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An issue that can occur in business litigation is that the judge presiding over a lawsuit may be reassigned, retire or pass away. If that occurs, a successor judge will be appointed and he or she will take over the case. This can present a significant issue when a party seeks for the court to rehear or reconsider a prior ruling in light of new evidence or based on the predecessor judge’s failure to consider a point of law or fact that applied to the court’s determination. Businesses that encounter this circumstance in litigation should be aware that certain decisions by the predecessor judge may be heard by the successor judge and others may need to be appealed.  Peter Mavrick is a Fort Lauderdale business litigation lawyer, and also represents clients in business litigation in Miami and Palm Beach.  The Mavrick Law Firm represents clients in breach of contract litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, and other legal disputes in federal and state courts and in arbitration.

In the case of Balva v. Ontario Wealth Mgmt. Corp., 241 So. 3d 869 (Fla. 4th DCA 2018), the business litigation involved a foreclosure trial.  The trial court entered a modified version of a proposed final judgment submitted by Ontario Wealth Management, Corp. (the “Bank”). The trial court modified the Bank’s proposed final judgment by crossing out the amounts listed for attorney’s fees and costs, as well as the reservation of ruling on that issue. The Bank filed a motion to amend the final judgment to include attorney’s fees and costs following an evidentiary hearing. For some unknown reason, the evidentiary hearing was scheduled before a second judge. The day before the scheduled hearing, the original judge entered an order denying the Bank’s motion to amend the final judgment to include attorney’s fees and cancelling the evidentiary hearing before the second judge. The parties were unaware of this order and proceeded with the evidentiary hearing. The second judge entered an amended final judgment awarding the Bank its attorney’s fees and costs. The defendant immediately appealed. The appellate court reversed the amended final judgment because the original judge made a definitive ruling on the issue of entitlement to attorney’s fees and the second judge abused his discretion in proceeding with the evidentiary hearing on this issue which was already decided.

In support of this decision, Balva cited the case of Drdek v. Drdek, 79 So.3d 216 (Fla. 4th DCA 2012), which quoted Groover v. Walker, 88 So.2d 312, 313 (Fla. 1956), as follows:

It is well established that “a successor judge may not correct errors of law committed by his predecessor and hence he cannot review and reverse on the merits and on the same facts the final orders and decrees of his predecessor.” Drdek v. Drdek, 79 So.3d 216, 219 (Fla. 4th DCA 2012) (quoting Groover v. Walker, 88 So.2d 312, 313 (Fla. 1956)).

The facts in Balva specifically involved a successor judge’s abuse of discretion in correcting or overturning the predecessor’s ruling on the same issues that had already been decided. While the appellate court relied on Groover, it should be noted that Groover did not prohibit a successor judge from ever reconsidering a ruling made by his or her predecessor judge. Groover distinguished between a successor judge hearing matters that were overlooked and those which were definitively decided by a predecessor judge.  The Supreme Court of Florida’s decision in Groover has import for business litigation because a judge may be reassigned after a pertinent injunction hearing, which may necessitate rehearing or modification by the successor judge.  Groover specifically held that:

We take the proper rule to be that where a petition for rehearing, within its proper scope, presents a point which the Chancellor overlooked or failed to consider, rendering a final decree inequitable or erroneous, then the successor Chancellor, exercising the full jurisdiction of the Court, may with propriety consider such petition and take such proper action upon it as could his predecessor who entered the decree. In such instances the successor’s consideration of the case may be said to be in continuation of and supplemental to that of his predecessor.

Certain matters, however, should be reviewed on appeal and not by a successor judge. For example, Groover held that:

[W]here the petition for rehearing merely reargues the case on points and facts found and considered in the prior hearing of the cause, then the petition for rehearing goes beyond its proper scope and it should be denied in any event, and if the Chancellor who entered the final decree has been succeeded, his successor is without authority on such basis to reverse his predecessor contrary to the general rule approved in the Williams case, supra. In such cases, the errors suggested by the petition are matters of review on appeal rather than rehearing by the successor judge.

In business litigation, a successor judge may decide a Motion for Rehearing provided that the Judge’s determination of the motion does not require evidence to be reviewed and given any weight.  Alvord v. Alvord, 572 So. 2d 925 (Fla. 3d DCA 1990) (“A successor judge may complete any acts left uncompleted by his predecessor, if the successor is not required to weigh and compare testimony heard before the other judge”).  Parties in lawsuits cannot control whether the presiding Judge is replaced. However, when the predecessor judge’s decision needs to be revisited, it is important to distinguish what type of error needs to be reviewed so that the lawsuit can be resolved in the most timely and efficient manner.

Peter Mavrick is a Fort Lauderdale business litigation attorney who also practices business litigation in Miami and Palm Beach.  This article does not serve as a substitute for legal advice tailored to a particular situation.

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