
    Dr. Erwin D. JACKSON, as an elector of the City of Tallahassee, Petitioner, v. LEON COUNTY ELECTIONS CANVASSING BOARD; Scott C. Maddox, as the successful candidate for Tallahassee City Commission, Seat 1; and City of Tallahassee, a Florida municipal corporation, Respondents.
    No. 1D16-5205.
    District Court of Appeal of Florida, First District.
    Nov. 23, 2016.
    Rehearing Denied April 11, 2017.
    
      Charles Burns Upton II of the Upton Law Firm, P.L., Tallahassee, for Petitioner.
    No appearance for Respondent Leon County Elections Canvassing Board.
    Stephen Marc Slepin of The Maddox Horne Law Firm, Tallahassee, for Respondent Scott C. Maddox.
    Louis C. Norvell, Assistant City Attorney, for Respondent City of Tallahassee.
   PER CURIAM.

Petitioner Dr. Erwin Jackson has filed an emergency petition for writ of certiora-ri, writ of prohibition, and constitutional stay writ. We deny the petition in part and grant it in part, addressing each section of the petition in turn.

Petition for Writ of Certiorari

First, we deny the petition for writ of certiorari. Petitioner Jackson has not shown that the trial court’s ruling on his motion for default against Respondent Scott Maddox, nor its ruling that the City Charter requires Maddox to be an elector of the City of Tallahassee on November 21, 2016, meets the high standard for certiora-ri relief. See Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (“It is well settled that to obtain a writ of certiorari, there must exist ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’” (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002))).

Petition for Writ of Prohibition

We also deny Jackson’s petition for writ of prohibition. While we find that Jackson’s November 15 motion for disqualification of the trial judge was legally sufficient, and was timely as to the conduct of the November 10 hearing, Jackson thereafter failed to take appropriate and timely steps to seek our review of the order denying disqualification and to prevent the trial judge from taking further action pending such appellate review. The general rule of timeliness for judicial disqualifications requires action “at [the] first opportunity to do so in a proceeding before that judge.” St. Pierre v. State, 966 So.2d 972, 975 (Fla. 2d DCA 2007). We have stated the rule as requiring action “as soon as practicable.” People Against Tax Revenue Mismanagement, Inc. v. Reynolds, 571 So.2d 493, 496 (Fla. 1st DCA 1990) (denying a petition for writ of prohibition on the merits but noting that “[w]hen the motion was denied and movants elected to challenge that ruling by seeking a writ of prohibition rather than waiting to raise the issue on plenary appeal, a petition should have been filed as soon as practicable” citing Carr v. Miner, 375 So.2d 64 (Fla. 1st DCA 1979))). A party having knowledge of grounds to disqualify a judge may not delay taking preventive action until after suffering an adverse ruling. “A motion for recusal is considered untimely when delayed until after the moving party has suffered an adverse ruling unless good cause for delay is shown.” Fischer v. Knuck, 497 So.2d 240, 243 (Fla.1986); Lawson v. Longo, 547 So.2d 1279, 1281 (Fla. 3d DCA 1989) (holding that party waives right to seek removal of judge “[b]y doing nothing to affirmatively promote or protect the issue of the possiblé recusal”); Data Lease Fin. Corp. v. Blackhawk Heating & Plumbing Co., Inc., 325 So.2d 475, 479 (Fla. 4th DCA 1975) (holding a motion is untimely if not filed after the party has knowledge to support disqualification and after the party suffers an adverse ruling).

We recognize that the procedural context of this case is unique in that the delay occurred after Jackson had timely filed his motion to disqualify and obtained a ruling denying it. However, the principles of timeliness and preservation of the disqualification claim apply with equal force where a party having knowledge of grounds for disqualification participates in further proceedings before the trial judge without first seeking a stay or seeking appellate review of the order denying disqualification. In this case, the trial judge denied the motion for disqualification by order rendered the morning of November 16; and within about an hour after rendering that order, rendered another order setting a case management conference for November 18. Although Jackson has filed in this Court numerous documents in a series of three sets of petitions denominated as emergencies, and has done so on exceedingly short time frames measured in hours, he did not file a petition for writ of prohibition prior to the November 18 case management conference.

Jackson’s scant reference to the appellate record in his statement for the case management conference, on which the dissent relies, was not a request for stay or an objection to the trial court’s continuing to preside over this ease, nor did it invoke this Court’s prohibition jurisdiction. Even if it had, Jackson was obligated to protect his rights on the record at the hearing itself, and failed to do so. The problem here is not the speed with which Jackson originally moved to disqualify the trial court or the .speed with which he eventually petitioned this Court for review; the problem is Jackson’s conduct at the November 18 hearing, which was inconsistent with his previous claim for disqualification and constituted a waiver. At the case management hearing, Jackson did not object to the trial court’s continuing to preside over the case, he did not seek a stay or continuance, and did not indicate any intention to file a petition for a writ of prohibition. That hearing was more than a case management conference and included argument and rulings on multiple substantive motions, yet Jackson submitted to the jurisdiction of the trial court and participated fully without objection and without referencing disqualification or prohibition, thus waiving his disqualification argument.

We reject the dissent’s assertion that we are not authorized to reach the issue of waiver because neither the City nor Maddox raised a waiver defense in response to the petition. Our standard of review on petition for writ of prohibition is de novo. Philip Morris USA, Inc. v. Brown, 96 So.3d 468, 471 (Fla. 1st DCA 2012). The facts of what Jackson did and did not raise at the November 18 hearing are undisputed and are of record, and legal significance attached to Jackson’s failure to take appropriate protective action to, at a minimum, preserve his objection to the trial judge’s presiding over the hearing. As the party seeking this extraordinary remedy, Jackson had the burden of-proving and preserving every element of his claim for disqualification, and on this record he failed to do so.

We do not hold that prohibition must be filed -within hours or even days under different facts, but in light of the unusual time constraints and history of this case, we find that Jackson waived any right to prohibition relief by participating in the November 18 hearing before challenging the denial of his motion to disqualify in this Court and without asserting any objection to the trial court’s presiding over that hearing. Had this issue been preserved, however, we would have found that the motion to disqualify was legally sufficient and should have been granted, due to the due process violations we have previously found in this case. See, e.g., Zuchel v. State, 824 So.2d 1044 (Fla. 4th DCA 2002) (outright denial of the basic and fundamental right of cross-examination would give a reasonably prudent person a well-founded fear of judicial bias).

Petition for Constitutional Stay Writ

Finally, we grant the petition for constitutional stay writ. The circumstances of this election contest are unique. Jackson timely filed his complaint on September 13, 2016, and, over a month later, the trial court stayed proceedings. This Court then ordered the court to hold an immediate hearing, and then, seven days later, vacated the trial court’s order following due process violations. We entered a temporary stay order preventing Maddox from taking the oath of office on November 21. The trial court has yet to enter a final judgment. Under these circumstances, we conclude that it is necessary to maintain the status quo by prohibiting Maddox from taking the oath of office pending entry of a final judgment. We thus exercise our authority under article V, section 4(b)(3), of the Florida Constitution to issue “other writs necessary to the complete exercise of [our] jurisdiction.” We find that issuance of the writ is necessary to preserve our jurisdiction to fully resolve the claim of Maddox’s eligibility. See Monroe Educ. Ass’n v. Clerk, Dist. Court of Appeal, Third Dist., 299 So.2d 1, 2 (Fla.1974) (issuance of this writ is not necessarily “dependent upon or altogether ancillary to independent appellate proceeding” (citing Couse v. Canal Auth., 209 So.2d 865, 867 (Fla.1968))). We further note that the City has represented in its filings in this Court that the City Commission will not meet until December 14, 2016, which will be its final meeting of the year.

Accordingly, Maddox shall not take the oath of office pending a final judgment by the trial court. The parties continue to dispute whether Maddox must have been a resident of the City upon taking the oath of candidacy on June 22, 2016, when Maddox attested to his residency for purposes of becoming a candidate; on August 30, 2016, when he was elected; on September 6, 2016, when the election results were certified; or upon taking the oath of office for a new term on November 21, 2016. The trial court has ruled that November 21 is the controlling date. The merits of that ruling are not presently before us and therefore we do not pass upon the question, but for the sake of judicial economy we suggest that the parties make an evi-dentiary record of Maddox’s residency on all potentially applicable dates so that the issue can be resolved with finality in a single plenary appeal. We direct the trial court to determine the controlling legal definition of “residency,” refine the outstanding requests for discovery and set a discovery schedule, and, barring any extraordinary circumstances, to enter a final judgment by December 6,2016.

ROWE and KELSEY, JJ., concur.

MAKAR, J., concurs in part and dissents in part with opinion.

MAKAR, J.,

concurring in part, dissenting in part.

This election contest case, which began in early September 2016, has resulted in three emergency appellate proceedings, all of which were avoidable had the requisite answer, discovery, and evidentiary hearing been held expeditiously as Florida law requires. See §§ 102.168(1), (3)(b) & (7), Fla. Stat. (2016). Needless delays have impeded the right of the electors of the City of Tallahassee to a speedy resolution of this controversy, one that needs final resolution for the sake of local governance. Public controversies are brought to appellate courts for resolution; we don’t seek them out. And when they land on our plate, and involve matters of great urgency, we dig in and adjudicate them with studious speed.

In this one case, we’ve now issued three opinions this week, all of which I fully concur in except the conclusion that Jackson waived his right to seek appellate review of the trial judge’s denial of Jackson’s disqualification motion. Filing a prohibition petition in an appellate court challenging the denial of a disqualification order— versus raising the issue on appeal after final judgment—need only be done as soon as practicable. People Against Tax Revenue Mismanagement, Inc. v. Reynolds, 571 So.2d 493, 496 (Fla. 1st DCA 1990). Jackson did so. He filed his prohibition petition in this Court midday on Sunday, November 20th, challenging the trial court’s order, which was entered shortly before noon on Wednesday, November 16th. Spaced in-between was extensive legal work by the parties, including compliance with the trial court’s simultaneous order requiring the filing of written statements as to discovery, outstanding motions, and all other issues to be considered in advance of a case management conference held on Friday morning November 18th.

As a part of his detailed filing, Jackson made clear that appellate review of the disqualification order was forthcoming, saying as follows: “For the benefit of the appellate record, Jackson requests that this court state the basis on which it denied his motion for disqualification.” (Emphasis added). The disqualification issue did not come up at the hearing, and neither Maddox nor the City claimed Jackson waived his right to seek appellate review of the disqualification order by appearing at or participating in the conference. Indeed, Jackson had no legal responsibility to say or do anything further to preserve his right of appellate review, particularly in light of his case management filing highlighting the matter. It would have been futile for Jackson to have told the trial court to halt the Friday case management conference, particularly given this Court had directed the trial court to move forward expeditiously; and Jackson didn’t have the option of boycotting the proceeding. Telling the trial court “I’m seeking review of your disqualification order” at the case management conference might have been a nicety (he’d already said as much in his case management report), but it would have no legal effect on Jackson’s appellate rights. Other than simply saying so, no legal authority exists that Jackson had to request a stay of proceedings, should have objected to the trial judge continuing to preside over the case, and had to invoke our Court’s prohibition jurisdiction prior to the case management conference; these are desirable trial practice pointers, but aren’t legal grounds for waiving appellate rights.

Finally, unlike cases the panel cites where a litigant dithers and fails to seek disqualification timely in the trial court, Jackson timely sought disqualification below. He then specifically said appellate review was forthcoming in his case management statement and soon thereafter (on a weekend no less) filed a petition promptly. Where a litigant has preserved his right to appellate review and timely sought review, and no opposing party claims waiver, we should not so readily deny him that right, particularly when we’ve been charitable in allowing review in the past for situations involving exceptionally deleterious inactions. See People Against Tax Revenue Mismanagement, 571 So.2d at 494-96 (adjudicating the merits of a prohibition petition filed on a Friday afternoon to stop a Monday trial despite petitioner having presented disqualification issue in an untimely way numerous times in the trial and appellate court over a year’s time). And because no party has raised the waiver issue in this proceeding, Jackson has had no opportunity to defend whether his attendance and participation at the case management conference amounts to' a waiver of his appellate right; he will surely be surprised to discover that this Court has unilaterally adjudicated the matter without notice and' an opportunity to defend this right, one that should not be taken away under the circumstances.

Opinion on Rehearing

BY ORDER OF THE COURT:

Petitioner, Erwin D. Jackson, filed a motion for rehearing on November 27, 2016. On February 9, 2017, we issued- an order directing Petitioner to address whether his motion for rehearing should be considered moot. Petitioner responded to the order on February 10, 2017, conceding that his motion is moot.

Based on Petitioner’s response, we deny the motion for rehearing as moot. See Montgomery v. Dep’t of Health & Rehab. Servs., 468 So.2d 1014, 1016-17 (Fla. 1st DCA 1985) (“It is the function of a judicial tribunal to decide actual controversies by a judgment which can be carried into effect, and not to give opinions on moot questions, or to declare principles or rules of law which cannot affect the matter in issue.”).

ROWE and KELSEY, JJ., concur. MAKAR, J., dissents with opinion.

MAKAR, J.,

dissenting on the denial of emergency motion for rehearing.

Lost in the shuffle of this election contest is the “Emergency Motion for Rehearing” of Erwin D. Jackson, who points out the ways in which our appellate panel erred by sua sponte taking away his fundamental right to appeal the trial court’s denial of his disqualification motion. Because this Court did so on its own volition without notice to him, Jackson’s motion is more properly styled as an “Emergency Motion for a Hearing” as it is Jackson’s first opportunity to defend himself against the unilateral termination of his appellate rights and the imposition of two new procedural requirements that conflict with precedent.

Jackson begins with an unassailable point: it is little solace to say his disqualification motion should have been granted but simultaneously take away his right to contest its denial on appeal. Our supreme court long ago said courts have the duty to “scrupulously guard” the right to an impartial tribunal. Dickenson v. Parks, 104 Fla. 577, 140 So. 459, 462 (1932). On this point, the court said, in magniloquent language, that the “outstanding big factor[] in every lawsuit is the truth of the controversy,” an admonition repeated in its judicial recusal cases. Id.; see MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1342 (Fla. 1990); Livingston v. State, 441 So.2d 1083, 1086 (Fla. 1983). Imputing waiver of the right to appeal without notice to the right-holder based on one-sided judicial postulation is contrary to the duty to “scrupulously guard” Jackson’s right. And doing so when no party raised waiver as an issue in either the trial court or in this Court creates a new legal power for appellate courts to wield.

But can’t a litigant waive the right to appeal a disqualification order? Of course, but that requires clear record evidence that the right-holder intentionally and knowingly did so, which isn’t the case here. In finding waiver, the majority has created conflict and inconsistencies in the existing legal framework for review of disqualification orders, and stretched the meaning of inapt caselaw.

First of all, as noted in his motion, Jackson points out that three of the primary cases upon which the majority relies involved the untimely filing of disqualification motions in the trial court. But Jackson unquestionably filed his motion to recuse the trial judge timely, which contrasts with the three cases: Fischer v. Knuck, 497 So.2d 240, 243 (Fla. 1986) (disqualification motion was untimely and “used to frustrate a final decision” because it “was filed eleven days after all the testimony had been taken and five days after the judge had announced his ruling”); Lawson v. Longo, 547 So.2d 1279, 1281 (Fla. 3d DCA 1989) (disqualification motion was untimely because it was filed nine days after final judgment in bench trial; the movant “can be said to have sat on his rocking chair, watching the trial meander by. It is now too late and he has shown no good cause for delay”); and Data Lease Fin. Corp. v. Blackhawk Heating & Plumbing Co., Inc., 325 So.2d 475, 478 (Fla. 4th DCA 1975) (motion untimely under section 38.02, Florida Statutes, because it was “filed more than thirty days” after discovering grounds for disqualification). It cannot be said that Jackson dawdled at any stage by “sitting in a rocking chair, watching the trial meander by,” particularly since all his trial and appellate filings on disqualification were pre-trial, before a final hearing was held.

Next, and most importantly, appellate review of a denial of a disqualification order can be done either via a writ of prohibition or at the end of the case. People Against Tax Revenue Mismanagement, Inc. v. Reynolds, 571 So.2d 493, 496 (Fla. 1st DCA 1990) (noting that movant may elect to challenge a disqualification ruling via a writ of prohibition or “raise the issue on plenary appeal”); D.H. ex rel. J.R. v. Dep’t of Child. & Fams., 12 So.3d 266, 272 (Fla. 1st DCA 2009) (“[A] petition for writ of prohibition is not the exclusive avenue for pursuing relief from the denial of a motion for disqualification.”); see generally Philip J. Padovano, 5 Florida Practice, Civil Practice § 5:3 (2016-17 ed.) (“An order granting or denying a motion for disqualification can be reviewed on appeal from the final judgment. However, most such orders are reviewed before the trial or hearing on the merits by filing a petition for extraordinary relief.”) (footnote omitted).

Given these legal options, Jackson could have chosen to wait until the end of the case (which was not far off) to appeal the disqualification order. That he did not wait, and chose to exercise his right to seek appellate review earlier can’t count against him, particularly when he filed his petition expeditiously. People Against Tax Revenue Mismanagement, 571 So.2d at 496 (petitions for prohibition “should” be filed “as soon as practicable”).

On this point, the majority overstates what was said in People Against Tax Revenue Mismanagement, asserting that “[w]e have stated the rule as requiring action ‘as soon as practicable.’” No rule exists, let alone one that compels appellate filings within a matter of hours. Dicta in that case said the appellate petition “should have been filed as soon as practicable.” Exhortations to act speedily are commendable, but “should” is not compulsion and “practicable” means only what can reasonably be done. Indeed, in that same case the Court said “there is no legal barrier to the filing of a petition for writ of prohibition less than an hour before this court closes for business on a Friday when petitioner seeks to prevent a trial scheduled to begin on Monday morning.” Id. at 496. Read in context, the Court in People Against Tax Revenue Mismanagement was pointing out a lack of diligence by the petitioner in that case; yet, even so, it nonetheless considered and resolved the merits of the prohibition petition, one that subsumed multiple disqualification motions filed over the course of a yearlong proceeding. See id. What happened in People Against Tax Revenue Mismanagement is incomparable to this case. How appellate review can be denied here, when it was allowed in People Against Tax Revenue Mismanagement, can’t be reconciled.

Under the exigent circumstances of this fast-moving election challenge, Jackson was not required to file a petition for writ of prohibition; and it would have been wholly “reasonable” for him to not delay the proceeding by seeking review on plenary appeal after trial. In D.H. ex rel. J.R., this Court held it was “reasonable” to proceed with an imminent hearing rather than delay it by seeking a writ of prohibition. 12 So.3d at 272. In that case, the trial court denied a disqualification order “just minutes before [a] termination hearing was scheduled to begin,” this Court saying on appeal that the appellant’s “decision to proceed with the termination hearing rather than delay the proceedings further by seeking a writ of prohibition, is reasonable under the particular circumstances.” Id. That Jackson filed a petition expeditiously—on a Sunday less than 48 hours after attending a compulsory court-ordered hearing—provides no “procedural bar” to this Court’s consideration of the matter.

Notably, two new legal requirements in disqualification cases emerge. The first is that once a litigant gets an adverse ruling on a disqualification motion, he must continually object to a trial judge presiding over his case; failure to do so supports waiver of the right to appeal. But Jackson could have waited until the end of the case to raise the disqualification issue, so why is a continuing objection required? What purpose does it serve? Jackson had already timely filed his disqualification motion, thereby perfecting his right to challenge the trial judge’s ruling on appeal as to those grounds raised. The only thing Jackson was legally required to do in the trial court was to assert timely any newly-dis covered grounds for recusal, beyond those he previously asserted, if he wished to preserve the new ones. No statute, case, or rule required him to continually object as to the initial grounds for recusal that the trial court ruled were legally insufficient. And Jackson clearly indicated an intent to seek legal review of the disqualification order; why else would he have said in filing his legal papers before the court-ordered hearing: “For the benefit of the appellate record, Jackson requests that this Court state the basis on which it denied his motion for disqualification.”

For similar reasons, a second new legal requirement—that Jackson was supposed to have sought a stay or continuance— makes little sense. Since he can wait until the end of the case to seek appellate review, what compels him to seek a stay or continuance? And why would the failure to do so amount to waiver, particularly when he could have dismissed his prohibition petition and sought plenary review and raised the disqualification issue?

Notably, no caselaw or rule exists for either of the two new legal requirements imposed on Jackson in this case (and, prospectively, on trial and appellate lawyers who will now struggle to understand what is required of them). Moreover, both of these newfound obligations are merely “secondary factors” that stand in the way of arriving “at the truth of the controversy.” Dickenson, 140 So. at 462.

Finally, the shelf-life of the majority’s opinion on waiver was fleeting, becoming moot within hours due to the trial judge’s spontaneous decision to recuse himself soon after his receipt of the majority’s ruling. A court has the inherent power and discretion to vacate its opinions, moot or otherwise, prior to the mandate issuing and the case becoming final, a power that should have been exercised here. Rothenberg v. Conn. Mut. Life Ins. Co., 161 So.2d 875, 877 (Fla. 3d DCA 1964) (vacating its opinion based on mootness due to settlement of parties); see generally Fla. R. App. P. 9.340 (2017); Philip J. Padovano, Florida Appellate Practice at § 20:8 (“An appellate decision ordinarily becomes final when the appellate court issues a document known as a mandate.”). After the trial judge recused himself, the majority opinion thereafter could have no actual effect whatsoever on the issue of whether the trial judge should have recused himself earlier. Godwin v. State, 593 So.2d 211, 212 (Fla. 1992) (“An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect.”). No claim is made that an exception to the mootness doctrine applies (such as a question of great public importance or one that evades review) that would justify not vacating our opinions. Phibro Res. Corp. v. State, Dep’t of Envtl. Reg., 579 So.2d 118, 125-26 (Fla. 1st DCA 1991) (retaining jurisdiction and declining motions for rehearing to vacate opinions as moot due to importance of issues raised and the likelihood of recurrence). For reasons of judicial restraint, we should have vacated the moot portions of our respective majority and dissenting opinions, as internally requested, and moved on.

In response to this dissent, the majority issued an order asking Jackson whether his rehearing motion should be denied as moot, to which he agreed in a one-sentence response shortly thereafter; he was not asked whether we should vacate our opinions. That Jackson’s rehearing motion is moot supports vacating our opinions, because “[i]t is the function of a judicial tribunal to decide actual controversies by a judgment which can be carried into effect, and not to give opinions on moot questions, or to declare principles or rules of law which cannot affect the matter in issue.” Montgomery v. Dep’t of HRS, 468 So.2d 1014, 1016-17 (Fla. 1st DCA 1986) (emphasis added). Here, the majority opinion can’t be carried into effect, opines on moot questions, and declares new legal rules and principles that matter not in this concluded case (but create confusion for future litigants). As such, we should undo our moot handiwork; vacatur is appropriate and prudent.

I HEREBY CERTIFY that the foregoing is (a true copy of) the original court order. 
      
      . In all of American jurisprudence, the phrase “outstanding big factor” appears only in Dickenson and citations thereto; it has no clear meaning other than its ordinary sense, that being a "really big deal.”
     
      
      . The appellate power to raise and resolve a legal issue neither raised by any party nor brought to their attention, is said to come from Philip Morris USA, Inc. v. Brown, 96 So.3d 468, 471 (Fla. 1st DCA 2012), but that case merely states that the "standard of review for the legal sufficiency of a motion to disqualify is de novo,” which says nothing about the overly broad scope of review created.
     
      
      . The Appellate Rules Committee may wish to study whether to codify these two approaches, as a few other states have done. See Tenn. Sup. Ct. R. 10B (2016) (codifying the “two alternative methods of appeal—the accelerated interlocutory appeal or an appeal as of right following entry of the trial court's judgment—-shall be the exclusive methods for seeking appellate review of any issue concerning the trial court’s denial of a [disqualification] motion”); Tex. R. Civ. P. 18a (2011) (appellate review of orders on recusal motions may be reviewed "on appeal from the final judgment,” "by mandamus” and "by appeal! ] in accordance with other law”).
     