WAL-MART STORES, INC., PETITIONER,
v.
GLORIA CARTER, RESPONDENT
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Wal-Mart petitioned for a writ of certiorari to review an order denying its motion to disqualify the trial judge in a personal injury action. The court treated the petition as one for prohibition and denied relief because Wal-Mart's disqualification motion failed to comply with Florida Rule of Judicial Administration 2.160(c), which requires the motion be sworn to by the party or accompanied by an affidavit with separate attorney certification of good faith.
The petition for writ of prohibition is denied. The appropriate remedy for interlocutory review of an order denying judicial disqualification is prohibition, not certiorari. The motion to disqualify failed to comply with Florida Rule of Judicial Administration 2.160(c) because it was not sworn to by the party or accompanied by an affidavit from someone with authority to represent the corporation.
[1] The traditional remedy for interlocutory review of an order denying judicial disqualification is a writ of prohibition.
[2] A motion for judicial disqualification must be in writing, specifically allege facts and reasons for disqualification, and be sworn to by the party or by separate affidav…
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Join FLexlaw to unlock all legal intelligence“The traditional remedy for interlocutory review of an order denying judicial disqualification is prohibition.”
Establishes that certiorari is not the appropriate remedy and prohibition is the correct procedure for reviewing such orders.
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Join FLexlaw to unlock all legal intelligenceWal-Mart was the defendant in a pending personal injury action and filed a motion to disqualify the trial judge. The motion to disqualify was signed o…
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PER CURIAM.
Wal-Mart Stores, Inc., timely petitions this court for a writ of certiorari seeking, in effect, review of an order which denied a motion to disqualify the trial judge presiding over a pending personal injury action in which Wal-Mart is the defendant. We treat the petition as seeking a writ of prohibition and, for the reasons described below, deny relief.
Petitioner relies upon Smith v. Santa Rosa Island Authority, 729 So. 2d 944 (Fla. 1st DCA 1998) as authority for certiorari as the appropriate remedy. We find Smith to be distinguishable, as it involved the circuit court sitting in its appellate capacity and because the decision of the circuit court on the merits of the dispute was also being reviewed. The traditional remedy for interlocutory review of an order denying judicial disqualification is prohibition. See MacKenzie v. Super Kids Bargain Store, 565 So. 2d 1332 (Fla.1990); Bundy v. Rudd, 366 So. 2d 440 (Fla.1978); Hayslip v. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981). We accordingly treat the petition for writ of certiorari as a petition for writ of prohibition. Fla. R.App. P. 9.040(c).
The order denying the motion was silent as to the reason(s) for the ruling and we have accordingly examined the motion for disqualification for its compliance with Florida Rule of Judicial Administration 2.160 before addressing the question of its legal sufficiency.1
Florida Rule of Judicial Administration 2.160(c) requires that the motion shall be made in writing, specifically allege the facts and reasons for disqualification and “shall be sworn to by the party by signing the motion under oath or by separate affidavit. The attorney for the party shall also separately certify that the motion and the client’s statements are made in good faith.” Failure to support the motion with the client’s sworn signature or an affidavit is a basis to deny the motion. Gaines v. State, 722 So. 2d 256 (Fla. 5th DCA 1998); Cardinal v. Wendy’s of South Florida, Inc., 529 So. 2d 335 (Fla. 4th DCA 1988).
The motion to disqualify the circuit judge in the instant matter was signed only by movant’s counsel and his secretary. Although the moving party is not a natural person, nevertheless someone with authority to speak for the corporation (other than counsel) must attest to the motion or execute an accompanying affidavit. Owens-Corning Fiberglas Corp. v. Parsons, 644 So. 2d 340 (Fla. 1st DCA 1994).
As the motion for disqualification was not in compliance with Florida Rule of Judicial Administration 2.160(c), petitioner has failed to demonstrate error in the trial judge’s denial of the motion. Accordingly, the petition for writ of prohibition is hereby denied.
PETITION DENIED.
BOOTH, ALLEN and LAWRENCE, JJ., concur. . We are unable to determine whether the motion was timely filed. See HIP Health Plan of Florida, Inc. v. Griffin, 757 So. 2d 1272 (Fla. 4th DCA 2000). We find it unnecessary to reach this issue, however, in light of our denial of relief on other grounds.
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Flavio Santisteban v. State, 72 So. 3d 187 (Fla. 4th DCA 2011)…trial court’s decision to deny the motion as legally insufficient was proper”). Thus, failure to support a motion for disqualification with the client’s sworn signature or an affidavit is a basis to deny the motion. Wal-Mart Stores, Inc. v. Carter, 768 So. 2d 21, 22 (Fla. 1st DCA 2000); Gaines v. State, 722 So. 2d 256, 256 (Fla. 5th DCA 1998). Here, the trial court properly denied appellant’s motion because the motion did not comply with the procedural requirements of rule 2.330. The motion for disqualific…
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Marshall v. Merrill A. Bookstein, 789 So. 2d 455 (Fla. 4th DCA 2001)…orn to by the party by signing the motion under oath or by a separate affidavit.” Failure to support the motion with the party’s sworn signature or affidavit has been found to be a basis for denial of the motion. See Wal-Mart Stores, Inc. v. Carter, 768 So. 2d 21, 22 (Fla. 1st DCA 2000)(citing Gaines v. State, 722 So. 2d 266 (Fla. 5th DCA 1998); Cardinal v. Wendy’s of S. Fla., Inc., 529 So. 2d 335 (Fla. 4th DCA 1988)). Here, the motion to disqualify was not signed under oath by petitioners. However, it was a…
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Skarka v. Lennar Homes, 29 So. 3d 1170 (Fla. 1st DCA 2010)…9.040(c). Because the motion was not “sworn to by the party by signing the motion under oath or by a separate affidavit,” the JCC properly denied it. See Fla. Admin. Code R. 60Q-6.126; Fla. R. Jud. Admin 2.330(c)(3); Wal-Mart Stores, Inc. v. Carter, 768 So. 2d 21, 22 (Fla. 1st DCA 2000). Accordingly, we deny the petition for writ of prohibition. Upon the untimely filing of a reply brief, this court issued an order to show cause as to why it should not, sua sponte, impose attorney’s fees against Petitioner…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Honorable Mary Ann MacKENZIE v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990)
- THE Florida BAR v. Sanford Freed, 366 So. 2d 440 (Fla. 1978)
- Hayslip v. The Honorable Paul T. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981)
- Cardinal v. Wendy's OF S. Fla., Inc., 529 So. 2d 335 (Fla. 4th DCA 1988)
- Smith v. Santa Rosa Island Auth., 729 So. 2d 944 (Fla. 1st DCA 1998)
- Owens-Corning Fiberglas Corp. v. Parsons, 644 So. 2d 340 (Fla. 1st DCA 1994)
- Gaines v. State, 722 So. 2d 256 (Fla. 5th DCA 1998)
- Scott v. State, 722 So. 2d 256 (Fla. 5th DCA 1998)
- HIP Health Plan OF Fla., Inc. v. Sandi Griffin, 757 So. 2d 1272 (Fla. 4th DCA 2000)