Aside from Mrs.

Hurchalla’s testimony and her counsel’s statements in open court, this letter is the

only documentary evidence available memorializing the exchange between the

judge and Mrs. Hurchalla. Because the trial court held an ex parte proceeding in

chambers with a party and her counsel without a court reporter present, Mrs.

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Hurchalla has no practical path to obtain the letter the trial judge presented to her

to sign, short of relief from the appellate court. Defendant therefore respectfully

requests that this Court enter a writ of mandamus requiring the trial court to give

her access to it so she may file the document on the record. See Gonzalez v. Fla.,

2018 WL 1022822, at *1; Hogan, 983 So. 2d at 658.

III. CERTIORARI REVIEW OF THE COURT’S DENIAL OF DEFENDANT’S MOTION FOR ENTRY OF DISMISSAL AND DECISION TO IMPOSE SANCTIONS IS PROPER BECAUSE THE COURT DEPARTED FROM THE ESSENTIAL REQUIREMENTS OF THE LAW AND DEFENDANT FACES IRREPARABLE HARM.

Petitioner seeks (1) certiorari review of the trial court’s denial of her motion

for entry of dismissal with prejudice and finding that the motion was filed for

purposes of delay, and (2) an order prohibiting the trial court from proceeding with

a hearing on sanctions. “Certiorari is a common law writ which issues in the

discretion of the court to an inferior tribunal to review its action and determine

whether the inferior tribunal . . . has not proceeded in accordance with the essential

requirements of law in cases where no remedy will lie by appeal.” State ex rel.

Boyles v. Fla. Parole & Prob. Comm’n, 436 So. 2d 207, 209 (Fla. 1st DCA 1983));

see also Padovano, Fla. App. Prac., § 30.5, 781–82 (2018) (“Certiorari is an

extraordinary remedy that is available in the absence of a right to an appeal when a

lower tribunal has . . . departed from the essential requirements of law.”).

19

Prohibition is available “to prevent a lower tribunal from the improper use of

judicial power.” Padovano at § 30.3, 773 (2018).

The trial judge’s conclusion that the Defendant’s post-trial motion for entry

of dismissal with prejudice on a previously dismissed claim that had never been

re-pled by Plaintiffs and was filed for the purposes of delay, thus warranting

sanctions, was a departure from the essential requirements of the law. (App. 268,

318).

Florida courts have squarely addressed the question of whether an order

dismissing a claim but allowing the pleader to amend is a final order, and have

held that it is not. In McGuire v. Florida Lottery, 17 So. 3d 1276 (Fla. 1st DCA

2009), for example, the trial court dismissed a complaint without prejudice,

entering an order that provided a deadline for plaintiff to file an amended

complaint and stated that if no such complaint was filed, the case would be

dismissed. See id. When the plaintiff appealed, the First DCA dismissed the

appeal as untimely, stating that “[t]he provision in the order that it would become

final at a future date does not cure this defect; a separate final order must be

entered.” Id. at 1277; see also Edward L. Nezelek, Inc. v. Sunbeam Television

Corp., 413 So. 2d 51, 54 (Fla. 3d DCA 1982); Epley v. Washington Cty., 358 So.

2d 592 (Fla. 1st DCA 1978) (holding that a dismissal with leave to amend was not

a final, appealable order); Brandal v. State Farm Mutual Auto. Ins. Co., 310 So. 2d

20

780 (Fla. 1st DCA 1975); Dade Cty. Classroom Teachers’ Assn., Inc. v. State Bd.

Of Educ., 269 So. 2d 657 (Fla. 1972) (relinquishing jurisdiction to allow trial judge

to enter a final judgment where trial court had dismissed the action with thirty days

to amend); Hancock v. Piper, 186 So. 2d 489 (Fla. 1966).

Because it is well established in Florida that a dismissal with leave to amend

is not a final, appealable order, Defendant’s motion to enter final judgment as to

Count IV following commencement of trial was proper, well founded, and brought

in good faith. Not only did the trial court thus improperly deny the motion despite

clear case law to the contrary, it compounded this error by ruling that the motion

had been filed “for purposes of delay,” calling it both “curious” and a “spurious

argument.” To make matters worse, the court entered an order suggesting that if

Plaintiffs “desire[d] to go forward on the imposition of attorney fees against the

Defendant and Defendant’s Counsel,” it would hold an evidentiary hearing to

determine the amount of sanctions to be imposed. (App. 318). This Order was

entered although Plaintiffs’ counsel did not move for sanctions or argue that the

motion had been filed for purposes of delay—indeed, Plaintiffs opposed the

motion on grounds not addressed in the Order. See (App. 237–38, 257–60).1 The

1 The court concluded that because the complaint was amended without including a claim for permanent injunction, there was no additional need for finality. See (App. 314–15). The judge ignored the fact that he had entered a separate order that revived Plaintiffs’ ability to include that claim up until the case was completed. Plaintiffs argued that they had made an election of remedies, see (App. 259), but an election under the circumstances constitutes an abandonment of the claim, and it should have been included in the final judgment.

21

Order, which contradicts established case law and reaches beyond the parties’

filings to impose sanctions constitutes a clear departure from the essential

requirements of the law.

Under section 57.105 of the Florida Statutes, sanctions can be imposed sua

sponte only upon a finding that a party’s counsel knew or should have known that

a claim or defense was filed without support by the material facts or existing law.

Since the request for entry for final judgment is neither a claim nor defense, and

was fully supported by existing law, the imposition of sanctions here was a

departure from the essential requirements of law.

Moreover, the court’s rationale for the sanctions was the Defendant’s

supposed “delay” in asking the court for a final judgment. Under section 57.105,

however, sanctions may only be issued for this reason upon a motion by a party

and a showing by the preponderance of the evidence that the primary purpose of

the motion was to delay the court. Here, Plaintiffs never made such a motion and,

more importantly, there was no delay. On February 16, 2018, upon receipt of a

copy of the proposed final judgment that Plaintiffs sent to the judge for entry on

the verdict, Mrs. Hurchalla’s counsel requested a dismissal of Count IV be

included in the final judgment. (App. 213). On February 20, 2018, Plaintiffs filed

a motion for entry of final judgment on the jury verdict, and Mrs. Hurchalla’s

motion for entry of final order of dismissal was filed on February 22, 2018. (App.

22

215, 226). On February 23, 2018, the Court directed the parties to schedule a

hearing on February 28, 2018, and the Defendant’s motion was denied and

sanctions were imposed for “delay” at that hearing. (App. 264–68).

Without the grant of certiorari on this issue, Petitioner is left without an

adequate remedy on appeal. Both Mrs. Hurchalla and her counsel face damage to

their reputations from the award of sanctions. And in light of the trial court’s

rulings encouraging Plaintiffs to seek sanctions, and its actions throughout trial

demonstrating its inability to act as a neutral arbiter (for example, the court denied

every single one of Defendant’s proposed jury instructions, including the only one

devoted to explaining the First Amendment right that had been proposed by any

party), the threat of sanctions is very real. Such damage, particularly in such a

highly publicized case, cannot be undone and could not be remedied on plenary

appeal.

As a result of the trial court’s failure to faithfully apply the essential

requirements of the law, Petitioner faces irreparable harm. Petitioner therefore

requests that this Court grant her petition and quash the trial court’s order

concluding that her motion was filed for purposes of delay and seeking to impose

sanctions.

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CONCLUSION

As a result of the trial court’s demonstrated bias, refusal to act as a neutral

arbiter, and failure to apply the essential requirements of the law, Mrs. Hurchalla

faces irreparable harm. She therefore respectfully requests that the Court grant the

relief requested herein.

Talbot D’Alemberte, Esq. Florida Bar No. 17529 121 N. Monroe Tallahassee, Florida 32301 Telephone: (850) 577-0683 dalemberte@dalemberteandpalmer.com Virginia P. Sherlock, Esq. Florida Bar No. 893544 Howard K. Heims, Esq. Florida Bar No. 38539 LITTMAN, SHERLOCK & HEIMS, P.A. P.O. Box 1197 Stuart, Florida 34995 Telephone: (772) 287-0200 LSHLawfirm@gmail.com

Respectfully submitted, /s/ Richard J. Ovelmen Richard J. Ovelmen, Esq. Florida Bar No. 284904 Justin S. Wales, Esq. Florida Bar No. 99212 Rachel A. Oostendorp, Esq. Florida Bar No. 105450 CARLTON FIELDS JORDEN BURT, P.A. Suite 4200 – Miami Tower 100 S.E. Second Street Miami, Florida 33131 Telephone: 305-530-0050 Facsimile: 305-530-0055 rovelmen@carltonfields.com jwales@carltonfields.com roostendorp@carltonfields.com

Counsel for Defendant/Petitioner Maggy Hurchalla

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was

electronically filed with the Clerk of the Court through the eDCA portal, and

served via e-mail and U.S. Mail on counsel of record listed below on this 8th day

of March, 2018 to:

Counsel for Plaintiff/Respondent Ethan J. Loeb, Esq. John P. Tasso, Esq., Dan Bishop, Esq Christina Carlson Dodds, Esq E. Colin Thompson, Esq. Michael Labbee, Esq., SMOLKER BARTLETT LOEB HINDS & SHEPPARD, P.A. 100 N. Tampa Street, Suite 2050, Tampa, FL 33602 EthanL@smolkerbartlett.com SusanM@smolkerbarlett.com JonT@smolkerbartlett.com cynthiam@smolkerbartlett.com dbishop@bishoplondon.com ColinT@smolkerbartlett.com cdodds61@gmail.com MichaelL@smolkerbartlett.com RochelleB@smolkerbartlett.com

Circuit Court Judge: The Honorable William L Roby Martin County Courthouse 100 East Ocean Blvd. Stuart, FL 34994

/s/ Richard J. Ovelmen

RICHARD J. OVELMEN

25

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this petition complies with Florida Rule of

Appellate Procedure 9.210 by using a Times New Roman 14-point font.

/s/ Richard J. Ovelmen RICHARD J. OVELMEN