author: HAZOURI, J. DAMOORGIAN, J.,

text:
    Jodi BENJAMIN, as Personal Representative of the Estate of Marlene Gagnon, Deceased, Appellant, v. TANDEM HEALTHCARE, INC., a foreign corporation d/b/a Tandem Health Care of West Palm Beach, Inc., a Florida corporation, Appellee.
    No. 4D10-881.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Rehearing Denied Aug. 22, 2012.

      Rebecca Mercier Vargas and Jane Kreusler-Walsh of Kreusler-Walsh, Com-piani & Vargas, P.A., West Palm Beach, and Jeffrey M. Fenster and Stacie L. Cohen of Fenster and Cohen, P.A., Sunrise, for appellant.
    Sarah Finnegan, Daniel E.’ Dias, and Kari Aasheim of Mancuso & Dias, P.A., Tampa, for appellee.
   HAZOURI, J.

Jodi Benjamin, as personal representative of the estate of her mother Marlene Gagnon (hereinafter “the Estate”), appeals a final judgment entered against the Estate and in favor of Tandem Healthcare, Inc. (hereinafter “Tandem”) after a jury trial. The Estate raises three issues on appeal: 1) that the trial court erred in admitting a United States Food and Drug Administration (FDA) advisory concerning prescription medication Mrs. Gagnon was taking; 2) that the trial court erred in excluding the testimony of a kitchen worker who overheard another employee of Tandem, a CNA, rush into the kitchen from the dining room and state that Gag-non was choking on coleslaw and a week later this same employee was at a meeting called by the kitchen manager who stated that Mrs. Gagnon had choked on coleslaw and died; 3) that the trial court erred in excluding statutory survivors other than the personal representative of the Estate from the courtroom prior to their testimony. We affirm on points one and three and reverse as to point two and remand for a new trial.

The genesis of this appeal is an action for wrongful death alleging negligence and violation of a nursing home resident’s rights under sections 400.022 and 400.023, Florida Statutes (2004). Mrs. Gagnon, an Alzheimer’s patient with a history of a swallowing disorder, was a resident at Tandem’s West Palm Beach nursing home. The complaint alleged that Mrs. Gagnon died as a result of choking on food while eating and that Tandem breached its duty of care to Mrs. Gagnon by failing to properly supervise her while she was eating. The case proceeded to trial, wherein the Estate’s experts opined that Tandem’s actions led Mrs. Gagnon to choke and eventually suffer cardiac arrest. Conversely, Tandem’s defense was based on its theory that Mrs. Gagnon suffered a fatal arrhythmia potentially caused by her prescription medication Seroquel and Abilify. To strengthen this theory, Tandem sought to introduce an FDA advisory and accompanying black box warning concerning these medications. Tandem further claimed that Mrs. Gagnon did not choke and that Tandem had met the reasonable standard of care. The issue of causation was hotly contested with both sides presenting experts and other witnesses to support their respective theories.

During Tandem’s opening statement, it asserted that Mrs. Gagnon did not choke to death but had an arrhythmia that was caused by certain medications that she was taking. Tandem also asserted that there would be no witness testifying that, at the time Mrs. Gagnon was in the dining room on the day of the incident, she choked on any food.

The evidence at trial demonstrated that Mrs. Gagnon had difficulty swallowing foods due to contracting polio at a young age, which left her throat partially paralyzed. Mrs. Gagnon avoided choking by taking small bites, chewing carefully, and turning her head to the left while swallowing. In 1999, Mrs. Gagnon was diagnosed ■with dementia and she was prescribed Se-roquel and Abilify. As her dementia progressed, she needed more assistance with swallowing. Because of her difficulty swallowing, she was placed on a mechanical soft diet.

In 2004, Mrs. Gagnon was admitted to Tandem. Tandem was told of Mrs. Gag-non’s history of swallowing issues. Tandem’s speech therapist recommended Mrs. Gagnon eat in the dining room where she could be supervised and recommended she remain on a soft diet.

On the day of the incident giving rise to the claim, Mrs. Gagnon was brought into the dining room for lunch by a certified nursing assistant. At that point, Tandem’s speech therapist was monitoring Mrs. Gag-non. The speech therapist testified that there were no registered nurses in the dining room at that time. She intended to leave the dining room, but before doing so she asked the nursing assistants who were present to watch Mrs. Gagnon. A short time later, one of the nursing assistants noticed Mrs. Gagnon staring blankly in the dining room, and a code blue was called. Tandem’s nurses performed an oral sweep twice, but did not find any food in Mrs.

Gagnon’s mouth. The Heimlich Maneuver was also attempted without success. The nurses then began CPR, and, upon arrival, the responding paramedics performed advanced cardiac life support on Mrs. .Gag-non. The EMS report indicated Mrs. Gag-non was in cardiac arrest.

Mrs. Gagnon was then transported to the hospital. Certain testimony indicated there was food found in the back of Mrs. Gagnon’s throat in the emergency room, which was suctioned out. Mrs. Gagnon never regained consciousness and a few days later life support was discontinued.

At trial, the side effects of Mrs. Gag-non’s medications and the FDA advisory were extensively discussed during direct and cross-examination of the parties’ respective experts, even prior to the advisory’s admission into evidence.

Dr. Irving Vinger, the Estate’s first expert witness, discussed that an abnormality in Mrs. Gagnon’s EKG may have been a side effect of certain medications she was taking as well as a potential reason for an arrhythmia to start. However, it was his opinion that Mrs. Gagnon’s death was caused by Tandem’s lack of proper supervision, which led to her choking. On cross-examination, he testified that he would not prescribe Seroquel or Ability because they had not been thoroughly studied and because of the possible side effects, including arrhythmia and sudden death. He went on to mention the FDA advisory concerning those medications. Tandem’s counsel had Dr. Vinger review the advisory and marked the document as an exhibit for identification purposes. The document was not admitted at that time. After objections by the Estate, Dr. Vinger was allowed to testify that the advisory applied to Seroquel and Ability, which Mrs. Gagnon had been taking, and discussed his understanding of its contents.

The Estate’s next expert, Dr. Richard Kishner, a neurologist, asserted that he had not observed the incidence of heart attacks or arrhythmias in patients taking Seroquel or any complications from Mrs. Gagnon’s use of Seroquel. Then, the following exchange took place between Dr. Kishner and the Estate’s counsel:

Q. Has Seroquel being (sic) taken off the market by the government?
A. No. Several years ago a Black Box Warning was issued but it was not withdrawn from the market.
Q. Doesn’t a Black Box Warning mean that everybody that’s taking the drug is going to drop dead instantly?
A. No. Black Box Warnings typically mean that there can be an increased risk of death associated with the drug. And basically what it is for the physicians is a heads up to say, look, if you’re going to use this drug think about it, use it appropriately, and cautiously; discuss the possible adverse effects to the patient’s family so they know what to do to really basically prevent against adverse effects.
Q. Again, any clinical documentation of cardiac arrhythmias with regard to this lady in this case?
A. No.

In his medical opinion, Mrs. Gagnon choked, which caused a blockage of air to her lungs and resulted in her death. Furthermore, he opined that there was no evidence that the drug Seroquel caused a cardiac arrhythmia in Mrs. Gagnon causing her death. He did acknowledge on cross-examination that Mrs. Gagnon was also taking Ability, which had been listed in the advisory due to the same association with a slight increase in death based on cardiac arrhythmia or infection. However, he clarified that it had not been shown that the two drugs would act together and have a greater effect than either one would individually. He testified that if there was a high risk, the drugs would have been withdrawn from the market by the FDA.

During Tandem’s case-in-chief, Tandem argued for admission of the FDA advisory under the hearsay exception for public records and reports. See § 90.803(8), Fla. Stat. (2009). The Estate responded that section 90.706, Florida Statutes (2009), was dispositive and precluded use of the advisory as substantive evidence. It also argued that the advisory was not admissible. The trial court overruled the objections.

The main expert testimony presented by Tandem was that of Dr. Steven Meyerson, an internal medicine and geriatrics physician. He refuted the Estate’s position that Mrs. Gagnon had choked and opined that a review of Mrs. Gagnon’s EKG supported the notion that she suffered a fatal arrhythmia. Dr. Meyerson was of the opinion that Mrs. Gagnon’s medications may have led to the arrhythmia although he could not prove it. When he was shown the FDA advisory, Tandem sought to have him read or summarize the contents to the jury. The trial court did not allow this to occur and did not allow Dr. Meyerson to use the advisory to support his opinion based on the Estate’s objections regarding improper bolstering under section 90.706. Nonetheless, Dr. Meyerson testified from his own knowledge and experience regarding the side effects of Seroquel and Ability, specifically that they were known to increase the risk of sudden death from infections or arrhythmias, and these risks were higher in older people.

We first address whether the trial court erred in admitting, as substantive evidence, a written advisory issued by the FDA, which reported results of clinical trials pertaining to drugs including, but not limited to, Seroquel and Ability. The standard of review for admissibility of evidence is abuse of discretion as limited by the rules of evidence. See Padgett v. State, 73 So.3d 902, 904 (Fla. 4th DCA 2011).

The Estate claims the trial court erred in admitting the advisory pursuant to the public records exception to the hearsay rule. The public records exception provides:

(8) PUBLIC RECORDS AND REPORTS. — Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.

§ 90.803(8), Fla. Stat. (2009). Under this exception, “two types of public records and reports are admissible into evidence: (1) records setting forth ‘the activities of the office or agency’; and (2) records of a public office or agency which set forth ‘matters observed pursuant to a duty imposed by law as to which matters there was a duty to report.’ ” Arce v. Wackenhut Corp., 40 So.3d 813, 815-16 (Fla. 3d DCA 2010) (quoting Lee v. Dep’t of Health & Rehabilitative Servs., 698 So.2d 1194, 1201 (Fla.1997)). The exception for “the activities of the office or agency” is generally understood to include factual reports focused on the essential functions of the office or agency. See, e.g., Yisrael v. State, 993 So.2d 952, 959 (Fla.2008) (holding that a Department of Corrections release-date letter drafted for the purpose of litigation is not an “activities-based” public record because such a letter is not a regular activity of the Department). The exception for “ ‘matters-observed’ ... must be based upon a public official’s first-hand observation of an event.” Id. (citations omitted).

A third type of public record is admissible under the corresponding federal rule, i.e. “a record setting forth factual findings resulting from an investigation made pursuant to authority granted by law,” but was rejected by the Florida Supreme Court in Lee. Lee, 698 So.2d at 1201 (citation omitted). Accordingly, “[rjecords that rely on information supplied by outside sources or that contain evaluations or statements of opinion by a public official are inadmissible under this provision.” Id. In Florida, under such circumstances, a witness must be called who has personal knowledge of the facts. Id.

We hold that the FDA advisory was admissible pursuant to the “activities of the office or agency” exception. Under this exception, for example, records showing the receipts and disbursements of a governmental department or official reports of a statistical nature are included. See, e.g., Branch v. State, 76 Fla. 558, 80 So. 482, 485-86 (1918) (records of state auditor admissible to show tax receipts); Am. Motors Corp. v. Ellis, 403 So.2d 459, 468 (Fla. 5th DCA 1981) (a study prepared for the United States Department of Transportation entitled National Crash Severity Study Statistics was held admissible under the public record exception to the hearsay rule), rev. denied, 415 So.2d 1359 (Fla.1982); E. Air Lines, Inc. v. McDonnell Douglas Corp., 532 F.2d 957, 983 n. 79 (5th Cir.1976) (noting that a statement in an annual report of the Department of Commerce to the Joint Committee on Defense Pi-oduction was admissible under the public records exception); Givens v. Lederle, 556 F.2d 1341, 1346 (5th Cir.1977) (determining that the Annual Poliomyelitis Summary prepared by the Center for Disease Control, which included the record of other vaccine-induced polio cases, was admissible as a public record).

The FDA is a federal government agency, which is responsible for enforcing the Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 301 et seq. See Dobbs v. Wyeth Pharms., 530 F.Supp.2d 1275, 1280 (W.D.Okla.2008) (citing 21 U.S.C. § 393), vacated on other grounds, 606 F.3d 1269 (10th Cir.2010), remanded to 797 F.Supp.2d 1264 (W.D.Okla.2011). The primary goal of the United States Congress in enacting the FDCA was “‘to protect consumers from dangerous products.’ ” See Cartwright v. Pfizer, Inc. 369 F.Supp.2d 876, 882 (E.D.Tex.2005) (quoting United States v. Sullivan, 332 U.S. 689, 696, 68 S.Ct. 331, 92 L.Ed. 297 (1948)). A principal function of the FDA is the regulation and supervision of the prescription drug market, including review of clinical research to ensure drug safety. Dobbs, 530 F.Supp.2d at 1280. This function is not discretionary as the FDA is required by statute to monitor the safety of drugs and obligated to take action if the drug is unsafe. See 21 U.S.C. §§ 393(b)(1) and 393(b)(2)(B). Furthermore, the FDA’s duties shall be undertaken “in consultation with experts in science, medicine, and public health....” 21 U.S.C. § 393(b)(4).

Here, the FDA advisory at issue is an official report providing information of a statistical nature regarding certain medications. It sets forth the activities of the agency pursuant to the FDA’s statutory duty to take appropriate action to ensure drug safety, similar to the documents created by other government agencies and admitted into evidence under the public records exception in Ellis, McDonnell Douglas Corp., and Givens, supra. Accordingly, we conclude that the FDA advisory was admissible as a public record as setting forth the activities of the office or agency.

We now address point three. At the start of the trial, Tandem invoked the rule of sequestration. Over the Estate’s objection, the trial court excluded Mrs. Gagnon’s other four children from the courtroom, only allowing the personal representative to remain. On appeal, the Estate argues that the trial court erred in excluding Mrs. Gagnon’s other children from the courtroom under the sequestration rule. It claims all of Mrs. Gagnon’s children were real parties in interest as statutory survivors in this wrongful death action with a right to attend trial. Tandem responds that under the sequestration rule, only Benjamin, as personal representative of the estate, was a “party” to whom the sequestration rule did not apply. § 90.616(2)(a), Fla. Stat. (2009). Furthermore, Tandem contends that the remaining adult children were allowed to remain in the courtroom following their respective testimony.

The sequestration rule, articulated in section 90.616, Florida Statutes (2009), provides in part:

(1) At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2).
(2) A witness may not be excluded if the witness is:
(a) A party who is a natural person.
(b) In a civil case, an officer or employee of a party that is not a natural person. The party’s attorney shall designate the officer or employee who shall be the party’s representative.
(c) A person whose presence is shown by the party’s attorney to be essential to the presentation of the party’s cause.

§ 90.616(l)-(2), Fla. Stat. (2009). The rule of sequestration, when invoked, allows courts to exclude witnesses from the trial, but does not permit the court to exclude parties. § 90.616(1), (2)(a), Fla. Stat. (2009); see also J.R. v. State, 923 So.2d 1269,1276 (Fla. 1st DCA 2006).

Accordingly, the dispositive question is whether Mrs. Gagnon’s other children were parties as contemplated by section 90.616, precluding their exclusion. Recently, the Fifth District addressed this issue, albeit in a different context. In discussing whether an attorney’s fee award against a personal representative could be recovered against funds allocated to a survivor under the Wrongful Death Act, the Fifth District stated:

Under Florida’s Wrongful Death Act, an estate’s personal representative brings all claims on behalf of both the estate and the decedent’s survivors. §§ 768.16-.26, Fla. Stat. (2010). The personal representative has the exclusive authority to conduct litigation and settle all claims. Thompson v. Hodson, 825 So.2d 941 (Fla. 1st DCA 2002); Pearson v. DeLamerens, 656 So.2d 217 (Fla. 3d DCA 1995). The survivors are not parties to the wrongful death litigation, even when the claims are brought for their benefit.

Kadlecik v. Haim, 79 So.3d 892, 893 (Fla. 5th DCA 2012) (emphasis added). As such, we conclude that the party for the purposes of the sequestration rule was Benjamin, as personal representative of the estate, and the trial court did not abuse its discretion in excluding the other children. Goodman v. W. Coast Brace & Limb, Inc., 580 So.2d 193, 194 (Fla. 2d DCA 1991) (“The exclusion of a witness from the courtroom during a trial is a matter peculiarly within the discretion of the trial court.”).

We now turn to point two concerning the trial court’s exclusion of the testimony of one of Tandem’s employees who was prepared to testify concerning statements made about Mrs. Gagnon choking on coleslaw on the day of the incident. During opening statement and closing argument, Tandem’s counsel argued that no eyewitness had seen Mrs. Gagnon choking. The Estate proffered the testimony of a Tandem kitchen worker, Ian Samsoondar, who heard Tandem employees say that Mrs. Gagnon choked. According to Mr. Samsoondar, a CNA ran into the kitchen like she was scared and yelled that “somebody choked on some food.” Mr. Sam-soondar did not know the name of the CNA who ran into the kitchen, but knew she was a Tandem employee who had just observed something in the dining room before she ran into the kitchen. Mr. Sam-soondar did not know if the CNA had personally witnessed the choking or someone had told her that Mrs. Gagnon choked. Tandem argued that Mr. Samsoondar’s testimony was inadmissible because he could not identify the specific Tandem CNA who made the statement and the Estate had failed to prove the CNA had personal knowledge that Mrs. Gagnon choked.

The Estate also proffered Mr. Samsoon-dar’s testimony that after the incident, Tandem’s kitchen manager called a meeting and told the kitchen staff that Mrs. Gagnon had choked on coleslaw. At the meeting, the kitchen manager also told the kitchen staff to be more careful with the food trays. Samsoondar could not recall if the kitchen manager was in the kitchen when the incident with Mrs. Gagnon occurred, but he knew he did not see Mrs. Gagnon choke because he was not in the dining room when the incident occurred. He also did not know where the manager got his information from about the choking. Tandem claimed there was no evidence that the kitchen manager had any first-hand knowledge of whether Mrs. Gagnon had choked. The Estate asserted that these statements were relevant to rebut Tandem’s claims that Mrs. Gagnon had not choked. The trial court sustained Tandem’s objections and excluded Mr. Sam-soondar’s testimony.

The Estate contends that the statement of the CNA and kitchen manager were admissible as admissions of a party-opponent pursuant to section 90.803(18)(d), Florida Statutes (2009). Additionally, the Estate asserts that the statement made by the CNA is also admissible as an excited utterance pursuant to section 90.803(2). We agree.

Tandem argues that Samsoondar did not see Mrs. Gagnon choke and, therefore, his testimony consisted exclusively of inadmissible hearsay statements. Tandem also asserts that Samsoondar could not identify the speaker and did not know whether the speaker was an eyewitness. As for Sam-soondar’s testimony regarding the kitchen manager, Tandem submits it is also inadmissible because Samsoondar testified that the kitchen manager did not observe the events in question himself, and he did not know where the kitchen manager had obtained his information. Therefore, the testimony could not be reliably traced to an identifiable source with personal knowledge. Tandem also contends the testimony did not fall within the hearsay exception of admissions of a party opponent.

Section 90.803(18)(d) allows admission of a statement offered against a party if it is “[a] statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship.” § 90.803(18)(d), Fla. Stat. (2009) (emphasis added). Statements under section 90.803(18)(d) are admissible “even in those instances where the employee’s statement is not based on his personal knowledge.” Scholz v. RDV Sports, Inc., 710 So.2d 618, 628 (Fla. 5th DCA 1998). In addition, “[i]t is not necessary for a party to know the name of the person who allegedly has made a damaging statement against the interests of his employer or principal in order for the statement to be admitted as an admission.” Chaney v. Winn Dixie Stores, Inc., 605 So.2d 527, 529 (Fla. 2d DCA 1992) (citation omitted). “Instead, a party may offer circumstantial evidence that the declarant is an employee or agent.” Id.

The Estate asserts that this court’s opinion in Thee v. Manor Pines Convalescent Center, Inc., 235 So.2d 64 (Fla. 4th DCA 1970), supports admission of this proffered testimony. In Thee, a plaintiff sued a nursing home after she fell on a substance that looked like spilled milk. At trial, plaintiff proffered testimony that after her fall she heard a nurse’s aide tell the head nurse, “Milk got spilled, but we mopped it up.” Id. at 65. The trial court excluded this testimony because it did not feel that the plaintiff had sufficiently established the nurse’s aide’s identity as an employee of the nursing home nor had she shown that mopping floors was in the scope of her duties. On appeal, this Court reversed holding the statement was admissible because the nurse was an employee and her statement constituted an admission of the nursing home. Id. at 65-66; see also Troya v. Miami Beach Health Care Group, Inc., 780 So.2d 228, 229 (Fla. 3d DCA 2001) (statement of unidentified hospital employee that there had been “too much wax” on the floor admissible as a party admission to establish negligence); Chaney v. Winn Dixie Stores, Inc., 605 So.2d 527, 529 (Fla. 2d DCA 1992) (statement of apparent but unidentified store employee that “[she] called that boy a few minutes ago to come here and clean this up” admissible against employer to establish actual or constructive notice of dangerous condition).

Tandem and the trial court rely on Keyes v. Tallahassee Memorial Regional Medical Center, 579 So.2d 201 (Fla. 1st DCA 1991). In Keyes, plaintiff underwent hip surgery. Post-surgery her doctor required her to remain in bed with a chest posey for her safety because she displayed signs of senility and confusion. One night after surgery, plaintiff fell when getting out of bed and broke her hip. She filed a negligence action with the focus at trial being on whether the posey had been properly tied to the bed frame. Nurse Barrett testified that one night another nurse told her she had found plaintiff on the floor with the posey on and the bed rail still up. The trial court found the statement to be hearsay.

On appeal, plaintiff argued the trial court erred by not allowing Nurse Barrett to testify concerning the statements made to her by an unidentified nurse. The First District held that while statements made by an employee of a party in the course of their employment are normally admissible pursuant to section 90.803(18)(d), “the general rule does not have to be applied in cases where there is an insufficient basis to establish whether the statement is made about matters within the personal knowledge of the declarant, or where the statement does not meet other tests of admissibility.” Id. at 204. Finding that there was no evidence that the nurse speaking to Nurse Barrett actually witnessed anything about which she spoke, the First District concluded the statement involved hearsay within hearsay and absent proof that the underlying statement met a hearsay exception or was based on personal knowledge, it was inadmissible under section 90.805.

The Keyes decision appears to be an anomaly because cases from other districts do not impose a personal knowledge requirement. See Metro. Dade Cnty. v. Yearby, 580 So.2d 186, 189 n. 8 (Fla. 3d DCA 1991) (noting that the established rule in Florida and the clear majority rule throughout the country is that an admission by a party opponent or his agent need not be based on the personal knowledge of the party or his agent); see also Scholz v. RDV Sports, Inc., 710 So.2d 618 (Fla. 5th DCA 1998).

Similarly, the second statement made by the kitchen manager during a meeting following the incident with Mrs. Gagnon that Mrs. Gagnon had choked on coleslaw and died was a statement made by a Tandem employee within the scope of his employment and an admission under section 90.803(18)(d).

In Yearby, Metropolitan Dade County was being sued for injuries sustained by Yearby in an intersection collision that Yearby contended in part was as a result of the negligence of Metropolitan Dade for failing to replace a stop sign controlling the intersection which had at some point in time prior to the accident been knocked down. The claim against Metropolitan Dade was for failure to replace the stop sign that governed the traffic in Yearby’s direction of travel.

At trial, the only evidence tending to establish that Dade County had any knowledge of the downed stop sign prior to the accident, and thus was guilty of negligence in not replacing it, was the testimony of Richard Pichardo. Pichar-do was a public service aide for Dade County whose job it was to investigate traffic accidents and subsequently file reports concerning such investigations .... Although he had no independent knowledge concerning his investigation of this accident, he was allowed, over objection, to testify concerning the contents of the accident report which he filed in this case-including the following statement contained therein: “Note the stop sign was knocked down several days earlier. Traffic maintenance was advised.” Pichardo did not recall where he got this information as he had no independent recollection of his investigation, but he did concede that at the time he prepared the report it was an accurate representation of his findings.
The central contention raised on appeal is that the contents of the accident report filed by Dade County’s employee constituted inadmissible hearsay evidence which did not qualify for admission under any of the exceptions to the hearsay rule.
Dade County contends that the statement that the subject stop sign had been down for several days prior to the accident sued upon was not based on the personal knowledge of Pichardo because he had no independent recollection of his accident investigation in this case and did not recall where he got the information upon which this statement was based.

580 So.2d at 187-89.

The Third District Court disagreed and stated:

Although there is some contrary authority, the established rule in Florida, and the clear majority rule throughout the country, is that an admission by a party opponent or his agent need not be based on the personal knowledge of a party or his agent. This is so because when a person or his agent speaks against his own interest, as here, or otherwise makes relevant admissions of substantial importance to himself, it may be assumed that he or his agent has made an adequate investigation so that such statements possess, even if not based on firsthand observation, a substantial indi-cia of reliability.

Id. at 189 (footnotes omitted).

The dissent, as did the trial court, relies on Keyes to exclude these admissions by employees of Tandem. As noted, the Keyes decision is contrary to the weight of authority.

The dissent asserts that the kitchen manager’s statement should be excluded as evidence of subsequent remedial measures taken by Tandem. First, it should be noted that Tandem did not assert section 90.407, Florida Statutes (2009), as a basis for exclusion of this proffered testimony. It also is not clear that the kitchen manager’s statement consists of a subsequent remedial measure. Certainly the admission that Mrs. Gagnon choked on coleslaw is not a subsequent remedial measure. “Being more careful” may fall within the exclusionary basis pursuant to section 90.407, but it is not clear that the kitchen employees were being asked to take remedial measures as opposed to reminding the employees to follow preexisting procedures.

Having concluded that the trial court erred in excluding the testimony of Mr. Samsoondar, we must address whether this error was harmless. This court’s standard for determining harmless error was recently enunciated in Special v. Baux, 79 So.3d 755 (Fla. 4th DCA 2011) (en banc). We must be convinced by the party who benefits from the error “that it is more likely than not that the error[s] did not influence the trier of fact and thereby contribute to the verdict.” Id. at 771. From opening statement through closing, counsel for Tandem told the jury that it was not possible for Mrs. Gagnon to have choked because “someone would have seen or heard her choking, she would have been exhibiting signs of choking, that her choking would have been noticed by the staff and that because there was no witness in the dining room that saw or heard that Mrs. Gagnon was choking, there had to be another explanation for her death.” Additionally, Tandem’s expert reiterated this point by also testifying that because none of the staff in the kitchen or the dining room saw or heard Mrs. Gagnon choking, her injury must have been caused by a cardiac arrhythmia. By excluding this testimony the Estate was denied the opportunity to establish that there were people in the dining room at the time of the incident who heard or saw Mrs. Gag-non choking which would have contradicted Tandem’s arguments to the contrary. We are unconvinced that Tandem has established that more likely than not this error did not influence the trier of fact and thereby contribute to the verdict. We therefore reverse and remand for a new trial.

STEVENSON, J., concurs.

DAMOORGIAN, J., dissents with opinion.

DAMOORGIAN, J.,

dissenting.

I respectfully dissent because I disagree with the majority’s conclusion that the testimony of a Tandem employee was improperly excluded.

Hearsay is defined as “a statement, other than one made by the declai’ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2009). It is “generally inadmissible because the declarant does not testify under oath, the factfinder cannot observe the declarant’s demeanor, and the declarant cannot be cross-examined.” Dorsey v. Reddy, 931 So.2d 259, 266 (Fla. 5th DCA 2006) (citations omitted). As this Court has stated, “the rationale underlying our rejection of the use of hearsay evidence is its inherent unreliability as secondhand information, and the obvious unfairness in not providing the party against whom it is offered an opportunity to question the declarant of the statements.” Doersam v. Brescher, 468 So.2d 427, 428 (Fla. 4th DCA 1985); see also Harrell v. State, 689 So.2d 400, 402 (Fla. 3d DCA 1997) (hearsay evidence is excludable because of its unreliability). Obviously, there are exceptions to the hearsay rule, which allow for admissibility of certain types of hearsay statements. See §§ 90.803, 90.804, Fla. Stat. (2009).

One of these exceptions is at issue here. Section 90.803(18)(d) has two requirements for admission of hearsay statements of an agent of a party. First, the statements must be made by an agent of the party to be charged with the statements and, second, the statements must have been made within the scope of the agency or employment of the person making the statement. Chaney v. Winn Dixie Stores, Inc., 605 So.2d 527, 530 (Fla. 2d DCA 1992). In the instant case, although Samsoondar was not able to identify the person making the first statement about Mrs. Gagnon choking during his proffered testimony, he was able to identify that the person was a CNA and a Tandem employee pursuant to the requirements of section 90.803(18)(d). As for the origins of the second statement, Samsoon-dar was able to identify the kitchen manager by name, but conceded that the kitchen manager had no first-hand knowledge of the event and was unaware of how the kitchen manager learned about the incident involving Mrs. Gagnon.

I do not quarrel with the majority’s recognition of the clear rule throughout this country concerning the lack of a personal knowledge requirement for admissions by a party opponent or his agent. See Metro. Dade Cnty. v. Yearby, 580 So.2d 186, 189 n. 3 (Fla. 3d DCA 1991), rev. denied, 589 So.2d 291 (Fla.1991). However, the Yearby court articulated that such an admission need not be based on personal knowledge “because when a person or his agent speaks against his own interest ... or otherwise makes relevant admissions of substantial importance to himself, it may be assumed that he or his agent has made an adequate investigation so that such statements possess, even if not based on firsthand observation, a substantial indicia of reliability.” Id. at 189 (citation omitted). In the instant case, I remain unconvinced that the statements made demonstrated any indicia of reliability sufficient to prevent exclusion under the hearsay rule.

Furthermore, what I find particularly troubling about Samsoondar’s proffered testimony, which the majority noted, was Samsoondar’s acknowledgement that he did not know whether the CNA that stated Mrs. Gagnon had choked had heard this from another employee. He also definitively stated that the kitchen manager was not present at the time of the incident; thus, he received his information from another source. As such, this case involves the potential for hearsay within hearsay. Based on Samsoondar’s testimony, there is no way to determine the number of hearsay statements that may have been made before the CNA and kitchen manager relayed the information to the kitchen employees and it is speculative at best to submit that each of those statements would be admissible under an exception to the hearsay rule. See Powell v. State, 908 So.2d 1185, 1187 (Fla. 2d DCA 2005) (“Statements that constitute hearsay within hearsay are inadmissible unless both statements conform to a hearsay exception.”); see also § 90.805, Fla. Stat. (2009). If the CNA witnessed the event herself, I would concede that it would be admissible either as an excited utterance or an admission of a party. §§ 90.803(2), (18)(d), Fla. Stat. (2009). But that is not the case here.

As for the kitchen manager, Samsoon-dar’s testimony indicated that a meeting was held a few days after the incident to discuss the staff exercising more caution with the food trays. This testimony clearly presents inadmissible evidence of subsequent remedial measures taken by Tandem and was properly excluded. See § 90.407, Fla. Stat. (2009) (“Evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is not admissible to prove negligence .... ”); see also Harris v. Fla. Power & Light Co., 700 So.2d 1240, 1241-42 (Fla. 3d DCA 1997).

Even more problematic is the fact that the statements Samsoondar described hearing were medical conclusions as to the ultimate issue without information supporting such conclusions instead of reliable factual observations like those present in Thee and Troya. See Thee v. Manor Pines Convalescent Ctr., Inc., 235 So.2d 64, 65 (Fla. 4th DCA 1970) (Employee of nursing home proffered testimony that “[m]ilk got spilled, but we mopped it up.”); Troya v. Miami Beach Health Care Grp., Inc., 780 So.2d 228, 229 (Fla. 3d DCA 2001) (unidentified hospital employee exclaimed that there had been “too much wax” on the floor after a patient fell).

The First District’s decision in Keyes accurately recognizes the hearsay within hearsay exception to the general rule blindly followed by the majority. Keyes v. Tallahassee Mem’l Reg’l Med. Ctr., 579 So.2d 201, 204-05 (Fla. 1st DCA 1991). The trial court is charged with the responsibility of determining the admissibility of evidence. See Linic v. State, 80 So.3d 382, 389 (Fla. 4th DCA 2012). Where testimony does not meet the tests of admissibility, the trial court acts properly in excluding it. Id.; see also Fiore v. State, 967 So.2d 995, 998 (Fla. 5th DCA 2007) (describing the trial court’s additional gatekeeping function under section 90.403 as “critical” with respect to admission of evidence) (quoting McLean v. State, 934 So.2d 1248, 1261 (Fla.2006)). Here, because the testimony was inherently unreliable and involved multiple levels of hearsay, I would affirm the trial court’s ruling on the admissibility of the proposed testimony. Cf. Francis v. State, 308 So.2d 174 (Fla. 1st DCA 1975) (affirming the trial court’s ruling that the testimony of witness as to statements allegedly made' against penal interest by another was not admissible based on its inherent unreliability).

Finally, I disagree with the majority’s conclusion that any error in the exclusion of this testimony was harmful. See Special v. Baux, 79 So.3d 755 (Fla. 4th DCA 2011) (en banc). There was ample evidence that Mrs. Gagnon choked without this testimony, including the fact that food was suctioned from Mrs. Gagnon’s mouth, that the Heimlich Maneuver was performed, that Mrs. Gagnon had a history of a swallowing disorder as well as expert testimony to the effect that the cause of her death was choking. For error to be harmless it must be “more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict.” Id. at 771. With the ample evidence presented in this case of the Estate’s theory regarding Mrs. Gagnon choking due to Tandem’s negligence, it is more likely than not that the alleged error involving the exclusion of Samsoondar’s testimony did not influence the jury’s verdict.

      . Nine months after Mrs. Gagnon died, the FDA issued an advisory stating that the use of Seroquel and Abilify as well as other medications in elderly patients suffering from dementia was associated with a 1.6 to 1.7 fold increase in mortality due to heart related events or infections. This advisory was based on seventeen controlled trials.
      A black box warning is a warning that appears on the package insert and label of a medication, and other literature describing the medication. The relevant black box warning in this case was discussed at trial, but was excluded from evidence because the trial court ruled that it was cumulative.

      . Mrs. Gagnon had been taking these two medications for two years without any complications or side effects.

      . 90.706 Authoritativeness of literature for use in cross-examination.-Statements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness if the expert witness recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter.

      . It was established that this occurred on the date of Mrs. Gagnon's incident and was the only incident of this kind on that date.

      . Section 90.805, Florida Statutes (2009) provides: "Hearsay within hearsay is not excluded under s. 90.802, provided each part of the combined statements conforms with an exception to the hearsay rule as provided in s. 90.803 or 90.804."


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Calvin G. McSHANE, Appellant, v. Michael RABOLD, as Personal Representative of the Estate of Irene McShane, Appellee.
    No. 4D11-3298.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Rehearing Denied Aug. 22, 2012.
    John P. Wilkes of John P. Wilkes, PA., Fort Lauderdale, for appellant.
    Jeffrey M. Fauer of Tripp Scott, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

POLEN, GROSS and LEVINE, JJ„ concur.


author: BLACK, Judge.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Dale William ROBINSON, Respondent.
    No. 2D11-5121.
    District Court of Appeal of Florida, Second District.
    June 27, 2012.
    Rehearing Denied Aug. 14, 2012.

      Stephen D. Hurm, General Counsel, and Kimberly A. Gibbs, Assistant General Counsel, Orlando, for Petitioner.
    Timothy F. Sullivan of Russo & Russo, P.A., St. Petersburg, for Respondent.
   BLACK, Judge.

The Florida Department of Highway Safety and Motor Vehicles (DHSMV) seeks second-tier certiorari review of the circuit court’s order invalidating the suspension of Robinson’s driver’s license. We deny the petition and certify a question of great public importance to the Florida Supreme Court.

On April 3, 2011, Officer Giordano of the Clearwater Police Department arrested Robinson for driving under the influence (DUI) after stopping his vehicle for speeding. After Robinson refused to submit to a breath-alcohol test, his license was suspended. Robinson requested a formal administrative review hearing within thirty days to challenge the suspension of his license under section 322.2615(6)(a), Florida Statutes (2010).

On April 29, 2011, an evidentiary hearing was conducted before an administrative hearing officer to review the validity of the suspension. Prior to the hearing, Robinson issued a subpoena for Giordano to appear and testify at the hearing. When the arresting officer failed to appear despite the subpoena requiring his attendance, Robinson’s counsel moved to invalidate the suspension. The hearing officer denied the request to invalidate the license suspension due to Giordano’s absence, but offered to continue the hearing so that counsel could enforce the subpoena under section 322.2615(6)(c). Counsel declined the continuance. Thereafter, the hearing officer affirmed the administrative suspension of Robinson’s license.

Robinson filed a petition for writ of cer-tiorari in the circuit court seeking review of the hearing officer’s decision. Robinson claimed that the hearing officer violated due process by failing to invalidate the suspension of his license after the arresting officer failed to appear at the hearing. The circuit court agreed and held that Giordano’s unexcused absence from the formal review hearing violated Robinson’s due process rights. The court quashed the decision of the administrative hearing officer and reinstated Robinson’s driving privileges. In its second-tier certiorari petition to this court, the DHSMV seeks review of the circuit court’s decision.

In a second-tier certiorari proceeding, this court has a narrow standard of review. We review the opinion to determine whether the circuit court afforded procedural due process and whether it applied the correct law. City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla. 1982). “Applying the correct law incorrectly does not warrant certiorari review.” Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 1121, 1125 (Fla. 4th DCA 2007) (citing Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000)).

Section 322.2615(6) outlines the administrative review procedures for a formal review of a driver’s license suspension. The provision provides, in relevant part:

(a) If the person whose license was suspended requests a formal review, the department must schedule a hearing to be held within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.
(b) Such formal review hearing shall be held before a hearing officer ... [who] shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses ... regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension....
(c)A party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. A failure to comply with an order of the court shall result in a finding of contempt of court. However, a person is not in contempt while a subpoena is being challenged.

§ 322.2615(6)(a), (b), (c).

The DHSMV argues that due process only requires notice and an opportunity to be heard which Robinson received. The DHSMV contends that the circuit court has improperly broadened the due process standard to include a violation of due process when a subpoenaed witness fails to appear despite Robinson’s failure to enforce the subpoena pursuant to section 322.2615(6)(c).

In support of its argument that the invalidation of the suspension was improper, the DHSMV relied below on the holdings in Buckley v. Department of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 135a (Fla. 4th Cir.Ct. Aug. 17, 2010), and Department of Highway Safety & Motor Vehicles v. Lankford, 956 So.2d 527 (Fla. 1st DCA 2007). In Buckley, a subpoena was issued to secure testimony of an employee from the Florida Department of Law Enforcement (FDLE) regarding the instrument used to measure breath-alcohol content. The FDLE employee refused to appear after he discovered he would not be paid for his time. Id. The suspendee sought to invalidate the suspension of the license after the witness failed to appear. However, the circuit court found that the suspension was not a due process violation since the witness’ failure to appear was not the result of any action of the hearing officer and the sus-pendee failed to enforce the subpoena under section 322.2615(6)(c). Id.

In Lankford, the suspendee argued that the hearing officer erred in suspending his license because the arresting officer failed to bring video evidence to the hearing as directed by the subpoena duces tecum. 956 So.2d at 527. The circuit court agreed and invalidated the suspension. However, on second-tier certiorari review, the First District found that Lankford did not preserve the issue by raising an objection with the hearing officer. Id. at 527-28. The court quashed the decision of the circuit court finding that it departed from the essential requirements of the law when it invalidated the license suspension. Id. at 528. The court stated, “we find no provision in the pertinent statute and rule that authorizes invalidation of a DUI license suspension because a witness did not provide the hearing officer with a good reason for failing to bring evidence pursuant to a subpoena duces tecum.” Id.

In the proceeding below, the Sixth Circuit rejected the DHSMV’s arguments. The court concluded that Buckley was not binding authority because it was a decision of a sister circuit court, see Pardo v. State, 596 So.2d 665, 666-67 (Fla.1992), and that the language in Lankford addressing the failure of a witness to produce evidence pursuant to a subpoena duces tecum was dicta.

Instead of following these cases, the Sixth Circuit followed its own opinion in Pfleger v. Department of Highway Safety & Motor Vehicles, 18 Fla. L. Weekly Supp. 706a (Fla. 6th Cir.Ct. May 20, 2011). In Pfleger, the suspendee was arrested for DUI and subpoenaed the arresting officer to testify at the administrative review hearing. When the officer failed to appear, the hearing officer offered to continue the hearing to permit the enforcement of the subpoena. Id. The suspendee declined the continuance and the hearing officer affirmed the suspension of the license. On certiorari review, the Sixth Circuit held that an “arresting officer’s unexcused, unexplained nonappearance denied the [suspendee] the opportunity to confront and cross-examine the officer at the formal hearing within thirty days, as contemplated by the DHSMV rules.” Id. The court concluded that the hearing officer’s continuance to enforce the subpoena “added a procedural step to the review process that deprived the [suspendee] of a real opportunity to be heard and to challenge the suspension on the merits within thirty days.” Id. This court later denied the DHSMV’s petition for writ of certiora-ri in Pfleger. See Dep’t of Highway Safety & Motor Vehicles v. Pfleger, 88 So.3d 159 (Fla. 2d DCA 2011) (table decision).

On the same day that this court denied the petition for writ of certiorari in Pfleger, it also denied the petition for writ of certiorari in McKenney v. Department of Highway Safety & Motor Vehicles, 12 Fla. L. Weekly Supp. 1030a (Fla. 13th Cir.Ct. Jan. 12, 2011), cert. denied, 75 So.3d 1259 (Fla. 2d DCA 2011) (table decision). In McKenney, the Thirteenth Circuit reached the opposite conclusion from the Sixth Circuit’s opinion in Pfleger. The court found that it was not a denial of due process when a subpoenaed witness failed to appear because the hearing officer properly issued the subpoena and offered the sus-pendee the opportunity to seek enforcement of the subpoena in the circuit court; however, the suspendee did not pursue the available statutory remedy.

The DHSMV’s petition in this court essentially relies upon the same cases that it did in the circuit court. We agree that Buckley was a Fourth Circuit case and not binding on the Sixth Circuit. Additionally, the circuit court appropriately found that the language in Lankford was dicta and not binding on the Sixth Circuit. Because there is no established district court opinion addressing this issue and because the circuit court did not apply the incorrect law, we deny the petition.

We note that circuit courts are ruling both ways on this issue and using different reasoning for granting or denying petitions. Compare Buckley, 18 Fla. L. Weekly Supp. 135a (finding that the hearing officer did not violate procedural due process and denying the certiorari petition where the inability to cross-examine the witness was not the result of the hearing officer’s action, but the result of the witness’ refusal to appear and the suspendee’s failure to avail himself of the statutory procedure to enforce the subpoena), and Lemieux v. Dep’t of Highway Safety & Motor Vehicles, 8 Fla. L. Weekly Supp. 7a (Fla. 7th Cir.Ct.2000) (denying the petition for certiorari relief because the DHSMV did not have a policy of invalidating a license suspension when a subpoenaed witness failed to appear and ruling that the respondent had the burden of procuring the witness’ presence at the hearing), with Cumberledge v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 314a (Fla. 9th Cir. Ct. Jan 7, 2010) (granting the petition for writ of certiorari and quashing the driver’s license suspension where breathalyzer technician was not present at the hearing due to the failure of the sheriffs office to serve the subpoena).

Given the current state of the law on this issue, it is likely that it will appear again in this court. Because these cases arise in the procedural posture of a second-tier certiorari petition and because there is no district court decision on this issue, it is also likely that we will be constrained to deny subsequent petitions raising the same issue. Accordingly, we certify the following question of great public importance to the supreme court pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

WHEN A SUSPENDEE SEEKS FORMAL REVIEW OF A DRIVER’S LICENSE SUSPENSION PURSUANT TO SECTION 322.2615(a), FLORIDA STATUTES, IS IT A VIOLATION OF DUE PROCESS TO SUSPEND THE LICENSE AFTER A SUBPOENAED WITNESS FAILS TO APPEAR AND THE SUSPENDEE CANNOT ENFORCE THE SUBPOENA WITHIN THE STATUTORILY MANDATED THIRTY-DAY PERIOD FOR FORMAL ADMINISTRATIVE REVIEW?

KELLY and LaROSE, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Edward ARNOLD, Petitioner, v. STATE of Florida, Respondent.
    No. 2D11-5295.
    District Court of Appeal of Florida, Second District.
    June 29, 2012.

      Edward M. Arnold, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, for Respondent.
   NORTHCUTT, Judge.

We previously affirmed Edward Arnold’s conviction for attempted second-degree murder. Arnold v. State, 46 So.3d 52 (Fla. 2d DCA 2010) (table decision). Thereafter, Arnold filed a petition pursuant to Florida Rule of Appellate Procedure 9.141(d), alleging that his appellate counsel was ineffective. He contends that counsel was deficient in failing to argue that his jury was given a fundamentally erroneous instruction on attempted manslaughter by act. We agree.

Arnold was charged with attempted first-degree premeditated murder and was convicted of the category one lesser-included offense of attempted second-degree murder. Attempted manslaughter by act, commonly referred to as attempted voluntary manslaughter, also is a category one lesser-included offense of attempted first-degree premeditated murder. Betts v. State, — So.3d —, —, 2011 WL 6058312 (Fla. 2d DCA 2011); Fla. Std. Jury Instr. (Crim.) 6.2. At Arnold’s trial, the jury was given the standard instruction on attempted manslaughter by act.

The notice of appeal in Arnold’s case was filed after the First District decided Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), approved, 39 So.3d 252 (Fla.2010), in which it held that the then-standard manslaughter by act instruction was fundamentally erroneous because it improperly contained an additional element of intent to kill. The day after the notice was filed, the supreme court accepted the Montgomery decision for review. State v. Montgomery, 11 So.3d 943 (Fla. 2009). Before Arnold’s initial brief was filed, the First District issued Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009), extending Montgomery to hold that it was fundamental error to give the standard instruction on attempted manslaughter by act. This court subsequently came to that view. Mueller v. State, — So.3d —, 2011 WL 4104912 (Fla. 2d DCA 2011); Houston v. State, 87 So.3d 1 (Fla. 2d DCA 2011); Gonzalez v. State, 40 So.3d 60 (Fla. 2d DCA 2010).

Under materially identical circumstances, we held that appellate counsel in Betts was ineffective for failing to argue that the standard attempted manslaughter by act instruction was fundamentally erroneous. — So.3d at —. Guided by that decision, we reach the same conclusion in Arnold’s case.

Because a new appeal would be redundant in this case, we reverse Arnold’s conviction for attempted second-degree murder, vacate the sentence, and remand for a new trial. See Betts, — So.3d at —. As we did in Betts, we certify that our decision is in conflict with Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), review granted, 64 So.3d 1262 (Fla.2011).

Petition granted; conflict certified.

WALLACE and MORRIS, JJ., Concur.

      . The jury also found that Arnold discharged a firearm causing great bodily harm.

      . The manslaughter by act instruction given to the jury at Arnold’s trial continues to be the standard instruction. See Fla. Std. Jury Instr. (Crim.) 6.6. However, a proposed amended instruction awaiting supreme court approval would remove the intent to kill element. Ba-nek v. State, 75 So.3d 762, 764 n. 1 (Fla. 2d DCA 2011).


text:
    Kristian T. WARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1704.
    District Court of Appeal of Florida, First District.
    July 3, 2012.
    Rehearing Denied Aug. 14, 2012.
    Kristian T. Ward, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Anthony HOLLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2831.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.
    Rehearing Denied Aug. 24, 2012.
    Anthony Holley, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Logan v. State, 1 So.3d 1253 (Fla. 4th DCA 2009).

POLEN, GROSS and CONNER, JJ., concur.


author: PER CURIAM..

text:
    Michael CAPUTO, Appellant, v. ABC FINE WINE & SPIRITS/Alternative Service Concepts, Inc., Appellees.
    No. 1D11-4962.
    District Court of Appeal of Florida, First District.
    July 11, 2012.
    Rehearing Denied Aug. 14, 2012.
    Bill McCabe, Longwood, and Steven Pyle, Maitland, for Appellant.
    Brian T. Hanley, Winter Park, for Ap-pellees.
   PER CURIAM..

In this workers’ compensation case, Claimant suffered a closed-head injury while engaged in the duties of his job on the premises of his Employer. The Judge of Compensation Claims (JCC) ruled that the injury was idiopathic and not compen-sable because Claimant failed to prove that his employment involved an exertion greater than that performed during his daily life. Because the JCC applied the wrong test for determining compensability, we reverse.

FACTS

On March 3, 2010, Claimant, an electrician for the Employer, fell and hit his head on the floor while cutting down shelving with a saw in the Employer’s store. Claimant was diagnosed with left temporal hemorrhage, seizure disorder possibly secondary to the left temporal hemorrhage, and toxic encephalopathy secondary to the left temporal hemorrhage. There is no dispute that Claimant was on the Employer’s premises and performing one of his job duties when injured.

Claimant filed a petition for benefits seeking a determination that the industrial accident was compensable, temporary total disability benefits from March 3, 2010, to the present and continuing, penalties, interest, attorney’s fees, and costs. The Employer/Carrier (E/C) denied the claim on the basis that Claimant’s fall resulted either from a pre-existing or idiopathic condition.

Although Claimant recalled working that day, Claimant has no recollection of how the accident occurred. Claimant’s independent medical examiner (IME), Dr. Ira. Goodman, opined that, rather than a seizure or fainting spell, Claimant’s head impacting the floor caused Claimant’s closed-head injuries. Dr. Goodman was unable to state within a reasonable degree of medical certainty whether any factor related to Claimant’s employment caused the fall. The E/C’s IME, Dr. Anthony Shydohub, also opined that the blow to Claimant’s head from the floor, and not the fall, caused his brain to hemorrhage. Claimant’s medical records indicate that in February 2008 (some two years before the accident here at issue) Claimant fell in the shower, resulting in a 10-second loss of consciousness, head trauma, and concussion.

In the final order, the JCC, after acknowledging inherent discrepancies in the only eyewitness’s account of Claimant’s fall, and citing to this court’s holding in Bryant v. David Lawrence Mental Health Center, 672 So.2d 629 (Fla. 1st DCA 1996), denied compensability of Claimant’s injury. The JCC found that no objective medical evidence supported a finding that the work performed caused Claimant to fall because “neither [IME] could opine with certainty whether the seizure precipitated the fall or occurred as a result of the fall.” Although the JCC specifically rejected the E/C’s defense that Claimant had a pre-existing condition which predisposed him to falling, the JCC found that Claimant’s fall was idiopathic, occurred fortuitously while Claimant was at the Employer’s store, and was not caused by the employment.

ANALYSIS

To be compensable, . an injury must “arise out of’ one’s employment and must occur “in the course and scope of’ that employment. Bryant, 672 So.2d at 630 (citing Strother v. Morrison Cafeteria, 383 So.2d 623, 624 (Fla.1980)). The E/C in this case conceded that the injury to Claimant occurred in the course and scope of his employment, while performing his job duties on the Employer’s premises. The dispute here is whether the injury “arose out of’ Claimant’s employment.

In Lanham v. Department of Environmental Protection, 868 So.2d 561 (Fla. 1st DCA 2004), this court, in addressing the term “arising out of,” explained that two factors must come together for an accidental injury to be held compensable: “(1) the work must have been performed in the course and scope of employment, and (2) the work must be the major contributing cause of the accident or injury.” 868 So.2d at 562-63 (citing Vigliotti v. K-mart Corp., 680 So.2d 466, 467-68 (Fla. 1st DCA 1996)). In addressing the second factor, the Lanham court explained that if “there was only one cause of claimant’s injuries, rather than competing causes, claimant was not required to present additional evidence going to the issue of whether the work-related accident was the major contributing cause of the injuries.” 868 So.2d at 563. See also La. Pac. Corp. v. Harcus, 774 So.2d 751, 753 (Fla. 1st DCA 2000) (holding when there is only one cause of accident occurring in course and scope of employment, major contributing cause requirement is met).

Here, in the absence of any evidence which could support a finding that there were competing causes of Claimant’s accidental injuries, the JCC erred in ruling that his injuries were not compensable. It is undisputed that Claimant’s closed-head injuries resulted from Claimant’s head impacting the floor while Claimant was removing shelving from the Employer’s store. Further, it is undisputed that the JCC found that Claimant had no pre-exist-ing conditions which may have caused Claimant to fall. In the absence of competing causes of Claimant’s accidental injuries, Claimant satisfied the major contributing cause requirement when evidence showed that he was removing shelving in the Employer’s store at the time of the accident and suffered closed-head injuries as a result of the accident. See Lanham, 868 So.2d at 563. Because Claimant was “not required to present additional evidence going to the issue of whether the work-related accident was the major contributing cause of the injuries,” the JCC erred in finding that Claimant did not sustain an injury by accident arising out of Claimant’s employment. Id.

Further, we disagree with the JCC’s interpretation of this court’s holding in Bryant, which fails to recognize the proper legal standard for causation when there is no evidence that a claimant’s accidental injury was the result of a pre-exist-ing condition. In Bryant, this court explained:

When the E/C assert that an injury is the result of a personal risk such as an idiopathic pre-existing condition, they must carry the burden of proving the existence of such a condition.... [I]f the employee has no prior weakness or disease, any exertion connected with employment and causally connected with the injury as a medical fact is adequate to satisfy the legal test of causation.

Id. at 631. Here, in the absence of any other ascertainable cause, Claimant established a sufficient connection between his work and the accident in question by producing evidence that he was cutting down shelving with a saw in the Employer’s store, performing one of his job duties. See id. (holding claimant’s knee injury “arose out of her work” when it occurred as she was squatting to pick up a bag of laundry). Thus, the JCC erred in ruling that Claimant’s injuries were not compen-sable. Accordingly, the order denying compensability is REVERSED and REMANDED for further proceedings consistent with this opinion.

DAVIS, WETHERELL, and SWANSON, JJ„ concur.


text:
    Robert RYAN, Appellant, v. Shane P. McENANY and Patrick McEnany, Appellees.
    No. 4D11-2726.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    Nancy Little Hoffman of Nancy Little Hoffman, P.A., Fort Lauderdale, and Milton Blaut and Michael A. Weiss of Green-spoon Marder, Fort Lauderdale, for appellant.
    Rosemary Wilder of Marlow, Connell, Abrams, Adler, Newman & Lewis, Coral Gables, for appellee Patrick McEnany.
   PER CURIAM.

Affirmed. See Aurbach v. Gallina, 753 So.2d 60 (Fla.2000).

MAY, C.J., TAYLOR and CIKLIN, JJ., concur.


author: PALMER, J.

text:
    John E. KIST, Appellant, v. Sgt. John O. HUBBARD, Appellee.
    No. 5D10-1456.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2012.
    John E. Kist, St. Petersburg, pro se.
    Sherwood S. Coleman, Associate General Counsel, Pinellas County Sheriffs Office, Largo, for Appellee.
   PALMER, J.

John E. Kist appeals the non-final order entered by the trial court granting Sergeant John O. Hubbard’s verified motion to transfer venue of Kist’s lawsuit from Sumter County to Pinellas County. We reverse.

Kist filed suit against Hubbard in his personal capacity, alleging defamation of character and intentional infliction of emotional distress relating to statements Hubbard allegedly made while investigating Kist’s escape from prison. The complaint alleged that Hubbard’s statements were malicious and that they were received in Sumter County.

Hubbard moved to transfer venue to Pinellas County, the location of his employer, the Pinellas County Sheriffs Office. The motion alleged that Kist could not sue Hubbard in his personal capacity because his complaint failed to allege any facts demonstrating that the alleged defamatory statements were made with malice and, therefore, the lawsuit should be deemed to be against Hubbard in his professional capacity, as an employee of the Sheriffs Office. In the alternative, Hubbard moved to change venue based upon forum non conveniens.

The trial court granted the motion, concluding that venue was not proper in Sumter County because Kist had not sufficiently alleged malice and, accordingly, had not properly asserted a cause of action against Hubbard in his personal capacity. The trial court did not rule on the motion to change venue on the basis of forum non conveniens.

Kist contends that the trial court erred by granting the motion to transfer venue, arguing that venue was proper in Sumter County because his complaint alleged a claim against Hubbard in his personal capacity, alleged that the defamatory statements were made with malice, and alleged that the statements were received in Sumter County. We agree.

Section 47.011, Florida Statutes (2009), provides that “[a]ctions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” In Perdue v. Miami Herald Publishing Company, 291 So.2d 604 (Fla.1974), the Florida Supreme Court explained, in a libel case, that venue for defamation actions is proper, among other places, in any county where the publication is distributed. Id. at 607. This rule has also been applied to slander claims. See Della-Donna v. Gore Newspaper Co., 390 So.2d 87 (Fla. 3d DCA 1980). As such, Kist is correct that venue was presumptively proper in Sumter County where Hubbard’s alleged defamatory statements were received.

However, because Hubbard is a government employee, the issue before the court is whether Kist’s complaint adequately asserted a cause of action against Hubbard in his personal capacity because, if the complaint is asserting a cause of action against Hubbard in his professional capacity, the only proper venue would be Pinellas County by virtue of the employee immunity statute, section 768.28(9)(a), Florida Statutes (2007). See Carlile v. Game & Fresh Water Fish Comm'n., 354 So.2d 362, 364-65 (Fla.1977); Sch. Bd. of Osceola Cnty. v. State Bd. of Educ., 903 So.2d 963, 966 (Fla. 5th DCA 2005).

In order to adequately assert a cause of action against Hubbard in his personal capacity, Kist’s complaint must allege one of the identified exceptions to the employee immunity statute. Section 768.28(9)(a), provides the following exceptions to employee immunity:

No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party Defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

(Emphasis added.)

Hubbard contends that the allegations in Kist’s complaint were not sufficient to meet the requirement of pleading malice because they merely asserted conclusory allegations that Hubbard acted with malice. We disagree. Rule 1.120(b) of the Florida Rules of Civil Procedure provides that “[mjalice, intent, knowledge, mental attitude, and other conditions of mind of a person may be averred generally.” In Gangelhoff v. Lokey Motors Company, 270 So.2d 58 (Fla. 2d DCA 1972), the plaintiff sued for malicious prosecution. The complaint alleged that the “prosecution ... was commenced ... from malice towards the plaintiff; that certain acts were committed by the [defendant] and these actions were taken with actual malice.” The trial court granted the defendant’s motion to dismiss, reasoning that the element of malice was not sufficiently pled. The Second District reversed, concluding that under rule 1.120(b), the plaintiff was only required to plead malice generally. Like the plaintiff in Gangelhoff, Kist’s general allegations of malice are sufficient.

Accordingly, we reverse the order granting the motion to transfer venue to Pinel-las County and remand to allow the trial court to reach the merits of the motion to change venue for forum non conveniens.

REVERSED and REMANDED.

GRIFFIN and SAWAYA, JJ., concur.

      . This court has jurisdiction over non-final orders concerning venue pursuant to rule 9.130(a)(3)(A) of the Florida Rules of Appellate Procedure.


author: ALTENBERND, Judge.

text:
    Mario PLANCARTE, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3564.
    District Court of Appeal of Florida, Second District.
    July 18, 2012.
    Mario Planearte, pro se.
   BY ORDER OF THE COURT.

Mario Plancarte’s motion for rehearing is granted. The prior opinion dated April 11, 2012, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

ALTENBERND, Judge.

Mario Planearte appeals the trial court’s order denying his motion to correct an illegal sentence that was filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We address only one ground of his motion and affirm the order.

Mr. Planearte was convicted of aggravated battery with a firearm because he concluded a disagreement with another man in 2004 by shooting the man. He was orally sentenced to twenty-five years’ imprisonment with a twenty-five-year minimum mandatory term pursuant to the 10/20/Life statute. § 775.087(2)(a)(3), Fla. Stat. (2003). We affirmed his direct appeal in 2005. Plancarte v. State, 918 So.2d 302 (Fla. 2d DCA 2005) (table decision).

Mr. Planearte claims his sentence is illegal because the trial court initially entered a written sentence on September 21, 2004, that failed to include the minimum mandatory term. He filed his appeal on October 8, 2004. On October 15, 2004, the trial court entered an amended written sentence, nunc pro tunc, correcting the scrivener’s error. It appears that this alteration was simply attached to the existing sentencing documents without being separately file stamped. On direct appeal, the correction appeared to have been entered prior to the filing of the notice of appeal.

Mr. Planearte focuses on case law that stands for the proposition that a trial court loses jurisdiction to amend a sentence once a notice of appeal is filed and throughout the remainder of the appeal. See Linnon v. State, 988 So.2d 70, 72-73 (Fla. 2d DCA 2008). He claims that the corrected sentence is void and has no effect. Although we agree with Mr. Planearte that the procedure used in this case was unusual and not in accordance with the foregoing case law, the resulting sentence correctly reflects the trial court’s oral pronouncement. If the sentence on direct appeal had been the written sentence in its original form without this attachment, it would have been an erroneous sentence. We simply conclude that Mr. Plancarte’s written sentence, as amended nunc pro tune on October 15, 2004, accurately states the sentence orally announced on September 21, 2004, and it is not an illegal sentence subject to any correction at this time under rule 3.800(a).

Affirmed.

CASANUEVA and VILLANTI, JJ., Concur.

      . Planearte has filed a number of other appeals and a petition with this court arising out of the same trial court case, but these filings are not directly related to the present matter. Planearte v. State, 49 So.3d 758 (Fla. 2d DCA 2010) (table decision); Planearte v. State, 36 So.3d 99 (Fla. 2d DCA 2010) (table decision); Planearte v. State, 989 So.2d 646 (Fla. 2d DCA 2008) (table decision); Planearte v. State, 975 So.2d 487 (Fla. 2d DCA 2007).

      . "The term scrivener’s error refers to a mistake in the written sentence that is at variance with the oral pronouncement of sentence or the record but not those errors that are the result of a judicial determination or error.” Amendments to Florida Rules of Criminal Procedure 3.111(e) and 3.800 and Florida Rules of Appellate Procedure 9.020(h), 9.140, and 9.600, 761 So.2d 1015, 1023 (Fla.2000) (court commentary); Ashley v. State, 850 So.2d 1265, 1268 n. 3 (Fla.2003).


author: WARNER, J.

text:
    Adriana Mazuera BONILLA, a/k/a Adriana Mazuera and John Moreno, Appellants, v. BANK UNITED, as successor in Interest to BankUnited, FSB, Appellee.
    No. 4D11-3209.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.

      Theresa B. Edwards and June M. Clark-son of Edwards & Clarkson, P.A., Fort Lauderdale, for appellants.
    No appearance for appellee.
   WARNER, J.

Adriana Bonilla and John Moreno appeal from the denial of a motion to vacate a final judgment of foreclosure. They claim that the trial court entered final summary judgment without affording them proper notice of the proceedings after their counsel withdrew. Because we agree that they have shown surprise, we reverse.

Bank United filed a motion to foreclose residential property of Bonilla and Moreno. Bonilla and Moreno’s lawyer filed an Amended Answer, Affirmative Defenses and a Counterclaim. The bank then filed a motion for summary judgment, although it did not address the counterclaims or affirmative defenses. On April 1, 2011, it noticed the motion for hearing on April 26. The lawyer for the defendants filed a motion to withdraw on April 19, which was granted by the court on April 21. The order granting the motion to withdraw specifically allowed the defendants “thirty (30) days from the date hereof to retain new counsel, or indicate that they will proceed pro se in this matter.” Five days later, on April 26, the trial court entered a Final Judgment of Foreclosure in favor -of the bank. Within the time for filing a motion for rehearing, the pro se defendants filed an objection to the motion for summary judgment, motion to vacate, and motion for rehearing on the grounds that (1) they were not timely notified of the summary judgment proceeding and had been granted thirty days to obtain new counsel; and, (2) the affirmative defenses and counterclaims had not been conclusively refuted in any affidavits. There does not appear to have been a ruling on this motion. Defendants, through counsel, filed an amended motion to vacate pursuant to Florida Rule of Civil Procedure 1.540(b) alleging essentially the same grounds and claiming unfair surprise. The court denied the motion.

A trial court’s ruling on a motion to vacate under rule 1.540 is reviewed for abuse of discretion. Rosso v. Golden Surf Towers Condo. Ass’n, 711 So.2d 1298, 1300 (Fla. 4th DCA 1998). Bonilla and Moreno argue that the trial court erred in denying their motion to vacate the final judgment of foreclosure because they were denied due process when on April 21, they were given thirty days to obtain new counsel or to act pro se, but the trial court nevertheless entered Final Summary Judgment after only five days, on April 26.

Rule 1.540(b) allows for vacation of an order based on “surprise.” We think it is safe to say that where the court permits withdrawal and permits a pro se defendant thirty days to secure new counsel, it would be assumed by anyone that the court would not take action to conclude the case in those thirty days, as the court did in this case. As we stated in Stanford v. Stanford, 940 So.2d 605, 606 (Fla. 4th DCA 2006):

We deem it a denial of due process to grant a litigant a specific period of time to obtain new counsel and then proceed to try the case before the afforded time has lapsed. So fundamental is the right of a litigant to rely on orders of the court, the refusal to vacate the judgment is a manifest abuse of discretion.

While Stanford involved a direct appeal of a final judgment, this conduct can only be termed unfair surprise equally sufficient to secure relief from the final judgment based upon rule 1.540(b).

Reversed.

STEVENSON and CONNER, JJ., concur.

      . Although it appears that the timely-filed motion for rehearing should have postponed rendition of the final judgment, from the pleading filed by counsel pursuing relief pursuant to Rule 1.540(b), appellants do not argue that the judgment was not final; thus, we conclude that they have abandoned the motion for rehearing.


text:
    Lois A. WILSON, Appellant, v. Laurianus WILSON, Appellee.
    No. 4D11-1907.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Rehearing Denied Aug. 24, 2012.
    Lois A. Wilson, Margate, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

WARNER, DAMOORGIAN and CONNER, JJ., concur.