text:
    Anthony LEDEA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1411.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 2013.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The defendant, Anthony Ledea, appeals his convictions for possession of cocaine, aggravated fleeing, and two counts of assault, and the sentence imposed for the possession offense. Although we affirm the convictions, we reverse the sentence imposed for possession of cocaine, and remand with instructions to the trial court to delete the habitual offender designation for that offense, and to reduce the ten-year sentence for that offense to a sentence no greater than the statutory maximum sentence of five years.

The defendant raises two issues in this appeal: (1) the trial court abused its discretion by denying his motion for a mistrial; and (2) the trial court improperly sentenced the defendant to ten years as a habitual offender for the offense of possession of cocaine. We briefly address both issues.

“[A] trial court’s ruling on a motion for mistrial is subject to an abuse of discretion standard of review.” Schoenwetter v. State, 931 So.2d 857, 872 (Fla.2006); see also Villanueva v. State, 917 So.2d 968, 972 (Fla. 3d DCA 2005) (applying an abuse of discretion standard of review). The claimed error is the State’s questioning during redirect examination, which the defendant submits attempted to improperly shift the burden to the defendant. Because: (1) the objection to the question posed was properly sustained by the trial court; (2) the defendant declined the trial court’s invitation to give a curative instruction, which we conclude would have removed any potential taint regarding the jury’s understanding as to the burden of proof; (3) the jury was properly instructed regarding the burden of proof at the close of the evidence; and (4) the objected-to question was negligible and isolated, we find no abuse of discretion, and we therefore affirm the convictions.

The ten-year habitual offender sentence imposed for possession of cocaine, however, is an illegal sentence. See § 775.084(l)(a)(3), Fla. Stat. (2010) (precluding habitual offender sentencing for violations of section 893.13, relating to the purchase or possession of a controlled substance); Coleman v. State, 927 So.2d 1048, 1048 (Fla. 2d DCA 2006) Although it appears that the trial court attempted to correct this sentencing error by issuing a corrected order sentencing the defendant to ten years’ imprisonment for possession of cocaine without the habitual offender designation subsequent to the filing of the defendant’s notice of appeal, the corrected order does not fully correct the error. Because the statutory maximum sentence for simple possession of cocaine is five years, and the habitual offender enhancement was improperly imposed, the sentence for this count must be reduced to five years.

Accordingly, we affirm the convictions and reverse and remand for correction of the sentence for possession of cocaine to five years.

Affirmed in part; reversed and remanded in part.


source: Caselaw Access Project

author: EMAS, J.

license: Public Domain

text:
    Daniel Gonzalez OROPEZA, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D13-1610.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 2013.
    Daniel Gonzalez Oropeza, for petitioner.
    Pamela Jo Bondi, Attorney General, and Robert Martinez Biswas, Assistant Attorney General, for respondent.
    Before SALTER, EMAS and LOGUE, JJ.
   EMAS, J.

Daniel Gonzalez Oropeza filed a petition seeking a belated appeal of his judgment and sentence. Petitioner avers that, the day following his negotiated plea and sentence, he made a timely request to his trial counsel that an appeal be filed on his behalf. Petitioner further avers that no appeal was taken and that petitioner was never made aware of this fact.

The State, in its response, indicated that it has attempted on several occasions to contact Petitioner’s trial counsel to verify Petitioner’s allegations, but has thus far received no response from trial counsel. The State’s response is sufficient to demonstrate a good-faith basis to dispute Petitioner’s claim, which may warrant an evi-dentiary hearing at which Petitioner’s trial counsel may be compelled to testify. See Oliver v. State, 834 So.2d 910 (Fla. 5th DCA 2003).

Accordingly, and in light of our determination that the petition in this case sets forth a preliminary basis for relief, jurisdiction is hereby relinquished to the trial court for a period of sixty days. A copy of the petition seeking belated appeal shall be provided to the trial court as an attachment to this order, and the Chief Judge of the Eleventh Judicial Circuit is requested to appoint a special commissioner for the purpose of directing the state to show cause why the petition should not be granted; conducting an evidentiary hearing if warranted; determining whether Petitioner’s claim has merit; and issuing a report and recommendation setting forth findings of fact and conclusions of law regarding Petitioner’s entitlement to a belated appeal in case number F10-8508.

The report and recommendation shall be issued no later than sixty days from the date hereof, and copies shall be served on the clerk of this Court, the Petitioner, the Office of the State Attorney, and the Office of Attorney General. Any party adversely affected by the commissioner’s conclusion may file a response within ten days following service of the report and recommendation and the other party may reply within ten days of service of the response. The court will thereafter issue its order determining whether Petitioner is entitled to a belated appeal.


author: ROTHENBERG, J.

text:
    STATE of Florida, Appellant, v. Saivon K. CRUSE, Appellee.
    No. 3D12-892.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 2013.

      Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Shannon Healy, Assistant Public Defender, for appellee.
    Before SHEPHERD, C.J., and ROTHENBERG and SALTER, JJ.
   ROTHENBERG, J.

The State of Florida appeals the trial court’s order granting the defendant’s motion to suppress evidence of a firearm found in his possession. Based on the following facts and authorities, we reverse and remand to the trial court with instructions to vacate the order of suppression and to enter an order denying the motion to suppress.

BACKGROUND

The defendant, Saivon K. Cruse, was charged with carrying a concealed firearm and with possession of cannabis. The issue on appeal is whether the trial court erred in granting the defendant’s motion to suppress the firearm found in his possession by finding that the firearm was the product of an illegal search. The State claims that the search was legal because the officer’s initial investigative stop of the defendant was supported by reasonable suspicion, and the resulting pat-down was supported by the officer’s concern for his safety. In support of its position that the evidence was legally obtained and in opposition of the defendant’s motion to suppress its introduction, the State presented the testimony of Officer Dunaske and Officer Sanchez, the two officers who effectuated the investigative stop and subsequent “pat-down” of the defendant leading to discovery of the firearm at issue.

Officer Sanchez testified that he and Officer Dunaske were patrolling a high-crime area, known for guns, shootings, and illegal drugs, at ten o’clock in the evening, when they observed three males standing in a poorly-lit vacant lot. Although the lot was quite large, the officers noted that the men were standing next to a chain link fence and appeared to be looking into the house on the other side of the fence. The officers testified that, based on their experience and training, they believed that this conduct was consistent with the men “casing” the house in preparation of a burglary. This aroused the officers’ suspicion and they turned their marked police vehicle around in order to better observe the men. Upon seeing the marked patrol car, however, the men immediately dispersed and began to walk away in three different directions.

At that point, the officers shone a spotlight on the lot and Officer Dunaske advised Officer Sanchez that the defendant was “holding his waistband and manipulating something in his waistband” as if the defendant was attempting to conceal a weapon. Officer Dunaske testified that, based on his training from recruit school, SWAT school, and Special Tactic school, this gesture was “one of the known indicators” that someone was carrying a gun. Officer Sanchez further explained that the officers were particularly concerned by the defendant’s movements, which indicated that he may be concealing a weapon, because the police had received reports of an incident involving the firing of assault weapons in the area the previous night.

The officers testified that because of the high-crime nature of the neighborhood, and its history of incidents involving guns, the officers generally avoided one-on-one confrontations in that area. Because of the defendant’s movements witnessed by Officer Sanchez, the fact that the men dispersed in different directions, and the officers’ concern for their safety, the two officers decided to approach the defendant as a team. Officer Sanchez made contact with the defendant and Officer Dunaske provided cover.

When Officer Sanchez approached the defendant and asked if he would mind answering a few questions, the defendant stopped and faced the officer. Officer Sanchez then asked the defendant if he had any weapons or illegal items on him. The defendant responded by raising both of his hands in the air. At that point, Officer Sanchez asked the defendant for permission to conduct a pat-down for officer safety purposes. The defendant cooperated by moving towards the front of the police car, where Officer Sanchez conducted the pat-down and found the firearm at issue in the defendant’s right waistband. The defendant was then handcuffed and placed in the back of the police vehicle. Officer Sanchez testified that at one point he asked the defendant if the defendant had a concealed weapons permit and the defendant replied that he did not.

Officer Dunaske, who also testified at the hearing on the defendant’s motion to suppress, explained that he and Officer Sanchez were members of a Rapid Action Deployment Squad, charged with violence suppression and assigned to “general hot spots.” Officer Dunaske also testified that the area the officers had been patrolling the night they came upon the defendant and the two other men was known to have a high volume of burglaries, shootings, and crack cocaine use, and that an officer had been shot with an assault weapon recently in that neighborhood. Because of its history of high-crime and frequent incidents involving the use of guns, Officer Dunaske explained that the officers avoided one-on-one engagement of suspects in that area. Accordingly, he and Officer Sanchez decided to pursue only one of the three men when the men dispersed and started walking away from the officers. Officer Du-naske further testified that because he had noticed the defendant manipulate his right side in a manner consistent with trying to keep an un-holstered gun from slipping, Officer Dunaske and Officer Sanchez had elected to pursue the defendant.

The State argued, that based on the totality of the circumstances: the men were in a poorly-lit, high-crime area late at night, engaging in conduct consistent with casing a house; the men dispersed immediately upon seeing the police; and Officer Dunaske observed the defendant manipulating what he believed was a firearm in the defendant’s waistband, there existed a reasonable suspicion justifying the approach, detainment and pat-down of the defendant. The trial court, however, held that while the facts may have supported a consensual encounter, they did not give rise to the level necessary to support detainment and the pat-down of the defendant, and it therefore granted the defendant’s motion to suppress the evidence.

DISCUSSION

A trial court’s ruling on the suppression of evidence typically comes to this Court clothed with a presumption of correctness, and the appellate court reviews all evidence and makes all inferences in favor of supporting the trial court’s ruling. Pagan v. State, 830 So.2d 792, 806 (Fla.2002); State v. Manuel, 796 So.2d 602, 604 (Fla. 4th DCA 2001). The trial court’s order granting a motion to suppress, however, is subject to a mixed standard of appellate review. While the trial court’s findings of fact are binding on the appellate court and are only subject to review for clear error, the trial court’s application of law to the facts in finding reasonable suspicion is subject to de novo review. Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (underscoring that the appellate court must conduct an independent review of the ultimate determination of whether reasonable suspicion or probable cause exists by its own application of the facts to the legal rules because those rules only acquire content through their application). Accordingly, this Court accepts the trial court’s findings of fact and reviews de novo whether the trial court correctly applied the law to the facts in the record to find that the firearm found in the defendant’s possession by Officer Sanchez was discovered as the result of an illegal search and should be suppressed.

The particular level of “suspicion or cause” necessary to support a police-citizen encounter varies based on the level of the encounter. See Popple v. State, 626 So.2d 185, 186 (Fla.1993). For example, because an initial encounter, during which an officer merely approaches and asks a citizen routine questions such as the name or address of the citizen, is minimally intrusive and does not give rise to any constitutional issues, such an encounter does not require any justification, cause, or suspicion by the officer. Patrick v. State, 104 So.3d 1046, 1060 (Fla.2012) (describing the consensual encounter as one where a citizen’s decision to comply is voluntary and one which does not require constitutional safeguards) (citing United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). On the other hand, the second level of police-citizen encounter, an investigatory stop, known as a Terry-stop, requires that the officer possess a reasonable suspicion that the citizen has committed, is committing, or is about to commit a crime in order to support the detention. § 901.151(2), Fla. Stat. (2011). Because this level of encounter affects the suspect’s Fourth Amendment rights, it invokes constitutional safeguards, and the stop must be supported by an officer’s well-founded, articulable suspicion of criminal activity. Popple, 626 So.2d at 186. The third, and most intrusive, level of police-citizen encounter involves an arrest, which must be supported by probable cause that a crime has been or is being committed. § 901.15, Fla. Stat. (2011); Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).

In addition, section 901.151(5) of the Florida Statutes (2011), known as the “Florida Stop and Frisk Law,” allows for the limited search of a lawfully detained suspect. The statute provides:

Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom the officer has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, the officer may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.

§ 901.151(5).

The Florida Supreme Court has clarified that when the term “probable cause” is used in section 901.151, the term means reasonable belief or suspicion, and does not rise to the level of justification required for an arrest. Smith v. State, 925 So.2d 465, 467 (Fla. 4th DCA 2006) (citing State v. Webb, 398 So.2d 820 (Fla.1981)). Therefore, in order to justify their search of the defendant, that resulted in discovery of the firearm at issue, the officers must have possessed a reasonable belief that the defendant was armed and presented a threat to their safety. Moreover, the search of the defendant had to be strictly limited to the extent necessary to reveal the weapon and protect the officers. Once the search is authorized pursuant to section 901.151(5), any evidence of criminal activity or weapon resulting from the search is admissible. § 901.151(6), Fla. Stat. (2011). Accordingly, if the defendant was legally detained pursuant to section 901.151(2), and the firearm at issue was discovered as the result of a legal search, pursuant to section 901.151(5), and both the detention and the search were founded on the officers’ “reasonable, artic-ulable suspicion,” the firearm is admissible into evidence.

A. The Defendant was Legally Detained

The trial court found that while the circumstances supported an initial consensual encounter with the defendant, they did not give rise to a level that would support his detention. We disagree with the trial court’s analysis, and find that the totality of the circumstances provided the officers with sufficient cause to believe that a crime was being, or was about to be, committed. Accordingly, the defendant’s detention was lawfully supported by the officers’ reasonable and particularized suspicion, which the officers were able to, and did, adequately articulate at the hearing on the defendant’s motion to suppress.

In determining whether an officer’s suspicion is reasonable or well-founded, the trial court must apply an objective standard. Hernandez v. State, 784 So.2d 1124, 1128 (Fla. 3d DCA 1999) (underscoring that a court is not bound by the officer’s subjective intent or motivation on the issue of probable cause or reasonable suspicion, but rather the court must apply an objective standard). Although not precisely delineated, the minimal level of justification for an investigatory stop has been described as something more than a “mere hunch” based on bare intuition. U.S. v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). Although no bright-line or precise definition of “reasonable suspicion” can be found, courts have underscored that the officer must be able to articulate specific facts from which a reasonable person could rationally infer that a crime is being, or is about to be, committed in order to support the officer’s detention of a suspect. Hilton v. State, 961 So.2d 284, 294 (Fla.2007).

An officer need not actually witness any criminal activity in order to support a Terry-stop. Hernandez, 784 So.2d at 1126. As a matter of fact, even conduct consistent with innocent activity can give rise to a reasonable suspicion in support of a Terry-stop when all the circumstances are taken into consideration. Id. (underscoring that innocent, non-criminal, behavior will frequently provide the basis for reasonable suspicion); see also Beahan v. State, 41 So.3d 1000, 1004 (Fla. 1st DCA 2010) (“[T]he officer’s suspicions need not be inconsistent with a hypothesis of innocence. Rather, they need to be based only on rational inferences, from articulable facts, which reasonably suggest criminal activity.”).

Florida courts have emphasized that no single factor is dispositive to establish that an officer’s suspicion leading to a Terry-stop is reasonable. Instead, the circumstances, as they are known to the officer at the time of the investigative stop, are viewed in their totality. Hernandez, 784 So.2d at 1128. Additionally, the officer’s training and experience is taken into consideration to determine whether anything incongruous or unusual reasonably triggered the officer’s suspicion to conduct a stop. Id. at 1126; see also May v. State, 77 So.3d 831, 835 (Fla. 4th DCA 2012) (holding that while some conduct consistent with drug activity may not arouse suspicion in an average citizen, an officer’s training and experience of how drug crimes are committed may provide the officer with a different perspective and should factor into the rubric when determining the reasonableness of the officer’s suspicion); Jenkins v. State, 524 So.2d 1108, 1109 (Fla. 3d DCA 1988) (“A ‘founded’ suspicion is one which has some factual foundation in the circumstances observed by the officer when those circumstances are interpreted in light of the officer’s knowledge.”) (quoting G.J.P. v. State, 469 So.2d 826, 827 (Fla. 2d DCA 1985)).

The following factors may be considered by police officers to arrive at a reasonable suspicion that a crime is being or is about to be committed and to support the investigatory stop or detention of a suspect:

The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge.
To this list may be added, the factor of flight.

Hernandez, 784 So.2d at 1126 (citations omitted).

In the instant case, although the initial consensual contact between Officer Sanchez and the defendant did not require Officer Sanchez to have a reasonable suspicion, once Officer Sanchez stopped the defendant and asked whether he had any weapons in his possession, the encounter became an investigative stop. Popple, 626 So.2d at 186 (holding that once the officer asked the defendant to exit his vehicle, the encounter became a stop because the defendant was no longer free to leave); State v. Wilson, 566 So.2d 585, 586 (Fla. 2d DCA 1990) (holding that by the time the officer asked the defendant if he could frisk him, the encounter had evolved into a stop). At that point, Officer Sanchez needed to possess a reasonable, articulable, and particularized suspicion of criminal activity in order to justify his stop of the defendant.

We find that the information known to Officer Sanchez and Officer Dunaske at the time they seized the defendant was sufficient to create a reasonable suspicion that criminal activity was taking place. The undisputed facts show that the encounter with the defendant took place (1) at ten o’clock in the evening, (2) in a dark and poorly-lit area, (8) in a high crime neighborhood known for shootings and narcotics. See, e.g., State v. Russell, 659 So.2d 465, 466 n. 1 (Fla. 3d DCA 1995) (holding that the defendant’s presence in a dark alleyway, at six o’clock in the morning, behind a closed business, in an exclusively commercial area, supported the investigative stop, and explaining that knowledge of recent burglaries in an area is a relevant circumstance to be considered in determining the reasonableness of an officer’s suspicion because knowledge of the character of the area is part of an officer’s expertise). Compare Hernandez, 784 So.2d at 1127 (finding reasonable suspicion where the officer observed two vans backed up to each other with their back doors open in a parking lot at three o’clock in the morning because, while this scene may not arouse suspicion during the day, such an arrangement of the vehicles at that time of night was suspicious) and Mitchell v. State, 787 So.2d 224, 229 (Fla. 2d DCA 2001) (finding reasonable suspicion where the incident took place in a high crime area, the officer knew of recent drug sales in the area, and the suspect attempted to flee) with Thornton v. State, 80 So.3d 1141, 1142 (Fla. 4th DCA 2012) (finding no reasonable suspicion where the officer observed a group of ten to fifteen men standing in front of a barbershop in the middle of the afternoon); Daniels v. State, 543 So.2d 363 (Fla. 1st DCA 1989) (finding no reasonable suspicion where the officers saw a group of twenty or thirty people gathered behind a bar mid-day); and Jenkins v. State, 524 So.2d 1108, 1108 (Fla. 3d DCA 1988) (underscoring that an individual’s presence in a high crime area, alone, is not sufficient to support a reasonable suspicion).

In addition to these facts, the men were standing close to a chain link fence separating the field from a house and they appeared to be looking into the house. While this conduct may arguably be consistent with innocent activity, the officers testified that, based on their training and experience, they believed that the men were casing the house in preparation for a burglary. See Hernandez, 784 So.2d at 1126 (noting that innocent behavior frequently provides the basis for a showing of reasonable suspicion). Also, as soon as the men saw the marked police vehicle turn around, the men dispersed and headed away from the officers. While not “headlong flight,” this evasive action by the men certainly contributed to the officers’ reasonable suspicion that criminal activity was being, or was about to be, committed. See U.S. v. Gordon, 231 F.3d 750, 756-58 (11th Cir.2000) (underscoring that the key to flight is not whether it is headlong or fast, but rather whether it is unprovoked, and noting that the suspect’s evasive conduct, which was provoked only by the appearance of a police vehicle and eye contact with the police officer could constitute flight and arouse reasonable suspicion).

Lastly, and importantly, Officer Du-naske observed the defendant manipulating something in his waistband, which, based on his training and experience, he believed was a firearm. We find that these facts are sufficient to establish a reasonable suspicion that the defendant was engaging, or preparing to engage, in some criminal activity including carrying a concealed firearm. Accordingly, the officers’ detention of the defendant was lawful and authorized by Florida law.

B. The Pat-Down was Lawfully Supported by a Concern for Officer Safety

The trial court granted the defendant’s motion to suppress introduction of the firearm into evidence solely based on the trial court’s erroneous finding that the defendant’s detention was not lawful. As a result, the trial court did not extend its analysis to consider whether the officers had reasonable suspicion to conduct a pat-down of the defendant. Because the detention was lawful, we now consider whether the pat-down of the defendant was justified.

Under Florida law, three conditions are necessary to effectuate a lawful pat-down: (1) the suspect’s temporary detainment must be lawful; (2) the officer must have a reasonable suspicion that the suspect is armed; and (3) the pat-down must be strictly limited “only to the extent necessary to disclose, and for the purpose of disclosing,” the weapon. § 901.151(5). Because we find that all three conditions are satisfied, we hold that Officer Sanchez’s pat-down of the defendant was lawful. Accordingly, the firearm discovered during the lawful pat-down was admissible into evidence and the trial court erred in granting the defendant’s motion to suppress. § 901.151(6).

As with an officer’s suspicion to conduct an investigatory stop, the reasonableness of an officer’s suspicion to conduct a pat-down of a suspect is evaluated by the totality of the circumstances when viewed in light of the officer’s training and experience. Enich v. State, 838 So.2d 1216, 1218 (Fla. 3d DCA 2003). Accordingly, those circumstances that we have already addressed in our discussion on the legality of the defendant’s detention must also factor into our consideration of the reasonableness of the officers’ suspicion that the defendant was armed with a dangerous weapon and presented a threat to their safety. Therefore, in addition to the defendant’s gesture of manipulating his waistband and hiking up his pants, the time of day, the poorly-lit conditions, the high-crime nature of the area, the fact that the suspects appeared to be casing the neighboring house and dispersed as soon as they noticed the marked police vehicle also factor into this Court’s analysis of whether the defendant’s pat-down was justified by a reasonable suspicion that he was carrying a concealed weapon.

Officer Dunaske testified that he saw the defendant manipulate his waistband and hike up his pants and that based on his training and experience, his observation of this gesture led Officer Dunaske to believe that the defendant was concealing a weapon. Officer Dunaske explained that this gesture was a known indicator of someone carrying a gun because when a gun is held in a waistband without a holster, the weight of the gun causes it to slip down and the suspect instinctively tends to grab the barrel and push the gun up to prevent it from slipping. We find that, as they were articulated by Officer Dunaske, the circumstances surrounding the incident at issue, particularly the defendant’s gesture towards his waistband, sufficiently supported the officers’ belief that the defendant might be concealing a weapon and that a pat-down was warranted in order to ensure the officers’ safety. See Mackey v. State, 83 So.3d 942, 945-47 (Fla. 3d DCA 2012) (underscoring that an officer’s observation based on his experience and training that a suspect may be carrying a concealed weapon justifies not just a pat-down, but also a search); Wilson, 566 So.2d at 586-87 (finding that defendant’s “body movements and nervous demeanor during the consensual encounter” whereby he “repeatedly reached behind himself, touching the waistband of his pants,” gave the officer reasonable suspicion to frisk the defendant). Consequently, because the firearm discovered on the defendant’s person was the product of a legal search, it was admissible into evidence. § 901.151(6).

Accordingly, we find that the trial court erred in granting the defendant’s motion to suppress introduction of the firearm into evidence, and we therefore reverse and remand with instructions to the trial court to vacate the order of suppression and to enter an order denying the defendant’s motion to suppress.

Reversed and remanded with instructions.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Section 901.151 (2) provides that:
      Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, the officer may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding the person’s presence abroad which led the officer to believe that the person had committed, was committing, or was about to commit a criminal offense.

      . Section 901.151(6) provides:
      (6) No evidence seized by a law enforcement officer in any search under this section shall be admissible against any person in any court of this state or political subdivision thereof unless the search which disclosed its existence was authorized by and conducted in compliance with the provisions of subsections (2)-(5).


text:
    MUÑOZ HNOS, S.A., a foreign corporation, Appellant, v. EDITORIAL TELEVISA INTERNATIONAL, S.A., and ET Publishing International, foreign corporations, Appellees.
    No. 3D12-2688.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 2013.

      Fowler Rodriguez Valdes-Fauli, and G. Luis Dominguez, Coral Gables, for appellant.
    Blueroek Legal, P.A., and Frank H. Henry, for appellees.
    Before SHEPHERD, C.J., and ROTHENBERG and SALTER, JJ.
   ROTHENBERG, J.

Muñoz HNOS, S.A. (“Muñoz”) appeals the trial court’s order entering final summary judgment in favor of Editorial Telev-isa International, S.A. (“Televisa”), and ET Publishing International. We reverse and remand.

BACKGROUND

Muñoz entered into a settlement agreement (“Agreement”) with Televisa in October of 2003. Pursuant to the Agreement, Muñoz was to receive $450,000 in cash, $460,000 in magazine advertising credit, and $200,000.00 in television advertising credit.

Two years after entering into the Agreement, Muñoz filed suit against Televisa, asserting claims for breach of contract (Count I), breach of the implied covenant of good faith and fair dealing (Count II), negligent misrepresentation (Count III), and fraud (Count IV). Muñoz claimed that Televisa breached the Agreement and the implied covenant of good faith and fair dealing when it failed to provide Muñoz with the requested letters confirming Mu-ñoz’s authority to sell advertising space in Televisa’s magazines and by ignoring Mu-ñoz’s request to approve its assignment of the advertising credit to Norlop-Thomp-son & Associates (“Norlop”). Muñoz also alleged that Televisa materially misrepresented to Muñoz that the advertising credit could be assigned “to any third party,” in order to entice Muñoz to dismiss its legal action against Televisa in Ecuador in exchange for the advertising credit.

Covenant l.B. of the Agreement, which applies to the magazine credit, states that the magazine credit may be redeemed to purchase advertising space in any magazine published by Televisa or its subsidiaries and in any country where Televisa’s magazines are distributed. That provision also provides that Muñoz may assign the credit to any third-party, “subject to approval by the General Director of EDITORIAL TELEVISAR which] shall not be unreasonably withheld.” (emphasis added). Covenant l.C. of the Agreement, relating to the television advertising credit, however, strictly limits the use of the television advertising credit to “entities controlled by Juan Carlos Muñoz or ... by a blood relative of Juan Carlos Muñoz,” and prohibits use by any entity that has advertised on Televisa’s channels twelve months preceding execution of the Agreement.

Sometime in mid-2004, Muñoz contacted Televisa’s General Director, Eduardo Mi-chelsen (“Mr.Michelsen”), to request information about the rates, closing dates, etc. for advertising in Televisa’s publications. Mr. Michelsen asked Neal Tritton (“Mr.Tritton”), Mr. Michelsen’s executive assistant, and Rodrigo Sepulveda, general manager of Televisa’s South American division, to collect the information and send it to Muñoz. In 2004, Muñoz submitted three partial ads to Televisa for publication. All three ads were accepted and placed in the requested publications by Televisa.

Muñoz’s president, Juan Carlos Muñoz (“Mr.Muñoz”), testified that when Muñoz tried to sell the magazine advertising credit in Ecuador, Televisa’s Ecuadorian subsidiary claimed that Muñoz did not have authority to sell advertising in Televisa’s publications in Ecuador. As a result, Mr. Muñoz contacted Mr. Michelsen and requested a letter from Televisa confirming Muñoz’s authority to sell ads in Ecuador. Neither Mr. Michelsen, nor anyone else at Televisa, responded to Mr. Muñoz’s request for evidence of Muñoz’s authority to sell the credit in Ecuador. Mr. Muñoz also testified that when he attempted to sell the advertising credit to Norlop, Nor-lop also requested verification of Muñoz’s authority to sell advertising in Televisa’s publications in Mexico. Mr. Muñoz contacted Mr. Michelsen and requested a letter from Televisa’s Mexico office confirming Muñoz’s authority to sell the credit. As with the request regarding Muñoz’s authority to sell advertising in Ecuador, no one at Televisa responded to Mr. Muñoz’s request for evidence of Muñoz’s authority to sell the credit in Mexico.

Mr. Michelsen and Mr. Muñoz met in Mexico in February of 2005, to discuss possible solutions to Muñoz’s difficulty in redeeming its advertising credit. Mr. Mu-ñoz testified that it became clear at that meeting that Televisa was now adding an additional restriction to Muñoz’s redemption of the magazine advertising credit, one not included in the Agreement, by suggesting that Mr. Muñoz meet with Te-levisa’s advertising representative in Ecuador in order to obtain a list of acceptable clients that Muñoz could approach.

Mr. Tritton also provided deposition testimony. Mr. Tritton testified that, pursuant to Mr. Michelsen’s instructions, Mr. Tritton had provided Mr. Muñoz with the rate and other information requested in 2004, 2005, 2006, and 2007. Mr. Tritton explained that although this information was readily available to Muñoz online, Mr. Tritton had spent approximately ten to fifteen hours in 2004, compiling and sending the requested information to Muñoz.

Mr. Tritton also testified that Televisa had declined to send the letters confirming Muñoz’s authority to sell advertising in Televisa’s magazines in Ecuador and Mexico because Mr. Muñoz was only authorized to sell to “a limited list of clients, clients which had not been currently placing ads” with Televisa. As to Muñoz’s request to sell the magazine advertising credit to Norlop, Mr. Tritton further explained that because Norlop already purchased a significant amount of advertising in Televisa’s publications for some of its clients, Mu-ñoz’s proposed sale of its credit to Norlop at a thirty percent discounted rate would have cost Televisa approximately forty percent of its revenue in Ecuador and significantly impacted the company — possibly causing Televisa to close its Ecuador office.

Muñoz moved for partial summary judgment on its breach of contract and breach of implied covenant of good faith and fair dealing claims. Televisa opposed Muñoz’s motion and filed its own cross motion for summary judgment. The trial court denied Muñoz’s motion for partial summary judgment on its breach of contract and breach of implied covenant of good faith and fair dealing claims; found that no issue of material fact existed on those claims; and entered final summary judgment in favor of Televisa on those claims. Additionally, the trial court held that Mu-ñoz’s tort claims for negligent misrepresentation and fraud were barred by the economic loss rule. This appeal ensued.

DISCUSSION

While a trial court’s ruling on a motion for summary judgment is subject to de novo review, a review of an order granting summary judgment requires a two-pronged analysis. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 180 (Fla.2000). Summary judgment is only proper if: (1) after viewing the facts and all inferences in favor of the party against whom summary judgment is viewed, no genuine issue of material fact exists; and (2) the moving party is entitled to judgment as a matter of law. Id. “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991).

The trial court’s construction of a contract is an issue of law similarly subject to de novo review. Fla. Power Corp. v. City of Casselberry, 793 So.2d 1174, 1178 (Fla. 5th DCA 2001). Because a settlement agreement is contractual in nature, it is interpreted and governed by contract law. Cadle Co. v. Schecter, 602 So.2d 984, 985 (Fla. 3d DCA 1992). Accordingly, because this appeal challenges entry of summary judgment in favor of Televisa and revolves around the interpretation of the Agreement between Televisa and Muñoz, our standard of review is de novo.

We first dispose of the trial court’s ruling that Muñoz’s negligent misrepresentation and fraud claims are barred by the economic loss rule. This issue has recently been resolved by the Florida Supreme Court in Tiara Cond. Ass’n v. Marsh & McLennan Cos., 110 So.3d 399 (Fla.2013), where, in response to a certified question from the United States Court of Appeals for the Eleventh Circuit, the Florida Supreme Court held that application of the economic loss rule is strictly limited to product liability cases. Id. at 400. Without benefit of the recent decision in Tiara, the trial court erred and applied the economic loss rule to bar Muñoz’s tortious claims against Televisa. We therefore reverse the trial court’s order granting summary judgment in favor of Televisa on Counts III and IV and remand for further proceedings.

Similarly, we reverse the trial court’s order granting summary judgment in favor of Televisa on Counts I and II. We conclude that this record does not support summary judgment on the breach of contract claims. Upon our de novo review of the record, this Court concludes that genuine issues of material fact remain regarding whether Televisa breached the Agreement or the covenant of good faith and fair dealing by unreasonably withholding its consent to Muñoz’s assignment of the advertising credit. We therefore hold that Televisa was not entitled to judgment as a matter of law. Accordingly, we reverse the trial court’s order granting summary judgment in favor of Televisa on Counts I and II and remand for further proceedings on those counts as well.

Specifically at issue here is whether Te-levisa “unreasonably withheld” approval of Muñoz’s assignment, use, or redemption of the magazine advertising credit. While the Agreement provides that Muñoz may use or assign the credit “to any third party,” the assignment is subject to approval, which “shall not be unreasonably withheld.” Since there is no evidence that any request for assignment was submitted and actually rejected by Televisa, Muñoz’s claim appears to be premised on an anticipatory breach by Televisa’s failure to provide the requested letters evidencing Mu-ñoz’s authority to sell its credit in Ecuador and Mexico. According to Mr. Muñoz, without the requested letters, he could not sell the credit in Ecuador or in Mexico.

Although the construction of a contract is a matter of law, where, as here, the issue is whether consent to an assignment was unreasonably withheld, summary disposition of a breach of contract claim is rarely suitable. See, e.g., Fernandez v. Vazquez, 397 So.2d 1171, 1174 (Fla. 3d DCA 1981) (reversing summary judgment by underscoring the factual nature of such a determination); Popovic v. Fla. Meek Contractors, Inc., 358 So.2d 880, 882-84 (Fla. 2d DCA 1978) (reversing because evidence presented at trial did not establish that landlord’s refusal to consent to assignment by tenant was unreasonable); Catalina, Inc. v. Biscayne Ne. Corp. of Fla., 296 So.2d 580, 581 (Fla. 3d DCA 1974) (affirming the trial court’s finding after trial that the consent to sublease was unreasonably withheld). The reasonableness or unreasonableness of a party’s consent to an assignment is a factually driven determination and one best suited to resolution by the trier of facts. Fernandez, 397 So.2d at 1174.

Under certain circumstances, for example, withholding consent to an assignment in order to charge a higher price has been held unreasonable. Fernandez, 397 So.2d at 1174 (noting that a landlord’s denial of consent to the assignment of a commercial lease in order to charge a higher rent has been held to be arbitrary and unreasonable); see also First Nationwide Bank v. Fla. Software Servs., Inc., 770 F.Supp. 1537, 1543 (M.D.Fla.1991) (applying the rule established in Fernandez to a software licensing agreement and emphasizing that reasonableness is determined by reference to the provisions negotiated in the original agreement and not to what is later found to be most economically advantageous). On the other hand, withholding of consent to an assignment may be reasonable if consenting to the assignment would destroy or adversely affect an existing contract. See Catalina, Inc., 296 So.2d 582-83 (opining that landlord’s refusal to consent to sublease of property to an existing tenant could be reasonable if the proposed sublease would have destroyed or affected an existing lease with the tenant).

We conclude that the testimony by Mr. Tritton and Mr. Muñoz created sufficient factual issues regarding the reasonableness of Televisa’s withholding of consent to Muñoz’s assignment of the advertising credit to preclude summary judgment. The finder of fact could determine that Mr. Tritton’s testimony that Muñoz’s sale of its credit to Norlop would be economically disadvantageous to Televisa constituted an unreasonable withholding. On the other hand, when the facts are better developed, the trier of fact could find that Televisa’s withholding of consent was reasonable as it would destroy Televisa’s Ecuador office or “adversely affect” its ability to continue to conduct business with its existing client, Norlop. In any case, we conclude that factual issues remain and thus Televisa was not entitled to judgment as a matter of law. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.


text:
    In re Derek Dave GAMBINO.
    No. 2013-OB-2094.
    Supreme Court of Louisiana.
    Sept. 11, 2013.
   ORDER

11 Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Derek Dave Gambino, Louisiana Bar Roll number 28354, be and he hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as he resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

FOR THE COURT:

/s/ Jeannette Theriot Knoll Justice, Supreme Court of Louisiana


author:
WHIPPLE, C.J.
      HIGGINBOTHAM, J., McCLENDON, J.,

text:
    Ashley HOFFMAN, individually and on behalf of all others similarly situated v. TRAVELERS INDEMNITY COMPANY OF AMERICA.
    No. 2012 CW 0725R.
    Court of Appeal of Louisiana, First Circuit.
    June 7, 2013.

      Jason L. Melancon, Robert C. Rimes, Rachel Abadie, Frank Tomeny, III, Catherine Plauche, Baton Rouge, LA, for Plaintiff/Respondent Ashley Hoffman, et al.
    Seth A. Schmeeckle, Heather N. Sharp, Ralph S. Hubbard, III, Rachel A. Clark, New Orleans, LA, Patrick W. Pendley, Plaquemine, LA, for Defendant/Relator Travelers Indemnity Company of America.
    Before WHIPPLE, C.J., McClendon, and Higginbotham, jj.
   WHIPPLE, C.J.

12This writ application is before us on remand from the Louisiana Supreme Court. The issue presented on remand of defendant/relator’s application for supervisory writs is whether “expenses incurred,” as stated in the medical payment provision of plaintiffs automobile liability policy, means the full amount of the medical expenses charged by a treating hospital in connection with plaintiffs automobile accident, or the reduced amount of medical expenses accepted by the hospital due to a contractual agreement with plaintiffs health insurer. We conclude that “expenses incurred” constitutes the full amount of medical expenses charged by the treating hospital and that the trial court properly denied the automobile insurer’s motion for summary judgment. Thus, we again deny the insurer’s writ application.

FACTS AND PROCEDURAL HISTORY

Plaintiff Ashley Hoffman was injured in an automobile accident on June 24, 2010, and sought treatment at Baton Rouge General Medical Center’s emergency room (“Baton Rouge General”). At the time of the accident, Ms. Hoffman was insured under at least two different insurance policies, i.e., an automobile liability policy with uninsured/underinsured motorist coverage and a medical payments provision issued by Travelers Indemnity Company of America (“Travelers”) to her parents and a health insurance policy issued by AETNA.

On August 17, 2010, Ms. Hoffman, through her attorney, submitted a medical bill to Travelers in the amount of $485.29 from Baton Rouge General, incurred for her treatment in the emergency room after the accident. According to Travelers, the submitted “account summary” did not contain an itemization of the medical treatment provided to Ms. Hoffman and, therefore, precluded Travelers from analyzing the claim for medical payment or making a payment. The Travelers’ claim handler then contacted Baton Rouge General directly and ^requested an itemized bill of Ms. Hoffman’s account purportedly so that she could process and pay the claim. In response to the request, Baton Rouge General provided Travelers with an itemized invoice in the amount of $718.67 on September 3, 2010. Travelers reviewed the itemized bill and then issued payment on September 22, 2010 in the amount of $674.73 to Ms. Hoffman and her attorneys. Travelers’ explanation of benefits indicated that a charge of $72.00 for a procedure was reduced to an allowed amount of $33.06 “based on provider charges within the provider’s geographic area.” Thus, the invoiced amount of $713.67 was reduced to $674.73.

On June 14, 2011, Ms. Hoffman filed a “Class Action Petition for Declaratory Judgment, Injunctive Relief and for Incidental Damages.” The petition alleged that Travelers reduced the $72.00 charge to $33.06 with an explanation code that “[t]he amount allowed is based on provider charges within the provider’s geographic scope,” without any definition of “geographic scope” of the allowed amount, nor any explanation regarding how the allowed amount was calculated. The petition sought a declaratory judgment that Travelers’ reduction of medically related service charges: (1) violates the terms and conditions of the automobile accident policy; (2) constitutes an arbitrary and capricious refusal to timely tender insurance benefits; and (3) runs contrary to the public mores. The petition also sought injunc-tive relief requiring Travelers to adjust or re-adjust all past and future claims for reimbursements of medical expenses under the terms and conditions of its medical payments coverage.,

| ./Travelers filed a motion for summary judgment in response to Ms. Hoffman’s suit, arguing that Ms. Hoffman’s petition should be dismissed because Travelers fully performed under the policy by paying $674.73 for “expenses incurred,” when Ms. Hoffman’s expenses only totaled $485.29.

On April 30, 2012, the trial court denied Travelers’ motion, and Travelers then filed an application for supervisory writs with this court, challenging the trial court’s denial of the motion for summary judgment. This court denied Travelers’ writ application on September 19, 2012. See Hoffman v. Travelers Indemnity Company of America, 2012-CW-0725 (La.App. 1st Cir.9/19/12) (unpublished writ action). Thereafter, on December 14, 2012, the Louisiana Supreme Court granted Travelers’ application for supervisory writs and remanded the matter to this court for briefing, argument, and full opinion. Hoffman v. Travelers Indemnity Company of America, 2012-2271 (La.12/14/12) 104 So.3d 451.

In accordance with the remand order from the Louisiana Supreme Court, we issue the following full opinion on the merits of Travelers’ writ application.

DISCUSSION

The “Medical Payments” provision of the Travelers’ policy states that Travelers will pay “reasonable expenses incurred” for necessary medical and funeral services because of ‘bodily injury’ caused by an accident and sustained by an insured. Travelers contends that this policy language is unambiguous and, furthermore, that it is “well-established” in Louisiana that the phrase “expenses incurred” in an insurance policy means “only those expenses that the insured is legally obligated to pay, ie., the amount that the medical-service providers were willing to accept as full payment for their services — the discounted bill.” In support, Travelers cites Irby v. Government Emp. Ins. Co., 175 So.2d 9 (La.App. 4th Cir.1965); Brackens v. Allstate Ins. Co., 339 So.2d 486, (La.App. 2nd Cir.1976); Drearr v. Connecticut Life Ins. Co., 119 So.2d 149 (La.App.Orleans 1960); and Rigby v. Aetna Casualty & Surety Co., 151 So. 119 (La.App. 2nd Cir.1933). We find these cases to be readily distinguishable from the present matter. In particular, no charges whatsoever were incurred for the medical services provided in those cases.

In Irby, the plaintiff sought benefits under the medical payments provision of his automobile liability policy for costs associated with treatment at a United States public hospital following an automobile accident. The plaintiff was never charged for the medical and hospital services he received, due to his status as an active member of the United States Coast Guard. The court found the plaintiff did not incur any medical expenses under the automobile liability policy, noting that “plaintiff never was under any obligation to pay the medical and hospital expenses and therefore never ‘incurred’ the same....” Irby, 175 So.2d at 11.

In Brackens, the plaintiff sought benefits under the medical payments provision of his automobile liability policy for costs associated with treatment at a veterans’ administration hospital following an automobile accident. As a veteran, the plaintiff was entitled to receive hospital services without payment and no charge was made to plaintiff for the services. The court found the plaintiff did not incur any medical expenses under the automobile policy terms, stating that “[p]laintiff here has never been liable or obligated for payment of the medical services rendered by the VA Hospital, either initially or by reason of the settlement with the tort-feasor’s insurer. He has never, therefore, ‘incurred’ any medical expense for which payment is due under the medical payments provision of the insurance contract.” Brackens, 339 So.2d at 488.

Likewise, in Drearr, the plaintiff was a war veteran who received medical treatment at a veterans’ administration hospital free of charge. The plaintiff sought payment of medical expenses under an insurance policy wherein the insurer 1 (-.contracted to pay plaintiff for medical expenses incurred. The court found that “the plaintiff not having incurred any expenses-indeed, he could not legally do so in a veterans’ facility — has no right of recovery under the certificate of insurance issued by defendant.” Drearr, 119 So.2d at 153.

In Rigby, the plaintiff was a doctor who sued to recover damages for personal injuries received in an automobile accident, including special damages for medical expenses. However, the physicians and surgeons who treated the plaintiff after the accident did not charge him. The court found that the plaintiff was not entitled to a sum for medical expenses, stating that “[sjince plaintiff [was] not charged for the services, he could not be damaged in an amount not claimed of him by any one and not charged against him.” Rigby, 151 So. at 122.

Unlike Irby, Brackens, Drearr, and Rigby, in the instant case, Baton Rouge General did charge for the services provided to Ms. Hoffman. Thus, these cases differ from the situation herein, where actual expenses were incurred. Moreover, we are not the first court to make this distinction. This exact distinction was noted in Thomas v. Universal Life Ins. Co., 201 So.2d 529 (La.App. 3rd Cir.1967), and Niles v. American Bankers Ins. Co., 229 So.2d 435 (La.App. 3rd Cir.1969) writ refused, 255 La. 479, 231 So.2d 394 (1970).

In Thomas, the plaintiff was insured under a hospital and surgical expense policy, wherein the insurer was obligated to reimburse the plaintiff for medical “expenses actually incurred.” Following his hospitalization, the plaintiff sought payment under the policy. The insurer argued that there were no “expenses actually incurred” by plaintiff, as his medical expenses were paid by his employer’s workers’ compensation insurer. The court disagreed with the insurer and found that the insurer was obligated to pay the medical expenses under the policy terms. In reaching its decision, the court noted that, when applying the test used in Irby and Drearr, there is “no question” that the plaintiff incurred medical 17expenses. The court noted that the hospital statements demonstrated that the plaintiff was charged for the medical services rendered; thus, he was legally liable for these expenses, and they accordingly were “incurred.” Thomas, 201 So.2d at 532.

In Niles, the plaintiff brought suit to recover benefits under a hospitalization policy. The issue was whether the plaintiff “actually incurred” the hospital expenses claimed, as a substantial portion of the expenses were paid by Medicare. The court concluded that the hospital expenses were “actually incurred” by the plaintiff, and that the defendant insurer was liable to the plaintiff for the insurance benefits claimed. In reaching its conclusion, the court distinguished Drearr, Irby and Rig-by, stating:

In none of the cited cases, however, were any charges made to anyone for the hospital or medical services which were provided, and the provider of those services was never entitled to be paid for them. In the instant suit, the Baptist Hospital did make a charge for the services it provided, and it received payment of the amount due.

Niles, 229 So.2d at 438.

Applying the rationale of Niles and Thomas to the instant matter, we find that the “expenses incurred” by Ms. Hoffman, within the meaning of that term as used in the Travelers’ policy, were $713.67, i.e., the amount reflected on the Baton Rouge General statement as invoiced and billed to plaintiff prior to any discount obtained on account of Ms. Hoffman’s health insurance. Baton Rouge General charged her for the services it provided and it was entitled to be paid for the charges. The fact that the charges could ultimately be reduced by virtue of a negotiated rate agreement between the treating hospital and plaintiffs medical insurer is of no moment in determining the amount which Travelers is legally and contractually obligated to pay.

In so concluding, we note that this was not a gratuitous reduction by the treating hospital; rather, premiums were paid by or on behalf of Ms. Hoffman for [¡¡health insurance to obtain this benefit. Thus, Travelers is not entitled to a windfall based on premiums paid to her health insurer, as there is no evidence that plaintiffs premiums paid to Travelers were reduced on account of her having a separate policy. Absent Ms. Hoffman’s decision to collaterally obtain health insurance, she would be responsible for the full sum invoiced, as the “expenses incurred” by her for the hospital charges. Moreover, if Ms. Hoffman’s health insurer had failed or refused to pay the hospital charges, she remained responsible for the charges as she signed a treatment authorization form upon being admitted to the hospital which included a contractual obligation that she “assume[s] responsibility for and guarantee[s] the payment of all Medical Center charges in accordance [with] the Medical Center’s then current rate.” There is no basis in fact or law to allow Travelers to obtain a windfall for Ms. Hoffman’s separately paid health insurance.

Travelers argues that a contrary result is mandated by a footnote of a federal court in Guidry v. American Public Life Ins. Co., 07-30085, (U.S. 5th Cir.2007), 512 F.3d 177, 183. Specifically, footnote 7 in the Guidry opinion states, “APL convincingly establishes that “expenses incurred” under Louisiana law means lathose expenses for which a person is legally liable — in this case, the discounted bill.” However, we note that there is no further explanation therein for this statement nor any discussion of or citation to any prior case law in support of this statement. Moreover, interpretation of the term “expenses incurred” was not the issue in Guidry. Rather, the plaintiff in Guidry sought payment under a supplemental coverage policy for cancer treatment, which contractually obligated the insured to offset the costs of cancer treatment by paying a set percentage of the “actual charges” incurred for various treatments. The Guidry court held that the term “actual charges” was subject to interpretation, and therefore, the term was ambiguous and summary judgment was not appropriate. Thus, we find that footnote 7 in the Guidry opinion appears to be non-persuasive dicta, which is not binding on this court.

Accordingly, we find no error in the trial court’s denial of Travelers’ motion for summary judgment and deny its application for writs.

CONCLUSION

For the above and foregoing reasons, Travelers’ application for supervisory writs, seeking review of the trial court’s denial of its motion for summary judgment, is hereby denied at its cost.

WRIT DENIED.

HIGGINBOTHAM, J„ concurs with reasons.

McCLENDON, J., dissents and assigns reasons.

HIGGINBOTHAM, J.,

concurs in the result and assigns additional reasons.

|¶1 respectfully submit that the majority opinion unnecessarily discusses the meaning of the term “expenses incurred” as used in the Travelers’ policy, because the meaning of the term is subject to interpretation of the parties’ intent, and is therefore, inappropriate for summary judgment. However, I agree with the majority’s conclusion that the trial court properly denied Travelers’ motion for summary judgment, since I find there are genuine issues of material fact regarding the intentions of the parties as to the meaning of “expenses incurred.” Thus, I agree that Travelers’ writ application should be denied.

For these additional reasons, I concur in the result of the majority opinion.

McCLENDON, J.,

dissents and assigns reasons.

fin her petition, Ms. Hoffman alleges that she “received a medical bill for $713.67” from the Baton Rouge General, attaching a copy of the bill to her petition. The attached bill indicates that the “Amount You [Ashley Hoffman] Owe” is $485.29, reflecting an adjusted amount because of a contractual agreement between the hospital and AETNA.

In interpreting a contract, the words of a contract must be given their generally prevailing meaning. LSA-C.C. art. 2047. The Travelers’ policy requires it to pay “reasonable expenses incurred” by its insured because of bodily injury caused by an accident. The Merriam-Webster Online Dictionary defines “incur” as “to become liable or subject to.” http://www. merriam-webster.com (last visited May 28, 2013). Plaintiff was never liable or subject to pay the entire amount of $713.67. Rather, plaintiff was only billed for and was only legally liable to pay the reduced amount of $485.29, the specific amount sought by Baton Rouge General. Because Travelers’ paid the expenses “incurred” by Ms. 12Hoffman in accordance with the terms of its medical payments provision,1 would grant Travelers’ motion for summary judgment and dismiss plaintiffs action. Accordingly, I respectfully dissent.

      . The petition further alleged that Ms. Hoffman was bringing the action on behalf of all other class members, defined as insureds of Travelers who were not fully reimbursed the amount of medical expenses pursuant to code "41” — "denial for expenses greater than provider charges within the providers' geographic scope.” Although not determinative of the issues herein, the trial court apparently has not yet certified a class in this case.

      . After filing her petition, Ms. Hoffman signed a settlement agreement with Travelers and received a payment of $23,500.00. After the settlement agreement was signed, Travelers filed a peremptory exception raising the objection of res judicata. The trial court denied the exception, finding that the settlement agreement only covered and released Ms. Hoffman’s bodily injury claims under the uninsured/underinsured motorist provision of the policy and did not compromise her pending claim under the policy's medical payments provision. Travelers filed a writ application with this court, seeking review of the denial of the exception, and this court denied writs. See Hoffman v. Travelers Indemnity Company of America, 2011-CW-2304 (La.App. 1st Cir.3/28/12) (unpublished writ action). Subsequently, the Louisiana Supreme Court also denied Travelers’ writ application. See Hoffman v. Travelers Indemnity Company of America, 2012-0956 (La.6/15/12), 90 So.3d 1067.

      . See also, Feit v. St. Paul Fire and Marine Ins. Co., 209 Cal.App.2d Supp. 825, 828-829, 27 Cal.Rptr. 870 (Cal.Super.A.D.1962). Therein, plaintiff sought payment under the medical payments clause of his automobile liability policy for $551.49 for treatment of injuries at Kaiser Foundation Hospital following an automobile accident. Because plaintiff was a prepaying member of Kaiser Foundation Health Plan, he was not required to, and did not pay for the services valued at $551.49. Plaintiff submitted a statement from the hospital and medical group that stated: "This is what the patient would have paid had he not been a pre-paying member of the Kaiser Foundation Health Plan. Make Check Payable to Patient Only." Id., 209 Cal.App.2d Supp. at 826-827. The court found the automobile insurer was required to pay the amount of $551.49, reasoning:
      [Ujnder Coverage A — Bodily injury, and Coverage B — Property Damage, the company agrees ‘to pay on behalf of the insured all sums which [the insured] shall become legally obligated to pay’. If the defendant had intended to limit its liability for medical expenses to such expenses as the insured should become legally liable to pay it would have employed the same language in Coverage C as it did in Coverages A and B. Different language was used deliberately in Coverage C because the insurer intended to pay for medical expenses incurred, irrespective of by whom, and whether or not the insured was legally obligated to pay them.

      The existence of pre-paid medical, hospitalization and funeral plans is a matter of common knowledge and is certainly known to the insurance industry. If an insurer does not wish to honor claims of the type involved here it should exclude them specifically so that an insured with additional medical or hospital coverage would know that he is receiving less coverage for his premium dollar than some other insured who is without outside benefits. Id. 209 Cal.App.2d Supp. at 828-929.

      . In so ruling, we express no opinion on the issue of whether Travelers’ actions in reducing the amount of medical benefits paid "based on provider charges within the provider's geographic scope,” without a policy provision allowing it to do so, constitutes an arbitrary and capricious denial of benefits.

      . Even though summary judgment is favored, it is not a substitute for trial on the merits, and it is inappropriate for judicial determination of subjective facts, such as motive, intent, good faith or knowledge that call for credibility evaluations and the weighing of testimony. S.J. v. Lafayette Parish School Bd., 2006-2862 (La.6/29/07), 959 So.2d 884, 887; Carter v. BRMAP, 591 So.2d 1184, 1189 (La.App. 1st Cir.1991). Moreover, it is not a function of the trial court on a motion for summary judgment to determine or even inquire into the merits of issues raised or to weigh conflicting evidence on the existence of material facts. Harrison v. Parker, 31,844 (La.App.2d Cir.5/5/99), 737 So.2d 160, 163-164, writ denied, 99-1597 (La.9/17/99), 747 So.2d 565. If reasonable minds could differ as to an issue of material fact, summary judgment is improper. Woodland Properties, L.L.C. v. New Orleans Sewerage and Water Bd., 2010-0331 (La.App.4th Cir.9/29/10), 49 So.3d 443, 445. Given the weighing of factual evidence generally necessaiy to determine a party’s intent at the time of contracting, such issues are rarely appropriate for resolution by summary judgment. See Eskind v. Marcel, 2006-0369 (La.App.1st Cir. 12/28/06), 951 So.2d 289, 292. See also Carter v. BRMAP, 591 So.2d at 1189 (“where a contract is ambiguous and the intent of the parties becomes a question of fact, granting a summary judgment is not appropriate”). Rather than adhering to a forced meaning of a doubtful term used in the contract the trial court may consider all pertinent facts and circumstances surrounding the parties at the time of contracting, as well as die parties’ own conclusions about the terms of the contract. La. Civ. Code art. 2053; Naquin v. Louisiana Power & Light Co., 2005-2103 (La.App.1st Cir.9/15/06), 943 So.2d 1156, 1161, writ denied, 2006-2476 (La.12/15/06), 945 So.2d 691.

      . We further note that plaintiff does not assert that she ever made a payment in the full amount of $713.67.

        . See also State Farm Mutual Automobile Insurance Co. v. Bowers, 255 Va. 581, 500 S.E.2d 212 (1998).

      . In fact, Travelers actually overpaid the amount, having paid the amount of $674.73.


author: PARRO, J. KLINE, J.,

text:
    LOUISIANA BOARD OF ETHICS v. Melvin “Kip” HOLDEN.
    No. 2012 CA 1127.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2013.

      Kathleen M. Allen, Michael Dupree, Suzanne Quinlan Mooney, Baton Rouge, LA, for Plaintiff/Appellant Louisiana Board of Ethics.
    R. Gray Sexton, Jennifer L. Jackson, Sexton & Hebert, Baton Rouge, LA, for Defendant/Appellee Mayor Melvin “Kip” Holden.
    Before PARRO, GRAIN and KLINE, JJ.

      . Judge William F. Kline, Jr., retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.

   PARRO, J.

12The Louisiana Board of Ethics seeks review of a district court judgment that dismissed its action in which it sought civil penalties against a candidate for alleged violations of the Campaign Finance Disclosure Act. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In 2011, Melvin “Kip” Holden, Mayor of the City of Baton Rouge and President of East Baton Rouge Parish, filed his 2010 supplemental campaign finance report with the Louisiana Board of Ethics, acting in its capacity as the Supervisory Committee on Campaign Finance Disclosure (the Board). The report disclosed three donations, among others, made by Mayor Holden from excess campaign contributions, as follows: 1) $500 to the family of Brittni Boatner to help pay her funeral costs; 2) $197 to the Congressional Youth Leadership Council (CYLC); and 3) $500 to the People to People Ambassadors Program (PPAP). Following an investigation, the Board filed a petition for a rule to show cause with the Nineteenth Judicial District Court for the Parish of East Baton Rouge, alleging that the three donations violated LSA-R.S. 18:1505.2(I)(1) of the Campaign Finance Disclosure Act (CFDA).

Following a hearing, the district court found that Mayor Holden’s donations were made in accordance with LSA-R.S. 18:1505.2(I)(1) and dismissed the Board’s petition, with prejudice. The Board has appealed, assigning the following errors:

1. The District Court erred in finding that the expenses for the Boatner Funeral, Tya Wicker/CYLC and Davis C. Hotard/PPAP were “related to the holding of public office.”
|s2. The District Court erred in finding that the expenditures made to Tya Wicker/CYLC and Davis C. Ho-tard/PPAP were acceptable contributions of campaign funds under 26 USC 170(c).
3. The District Court erred in qualifying and allowing Mr. William Potter, as an expert witness, to interpret the law, La. R.S. 18:1505.21(1).

DISCUSSION

The Louisiana Legislature recognized that the effectiveness of representative government is dependent upon a knowledgeable electorate and upon the confidence of the electorate in their elected public officials. The legislature, therefore, enacted the CFDA to provide public disclosure of the financing of election campaigns and to regulate certain campaign practices. See LSA-R.S. 18:1482.

At issue in this case is the interpretation of LSA-R.S. 18:1505.2(I)(1), which provides, in pertinent part:

On and after January 1, 1991, contributions received by a candidate or a political committee may be expended for any lawful purpose, but such funds shall not be used, loaned, or pledged by any person for any persona! use unrelated to a political campaign, the holding of a public office or party position, or, in the case of a political committee, other than a candidate’s principal campaign committee or subsidiary committee, the administrative costs or operating expenses of the political committee; except that excess campaign funds may be returned to contributors on a pro rata basis, given as a charitable contribution as provided in 26 USC 170(c), given to a charitable organization as defined in 26 USC 501(c)(3)....

At the hearing, Mayor Holden, with regard to the funeral expenses of Brittni Boatner, testified that he had known Britt-ni’s father his entire life and the Boatner family had come to him because they could not afford to bury their daughter, who had been murdered. Mayor Holden testified that since he had some resources, “I did not hesitate to make that check.”

The second expenditure at issue, to CYLC, was made to sponsor a councilwoman’s daughter’s trip to Washington, D.C. with the group. Mayor Holden explained that the CYLC is “an education program that allows people from around the country to go in and actually see firsthand the workings of |4Congress itself, and basically how bills are made, how they are drafted, the committee system.”

The third expenditure at issue was a donation given to PPAP. Mayor Holden explained that PPAP was an organization that afforded children the opportunity to visit other parts of the world and communicate with other people. Mayor Holden indicated that the experiences the program offered the children broadened their opportunities.

Mayor Holden stated that he had a history throughout his twenty-plus years as an elected official of making donations to funerals from his excess campaign contributions and had also previously made donations to CYLC and PPAP from his excess campaign contributions. Mayor Holden testified that he did not seek the Board’s advice prior to making any of the three donations, because the Board had never challenged similar donations he had made in the past. Mayor Holden opined that he derived no personal benefit from these donations and believed that all three expenditures were related to his holding of a public office and his responsibilities as mayor.

Additionally, William Potter, a Certified Public Accountant and an attorney employed by the accounting firm of Post-lethwaite and Netterville, who prepares and files reports under the CFDA, was accepted by the trial court as an expert in the field of Internal Revenue Service rules and regulations and compliance with the CFDA. Mr. Potter, when questioned about the three expenditures at issue, testified that if he “were advising somebody, based on my knowledge and practice, I would have told them I would have thought [the expenditures were] okay at this time.” When specifically questioned as to whether an expenditure for an indigent funeral is related to the holding of public office, Mr. Potter explained that “a lot of people running for public office feel that the best expenditure of their funds to help get elected and to maintain their position in office is to spend funds directly with the constituents, and you can see that 15across the reports that are filed out there.” Mr. Potter noted that in many campaigns, “expenditures are more constituent-based whereas in other campaigns you may see more spent on advertising.” Mr. Potter indicated that a candidate has to ensure that the expenditure is “not for a relative or somehow [a] personal expenditure.”

The Board asserts that the district court erred in qualifying Mr. Potter as an expert. A district court is accorded broad discretion in determining whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert. LSA-C.E. art. 702, Official Comment (d). A district court’s decision to qualify an expert will not be overturned absent an abuse of discretion. Cheairs v. State Dep’t of Transp. and Dev., 03-0680 (La.12/3/03), 861 So.2d 536, 540-41. Moreover, the effect and weight to be given expert testimony is within the broad discretion of the district court. Louisiana State Bar Ass’n v. Carr and Assoc., Inc., 08-2114 (La.App. 1st Cir.5/8/09), 15 So.3d 158, 171, writ denied, 09-1627 (La.10/30/09), 21 So.3d 292. We note that Mr. Potter’s testimony focused on the Board’s general custom and usage regarding the CFDA and how he advises his clients regarding that statute. After review of the record, we cannot conclude that the district court abused its discretion in qualifying Mr. Potter as an expert.

The Board avers that Mr. Potter, however, was also allowed to interpret the law, which it contends is contrary to the principle that the judge is the sole arbiter of the law. While expert testimony is not permitted to address domestic law, the allowance of such testimony is generally harmless error in a judge trial. Succession of Allison, 31,495 (La.App. 2nd Cir.1/29/99), 727 So.2d 683, 684 n. 1, writ granted, case remanded on other grounds, 99-0595 (La.3/24/00), 757 So.2d 647. See also Louisiana State Bar Ass’n v. Carr and Assoc., Inc., 15 So.3d at 171 n. 14. Accordingly, the Board’s third assignment of error is without merit.

The Board argues that the expenditures at issue were made in violation of the CFDA, because they were made for personal reasons unrelated to the | ^holding of public office. The Board avers that Mayor Holden’s testimony makes it clear that the expenditures were made to help people who did not have sufficient means, and not because they were related to Mayor Holden’s holding the office of mayor. The Board asserts that, while helping those in need is a noble cause, it is not in keeping with the plain language of LSA-R.S. 18:1505.2(I)(1), the spirit of the law, or public policy.

The Board notes that the federal government provides a similar restriction on the use of campaign funds in federal elections and allows funds to be “used for any other lawful purpose, unless such use is personal under 11 CFR 113.1(g).” See 11 CFR § 113.2(e). Specifically, 11 CFR § 113.1(g) defines “personal use” of campaign funds, using the “irrespective test.” This test prohibits “any use of funds in a campaign account of a present or former candidate to fulfill a commitment, obligation or expense of any person that would exist irrespective of the candidate’s campaign or duties as a Federal officeholder.” The Board avers that using the “irrespective test,” the expenditures by Mayor Holden would exist even if he were not ■ in office, insofar as Mayor Holden indicated that he felt obligated to make these expenditures as “a matter of a heart, and a mind, and feelings for people.”

The Board cites some of its prior advisory opinions in which it concluded that similar uses of campaign funds violated the CFDA. Specifically, in La. Ethics Bd. Op. 1997-070, the Board concluded that campaign funds could not be used to purchase clothes for an underprivileged minor. In La. Ethics Bd. Op. 2007-786, the Board, in a consent opinion between the Board and a candidate for parish president, concluded that the candidate had violated the CFDA by making expenditures for funeral expenses and a fundraiser for a person suffering with cancer. In La. Ethics Bd. Op. 2007-787, which is a consent opinion between the Board and a legislator, the Board concluded that various donations were not 17appropriate uses of campaign funds, including donations to individuals for a mission trip.

On the other hand, Mayor Holden contends that the Board has selectively enforced its own interpretation of the CFDA and does not consistently enforce its own advisory opinions on the subject. Mayor Holden notes that since 1999, the Board has challenged only two of 113 funeral donations made by elected officials from excess campaign contributions. Additionally, 100 combined donations were made to CYLC and PPAP by at least 60 elected officials, including Mayor Holden, over the past eight years. As such, Mayor Holden concludes that it is fundamentally unreasonable and unfair for the Board to challenge these expenditures as violations of the CFDA, when these types of donations have been sanctioned by the Board’s own conduct.

The starting point in the interpretation of any statute is the language of the statute itself. City of New Orleans v. Louisiana Assessors’ Retirement and Relief Fund, 05-2548 (La.10/1/07), 986 So.2d 1, 17. Words and phrases are to be read in their context and to be accorded their generally prevailing meaning. See LSA-C.C. art. 11; LSA-R.S. 1:3. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and the letter of it shall not be disregarded in search of the intent of the legislature or under the pretext of pursuing its spirit. See LSA-C.C. art. 9 and LSA-R.S. 1:4. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. LSA-C.C. art. 12. Because violations of the CFDA can result in the assessment of a civil penalty pursuant to LSA-R.S. 18:1511.5, the | ^statute is penal in nature and must be strictly construed. See Matter of Insulation Technologies, Inc., 95-1184 (La.App. 1st Cir.2/23/96), 669 So.2d 1343, 1350, writ denied, 96-0749 (La.5/3/96), 672 So.2d 692.

Louisiana Revised Statute 18:1505.2(I)(1) allows a candidate to expend excess campaign contributions “for any lawful purpose, but such funds shall not be used, loaned, or pledged by any person for any personal use unrelated to ... the holding of a public office.” Unquestionably, the three expenditures at issue were made for lawful purposes. At issue is whether the contributions were made for personal use unrelated to the holding of a public office.

In concluding that the three expenditures were not violations of the CFDA, the district court reasoned:

Paramount to the duties of a public office, such as Mayor Holden, is protecting, serving and aiding the people in his jurisdiction. In the case of Mayor Holden, his constituents are the people of the City of Baton Rouge and the Parish of East Baton Rouge. Day in and day out Mayor Holden takes action and makes decisions for the benefit, protection and/or aid of his constituents.

Moreover, the district court found that Mayor Holden derived no personal benefit from any of the three donations.

Although the Board asserts that the three expenditures would not be permitted under the “irrespective test,” as enunciated in the federal regulations for defining personal use, our legislature did not restrict or define the term “personal use.” Considering the broad ambit of this statutory language and because this penal statute must be construed strictly, we conclude that the district court did not err in finding that the three expenditures at issue were not for the personal use of Mayor Holden and that the expenditures were, in the broadest sense, related to the holding of public office by Mayor Holden. Accordingly, the district court did not err in concluding that Mayor Holden did not violate LSA-R.S. 18:1505.2(I)(1).

^CONCLUSION

For the foregoing reasons, we deny Mayor Holden’s motion to strike, and we affirm the district court’s April 27, 2012 judgment. Costs of this appeal in the amount of $1,321.50 are assessed to the appellant, the Louisiana Board of Ethics.

MOTION TO STRIKE DENIED; JUDGMENT AFFIRMED.

KLINE, J., concurs with reasons.

KLINE, J.,

concurring.

|,I concur only to respectfully express that the statutory language in LSA-R.S. 18:1505.2(I)(1) would better serve candidates, office holders, and the Louisiana Board of Ethics if it included more exact standards.

      . Louisiana Revised Statute 18:1511.1(A) provides:
      The Supervisory Committee on Campaign Finance Disclosure is established. The Board of Ethics, as established in R.S. 42:1132, shall function as the supervisory committee to administer and enforce the provisions of this Chapter and the rules, regulations, and orders issued hereunder. The members of the Board of Ethics shall constitute the supervisory committee.

      .See LSA-R.S. 18:1511.5(A)(3).

      . See LSA-R.S. 18:1511.7(B).

      . The check was made payable to Davis C. Hotard, who is a member of PPAP, and to the organization.

      . Further, the federal regulations provide a non-exclusive list of expenditures that would constitute "personal use.” See 11 CFR § 113.1(g).

      . Mayor Holden has filed a motion to strike the Board’s references to its advisory opinions, asserting that the Board seeks to "expand” the district court record and rely on advisory opinions that were never presented to the district court. We recognize, however, that the Board’s opinions are readily accessible via its website www.ethics.state.la.us/. Like attorney general opinions, the advisory opinions of a board or commission have been recognized as persuasive authority, and the court has discretion to review them as such. See Duplantis v. Louisiana Bd. of Ethics, 00-1750 (La.3/23/01), 782 So.2d 582, 590 n. 7; City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748, 753 n. 11. They are not evidentiary matters that need to be put on the record, but may be presented in briefs and be reviewed by the court as any other legal authority. Therefore, Mayor Holden’s motion to strike'is denied.

      . We note that criminal sanctions are available for a "knowing, willful, and fraudulent violation” of the CFDA, but any criminal action must be filed by the district attorney or attorney general. See LSA-R.S. 18:1511.6.

      . Having reached this conclusion with respect to assignment of error number one, we pre-termit discussion of assignment of error number two.