MARY M. WICKLUND, PETITIONER,
v.
WALLY SCHOFF AND PINEDA INN, INC., RESPONDENTS
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Wicklund petitioned for a writ of prohibition to disqualify the trial judge based on alleged bias against her attorney. The court granted the petition, finding that the facts alleged—including prior adversarial cases, a judge's letter expressing low regard for the attorney's practice, and allegations of improper influence—were sufficient to prompt a reasonably prudent person to fear she could not receive a fair trial.
The facts alleged were sufficient to satisfy the legal standard for recusal, as they would prompt a reasonably prudent person to fear that she could not get a fair and impartial trial. The motion to recuse should have been granted.
[1] A motion for recusal is legally sufficient if the alleged facts, taken as true, would cause a reasonably prudent person to fear an unfair and impartial trial.
[2] A trial judge's demonstrable dislike and contempt for a party's attorney, evidenced by past adversarial history and written communications, may warrant recusal.
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Join FLexlaw to unlock all legal intelligence“the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial”
Statement of the legal standard for determining sufficiency of a motion for recusal
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Join FLexlaw to unlock all legal intelligenceWicklund's attorney and Judge Torpy had opposed each other in multiple cases before Torpy was appointed to the bench. During those cases, Torpy exhibi…
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PER CURIAM.
Mary M. Wicklund has petitioned for a writ of prohibition to disqualify the trial judge, Vincent G. Torpy, Jr., from presiding in the instant case because of alleged bias against Wicklund’s attorney. Wick-lund filed a motion to recuse below, supported by her affidavit stating that she feared the bias and prejudice against her attorney would affect her receiving a fair trial. Specifically, Wicklund alleged (1) that her attorney and Judge Torpy opposed each other in a number of cases before Judge Torpy was appointed to the bench, (2) during these cases Torpy developed and exhibited what appeared to be a demonstrative dislike and contempt of Wicklund’s attorney which continues on to the current day, (3) Torpy wrote a letter to Wicklund’s attorney in a prior case stating that “I (Torpy) have a low regard for your approach to the practice of law,” and (4) Wicklund’s attorney, in open court, represented to the court that Torpy attempted to improperly influence the special master appointed in a case.
The test for determining the legal sufficiency of a motion for recusal is whether “the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.” Hayslip v. Douglas, 400 So. 2d 553, 556 (Fla. 4th DCA 1981), (citing, State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695 (1938)). The facts presented in the affidavit are sufficient to prompt Wicklund to believe she could not get a fair trial based on the antipathy of the trial judge towards her attorney.
Accordingly, we grant the petition for writ of prohibition, quash the order denying the motion for recusal, and remand this case for assignment to a different trial judge.
PETITION GRANTED; ORDER QUASHED.
COBB, PETERSON and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gates v. State, 784 So. 2d 1235 (Fla. 2d DCA 2001)…e judge allegedly chastised defense counsel so loudly that she could possibly be heard by the jury, was sufficient to create in the defendant a reasonable fear that he would not receive a fair trial at the hands of the judge. See Wicklund v. Schoff, 755 So. 2d 192 (Fla. 5th DCA 2000); Hayslip v. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981). “A trial court’s prejudice against an attorney may be grounds for disqualification when such prejudice is of such a degree that it adversely [ajffects the litigant.” Franco…
Authorities Cited
- Hayslip v. The Honorable Paul T. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981)
- State v. Dewell, 131 Fla. 566 (Fla. 1938)