Plaintiff's Motion to Disqualify Judge James M Barton, May 20, 2010

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

GENERAL CIVIL DIVISION

NEIL J. GILLESPIE,

Plaintiff, CASE NO.: 05-CA-7205 vs.

BARKER, RODEMS & COOK, P.A., DIVISION: C a Florida corporation; WILLIAM RECEIVED J. COOK,

MAY 20 2010Defendants.

~~~~~~~~~~~~~~/ C~RKOFaRCUITCOU~

PLAINTIFF'S MOTION TO DISOUALIF~~e~~f8Mmv.Fl

Plaintiffpro se, Neil J. Gillespie, moves to disqualify the Honorable James M.

Barton, II, as trial judge in this action pursuant to chapter 38 Florida Statutes, Rule 2.330,

Florida Rules of Judicial Administration, and the Rules of Judicial Conduct. Plaintiff fears

that he will not receive a fair trial because of specifically described prejudice or bias of the

judge. Among other things, last year the wife of Judge Barton received almost $2,000

through her court reporting business from the Defendants, and the law firm representing

Defendants, which are the same entity. The specific grounds in support of this motion are:

Disqualification Standard

I. Canon 3E(I) of the Florida Code of Judicial Conduct provides a judge shall

disqualify himself or herself in a proceeding in which the judge's impartiality might

reasonably be questioned. The Commentary to 3E(I) states that under this rule, a judge is

disqualified whenever the judge's impartiality might reasonably be questioned, regardless

of whether any of the specific rules in Section 3E(I) apply. The question whether

disqualification of a judge is required focuses on those matters from which a litigant may

Page - 2

reasonably question a judge's impartiality rather than the judge's perception of his ability

to act fairly and impartially. A judge has a duty to disclose information that the litigants

or their counsel might consider pertinent to the issue of disqualification. A judge's

obligation to disclose relevant information is broader than the duty to disqualify. Stevens

v. Americana Healthcare Corp. of Naples, 919 So.2d 713, Fla. App. 2 Dist., 2006.

2. Recusal is appropriate where one of the parties or their counsel had dealings with

a relative of the court, or whenever a modicum of reason suggests that a judge's prejudice

may bar a party from having his or her day in court. The function of the trial court on

motion to recuse the trial judge is limited to a determination of the legal sufficiency of an

affidavit, without reference to its truth and veracity. McQueen v. Roye, 785 So.2d 512,

Fla. App. 3 Dist., 2000.

Disclosure under Rule 2.330(c)(4), Fla.R.Jud.Admin

3. Pursuant to Rule 2.330(c)(4), a motion to disqualify shall include the dates of all

previously granted motions to disqualify filed under this rule in the case and the dates of

the orders granting those motions. In this case two judges previously recused themselves.

There was one prior motion to disqualify Judge Barton.

The Honorable Richard A. Nielsen, Circuit Court Judge

4. Plaintiff’s motion to disqualify Judge Nielsen was filed November 3, 2006. Judge

Nielsen denied the motion November 20, 2006 as legally insufficient because it was not

filed in a timely manner. Judge Nielsen recused himself two days later sua sponte stating

that it is in the best interest of all parties that this case be assigned to another division.

5. Misconduct by Defendants’ counsel Ryan Christopher Rodems is responsible for

the recusal of Judge Nielsen. On March 6, 2006 Mr. Rodems made a verified pleading that

Page - 3

falsely named Judge Nielsen in an “exact quote” attributed to Plaintiff, putting the trial

judge into the controversy. The Tampa Police Department recently determined that the

sworn affidavit submitted by Mr. Rodems to the court about an “exact quote” attributed to

Plaintiff was not right and not accurate.

6. Initially Plaintiff had a good working relationship with Judge Nielsen and his

judicial assistant Myra Gomez. Plaintiff attended the first hearing telephonically

September 26, 2005 and prevailed on Defendants’ Motion to Dismiss and Strike. After

Rodems’ stunt Judge Nielsen did not manage the case lawfully, favored Defendants in

rulings, and responded to Plaintiff sarcastically from the bench.

The Honorable Claudia Rickert Isom, Circuit Court Judge

7. This lawsuit was reassigned to Judge Isom effective November 22, 2006. A notice

on Judge Isom’s official judicial web page advised that the judge had a number of

relatives practicing law in the Tampa Bar area and “If you feel there might be a conflict in

your case based on the above information, please raise the issue so it can be resolved prior

to me presiding over any matters concerning your case”. One of the relatives listed was

husband Mr. A Woodson “Woody” Isom, Jr.

8. Plaintiff found a number of campaign contributions between Defendant Cook and

witness Jonathan Alpert to both Judge Isom and Woody Isom. This lawsuit is about a fee

dispute. The only signed fee contract is between Plaintiff and the law firm of Alpert,

Barker, Rodems, Ferrentino & Cook, P.A. Plaintiff’s Motion To Disclose Conflict was

submitted December 15, 2006 and heard February 1, 2007. Judge Isom failed to disclose

that husband Woody Isom is a former law partner of Jonathan Alpert. Mr. Rodems

represented Defendants at the hearing and also failed to disclose the relationship. Plaintiff

Page - 4

only recently learned (March 2010) of the relationship in the course of researching

accusations contained an offensive letter from Rodems to the Plaintiff.

9. Subsequently Judge Isom did not manage the case lawfully, ignored her own law

review on discovery matters, favored the Defendants in rulings, and was prejudiced

against the Plaintiff. A motion to disqualify Judge Isom was submitted February 13, 2007.

A Court Order Of Recusal And Directing Clerk To Reassign To New Division was

prepared and signed by Judge Isom February 13, 2007, and stated the following:

THIS CAUSE came before the court on the plaintiff's motion to disqualify judge.

Although the motion is procedurally sufficient, is it insufficient as a matter of law

in that it appears to have been filed in response to adverse rulings of the court. At

the same time, however, the plaintiff has filed a motion to voluntarily dismiss his

cause leaving pending a counterclaim filed by the defendants. In an abundance of

caution and in an effort to generate confidence in the integrity of the judicial

system in terms of the plaintiffs future court appearances, the court on the court's

own motion on the matter of disqualification has determined that reassignment is

appropriate in this cause. The court having reviewed the file and pleadings filed

therein, does hereby enter this order of recusal, it is therefore,

ORDERED and ADJUDGED the undersigned circuit judge hereby recuses

Division H, the division over which she currently presides, from all matters which

may arise in the future concerning the above-styled cause.

The Clerk of Court is directly to randomly reassign this matter by blind rotation

pursuant to the established administrative procedures and certify below the

division to which this case is reassigned.

DONE AND ORDERED February 13, 2007, in Tampa, Hillsborough County,

Florida. Hon. Claudia Rickert Isom, Circuit Judge

Page - 5

The Honorable James M. Barton, II, Circuit Court Judge

10. This case was reassigned to Judge Barton February 14, 2007. Plaintiff retained

attorney Robert W. Bauer of Gainesville to represent him. Plaintiff could not find an

attorney in the Tampa Bay area to litigate against Barker, Rodems & Cook, PA because

of their bad reputation and the general professional courtesy not to sue another lawyer.

Judge Barton was pleased with Mr. Bauer, and stated so on the record:

THE COURT: It is a good thing for Mr. Gillespie that he has retained

counsel. The way in which Mr. Gillespie's side has been presented today

with - with a high degree of professionalism and confidence reflects the

wisdom of that decision. (Transcript, hearing July 3, 2007, p. 21, line 6)

11. Nonetheless, Judge Barton made disparaging comments on the record about the

Plaintiff, did not manage the case lawfully, and was prejudiced against the Plaintiff.

Judge Barton provided copious hearing time to Defendants to obtain sanctions for a

discovery error and a misplaced defense to a counterclaim. Judge Barton sanctioned

Plaintiff the extreme amount of $11,550 and allowed Defendants to garnish Plaintiff’s

bank account and client trust fund with Mr. Bauer.

12. During hearings on October 30, 2007, and July 1, 2008, Judge Barton allowed

Mr. Rodems to misrepresent that there was a signed written fee agreement between

plaintiff Neil Gillespie and defendant Barker, Rodems & Cook, PA when none exists.

Judge Barton accepted Rodems’ false testimony as true and dismissed three of the four

counts of Plaintiff’s original pro se complaint. This necessitated Plaintiff’s Motion for

Rehearing submitted by Mr. Bauer July 16, 2008. The motion still remains unheard.

Page - 6

13. Judge Barton issued an Order Adjudging Contempt against Plaintiff July 7, 2008

for allegedly failing to comply with the Final Judgment of March 27, 2008, failing to

complete the Fact Information Sheet under oath, failing to serve a copy on Defendants

and provide notice of service of the completed Fact Information Sheet with the clerk of

court. In fact Plaintiff’s counsel Mr. Bauer failed to inform Plaintiff of this requirement.

Mr. Bauer notified Judge Barton of his error by letter July 24, 2008 as follows:

“Dear Judge,

After speaking with my client, making a thorough review of our files and

computer records I must regretfully inform the court and opposing counsel that I

inadvertently made misrepresentations at our last hearing. In that hearing I stated

that my office had forwarded the Information Fact Sheet to Mr. Gillespie. I also

stated that my office had called him to tell him to fill it out. I now understand that

was not correct. Because of my assertions the Court found Mr. Gillespie to be in

contempt. I wish at this time set the record straight.

While I did truly believe that those things had happened at the time I advised the

court of such, I now know that I was in error in not having personally confirmed

such. I take full responsibility for the error and I wish to clarify this to insure that

the court realizes that Mr. Gillespie did not ignore the courts directive.

I apologize both to the court, opposing counsel and Mr. Gillespie for my error.

Sincerely,

Robert W. Bauer, Esq.” (Exhibit 1)

Page - 7

Even though Mr. Bauer admitted his error, Judge Barton failed to reverse the contempt

finding, and continues to retain jurisdiction on the contempt to impose additional

sanctions, as necessary, and to tax attorneys' fees and costs against Plaintiff.

14. Attorney Bauer complained about Mr. Rodems on the record: “…Mr. Rodems

has, you know, decided to take a full nuclear blast approach instead of us trying to work

this out in a professional manner. It is my mistake for sitting back and giving him the

opportunity to take this full blast attack.” (transcript, August 14, 2008, emergency

hearing, the Honorable Marva Crenshaw, p. 16, line 24). Mr. Bauer moved to withdrawal

October 13, 2008. Judge Barton took no action and allowed the case to languish with no

activity for almost one year. Judge Barton failed to fulfill his case management duties

imposed by Rule 2.545, Fla.R.Jud.Admin. Plaintiff also notes that Mr. Rodems failed to

take any action during that one year time period, undercutting his claim that Defendants’

are prejudiced by the length of this lawsuit.

15. One year after Mr. Bauer moved to withdrawal, Judge Barton released him from

the case upon Plaintiff’s request October 1, 2009. Plaintiff moved to disqualify Judge

Barton October 5, 2009, because he feared that he will not receive a fair trial because of

specifically described prejudice or bias of the judge. Judge Barton denied Plaintiff’s

motion for disqualification by order October 9, 2009 and stated:

THIS CAUSE coming before the Court on Plaintiffs Motion to Disqualify Judge

and the Court having considered the motion and being fully advised in the

premises, it is hereby ORDERED AND ADJUDED:

1. Plaintiff has filed a motion pursuant to Fla. R. Jud. Admin. 2.160 (now

renumbered 2.330). The instant motion is Plaintiffs third such motion in this case,

Page - 8

with two predecessor judges having recused themselves on their own motion upon

being served Plaintiffs Motion to Disqualify.

2. The instant motion is legally insufficient and therefore DENIED.

DONE AND ORDERED this 9th day of October, 2009.

Count 1, Plaintiff’s Motion to Disqualify Judge Barton

16. Plaintiff’s Motion To Disclose Conflict was filed May 5, 2010 with a copy hand

delivered to Judge Barton by the bailiff during an unrelated hearing. The motion asked

Judge Barton to disclose his relationship with Ms. Chere J. Barton, President of Regency

Reporting Service, Inc. of Tampa, and Barton Limited of Annapolis, MD.

17. Judge Barton admitted in open court on the record that Ms. Chere J. Barton is his

wife, that Ms. Barton owned a court reporting business, although the Judge incorrectly

called the business “Regency Court Reporting” (p. 28, line 22; p. 46, line 1), not Regency

Reporting Service, Inc., and that Ms. Barton maintains a home office for the business.

Judge Barton said there is no relation to Barton Limited of Annapolis, MD or its

principals and relatives of the same last name.

18. Ms. Chere J. Barton and Regency Reporting Service, Inc. took Plaintiff’s

deposition May 14, 2001 in the AMSCOT lawsuit which forms the basis of the instant

case. Defendant Barker, Rodems & Cook, PA, paid Ms. Barton’s company $417.75 on

May 21, 2001 for the transcript, and $59.60 for a deposition fee on February 7, 2001.

19. Paragraph 10 of Plaintiff’s Motion To Disclose Conflict states: “If the Honorable

James M. Barton, II, is related to any of the persons or entities listed in paragraph 9,

Plaintiff requests an evidentiary hearing to determine the extent and nature of the

Page - 9

relationship to determine if there is a conflict of interest. Plaintiff request that copies of

invoices and other business records be produced at the evidentiary hearing.”

20. Judge Barton admitted that Ms. Chere J. Barton was his wife, and apparently

under her company name, was the court reporter when Mr. Gillespie's deposition was

taken (p. 28, line 18), but Judge Barton did not offer to have an evidentiary hearing to

determine the extent and nature of the relationship to determine if there was a conflict of

interest. Instead Judge Barton instructed Mr. Rodems as follows: THE COURT: “Okay.

Then, if you can go back and do some research and see whether -- if your firm has ever

retained my wife or her firm, Regency Court Reporting (sic).” (p. 28, line 20)

21. On Monday, May 10, 2010, Plaintiff received from Mr. Rodems a letter dated

May 6, 2010, copy of a cover letter to Judge Barton, Defendants Notice of Filing,

Affidavit of Ryan Christopher Rodems, and a proposed Order On Plaintiff’s Motion To

Disclose Conflict. Rodems’ affidavit stated, paragraph 5, that he personally conducted a

review of the records of Barker, Rodems & Cook, P.A., which showed that since Barker,

Rodems & Cook, P.A. was formed, five payments were made by Barker, Rodems &

Cook, P.A. to Regency Reporting Service, Inc. Each of these five payments were for

copies of depositions and the dates and amounts of the payments are as follows:

a February 27, 2001, $59.60

b. June 11, 2001, $417.75

c. March 31, 2009, $433.20

d. March 31, 2009, $886.35

e. March 31,2009, $672.60

The above amounts total $2,469.50, of which almost $2,000 was from last year.

Page - 10

22. Plaintiff fears that he will not receive a fair trial because of specifically described

prejudice or bias of the judge. The Defendants, and the law firm representing the

Defendants, paid almost $2,000 last year to the court reporting business owned by the

wife of Judge Barton. This amount is almost double that allowed for campaign

contributions by attorneys to a trial judge, negating a reference by Mr. Rodems at the

hearing about case law holding that an attorney's legal campaign contributions to a trial

judge are not a legally sufficient ground for disqualification. $2,000 would be an

unlawful campaign contribution under Florida law and grounds for disqualification.

23. In a letter to Plaintiff dated May 6, 2010, Mr. Rodems cited Aurigemma v. State,

964 So.2d 224 (Fla. 4th DCA 2007) and quoted this part: “The motion to disqualify is

based on Aurigemma's allegation that his trial counsel has hired the trial judge's husband

multiple times as an expert witness for his clients in criminal cases. Aurigemma alleges

that the trial judge's husband has benefited [sic] financially from his relationship with

Aurigemma’s trial attorney, whose performance will be evaluated by the judge at the

evidentiary hearing. This ongoing "business relationship" creates the requisite well-

founded fear to support the motion to disqualify. Based on the foregoing, we grant the

petition for writ of prohibition and direct the Chief Judge of the Fifteenth Judicial Circuit

to have this case reassigned to a successor judge.” Plaintiff believes now that Judge

Barton is aware that Defendants and the law firm representing Defendants paid almost

$2,000 last year to the court reporting company owned by the his wife, this creates the

requisite well-founded fear to support the motion to disqualify. Furthermore, an

evidentiary hearing was not held. Plaintiff must rely upon Mr. Rodems’ affidavit. A prior

affidavit of Rodems about an “exact quote” attributed to Plaintiff was found not accurate

Page - 11

after investigation by the Tampa Police Department. To more fully ascertain the truth of

this matter Plaintiff must conduct non-party discovery with Ms. Barton.


24. Judge Barton admitted that Ms. Chere J. Barton was his wife, and apparently

under her company name, was the court reporter when Mr. Gillespie's deposition was

taken (p. 28, line 18). Judge Barton also said Ms. Barton maintains a home office for the

business. Plaintiff believes the transcript prepared by Ms. Barton of his deposition May

14, 2001 is stored in the home office and available to Judge Barton to read at his leisure.

This would prejudice Plaintiff if Judge Barton read about matters and underlying facts in

the instant lawsuit outside the framework of the litigation process. This puts Plaintiff in

fear that he will not receive a fair trial. This is the exchange from the hearing:

(Transcript, May-05-10, page 27, line 5)

5 MR. GILLESPIE: So, that would mean that the

6 transcript, if she has kept a copy of it, is

7 available to you in your home.

8 THE COURT: Well, I also know that she doesn't

9 keep -- if you can imagine -- if she was the court

10 reporter in 2001. If you can imagine, if she kept

11 personal copies of depositions -- all of these

12 hearings and depositions that she has done, we

13 would have to be living in a fifty-room mansion,

25. The size of the transcript is 5 MB. An ordinary storage drive has one terabyte of

space. One terabyte equals 1,048,576 megabytes or enough space for 209,715 transcripts.

Page - 12

Regency Reporting Service, Inc. was formed in 1997, 13 years ago. Even if 10 transcripts

a day were made every day of the year, that would only amount to 47,450 transcripts. So

all the transcripts could be stored in a small space on ordinary computer hardware. From

there any transcript could be printed in a matter of minutes. So the assertion by Judge

Barton that “we would have to be living in a fifty-room mansion” (p 27, line 13) to store

all the transcripts made by Ms. Barton is not factual or credible. Even without the above

calculations, an ordinary person knows that many years of data can be stored on a

computer. Judge Barton’s wild assertion that “we would have to be living in a fifty-room

mansion” shows such exaggeration that creates the requisite well-founded fear to support

the motion to disqualify.

26. Plaintiff requested an evidentiary hearing. (Transcript, May 5, 2010, p. 27)

21 MR. GILLESPIE: And that is fine, Judge. And

22 this is why I think we need an evidentiary hearing

23 to find out where this transcript is and who has

24 seen it.

Judge Barton did not allow an evidentiary hearing, casting more doubt on the matter that

in turn creates the requisite well-founded fear to support the motion to disqualify, a fear

that Plaintiff will not receive a fair trial.


27. Plaintiff’s Motion To Disclose Ex Parte Communication With JNC was filed May

5, 2010 and a courtesy copy handed to Judge Barton by the bailiff at the hearing. The

motion asked Judge Barton to disclose ex parte communication with Mr. S. Cary

Gaylord, an attorney and commissioner on the 13th Circuit Judicial Nominating

Page - 13

Commission (JNC). As of today Judge Barton has not responded. The lack of response

creates the requisite well-founded fear to support the motion to disqualify, a fear that

Plaintiff will not receive a fair trial.

28. Defendants’ attorney Ryan Christopher Rodems has been a perpetual applicant for

every judicial opening in the 13th Circuit for the past two years. In an email dated March

15, 2010 Mr. Gaylord contacted Robert Wheeler, General Counsel1 to the Governor. Mr.

Gaylord wrote “I have personally spoken with Mr. Gillespie, with judges presiding over

various cases mentioned in his complaints and with other lawyers who have been involved

in litigation mentioned by Mr. Gillespie and involving Mr. Rodems.” Mr. Gaylord stated

that he was “convinced that all of Mr. Gillespie's complaints against Mr. Rodems…are

completely without merit.” Therefore it is reasonable to conclude that Mr. Gaylord spoke

with Judge Barton and that Judge Barton has already reached a decision in this lawsuit

favoring the Defendants. Therefore Plaintiff fears that he will not receive a fair trial

because of specifically described prejudice or bias of the judge.

29. Plaintiff wrote and asked Mr. Gaylord if he spoke with Judge Barton presiding in

this lawsuit, and if so what was the substance of the conversation. Mr. Gaylord responded

by letter dated April 13, 2010 that “I recall that there were judges I talked to but I can't

recall which ones” and that he has no notes to refresh his memory.

1 On March 4, 2010 the Governor’s General Counsel Rob Wheeler announced that theGovernor’s Chief Inspector General will conduct an investigation into allegations ofmisconduct against Mr. Rodems’ law partner, Chris A. Barker, a commissioner on the13th Circuit JNC. For 2009 and 2010 Mr. Barker has been unable to attend to his dutieson the JNC because of a foreseeable conflict that he failed to disclose on his application.This has left the 13th Circuit JNC with less than the required nine members.

Page - 14

30. Canon 3(B)(7) of the Rules of Judicial Conduct, states a judge shall not initiate,

permit, or consider ex parte communications, or consider other communications made to

the judge outside the presence of the parties concerning a pending or impending

proceeding. Judge Barton failed to respond to Plaintiff’s Motion To Disclose Ex Parte

Communication With JNC. Plaintiff takes this as a tacit admission of ex parte

communication between Judge Barton and Mr. Gaylord. Based on this conduct, Plaintiff

fears he will not receive a fair trial in this lawsuit and this fear supports disqualification.

31. In Coleman v. State, 866 So.2d 209, Fla. App. 4 Dist., 2004, the appellate court

held the judge should have recused himself due to ex parte communications with the

media. Coleman is similar to this case, and Judge Barton’s discussion with Mr. Gaylord

certainly had far greater influence than the opinion of the media in Coleman.


32. Plaintiff filed a Motion For Dissolution Of Writ Of Garnishment April 28, 2010

and provide a copy to Judge Barton. Defendants obtained writs of garnishment from

Judge Barton against Plaintiff’s bank accounts and client trust fund with attorney Bauer.

The garnishment was to collect $11,550 Judge Barton imposed as sanctions against

Plaintiff. The garnishment took $598.22 from Plaintiff’s bank accounts, all of which is

exempt as Social Security disability income or other exempt money.

33. Plaintiff’s Motion For Dissolution Of Writ Of Garnishment set forth that

Defendants failed to comply with the notice requirement under section 77.041(1)

Florida Statutes, and failed to provide the “Notice to Defendant” required by

section 77.041(2) Florida Statutes. Also, Plaintiff noted that Mr. Rodems made a

bad-faith garnishment of Plaintiff’s bank account and social security disability

Page - 15

benefits. With malice aforethought Mr. Rodems timed the garnishment to

coincide with Plaintiff’s automatic deposit of Social Security disability benefits.

Rodems knows the benefits are exempt under § 222.18 Florida Statutes. Rodems

knows Plaintiff receives Social Security disability benefits from his firm’s prior

representation of Plaintiff in a substantially related matter, from discovery in this

lawsuit, and from the Fact Information Sheet.

34. The court is holding $598.22 belonging to Plaintiff. Section 77.07(1) Florida

Statutes states that “The court shall set down such motion for an immediate hearing.”

Judge Barton failed to set the motion down for an immediate hearing. Because Judge

Barton failed to set the motion down for an immediate hearing, Plaintiff fears that he 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 Plaintiff and/or in favor of the Defendants.


35. During a hearing January 26, 2010, Judge Barton noted communication problems

between the parties and offered to proceed on what he called the “federal approach”. This

is what Judge Barton said. (Transcript, January 26, 2010, page four, beginning line 10)

10 We do have several motions along with some

11 effort that I think needs to be extended to help

12 you all get through this case just to either figure

13 out a way for you all to communicate effectively or

14 in 20 years there was one occasion where I just

15 took what I have heard referred to as the federal

16 approach where people would just send in their

17 motions and say, Judge, I think I need 15 minutes

Page - 16

18 or a half hour or an hour or whatever for this

19 motion and then we just set it. I mean so that you

20 all would not have to talk to each other except by

21 written motions and pleadings, that eliminates the

22 problem but as you can imagine, that is only a last

23 resort.

36. Plaintiff agreed to proceed under the “federal approach” and Judge Barton

explained how the process would work. (Transcript, January 26, 2010 p. 18, line 12)

12 Mr. GILLESPIE: I do. I would like to proceed

13 what you referred to as the federal procedure.

14 THE COURT: Okay. We will do that.

15 MR. GILLESPIE: That is what I would prefer.

16 THE COURT: Now, what that means since I'm

17 aware that both of you have other things going on

18 in your lives, that if somebody sends in a motion

19 and requests, doesn't matter what amount of time,

20 15 minutes or 15 days, I doubt if you will request

21 15 days but you get the idea, that I'm probably

22 going to be setting it in like the next week. I

23 mean it probably would be a couple of weeks out,

24 something like that which has kind of been normal

25 anyway, hasn't it?

(Continued, January 26, 2010 transcript, page 19, beginning line 1)

1 MR. RODEMS: In my experience, yes, sir.

2 THE COURT: So, I just -- you know I don't --

3 by doing this approach the disadvantage, obviously,

Page - 17

4 is that your alls calendars won't be taken into

5 account or consulted. It is not going to be like,

6 here are three possible dates for your hearing.

7 Like what I'm going to do is I get a motion from

8 you and, Judge, I request a half hour for this

9 hearing, I'll just check my calendar, set the

10 hearing for your half hour or 15 minutes or maybe

11 it will -- you know somebody will request a half

12 hour and say, well, you know, this could take more

13 than that. So, I'm going to leave all my options

14 open. So, I just want you to understand what could

15 happen.

16 MR. RODEMS: Your Honor, may I, if I need to

17 request hearing time then suggest to you what is

18 currently on my calendar so that to the extent

19 possible --

20 THE COURT: And that is not a bad idea when

21 you send in a motion and the amount of time you

22 think you need and I will try to accommodate you

23 but I'm not saying that I can. It is obvious the

24 requesting party could say, and, Judge, I would

25 like this the week of March 1st, assuming that is a


1 Monday. Well, I wouldn't have any input from the

2 other side. So, and that is a problem with, you

3 know, the other side request a hearing and I set

Page - 18

4 it. I'm just going to count on you all to make an

5 adjustment. And, you know, I'm sure your calendar

6 varies from day to day.

7 Mr. Gillespie, what about your calendar? Are

8 there any days of the week that you are just not

9 available at all or any mornings or afternoons?

10 MR. GILLESPIE: Judge, the only request I

11 would make because I'm traveling from a hundred

12 miles away is that the hearings be scheduled later

13 in the day.

14 THE COURT: Afternoons, you mean?

15 MR. GILLESPIE: Yes, Judge.

16 THE COURT: Okay. We can do that. And,

17 again, the odds are I will give you, let's say,

18 rule of thumb, a couple of weeks or more lead time,

19 you know that I get something and I wouldn't set

20 it, the next week, it would be two weeks or further

21 out, something like that.

22 MR. RODEMS: And I have a federal court

23 practice as well, Your Honor and I'm accustomed to

24 when the judges call you over there you make

25 whatever arrangements you need to, to be there.


1 So, that is fine. I will certainly be able to do

2 that in this case.

3 THE COURT: And the other thing each of you

Page - 19

4 needs to take advantage of, if you so choose, is

5 there is another Rule of Judicial Administration

6 that allows appearance by telephone if folks so

7 request it. The only exception to that is if there

8 is going to be any testimony, you couldn't testify

9 in a hearing over the telephone unless the other

10 side agrees. So, if we have a fairly short hearing

11 and somebody wants to appear by telephone in

12 anything, like even today, that would have been

13 allowable.

37. Judge Barton’s description of the “federal approach” on January 26, 2010 was

limited to the purpose of setting hearings, with a provision to appear by telephone.

Otherwise the hearings would be conducted under the Fla.R.Civ.P. Judge Barton’s

description of the “federal approach” on May 5, 2010 was significantly different. Judge

Barton eliminated hearings conducted under the Fla.R.Civ.P. This is what Judge Barton

said: (Transcript, page 48, beginning line 15)

15 THE COURT: You see, under the federal

16 approach -- if you really want that -- I refer to

17 that and as shorthand -- the federal approach is to

18 rule on written motions without oral argument from

19 the parties. And if that is what you are wanting

20 me to do, I am more than happy to do that.

21 The second -- and that's if you wanted me to.

22 And I just want to make sure that you understood

Page - 20

23 what I meant by the term, quote, the federal

24 approach, close quote. Because federal judges

25 grant hearings not as a matter of right, which,

(Continued, May 5, 2010 transcript, page 21, beginning line 1)

1 under Florida law, for the most part, if somebody

2 wants a hearing on motions -- again, there are a

3 few exceptions, of course, the Court has to afford

4 them one. Under the federal system, in the civil

5 courts, judges have discretion -- as I understand

6 it, it's total discretion on any and all motions as

7 to whether a hearing like this is granted or not.

38. Plaintiff noted the discrepancy between Judge Barton’s description of the “federal

approach” described by him January 26, 2010, and Judge Barton’s flip-flop May 5, 2010:

(Transcript, May 5, 2010, page 49, beginning line 8)

8 MR. GILLESPIE: Well, the way I understood the

9 description under the federal approach last time --

10 and we have a transcript that we can go back to --

11 was that the motions would be submitted to you, and

12 then, you would set time for the hearing. Now, you

13 are telling me something --

14 THE COURT: That is not the federal approach.

15 The federal approach is deciding whether they --

16 the Court thinks it needs a hearing or not, and it

Page - 21

17 would only set hearings on motions that it felt

18 would be beneficial to have a hearing on, as

19 opposed to entitlement to a have a hearing. But if

20 you think that is appropriate, I will be glad to do

21 that, Mr. Gillespie.

22 MR. RODEMS: Your Honor --

23 THE COURT: Mr. Gillespie, is that what you

24 want me to do?

25 MR. GILLESPIE: Well, that is a difficult --

(Continued, May 5, 2010 transcript, page 50, beginning line 1)

1 that is a different standard of what you said last

2 time. So, my ADA request in front of you now is

3 based upon what you said the last time. Now you

4 are saying something different. So, I would like

5 to think about that.

39. Judge Barton has offered two different descriptions for what he calls the “federal

approach”. This is confusing and disruptive. Because Judge Barton flip-flopped at the

May 5, 2010 hearing and reneged on a procedure agreed to January 26, 2010, Plaintiff

fears that he 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 Plaintiff.

40. The “federal approach” as described by Judge Barton May 5, 2010 is a clear

departure from the Fla.R.Civ.P and would fundamentally alter the nature of court

programs, services, or activities, and may impose an undue financial or administrative

Page - 22

burden on the courts. Plaintiff fears that he will not receive a fair trial because Judge

Barton proposed such an extreme and possibly unlawful process.


41. Plaintiff provided his ADA accommodation request (ADA Request), and ADA

Assessment and Report by Ms. Karin Huffer, MS, MFT, (ADA Report) to Mr. Gonzalo

B. Casares, ADA Coordinator for the 13th Judicial Circuit by hand delivery February 19,

2010. Plaintiff also provided Mr. Casares a completed and signed ADA Request for

Accommodations Form for the 13th Judicial Circuit. Courtesy copies of the documents

were provided to Judge Barton.

42. ADA is an administrative function. As such copies of the documents described in

paragraph 41 were not provided to Defendants, nor is this considered ex parte

communication. Ms. Huffer noted the following about the ADA Report:

This report is to be kept under ADA Administrative confidential management

except for use by the ADA Administrator revealing functional impairments and

needed accommodations communicated to the Trier of Fact to implement

administration of accommodations. This information is NOT to become part of

the adversarial process. Revealing any part of this report may result in a violation

of HIPAA and ADAAA Federal Law.

43. Mr. Casares notified Plaintiff by email April 14, 2010 (relevant portion) “Your

request is not within our means to resolve and was referred to the Legal Department for

the appropriate course of action.” In an email to Plaintiff May 4, 2010, Mr. Casares wrote

(relevant portion) “The medical file was never within our department’s means to help and

Page - 23

was handed over to Legal.” Plaintiff assumes the “medical file” is the ADA Assessment

and Report by Ms. Karin Huffer, MS, MFT, (ADA Report).

44. The online Florida State Courts ADA Information updated Monday, August 24,

2009, describes “Accommodations Provided by the Florida Courts” (Exhibit 2) and states

the following (relevant portion): “As required by the ADA, the determination of whether

an individual has a disability and the accommodation appropriate to a particular situation

is an individualized inquiry and each decision is therefore made on a case-by-case basis.”

45. The online Florida State Courts ADA Information updated Monday, August 24,

2009, describes “Procedures for Requesting an ADA Accommodation” (Exhibit 2) and

states the following (relevant portion): “The judge, court ADA coordinator, or other court

representative, as appropriate to the circumstances, may engage in an interactive process

with the individual in order to determine the appropriate accommodation. After analysis,

the judge, court ADA coordinator, or other court representative, as appropriate to the

circumstances, will inform the individual whether the request will be granted.”

46. Judge Barton either failed to determination whether Plaintiff has a disability as

required by the ADA, or failed to notify Plaintiff about the determination. Mr. Gonzales

said “The medical file was never within our department’s means to help and was handed

over to Legal” so he was not able to make a determination. That left Judge Barton or his

counsel, David Rowland, to make a determination, and neither notified Plaintiff.

47. Judge Barton failed to engage in an interactive process with the Plaintiff in order

to determine the appropriate accommodation. Judge Barton failed to inform the Plaintiff

whether the request would be granted. Mr. Casares said “Your request is not within our

means to resolve and was referred to the Legal Department for the appropriate course of

Page - 24

action.” That only left Judge Barton and his counsel, David Rowland, to make a

determination, and neither notified Plaintiff as required by the ADA.

48. Because Judge Barton failed to determine whether Plaintiff has a disability, or

failed to notify Plaintiff as required by the ADA, Plaintiff fears that he 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 Plaintiff.

49. Because Judge Barton failed to engage in an interactive process with the Plaintiff

in order to determine the appropriate accommodation, and failed to inform the Plaintiff

whether the request would be granted, Plaintiff fears that he 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 Plaintiff.

50. Federal case law interpreting the ADA is applicable to claims arising under the

Florida Civil Rights Act (FCRA). Americans with Disabilities Act of 1990, § 101 et seq.,

42 U.S.C.A. § 12111 et seq.; West's F.S.A. § 760.01 et seq. Moore v. Hillsborough

County Board of County Commissioners, 544 F.Supp.2d 1291. Because Judge Barton

violated Plaintiff’s rights under the ADA, Judge Barton violated the Florida Civil Rights

Act (FCRA). Plaintiff fears that he 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 Plaintiff.


51. On May 5, 2010 Plaintiff arrived for the hearing set by Judge Barton. The Order

Scheduling Hearing (Exhibit 2) set the hearing for one hour, beginning a 3:00pm, and

listed 12 items. This is contrary to Plaintiff’s ADA request.

Page - 25

52. Judge Barton sandbagged Plaintiff at the hearing with a new “plan”. This is what

Judge Barton said: (Transcript, May 5, 2010, page 4, line 12)

12 We do have an hour scheduled today, which may

13 or may not be sufficient to cover all of the

14 motions that we have. The Court's plan is to

15 proceed forward with the hearing, taking these

16 motions one at a time.

17 If we are finished by 4:00, fine; if we are

18 not, I have one motion scheduled at 4:00 o'clock in

19 my chambers in another case, which, if we haven't

20 taken a break before then, we will take a break and

21 then reconvene after that short hearing and finish

22 up.

53. Judge Barton further explained his “plan” later in the hearing: (Transcript, May 5,

2010, page 18, line 15)

15 THE COURT: Well, I am going to give you -- as

16 I have indicated, I am going to give you -- we can

17 be here until 7:00 or 8:00 o'clock tonight.

18 MR. GILLESPIE: Well, that is nice of you,

19 Judge, but I can't be here that long. I have

20 diabetes.

54. Judge Barton’s “plan” was to set a hearing for one hour, beginning at 3:00 PM,

and when Plaintiff arrived, sandbag him and announce the hearing would continue until

Page - 26

“7:00 to 8:00 o’clock tonight.” This would amount to a 4 or 5 hour hearing, and is

contrary to Plaintiff’s ADA request for hearings limited to 1 hour or so. Plaintiff told

Judge Barton that diabetes prevented him from staying 4 or 5 hours instead of one hour

as previously schedule. Plaintiff did not bring diabetes medicine to the hearing. Other

disabilities also prevent Plaintiff from attending a hearing for 4 or 5 hours. All of this

must be addressed under the provisions of the ADA, not in open court on an ad hoc basis.

55. It appears Judge Barton intended to deliberately inflict harm upon Plaintiff based

on his disability instead of making an ADA accommodation. Plaintiff cannot tolerate a 4

or 5 hour hearing due to his disability. In addition, a 4 or 5 hour hearing that extends into

the night would fundamentally alter the nature of court programs, services, or activities,

and may impose an undue financial or administrative burden on the courts. This

marathon hearing would also unnecessarily burden defense counsel and the court

reporter, who, like Plaintiff, planned for a one hour hearing. Also, a marathon hearing

lasting into the night would incur overtime costs for bailiffs and other court personnel.

56. Plaintiff fears that he will not receive a fair trial because Judge Barton proposed a

process that would inflict harm upon him and was not an ADA accommodation.

57. Judge Barton’s “plan” is retaliation against the Plaintiff for making an ADA

accommodation request. Pro se plaintiff's disability retaliation claims brought under Title

VII and Florida Civil Rights Act (FCRA) would be construed as ADA retaliation claim.

Civil Rights Act of 1964, § 704(a), 42 U.S.C.A. § 2000e-3(a); Americans with

Disabilities Act of 1990, § 503(a), 42 U.S.C.A. § 12203(a); West's F.S.A. § 760.10(7).

Moore v. Hillsborough County Board of County Commissioners, 544 F.Supp.2d 1291.

Page - 27

Because Judge Barton retaliated against the Plaintiff for making an ADA accommodation

request, Plaintiff fears that he will not receive a fair trial.


58. Judge Barton announced at the hearing May 5, 2010 that he would not follow the

Florida State Courts ADA procedure described in paragraphs 44 and 45 and Exhibit 2.

Plaintiff asked about his pending ADA request at the hearing May 5, 2010 and Judge

Barton responded: (Transcript, May 5, 2010, page 4, line 23)

23 MR. GILLESPIE: Judge, may I speak?

24 THE COURT: About what?

25 MR. GILLESPIE: Judge, as you know, I

(continued, Transcript, May 5, 2010, page 5, line 1)

1 submitted an ADA request. I have not received a

2 response to it yet. It's my understanding that the

3 ADA coordinator was unable to make a decision and

4 that he has sent the matter to the legal

5 department, and that Mr. Roland is the individual

6 that is to make the decision.

7 THE COURT: Well --

8 MR. GILLESPIE: I have not heard from him.

9 THE COURT: Well, his role is to facilitate

10 the request and to evaluate it. My thinking was

11 that compliance with the request is better than any

12 written or oral response.

Page - 28

59. Because Judge Barton announced in open court May 5, 2010 that he would not

follow the Florida State Courts ADA procedure described in paragraphs 44 and 45 and

Exhibit 2, Plaintiff fears that he 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 Plaintiff.


60. Judge Barton’s proposed 4 or 5 hour marathon hearing failed to account for

Plaintiff’s auditory disability. During an earlier hearing before Judge Isom on February 5,

2007, Plaintiff informed Judge Isom that he had a problem hearing what was being said.

MR. GILLESPIE: Right now, Judge, my head is swimming to the point where I'm

having a hard time even hearing you. (Transcript, February 7, 2007, p. 45. line 7)

61. In a letter to Mr. Casares dated April 7, 2010 Plaintiff requested a response to his

ADA accommodation request and informed Mr. Casares that Judge Barton’s Order

scheduling 12 motions for one hour did not comply with his ADA accommodation

request. Plaintiff also wrote the following: “Also, on March 29, 2010 I submitted a

Motion For Leave to Amend Americans with Disabilities Act (ADA) Accommodation of

Neil J. Gillespie to the Court. As shown on the Transcript, hearing before the Honorable

Claudia Isom, February 5, 2007 (p45, line 7) I had difficulty hearing and need

accommodation for that disability.”

62. Mr. Casares responded to Plaintiff by email April 14, 2010 “Your difficulty-in-

hearing was not known to me until your latest correspondence. On this matter, we can

help you. We will provide the hand-help amplification device upon your request.”

63. Plaintiff notified Mr. Casares by certified letter dated April 26, 2010 that “Many

years ago I was diagnosed with hearing loss and prescribed a hearing aid which is

Page - 29

available to me.” Plaintiff informed Mr. Casares “I believe my difficulty in hearing is due

to Post Traumatic Stress Disorder (PTSD)”. This is because on February 5, 2007 before

Judge Isom Plaintiff could hear okay until about two hours into the hearing. So the

auditory deficit appeared related to the stress of the extended hearing time. Plaintiff

thought real-time transcription services might help, and made that request with the

understanding it would include a written transcript to refer to at the hearing.

64. On April 28, 2010, Plaintiff wrote to Judge Barton “As of today the Court has not

responded to my ADA accommodation request. On April 14, 2010 Mr. Casares notified

me “Your request is not within our means to resolve and was referred to the Legal

Department for the appropriate course of action.” As of today the Legal Department has

not responded.” Judge Barton did not respond to Plaintiff about his ADA request.

65. On April 28, 2010, Plaintiff submitted Plaintiff’s Motion to Consider Prior ADA

Accommodation Requests. This replaces Motion For Leave To Amend Americans With

Disabilities Act (ADA) Accommodation of Neil J. Gillespie submitted March 29, 2010.

Plaintiff provided Judge Barton a courtesy copy. Judge Barton did not respond.

66. On May 4, 2010, Plaintiff received an email (12:13 PM) from Anita Ellababidy,

Circuit Court Reporters, (813) 307-3597. Ms. Ellababidy wrote (in part), “Tomorrow

afternoon, a member of our staff will be in Judge Barton’s courtroom to assist you with

Computer Aided Realtime Translation (CART) of the proceedings in your case. The

court reporter will sit near you, and you will be able to view her computer to see what is

being said and by whom. It is much like the closed captioning you see on TV.”

67. Plaintiff responded to Ms. Ellababidy by email May 4, 2010 (2:05 PM) in part:

Page - 30

“While I appreciate your offer of CART reporting, I am not sure how helpful it

will be relative to my disability. It was my understanding that there would be

some kind of hard copy generated - not an official transcript - but some kind of

hard copy to read and refer to during the hearing. If your service is like closed

captioned TV, that may be more distracting than helpful.”

“I have anatomically based hearing loss and have a hearing aid. However in my

opinion, which is not a medical opinion, my difficulty in understanding during a

stressful hearing is related to other disabilities. Short term memory is one issue,

and if words move off a screen in CART reporting that would not be helpful.”

Ms. Ellababidy did not respond to Plaintiff’s email.

68. Court Reporter Tamara White appeared at the hearing May 5, 2010 and provided

CART Reporting. CART Reporting not useful for the reasons set forth above. Also, the

type on Ms. White’s computer screen was too small for Plaintiff to read and

simultaneously move about representing himself. Mr. Rodems made comments on the

record to which Plaintiff concurred:


3 MR. RODEMS: Your Honor, just so the record is

4 perfectly clear. The court reporter sitting at the

5 table with Mr. Gillespie, as I understand it, is

6 taking everything down verbatim as it happens. And

7 there is a screen from which Mr. Gillespie is able

8 to read. So, he clearly has the availability of

9 the words that are spoken being in a written

Page - 31

10 fashion that he can observe.

11 And I would note that during the entire time

12 that you and he spoke just now, which went on for

13 some five or ten minutes, he did not look at that

14 scene one time and he seems to be able to hear you

15 quite clearly.

16 THE COURT: Well --

17 MR. RODEMS: I think that is important to note

18 as well.

19 MR. GILLESPIE: Your Honor, I concur with

20 Mr. Rodems. I don't think this would be helpful.

21 So, we are in agreement on that. Thank you, sir,

22 for bringing that up. I appreciate that.

69. Because Judge Barton failed to follow the Florida State Courts ADA procedure

described in paragraphs 44 and 45 and Exhibit 2, the court-provided CART Reporting

that was not useful in accommodating Plaintiff’s disability. It appears that CART

Reporting was provided as a “straw man”, an excuse for the court to claim that it

provided Plaintiff an ADA accommodation when in fact it did not. Plaintiff fears that he

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 Plaintiff.


70. Judge Barton announced on the record he is not sure he would follow Judge

Isom’s law review, even though he admires Judge Isom and also her law review:

Page - 32


5 THE COURT: I am going through the list now.

6 Seven -- while I admire Judge Isom and also her Law

7 Review article that she wrote back in 1998, I am

8 not sure that I am going to apply that.

71. Judge Isom’s law review is Professionalism and Litigation Ethics, 28 STETSON L.

REV. 323, 324 (1998). The law review is listed on Westlaw as good law with no negative

citing references. Judge Barton said that “while I admire Judge Isom and also her law

review article that she wrote back in 1998, I am not sure that I am going to apply that.”

72. Judge Isom’s law review has stood the test of time for 12 years. Stare decisis

is the legal principle by which judges are obliged to obey precedents established by prior

decisions. While a law review is not a prior decision in the strict sense, nothing could be

more on point relative to discovery sanctions in this matter.

73. In her law review Judge Isom urges the use of case management instead of

extreme sanctions. In the instant case Judge Barton took the polar opposite view. Judge

Barton neglected his case management duties imposed by Rule 2.545, Fla.R.Jud.Admin.

Judge Barton granted Rodems multiple hearings with plenty of time to establish, award,

and garnish $11,550 in sanctions. At the same time Mr. Rodems has not provided most of

Defendants discovery in this matter. Now Judge Barton wants to restrict Plaintiff’s

hearing time, or hold ridiculous marathon sessions into the night. Judge Barton accepted

false testimony from Mr. Rodems about a signed contingent fee agreement when none

existed, and dismissed three of four counts of the original complaint on the basis of that

false information. When Mr. Bauer moved to withdrawal in October, 2008, Judge Barton

Page - 33

again abandoned his case management duties imposed by Rule 2.545, Fla.R.Civ.P, and

let the case sit for one year with essentially no movement. Mr. Rodems also took no

action during this year to move the case forward, undercutting his current complaints that

the case is taking too long to adjudicate. Apparently Judge Barton and Mr. Rodems only

want to move the case forward when Plaintiff is not represented by counsel.

74. On May 5, 2010, Judge Barton reiterated that $11,550 in sanctions was

appropriate, even with the benefit hindsight.

13 MR. GILLESPIE: And that is fine, Judge. You

14 made a decision in this case already. You felt

15 that Mr. Rodems was entitled to $11,500 for some

16 really minor missteps.

17 THE COURT: Well, that is your

18 characterization. That, obviously, wasn't the

19 Court's.

20 MR. GILLESPIE: Yes, that is my

21 characterization. Do you still feel that that was

22 appropriate?

23 THE COURT: Yes.

75. Because Judge Barton still feels that $11,550 in discovery sanctions are

appropriate despite overwhelming evidence to the contrary, Plaintiff fears that he 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 Plaintiff.


Page - 34

76. Judge Barton failed to provide Plaintiff equal hearing time in this matter, or to

conduct hearings in the matter he afforded the Defendants. Judge Barton failed to perform

case management duties imposed on him under Rule 2.545, Fla.R.Jud.Admin.

77. For a period of one year following the motion for withdrawal by Robert W. Bauer

on October, 2008, Judge Barton allowed this case to languish and failed to perform his

case management duties imposed by Rule 2.545, Fla.R.Jud.Admin. Mr. Rodems also took

no action during this year to move the case forward, undercutting his current complaints

that the case is taking too long to adjudicate. Apparently Judge Barton and Mr. Rodems

only want to move the case forward when Plaintiff is not represented by counsel.

78. The following is a list of hearing times granted by Judge Barton in this lawsuit:

a. July 3, 2007, Judge Barton, 45 minutes on Defendants motion for section 57.105

FS and discovery sanctions.

b. August 15, 2007, Judge Barton, 45 minutes on Defendants motion for

voluntary dismissal.

c. October 30, 2007, Judge Barton, 45 minutes on Defendants motion for judgment

on the pleadings.

d. March 20, 2008, Judge Barton, 60 minutes on Defendants motion on amount of

attorney’s fees.

e. July 1, 2008, Judge Barton, 30 minutes on Defendants judgment on the

pleadings, fact information sheet

f. October 1, 2009, Judge Barton, 30 minutes on motion to withdrawal by Robert

W. Bauer.

Page - 35

g. January 26, 2010, Judge Barton, 60 minutes for “all pending motions” of which

there were 10 or more outstanding.

h. May 5, 2010, Judge Barton, 60 minutes for the following 12 items:

(1) Plaintiffs Motion to Compel Discovery from 12/14/06

(2) Plaintiffs Second Motion to Compel Discovery from 2/1/07

(3) Plaintiffs Motion for Rehearing from 7/16/08

(4) Plaintiffs Claim of Exemption from 8/14/08

(5) Plaintiff's Motion for Contempt

(6) Plaintiffs Motion for Order to Show Cause and Contempt

(7) Plaintiffs Additional Time to Find Counsel

(8) Plaintiffs Motion for An Order of Protection

(9) Plaintiffs Amended Motion to Disqualify counsel

(10) Defendant's Motion to Compel Production and Attend Deposition

(11) Defendant's Request for Inspection

(12) Defendant's Notice for Trial

79. Plaintiff asked for hearing time equal to what was provided Defendants. Judge

Barton has stated on the record that hearing time is precious due to an “avalanche of

foreclosure cases”. (Transcript, Jan-26-10, p. 15, line 10). “…the volume of cases that we

have now in this division, which is roughly five thousand cases, rather than the less than

one thousand cases only a few years ago…” (Transcript, May-05-10, p. 53 line 25). Mr.

Rodems noted, “the case load that circuit judges, such as yourself, are carrying is at an all-

time high due to the number of foreclosures”. (Transcript, May-05-10, p. 14, line 6).

However a significant number of the foreclosure cases are part of a scheme. As such,

Page - 36

reliance on that excuse to deny Plaintiff the same rights previously given to the

Defendants is prejudicial. Plaintiff must have the same hearing time as Defendants.

80. The Florida Attorney General is investigating one of the nation's largest

foreclosure law firms over allegations it falsified legal documents to expedite foreclosure

cases filed by its lender clients. Tampa-based Florida Default Law Group "appears to be

fabricating and/or presenting false and misleading documents in foreclosure cases,"

according to the AG’s Economic Crimes Division. The investigation is based on

allegations that Florida Default lawyers submitted misleading documents to judges

hearing foreclosure cases.

81. Because Judge Barton has failed to perform his case management duties imposed

by Rule 2.545 Fla.R.Civ.P, Plaintiff fears that he will not receive a fair trial in the court

where the suit is pending on account of the prejudice of the judge against the Plaintiff.


82. Upon information and belief, Plaintiff is being “hometowned” by Judge Barton.

Plaintiff does not believe he can received a fair hearing from Judge Barton. Plaintiff made

this statement at the hearing: (Transcript, May 5, 2010, page 33, line 19)

19 Judge, I see no way to proceed now in this

20 Court because I am being hometowned. I have

21 discussed this case with other attorneys. They

22 said that your $11,000 sanction was extreme. They

23 never heard of it. It was wildly excessive. And

24 they said, you are being hometowned. And

25 "hometowned", in case you are not familiar with the

Page - 37

(continued, Transcript, May 4, 2010, page 34, line 1)

1 term, means that the Court is granting favor to an

2 attorney from its own district and against a party

3 from out of town. And I am from out of town, which

4 is in another county and in another district.

83. Because Judge Barton failed to deny Plaintiff’s statement that he is being

“hometowned”, Plaintiff takes that to mean it is true and admitted by Judge Barton.

Plaintiff fears that he 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 Plaintiff.

84. Last year the Florida Supreme Court ordered the state to reimburse $70,000 to

Hillsborough Circuit Judge Gregory Holder for his expenses in successfully defending

against plagiarism charges. Judge Holder attempted to recover $1.77 million in legal fees.

An untoward entry into Judge Holder’s office by Circuit Judge Robert Bonanno sparked a

grand jury investigation into judicial misconduct in Hillsborough County that resulted in a

presentment December 8, 2000 and the resignation of Judge Bonanno and Circuit Judge

Gasper Ficarrotta. Judge Holder told investigators of conversations he had with bailiff

Tara Pisano. She and Judge Ficarrotta had sex in Ficarrotta's chambers while Judge

Holder conducted jury trials in the next room. Pisano reportedly saw large amounts of

money in Ficarrotta's office, including a cash-filled security box. Pisano saw Ficarrotta

solicit and receive money from lawyers for Sheriff Cal Henderson's 2000 election

campaign. FDLE documents also described a five-year extramarital affair between Judge

Bonanno and his former court clerk, Joan Helms. Misconduct in the 13th Judicial Circuit is

not limited to the courts. State Attorney Harry Lee Coe committed suicide on the eve of an

Page - 38

investigation into gambling debts, loans from employees, and thousands of dollars in bad

check charges. The grand jury noted in its presentment that Judge Holder has a reputation

as a forthright man who is willing to speak his mind and takes a dim view of misbehavior

on the part of his colleagues. This made Judge Holder a target to his detractors. Plaintiff

believes he has become a target for speaking out about Defendants wrongdoing, and

wrongdoing of this court, and is being treated in a similar way to Judge Holder.

85. Plaintiff believes Judge Barton and the Thirteenth Judicial Circuit are unable to

lawfully adjudicate this lawsuit. Plaintiff contacted Court Counsel David Rowland about

case management and other issues, but Mr. Rowland did not responded. Plaintiff wrote

Chief Judge Manuel Menendez, Jr. about issues in this lawsuit but he did not respond.

When court officials fail to respond to correspondence it creates a credibility problem for

the court. It is a violation of the public trust, reflects discredit upon the administration of

justice, and suggests partiality in the consideration of litigants.

86. Because Plaintiff believes the Thirteenth Judicial Circuit is unable to lawfully

adjudicate this lawsuit, Plaintiff believes other alternatives must be considered. Section

38.13 provides for a Judge as litem.

38.13 Judge ad litem; when may be selected in the circuit or county

court.--When, from any cause, the judge of a circuit or county court is

disqualified from presiding in any civil case, the parties may agree upon

an attorney at law, which agreement shall be entered upon the record of

said cause, who shall be judge ad litem and shall preside over the trial of,

and make orders in, said case as if he or she were the judge of the court.

Page - 39

Nothing in this section shall prevent the parties from transferring the cause

to another circuit or county court, as the case may be.

The operative part of this option is the last sentence: “Nothing in this section shall prevent

the parties from transferring the cause to another circuit or county court, as the case may

be.” Plaintiff believes this lawsuit should be transferred to another court.

87. On November 30, 2009, Governor Charlie Crist filed a petition requesting that a

Statewide Grand Jury be convened in order to "examine and evaluate public policy issues

regarding public corruption and develop specific recommendations regarding improving

current laws." On December 2, 2009, the Florida Supreme Court issued an Order to

convene the Nineteenth Statewide Grand Jury for the purpose of investigating crimes,

returning indictments, and making presentments. Attorney General Bill McCollum issued

a statement on the statewide grand jury on public corruption: "Floridians should be able to

be proud of the public officials who serve their state and their communities, not ashamed

of the latest scandal by someone in elected office. We absolutely should expect better of

those we have chosen to lead us. The grand jury will need to examine the blatant theft of

public resources and, perhaps most importantly, the illicit sources of influence upon public

officials and how to lift the cloud of scandal that has been present for far too long.

88. Plaintiff believes aspects of this case should be referred to the Nineteenth

Statewide Grand Jury for prosecution, including, but not limited to, the perjury of Ryan

Christopher Rodems to Judge Nielsen that fatally disrupted this lawsuit. Plaintiff will

forward a copy of Plaintiff’s First Amended Complaint and a copy of this motion to the

Florida Attorney General, and to the Florida Supreme Court for consideration and

suggestions how to proceed, either under section 38.13 FS or some other venue.

89. Because Judge Barton has "hometowned" Plaintiff, he fears that he 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 Plaintiff.

The undersigned movant certifies that the motion and the movant's statements are

made in good faith. Submitted May 20, 2010.

~/'1 _.v~--

Under penalties of perjury, I declare that I have read the foregoing motion and the

facts stated in it are true.

Certificate of Service

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

furnished by mail May 20, 2010 to the office of Ryan Christopher Rodems, attorney for

the Defendants, at Barker, Rodems & Cook, PA, 400 North Ashley Drive, Suite 2100,

Tampa, Florida 33602.

STATE OF FLORIDA COUNTY OF MARION

The foregoing was acknowledged before me by Neil J. Gillespie, who is personally known to me.

Page - 40

"~~rn~?i

~i.··::.j

THE LA W OFFICES OF

ROBERT W. BAUER, P.A. 2815 NW 13th Street, Suite 200, Gainesville, FL 32609

www.bauerlegal.com

Robert w: Bauer, Esq. Tanya M UhI, Esq.

Phone: (352)375.5960 Fax: (352)337.2518

July 24, 2008

The Honorable James M. Barton, II ...4' •• ,......

800 E. Twiggs St., Room 512 Tampa, Florida 33602 Manner of delive!1T - V.So Mai!

Re: Gillespie v. Barker, Rodems, and Cooke ~ . 2:

~:..

tJ:).. Dear Judge: W

N

After speaking with my client, making a thorough review ofour files and computer records I must regretfully inform the court and oppo~ing counsel that I inadvertently made misrepresentations at our last hearing. In that hearing I stated that my office had forwarded the Information Fact Sheet to Mr. Gillespie. I also stated that my office had called him to tell him to fill it out. I now understand that was not correct. Because ofmy assertions the Court found Mr. Gillespie to be in contempt. I wish at this time set the record straight.

While I did truly believe that those things had happened at the time I advised the court of such, I now know that I was in error in not having personally confirmed such. I take full responsibility for the error and I wish to clarify this to insure that the court realizes that Mr. Gillespie did not ignore the courts directive.

I apologize both to the court, opposing counsel and Mr. Gillespie for my error.

Sin~c,/ /Z1/~(0"~-~

Robert W. Bauer, Esq.

cc: Ryan Rodems

Neil Gillespie

1

Florida State Courts ADA Information's Notes

Florida State Courts ADA InformationAug 24, 2009

Subscribe to these Notes

Florida State Courts ADA Information's NotesSubscription Help »

Florida State Courts ADA Information Like

Wall Info Photos Notes Boxes

Florida State Courts ADA Information Monday, August 24, 2009 at 6:08am

The Americans with Disabilities Act (ADA) of 1990 was enacted to ensure that all qualified individuals with disabilities enjoy the same opportunities that are available to persons without disabilities. The ADA Amendments Act of 2008 makes important changes to the definition of the term "disability." United States Department of Justice is responsible for issuing ADA regulation for state and local governments (28 Code of Federal Regulation, Part 35). These federal laws and regulations are collectively referred to as “the ADA” on this page. Equalizing opportunities is of paramount importance to the everyday operations of the judiciary. The Florida State Courts System attempts to make reasonable modifications in policies, practices, and procedures; furnish auxiliary aids and services; and afford program accessibility through the provision of accessible facilities, the relocation of services or programs, or the provision of services at alternative sites, as appropriate and necessary. However, the ADA does not require the court system to take any action that would fundamentally alter the nature of court programs, services, or activities, or that would impose an undue financial or administrative burden on the courts. This page provides an overview of procedures implemented by the Florida state court to make their programs and services accessible to persons with disabilities. For more information about implementation of the ADA in the Florida State Courts System, including Title I/employment, please see http://www.flcourts.org/gen_public/pubs/adamain.shtml. Florida Court ADA Coordinators Each trial and appellate court in Florida has designated an ADA Coordinator to assist individuals with disabilities who need access to court services and programs. Contact information for the Court ADA Coordinators is available at http://www.flcourts.org/gen_public/pubs/adamain.shtml. You can also link to information about ADA procedures in each court from that web page. Procedures for Requesting an ADA Accommodation Qualified individuals with disabilities who need an accommodation to participate in a court proceeding or other court activity or service, should contact the Court ADA Coordinator as far in advance as possible, but preferably at least five working days before the date of the courtroom proceeding or event. Requests may be presented either orally or in written format. Requests must include a description of the disability that necessitates the provision of an accommodation. The judge, court ADA coordinator, or other court representative, as appropriate to the circumstances, may engage in an interactive process with the individual in order to determine the appropriate accommodation. After analysis, the judge, court ADA coordinator, or other court representative, as appropriate to the circumstances, will inform the individual whether the request will be granted. Accommodations Provided by the Florida Courts As required by the ADA, the determination of whether an individual has a disability and the accommodation appropriate to a particular situation is an individualized inquiry and each decision is therefore made on a case-by-case basis. Accommodations that are granted by the state courts are made at no cost to qualified individuals with disabilities. Examples of Title II accommodations that may be provided by the Florida state courts include: Relocating a service to enable a person with a disability to participate Obtaining or modifying equipment or devices Allowing a person with a disability to provide equipment or devices that the public entity is not required to provide Additionally, the Florida State Courts System will generally, upon request, attempt to provide appropriate auxiliary aids and services that are necessary to afford effective communication for qualified persons with disabilities to participate equally in court programs, services, and activities. Examples of auxiliary aids or services that the Florida State Courts System may provide for qualified individuals with disabilities include: Assistive listening devices Qualified sign language interpreters and oral interpreters Real-time transcription services Accessible formats such as large print, Braille, electronic document on diskette, or audio tapes Qualified readers Examples of aids or services the Florida State Courts System is not required to provide under Title II of the ADA include: Transportation to the courthouse Legal counsel or advice Personal devices such as wheelchairs, hearing aids, or prescription eyeglasses Personal services such as medical or attendant care Readers for personal use or study

Sign Up Florida State Courts ADA Information is on FacebookSign up for Facebook to connect with Florida State Courts ADA Information.

gfedcb Keep me logged in Forgot your password?

[email protected] Password Login

Page 1 of 2Florida State Courts ADA Information Notes | Facebook

4/25/2010http://www.facebook.com/pages/Tallahassee/Florida-State-Courts-ADA-Information/1468...

2

Additionally, Florida courts cannot administratively grant, as an ADA accommodation, requests that impact court procedures within a specific case. Requests for an extension of time, a change of venue, or participation in court proceedings by telephone or videoconferencing must be submitted by written motion to the presiding judge as part of the case. The judge may consider an individual’s disability, along with other relevant factors, in granting or denying the motion. Furthermore, the court cannot exceed the law in granting a request for an accommodation. For example, the court cannot extend the statute of limitations for filing an action because someone claims that he or she could not make it to the court on time due to a disability, nor can the court modify the terms of agreements among parties as an ADA accommodation. Grievance Procedures Each trial and appellate court in Florida has adopted grievance procedures for the prompt and equitable resolution of all complaints alleging a violation of Title II. A grievance is a formal complaint made by a person, or on behalf of a person, alleging that he or she has been subjected to unlawful discrimination, or inaccessibility to facilities, programs, services, benefits, or activities on the basis of a disability. Persons seeking to file a grievance regarding a Florida court should follow the established grievance procedures in the appropriate trial or appellate court. The Florida State Courts System grievance procedure and complaint form are available online at http://www.flcourts.org/gen_public/pubs/adamain.shtml. Comments / Questions / Suggestions Comments, questions, or suggestions may be submitted via email to [email protected].

Updated about 8 months ago · Comment · Like

Facebook © 2010 English (US) About Advertising Developers Careers Terms • Find Friends Privacy Mobile Help Center Blog Widgets

Page 2 of 2Florida State Courts ADA Information Notes | Facebook

4/25/2010http://www.facebook.com/pages/Tallahassee/Florida-State-Courts-ADA-Information/1468...

Date post:	12-Mar-2015
Category:	Documents
Upload:	neil-gillespie
View:	186 times
Download:	0 times

Plaintiff's Motion to Disqualify Judge James M Barton, May 20, 2010

Documents