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opining that the motion for disqualification was legally insufficient but granting the petition for writ of prohibition because the trial judge established an independent basis for disqualification by "personally fil[ing] a response [to the petition] which took issue with, and purported to refute, factual allegations in the underlying motion to disqualify" (footnote omitted)
Summary of this case from Wagner v. StateOpinion
No. 3D20-688
05-27-2020
Samuel D. ROSEN, Petitioner, v. TIFFANY OF BAL HARBOUR CONDOMINIUM ASSOCIATION, INC., Respondent.
Beighley, Myrick, Udell & Lynne, P.A., and Maury L. Udell, for petitioner. Litchfield Cavo, LLP, and Geralyn M. Passaro and Krystal A. Acosta (Fort Lauderdale), for respondent.
Beighley, Myrick, Udell & Lynne, P.A., and Maury L. Udell, for petitioner.
Litchfield Cavo, LLP, and Geralyn M. Passaro and Krystal A. Acosta (Fort Lauderdale), for respondent.
Before EMAS, C.J., and HENDON and GORDO, JJ.
PER CURIAM. Petitioner Samuel Rosen seeks our issuance of a writ of prohibition following the trial court's order denying Rosen's fourth motion to disqualify the trial judge in the lower court case. Were we to reach the merits, we might well deny the petition and conclude that the trial court properly denied the motion to disqualify as legally insufficient. Instead, however, we are constrained to grant this petition. After we issued an order directing a response to the petition, the trial judge personally filed a response which took issue with, and purported to refute, factual allegations in the underlying motion to disqualify. In doing so, the trial judge created an adversarial atmosphere and an independent basis for disqualification. See Gieseke v. Moriarty, 471 So. 2d 80 (Fla. 4th DCA 1985) (granting prohibition where trial judge, in filing her own response to the Fourth District's order to show cause why relief should not be granted, undertook to controvert the asserted grounds for disqualification).
Although our standard order permits the trial judge to file a response, such a response is rare. More to the point, on those occasions when such a response is filed, it is ordinarily by the Circuit Court's Office of General Counsel, or by the Attorney General's Office, on behalf of the trial court, and even then should not attempt to refute the factual allegations asserted in support of the underlying motion. Masten v. State, 159 So. 3d 996 (Fla. 3d DCA 2015) ; Ellis v. Henning, 678 So. 2d 825 (Fla. 4th DCA 1996). We have previously noted that in a prohibition proceeding such as this "it is the safer practice for the judge to remain silent and let the adversarial party supply the response." Masten, 159 So. 3d at 997 (quoting Ellis, 678 So. 2d at 828 ).
We grant the petition and remand for reassignment of the action below.