42
Fla. L. Weekly D1449bTop of Form

Workers’
compensation — Judge of compensation claims — Disqualification — JCC erred
in denying motion to disqualify on basis that motion was legally insufficient
— Motion to disqualify which alleged that claimant fears that he will not
receive a fair hearing because JCC found claimant’s attorney to be not credible
in another case was legally sufficient — Petition for writ of prohibition
granted

GABRIEL LOWMAN, Petitioner, v.
RACETRAC PETROLEUM, INC. D/B/A RACETRAC and BROADSPIRE, Respondents. 1st
District. Case No. 1D17-1385. Opinion filed June 27, 2017. Petition for Writ of
Prohibition — Original Jurisdiction. Counsel: 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. 1st DCA 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
factual allegations must be taken as true. Under Florida law, a judge’s
statement that he feels a party has lied is generally considered an indication
of bias against the party. See, e.g., DeMetro v. Barad, 576 So.
2d 1353, 1354 (Fla. 3d DCA 1991) (citing Brown v. St. George Island, Ltd.,
561 So. 2d 253, 257 (Fla. 1990)). In Brown, the Florida Supreme Court
expressly agreed with the analysis by the Third District Court of Appeal which
included reliance on Deauville Realty Co. v. Tobin, 120 So. 2d 198 (Fla.
3d DCA 1960), cert. denied, 127 So. 2d 678 (Fla. 1961) (holding that
statement by judge that party has lied generally indicates bias). Notably, in
reaching the holding in Tobin, the district court there commented that:

[T]he
formation of a prejudice during and as a result of a party’s testimony in a
trial need not affect the case in which it was arrived at in that manner,
although it may operate to disqualify that judge from hearing any later or second
trial of that case if one is had, or from participating in any subsequent
trial in which that party is involved.

Id. at 202 (emphasis added). The JCC’s statement here was
effectively directed at Petitioner’s attorney, not the party/Petitioner. But, as
an indication of a bias which may create a party’s fear of not receiving an
impartial hearing, there is no appreciable difference. We find, therefore, that
the facts alleged here are legally sufficient to support Petitioner’s motion to
disqualify.

Accordingly, we GRANT the Petition
for Writ of Prohibition, QUASH the order denying the motion to disqualify, and
direct the Deputy Chief Judge of Compensation Claims to reassign the case.
(ROBERTS, C.J., LEWIS and BILBREY, JJ., CONCUR.)