### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

STEVE OG N ENOVIC
, Appellant,

v.

DAVID J. GIANNONE, INC., DAVID J. GIANNONE , and

RICHARD ANDERSON, Appellee s

.

No. 4D 14

- 4833

[August 19, 2015 ]

Appeal of a non

- final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Mily Rodriguez , Judge; L.T. Case No.

CACE 13

- 019872 (12)

.

Chris B. Fisher of the Law Offices of Chri s B. Fisher, P.A., Plantation, for appellant.

John R. Gillespie of The Gilles p ie Law Firm, Lighthouse Point, for appellees David J. Gia nnone, Inc., and David Giannone

.

L EVINE
, J

.

Appellant appeals the trial court ’ s non

- f inal order denying appellant’s

motion for relief from his voluntary dismissal of one count in appellant’s amended complaint , as well as a previous ly entered order dismissing all counts in his initial complaint

. Because we find appellant’s preserved arguments are without merit and that the remainder of the arguments are unpreserved or waived

, we affirm.

Steve Ognenovic , a ppellant, filed his initial c omplaint on August 28, 2013, alleging causes of action for constructive fraud, fraud, and civil theft against appell ee s, David J. Giannone , Inc.

, and David J. Giannone, individually

. Appellant alleged that Gi annone negotiated the sale of a boat,

two motors, and a trailer to appellant in June 1996 , but “ purposefully and fraudulently failed to transfer the title ” to appellant after he completed payments in July 1996

. On October 31, 2013, the court entered an order granting appellees’ motion to dismiss pursuant to the statute of repose

and statute of limitations , dismissing all three counts of the complaint2

with prejudice. Appellant moved for rehearing, which the trial court

denied

. Significantly, a ppellant d id not appeal the October 2013 order dismissing his counts with prejudice

.

Appellant ’s amended complaint , filed in December 2013, alleg ed a

count for equitable estoppel against appellees

. Again, appellees moved to
d ismiss, arguing there is no equitable estoppel cause of action recognized

in Florida

, and even if there w ere , such action was time

- barred. In

response, in February 2014, appellant filed a notice of voluntary dismissal without prejudice as to that count. On June 12, 2014, the initia l trial judge sua sponte entered an order of recusal. On June 27, 2014, appellant

filed a motion for relief from his voluntary dismissal pursuant to Florida

Rule of Civil Procedure 1.540 (b) and to vacate the October 2013 order

under Florida Rule of Judici al Administration 2.330

. He alleged the first dismissal was obtained “[t]hrough fraud, misrepresentations and ex parte submission of a proposed order” by Giannone

. He also alleged that appellees commi t ted fraud upon the court by fraudulently creat ing and producing a brokerage agreement with the then

- title owner of the boat, despite previously swearing no such agreement existed.

After a hearing, the trial court entered an order denying appellant’s motion, finding he “ failed to demonstrate that a ‘taint of prejudice’ exists

in the October 2013 Order” as required by r ule 2.330(h) . The trial court
also found that the brokerage agreement “does not provide new evidence of the fraudulent conduct as claimed in the initial complaint” and “ does nothing to alter the result reached by the October 2013 Order. ”

A majority of the arguments contained in appellant’s motion for relief

were waived. 1 However, appellant’s request for reconsideration of the

October 2013 o rder under r ule 2.330 is properly before this co urt

.

1 Appellant raises a number of arguments related to Giannone’s submission of a

propo sed order for the October 2013 o rder and the initial trial judge’s application of the “wrong facts” to the “wrong law” regarding the statutes of repose and

limitations to the three counts in appellant’s initial complaint. Appellant fai led to appeal the October 2013 o rder which dismissed those counts with prejudice, and the arguments raised in his motion to vacate could have and should have been raised in a direct appea l of that orde r, rather than to the trial court under

rule 1.540 nearly eight months later. Phenion Dev. Gr p

. , Inc. v. Love , 940 So. 2d 1179, 1183 (Fl a. 5th DCA 2006) (holding that if “the adverse legal ruling should have been raised by a timely appeal,” it is “imprope r for consideration under rule 1.540”); Phadael v. Deutsche Bank Trust Co. Ams

. , 83 So. 3d 893, 895 (Fla. 4th DCA 2012) (“A rule 1.540(b) motion is not a substitute for a motion for rehearing or an appeal.”).3

“ This question involves a pure question of law and thus is subject to de

novo review. ” S. Baptist Hosp. of Fla. , Inc. v. Welker , 908 So. 2d 317, 319 (Fla. 2005)

.

Rule 2.330 (h) provides that “[p] rior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based up on a motion for reconsideration

. ” Rule 2.330 requires “ the litigant to detail the reasons for the necessity of reconsideration and po int the successor judge to all parts of the record necessary to determine whether to vacate the prior ruling .” Rath v. Network Mktg., L.C. , 944 So. 2d 485, 487 (Fla. 4th DCA 2006)

. “[W] hen presented with a prior interlocutory ruling that is based on a cl early mistaken interpretation of the law it is indeed appropriate for the succeeding judge to vacate or modify the prior order. ” Russ v. City of

Jacksonville , 734 So. 2d 508, 511 (Fla. 1st DCA 1999) (citation omitted)

. Additionally, “ the successor judge must consider whether the rulings work an injustice on the party as well as the effect of reconsideration of a multitude of rulings on the administration of justice. ” Rath , 944 So. 2d at

487 . “ The purpose of reconsideration is to remove the taint of prejudice where rulings might be perceived as so tainted. It should not be used merely to obtain ‘ a second bite at the apple ’ with respect to prior judicial rulings. ” Id.

Here, as in Rath

, appe llant fails to “ indicate how the grounds alleged for recusal impacted the recused ju dge’s rulings on these motions” or demonstrate any kind of prejudice he suffered from the initial trial judge’s entry of the October 2013 order. Id. He also fails to demo nstrate how the

o rder was “ based on a clearly mistaken interpretation of the law ” as required by rule 2.330

. Russ , 734 So. 2d at 511 (citation om itted)

. Appellant fails to demonstrate how production of the brokerage agreement prior to the October 2013 he aring would have changed the initial trial judge’s ruling in the October 2013 order

. Appellant’s initial complaint was premised on Giannone’s failure to transfer title of the boat and trailer in 1996. None of the allegations in the c omplaint concern anything related to the relationship between appellees and the brokerage client . Thus, the delayed production of the agreement is irreleva nt to the dismissal of claims in the initial complaint , and earlier production of it would have done nothing to extend the statutes of limitations or repose, upon which the initial trial judge dismissed appellant ’ s claims.

Counts for constructive fraud and common law fraud require actions

to be initiated within twelve years of the fraudulent conduct

, and civil theft

has a five

- year statute of limitations. See § § 95.031(2)(a), 772.17

, Fla. Stat. (2013) ; Seymour v. Adams , 638 So. 2d 1044 (Fla. 5th DCA 1994)

.4

Here, where appellant’s allegations of fraud and theft were based on

conduct that occurred in 1996, the initial trial judge correctly found that the causes of action filed seventeen years later in 2013 were time

- barred. The successor trial judge correctly affirmed the initial trial judge’s ruling, noting “[t]he fact that there may have been a frau dulent transfer related to the brokerage agreement does not provide new evidence of the fraudulent conduct as claimed in the initial complaint.”

For the above reasons , w e affirm the order of the trial court

.

Affirmed.

S TEVENSON and F ORST
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.