ELOISE KAH, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF WILLIAM W. KAH, PETITIONER,
v.
THE HONORABLE HAROLD R. CLARK, JUDGE, RESPONDENT
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A trial judge properly refused to recuse himself from a malpractice action because the petitioner's motion for disqualification was legally insufficient under Florida Statute § 38.10, lacking the required supporting affidavits from two reputable unrelated citizens.
The court held that the motion for disqualification was legally insufficient because it failed to comply with § 38.10, which requires supporting affidavits from at least two reputable citizens of the county who are not related to the moving party or her counsel, unless the judge admits lack of impartiality or the record contains an equivalent admission.
[1] A motion for recusal of a judge based on bias or prejudice must be supported by affidavits from at least two reputable citizens of the county who are not related to the m…
[2] Failure to comply with statutory requirements for supporting affidavits in a motion for judicial recusal renders the motion legally insufficient.
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Join FLexlaw to unlock all legal intelligence“Such supporting affidavits by reputable persons not related to the moving party or her counsel are required unless the trial judge admits he does not stand fair and impartial between the parties or unless the record contains the equivalent of such an admission by the trial judge”
Establishes the statutory requirement for supporting affidavits in disqualification motions and the narrow exceptions to this requirement.
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Join FLexlaw to unlock all legal intelligencePetitioner filed a motion for respondent judge to recuse himself from trying a malpractice action, alleging bias and prejudice against the attorneys r…
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PER CURIAM.
The petitioner filed a motion for respondent to recuse himself from trying petitioner’s malpractice action on the grounds that the respondent was biased and prejudiced against the attorneys representing her in her suit. The respondent refused to recuse himself and this Petition for Writ of Prohibition to compel the respondent to withdraw as the judge presiding over petitioner’s case was filed. In response to an order to show cause why the Petition for Writ of Prohibition should not be granted, the respondent alleged that the motion for recusal was legally insufficient in that the motion was not supported in substance by the affidavit of at least two reputable citizens of the county not of kin to the moving party or her counsel and on the further ground that the allegations of the motion were insufficient to be the basis for the disqualification of the respondent for bias or prejudice.
We agree that the motion for disqualification was legally insufficient in that the supporting affidavits were made by co-counsel for the moving party and that there were not two supporting affidavits made by reputable parties who are not related to the moving party or her counsel as required by § 38.10, Fla.Stat. Such supporting affidavits by reputable persons not related to the moving party or her counsel are required unless the trial judge admits he does not stand fair and impartial between the parties or unless the record contains the equivalent of such an admission by the trial judge as existed in Pistorino v. Ferguson, 386 So. 2d 65 (Fla. 3d DCA 1980).
The petitioner having failed to comply with § 38.10 and having failed to show any basis for waiver of compliance with said section, the Petition for Writ of Prohibition is Denied.
BOOTH, WENTWORTH and THOMPSON, JJ., concur.
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Citator
Cited By
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Cardinal v. Wendy's OF S. Fla., Inc., 529 So. 2d 335 (Fla. 4th DCA 1988)…fear that they would not receive a fair trial. In the instant case the motion never refers to the Cardinals’ subjective beliefs. Instead it is signed by Weinstein and contains his beliefs. Thus the motion was fatally insufficient. In Kah v. Clark, 419 So. 2d 1189 (Fla. 1st DCA 1982), the petitioner, Kah, filed a motion for respondent, Judge Clark, to recuse himself from trying Kah’s medical malpractice action on the grounds that the judge was biased against the attorneys representing her in her suit. The jud…
Authorities Cited
- Pistorino v. Ferguson, 386 So. 2d 65 (Fla. 3d DCA 1980)