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CLEARWATER, FLA--Sixth Circuit Court Judge Crockett Farnell finally  removed himself from the case of Tampa attorney Mark A. Adams last December, 2004 after at least 10 attempts by Adams to remove Farnell for bias.
Crockett Farnell of Pinellas County is no stranger to recusal motions.
Farnell was the judge in the contentious guardianship case of Terri Schindler-Schiavo who granted a motion by estranged husband Michael Schiavo to prevent any discovery of information in the case by Terri's parents, Mary and Robert Schindler in November, 2003, after they had filed a lawsuit to remove Schiavo as their daughter's guardian.
The Schindlers wanted Terri's brother, Bobby, to replace Schiavo as her guardian after they obtained information about a bone scan conducted by a radiologist in March 1991 that showed that Terri may have been a victim of physical abuse that led to her collapse and brain injuries.
After Schiavo attorney George Felos and the American Civil Liberties Union filed to block all discovery motions by the Schindlers to try and learn new information about how their daughter sustained her injuries, Farnell granted Schiavo's motion without even a hearing.
Schiavo's attorneys claimed that granting the Schindlers' motion for discovery would prevent Michael Schiavo access to the courts---never mind that for years Terri Schindler-Schiavo had been denied access to the courts due to the refusal of probate court judge George Greer refusing to appoint independent counsel for the disabled woman as required by law.
It is even doubtful that she was represented by legal counsel in June, 1990, as required by law when Michael Schiavo and his then employer-attorney, Daniel Grieco, petitioned the court for guardianship although Schiavo appears to have intentionally, knowingly and willfully given false statements on his guardianship application given under penalties of perjury, fabricating a college degree that he never received.
By law, such deceit, fraud, dishonesty and misrepresentation constituted grounds for his removal as guardian but Schindlers did not become aware of Schiavo's 1990 filing with the court until 2004.
Farnell ordered that "none of the parties to this case shall engage in any actions, including discovery, until after Judge George Greer has ruled on the Fourth Motion to Disqualify Judge".
Attorneys representing the Schindlers in the contesting of Schiavo's attempts to end his wife's life by the removal of her feeding tube had filed repeated motions seeking to remove Greer from the case on the basis of bias, prejudice and conflicts of interest as well as violations of guardianship law but Greer steadfastly refused to remove himself, saying that Schindler's motions were "legally insufficient" but without addressing the merits of the issue.
However, less than an hour after he issued the stay, Farnell convened an emergency hearing and reversed himself after Schindler's attorney, Patricia Fields Anderson, argued that the motion to remove Greer from the case should have no bearing on the case to have Schiavo removed from guardianship.
Greer ultimately once again refused to recuse himself in the Schiavo case, refused to remove Schiavo as guardian and executed the death warrant resulting in Terri's death on March 31 after Schiavo removed her feeding tube.
Anderson said that the attempt by Schiavo's attorneys "to thwart the discovery of important and previously undiscovered evidence speaks volumes. They appear to be scared of the truth coming out".
And such could be said in the case of Tampa attorney Mark A. Adams, now facing contempt charges brought by Judge Farnell and the well-heeled and politically connected Battaglia law firm. (The charges were dismissed on Monday, Nov. 28) In addition to pending criminal contempt charges, Adams is also scheduled to go to hearing in December, facing disbarment, for a grievance filed against him in Florida Supreme Court by the Florida Bar Association as the result of complaints filed against him by both the Battaglia law firm and Farnell.
It all started in 2001 when Adams was retained by Jeffrey Smith, a salesman with a sports marketing firm, Corporate Sports Marketing Group (CSM) of Clearwater, Fla. Smith had refused to sign a non-competition agreement demanded by CSM which would prohibit him from selling advertising for another company if he left CSM. Smith left the company in October, 2001 along with fellow salesman John Kerin and they formed their own advertising sales company, Lafayette.
At the time Smith left, he claimed he was owed over $20,000 in commissions, and Chris King, CSM's president, refused to pay him. Instead, Chris King called the Clearwater Police Department and, allegedly falsely reported that Jeff Smith had stolen $800,000 worth of art work.
Smith was not arrested.
In December, 2001, Adams filed suit against CSM and several individuals including owner King on behalf of Smith in the Sixth Judicial Circuit Court of Pinellas County and the case was assigned to Judge Crockett Farnell.
Timothy Weber of the Battaglia firm represented King and CSM in the suit.
Adams says that Weber and other members or employees of the Battaglia law firm had allegedly boasted that they could influence Judge Farnell and the ensuing decisions rendered by Farnell would seem to lend credence to that assertion. http://www.theempirejournal.com/082005_Justice_For_All_Or_Justice_For_Sale.html
On April 18, 2002, before the deposition of Kerin began, Martin Richardson, a vice president of CSM, who was the firm's corporate representative at this deposition, asked to speak privately with plaintiffs Kerin and Smith. During this conference, Richardson allegedly stated that his attorneys, the Battaglia firm, were "very well connected", that his attorney had said that Smith and Kerin did not have any representation, that his attorney said that Adams didn't know what he was doing, that his attorney said that they were going to "bury" the plaintiffs, and that he was authorized to offer to settle the case for nothing.
The intimidating statements made by Richardson just before Kerin's deposition began upset both Kerin and Smith. Due to these statements and King's previous alleged statements about the Battaglia firm's connections and Adams' lack of ability, immediately after this deposition, Adams says that Kerin and Smith told him that they felt that they needed to hire a larger firm with more experienced attorneys. Adams says he asked them to move quickly.
In May, 2002, Lafayette and Kerin retained new attorneys to defend them and terminated Adams' representation but Smith asked Adams to continue representing him and his wife and to coordinate his efforts with the new attorneys retained by Lafayette and Kerin.
By late July, 2002, Adams says it became obvious to him that the Smiths were no longer taking his advice in regard to completing the discovery requests directed to them by Weber. As a result, Adams told them that he was going to have to withdraw from representation of the Smiths. In August of 2002, a notice of substitution and withdrawal was filed.
On Oct. 1, 2002, Judge Farnell approved Adams' withdrawal as to all parties without reserving jurisdiction over him. After Adam' withdrawal, Weber scheduled a hearing on CSM's motion for summary judgment, apparently an attempt to take advantage of the fact that the Smiths did not have any legal representation. In late November, the Smith's new attorney filed a notice of dismissal for some of the Smith's claims.
In late December, 2002, Weber and the Battaglia firm filed a motion for sanctions seeking sanctions againstAdams and the Smiths. Florida case law provides that once a person has been dismissed from an action, the trial court is divested of personal jurisdiction over that person and the trial court may only regain personal jurisdiction over that person by personal service of original process. Adams was no longer part of the case, his withdrawal having been approved.
On July 30, 2003, Judge Farnell entered a judgment for sanctions and a judgment for expenses on a motion to compel against Adams and the Smiths. The judgments against Adams were for over $20,000 as were the judgments against the Smiths. Ultimately the Smiths settled for $15,000 after adams maintains that Smith was intimidated by the Battaglia firm.
Adams appealed his sanction.
In June, 2003, Adams filed a lawsuit in Hillsborough County for damage he alleged to have suffered due to the alleged defamatory statements made by King, Richardson and CSM. In December, 2003, he amended his complaint to seek damages from Timothy Weber and the Battaglia law firm.
Adams maintains that in February, 2002, at a kickoff party for Dan Marino's Celebrity Players Tour tournament, King stated to Scott Dias, also an advertising salesman with CSM, that he had "hired the most well-connected firm in Pinellas County, that his attorney said that Jeff Smith's attorney, meaning Mark Adams, did not know what he was doing, and that they were going to bury Jeff Smith". Adams maintains that King made similar statements to Smith and supports his charges with sworn affidavits from Smith and Dias.
Adams says that by King allegedly making such statements, he was implying that his attorney, Weber and the Battaglia firm could improperly influence Judge Farnell. Adams says that King made numerous similar statements to Smith attacking Adams and his ability to represent Smith, Kerin and Lafayette.
Adams charged that due to the statements allegedly made by King and Richardson, Smiths lost confidence in Adams and caused him to be financially damaged.
Adams filed numerous motions to remove Farnell from the case, charging that Farnell was denying him due process and lack of counsel in the sanctioning issue. He has also charged that Farnell had engaged in improper ex parte communications with the Battaglia firm about the case and made highly prejudicial remarks towards Adams.
Court records indicate that such alleged improper remarks made by Farnell regarding Mark Adams include the following:
"If you have contact with him, thank him for his gracious exit in this matter".
In reference to the affidavits of Smith and Dias and the alleged repeated boasts of CSM's attorney's connections, Farnell indicated that he did not want those affidavits filed as part of the court record but that "Mr Adams filed it as blatantly as you can file anything".
In reference to an order compelling discovery entered months after Adams was replaced as lead counsel for the plaintiffs and over a month after the court had approved Adams' withdrawal from the case, Farnell stated , "After the Court entered the order compelling, that's when Mr. Adams went south". When speaking of Adams' departure after objecting to participating as a witness in the case and requesting a continuance to obtain counsel, Farnell stated on the record, "the attorney cut and ran".
However, Farnell consistently refused to recuse himself, saying that he could be fair and impartial in the case.
Adams' filings indicated that the transcript of a hearing held April 24, 2003, indicated that as the hearing ended at 5 p.m., Judge Farnell asked to see counsel in chambers, however, Adams, was not present and no attempt was made to include Adams in the ex parte conference.
The transcript also indicates that in response to Adams'' oral motion for Farnell's recusal that day, Farnell had stated, 'If you had idea how much I would like to recuse myself from this incredible mess, I would accommodate you, but I don't think that is anywhere near sufficient grounds".
The transcript also shows that the judge himself vouched for the integrity of the expert witness called to testify by the Battaglia firm on the reasonableness of the attorney's fees being incurred by the defendants and the basis for which the $20,000 in sanctions was levied by Farnell against Adams.
At a conference in June 2003, Adams informed Farnell that the defendants hadn't served him with the affidavits of attorney's fees they were seeking nor did they provide notice of the expert witness. Adams told Farnell that the law held that sanctions are not appropriate with a lack of due process. Adams requested a hearing on the issue but Farnell refused.
Farnell granted the Battaglia firm's motion for sanctions against Adams which was filed over two months after Farnell had approved Adams' withdrawal from the case.
Adams says that although venue was in Hillsborough County, where Farnell has no jurisdiction, the Battaglia firm moved to transfer the case to Pinellas County "for the convenience of the parties or in the interest of justice". Amazingly the case was "randomly" assigned to Judge Crockett Farnell.
In June, 2005, in a court reassignment shakeup involving circuit court judge Brandt Downey who is under fire for alleged use of courthouse computers to surf pornographic websites and an alleged sexual harassment claim, Crockett Farnell was reassigned from the civil divison to the civil division by the administrative criminal judge-----his wife, Judge Dee Anna Farnell. In the reassignment, his wife will move to another division.
Adams appealed the 2003 change of venue order in his case but while the appeal was pending in the Second District Court of Appeals, Farnell dismissed Adam's lawsuit against Battaglia and the others, withholding a final order pending resolution of the appeal although such action is prohibited by law.
Battaglia then moved for a final order to dismiss the appeal which was granted by Judge Robert E. Beach, Senior Circuit Court Judge, ignoring established case law. Beach dismissed Adams' claim against Battaglia with prejudice meaning it could not be refiled.
Adams filed for rehearing and the law firm representing the Battaglia firm, Fowler, White, Boggs, Banker of Tampa, set the hearing for last month on July 13 although Adams says they failed to notify him. Adams says that although the certificate of service on the notice of hearing indicates that Battaglia's attorney served the notice on July 8, the firm's postage meter indicates it was stamped on July 11 and Adams says he received it on July 14, the day after the hearing. He says that since he didn't have notice of the hearing, he didn't attend and even though Judge Beach had previously ordered that the Battaglia firm send communications to Adams regarding the case by registered mail, Beach signed the order that the Battaglia firm had prepared dismissing the rehearing, granting final dismissal and sent the order to Adams in an envelope provided by the Battaglia firm.
After Farnell awarded $20,000 in sanctions against Adams in 2003, the Battaglia firm attempted to collect the $20,000 judgment and sought to depose Adams but Adams says he wasn't properly served. Weber says otherwise and says that Adams failed to appear for three scheduled hearings during the fall of 2003 and ultimately asked Farnell to cite Adams for contempt. Farnell issued a warrant for Adams' arrest in January, 2004.
The transcript of the hearing held Jan. 7, 2004 regarding the contempt charges indicates that Anthony S. Battaglia, founder and senior member of the Battaglia firm was present. The transcript also shows that the hearing lasted from 2:30 p.m. to 2:45 p.m. Adams was not present, having requested to participate by phone which was denied by Farnell. Adams says that two witnesses have informed him that Weber did not leave the courtroom until 3:02 p.m. and that neither of the witnesses had seen either Battaglia or Farnell leave the courtroom by that time.
During the hearing, Farnell commented on Battaglia's presence in the courtroom by saying to Weber, "I see you have eminent criminal counsel in the back row back here. He (meaning Adams) might want to consult with him as to how he would react as defending...
WEBER: Mr. Adams also filed a lawsuit against our law firm and that sort of thing. That's Mr. Battaglia's interest in these proceedings.
FARNELL: I'm delighted to have him present. I understood that he had filed a lawsuit. I don't want to make this any murkier and muddier than it is but you have a right to the relief you've sought here, but we've got to have somebody present and an appropriate waiver or we're just wasting time as we have so often in this matter.
WEBER: Yes, sir. I think that the appropriate thing for the court to do is reschedule Mr. Adams' trial by order, and, also, you know, take whatever steps the Court thinks are necessary at this point to secure his personal appearance.
FARNELL: I'm trying to be as fair and equitable in this matter as I can. Limits only go so far. We have jury trials next week. That's going to make it difficult for us to do anything that week. I'm assuming if you cut to the chase you want a pickup order issued.
WEBER: Well, all I can say is he had notice of these proceedings today.
Adams maintains that no order to show cause setting a hearing for Jan. 7 had been issued by Farnell and served on Adams.
On Jan. 12, 2004, Farnell issued an order for the arrest of Mark Adams for failure to appear at the proceedings on the order to show cause on Jan. 7 and in set bail at $25,000 to secure his appearance at a hearing set for Feb. 17, 2004.
On Jan. 29, 2004 Adams petitioned the 2nd DCA to vacate Farnell's order for his arrest arguing that Farnell had placed Adams in a serious position, asking for the DCA to expedite their decision in the matter.
Adams says that the DCA deputy clerk informed his assistant that she would have to speak with James Birkhold, DCA clerk, about the matter and transferred her call to him. Birkhold allegedly informed the assistant that "mandates are not issued in those kinds of cases so the stay was no longer in effect". Adams had claimed that they was a stay in effect from the sanctions issue which would preclude any further action in the case.
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Adams says that on Feb. 4, 2004, they learned that his motion to vacate the arrest order, vacate judgments, to quash notices of depositions and to issue an order to show cause why a writ of prohibition should not be issued had disappeared from the DCA's online docket. With a witness on the line, Adams' assistant called the clerk's office on Feb. 5 and asked why the filing had disappeared from the docket. Initially the deputy said that nothing had been filed since Jan. 27, 2004, but after Adams' assistant informed her she had a time stamped copy of the motion dated Jan. 29, the clerk asked her to hold on. When she came back on the line, she said that the motion filed Jan. 29 was in the file and was being considered by the court.
When asked why it did not appear on the docket, the deputy said it must have been a computer error and that she had never seen anything like that before.
Therefore, apparently without any approval from any judge, Birkhold decided the Jan. 29 motion would proceed as a new petition and Adams was forced to pay a new filing fee of yet another $250.
The stonewalling by the DCA continued and on Feb. 23, yet another motion was filed to disqualify Farnell. Without ruling on that, Farnell instead scheduled a hearing for March 3 in the contempt case.
On March 4, 2004, attorneys Walter Smith and Skip Olney agreed to represent Adams in the civil and criminal portions of the sanctions issue and the contempt charges. Before the contempt trial could get underway, on March 21, 2004, one of Adams' younger brothers dove into Tampa Bay, hit the bottom and broke his neck. He spent a few weeks in intensive care and is now a quadriplegic, with a slim chance he may one day be able to use his arms and hands.
With the contempt trial scheduled for March 26, Olney filed a motion on behalf of Adams to determine his competency to stand trial due to the trauma of his brother's accident. Farnell eagerly granted the motion, entering an order on April 7 to determine Adams' competency. However, the order did not comply with Florida statutes which requires that the matter be determined in 20 days and the order did not provide for payment of the doctors' fees for the examination as required by Florida law.
It appears that Florida courts and in particular judges of the Sixth Judicial Circuit have a problem complying with the laws.
Due to Farnell's failure to use the proper form to determine competency, the doctors informed Adams that the order Farnell had entered was not typical and they didn't think their fees would be paid by the state. As a result, Adams'attorney had to file a motion to appoint doctors to conduct the examination.
Unbelievably this was heard by the administrative judge for the Criminal courts of the Sixth Judicial Circuit-----Judge Dee Anna Farnell-----Judge Crockett Farnell's wife. Neither did she seem to find it inappropriate to be ruling on a matter resulting from her husband's court and failed to disqualify herself. At the hearing before Dee Anna Farnell, the assistant state attorney from Bernie McCabe's office argued that the doctor's fees were not usually paid by the county despite the language of law.
The assistants from McCabe's office who had not met Adams prior to the hearing and obviously did not know what he looked like, stated to Rene Bauer, the assistant state attorney from McCabe's office prosecuting the contempt charges, that he didn't think Adams' case made any sense and that he was happy that he wasn't the one prosecuting it.
As a result of Adam's attorney's insistence that the doctor's fees be paid by the county, Judge Dee Anna Farnell entered an order providing for payment but she neglected to provide for the quick determination as required---the 20 day requirement.
The three doctor panel ruled that Adams was suffering from stress incurred from the criminal contempt charge---legal abuse syndrome.
On Aug. 27, 2004, 154 days after the motion to determine Adams' competency was filed, his competency hearing was held, 134 days past the statutory deadline. Although the three doctors were subpoenaed, Farnell did not allow them to testify. He summarily ruled that Adams was competent to stand trial and was intent on scheduling a trial date until Adams' attorney reminded him Adams was entitled to due process and could move to dismiss before trial, insisting that Farnell set a hearing date.
On Sept. 20, 2004, Farnell entered an order sealing the doctor's reports. However, The Empire Journal has learned that all three doctors found that Adams was suffering from depression due to the stress resulting from the contempt charge with one of the doctors finding that Adams was too depressed to assist in the preparation of his defense and thus incompetent to stand trial.
Both Farnell and his wife, the administrative judge, sought to place the burden of the cost of the doctors' examinations on Adams in spite of Florida law. Adams says that due to the actions of Farnell, Pinellas County taxpayers paid at least $1,800 for his competency determination.
The legal wrangling continued throughout 2004 with Farnell continuing to refuse to disqualify himself despite prejudicial statements from the bench indicating that he had already adjudged Adams guilty of contempt before trial.
On Dec. 13, 2004, Farnell denied Adam's motion to dismiss the contempt charges, making even more prejudicial remarks in his written order indicating that Farnell had already adjudged Adams guilty, denying him a fair trial and due process.
Farnell's remarks included that "the charge of indirect criminal contempt was necessitated by Adams' failure to comply with the court orders and judgments rendered against him and for his utter lack of respect for the judicial process in general", "the court has been plagued by frivolous arguments from Adams since the inception of the underlying lawsuit", "none of Adam's arguments address the merits of the claims against him";"to date he has refused to comply with numerous court orders", "he has shown no respect for the court or the judicial process", "he has not offered any reasonable or rational explanation to justify any of his contemptuous conduct", "he ignored numerous earlier court orders".
Florida Statutes state that "whenever a party to any action or proceeding makes and files an affidavit stating fear that he or she 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 applicant or in favor of the adverse party, the judge shall proceed no further, but another judge shall be designated in the manner prescribed by the laws of this state for the substitution of the judges for the trial of causes in which the presiding judge is disqualified".
Four times Sixth Judicial Circuit Court Judge George W. Greer refused to disqualify himself in the Schiavo case despite blatant demonstrations of bias and prejudice.
And Farnell repeatedly refused to recuse himself in Adams' case.
On Dec. 20, 2004, after months of emotional strain, lost income, and attorney's fees for the Adams family, after a television station requested permission to film the court proceedings, one day before the contempt trial for Adams, Judge Farnell finally recused himself from hearing the contempt charges.
With a new judge, the contempt charges are now moving to trial while Adams is also facing charges from the Florida Bar Association which could result in his disbarment in a scenario which is becoming all too common throughout the United States when attorneys oppose improper court rulings and judicial tyranny or in other words, they don't go along to get along.
Is there Justice for All or Justice for Sale? 11-30-05
This article was originally written by June Maxam and published on 8-23-05. It is republished here on 11-30-05. Other articles pertaining to the Mark Adams case appear on The North Country Gazette website.
© 2005 North
Country Gazette
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