author: WHATLEY, Judge. FULMER, Chief Judge,

text:
    Bruce SLACK, Appellant, v. Jean-Michel KLING, Appellee.
    No. 2D06-3355.
    District Court of Appeal of Florida, Second District.
    June 27, 2007.
    Jana Jay Malen, Naples, for Appellant.
    No appearance for Appellee.
   WHATLEY, Judge.

Bruce Slack appeals a final judgment of injunction for protection against repeat violence. He contends that there was no evidence establishing acts of repeat violence as defined in section 784.046, Florida Statutes (1997). We agree and reverse.

Section 784.046 provides that a person may obtain an injunction for protection in cases involving repeat violence. Repeat violence is defined as two incidents of stalking or violence. § 784.046(1). A person commits the act of stalking when they “willfully, maliciously, and repeatedly” follow or harass another person. § 784.048(2), Fla. Stat. (2006). The term “harass” is defined in section 784.048(1) as engaging in a series of acts over a period of time “directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” In determining if an incident causes substantial emotional distress, courts use a reasonable person standard, not a subjective standard. Ravitch v. Whelan, 851 So.2d 271, 273 (Fla. 5th DCA 2003); McMath v. Biernacki, 776 So.2d 1039, 1040 (Fla. 1st DCA 2001).

In the present case, Kling testified regarding two phone calls he received from Slack which served no legitimate purpose. Kling testified that on February 25, 2006, and June 15, 2006, Slack left a voice message stating that if Kling did not stay away from Slack’s wife, Slack would make an “arrangement.” We conclude that nothing in the record demonstrates any basis for finding that a reasonable person would suffer “substantial emotional distress” from these two phone messages. Therefore, the trial court erred in granting the injunction.

Reversed.

CASANUEVA, J., concurs.

FULMER, C.J., concurs with opinion.

FULMER, Chief Judge,

concurring.

I agree that the trial court erred in granting the injunction. At the hearing on the petition, Kling’s testimony encompassed more than the two voice messages described in the majority opinion. However, at the conclusion of the hearing, the trial court announced, “I do find that the two acts do meet the terms and conditions of stalking. I do order the injunction.” No further explanation of the ruling was given. A review of the hearing transcript makes clear that the two acts referred to are the two voice messages described in the majority opinion. It is, therefore, unnecessary to discuss the other testimony presented, which, in any event, does not provide a sufficient basis for the issuance of an injunction.

In my view, the trial court erred because a single voice message does not meet the definition of stalking, two incidents of which are required for issuance of an injunction for repeat violence. The definition of stalking requires that a person “willfully, maliciously, and repeatedly follow [ ], harass [ ], or cyberstalk [ ] another person.” § 784.048(2), Fla. Stat. (2006). Kling does not allege that he was followed or cyberstalked by Slack. The definition of harass requires that a person engage in a course of conduct involving a series of acts over a period of time. § 784.048(l)(a), (b). A single voice message is not a course of conduct. Cf. Poindexter v. Springer, 898 So.2d 204, 207 (Fla. 2d DCA 2005) (concluding that the act of mailing three letters in one envelope was insufficient to establish a course of conduct); Dudley v. Smith, 786 So.2d 630, 631 (Fla. 5th DCA 2001) (concluding that at least four incidents of harassment are required before an injunction for repeat violence may be entered). Because Kling failed to allege and prove two separate incidents of stalking, I agree that the Final Judgment should be reversed.

      . There were no allegations that Slack committed an act of violence.

      . Slack denied making these statements to Kling.


source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Deontae THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3181.
    District Court of Appeal of Florida, Second District.
    June 27, 2007.
    James Marion Moorman, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant. .
    Bill McCollum, Attorney General, Tallahassee, and Elba 'Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee-.
   NORTHCUTT, Judge.

Deontae Thomas was convicted of first-degree murder and sentenced to life in prison. In this appeal, he argues that his trial was tainted by improper collateral crime evidence that became a feature of the trial. We agree and reverse.

In broad terms, the evidence at trial revealed the following. In June 2002, Thomas stole $95,000 from Bernard Johnson, a drug dealer in St. Petersburg. It was an inside job planned with one of Johnson’s girlfriends. The girlfriend did not receive her share, however, and she advised Johnson that Thomas was the culprit. As might be expected, Johnson refrained from calling the police, opting instead to put out a $25,000 hit on Thomas. Thomas had to start dodging Johnson’s associates. In September, Thomas was jailed for about six months on unrelated charges. Upon his return to the community toward the end of February 2003, he had several run-ins with people trying to collect on the bounty. Ultimately, in the early evening of April 23, 2003, Thomas and Johnson encountered each other while driving, and Thomas shot Johnson through the head with an assault rifle.

In opening statements and testimony at triab Thomas acknowledged that he shot and killed Johnson but he asserted that he acted in self-defense. He also maintained that the shooting was not premeditated. Thus, the only contested issue for the jury was whether Thomas killed Johnson with premeditation, making him guilty of first-degree murder; with a depraved mind such that he committed second-degree murder; by an act of culpable negligence sufficient to support a conviction for manslaughter; or in self-defense, in which case the homicide was legally justified.

The evidence might have supported any of those possible verdicts. Two witnesses testified that Thomas had threatened to kill Johnson, but both witnesses were connected to Johnson — his mother and Jimmy Lee Matthews, one of Johnson’s “homeboys.” Matthews also testified that he had seen Thomas with assault rifles and that Thomas admitted killing Johnson afterward. Thomas’s girlfriend at the time of the shooting testified that he admitted the killing to her after the fact. And the State introduced a letter from Thomas to a fellow inmate; in the letter, Thomas wrote about the price Johnson had put on his head and about the people who had tried to collect it, and then he wrote: “So kill the head and the body dead. It was either me or him.”

In his trial testimony, Thomas recounted that he was alone on the evening in question. He had borrowed a friend’s truck and was getting gas when he was approached by Kenneth Davis, a Johnson associate who went by the street name Trouble D. Thomas thought it suspicious that Davis was wearing a hooded sweatshirt, because the weather was warm. Davis said, “I need to talk to you about my homeboy money.” Thomas then spied Johnson sitting in the driver’s seat of an SUV parked nearby. According to Thomas, Davis was known for using guns, and he saw Davis reach into the passenger compartment of Johnson’s car. Thomas sped off in the truck, attempting to evade them. But when he turned a corner, he found his truck nose-to-nose with Johnson’s vehicle. Thomas testified that Davis was standing outside the vehicle and held his firearm over the roof. Thomas grabbed a weapon that his friend had left in the truck, and he shot twice. One shot hit Johnson’s car and the other struck Johnson in the head.

According to the medical examiner, Johnson died almost instantly. His foot must have fallen against the gas pedal because the SUV lurched forward, ran over a stop sign, and crashed into the front bedroom of a nearby house. Two eyewitnesses who testified for the State offered differing versions of the shooting, but neither of them had seen Davis. The defense also called two eyewitnesses, but they had not seen Davis, either.

The specific controversy that concerns us today centers on matters that transpired after Johnson was killed. Over the following two days, Thomas allegedly participated in several drive-by shootings directed at Johnson’s associates. Tipped by an informant, the police were looking for him. They apprehended him on April 25, 2003, after officers witnessed shots fired by the occupants of a Chevrolet Impala at the driver of a passing Pontiac Sunbird. A stray bullet struck and killed a bystander. The shooters’ ear then led the police on a chase. During the pursuit, two men hung out the back seat windows of the fleeing car and fired assault weapons. One officer suffered a gunshot wound to the head. The chase ended when the officers rammed the suspects’ vehicle with a police car. Five men, including Thomas, were then recovered from the car. Thomas was pulled from the back seat, and the weapon that had killed Johnson was recovered from the highway. For the events following Johnson’s death, Thomas was charged with first-degree murder of the bystander, three counts of attempted first-degree murder, ten counts of attempted second-degree murder, and possession of marijuana. Three co-defendants were also charged.

The State attempted to have all the charges consolidated for trial, but its efforts failed. In this case, then, Thomas was tried alone and only for Johnson’s murder. Prior to trial, the State filed a notice of intent to use evidence of other bad acts and of facts and circumstances that it claimed were inextricably intertwined with the Johnson homicide, starting with the theft of Johnson’s money and ending with the police chase that culminated in Thomas’s arrest. Thomas moved to prevent the State from using any evidence of events occurring after Johnson’s death. The defense later conceded that the State could properly introduce evidence concerning the theft of Johnson’s money and limited evidence regarding Thomas’s pursuit and apprehension.

The trial court entered an order granting Thomas’s motion in part “in that the State shall not introduce evidence of any collateral crimes except for the burglary, the police chase (and accompanying attempted murder of law enforcement officer charge) and the possession of the murder weapon.” The court reasoned that evidence of the police chase and attendant shoot-out “would tend to demonstrate that [Thomas] was in possession of the murder weapon and he was using it in a manner displaying intent to harm or kill.” The court ruled that this evidence was relevant because it bore on Thomas’s intent, identity, or knowledge; it placed the Johnson homicide weapon in Thomas’s hands; and it allowed the State to paint a “complete picture” regarding Thomas’s “possession and willingness to use the murder weapon.” But the court ordered the redaction of portions of Thomas’s letter to his jail mate. And it warned that the State was not to make evidence of the events following Johnson’s death a feature of the trial or introduce it solely for the purpose of showing bad character or propensity.

At trial, however, the court allowed the State to do just that. Beginning with the prosecutor’s opening statement — in which the jury was told that the police pursuit began when one detective saw “what is shocking to even an experienced officer”— and continuing in its case-in-chief, the State was permitted to explore the April 25 chase and the gunfire that commenced it in inordinate detail. For example, the driver of the Sunbird that was fired upon testified that he had done nothing to provoke the gunfire. A police detective who witnessed the shooting described the incident blow by blow. The State was permitted to document the shooting with photographs of bullet damage to the Sunbird and an aerial photograph of the scene. It introduced physical evidence as well: spent shell casings found at the scene and a bullet fragment taken from the Sunbird.

Another officer gave a running account of the ensuing chase. Employing a map, he described the pursuit at length and in harrowing detail. The officer recounted the various dangers he and the suspects encountered when careening through city streets, driving onto the Interstate highway and off again, speeding through intersections, and running red lights. He testified that when the suspects’ car went onto the Interstate, two of the suspects hung out its windows and opened fire on his police cruiser, blowing out his spotlight. The suspects shot through the officer’s windshield, hitting him in the head, but the officer continued the pursuit. More shots were fired before two weapons were thrown from the car. The officer described how he ended the pursuit by ramming his cruiser into the suspects’ car, causing it to crash and roll over. In addition to the officer’s testimony, the State introduced photographs of the damage to the police cruiser, of the officer’s head injury, and of the suspects’ car as it lay upside down after the crash. The State even was allowed to introduce the baseball cap that the officer was wearing when he was shot, replete with bullet hole. The trial court did exclude a twenty-minute video reenacting the pursuit route.

The State correctly recognizes that none of this collateral crime evidence was admissible under the Williams rule, codified at section 90.404(2)(a), Florida Statutes (2004), because it was not similar fact evidence. See Henry v. State, 574 So.2d 73, 75 (Fla.1991) (holding that evidence regarding defendant’s murder of his step-son was not properly admitted as Williams rule evidence in trial for murder of boy’s mother because the two crimes were not similar). But the State argues on appeal, as it did below, that the evidence was admissible because the events that it depicted were inextricably intertwined with the crime charged. Under this theory, evidence of collateral acts is admissible when “it is a relevant and inseparable part of the act which is in issue .... [I]t is necessary to admit the evidence to adequately describe the deed.” Griffin v. State, 639 So.2d 966, 968 (Fla.1994) (quoting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.)) (alteration in original).

Most of the evidence at issue here did not meet this test. Some of it may have been admissible to explain Thomas’s apprehension and to place the murder weapon in his possession. Beyond that, however, it simply was not necessary to admit this evidence to “adequately describe the deed” for which Thomas was being tried. The events of April 25 had no bearing on the only contested issue before the jury, that being Thomas’s mental state during his encounter with Johnson two days earlier.

But even if it could be concluded that the events of April 25 were more than minimally relevant, there was no justification for the volume of detailed evidence that was tendered to prove them. The State proceeded almost as if it had been successful in its attempt to consolidate the various charges against Thomas for trial. As such, the collateral crime evidence improperly emphasized the events of April 25 to the point that they became a feature of Thomas’s trial. See Steverson v. State, 695 So.2d 687 (Fla.1997) (reversing when evidence with a limited relevance was so extensive that it became a feature of trial, distracting the jury from the case at hand).

It was a highly prejudicial feature at that. The extensive collateral crime evidence portrayed Thomas as a man with a propensity for unbridled violent lawlessness who, without regard for the safety of the public at large, had engaged in conduct that, in the words of the prosecutor, was “shocking to even an experienced officer.” The prejudice flowing from this evidence substantially outweighed any slight probative value it may have had, thus calling for its exclusion. See § 90.403; Henry, 574 So.2d at 75. Because there was evidence that would have supported a verdict for a lesser degree of homicide, or even arguably an acquittal based on self-defense, the State cannot demonstrate that the erroneous admission of this evidence was harmless. See Henry, 574 So.2d at 75. Accordingly, we reverse and remand for a new trial.

Reversed and remanded for new trial.

CASANUEVA and CANADY, JJ., Concur.


author: PER CURIAM.

text:
    J.C., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D06-5029.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Patricia A. Gainer-Gaddis of the Law Offices of Patricia A. Gainer-Gaddis, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Children’s Legal Services, Fort Lauderdale, for appellee.
    Patricia M. Propheter, Appellate Counsel, Orlando, for Guardian ad Litem Program.
   PER CURIAM.

The trial court entered a final order terminating J.C.’s parental rights to her child, D.H. We affirm the final order terminating J.C.’s parental rights in all respects except one. DCF concedes that the trial court erred by terminating J.C.’s parental rights based on abandonment, as set forth in Florida Statutes section 39.806(l)(b), where this ground was not pleaded as a basis for termination in the petition and DCF failed to seek amendment of the petition to include this ground as to J.C. See R.S. v. Dep’t of Children & Families, 872 So.2d 412, 413 (Fla. 4th DCA 2004). However, despite this error, the termination of J.C.’s parental rights itself is affirmed, because two other grounds supporting termination were established by DCF. See S.S. v. D.L., 944 So.2d 553, 557 (Fla. 4th DCA 2007)(ex-plaining that DCF must “present clear and convincing evidence of a statutory ground for terminating and clear and convincing evidence that terminating parental rights is in the best interests of the child”)(emphasis added). Consequently, we reverse only the portion of the order terminating J.C.’s parental rights on the ground of abandonment and remand for this finding to be stricken from the order.

Affirmed In Part, Reversed In Part, And Remanded.

GUNTHER, HAZOURI, JJ., and METZGER, ELIZABETH A., Associate Judge, concur.


author: SUAREZ, J.

text:
    Claude CANNON, Petitioner, v. James McDONOUGH, Secretary of Florida Department of Corrections and The State of Florida, Respondents.
    No. 3D07-1222.
    District Court of Appeal of Florida, Third District.
    June 27, 2007.
    Claude Cannon, in proper person.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for respondents.
    Before FLETCHER, WELLS, and SUAREZ, JJ.
   SUAREZ, J.

Defendant, Claude Cannon, appeals the trial court’s summary denial of a petition for writ of habeas corpus.

On May 16, 2007, this court denied defendant’s petition for writ of habeas corpus as to gain time. In that order, this court requested the State respond to the remaining issue raised in the petition of whether or not the defendant received the proper credit for time served on re-sentencing. The State responded.

Upon review, we find that the trial court’s summary denial is devoid of any record attachment which would enable this court to determine the validity of the defendant’s claim that he did not receive proper credit for time served on re-sentencing. Specifically, there is no transcript of the violation of probation hearing and the sentencing documents only tell this court that the defendant gets jail credit “from 5/25/06 per court.” If what the defendant alleges in his petition for writ of habeas corpus on this issue is true, he may be entitled to more credit for time served and may be nearing the completion of his sentence. Therefore, we reverse the trial court solely on this issue, appoint the public defender’s office to assist the defendant in pursuing this claim in the trial court, and order the trial court to expedite review of this issue in light of our decision.

Reversed, appoint public defender, and remand for an expedited review.


author: SALCINES, Judge.

text:
    Walter RICHIE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5094.
    District Court of Appeal of Florida, Second District.
    June 29, 2007.
   SALCINES, Judge.

Walter Richie appeals the summary denial of claims one and three of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the postconviction court’s denial of claim three without comment. We reverse the denial of claim one and remand for further proceedings.

On May 18, 2005, Richie admitted to violating the terms of his probation imposed in five Pinellas County circuit court cases. The trial court sentenced Richie to time served for all counts in circuit court case CRC 97-04772CFANO-K and to 121 months’ prison on all counts in circuit court cases CRC 97-11794CFANO-K, CRC 97-15175CFAN O-K, CRC 97-15296CFANO-K, and CRC 97-15978CFA-NO-K, with all sentences to run concurrently with each other. The trial court also granted jail credit in the latter four cases, with the amount ranging between ninety and 145 days. In his motion, Richie claims that the trial court granted him only fifteen days’ jail credit but that he is entitled to an additional 800 days’ credit for time he spent in Hillsborough County jail. The postconviction court summarily denied Richie’s claim, finding that it was facially insufficient because he failed to provide proof of his Hillsborough County confinement.

“[J]ail credit issues involving disputed issues of fact can only be resolved pursuant to rule 3.850.” Mathis v. State, 945 So.2d 588, 588 (Fla. 2d DCA 2006) (citing Clifton v. State, 905 So.2d 1042, 1044 (Fla. 2d DCA 2005)). Because Richie’s claim for jail credit involves a disputed issue of fact and he filed his sworn motion within two years of his violation of probation sentence becoming final, the posteonvietion court should have treated his motion as filed pursuant to rule 3.850. See Rinderer v. State, 857 So.2d 955 (Fla. 4th DCA 2003) (remanding the denial of a motion to correct sentence to the postconviction court to reconsider as if filed under rule 3.850 because the motion was sworn and timely under'the rule); see also Snell v. State, 890 So.2d 1292 (Fla. 2d DCA 2005).

Accordingly, we reverse the denial of Richie’s claim and remand. On remand, the postconviction court shall attach portions of the record that conclusively refute Richie’s claim or, if necessary, hold an evidentiary hearing. ■

Affirmed in part, reversed in part, and remanded.

. ALTENBERND and DAVIS, JJ., concur.


text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Dean BUTLER, Appellee.
    No. 3D06-2491.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Judson Chapman, General Counsel and Jason Helfant, Assistant General Counsel, for appellant.

      Rhonda F. Goodman, for appellee.
    Before GREEN and WELLS, JJ. and SCHWARTZ, Senior Judge.
   PER CURIAM.

The Department of Highway Safety and Motor Vehicles appeals a final judgment granting plaintiff, Dean Butler, a waiver from the ignition interlock device requirement imposed by the Department for reinstatement of Butler’s driver’s'license. We reverse. , . ,

Butler was convicted of his third DUI offense on May 26, 2001. He was sentenced to ten years’ license suspension, with hardship reinstatement available after two years. In 2006, at the administrative hearing on the hardship reinstatement, Butler was granted reinstatement on the condition that he enroll in the special supervision Services Program. Butler enrolled in the program. Thereafter, Butler received a letter informing him that his driver’s license would be issued with a “P” restriction upon installation of an ignition interlock device on his vehicle. See §§ 316.193(2)(b)l., .1937, Fla. Stat. (2006).

Butler does not own a vehicle. He drives his employer’s vehicle during the course and scope of employment. His employer does not wish to install the device on its vehicle because the vehicle is used by other employees. Butler requested that the Department remove the additional requirement to the issuance of the hardship license so he may. drive during the course of his employment. The Department denied the requests.

Butler filed an action in Circuit Court for declaratory relief. Butler challenged the Department’s authority to impose the interlock device installation requirement. Butler asserted that his employer had been granted a waiver; that the device was not imposed as a condition of his sentence for the May 2001 offense; that his convictions precluded application of section 322.2715; that the officer awarding reinstatement did not require installation of the device.

After a hearing, the court found that there were no disputed factual issues, and that the Department could not require installation of the device for issuance of the license. The court ruled that should Butler purchase a personal vehicle, the device had to be installed thereon. The Department appeals.

‘Under section 322.271(2)(d), Florida Statutes (2005), the Department has legislative authority to require installation of the ignition interlock device when considering a hardship driver’s license. Dept. of Highway Safety & Motor Vehicles v. Gonzalez-Zaila, 920 So.2d 1220, 1222 (Fla. 3d DCA 2006). Although the device was not mandatory at the time of Butler’s conviction, the requirement was mandatory at the time he sought reinstatement in January 2007. § 316.193(4)(c),. Fla. Stat. (2006)(effective Oct. 1, 2005). In contrast to , the scenario in Gonzalez-Zaila, the Department here did not reinstate the license, and then seek to impose the requirement after the fact. There was nothing faulty in the Department’s procedures to enforce the device installation requirement;

Based on the foregoing, we reverse the final judgment.

Reversed.


text:
    Mark PETERSON, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-6551.
    District Court of Appeal of Florida, First District.
    July 6, 2007.
    Mark Peterson, pro se, Petitioner.
    Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

As the Florida Parole Commission concedes, the circuit court erred in denying Peterson’s petition for writ of habeas corpus without affording him sufficient time to reply to the Commission’s response. See McCarthy v. Fla. Parole Comm’n, 889 So.2d 1018 (Fla. 1st DCA 2005); Smith v. Fla. Dept. of Corrs., 882 So.2d 1090 (Fla. 1st DCA 2004); Bard v. Wolson, 687 So.2d 254, 255-256 (Fla. 1st DCA 1996). Accordingly, we GRANT the writ of certiorari and QUASH the circuit court’s order.

BARFIELD, ALLEN, and HAWKES, JJ., concur.


text:
    Gary CALDWELL, Appellant, v. Ruthellen CALDWELL, Appellee.
    No. 1D07-1052.
    District Court of Appeal of Florida, First District.
    July 6, 2007.
    Neibra Washington Collins, Tallahassee, for Appellant.
    Angela M. Ball, Perry, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 9, 2007, the Court has determined that the order on appeal is neither a final order, nor an appealable nonfinal order. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

WEBSTER, DAVIS, and VAN NORTWICK, JJ., concur.


text:
    A.M., Natural Mother, In the Interest of T.T. and A.B., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D07-1361.
    District Court of Appeal of Florida, First District.
    July 6, 2007.

      A.M., Natural Mother, pro se, for Appellant.
    John Copelan, General Counsel, Department of Children and Families, and Lucy Goddard-Teel, District Legal Counsel, Gainesville, for Appellee.
   PER CURIAM.

Because the notice of appeal was not timely filed, this court is without jurisdiction to review the order terminating parental rights. We note that appellant has an available remedy. See In the Interest of E.H., 609 So.2d 1289 (Fla.1992) (holding that the proper method by which to seek a belated appeal in a termination of parental rights case based on counsel’s failure to timely file a notice of appeal is a petition for writ of habeas corpus filed in the trial court).

APPEAL DISMISSED.

WEBSTER, DAVIS, and VAN NORTWICK, JJ., concur.


author: PER CURIAM. GRIFFIN, J.,

text:
    Sheperal WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1283.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2007.
    Sheperal Williams, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED.

SAWAYA and LAWSON, JJ., concur.

GRIFFIN, J., concurs specially, with opinion.

GRIFFIN, J.,

concurring specially.

The trial court determined that, because the “sexual offender” designation made by the Florida Department of Corrections, of which appellant complains, was not a judicial act connected with this case (Brevard No. 2002-61533-B), but apparently arose out of a 1988 juvenile case, there was no basis for the trial court to review the designation. The trial court advised appellant to file his motion attacking the Department of Corrections’ sexual offender designation in the 1988 case. I write only to suggest that appellant should also have access to an administrative procedure within the Department of Corrections that would be subject to judicial review.


text:
    Erskine CURRY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1693.
    District Court of Appeal of Florida, Fifth District.
    July 10, 2007.

      James S. Purdy, Public Defender, and Michael Olshefski, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Corner v. State, 868 So.2d 553 (Fla. 3d DCA 2004).

GRIFFIN, THOMPSON and MONACO, JJ., concur.


text:
    Jason FELTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1299.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2007.
    James S. Purdy, Public Defender, and Robert Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Jason Felton, Madison, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

After a jury trial, appellant was found guilty of sexual battery and lewd and lascivious battery. We find no double jeopardy violation. The appellant committed multiple sexual acts on the fourteen-year-old victim. The evidence supports a finding that there was a sufficient temporal break between at least two of the acts so as to have allowed appellant “to reflect and form a new criminal intent for each offense.” State v. Paul, 934 So.2d 1167, 1173 (Fla.2006); see also Schwenn v. State, 898 So.2d 1130 (Fla. 4th DCA 2005).

AFFIRMED.

PLEUS, LAWSON and EVANDER, JJ., concur.

      . § 794.011(5), Fla. Stat. (2002).

      . § 800.04(4), Fla. Stat. (2002).


author: THOMPSON, J.

text:
    Jorge L. HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1488.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2007.
    James S. Purdy, Public Defender, and Tomislav D. Golik, Assistant Public Defender, Daytona Beach, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

AFFIRMED. See Robinson v. State, 32 Fla. L. Weekly D1245, — So.2d -, 2007 WL 1372658 (Fla. 5th DCA May 11, 2007) (“[T]o be preserved for appeal, the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.”); Huck v. State, 881 So.2d 1137, 1144-45 (Fla. 5th DCA 2004) (affirming where defendant’s purportedly reasonable, uncontroverted hypotheses of innocence were unreasonable and conflicted with evidence presented by State).

SAWAYA and PLEUS, JJ., concur.


author: KNOLL, Justice. WEIMER, J.,

text:
    Richard BLEVINS v. HAMILTON MEDICAL CENTER, INC. d/b/a Southwest Medical Center-Lafayette.
    No. 2007-CC-127.
    Supreme Court of Louisiana.
    June 29, 2007.
   KNOLL, Justice.

J^This personal injury claim concerns a suit against a private hospital for injuries allegedly sustained when a hospital bed moved causing plaintiff to lose his balance and fall. The issue presented is whether plaintiffs claims fall within the Louisiana Medical Malpractice Act (“LMMA”).

At the same time plaintiff filed his petition, he contemporaneously requested a medical review panel based upon the same allegations in his petition. Before any discovery was conducted, the defendant hospital filed a dilatory exception of prematurity on the basis that the medical review panel had not yet deliberated. The district court denied the exception in part and sustained the exception in part, finding three of the allegations pertaining to the hospital bed sounded in general negligence, while the remaining six allegations sounded in medical malpractice, and severed the non-medical malpractice claims, from the medical malpractice ones. The court of appeal reversed, sustaining the exception as to all of the allegations. We granted writs to address the correctness vel non of the court of appeal, i.e., whether the three allegations regarding plaintiffs hospital bed sound in general negligence or fall within the parameters of the LMMA. Richard Blevins v. Hamilton Medical Center, Inc., 07-0127 (La.3/23/07), 951 So.2d 1103. For the following reasons, we findhthese allegations sound in general negligence and reverse the judgment of the court of appeal.

FACTS AND PROCEDURAL HISTORY

This civil case originated with a petition for damages filed by plaintiff, Richard Blevins, in the Fifteenth Judicial District Court for the Parish of Lafayette on January 19, 2006, naming as defendant, Hamilton Medical Center, Inc., d/b/a Southwest Medical Center-Lafayette (“SMC”). In his petition for damages, plaintiff alleged that on or about January 11, 2005, he was admitted to SMC for incision and drainage of an infected wound of his left groin. On January 17, 2005, while still a recuperating patient at defendant’s facility, plaintiff fell in his room when his hospital bed rolled as he attempted to get out of the bed to use a bedside commode. With the movement of the bed, plaintiff lost his balance and fell, causing a tear of the meniscus of his right knee.

In his petition, plaintiff also stated he had filed a request for a medical review panel to review the conduct of those individuals who participated and/or furnished medical care to plaintiff during his hospitalization with regard to his fall of January 17, 2005, and who were covered under the provisions of the LMMA. Plaintiff further alleged that his fall was also proximately caused by the negligence and fault of defendant SMC in the following non-exclusive respects:

(a)Failing to properly monitor and provide adequate and necessary care to plaintiff;
(b)Failing to exercise the requisite amount of care toward a patient that the particular patient’s condition required;
(c)Failing to protect a patient from the dangers that may result from the patient’s physical and mental incapacities, as well as from external circumstances particularly within the hospital’s control;
(d) Failing to have in force adequate policies, procedures and equipment to safeguard and prevent falls of patients such as plaintiff;
|s(e)Failing to exercise a reasonable degree of skill and competence possessed and required of hospitals;
(©Failing to furnish the patient with diligent and skillful care; and
(g)Failing to furnish patient with equipment in proper working condition;
(h)Failing to keep the patient’s bed in the lowest position with the wheels locked; and
©Failing to properly instruct the patient on proper use of and safety with regard to his bed.

SMC, a qualified health care provider pursuant to the LMMA, filed a dilatory exception of prematurity to plaintiffs petition for damages on the basis that plaintiffs allegations raised in his petition for damages were identical to the allegations he raised in his request for a medical review panel, which panel had not yet deliberated nor rendered an opinion concerning the matter, and therefore, the lawsuit was premature. Plaintiff answered that while some of his allegations fell within the purview of the LMMA, the district court was at liberty to determine which of plaintiffs allegations fell outside the LMMA’s provisions and allow plaintiff to proceed in district court on those allegations of ordinary negligence.

The district court heard argument on defendant’s exception and granted the exception as to the medical malpractice allegations (a) through (f), but denied the exception as to allegations (g) through (i), as those allegations sounded in ordinary negligence. By dismissing plaintiffs claims alleged in (a) through (f), the district court severed the malpractice claims from the ordinary negligence claims.

SMC applied for supervisory writs from the district court’s denial of its exception of prematurity as to allegations (g) through (i). A five-judge panel of the Third Circuit Court of Appeal, with three judges signing, granted the writ and made it peremptory, reasoning:

{4The claims raised by Respondent are properly raised under the Medical Malpractice Act. La.R.S. 40:1299.41; Taylor v. Christus Health Southwestern Louisiana, 04-627 (La.App. 3 Cir. 11/10/04), 886 So.2d 696. Accordingly, we find error in the judgment rendered below and reverse. Relator’s exception of prematurity is maintained, and Respondent’s petition is dismissed without prejudice, at his cost.

Richard Blevins v. Hamilton Medical Center, Inc., 06-01270, p. 1 (La.App. 3 Cir. 12/22/06). Two judges dissented, with the following language:

We disagree with the majority opinion because the faulty equipment at issue is not intricately connected to the medical care provided by the hospital. Taylor v. Christus Health Southwestern Louisiana, 04-627 (La.App. 3 Cir. ll/10/04).[,] 866[886] So.2d 696 (Cooks, J., concurring). We would therefore deny the writ application as there was no error in the trial court’s ruling.

Blevins, 06-01270 at p. 1. We granted plaintiffs writ application to address the correctness of the appellate court’s decision regarding the hospital bed claims contained in allegations (g) through (i) of the petition.

LAW AND DISCUSSION

The dilatory exception of prematurity provided in La.Code Civ. Proc. art. 926 questions whether the cause of action has matured to the point where it is ripe for judicial determination as an action is premature when it is brought before the right to enforce it has accrued. Williamson v. Hospital Service Dist. No. 1 of Jefferson, 04-0451, p. 4 (La.12/1/04), 888 So.2d 782, 785(finding alleged negligence of hospital in failing to repair wheelchair and in failing to make sure that wheelchair was in proper working condition did not arise from “medical malpractice”); Sprad- lin v. Acadia-St. Landry Medical Foundation, 98-1977, p. 4 (La.2/29/00), 758 So.2d 116, 119(alleged patient “dumping” case sounded in malpractice). Under the LMMA, a medical malpractice claim against a private qualified health care provider is subject to dismissal on a timely filed exception of prematurity if such claim has not first been reviewed by a pre-suit medical review panel. Williamson, 04-0451 at p. 4, 888 So.2d at 785; La.Rev. Stat. 40:1299.47(A). This exception is the proper procedural mechanism for a qualified health care provider to invoke when a medical malpractice plaintiff has failed to submit the claim for decision by a medical review panel before filing suit against the provider. Spradlin, 98-1977 at p. 4, 758 So.2d at 119; La.Code Civ. Proc. art. 926; Frank L. Maraist & Harry T. Lemmon, 1 Louisiana Civil Law Treatise, Civil Procedure § 6.6, 116 (West 1999). In such situations, the exception of prematurity neither challenges nor attempts to defeat any of the elements of the plaintiffs cause of action. Spradlin, 98-1977 at p. 4, 758 So.2d at 119; Maraist & Lemmon, supra. Rather, the defendant asserts that the plaintiff has failed to take some preliminary step necessary to make the controversy ripe for judicial involvement. Spradlin, 98-1977 at p. 4, 758 So.2d at 119; Maraist & Lemmon, supra. The burden of proving prematurity is on the exceptor, in this case the defendant health care provider, who must show that it is entitled to a medical review panel because the allegations fall within the LMMA. Williamson, 04-0451 at p. 4, 888 So.2d at 785.

While the grounds for the exception of prematurity clearly arise out of the LMMA’s procedural requirement that a medical malpractice claim must first be reviewed by a medical review panel before the commencement of litigation, the dilatory exception of prematurity, which “merely retards the progress of the action,” must be tried in the district court. La.Code Civ. Proc. arts. 923, 926 & 929. Moreover, unlike our Code of Civil Procedure, the LMMA provides no procedure for the trying of the exception before a medical review panel. See La.Code Civ. Proc. art. 929. Therefore, despite SMC’s contention to the contrary, whether the matter should proceed to a review panel is a determination for the courts in the trial of the exception of prematurity, and not the yet to be convened panel.

| ^Moreover, this court has, without exception, emphasized that the LMMA and its limitations on tort liability for a qualified health care provider apply strictly to claims “arising from medical malpractice,” and that all other tort liability on the part of the qualified health care provider is governed by general tort law. Coleman v. Deno, 01-1517, pp. 15-16 (La.1/25/02), 813 So.2d 303, 315(finding claim for alleged wrongful transfer from one emergency room to another of patient whose left arm was amputated following transfer sounded in malpractice); Williamson, 04-0451 at p. 5, 888 So.2d at 786. This is so because the LMMA’s limitations on the liability of health care providers are special legislation in derogation of the rights of tort victims, and as such, the coverage of the act should be strictly construed. Sewell v. Doctors Hospital, 600 So.2d 577, 578 (La.1992)(finding strict liability for defects in hospital bed which collapsed resulting in injury to patient was not included within “malpractice” under the LMMA). These limitations apply only in cases of liability for malpractice as defined in the LMMA. Williamson, 04-0451 at p. 5, 888 So.2d at 786.

The LMMA defines “malpractice” to mean

any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

La.Rev.Stat. 40:1299.41(A)(8). The LMMA further defines “tort” and health care”:

“Tort” means any breach of duty or any negligent act or omission proximately causing injury or damage to another. The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that 17degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use. reasonable care and diligence, along with his best judgment, in the application of his skill.
“Health care” means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components.

La.Rev.Stat. 40:1299.41(A)(7) & (9).

Cognizant of the principles espoused above, this Court in Coleman set forth six factors to assist a court in determining whether certain conduct by a qualified health care provider constitutes “malpractice” as defined under the LMMA:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill,
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached,
(3) whether the pertinent act or omission involved assessment of the patient’s condition,
(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,
(5) whether the injury would have occurred if the patient had not sought treatment, and
(6) whether the tort alleged was intentional.

Coleman, 01-1517 at pp. 17-18, 813 So.2d at 315-16.

As demonstrated by this court in Williamson, a court in its trial of the exception of prematurity analyzes the allegations of the petition under the Coleman factors to determine whether the allegations sound in medical malpractice and, thus, must proceed in accordance with the LMMA or sound in general negligence and, thus, should proceed under general tort law. Williamson, 04-0451 at p. 11, 888 So.2d at 789. Accordingly, we must apply the Coleman factors to the allegations of plaintiffs Ispetition regarding his hospital bed, ie., allegations (g) through (i), to determine whether those allegations fall outside the LMMA and would require defendant’s exception of prematurity be denied.

At the outset, we note with significance this suit is one against a qualified health care provider brought to recover for an injury allegedly sustained due to a patient’s contact with faulty equipment, specifically when the plaintiff put pressure on an allegedly unlocked or defective bed, which rolled, causing plaintiff to lose his balance and fall. With this in mind, we turn now to an application of. the Coleman factors.

Application of the Coleman Factors

(1)Whether the particular wrong is “treatment related” or caused by a dereliction of professional skill?

Although SMC asserts that the hospital bed, where a patient spends most of his time recovering, is integral to recovery and is intricately tied to the treatment of the patient, we find the particular wrong alleged, i.e., the furnishing of equipment not in proper working order, has nothing to do with the condition and associated treatment for which the plaintiff was hospitalized. Plaintiff fell and sustained a new injury to his knee when he put pressure on the bed that rolled and moved. He was hospitalized to treat an infection of the groin. These two separate ánd distinct events occurred independently of each other with one being treatment-related as to his groin infection and the other being an injury sustained by a fall caused by a bed that improperly rolled.

SMC further asserts that in order for SMC’s staff to be able to provide for a safe and uneventful recovery, they need to be familiar with the equipment, which is knowledge they acquire in the education, training, and certification they must undergo to acquire their professional status. However, in this case, plaintiff, alleges |9his hospital bed was either defective or someone did not lock the bed down as he should have. The locking or securing of a bed is something that is routinely performed by maintenance or housekeeping personnel or nurse’s aides and failure to properly lock a bed does not result from any dereliction of professional skill that is treatment-related for the patient. SMC’s interpretation of treatment-related would be very broadly applied which' is contrary to the proper strict interpretation we are bound to give in that the LMMA is in derogation of a tort victim’s rights. Thus, we find this factor weighs in favor of plaintiffs position that the allegations sound in general negligence.

(2) Whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached?

As to this factor, SMC asserts the act of properly equipping a hospital room involves a consideration of the actions and inactions of the nursing staff as well as hospital procedure, as does the failure to give proper instructions, which is one of the key roles of nurses. Thus, according to the defendant, expert testimony on nursing practices and hospital equipment may be relevant. However, as the locking or securing of a bed routinely falls to the maintenance staff or nurse’s aides, we find no medical expert will be needed to determine whether locking a bed for a hospital patient is negligent or to determine the proper maintenance procedures regarding the bed. We find this factor as well weighs in favor of the plaintiffs position.

(3)Whether the pertinent act or omission involved assessment of the patient’s condition?

Although SMC asserts the act of properly equipping a hospital room, the decision to keep the patient’s bed in the lowest position with the wheels locked, and the proper instructions to give a patient on the use and safety of his bed all involve an examination of the assessment of plaintiffs condition, we find the pertinent acts or omissions in this case do not implicate or require an assessment of a patient’s |inmedical condition. There is simply no showing that the failure alleged in this case even involved an assessment of plaintiffs condition by any hospital employee. Moreover, the condition for which the plaintiff was hospitalized and assessed has nothing to do with the omissions alleged, i.e., his groin infection has nothing to do with the failure to provide proper working equipment or to instruct the patient. Therefore, we find this factor weighs in favor of finding the allegations sound in general negligence.

(4) Whether an incident. occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform?

SMC submits this factor is clearly met in this case because plaintiff was admitted to SMC for surgery and plaintiffs recuperation in a hospital bed and his transfer to and from a bedside commode during his recovery period occurred in the context of his admission at SMC. However, the alleged incident did not occur in the context of a physician-patient relationship or within the scope of activities the hospital is licensed to perform, but rather when the patient put pressure on the bed, which rolled causing him to fall. Again, we find analysis of this factor weighs in favor of plaintiffs position.

(5) Whether the injury would have occurred if the patient had not sought treatment?

SMC contends that beds and bedside commodes are solely for patients’ use, but, as with the defective wheelchair in Williamson, it is just as reasonable to say that any visitor' to the hospital, even those not seeking treatment, who put pressure on this .particular bed, could have suffered injury. See, Williamson, 04-0451 at p. 14, 888 So.2d at 791. Moreover, the injury sustained was a completely independent injury from the condition for which the plaintiff sought treatment, i.e., drainage of his groin ^infection. We find this factor, too, weighs in favor of finding the allegations sound in general negligence.

(6)Whether the alleged tort was intentional?

This factor is not an issue in this case as there are no allegations that the actions or inactions of SMC or its staff were intentional.

Although the defendant asserts plaintiffs allegations sound in medical malpractice or are so intertwined with his medical malpractice claims that they cannot be severed from those claims, we find the application of the Coleman factors demonstrate that the failure to provide a patient with equipment in proper working condition, to keep a patient’s bed in the lowest position with the wheels locked, and to properly instruct a patient on proper use and safety with regard to his bed sound in general negligence as the wrongs alleged are not integral to the rendering of care and treatment by the health care provider to the patient in this case.

Moreover, as explained in Coleman, only plaintiffs claims “arising from medical malpractice” are governed by the LMMA, and all other tort liability on the part of the qualified health care provider is governed by general tort law. Coleman, 01-1517 at pp. 15-16, 813 So.2d at 315. Thus, plaintiffs claims of general negligence contained in allegations (g) through (i) are not entitled to the limitations or subject to the procedural requirements of the LMMA of first review by a pre-suit medical review panel, and should, as the district court determined, be severed from his medical malpractice claims, contained in allegations (a) through (f); to- proceed in accordance with general tort law.

Accordingly, under the Coleman test, plaintiffs allegations regarding his hospital bed are weighted in favor of our finding that these claims sound in general negligence and fall outside the purview of the LMMA, requiring the non-medical 1 ^malpractice claims to proceed under general tort law. Therefore, we find the district court correctly denied the exception of prematurity as to those allegations and rightly severed the claims from those sounding in medical malpractice.

CONCLUSION

With the assistance of the Coleman factors, we have applied the LMMA’s definition of medical malpractice to the allegations regarding plaintiffs hospital bed set forth in his petition, and we conclude that these claims do not fall within the provisions of the LMMA. Accordingly, we reverse the judgment of the court of appeal sustaining the exception of prematurity as to these claims and reinstate the judgment of the district court.

DECREE

For the foregoing reasons, we reverse the judgment of the court of appeal and reinstate the judgment of the district court.

REVERSED and REINSTATED.

VICTORY, J., dissents for the reasons assigned by WEIMER, J.

WEIMER, J., dissents and assigns reasons.

WEIMER, J.,

dissenting.

hi respectfully dissent.

I begin with the wording of the applicable statutes.

“Malpractice” is defined in LSA-R.S. 40:1299.41(A)(8), which provides, in pertinent part: “any unintentional tort or any breach of contract baséd on health care ... rendered, or which should have been rendered, by a health care provider to a patient.” (Emphasis provided.) In the instant case, it is undisputed that the defendant hospital is a health care provider. “Tort” is defined, in part, as: “any breach of duty or any negligent act or omission proximately causing injury or damage to another.” LSA-R.S. 40:1299.41(A)(7). (Emphasis provided.) Further, “‘Health care’ means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” (Emphasis provided.) These definitions are broadly drafted by the legislature, reflecting an intent to include many acts or omissions.

The definition of health care covers “any act or treatment.” The definition is not limited to “treatment,” but also encompasses “any act.” A hospital does more lathan provide treatment for the patient; the hospital also acts during the patient’s “medical care, treatment, [and] confinement” through its employees.

In the instant case, the plaintiff acknowledges seven of his ten allegations of negligence (listed in Blevins v. Hamilton Medical Center, Inc. d/b/a Southwest Medical Center — Lafayette, 07-1275, slip op. at 2-3 (La.3/23/07), 951 So.2d 1103, 1103) fall within medical malpractice and, as such, are subject to the medical malpractice act. Unlike the majority, I believe the plaintiffs three other allegations also fall within the medical malpractice act and that all the allegations are so intertwined with each other that the entire matter should be referred to a medical malpractice panel for review.

Failure to furnish the patient with equipment in proper working condition, failure to keep the bed in the lowest position with the wheels locked, and failure to instruct the patient on proper use of and safety with regard to his bed all implicate personnel at the hospital and specifically allege their failure to act.

The plaintiffs allegations at issue clearly implicate various acts performed or furnished, or which should have been performed or furnished, by a health care provider on behalf of a patient during the patient’s medical care, treatment, or confinement. As such, these acts implicate health care. LSA-R.S. 40:1299.41(A)(9). “In general, any conduct by a hospital complained of by a patient is properly within the scope of the [Medical Malpractice Act] if it can reasonably be said that it comes within the definitions of the Act, even though there are alternative theories of liability.” Richard v. Louisiana Extended Care Centers, Inc., 02-0978, pp. 11-12 (La.1/14/03), 835 So.2d 460, 467-468, quoting Rogers v. Synthes, Ltd., 626 So.2d 775 (La.App. 2 Cir.1993).

In Cashio v. Baton Rouge General Hospital, 378 So.2d 182 (La.App. 1 Cir.1979), the court of appeal correctly rejected the plaintiffs contention that the hospital 1 awas being sued solely as a premises owner and not as a health care provider. The court stated:

A plaintiff cannot control the progress and procedure of his claim by semantically designating one capacity of two or more belonging to the defendant as the desired one when the statute requires a procedure if the claim fits within its definition. That the duty breached is owed by an owner does not prevent the claim from being one against a health care provider and so subject to the procedure in the Act. A contrary conclusion would permit plaintiffs to avoid the application of the Act by alleging ownership of the premises by the hospital, a practically universal situation. We do not ascribe that intent to the legislature.

Cashio, 378 So.2d at 184-185.

Cashio effectively required that when claims which fall within the Medical Malpractice Act are intertwined with claims allegedly outside the Act, the entire matter will be referred to the medical review panel. “[A]ny conduct complained of should be handled under the procedure of the Act if it can be reasonably said that it comes within the definitions of the Act even though there may be alternative theories for liability.” Cashio, 378 So.2d at 185.

I distinguish this matter from Williamson v. Hospital Service Dist. No. 1 of Jefferson, 04-0451 (La.12/1/04), 888 So.2d 782. Unlike Williamson, in which a wheelchair broke, the plaintiffs pleadings in the instant case do not allege the bed itself simply broke. Additionally, in Williamson the plaintiff had been discharged and was leaving the hospital. The patient’s “medical care, treatment, [and] confinement” were concluded.

In Williamson, this court stated it did not necessarily disagree that the Medical Malpractice Act applied to the original unamended petition, which had included the allegations that the hospital employee failed to inspect the wheelchair and carelessly used the wheelchair to transport the plaintiff. However, as amended by the second supplemental petition, the plaintiffs claims were not covered by the Medical ^Malpractice Act because malpractice claims of the original petition were abandoned. In other words, had the petition, as amended, contained intertwined medical malpractice and non-medical malpractice allegations, the Medical Malpractice Act would have applied. The court observed that the transportation of the patient in the wheelchair was not treatment related, although it recognized that a different result could be reached under different facts:

We find that the particular wrong alleged here, that the hospital negligently failed to repair the wheelchair and failed to insure that it was in proper working condition before returning it to service, is neither “treatment related” nor caused by a dereliction of “professional skill” within the meaning of the Medical Malpractice Act. The court of appeal reasoned that the transportation of a patient in a wheelchair as the patient is being discharged from the facility is part of the overall treatment of the patient, and is therefore “treatment related. While that reasoning might apply in a different case, the wrong complained of here is that the hospital negligently failed to repair the wheelchair and placed it back into service without verifying that it was properly repaired. Those acts are not directly related to, nor do they involve, “treatment” of this patient. [Emphasis added.]

In contrast to Williamson, where the plaintiff already had been discharged from the hospital, plaintiffs injuries in the instant case were the result of use of the bed which was necessary to his on-going treatment at the hospital for his groin injury. Moreover, plaintiff does not allege his injuries were caused by the hospital’s failure to properly repair or maintain the bed or other equipment. Rather, he alleges the hospital failed to furnish him with the proper equipment and failed to instruct him in the proper use of the equipment. These allegations to relate to the type of treatment the hospital provided him rather than to any condition of the equipment itself.

It is also significant that unlike the plaintiff in Williamson, the plaintiff in the instant case has made allegations which clearly fall within the scope of the Medical Malpractice Act.

|,An Sewell v. Doctors Hospital, 600 So.2d 577 (La.1992), a patient in a hospital was injured when his hospital bed collapsed. The patient specifically limited his action to strict liability for a defective thing under the defendant’s custody. The patient did not allege any act or omission by the health care provider caused the bed to be defective or that the health care provider knew or should have known of the defects. In a footnote, the court stated:

Thus, a health care provider’s liability may arguably be included under the Act when a patient is injured in a fall from the hospital bed because the provider’s employee was negligent under the particular circumstances in failing to raise the sides, but the provider’s liability may not be included under the Act when the patient is injured in a fall because the same bed collapsed from a metallurgical defect, unless the provider caused the defect or knew or should have known of the defect and neglected to repair it.

Sewell, 600 So.2d at 580 n. 6.

      . According to the petition, the request is presently pending.

      . In its exception, SMC also explained that plaintiff had requested the appointment of David Cook as the attorney chairman for the panel and had received confirmation of the appointment of the attorney chairman by the Patient's Compensation Fund.


author: VICTORY, J.

text:
    WASHINGTON ST. TAMMANY ELECTRIC COOPERATIVE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 2007-CA-0399.
    Supreme Court of Louisiana.
    June 29, 2007.

      Sharp Dooley, John Malone Sharp, Stephen H. Shapiro, Baton Rouge, for applicant.
    Phelps Dunbar, Kyle Christian Marion-neaux, John Owen Shirley, Sr., Baton Rouge, Eve Kahao Gonzales, Amanda Hurt Smith, Ann Beryl Hill, for appellee.
   VICTORY, J.

|! Washington St. Tammany Electric Cooperative, Inc. (“WST”) and Cleco Power, LLC. (“Cleco”) are competing to serve customers in the La Chenier Subdivision in Slidell, Louisiana. The issue in this case is whether WST violated the “300 Foot Rule” by extending electrical service to points of connection in the subdivision that were within 300 feet of Cleco’s existing power lines.

FACTS AND PROCEDURAL HISTORY

WST contracted with the developer of the La Chenier Subdivision to provide electrical service to the subdivision, pursuant to which it agreed to construct electric facilities in the subdivision and serve the residents. WST entered into the agreement with the understanding that it might have to concede some of the subdivision lots to Cleco based upon Cleco’s nearby existing facilities. In February 2005, Cle-co filed a complaint with the Louisiana Public Service Commission (the “Commission”) alleging that WST had violated La. R.S. 45:123 and Commission General Order dated May 26, 2004, by extending electric service to a sign for La Chenier and ^approximately 60 lots within the subdivision, whose points of connection Cleco believed to be within 300 feet of Cleco’s existing electric lines. WST asserted that |swhile it has an agreement to serve all of the subdivision, it currently provides service to only lots 11, 13, 17, 18, 19, 20, 34, 37, 40, the entrance sign, some streetlights in the vicinity of the entrance sign, and a sewer lift station located between lots 11 and 12. WST alleged that it energized the entrance sign prior to Cleco energizing its lines in the area, and that it then extended service back to an area between lots 11 and 12 where the sewer lift station is located. WST based its right to serve the lots in question on its points of connection with the sewer lift station and subdivision sign.

In accordance with the special procedures for adjudication of 300 Foot Rule disputes provided in Rule 67 of the Commission’s Rules of Practice and Procedure, the Commission’s Staff Team issued a written opinion regarding the dispute on March 30, 2005. Asserting that the Staff Opinion was incomplete and inconclusive, on April 13, 20Q5, both Cleco and WST filed complaints, requesting a de novo proceeding. The complaints were consolidated.

A hearing was held before Administrative Law Judge Carolyn DeVitis (the “ALJ”) on June 20, 2005. At the hearing, Cleco asserted that lots 1-3, 21-36, 84-87, 96, 106 and 114, in their entirety, are located within 300 feet of Cleco’s existing power lines, that lots 4-20, 107-111 and 113 are within 300 feet of Cleco’s existing electric line if normal, typical, and legal meter configuration are followed, and that |4the subdivision sign and certain streetlights are located within 300 feet of Cleco’s existing power lines.

At the hearing, Cleco presented the testimony of a licensed land surveyor, Randall Brown, who prepared a plat that illustrated all of the areas within the subdivision that lie within 300 feet of Cleco’s existing lines. Cleco employees Scott Biggers and David Hursey testified that all of the lines on the plat were constructed and in service before construction was begun on the subdivision. According to the plat, lots 1-3, 21-36, 84-87, 96, 106, and 114 are all within 300 feet of Cleco’s pre-existing lines.

The plat also showed that lots 4-20,107-111, and 113 were placed so that almost all of each of them fell within 300 feet of Cleco’s lines, with only the rear 14 feet being outside of the 300 foot range. Cleco introduced Restrictive Covenant No. 10 which provided for a minimum set back of 25 feet from the rear of the property and introduced testimony and photographs showing that the normal placement of residential meters was attachment to the exterior wall of the residence. Because a structure cannot be placed within the final 14 feet of a lot in the subdivision, it would not be possible to place a point of connection outside of 300 feet of Cleco’s existing power lines.

WST did not dispute the claims with regard to Cleco’s lines as shown by the plat; instead, WST claimed that it also obtained rights under the 300 Foot Rule to serve the lots in question as a result of its service to a sewer lift station and sign within the subdivision. WST asserted before the ALJ that it was entitled to provide electricity to the La Chenier subdivision sign because Cleco had no energized electric lines within 300 feet of the sign. From that sign, WST alleged that it extended its | (¡facilities along the rear of the lots fronting a proposed extension of Cross Creek Drive in order to serve a sewer lift station located on the common area between lots 11 and 12. The evidence presented showed that the lift station was within 300 feet of an existing Cleco line, but that the meter was placed in a position that was outside this 300 foot range. From the lift station meter, WST claimed 300 Foot Rule rights to other lots in the subdivision.

The ALJ credited the evidence presented by Cleco that its line was energized first, and therefore Cleco had the right to service the subdivision sign. The ALJ also found that WST violated LPSC General Order dated May 10, 2005, by placing the meter station to the lift station outside of Cleco’s 300 foot rights. The ALJ found that no explanation was offered for the unique placement of the meter station other than to be outside of 300 feet of Cleco’s line, and that therefore, WST was not entitled to serve the lift station and that no 300 foot rights flowed in favor of WST from serving the lift station. Accordingly, the ALJ entered the following order:

That Cleco’s claims as regards lots 78, 79, 83, 88, 94, 112, 115 are hereby dismissed with prejudice.
That as between Cleco and WST, Cleco is entitled to serve Lots 1-3, 21-36, 84-87, 96,106, and 114.
That as between Cleco and WST, Cleco is entitled to serve Lots 4-20, 107-111, and 113.
That WST’s service to the Lift Station is in violation of La. R.S. 45:123 and Commission Orders.
| fiThat WST is directed to promptly discontinue service to the Lift Station and arrange to transfer service to Cleco as soon as Cleco is able to provide service to the Lift Station.
That, as it has been determined that WST cannot legitimately serve the lift station, no 300 foot rights flow from the line serving the lift station.
That, while the issue remains close, the preponderance of the evidence indicates that Cleco, rather than WST should serve the La Chenier Subdivision sign. That WST is directed to promptly discontinue service to the La Chenier Subdivision sign and arrange to transfer service to Cleco.
That under the particular facts [and] circumstances of the case, a fine will not be imposed.

The ALJ’s decision was affirmed by a unanimous vote of the Commission in its October 19, 2005, Business & Executive Session and resulted in Order U-28704 consolidated with Order U-28705. WST appealed the Commission’s Order to the 19th Judicial District Court. After a hearing, the court entered a Judgment affirming the Commission’s Order. WST appealed to this Court pursuant to La. Const, art. IV, § 21(E), which provides that this Court has jurisdiction over a direct appeal from any judgment rendered by the district court in connection with the judicial review of any action taken by the Commission.

DISCUSSION

The Louisiana Constitution provides the Commission with the authority to “regulate all common carriers and public utilities” and to “adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties ...” La. Const, art. IV, § 21. As a general rule, an order of the Commission should not be overturned on review unless it is shown to be arbitrary, capricious, abusive of its authority, or not reasonably based upon the evidence presented. Alma Plantation v. Louisiana Public Service Com’n, 96-1423 (La.1/14/97), 685 So.2d 107, 110-111; Washington-St. Tammany Elec. Coop., Inc. v. Louisiana Public Service Com’n, 95-1932 (La.4/8/96), 671 So.2d 908, 912. The Commission’s factual conclusions are entitled to great deference, as are its interpretation of its own rules and orders. Alma Plantation, supra at 110. However, the Commission is not entitled to deference in its interpretation of statutes and judicial decisions. Washington-St. Tammany Elec. Co-op., Inc., supra at 912. A person attacking a Commission order bears a high burden of demonstrating that it is defective. Louisiana Power & Light Co. v. Louisiana Public Service Com’n, 609 So.2d 797, 799-800 (La.1992).

Generally, La. R.S. 45:123 prohibits one electric public utility from serving a point of connection which is: (1) currently being served by another electric utility or (2) .not currently being served by another electric utility but is located within 300 feet of an electric line of another electric utility, without written consent of that utility. However, this prohibition does not preclude a utility from extending service to an applicant for .service “at an unserved point of connection” within 300 feet of its own line. La. R.S. 45:123(A)(l)(a). As a result, if there is an unserved point of connection within 300 feet of two public utilities’ electric lines, the customer is allowed to choose the provider, which is known as “customer choice.” Washington-St. Tammany Elec. Co-op, Inc., supra at 913. For purposes of La. R.S. 45:123, an electric line is a line which was not originally constructed for the principal purpose of preempting territory.

In addition, the May 26, 2004 General Order provides:

It is the determination of this Commission that, in order to effect economies in the service of electricity, and thereby maintain reasonable rates, uneconomic and wasteful practices should be prohibited. As a result, the needless paralleling and duplication of existing transmission or distribution lines or the extensions thereof, by electric public utilities in order to serve customers readily accessible to like facilities of an electric public utility already providing service in the immediate area, should be discouraged.

1 ¡¿Further, the General Order also states that “[a] competing utility shall not serve the point of connection presently or previously served by another electric public utility by placing a meter or by placing a Point of Connection outside 300 feet of the service location.” Finally, the General Order provides that “[wjhere necessary, the Commission shall determine whether the choice of the meter location was intended to circumvent this General Order prohibiting the needless duplication or extension of facilities.”

The two issues to be resolved in this case are (1) whether Cleco had an energized electric line within 300 feet of the La Chenier subdivision sign at the time WST connected to that sign, and (2) whether the meter at the sewer lift station was placed outside 300 feet of Cleco’s existing line in order to circumvent the 300 Foot Rule. The Commission’s findings regarding these issues will not be disturbed unless we find them to be clearly erroneous or unsupported by the evidence.

Cleco alleged that it had an energized underground electric line approximately 100 feet from the point of connection of the sign at the time WST connected to the sign, and the Commission agreed. WST claims that the Commission’s factual findings were arbitrary and capricious and unsupported by the record because the ALJ failed to consider uncontradicted testimony of WST’s employee, Jesse Perry, that WST’s line was installed to the subdivision sign before the CLECO line was installed or energized. Mr. Perry testified that the WST line to the La Chenier sign was energized “[mjaybe November — right after Thanksgiving 2003, and the permit came in maybe the end- — December 10, 2003, by memory.” He testified that a sign was being constructed for the Turtle Creek subdivision, right across the street from the La Chenier sign, which was to be energized by a Cleco line, but that sign was not energized until December, 2003. He also testified that streetlights in the area, that | ¡¡were supposed to be energized by Cleco, were not working as of December 10, supporting his belief that the Cleco line was not energized as of that date. He testified that both WST and Cleco were working on energizing these signs at the same time, and that one of WST’s lines was cut, probably when Cleco was putting in its line, again confirming his belief that the WST line was energized first. On cross-examination, he testified that before WST began digging the underground line to service the sign, he called Louisiana One Call to make sure WST “didn’t hit anything,” and that Louisiana One Call did not find anything. However, he testified that this dig was not to determine 300 foot rights and was not in the location of Cle-co’s lines to the Turtle Creek subdivision.

WST’s employee Charles Hill testified that he did not believe Cleco’s electric line was installed and energized at the time WST connected to the subdivision line. However, he conceded that he never visited the site to consider 300 Foot Rule violations, and thus was never really looking for such violations.

Two Cleco employees testified regarding the subdivision sign. Biggers identified Cleco’s electric lines and points of connection located on the Brown plat. Biggers testified that the first violation Cleco noticed was WST’s meter located behind the subdivision sign and 110 feet from Cleco’s existing electric line. .Although Biggers did not recall the exact date the Cleco line was constructed, he testified “our lines were there when WST hooked to that meter ... ” and “I do know our lines were there when they hooked up to [that meter], and that’s what initiated this [complaint] ...” and “I just know they’ve been there for several years.”

Hursey testified that he did not recall when WST first connected to the sign, but testified that “I do recall it was late in the year; I do recall it was after our system was installed and energized.” He knew this because “when we sent Randy Brown — |whenin I sent him out- here to do this, there was nothing here. So, in order for him to take these measurements from all of this equipment, it would have had to have been installed prior to that.” He recalled that the Cleco line within 300 feet of WST’s connection to the subdivision sign was installed “around September, possibly even August — August or September — and energized by late September of that year, early October, possibly.” Hur-sey further testified that Cleco’s line was installed before WST’s connection of the street sign. On cross-examination, he admitted he had no documentation to prove that the Cleco line was installed and energized before WST connected to the subdivision sign. WST’s attorney showed him a letter indicating that WST extended electrical service to the La Chenier sign on December 8 and that Cleco’s permit for the Turtle Creek sign across the street was not until December 29. However, when Hursey was recalled to the stand, he identified three Cleco construction reports. The first and second, dated October 31, 2003, and November 7, 2003, stated that for Turtle Creek Phase 5-1-C, “we experienced a dig which destroyed about 3,000 feet of cable. We are replacing it and should finish this week.” He explained that a contractor doing site work for La Chenier was installing culverts underneath the road and dug into Cleco’s cable, damaging a significant amount of it. A report dated November 19, 2003 stated “the system should be energized again this week.” These reports indicated that the Cleco line was energized before the subdivision sign was connected by WST, but it may have been briefly de-energized while the line was being repaired.

After hearing this conflicting testimony, the ALJ found:

Cleco was more effective in providing rebuttal testimony for WST’s testimony and explanations of why that testimony was not conclusive. Useful plats were provided, but otherwise documentation of events was sparse. A reference was made to permits by a WST employee, but no documents were provided. Cleco did provide corroborating evidence for its claim of an earlier installation and energization in the form of three In Construction Progress Reports. While the issue remains close, the preponderance of the evidence indicates that Cleco, rather than WST should serve the La Chenier Subdivision sign.

After reviewing the record, we find that the ALJ’s finding on this issue, and the Commission’s subsequent order, were not arbitrary, capricious, or not reasonably based upon the evidence presented. It is not our function to reweigh or reevaluate the evidence and we will not. A finding that Cleco had an energized line within 300 feet of the subdivision sign at the time WST connected to the sign is reasonable based on the evidence presented.

The next issue involves the meter placement at the lift station. The evidence was clear that had the meter been placed on the lift station, its location would have been within 300 feet of Cleco’s lines. However, the meter was placed some distance from the lift station, and the placement was outside of 300 feet of Cleco’s lines.

Riggers testified that the meter location for the lift station was “the first one I’ve seen like that, in that particular setup.” Hursey testified that he had never seen a meter located away from a lift station like that and was not aware of any reason why that would be done. When Mr. Gallegos was asked whether he had ever seen any lift stations with the meter located such a distance from it, he answered:

Normally not. I don’t recall seeing one, but I can see where it could happen, in that the responsibility for all the conductor from that meter to a lift station is the customers. And it may be some benefit to the utility to have the meter that far away so they’re not responsible for anything that happens underground there from there to the sewer lines.

li?.The ALJ concluded that “[g]iven the circumstances, it would be very difficult not to conclude that the choice of the meter location was an attempt to avoid the Commission’s 300 Foot Rule.” Accordingly, the ALJ found:

WST should not be permitted to avoid operation of the 300 Foot Rule by placing a remote meter outside of 300 feet to serve a lift station that lies within 300 feet of Cleco’s lines. Placing a meter away from the lift station in order to avoid Cleco’s rights provided under Commission Order, should not be tolerated.

WST argues that the ALJ rejected the testimony of Mr. Perry, who testified that when WST was ready to begin installing electric lines to serve the lift station, he went to the site and found that the meter rack, meter pan and underground conduit had already been set by the electrician employed by the developer. He testified that WST did not chose the location of the meter, and that WST had no conversations with either the developer or the electrician about the meter location, thus negating any inference that WST conspired with the customer to circumvent the 300 Foot Rule. Further, WST argues that because the customer chose the meter location, the Commission has exceeded its authority in that it has no right to regulate the conduct of private individuals. We disagree.

In Washington-St. Tammany Elec. Coop, Inc., supra, we reiterated that “the purpose of R.S. 45:123 is to ‘avoid the needless duplication of electric facilities.’ ” 671 So.2d at 914 (citing Louisiana Power & Light v. Louisiana Public Service Com’n, supra at 801; Claiborne Elec. Coop., Inc. v. Louisiana Public Service Com’n, 388 So.2d 792, 796 (La.1980); Central Louisiana Elec. Co., Inc. v. Louisiana Public Service Com’n, 344 So.2d 1046, 1048 (La.1977); Louisiana Power & Light Co. v. Louisiana Public Service Com’n, 343 So.2d 1040, 1043 (La.1977)). In that case, we discussed scenarios under which interpreting “point of connection” to mean the actual meter box could lead to violations of the needless | ^duplication of services which the 300 Foot Rule is meant to avoid. Specifically, we held that “a customer being served by one utility located within 800 feet of the lines of two electric utilities, but presently being served by one utility, could create a customer choice situation simply by destroying his existing meter box or moving it to another location on the same structure.” Id.

While the Commission does not have the authority to tell private individuals where they can install their meters, the Commission has the explicit authority to prohibit the needless duplication or extension of facilities, and it currently does that by enforcement of the 300 Foot Rule. Pursuant to General Order dated May 26, 2004, the Commission may determine whether a meter location has been selected to circumvent the 300 Foot Rule, regardless of whether that selection was made by the utility or the customer. Further, the Commission can, without question, prevent an electric utility from providing service to a point of connection that circumvents the 300 Foot Rule.. Thus, we hold that the Commission did not exceed its jurisdiction by prohibiting WST from providing service to the lift station meter, even though WST did not chose the meter location. The Commission found that the meter location was chosen in an attempt to circumvent the 300 Foot Rule, and there is a reasonable evidentiary basis in the record to support this finding. Therefore, we affirm the Commission’s Order that WST has no right to serve the sewer lift station and that no 300 Foot rights flow from WST’s service to the lift station.

DECREE

For the reasons stated herein, the judgment of the district court is affirmed.

AFFIRMED.

      . Collectively, La. R.S. 45:123 and the corresponding Commission General Order dated May 26, 2004, comprise what is commonly referred to as the "300 Foot Rule." La. R.S. 45:123 provides:
      § 123. Stabilizing service by electric public utilities; extension and construction of facilities, regulation thereof; limitations on municipally-owned or operated utilities
      A.(1) No electric public utility shall construct or extend its facilities or furnish or offer to furnish electric service to any point of connection which at the time of the proposed construction, extension, or service is being served by, or which is not being served but is located within three hundred feet of an electric line of another electric public utility, except with the consent in writing of such other electric public utility. However, nothing contained herein shall preclude:
      (a) Any electric public utility from extending service to an applicant for service at an unserved point of connection located within three hundred feet of an existing electric line of such electric public utility, unless:
      (i) Such line was not in operation on April 1, 1970, and
      (ii) The point of connection is located within three hundred feet of an existing electric line of another electric public utility, which line was in operation on said date, or
      (b) Any electric public utility from extending service to its own property or to another electric public utility for resale.
      (2) Further, any consumer receiving electric service from a public utility that is subject to the jurisdiction of the Louisiana Public Service Commission who feels aggrieved with the electric service being received by him may apply to the Louisiana Public Service Commission for an order directed to his present supplier to show cause why the consumer should not be released from said supplier, and if the commission shall find that the service rendered to such consumer is inadequate and will not be rendered adequate within a reasonable time the release shall be granted.
      B. As used in this Section, "electric line” means a line constructed and operated for the transmission or distribution or transmission and distribution of electricity, and that was not originally constructed for the principal purpose of preempting territory.
      C. Nothing in this Section shall either prohibit or mandate the performance by any parish, municipality, political subdivision, or combination thereof, of any agreement for the sale of electric power executed prior to January 1, 1984, or any renewal of such agreement. Nothing in this Section shall prohibit or mandate in the performance of such agreement the furnishing of service to persons and business organizations being served by another electric public utility.

        D. Notwithstanding any other provision of this Section, any municipally-owned or operated utility may furnish or offer to furnish electric service to any point of connection for a retail consumer who is not being served by another utility without the necessity of obtaining the written consent of any other utility if such point of connection is within one mile of such municipality's corporate limits, as such corporate limits of a municipality with more than fifty megawatts of peak load exist on the effective date of this Section and on every third anniversary date of the effective date of this Section, and as such corporate limits of all other municipalities which have fifty megawatts or less of peak load now or in the future exist from time to time.
      E. Nothing in R.S. 45:121, 45:123, 45:1161, 45:1175, or R.S. 12:426 shall alter the rights or authority of municipalities with respect to franchises within the corporate limits of a municipality as such limits exist from time to time.

      . Specifically, Cleco alleged in its Petition as follows:
      Upon information and belief, the evidence will show that the points of connection of these lots, and possibly others, are located within 300 feet of Cleco’s existing line, and not within 300 feet of any electric line belonging to WST. Alternatively, the evidence will show that the locations of the points of connection for the lots in question were chosen with the intent to circumvent the 300 Foot Rule Order. Additionally, Cleco asserts that the points of connection for subdivision signs and streetlights within the subdivision are located within 300 feet of Cleco’s existing lines, and not within 300 feet of any existing line belonging to WST.
      On June 20, 2005, Cleco amended its complaint to dismiss without prejudice any 300 foot right claims to Lots 78, 79, 83, 88, 94, 112, 115 and 116.

      . Cleco conceded that lots 77, 95, and 117 are located outside of Cleco's existing electric line if normal, typical, and legal meter configuration are followed.

      . WST contends that prior to its extension of service to the point of connection for the lift station, Cleco had the right to serve Lots 4-14 and Lots 21-32, and potentially, Lots 3, 15, and 33, depending upon the location of the point of connection. However, upon completion of its extension to the lift station point of connection, WST then also had existing facilities within 300 feet of Lots 4-14 and lots 21-32, and, as a result, that area became customer choice. In addition, by extending service to the lift station, WST contends it gained the exclusive right to serve Lots 41-43, 50-52, 59-61, 97 and 101-105, as well as potentially Lots 98-100 and 109, depending upon the location of the point of connection.

      . We reject WST’s argument that WST's service to the lift station was not part of Cleco's complaint and it was therefore error for the ALJ to consider it. The lift station was at all times considered a part of the territory claimed by Cleco, as clearly marked on its map of the La Chenier subdivision. Service to the entire subdivision was at issue in this case and the lift station is located in the subdivision. Further, WST is now asserting the right to serve certain of these lots based on its point of connection to the lift station.