PHILLIP B. ISAN, PETITIONER,
v.
JILL R. ISAN, RESPONDENT
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Phillip Isan petitioned for a writ of prohibition to disqualify Judge Robert Wohn from his marital dissolution case, alleging ex parte communications between the judge and his spouse. The Fifth District Court of Appeal granted the petition, holding that the alleged ex parte communications were legally sufficient to create a well-founded fear of bias in a reasonably prudent person.
The writ of prohibition is granted and Judge Wohn is disqualified from further participation in the case. The alleged ex parte communications are legally sufficient on their face to demonstrate that a reasonably prudent person would fear not receiving a fair and impartial hearing.
[1] Prohibition lies to review trial court orders denying motions to disqualify trial judges.
[2] A motion to disqualify a judge must be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion.
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Join FLexlaw to unlock all legal intelligence“Nothing is more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant.”
Establishes the strong public policy against ex parte communications and their threat to judicial impartiality, forming the basis for the disqualification standard.
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Join FLexlaw to unlock all legal intelligencePetitioner Phillip Isan filed a motion to disqualify Judge Robert Wohn in his marital dissolution case against Jill Isan. Petitioner alleged that the …
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Phillip Isan (Petitioner) petitions this court for a writ of prohibition to disqualify the Honorable Robert Wohn from presiding over Petitioner’s marital dissolution case against Jill Isan (Respondent). We grant the petition.
“Prohibition lies to review trial court orders denying motions to disqualify trial judges.” Martin v. State, 804 So.2d 360, 362 (Fla. 4th DCA 2001) (citing MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1334 (Fla. 1990)). Motions to disqualify are governed substantively by section 38.10, Florida Statutes (2016), and procedurally by Florida Rule of Judicial Administration 2.330. See Krawczuk v. State, 92 So.3d 195, 200 (Fla. 2012) (citing Parker v. State, 3 So.3d 974, 981 (Fla. 2009)). This rule provides that a motion to disqualify “shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling.” Fla. R. Jud. Admin. 2.330(e). Pursuant to this rule, a judge against whom an initial motion to disqualify has been directed shall determine only the legal sufficiency of the motion without passing on the truth of the facts alleged. Fla. R. Jud. Admin. 2.330(f). The legal sufficiency of the motion turns on whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial hearing. See MacKenzie, 565 So.2d at 1335; Livingston v. State, 441 So.2d 1083, 1087 (Fla. 1983). This Court has written:
If the grounds asserted in a motion for disqualification are legally sufficient to create a well-founded fear in the mind of a party that he or she will not receive a fair trial, it is incumbent upon a judge to disqualify herself. To determine whether the motion is “legally sufficient,” this Court must resolve whether the alleged facts, which, accepted as true, would prompt a reasonably prudent person to fear that she could not get a fair and impartial trial before that judge. An affiant’s mere subjective fear is insufficient to form the basis for disqualification.
Chace v. Loisel, 170 So.3d 802, 803 (Fla. 5th DCA 2014) (citations omitted).
Here, Petitioner argues that the petition should be granted because his disqualification motion was timely and legally suffi-*42dent in light of case law addressing ex parte communications. See Rose v. State, 601 So.2d 1181, 1183 (Fla. 1992) (“Nothing is more dangerous and destructive of the impartiality of the judiciary than a one-sided communication between a judge and a single litigant.”); Klapper-Barrett v. Nurell, 742 So.2d 851, 853 (Fla. 5th DCA 1999) (reiterating that there is a strong public policy against ex parte communications between a judge and litigant). We agree.
Petitioner’s motion alleged the trial judge engaged in ex parte communications with Respondent on several occasions before entering a Final Judgment nearly identical to Respondent’s proposed final judgment, including awarding attorney’s fees. This is sufficient on its face to demonstrate that a reasonably prudent person would be in fear of not receiving a fair and impartial hearing. Accordingly, the writ of prohibition shall issue, and Judge Wohn is disqualified from further participation in this case.
PETITION GRANTED; WRIT ISSUED.
ORFINGER, BERGER and WALLIS, JJ., concur.
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Citator
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Cancel v. Montanez, 249 So. 3d 796 (Fla. 5th DCA 2018)…otion to disqualify the Honorable Luis F. Calderon from presiding over her child relocation case against Roberto Montanez. We grant the petition. We review trial court orders denying motions to disqualify trial judges by prohibition. Isan v. Isan, 209 So. 3d 40, 41 (Fla. 5th DCA 2016). Motions to disqualify are governed procedurally by Florida Rule of Judicial Administration 2.330. See Wall v. State, 238 So. 3d 127, 142 (Fla. 2018) ; Krawczuk v. State, 92 So. 3d 195, 200 (Fla. 2012). Specifically, the moti…
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Erren v. Marin (Fla. 4th DCA 2023)…, 875 So. 2d 383, 390 (Fla. 2004). This is because even a single act of ex parte communication can be sufficient for judicial disqualification. R.J. Reynolds Tobacco Co. v. Alonso, 268 So. 3d 151, 154 (Fla. 4th DCA 2019); see also Isan v. Isan, 209 So. 3d 40, 42 (Fla. 5th DCA 2016) (disqualification of a trial judge who engaged in ex parte communications with the respondent and entered a final judgment that was nearly identical to the proposed final judgment submitted by the respondent). It is al…
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Cancel v. Montanez (Fla. 5th DCA 2018)
Authorities 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)
- Rose v. State, 601 So. 2d 1181 (Fla. 1992)
- Parker v. State, 3 So. 3d 974 (Fla. 2009)
- Anton Krawczuk v. State, 92 So. 3d 195 (Fla. 2012)
- Martin v. State, 804 So. 2d 360 (Fla. 4th DCA 2001)
- Chace v. Loisel, 170 So. 3d 802 (Fla. 5th DCA 2014)
- Klapper-Barrett v. Nurell, 742 So. 2d 851 (Fla. 5th DCA 1999)