Gulfstream Park Racing Ass'n v. Gale ex rel. Dade County

540 So. 2d 196, 14 Fla. L. Weekly 779, 1989 Fla. App. LEXIS 1418, 1989 WL 24032

• Court: District Court of Appeal of Florida
• Decided: March 21, 1989
• Docket: No. 88-1064
• Status: Published

Opinion

PER CURIAM.

This is an original petition for a writ of prohibition in which the petitioner Gulf-stream Park Racing Association claims that the respondent circuit court judge should have disqualified himself from sitting in the cause below, as urged in its motion to disqualify filed with the trial court. We have jurisdiction to entertain this petition. Caleffe v. Vitale, 488 So.2d 627 (Fla. 4th DCA 1986); Art. V, § 4(b)(3), Fla. Const.

Although we agree that the motion to disqualify was legally insufficient, the trial judge unfortunately added his own explanation of relevant events and strongly denied certain of the factual allegations of the motion for disqualification, thereby passing “on the truth of the facts alleged” in the motion in violation of Fla.R.C.P. 3.230(d). Consequently, the trial judge “exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification” by creating “‘an intolerable adversary atmosphere’ ” between himself and the petitioner. Bundy v. Rudd, 366 So.2d 440, 442 (Fla.1978), and cases collected. This being so, we conclude that the respondent trial judge should have disqualified himself from sitting in the cause below.

The petition for a writ of prohibition is granted. ,We assume, however, that it will be unnecessary to issue a formal writ of prohibition and that the respondent trial judge will disqualify himself in this case upon receipt of this opinion,

Prohibition granted.