Zerby v. Edwards

District Court of Appeal of Florida

Zerby v. Edwards

579 So. 2d 914, 1991 Fla. App. LEXIS 4796, 1991 WL 87971

CourtDistrict Court of Appeal of Florida

DecidedMay 30, 1991

DocketNo. 91-1018

StatusPublished

This text of 579 So. 2d 914 (Zerby v. Edwards) 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

Zerby v. Edwards, 579 So. 2d 914, 1991 Fla. App. LEXIS 4796, 1991 WL 87971 (Fla. Ct. App. 1991).

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Opinion

PETERSON, Judge.

Robert Joseph Zerby, III, petitions for a writ of prohibition directing the Honorable William F. Edwards, Circuit Judge for the Fifth Judicial Circuit, to recuse himself from the dissolution action between the petitioner and his wife, Donna Jo Zerby. We deny the writ.

Zerby’s affidavit in support of his petition indicates that he is a chiropractic physician and that frequently he has testified as an expert before Judge Edwards in cases unrelated to the instant case. In those cases in which thermographic film evidence was offered, the affidavit goes on, the judge excluded it. Zerby concludes that the exclusions cast aspersions upon the validity of his testimony. We do not know the basis for the exclusions, and Zer-by does not allege any additional facts that would cast any reasonable doubt upon Judge Edwards’ ability to decide the dissolution action fairly.

We find that the grounds alleged by Zerby “would not place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983). The mere fact that a judge, in unrelated litigation, has sustained objections to evidence sought to be introduced through an expert cannot be a reasonable basis to conclude that a judge cannot treat that expert fairly in a trial in which the expert is a party. There may be other circumstances surrounding a judge’s exclusion of evidence, such as demeanor or comments directed toward a witness, that would be indicative of prejudice, but no allegation of such circumstances has been made in the instant case.

WRIT DENIED.

DAUKSCH and GOSHORN, JJ., concur.

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PETERSON, Judge.

Robert Joseph Zerby, III, petitions for a writ of prohibition directing the Honorable William F. Edwards, Circuit Judge for the Fifth Judicial Circuit, to recuse himself from the dissolution action between the petitioner and his wife, Donna Jo Zerby. We deny the writ.

Zerby’s affidavit in support of his petition indicates that he is a chiropractic physician and that frequently he has testified as an expert before Judge Edwards in cases unrelated to the instant case. In those cases in which thermographic film evidence was offered, the affidavit goes on, the judge excluded it. Zerby concludes that the exclusions cast aspersions upon the validity of his testimony. We do not know the basis for the exclusions, and Zer-by does not allege any additional facts that would cast any reasonable doubt upon Judge Edwards’ ability to decide the dissolution action fairly.

We find that the grounds alleged by Zerby “would not place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983). The mere fact that a judge, in unrelated litigation, has sustained objections to evidence sought to be introduced through an expert cannot be a reasonable basis to conclude that a judge cannot treat that expert fairly in a trial in which the expert is a party. There may be other circumstances surrounding a judge’s exclusion of evidence, such as demeanor or comments directed toward a witness, that would be indicative of prejudice, but no allegation of such circumstances has been made in the instant case.

WRIT DENIED.

DAUKSCH and GOSHORN, JJ., concur.

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Bluebook (online)

579 So. 2d 914, 1991 Fla. App. LEXIS 4796, 1991 WL 87971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zerby-v-edwards-fladistctapp-1991.

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