Deren v. Williams, 87-1802
| Decision Date | 28 January 1988 |
| Docket Number | No. 87-1802,87-1802 |
| Citation | 521 So.2d 150,13 Fla. L. Weekly 298 |
| Parties | 13 Fla. L. Weekly 298 Dr. Matthew J. DEREN, Petitioner, v. The Honorable Volie WILLIAMS, Jr., etc., Respondent. |
| Court | Florida District Court of Appeals |
Mark B. Kleinfeld, of Jones & Foster, P.A., West Palm Beach, for petitioner.
Murray Sams, Jr., and Peter J. Yanowitch, of Sams, Yanowitch, Spiegel & Alger, P.A., Miami, for respondent.
UPCHURCH, F.D., Jr., Judge, Retired.
This Petition for Writ of Prohibition is before this court to prohibit Judge Volie Williams, Jr., from sitting in the case of West v. Deren, after Judge Williams had denied Dr. Deren's motion to disqualify.
Dr. Deren, an anesthesiologist, was sued for professional malpractice allegedly committed during surgery on William West, a minor, resulting in the child suffering cerebral palsy. The first trial resulted in a mistrial. Another trial was held limited solely to the question of whether the statute of limitations had run. This issue was decided adversely to Dr. Deren. The motion for disqualification was filed on August 19, 1987, approximately two months after his second trial had concluded. A third trial, on the malpractice claim, has been scheduled for March, 1988. The motion for disqualification was denied solely for the reason that it was untimely filed.
Florida Rule of Civil Procedure 1.432(c) governs motions to disqualify and states:
Dr. Deren's affidavit attached to the motion stated basically three reasons why he feared he would not receive a fair trial. First, that Judge Williams' grandchild has cerebral palsy, and Judge Williams expressed sympathy toward cerebral palsy patients. Second, Judge Williams and plaintiffs' counsel, Murray Sams, have been longtime friends, and engaged in ex parte communications during the prior two trials. Third, in the previous trials, almost all rulings were made in favor of the plaintiffs. Apparently, Judge Williams concluded that since all of the grounds were discovered during the first and second trials, petitioner unreasonably delayed in filing the motion after conclusion of the second trial. However, with the trial not scheduled until March, 1988, it is unlikely that the motion would to any degree delay or interfere with the orderly progress of the case. Under these circumstances, since an issue of the possible bias or prejudice of the trial judge brings into question the very essence of justice, we think a motion to disqualify should be denied for untimeliness only when its allowance will delay the orderly progress of the case or it is being used as a disruptive or delaying tactic. None of these factors appears to be present in this instance so the legal sufficiency of the motion will be considered.
If the grounds asserted in a motion for disqualification are reasonably sufficient to create a well-founded fear in the mind of a party that he or she will not receive a fair trial, the judge should recuse himself. See Fischer v. Knuck, 497 So.2d 240 (Fla.1986). To determine whether the motion is "legally sufficient" the court must determine if the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial. "It is not a question of how the judge feels; it is a question of what feeling resides in the affiant's mind, and the basis for such feeling...." State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695, 697-98 (1938); Hayslip v. Douglas, 400 So.2d 553 (Fla. 4th DCA 1981).
Dr. Deren alleged in his affidavit that during both trials, "Judge Volie Williams has openly expressed sympathy toward the plight of cerebral palsy victims in general, his grandchild in particular, and has expressed concern over the expense and difficulty of obtaining care and treatment for cerebral palsy patients including the Plaintiff...."
Couple this with the allegations regarding the long standing friendship of Judge Williams and plaintiffs' attorney and the ex parte communications between them and it becomes easy to see that a litigant may have a genuine and reasonable belief that he will not have his case tested impartially. 1
Almost all who practice law recognize that most judges are capable of numbering among their friends some of the attorneys who appear before them. But few attorneys are articulate enough to explain to their clients that the fact that opposing counsel and the trial judge shared a cup of coffee at the local coffee shop during the last recess was no cause for alarm. The test has to be how does the litigant reasonably view...
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Valdes-Fauli v. Valdes-Fauli, 3D04-2079.
...wife, as a reasonably prudent litigant, in fear that she would not receive a fair and impartial trial. See generally Deren v. Williams, 521 So.2d 150 (Fla. 5th DCA 1988)(in malpractice action, trial judge was required to recuse himself where he openly expressed sympathy toward cerebral pals......
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Valdes-Fauli v. Valdes-Fauli, Case No. 3D04-2079 (FL 12/22/2004), Case No. 3D04-2079.
...wife, as a reasonably prudent litigant, in fear that she would not receive a fair and impartial trial. See generally Deren v. Williams, 521 So. 2d 150 (Fla. 5th DCA 1988)(in malpractice action, trial judge was required to recuse himself where he openly expressed sympathy toward cerebral pal......
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Dura-Stress, Inc. v. Law, DURA-STRES
...of a motion to disqualify where to do so results in prejudice and delay in the orderly progress of the case. See Deren v. Williams, 521 So.2d 150 (Fla. 5th DCA), rev. denied, 531 So.2d 169 However, I write to point out that the affidavit filed in this case by Brown was legally insufficient ......
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Inquiry Concerning A Judge, No. 07-64 Re Ralph E. Eriksson.
...recuse if the motion is made to delay or frustrate proceedings. See Fleck v. State, 956 So.2d 548 (Fla. 2d DCA 2007); Deren v. Williams, 521 So.2d 150 (Fla. 5th DCA 1988). Judge Eriksson also refers to this Court's recognition of “the frustration of trial judges who are burdened with bellig......