JERRY LAKE AND BARBARA LAKE, PETITIONERS,

v.

THE HONORABLE CLAUDE R. EDWARDS, JUDGE OF THE CIRCUIT COURT OF ORANGE COUNTY, FLORIDA, RESPONDENT

UPCHURCH, Chief Judge.

Petitioners seek a writ of prohibition to disqualify a trial judge from acting further in a civil proceeding. The Judge denied the motion to disqualify as being legally insufficient and then proceeded to answer petitioners’ allegations. The motion to disqualify complied with requirements of Florida Rule of Civil Procedure 1.432 and section 38.10, Florida Statutes (1985). Petitioners’ sworn motion indicated that they were convinced they would not receive a fair hearing on the pending matters and alleged:

(1) the judge, after a verdict and at the hearing on the motion to tax costs, labeled petitioners’ expert as evasive — the most evasive witness he has ever seen;

(2) at the same hearing, the judge stated petitioner Jerry Lake should share in the title of most evasive witness;

(3) the judge, after the hearing, indicated he was pleased he didn’t have to do any more of these ‘heart balm’ cases (wrongful death cases brought by parents of deceased infants) and that he could handle cases involving people with actual damages;

(4) the judge allegedly also said to counsel as he was leaving, ‘I am sorry I met you in this trial. I wish you had not filed it in my court.’

Section 38.10, Florida Statutes (1985) provides:

Whenever a party to any action or proceeding makes and files an affidavit stating that he fears he will not receive a fair trial in a court where the suit is pending on account of the prejudice of the judge of that court ... the judge shall proceed no further but another judge shall be designated.1 (emphasis added).

Florida Rule of Civil Procedure 1.432(d) provides:

The judge against whom the motion is directed shall determine only the legal sufficiency of the motion. The judge shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall enter an order of disqualification and proceed no further in the action.

In his order on disqualification, the trial judge attempted to refute the allegations of the motion. This he cannot do; therefore, he exceeded the proper scope of his inquiry and on that basis established sufficient grounds for his disqualification. Bundy v. Rudd, 366 So. 2d 440 (Fla.1978); A.T.S. Melbourne, Inc. v. Jackson, 473 So. 2d 280 (Fla. 5th DCA 1985).

Respondent contends that the disqualification came too late because the only thing remaining was a motion for new trial. A motion for new trial, however, is something “further” and the rule clearly provides that the judge “shall proceed no further.” 2

WRIT OF PROHIBITION GRANTED.

DAUKSCH, J., concurs.

SHARP, J., dissents with opinion.

. The statute also provides: "Every such affidavit shall state the facts and the reasons for the belief that any such bias or prejudice exists and shall be accompanied by a certificate of counsel of record that such affidavit and application are made in good faith.”

. See Irwin v. Marko, 417 So. 2d 1108 (Fla. 4th DCA 1982) (where a writ of prohibition was granted to restrain a judge from hearing a motion for attorney’s fees after the cause had been voluntarily dismissed).

SHARP, Judge,

dissenting.

I would deny the petition for writ of prohibition because all that remained to be accomplished by the trial judge at the time the motion for disqualification was filed was a ruling on the petitioner's motion for new trial. In this case petitioner failed to affirmatively show that the grounds for new trial concerned any points not previously considered by the trial judge. Therefore, the errors described in the petition are matters properly reviewable on appeal. They cannot be ruled upon by a successor trial judge, should this one be disqualified. Boeing v. Merchant, 397 So. 2d 399 (Fla. 5th DCA 1981); review denied, 412 So. 2d 468 (Fla.1982); Groover v. Walker, 88 So. 2d 312 (Fla.1956).1

It appears to me the appointment of a new trial judge at this point in the proceedings is a useless act, and one which will not contribute to the final resolution of this cause. Better Construction, Inc. v. Camacho Enterprises, 311 So. 2d 766, 767 (Fla. 3rd DCA), cert. denied, 325 So. 2d 8 (Fla.1975). However, I agree with the majority that had an appeal been pursued and a new trial ordered by the appellate court, petitioner should have been permitted to seek to disqualify if retrial of the case was assigned to the same trial judge. See Sikes v. Seaboard Coast Lines Railroad Co., 429 So. 2d 1216 (Fla. 1st DCA), review denied, 440 So. 2d 353 (Fla.1983). At this point the petition to disqualify comes too late. See Fischer v. Knuck, 497 So. 2d 240 (Fla.1986).

. Consistent with this view is the majority’s reference to Irwin v. Marko, 417 So. 2d 1108 (Fla. 4th DCA 1982). In Irwin, the subsequent appointment of a successor judge to hear a motion for attorney’s fees was proper since attorney’s fees had not been previously considered at trial.