Mt. Sinai Medical Center v. Brown, BJ-408

• Decision Date: 22 August 1986
• Docket Number: No. BJ-408,BJ-408
• Citation: 493 So.2d 512,11 Fla. L. Weekly 1850
• Parties: 11 Fla. L. Weekly 1850 MT. SINAI MEDICAL CENTER and Gates, McDonald, All Risk Corporation, Appellants, v. Earnestine BROWN and Division of Workers' Compensation, Appellees.
• Court: Florida District Court of Appeals

Page 512

493 So.2d 512

11 Fla. L. Weekly 1850

MT. SINAI MEDICAL CENTER and Gates, McDonald, All Risk Corporation, Appellants, v. Earnestine BROWN and Division of Workers' Compensation, Appellees.

No. BJ-408.

District Court of Appeal of Florida First District.

Aug. 22, 1986.

John F. McMath, P.A., Miami, for appellants.

Renee R. Pelzman of Levine, Busch, Schnepper & Stein, P.A., Miami, for appellees.

JOANOS, Judge.

In this workers' compensation case the employer and carrier, Mt. Sinai Medical Center and Gates, McDonald, All Risk Corporation, appeal from the deputy commissioner's order denying their motion to disqualify and awarding compensation benefits, medical benefits, and attorney's fees. Three points are raised for our review: (1) whether the deputy commissioner erred in failing to grant the motion to disqualify, (2) whether there is competent substantial evidence to support the finding that claimant is permanently and totally disabled, and (3) whether the deputy commissioner erred in his computation of the average weekly wage and the permanent total disability benefits. We affirm on all points, and have determined that only the first issue requires further discussion.

On September 13, 1981, claimant Earnestine Brown suffered a back injury in the course of her employment as a kitchen helper at Mt. Sinai Medical Center. On September 26, 1985, a hearing was held on Brown's claim for benefits. On Oct. 8, 1985, before issuance of the deputy commissioner's order, counsel for the employer filed a "Motion for Disqualification of Deputy Commissioner (Judge) Pursuant to Rule 1.432 of the Florida Rules of Civil Procedure." The motion states, in relevant part, that:

the Employer fears it will not receive a fair trial before Deputy Commissioner David L. Trask where the claim is pending, on account of the prejudice of the deputy commissioner against the applicant's attorney, John F. McMath, or in favor of the adverse party's attorney.

The facts and the reasons for the belief are that Deputy Commissioner David L. Trask is prejudiced against the movant's attorney, John F. McMath, on the belief that John F. McMath actively participated in Deputy Commissioner David L. Trask's failure to be recommended for reappointment by the Judicial Nominating Commissioner.

This fear that the Employer will not receive a fair trial has been intensified during the Fiftieth Workers' Compensation Educational Conference held at Lake Buena Vista, Florida, and this Motion to Disqualify has been made within a reasonable time after discovery of the facts constituting grounds for disqualification.

This motion was supported by one affidavit submitted by a practicing attorney, who represented that she was convinced that none of the clients of John F. McMath could receive a fair hearing before Deputy Commissioner Trask due to "his bias and prejudice against attorney John F. McMath."

In the order entered on October 23, 1985, the deputy commissioner stated that the employer filed its motion for disqualification at a point when he [the deputy commissioner] had already reviewed the evidence in the cause and had begun the task of preparing the written order. The deputy commissioner determined the motion was insufficient on its face and denied the motion.

On November 13, 1985, a hearing was held on the employer's motion to set aside the order of October 23, 1985. The motion to set aside was denied, in part due to the fact that the motion to disqualify failed to request oral argument, nor was such a request made prior to entry of the order on the merits.

Disqualification of a judge in a civil case is governed by the provisions of FLORIDA RULE OF CIVIL PROCEDURE 1.432 AND SECTION 38.10¹, Florida Statutes. ² In Sikes v. Seaboard Coast Line Railroad Co., 429 So.2d 1216, 1224 (Fla. 1st DCA), rev. denied, 440 So.2d 353 (Fla.1983), this court held that the rule and the statute were to be read in pari materia, but noted it would be "inappropriate to deny a recusal motion simply because the technical requirements of section 38.10 were not satisfied." After Sikes was decided, the supreme court, in Livingston v. State, 441 So.2d 1083 (Fla.1983), noted that since the actual process of disqualification of a judge is procedural, disqualification of a judge in criminal cases is controlled by Florida Rule of Criminal Procedure 3.230, rather than by the statute. In Caleffe v. Vitale, 488 So.2d 627, 628 (Fla. 4th DCA 1986), the court reviewed the Livingston rule and concluded that "[b]y analogy, Rule 1.432 would supplant the procedural requirements of the statute in a civil case." At any rate, the reviewing court is not called upon to determine whether the technical requirements of Section 38.10 have been met, until it has been determined that the facts alleged in the motion are sufficient to support disqualification. Mobil v. Trask, 463 So.2d 389, 390, f.n.1 (Fla. 1st DCA), rev. denied, 476 So.2d 674 (Fla.1985).

When used with reference to a motion to disqualify,

[t]he term "legal sufficiency" encompasses more than mere technical compliance with the rule and the statute; the court must also determine if the facts (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.

Gieseke v. Grossman, 418 So.2d 1055, 1057 (Fla. 4th DCA 1982).

Thus, a party seeking disqualification must allege sufficient underlying facts to show "a well-grounded fear that he or she will not receive a fair trial at the hands of the judge." Caleffe v. Vitale, 488 So.2d at 628. The judicial inquiry must focus on the reasonableness of the affiant's belief that the judge is prejudiced, and the sufficiency of the attested facts supporting the suggestion of prejudice. See Livingston v. State, 441 So.2d at 1087. In Caleffe v. Vitale, the facts recited by the movant established that the opposing attorney was at that time running the judge's ongoing reelection campaign. In addition, the movant placed in evidence a letter the opposing attorney had written to the judge explaining why the attorney had requested a hearing before the judge on a motion for contempt--as opposed to a hearing before a general master. The court found the tenor of the letter indicated the existence of a special relationship between the judge and the attorney that would reasonably substantiate the movant's fear that he would not receive a fair trial.

In the instant case, the ...