Eubanks v. Gerwen
This text of 720 So. 2d 1164 (Eubanks v. Gerwen) 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.
Opinion
Howard Eubanks, Sr. (“Eubanks”) timely appeals after his complaint for malicious prosecution against appellees was dismissed based on the doctrines of res judicata and/or collateral estoppel. He primarily argues that the trial judge should have disqualified herself from presiding over this case before trial. We agree and reverse.
Ten years before the order dismissing this action was entered, Eubanks was arrested, tried, and acquitted of possession of cocaine. Facts at his first trial revealed that police, after obtaining a search warrant of his business, knew that cocaine discovered in Eu-banks’ car had been planted by a confidential informant. After his acquittal, Eubanks filed a civil suit in federal court alleging two counts of violations of 42 U.S.C. § 1983 in connection with his arrest and prosecution, and also alleging a Florida state law claim for malicious prosecution.
The district court entered summary judgment with regard to Eubanks’ § 1983 claim of false arrest, but denied summary judgment with regard to the federal and state malicious prosecution claims. After appel-[1165]*1165lees successfully appealed from those rulings to the Eleventh Circuit,1 the district court, on remand, dismissed the two federal claims with prejudice, and the state law claim for malicious prosecution without prejudice. It then remanded the state law claim to Bro-ward County Circuit Court.
The state law claim thereafter proceeded to trial before Broward County Circuit Judge Patti Englander Henning. On the day of trial, Eubanks filed a sworn motion to disqualify Judge Henning. He cláimed he had just discovered that the judge ten years before had executed the subject search warrants in which police found the cocaine in his car. Judge Henning denied the motion to disqualify as legally insufficient; however, she made the following remarks in doing so;
Even assuming the facts [in the motion to disqualify] as true, I don’t believe they are legally sufficient for disqualification. [Judges] are permitted to sit upon a criminal case when a warrant is signed by him or her. I see no reason to extend to civil litigation. It comes out of the same signing of a search warrant.
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So the record is clear, in case this goes further, there has never been any subpoena of me. There has never been any listing of me as any witness. You [Eu-banks’ attorney] have stated I was a witness in this case, but that is not factually correct.
Judge Henning granted, however, appellees’ motion for judgment as a matter of law based on the doctrines of res judicata and/or collateral estoppel. From those two rulings, Eubanks appeals.
Eubanks argues that his sworn motion to disqualify Judge Henning was legally sufficient and that, under Florida Rule of Judicial Administration 2.160,2 the court should have granted the motion We agree, but for different reasons. Although Eubanks’ motion to disqualify was not legally sufficient, the record shows that Judge Henning improperly took an adversarial stance in denying the motion. See Fla.R.Jud.Adm. 2.160(f). To avoid the appearance of impropriety, we hold she should have recused herself. See Kielbania v. Jasberg, 22 Fla.L. Weekly D2405, — So.2d -, 1997 WL 640728 (Fla. 4th DCA Oct.15, 1997). We, therefore, reverse the denial of Eubanks’ sworn motion to disqualify and, as such, do not reach the merits of Eubanks’ remaining argument on appeal.
REVERSED and REMANDED for further proceedings consistent with this opinion.
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Cite This Page — Counsel Stack
720 So. 2d 1164, 1998 Fla. App. LEXIS 14990, 1998 WL 821784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eubanks-v-gerwen-fladistctapp-1998.