          Third District Court of Appeal
                                  State of Florida

                              Opinion filed April 10, 2019.
            Not final until disposition of timely filed motion for rehearing.

                                  ________________

                                  No. 3D18-0550
                            Lower Tribunal No. 12-19187
                                ________________


                             Winn-Dixie Stores, Inc.,
                                       Appellant,

                                           vs.

                                  Vadne Winters,
                                       Appellee.



         An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez,
Judge.

         Cole, Scott & Kissane, P.A., and Melinda S. Thornton, for appellant.

      Steinger Iscoe & Greene, P.A., and Alejandro M. Garcia (Fort Lauderdale);
Burlington & Rockenbach, P.A., and Nichole J. Segal and Andrew A. Harris (West
Palm Beach), for appellee.


Before EMAS, C.J., and LOGUE and HENDON, JJ.

         HENDON, J.
      Winn-Dixie Stores, Inc. (“Winn-Dixie”) seeks to reverse the order vacating

the Final Judgment and granting Plaintiff Vadne Winters’ (“Winters”) motion for

new trial. We affirm.

      In 2011, Winters slipped, fell, and was injured at Winn-Dixie, allegedly on

water that had accumulated from the dripping mist system near the fresh vegetable

section. She filed suit against Winn-Dixie for breach of duty of care by negligent

maintenance of the produce section floor, or alternatively, by failing to warn her of

a known dangerous condition, resulting in her injuries. The action went to trial in

2017. Throughout the trial, the trial court cautioned the parties and jury that they

were not to assume that any of his trial decisions indicated any bias or opinion as to

the merits of the case. The jury found Winn-Dixie was not negligent.

      Winters subsequently filed a motion to disqualify the trial judge, alleging that

the trial judge’s comments and behavior demonstrated prejudice against her counsel

and deprived her of a fair trial. The trial judge appropriately recused himself from

the case, and a successor judge was assigned. The successor judge entered Final

Judgment in favor of Winn-Dixie pursuant to the jury verdict. Subsequently, the

successor judge conducted a hearing on Winters’ motion for new trial. After hearing

arguments of both counsel, the successor judge granted Winters’ motion for new

trial, and vacated the prior Final Judgment based on “the reasons stated by the Court

during the February 12, 2018 hearing . . .”


                                          2
      As a general proposition, a trial court, when asked to rule on a motion to

disqualify, 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 facts alleged in the motion need only

show a well-grounded fear that the movant will not receive a fair trial at the hands

of the judge. “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). If the facts as alleged do not meet that burden, the motion

is determined to be legally insufficient. J & J Indus., Inc. v. Carpet Showcase of

Tampa Bay, Inc., 723 So. 2d 281, 282–83 (Fla. 2d DCA 1998). In the case before

us, the original trial court judge granted Winter’s motion to disqualify as the facts

alleged in her motion were sufficient to support her assertions that she believed that

she could not receive a fair trial.

      We review the successor judge’s grant of a motion for new trial for abuse of

discretion. Big Lots Stores, Inc. v. de Diaz, 18 So. 3d 1065, 1067 (Fla. 3d DCA

2008). In its brief, Winn-Dixie acknowledges the general applicability of this

standard of review, but contends that where the motion for new trial is ruled on by a



                                          3
successor judge (who must base his or her determination on review of a cold record,

having not presided over the trial), the deference accorded such ruling is

significantly narrowed. See, e.g., Robinson v. Ward, 203 So. 3d 984, 989 (Fla. 2d

DCA 2016) (affirming the trial court’s order granting a new trial based on attorney

misconduct and explaining that the abuse of discretion standard is “based on the

presumption that the trial judge ruling on the motion for new trial was the one who

presided over the case and is therefore in the best position to determine the propriety

and potential impact of the conduct”) (citation omitted). See also Nat’l Healthcorp

Ltd. P’ship v. Close, 787 So. 2d 22 (Fla. 2d DCA 2001) (observing: “Because the

order awarding a new trial was entered by a successor judge on the basis of a study

of the record, the discretion of the trial court to set aside the jury’s verdict is

significantly diminished in this case.”); Lindon v. Dalton Hotel Corp., 113 So. 3d

985 (Fla. 5th DCA 2013). Winn-Dixie’s point is well taken but ultimately

unavailing: Even applying this narrowed abuse of discretion standard, we would

affirm the successor judge’s order. If 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. Hahn v. Medeiros, 858 So. 2d 1242 (Fla. 5th DCA

2003); see also Gen. Hosp. of Greater Miami, Inc. v. Gager, 160 So. 2d 749, 751

(Fla. 3d DCA 1964) (stating that appellate courts are much more reluctant to

interfere with an order granting a new trial than an order denying a new trial).



                                          4
      Finding no abuse of discretion, we therefore affirm the order granting the

Plaintiff’s motion for new trial.

      Affirmed.




                                       5
