RICHARD J. HOLTER, PETITIONER,
v.
PATRICIA DOHNANSKY, RESPONDENT
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Richard Holter sought a writ of prohibition to challenge an order denying his motion to disqualify the trial judge who held an ex parte hearing regarding his visitation rights and issued an adverse order. The appellate court reversed, finding the disqualification motion was timely filed and legally sufficient under Florida law.
The motion to disqualify was timely because, although filed on the eleventh day, Florida Rule of Civil Procedure 1.090(a) extended the ten-day deadline to the next non-weekend, non-holiday day. The motion was also legally sufficient because a reasonable person might justifiably fear bias given the ex parte procedure and adverse sua sponte order.
[1] A motion to disqualify a judge is timely if filed within ten days of discovering the grounds for disqualification, with the period extended to the next business day if th…
[2] A reasonable person may fear judicial bias when a judge excludes a party from an ex parte hearing and sua sponte issues an order adverse to that party.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Rule 2.160(e) of the Florida Rules of Judicial Administration requires a motion to disqualify to be filed within a reasonable time, not to exceed ten days, after discovery of the facts constituting the grounds for disqualification.”
Establishes the statutory deadline for filing disqualification motions
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHolter was excluded from an ex parte, unrecorded hearing conducted by the trial judge. The judge subsequently issued a sua sponte order depriving Holt…
The full statement of facts, procedural history, and disposition for this case are member content.
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MONACO, J.
Richard J. Holter seeks a writ of prohibition to review an order denying his motion to disqualify the lower court judge. Because the order was improperly denied as untimely, and because the motion to disqualify the trial judge was legally sufficient, we reverse.
Mr. Holter filed a motion to disqualify based on his contention that the order of the trial judge depriving him of visitation rights with his natural child was based on an ex parte procedure from which he was excluded. Rule 2.160(e) of the Florida Rules of Judicial Administration requires a motion to disqualify to be filed within a reasonable time, not to exceed ten days, after discovery of the facts constituting the grounds for disqualification. The trial court denied the order in the present case because it was filed on the eleventh day after the date of the proceeding from which he was excluded. The tenth day, however, fell on a Sunday. By virtue of Rule 1.090(a), Florida Rules of Civil Procedure, however, because the last day of the period fell on a Sunday, the ten-day filing period actually ran to the end of the next day that was not a Saturday, Sunday or holiday. Thus, the motion was timely.
Without further detailing the facts, suffice it to say that a reasonable person might under the circumstances justifiably fear that a judge was biased against him or her because of the ex parte unrecorded hearing and the sua sponte issuance by the judge of an order adverse to the petitioner. Cf., Garner v. Martinez, 691 So. 2d 9 (Fla. 3d DCA 1997); Brake v. Murphy, 693 So. 2d 663 (Fla. 3d DCA), review denied, 700 So. 2d 686 (Fla.1997); Rollins v. Baker, 683 So. 2d 1138 (Fla. 5th DCA 1996). We do not mean to imply by this opinion that the respected trial judge in this case actually acted out of improper motives. Obviously, the trial judge is put at a disadvantage by not being able to address the merits of the motion, and we do not know his version of the story. We say only that a party under these circumstances might reasonably fear that he or she would not be treated fairly by the judge. See Fla. R. Jud. Admin. 2.160(d).
We conclude, therefore, that the trial judge must be disqualified from presiding further in this case.
PETITION GRANTED.
PETERSON and ORFINGER, JJ., concur.
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Hatfield v. State, 46 So. 3d 654 (Fla. 2d DCA 2010)…mail shall be complete upon mailing. Fla. R. Civ. P. 1.080(b).2 We conclude that because rule 2.330(c)(4) invokes the rule of civil procedure governing service of a pleading, related civil rules must also necessarily apply. Cf. Holter v. Dohnansky, 917 So. 2d 242 (Fla. 5th DCA 2005) (invoking rule 1.090(a) to allow an extra day for [*656] filing a motion to disqualify when the filing deadline fell on a Sunday). Relevant to the present issue, rule 1.090(e) provides that [w]hen a party has the right or is req…
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Cruz v. Cruz, 77 So. 3d 880 (Fla. 5th DCA 2012)…tenth day fell on Friday, November 11, 2011, which was Veteran’s Day. Accordingly, Petitioner was entitled to file his motion on the “next day which is neither a Saturday, Sunday, or legal holiday.” Fla. R. Civ. P. 1.090(a). See Holter v. Dohnansky, 917 So. 2d 242, 243 (Fla. 5th DCA 2005) (“[Bjecause the last day of the period fell on a Sunday, the ten-day filing period actually ran to the end of the next day that was not a Saturday, Sunday or holiday.”). Petitioner’s November 14, 2011, motion to disqualify w…
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Bennett v. Bennett, 77 So. 3d 881 (Fla. 5th DCA 2012)…tenth day fell on Friday, November 11, 2011, which was Veteran’s Day. Accordingly, Petitioner was entitled to file her motion on the “next day which is neither a Saturday, Sunday, or legal holiday.” Fla. R. Civ. P. 1.090(a). See Holter v. Dohnansky, 917 So. 2d 242, 243 (Fla. 5th DCA 2005) (“[Bjecause the last day of the period fell on a Sunday, the ten-day filing period actually ran to the end of the next day that was not a Saturday, Sunday or holiday.”). Petitioner’s November 14, 2011, motion to disqualify w…
Authorities Cited
- Brake v. Eve E. Murphy, 693 So. 2d 663 (Fla. 3d DCA 1997)
- Rollins v. Hon. Joseph P. Baker, 683 So. 2d 1138 (Fla. 5th DCA 1996)
- Garner v. Martinez, 691 So. 2d 9 (Fla. 3d DCA 1997)