MICHELLE PIMIENTA
v.
DAVID ABRAHAM ROSENFELD
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Michelle Pimienta sought a writ of prohibition to overturn a trial court's denial of her motion to disqualify the judge. The Third District Court of Appeal granted the petition, holding that the motion to disqualify was legally sufficient based on the allegation that the trial court refused to allow a court reporter and insisted on hearing a motion off the record.
The motion to disqualify was legally sufficient, and prohibition is both an appropriate and necessary remedy. When an initial motion to disqualify is filed, the trial court may determine only the legal sufficiency of the motion and must accept the facts alleged as true without passing on their truthfulness.
[1] A trial court, when considering an initial motion to disqualify, may only determine the legal sufficiency of the motion and shall not pass on the truth of the facts alleg…
[2] The facts alleged in a motion to disqualify a trial judge must be accepted as true when determining the motion's legal sufficiency.
Previewing 2 of 4 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“In considering an initial motion to disqualify, a trial court "may determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged."”
Establishes the standard of review for initial motions to disqualify: the trial court must accept facts alleged as true and consider only legal sufficiency.
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Join FLexlaw to unlock all legal intelligenceMichelle Pimienta filed a motion to disqualify the trial judge, alleging that the trial court refused to allow the presence of a court reporter and in…
The full statement of facts, procedural history, and disposition for this case are member content.
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Third District Court of Appeal
State of Florida
Opinion filed April 3, 2024. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-0858 Lower Tribunal No. 17-18681
________________
Michelle Pimienta,
Petitioner,
vs.
David Abraham Rosenfeld,
Respondent.
A Case of Original Jurisdiction – Prohibition. Michelle Pimienta, in proper person. Nancy A. Hass, P.A., and Nancy A. Hass (Fort Lauderdale), for respondent.
Before LOGUE, C.J., and EMAS and LOBREE, JJ.
PER CURIAM.
Michelle Pimienta petitions this court for a writ of prohibition following
the trial court’s denial of her motion for disqualification. We conclude the
motion to disqualify was legally sufficient, solely upon the sworn allegation
that the trial court refused to allow the presence of a court reporter and
insisted on hearing a motion “off the record,” and grant the petition.
In considering an initial motion to disqualify, a trial court “may
determine only the legal sufficiency of the motion and shall not pass on the
truth of the facts alleged.” Fla. R. Gen. Prac. & Jud. Admin. 2.330(h).1 Thus,
the facts alleged in the underlying motion to disqualify the trial judge must be
accepted as true. See Wall v. State, 238 So. 3d 127, 143 (Fla. 2018). “Once
a basis for disqualification has been established, prohibition is both an
By ruling that relief is warranted herein, we do not pass upon or consider whether the allegations in the motion are true.
appropriate and necessary remedy.” Bundy v. Rudd, 366 So. 2d 440, 442
(Fla. 1978).
Petition granted.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Wall v. State, 238 So. 3d 127 (Fla. 2018)
- J & J Indus., Inc. v. Carpet Showcase OF Tampa BAY, Inc., 723 So. 2d 281 (Fla. 2d DCA 1998)
- Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978)
- Andrzej Madura and Anna Dolinska-Madura v. Turosienski, 901 So. 2d 396 (Fla. 2d DCA 2005)