Legal Question in Personal Injury in Florida

Can judge pass summary judgement even if asked to recuse himself undef FS38.10?

I've been overseas for 8 months. Other party filed for summary judgement. We haven't even got to depositions yet. I had petitioned the judge to recuse himself under FS38.10. He refused citing Legal Insufficiency as if it asked to recuse himself under common law. Can I use this in the appeal to send back the case? Can he pass judgement without me been there or any evidence?

Asked on 12/13/16, 9:39 am

2 Answers from Attorneys

Barry Stein De Cardenas, Freixas, Stein & Zachary

Yes as long as legal requirements of a summary judgment were met. Asking for recusal is different from actually getting it. If he is still the judge and was correct about legal insufficiency he can rule. Summary judgment is done by affidavits and no testimony is taken. You could have presented your countervailing testimony by affidavit as well. your failure to do the proper legal steps is not likely going to be the basis of a good appeal.

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Answered on 12/13/16, 9:49 am
David Slater David P. Slater, Esq.

Depends on facts of case and procedures followed. The facts of the matter and court file would have to be reviewed to give a better answer.

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Answered on 12/13/16, 9:51 am

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