DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STEVE OGNENOVIC,

Appellant,

v.

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

RICHARD ANDERSON,

Appellees.

No. 4D14-4833

[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 Chris B. Fisher, P.A., Plantation,

for appellant.

John R. Gillespie of The Gillespie Law Firm, Lighthouse Point, for 

appellees David J. Giannone, Inc., and David Giannone. 

LEVINE, J.

Appellant appeals the trial court’s non-final order denying appellant’s 

motion for relief from his voluntary dismissal of one count in appellant’s 

amended complaint, as well as a previously 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, appellant, filed his initial complaint on August 28, 

2013, alleging causes of action for constructive fraud, fraud, and civil theft 

against appellees, David J. Giannone, Inc., and David J. Giannone, 

individually. Appellant alleged that Giannone 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 complaint 
2

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

denied. Significantly, appellant did not appeal the October 2013 order

dismissing his counts with prejudice. 

Appellant’s amended complaint, filed in December 2013, alleged a 

count for equitable estoppel against appellees. Again, appellees moved to 

dismiss, arguing there is no equitable estoppel cause of action recognized 

in Florida, and even if there were, 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 initial 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 Judicial 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 committed fraud upon the court by fraudulently creating 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 rule 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 order under rule 2.330 is properly before this court. 

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

proposed order for the October 2013 order 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 failed 

to appeal the October 2013 order 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 appeal of that order, rather than to the trial court under 

rule 1.540 nearly eight months later. Phenion Dev. Grp., Inc. v. Love, 940 So. 2d 

1179, 1183 (Fla. 5th DCA 2006) (holding that if “the adverse legal ruling should 

have been raised by a timely appeal,” it is “improper 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 upon a motion for reconsideration.” Rule 2.330 

requires “the litigant to detail the reasons for the necessity of 

reconsideration and point 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 clearly 

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, appellant fails to “indicate how the grounds alleged 

for recusal impacted the recused judge’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 demonstrate how the 

order was “based on a clearly mistaken interpretation of the law” as 

required by rule 2.330. Russ, 734 So. 2d at 511 (citation omitted). 

Appellant fails to demonstrate how production of the brokerage agreement 

prior to the October 2013 hearing 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 complaint concern anything related 

to the relationship between appellees and the brokerage client. Thus, the 

delayed production of the agreement is irrelevant 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 fraudulent 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, we affirm the order of the trial court. 

Affirmed.

STEVENSON and FORST, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.