author: CRENSHAW, Judge.

text:
    Edward A. HORTON, Appellant/Cross-Appellee, v. Ella HORTON, Appellee/Cross-Appellant.
    No. 2D10-2814.
    District Court of Appeal of Florida, Second District.
    June 10, 2011.

      Robert Koop Johnson of Robert Koop Johnson, P.A., Naples, for Appellant/Cross-Appellee.
    Cynthia B. Hall of Law Offices of Silver-io & Hall, P.A., Naples, for Appel-lee/Cross-Appellant.
   CRENSHAW, Judge.

Edward A. Horton, the Former Husband, appeals the final judgment dissolving his marriage to Ella Horton, the Former Wife. On appeal the Former Husband argues that the trial court incorrectly calculated the marital portion of his retirement account and that credit should have been awarded for all nonmarital funds contributed to the parties’ Naples home. The Former Wife cross-appeals, arguing that the trial court incorrectly calculated the marital portion of the Former Husband’s retirement account, erred in carving out a nonmarital interest in the value of the Naples home for the Former Husband, and erred in denying her request for alimony. Based on the reasons expressed below, we reverse the trial court’s division of the Former Husband’s retirement account and unequal distribution of the Naples home. We affirm the trial court’s award of rehabilitative alimony for tuition expenses, but reverse the denial of a rehabilitative award for living expenses. We affirm the remainder of the final judgment of dissolution.

Division of the Former Husband’s retirement account

Because the trial court used an incorrect coverture fraction in calculating the marital portion of the Former Husband’s retirement account, we reverse and remand for further proceedings. The marital portion of a retirement account is to be equitably distributed under section 61.075, Florida Statutes (2009). A cover-ture fraction is a formula used by the trial court to determine the marital portion of a retirement or pension fund. Parry v. Parry, 933 So.2d 9, 14 (Fla. 2d DCA 2006). To determine the amount of a retirement or pension fund accumulated during the marriage, the trial court “creat[es] a fraction where the numerator is the amount of time the employee was married while participating in the plan, and the denominator is the total time the employee has in the plan.” Trant v. Trant, 545 So.2d 428, 429 (Fla. 2d DCA 1989) (emphasis added). The trial court then multiplies the plan’s present value by the coverture fraction to calculate the total present value of the retirement fund which accrued during the marriage. Id.

Here, the trial court applied the correct methodology to determine the marital portion of the Former Husband’s retirement account with American Airlines, but it used an incorrect coverture fraction. The Former Husband testified that he worked for American Airlines for a total of twenty-nine years. Of those twenty-nine years, he worked and contributed to the retirement plan for only six to seven months of marriage. And because there is no competent substantial evidence supporting a period beyond six to seven months, we conclude that the trial court erred in using a numerator of twelve months to determine the marital portion of the retirement account. Accordingly, we reverse and remand for the trial court to recalculate the marital portion of the Former Husband’s retirement account using a correct cover-ture fraction not to exceed six to seven months.

Division of the Naples home

We next conclude that the trial court erred in carving out a nonmarital interest in the Naples home because all of the funds used to purchase the home were commingled with marital funds. The Former Husband argued below that he was entitled to the funds used to purchase the parties’ Naples home because the funds came from the sale of his nonmarital property in Plano, Texas. However, the trial court found that after the parties married, the mortgage on the Plano, Texas property was paid with marital funds. Further, the funds from the Plano, Texas property sale were deposited into accounts that the trial court specifically found to be marital assets because of commingling. And because the funds lost their nonmarital character when they were commingled with marital funds, we conclude that the trial court erred in carving out a nonmarital interest for the Former Husband in the parties’ Naples home. See Pfrengle v. Pfrengle, 976 So.2d 1134, 1136 (Fla. 2d DCA 2008).

We also note that the trial court explicitly declined to find justification for an unequal distribution of marital assets. Accordingly, we reverse the portion of the final judgment crediting the former husband with $129,500 of the equity in the Naples home and remand for the property to be equitably distributed.

Denial of alimony

We conclude that the trial court abused its discretion in limiting the rehabilitative alimony award to the Former Wife’s educational expenses. We affirm without comment the denial of the Former Wife’s request for permanent alimony. “The principal purpose of awarding rehabilitative alimony is to provide funds to the requesting spouse so he or she can establish the capacity for self-support, either through the redevelopment of previous skills or the provision of the training necessary to develop potential supportive skills.” Lovell v. Lovell, 14 So.3d 1111, 1115 (Fla. 5th DCA 2009). The spouse seeking rehabilitative alimony must present a rehabilitative plan to the trial court, and the record must show that the requesting spouse has a need for the alimony and that the other spouse has an ability to pay. Id. at 1116.

Here, the Former Wife requested $4200 per month of rehabilitative alimony plus tuition costs to allow her to obtain a degree as a paralegal. The trial court considered the factors of section 61.08, Florida Statutes (2009), and found that the Former Wife had no monthly income, that the Former Husband had financially supported the Former Wife throughout the marriage, and that “[biased on the scheme of equitable distribution ... there is significant disparity in the parties’ financial circumstances and ... the [Former Wife] leaves with fewer assets and no significant potential for investment income.” The trial court also noted that the Former Wife was a lawyer in her native country but is unable to practice law in the United States. The trial court ordered the Former Husband to pay up to two years of tuition on behalf of the Former Wife, but it failed to provide any rehabilitative alimony towards her costs of living. In doing so, we conclude that the trial court abused its discretion. We therefore affirm the award of rehabilitative alimony for tuition expenses but reverse the denial of rehabilitative alimony for living expenses. On remand, the trial court shall award the Former Wife rehabilitative alimony commensurate with her rehabilitative plan so she can establish the capacity for self-support. The trial court may reconsider the amount of rehabilitative alimony in light of the parties’ current financial standing including the equitable division of the Naples home.

Based on the foregoing reasons, we reverse and remand for the trial court to recalculate the marital portion of the Former Husband’s retirement account using a correct coverture fraction supported by the Former Husband’s testimony. We reverse the portion of the final judgment crediting the Former Husband with $129,500 of the equity in the Naples home, and we remand for the property to be equitably distributed. Finally, we reverse and remand for further proceedings the partial denial of the Former Wife’s request for rehabilitative alimony. We affirm the remainder of the final judgment of dissolution.

Affirmed in part, reversed in part, and remanded with directions.

KELLY and WALLACE, JJ., Concur.


source: Caselaw Access Project

author: BLACK, Judge.

license: Public Domain

text:
    L.A.P., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5832.
    District Court of Appeal of Florida, Second District.
    June 10, 2011.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   BLACK, Judge.

L.A.P. challenges her judgment and sentence for violating section 384.24(2), Florida Statutes (2008), which makes it a third-degree felony for any person with knowledge that she is infected with HIV to have sexual intercourse with another person without informing the other person of her status as HIV positive. Following the denial of her motion to dismiss, L.A.P. pleaded to the charge but expressly reserved the right to appeal the denial of her dis-positive motion to dismiss.

We must determine whether the trial court erred in denying L.A.P.’s motion to dismiss the charge on the basis that L.A.P.’s actions — engaging in oral sex and digital penetration of the vagina without informing her partner of her HIV positive status — violated section 384.24(2). Because section 384.24(2) requires sexual intercourse, we agree with L.A.P. that the statute does not apply to her actions and we are compelled to reverse her conviction.

“Questions of statutory interpretation are subject to de novo review.” Mendenhall v. State, 48 So.3d 740, 747 (Fla.2010). “As with any case of statutory construction, we begin with the ‘actual language used in the statute.’” Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198 (Fla.2007) (quoting Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla. 2006)). “This is because legislative intent is determined primarily from the statute’s text.” Id. (citing Maggio v. Fla. Dep't of Labor & Emp’t Sec., 899 So.2d 1074, 1076-77 (Fla.2005)).

[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning ... the statute must be given its plain and obvious meaning. Further, we are without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.

Velez v. Miami-Dade Cnty. Police Dep’t, 934 So.2d 1162, 1164-65 (Fla.2006) (citations omitted) (internal quotation marks omitted). We presume that the legislature knows the meaning of the words it uses and intends to employ those meanings in the statute. Overstreet v. State, 629 So.2d 125, 126 (Fla.1993).

There is no dispute that L.A.P. is HIV positive and that she failed to inform the victim of her status. Therefore, our resolution of this case hinges only on whether L.A.P. engaged in sexual intercourse. L.A.P. argues that sexual intercourse is an unambiguous phrase which must be given its plain meaning in the absence of a definition in chapter 384. We agree.

“[W]here a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense.” State v. Brake, 796 So.2d 522, 528 (Fla.2001) (citing State v. Mitro, 700 So.2d 643, 645 (Fla.1997)). Further, “[i]n the absence of a statutory definition, it is permissible to look to case law or related statutory provisions that define the term.” Id. (citing State v. Fuchs, 769 So.2d 1006, 1009 (Fla.2000)).

The only Florida statute that defines sexual intercourse is the incest statute, section 826.04, Florida Statutes (2008). It defines sexual intercourse as “the penetration of the female sex organ by the male sex organ.... ” § 826.04. Other statutes include the phrase sexual intercourse within definitions. See § 827.071(l)(a), Fla. Stat. (2008) (defining “deviate sexual intercourse”).

Importantly, this court has previously defined sexual intercourse as an act where “a male’s penis is placed inside the female’s vagina.” Green v. State, 765 So.2d 910, 913 (Fla. 2d DCA 2000). Other Florida courts have also defined the phrase. See State v. Bowden, 154 Fla. 511, 18 So.2d 478, 480 (1944) (concluding that “penetration of the female private parts by the private male organ” is an essential element of “carnal intercourse with an unmarried female of previous chaste character under the age of eighteen years”); Williams v. State, 92 Fla. 125, 109 So. 305, 306 (1926) (“ ‘Sexual intercourse means actual contact of the sexual organs of a man and woman and an actual penetration into the body of the latter.’ ” (citation omitted)); Lanier v. State, 443 So.2d 178, 183 (Fla. 3d DCA 1983) (defining sexual intercourse as “ ‘actual contact of the sexual organs’ of two persons and penetration of the body of another” (quoting Williams v. State, 109 So. at 306)), overruled on other grounds by State v. Lanier, 464 So.2d 1192 (Fla.1985).

The meaning of sexual intercourse within section 384.24(2) is clear and unambiguous. Courts should apply a literal interpretation of the language of a statute unless “to do so would lead to an unreasonable or ridiculous conclusion.” Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984). The result here is neither unreasonable nor ridiculous; it is merely an application of the statutory language to LAJP.’s actions. Thus, “there is no occasion for resorting to the rules of statutory interpretation and construction[,]” including consideration of the legislative history of the statute. Id. (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). However, even were we to do so, the result would remain the same. See Maddox v. State, 923 So.2d 442, 446 (Fla.2006).

“Since the [legislature specifically used words of distinct and clear meaning ..., the courts ‘may not invade the province of the legislature and add words which change the plain meaning of the statute.’ ” Lanier, 443 So.2d at 183 (quoting Metro. Dade Cnty. v. Bridges, 402 So.2d 411, 414 (Fla.1981)). The legislature limited the application of section 384.24(2) to specific conduct. This court is bound to apply the statutory language and cannot “depart from the plain meaning of the language which is free from ambiguity.” Maddox, 923 So.2d at 449-50 (quoting St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla.1982)). The legislature may, of course, amend the statute to broaden its application. See, e.g., § 796.08(4), Fla. Stat. (2008); § 827.071(l)(g).

Accordingly, we reverse L.A.P.’s conviction and remand with directions that the trial court discharge her.

CASANUEVA, C.J., and LaROSE, J., Concur.

      . Section 384.24(2) provides:
      It is unlawful for any person who has human immunodeficiency virus infection, when such person knows he or she is infected with this disease and when such person has been informed that he or she may communicate this disease to another person through sexual intercourse, to have sexual intercourse with any other person, unless such other person has been informed of the presence of the sexually transmissible disease and has consented to the sexual intercourse.


author: LaROSE, Judge.

text:
    A.S., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5118.
    District Court of Appeal of Florida, Second District.
    June 10, 2011.

      James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

A.S. appeals the revocation of her probation and her commitment to a moderate risk residential facility. Her underlying offenses were trespass on school grounds and third-degree felony battery. See §§ 810.097, 784.03(2), Fla. Stat. (2008). Because the trial court did not comply fully with the requirements of Florida Rule of Juvenile Procedure 8.165 regarding waiver of counsel, we reverse and remand for further proceedings.

At A.S.’s plea hearing, the State advised the trial court that A.S. wanted to admit to the violations. The trial court asked A.S. whether she wanted to admit or speak to a lawyer. A.S. said that she wanted to admit. The trial court conducted a plea colloquy, withheld adjudication, and set a disposition date. At a subsequent hearing, A.S. told the trial court that she wanted an attorney. At the disposition hearing, counsel represented A.S., who did not seek to withdraw the plea.

Rule 8.165 provides, in pertinent part, as follows:

(a) Duty of the Court. The court shall advise the child of the child’s right to counsel. The court shall appoint counsel as provided by law unless waived by the child at each stage of the proceeding. Waiver of counsel can occur only after the child has had a meaningful opportunity to confer with counsel regarding the child’s right to counsel, the consequences of waiving counsel, and any other factors that would assist the child in making the decision to waive counsel. This waiver shall be in writing.

(b) Waiver of Counsel.

(1) The failure of a child to request appointment of counsel at a particular stage in the proceedings or the child’s announced intention to plead guilty shall not, in itself, constitute a waiver of counsel at any subsequent stage of the proceedings.

(2) A child shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into the child’s comprehension of that offer and the capacity to make that choice intelligently and understanding^ has been made.

(8) If the child is entering a plea to or being tried on an allegation of committing a delinquent act, the written waiver shall also be submitted to the court in the presence of a parent, legal custodian, responsible adult relative, or attorney assigned by the court to assist the child, who shall verify on the written waiver that the child’s decision to waive counsel has been discussed with the child and appears to be knowing and voluntary. (4) No waiver shall be accepted if it appears that the party is unable to make an intelligent and understanding choice because of mental condition, age, education, experience, the nature or complexity of the case, or other factors. See also § 985.033(1), Fla. Stat. (2007) (“A child shall be represented by legal counsel at all stages of all court proceedings unless the right to counsel is freely, knowingly, and intelligently waived by the child.”); C.K. v. State, 909 So.2d 602, 603-04 (Fla. 2d DCA 2005). To determine whether a juvenile’s waiver of counsel is knowing and intelligent, the trial court must (1) inform the juvenile of the disadvantages and dangers of self-representation and the benefits she would relinquish, (2) determine whether she is choosing voluntarily and intelligently to waive the assistance of counsel, and (3) determine whether any unusual circumstances preclude the juvenile from exercising her right to represent herself. D.C.W. v. State, 775 So.2d 363, 364 (Fla. 2d DCA 2000); accord, C.K., 909 So.2d at 604.

Even though the trial court asked A.S. whether she wanted counsel at the plea hearing, it failed to inquire thoroughly as to whether she understood and had the capacity to intelligently choose to waive counsel. Nor did the trial court obtain the required verified written waiver. Failure to comply with rule 8.165 at the plea hearing constituted fundamental error. See State v. T.G., 800 So.2d 204, 213 (Fla.2001); G.T. v. State, 948 So.2d 900, 902 (Fla. 2d DCA 2007); C.K, 909 So.2d at 604; J.M.B. v. State, 800 So.2d 317, 318-19 (Fla. 2d DCA 2001). “[E]ven absent a motion to withdraw a plea, failure to advise a juvenile of [her] right to counsel in accordance with the rule is renewable and correctable on appeal.” State v. B.P., 810 So.2d 918, 919 (Fla.2002). “[I]f the waiver of counsel is invalid as a matter of law, it follows that the guilty plea entered without advice of counsel should also be deemed involuntary as a matter of law.” T.G., 800 So.2d at 213. The State properly concedes that the trial court erred in failing to follow rule 8.165. We reverse and remand for farther proceedings consistent with this opinion.

Reversed and remanded.

KHOUZAM and CRENSHAW, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Arnold SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-10.
    District Court of Appeal of Florida, Second District.
    June 10, 2011.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Arnold Smith appeals his sentence of three years in prison for driving while license revoked as a habitual traffic offender. Smith argues that the trial court committed fundamental error in considering his refusal to admit guilt, his protestations of innocence, and the truthfulness of his testimony as factors in sentencing. The State concedes that the trial court committed fundamental reversible error. We reverse and remand for resentencing before a different judge.

The record shows that a jury trial was held before Circuit Judge Anthony Riten-our on December 15, 2009. A police officer testified that he had pulled Smith over on February 21, 2009, and that Smith had told him that his driver’s license was suspended. The officer checked Smith’s driving record, confirming that Smith’s license was suspended and discovering that he was a habitual traffic offender. Smith’s fiancée, April Chandler, testified that she had requested that Smith drive that day because she had developed a glaucoma-related migraine headache as she was driving. She stated that she was worried that they would get into an accident if she continued driving. Smith testified that he was forced to drive to ensure that he and his fiancée, as well as other drivers on the road, were safe. The jury found him guilty of driving while license revoked as a habitual traffic offender.

A thorough sentencing hearing was held. Smith stipulated that he had been convicted of a prior burglary. Before announcing Smith’s sentence, the court stated:

All right. I’ve heard enough. I’m going to speak a little bit out loud. I’ve talked a little bit about this record. You do not have a very good record.
The good thing is I do believe you’re trying to do something but I think you’re kind of on the edge. That means you’re trying to do something but if you can still get away with some little things I think you do.
And I actually believe that you use Ms. Chandler ... as a person to hide behind or to help with some of the issues that you have.
But what I didn’t hear is pretty much most things, you didn’t do the Burglary. Well, the Grand Theft really wasn’t you. The Driving While License [Revoked] is because of all the cops in Dade County. And I haven’t really heard you accept responsibility for anything.
And I’m not real convinced, as well as you’re [sic] fiancée’s story as to what occurred because I do believe that when you look at what is in the report — and I guess the officer could have lied here about it — but I do look at the fact that if there was something so bad and that you had to drive, you don’t then get back in the car and drive and actually get lost, according to her calling people, how do I get to the police, how do I get there and then drive.
There was no testimony that when she got there and bailed you out -that now she either had a remarkable healing on the highway or it still wasn’t a problem until she got here. Then she had a remarkable healing here and then still drove to Miami and wasn’t ... or to Arcadia and drove to Sebring, not real convinced of that story. It appears that the jury was not as well. I do believe that you use her as a way to hide some of your actions.
Now, I do believe you’ve been trying to [sic]. I do believe some instances you have. But, you know, to be driving again in '08 and pick up Driving While License Suspended, pick up another one here with all these traffic summons and traffic fines still outstanding.

The court then adjudicated Smith guilty of third-degree felony driving while license revoked as a habitual traffic offender and sentenced him to three years in prison.

The trial court considered several impermissible factors when sentencing Smith. “It is impermissible for a trial court to consider a defendant’s assertions of his innocence and refusal to admit guilt in imposing sentence.” Hannum v. State, 13 So.3d 132, 135 (Fla. 2d DCA 2009) (citing Bracero v. State, 10 So.3d 664, 665-66 (Fla. 2d DCA 2009)); see also Brown v. State, 27 So.3d 181, 183 (Fla. 2d DCA 2010). Here, the trial court improperly considered these factors, noting that Smith refused to admit to prior crimes and had not “aceept[ed] responsibility for anything.” It is also improper for the court to consider the truthfulness of a defendant’s testimony when imposing sentence. Hannum, 13 So.3d at 136 (citing City of Daytona Beach v. Del Percio, 476 So.2d 197, 205 (Fla.1985)). The trial court in this case commented that he was “not real- convinced” of the story that Smith and his fiancée presented in their testimony.

Because the trial court expressly considered these improper factors in sentencing, Smith was denied due process and the trial court committed fundamental error. See Hannum, 13 So.3d at 136. Accordingly, we reverse and remand for sentencing before a different judge. See id. (citing Bracero, 10 So.3d at 665-66).

Reversed and remanded with instructions.

DAVIS and BLACK, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Terry L. SINGLETARY, Appellant, v. Kathryn A. GREEVER, Appellee.
    No. 2D10-931.
    District Court of Appeal of Florida, Second District.
    June 10, 2011.

      Elizabeth Greer, Lakeland, for Appellant.
    Kathryn A. Greever, pro se.
   SILBERMAN, Judge.

Terry L. Singletary seeks review of the final judgment of injunction for protection against repeat violence which was entered against him pursuant to section 784.046(2), Florida Statutes (2009). We reverse because the evidence does not support a finding that Singletary committed two incidents of violence against Kathryn A. Greever as required by the statute.

Greever filed a petition for injunction for protection against repeat violence against Singletary alleging that Singletary committed two incidents of violence against her at her home and her place of employment. At the hearing on the petition, Greever testified that Singletary’s daughter and Greever’s son were engaged and living with Greever. Despite their children’s relationship, however, Greever and Singletary had never met. Greever testified that, on one occasion, Singletary came to her home with the intention of giving his daughter a Christmas present. Single-tary did not enter the home but gave his daughter the present outside. Greever did not explain why she considered this visit to be an incident of violence except to say that Singletary “does have a past with his ex-wife.”

Singletary testified that he rang the doorbell at Greever’s house and heard a voice ask, “What is he doing here?” Sin-gletary’s daughter then came outside and told Singletary that Greever did not like him and that he must leave. Singletary gave his daughter the present and left. He claimed he had no idea why Greever did not like him and that he left without incident.

A coworker of Greever’s who worked as a bank teller testified that, on another occasion, Singletary came to the credit union where Greever was employed. Single-tary asked the teller whether she knew an employee named Kathy who had red hair and two sons. Singletary told the teller that he had gone to Greever’s house and heard Greever talking inside. When the teller asked Singletary if Greever knew him, he replied “kind of, but she will when I show up at her door with a gun in my hand.” The teller completed Singletary’s transaction without further incident, and Singletary left without having contact with Greever.

Singletary testified that he had been a client of the credit union’s for years and admitted that he went there two or three weeks after his visit to Greever’s house. While he admitted to asking the teller about Greever, he denied making any threats or mentioning a gun. The trial court granted Greever’s petition based on its conclusion that these two incidents qualified as repeat violence under section 784.046(2).

Section 784.046(2) creates a cause of action for an injunction for protection against repeat violence. “ ‘Violence’ means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” § 784.046(l)(a). “Repeat violence” is defined as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” § 784.046(l)(b). The repeat violence must be proven by competent, substantial evidence in order to support the issuance of an injunction. Smith v. Melcher, 975 So.2d 500, 502 (Fla. 2d DCA 2007).

We agree that the evidence in this case is insufficient to support a finding that Singletary committed two incidents of violence against Greever. In the incident at Greever’s house, there was no evidence that Singletary had any contact with Greever or made any threats toward Greever. Thus, Singletary did not commit any acts of violence directed toward Greever on that occasion.

Additionally, the incident at the credit union did not involve a threat of violence that amounted to an assault because there was no overt act demonstrating that the violence was imminent. See § 784.011(1); Santiago v. Towle, 917 So.2d 909, 911 (Fla. 5th DCA 2005) (holding that defendant’s statement to third party that he “had a gun and was not afraid to use it” did not constitute an incident of violence because there was no “overt act indicating an ability to carry out the threat or justifying a belief that violence was imminent”); Johnson v. Brooks, 567 So.2d 34, 35 (Fla. 1st DCA 1990) (holding that telephonic threats did not constitute incidents of violence because there was no evidence defendant did any act to create a fear of imminent violence).

Because the repeat violence is not supported by competent, substantial evidence, we reverse the final judgment and remand for the trial court to vacate the injunction.

Reversed and remanded.

CASANUEVA, C.J., and WHATLEY, J., Concur.


author: PER CURIAM.

text:
    Willie LONDON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1961.
    District Court of Appeal of Florida, First District.
    June 13, 2011.
    Herman D. Laramore, Public Defender, Fourteenth Judicial Circuit, and F.R. Mann, Jr., Assistant Public Defender, Panama City, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about September 20, 2010, in Bay County Circuit Court case numbers 07-2622-CFMA and 09-3744-CFMA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D). The court notes that the lower tribunal has determined that petitioner is indigent and has appointed the Office of the Public Defender to represent him on appeal.

BENTON, C.J., HAWKES and CLARK, JJ., concur.


text:
    Daniel Aaron NICHOLSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4497.
    District Court of Appeal of Florida, First District.
    June 13, 2011.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges criminal convictions which were obtained in a joint trial with a codefendant. In this appeal, the appellant contends that there was insufficient evidence to support the convictions for trafficking in hydrocodone, and for possession of cocaine and drug paraphernalia. The appellant also contends that the use of a jury instruction with an “and/or” conjunction between his name and the code-fendant’s name was fundamental error. These same issues were addressed by this court in the codefendant’s separate appeal in Nicholson v. State, 38 So.3d 107 (Fla. 1st DCA 2010), where the codefendant’s trafficking conviction was reversed, and his possession of cocaine and paraphernalia convictions were affirmed. Nicholson is controlling authority as to these matters, and the appellant’s conviction for trafficking is likewise reversed, while his convictions for possession of cocaine and paraphernalia are affirmed. In light of the reversal of the trafficking conviction, the appellant’s sentences are vacated and the case is remanded for resentencing under a corrected scoresheet. See Vroom v. State, 48 So.3d 82 (Fla. 2d DCA 2010); Smith v. State, 687 So.2d 308 (Fla. 1st DCA 1997).

ROBERTS, CLARK, and WETHERELL, JJ., concur.


author: PER CURIAM. VICTORY, J.,

text:
    Daniel MORENO v. ENTERGY CORPORATION, Entergy Gulf States, Inc., Entergy Louisiana, LLC, Eagle Enterprises of Jefferson, Lafayette Insurance Company, Walgreens Louisiana Co., Inc., ABC Insurance Co. and The Parish of Jefferson.
    No. 2010-C-2281.
    Supreme Court of Louisiana.
    Feb. 18, 2011.
   PER CURIAM.

| ¶ This case presents a straightforward, but novel, issue: whether there exists in Louisiana law an “exception of no cause of action based on prematurity,” and, if so, whether the court of appeal may supply this exception on its own motion. The answer to both questions is no. We therefore reverse the judgment of the court of appeal and remand for further consideration.

PROCEDURAL HISTORY

Plaintiff Daniel Moreno was injured while working near an overhead power line in Jefferson Parish. Moreno sued numerous defendants, including Entergy, the owner of the power lines. Entergy filed several third party cross-claims, which are the subject of these consolidated writs.

IsEntergy seeks indemnity based on the Overhead Power Line Safety Act, La.Rev. Stat. § 45:141-146 (“OPLSA”). This Act forbids any party from conducting work within ten feet of an overhead power line without first contacting the owner of the line and making appropriate safety arrangements. Entergy argues that, if it is held hable for Moreno’s injuries, the Act creates a right of indemnity against those contractors, including Stewart Interior Contractors, LLC, who worked near the power lines in violation of the Act.

The trial court ruled in favor of the cross-defendants, finding that the OPLSA does not create an independent right of indemnity for damages incurred as a result of injuries suffered by third parties. En-tergy appealed. The court of appeal affirmed on the grounds of prematurity, which had not been raised by any party: “the cross-claims of Entergy ... were premature. No fault has been allocated to any party in the ease, and no damages from Moreno’s action have been assessed against Entergy. No cause of action for indemnity has been incurred by Entergy at this phase in the matter.” Moreno v. Entergy Corp., 09-976 (La.App. 5 Cir. 9/10/10), 49 So.3d 418. The court, without requesting briefing from the parties, entered what it called an “exception of no cause of action on the basis of prematurity.” Id. at 422.

Both Entergy and cross-defendant Stewart Interior Contractors, LLC filed writs, urging the court of appeal’s sua sponte ruling was in error. We agree.

DISCUSSION

The exception of prematurity is a dilatory exception. La.Code Civ. Proc. art. 926(A)(1). A court may not raise a dilatory exception sua sponte; indeed, “All objections which may be raised through the dilatory exception are waived unless | spleaded therein.” La.Code Civ. Proc. art. 926(B). The court of appeal recognized this principle, citing Teche Financial Services, Inc. v. State, Dept. of Public Safety, 06-250, p. 5 (La.App. 3 Cir. 9/27/06); 939 So.2d 650, 654, for the proposition that “appellate courts cannot supply an exception of prematurity on its [sic] own motion.” Moreno v. Entergy Corp., 09-976 (La.App. 5 Cir. 9/10/10), 49 So.3d 418, 422.

However, a court of appeal may raise the peremptory exception of no cause of action sua sponte: “the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit ... may be noticed by either the trial or appellate court on its own motion.” La.Code Civ. Proc. art. 927(B). The court therefore fashioned a new exception, which it called the exception of “no cause of action on the basis of prematurity.”

The court of appeal erred as a matter of law, as these two exceptions serve completely different functions. An exception of no cause of action tests “the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading.” Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993). An exception of prematurity serves a completely different purpose: “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.” Williamson v. Hospital Service Dist. No. 1 of Jefferson, 2004-0451 (La.12/1/04), 888 So.2d 782, 785. These are two separate lines of inquiry, and the court of appeal erred in conflating them.

14Although the court of appeal claimed it was entering an exception of no cause of action, the judgment was not truly based on the legal insufficiency of the allegations. It is clear that the court based its ruling solely on the theory that Entergy’s indemnity claim was not ripe for adjudication, which is properly raised only via dilatory exception.

A similar issue appeared in the well-reasoned case of Steed v. St. Paul’s United Methodist Church, 31,521 (La.App. 2 Cir. 2/24/99), 728 So.2d 931. Plaintiff Marian Steed sued the church and its minister, alleging sexual harassment and discrimination. The minister filed a reconventional demand for defamation on the basis that plaintiffs false allegations had damaged his reputation in the community. Before the court of appeal, Steed argued the re-conventional demand was premature unless and until the court entered judgment finding her allegations were false. However, she never filed an exception of prematurity, and the court of appeal declined to supply one: “Prematurity, like the other dilatory exceptions, is waived unless pled.” Id. at 938. Although Steed asked the court of appeal to supply an exception of no cause of action based on prematurity, the court declined: “we are obligated to construe the exception by its substance, not the title supplied by the litigant. La. C.C.P. art. 865. Steed’s argument cannot be possibly construed as denying the legal sufficiency of Rev. Simmons’s reeonven-tional demand; her only genuine claim is prematurity. For the reasons already discussed, prematurity was waived.” Id. at 939. Accord, Farber v. La. State Board of Medical Examiners, 2009-0301 (La.App. 4 Cir. 9/9/09), 22 So.3d 962, 963.

I.Just as in Steed, the “true import” of the court of appeal’s judgment is the supposed prematurity of Entergy’s cross-claim. As Stewart did not raise this exception — and, it appears, purposefully chose not to raise this exception — the court of appeal erred in supplying it on its own motion.

CONCLUSION

Accordingly, we reverse the judgment of the court of appeal and remand to the court of appeal for consideration of preter-mitted issues not addressed in the original opinion.

Weimer, J., concurs in the result.

Victory, J., concurs and assigns reasons.

VICTORY, J.,

concurring.

|TThe court of appeal held that the indemnity claims were premature because the defendants had not yet been cast in judgment and supplied an exception of no cause of action based on prematurity to dismiss the indemnity claims without prejudice. The per curiam holds that there is no exception of no cause of action based on prematurity and that such exception can only be raised by a dilatory exception, which cannot be supplied by the court.

In Steeg v. Lawyers Title Ins. Corp., 329 So.2d 719 (La.1976), this Court held that the objection of prematurity may be raised not only by a dilatory exception, but also by an exception of no cause of action or as a defense in the answer. Steeg involved an objection of prematurity based on failure to exhaust administrative remedies and the objection was raised by a dilatory exception. However, the Court could not have been clearer in stating:

The defense that the plaintiff is not entitled to judicial relief because he has not exhausted his administrative remedies, may be raised to the merits, either by the exception pleading no cause of action, La. [2C.C.P. art. 927(4) (if such defense is affirmatively show by the petition without resort to objected-to evidence, La. C.C.P. art. 931), or by answer so pleading it. See O’Meara v. Union Oil Co., 212 La. 745, 33 So.2d 506 (1947).
The defense may also be raised, as it was here, by the dilatory exception pleading prematurity, La. C.C.P. art. 926(1), which is determined on the basis of the showing made at the in-limine trial of the exception, including evidence introduced at the trial thereof. La. C.C.P. art. 929, 930. The functions of the exception permit raising the issue that the judicial cause of action has not come into existence because some prerequisite condition has not been fulfilled. I McMahon, Louisiana Practice 341-49 (1939).

329 So.2d at 720.

Professor Maraist’s Civil Law Treatise discusses the exception based on prematurity in his sections dealing with the dilatory exception and the peremptory exception of no cause of action, and relies on Steeg as authority that the exception of prematurity can be raised by either. Frank L. Maraist, Louisiana Civil Law Treatise: Civil Procedure, Vol. I, § 6.6, p. 160, n. 26 (2d ed.2008). Professor Maraist states that “[I]n Steeg ..., the court noted that the objection of prematurity may be raised not only by a dilatory exception, but also by an exception of no cause of action or as a defense in the answer.” Id. Later, after stating that “[t]he exception of no cause of action must be distinguished” from certain dilatory exceptions, he cites Steeg as authority that some exceptions, namely the exception of prematurity, “may be urged through both exceptions.” Id., § 6.7, p. 170, n. 40. Based on the above, it seems the Ip,per curiam’s holding that the court of appeal “fashioned a new exception, which it called the exception of ‘no cause of action on the basis of prematurity’,” is not correct, and at the very least is too broad. As per Professor Maraist’s discussion in the above footnote, this Court has stated that the exception of prematurity can be raised by either exception, although the Court has not taken a stand on whether certain types of prematurity arguments can only be raised by certain types of exceptions, i.e., where the defendant has failed to take some preliminary step necessary to make the case ripe for judicial involvement. However, the statement made in Steeg was technically dicta, as the exception there was raised as a dilatory exception.

In my view, the Court should address the primary, and much clearer, issue, which is whether a third party indemnity claim is premature when the defendant has not yet been cast in judgment. The court of appeal found that such a claim is premature. However, a clear reading of La. C.C.P. arts. 1111-1116 demands that the third party demand is not premature. For example, La. C.C.P. art. 1111 states that a “defendant in a principal action by petition may bring in any person, including a Lcodefendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand” La. C.C.P. arts. 1112 and 1116 provides the same right to defendants in reconvention and third party defendants. Most significantly, La. C.C.P. art. 1113 provides harsh consequences for a defendant who fails to bring in such a third party defendant:

A defendant who does not bring in as a third party defendant a person who is liable to him for all or part of the principal demand does not on that account lose his right or cause of action against such person, unless the latter proves that he had means of defeating the action which were not used, because the defendant either failed to bring him in as a third party defendant, or neglected to appraise him that the suit had been brought.

Similarly, La. C.C.P. art. 1091 allows “a third party having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties ...” An important reason for allowing a third party claim for indemnity to be filed before the defendant is cast in judgment is because if the third party is not permitted to participate in the trial on the principal demand, it may be forced to indemnify the main defendant for a large judgment it could have otherwise averted.

For the above reasons, I concur in the result.

      . The record before us is not clear on the relationship, if any, between Entergy Corporation, Entergy Gulf States, LLC, and Entergy Louisiana, LLC. Although we generally refer to these entities as "Entergy” for the sake of convenience, the writ before us was filed on behalf of Entergy Louisiana, LLC.

      . A later panel of the Fifth Circuit, addressing precisely the same issue, came to the opposite conclusion. Dean v. Entergy Louisiana, LLC, 10-887 (La.App. 5 Cir. 10/19/10)(unpub-lished).

      . There is one case from this Court that can be read as having reached a different result. In Steeg v. Lawyers Title Ins. Corp., 329 So.2d 719 (La.1976), this Court stated in apparent dicta that an exception based on failure to exhaust judicial remedies may be brought either as an exception of no cause of action or an exception of prematurity. Id. at 720, citing O’Meara v. Union Oil Co., 212 La. 745, 33 So.2d 506 (1947). As the only exception actually raised in Steeg was based on prematurity, that comment made no part of the holding of the case. No Louisiana court has ever relied on Steeg for this proposition; however, it is cited in the Civil Law Treatise as authority that a "[fjailure to exhaust administrative remedies may be raised through a dilatory exception of prematurity, a peremptory exception of no cause of action, or in the answer.” 1 La. Civil L. Treatise, Civ. Procedure § 6.6, n27 (2010). In any event, Steeg is not applicable here as no party has raised an alleged failure to exhaust administrative remedies.

      . Most of the discussion centers around two different grounds for prematurity-one in which the obligation exists but for which the time for performance has not yet arrived, and the other in which the obligation has not yet come into existence-and whether one type must be raised by dilatory exception. Id. at pp. 157-161. Professor Maraist makes the following observations:
      Both objections concern the substance of the underlying obligation, rather than the absence of a preliminary step in the enforcement process such as the exhaustion of administrative remedies. In the latter case, use of the dilatory exception is clearly appropriate, because the purpose of a dilatory exception is to delay, and not to defeat, the action. In the former case, however, it seems more appropriate that the objection of prematurity should be raised by the peremptory exception of no cause of action (whose function is to defeat the action), an exception which may be raised at any time, or as a defense on the merits.
      Perhaps the mandatory use of the dilatory exception to raise an objection of prematurity should be reserved for those cases in which the obligation and the right to enforce the obligation has come into existence, but the plaintiff has failed to take a necessary preliminary step; however, when either a condition or a term is not fulfilled, the cause of action is not fully formed, and the this type of literal "prematurity” should be addressed through the peremptory exception of no cause of action or on the merits. The Supreme Court has not ruled on the issue precisely [noting Steeg's holding that the exception based on prematurity can be raised by either exception], but the jurisprudence has developed the following examples of the proper use of the dilatory exception of prematurity: when the plaintiff has failed to exhaust administrative remedies, when the plaintiff is obligated to arbitrate, when the plaintiff has failed to tender a thing to the seller for repair in a redhibition action, when the plaintiff has failed to place the defendant in default when a placing in default is necessary, or when the plaintiff has failed to obtain a decision of a medical review panel before filing a malpractice suit against a qualified health care provider. In these types of cases, the exception does not challenge or attempt to defeat any of the elements of the plaintiff's cause of action or of the underlying obligation. Rather, the defendant asserts that the plaintiff has failed to take some preliminary step necessary to make the controversy ripe for judicial involvement, and waiver of the objection is appropriate if the defendant fails to file a timely dilatory exception.

        Id. atpp. 159-161.


author: KNOLL, J. GUIDRY, Justice,

text:
    FIA CARD SERVICES, N.A. v. William F. WEAVER.
    No. 2010-C-1372.
    Supreme Court of Louisiana.
    March 15, 2011.

      Garth Jonathan Ridge, Baton Rouge, Steve Russell Conley, William G. Cherbon-nier, Attorney at Law, LLC, William Gardere Cherbonnier, Jr., Leslie A. Bailey, for Applicant.
    Eaton Group Attorneys, LLC, Gregory McCarroll Eaton, Paul Edward Pendley, Stacey L. Greaud, for Respondent.
   KNOLL, J.

| ,In this civil writ, we are called on to resolve a narrow question of law under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”). Specifically, we address whether a party who does not file an action to vacate an arbitral award within three months thereby waives all affirmative defenses to a suit seeking confirmation of the award, including the defense that there is no valid arbitration agreement between the parties.

Under the plain language of the FAA, a party seeking to confirm an arbitral award must provide the court with a copy of the arbitration agreement between the parties. Where, as here, the party seeking confirmation has failed to proffer sufficient admissible evidence to make a prima facie case that the parties entered a valid agreement to arbitrate, the court cannot confirm the award. The present judgment confirming the arbitral award is therefore reversed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

William Weaver obtained a credit card from MBNA America Bank, N.A., the | ^alleged predecessor in interest of plaintiff FIA Card Services, N.A. FIA alleges, as of 2007, Weaver’s account had an outstanding balance. On an unknown date, FIA notified Weaver of an arbitration claim against him with the National Arbitration Forum (“NAF”). FIA filed a claim form, similar to a petition, requesting an award of $29,569.16 in unpaid credit card bills, $534.68 in interest, and $4,435.37 in attorney’s fees.

Weaver did not file a response or otherwise participate in the arbitral proceedings. On July 24, 2007, the arbitrator entered a written award in favor of FIA in the amount of $32,012.40. Notice of this award was served on Weaver by mail on July 25, 2007.

On November 5, 2007, FIA filed a petition to confirm the arbitration award in the 19th Judicial District Court, Hon. Kay Bates presiding. In support of its motion to confirm, FIA filed the following documents:

1) An unsigned, undated document titled “MBNA America Bank, N.A. Mast-ercard/Visa Credit Card Agreement,” which does not mention arbitration;
2) An unsigned document titled “Important Amendments to Your Credit Card Agreement,” dated 1999, which contains an arbitration clause;
3) An unsigned document titled “Credit Card Agreement Additional Terms and Conditions,” dated April 2001, which contains an arbitration clause;
|⅞4) A “Summary of Account Information,” dated February 23, 2007, showing a balance of $29,569.16 on Weaver’s account;
5) A copy of the NAF arbitration award in the amount of $32,012.40.

The record also contains three affidavits. One is signed by Jason Duff, a personal banking officer at FIA. The affidavit states he is familiar with plaintiffs credit account records, and Weaver’s account is overdue by $32,012.40, the same amount set forth in the NAF award.

Janelle Ehrenstrom, an attorney for the NAF, filed an affidavit authenticating the copy of the NAF award.

Finally, Tammy Gibson, an employee of attorney Gregory Eaton, plaintiffs counsel of record, filed an affidavit averring that FIA “indicated” a balance of $32,012.40 on Weaver’s account.

Strikingly, there is no affidavit authenticating either the original Credit Card Agreement or either of the two addenda. There is also no affidavit demonstrating any of these documents has ever been sent to Weaver, or that he consented to their terms.

The district court held Weaver did not timely file a motion to vacate the award and thus waived any arguments for vacating, modifying or correcting the award. The court found it was the arbitrator’s duty to determine whether the arbitration agreement was valid and enforceable. The court believed the arbitrator’s decision on that issue was “final,” and MBNA’s motion to confirm was granted.

Weaver appealed. The First Circuit affirmed in a split decision, holding Weaver’s failure to timely file a motion to vacate precluded the district court from considering any objections to the arbitration. FIA Card Services, N.A. v. Weaver, 09-1464 (La.App. 1 Cir. 3/26/10), 36 So.3d 950. The court recognized its holding conflicted with decisions by the Second and Fifth Circuits, Chase Bank USA, N.A. v. Leggio, 43,751 (La.App. 2 Cir. 12/3/08), 999 So.2d 155, 158; Chase Bank USA, N.A. v. Leggio, 43,567 (La.App. 2 Cir. 11/19/08), 997 So.2d 887, 889; and NCO Portfolio Management Inc. v. Gougisha, 07-604 (La.App. 5th Cir.4/29/08), 985 So.2d 731, 734, unit denied, 08-1146 (La.9/26/08), 992 So.2d 986. We granted writs to resolve this split between the circuits.

DISCUSSION

I. Applicable Legal Standard

This case presents a question of law, and our review is de novo. Broussard v. Hilcorp Energy Co., 09-0449 (La.10/20/09), 24 So.3d 813, 816.

There is some confusion regarding whether FIA’s petition to confirm is brought under state or federal law. The district court based its ruling on the Louisiana Binding Arbitration Law, La.Rev. Stat. § 9:4201 et seq. However, the appellate court relied solely on federal law, and the parties’ briefs to this court focus on the FAA rather than state law. Louisiana courts have recognized the two acts are “almost identical in substance.” Woodson Construction Co., Inc. v. R.L. Abshire Construction Co., Inc., 459 So.2d 566, 569 n. 3 (La.App. 3 Cir.1984); Blount v. Smith Barney Shearson, Inc., 96-0207 (La.App. 4 Cir. 2/12/97), 695 So.2d 1001, 1003; accord, International River Center v. Johns-Manville Sales Corp., 02-3060 (La.12/3/03), 861 So.2d 139, 143 (the two acts are “very similar.”)

To the extent the two acts do conflict, any “inconsistency between the federal act and Louisiana law must be resolved in favor of the federal act as federal law preempts contrary state law.” Blount, 695 So.2d at 1003 (citing Southland Corp. v. Keating, 465 U.S. 1, 16, 104 S.Ct. 852, 860-61, 79 L.Ed.2d 1 (1984)). Therefore, we will apply the FAA.

II. Confirmation and Vacation of Ar-bitral Awards Under the FAA

| ¡/For an arbitral award to be made enforceable by law, it must first be confirmed by a court. The FAA provides a streamlined procedure for confirming awards, as set forth in 9 U.S.C. § 9:

If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.

The FAA also allows limited judicial review in the form of a motion to vacate, modify, or correct an award based on the following specifically enumerated statutory grounds:

(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

9 U.S.C. § 10; see also La.Rev.Stat. § 9:4210-4211.

Notably, “nonexistence of an arbitration agreement” is not one of the enumerated grounds for a motion to vacate under 9 U.S.C. § 10.

However, any “motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered.” 9 U.S.C. § 12; see also La. Rev.Stat. § 9:4213. It is undisputed that lfiWeaver did not file a timely motion to vacate, modify, or correct the arbitral award within the three month period provided by statute.

FIA argues Weaver’s failure to move to vacate the award within the statutorily prescribed deadline means he has waived all defenses. In essence, if no motion to vacate, modify, or correct an arbitral award is filed within three months, a court is legally required to confirm the award as a purely ministerial act. We disagree. As explained below, the FAA requires a court faced with a petition to confirm to first ensure there is an arbitration agreement between the parties covering this dispute. This requirement is inherent in a petition to confirm and is independent of the statutory defenses which may be raised in a motion to vacate the award. Because FLA has failed to meet its evidentiary burden to show there has ever been a valid arbitration agreement between itself (or MBNA) and Weaver, its petition to confirm must be denied.

III. A Party Seeking Confirmation Must Produce The Arbitration Agreement

Our analysis begins, as always, with the plain text of the statute. Section 9 of the FAA begins by stating that a court shall confirm an arbitration award: “If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration.” 9 U.S.C. § 9. (Emphasis added). The plain language of 9 U.S.C. § 9 presupposes an agreement to arbitrate as a necessary condition for confirmation of an arbitral award. Therefore, before a court may enter judgment on a petition to confirm, it must answer the fundamental question: Was there an arbitration agreement between these parties?

FIA argues this question has already been answered by the arbitrator. The arbitral award states “[o]n or before 02/22/2007 the Parties entered into a written agreement to arbitrate their dispute.” The district court judge apparently believed the 17arbitrator’s finding was binding on the court: “[t]he arbitration agreement is valid, binding and enforceable because the debtor did not timely bring an attack on the arbitration agreement, and the arbitrator found the arbitration agreement to be binding and enforceable.”

However, both the U.S. Supreme Court and this court have held a challenge brought to the very existence of the contract containing the arbitration clause must be decided by the court, not by the arbitrator. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 23, n. 27, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983); International River Center v. Johns-Manville Sales Corp., 02-3060 (La.12/3/03), 861 So.2d 139, 143.

It is also noteworthy that, under the FAA, any “party moving for an order confirming ... an award shall, at the time such order is filed with the clerk for the entry of judgment thereon, also file the following papers with the clerk: (a) the agreement.” 9 U.S.C. § 13. The fact that the agreement must be filed with the court affirms it is the court’s duty to rule on this issue, and it is not left solely to the arbitrator’s discretion. If Congress meant for the arbitrator’s decision on this issue to be binding, there would be no need for the moving party to provide the court with a copy of the contract.

Although our analysis is based on the statutory language of the FAA, we have also reviewed the jurisprudence on this issue. This court is bound by the United States Supreme Court’s interpretation of federal statutes. We are not bound by the decisions of lower federal courts (or, for that matter, other state supreme courts). Shell Oil Co. v. Secretary, Revenue and Taxation, 96-0929 (La.11/25/96), 683 So.2d 1204, 1210 n. 11. Nonetheless, we review those opinions carefully to see if they provide further guidance for our analysis. Chittenden v. State Farm Mutual Auto. Ins. Co., 00-414 (La.5/15/01), 788 So.2d 1140, 1149 n. 21.

Weaver relies primarily on MCI Telecommunications Corp. v. Exalon Industries, Inc., 138 F.3d 426 (1st Cir.1998). MCI entered into a tariff regulation with the FCC which provided for arbitration of any dispute between MCI and anyone using its services as a provider of long-distance telecommunications. Id. at 427. Exalon and MCI signed a contract which apparently did not include an arbitration clause. When a dispute arose regarding MCI’s fees, MCI proceeded to arbitration. Exalon, not believing itself bound by the FCC tariff regulation, did not participate in the arbitration, and a sizable award was entered in MCI’s favor. Id. at 428.

MCI moved to confirm the award, and Exalon filed an opposition claiming there was no written agreement to arbitrate between the parties. The district court held, because Exalon did not file a motion to vacate within three months of entry of the award, it waived any objections. The First Circuit reversed, emphasizing that in arbitration the “need for an agreement, or more accurately, one that is in writing, as condition to gaining access to the umbrella provided by the FAA, manifests itself throughout the various provisions of this law.” Id. at 429. Therefore, “it is apparent that determining whether there is a written agreement to arbitrate the controversy in question is a first and crucial step in any enforcement proceeding before a district court .... if one of the parties alleges the inexistence of the contract, such a party is entitled to present evidence before the fact finder in support of this position.” Id. at 429 (emphasis added).

The court went on to compare Exalon’s strategy to a collateral attack on a default judgment: “this situation is analogous to where a lawsuit proceeds against a non-appearing party over whom personal jurisdiction has not been acquired. That party can challenge the judgment when it is executed, for it lacks legal validity.” Id. at [i)430. Interestingly, the court suggested that, if Exalon had appeared before the arbitrator, it would have not been permitted to bring such a collateral attack. Id., citing Cullen v. Paine, Webber, Jackson & Curtis, Inc., 863 F.2d 851 (11th Cir.1989) and Professional Administrators Ltd. v. Kopper-Glo Fuel, Inc., 819 F.2d 639 (6th Cir.1987). The case was remanded for the district court to determine whether Exalon had ever entered into a written arbitration agreement. Id. at 431.

Not all state courts have accepted MCI’s reasoning. Advantage Assets, Inc. II v. Howell, 190 N.C.App. 443, 663 S.E.2d 8 (2008) also involves an assignee of MBNA credit card debt. Plaintiff obtained a default arbitration award from the NAF. After the three month period had run, and no motion to vacate had been filed, plaintiff filed a motion to confirm. As proof of arbitration agreement, plaintiff submitted an unsigned “credit card agreement” dated April 2001. The court held the defendant’s “response to plaintiffs motion to confirm — that there was no arbitration agreement — was simply not an appropriate response given the procedural posture of the case.” Id. at 447, 663 S.E.2d 8. The court believed defendant’s only legitimate means for attacking an arbitration agreement was to file a pre-arbitration motion under 9 U.S.C. § 4. Id. Under this interpretation, if a party fails to challenge the arbitration agreement prior to the arbitration proceedings, he is estopped from ever doing so.

|10We do not find the North Carolina court of appeal’s reasoning convincing. To begin with, we note the court does not adequately address the requirements for confirming an award under 9 U.S.C. § 9. That statute begins by emphasizing a court shall only confirm an arbitration award “If the parties in their agreement have agreed” to do so. Id. Highly significantly, the North Carolina court chose not to quote that language, instead beginning its quote with the second part of the statute. In ignoring this crucial phrase, the court assumed away the central issue— whether an arbitration award may be confirmed where the party seeking confirmation has failed to present evidence of an agreement between the parties.

We also note that Advantage Assets has not been followed or cited by any other state or federal court, and appears to be against the greater weight of authority, most of which supports MCI. In Bank of America, N.A. (USA) v. Dahlquist, 336 Mont. 50, 152 P.3d 718 (2007), the bank sued Dahlquist on an unpaid credit card debt. Dahlquist responded by filing a motion to confirm an arbitration award he had obtained from the National Arbitration Council (“NAC”). Bank of America failed to dispute the award within ninety days. Dahlquist moved to confirm the award and argued the bank had waived any defense, including any defense claiming that there was no arbitration agreement. Id. at 720. The Montana Supreme Court unanimously rejected this assertion. It noted that “[ujnder the FAA, where parties have not agreed to arbitrate | n... the arbitration award is invalid ab initio ... [the] FAA time limitation was thus not triggered, and [the bank] is not bound by the award, even though it failed to challenge it within three months.” Id. at 721; accord Citibank v. Wood, 177 Ohio App.3d 103, 894 N.E.2d 57 (2008) (citing Dahlquist and holding an award entered without an agreement to arbitrate before that arbitrator is “legal nullity” which may be challenged at any time.)

Similarly, in Yates v. CACV of Colorado, LLC, 303 Ga.App. 425, 693 S.E.2d 629 (2010), CACV, a successor in interest to MBNA, initiated arbitration proceedings with the NAF. An award was entered in favor of CACV and, after three months passed, it filed a motion to confirm. Yates filed a cross-claim under the Fair Debt Collection Practices Act and a motion to vacate the arbitral award. As proof of the agreement to arbitrate, CACV submitted an undated, unsigned, unauthenticated arbitration agreement. Id. at 634. The trial court confirmed the award, but the Court of Appeal reversed. The court noted, as an initial matter, whether an arbitration agreement exists is a question for the court, not the arbitrator, and “CACV bore the burden of proving the existence of such a valid and enforceable agreement.” Id. at 634 (citing Pickle v. Rayonier Forest Resources, 282 Ga.App. 295, 638 S.E.2d 344 (2006) and Life Care Centers of America v. Smith, 298 Ga.App. 739, 681 S.E.2d 182 (2009)). The court found, in no uncertain terms, CACV failed to meet that burden:

The record before us shows unequivocally that CACV failed to meet this burden. The only evidence of an arbitration agreement was an undated, unauthenticated photocopy of certain “additional” terms and conditions of an MBNA credit agreement that CACV attached to its amended petition to confirm the arbitration award. There was no evidence, however, showing that Yates’s contract with MBNA was governed by these provisions. Specifically, CACV did not submit a copy of any credit card application or agreement executed by Yates; nor did it submit an affidavit or other evidence showing the date Yates entered into a credit agreement with MBNA and that the photocopied terms and conditions represented the terms and conditions in effect for all MBNA credit agreements |12at that time. Alternatively, CACV failed to offer any evidence showing that the original credit agreement between Yates and MBNA had been properly amended, the date of such amendment, that the attached terms and conditions reflected the amended agreement, that the amendments were sent to Yates, and that she accepted the same by continuing to use her MBNA credit card.

Id. at 635 (citations omitted).

Because the question of the existence of an arbitration clause is for the court, CACV could not simply rely on the arbitrator’s findings and bore the burden of presenting evidence from which a court could independently determine the existence of the agreement. Id. The court rejected CACV’s argument that Yates’ failure to move to vacate within three months waived the defense. The “assertion of this defense does not constitute a motion to vacate, modify or correct an award. Thus, it is not subject to the 90-day time limitation found in section 12 of the FAA. 9 USCA § 12. Rather, a claim that a contract dispute is not subject to arbitration constitutes an attack on the subject matter jurisdiction of the arbitrator,” and thus may be raised at any time. Id.

Several other state courts have likewise found, even if a defendant fails to timely move to vacate an arbitral award, he may raise the lack of an arbitration agreement as a defense to confirmation. See Danner v. MBNA America Bank, NA, 369 Ark. 435, 255 S.W.3d 863, 867 (2007) (The “time limits provided by section 12 ... do not prevent a party who did not participate in an arbitration proceeding from challenging the validity of the award at the time of its enforcement on the basis that no written agreement to arbitrate existed between the parties”); MBNA America Bank, NA v. Christianson, 377 S.C. 210, 659 S.E.2d 209, 212 (S.C.App.2008) (“MBNA could not rely on the debtor’s tardiness in challenging the award if the arbitrator never had jurisdiction to arbitrate and enter an award ... Before a circuit court confirms an arbitration award subject to the Federal Arbitration Act, there must be evidence of an arbitration | ^agreement”); MBNA America Bank, NA v. Credit, 281 Kan. 655, 132 P.3d 898, 900 (2006) (“MBNA cannot rely on Credit’s tardiness in challenging the award if the arbitrator never had jurisdiction to arbitrate and enter an award”); MBNA America Bank, NA v. Boata, 283 Conn. 381, 926 A.2d 1035, 1045 (2007) (“[A]t the very minimum, a trial court must determine whether there is an agreement to arbitrate before it confirms an award on the basis of that agreement. Thus, a challenge to the existence of an arbitration agreement is appropriate at any stage.”)

FIA cites several cases finding challenges to arbitration proceedings are waived if not raised within three months. However, many of these cases are distinguishable as they do not involve challenges to the underlying arbitrability of the dispute. See, e.g., Weldon v. Asset Acceptance, LLC, 896 N.E.2d 1181 (Ind.App. 2008) (Undisputed that the credit card agreement contained an arbitration clause, and the defendant had accepted those terms by use of the card); Comprehensive Accounting Corp. v. Rudell, 760 F.2d 138 (7th Cir.1985) (record contained a copy of a signed contract including an arbitration clause); Ottley v. Schwartzberg, 819 F.2d 373 (2d Cir.1987) (Undisputed that collective bargaining agreement provided for arbitration). Indeed, many of these cases seem to stand for the proposition that, where the defendant has established no grounds for vacating an award, the award must be confirmed. While this is certainly the law, it does not apply where, as here, there are | ^grounds for not enforcing an award — specifically, lack of proof that an arbitration agreement exists.

IV. Whether An Arbitration Agreement Exists Between FIA and Weaver

Having disposed of the primary legal issue, we are left with an evidentiary issue — whether FIA has presented sufficient evidence for a court to find the existence of a binding agreement to arbitrate.

It is undisputed that the original agreement between Weaver and MBNA contains no arbitration clause. According to FIA, the arbitration clause was added later via two pamphlets giving notice of a change of terms in the agreement — one dated 1999, one dated April 2001. Weaver is not bound by the terms of the later-added arbitration clauses unless he consented to them, as a “substantive change in the terms of a contract requires the consent of parties.” Lanier v. Ateneo, 459 F.2d 689, 693 (5th Cir.1972); Isadore v. Washington Fire & Marine Ins. Co., 75 So.2d 247, 249 (La.App.Orl.1954); La. Civ. Code art. 1927.

At oral argument, FIA conceded Weaver never actually signed a contract containing an arbitration clause. However, it is black letter law that, if a credit card company sends a notice of change in terms of the agreement, the customer assents to the new terms by his continued use of the card. See NCO Portfolio Management, Inc. v. Walker, 08-1011 (La.App. 3 Cir. 2/4/09), 3 So.3d 628, 637 (citing Marsh v. First USA Bank, N.A., 103 F.Supp.2d 909 (N.D.Tex.2000)). In other words, if Weaver made even a single purchase after receiving notice of the updated terms, he is bound by the arbitration clause. FIA therefore had the burden of presenting admissible evidence that 1) the pamphlets containing the arbitration clause were mailed to MBNA’s customers, including Weaver, on a certain date, and 2) Weaver 115made at least one purchase after this date. FIA did not meet its burden.

The record contains a form credit card agreement and two pamphlets setting forth additional terms to credit card agreements. Neither the original agreement nor either of the purported addenda are authenticated by an accompanying affidavit or other evidence. This alone is fatal to FIA’s claim, as authentication is “a condition precedent to admissibility” which is satisfied by “evidence sufficient to support a finding that the [document] is what its proponent claims.” La. Evid.Code art. 901(a).

Even assuming the documents in the record are true copies of credit card notices printed by MBNA, there is no evidence showing when or if the notices were mailed to customers. Nor has FIA shown that, after receiving these notices, Weaver continued to use his credit card. The record is silent as to when Weaver opened his credit card account and when he used it. It may be that MBNA gave proper notice of the new terms and, upon receiving notice, Weaver continued using his card. However, this Court is constrained by the evidence in the record, and from this evidence we are unable to conclude that Weaver ever consented to resolve his credit card disputes via arbitration.

FIA counters that “defendant was given the opportunity to present evidence in 11fisupport of his allegation of the non existence of an agreement to arbitrate to the fact finder.” It is not defendant’s burden to prove the non-existence of an agreement; it is the burden of the party seeking to enforce a contract to show the contract exists. La. Civ.Code 1831. See also Kosmala v. Paul, 569 So.2d 158, 162 (La.App. 1 Cir.1990) (“The party seeking to enforce arbitration provisions has the burden of showing the existence of a valid contract to arbitrate.”) FIA did not meet this evidentiary burden.

CONCLUSION

We therefore find a court cannot confirm an arbitration award unless the moving party has presented evidence sufficient to make a prima facie showing that there is an arbitration agreement between the parties. Because the record reflects FIA | |7has not done so, the judgment is hereby reversed and vacated.

We stress this decision is not designed to place an unfair burden on parties seeking to collect on valid debts, or to require parties to relitigate the merits of a claim which has already been rightfully decided by an arbitrator. But where, as here, there is no evidence the case was properly before the arbitrator pursuant to an arbitration agreement consented to by both parties, any arbitral proceedings were a nullity and cannot be enforced in a court of law.

DECREE

For the foregoing reasons, the court of appeal’s judgment confirming the NAF ar-bitral award is reversed and vacated, and judgment on the petition to confirm is entered in favor of defendant William Weaver.

REVERSED AND RENDERED.

GUIDRY, J., dissents and assigns reasons.

GUIDRY, Justice,

dissents and assigns reasons.

|,I respectfully dissent from the majority’s reversal of the lower courts’ confirmation of an award rendered in favor of the plaintiff, FIA Card Services, N.A. (FIA), in arbitration proceedings the defendant, William F. Weaver, elected to not participate.

The record reveals that FIA instituted an arbitration claim against the defendant for substantial unpaid sums due on a credit card account billed to a Baton Rouge, Louisiana address the defendant concedes he uses for mailing purposes. Two notices of arbitration were directed to the defendant wherein supporting documentation was provided. Both notices of arbitration informed the defendant he had a right to file a response and his failure to do so may result in an award rendered against him. The notices also indicated an in-person participatory hearing would be conducted in the federal judicial district where the defendant’s FIA billing address was located. Several available options in lieu of his physical appearance were offered, including an on-line or telephonic hearing, or a documentary submission of the case. Despite these measures to accommodate and ensure the defendant’s participation, he failed to respond in any respect within the specified time. The defendant does not deny that he received timely notice of the arbitration proceedings. In fact, he concedes he knowingly and intentionally refused to respond to those efforts sought to protect his due process interests.

|2The defendant’s refusal to participate in the arbitration proceedings resulted in an award being rendered in favor of FIA. The arbitrator found the documentary evidence presented by the creditor constituted sufficient proof of the existence of the arbitration agreement between the parties and the indebtedness. Specifically, in rendering its findings, the arbitrator found no party asserted the arbitration agreement was invalid or unenforceable.

Notice of the arbitration award was mailed to the defendant and, in conformity with his past practice, he knowingly failed to respond in any manner. It was not until FIA sought to confirm the arbitration award in the trial court that the defendant first made an appearance. In addition to objecting to the arbitrator’s lack of personal jurisdiction over him and the inconvenient venue of the arbitration proceedings, the defendant contested the existence of a binding arbitration agreement.

Based on my review, the defendant’s efforts to overturn the arbitration ruling are both untimely and without merit. Pursuant to La. R.S. 9:4213 and 9 U.S.C. § 12, the defendant had three months to bring a motion to vacate the arbitration award on the basis of the nonexistence of the arbitration agreement. His objection was not raised until after the expiration of the time delay. A failure to assert a timely objection to the proceedings and the award prevents the trial court from even considering the defendant’s claims. National Tea Co. v. Richmond, 548 So.2d 930, 933 (La.1989). Moreover, the defendant’s objection can be challenged only on statutory grounds. St. Tammany Manor, Inc. v. Spartan Building Corporation, 509 So.2d 424, 427 (La.1987). However, the defendant fails to articulate any of the exclusive reasons to vacate, modify, or correct the award. See La. R.S. 9:4210-4211 and 9 U.S.C. §§ 10-11. The law is clear that, unless grounds for vacating, modifying or correcting the award are established, the award must be confirmed. Firmin v. Garber, 353 So.2d 975, 977 (La.1977).

^Additionally, it is undisputed the defendant, as the attacking party, bears the burden of proof in overturning the award. Id. However, based on the instant facts, the defendant is unable to sustain his burden with persuasive evidence to support his claims. No evidence was presented at the arbitration proceeding to controvert FIA’s case. While the creditor’s documentary submission may not have been the best evidence, the arbitrator concluded it constituted sufficient proof of the existence of an arbitration agreement and the indebtedness. A district court’s review of an arbitration award is “extraordinarily narrow.” FIA Card Services, N.A. v. Smith, 44,923, p. 7 (La.App. 2 Cir. 12/22/09), 27 So.3d 1100, 1106; Downer v. Siegel, 489 F.3d 623, 626 (5th Cir.2007). In light of such, the arbitrator’s conclusions should not be substituted under the facts. National Tea, 548 So.2d at 933 (“Because of the strong public policy favoring arbitration, arbitration awards are presumed to be valid. Errors of fact or law do not invalidate a fair and honest arbitration award. Therefore, misinterpretation of a contract by an arbitration panel is not subject to judicial correction. Judges are not entitled to substitute their judgment for that of the arbitrators chosen by the parties.”); Firmin, 353 So.2d at 977 (“The court cannot substitute its conclusion for that of the arbitrator.”).

Arbitration is a substitute for litigation. Id. The purpose of arbitration is settlement of differences in a fast, inexpensive manner. Id. This goal is thwarted when parties, who refuse to participate in the arbitration proceedings, seek judicial review of an arbitration award. National Tea Co., 548 So.2d at 933. In my view, the majority’s reversal of the lower courts’ confirmation of the award under the facts frustrates the policy furthered by alternative dispute resolution. Accordingly, I find no error in the lower courts’ rulings.

      . As far as we can tell, FIA has not presented any evidence that it is the legal assignee of Weaver's alleged debt to MBNA. It is therefore unclear, from the record, whether FIA is the proper party to bring this suit. See, e.g., R.L. Lucien Tile Co. v. American Security Ins. Co., 08-1190 (La.App. 4 Cir. 3/11/09), 8 So.3d 753, 757 ("absent a valid assignment of rights ... Lucien Tile has no standing to sue.”) As Weaver has not raised this argument, we do not address it.

      . No evidence of the date or manner of the notification is in the record. However, Weaver’s answer admitted the portion of the petition alleging "[t]he arbitration proceedings were noticed.” This constitutes a binding judicial confession under La. Civ.Code art. 1853.

      . FIA argues "MCI has been followed by selective state courts, [but] no other federal court has followed its reasoning.” This is not correct. Aside from courts in the First Circuit (which are bound to follow MCI as precedent), MCI has been followed by federal courts in Nevada and Florida. Chase Bank USA, N.A. v. Dispute Resolution Arbitration Group, 2006 U.S. Dist. LEXIS 43130, 2006 WL 1663823 (D.Nev.2006); Buczek v. Trans Union LLC, 2006 U.S. Dist. LEXIS 81982, 2006 WL 3666635 (S.D.Fla.2006). Perhaps FIA meant no other federal court of appeal has followed MCI. This is true, but it is also true that no other federal court of appeal has rejected MCI.

        . Although it is impossible to know for certain, it seems likely this document is identical to the April 2001 “Credit Card Agreement Additional Terms and Conditions” pamphlet filed by FIA in this case.

      . The NAC was a sham arbitration service run by a man who was disgruntled with the credit card industry. Debtors would send banks arbitration notices naming the NAC as arbitrator. The NAC would then send a pro forma arbitral award in the debtor’s favor. In at least some cases, when the company did not file to vacate the award within three months, debtors would move to confirm; effectively the opposite of what happened in the case currently before us.
      A federal district court in Florida eventually issued an injunction against NAC to prevent it from issuing these unauthorized arbitral awards. Citibank, N.A. v. National Arbitration Council, Inc., 2006 U.S. Dist. LEXIS 67133, 2006 WL 2691528 (M.D.Fla.2006).

      . See International Thunderbird Gaming Corp. v. United Mexican States, 473 F.Supp.2d 80 (D.D.C.2007) (No challenge to the arbitrator’s right to adjudicate the dispute, but moving to vacate because of the arbitrator’s misapplication of relevant law); Spine Surgery, Inc. v. Sands Brothers, Inc., 393 F.Supp.2d 1138 (W.D.Okla.2005) (same); Denver & Rio

        Grande R.R. Co. v. Union Pacific R.R. Co., 868 F.Supp. 1244 (D.Kan. 1994) (same); Puerto Rico Maritime Shipping Authority v. Star Lines, Ltd., 496 F.Supp. 14 (S.D.N.Y.1979) (same); D.H. Blair & Co., Inc. v. Gottdiener, 462 P.3d 95 (2d Cir.2006) (Validity of arbitration clause not disputed); Taylor v. Nelson, 788 F.2d 220 (4th Cir.1986) (challenge to arbitrator's partiality).
      None of these cases involves a challenge to the existence of the arbitration agreement, and none address the question of whether such a claim is waived if not brought within three months.

      . There is no requirement that FIA prove Weaver, specifically, received the notice. It would be sufficient to provide evidence the notices were sent to all customers, including Weaver, on a certain date. See Nolan v. Mabray, 10-373 (La. 11/30/10), 51 So.3d 665 (Mailing was sufficiently proven by testimony that insurance company sent mailings automatically on a certain date, and there was no breakdown in the mailing system on that date); Marsh v. First USA Bank, N.A., 103 F.Supp.2d 909, 918-19 (N.D.Tex.2000) (Credit card company employees testified that inserts including arbitration clause were placed in all members’ monthly invoices, and strict quality control measures ensured each invoice contained an insert); Susan Wiens and Roger Haydock, Arbitration: Before and After: Confirming Arbitration Awards: Taking the Mystery Out of a Summary Proceedings, 33 Wm. Mitchell L.Rev. 1293, 1304 (2007) (”[B]usiness records made in the ordinary course of business may support a statement that a party was provided with a written arbitration agreement that they accepted by their subsequent conduct.”)

      . A review of the jurisprudence reveals this situation is not unique. We note several cases listed below where a bank, or its assign-ee, attempted to enforce an arbitral award via an unauthenticated copy of a generic form agreement and without providing admissible evidence the consumer actually consented to the agreement.

        See MBNA America Bank, NA v. Wallace, 2007 Vt.Super. LEXIS 44 (Sup.Ct.Vt.2007) ("[MBNA] did subsequently attach a generic credit card agreement as an unauthenticated exhibit to a brief ... more notable, however, is absence of admissible evidence to show that Wallace ever received or consented to be bound by this agreement”); Cach, LLC v. Vis-cuso, 2009 N.Y. Slip Op. 32031U, 2009 WL 2920863 (Sup.Ct.N.Y.2009) ("As proof of a written agreement to arbitrate, petitioner submits only a photocopy of a general form of Credit Card Agreement ... [the] Agreement is undated and unsigned, and lacks specific reference to the respondent.... There is no affidavit or documentary evidence that the Credit Card Agreement was the actual agreement between the petitioner and respondent, or that respondent received actual or constructive notice of the terms and conditions of the Credit Card Agreement, including the arbitration section, and that respondent manifested an intent to be bound by such terms. Such intent may be shown by respondent’s use of the credit card after such notice, but petitioner submits no monthly credit card statements, or other proof demonstrating respondent's use of the card”); FIA Card Services v. Stonehill, 241 N.Y.L.J. 66 (Sup.Ct.N.Y. 2009) (same); MBNA America Bank, NA v. Straub, 12 Misc.3d 963, 815 N.Y.S.2d 450 (N.Y.Civ.Ct.2006); MBNA America Bank, NA v. Credit, 281 Kan. 655, 132 P.3d 898, 902 (2006) (collecting cases and noting "a national trend in which consumers are questioning MBNA and whether arbitration agreements exist [citations] Given MBNA’s casual approach to this litigation, we are not surprised that the trend may be growing.”)

      . We note this decision is silent as to any issue of FIA's underlying claim.