KELLY, Judge.
In this petition for writ of prohibition, the petitioners assert that Judge James M. Barton, II, erroneously denied their motion to disqualify him as legally insufficient. We reject that argument. The petitioners alternatively argue that Judge Barton did not rule on their motion within thirty days of service of the motion as prescribed by Florida Rule of Judicial Administration 2.330(j), and thus their motion should have been "deemed granted." We also reject that argument and hold that the petitioners' service of the motion to disqualify did not comport with the rules; thus, Judge Barton's denial order was timely entered within thirty days of the date on which he actually became aware of the motion. For the following reasons, we deny the petition for writ of prohibition.
The underlying background facts in this case are somewhat convoluted and mostly irrelevant to this decision. Suffice it to say that on October 11, 2012, Judge Barton
At the outset, we note that although Judge Barton did not question the timing of the petitioners' motion to disqualify in denying the motion, it appears that any concerns the petitioners had about bias against them should have been raised in October 2012, when the final judgment was entered, yet they waited until this court reversed Judge Barton's ruling to file their motion to disqualify. This court's ability to second-guess the timeliness of the motion when it was not specifically deemed untimely by the circuit judge may be circumscribed. See Santa Catalina Townhomes, Inc. v. Mirza, 942 So.2d 462, 464 (Fla. 4th DCA 2006) (en banc). But our analysis does not depend on the timeliness of the motion, as it is clear that the facts alleged in the motion do not demonstrate that Judge Barton was personally prejudiced against the petitioners or that reasonable persons in their position would fear not receiving a fair trial on remand "because of specifically described prejudice or bias of the judge." Fla. R. Jud. Admin. 2.330(d)(1). Rather, Judge Barton made an adverse ruling (subsequently overturned by this court) in the exercise of his legitimate judicial function. See Santisteban v. State, 72 So.3d 187, 194 (Fla. 4th DCA 2011) ("The fact that the judge has made adverse rulings against the [movant] in the past is not an adequate ground for recusal, nor is the mere fact that the judge has previously heard the evidence."); Claughton v. Claughton, 452 So.2d 1073, 1073-74 (Fla. 3d DCA 1984) ("We cannot on the record before us conclude that the statements set forth in the final judgment upon which the petitioner based her application to disqualify the trial judge were so unrelated to the issues being tried as to constitute other than adverse judicial rulings which under well-settled law are not a basis for disqualification for bias or prejudice.").
Regardless of the timing, the motion to disqualify was procedurally deficient as well as facially insufficient. First, it did not contain a certificate of service on Judge Barton, even though rule 2.330(c) specifically requires the movant immediately to serve a copy of the motion on the judge. We agree with Judge Barton's finding, in an order denying the petitioners' motion to vacate the order denying their motion to disqualify, that the lack of
The undisputed fact is that the petitioners attempted to serve a copy of the motion on Judge Barton by leaving it in a multi-slot drop-box in a public hallway of the courthouse on January 23, 2014. Next to the drop-box is an intercom for communication with the judges' judicial assistants.
The reason for the rule requiring service of a motion to disqualify on the judge is to insure that the judge is actually aware of the existence of the motion. See Tobkin v. State, 889 So.2d 120, 122 (Fla. 4th DCA 2004). In this case, Judge Barton was not actually aware of the existence of the motion until over thirty days after it had been filed. This was due to the means of service chosen by the petitioners, which was not only actually ineffective but procedurally improper.
Rule 2.330(c) requires the movant who files a motion to disqualify a judge to "immediately serve a copy of the motion on the subject judge as set forth in Florida Rule of Civil Procedure 1.080." Rule 1.080(a), in turn, directs that all documents filed in an action "must be served in conformity with the requirements of Florida Rule of Judicial Administration 2.516," which provides that virtually all service is to be by e-mail, with certain limited exceptions applicable to parties not represented by an attorney. Specifically, rule 2.516(b)(1)(C) provides that if a party is not represented by an attorney, that party may nevertheless designate an e-mail address for service. In the case of a party who has not designated an e-mail address, other specific options for service are set out in rule 2.516(b)(2).
We realize that Judge Barton is not a party to this lawsuit.
Rather, even if the rules cannot be interpreted to require e-mail service on Judge Barton, several alternatives are set out for service other than by e-mail. Rule 2.516(b)(2) provides that "[s]ervice on and by all parties who are not represented by an attorney and who do not designate an e-mail address ... must be made by delivering a copy of the document or by mailing it to the party...." Delivery is accomplished by handing it to the party, leaving it at the party's office with a clerk or other person in charge, or, "if there is no one in charge, leaving it in a conspicuous place therein." Rule 2.516(b)(2)(C) (emphasis supplied). Alternatively, delivery may be accomplished by means of facsimile transmission. These rules plainly do not contemplate the means of delivery that the petitioners attempted to use in this case — a drop-box in a publicly accessible hallway. The 1967 Authors' Comment to rule 1.080 reinforces our interpretation of the current version of the rules. The authors went to some lengths to describe what was necessary to insure that the motion or other pleading or paper was actually delivered to the party:
Fla. R. Civ. P. 1.080 cmt. (1967). These comments are not only instructive but also reflect a common-sense interpretation of the meaning of actual delivery to a party's office — the motion must be left within the office.
Moreover, on his page on the Thirteenth Judicial Circuit website, Judge Barton has outlined certain instructions under the Procedures/Preferences tab. At the conclusion of this page, in bold capitalized type, is this note:
Accordingly, we hold that the petitioners' motion to disqualify Judge Barton was legally insufficient and he correctly denied it as such. Furthermore, because service was not accomplished in accordance with rules 1.080 and 2.516, the thirty-day time within which Judge Barton was required to rule on the motion did not run until he actually received it. Accordingly, the automatic grant provision of rule 2.330(j) was not triggered.
WALLACE and KHOUZAM, JJ., Concur.