CLARK AUTO LEASING & RENTALS, INC. F/K/A CLARK AUTO LEASING CORP., A FLORIDA CORPORATION, PETITIONER,
v.
MARY E. LUPO, AS CIRCUIT JUDGE OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA, RESPONDENT
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PER CURIAM.
We grant the petition for writ of prohibition because the trial court erred in denying the petitioner/defendant’s motion for recusal and in conducting a hearing to refute the allegations contained in the motion and affidavits filed in support of the defendant’s motion.
The trial court initially denied the motion for recusal ruling that the allegations contained in the motion were legally insufficient. However, after ruling on the motion, the trial court had the plaintiffs’ counsel sworn in to address and refute the factual allegations of the motion and affidavits. Although the trial judge stressed that her ruling was based upon the legal sufficiency of the motion and affidavits, the transcript reveals that she indirectly took an active role in addressing the truthfulness of the allegations.
Although we sympathize with the trial court and understand the frustration that can occur in such a lengthy jury trial, the record indicates that the trial judge assumed an adversarial role which is not permitted pursuant to Gieseke v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985). Accordingly, we grant the petition for writ of prohibition.
GUNTHER.and GARRETT, JJ., concur. DOWNEY, J., dissents with opinion.
DOWNEY, Judge,
dissenting.
I would deny the petition for writ of prohibition because I do not believe the allegations of the motion were sufficient to require recusal, particularly four weeks into the trial. Furthermore, the trial judge denied the motion without taking issue with the truth of movant’s contentions. The issue with movant’s contentions was drawn not by the trial judge but by opposing counsel by way of response for the purpose of making a record in the trial court. Thus, I do not find Gieseke v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985), nor Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978), controlling here.
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Nassetta v. Stanton S. Kaplan, 557 So. 2d 919 (Fla. 4th DCA 1990)…d do, the trial judge went on to hold a dialogue with trial counsel about his comment. On this occasion, however, we do not believe the judge’s admittedly gratuitous remarks require that we reverse him. In Clark Auto Leasing & Rentals, Inc. v. Lupo, 547 So. 2d 1016 (Fla. 4th DCA 1989), and more importantly in Bundy v. Rudd, 366 So. 2d 440 (Fla.1978), the trial judge attempted to “ ‘pass on the truth of the facts alleged.’ ” Id. at 442. By contrast, the judge here defended himself, not by saying that the remark…
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Shumpert v. State, 703 So. 2d 1128 (Fla. 2d DCA 1997)…te successful prohibition petitions. See Townsend v. State, 564 So. 2d 594 (Fla. 2d DCA 1990) (disapproving the trial judge’s election to debate the merits of the allegations with the movant’s attorney); Clark Auto Leasing and Rentals, Inc. v. Lupo, 547 So. 2d 1016 (Fla. 4th DCA 1989) (holding that a hearing in which testimony was taken refuting the claim necessitated disqualifying the sitting judge). In this case, the trial judge asserted that it was not his intention to explore the facts advanced in support…
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Valltos v. State, 707 So. 2d 343 (Fla. 2d DCA 1997)…. Rudd, 366 So. 2d 440, 442 (Fla.1978). See also Frost v. Ward, 622 So. 2d 597 (Fla. 4th DCA 1993); Townsend v. State, 564 So. 2d 594 (Fla. 2d DCA 1990); Hill v. Feder, 564 So. 2d 609 (Fla. 3d DCA 1990); Clark Auto Leasing and Rentals, Inc. v. Lupo, 547 So. 2d 1016 (Fla. 4th DCA 1989). This principle applies with equal force to a response filed in a prohibition proceeding in the appellate court by the trial judge whose partiality is questioned, and the response refutes factual allegations or conclusions. See E…
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- THE Florida BAR v. Sanford Freed, 366 So. 2d 440 (Fla. 1978)
- C.J. v. State, 471 So. 2d 80 (Fla. 3d DCA 1985)
- Gieseke v. The Honorable Estella May Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985)