BETTE C. LYTLE, APPELLANT,
v.
CARLENE ROSADO, APPELLEE
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Bette Lytle, a defendant in a personal injury action insured by USAA, sought a writ of prohibition to overturn the trial judge's denial of her disqualification motion. The court granted the writ because the trial judge was a USAA member with a pending claim by his stepson against USAA, creating sufficient grounds for a reasonable person to fear bias.
The motion for disqualification must be granted because the grounds are legally sufficient. A reasonable person would fear bias where a trial judge's immediate family has a pending claim against the insurance company providing representation for the defendant in the case before the judge.
[1] A motion for disqualification must be granted if the facts and circumstances recited are legally sufficient to create a fear of not receiving a fair trial.
[2] Allegations supporting a motion to disqualify are sufficient if they are not frivolous or fanciful.
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Join FLexlaw to unlock all legal intelligence“The affiant must recite 'facts and circumstances that would lead any normal human being in the position of [the movant] to 'fear' that he would not receive a fair trial.' 'If the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there.'”
Establishes the legal standard for disqualification motions—that if facts are sufficient to create a reasonable fear of bias, the motion must be granted.
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Join FLexlaw to unlock all legal intelligenceLytle is the defendant in an action brought by Rosado and is insured by USAA. During the action, Lytle discovered that the trial judge, Judge Alan L. …
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PER CURIAM.
The petitioner in this case, Bette C. Lytle, seeks a writ of prohibition to review the denial' of her motion for disqualification of the trial judge.' Lytle is the defendant in an action brought by Carlene Rosado, and is insured by United Services Automobile Association (“USAA”). USAA has retained counsel to defend Lytle in the underlying action.
During the pendency of the action, Lytle discovered that the trial judge, the Honorable Alan L. Postman; is a member of USAA. She further discovered that Judge Postman was issued an insurance policy by USAA, that Judge Postman’s stepson had made a claim under this policy, that the claim is still pending and that the Judge’s stepson will soon be filing a lawsuit against USAA. Lytle filed a motion to disqualify Judge Postman, and filed an affidavit expressing a fear that she would not receive a fair trial. Lytle also filed an affidavit of the USAA claims adjustor handling the stepson’s claim, in which the adjustor expressed a fear that neither USAA nor Lytle would receive a fair trial. Judge Postman denied the motion.
A motion for disqualification must be granted if it is legally sufficient. See Livingston v. State, 441 So. 2d 1083, 1087 (Fla.1983); Dickenson v. Parks, 104 Fla. 577, 140 So. 459, 462 (1932); Barber v. MacKenzie, 562 So. 2d 755, 757 (Fla. 3d DCA 1990); Breakstone v. MacKenzie, 561 So. 2d 1164, 1167 (Fla. 3d DCA 1989), affirmed in relevant part, 565 So. 2d 1332 (Fla.1990). In Breakstone, this court stated:
The affiant must recite “facts and circumstances that would lead any normal human being in .the position of [the movant] to ‘fear’ that he would not receive a fair trial_” “ ‘If the attested facts supporting the suggestion are reasonably sufficient-to create such a fear, it is not for the trial judge to say that it is not there.’ ” So long as the allegations “‘are not frivolous or fanciful, they are sufficient to support a motion to disqualify....’”
561 So. 2d at 1167-68 (citations omitted); see also Livingston, 441 So. 2d at 1087; Barber, 562 So. 2d at 757.
In the present case the grounds set forth' by the movant are legally sufficient for disqualification. A reasonable person would fear that where a member of the trial judge’s immediate family has a claim pending against the insurance company providing representation for that person, there may be bias against that insurance company and against the party being represented. It is also clear that USAA will ultimately be liable for any verdict returned against Lytle. It would be extremely awkward, to say the least, to negotiate with the Judge’s stepson in one case while the Judge presides over the issue of the insurer’s liability and damages in the present ease. See generally Villeneuva v. State, 127 Fla. 724, 173 So.906, 906 (1937) (judge should have disqualified himself where sister and brother-in-law were allegedly victims of crime by defendant); Marcotte v. Gloeckner, 679 So. 2d 1225, 1225-26 (Fla. 5th DCA 1996) (judge should have disqualified herself where law firm representing subro-gated insurer in case pending before judge also represented the judge in an unrelated action); Atkinson Dredging Co. v. Henning, 631 So. 2d 1129, 1130 (Fla. 4th DCA 1994) (judge should be prohibited from presiding over pending case in which one of the parties’ law firms is the same firm representing the trial judge and her husband in a separate, unrelated action); Town Centre of Islamorada, Inc. v. Overby, 592 So. 2d 774, 775-76 (Fla. 3d DCA 1992) (judge should have disqualified himself where extra-judicial dispute between judge and counsel for party in pending case occurred eleven months prior to filing pending cases).
The petition for writ of prohibition is therefore granted and we direct that Judge Postman disqualify himself in this proceeding.
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The Tower Grp., Inc. v. Doral Enters. Joint Ventures, 760 So. 2d 256 (Fla. 3d DCA 2000)…t demonstrates “that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the Judge.” See also Livingston v. State, 441 So. 2d 1083, 1087 (Fla.1983); see also Lytle v. Rosado, 711 So. 2d 213, 214 (Fla. 3d DCA 1998). The trial court did not find the petitioner’s motion to be legally insufficient. Indeed, we find that, without question, it was. See Florida Supreme Court Committee on Standards of Conduct Governing Judges, Op. 84-23 (Oct. 2…
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Bethesda Mem'l Hosp., Inc. v. Cassone, 807 So. 2d 142 (Fla. 4th DCA 2002)…e J & J Towing, Inc. v. Stokes, 789 So. 2d 1196 (Fla. 4th DCA 2001)(finding prohibition proper where the plaintiffs attorney sued the judge’s wife, both in her individual capacity and as a member of the Broward County School Board); Lytle v. Rosado, 711 So. 2d 213 (Fla. 3d DCA 1998)(finding that motion to disqualify should have been granted where the trial judge’s stepson had a claim pending against the insurance company which had retained counsel to represent the defendant in the action); Atkinson Dredging C…
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J & J Towing, Inc. v. Stokes, 789 So. 2d 1196 (Fla. 4th DCA 2001)…d have been granted where plaintiffs counsel provided legal services and gave advice to judge’s brother, recognizing that “recusal is appropriate where one of the parties or their counsel had dealings with a relative of the court”); Lytle v. Rosado, 711 So. 2d 213 (Fla. 3d DCA 1998) (motion to disqualify should have been granted where the trial judge’s stepson had a claim pending against the insurance company which had retained counsel to represent the defendant in the action); Marcotte v. Gloeckner, 679 So.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Livingston v. State, 441 So. 2d 1083 (Fla. 1983)
- Honorable Mary Ann MacKENZIE v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990)
- Dickenson v. Parks, 104 Fla. 577 (Fla. 1932)
- Barber v. Honorable Mary Ann MacKENZIE, 562 So. 2d 755 (Fla. 3d DCA 1990)
- Breakstone v. Honorable Mary Ann MacKENZIE, 561 So. 2d 1164 (Fla. 3d DCA 1989)
- Town Ctr. OF Islamorada, Inc. v. The Honorable J. Jefferson Overby, 592 So. 2d 774 (Fla. 3d DCA 1992)
- Atkinson Dredging Co. v. Judge Patti Englander Henning, 631 So. 2d 1129 (Fla. 4th DCA 1994)
- Marcotte v. Hon. Linda Gloeckner, 679 So. 2d 1225 (Fla. 5th DCA 1996)
- Villaneuva v. State, 127 Fla. 724 (Fla. 1937)