31. LTA LOGISTICS v Enrique Varona (Motion to Recuse Judge)

7/16/2019 31. LTA LOGISTICS v Enrique Varona (Motion to Recuse Judge)

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IN THE COUN TY COURT O F THE ELEVENTH JUDICIALCIRCUIT IN AND FOR MIAMI D ADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISIONCASE NO. 11 20527 CA 21

LTA LOGISTICS, INC.LESTER TRIMINO, etal,

THEORDINALFILED ON'-v-Enrique Varona,Defendant ,

MOTION TO DISQUALIFY JUDGETHE DEFENDANT, Enrique Varona, a living human being who isnot a straw-man or corporate fiction, who is Sui Juris acting Pro-se inthis action, pursuant to Fla. R. Jud. Admin. 2.33(d)(l), hereby files th efollowing Motion to Disqualify th e Honorable Antonio Arzola frompresiding over an y future motions filed in this case, and as groundstherefore, states as follows:

PRIOR M OTION TO DISQUALIFYFlorida Rules of Judicial Administration 2.330(c) requires the Defendantto inform that on March 4 th , 2013 th e petitioner filed a motion todisqualify this court. The motion was denied by Judge Antonio Arzola.


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FACTS1. D efendant Enrique Varona has been sued by LTA LO GISTICS,

INC. and its owners alleging tortious interference, seeking aninjunction against the defendan t, and money damages. The Plaintifflawsuit was served on June 2011. The Defendant has countersued thePlaintiff for two counts of tortious interference, fraud, civil conspiracy.2. For two years th e Defendant has been seeking relevant evidencefrom th e Plaintiff which are necessary to establish th e facts of the caseand needed by the Defendant for his defense. The requested documentswere in full compliance with th e Fl Rules of Civil Procedures and notobjected to by the Plaintiff.3. O n M ay 4, 2013 the Plaintiff attorney entered certain documentsinto the record as requested from the court order to comp el, amongstthem was the signed em ployment "contract" between th e Plaintiff andDefendant dated June 9 th , 2009.4. O n page 3, section 10, of the contract it required a "mandatory"an d "exclusive" choice of law and forum selection in Virginia and notFlorida. The Defendant filed a motion to dismiss and scheduled ahearing on Ap ril 11, 2013 to coincide with Plaintiff attorney "motion towithdraw as counsel" seeking a court ruling on his motion to dismiss fo r


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lack of personal & subject matter jurisdiction due to improper choice oflaw an d venue.5. In the April 11, 2013 hearing, Judge Arzola refused to hear th eD efend ant's motion to dismiss and issued a stay for 30 days so theplaintiff could hire new counsel.6. O n May 30, 2013 the Defendant scheduled a hearing on his motionto dismiss to coincide with the new counsel, Warren Gam mill &Associates on their scheduled hearing on their "motion to amend thecomplaint". However, this time the new attorneys for the plaintiffentered a different contract that the one entered by the previous attorneyinto th e record, The "new" contract is one dated November 5 th , 2009which is a fraud. The Defendant at all times has objected to thiscontract being entered into the record, has informed the court about thisfraudulent document an d objected to the filing of an amendedcomplaint.7. At the May 30, 2013 hearing Judg e Arzola did not allowed theDefendant to present his motion to dismiss fo r wrong choice of lawand forum selection. The Defendant pointed out that even using th efraudulent contract dated November 5 th , 2009 which the "new counsel"entered without an affidavit in support of the contract, without th e


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consent & agreement of the defendant, and testified regarding thecircumstances around this contract without having firsthand knowledge

of any facts. Ironically the fraudulen t N ove m ber 5th

contract calls for a"mandatory" and "exclusive" forum selection in Broward County andnot this court.8. Neither th e June 9 th 2009 or the November 5 th 2009 "contracts"allows this court to be the lawful venue and/or forum to litigate thisaction. The refore, this court has no subject matter or personaljurisdiction to pursue this action in this court. Judge Arzola has deniedth e Defendant access to the court and due process by preventing him topresent his motions to dismiss twice, but has proceeded to order th eDefendant to answer the amended complaint being fully aware that thiscourt has no jurisdiction to proceed to trial on the plaintiff complaintbased on the wrong choice of venue and law as per BOTH contracts andFlorida case law precedent.

ARGUMENT9. There is no question that "every litigant is entitled to nothing lessthan the cold neutrality of an impartial judge. It is the duty of the Courtsto scrupulously guard this right and to refrain from attempting to


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exercise jurisdiction in any matter where his qualification to do so isseriously brought in question. The exercise of any other policy tends todiscredit the judiciary and shadow the administration of justice."Crosby v . State,97 So.2dl 81, 184 (Fla. 1957) quoting Davis v . Parks,141 Fla. 516, 194 So. 613, 615 (1939). This D efenda nt who is Pro-se isentitled to a fair and impartial Judge, See State ex rel. Brown v. Dewell,131 Fla. 566,179 So.695 (1938). "The question of disqualification

focuses on those matters from which a litigant m ay reasonably questiona judge's impartiality rather than the judge's perception of his ability toact fairly and impartially." Livinsston v. State, 441 So.2d 1083, 1086(Fla. 1985). "A party seeking to disqualify a judge need only show 'a wellgrounde d fear that he w ill not receive a fair trial at the hands of thejudge. It is not a question of how the judge feels; it is a question of whatfeeling resides in the a f f i a n t ' s mind and the basis fo r such feeling. Id .At 1086, quotins State ex rel. Brow n v. Dew ell, 14p4 179 So. at 697-698. See also Suarez v. Dugger, 527 So.2d 190, 191 (Fla. 1983);Michaud-Bergerv . Hurley, 607 So.2d 441, 446 (Fla. 4th DCA 1992).10. The D efendant subm its that the facts in this case demonstrate thatth e D efendant, has a well-grounded fear that the Honorable AntonioArzola will not be fair an d impartial to him in future hearings or trial.


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exercise jurisdiction in any m atter where his qualification to do so isseriously brought in question. The exercise of any other policy tends to

discredit the judiciary and shadow th e administration of justice."Crosby v . State,97 So.2dl 81, 184 (Fla. 1957) quoting Davis v . Parks,141 Fla. 516, 194 So. 613, 615 (1939). This D efen dan t who is Pro-se isentitled to a fair an d impartial Judge, See State ex rel. Brown v. Dewell,131 Fla. 566,179 So.695 (1938). "The question of disqualification

focuses on those matters from which a litigant m ay reasonably questiona judge's impartiality rather than the judge's perception of his ability toac t fairly and impartially." Livinsston v. State, 441 So.2d 1083, 1086(Fla. 1985). "A party seeking to disqualify a judge need only show 'a wellgrounded fear that he will not receive a fair trial at the hands of thejudge. It is not a question of how the judge feels; it is a question of whatfeeling resides in the affiant's mind and the basis fo r such feeling.'" Id .At 1086, quotins State ex rel. Brown v. Dewell, 14p4 179 So. at 697-698. See also Suarez v. Dugger, 527 So.2d 190, 19 1 (Fla. 1983);Michaud-Bergerv . Hurley, 607 So.2d 441, 446 (Fla. 4th DCA 1992).10 . The Defendant submits that the facts in this case demonstrate thatth e D efendant, has a well-grounded fear that the Honorable AntonioArzola will not be fair and impartial to him in future hearings or trial.


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First, Judge Arzola, at the withdraw hearing of the Plaintiff previouscounsel on April 11, 2013 engaged the Defendant in silly un-consequential arguments of whether or not this was an administrativecourt or not, an d exhibiting an open hostility towards th e Defendant.Judge Arzola did not allowed Defendant to read his motion and cut himoff several times, the defendant argued that regardless of whether or notth e Plaintiff secured counsel in the future it was clear that this court didno t have subject matter or personal jurisdiction to proceed and that th eretention of a future counsel could not change that fact (well they triedby switching contracts) but still no version of any of the "contracts"presented to this court allows for this cause to be brought in Miami-DadeCounty.11. Although a judge's tone and demeanor towards the party may be

enough by itself to require disqualification of a judge, see Brofrnan v .Florida Hearing Care Center. Inc., 703 So.2d 1191 (Fla. 4th DCA 1997)(joke by judge which led party to believe that judge thought hisallegations in his complaint to be trifling), when it is combined withother factors which demonstrated trial court's bias against the attorneysor party, recusal is required. See .e .g., Jimenez v. Ratine,954 So.2d 706(Fla. 2d DCA 2007); Franco v. State,777 So.2d 1138 (Fla. 4th DCA


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2001); Rucks v. State, 692 So.2d 976 (Fla.2dDCA 1997); Rollins v.Baker, 683 So.2d 1138 (Fla. 5th DCA 1996). The judge's behavior

towards the Defendant at these past hearings clearly demonstrate thathe would have a problem fairly listening to him, be it as witness in anymotions or at trial, or if there is a sentencing.12. As such, based on all of the above, the Defendant reasonablybelieves that it has a well grounded fear that it will not receive a fairhearing or trial before the Honorable Antonio Arzola.Wherefore, based on the foregoing, the Defendant respectfullyrequests that this Court enter an order disqualifying itself from furtherconsideration of the proceeding in the above styled case.

\Resp4esp^ctfullyjSubmitted by,

Varona, Sui JurisL48&3vS.W. 125 CourtMiami, Florida [email protected]


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the forgoing wasmailed by US and email on June L ,2013 to W A R R ENGAMILL & ASSOCIATES, P. A. at Suite 1050, Courthouse Tower 44W est Flagler Street, M iami, Florida 33130.

ctfully ^ubmitted by,

inrique Varona, Sui Juris acting Pro-se1482&S.W. 125 CourtM iami, Florida [email protected]

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31. LTA LOGISTICS v Enrique Varona (Motion to Recuse Judge)

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