In Sullivan v. Kanarek, M.D. (2D08-6242), the Second District reversed the trial court's order denying a motion for new trial. After a trial, the defense moved to recuse a trial court judge based upon comments made after trial by the judge that the conduct of defense counsel caused her great concern about the fairness of the trial. The motion was granted. Eventually, a third successor judge denied a motion for new trial. The Second District stated:
In this case, because of the particular credibility issues concerning defense counsel's courtroom behavior—much of which was alleged to be nonverbal and, by its nature, not reflected in the transcribed record—the successor judge was not in a position to fairly rule on the merits of the motion for new trial....In short, this case is precisely the "extraordinary case" we referred to in Cascio, 725 So. 2d at 1191, where "the successor judge may...grant a new trial on the ground that he cannot fairly rule upon the specific motion for new trial in light of particular credibility issues." Id. at 1193-94. While the issue in Cascio involved the manifest weight of the evidence, we believe that the alleged improper conduct of trial counsel is an analogous issue of credibility. It appears that the successor judge in this case felt constrained to rule on the merits of the motion for new trial, even though a granting of the motion without consideration of the merits would have been consistent with this court's holding in Cascio. The successor judge erred in not following his instincts and, instead, denying the motion for new trial. A new trial must be granted where, as here, defense counsel's tactics prevented the presiding trial judge, who witnessed the inappropriate behavior, from considering and ruling on whether the totality of his behavior deprived the parties of a fair trial.