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Florida Third DCA affirms order granting plaintiff new trial based on the trial court’s alleged bias against plaintiff’s counsel

On April 10, 2019, in Winn-Dixie Stores v. Winters, No. 3D18-0550, the Florida Third DCA affirmed an order granting the plaintiff a new trial in a premises liability negligence case against a supermarket, following a defense verdict.  The new trial was granted based on conduct by the trial judge during the trial which allegedly manifested such bias against the plaintiff’s attorney that the plaintiff was denied a fair trial.  The trial judge had recused himself from the case after the plaintiff filed the post-trial disqualification motion and a successor judge had granted the plaintiff’s motion and ordered the new trial.  On appeal, the Third DCA noted that when ruling on a motion to disqualify, a trial court must accept the facts alleged as true and then determine legally if those facts would cause a reasonable person to develop a well-grounded belief that he or she would not receive a fair hearing before that trial judge. See Shumpert v. State, 703 So. 2d 1128 (Fla. 2d DCA 1997); Rucks v. State, 692 So. 2d 976, 977 (Fla. 2d DCA 1997); Fla. R. Jud. Admin. 2.160(f).  The question of disqualification focuses on those matters from which a litigant may reasonably question a judge's impartiality rather than the judge's perception of his ability to act fairly and impartially.” Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983).  The original trial judge  disqualified himself because the facts alleged in the plaintiff’s motion were sufficient to support her assertions that she believed that she could not receive a fair trial.  The successor judge’s decision to order a new trial was subject to review for abuse of discretion. Big Lots Stores, Inc. v. de Diaz, 18 So. 3d 1065, 1067 (Fla. 3d DCA 2008).  The defense argued on appeal that the deference accorded a successor judge’s ruling in such a circumstance is significantly diminished because the successor judge’s ruling is based on the same sort of a review of the record that the appellate court can conduct.  The Third DCA agreed, citing Robinson v. Ward, 203 So. 3d 984, 989 (Fla. 2d DCA 2016), Nat’l Healthcorp Ltd. P’ship v. Close, 787 So. 2d 22 (Fla. 2d DCA 2001), and  Lindon v. Dalton Hotel Corp., 113 So. 3d 985 (Fla. 5th DCA 2013). However, the Third DCA concluded that even applying a narrowed abuse of discretion standard, the successor judge’s new trial order should be affirmed, stating that “[i]f the appellate court determines that reasonable people could differ as to the propriety of the trial court's action, there can be no finding of an abuse of discretion.”  It is noteworthy that the Third DCA’s opinion contains no description of the actual alleged conduct of the trial judge.

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