Sullivan v. Kanarek, 2012 Fla. App. LEXIS 2465

Estate brings medical malpractice claim for a deceased child against Dr. Kanarek and Nadal Pediatrics, P.A.; jury verdict for defense; Estate moves for new trial based on defense counsel misconduct; Florida Supreme Court quashed Sullivan v. Kanarek and remanded to reconsider under Companioni; on remand, court adopts Murphy fundamental error standard and remands for new trial; presiding judge warned of grave concerns about fairness due to defense conduct and was disqualified, preventing ruling on the motion for new trial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preservation of misconduct for appeal	Sullivan argues misconduct preserved under prior standard.	Kanarek argues preservation requires mistrial motion per Companioni.	New trial required; lack of mistrial preserved under Murphy analysis.
Whether defense counsel misconduct amounted to fundamental error	Estate contends conduct was highly improper and prejudicial.	Defense argues conduct not fundamental error.	Misconduct was improper and prejudicial, contributing to fundamental error.
Effect of nonrecord conduct and trial judge’s concerns on remedy	Nonrecord conduct supports trial fairness concerns.	Record evidence insufficient to negate concerns.	Nonrecord conduct cements need for new trial; remand justified.

Companioni v. City of Tampa, 51 So. 3d 452 (Fla.2010) (preservation requires timely mistrial motion for review of misconduct)
Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla.2000) (establishes four-part fundamental error test for improper closing argument)
National Healthcorp Ltd. Partnership v. Cascio, 725 So.2d 1190 (Fla.2d DCA 1998) (nonrecord issues may be reviewed via fundamental error when trial judge cannot rule fairly)
Wolkowsky v. Goodkind, 153 So.2d 398 (Fla.1943) (presiding judge's position affects deference on ruling)
Castlewood Int'l Corp. v. LaFleur, 322 So.2d 520 (Fla.1975) (standard for reviewing denial of a motion for new trial)