ALBERTO BORJAS, PETITIONER,
v.
JUDGE GEORGE A. BRESCHER, RESPONDENT
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A petition for writ of prohibition to disqualify a trial judge is granted where the motion meets procedural requirements, is supported by verified facts, and establishes a well-founded fear of bias.
A motion for disqualification of a trial judge must be granted when it satisfies procedural requirements, is supported by verified facts establishing specific grounds, and creates a well-founded fear that the party will not receive a fair trial.
[1] A motion for disqualification of a trial judge supported by verified facts establishing specific grounds and creating a well-founded fear of bias must be granted when pro…
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Join FLexlaw to unlock all legal intelligence“Where a motion for disqualification fulfills the procedural requirements of that rule, is supported by a verified statement of specific facts that are reasonably sufficient to create a well-founded fear on the part of a party that he or she will not receive a fair trial, and is timely made, it should be granted.”
Establishing the standard for granting disqualification motions under Florida law.
Petitioner Alberto Borjas sought disqualification of Judge George A. Brescher through a motion supported by counsel's affidavit detailing specific fac…
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PER CURIAM.
This petition for writ of prohibition to disqualify the trial judge is granted.
Section 38.10, Florida Statutes, sets up the substantive right to seek disqualification of a trial judge. Brown v. St. George Island, Ltd., 561 So. 2d 253, 255 (Fla.1990). Florida Rule of Civil Procedure 1.432 controls the disqualification procedure in civil cases. Id. Where a motion for disqualification fulfills the procedural requirements of that rule, is supported by a verified statement of specific facts that are reasonably sufficient to create a well-founded fear on the part of a party that he or she will not receive a fair trial, and is timely made, it should be granted. Fischer v. Knuck, 497 So. 2d 240, 242 (Fla.1986), and cases cited therein.
Here the procedural requirements were met; counsel’s affidavit supported the operative facts set forth in the motion, stating specifically how he came to know those facts; and, taken as true, those facts were reasonably sufficient to generate in petitioner a fear of bias on the part of the trial judge. The facts alleged in such a motion must be taken as true when the motion is supported by the required documentation. See, e.g., Gieseke v. Grossman, 418 So. 2d 1055, 1057 (Fla. 4th DCA 1982).
LETTS, GUNTHER and FARMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Eugene J. Strasser, M.D., P.A. v. Bose Yalamanchi, M.D., P.A., 783 So. 2d 1087 (Fla. 4th DCA 2001)…, well-grounded fear that they will not receive a fair and impartial trial or that the judge has pre-judged the case. See Wargo v. Wargo, 669 So. 2d 1123 (Fla. 4th DCA 1996); Nunez v. Backman, 645 So. 2d 1063 (Fla. 4th DCA 1994); Borjas v. Brescher, 579 So. 2d 399 (Fla. 4th DCA 1991); and Hayslip v. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981). They further liken the facts of this case to several recent decisions in which trial judges made certain gratuitous and unsolicited comments disparaging to a party or t…
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Dura-Stress, Inc. v. Honorable William G. LAW, Jr., 634 So. 2d 769 (Fla. 5th DCA 1994)…both of the parties in a motion to disqualify, the trial judge can only pass on the motion’s legal sufficiency. If it is legally sufficient, the trial judge must grant the motion and proceed no further. Fla.R.Jud.Admin. 2.160(f); Borjas v. Brescher, 579 So. 2d 399 (Fla. 4th DCA 1991). The judge may not enter any other orders, nor may the judge pass on the truthfulness of the motion and affidavits. Mac-Kenzie, 565 So. 2d at 1340; Eastern Airlines, Inc. v. King, 561 So. 2d 1220 (Fla. 3d DCA 1990), review denied…
Authorities Cited
- Anne Marie Fischer v. Honorable Francis X. Knuck, 497 So. 2d 240 (Fla. 1986)
- Brown v. ST. George Island, Ltd., 561 So. 2d 253 (Fla. 1990)
- Terry v. State, 418 So. 2d 1055 (Fla. 5th DCA 1982)