Borjas v. Brescher

District Court of Appeal of Florida

Borjas v. Brescher

579 So. 2d 399, 1991 Fla. App. LEXIS 4715, 1991 WL 82516

CourtDistrict Court of Appeal of Florida

DecidedMay 22, 1991

DocketNo. 91-1006

StatusPublished

Cited by2 cases

This text of 579 So. 2d 399 (Borjas v. Brescher) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Borjas v. Brescher, 579 So. 2d 399, 1991 Fla. App. LEXIS 4715, 1991 WL 82516 (Fla. Ct. App. 1991).

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Opinion

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.

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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.

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579 So. 2d 399, 1991 Fla. App. LEXIS 4715, 1991 WL 82516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borjas-v-brescher-fladistctapp-1991.

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