FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2023-3604

LT Case No. 2022-CA-000198

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GRANADA INSURANCE COMPANY,

Petitioner,

v.

YORDALIS LOPEZ, PEDRO 

MARTINEZ FERNANDEZ, 

NICHOLAS JOSEPH BYRD, and 

ANGELA JEAN JACKSON,

Respondents.

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Petition for Writ of Prohibition.

Eric C. Roberson, Respondent Judge.

John Bond Atkinson and John P. Robins, of Atkinson, P.A., 

Miami, for Petitioner.

No Appearance for Respondents.

May 24, 2024

PER CURIAM.

Granada Insurance Company (“Petitioner”) petitions this 

Court for a writ of prohibition to disqualify the circuit judge who is 

presiding over its case against Respondents. We deny the petition 

because Petitioner did not timely move for disqualification below.
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I.

In the underlying civil litigation, Petitioner seeks recission of 

a commercial automobile policy under section 627.409, Florida 

Statutes. In the alternative, Petitioner’s suit seeks a declaration 

that Petitioner has no obligation to defend or indemnify 

Respondents regarding a 2021 motor vehicle accident.

In March 2023, Petitioner and one of the respondents entered 

a joint stipulation in which the respondent admitted that she had 

provided false information in her application for the insurance 

policy, and Petitioner returned the policy premiums that had been 

paid. The stipulation states that Petitioner would not have issued 

the policy had it known the information was false. In July 2023, 

Petitioner moved for summary judgment based on the stipulation, 

and Respondents did not contest or dispute the motion. 

The court heard the summary judgment motion on September 

19, 2023. During the hearing, the judge made several disparaging 

comments about the stipulation, calling it “nothing short of a 

conspiracy” and opining that the stipulation “stinks to high 

heaven.” The judge expressed disbelief that Petitioner was 

unaware of the problem with the insurance application at the time 

it issued the policy. The judge then orally denied the summary 

judgment motion, reiterating his disparaging view of the 

stipulation, which he called “y’all’s little agreement” and “this little 

deal with the devil.” Petitioner did not ask the judge to recuse 

himself at the hearing.

On September 29, 2023, the court entered a written order 

denying summary judgment. Consistent with the oral ruling, the 

order reiterated the judge’s reproach of the stipulation, 

characterizing it as “painfully close to insurance fraud.” On 

October 6, Petitioner moved for reconsideration, framing the 

judge’s comments as legal and factual errors. That motion did not 

seek recusal, and the court denied it without elaboration on 

October 24.

On November 1, Petitioner filed a motion to disqualify the 

judge. The court denied the motion without elaboration on 
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November 8. That same day, Petitioner filed its petition for writ of 

prohibition in this Court.

II.

Rule 2.330(g) of the Florida Rules of General Practice and 

Judicial Administration provides that “[a] motion to disqualify 

shall be filed within a reasonable time not to exceed 20 days after 

discovery by the party or party’s counsel, whichever is earlier, of 

the facts constituting the grounds for the motion.” Fla. R. Gen. 

Prac. & Jud. Admin. 2.330(g). Petitioner filed its motion to 

disqualify more than twenty days after the judge’s comments and 

oral ruling during the summary judgment hearing. Petitioner 

nonetheless suggests that its motion to disqualify was timely 

because its fear that it would not receive a fair trial, see § 38.10, 

Fla. Stat. (2023), did not “crystalize” until the trial court denied its 

motion for reconsideration. 

We disagree. Rule 2.330’s time limit runs from the moment at 

which the movant or its counsel discovers the facts that warrant 

disqualification. Here, those facts were the judge’s comments 

concerning the stipulation, and the judge’s oral denial of summary 

judgment reiterating those comments—all of which transpired 

during the summary judgment hearing on September 19, 2023.

The court’s later unelaborated denial of the motion for 

reconsideration added nothing to what the court said during the 

summary judgment hearing. See Fischer v. Knuck, 497 So. 2d 240, 

243 (Fla. 1986) (concluding that a disqualification motion was 

untimely where “the asserted bias and prejudice did not ‘dawn on’ 

petitioner until she suffered the adverse ruling by the judge”).

Moreover, we are mindful that the legal test for disqualification is 

when facts give rise to a well-founded fear that a party will not 

receive a fair trial, see Mackenzie v. Super Kids Bargain Store, Inc., 

565 So. 2d 1332, 1335 (Fla. 1990); Fischer, 497 So. 2d at 242; Chace 

v. Loisel, 170 So. 3d 802, 803 (Fla. 5th DCA 2014)—not when such 

a fear culminates in an adverse ruling.

III.

Because Petitioner’s motion to disqualify was untimely under 

Rule 2.330, we deny the petition. We do not otherwise rule on the 

legal sufficiency of Petitioner’s motion to disqualify. Indeed, on 
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review of the motion’s allegations and the record, we find the 

judge’s comments troubling, and we remind him that he has 

authority to enter an order of disqualification on his own initiative. 

See Fla. R. Gen. Prac. & Jud. Admin. 2.330(i).

PETITION DENIED.

WALLIS, HARRIS, and PRATT, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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