Borjas v. Brescher

Florida District Courts of Appeal
Borjas v. Brescher, 579 So. 2d 399 (1991)
1991 Fla. App. LEXIS 4715; 1991 WL 82516
Farmer, Gunther, Letts

Borjas v. Brescher

Opinion of the Court

PER CURIAM.

This petition for writ of prohibition to disqualify the trial judge is granted.

Section 38.10, Florida Statutes, sets up the substantive right to seek disqualification of a trial judge. Brown v. St. George Island, Ltd., 561 So.2d 253, 255 (Fla. 1990). Florida Rule of Civil Procedure 1.432 controls the disqualification procedure in civil cases. Id. Where a motion for disqualification fulfills the procedural requirements of that rule, is supported by a verified statement of specific facts that are reasonably sufficient to create a well-founded fear on the part of a party that he or she will not receive a fair trial, and is timely made, it should be granted. Fischer v. Knuck, 497 So.2d 240, 242 (Fla. 1986), and cases cited therein.

Here the procedural requirements were met; counsel’s affidavit supported the operative facts set forth in the motion, stating specifically how he came to know those facts; and, taken as true, those facts were reasonably sufficient to generate in petitioner a fear of bias on the part of the trial judge. The facts alleged in such a motion must be taken as true when the motion is supported by the required documentation. See, e.g., Gieseke v. Grossman, 418 So.2d 1055, 1057 (Fla. 4th DCA 1982).

LETTS, GUNTHER and FARMER, JJ., concur.

Reference

Full Case Name
Alberto BORJAS v. Judge George A. BRESCHER
Cited By
2 cases
Status
Published