author: LAGOA, J. ROTHENBERG, J.

text:
    The STATE of Florida, Appellant, v. D.F., a juvenile, Appellee.
    No. 3D10-996.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 2011.

      Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Armando G. Hernandez, Special Assistant Public Defender, for ap-pellee.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.
   LAGOA, J.

The State of Florida (“State”) appeals from the trial court’s order granting appel-lee D.F.’s motion to suppress physical evidence. Because the record supports the trial court’s ruling that D.F. was illegally seized, we affirm the order suppressing the contraband.

I. FACTUAL AND PROCEDURAL HISTORY

During a multi-agency investigatory sweep at an apartment complex, a detective, who was participating as an “eyeball,” observed D.F. discard baggies of suspected marijuana. D.F. was subsequently arrested and transported to the Juvenile Assessment Center (“JAC”). During a search at the JAC, a small bag of marijuana was found hidden in D.F.’s hair. D.F. filed a motion to suppress, contending that this contraband was a product of the initial illegal seizure that occurred during the investigatory sweep, in violation of his Fourth Amendment rights. D.F. was charged with one count of possession of marijuana upon the grounds of a juvenile detention facility in violation of section 985.11, Florida Statutes (2010).

At the suppression hearing, the trial court heard testimony from the following individuals: Detective Fowler, who was present in the “eyeball” vehicle; Officer Narcisse, who participated in the sweep; and D.F. Based on this testimony, the trial court found that at least twenty police officers arrived at the complex in four or five unmarked and six marked police vehicles. The officers, who were wearing bulletproof vests that identified them as police, took “tactical” positions, approached and swarmed the complex with firearms drawn, and made verbal commands such as “police” and “stop.” Some of the officers approached a breezeway between two of the apartment buildings; D.F was seated on a nearby stairway of one of those buildings. Looking through binoculars, Detective Fowler, who was in a vehicle outside the complex, observed D.F. drop baggies of suspected marijuana to the ground. After the initial sweep, Detective Fowler recovered the suspected marijuana and arrested D.F. As to D.F., the trial court noted his testimony that he felt free to leave during the approach, but found that D.F. did not move until the officers instructed him to do so.

The trial court granted the motion to suppress, concluding that based on the totality of circumstances, a reasonable person in D.F.’s position would not have felt free to leave, that D.F. submitted to the police show of authority, and that the seizure was not supported by probable cause, reasonable suspicion, or subject to a warrant exception. As a result, the trial court suppressed the fruit of the illegal seizure. This appeal ensued.

II. ANALYSIS

The issue in this case is whether D.F. was seized as a result of the police’s show of authority at the time D.F. dropped the suspected contraband. As stated in United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” See also Caldwell v. State, 41 So.3d 188, 195 (Fla.2010). In addition, the person must submit to the officer’s show of authority. The determination whether a seizure has occurred by a show of authority requires the application of an objective test, and “not whether the citizen perceived that he was being ordered to restrict his movement.” California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); see also Caldwell, 41 So.3d at 195-97. This objective standard is not concerned with the officers’ subjective intent, but with what the officers’ “words and actions would have conveyed to a reasonable, innocent person.” Caldwell, 41 So.3d at 196-97; see also Michigan v. Chesternut, 486 U.S. 567, 574, 576, n. 7, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).

On appeal, the State contends that D.F. was not seized when he discarded the contraband because (1) there was no show of authority directed at D.F. — the officers did not direct their attention towards D.F. or make any commands to him, and (2) D.F. did not submit to the police show of authority. We disagree. First, the trial court’s factual findings are supported by competent, substantial evidence, and therefore cannot be overturned by this Court. Second, the trial court properly applied the law to those factual findings in determining that a reasonable person in D.F.’s position would not feel free to leave and that D.F. submitted to the police show of authority.

As to the State’s first argument, there is sufficient evidence to support the trial court’s finding that a reasonable person in D.F.’s position would believe that the police activity was directed towards him. The record reveals a display of police authority directed towards individuals in the immediate targeted area of the sweep. The officers, who were armed and wearing bullet-proof vests, surrounded the complex, approached the targeted area (of the building corner and breezeway) with guns drawn, announcing “police” and commanding certain persons not to move. It is undisputed that D.F. was sitting on a stairway near the targeted area when the officers made, as conceded by the State, this show of police authority. Detective Fowler testified that, in addition to the breezeway, one of the targeted areas was the corner of the building where D.F. was sitting. He stated that “the stairwell is basically right at the corner of that building!,] ... [t]hey were technically going towards his direction, but not to him[,] .... [the police activity was] not directed at him specifically!,] ... [and][t]hey were directed towards the breezeway and then west of [D.F.], [t]o the west side of the building, but not directly — directed directly towards him.” This evidence demonstrates that D.F. was in, or in close proximity to, the targeted area, and that a large number of officers were approaching this limited area of the building corner and breezeway.

Contrary to the State’s contention, there is no requirement that the officers’ attention during the approach be specifically directed toward D.F. or that the officers direct any command to him. See Hollinger v. State, 620 So.2d 1242, 1243 (Fla.1993) (holding that defendant submitted to show of authority during a drug sweep where “the officers did not actually tell anyone to ‘freeze’ and ... their attention was not specifically directed toward [defendant]”).

With respect to the second argument, the record contains sufficient evidence to support the trial court’s finding that D.F. submitted to the show of authority. It is undisputed that D.F. remained seated on the stairway throughout the incident. Although D.F. testified that he felt free to get up and walk off, he also testified that when he saw the officers he did not move because he did not want the officers to “feel” that he was “running for something or [had done] something,” that if the officers felt he was running, he would have been charged with something, and that he did not move after the officers said “get down” and “don’t move.” Thus, D.F. testified that he felt free to leave but that doing so would have resulted in him being charged. The fact that D.F. did not move supports the trial court’s finding that D.F. submitted to the show of police authority and his decision to remain seated was related to the officers’ presence. See Hollinger, 620 So.2d at 1243 (“A person who flees from a show of authority has not been seized, while a person who remains in place and submissive to the show of authority has been seized.”) (emphasis added).

As the Supreme Court stated in G.M. v. State, 19 So.3d 973, 980 (Fla.2009):

It strains the bounds of reason to conclude that under these circumstances, a reasonable person would believe that he or she was free to end the encounter with police and simply leave. See Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870, 64 L.Ed.2d 497. Moreover, it would be both dangerous and irresponsible for this Court to advise Florida citizens that they should feel free to simply ignore the officers, walk away, and refuse to interact with these officers under such circumstances. Instead, as a matter of safety to both the public and law enforcement officers, we conclude that a citizen who is aware of the police presence under the specific facts presented by this case is seized for Fourth Amendment purposes and should not attempt to walk away from the police or refuse to comply with lawful instructions.

As part of its second argument that D.F. did not submit to the police show of authority, the State contends that Detective Fowler’s testimony establishes that D.F. voluntarily discarded the contraband before the police arrived at the area where he was seated. A review of the testimony does not show that D.F. discarded the contraband before the arrival of the police. Detective Fowler testified that “Well, pri- or to [the officers] coming into my view walking past the respondent in the breezeway, I had my eye on the respondent and the other individual through binoculars. I observed Mr. F. from his left hand throw out what appeared to be some small baggies of marijuana to the ground.” (Emphasis added). However, when asked “at what point during the approach or not during the approach, if that’s the case, did he drop the baggies?” he answered: “Right as the officers coming from the south came into my view. So I don’t know if he saw them further away coming northbound, but as I saw them is when I saw him_” (Emphasis added). Detective Fowler also testified that the officers came from the north and the south parts of the complex and that he could not see the officers in the breezeway. Based on this testimony, we are not persuaded by the State’s contention that Detective Fowler established that D.F. discarded the contraband before the police arrived in the area such that we can reverse the trial court’s findings. We, therefore, conclude that the record contains competent, substantial evidence to support the trial court’s findings that a reasonable person in D.F.’s position would not have felt free to leave, and that D.F. submitted to the police officers’ show of authority.

Accordingly, based on its findings, the trial court correctly applied existing case law in concluding that D.F. was illegally seized and that the evidence obtained must be suppressed. In affirming the trial court’s order, we recognize that, as in Hol-linger, there is record evidence that might support a contrary view. See, e.g., State v. Newton, 737 So.2d 1252, 1252-53 (Fla. 5th DCA 1999) (“Where evidence involved at the suppression hearing supports both a finding of a consensual encounter and a seizure and where the trial judge makes a factual finding that a reasonable person under the circumstances would not feel that he was free to go, the trial court’s decision to suppress the evidence will be affirmed.”) (citing Hollinger, 620 So.2d at 1242). Because, however, there is sufficient evidence to support the trial court’s finding that a reasonable person in D.F.’s position would feel that he was not free to leave and that D.F. submitted to the show of authority, we are compelled to affirm.

Affirmed.

ROTHENBERG, J.

(dissent).

Based on the facts of this case, many of which were omitted in the majority opinion, I would reverse the trial court’s order suppressing the marijuana found on D.F.’s person after his lawful arrest, which was based on a separate cache of marijuana he abandoned prior to being seized.

Pursuant to a multi-agency investigation, several units responded to the Lincoln Fields apartment complex and entered the fenced-in complex from several different locations wearing bulletproof vests. Detective Fowler, a Miami-Dade police officer who was stationed on the opposite side of 20th Avenue across the street from the apartment complex, was assigned to serve as the “eyeball” of the operation. Detective Fowler testified that he was watching D.F. and another individual, who were seated on a stairway located near the corner of one of the apartment buildings and approximately six to eight feet from a breezeway between two apartment buildings as the officers entered through various openings into the complex. He testified that as the officers, who were coming from the south, came into his view (he was using binoculars), he saw D.F. throw down several baggies of marijuana. He continued to watch the officers as they walked right past D.F. as they headed into the breezeway. When Detective Fowler approached the breezeway, he noted that law enforcement had several individuals detained and seated on the ground, whereas D.F. and his companion were still sitting on the stairs and other residents and individuals had exited apartments or had come into the area to see what was going on. Detective Fowler retrieved the baggies of marijuana he witnessed D.F. discard, asked D.F. to come downstairs, and placed D.F. under arrest. While D.F. was being processed at the Juvenile Assessment Center, additional marijuana was found hidden in D.F.’s hair.

When asked at what point D.F. threw down the baggies of marijuana, Detective Fowler testified as follows:

A: ... The units that came in from the south park walked directly past [D.F.] along with another young male and went to the breezeway area.
Q: Okay. So they didn’t stop [D.F.] at that time....
A: No.
Q: ... [I]s that correct? And so they continued past him to the breezeway and what, if anything, happened next?
A: Well, prior to them coming into my view walking past [D.F.] in the breezeway, I had my eye on [D.F.] and the other individual through binoculars. I observed [D.F.] from his left hand throw out what appeared to be some small baggies of marijuana to the ground.
Q: Okay. Now at what point during the approach or not during the approach, if that’s the case, did he drop the baggies?
A: Right as the officers coming from the south came into my view. So I don’t know if he saw them further away coming northbound, but as I saw them is when I saw him....
Q: Okay. But they weren’t approaching him, right?
A: No, they actually walked right past him.
Q: And they weren’t going in his direction?
A: That stairwell is basically right at the corner of that building. They were technically going towards his direction, but not to him.
Q: Okay. But they passed him and went down the breezeway, right?
A: Yes.
Q: Was any of this police activity directed towards this individual?
A: They were directed towards the breezeway and then west of [D.F.]. To the west side of the building, but not directly — directed directly towards him.

D.F., who also testified, confirmed Detective Fowler’s testimony and explained that the police perform regular investigations at the apartment complex “[l]ike, Tuesdays and Thursdays or something ... [y]eah, every other day.” He testified that on this particular occasion the police ordered certain people to “get down.” But that these orders were not directed to him and he was free to leave.

Q: You said that the officers would go and stop certain people, right? ... But they didn’t stop you?
A: No. I was sitting in the stairwell. No — can’t really see me. I wasn’t walking nowhere. I was just sitting on the step.
Q: So you weren’t afraid that they were coming after you, right?
A: Yeah.
Q: Yeah — I’m sorry, you mean....
A: Like, I wasn’t afraid.
Q: Okay. And so you said you felt like you were free to go at that time, right?
A: Uh-huh.
Q: I’m sorry?
A: Yes

Despite this testimony, the trial court and the majority concluded that, prior to abandoning the marijuana, D.F. had been “seized” and thus the marijuana D.F. abandoned and the marijuana subsequently found on D.F.’s person must be suppressed as fruit of the illegal seizure. I respectfully disagree.

In determining whether a “seizure” has occurred the United States Supreme Court and our Florida Supreme Court have specifically held that the totality of all of the circumstances surrounding the specific encounter must be considered. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); G.M. v. State, 19 So.3d 973, 978 (Fla.2009). In California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the United States Supreme Court clarified that for a “seizure” to have occurred, either the person must be physically subdued, or he must submit to the officer’s assertion of authority. Although the United States Supreme Court recognized that the test to be applied when determining whether an individual has been seized is an objective one, it held that “[a] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,” and cautioned that one must read this requirement carefully because the test “says that a person has been seized ‘only if,’ not that he has been seized ‘whenever.’ ” Hodari, 499 U.S. at 627-28, 111 S.Ct. 1547.

Under the totality of the circumstances in this case, the evidence should not have been suppressed. Although there was clearly a show of authority — multiple officers in vests and with guns drawn — D.F. testified that this occurs “every other day”; the police activity and commands to get down on the ground were not directed towards him; the officers were not even aware that D.F., who was seated on the stairway several feet from the breezeway where the officers were directing their attention, was even present; the officers did not approach D.F. and in fact walked past him; D.F. did not submit to the commands to get down on the ground; he did not feel threatened and believed he was free to leave; and had he not thrown down the drugs as he saw the officers approaching, he would not have been involved at all. Under these circumstances, I would find that D.F. voluntarily abandoned the marijuana.

Additionally, the Florida Supreme Court in Hollinger v. State, 620 So.2d 1242, 1242 (Fla.1993), specifically recognized that where a person abandons contraband prior to being seized, the evidence should be admitted, citing to Hodari. In the instant case, D.F. abandoned the baggies of marijuana prior to the officers entering the breezeway, prior to any commands, and prior to the officers even being made aware of D.F.’s presence in the stairwell. Additionally, D.F. testified that none of the commands were directed towards him; he did not comply with the demands; and he felt that he, like the other residents and individuals that congregated in the area to watch the incident, was free to leave. Thus, D.F. did not, by his own admission, submit to the show of authority even after he voluntarily abandoned the contraband.

For these reasons, and based on the specific facts of this case, I would reverse the trial court’s order suppressing the drugs found abandoned by D.F. and subsequently found on his person after his arrest.

      . The testimony established that the officers came in from multiple gate entrances and surrounded the complex.

      . Detective Fowler testified that the officers were headed towards the targeted area, which was the corner of the building where D.F. was sitting, along with the breezeway between the two buildings. Detective Fowler testified that narcotics were sold and people congregated in this area.

      . The trial court's application of the law to the facts and its legal conclusions are subject to de novo review. See Pagan v. State, 830 So.2d 792, 806 (Fla.2002); State v. Lennon, 963 So.2d 765, 768 (Fla. 3d DCA 2007). However, the “determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record.” State v. Triana, 979 So.2d 1039, 1042 (Fla. 3d DCA 2008); see also Pagan, 830 So.2d at 806.

      . The State does not contest the trial court’s finding that the sweeps, which were regularly conducted for “investigatory purposes," were without individualized suspicion. The State also does not dispute that the sweep was a show of police authority.

      . The Hollinger opinions indicate that the police, who were conducting a drug sweep, announced “Sheriff’s Office” when they approached a group of people and that Hol-linger was standing approximately three feet away when he dropped a tissue. Hollinger, 620 So.2d at 1242 (stating that several members of the sheriff's department approached a group of people when an officer noticed Hollinger put his hand behind his back and drop a tissue, which contained cocaine rocks); State v. Hollinger, 596 So.2d 521, 522 (Fla. 5th DCA 1992) (stating that officer walked toward Hollinger who was standing approximately three feet from the group located at the north end of the parking lot).
      The State concedes that the facts of Hol-linger are "strikingly similar” to this case. It argues, however, that in this case, unlike Hol-linger, the record does not support the trial court's findings that (1) the officers made verbal commands, such as "police, stop” and otherwise ordered individuals to the ground; and (2) the officers swarmed the complex and prevented egress from the complex. The record includes testimony supporting the trial court’s findings: Officer Narcisse and D.F. testified that the officers made verbal commands such as "police,” “get down” and "don’t move.” In addition, Detective Fowler testified that at least twenty officers participated in the sweep coming from multiple entrances around the complex; Officer Narcisse testified that.the officers surrounded the complex; and D.F. testified that during a "blitz,” the officers surrounded the entrances. See L.C. v. State, 23 So.3d 1215, 1217 (Fla. 3d DCA 2009) (stating that all reasonable inferences and deductions from the evidence must be interpreted in a manner most favorable to the trial court’s ruling).

      . In G.M., 19 So.3d at 974, two undercover officers, who were in an unmarked car, activated the car's emergency lights, drove across the street, stopped three feet behind two parked cars and approached the car in which G.M was a passenger. The show of authority in the instant "sweep” case is similar to that of Hollinger, and decidedly more coercive than in G.M. See State v. Kasparian, 937 So.2d 1273, 1276 (Fla. 4th DCA 2006) (noting that it "is readily apparent [that] the show of force in Hollinger is far more coercive than two officers walking up to a parked car”).

      . The contraband discarded by D.F. at the apartment complex is not at issue in this case. D.F.’s motion to suppress only addressed the small bag of marijuana found in his hair during the search of D.F.’s person when he was transported to the JAC.

      . Approximately twenty officers were involved in the operation, however D.F. testified that he only saw eleven.


source: Caselaw Access Project

author: CIKLIN, J.

license: Public Domain

text:
    Kenneth HALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3647.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2012.
    Rehearing Denied Aug. 1, 2012.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Kenneth Hall challenges his conviction and sentence for first-degree murder and armed robbery. We affirm on all points and choose to address the merits with respect to two of his arguments on appeal. First, he argues that the trial court committed reversible error by failing to conduct a preliminary Nelson inquiry after he filed a pro se written motion to dismiss his appointed counsel. Second, he argues that the trial court erred in denying his request to instruct the jury on manslaughter by culpable negligence. We find that the first issue was not preserved, and while we agree that the trial court erred in denying Hall’s request for a jury instruction on manslaughter by culpable negligence, we find the error to be harmless.

On July 5, 2005, Benjamin Jones was shot and killed. Hall was arrested two days later when he tried to sell the victim’s cell phone to the victim’s girlfriend for $25. At the police station, after Hall waived his Miranda rights, Hall made several statements to the police. At first Hall denied having any involvement with the crime and claimed that he had purchased the victim’s cell phone from a “crack head” for $20 worth of drugs. The interrogating detective then informed Hall that he was under arrest for dealing in stolen property — a phone taken in a homicide. The detective also told Hall that his shoe prints matched the prints beside the body and that his fingerprints matched those found on a car at the scene.

Hall then admitted to being at the scene of the crime, but claimed that he was not the shooter, but only the lookout for “Danny Boy.” The detective told Hall that his story was not plausible and that the detective knew that Hall was guilty. He then told Hall that there was a “big difference” between an intentional killing and an accidental killing. Hall subsequently admitted to shooting Jones but claimed that he did not try to kill him. Hall had asked for money while his hand was on the trigger. He did not want to shoot, but had cocked the trigger back to let Jones know that he was serious. Hall further stated he had a chrome automatic and was by himself.

Hall was indicted for first-degree murder (premeditated and/or felony) and armed robbery. Hall was declared indigent, and in August 2005, the trial court appointed Evan Baron as Hall’s defense counsel. In September 2006, Hall filed a pro se “Motion to Dismiss Appointed Counsel” with the trial court. The motion was made on what appears to be a pre-printed form wherein Hall only filled in some blanks including his name, case number, the trial judge’s name, charges, his attorney’s name, and dates. The trial court never issued a ruling on this motion, and based on the record, the motion does not appear to have ever been scheduled for a hearing. Mr. Baron continued to represent Hall through trial and sentencing.

In April 2008, Hall filed a motion to suppress the statements that he made to the police immediately after his arrest. The trial court held a hearing on this motion in July 2008, and subsequently, issued an order denying Hall’s motion. Hall testified at the July hearing.

In June 2009, Hall’s case proceeded to trial. At the trial, the state introduced the video recording of Hall’s interrogation immediately after his arrest. Hall testified on his own behalf at the trial and claimed that he was not at the crime scene on the night in question and that he did not rob or shoot the victim. He testified that his admissions during the police interrogation were made because he was under a lot of pressure and his life was not going right.

The jury found Hall guilty as charged on both counts. The jury also specifically found that “during the course of the” robbery, Hall “actually infliet[ed] death to Benjamin Jones as a result of discharging a firearm in his actual possession.” Hall was sentenced to life in prison for the first-degree murder charge, and a concurrent twenty-five years for the armed robbery.

Hall first argues that the trial court committed reversible error by failing to conduct a preliminary Nelson inquiry. We do not decide this issue, however, because it was not preserved. Hall filed, pro se, a preprinted form motion to dismiss his court-appointed counsel, but Hall never obtained a ruling on that motion. “Absent fundamental error, an appeal may not be taken from a trial court’s judgment or order unless properly preserved. See § 924.051(3), Fla. Stat. (2006). To be preserved, the issue or legal argument must be raised and ruled on by the trial court.” Rhodes v. State, 986 So.2d 501, 513 (Fla.2008); see also LeRetilley v. Harris, 354 So.2d 1213, 1214 (Fla. 4th DCA 1978) (observing that “failure to secure a ruling on an objection waives it, unless the court deliberately and patently refuses to so rule”).

In Sheffield v. State, 769 So.2d 493 (Fla. 4th DCA 2000), we held that the appellant had failed to preserve the trial court’s purported error in failing to conduct a Nelson inquiry. We noted that the appellant “never called the motion to the court’s attention,” “never asked for a hearing on the motion,” and “proceeded to trial with the same public defender, without voicing any objection to the trial court.” Id. Likewise, here, Hall never called the motion to the trial court’s attention, never asked for a hearing on the motion, and proceeded to trial with the same court-appointed counsel without voicing any objection.

Furthermore, the record clearly indicates that Hall had ample opportunity to do so. Hall’s motion was filed nearly three years before his trial commenced. The record shows that subsequent to filing that motion, appointed counsel filed numerous discovery motions, conducted multiple depositions, and filed a motion to suppress statements. The record also includes transcripts from a hearing on that motion to suppress. Hall’s court-appointed counsel and Hall were both present at that hearing. Hall even testified at the motion to suppress hearing, yet Hall never raised any concerns about his appointed counsel at that hearing. The record also includes the trial transcripts and transcripts from Hall’s sentencing hearing. Again, Hall never raised any concern regarding his appointed counsel in either of those transcripts.

In fact, after the jury was selected but before the jury was sworn in, the trial court directly asked Hall if he had any concerns regarding the process and advised Hall to immediately inform the court if Hall had any issues with his trial counsel. The trial court concluded by asking Hall if he had any questions or concerns. Hall responded, “No.” Thus, there is no indication that Hall took any steps to bring his motion to the trial court’s attention. As such, Hall failed to preserve this issue for appellate review.

Hall next argues that the trial court erred by refusing to instruct the jurors on manslaughter by culpable negligence. We agree that the trial court erred, but find the error to be harmless.

The crime of manslaughter can be committed in one of three ways: by act, by procurement, or by culpable negligence. See § 782.07(1), Fla. Stat. (2005). The standard instruction for manslaughter requires the trial court to tailor the instruction “depending upon allegations and proof.” Fla. Std. Jury Instr. (Crim.) 7.7. The manslaughter instruction, however, must “be sufficiently complete and accurate so that it does not mislead the jury and negate the defendant’s theory of defense.” Bolin v. State, 8 So.3d 428, 431 (Fla. 2d DCA 2009) (citation and quotations marks omitted). As such, “[ujnless the evidence in the record unmistakably supports only the ... theory that the defendant’s act was voluntary, the trial court is obligated to instruct the jury on, and define, culpable negligence.” Harris v. State, 570 So.2d 397, 399 (Fla. 3d DCA 1990).

At the charge conference, defense counsel requested that the trial court instruct the jury on manslaughter by culpable negligence, but the trial court denied this request. The court gave two reasons for refusing to give the requested instruction: 1) the only indication that the shooting was accidental came from the detective’s suggestions to Hall during the interrogation, and the detective’s statements did not constitute evidence; and 2) Hall had “totally repudiated” the theory of an accidental shooting by taking the stand at trial and testifying that he was not present at the crime scene and had not shot the victim. The trial court’s ruling was erroneous.

First, the state introduced Hall’s statements into evidence in which Hall claimed that he shot the victim accidentally. At first Hall told the interrogating detective that someone else was the shooter, but after some persuasive questioning, Hall admitted that he shot the victim. Hall then told the detective:

I didn’t try to kill him, man, all I did was cock it back, man, I was like, give me your money, man. My hand was still on the trigger, I didn’t try to kill him though, I promise to God. I did not intentionally, I didn’t even want to shoot the gun. I just cocked it back because, just to let him know that I wasn’t playing.

Additionally, the state introduced statements that Hall made to a friend of his at the police station immediately after confessing to the police. Hall again stated that the shooting was not intentional.

Hall’s statements, which were offered against him by the state, constituted admissible hearsay evidence pursuant to section 90.803(18), Florida Statutes. Thus, the evidence on record does not “unmistakably support! ] only the ... theory that the defendant’s act was voluntary.” See Harris, 570 So.2d at 399.

In refusing to give the culpable negligence instruction, the trial court also reasoned that Hall had repudiated the statements he made to the police regarding an accidental shooting by taking the stand and claiming he did not rob or shoot the victim. The trial court’s reasoning was flawed, however, because to reach its conclusion, the trial court invaded the province of the jury. It was the jury’s responsibility to resolve the conflicting evidence between Hall’s statements to police and Hall’s trial testimony. See Longval v. State, 914 So.2d 1098, 1100 (Fla. 4th DCA 2005) (“In determining whether to give a requested instruction, the trial court should consider the evidence presented without weighing it, as the latter is a task for the jury.”).

Although the trial court erred in refusing to give the culpable negligence instruction, the error was harmless. See Pena v. State, 901 So.2d 781, 787 (Fla.2005) (“[I]f the trial court errs in failing to give a proper instruction on a lesser offense, and the lesser offense is more than two steps removed from the offense for which the defendant is convicted, then the error is subject to a harmless error analysis.”). The error was rendered harmless by the jury finding Hall guilty of armed robbery. Based on that verdict, all the state had to prove to convict Hall of first-degree murder was that Hall killed the victim during the commission of that robbery. In other words, Hall would be guilty of first-degree felony murder for shooting the victim during the commission of that robbery even if the shooting was entirely accidental. Because the trial court’s error was harmless, we affirm Hall’s conviction and sentence for first-degree murder.

We have considered Hall’s remaining point on appeal and reject it without further discussion.

Affirmed.

GROSS and LEVINE, JJ„ concur.

      . Nelson v. State, 21A So.2d 256 (Fla. 4th DCA 1973) (establishing procedure for handling complaint that appointed counsel is incompetent), adopted by Hardwick v. State, 521 So.2d 1071 (Fla.1988).

      . Ordinarily, we would expect defense counsel to ensure that a defendant's motion to discharge counsel is ruled upon by the trial court. In this case, however, there is no indication in the record that Hall’s counsel was ever served with or made aware of Hall’s motion. Hall’s unverified motion does not indicate that a copy of the motion was sent to his appointed counsel.


author: SUAREZ, J. RAMIREZ, J., SHEPHERD, J.,

text:
    Michelle JACOBSON and Aline Sklaire, as Successor Co-Trustees of the Jacob C. Sklaire Trust, Appellants, v. Joyce Glasel SKLAIRE, Appellee.
    No. 3D09-1528.
    District Court of Appeal of Florida, Third District.
    April 25, 2012.
    Rehearing Denied July 24, 2012.
    Wintter & Associates and Christopher Q. Wintter, Hollywood, for appellants.
    Shutts & Bowen and William Jay Palmer, Miami, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

Jacob Sklaire died in 2004. He created the Jacob Sklaire Trust, in which he gifted to his wife, Joyce [the Beneficiary], $475,000. At his death, the Trust contained approximately $636,000. Michelle and Aline, daughters, are Co-Trustees and remainder beneficiaries of the Jacob Sklaire Trust. After Jacob died, the Co-Trustees refused to distribute the gift to the Beneficiary, who then filed a complaint to compel distribution of the gift from the Trust. The Co-Trustees answered, asserting defenses of lack of capacity, undue influence and fraud, and counterclaimed for funds allegedly wrongfully taken by the Beneficiary from trust assets during Jacob’s life. The trial court denied the affirmative defenses and dismissed the counterclaim with prejudice. The Beneficiary prevailed at trial, and the trial court awarded her costs and fees from the Trust. The Co-Trustees appealed the final judgment and this Court affirmed.

The Co-Trustees thereafter agreed to an order taxing the Beneficiary’s costs against the Trust, and agreed to pay the Beneficiary’s attorney’s fees from the Trust. The Co-Trustees had, however, without court approval paid their own attorney’s fees out of the same Trust during the course of the litigation, counterclaim and appeal, leaving less than necessary to pay the Final Judgment and orders on attorney’s fees and costs. The Beneficiary filed motions to compel payment, and moved to hold the Co-Trustees personally liable for the amounts, asserting breach of fiduciary duty. The trial court awarded the Beneficiary’s appellate fees and costs against the Trust and deferred ruling on the Co-Trustees’ individual liability.

The bulk of the money that was improperly diverted from the Trust was ultimately repaid by the Co-Trustees’ original law firm, and by the Co-Trustees themselves. There were, however, insufficient funds left in the Trust to completely satisfy a balance of about $112,000 remaining from the original amounts ordered repaid, i.e., what was improperly removed from the Trust originally, plus attorney’s fees, plus post-judgment interest. Following an evi-dentiary hearing, the trial court rendered the order on appeal here, which found that the Co-Trustees in this breach of trust action were jointly and severally liable to the Beneficiary for attorney’s fees and costs pursuant to sections 737.627, and 736.1004, Florida Statutes (2011). Finding no error, we affirm.

Affirmed.

RAMIREZ, J., concurs.

RAMIREZ, J.,

(concurring).

I concur with the majority that we should affirm. I write only to address the dissent.

The trial court found that the eo-trus-tees in this case had improperly removed funds from the trust to themselves. The court therefore entered a personal judgment against them to return the funds. The dissent would have the appellee file a separate claim against the individuals, serve them with process and commence a new civil procedure, with an answer and a new trial, on a case pending since 2005. The problem with that logic is that Michelle Jacobson and Aline Sklaire did not acquire the funds from the trust through some independent tort. They acquired the funds because they, as co-trustees, transferred the money to themselves.

Our case is totally different from Fidelity-Philadelphia Trust Co. v. Ball, 208 So.2d 282 (Fla. 3d DCA 1968). There the trustees sued the defendants to recover upon a guarantee on a promissory note. The defendants then sought to counterclaim against the trustees, individually, even though the trustees were only before the court in their representative capacities. Here, the co-trustees were defendants charged with improperly withholding a distribution called for under the trust instrument. As a prevailing party, the beneficiary was entitled to attorney fees, and “the court in its discretion, may direct payment from a party’s interest, if any, in the trust or enter a judgment that may be satisfied from the other property of the party, or both.” § 736.1004(2) Fla. Stat. (2007). The co-trustees, in their pleadings, requested the trial court award fees under this section’s predecessor statute. As the trustees could expect to be awarded fees in defense of their duties under the trust instrument, they could also expect to be required to pay back the trust if they did not win and were found to have acted wrongly. Here, the very monies at issue were taken from the trust res. The reason the trustees appeal is because their efforts exhausted the trust res and could not satisfy the attorney fee award. This is not a separate cause of action for which service should be necessary.

It is not unprecedented to require participants in litigation who are not named parties to face the consequences of their conduct. In Visoly v. Security Pacific Credit Corp., 768 So.2d 482, 489 (Fla. 3d DCA 2000), we stated:

A “party” is defined under Florida law as any person who participates in litigation regardless of whether or not actually named in the pleadings:
[The] word party includes one concerned with, conducting, or taking part in any matter or proceeding, whether he is named or not. Fong Sik Leung v. Dulles, 226 F.2d 74, 81 (9th Cir.1955). ‘Parties include, not only those whose names appear upon the record, but all others who participate in the litigation by employing counsel, or by contributing towards the expenses thereof, or who, in any manner, have such control thereof as to be entitled to direct the course of [the] proceedings.... ’ Theller v. Hershey, 89 F. 575 (C.C.N.D.Cal.1898).
Lage v. Blanco, 521 So.2d 299, 300 (Fla. 3d DCA 1988) review denied, 531 So.2d 1354 (Fla.1988). See also, ECOS, Inc. v. Brinegar, 671 F.Supp. 381 (M.D.N.C.1987)(applicant for intervention who participates in proceedings may be treated as a party even though no formal order granting intervention has been entered); Florida Ass’n of Nurse Anesthetists v. Dep’t of Prof. Reg., 500 So.2d 324 (Fla. 1st DCA 1986)(association which filed response and memorandum of law in administrative proceedings was a “party” to proceedings); Kaiser Aerospace and Electronics Corp. v. Teledyne Indus., Inc., 229 B.R. 860 (S.D.Fla.1999)(a participant in a confirmed reorganization plan who has a direct interest in the subject matter is considered a “party”).
The above detailed facts clearly reflect the Visolys were “parties” in this litigation. By initiating numerous legal proceedings and filing countless documents in court, the Visolys personally, and through their counsel, clearly participated in the litigation and contributed to the expenses thereof. The record thus supports the trial court’s finding that the Visolys were “parties.” See Lage v. Blanco, 521 So.2d at 299.

Here, where Michelle Jacobson and Aline Sklaire were the beneficiaries of the remainder in the trust and participated in this litigation for over seven years, making unauthorized transfers to themselves from the trust, and consequently they were “parties” so as to make them individually liable.

Accordingly, I see no jurisdictional problem with the trial court’s order.

SHEPHERD, J.,

dissenting.

I respectfully dissent.

On June 25, 2005, Joyce Sklaire initiated suit against Michelle Jacobson and Aline Sklaire, as successor co-trustees of the Jacob C. Sklaire Trust, to enforce her right to payment of a $475,000 specific devise from the trust. Process was served on the co-trustees, in their representative capacity, through their attorney. Ultimately, judgment was entered in favor of Joyce Sklaire, followed by an award of attorney’s fees and costs. Unable to satisfy the full award of attorney’s fees and costs from the funds remaining in the trust, Joyce Sklaire filed her Motion to Determine Individual Liability of Co-Trustees for Court Ordered Fees and Motion to Impose Personal Liability for Tortious Conduct. The trial court granted the motion, finding a breach of fiduciary duty, and entered an order holding Michelle Jacobson and Aline Sklaire jointly and severally liable for the attorney’s fees and costs.

Michelle Jacobson and Aline Sklaire, in their personal capacity, contest the jurisdiction of the trial court to enter the order under review because they were not personally served. I find their point well-taken. In Fidelity-Philadelphia Trust Co. v. Ball, 208 So.2d 282, 285 (Fla. 3d DCA 1968), we stated:

It is elemental that [a personal judgment against the trustees] may not be entered in the absence of personal service and an opportunity to be heard. The fact that the appellants] have submitted themselves as trustees to the jurisdiction of the Florida courts does not amount to a submission of themselves to the jurisdiction of the court for the purpose of adjudicating claims against them personally.

Unlike the concurrence, I find the facts of Fidelity-Philadelphia Trust Co. to be indistinguishable from the facts of the case before us. Both are actions for breach of trust. In Fidelity-Philadelphia Trust Co., a guardian ad litem alleged the co-trustees of a trust breached their obligations to certain minor beneficiaries of the trust by engaging in a loan transaction, which was “unauthorized, reckless and in wanton disregard of the rights of the minors,” causing a loss to the children in the sum of $165,000. Id. at 283. The guardian additionally prayed for a judgment against the trustees individually - for attorney’s fees, costs, and punitive damages. The case before us arises out of an order imposing individual liability on the co-trustees of a trust for breach of trust by paying the fees of trust counsel without required court approval to the detriment of recovery by the beneficiary of her own legal fees and costs incurred while litigating (successfully) against the same counsel. The principle enunciated by this Court in Fidelity-Philadelphia Trust Co. is as applicable to the case before us as it was there.

The concurrence also asserts our decision in Visoly v. Security Pacific Credit Corp., 768 So.2d 482 (Fla. 3d DCA 2000), requires a contrary result. The concurrence is incorrect. Visoly is a sanction case arising out of a mortgage foreclosure. Despite the fact the Visolys filed a counterclaim in the foreclosure action, they urged — in a sixth appeal before this Court — they were not “named parties” in the action and the trial court therefore lacked jurisdiction over them for the purpose of awarding sanctions against them under section 57.105 of the Florida Statutes (1999). We, of course, found no merit to the claim, affirmed the sanction order, and added an award of appellate attorney’s fees against the Visolys and their counsel for good measure. Id. at 489. Visoly is of no assistance to the concurrence.

The only other authority cited by the concurrence is section 736.1004(2) of the Florida Trust Code. It reads as follows:

(2) When awarding taxable costs under this section, including attorney fees and guardian ad litem fees, the court, in its discretion, may direct payment from a party’s interest, if any, in the trust or enter a judgment that may be satisfied from other property of the party, or both.

Carefully considered, this provision provides the concurrence no assistance in answering the question raised by this dissent: whether a trustee brought into a case in her individual capacity must be served with process.

Fidelity-Philadelphia Trust Co. makes it unmistakably clear a trial court is without jurisdiction to enter a personal judgment against an individual sued in her capacity as a co-trustee absent either consent or personal service upon the individual. We should follow our precedent.

I would reverse the order on appeal.

      . Jacobson v. Sklaire, 985 So.2d 1224 (Fla. 3d DCA 2008).

      . § 737.627, Repealed by Laws 2006, c.2006-217, which related to costs and attorneys’ fees, was derived from Laws 1993, c. 93-257, § 16 and Laws 2003, c.2003-154, § 19. See, now, Fla. Stat. § 736.1004.

      . § 736.1004 Fla. Stat. (2011):
      (l)(a) In all actions for breach of fiduciary duty or challenging the exercise of, or failure to exercise, a trustee's powers; and
      (b) In proceedings arising under ss. 736.0410-736.0417, the court shall award taxable costs as in chancery actions, including attorney fees and guardian ad litem fees.
      (2) When awarding taxable costs under this section, including attorney fees and guardian ad litem fees, the court, in its discretion, may direct payment from a party’s interest, if any, in the trust or enter a judgment that may be satisfied from other property of the party, or both.


author: SHEPHERD, J.

text:
    MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, etc., Appellant, v. Carlos BERMUDEZ, et al., Appellees.
    Nos. 3D12-842, 3D12-871.
    District Court of Appeal of Florida, Third District.
    May 23, 2012.
    Rehearing Denied July 19, 2012.
    Bernardo Roman III, for petitioner.
    Lewis Tein, and Guy A. Lewis, Michael R. Tein and Susan Capote; Ramon M. Rodriguez, for respondents.
    Before WELLS, C.J., and SHEPHERD and ROTHENBERG, JJ.
   SHEPHERD, J.

The Miccosukee Tribe of Indians of Florida, a federally recognized Indian Tribe, petitions this Court for certiorari relief from an order denying the Tribe’s Motion for Protective Order and to Quash Subpoena for Deposition issued to Tribal Officer and General Counsel Bernardo Roman III, Esquire. We deny the petition.

The petition in this case emanates from a contentious series of post-judgment proceedings in execution on a $3,177 million dollar judgment rendered on August 5, 2009, against Miccosukee Tribe members, Tammy Gwen Billie and Jimmie Bert, arising out of a tragic automobile accident, which occurred on the Tamiami Trail in western Miami-Dade County ten years earlier. Gloria Liliana Bermudez died in the crash, and her husband, Carlos Bermu-dez, and their minor son, Matthew Bermu-dez, were injured. There have been no fewer than twenty post-judgment motions for sanctions since the judgment was rendered, including criminal contempt, slung by the parties’ counsel against each other under the guise of the parties themselves. The plaintiffs have yet to realize any recovery on the judgment. The Tribal defendants assert penury.

The slice of this unseemly clash which appears before us arises from a sua sponte order by the trial court to Lewis Tein, PL, most prominently Michael Tein, to justify a statement he made to the trial court under oath on August 30, 2011, that the Miccosukee Tribe did not pay for the firm’s services in the defense of the tribe members in the wrongful death case. This order, in turn, was animated by an earlier order entered by the trial judge, awarding $3500 in attorney fees against Lewis Tein, PL, pursuant to section 57.105(2) of the Florida Statutes (2011), for discovery abuse and delay for first objecting to a post-judgment execution discovery request and, after the objections were overruled, responding that there were no such documents. See First Healthcare Corp. v. Hamilton, 740 So.2d 1189, 1193 n. 2 (Fla. 4th DCA 1999), disapproved of on other grounds by Fla. Convalescent Ctrs. v. Somberg, 840 So.2d 998 (Fla.2003) (finding such conduct to constitute discovery abuse and improper delaying tactics) (citing Greenleaf v. Amerada Hess Corp., 626 So.2d 263, 264 n. 1 (Fla. 4th DCA 1993)). The court in the earlier order expressly stated the amount of the sanction would have been “significantly different” — the plaintiffs claimed they incurred $150,000 in unnecessary attorney fees and costs litigating the subject matter of the request for production over a two-year span — if “Mr. Lewis and/or Mr. Tein [were] in fact representing the Miccosukee Tribe in attempting to avoid paying this judgment,” and the Tribe “was paying for [the] representation” of the defendants.

A few days after the trial court sanction order was entered against Lewis Tein, PL, Miccosukee officer and Tribal counsel, Bernardo Roman III, for reasons mystifying to us — plaintiffs’ counsel made clear in these post-judgment proceedings he is pursuing theories he believes would make the Tribe liable to satisfy the judgment as well — supplied plaintiffs’ counsel with copies of checks drawn on the Miccosukee Tribe General Account payable to Lewis Tein, PL, in the amount of $3,111,567.63, for the defense of Tammy Gwen Billie and Jimmie Bert in the Bermudez wrongful death and personal injury litigation, from May 2005 through April 2010. At oral argument on this petition, Mr. Roman represented that the Miccosukee Tribe had duly authorized him, as their counsel, to deliver the checks to plaintiffs’ counsel and that indeed, the Tribe itself paid Lewis Tein, PL’s, fees and costs for the defense of Tammy Gwen Billie and Jimmie Bert. In sharp contrast to Mr. Roman’s representations, Lewis Tein, PL, has placed in the record the affidavits of Interim Micco-sukee Tribe Chairman (1989-2009), Billy Cypress, and former Miccosukee Tribe Accounting Supervisor/Finance Officer (1990-2009), Julio Martinez, averring that Tammy Billie and Jimmie Bert, together with his wife, Louise Bert, “were solely responsible for Lewis Tein’s legal fees,” and “[i]n all cases, those payments were either (a) charged against their distributions on a current basis, or (b) loans from the Tribe to them against future distributions.”

Thankfully, it is not our job to decide the truth of the statements made, or determine whether Mr. Tein committed perjury, or Mr. Lewis or Lewis Tein, PL, are guilty of related misdeeds. It is our task to determine only whether the trial court departed from the essential requirements of law by denying Mr. Roman’s Motion for Protective Order and to Quash [His] Subpoena for Deposition. This is a case in which the facts easily drive the conclusion that there is no departure.

It is true, as Bernardo Roman III, argues on his own behalf, the Tribe has sovereign immunity from suit, and this extends to protect the Tribe from complying with subpoenas. See United States v. James, 980 F.2d 1314, 1319 (9th Cir.1992). However, Tribal members in their individual capacity have no sovereign immunity. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). At such a deposition, the witness can refuse to answer questions, for example, about Tribal practices and policies and, if these were the only plausible reasons for taking the deposition, a court might deny a motion to compel attendance of a witness altogether. Knox v. U.S. Dep’t of the Interior, No. 4:09-CV-162-BLW, 2012 WL 465585, at *1 (D.Idaho Feb. 13, 2012). In this case, however, Mr. Roman offers no plausible argument that the inquiry desired to be made of him— solely whether Lewis Tein, PL’s, legal bills were paid by the Tribe or the individual defendants — is in any way related to Tribe practices and policies, and thus sufficient to raise the specter of immunity.

Mr. Roman seeks to render Knox inapplicable to our case on the ground that in Knox, the Shoshone Bannock Tribe asked and were granted the right to file an amicus brief accompanied by declarations of three of their tribal members, triggering the order authorizing a deposition limited to the topics covered in the declarations, whereas the activity of the Tribe in this case was extra record activity. We are not persuaded by the distinction. Mr. Roman has made plain that his duly authorized act of providing the checks to plaintiffs’ counsel was intended to influence ongoing litigation in our state courts. With the Tribe’s blessing, he has elected to insert himself into the post-judgment discovery contretemps between the parties and their counsel. An election to participate in litigation is not a one-way street. Mr. Roman cannot seek to participate in or influence litigation in another sovereign entity, the State of Florida, then retreat into his own sovereign when it suits him.

Similarly, neither Cypress v. Tamiami Partners, Ltd., 662 So.2d 1292 (Fla. 3d DCA 1995), nor Miccosukee Tribe of Indians v. Napoleoni, 890 So.2d 1152 (Fla. 1st DCA 2004), offer any succor to Mr. Roman in this case. Although we quashed the depositions of two Miccosukee Tribe officials in Cypress, the opinion does not explain the factual basis for our decision. Cypress, 662 So.2d at 1292. As we have demonstrated, the application of Tribal sovereignty is a fact-specific inquiry. Napoleoni, on the other hand, is factually distinguishable from the ease before us. In Napoleoni, Claudia Napoleoni was injured at the Miccosukee Resort and Gaming Convention Center, which was wholly owned by the Tribe. Napoleoni, 890 So.2d at 1158. The Tribe passed a resolution a few years before Ms. Napoleoni injured herself, establishing its own workers’ compensation benefit system and explicitly rejecting the State of Florida workers’ compensation laws. Id. Despite this resolution, Ms. Napoleoni filed a workers’ compensation claim for benefits with the Florida Division of Administrative Hearings. Id. The Tribe filed a petition for certiorari, seeking review of a non-final discovery order requiring a tribal official to appear for deposition, and a writ of prohibition barring any further proceedings before the Division of Administrative Hearings. Id. Ms. Napoleoni countered that the Tribe had waived tribal immunity pursuant to section 440.04 of the Florida Statutes by purchasing a workers’ compensation insurance policy in 1974. The First District Court of Appeal granted both writs. The Court stated:

[T]he Tribe and its agents are immune from suit in federal or state court without (1) a clear, explicit, and unmistakable waiver of tribal sovereign immunity, or (2) a congressional abrogation of that immunity.
Even assuming the Tribe did purchase a workers’ compensation policy in 1974, claimant’s assertion that the purchase of such a policy is an explicit waiver of tribal immunity is without merit. The Tribe explicitly rejected waiver of this immunity by its 1998 resolution establishing its own tribal workers’ benefits system. Therefore, the [Division of Administrative Hearings] had no jurisdiction.

Id. at 1153-54 (emphasis added) (citations omitted). In Napoleoni, the waiver was not “clear, explicit and unmistakable.” In contrast, there can be no mistake about what occurred in our case. Mr. Roman, in an act approved by the Tribe, admittedly, has purposefully sought to participate in or influence a state court proceeding. We can conceive of no motive for the Tribe or Mr. Roman to have done so. The only plausible legal conclusion that can be drawn from the actions of Mr. Roman and the Tribe in this case is the one made by the trial court — the Tribe’s and Mr. Roman’s conduct constituted a clear, explicit, and unmistakable waiver of the Tribe’s claim to sovereign immunity.

For these reasons, we deny the petition for writ of certiorari.

      . The allegedly offending statement made by Mr. Tein is as follows:
      Our client is not the Miccosukee Tribe. The Miccosukee Tribe is not a party in this case.
      The affidavit that Mr. Rodriguez gave you is absolutely true. They have been responsible for — the Defendants have been responsible for our fees and they ... at that time they had been paying our fees.
      By January [2011] they had run up ... a receivable. They hadn’t paid since, my recollection is, August of 2010. And we haven't been paid anything since August of 2010.
      Lewis Tein, PL, contends the trial judge harbored a misunderstanding of the statement made by Mr. Tein at the hearing. The trial court since has indicated, upon review of the portion of the transcript containing the statement, that it "thought there was more than there was.” At the same time, the trial court also reminded counsel of his statement made at the conclusion of the August 30, 2011, hearing in the presence of Mr. Lewis and Mr. Tein that "[t]hey [Lewis and Tein] stated they weren’t paid by the Miccosukee Indians,” a statement which, if not true, was not corrected by either Mr. Lewis or Mr. Tein at the time.

      . Two arguments were made — first, the checks were provided because Lewis Tein, PL, was committing a fraud on the court by asserting it was not paid by the Tribe, and, second, for "the protection of the individual tribal members involved in the case.” Upon examination at oral argument, Mr. Roman conceded neither of these reasons "afford any value or gain for the Tribe.”


author: PER CURIAM.

text:
    Chad R. VANETTEN (former husband), Appellant, v. Nina C. VANETTEN (former wife), Appellee.
    No. 1D11-893.
    District Court of Appeal of Florida, First District.
    May 24, 2012.
    Rehearing Denied July 24, 2012.

      Chad R. VanEtten, pro se, Appellant.
    Gary Baker of Baker & Rhodes, Callahan, for Appellee.
   PER CURIAM.

Chad R. VanEtten seeks review of certain aspects of a final judgment dissolving his marriage to Nina C. VanEtten. He argues that the trial court erred in failing to distribute the parties’ marital assets and liabilities equally. Because the trial court failed to explain the unequal distribution, we agree. We find no reversible error as to the remaining issues. Accordingly, we reverse as to the equitable distribution scheme, remand for reconsideration of that portion of the final judgment, and affirm in all other respects.

When distributing the parties’ marital assets and liabilities in an action for dissolution of marriage, the trial court “must begin with the premise that the distribution should be equal.” § 61.075(1), Fla. Stat. (2009). An unequal distribution is permissible if the trial court determines, based on all relevant factors, that such a distribution is justified. Id. Section 61.075(1) lists ten factors that must be considered when making an unequal distribution, and this Court has held that an unequal distribution must be accompanied by findings explaining the decision. Maddox v. Maddox, 750 So.2d 693, 694 (Fla. 1st DCA 2000); see also § 61.075(3)(d) (requiring the trial court, in establishing an equitable distribution scheme, to make “[a]ny other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities”). Further, as to each asset or liability at issue, the trial court is ordinarily required to assign a value, identify whether the asset or liability is marital or nonmarital, and determine which spouse will be entitled to retain ownership or required to assume responsibility. § 61.075(3); Wolf v. Wolf, 979 So.2d 1123, 1125 (Fla. 2d DCA 2008). However, a trial court’s ability to do so “is only as good as the evidence offered.” Jones v. Jones, 51 So.3d 547, 550 (Fla. 1st DCA 2010). When the parties fail to provide evidence concerning the value of a specific asset, “the trial court is entitled to presume that asset is not of significant value.” Wolf, 979 So.2d at 1125.

The trial court did not establish a value for any of the parties’ assets other than the former husband’s Thrift Savings Plan, which it evenly divided. Although the trial court established values for the parties’ marital liabilities, it did not evenly distribute those liabilities. Because the parties failed to present any clear evidence concerning the value of their assets other than the Thrift Savings Plan, we find no error in the trial court’s decision not to assign values to those assets and cannot say that the distribution of marital assets was unequal in itself. However, the unequal assignment of the parties’ marital liabilities renders the entire distribution scheme out of balance. Because the trial court did not explain the basis for the unequal distribution, we must reverse and remand for the trial court either to equally divide the parties’ marital assets and liabilities or to provide findings justifying the unequal distribution. In all other respects, the final judgment is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

DAVIS, THOMAS, and RAY, JJ„ concur.


author: BENTON, C.J. MARSTILLER, J.,

text:
    Rhona SILVER, Appellant, v. DUVAL COUNTY SCHOOL BOARD, Appellee.
    No. 1D11-2847.
    District Court of Appeal of Florida, First District.
    June 1, 2012.
    Rehearing Denied July 26, 2012.

      Wm. J. Sheppard and D. Gray Thomas of Sheppard, White, Thomas & Kachergus, P.A., Jacksonville, for Appellant.
    Michael B. Wedner, Deputy General Counsel, and David J. D’Agata, Assistant General Counsel, Jacksonville, for Appel-lee.
   BENTON, C.J.

A 31-year employee of the Duval County School Board (School Board), Rhona Silver taught autistic and other special education students until she was arrested at school on a felony abuse charge for restraining a child in the classroom. She has by now been completely exonerated, but she appeals the final order of the School Board insofar as it denied her motion for reimbursement of legal fees, citing section 1012.26, Florida Statutes (2008), which provides in part: “The district school board shall provide for reimbursement of reasonable expenses for legal services for officers and employees of school boards who are charged with civil or criminal actions arising out of and in the course of the performance of assigned duties and responsibilities upon successful defense by the employee or officer.” We reverse and remand for further proceedings.

After her March 17, 2009 arrest (based on child abuse alleged to have occurred in the classroom during September of 2008), the School Board issued a Notice of Termination of her employment explicitly predicated on the criminal arrest. Thereupon Ms. Silver retained a criminal lawyer, and secured pretrial release. The Notice of Termination issued on April 13, 2009.

As a result of the Notice of Termination, Ms. Silver sought and received a formal administrative hearing at which she successfully challenged her termination. After hearing the witnesses to events in September of 2008, the administrative law judge issued a recommended order on January 10, 2011, recommending that the School Board dismiss the Notice of Termination and reinstate Ms. Silver to her position as a contract employee, with back pay and benefits.

Three days later, on January 13, 2011, the state attorney’s office prepared a Disposition Statement, which specifically referenced the administrative law judge’s findings and the conclusion that the School Board failed to prove by a preponderance of the evidence that Ms. Silver committed the alleged acts of abuse. On January 18, 2011, the state attorney filed a Disposition Notice “declining] to prosecute this defendant for these charges.” The state attorney’s office did not even await School Board action.

Ms. Silver then filed with the School Board, on January 25, 2011, a motion for reimbursement of legal expenses pursuant to section 1012.26. The School Board denied the motion, ruling that it was not required to reimburse Ms. Silver’s legal expenses pursuant to section 1012.26 because the “legal fees were incurred in an administrative proceeding and not in a criminal or civil proceeding.” But Ms. Silver’s position is that she is entitled to be reimbursed — not because her lawyer represented her administratively — but because everything her lawyer did was part of what ultimately proved a successful defense to criminal charges.

In her initial brief, Ms. Silver argues that the “discovery, testimony and trial litigation in the administrative action was identical to that necessary to the defense of the criminal action” and that, in defending the criminal charge, her counsel strategically waived her speedy trial rights in criminal court in exchange for the state attorney’s agreement to suspend prosecution and determine whether to proceed with the criminal prosecution based on the outcome of the administrative hearing.

The administrative law judge found that the state attorney “deferred any decision on whether to proceed on the criminal allegations pending the completion of this administrative matter.” During oral argument before this court, counsel for the School Board acknowledged that the School Board was aware that the state attorney was not going to proceed until the administrative process was complete, and agreed he did not question the representation of Ms. Silver’s counsel regarding the existence of an agreement with the state attorney. Counsel for Ms. Silver, however, conceded that the details of his agreement with the state attorney were not in writing, and the record on appeal does not establish the details of the agreement.

We therefore reverse the denial of Ms. Silver’s motion for reimbursement of legal expenses and remand for determination of the existence and terms of the agreement with the state attorney. If Ms. Silver establishes an agreement with the state attorney that further prosecution of the criminal charge was dependent on the outcome of the administrative proceeding, Ms. Silver is entitled to reimbursement “of reasonable expenses for legal services” pursuant to section 1012.26, because she was “charged with ... criminal actions arising out of and in the course of the performance of assigned duties,” to the extent that the legal services, although occurring in administrative proceedings, helped with her criminal defense.

What was necessary to defend the criminal charges overlaps with what was needed to defend at the hearing before the administrative law judge, presumably very substantially. And the result of the administrative proceeding was crucial. But it is not clear on this record that every single thing done in the administrative proceedings was reasonable and necessary. On remand, the proper procedure is to take evidence as to the reasonableness and extent of legal work performed in order to secure the dismissal of criminal charges, before making any award of attorney fees, unless the parties can agree on an amount.

Reversed and remanded for further proceedings.

SWANSON, J., concurs;

MARSTILLER, J., concurs with opinion.

MARSTILLER, J.,

concurring.

I concur in the decision to reverse the order denying Ms. Silver’s request for attorney’s fees because there is no evidence in the record from which to determine if— and why — her success in defending against the criminal charge depended on the legal work done on her behalf in the employment termination administrative proceeding.

I write only to clarify two things. First, section 1012.26, Florida Statutes, by its terms, does not require a school district to reimburse an employee for legal expenses incurred in successfully defending an employment termination (or suspension) action in the administrative forum. See Werthman v. Sch. Bd. of Seminole County, Fla., 599 So.2d 220, 222 (Fla. 5th DCA 1992) (holding that an employment termination proceeding is neither a civil nor criminal action under section 1012.26 such that a school district must reimburse employee’s legal expenses after successful defense, and that the only statutory remedies in that instance are reinstatement and back pay). Second, we do not hold that whenever administrative and criminal actions arise from the same set of facts, and an employee successfully defends herself against both, a school board must pay the employee’s legal expenses incurred in the administrative action. Indeed, at oral argument counsel for the School Board advised the court that criminal charges and administrative actions frequently arise from the same circumstances.

Ms. Silver’s entitlement to reimbursement of her legal expenses under section 1012.26 ultimately will turn on the unique facts of this case. Here, as the majority opinion points out, the School Board explicitly based its decision to fire Ms. Silver on the criminal arrest. Notably, the School Board did not conduct its own investigation into Ms. Silver’s alleged misconduct, but instead relied solely on the investigation performed by the Jacksonville Sheriffs Office — the same investigation that led to her arrest. Thus, the criminal and administrative actions appear not simply related, but intertwined. The additional evidence taking and fact finding on remand should focus on that issue.

       During the administrative hearing, an investigating officer from the Jacksonville Sheriff's Office testified that his understanding, based on talking to the assistant state attorney, was that "they're waiting for the results of this hearing before they proceed.”


author: POLEN, J.

text:
    Gafoor JAFFER and Nina Jaffer, Appellants, v. CHASE HOME FINANCE LLC, as successor by merger to Chase Manhattan Mortgage Corporation, Appellee.
    No. 4D11-1572.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Rehearing Denied Aug. 1, 2012.
    Joann M. Hennessey of Civil Justice Advocates, PL, Fort Lauderdale, for appellants.
    Rossana Navarro and Dennis M. Campbell of Campbell Law Firm PLLC, Coral Gables, for appellee.
   POLEN, J.

Appellants, Gafoor Jaffer and Nina Jaf-fer, appeal the trial court’s order denying their amended motion to vacate default, set aside summary judgment, and cancel sale in an underlying foreclosure action. In support of its case, Chase Home Finance, LLC (“Chase”) filed affidavits signed by representatives of the company. Later, Chase filed a letter with the trial court, admitting that some of its affidavits may have been signed by individuals without personal knowledge of the facts therein. As such, we remand this case to the trial court, limited strictly to the determination of whether the affidavits filed in this case were based on the personal knowledge of the affiant.

Chase filed a mortgage foreclosure complaint and an amended mortgage foreclosure complaint against the Jaffers. The amended complaint states that Chase is the holder of the note and mortgage and is entitled to enforce the same against the property owner, the Jaffers. The Jaffers defaulted and Chase declared the entire amount on the note due. In anticipation of a hearing on its motion for summary judgment in the course of this foreclosure case, Chase filed an affidavit as to amounts due and owing. The affiant was Mary Cook, employee of Chase. Cook averred as to Chase’s practice regarding its books, records, and documents and stated that she had personal knowledge of the sums of money owed by the Jaffers. After the summary judgment hearing, the court entered final summary judgment of mortgage foreclosure in favor of Chase, making the unpaid principal balance, interest, late charges, miscellaneous fees and expenses, and taxes due. Public sale was set for September 1, 2010, at 10:00 a.m.

Chase filed a motion to cancel foreclosure sale, attaching a letter stating that “[i]t has come to the attention of Chase ... that in some cases employees in Chase’s mortgage foreclosure operations may have signed affidavits about loan documents on the basis of file reviews done by other personnel — without the signer personally having reviewed those loan files.” The court granted Chase’s motion to cancel the sale. The Jaffers filed a motion to vacate default, set aside summary judgment and cancel sale, pursuant to Florida Rule of Civil Procedure 1.540(3)-(5). The trial court entered an order denying the Jaffers’ motion. This appeal timely followed.

The Jaffers argue that the affidavit in support of Chase’s motion for summary judgment was never confirmed as valid after Chase placed the authenticity of its affidavits at issue in its motion to cancel foreclosure sale. Therefore, the Jaffers contend that the trial court erred in its failure to set aside default and summary judgment when Chase placed its own underlying evidence into question.

“Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 172 (Fla. 4th DCA 2012). Here, Chase filed a motion to cancel foreclosure sale, stating that it filed an affidavit of indebtedness in support of its motion for summary judgment and that it accurately reflected the Jaffers’ debt. However, Chase also submitted a letter, providing that it was internally investigating the validity of its affidavits, as personnel without proper personal knowledge had signed such documents.

“Under rule 1.510(e), Florida Rules of Civil Procedure, affidavits must be based on personal knowledge, set forth facts which would be admissible in evidence, and show ‘the affiant is competent to testify to the matters stated therein.’ ” Coleman v. Grandma’s Place, Inc., 63 So.3d 929, 932 (Fla. 4th DCA 2011).

Chase’s motion for summary judgment states that the Jaffers are in default and that all of their outstanding expenses are detailed in an affidavit as to attorney’s fees and costs. The affidavit as to amounts due and owing was later filed in support of the motion for final summary judgment. The Jaffers filed an affidavit in which they admitted late payments, return of payments, and forbearance, but they never actually admitted default and a complete inability to continue making mortgage payments. Therefore, the only affidavit on the record which actually explains the Jaffers’ indebtedness is an affidavit by Chase, which may or may not be in compliance with Florida Rule of Civil Procedure 1.510(e), based on the letter filed with the court by Chase.

Due to the possibility that Chase’s affidavits were signed by improper personnel, we remand this case and direct the trial court to limit its considerations to whether the affidavits filed in this case were based on the personal knowledge of the affiants.

Reversed and Remanded.

HAZOURI and LEVINE, JJ., concur.

      . In two separately filed affidavits, Mary Cook was referred to in two different positions. In one, she was the assistant secretary, and in the other, she was referred to as vice president.


author: HAZOURI, J.

text:
    Gregory HADDOX, Appellant, v. Jean McCLEAN; United Roofing Systems, LLC, a Florida Limited Liability Company; United Roofing Enterprises, LLC, a Florida Limited Liability Company; URS General Contracting, a Florida Limited Liability Company; and Lonnie Brodock, Appellees.
    No. 4D11-3014.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Rehearing Denied Aug. 6, 2012.

      David L. Gorman of David L. Gorman, P.A., North Palm Beach, for appellant.
    John J.R. Skrandel of Jerome F. Skran-del, P.A., North Palm Beach, for appellee Jean McClean.
   HAZOURI, J.

Gregory Haddox appeals from the denial of his motion for relief from judgment entered in favor of Jean McClean. We reverse.

McClean filed suit against Haddox, d/b/a United Roofing Systems and United Roofing Systems, LLC. In her complaint McClean alleged that she entered into a contract with United Roofing Systems to replace her roof for a contract price of $54,000 and that after the roof was completed and she paid the entire sum, Lido Holdings, Inc., d/b/a Campany Roofing, who actually performed the work on the roof, filed a mechanic’s lien on her home in the amount of $26,109.41. McClean’s complaint consisted of two counts, one for breach of contract and one for violation of Florida’s Deceptive and Unfair Trade Practices Acts.

Summary judgment was entered on behalf of McClean for the amount of the lien plus court costs of $761.00 for a total of $26,870.41. In addition to this final judgment McClean obtained a final judgment for attorney’s fees of $7,228.50 plus costs of $751.00.

In Haddox’s motion for relief from judgment he asserted that he was not given notice of the motion for summary judgment and that there was no basis for the entry of the judgment because Lido Holdings’ mechanic’s lien was invalid. In fact, McClean has never had a mechanic’s lien judgment entered against her and has never paid the $26,109.41 allegedly owed to Lido Holdings. The parties agree that the mechanic’s lien was invalid. Lido Holdings has since dropped its claim against McClean and there are no claimed defects in the work performed on McClean’s roof.

Based upon these agreed-to facts we need not address the issue of lack of notice. We simply hold that since McClean was not required to pay any additional monies and there were no defects in the roofing work, McClean did not sustain any damages and there is no basis for the judgments entered against Haddox. Therefore, we reverse and remand to the trial court for entry of a judgment in favor of Haddox.

MAY, C.J., and GERBER, J., concur.


author: SCHWARTZ, Senior Judge.

text:
    ROYAL CARIBBEAN CRUISES, LTD., Appellant, v. Steven PAVONE, Appellee.
    Nos. 3D10-2495, 3D10-2670, 3D10-3205.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.

      Rodriguez Maritime Law Group and Domingo Rodriguez and Sara D. Schooley; Hicks, Porter, Ebenfeld & Stein and Dinah Stein and Rachel Glasser, for appellant.
    Luis A. Perez; Elizabeth Russo and Susan S. Lerner, for appellee.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

This case represents a classic instance of the proper application of the rule which invalidates verdicts which are tainted by juror misconduct during voir dire. The record conclusively demonstrates that a member of the jury which rendered a substantial plaintiffs verdict in this seaman’s personal injury action flat out lied, both in writing in an answer to the jury questionnaire and in open court by his failure to respond to the court’s and counsels’ specific questions on the point, when he denied personal involvement in any other litigation. In fact, as was revealed shortly after the verdict, he was then the plaintiff in a personal injury action pending in the circuit court which was set for trial a short time thereafter. In these circumstances, we find no basis for the trial court’s failure to grant a new trial based on that juror’s misconduct. See Johnston v. State, 63 So.3d 730 (Fla.2011); De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995); Loftin v. Wilson, 67 So.2d 185 (Fla.1953); State Farm Mut. Auto. Ins. Co. v. Lawrence, 65 So.3d 52 (Fla.2d DCA 2011); Murphy v. Hurst, 881 So.2d 1157, 1161 (Fla. 5th DCA 2004); Davis v. Cohen, 816 So.2d 671 (Fla. 3d DCA 2002); Bernal v. Lipp, 580 So.2d 315 (Fla.3d DCA 1991). The appellee’s defensive contentions to the contrary are without merit. See Roberts v. Tejada, 814 So.2d 334 (Fla.2002); Pereda v. Parajon, 957 So.2d 1194 (Fla. 3d DCA 2007); Taylor v. Magana, 911 So.2d 1263 (Fla. 4th DCA 2005).

Accordingly, we reverse for a new trial.

      . The plaintiff was a trumpet player in the defendant's cruise ship orchestra.

      . This holding moots the issues raised by plaintiff on cross-appeal.


text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Peter MACK, Jr., as Personal Representative of the Estate of Peter Mack, Sr., Appellee.
    No. 1D11-2448.
    District Court of Appeal of Florida, First District.
    June 13, 2012.
    Rehearing Denied July 26, 2012.

      Ursula M. Henninger of King & Spald-ing LLP, Charlotte, North Carolina, William L. Durham, II, Jennifer C. Kane, and Kevin T. Kucharz of King & Spalding LLP, Atlanta, Georgia, Robert B. Parrish, Andrew J. Knight, David C. Reeves, and Jeffrey A. Yarbrough of Moseley, Prich-ard, Parrish, Knight & Jones, Jacksonville, and Jeffrey S. Bucholtz of King & Spald-ing LLP, Washington, DC, for Appellant.
    Brent R. Bigger of Abrahamson & Ui-terwyk, Tampa, Rodney W. Smith of Av-era & Smith, LLP, Gainesville, and Steven L. Brannock, Celene H. Humphries, and Tyler K. Pitchford of Brannock & Hum-phries, Tampa, for Appellee.
   PER CURIAM.

Appellant, R.J. Reynolds Tobacco Company, challenges a final judgment awarding Appellee, Peter Mack, Jr., as personal representative of the estate of his father Peter Mack Sr., $510,000 in damages following a jury verdict in Appellee’s favor. Appellant contends that the trial court erred in excluding its alternative causation evidence, in allowing Appellee to show the jury a “day in the life” video of his father (“the decedent”), and in allowing Appellee to use the findings as set forth in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006), to establish elements of his claims. We find no abuse of discretion as to the admission of the video and no error with respect to the use of the Engle findings. See R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010), review denied, 67 So.3d 1050 (Fla.2011), cert. denied, — U.S. —, 132 S.Ct. 1794, 182 L.Ed.2d 617 (2012). We do, however, agree with Appellant that the trial court erred in excluding its alternative causation evidence on the basis that its expert could not testify as to causation within a reasonable degree of medical probability. We, therefore, reverse and remand for a new trial.

In June 2008, the decedent and his wife brought suit against Appellant, seeking damages for the decedent’s laryngeal cancer and chronic obstructive pulmonary disease (“COPD”), both of which were allegedly caused by the decedent’s long history of smoking cigarettes manufactured by Appellant. After the decedent’s death, Appellee, as personal representative of the estate, was substituted as a party in the lawsuit. Appellee filed a motion in limine seeking to preclude any reference, argument, question, or testimony insinuating that the decedent’s illnesses were caused by any occupational and environmental hazards he faced while working as an Air Force aircraft mechanic or as an automobile mechanic. Appellee filed a second motion in limine, seeking to preclude any reference to the decedent’s family history of cancer. The trial court granted the motions subject to a proffer by Appellant to establish that the “fact exists” and that the “evidence supports the conclusion [Appellant] intends to draw from the existence of the fact.”

Appellant’s subsequent proffer included excerpts from the depositions of James Klaas, an Air Force aircraft mechanic who worked with the decedent in the 1960s, Charles Locklear, the former service manager from the car dealership where the decedent worked as a service technician, and Roger Tolbert, one of the decedent’s employees at a gas station. Klaas testified about asbestos exposure while working on aircraft, Locklear testified about asbestos exposure while working on automobile brakes, something that the decedent did while employed at the car dealership, and Tolbert testified that the decedent performed all brake repairs during the time that Tolbert worked for him. Also included in the proffer was the affidavit of Theodore Hogan, Ph.D., a practicing and consulting hygienist for industrial, commercial, and educational clients. After reconstructing the decedent’s exposures as an aircraft and automobile mechanic, Hogan found sufficient evidence to conclude that the decedent was exposed to a variety of chemicals and toxins for twenty-two to thirty-eight years. Dr. William Fee, an ear, nose, and throat doctor whose affidavit and deposition were included in the proffer as well, opined that Dr. Hogan’s deposition provided a sufficient basis to conclude that the decedent was exposed to a variety of occupational exposures as an aircraft and automobile mechanic that increased his risk for laryngeal cancer. He also opined that the decedent’s extensive family history of non-smoking-related cancers increased his risk for laryngeal cancer independently of smoking. Dr. Sanford Barsky, a pathologist, whose deposition was included in the proffer, opined that the decedent had a very significant occupational and environmental exposure to solvents and exhausts, possible asbestos, and hydrocarbons, all of which, according to Dr. Barsky, were risk factors for laryngeal cancer and may have played a role in the genesis of the decedent’s cancer. Appellant also included numerous articles, including several published in the International Journal of Cancer, that described a link between certain occupational and environmental exposures, including asbestos, and laryngeal cancer.

During the trial, Appellee’s experts opined that the decedent’s laryngeal cancer and COPD were more likely than not caused by his heavy smoking. After Ap-pellee rested his case, Appellant called Dr. Fee, who testified that, given the fact that the decedent stopped smoking approximately sixteen years prior to his laryngeal cancer diagnosis, the decedent’s risk of getting cancer as a result of smoking was the same as someone who never smoked.

During a proffer, Dr. Fee testified that the decedent had a strong family history of cancer — “[m]other with cancer, two brothers with prostate cancer, two sisters with breast cancer, one sister with either ovarian or uterine cancer.” He testified that the decedent’s family history of cancer was much more important in causing his laryngeal cancer as compared with his smoking. He also testified that the decedent had a very significant asbestos exposure. When asked if he could testify before the jury with any reasonable degree of medical certainty as to what caused the decedent’s cancer, he replied, “Well, I can say this: It had — it had more of a role than his declining risk of tobacco.”

In response to the trial court’s question of whether there had to be a consensus in the medical community as to the causes of laryngeal cancer, Appellant’s counsel replied in part, “Yes, Your Honor, there should be a consensus. It has to meet the Frye standard.” Appellant’s counsel later stated that she had misspoken regarding the application of the Frye standard and that Dr. Fee’s testimony was admissible as pure opinion testimony. The court explained that it was going to deny the “Frye request” and stated that Appellant was going to have to convince it that Dr. Fee’s experience had demonstrated certain causal relationships before his testimony would be admissible as pure opinion testimony. Appellant’s counsel then proffered Dr. Fee’s testimony regarding his experience with the causes of laryngeal cancer. He affirmatively responded when asked if in his personal experience and training asbestos and other industrial compounds could cause laryngeal cancer and whether it was important to know a patient’s family history if and when he is called to assess the cause of laryngeal cancer. He testified on cross-examination during the proffer that he was not saying to a degree of medical certainty that any “of these things” caused the decedent’s cancer. Instead, he was saying that it was possible that they did. The court later stated in part:

[I]f he’s going to offer an opinion whether or not it affected this particular [decedent], I think he has to give an opinion within a reasonable degree of scientific probability that it’s more likely than not and if he can’t do that, then I don’t think he can testify about it.
This is an expert opinion and expert opinion has got to say that, you know, this is more likely than not within a reasonable degree of probability of medical certainty that this is the cause. And if he can testify about that, then we’ll explore that. If he can’t, then he’s not going to be able to do so.

In the presence of the jury, the trial court subsequently informed Dr. Fee that he could testify about the “general causes [of laryngeal cancer] based on experience.” Dr. Fee testified that the causes included heredity, smoking, alcohol, an alcohol and smoking combination, asbestos, gasoline fumes, diesel fumes, and solvents. Given the trial court’s earlier ruling, no evidence was introduced regarding the decedent’s occupational exposures, and none of Appellant’s experts testified regarding the effect those exposures had on the decedent.

The jury found in Appellee’s favor, determining that the decedent was addicted to a cigarette manufactured by Appellant and that the addiction was the legal cause of his laryngeal cancer and COPD, that Appellant’s negligence was a legal cause of the decedent’s laryngeal cancer and/or COPD, and that the defective and unreasonably dangerous cigarettes that Appellant put on the market were a legal cause of his cancer and/or COPD. The jury determined that Appellant was 51% at fault and that the decedent was 49% at fault. It awarded $1,000,000 in damages. The trial court denied Appellant’s motion for a new trial and entered a final judgment awarding Appellee $510,000. This appeal followed.

Appellant primarily contends on appeal that the trial court erred in excluding its alternative causation evidence on the basis that Dr. Fee was unable to testify that the alternative causes were more likely than not the cause of the decedent’s laryngeal cancer. We agree. Appellee, as the plaintiff below, had the burden of proof with regard to the causation of the decedent’s illnesses. See Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 573 (Fla.2001). By excluding Appellant’s alternative causation evidence on the basis that its experts could not testify to a reasonable degree of medical probability, the trial court improperly shifted the burden of proof as to causation to Appellant. Contrary to the trial court’s reasoning, Appellant was not attempting to prove that something else caused the decedent’s laryngeal cancer. Instead, it was attempting to diminish Appellee’s expert testimony that smoking was the probable cause of the cancer by introducing other possible causes that were pertinent to the decedent’s situation.

Our conclusion that the trial court improperly shifted the burden to Appellant is supported by the majority of courts that have addressed this issue. For instance, in Haas v. Zaccaria, 659 So.2d 1130, 1133 (Fla. 4th DCA 1995), the Fourth District concluded that even if a plaintiff in a medical malpractice case must prove medical negligence by a reasonable medical probability, that did not mean that the defendant was precluded from offering evidence of possible explanations of the plaintiffs injury other than his or her alleged negligence. The Nevada Supreme Court more recently held that where a defense expert’s testimony is used to contradict the plaintiffs causation theory by comparing that theory to other plausible causes, the defense expert does not need to state each additional cause to a greater-than-fifty-percent probability as long as the alternative causation theory is competent and supported by relevant evidence or research. Williams v. Eighth Judicial Dist. Court of State, 262 P.3d 360, 369 (Nev.2011); see also Wilder v. Eberhart, 977 F.2d 673, 676 (1st Cir.1992) (holding that a defendant in a medical malpractice case may produce other possible causes of the plaintiffs injury and that those possible causes need not be proven with certainty or more probably than not); Benkendorf v. Advanced Cardiac Specialists Chartered, 228 Ariz. 528, 269 P.3d 704, 708 (Ariz.Ct.App.2012) (agreeing with the majority of jurisdictions that have held that an expert defense witness who is called to address causation in a medical malpractice case may testify about possible causes of the plaintiffs injury but need not prove another cause of the plaintiffs injury); Sakler v. Anesthesiology Assocs., P.S.C., 50 S.W.3d 210, 212 (Ky.Ct.App.2001) (holding that defendants in medical malpractice actions may introduce expert witness testimony to rebut a plaintiffs expert witness testimony couched in terms of “reasonable medically probability” even though the defendant’s expert witness testimony is couched only in terms of “possibility”).

We reject Appellee’s alternative argument that any error in this case was harmless given the fact that the trial court permitted Dr. Fee to testify about the general causes of laryngeal cancer based upon his experience. Although Dr. Fee testified that heredity and asbestos were two possible causes of laryngeal cancer, Appellant was not permitted, based upon the trial court’s erroneous alternative causation ruling, to introduce any evidence concerning the decedent’s strong family history of cancer and his occupational exposures. Without that evidence, the only cause as testified to by Dr. Fee that the decedent had any known connection with was smoking. Therefore, the trial court’s error was not harmless. See Witham v. Sheehan Pipeline Constr. Co., 45 So.3d 105, 109 (Fla. 1st DCA 2010) (noting that the test for harmless error in a civil case is whether, but for such error, a different result may have been reached).

Based upon the foregoing, Appellant is entitled to a new trial at which it should be permitted to introduce evidence of the decedent’s occupational exposures and family history of cancer. Appellant should also be given the opportunity to introduce any expert testimony it may have as to the possible causes of the decedent’s laryngeal cancer. We offer no opinion on the admissibility of the expert testimony other than to say that it may not be precluded on the basis that Appellant’s experts are unable to testify as to a reasonable degree of medical probability.

REVERSED and REMANDED for a new trial.

DAVIS, VAN NORTWTCK, and PADOVANO, JJ., concur.

      . We note that the Florida Supreme Court has accepted jurisdiction of Philip Morris USA, Inc. v. Douglas, 83 So.3d 1002 (Fla. 2d DCA 2012), which certified as an issue of great public importance the question of whether accepting as res judicata the Engle findings violates the tobacco companies’ due process rights guaranteed by the Fourteenth Amendment of the United States Constitution.

      . The Frye standard applies when an expert attempts to render an opinion that is based upon new or novel scientific techniques. Marsh v. Valyou, 911 So.2d 543, 547 (Fla.2007). The proponent of the evidence bears the burden of establishing by a preponderance of the evidence the general acceptance of the underlying scientific principles and methodology. Id.

      . The Frye standard is inapplicable to pure opinion testimony because that type of testimony is based on the expert's personal experience and training. Marsh, 977 So.2d at 548.

      . The record is not sufficient for us to address the admissibility of Appellant’s expert testimony under Frye because, as Appellant acknowledged below, no actual Frye hearing was conducted. We also note that very limited evidence was introduced to support a conclusion that Dr. Fee’s testimony was pure opinion testimony. On remand, the issue should be guided by the supreme court’s opinion in Marsh, 977 So.2d at 543.