Pool Water Products, Inc. v. Pools by L.S. Rule, 91-1046

• Decision Date: 27 January 1993
• Docket Number: No. 91-1046,91-1046
• Citation: 612 So.2d 705
• Parties: 18 Fla. L. Week. D386, 18 Fla. L. Week. D424 POOL WATER PRODUCTS, INC., a Florida corporation, Appellant, v. POOLS BY L.S. RULE, a Florida corporation and Larry Rule, individually, Appellees.
• Court: Florida District Court of Appeals

Page 705

612 So.2d 705

18 Fla. L. Week. D386, 18 Fla. L. Week. D424

POOL WATER PRODUCTS, INC., a Florida corporation Appellant, v. POOLS BY L.S. RULE, a Florida corporation and Larry Rule individually, Appellees.

No. 91-1046.

District Court of Appeal of Florida Fourth District.

Jan. 27, 1993.

Lee B. Gartner of Lee B. Gartner, P.A., Sunrise, for appellant.

John W. Conness of John W. Conness, P.A., Fort Lauderdale, for appellee.

PER CURIAM.

Appellant challenges the final judgment in this appeal because it maintains that the trial court erroneously refused to recuse himself after revealing at trial that the judge had a close family relationship with the appellee. We agree and reverse.

At the non-jury trial of this action appellant called Larry Rule, the president of appellee, as an adverse witness. Just after Rule was sworn and began to testify, the judge informed the parties that he knew Rule. The judge explained that Rule's parents and the judge's parents had been close, and that both the judge and the judge's sister had known Rule ten years ago. He then gave counsel for appellant an opportunity to discuss this development with his client, the appellant. After doing so, Appellant's counsel moved for a recusal, stating, "You know, he [the client] has no real reason to think that you are not going to be impartial, but rather than putting you in that position, he would just as soon have you recuse yourself in this particular instance." Appellee's attorney objected, stating that there was no written motion and that the reason was not legally sufficient, in any event.

The trial judge gave appellant another recess to compose an ore tenus motion making a legally sufficient showing. The appellant came back with the following recitation:

The only thing that my client pointed out, and what concerns him is number one, his company is a California Company. They have been here five years. Even though it's a substantial company, they have not had as long a time in the community to be known. They know in this particular business Larry Rule's dad is very well respected in the pool industry, and you know, I presume that with your knowledge of the family that you made reference to, is more through the father than the son. I mean, if it was 10 years ago, I don't know how old Larry Rule is, but....

With this showing, the court denied the motion and trial proceeded.

Canon 3C(1) of the Code of Judicial Conduct states:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) he has a personal bias or prejudice concerning a party;

In this proceeding, the judge felt compelled to announce on the record his close family connection with the principal of the appellant corporation. He then gave appellant time to consider this information and in response, appellant moved to recuse. Yet having made the invited motion, the court denied it. "Where the judge is conscious of any bias or prejudice which might influence his official action against any party to the litigation, he should decline to officiate whether challenged or not." McGregor...