IN THE DISTRICT COURT OF APPEAL FOR THE SECOND DISTRICT STATE OF FLORIDA Ee E | 1 i MARK A. ADAMS and MARK A. ADAMS, P.A. MAR 16 2004 Petitioners, v. Case No.: 2D04-636 JEFFREY S. SMITH, SILARON P. SMITII, CORPORATE SPORTS MARKETING GROUP, INC., CHRISTOPHER C. KING, and DWAYNE MARTINS, Respondents: / PETITIONERS’ VERIFIED MOTION TO DISQUALIFY JUDGES OF THE DISTRICT COURT OF APPEAL FOR THE SECOND DISTRICT OF FLORIDA COMES NOW, Petitioners, MARK A. ADAMS and MARK A. ADAMS, P.A., to file this motion to disqualify the judges of the District Court of Appeal for the Second District of Florida showing: BASIS FOR JURISDICTION FOR THIS MOTION Florida Statutes § 38.10 requires that “Whenever a party to any action or proceeding makes and files an affidavit stating fear that he or she will not reccive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated in the mannerprescribed by the laws of this state for the substitution of judges for the trial of causes in which the presiding judge is disqualified.” A person has a fundamental right to a fair proceeding before an impartial panel of judges in a case pending before Florida’s district courts of appeal. See, 5-H Corp. v. Padovano, 708 Sv.2d 244, 248 (Fla. 1997). STATEMENT OF FACTS 1. On October 27, 2003, the Petitioners filed a Petition for a Writ of Prohibition with this Court.' This Petition was assigned Case No.: 2003-4844. 2. On October 29, 2003, the Clerk of this Court issued an order in Case No.: 2103-4844 staying proceedings in the trial court, (App. 1). However, the “In this petition for a writ of prohibition, the Petitioners argued that Judge Crockett Farnell should have granted their motions for disqualification based on the affidavits of the Petitioners’ former client and an independent witness showing that the Defendants below had repeatedly boasted of their attorney’s connections and implied that their attomey had the ability to improperly influence Judge Crockett Farnell, based on Judge Farnell’s failure to rule on a motion for disqualification which was filed on July 31, 2003 until September 24, 2003, based on the showing, that Judge Farnell looked beyond the mere legal sufficiency of a suggestion of prejudice when considering whether the Petitioners" motions established grounds for his disqualification, and hased on evidence that Judge Farell had engaged in at least one ex parte conference with counsel for the Defendants below. Contrary to the Florida Supreme Court’s decisions in Livingston v. State, 441 So.2d 1083 (Fla. 1983), Davis v. Parks, 194 So. 613 (Fla. 1939), Bundy v. Rudd, 366 So.24 440 (Fla. 1978), Fuster-Escalona v, Wisotsky, 781 $0.24 1063 (Fla. 2000), and Tableau Fine Art Group, Ine. v. Jacoboni, 28 Fla. L. Weekly $ 412 (Fla. May 22, 2003), and other decisions of the district courts of appeal of Florida, the Second District, denied this petition for a writ of prohibition with prejudice. Due the size of that petition for a writ of prohibition and its appendix, it has not been included in the appendix to this motion.notes found in the record show that the Honorable Patricia J. Kelly and the Honorable Douglas A. Wallace directed that an Order to Show Cause was to be issued on October 29, 2003 in Case No.: 203-4844. (App. 2). The Clerk of this Court, James Birkhold, failed to issue the order to show cause to Judge Crockett Ianell as directed by Judge Kelly and Judge Wallace and issued the order of October 29, 2003 staying proceedings in the trial court without any authorization for doing so appearing in the record, and the Clerk’s actions appear to be in violation of Fla. Stat. § 838.022 and § 839.13 which prohibit falsification of official documents. 3. Although the Honorable Patricia J. Kelly and the Honorable Douglas A. Wallace were originally assigned to the panel for Case No.: 20-4844, the panel was rearranged, and on November 24, 2003, a panel composed of the Honorable Stevan T. Northeutt, the Honorable E. J. Salcines, and the Honorable Virginia M. H. Covington denied the petition for writ of prohibition with prejudice in Case No.: 2D03-4844 without opinion without expressly vacating the stay and without issuing an order vacating the stay. (App. 3). 2 'The Petitioner, Mark A. Adams, has been informed by deputy clerks that the notes and initials made on the face of pleadings and motions indicate that the judges who have initialed the pleading or motion have authorized the issuance of ‘an order granting the relief shown by the notes made thereon. 34. On December 4, 2003, the Petitioner, Mark A. Adams, and his assistant contacted the office of the Clerk of this Court to check on the status of proceedings in Case No.: 2D03-4844, and they were informed that an order denying the petition for writ of prohibition with prejudice had been entered on November 24, 2003. As the Petitioncrs had not received a copy of the Court's order of November 24, 2003, the Petitioner’s assistant requested that the deputy clerk send a copy to the Petitioner via fucsimile and asked the clerk to check the address that the Court’s order of November 24, 2003 had been sent to. The deputy clerk informed the Petitioner’s assistant that the Court’s order of November 24, 2003 had been sent to P.O. Box 1079; Valrico, FL 33595.* Please sce the affidavit of the Petitioners’ wife and assistant, Lisa S. Adams. (App. 4). 5. On December 9, 2003, in Case No.: 2D03-4844 the Petitioners timely filed a motion for rebearing, request for written opinion, and motion for rehearing en banc with the clerk of this Court (App. 5) and a request for address correction. (App. 6). “Please note that the only copy of this Court’s order of November 24, 2003 that the Petitioners have received from the office of the Clerk of this Court is the one in App. 3 which shows that it was transmitted via facsimile to the Petitioners at 16:57 on 12/04/03. Also, please note that on December 15, 2003, the Petitioners sent a letter to the Petitioner, Mark A. Adams, P.A. at P.O. Box 1079; Valrico, FL 33595, and this letter was received the next day at the Pctitioners’ P.O. Box 1078; Valrico, FL 33595.6. On or about December 9, 2003, although this Court had stayed proceedings in the trial court, had not vacated that stay, and had not yet issued its mandate in Case No.: 2D03-4844, Timothy W. Weber, Esquire, improperly scheduled a hearing for January 7, 2004 at 2:30 p.m. in the trial court for a contempt trial on the order o show cause why the Petitioners should not be held in indirect criminal contempt. (App. 7). Please note that Mr. Weber’s certificate of service for this Notice of Hearing indicates that he served a copy via facsimile to the Petitioners on December 9, 2003. (App. 7). Towever, the Petitioners’ facsimile machine's reception journal shows that no facsimile transmission was received on that date.’ (App. 8). 7. Prior to the hearing on January 7, 2004, the Petitioners filed Mark A. Adams’ Mation to Dismiss Order to Show Cause Why Mark A. Adams and Mark A. Adams, P.A., Should Not Be Held in Indirect Criminal Contempt, Motion to Quash Notice of Hearing on Contempt Trial, Amended Motion to Vacate Order Granting Defendants’ Amended Renewed Motion for ees and Sanctions Against Plaintiffs, Jeffrey S. Smith and Sharon P. Smith, and Plaintifis’ Former Counsel, Mark A. Adams and Mark A. Adams, P.A., Pursuant to § 57.105 Fla, Stat. (2001) and the Trial Court’s Inherent “This is but one of many instances where Timothy W. Weber, Esquire has not served documents on or about the date shown in his certificate of service inAuthority to Sanction and the Judgment on Expenses on Motions to Compel, Motion to Quash Notices of Deposition, and Motion for Protective Order (hereinafter Motion to Dismiss Order to Show Cause) with the clerk of the trial court and hand delivered a copy of this motion to Judge Crockett Farnell’s judicial assistant. (App. 9). Please see the affidavit of the Petitioners’ wife and assistant, Lisa S. Adams. (App. 4). 8. The Petitioners’ Motion to Dismiss Order to Show Cause showed the status of the proceedings in this Court in Case No.: 2D03-4844. (App. 9, p. 5, 7 18). In addition, the Petitioners’ Motion to Dismiss Order to Show Cause showed that Rule 3.840(a) requires that an order to show cause “shall specify the time and place of the hearing...” and that no order to show cause setting a hearing for January 7, 2004 had been issued by the trial court and served on the Petitioners. (App. 9, p. 10). 9. On January 12, 2004, Judge Crockett Farnell issued an order for the arrest of Mark A. Adams for failure to appear at the proceedings on the order to show cause on January 7, 2004, and in this order, Judge Farnell set bail at $25,000.00 to secure the appearance of the Petitioner, Mark A. Adams, at a violation of the rules of procedure and The Florida Bar’s Rules of Professional Conduct.hearing on the order to show cause which was set for February 17, 2004 at 11:00 a.m. (App. 10). 10. On January 29, 2004, the Petitioners filed the Petitioners’ Motion for Extraordinary Relief to Vacate Order for Arrest, to Vacate Judgments, to Quash Notices of Depositions, and to Issue Order to Show Cause Why 2. Writ of Prohibition Should Not Issue (hereinafter Motion for Extraordinary Relief) with the Clerk of this Court in Case No.: 21003-4844, and this mation sought to enforce this Court’s order of October 29, 2003 staying proceedings in the trial court. (App. 11) 11. On January 30, 2004, the Petitioners’ assistant called the office of the Clerk of this Court to ask whether the review of the Petitioners’ Motion for Extraordinary Relief could be expedited due to the serious nature of the position that the Petitioners and their clients had been put in as a result of the order for the arrest of the Petitioner, Mark A. Adams, issued by Judge Crockett Farnell on January 12, 2004 without jurisdiction and in violation of this Court’s order dated October 29, 2003 staying proceedings in the trial court. The deputy clerk informed the Petitioners’ assistant tat she would need to speak with the Clerk of this Court, James Birkhold, about this matter and transferred her call to his office. Mr. Birkhold attempted to mislead the ’ The Petitioner was arrested at his home in front of his family on the morning of13, Petitioners? assistant by telling her that “mandates are not issued in those kinds of cases so the stay was no longer in effect.” Please see the affidavit of the Petitioners’ wile and assistant, Lisa S. Adams. (App. 4). Also, please sec a copy of the Second Distict’s online docket for Case No.: 2D03-4844 from February 2, 2004 which shows that this motion was filed on January 29, 2004. (App. 12). On February 4, 2004, the Petitioners learned that the Petitioners’ Motion for Extraordinary Relief had disappeared from this Court’s online docket for Case Nu. 2D03-4844. Please see a copy of the Second District’s online docket from February 4, 2004 for Case No.: 203-4844. (App. 13). On the morning of February 5, 2004, the Petitioners’ assistant called the office of the Clerk of this Court with the Petitioner, Mark A. Adams, and an independent witness, Michacl J. Santo, on the line to inquire why the Petitioners’ Motion for Extraordinary Relief had disappeared from this, Court’s online docket for Case No. 2D03-4844, and spoke with a deputy clerk named Rhonda. The deputy clerk initially said that nothing had been filed since January 27,2004. When the Petitioners’ assistant explained that she had filed a motion on January 29, 2004 and had a date stamped copy of February 19, 2004 and was released on bond at approximately 10:30 on that date. 8it from the clerk's office, the clerk asked her to hold on while she checked the tile. When she came back on the line, the clerk said that the motion which was filed on January 29, 2004 was in the file and was being considered by the court. The Petitioners’ assistant then asked why it was not showing on the docket, and the clerk replied that it must have been a computer error and that she had never seen anything like that before. The clerk did not mention any notes on this motion indicating that it was being treated as a new petition for a writ of prohibition. Please sec the affidavit of the Petitioners’ assistant, Lisa S. Adams (App. 4), and please see a copy of the first page of the Petitioners’ Motion for Extraordinary Relief which mysteriously shows that without the initials of any judge, the Clerk of this Court, James Birkhold, had supposedly decided on February 4, 2004 that this motion would proceed as a new petition for a writ of prohibition even though it sought to enforce the stay entered in Case No.: 2D03-4844. (App. 14). The Clerk’s treatment of this motion without authorization and his backdating of this treatment appcar to be further violations of Fla. Stat. § 838.022 and § 839.13 which pro! falsification of official documents. On February 5, 2004, this Court issued an order in Case No.: 2104-460 which stated, “This shall proceed as a new proceeding in prohibition,” (App.15) and an order requiring the Petitioner to forward a new filing fee of $250.00 or an affidavit of insolvency within twenty days.° (App. 16). On February 9, 2004, a motion to vacate stay or for a protective order {hereinafter Motion to Vacate Stay) was filed in Case No.: 2D03-4844 by William J. Fuller, IIL, Esquire via facsimile with the clerk of this Court which sought to protect a non-party from the burden of producing discovery in aid of execution sought improperly by counsel for the Respondents/Detendants below. (App. 17). On February 10, 2004, this Court issued an order in Case No.: 2D03-4844 vacating its order staying proceedings in the trial court without allowing the Petitioners any opportunity to respond. (App. 18). This Court’s order of February 10, 2004 clarified that Judge Crockett Farnell had issued the order for the arrest of the Petitioner, Mark A. Adams, on January 12, 2004 without juri tion and in violation of this Court’s order of “The Petitioners eventually learned that the February 5, 2004 order in Case No.: 2104-460 refers to the Petitioners’ Motion for Extraordinary Relief which disappcarcd from the online docket, but not the case file, for Case No.: 2D03-4844 on February 4, 2004. Please see a certified copy of the first page of the Petitioners’ Motion for Extraordinary Relief which mysteriously shows that without the initials of any judge, the Clerk of Court, James Birkhold, had decided that this motion would proceed as a new petition for a writ of prohibition even though it sought to enforce the stay entered in Case No.: 2D03-4844. (App. 15). 10October 29, 2003 staying proceedings in the trial court,’ and this Court’s order of February 10,2004 was based on the approval of the non-party Motion to Vacate Stay by the Honorable Stevan T. Northcutt and the Honorable E. J. Salcines as shown by the notes on the certified copy of the first page of this motion. (App. 19). 17. On February 11, 2004, the Petitioners filed the Petitioners’ Motion for Stay of Mandate in Case No.: 21003-4844 via facsimile with the Clerk of this Court al 4:01 PM. (App. 20). However, this Court’s online docket for Case No.: 2D03-4844 shows this motion as having been filed on February 12, 2004. (App. 21). 18. On February 12, 2004, the Respondents’ Motion for Clarification or Reconsideration of February 10, 2004 Order of the Court (hereinafter Motion for Clarification) was filed in Case No.: 2D03-4844 with the Clerk of this Court. (App. 22). ' This Court’s order of February 10, 2004 clarified that Judge Crockett Farnell had exposed himself to liability to the Petitioner, Mark A. Adams, for the damages that resulted from Judge Farnell’s order for his arrest. These damages are substantial as the Petitioner had to drop out of cases which resulted in injury to his clients, his reputation, and of course, his ability to earn a living for his family. Please see a decision of the Florida Supreme Court in Farish v. Smoot, 58 So.2d 534 (Fla. 1952) if you have any questions about a judge’s liability for actions taken without jurisdiction. * Please note that the Petitioners’ facsimile machine’s message confirmation shows that this motion was successfully transmitted to the office of the Clerk of this Court. (App. 20).ik 20. 21. 22, ‘The Respondents’ Motion for Clarification did not cite any rule or case law supporting their argument that this Court’s order staying proceedings in the trial court did not survive this Court’s order dated November 24, 2003 which denied the petition for writ of prohibition with prejudice without expressly vacating its order staying proceedings in the trial court. (App. 22). On February 16, 2004, this Court entered an order in Case No.: 2D03-4844 vacating its order of February 10, 2004 stating that “the stay was lifted concurrently with the order denying the petition for writ of prohibition on ‘November 24, 2003.” (App. 23). This Court entered its order in Case No.: 203-4844 dated February 16, 2004 without allowing the Petitioners any opportunity to respond to the Respondents’ Motion for Clarification as provided by Fla. R. App. P. 9.300(a). In addition, this Court’s order of February 16, 2004 was based on the approval of the Respondents* Motion for Clarification which was only approved by the Honorable Stevan T. Northentt as indicated by the notes on the certified copy of the first page of this motion. (App. 24). ‘On February 23, 2004, the Petitioners’ Response to Respondents’ Motion for Clarification or Reconsideration of February 10, 2004 Order of the Court was tiled in Case No.: 2D03-4844 with the Clerk of this Court, and this response showed that there was no basis in fact or law for this Court’s23. 24. 25. order of February 16, 2004 stating that “the stay was lifted concurrently with the order denying the petition for writ of prohibition on November 24,2003.” (App. 25). To this date, this Court has not issued its mandate in Case No.: 2D03- 4844; however, the online search for Second District cases by party shows that Case No.: 203-4844 was disposed of on 11/24/03 (App. 26) despite the fact that this Court’s online docket shows that significant activity has occurred since that date. (App. 21). On February 13, 2004, the Petitioners filed a Petition for a Writ of Prohibition with the Supreme Court of Florida, and on February 17, 2004, the Supreme Court of Florida issued an order transferring the Petition for a Writ of Prohibition to this Court which instructed this Court “to expedite consideration of the petition as it appears to be time sensitive.” (App. 27). On February 17, 2004, this Court issued an Acknowledgement of New Case — Transferred from Supreme Court of Florida which acknowledged receipt of the Petition for a Writ of Prohibition pursuant to the transfer of the petition by order of the Supreme Court of Florida and instructed the Petitioners to “Please review and comply with any handouts enclosed with this acknowledgement.” (App. 28). However, this Acknowledgement was27. not postmarked by this Court’s postal meter until February 20, 2004. (App. 29). Despite the fact that the Petition for a Writ of Prohibition in this case showed that Judge Crockett Farnell had entered judgments against the Petitioners without jurisdiction, had charged the Petitioners with indirect criminal contempt of court without any legal basis, and bad issued an order for the arrest af the Petitioner, Mark A. Adams, on January 12, 2004 without jurisdiction and in violation of this Court’s order staying proceedings in the trial court and that case law holds that such actions require the issuance of a writ of prohibition to restrain such abuses of power, this Court denied the Petition for a Writ of Prohibition with prejudice without opinion on March 1, 2004. Although the Petitioners’ former clients, Jeffery S. Smith and John D. Kerin, were both owed thousands of dollars in commissions by their former employer, Corporate Sports Marketing Group, Inc., the Defendant below, their rights were trampled by Judge Crockett Farnell, and they were threatened with being jailed for contempt of court by Timothy W. Weber, Esquire of Battaglia, Ross, Dicus & Wein, P.A. In order to avoid being unjustly jailed for contempt of court, Jeffery S. Smith and John D. Kerin paid to setile their claims against Corporate Sports Marketing Group, Inc.28. Due to Judge Crockett Farnell’s improper actions and this Court’s failure to enforce the law, many have been harmed, and many others are still suffering under the threat of imprisonment for acts which could not be the basis for any charge of contempt of court. (App. 30). As a result of the foregoing, the Petitioners fear that they did not receive a fair hearing from the judges on the panels who considered the Petitions for a Writ of Prohibition in Case No.: 21003-4844 and in this case and that they cannot receive a fair hearing on the Motion for Rehearing, Request for Written Opinion, Motion for Certification, and Motion for Rehearing En Banc that is being filed concurrently with this motion in this case duc to bias in favor of the Respondents and prejudice against the Petitioners shown by the actions of this Court in Case No.: 2D03-4844 and in this case. STANDARD OF LAW Florida Statutes § 38.10 requires that “Whenever a party to any action or proceeding makes and files an affidavit stating fear that he or she will not receive a fair trial in the court where the suit is pending on account of the prejudice of the judge of that court against the applicant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of judges for the trial of causes in which the presiding judge is disqualified.” A person has a fundamentalright to a fair proceeding before an impartial panel of judges in a case pending before Florida’s district courts of appeal. See, 5-H Corp. v. Padovano, 708 So.2d 244, 248 (la. 1997). Incidents which occurred over a period of twenty-five years including one that occurred approximately five months prior to bringing a motion for disqualification can form an adequate basis for disqualification, Livingston v. State, 41 So.2d 1083, 1084-1088 (Fla. 1983). A judge’s statement made during a hearing in which the judge ruled against a party can form an adequate basis to disqualify the judge even though the motion to disqualify is made over two months later and without meeting the other procedural requirements for a motion to disqualify. Pistorino v. Ferguson, 386 So.2d 65, 66-67 (Ila. 3rd DUA 1980). “Section 38.10 gives to litigants a substantive right to seek the disqualification of a trial judge.” Livingston at 1087. “In considering the sufficiency of the allegations to meet the requirements of our procedural process, the technical requirements of the contents of the affidavits need not be strictly applied but, rather, they will be deemed sufficient "if taken as a whole, the suggestion and supporting affidavits are sufficient to warrant fear on the part of" a party that he will not receive a fair trial by the assigned judge.” Livingston at 1087, citing Davis v, Parks, 194 So. 613, 614-615 (Fla. 1939).To determine whether a motion for disqualification is sufficient, this Court looks to see whether the facts alleged would place a reasonably prudent person in fear of not recciving a fair and impartial trial. Jn re. Shea, 759 So.2d 631, 638 (Fla. 2000). A judge should not look beyond the mere legal sufficiency of a suggestion of prejudice when considering whether the motion establishes grounds for his disqualification. Bundy v. Rudd, 366 So.2d 440, 442 (Fla. 1978). “Therefore, the rules permit trial courts to conduct only a "bare determination of legal sufficiency" in order to prevent an adversarial atmosphere from developing between the judge and the litigant.” Tableau Fine Art Group, Inc. v. Jacoboni, 28 Fla. L. Weekly S 412 (Fla. May 22, 2003) citing and quoting Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978). “Once a basis for disqualification has been established, prohibition is both an appropriate and necessary remedy.” Bundy v. Rudd, 366 So. 2d 440, 442 (Fla. 1978) citing Brown v. Rowe, 96 Fla. 289, 118 So. 9 (1928). In Fuster-Escalona v. Wisotsky, 781 So.2d 1063, 1066 (Fla. 2000), the Court stated, “under no circumstances may a judge sit in the trial of an action when his or her neutrality is, shadowed or questioned.” LEGAL ARGUMENT On October 29, 2003, the Clerk of this Court issued an order in Case No.: 21D03-4844 staying proceedings in the trial court. (App. 1). However, a certifiedcopy of the notes found in the recurd show that the Honorable Patricia J. Kelly and the Honorable Douglas A. Wallace dirccted that an Order to Show Cause was to be issued on October 29, 2003 in Case No.: ZD03- 4844. (App. 2). Although the Honorable Patricia J. Kelly and the Honorable Douglas A. ‘Wallace were originally assigned to the panel for Case No.: 2D-4844, the panel was rearranged, and on November 24, 2003, a panel composed of the Honorable Stevan T. Northcutt, the Honorable E. J. Salcines, and the Honorable Virginia M. H. Covington denied the petition for writ of prohibition with prejudice in Case No.: 21D03-4844 without opinion without expressly vacating the stay and without issuing an order vacating the stay. (App. 3). Furthermore, this Court’s order of November 24, 2003 was allegedly mailed to the Petitioners at P.O. Box 1079; Valrico, FL 33595, but it was never received via the U.S. Mail although when the Petitioners sent a letter from Tampa to P. O. Box 1079, it was received at P. O. Box 1078 the next day. In addition, on February 10, 2004, the Second District issued an order in Case No.: 2103-4844 (App. 18) vacating its order staying proceedings in the trial court without allowing the Petitioners any opportunity to respond, and this order was based on the approval of the non-party Motion to Vacate Stay by theHonorable Stevan T. Northcutt and the Honorable E. J. Salcines as shown by the notes on the certified copy of the first page of this motion. (App. 19). On February 12, 2004, the Respondents’ Motion for Clarification was filed with the clerk of the Second District. (App. 22). ‘The Respondents’ Motion for Clarification did not cite any rule or case law supporting their argument that the this Court’s order staying procecdings in the trial court did not survive its order dated November 24, 2003 which denied the petition for writ of prohibition with prejudice without expressly vacating its order staying proceedings in the trial court.’ (App. 22). However, on February 16, 2004, this Court entered an order in Case No.: 2103-4844 vacating its order of February 10, 2004 stating that “the stay was lifled concurrently with the order denying the petition for writ of prohibition on November 24, 2003.” (App. 23). Moreover, the Second District entered its order in Case No.: 2D03-4844 dated February 16, 2004 without allowing the Petitioners any opportunity to respond to the Respondents’ Motion for Clarification as provided by Fla. R. App. P. 9.300(a). Finally, this Court's order of * The Respondents’ Motion for Clarification consisted solely of improper unprofessional attacks on the Petitioners based upon judgments cntcred against the Petitioners without due process and contrary to the case law and facts supporting the claims made in the trial court, upon an investigation by The Florida Bar made based on these improperly entered judgments, and upon the non-party from whom the Respondents had improperly sought discovery in aid of execution despite the fact that the Second District has held that a protective order should be granted to protect one who is not a party to an action from having to produce financial records 19February 16, 2004 was based on the approval of the Respondents’ Motion for Clarification which was only approved by the Honorable Stevan T. Northcutt as shown by the notes on the certified copy of the first page of this motion. (App. 24). Fla. R. App. P. 9.340(b) states, “If a timely motion for rehearing, clarification, or certification has been filed, the time for issuance of the mandate or other process shall be extended until 15 days after rendition of the order denying the motion, or, if granted, until 15 days after the cause has been filly determined.” “The mandate in any case functions to end the jurisdiction of the appellate court and to return full jurisdiction of the case to the trial court. Stare v. Miyasato, 805 So.2d 818, 824 (Fla. 2d DCA 2001). Ifa stay has been entered, the mandate typically causes the stay to end. Jd. “The mandate of an appellate court is the official method of communicating its judgment to the inferior tribunal.” Colonel v Reed, 379 So.2d 1297, 1298 (Fla. 4" DCA 1980), The Petitioners have not found a single case which indicates that Fla. R. App. P. 9.340(b) does not apply to petitions for a writ of prohibition or any other appellate action for that matter except for bond validation proceedings which arc governed by Fla. R. App. P. 9.330(c). In addition, Fla. R. App. P. 9.310(e) provides that a stay shall remain in effect until a mandate issues or the stay is otherwise modified or vacated. Furthermore, the comment to Fla. R. App. P. 9.310 in response to a suhpaena duces tecum in aid of execution. Walter v. Page, 638 20provides that this rule does not limit an appellate court’s power to issue stay orders. Moreover, the comment to I'la. R. App. P. 9.310(e) provides, “The stay is vacated by issuance of mandate or an order vacating i This rule interacts with rule 9.340, however, so that a party has 15 days between rendition of the court’s decision and issuance of mandate (unless issuance of mandate is expedited) to move for a stay of mandate pending review. If such motion is granted, any stay and bond previously in effect continues, except to the extent of any modifications, by operation of this tule. If circumstances arise requiring alteration of the terms of the stay, the party asserting the need for such a change should apply by motion for the appropriate order.” (Emphasis added). It is abundantly clear that no order was issued vacating the Second District’s order dated October 29, 2003 staying proceedings in the trial court until February 10, 2004, that the Second District's order of November 24, 2003 did not expressly vacate the stay, that no one moved to vacate the stay until February 9, 2004, that there is no exception to Fla. R. App. P. 9.340(b) or Fla. R. App. P. 9.310(e) for petitions for a writ of prohibition, and that the Second District has not yet issued its mandate in Case No.: 2003-4844, and therefore, the Respondents’ argument that the Second District’s order of October 29, 2003 staying proceedings in the So.2d 1030, 1031 (Fla. 2d DCA 1994). 2trial court was not in effect until at least February 10, 2004 is absurd. Furthermore, as the Second District has vacated its order of February 10, 2004 and as it has not yet issued ils mandate in Case Ni '1D03-4844, its order of October 29, 2003 staying proceedings in the trial court is still in effect. This Court has not followed the rules of appellate procedure, has refused to enforce its stay, has issued an order without any basis in fact or law, and has refused to follow case law requiring it to issue a writ of prohibition to Judge Crockett Famell. The Clerk of this Court has issued orders without any authorization and has failed to issue the order to show cause to Judge Crockett Farnell as directed by Judge Kelly and Judge Wallace. ‘he foregoing irregularities would place a reasonable person in fear that members of this Court are biased against him or in favor of his opponents, and these improper actions have placed the Petitioner, Mark A. Adams, in fear that he did not receive a fair hearing in Case No.: 203-4844, that he did not receive a fuir hearing on his Petition for a Writ of Prohibition in this action, and that he cannot receive a fair hearing on his Motion for Rehearing, Request for Written Opinion, Motion for Certification, and Motion for Rehearing En Banc. If the order to show cause had been issued as directed by the Honorable Patricia J. Kelly and the Honorable Douglas A. Wallace on October 29, 2003, significant hardships could have been avoided by all parties, especially the 2Petitioners and their clients, and the Petitioners could have obtained a hearing on. their motion to vacate the judgments against them before a judge who is not prejudiced against them and biased in favor of the Defendants or their counsel below. Although there are many plausible explanations for this Court’s actions in Case No.: 2D03-4844 and in this casc, onc may be that the judges of this Court feel that by removing Judge Crockett Famell from this case, his improper actions will be exposed and that such exposure would damage the image of the justice system. If so, those members of this Court apparently fcel that the appearance of a fair judicial system is more important than the fundamental due process rights to a fair trial before an impartial judge in an action where the parties have taken the proper steps to invoke the jurisdiction of the trial court. Hopefully, the members of this Court will reconsider their actions before the image of the judiciary suffers further damage flowing from the injustices done by Judge Crockett Farell and the members of this Court in Case No.: 21003-4844 and in this case. WHEREFORE, the Petitioners respectfully request that the Honorable Stevan T. Northcutt, the Honorable E. J. Salcines, the Honorable Virginia M. H. Covington, the Honorable James W. Whatley, the Honorable Darryl C. Casanueva and any other judges of this Court who feel that they are biased against the Petitioners or biased in favor of the Respondents disqualify themselves so that the 23Petitioners may have their Motion for Rehearing, Request for Written Opinion, Motion for Certification, and Motion for Rehearing En Banc heard by fair and impartial judges. Respectfully submitted, Mark A. Adams, Esquire Mark A. Adams, P.A. CERTIFICATE OF GOOD FAITH The undersigned attorney certifies that this motion and the statements thercin arc made in good faith. Mark A. Adams, Esquire Mark A. Adams, P.A. 24State of Florida County of Hillsborough Before me, the undersigned authority, personally appeared Mark A. Adams. who was swom and says the facts recited in the foregoing motion arc tric. wdAdl— Mark A. Adams Swom to and signed before me on this _/©’= day of March, 2004 by Mark A. Adams. RFE Notary Pubic, Stato of Florida My comm. oxpirea May 28, 2004 (Print, type, or stamp commissioned name of notary.) Personally known Produced identification Type of identification produced 25CERTIFICATE OF SERVICE The undersigned certifies that a copy hereof has been furnished by U.S. Mail to Timothy W. Weber, Esquire, of Battaglia, Ross, Dicus & Wein, P.A., the attorney for CORPORATE SPORTS MARKETING, GROUP, INC., CHRISTOPHER C. KING, and DWAYNE MARTINS, at P.O. Box 41100, St. Petersburg, Florida 33743-1100, facsimile phone number 727-343-4059; to Ricardo A. Roig, Esquire, the attorney for JEFFREY S. SMITH and SHARON P. SMITH, at 4023 N. Armenia Avc., Suite 400; Tampa, FL 33607; facsimile phone number 813-876-0445; and to the Honorable Crockett Farell at 315 Court Street, +e Suite 421; Clearwater, FL 33756 on this _/ 6 ‘~~ day of March, 2004. Mark A. Adams, P.A. Fla. Bar No. 0193178 P.O. Box 1078 Valrico, FL 33595, Phone: 813-654-1235 Facsimile: 813-654-1390 CERTIFICATE OF COMPLIANCE, 1 HEREBY CERTIFY that this motion complies with the font requirements of Fla. R. App. P. 9.100(1). - Hi J Ld A Mark A. Adams, Esquire Mark A. Adams, P.A. 26