STATE OF FLORIDA EX REL. MARGARET H. ALLEN ON HER OWN BEHALF AND FOR THE USE AND BENEFIT OF SHORTY'S BARB-Q, INC., PETITIONER,
v.
THE HONORABLE THOMAS A. TESTA, CIRCUIT JUDGE OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR DADE COUNTY, FLORIDA, E. L. ALLEN, SR. AND OTHER DEFENDANTS IN CASE NO. 80-10444, RESPONDENTS
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PER CURIAM.
The rule disqualifying a trial judge who attempts to refute charges of partiality and thus creates an intolerable atmosphere between himself and the litigant, see Bundy v. Rudd, 366 So. 2d 440 (Fla.1978); Management Corporation of America, Inc. v. Grossman, 396 So. 2d 1169 (Fla. 3d DCA 1981), is no less applicable when, as here, the trial judge’s refutation (which not only set forth his version of the context — “a climate of levity” — in which his remark, arguably prejudicial to the plaintiffs, was made, but, moreover, contradicted the alleged substance of the remark) comes in the form of an affidavit attached to his return to our rule nisi in prohibition.
Accordingly, we must grant the petition for writ of prohibition. We deem it unnecessary to issue the writ and remand the cause to the Circuit Court for further proceedings consistent with this opinion.
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Livingston v. State, 441 So. 2d 1083 (Fla. 1983)…bition, the courts tend to apply the rule strictly and inquire only into the sufficiency of the motion and supporting affidavits to state a well-grounded fear of partiality. See, e.g., Bundy v. Rudd; Dickenson v. Parks; State ex rel. Allen v. Testa, 414 So. 2d 38 (Fla. 3d DCA 1982); Jackson v. Korda, 402 So. 2d 1362 (Fla. 4th DCA 1981); State ex rel. Zacke v. Woodson, 399 So. 2d 7 (Fla. 5th DCA 1981); State ex rel. Aguiar v. Chappell, 344 So. 2d 925 (Fla. 3d DCA 1977). On the other hand, when defendants wait…
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Breakstone v. Honorable Mary Ann MacKENZIE, 561 So. 2d 1164 (Fla. 3d DCA 1989)…thus providing additional grounds for disqualification. We agree. See Fla.R.Civ.P. 1.432(d); Bundy v. Rudd, 366 So. 2d 440, 442 (Fla.1978); Stimpson Computing Scale Co. v. Knuck, 508 So. 2d 482, 484 (Fla. 3d DCA 1987); State ex rel. Allen v. Testa, 414 So. 2d 38, 39 (Fla. 3d DCA 1982); Management Corp. of America v. Grossman, 396 So. 2d 1169 (Fla. 3d DCA 1981). The second motion for disqualification, like the first, should have been granted. In the companion case, petitioner Super Kids called up its motion…
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Valltos v. State, 707 So. 2d 343 (Fla. 2d DCA 1997)…factual allegations or conclusions. See Ellis v. [*345] Henning, 678 So. 2d 825 (Fla. 4th DCA 1996); Fabber v. Wessel, 604 So. 2d 533 (Fla. 4th DCA 1992); Gieseke v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985); see also State ex rel. Allen v. Testa, 414 So. 2d 38 (Fla. 3d DCA 1982) (disapproving an affidavit filed by the trial judge refuting facts as an attachment to his return to the appellate court’s rule nisi in prohibition). The response filed on behalf of the., trial judge in this proceeding creates “a…
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- THE Florida BAR v. Sanford Freed, 366 So. 2d 440 (Fla. 1978)
- Mgmt. Corp. OF Am., Inc. v. Hon. Rhea Pincus Grossman, 396 So. 2d 1169 (Fla. 3d DCA 1981)