text:
    Kevin DOWD, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee.
    No. 3D15-1725
    District Court of Appeal of Florida, Third District.
    Opinion filed June 28, 2017
    DEEHL PLLC, and .David L. Deehl; Mandina & Ginsberg, LLP, and Marc R. Ginsberg, for appellant.
    Cole, Scott & Kissane, P.A., and Scott A. Cole and Kathryn L. Ender, for appellee.

      Before EMAS, LOGUE, and SCALES, JJ.
   LOGUE, J.

Plaintiff, Kevin Dowd, seeks review of the trial court’s order awarding attorneys’ fees pursuant to the proposals for settlement filed by his insurance carrier, Geico General Insurance Company. Because a discrepancy between the language in the proposals for settlement and the releases creates an ambiguity that renders the agreements unenforceable, we reverse.

The plaintiff was struck by an underin-sured motorist while riding his bicycle within a pedestrian crosswalk. The plaintiff asserted that the accident resulted in severe and permanent injuries leading to damages in excess of $300,000. Ultimately, the plaintiff filed the underlying lawsuit against Geico seeking underinsured/unin-sured motorist coverage through his own insurance policy. Geico filed an answer and affirmative defenses in response to the complaint.

Throughout the course of the litigation, Geico served two proposals for settlement upon the plaintiff.

The proposals for settlement provided in pertinent part:

The Defendant, GEICO GENERAL INSURANCE COMPANY, claims . this proposal is attempting to resolve all of the claims for affirmative relief made by the Plaintiff, KEVIN DOWD, as against Defendant, GEICO GENERAL INSURANCE COMPANY, in the above-styled action and all claims for affirmative relief which could have been raised as compulsory claims by KEVIN DOWD to this action, as well as any current counter-claims.

However, the releases attached to each proposal for settlement contained noticeably broader language:

[Geico] is released on account of and from any or all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments executions, claims demands and liability whatsoever, including any and all claims for personal injuries, medical expenses or property damage, in law or equity, which against [Geico], [plaintiff] ever had, now has, or may have in the future (including any claim for wrongful death), or which his heirs, executors/administrators, successors/assigns, statutory survivors, and/or personal representatives, hereafter can, shall, or may have, arising on account of or in connection with any of the issues that were raised or could have been raised in Case Number: 2011 23508 CA 01 now pending in the Circuit Court of the Eleventh Judicial Circuit of Florida in and for Miami, Dade County, Florida as well as any future action arising on account of or in connection with the accident which allegedly occurred on or about March 27, 2010.
[Plaintiff] understands and agrees that in accepting the sum stated above he does so in full settlement of any and all claims that he now has or which he may have in the future, or which might accrue to him or his heirs, statutory survivors, personal representatives, executors/administrators, successors/assigns, as.against any of the herein Re-leasee [Geico] for damage or injuries as a result of or in connection with the incident described above, as well as for all consequences, effects, and results of any such injury or damages, whether the same is now known or unknown, expected or unexpected, or have already occurred or developed, or may be latent, or may in the future occur or develop.

The case was tried and the jury returned a verdict finding the plaintiff and the driver that struck him to each be 50% responsible. The jury awarded the plaintiff $110,000 for past medical expenses, but did not award future damages or past or future pain and suffering. Following a hearing on post-trial motions filed by both parties, the trial court entered final judgment in favor of the plaintiff in the amount of $5,000. Geico moved for attorneys’ fees based on its proposals for settlement.

The plaintiff argued that the proposals for settlement were ambiguous due to a discrepancy in the language between the actual proposals and the respective releases attached to each one. The trial court subsequently held a hearing on Geico’s motion for entitlement to fees and found that the proposals for settlement were not ambiguous and granted Geico entitlement to attorneys’ fees. An amended final judgment awarding Geico $45,000 was entered, and this appeal followed.

On appeal, the plaintiff again argues that language in the proposals for settlement cannot be reconciled with the language of the releases, thereby resulting in ambiguity. We agree.

Florida Rule of Civil Procedure 1.442 requires that proposals for settlement be described with particularity. While perfection is not required, clarity is.

We recognize that, given the nature of language, it may be impossible to eliminate all ambiguity. The rule does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If. ambiguity within the proposal could.reasonably affect the offeree’s decision, the proposal will not satisfy the particularity requirement.

State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla. 2006).

A discrepancy between a limited proposal of settlement and a much broader release, as in this case, creates the type of ambiguity that runs afoul of the particularity requirement in the Rule. See S. Fla. Pool and Spa Corp. v. Sharpe Inv. Land Tr., 207 So.3d 301, 303 (Fla. 3d DCA 2016) (holding that where it was unclear when reading a proposal for settlement in tandem with its accompanying release whether a claim for fees was included or excluded from the settlement, the “lack of clarity creates an ambiguity rendering the proposal unenforceable”).

Here, the plaintiff may still have had a viable PIP claim against Geico and it is unclear under the terms of the releases whether such a claim was intended to be included among those being released. While it is not a “compulsory” claim as set forth in the proposals, it may fall under the umbra of the broader release language. Accordingly, the plaintiffs decision to accept or reject the proposals was reasonably affected by the ambiguity created among the documents. See Nichols, 932 So.2d at 1079.

Given that Geico’s entitlement to attorneys’ fees was based upon the proposals for settlement and we hold the proposals to be unenforceable because of the ambiguity created between the releases and the proposals, we reverse the order on appeal and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . The plaintiff appealed the final judgment, and this court issued a per curiam affirmance. Dowd v. Geico Gen. Ins. Co., 179 So.3d 332 (Fla. 3d DCA 2015) (table decision).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Betty A. FELDER, Appellant, v. DEL RIO CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D17-72
    District Court of Appeal of Florida, Third District.
    Opinion filed June 28, 2017
    Law Offices of Felder & Associates, P.A., and Ulysses Felder (Hollywood), for appellant.
    Siegfried, Rivera, Hyman, Lerner, Dé la Torre, Mars & Sobel, Nicholas D. Siegfried, Diane J. Zelmer and Maryvel De Castro Valdes, for appellee.
    Before EMAS, LOGUE and LUCK, JJ.
   PER CURIAM.

Affirmed. See Sugar v. Blek, 172 So.2d 272 (Fla. 3d DCA 1965) (applying gross abuse of discretion standard in reviewing a trial court’s order vacating a default judgment); Bequer v. National City Bank, 46 So.3d 1199 (Fla. 4th DCA 2010) (same); Geer v. Jacobsen, 880 So.2d 717 (Fla. 2d DCA 2004) (same). See also Renovaship, Inc. v. Quatremain, 208 So.3d 280, 286 (Fla. 3d DCA 2016) (observing: “The most basic requirement of procedural due process is that a party to the litigation must be provided with notice and an opportunity to be heard.” (citing State, Dep’t of Revenue ex rel. Lawson v. Young, 995 So.2d 1080, 1081 (Fla. 1st DCA 2008))).


author: PER CURIAM.'

text:
    Delia REYES, an incapacitated person BY AND THROUGH Marta REYES, her natural mother and court-appointed guardian, and Marta Reyes, as court-appointed guardian of Ignacio Reyes, a minor, and Isabella De Armas, a minor, Petitioners, v. INFINITY INDEMNITY INSURANCE COMPANY, Insurance USA & Associates, Inc., and Nicole Marie Antini, Respondents.
    No. 3D17-1077
    District Court of Appeal of Florida, Third District.
    Opinion filed June 28, 2017.
    DeMahy Labrador Drake Victor Rojas & Cabeza, Pete L. DeMahy, and Frank L. Labrador, for petitioners.
    White & Case LLP, Raoul G. Cantero, and Christopher W. Swift-Perez, for respondent, Infinity’ Indemnity Insurance Company.
    Before LAGOA, LOGUE and LUCK, JJ.
   PER CURIAM.'

Because the sworn statements in plaintiffs verified motion to disqualify trial judge were legally insufficient to warrant recusal under Florida Rule of Judicial Administration 2.330, and the court is unable to determine from this motion when plaintiff discovered the facts constituting the grounds for disqualification, we deny the petition for writ of prohibition.

Plaintiffs’ motion for reconsideration, however, raises for the first time new allegations that companies managed and controlled by the trial judge’s spouse are the actual plaintiffs—and therefore the trial judge and the trial judge’s spouse have a financial interest—in a series of unrelated cases against a large client of the same firm representing Delia and Marta Reyes in this case. While we find these new allegations to be untimely for disqualification purposes under rule 2.330 because they were filed more than ten days after they were discovered by the Reyeses, “we note,” as we have before, “that rule 2.330(i) permits a judge to enter an order of disqualification on his [or her] own initiative.” State v. Oliu, 183 So.3d 1161, 1163 (Fla. 3d DCA 2016); see also Carlton v. Rogers (In re Estate of Carlton), 378 So.2d 1212, 1220 (Fla. 1979) (“Even though a suggestion for disqualification is legally insufficient, a judge may still voluntarily recuse himself if he believes it would be in the best interests for the administration of justice.”).

Petition denied.

      . See Kormondy v. State, 983 So.2d 418, 433-34 (Fla. 2007) (affirming denial of ineffective assistance of counsel motion for failing to move to recuse trial judge where judge knew the victim, and the judge's wife worked in the State Attorney’s Office); Clarendon Nat. Ins. Co. v. Shogreen, 1 So.3d 366, 367 (Fla. 3d DCA 2009) (denying petition for writ of prohibition under the appellate judge recu-sal standard where the judge, "in private practice, signed a county court small claims complaint (alleging damages between $100 and $500) against the petitioner,” and "[h]er husband and then-partner in the small law firm sought sanctions against the petitioner and allegedly expressed an intention to put the petitioner out of business”); Dykes v. Dykes, 395 So.2d 188, 190 (Fla. 5th DCA 1981) (affirming denial of new trial motion where "appellant contended that because ap-pellee's father was a circuit judge in the circuit where the action was heard, and because of his alleged 'intervention' in the proceedings, the appellee was not afforded justice and the ultimate custody determination was 'foreordained' ”); see also In re Billedeaux, 972 F.2d 104, 104-05 (5th Cir. 1992) (denying petition for writ of prohibition where the trial judge’s husband was partner in a firm that was actively representing one of the parties in unrelated cases); Diversifoods, Inc. v. Diversifoods, Inc., 595 F.Supp. 133, 134 (N.D. Ill. 1984) (denying motion to recuse where trial judge’s husband was a member of the firm that represented the defendant in other matters, and "prior to the filing of this lawsuit, had some connection with the events underlying this litigation”).

      . See Howard v. State, 950 So.2d 1260, 1262 (Fla. 5th DCA 2007) (Lawson, J.) (finding the motion to disqualify untimely because it did "not allege when the purported comment was made, and nothing in the record demonstrates that the motion was timely”).

      .See Aurigemma v. State, 964 So.2d 224, 224 (Fla. 4th DCA 2007) (granting prohibition "based on Aurigemma’s allegation that his trial counsel has hired the trial judge’s husband multiple times as an expert witness for his clients in criminal cases); Corie v. City of Riviera Beach, 954 So.2d 68, 69 (Fla. 4th DCA 2007) (granting prohibition where motion to disqualify alleged the judge’s father deeded to himself property located in the city's Community Redevelopment Area, the target of the redevelopment plan); Bethesda Mem'l Hosp., Inc. v. Cassone, 807 So.2d 142, 143 (Fla. 4th DCA 2002) (granting prohibition where one of party’s affiliate companies had a debt collection matter involving the judge's late wife's estate); J & J Towing, Inc. v. Stokes, 789 So.2d 1196, 1197-98 (Fla. 4th DCA 2001) (granting prohibition where plaintiff’s attorney sued the judge’s wife, both in her individual capacity and as a member of the Broward County School Board); Lytle v. Rosado, 711 So.2d 213, 214 (Fla. 3d DCA 1998) (granting prohibition where the trial judge's stepson had a claim pending against the insurance company which had retained counsel to represent the defendant in the action); Atkinson Dredging Co. v. Henning, 631 So.2d 1129, 1130 (Fla. 4th DCA 1994) (granting prohibition based on motion to disqualify when one of the parties’ law firms was the same firm representing the trial judge and her husband in a separate, unrelated action); Roudner v. MacKenzie, 536 So.2d 299, 299 (Fla. 3d DCA 1988) (granting prohibition (but withholding writ) where the "petitioners’ attorney in the pending matter is the daughter of the incumbent circuit judge who defeated the respondent judge’s husband in a recent election”).


author: Per Curiam.

text:
    Steven TOGNOLI, as Personal Representative for the Estate of Lynda Tognoli, Appellant, v. PHILIP MORRIS USA INC., Appellee.
    No. 4D16-224
    District Court of Appeal of Florida, Fourth District.
    June 28, 2017
    Thomas J. Seider, Celene H. Humphries and Maegen Peek Luka of Brannock & Humphries, Tampa; Alex Alvarez of The Alvarez Law Firm, Coral Gables; Randy Rosenblum of Dolan, Dobrinsky, Rosen-blum, LLP, Miami; Philip Freidin of Freidin Brown P.A., Miami; and Maria P. Sperando of the Law Office of Maria P. Sperando, P.A., Stuart, for appellant.
    Scott D. Kaiser of Shook, Hardy & Bacon LLP, Kansas City, Missouri; and Geoffrey J. Michael of Arnold & Porter LLP, Washington, DC, for appellee.
   Per Curiam.

Affirmed. See R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487 (Fla. 4th DCA 2015), review granted, SC15-2233, 2016 WL 3127698 (Fla. May 26, 2016).

Ciklin, C.J., Damoorgian and Levine, JJ., concur.


text:
    John Gailan YATES-BAILEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2789
    District Court of Appeal of Florida, Second District.
    Opinion filed June 30, 2017
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we find no error in Mr. Yates-Bailey’s judgment or sentence; however, we remand to the circuit court to correct a scrivener’s error in the order of revocation. The order states: “Found in Violation: Revoke probation and sentence the offender to 15 years[’] Prison on [Count] 1 and 5 years[’] Prison on [Count] 2.” Although the remaining record is clear on this point, the order of revocation fails to correctly recite that Yates-Bailey was found to have violated condition five of his probation—failing to live without violating any law. Accordingly, the order or revocation of probation is remanded for the circuit court to correct the scrivener’s error to reflect the violation of condition five.

Affirmed; remanded to correct scrivener’s error.

NORTHCUTT, SILBERMAN, and CRENSHAW, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: EISNAUGLE, J.

text:
    John D. SICKELS, Appellant, v. Robin M. SICKELS, Appellee.
    Case No. 5D16-2399
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 30, 2017

      Samuel A. Walker, Russell J, Frank, and Tee Persad, of CPLS, P.A., Orlando, for Appellant.
    Robin M. Sickels, Minneola, pro se.
   EISNAUGLE, J.

Former Husband appeals a supplemental final judgment of dissolution of marriage and order for relocation, which separated the parties’ three minor children between the parents. The supplemental final judgment granted Former Husband’s relocation request in part, permitting the parties’ now-fifteen-year-old twins to relocate to Virginia .with him, but denied the request as to the parties’ third child, A.S., a nine-year-old boy, who was ordered to remain with Former Wife in Florida. On appeal, Former Husband argues that the trial court abused its discretion by: (1) separating the siblings without a compelling reason; (2) failing to award him child support; and (3) requiring Former Husband to pay all transportation expenses relating to ‘timesharing. We reverse.

When they filed the dissolution of marriage action, both parents resided in Florida. The original parenting plan adopted by the trial court initially provided for rotating timesharing between the parents with Former Husband paying monthly child support. Subsequently, Former Husband, who lost his teaching 'job in Florida, received a job offer in Virginia, where his extended family resides. He petitioned the trial court to relocate the minor children to Virginia pursuant to section 61.13001, Florida Statutes (2016). After an evidentia-ry. hearing on the petition, the trial court rendered a judgment separating the children between the parties, ordering Former Husband to “be. responsible for all transportation costs associated with transporting the minor children for timesharing with the Mother,” and that “[a]s a result of the two oldest minor children residing with Father, and Father being responsible for transportation costs, neither parent [would] be required to pay child support to the other.” Former Husband appealed.

Compelling Reason to Separate Siblings

First, the trial court erred when it separated the siblings without a compelling reason to do so. Although there are circumstances that justify separating siblings, “the children in a family should not be separated from each other and distributed about in different homes, except for the most compelling cause.” Myrick v. Myrick, 523 So.2d 172, 172 (Fla. 2d DCA 1988) (quoting Arons v. Arons, 94 So.2d 849, 853 (Fla. 1957)).

Here, the judgment lacks any finding of a compelling reason to separate the siblings. The trial court’s finding that A.S. is doing well in his current placement does not, by itself, justify separating him from his siblings. Likewise, the trial court’s finding that there is no evidence that relocating to Virginia will be an improvement for A.S., by itself, is not a compelling reason. Rather, to overcome the principle set forth in Arons, any reason to separate A.S. from his siblings must necessarily be based upon evidence that relocating to Virginia would be detrimental to A.S. On remand, if the trial court again separates the siblings, it must make findings of a compelling reason to do so.

Child Support/Transportation Expenses

Second, the trial court erred, in a split custody situation, when it failed to award Former Husband child support, “Although the child support guidelines set forth in section 61.30, Florida Statutes, do not address a split custody situation, where, as here, both parties earn income, it is an abuse of discretion not to award both parties child support.” McKenna v. McKenna, 31 So.3d 890, 891 (Fla. 4th DCA 2010). In a case where both parties owe a support obligation, the trial court may set-off the respective obligations of the parties and order a net child support award. See Kelley v. Kelley, 987 So.2d 1246, 1248 (Fla. 5th DCA 2008). As in McKenna, although the judgment in this case does not include the findings required by section 61.30, the record does indicate that both parties earn income.

As such, on remand, if there is a compelling reason to separate the siblings, and a modification of support is appropriate, the trial court must calculate an award of child support to both parties. In such a case, the trial court should make the findings required by section 61.30, including calculating the amount of support owed to each child and the net income of the parties.

Finally, the trial court erred by ordering Former Husband to pay all time-sharing transportation expenses. In Hindle v. Fuith, 33 So.3d 782 (Fla. 5th DCA 2010), this Court held that “[c]hild support guidelines provide that transportation expenses, like other childrearing costs, should be shared by the parents in accordance with their financial means.” 33 So.3d at 786-87 (citing McKenna v. Fisher, 778 So.2d 498, 499 (Fla. 5th DCA 2001)). In contravention of Hindle’s mandate, the judgment in this case .required Former Husband to bear all transportation costs necessary to effectuate the timesharing schedule, without findings concerning each party’s financial means. Although there is record evidence that Former Husband’s income substantially exceeds that of Former Wife, on remand, the trial court must apportion timesharing transportation expenses according to the parties’ financial means.

Therefore, the supplemental final judgment is reversed, and this case is remanded for the trial court to determine whether there is a compelling reason to separate the siblings, and if child support is modified, to do so in accordance with this opinion.

REVERSED and REMANDED.

SAWAYA and EVANDER, JJ., concur.


text:
    FI-POMPANO REHAB, LLC d/b/a Pompano Health and Rehabilitation Center, Appellant, v. Marjorie IRVING, Personal Representative of the Estate of Mercedes Nesbeth, Appellee.
    No. 4D16-3121
    District Court of Appeal of Florida, Fourth District.
    July 5, 2017

      Karen M. Rich and Amy L. Christiansen of Spector Gadon & Rosen, LLP, St. Pe-tersburg,, for appellant.
    William A. Dean of Ford, Dean & Ro-tunto, P.A., Miami, for appellee.
   Per Curiam.

FI-Pompano Rehab, LLC d/b/a Pompano Health and Rehabilitation Center (“Pompano Rehab”) appeals a non-final order denying its motion to compel arbitration. We reverse, because the arbitration agreement at issue was neither substantively or procedurally unconscionable.

Mercedes Nesbeth (“Nesbeth”) was admitted to Pompano Rehab, a rehabilitation and nursing center. Thirty-four days after Nesbeth was admitted, Marjorie Irving, (“Irving”), her daughter and power of attorney, signed on her behalf a Resident Admission Agreement that contained an arbitration provision in a section referred to as the “voluntary Section of the Admission Agreement.” The agreement briefly explains arbitration in general and provides:

Arbitration under this Admission Agreement shall be governed and interpreted in accordance with the Federal Arbitration Code and, to the extent its provisions do not conflict with the Federal Arbitration Code, the applicable Arbitration Code, Act or Statute of the State where the Facility is physically located. Both parties have the right to be represented by an attorney at the arbitration at their own expense. Each party is to bear their own attorneys’ fees and costs incurred in relation to any arbitration conducted pursuant to this Section of the Admission Agreement. All costs and expenses of the arbitrator shall be borne equally by the parties.

The arbitration section of the admission agreement concludes with:

As explicitly stated below, both the Resident and the signing staff member at the Facility hereby acknowledge that they understand that: (1) the Resident has the right to seek legal counsel concerning this voluntary Section of the Admission Agreement, (ii) the execution of this voluntary Section of the Admission Agreement is not a precondition to the furnishing of services to the Resident by the Facility, and (iii) this voluntary Section of the Admission Agreement may be revoked by written notice to the Facility from the Resident within three (3) days of signature.

Nesbeth died while in the care of Pompano Rehab. Subsequently, Irving filed a complaint against Pompano Rehab, seeking damages for violations of Chapter 400, Florida Statutes, which she alleged occurred while Nesbeth was a resident of the facility. Pompano Rehab filed a motion to compel arbitration citing the. arbitration provision contained in the admission agreement signed by Irving.

Irving filed a response in which she relied on our decision in Romano v. Manor Care, Inc., 861 So.2d 59 (Fla. 4th DCA 2003), to argue that the arbitration agreement was unconscionable because it was signed after Nesbeth’s admission to the facility, and therefore unenforcéable. Irving argued: •

It is undisputed that the Defendant Nursing Home Facility had Mercedes Nesbeth sign the arbitration agreement sub judice 34 days after the Defendant had accepted Mercedes Nesbeth into ■.their facility and provided care, treatment, and supervision to her. It is clearly unconscionable for any nursing home to admit a resident to their facility, then have that nursing home resident execute an arbitration agreement after admission.

After a limited hearing, the trial court denied Pompano Rehab’s motion to compel arbitration, citing Romano, as well as Shotts v. O.P. Winter Haven, Inc., 86 So.3d 456 (Fla. 2011), and Gessa v. Manor Care of Fla., Inc., 86 So.3d 484 (Fla. 2011). This appeal followed.

' “In reviewing the denial of-a motion to compel arbitration, the trial court’s factual findings are reviewed under a competent, substantial evidence standard.” BDO Seidman, LLP v. Bee, 970 So.2d 869, 873 (Fla. 4th DCA 2007) (citation omitted). “However, the standard of review applicable to the' trial court’s construction of an arbitration provision, and its application of the law to the facts found, is de novo.” Id. at 874 (quoting Fonte v. AT&T Wireless Servs., Inc., 903 So.2d 1019, 1023 (Fla) 4th DCA 2005)).

“In ruling on a motion to compel arbitration, the trial court is limited to three inquiries: ‘(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.’ ” Romano, 861 So.2d at 61 (quoting Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999)). The issue in this appeal focuses on the first inquiry, whether a valid arbitration agreement exists. More specifically, Irving contends the agreement is unconscionable.

In order to obtain a ruling that a contract provision is unconscionable, “a party must demonstrate both procedural and substantive unconscionability.” Zephyr Haven Health & Rehab Ctr., Inc. v. Hardin, 122 So.3d 916, 920 (Fla. 2d DCA 2013) (citing Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 264 (Fla. 2d DCA 2004)). “Procedural unconscionability concerns the manner in which the contract is entered, whereas substantive unconscionability looks to whether the contractual terms are unreasonable and unfair.” Fonte, 903 So.2d at 1025 (citing Romano, 861 So.2d at 62). The burden of proving unconscionability lies with the party seeking to avoid the arbitration provision. Basulto v. Hialeah Auto., 141 So.3d 1145, 1158 (Fla. 2014).

While both procedural and substantive unconscionability must be present in order for a court to decline to enforce a contract provision, they need not be present to the same degree. Romano, 861 So.2d at 62 (citations omitted). Courts employ a “sliding scale” or balancing approach to the unconscionability question:

The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability. But they need not be present in the same degree. Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves. In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.

Basulto, 141 So.3d at 1159 (quoting Romano, 861 So.2d at 62).

In the instant case, based on Irving’s response to the motion to compel arbitration, and the order denying the motion to compel arbitration, Irving argued only procedural unconscionability. Thus, to the extent the trial court determined that the agreement is unenforceable based on only one prong of unconscionability, it erred. Hardin, 122 So.3d at 920.

Although Irving argues on appeal that the agreement is substantively unconscionable because it frustrates the remedial purpose of Chapter 400 by requiring that the parties equally share in the cost of the arbitrator, she did not make this argument below, and the trial court did not deny the motion on that basis. This Court will only consider arguments that were raised in the proceedings below. See Cosid, Inc. v. Bay Steel Prods. Co., Inc., 288 So.2d 277, 277 (Fla. 4th DCA 1974) (citation omitted) (“Except in the case of fundamental error[,] a point not raised and determined in the court below cannot be raised for the first time on appeal; an appellate court must confine itself to a consideration of only those matters in question that were before the lower court.”).

Nevertheless, regardless of whether the issue was raised below, Irving’s argument fails because the arbitration agreement at issue is not substantively unconscionable. The arbitration provision does not deprive Irving of any statutory cause of action, it does not defeat the remedial purpose of Chapter 400, and it does not limit damages. Cf. Romano, 861 So.2d 59 at 62-63 (concluding that arbitration agreement was substantively unconscionable where it contained a limitation of liability provision that excluded punitive damages and limited non-economic damages to a maximum of $250,000); Alterra Healthcare Corp. v. Bryant, 937 So.2d 263, 266 (Fla. 4th DCA 2006) (same).

Likewise, the arbitration agreement at issue does not violate public policy. In Shotts, our supreme court held that the arbitration agreement violated public policy because it limited statutory remedies created by the Legislature with the intent to protect the rights of nursing home residents. 86 So.3d at 474. There, the arbitration agreement provided that the resident waived entitlement to punitive damages. Id. at 471. Likewise, in Gessa, the court held that the arbitration agreement violated public policy by placing a cap on non-economic damages and waived punitive damages. Gessa, 86 So.3d at 493. In both cases, the violating provisions were deemed to erode access to statutory remedies provided in sections 400.022 and 400.023, Florida Statutes (2003). Shotts, 86 So.3d at 474; Gessa, 86 So.3d at 493.

In the instant case, the arbitration agreement did not limit any specific statutory remedies created by the Legislature. Instead, Irving contends that the arbitration agreement violated public policy (and is substantively unconscionable) because requiring a party to equally pay for an arbitrator “can easily frustrate the remedial purpose of chapter 400 by denying access to arbitration for the indigent plaintiff.” However, Irving did not provide any evidence to show that the costs of arbitration were so prohibitive as to prevent any resident of Pompano Rehab from pursuing statutory remedies. See FI-Tampa, LLC v. Kelly-Hall, 135 So.3d 563, 568 (Fla. 2d DCA 2014) (holding that arbitration agreement, signed three days after patient’s admission to facility and that required cost sharing, did not violate public policy even though the particular litigant could not afford to arbitrate her claims); Hardin, 122 So.3d at 922 (holding that arbitration agreement, signed two days after patient’s admission to nursing facility and that required cost sharing, was enforceable).

Finally, Romano does not control the outcome of this case as to the issue of procedural unconscionability. In Romano, we reversed a trial court order requiring arbitration because after the spouse who was ill had been admitted, the spouse signing the admission agreement was presented with six different documents to be signed, one of which was a six-page arbitration agreement. 861 So.2d at 61. The signing spouse was directed that the documents must be signed, but was not told that if the arbitration agreement was not signed, it would not affect whether the ill spouse could remain in the facility. Id. Here, the admission agreement itself made it clear, in simple to understand language, that signing the arbitration agreement was voluntary, and that the arbitration agreement was not a precondition to the furnishing of services to Nesbeth.

Based on the foregoing, we conclude that the trial court erred in denying the motion to compel arbitration. We reverse and remand with directions to the trial court to enter an order compelling arbitration.

Reversed and remanded.

Taylor, May and Conner, JJ., concur.


author: RAY, J.

text:
    Kevyn L. TERRY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4241
    District Court of Appeal of Florida, First District.
    Opinion filed July 6, 2017.
    Kevyn L. Terry, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee^ for Appellee.
   RAY, J.

Kevyn L. Terry challenges the summary denial of his motion for postconviction relief, asserting three claims of ineffective assistance of counsel and one claim of fundamental error. With the exception of the claim discussed below, we conclude that the postconviction court properly denied the motion.

After the trial court denied his motion to continue a, pretrial proceeding due to substitution, of counsel, Appellant entered an open , plea to charges , of possession of a controlled, substance with intent to sell or distribute and possession of cannabis. During the plea colloquy, Appellant acknowledged he understood that by entering a plea, he waived his right to a direct appeal but retained “the right to collateral attack, a different type of appeal that has to do with jurisdiction, voluntariness, things like that.” Neither Appellant nor his counsel attempted to preserve any appellate rights at the time of the plea. The trial court sentenced Appellant to ten years’ imprisonment in the Department of Corrections followed by five years of probation.

In his direct appeal, Appellant argued that the trial court erred in denying his motion for continuance.. This Court affirmed the judgment, and sentence, holding that Appellant had failed to preserve for appeal the denial of his motion for continuance and that the order denying his motion was not dispositive. Terry v. State, 149 So.3d 113, 113 (Fla. 1st DCA 2014).

Armed with this decision, Appellant then moved for postconviction relief, claiming that his trial counsel rendered ineffective assistance by assuring him- that the denial of the motion for continuance was a dispos-itive issue that would be reviewable on appeal, Appellant asserted that but for this misadvice, he would' have gone to trial.

Appellant has sufficiently alleged ineffective assistance of counsel. See Hawley v. State, 822 So.2d 552, 553 (Fla. 1st DCA 2002). Because the record on appeal does not conclusively refute Appellant’s allegations, the State properly concedes that the summary denial of this claim must be reversed and the matter remanded for the attachment of portions of the record conclusively refuting the claim or for an evi-dentiary hearing. See King v. State, 765 So.2d 828, 829 (Fla. 1st DCA 2000).

AFFIRMED in part, REVERSED in part, and REMANDED.

MAKAR and WINSOR, JJ., CONCUR.


text:
    Jacob JONES, Jr., Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-5119
    District Court of Appeal of Florida, First District.
    Opinion filed July 6, 2017

      Jacob Jones, Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reverse the trial court’s order to the extent it bars Appellant, Jacob Jones, Jr., “from filing any further pleadings pro se or in propria, persona regarding the instant case.” Appellant asserts, and the state concedes, that it was error for the trial court to order the prohibition without providing Appellant notice or a reasonable opportunity to respond. See, e.g., State v. Spencer, 751 So.2d 47, 48 (Fla. 1999); Jackson v. Parkhouse, 826 So.2d 478, 478 (Fla. 1st DCA 2002); Hendrixson v. Frye, 994 So.2d 1255, 1255 (Fla. 1st DCA 2008). The order on appeal is otherwise affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

ROBERTS, WINOKUR, and M.K. THOMAS, JJ„ CONCUR.


text:
    Bruce L. HENDERSON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-1589
    District Court of Appeal of Florida, First District.
    Opinion filed July 6, 2017
    Bruce L. Henderson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order denying motion for postconviction relief rendered on March 18, 2016, in Columbia County Circuit Court case number 2014-560-CF 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.

WOLF, ROWE, and KELSEY, JJ., CONCUR.


text:
    David Russell POSEY, Petitioner, v. Karen ROBERTS, Chief Clerk & Jon S. Wheeler, as Clerk of Court, First District Court of Appeal, Respondents.
    CASE NO. 1D17-1554
    District Court of Appeal of Florida, First District.
    Opinion filed July 6, 2017
    David Russell Posey, pro "se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of quo warranto is denied on the merits. Petitioner is warned that the filing of any other pleadings deemed by the court to be meritless may result in sanctions, including but not limited to a prohibition on pro se filings and a referral to the Department of Corrections for disciplinary action under section 944.279, Florida Statutes. See State v. Spencer, 751 So.2d 47 (Fla. 1999).

B.L. THOMAS, C.J., and LEWIS and ROWE, JJ., CONCUR.


text:
    Deshawn GREEN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0020
    District Court of Appeal of Florida, First District.
    Opinion filed July 6, 2017
    Deshawn Green, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the amended order denying motion to correct illegal sentence rendered on September 17, 2015, in Duval County Circuit Court case number 16-2009-CF-15160-AXXX 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.

WOLF, ROWE, and KELSEY, JJ., CONCUR.


text:
    Raney RICHARDSON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D16-4991
    District Court of Appeal of Florida, First District.
    Opinion filed July 6, 2017.
    Raney Richardson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order denying defendant’s motions to correct illegal sentence rendered on February 9, 2016, in Duval County Circuit Court case number 16-2008-CF-14726-AXXX-MA 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.

WOLF, ROWE, and KELSEY, JJ., CONCUR.


text:
    Joseph T. MARTIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3427
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 7, 2017
    Joseph N. D’Achille, Jr., of Joseph N. D’Achille Jr.,P.A., Melbourne, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L C. Matthews, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Joseph T. Martin appeals the restitution order entered by the trial court in connection with his no contest plea to a charge of dealing in stolen property. The State properly concedes that the restitution order improperly ordered restitution as to items not covered by the dealing in stolen property count. Accordingly, we reverse the restitution order and remand for a new restitution hearing.

REVERSED and REMANDED.

PALMER, EVANDER and LAMBERT, JJ., concur.


text:
    Milton Curtis WILCOX, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1854
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 7, 2017
    Alfred Torres, Kissimmee, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the April 7, 2017 judgments and sentences in Case No. 2016-CF-003060 in the Circuit Court in and for Osceola County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, LAMBERT and EISNAUGLE, JJ., concur.


text:
    Theodore Roosevelt FOULKES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-939
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 7, 2017

      James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee. '
   PER CURIAM.

Theodore Foulkes entered a no contest plea to possession of cannabis in excess of twenty grams after the denial of his dis-positive motion'to suppress. We affirm, without discussion, the trial court’s denial of Foulkes’motion to suppress. However, we agree with Foulkes that the trial court erred in imposing costs of investigation where the State did not expressly request these costs, On remand, the State shall be afforded another opportunity to request costs of investigation. McCarthy v. State, 893 So.2d 689, 690 (Fla. 5th DCA 2005).

AFFIRMED, in part; REVERSED; in part; and REMANDED.

COHEN, C.J., and TORPY and EVANDER, JJ., concur.


text:
    Dale R. PATE, Appellant, v. Brandy L. PATE, Appellee.
    Case No. 5D16-1405
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 14, 2017
    Dale R. Pate, Graceville, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED without prejudice to Appellant seeking relief pursuant to his sixth motion for contempt.

COHEN, C.J., PALMER and ORFINGER, JJi, concur.


text:
    Herley DAVIS, Appellant, v. DEPARTMENT OF REVENUE O/B/O Melissa Ann BARTELL, Appellee.
    Case No. 2D16-1658
    District Court of Appeal of Florida, Second District.
    Opinion filed July 14, 2017
    Herley Davis, pro se.
    Pamela Jo Bondi, Attorney General, .and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellee Department of Revenue
    No appearance for Appellee Melissa Ann Bartell.
   PER CURIAM.

Herley Davis appeals a final administrative paternity and support order entered by the Department of Revenue, Child Support Enforcement Program. We have jurisdiction. See § 120.68, Fla. Stat. (2016); Fla. R. App. P. 9.030(b)(1)(C), .110(a)(2). In its answer brief, the Department concludes with a concession of error regarding its method of calculating Mr. Davis’s income for purposes of his child support obligation. It is unclear from our review of the limited record what that error would have been given the information, the Department had before it and Mr. Davis’s failure to participate at any point in the proceedings below. Thus, we decline to accept the Department’s concession. Cf. Hinckley v. Dep’t of Revenue, ex rel. K.A.C.H., 927 So.2d 73, 74 (Fla. 2d DCA 2006) (recognizing the Department’s concession of error but dismissing on other grounds); Gonzalez v. Dep’t of Health, 124 So.3d 449, 450 (Fla. 1st DCA 2013) (“A confession of error... is not binding upon an appellate court, and it is the practice of Florida appellate courts not to accept erroneous concessions ....” (first alteration in original) (quoting Perry v. State, 808 So.2d 268, 268 (Fla. 1st DCA 2002))). As Mr. Davis never challenged the Department’s method of calculating his child support obligation, he failed to preserve that issue for our review. See Duggan v. Dep’t of Revenue, ex rel. Huff, 197 So.3d 631, 632 (Fla. 1st DCA 2016) (holding that, in appeal of final administrative support order, the appellant “waived and failed to preserve most of his appellate arguments after ignoring the process offered below”); Macias v. Dep’t of Revenue, ex rel. Garcia, 16 So.3d 985, 986 (Fla. 3d DCA 2009) (holding that a father could not “seek modification of a Final Administrative Support Order on appeal by presenting facts that were not initially presented to the administrative law judge”), Accordingly, we affirm.

Affirmed.

KELLY, LUCAS, and ROTHSTEIN-YOUAKIM, JJ.,' Concur.


author: PER CURIAM. WINSOR, J;,

text:
    Kemberly MCALISTER, former wife, Appellant, v. Mark Paul MCALISTER, II, former husband, Appellee.
    CASE NO. 1D17-65
    District Court of Appeal of Florida, First District.
    Opinion filed July 14, 2017
    Robert . Á. Sandow, Lake City, for Appellant.
    Corrine A. Bylund, Jacksonville, for Ap-pellee.
   PER CURIAM.

AFFIRMED.

B.L. THOMAS, C.J., and OSTERHAUS, J., CONCUR; WINSOR, J., CONCURS WITH OPINION.

WINSOR, J;,

concurring.

When Kemberly and Mark McAlister divorced, they could not agree on a custody arrangement for .their six-year-old daughter. The task of resolving that issue was left to the trial judge, who conducted a bench trial. After hearing all the evidence, the trial judge decided that the parents would share time with the daughter equally. The mother appealed, claiming the trial judge should have, given her a greater share.

Among other things, the mother argues it was she who primarily cared for the child during the parties’ lengthy separation, it was she who took the child to school every day during the marriage, and it was she who is now better suited to parent the child. From this, the mother concludes that the trial court was wrong to split timesharing equally.

In this case, as in so many more, the trial court faced a difficult decision. Both sides presented legitimate points and arguments. Ultimately, the trial court’s careful consideration led it to the result challenged here. Perhaps other judges facing the same legitimate points and arguments would have reached different conclusions. Perhaps not. But the • law gives judges making these decisions broad discretion, see Hudson v. Hudson, 209 So.3d 656, 658 (Fla. 1st DCA 2017); Witt-Bahls v. Bahls, 193 So.3d 35, 38 (Fla. 4th DCA 2016), and we cannot conclude that the trial judge here abused that discretion. The mother has not met her burden on appeal, so we affirm.


author: SILBERMAN, Judge.

text:
    Laura VAN DER MEULEN, Appellant, v. Michael VAN DER MEULEN, Appellee.
    Case No. 2D15-5711
    District Court of Appeal of Florida, Second District.
    Opinion filed July 14, 2017
    Jane H. Grossman of the Law Office of Jane H. Grossman, St. Petersburg; and Susan Hartmann Swartz of the Law office of Stanley R. Swartz, Bradenton, for Appellant.
    Amber L. Weaver of Amber L. Weaver, Esquire, P.A., Punta Gorda, for Appellee.
   SILBERMAN, Judge.

Laura Van Der Meulen, the Former Wife, seeks review of a final judgment of dissolution of marriage. She challenges the calculation of both parties’ incomes, the requirement that she pay real estate taxes from the temporary support award, and the equal allocation of the children’s un-reimbursed medical expenses. Michael Van Der Meulen, the Former Husband, properly concedes that the trial court erred in failing to allocate the unreimbursed medical expenses on a percentage basis. See § 61.30(8), Fla. Stat. (2011); Zinovoy v. Zinovoy, 50 So.3d 763, 764 (Fla. 2d DCA 2010). Finding no reversible error in the Former Wife’s remaining arguments, we affirm in part, reverse in part, and remand for the reallocation of the children’s un-reimbursed medical expenses.

Affirmed in part, reversed in part, and remanded.

CRENSHAW and LUCAS, JJ., Concur.


author: LUCAS, Judge.

text:
    Lazaro GUTIERREZ-HERNANDEZ, Appellant. v. STATE of Florida, Appellee.
    Case No. 2D15-3342
    District Court of Appeal of Florida, Second District.
    Opinion filed July 14, 2017

      Valerie Jonas and Beth Weitzner of Weitzner & Jonas, P.A., Miami, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lisa Martin, Assistant Attorney General, Tampa, for Appellee.
   LUCAS, Judge.

Lazaro Gutierrez-Hernandez owned a house in Poinciana with a marijuana grow room inside of it. At his jury trial on charges of trafficking in cannabis, possession of a structure used for trafficking, manufacture of cannabis, and possession of drug paraphernalia, he claimed to know nothing whatsoever about the thirty-seven marijuana plants that were being cultivated inside of a partially sealed room of the house. Mr. Hernandez’s defense was that his house was merely an investment property, a place where he let his sister temporarily reside, and that he. had no access or control over the grow room inside of it. Unfortunately for Mr. Hernandez, the jury was presented with unlawfully obtained evidence that made his claim all but untenable.. Accordingly, .we reverse his convictions and sentences.

I.

After learning of an illegal “tap” providing electricity to a house in Poinciana, Florida, that belonged to Mr. Hernandez (who was already suspected of operating a marijuana grow house near Kissimmee), Polk; County Sheriffs Detective Omar Saenz applied for a search warrant of the property. As it happened, while Detective Saenz was en route with an executed search warrant for the Poinciana house, he saw Mr. Hernandez and his sister, Yureik-is Hernandez, in a white Nissan beginning to pull into the house’s driveway. Other detectives who had secured the property attempted to approach the car, but the Nissan changed direction and sped down the roadway. Detective Saenz followed the vehicle until it stopped approximately a block away, and then, for reasons that are not entirely clear, the detective placed Mr. Hernandez under arrest and returned him, handcuffed, to the house where he then read the warrant to Mr. Hernandez. Ms. Hernandez was also placed in custody. While under arrest for a yet-to-be-determined • offense (presumably resulting from the yet-to-be-searched house), Mr. Hernandez stated that the bedroom inside of the house .belonged to him. Detectives uncovered on Mr. Hernandez’s person a key to the Poinciana house and a driver’s license that listed the house’s address. At around the time of Mr. Hernandez’s arrest, Ms. Hernandez, who later pleaded to a misdemeanor for her involvement in this case, also made statements to Detective Saenz suggesting that the bedroom inside of the house was being used by Mr. Hernandez,

The ensuing search of the Poinciana house revealed a one-bedroom interior with a kitchen and living room. The bedroom held two mattresses and some men’s clothing. In the northeastern corner of the house, however, was a room with two means of ingress: a door through the living room that had been sealed shut and an unlocked door through the bathroom which could be secured by á deadbolt. The bathroom, in turn, was next to the bedroom that Mr. Hernandez stated belonged to him. Upon breaking down the sealed living room door, the detectives’ search revealed what was unquestionably a marijuana grow room, complete with an irrigation system, high-intensity lighting, a portable air conditioning unit and. fan, and thirty-seven marijuana plants that measured between six and eight feet in. height. Mr, Hernandez was then charged by information with the four counts at issue here.

The circuit court, however, determined that Mr. Hernandez had been improperly arrested under the Supreme Court’s decision in Bailey v. United States, 568 U.S. 186, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013), and suppressed the statements Mr. Hernandez had made to the detective. The defense failed to mention the seized driver’s license and house key in its argument during that hearing. However, shortly before the trial commenced, Mr. Hernandez made a motion in limine to clarify that the court’s prior suppression order should also encompass the seizure of Mr. Hernandez’s key and driver’s license.. Only this time, apparently frustrated that the defense waited until the Friday before trial to raise the issue, the court apparently denied the motion. The case against Mr. Hernandez proceeded to trial, and, during its case-in-chief, the State was allowed to introduce the house key and driver’s license seized when Mr. Hernandez had been unlawfully arrested. '

It was a case, as the prosecuting attorney informed the jury, which hinged upon whether Mr. Hernandez had constructive possession of the grow room. Besides Mr. Hernandez’s ownership of the Poinciana house (a fact that was undisputed) and the men’s clothing inside the bedroom, the State presented evidence that Mr. Hernandez had once been briefly observed exiting the garage to perform some yardwork. The State also introduced a certified Department of Highway Safety and Motor Vehicles record that showed the Poinciana house as Mr. Hernandez’s primary residence, mail addressed to Mr. Hernandez at the Poinciana house’s address, a pay stub belonging .to Mr. Hernandez that was found in the Poinciana house, and, of course, the driver’s license and key.

Mr. Hernandez elected not to, testify. His defense was that he did not have constructive possession over the -grow room because he did not live in the house; he was simply letting his sister stay there while she went through a divorce. Mr. Hernandez’s counsel pointed out through; out the trial that the men’s clothes found inside the room could have belonged to anyone and that subsequent testing did not reveal Mr. Hernandez’s fingerprints or DNA in the grow room. The State’s remaining evidence, his lawyer argued, showed only that Mr. Hernandez owned the house—which, again, was a fact he conceded. In short, 'according to the defense’s argument throughout the trial, the State’s evidence failed to prove beyond a reasonable doubt that he was aware of the grow room, much less in operative possession of it.

The State’s case, however, received a lift when the evidence the circuit court previously excluded was later allowed to be introduced—through Detective Saenz. During cross-examination, Detective Saenz admitted that he did not know whether Mr. Hernandez was ever in the grow room or if he used the house as his primary residence; but then the following exchange occurred:

Defense Counsel: Okay. And with respect to all of your investigation, is there any evidence whatsoever in terms of testimony or—or anybody ever even seeing him inside the house?
Detective: No.
Defense Counsel: And so when you say the defendant’s bedroom, that’s something you are assuming, right?
Detective: Not necessarily, sir.

Construing that exchange as “opening the door,” and over the defense’s objection, the circuit court permitted Detective Saenz to later relay Mr. Hernandez’s statement that the bedroom belonged to him.

After the State rested, the defense recalled Detective Saenz. During direct examination, defense counsel questioned Detective Saenz about the means and scope of his investigation.

Defense Counsel: Have you ever considered the possibility that somebody else is responsible for that grow room other than the people that you arrested, my client and his sister?
Detective: No, sir.
Defense Counsel: Didn’t even consider it?
Detective: No, sir.

The circuit court deemed this as another door opening, and, over defense counsel’s objection, allowed Detective Saenz to testify on cross-examination that, at the time of her arrest, Ms. Hernandez told him that Mr. Hernandez had instructed her to sleep in the living room and never explore the rest of the residence. It should be noted that Ms. Hernandez was present in the courtroom—as she had been throughout most of the trial proceedings—at the time her statement was elicited through Detective Saenz. When the circuit court inquired why the State did not simply call Ms. Hernandez to testify, the State responded that it did not wish to call a witness who had traveled from Miami to support her brother and who “would be motivated to protect her brother and not put him in prison.” Indeed, the State went so far as to speculate, “[s]he could even potentially get up there and say it [the marijuana] was all hers.”

The jury returned a guilty verdict as to all of the counts against Mr. Hernandez, and this appeal followed.

II.

Mr. Hernandez raises five points on appeal. We find merit in two of his arguments. The circuit court erred by allowing Mr. Hernandez’s inculpatory statement, as well as the hearsay statement attributed to Mr. Hernandez’s sister, into evidence for the reasons we will explain below.

We review a circuit court’s evi-dentiary rulings for an abuse of discretion, a standard that may be met where the circuit court’s ruling either “is based on an ‘erroneous view of the law or on a clearly erroneous assessment of the evidence.’” See McDuffie v. State, 970 So.2d 312, 326 (Fla. 2007) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). The State has never challenged that Mr. Hernandez’s statement to Detective Saenz about his ownership of the bedroom resulted from his unlawful arrest. The circuit court’s initial decision to suppress his statement was eminently correct. See Bailey, 133 S.Ct. at 1042. The first question before us, then, becomes quite discrete: did the defense’s questioning of Detective Saenz open the door so that what had been plainly inadmissible before the trial commenced became admissible after defense counsel posed a question to the detective?

“[T]he concept of ‘opening the door’ allows the admission of otherwise inadmissible testimony to ‘qualify, explain, or limit’ testimony or evidence previously admitted.” Rodriguez v. State, 753 So.2d 29, 42 (Fla. 2000) (quoting Tompkins v. State, 502 So.2d 415, 419 (Fla. 1986)). It is an eviden-tiary rule founded in the common law that is premised “on considerations of fairness and the truth-seeking function of a trial.” Bozeman v. State, 698 So.2d 629, 631 (Fla. 4th DCA 1997). A precise formulary for how hard a particular question or response must push against a particular threshold of fairness or truthfulness in order to open the door for otherwise inadmissible evidence has remained elusive, a reflection perhaps of the highly contextual nature of the inquiry. We are satisfied that in this case the door should have remained shut.

In the trial below, Mr. Hernandez did not testify. He never put his credibility at issue through any witness’s testimony. Thus, under the exclusionary rule, the illegally obtained statement could not have been utilized against him. See Agnello v. United States, 269 U.S. 20, 34-35, 46 S.Ct. 4, 70 L.Ed. 145 (1925) (holding that, on cross-examination, unlawfully seized evidence may not be used to impeach a defendant on collateral matters not testified to on direct examination); Dornau v. State, 306 So.2d 167, 168-70 (Fla. 2d DCA 1974) (incorporating Agnello and noting that previously suppressed evidence of unlawfully seized parking tickets that would show a defendant’s whereabouts subsequent to the date of a murder should not have been introduced to rebut the defendant’s testimony, which only concerned the date of the murder and preceding events); cf. Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503 (1954) (“It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.”). While we question whether the relatively benign exchange here—a defense attorney suggesting that an investigating detective had made an assumption, followed by the detective responding, “not necessarily”—could even be said to have opened the door to inadmissible evidence (broadly speaking), it assuredly did not provide a doorway to introduce, an unlawfully obtained, statement from the defendant in order to bolster an investigating detective’s testimony on redirect examination. Cf. Agnello, 269 U.S. at 35, 46 S.Ct. 4 (“[The defendant] did nothing to waive his constitutional protection or to justify cross-examination in respect of the evidence claimed to have been obtained by the search.”); Dornau, 306 So.2d at 170 (holding that since illegally seized evidence admitted at trial “did not really rebut or contradict anything to which the defendant had previously testified,” it had been improperly admitted). Mr. Hernandez’s incul-patory statements about his control over the bedroom should not have been admitted in a trial in which he never took the stand and none of his witnesses, it appears, had ever testified in a misleading or untruthful manner.

The same holds true for Ms. Hernandez’s incriminating statements about Mr. Hernandez’s directions to her concerning the Poinciana house. Defense counsel asked Detective Saenz only if he considered whether someone besides Mr. Hernandez or Ms. Hernandez could be responsible for the grow room, and the detective responded “No, sir.” The State convinced the circuit court that Detective Saenz was permitted to then recount what Ms. Hernandez had told him in order to show that he “did investigate other occupants of the house, that being specifically Yureikis Hernandez.” But it was never disputed that Detective Saenz spoke with Ms. Hernandez as part of his investigation. Indeed, the question he was posed concerning his investigation included Ms. Hernandez within its ambit. While hearsay may, in some circumstances, be used to qualify or explain the scope or means of an investigation, see, e.g., Dennis v. State, 817 So.2d 741, 751-53 (Fla. 2002), nothing about Detective Saenz’s testimony required further qualification or explanation. See Redd v. State, 49 So.3d 329, 333-34 (Fla. 1st DCA 2010) (holding that testifying officer’s testimony about why a codefendant was not charged was not “misleading or so incomplete as to be unfair” such that “the door was not opened to the admission of hearsay to explain, qualify, or limit his answers”). There was simply nothing to clarify.

III.

The erroneous admission of Mr. Hernandez’s inculpatory statement 'and Ms. Hernandez’s hearsay, which became focal points of the' latter part of the trial and the State’s closing arguments, cannot be said to have been harmless. See Redd, 49 So.3d at 334 (holding hearsay evidence erroneously, admitted under concept of “opening the door” was not harmless because the court could not “conclude beyond a reasonable doubt that the erroneous admission ... did not contribute to the verdict” (citing State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986))); see also Bell v. State, 201 So.3d 1267, 1281 (Fla. 2d DCA 2016) (“[T]he State has not met its burden of demonstrating that there [was] no reasonable possibility that the erroneous admission of [the defendant’s] second statement contributed to the verdict.”); President v. State, 884 So.2d 126, 127 (Fla. 4th DCA 2004) (holding that the erroneous admission of a defendant’s confession could not be deemed harmless beyond a reasonable doubt). Accordingly, we must reverse the convictions and sentences of the circuit court and remand this case for a new trial.

Having so held, we note one final point concerning the inculpatory house key and driver’s license found on Mr. Hernandez’s person during his unlawful arrest, to the extent that the admissibility of this evidence may present itself again as an issue in the remanded proceedings of this case. In an apparent denial of Mr. Hernandez’s motion in limine, the circuit court permitted the State to introduce both of these pieces of evidence. The court offered no rationale for why this evidence had become admissible. At the hearing on Mr. Hernandez’s motion in limine, the State suggested that the key and driver’s license could have also been admitted under the inevitable discovery doctrine. Cf. Young v. State, 207 So.3d 267, 269 (Fla. 2d DCA 2016) (“The inevitable discovery doctrine allows evidence obtained as the result of unconstitutional police procedure to be admitted if the evidence would ultimately have been discovered by legal means.” (quoting Hatcher v. State, 834 So.2d 314, 317-18 (Fla. 5th DCA 2003))). Certainly, that seems a plausible contention. The circuit court, however, never ruled on that precise argument. Accordingly, we express no opinion as to whether the inevitable discovery doctrine would have permitted the introduction of the key and driver’s license found on Mr. Hernandez’s person. Nothing in our holding today should be construed to suggest otherwise. On remand, the circuit court may consider that argument if it is properly raised.

Reversed and remanded.

VILLANTI and BLACK, JJ., Concur.

      . Mr. Hernandez was sentenced to concurrent ten-year prison terms on the trafficking and possession of a structure used for trafficking counts, a concurrent five-year term in prison on the manufacture of cannabis count, and, time served on ‘the possession of drug paraphernalia count.

      . According to the testimony presented at the suppression hearing, a tap is a term used to identify any device that reroutes electricál service to bypass a utility’s meter box, the effect of which is that the meter box will not register the property's actual consumption of electricity. Taps are often used to conceal the relatively large amounts of electricity that marijuana cultivation requires.

      . The testimony was unclear as to who was driving the vehicle, Mr, Hernandez or his sister,

      . The State never contended that Mr. Hernandez was attempting to either thwart the execution of the warrant or conceal or destroy •any evidence,

      . The State did not appeal the circuit court’s suppression order.

      . The circuit court never explicitly denied Mr. Hernandez’s motion in limine. However, at the end of jury selection, the State asked if the key and driver's license were admissible, and the'circuit court confirmed that they were.

      . Cf. Golden v. State, 429 So.2d 45, 56 (Fla. 1st DCA 1983) ("For what cross-examination is 'reasonably suggested’ by any direct examination testimony depends, obviously, on the scope and content of that particular testimony in that particular case.”). That said, we note that certain broad, categorical limits to the doctrine’s invocation have emerged. See, e.g., Henderson v. State, 135 So.3d 472, 476 (Fla. 2d DCA 2014) ("[T]he State must demonstrate a legitimate need to resort to such evidence to correct a false impression. Otherwise, the 'opening the door’ rale threatens to become a pretext for the illegitimate use of inadmissible evidence .... ” (quoting Redd v. State, 49 So.3d 329, 333 (Fla. 1st DCA 2010))); Mosley v. State, 739 So.2d 672, 676 (Fla. 4th DCA 1999) (recognizing that to open the door to evidence of a defendant’s prior bad acts, "the defense must first offer misleading testimony or make a specific factual assertion which the state has the right to correct so that the jury will not be misled” (quoting Bozeman, 698 So.2d at 630)).

      . Mr. Hernandez never raised a Sixth Amendment confrontation clause objection to the admission of Ms. Hernandez's hearsay statements against him, either at the trial or in this appeal. Otherwise, we would be troubled by the admission of her statements through the detective given that she was present throughout the trial—and the very candid representations made by the assistant state attorney who elected not to call her. See Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (holding testimonial hearsay evidence inadmissible against criminal defendant where the declarant is available to testify and be cross-examined at trial).


text:
    R.J. REYNOLDS TOBACCO COMPANY and Philip Morris USA, Inc., Appellants, v. Ina E. AHRENS, Personal Representative of the Estate of Karl Robert Ahrens, Appellee.
    Case No. 2D16-1651
    District Court of Appeal of Florida, Second District.
    July 14, 2017
    Marie A. Borland and Troy A. Fuhrman of Hill Ward Henderson, Tampa; Charles R.A. Morse of Jones Day, New York; and Jason T. Burnette, Stephanie E. Parker, and John M. Walker of Jones Day, Atlanta, for Appellant R. J. Reynolds.
    Geoffrey J. Michael and M. Sean Laane of Arnold & Porter, Washington, DC; Keri L. Arnold of Arnold & Porter, LLP, New York; and Daniel F. Molony, Bonnie C. Daboll, Terri L. Parker, Cathy A, Kamm, and Razvan Axente of Shook, Hardy & Bacon LLP, Tampa, for Appellant Philip Morris.
    Daniel R. Hoffman and David J. Sales of David J, Sales, Jupiter; and Gary M. Paige of Gordon & Doner, P.A., Davie, for Appellee.
   BY ORDER OF THE COURT:

Upon consideration of the Appellants’ motion for a written opinion/citation filed on May 24, 2017, and the motion for leave to file a reply in support of their motion for a written opinion/citation filed June 7, 2017,

IT IS ORDERED that the Appellants’ motion for a written opinion is granted. The decision dated May 12, 2017, is withdrawn and the attached opinion is substituted therefor. Appellee’s opposition to Appellants’ motion is noted. Appellants’ motion to reply is denied.

No further motions for rehearing will be entertained in this appeal.

PER CURIAM.

R.J, Reynolds Tobacco Company and Philip Morris USA, Inc., appeal from a final judgment following a jury trial in this Engfe-progeny tobacco litigation case. We affirm the final judgment in all respects. As we did in Philip Morris USA Inc. v. Boatright, 217 So.3d 166 (Fla. 2d DCA 2017), we certify conflict with R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487 (Fla. 4th DCA 2015), review granted, No. SC15-2233, 2016 WL 3127698 (Fla. May 26, 2016), on Appellants’ argument pertaining to comparative fault.

VILLANTI and BADALAMENTI, JJ„ and SMITH, ANDREA T., ASSOCIATE JUDGE, Concur.

      . See Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla. 2006).


author: GENOVESE, J.

text:
    ENTERGY LOUISIANA, LLC v. LOUISIANA PUBLIC SERVICE COMMISSION, Concordia Electric Cooperative Inc.
    No. 2016-CA-0424
    Supreme Court of Louisiana.
    03/15/2017
    DAVIDSON, MEAUX, SONNIER, MCELLIGOTT, FONTENOT, GIDEON & EDWARDS, LLP,.Theodore Glenn Edwards, IV, Lafayette, Jordan Thomas Precht; LOUISIANA PUBLIC SERVICE COMMISSION, Brandon Mark Frey, Melanie A. Verzwyvelt; SMITH, TALIAFER-RO & PURVIS, Virgil Russell Purvis, Jr., Jonesville, for Appellant.
    Kathryn J. Lichtenberg; John Allen Braymer; Karen H. Freese; Edward R. Wicker, Jr., New Orleans, for Appellee.
   GENOVESE, J.

11 This electrical service provMer case comes before us on direct appeal pursuant to La.Const. art. 4, § 21(E) for our review of a district court judgment.reversing Louisiana Public Service Commission (LPSC) . Order No. U-32980. Because we find that the LPSC did not act arbitrarily and capriciously in reaching its decision, we reverse.

PACTS AND PROCEDURAL HISTORY

This action arises out of the construction of a facility by United Plant Services (UPS), in Trout, Louisiana, to which En-tergy Louisiana, LLC (Entergy) provides electric services. Entergy’s competitor, Concordia Electric Cooperative, Inc. (Con-cordia), filed a complaint with the LPSC asserting that Entergy’s service to the UPS facility violates La.R.S. 45:123 and LPSC General Order No. R-28269, collectively referred to as the 300 Foot Rule, by providing service to UPS at a |2point of connection Concordia presumed to be within 300 feet of its existing electrical lines,

UPS is a family-owned company that provides machine repair services. UPS planned construction of a building on a ten-acre parcel of land it owned-in Trout located at the intersection of-Highway 8, its northern boundary, and Hanger Road, its eastern boundary. Prior to the construction of the building, Concordia and Entergy were in competition to provide electric services to the proposed UPS facility. At that time, Concordia had existing electric lines running along both Highway 8 and Hanger Road, within 300 feet of the property.

In December 2012, Concordia drafted a letter to UPS offering to provide electric services. UPS did not respond to Concor-dia’s letter. In January 2013, Entergy provided UPS with a letter of intent requesting that it be selected to provide electrical services to UPS. UPS signed Entergy’s letter of intent prior to the commencement of construction of the building. In February 2013, Entergy became aware that its competitor, Concordia, had existing lines in the area. In the summer of 2013, Enter-gy constructed its own electric lines to serve the UPS facility. The construction of the new electric lines, estimated to be 2,500 to 3,000 feet from the nearest Enter-gy facility, was undertaken by Entergy before an actual contract was signed with UPS. '' :

Proceeding towards the construction- of the building, UPS’s architect prepared drawings showing three alternative placements of the building on the ten-acre tract: one at 100 feet from Hanger Road; - the second at 150 feet from Hanger Road; and the . third at 200 feet from Hanger Road. Once construction was completed, the eastern corner of the building was 125.feet from the Hanger Road property boundary. The result of this, placement was that the entirety of the UPS facility was located within 300 feet of Concordia electric lines, except for a | ¡¡triangular portion measuring twelve feet by twelve feet by six feet. The electric meter for the building ‘is located within this 'triangular space placing it between 302 and 315 feet from various points along Concordia’s lines.

Concordia filed a complaint against En-tergy with the LPSC, alleging that Enter-gy violated La.R.S. 45:123(A) and LPSC General Order No. R-28269(D), the 300 Foot Rule, in providing electric service to UPS. Concordia later contended that UPS and Entergy intentionally circumvented the 300 Foot Rule by placing its | ¿meter at a distance beyond 300 feet from Concor-dia’s lines. Entergy countered that the location of the meter was predicated on UPS business needs and safety concerns and that the meter placement was not by design in circumvention of the 300- Foot Rule.

The matter was presented to an Administrative Law Judge (ALJ). Following the hearing, the LPSC staff filed a post-hearing brief stating that “[t]he placement of the meter becomes so. .convenient as, to strain credulity when viewed in context of the other circumstances[.]” Further, “Recording to the totality of the circumstances, Staff is of the opinion that Con-cordia has presented a preponderance of evidence to suggest that either ÚPS and/or [Entergy] intended to circumvent the 300 Foot Rule.” Finally, it was the LPSC’s staff conclusion and recomméndation that the ALJ order Entergy “to disconnect its facilities from the UPS Facility property, and to authorize Concordia to begin providing electrical service to the building.”

The ALJ, however, issued a Proposed Recommendation that the LPSC dismiss Concordia’s claims based upon its finding that Concordia failed to show that UPS or Entergy had intentionally placed the building and the meter in circumvention of the 300 Foot Rule, thereby enabling UPS to select Entergy as opposed to Concordia as its electric service provider. Concordia filed exceptions to the ALJ’s Proposed Recommendation. Upon the retirement of the ALJ, the action was reassigned to another ALJ, who denied Concordia’s exceptions and issued a Final Recommendation adopting and reinstating the Proposed Recommendation.

IsPuring its monthly Business and' Executive Session, the LPSC considered the ALJ’s Final Recommendation. The recommendation of the ALJ was unanimously rejected by the LPSC, which found a violation of the 300 Foot Rule, and issued Order No. U-32980 concluding as follows:

The ALJ’s recommendation was considered by the Commission at its June 24, 2015 Business and Executive Session. Following a lengthy discussion and oral arguments by each side, the Commission on motion of Commissioner Campbell, seconded by Chairman Holloway, and unanimously adopted, voted to reject the ALJ’s recommendation and based on the evidence in the record and heard before the Commission at oral argument, the Commission found that Entergy violated the 300 Foot Rule in serving UPS. If there should be an appeal, and Entergy loses the appeal, En-tergy shall immediately disconnect its facilities from UPS and reimburse Con-cordia for its losses associated with En-tergy’s service of UPS from the date of this order.

Entergy filed a petition for appeal and judicial review of LPSC Order No. U-32980 in the Nineteenth Judicial District Court, and Concordia filed a Petition for Intervention in that proceeding. Following oral argument, the district court reversed the LPSC’s decision, finding it to be arbitrary and capricious. The district court gave the following brief oral reasons for judgment:

The court is of the opinion that the Commission’s reversal of the ALJ recommendation is certainly arbitrary and capricious based upon the evidence in the record. The court is firmly of the opinion that the customer chose the carrier for the complete fair nexus within the 300-foot rule. Therefore, to the extent that action is inconsistent with this court’s ruling, it’s hereby reversed.

The district court’s ruling was reduced to a written judgment stating in pertinent part:

IT IS FURTHER ORDERED that Order No. U-32980 is arbitrary and capricious and hereby reversed, and that the Administrative Law Judge’s Final Recommendation in favor of [Entergy] be and hereby is reinstated.

The LPSC and Concordia thereafter sought a direct appeal to this court to review the judgment of the district court. For the following reasons, we reverse.

| .DISCUSSION

The LPSC has jurisdiction over the regulation of public utilities, including electrical service providers. The LPSC’s jurisdiction is conferred by La.Const. art. 4, § 21(B) which states:

Powers and Duties. The commission shall regulate all common carriers and public utilities and have such other regulatory authority as provided by law. It shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties, and shall have other powers and perform other duties as provided by law.

This constitutional provision grants the LPSC “broad and independent regulatory powers over public utilities. The LPSC’s jurisdiction over public utilities has been labeled by this court as ‘plenary.’ ” Entergy Louisiana, LLC v. Louisiana Public Service Comm’n, 08-284 (La. 7/1/08), 990 So.2d 716, 723 (quoting Gulf States Utilities Co. v. Louisiana Public Service Comm’n, 578 So.2d 71, 100 (La.1991), cert. denied, 502 U.S. 1004, 112 S.Ct. 637, 116 L.Ed.2d 655 (1991)).

In furtherance of the regulation of electrical service lines, the 300 Foot Rule provides that no public utility may extend electric service to any “point of connection” already receiving service from another utility or to any new point of connection located within 300 feet of the existing lines of a competing electric utility. If two or more electric public utilities have existing lines within 300 feet of a point of connection, the customer may choose among those electric service providers. Additionally, and pertinent to the instant matter, the LPSC may determine if the location of a point of connection was chosen for the purpose of 17circumventing the provisions of the 300 Foot Rule. The LPSC has the authority to order that a service be changed, and it may penalize an errant utility service provider if the provider is found to have either directly violated the 300 Foot Rule or circumvented the rule in the placement of the point of connection.

On appeal, Concordia and the LPSC contend that the district court erred in reversing LPSC Order No. U-32980 and reinstating the recommendation of the ALJ. Thus, we must consider whether LPSC Order No. U-32980 is arbitrary and capricious.

The applicable standard of review when considering whether a decision of the LPSC is arbitrary and capricious has been stated several times by this court. In Entergy Louisiana, LLC v. Louisiana Public Service Commission, 990 So.2d at 723, we opined:

This court has held that an order of the LPSC should not be overturned unless it is arbitrary and capricious, a clear abuse of authority, or not reasonably based upon the factual evidence presented. Entergy Gulf States, Inc. v. Louisiana Public Service Comm’n, 2000-0336, p. 4 (La. 8/31/00), 766 So.2d 521, 525; Entergy Gulf States, Inc. v. Louisiana Public Service Comm’n, 1998-1235, p. 6 (La. 4/16/99), 730 So.2d 890, 897; Entergy Louisiana, Inc. v. Louisiana Public Service Comm’n, 1998-0475, p. 4 (La. 9/9/98), 717 So.2d 217, 218. The function of the reviewing court is not to reevaluate and re-weigh the evidence, or to substitute its judgment for that of the Commission. Washington St. Tammany Electrical Coop., Inc. v. Louisiana Public Service Comm’n, 1995-1932, p. 5 (La. 4/8/96), 671 So.2d 908, 912. The Commission is entitled to deference in its interpretation of its own rules and regulations, though not in its interpretations of statutes and judicial decisions. Alma Plantation v. Louisiana Public Service Comm’n, 1996-1423, p. 4 (La. 1/14/97); 685 So.2d 107, 110. The Commission’s interpretation and application of its own orders deserve great weight because the Commission is in the best position to apply them. Dixie Electric Membership Corp. v. Louisiana Public Service Comm’n, 441 So.2d 1208, 1211 (La. 1983).

Additionally, “[a] person attacking a [LPSC] order bears a high burden of demonstrating that it is defective. Louisiana Power & Light Co. v. Louisiana Public Service Com’n, 609 So.2d 797, 799-800 (La. 1992).” Washington St. Tammany Elec. Coop., Inc. v. Louisiana Public Service Comm’n, 07-399, p. 7 (La. 6/29/07), 959 So.2d 450, 455.

In this case, the parties have stipulated that the meter in UPS’s facility is located at a distance outside of 300 feet from Concordia’s lines. Thus, the relevant inquiry is whether or not the placement of the meter was an intentional circumvention of the 300 Foot Rule, The LPSC determined that it-was. We must determine whether this decision of the LPSC is arbitrary and capricious.

This court has reviewed the evidence. Based upon- the record, and mindful that we are not to reevaluate the evidence and substitute our judgment for the findings of LPSC, we do not find the decision of the LPSC to be arbitrary and capricious. Un-disputedly, the record contains documentary evidence and contradicting testimony requiring credibility determinations and inferences. However,, we conclude that the LPSC’s decision that Entergy acted in violation of the 300 Foot Rule is “reasonably based upon the factual evidence presented.” Entergy Louisiana, LLC v. Louisiana Public Service Comm’n, 990 So.2d at 723.

Whether the placement of UPS’s building was intentional is disputed by the parties. Entergy maintains UPS’s Project Manager, David Grant, working with a third party architect, provided UPS with three alternative placements of the building on the ten-acre tract. The UPS home office had the ultimate decision on where the building was to be placed, and the 300 Foot Rule was not a factor. Likewise, it was irrelevant whether Concordia or En-tergy were going to provide service to the facility. Entergy denied being involved in any way in UPS’s decision on the placement of the building.

Entergy also denies that the building was moved in order to manipulate the ultimate meter location. Mr. Grant explained that UPS wanted the building to be located. 100 feet from the Hanger Road boundary, to provide ample .room for ^expansion in the future, but its placement at a precise distance from Hanger Road was not critical. Additionally, Entergy discounts the discrepancy between the intended 100 feet and actual 125 feet distance as being a “mistake.” Mr. Grant’s measurements were done before -the property was cleared, and he did not know exact boundary lines. He made the measurement to the best of his ability, given his knowledge, the terrain, and his physical restrictions.

In addition to the placement of the building, the parties also dispute the purpose for the placement of the meter. En-tergy maintains it established through Mr. Grant’s testimony that the placement of the meter was based upon UPS’s legitimate business and safety considerations. Mr. Grant testified that he worked with a third party electrician, and his decision on the meter location was dictated by the placement of a 44-inch transformer, .which necessarily had to account for equipment traffic, machinery, offices,-and areas of moisture. According to Mr. Grant, this was the “one and only place” that the meter could be located so as not to interfere with UPS business and safety needs. Mr. Grant denied that the 300 Foot Rule was a consideration.

Concordia counters that Entergy acted in disregard for the 300 Foot Rule and did nothing to ensure its compliance even before getting UPS to execute the letter of intent. Despite this lack of knowledge, En-tergy’s customer service specialist, Ms. Theresa Johns, testified that-she was “certain” that Entergy could serve UPS, or, she was at least “hopeful” to do so without any apparent basis for such optimism. Given the presence of Concordia’s existing lines on'two sides of the ten-acre tract, Concordia questioned Entergy’s decision to rebuild one. of its single-phase lines, which was over a mile away from the UPS property, convert it to a three-phase line, and then extend the three-phase line 2,500 to 3,000 feet -with the mere hope of serving the UPS facility.

ImTurning to the placement of the building, Concordia directs this court’s attention to the plats of survey admitted into evidence which clearly show that nearly the entire UPS facility is located within 300 feet of Concordia’s lines. Although Mr. Grant was adamant that this measurement was of no concern to UPS, Concordia and the LPSC point out Mr. Grant’s inability to explain the, discrepancy between UPS’s initial decision to locate the building within 100 feet of Hanger Road and its ultimate placement 125 feet from Hanger Road other than that it was a “mistake,” Had the building been positioned 100 feet from Hanger Road, but for a “mistake,” the entire building, and thus, necessarily the meter, would have been within 300 feet of Concordia’s lines.

The testimony of Ms. Johns is also cited to refute Mr, Grant’s testimony that the 300 Foot Rule was not a factor in the building’s placement. According to Ms. Johns, once she was aware of the presence of Concordia’s electric lines, she informed UPS that Entergy could not serve them if the meter was located within 300 feet of that line. Additionally, Ms. Johns testified that Mr. Grant told her that he was aware of the 300 Foot Rule* having spoken tp employees of Concordia. Therefore, the record reflects that the personnel involved in making the decision were aware of the 300 Foot Rule, were aware of the existing lines, and were aware of the consequences thereof.

Apart from whether the ultimate building placement was a “mistake,” Concordia and the LPSC dispute that the location of the meter itself—in a twelve foot by twelve foot by six foot triangle, located directly in the middle of the building, and in the only portion of the building located further than 300 feet from Concordia’s lines—was by mere coincidence. They contend that this is further evidence of an intentional placement so as to locate the meter beyond 300 feet of Concordia’s lines.

Inin addition to disputing Mr. Grant’s stated reasons for UPS’s placement of the building, Concordia and the LPSC also dispute the purported reasons of business and safety concerns expressed by Mr. Grant relative to the meter placement. Although Mr. Grant first insisted that the meter location was “the one and only place”- that it could go, they argue that he later admitted that the meter could have been placed at other locations in the building- and still have been away from the traffic of which he expressed concern. It is asserted that “Mr. Grant’s refusal to admit knowledge of the 300 Foot Rule, his explaining- the location of the building as a mistake[,] and his refusal to concede the obvious on re-cross[,] all suggest a lack of credibility!!.]” Further, Ms. John’s “certainty,” coupled with Mr. Grant’s testimony, demonstrate “that a decision was made to locate this building and this meter so as to circumvent the 300 Foot Rule.” To conclude otherwise, they argue, • “requires a belief that a comedy of mistakes and errors resulted in Entergy’s ability to serve the load in question and that Entergy [constructed] thousands of feet of line to serve this load with the mere hope that the comedy would develop.”

The LPSC’s authority to protect against the duplication of electric ■ lines and its authority to determine whether a meter placement was done to circumvent the 300 Foot Rule were considered by this court in Washington St. Tammany Electric Cooperative, Inc. v. Louisiana Public Service Commission, 959 So.2d 450. In that case, similar to the case at bar, Washington St. Tammany Electric Cooperative, .Inc. (WST) argued that valid reasons existed for the choice of a meter location a distance away from a sewer lift station which resulted in the meter being located in excess of 300 feet from an existing electric line of its competitor. Notably, there was no admission, testimony, or other direct evidence that the meter was | ^purposefully located in order to circumvent the 300 Foot Rule. The LPSC rejected WST’s purported reasons, and this court upheld the decision of the LPSC finding:

While the Commission does not have the authority to tell private individuals where they can install their meters, the Commission has the explicit authority to prohibit the needless duplication or extension of facilities, and it currently does that by enforcement of the 300 Foot Rule. Pursuant to General Order dated May 26, 2004, the Commission may determine whether a meter location has been selected to circumvent the 300 Foot Rule, regardless of whether that selection was made by the utility or the customer. Further, the Commission can, without question, prevent an electric utility from providing service to a point of connection that circumvents the 300 Foot Rule. ... The Commission found that the meter location was chosen in an attempt to circumvent the 300 Foot Rule, and there is a reasonable eviden-tiary basis in the record to support this finding.

Id. at 459.

In the instant case, the LPSC reached differing conclusions from those of the ALJ and the district court. The LPSC considered that had the UPS building been positioned within 100 feet of Hanger Road, as was the design, the entire building would have been within 300 feet of Concor-dia’s lines, which would have given Concor-dia exclusive rights to provide electrical services to the facility. Moreover, whether or not it was due to a “mistake,” the actual placement of the meter in a twelve foot by twelve foot by six foot triangle, in the center of the UPS building, was the only location it could have been placed and still be outside of 300 feet of Concordia’s lines. Any other location of the meter would have been within 300 feet of Concordia lines and would have given Concordia an exclusive right to serve the UPS facility. The LPSC, using its own judgment and evaluation of the evidence, unanimously rejected the reasons presented by Entergy and found that the evidence did support a conclusion that the 300 Foot Rule was intentionally circumvented. We find that there was a reasonable evidentiary basis for the decision of the LPSC. Thus, Enter-gy has not met its high burden of proving that the decision of the LPSC was arbitrary and capricious.

^CONCLUSION

For the reasons set forth above, we find that Louisiana Public Service Commission Order No. U-32980 is not arbitrary and capricious and that there is a reasonable basis therefor in the record.

DECREE

For the reasons stated herein, the judgment of the district court is reversed, and Louisiana Public Service Commission Order No. U-32980 is hereby reinstated. All costs are assessed against Entergy Louisiana, LLC.

REVERSED.

      . This court's appellate jurisdiction over Louisiana Public Service Commission proceedings is conferred by La.Const. art. 4, § 21(E) which provides:
      Appeals, Appeal may be taken in the manner provided by law by any aggrieved party or intervenor to the district court of the domicile of the commission. A right of direct appeal from any judgment of the district court shall be allowed to the supreme court, These rights of appeal shall extend to any action by the commission, including but not limited to action taken by the commission or by a public utility under the provisions of Subparagraph (3) of Paragraph (D) of this Section.

      . Louisiana Revised Statutes 45:123(A) provides;
      A. (1) No electric public utility shall construct or extend its facilities or furnish or offer to furnish electric service to any point of connection which at the time of the proposed construction, extension, or service is being served by, or which is not being served but is located, within three hundred feet of an electric line of another electric public utility, except with the consent in writing of such other electric public utility. However, nothing contained herein shall preclude:
      (a) Any electric public utility from extending service to an applicant for service at an unserved point of connection located within three hundred feet of an existing electric line of such electric public utility, unless;
      (i) Such line was not in operation on April 1, 1970, and
      • (ii) The point of connection. is located within three hundred feet, of an existing electric line of another electric public utility, which line was in operation on said date, or
      (b) Any electric public utility from extending service to its own property or to another electric public utility for resale.

      . The LPSC General Order No. R-28269(D) provides in pertinent part:
      Intent of Commission:
      It is the determination of this Commission that, in order to effect economies in the services of electricity, and thereby maintain reasonable rates, uneconomic and wasteful practices should be prohibited. As a result, the needless paralleling and duplication of existing transmission or distribution lines or the extensions thereof, by electric public utilities in order to serve customers readily accessible to like facili- ■ ties of an electric public utility already providing service in the immediate area, should be discouraged.
      Consistent with its purpose, the LPSC General Order No. R-28269, Ordering Section (3)(I) further provides: "Where necessary, the Commission shall determine whether the choice of the meter location was intended to circumvent this General Order prohibiting the needless duplication or extension of facilities,”

      . Entergy and Concordia reached a stipulation during the course of the LPSC proceedings, once surveys had been conducted, that the location of the UPS meter was not .within 300 feet of Concordia’s electric lines.

      . “Point of Connection” is defined as the "meter location or point where electric public utility facilities meet the facilities owned by the customer.” LPSC General Order No. R-28269, Ordering Section (2)(h).

      . This is true unless one of the lines was in operation as of April 1, 1970, in which instance, that provider has the exclusive right to serve the customer. La.R.S. 45:123(A)(1)(a)(i).