18. lta logistics vs enrique varona (varona motion to recuse trial judge)

7/29/2019 18. LTA LOGISTICS vs Enrique Varona (Varona Motion to Recuse Trial Judge)

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IN THE COUNTY COURT OF THE ELEVENTH JUDICIAL CIRCUITIN AND FOR MIAMI DADE COUNTY, FLORIDAGENERAL JURISDICTION DIVISIONCASE NO. 11 20527 CA 21

LTA LOGISTICS, INC.LESTER TRIMINO, et al\Plaint iff ,V* C I R C U I TEnrique Varona ,Defendant ,

VERIFIED MOTION TO DISQUALIFY TRIAL JUDGECOMES NOW, The Defendant, Enrique Varona , who is su i juris in thisaction pursuant to Florida Rule of Judicial Administration 2.330 (d)(l)and moves to disqualify this Honorable Court from presiding in this caseand as grounds therefore would state as follows:

PRIOR MOTION TO DISQUALIFYFlorida Rules of Judicial Administration 2.330 (c) requires disclosure of

the dates of previous motions to disqualify. The undersigned has notfiled a prior motion to disqualify this court.


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BACKGROUND & DISCUSSIONTHE SUMMARY JUDGMENT HEARING OF

, JANUARY 29 , 2013

1. On October 22, 2012 at a Special Hearing held at the offices ofthe honorable Judge Marcia Caballero. The plaintiff agreed to producecertain requested documents within 15 days.2. The plaintiff failed to submit the requested documents.3. On December 13, 2012 The honorable Judge Marcia Caballeroissued an order to compel documents.4. The plaintiff failed to comply with Judge Caballeros order tocompel.5. On January 29,2013 the defendant scheduled a hearing for a Motionfor Summary Judgment against the plaintiff in accordance with FloridaRules of Civil Procedure rule 1.380 (2)(c) which states:

(2 ) If a party or an o f f i c e r , director, or managing a g e n t of a partyor a person fails to obey a n order to provide or permit discovery, :(C ) An o rd er striking out pleadings or parts of them or s taying

further proceedings until the order is obeyed , or dismissing theaction or proce ed i ng o r a n y par t of it. or r e nde r i ng a judement bydefault a e a i n s t the d isobedien t party.


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6. The hearing took place in Judge Antonio Arzola's chambers whois the presiding judge over the case. The hearing was conducted inan unprofessional and abusive manner towards the defendant. Thejudge allowed the plaintiff attorney to rant at length about the"defendant's character". The plaintiff attorney characterized thedefendant in a demeaning and dismissive way by stating the he was"just an employee" with a grudge against a former employer.

A) In violation of, The State of Florida Bar Code ofProfessional Conduct, rule Rule 4-3.5, Impartiality andDecorum of the Tribunal by influencing a decision maker.B) In violation of, the rules of The State of Florida Bar ofProfessional Conduct Rule 4-3.3, Candor Toward the Tribunalwhich states that a lawyer shall not knowingly: (1) make a falsestatement of material fact or law to a tribunal.C) In violation of, Judicial CANON 3 (6), A Judge ShallPerform the Duties of Judicial Office Impartially and Diligently,which states:(6 ) A judee shal l require lawyers in proceedings before the judgeto refrain from mani fes t ing, by words, gestures, or other conduct,b ias or prejudice based upon ra c e , sex, rel igion , na t ional origin ,disability, age, sexual orienta t ion, or sodoeconomic status,aga in s t pa rties, witn esses, coun sel , or others..,


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7. Judge Arzola, issued a "second" order to compel. This is anexample of a judge practicing law from the bench. This new order bythe judge blocked the defendant from presenting on the record an dreceiving a ruling on his motion for Summ ary Judgment, this violatesJudicial CANON 3 (5). bias through condu ct.8. The new order to compel by default eliminated the plaintiffscontempt of cou rt for their failure to comply with the order to compelof Judge Caballero. The defendant was obstructed by the court fromreceiving his remedy according to rule 1.380 (2)(c) which was a rulingof Summary Judgment against the plaintiff.9. The deadline to comply with the new order to compel wasFebruary 11, 2013. The plaintiff failed to comply with Judge Arzola'sorder to compel.

THE CONTEMPT OF COURT HEARING OFFABRUARY 28. 2013.

10. On Thursday, February 28, 2013 the defendant scheduled a courthearing to present a Motion for Contempt of Court against the plaintiffin compliance with Florida Rule of Civil Procedure rule 1.380 (d) whichStates: "(D ) In stead of any of the foregoing orders or in ad dition to them, anorder treating as a contempt o f court the failure to obey any orders...


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11. The defendant waited two hours at court, from 9:00 am until11:00 am, because the plaintiff attorney never showed up.

12. Judge Arzola asked his bailiff and his assistant to contact theplaintiff attorney by phone. Once they contacted the plaintiff attorneyover the phone, the judge asked the defendant to exit the hearing roomto talk on the phone "ex-par t e "with the plaintiff attorney. In violationof Judicial CANON 3 (7), which states:

(7 ) A judge shall accord to every person who has a l ega l interestin a proceeding, or that person's lawyer, th e right to be heardaccordins to law.A \udze shal l not in i t ia te , permit , or consider exparte c o mmun ic a t i o ns , or consider other comm unicat ions m a de tothe judge outside th e presence of th e parties concern ing a pendingor impending proceeding...

13. The plaintiff attorney confirmed to the judge his client had notcomplied with the courts second order to compel, that he had nothanded the defendant any documents, and that he would do so at a laterdate. This Court appears to believe that the plaintiff attorney hasqualified immunity from complying with Florida Rules of CivilProcedures and court orders. On the other hand, the defendant who isPro-se is denied his legal remedies against the plaintiff default andcontempt of court.


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14. Judge Arzola, dismissed the defendant without an opportunity tobe heard on his motion because the opposing counsel did not show up to

"his contempt of court hearing" because he was "too busy" as he statedto the judge over the phone.15. Judge Arzola told the defendant that because there would be atrial setting conference on Thursday, March 7, 2013 that he was notgoing to hear any motions on the case until then.16. This appears to be a case of "Retro-causation" a quantumphysics theory which stipulates, that events that happen in the futuresomehow change the past.17. Why would a trial setting conference held in "the future" changethe fact that the plaintiff was in contempt of court fo r failing to complywith the courts order to compel (twice)? This can only be described as alame excuse of someone who is going out of his way to justify, protect,and mitigate the negative consequences resulting from the opposingparties unlawful behavior. This demonstrates that this is not animpartial and fair court.18. The fact was that the plaintiff was in contempt of court, refusedto attend the court hearing, admitted he was in contempt of court, and


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this Court refused to rule on the issue and deny the defendant his day inCourt and equal protection under the law (14th Amendment).

19. The judge in denying the defendant access to the court and a fairhearing on a Motion for Contempt of Court, neglected to correct awrong, obstructed justice by tampering with a witness, denied thedefendant equal access to public services, and became an accessoryafter the fact of violations of court rules and procedures.20. The defendant has been "defeated in victory" time and time againby this court at the expense of honest due process.21 . This court is in conflict with Judicial CANON 1, A Judge ShallUphold the Integrity And Independence of the Judiciary, which states:

An i n d epend en t and honorab l e judiciary is indispensable to justicein our society. A judge should participate in establishing,main ta ining , a n d enforcing high s tandards o f conduc t , and shallpersonal ly observe those s t anda r ds so tha t the integrity a n dindependence o f the judiciary may be preserved. The provisionsofthis C o d e should be construed a n d applied to further tha tobjective.

22. The events described herein, constitute a pattern of immenseabuse. The defendant believes that if he had been the one refusing to


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comply with two court orders to compel, refusing to attend a courthearing scheduled by the plaintiff attorney because "he was too busy",

this court would have had no problem in finding the defendant incontempt of court and a final judgment would have been entered againsthim.23. The defendant has lost confidence in the integrity and impartialityof this court. This court is in violation of Judicial CANON 2: A JudgeShall Avoid Impropriety and the Appearance of Impropriety in all of theJudge's Activities, which states:

A. A iudse shall respect a n d comply with the law an d shal l ac t a ta l l t imes in a m a n n e r that promotes publ ic confidence in theintegrity an d impa rtial i ty of the judiciary.

24. It seems to the defendant that there is an unacceptable doublestandard in this court, were the plaintiff attorney, regardless of whatprocedure rules he breaks or how many violations of law he commits, isimmune from the rule of law because he is protected by this court. Theplaintiff attorney routinely lies to the judge, ignores court orders toproduce and compel documents, fails to attend court hearings, and hedoes so only because he knows he can get away with it without anynegative consequences. Therefore, the credibility of this court has beenfatally compromised.


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DEFENDANT HASREASONABLE FEAR THAT HE CANNOTGET A FAIR TRIAL OR HEARING BY THIS COURT

The events described herein are the core issues that warrant this motionto disqualify this trial court and are based on the belief by the defendantthat he cannot receive a fair and impartial trial since, so far hisexperience has been that has not received a fair and impartial hearing inthis honorable court.

LEGAL STANDARD FO R THIS MOTION TO DISQUALIFYFlorida Rule of Judicial Administration 2.330(f) provides that the

"judge aga ins t whom a n ini t ial motion to disqualify under subdivision( d ) (1) is d i r ec t ed sha l l d e t e rmine only the l e g a l sufficiency of the motiona n d n o t pass on the t ruth of the a l l eged f ac t s. I f the motion is l egal lysufficient, the judge sha l l immed ia t e l y en t e r a n order g ran t i ngdisqualification a n d proceed no urther in the ac t ion . "

A motion fo r disqualification must be granted if the facts allowedwou ld prompt a reasonable p rudent person to fear that he would not get afair and impartial trial from the judge, Nunez vs. Backman, 645 So.2d1063, 1064 (Fla. 4 th DC A 1994). In ruling on a motion to disqualify, acourt is limited to determining the legal sufficiency of the motion itselfand may not pass on the truth of the facts alleged. Parker vs. State, 3


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So.3d 974, 982 (Fla. 2009). "The s t a n d a r d is whe the r the a l l egedfacts...which must be assumed to be t rue , would cause the mo van t to

have a we l l ground ed f e a r tha t he o r she will n o t rece ive a fa ir tr ia l a tthe h a n d s of the judge....Further this fea r of judicial bias must be we l lgrounded . "

"A judge fa c ed with a motion fo r recusa l should f irst resolve tha tmot ion before making a n y other rul ing in the case.'" Mackenzie vs.Super Kids Bargain Stores, Inc., 565 So.2d 1332, 1339-1340 (Fla. 1990).

A judge must not only be impartial, but he must leave theimpression of his impartiality on all who attend cou rt. Anderson vs.State, 287 So.2d 322, 324 (Fla. 1st DCA 1973). A judge is held to a highstandard of impartiality. "Every l i t igan t i s en t i t l ed to no thing l ess thanthe cold neutra l i ty o f an impar t ia l judge. It is the duty of the Cour t s toscrupulously guard this right a n d t o refrain f r om a t t empt i ng to exercisejurisdiction i n any ma t t e r where h i s quali f ica t ions to do so is seriouslybrought in to q ues t ion ." Hayslip vs. Douglas, 400 So.2d, 553, 557, (Fla.4 th DCA 1981).


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Because of the events, facts and reasons set forth herein, The defendant,Enrique Varona has lost faith in the objectivity of this Court, and has a

reasonable, well founded fear that he will not receive a fair trial by thisCourt. Accordingly, pursuant to Florida Rule of Judicial Administration2.330 (d)(l) and 2.330 (f), this Court must be disqualified.

WHEREFORE, the defendant respectfully requests thisHonorable Court enter its order granting disqualification, and furthercertifies that this motion and the events described herewith are made ingood faith and are truthful to the best knowledge of the movant.

ctfully requested by,0Enriqulp Varona, Sui-juris


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SWORN AFFIDAVIT OF TRUTH

IN WITNESS WHEREOF, I, Enrique Varona, Sui Juris, solemnly affirm and verifythat I have read the foregoing, and know its contents to be true to the best of myknowledge, except as to the matters which are therein stated on my information orbelief, and as to those matters, I believe them to be true. This instrument is submittedupon good faith effort that is grounded in fact, warranted by existing law for themodification or reversal of existing law and submitted for proper purposes, and not tocause harassment and unnecessary delay or costs, so help me God. See SupremacyClause (Constitution, L aws and Treaties are all the supreme Law of the Land).I dectarskunder penalty of perjury, under the laws of the STATE OF FLORIDA, thatthe toregomg is true and correct:

"~--Enrique Varona, Sui Juris14823 sWl2J5 CourtMiami, Florida 33 186On this day came before me the Affiant, a living flesh and blood man/woman to oathand attest and affirm the signature is true, complete, and correct on the foregoingaffidavit. Enrique Varona, the above signed, who is personally known by me or u ponproper oath and identification, personally came before me, the subscriber, a notarypublic in and for said Miami-Dade County and the State of Florida, and DulyAffirmed the truth of the foregoing Affidavit in my presence. The Affiant alsoacknowledged the signing thereof to be his own voluntary act and deed, signing thewithin instrument in my presence and for the purpose therein stated.

Date:Identification provided: r/c$. ./ f


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that a true and correct copy of the foregoingwas forwarded to the plaintiff attorney Scott Egleston, P.A., e-mail andvia U.S. Mail at Brickell Bay Office Tower, 1001 Brickell Bay Drive,Suite #1200 Miami, Florida 33131, on this j> day of March,2013.

I HEREBY CERTIFY, that a true and correct copy of the forgoingwas hand delivered by defendant, Enrique Varona, to the HonorableJudge Antonio Arzola, at room #11 10 of the Miami Dade-CountyCourthouse, on This S_ day of March, 2013.

18. lta logistics vs enrique varona (varona motion to recuse trial judge)

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