DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RICHARD K. CANNON, a/k/a RICHARD CANNON and MERYL
CANNON,
Petitioners,
v.
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, SUCCESSOR IN
INTEREST TO BANK OF AMERICA, NATIONAL ASSOCIATION AS
TRUSTEE AS SUCCESSOR BY MERGER TO LASALLE BANK,
NATIONAL ASSOCIATION AS TRUSTEE FOR WAMU MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2007-HY5 TRUST,
Respondent.
No. 4D15-436
[June 10, 2015]
Petition for writ of prohibition to Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Howard Harrison, Senior Judge; L.T. Case
No. 502010CA023036XXXXMB.
Richard R. Widell of Golant and Golant, P.A., Boca Raton, for
petitioners.
Jan Timothy Williams of Lapin & Leightling, LLP, Coral Gables, for
respondent.
PER CURIAM.
The petition for writ of prohibition seeking disqualification of the trial
judge is denied.
DAMOORGIAN, C.J., and GERBER, J., concur.
WARNER, J., dissents with opinion.
WARNER, J., dissenting.
I would grant the writ. Even though the motion and affidavit were
based upon hearsay, the petitioners filed the required affidavits
establishing the facts and circumstances as well as their fear of bias. Their
attorney filed the required certificate of good faith. Thus, the motion was
technically sufficient. See Barnett v. Barnett, 727 So. 2d 311, 312 n.2 (Fla.
2d DCA 1999) (“Under the current rule, the motion need only be sworn to
by the party signing it. See Fla. R. Jud. Admin 2.160(c) [now 2.330]. There
is no requirement that the party have personal knowledge of the facts
alleged nor that the motion be accompanied by sworn affidavits of persons
with such knowledge.”). I also think the facts alleged were legally sufficient
to require disqualification. The level of animosity between the judge and
the petitioners’ lawyer based upon the facts in the motion, which are not
merely based upon adverse rulings, is sufficient to create an objectively
reasonable fear by petitioners that the judge is so biased against their
attorney as to require his disqualification. See Hayslip v. Douglas, 400 So.
2d 553, 556-57 (Fla. 4th DCA 1981).
The judge may not pass on the truth of the facts alleged in an initial
motion for disqualification. See Fla. R. Jud. Admin. 2.330(f). Therefore,
the judge should have entered an order of disqualification. If the facts in
the motion are false, then the “laws prohibiting perjury in judicial
proceedings and rules regulating the conduct of attorneys are adequate to
control any envisioned abuse.” Layne v. Grossman, 430 So. 2d 525, 526
(Fla. 3d DCA 1983).
* * *
Not final until disposition of timely filed motion for rehearing.
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