Lowman v. Racetrac Petroleum, Inc.

220 So.3d 1282

Gabriel LOWMAN, Petitioner,

v.RACETRAC PETROLEUM, INC. d/b/a Racetrac and Broadspire, Respondents.

CASE NO. 1D17–1385

District Court of Appeal of Florida, First District.

Opinion filed June 27, 2017

Cory J. Pollack of Cory Jonathan Pollack, P.A., Fort Myers, for Petitioner.

Kevin R. Clarke of Law Office of Kevin R. Clarke, Jupiter, for Respondents Racetrac Petroleum, Inc., d/b/a Racetrac and Broadspire; and Stephanie R. Hayes, of Office of the Judges of Compensation Claims, Tallahassee, for Respondent Jack A. Weiss.

PER CURIAM.

Petitioner, the injured worker in this workers' compensation case, challenges the denial of his motion to disqualify the Judge of Compensation Claims (JCC) and seeks a writ of prohibition directing the JCC to disqualify himself. Because we find that the JCC erred in denying the motion to disqualify, we grant the petition.

In his motion and accompanying affidavit to disqualify the JCC, Petitioner asserts that he believes the JCC "is prejudiced against [his] attorney" and that, "as a result of this prejudice," he fears the JCC will be prejudiced against him and that he "will not receive a fair trial/Final Hearing." Petitioner bases this belief on the JCC's denial of a motion to continue filed by Petitioner's attorney in another workers' compensation case where the JCC found that the representations made by Petitioner's attorney in that motion to continue were not credible. Notably, in the other workers' compensation case, the JCC granted a motion to disqualify that was filed at the same time as the motion here and that alleged the same factual basis for disqualification. In the instant case, however, the JCC denied the motion to disqualify as "legally insufficient."

The Rules of Procedure for Workers' Compensation Adjudications provide that "[a]ny motion for disqualification of a judge shall be made and determined pursuant to [Florida Rules Judicial Administration] 2.330." Fla. Admin. Code R. 60Q–6.126(1). Under rule 2.330(d), grounds supporting a motion to disqualify a judge include "that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge." In addition, rule 2.330(f) states that the judge against whom the motion to disqualify is directed must "determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged." In determining whether a motion to disqualify is legally sufficient, the appellate court reviews the motion's allegations under a de novo standard. See R.M.C. v. D.C. , 77 So.3d 234 (Fla. 1st DCA 2012) ; Sume v. State , 773 So.2d 600 (Fla. 1st DCA 2000).

In the order denying Petitioner's motion, the JCC cited case law holding that a lawyer's request for general disqualification will not be granted. See Ginsberg v. Holt , 86 So.2d 650, 651 (Fla. 1956) (rejecting appellant/attorney's request for what was, "in effect ... an injunction forever to restrain the appellee from entertaining any case in which the appellant may appear"); Cascone v. Foster , 774 So.2d 773 (Fla. 1st DCA 2000) (denying writ of prohibition to petitioner/attorney who challenged judge's decision to vacate standing recusal order, because general disqualification, in accordance with Ginsberg , will not be granted, but also noting party retained the right to move for disqualification in specific proceeding). Nevertheless, as Petitioner correctly points out, his attorney did not make a request for general disqualification; instead, Petitioner made a request for the JCC's disqualification from this specific case. Thus, the JCC did not give a valid reason here for finding the motion to be legally insufficient.

Under the applicable standard, a motion to disqualify based on prejudice or bias is legally sufficient if "the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial." Livingston v. State , 441 So.2d 1083, 1087 (Fla. 1983) ; see also MacKenzie v. Super Kids Bargain Store, Inc. , 565 So.2d 1332 (Fla. 1990). Here, Petitioner alleges that the JCC is prejudiced against his attorney because he previously stated that his attorney was not credible—that is not worthy of belief. As noted, Petitioner's...