WILLIAM T. IRWIN AND KATHLEEN N. IRWIN, PETITIONERS,
v.
THE HONORABLE PAUL M. MARKO, III, JUDGE OF THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, RESPONDENT
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In this original petition for a writ of prohibition, the Florida Fourth District Court of Appeal ordered a trial judge to recuse himself from a marriage dissolution case because he had made prejudicial comments on the record indicating he had prejudged an attorney's fees motion before hearing it.
The court granted the petition for writ of prohibition and directed the trial judge to recuse himself. The judge's advance comments indicating intent to grant the attorney's fees motion created an appearance of impropriety and prejudgment that required recusal under Florida law.
[1] A voluntary dismissal of a cause does not deprive the trial court of jurisdiction to entertain a motion for attorney's fees.
[2] A judge must recuse himself when comments made on the record create the appearance of having prejudged an issue before hearing it.
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Join FLexlaw to unlock all legal intelligence“the respondent Marko has made certain comments on the record in this cause indicating that he intends to grant the subject motion for attorney's fees and to award an amount in the six figures; these comments were made prior to any hearing below on the said motion”
Establishes the factual basis for finding prejudgment
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Join FLexlaw to unlock all legal intelligenceWilliam and Kathleen Irwin were parties to a marriage dissolution action that was voluntarily dismissed. A motion to set attorney's fees for Kathleen'…
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PER CURIAM.
This is an original petition for a writ of prohibition filed by the petitioners, William T. and Kathleen N. Irwin [the respective parties in a marriage dissolution action since voluntarily dismissed] which seeks to prohibit the respondent trial judge, Paul M. Marko, III, from entertaining any further jurisdiction in the cause, wherein a motion is presently pending to set attorney’s fees for the wife Kathleen N. Irwin’s former counsel. We have previously held that the voluntary dismissal of this cause did not deprive the trial court of jurisdiction to entertain the motion to set attorney’s fees and, on that basis, directed the trial court to entertain the said motion. Irwin v. Marko, 408 So. 2d 677 (Fla. 4th DCA 1981).
It is now urged by the petitioners that the respondent Marko is disqualified by reason of bias and prejudice from entertaining any further jurisdiction herein based, in part, on certain comments made by the respondent Marko on the record in this action. We have previously issued a rule nisi in this cause, the respondent Marko has filed a response, and the wife’s former counsel, as amieus curiae, has also filed a response. Upon consideration of the petition, responses and supporting record, we conclude that the petition for writ of prohibition should be granted and direct that the respondent Marko recuse himself from exercising any further jurisdiction in this cause.
It is clear that the respondent Marko has made certain comments on the record in this cause indicating that he intends to grant the subject motion for attorney’s fees and to award an amount in the six figures; these comments were made prior to any hearing below on the said motion. As such, we think the respondent judge has created the appearance of having prejudged the attorney’s fee issue in advance of hearing it and, accordingly, is required by our law to recuse himself. See e.g., State v. Steele, 348 So. 2d 398 (Fla. 3d DCA 1977), and authorities collected. Indeed, this appearance of impropriety is compounded by the fact that the respondent judge has declined to rule in any way on the motion to disqualify himself filed by the petitioners in this cause. A writ of prohibition, therefore, lies to restrain the respondent from further exercising jurisdiction in this cause. Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); Brown v. Rowe, 96 Fla. 289, 118 So. 9 (1928); State ex rel. Arnold v. Revels, 113 So. 2d 218 (Fla. 1st DCA 1959).
We grant the petition for writ of prohibition, but assume it will be unnecessary to issue the formal writ. We are confident that the respondent Marko will, upon receipt of this opinion, recuse himself from this cause and the cause, thereafter, will be reassigned to a new trial judge according to the established administrative procedures utilized in the Circuit Court for the Seventeenth Judicial Circuit of Florida.
It is so ordered.
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Brown v. ST. George Island, Ltd., 561 So. 2d 253 (Fla. 1990)…a conclusion that the movant has a well-founded fear he will not receive a fair trial at the hands of the judge. See also LeBruno Aluminum Co. v. Lane, 436 So. 2d 1039 (Fla. 1st DCA 1983), review dismissed, 450 So. 2d 487 (Fla.1984); Irwin v. Marko, 417 So. 2d 1108 (Fla. 4th DCA 1982). 547 So. 2d at 960 (footnote omitted). Thus, we hold that the motions should have been granted and that Judge Rudd is disqualified further to act in these proceedings.7 Accordingly, we approve the decisions below but disapprove…
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ST. George Island, Ltd. v. Rudd, 547 So. 2d 958 (Fla. 1st DCA 1989)…a conclusion that the movant has a well-founded fear he will not receive a fair trial at the hands of the judge. See also LeBruno Aluminum Co. v. Lane, 436 So. 2d 1039 (Fla. 1st DCA 1983), review dismissed, 450 So. 2d 487 (Fla.1984); Irwin v. Marko, 417 So. 2d 1108 (Fla. 4th DCA 1982). Respondents Leisure Properties, Ltd., Gene D. Brown, and Leisure Development, Inc., make an additional argument in support of denial of the relief sought in the petition. They show that another circuit judge was previously disq…
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Port Everglades Auth. v. Honorable Robert Lance Andrews, 603 So. 2d 118 (Fla. 4th DCA 1992)…er with petitioner’s supporting affidavits, sets forth a legally sufficient basis for recusal. Therefore, the trial judge should have granted petitioner’s motion for recusal. See Kasser v. Woodson, 549 So. 2d 802 (Fla. 5th DCA 1989); Irwin v. Marko, 417 So. 2d 1108 (Fla. 4th DCA 1982). Accordingly, we grant the petition for writ of prohibition. PROHIBITION GRANTED. DELL, WARNER and POLEN, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dickenson v. Parks, 104 Fla. 577 (Fla. 1932)
- Brown v. Rowe, 96 Fla. 289 (Fla. 1928)
- State v. Revels, 113 So. 2d 218 (Fla. 1st DCA 1959)
- Irwin v. Honorable Paul M. Marko, III, 408 So. 2d 677 (Fla. 4th DCA 1981)
- Farto v. State, 348 So. 2d 398 (Fla. 3d DCA 1977)
- State v. Steele, 348 So. 2d 398 (Fla. 3d DCA 1977)