Lee County Defendant's Verified Motion to Disqualify Judge McHugh - Writ of Mandamus Exhibit P-16

8/8/2019 Lee County Defendant's Verified Motion to Disqualify Judge McHugh - Writ of Mandamus Exhibit P-16

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unlawfully alter, destroy, or conceal a document or other material that a lawyer knows orlI'IiIbf

reasonably should know is relevant to a pending proceeding, or counselor assist awitness to testify falsely. Florida Bar v. Miller, 863 So. 2d 231 (Fla. 2003), and defendantfeats he cannot receive a fair hearing from Judge McHugh, and states in support;

STATEMENT OF FACTS1. On March 22, 2010 defendant received a corrected order dated March 15,

2010, from Judge McHugh who granted Plaintiff's Motion to Compeldiscovery within20 days that had been denied by Judge Roberts whosomehow heard the case that was noticed for Judge McHugh's court.

2. Judge McHugh did not hear the plaintiff's motion to compel on February 22,2010 in his hearing room at the time set for hearing in plaintiff's notice ofhearing See Exhibit D-l).

3. Plaintiff's Notice of Hearing setthehearing in Judge McHugh's Courtlocated at the Lee County Courthouse at 1700 Monroe st.Court Room 16, 4thFloor, Fort Myers, FL 33901 at II:AM EST, or as soon thereafter as counselmay be heard.

4. Judge McHugh did call the case for hearing and therefore did not hearplaintiff motion to compel.

5. Defendant present in Judge McHugh's court room at 11:00AM,discoveredafter Judge McHugh retired to his chamber, that the Motion was heard byJudge Roberts in Robert's hearing room on the 1st floor.


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6 . Defendant went to Judge Robert's Hearing Room after Judge McHugh retiredto chamber, wherein he found the door locked with plaintiff attorney's stillinside.

7. Judge McHugh did not call the case number 36-2008-CA-055974 on FebruaryIII.

22,2010.8. Judge McHugh did not review the documents or hear from defendant on said

motion with both plaintiff counsel and defendant present on February 22,2010.

9. Judge McHugh could not have been fully advised in the premises as stated inhis corrected order.

BRIEFDefendant alleges a well-founded fear; that a legal chicanery was machinated, by

the Plaintiff's Counsel, and Judge McHugh, in noticing the hearing for McHugh's court,knowing defendant would be guided by the notice to Judge McHugh's court, wheredefendant was directed by the Notice of Hearing, dated January 14,2010, while the

actual hearing was conducted in Judge Robert's Court, without a proper notice of hearingbeing issued. Plaintiff counsel fraudulently misrepresented the place of hearingevidenced by the fact that they were present in Judge Robert's court. Where an ex partehearing was conducted by Judge Roberts's court on the 1st floor, wherein Judge Robert'sdenied plaintiff's motion to compel.

A verified motion for disqualification must contain an actual factual foundationfor the alleged fear or prejudice. Fischer v Knuck; 497 So.2d 240, 242 (Fla. 1986); seeScholz v Hauser, 657 So.2d 950, 951 (Fla 5th DCA 1995). The facts alleged in the motion

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must be taken as true by the trial judge when ruling on the motion. See Steiman v.Steiman, 975So.2d 533,535 (Fla. 1st DCA 2008). The trial judge has a duty to determinewhether the factual allegations are "reasonably sufficient to create a well founded dearthat the moving party would not receive a fair trial." Kowalshi v . Boyles, 557 So.2d 885,886 (Fla. 5th DCA 1990).

Defendant alleges that Judge McHugh knew that plaintiff counsel hadmisrepresented. the notice of hearing yet issued a "sham" corrected order, having no basisin fact. Judge McHugh knew that he did not hear the Motion in which he stated that hehad heard from both plaintiff counsel and defendant.

Judge McHugh knew or should have known that he did not have the power tomodify the interlocutory order of a predecessor judge until final judgment, which was notthe case here (Pinellas Cty School ED. V Suneam, 829 So. 2d 989 (Fla. App. 2 Dist.2002) Citing Russ v, City a! Jacksonville, 734 So.2d 508, 511 (Fla. 1st.DCA 1099).

JudgeMclhigh's sham order constitutes a "fraud on the Court" wherein he statedin the order that he reviewed the documents and heard from plaintiff counsel and the

defendant and was fully advised in the premises. Judge McHugh order is palpably orinherently false, and from the plain facts in the case, must have been known by the judgeto be untrue. Such unethical practice by Judge McHugh is an.affront to the impartialityof the court; established due process, adversarial practice, and evidentiary rules, anddefendant fears that he cannot receive a fair and impartial trial or hearing from JudgeMcHugh.

The apparent collusion or other wrong-doing clearly satisfies the requisite to"fraud on the court" where it can be demonstrated, clearly and convincingly, that.a


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Defendant further request sanctions sufficient to cover reasonable attorney feesI

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against plaintiff and plaintiff counsel for chicanery for fraudulently misrepresentation inknowingly issuing a Notice of Hearing for Judge McHugh's court, knowing the Motionwould be heard in Judge Roberts Court based on the fact that they were in Judge RobertsCourt, and not in Judge McHugh's court where defendant was during the 11:00AM

6;'1~ .".~----L a I T Y : Bradshaw18291 Useppa Road

Ft Myers, Florida 33912

calendar call, and any other relief just due and owing.

CERTIFICATE OF SERVICEI, Larry Bradshaw, hereby certify that a true and correct copy of the foregoing has

been sent by U.S. Mail to: Florida Default Law Group P.L P.O. Box 25018 Tampa,Florida33622-5018 April, 5" 2010.

County of LeeState of Florida

""~V ~~ /J ,, JO AN E. M IDDLETO N~~ o' . '\~ ":. No tar y P ub lic. S tate o f F lo rida~ .; ' ~ ': . ~ M y C o m m iss ion Ex pi re s Fe b 19. 201 1':.::~~ :~~ C o m m i ssio n # DO 64 2 3 6 7

" ' i f ; , 9 f. 1 \ r~ - -" '' ' '' ' B onded T hroug h Natlona! No tar yAssn.

Appeared before me this 5' day of April 2010, affiant Larry R.Bradshaw, who being duly sworn, verifies truth of the contents ofDefendant's Motion to Dis lify Judge McHu ,under oath.

O~PUbliCMy Commission expires Z;/;?;/

Lee County Defendant's Verified Motion to Disqualify Judge McHugh - Writ of Mandamus Exhibit P-16

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Transcript of Lee County Defendant's Verified Motion to Disqualify Judge McHugh - Writ of Mandamus Exhibit P-16