IN THE COUNTY COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA GENERAL JURISDICTION

DIVISION
CASE NO. 11 20527 CA 21

LTA LOGISTICS, INC. LESTER TRIMINO, et al\

Plaintiff,
V

CIRCUIT

Enrique Varona, Defendant,

VERIFIED MOTION TO DISQUALIFY TRIAL JUDGE COMES NOW, The Defendant, Enrique Varona , who is sui juris in this action pursuant to Florida Rule of Judicial Administration 2.330 (d)(l) and moves to disqualify this Honorable Court from presiding in this case and as grounds therefore would state as follows: PRIOR MOTION TO DISQUALIFY Florida Rules of Judicial Administration 2.330 (c) requires disclosure of the dates of previous motions to disqualify. The undersigned has not filed a prior motion to disqualify this court.

BACKGROUND & DISCUSSION THE SUMMARY JUDGMENT HEARING OF , JANUARY 29, 2013 1. On October 22, 2012 at a Special Hearing held at the offices of

the honorable Judge Marcia Caballero. The plaintiff agreed to produce certain requested documents within 15 days. 2. 3. The plaintiff failed to submit the requested documents. On December 13, 2012 The honorable Judge Marcia Caballero

issued an order to compel documents. 4. The plaintiff failed to comply with Judge Caballeros order to

compel. 5. On January 29,2013 the defendant scheduled a hearing for a Motion

for Summary Judgment against the plaintiff in accordance with Florida Rules of Civil Procedure rule 1.380 (2)(c) which states:

(2) If a party or an officer, director, or managing agent of a party or a person fails to obey an order to provide or permit discovery, : (C) An order striking out pleadings or parts of them or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part of it. or rendering a judement by default aeainst the disobedient party.

6.

The hearing took place in Judge Antonio Arzola's chambers who The hearing was conducted in

is the presiding judge over the case.

an unprofessional and abusive manner towards the defendant. The judge allowed the plaintiff attorney to rant at length about the "defendant's character". The plaintiff attorney characterized the

defendant 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 of rule Rule 4-3.5, Impartiality and

Professional Conduct,

Decorum of the Tribunal by influencing a decision maker. B) In violation of, the rules of The State of Florida Bar of

Professional Conduct Rule 4-3.3, Candor Toward the Tribunal which states that a lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal. C) In violation of, Judicial CANON 3 (6), A Judge Shall

Perform the Duties of Judicial Office Impartially and Diligently, which states:
(6) A judee shall require lawyers in proceedings before the judge to refrain from manifesting, by words, gestures, or other conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or sodoeconomic status, against parties, witnesses, counsel, or others..,

7.

Judge Arzola,

issued a "second" order to compel. This is an

example of a judge practicing law from the bench. This new order by the judge blocked the defendant from presenting on the record and receiving a ruling on his motion for Summary Judgment, this violates Judicial CANON 3 (5). 8. bias through conduct.

The new order to compel by default eliminated the plaintiffs

contempt of court for their failure to comply with the order to compel of Judge Caballero. The defendant was obstructed by the court from receiving his remedy according to rule 1.380 (2)(c) which was a ruling of Summary Judgment against the plaintiff. 9. The deadline to comply with the new order to compel was

February 11, 2013. The plaintiff failed to comply with Judge Arzola's order to compel.

THE CONTEMPT OF COURT HEARING OF FABRUARY 28. 2013. 10. On Thursday, February 28, 2013 the defendant scheduled a court

hearing to present a Motion for Contempt of Court against the plaintiff in compliance with Florida Rule of Civil Procedure rule 1.380 (d) which States: "(D) Instead of any of the foregoing orders or in addition to them, an

order treating as a contempt of court the failure to obey any orders...

11.

The defendant waited two hours at court, from 9:00 am until

11:00 am, because the plaintiff attorney never showed up. 12. Judge Arzola asked his bailiff and his assistant to contact the

plaintiff attorney by phone. Once they contacted the plaintiff attorney over the phone, the judge asked the defendant to exit the hearing room to talk on the phone "ex-parte " with the plaintiff attorney. of Judicial CANON 3 (7), which states:
(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard accordins to law. A \udze 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...

In violation

13.

The plaintiff attorney confirmed to the judge his client had not

complied with the courts second order to compel, that he had not handed the defendant any documents, and that he would do so at a later date. This Court appears to believe that the plaintiff attorney has

qualified immunity from complying with Florida Rules of Civil Procedures and court orders. On the other hand, the defendant who is Pro-se is denied his legal remedies contempt of court. against the plaintiff default and

14.

Judge Arzola, dismissed the defendant without an opportunity to

be 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 stated to the judge over the phone. 15. Judge Arzola told the defendant that because there would be a

trial setting conference on Thursday, March 7, 2013 that he was not going to hear any motions on the case until then. 16. This appears to be a case of "Retro-causation" a quantum that events that happen in the future

physics theory which stipulates, somehow change the past. 17.

Why would a trial setting conference held in "the future" change

the fact that the plaintiff was in contempt of court for failing to comply with the courts order to compel (twice)? This can only be described as a lame excuse of someone who is going out of his way to justify, protect, and mitigate the negative consequences resulting from the opposing parties unlawful behavior. This demonstrates that this is not an

impartial and fair court. 18. The fact was that the plaintiff was in contempt of court, refused

to attend the court hearing,

admitted he was in contempt of court, and

this Court refused to rule on the issue and deny the defendant his day in Court and equal protection under the law (14th Amendment). 19. The judge in denying the defendant access to the court and a fair hearing on a Motion for Contempt of Court, wrong, neglected to correct a denied the

obstructed justice by tampering with a witness,

defendant equal access to public services,

and became an accessory

after the fact of violations of court rules and procedures. 20. The defendant has been "defeated in victory" time and time again by this court at the expense of honest due process. 21. This court is in conflict with Judicial CANON 1, A Judge Shall Uphold the Integrity And Independence of the Judiciary, which states:

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

22.

The events described herein, constitute a pattern of immense

abuse. The defendant believes that if he had been the one refusing to

comply with two court orders to compel, refusing to attend a court hearing scheduled by the plaintiff attorney because "he was too busy", this court would have had no problem in finding the defendant in

contempt of court and a final judgment would have been entered against

him.
23. The defendant has lost confidence in the integrity and impartiality

of this court. This court is in violation of Judicial CANON 2: A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities, which states:
A. A iudse shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

24.

It seems to the defendant that there is an unacceptable double

standard in this court, were the plaintiff attorney, regardless of what procedure rules he breaks or how many violations of law he commits, is immune from the rule of law because he is protected by this court. The plaintiff attorney routinely lies to the judge, ignores court orders to produce and compel documents, fails to attend court hearings, and he does so only because he knows he can get away with it without any negative consequences. Therefore, the credibility of this court has been fatally compromised.

DEFENDANT HAS REASONABLE FEAR THAT HE CANNOT GET A FAIR TRIAL OR HEARING BY THIS COURT
The events described herein are the core issues that warrant this motion to disqualify this trial court and are based on the belief by the defendant that he cannot receive a fair and impartial trial since, so far his

experience has been that has not received a fair and impartial hearing in this honorable court.

LEGAL STANDARD FOR THIS MOTION TO DISQUALIFY Florida Rule of Judicial Administration 2.330(f) provides that the "judge against whom an initial motion to disqualify under subdivision (d) (1) is directed shall determine only the legal sufficiency of the motion and not pass on the truth of the alleged facts. If the motion is legally sufficient, the judge shall immediately enter an order granting

disqualification and proceed no further in the action. " A motion for disqualification must be granted if the facts allowed would prompt a reasonable prudent person to fear that he would not get a fair and impartial trial from the judge, Nunez vs. Backman, 645 So.2d 1063, 1064 (Fla. 4th DC A 1994). In ruling on a motion to disqualify, a court is limited to determining the legal sufficiency of the motion itself and may not pass on the truth of the facts alleged. Parker vs. State, 3

So.3d 974, 982 (Fla. 2009).

"The standard is whether the alleged

facts...which must be assumed to be true, would cause the movant to have a well grounded fear that he or she will not receive a fair trial at the hands of the judge....Further this fear of judicial bias must be well grounded." "A judge faced with a motion for recusal should first resolve that motion before making any other ruling 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 the impression of his impartiality on all who attend court. Anderson vs. State, 287 So.2d 322, 324 (Fla. 1st DCA 1973). A judge is held to a high standard of impartiality. "Every litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of the Courts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualifications to do so is seriously brought into question." Hayslip vs. Douglas, 400 So.2d, 553, 557, (Fla. 4th DCA 1981).

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 this Court. Accordingly, pursuant to Florida Rule of Judicial Administration 2.330 (d)(l) and 2.330 (f), this Court must be disqualified. WHEREFORE, the defendant respectfully requests this

Honorable Court enter its order granting disqualification, and further certifies that this motion and the events described herewith are made in good faith and are truthful to the best knowledge of the movant.

ctfully requested by,

I Enriqulp Varona, Sui-juris

SWORN AFFIDAVIT OF TRUTH

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

"~^-^Enrique Varona, Sui Juris 14823 sWl2J5 Court Miami, Florida 33 186 On this day came before me the Affiant, a living flesh and blood man/woman to oath and attest and affirm the signature is true, complete, and correct on the foregoing affidavit. Enrique Varona, the above signed, who is personally known by me or upon proper oath and identification, personally came before me, the subscriber, a notary public in and for said Miami-Dade County and the State of Florida, and Duly Affirmed the truth of the foregoing Affidavit in my presence. The Affiant also acknowledged the signing thereof to be his own voluntary act and deed, signing the within instrument in my presence and for the purpose therein stated. Date: Identification provided: r/c$. ./ f<\) Vr s /\lf.

No^yPublic:,^^)^ ^f /^jT
My commission expires on: ^I % / Q & JY
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S\^~$S
xlx Expires" OCT. 19,2014
BONDED THRU ATLANTIC BONDING CO., INC

Notice to agent is notice to principal, notice to principal is notice to agent.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that a true and correct copy of the foregoing was forwarded to the plaintiff attorney Scott Egleston, P.A., e-mail and via U.S. Mail at Brickell Bay Office Tower, 1001 Brickell Bay Drive, Suite #1200 Miami, Florida 33131,
2013.

on this j> day of March,

I HEREBY CERTIFY, that a true and correct copy of the forgoing was hand delivered by defendant, Enrique Varona, to the Honorable Judge Antonio Arzola, Courthouse, on This at room #1110 of the Miami Dade-County

S^ _ day of March, 2013.