IN THE SUPREME COURT OF FLORIDA

CPV GULFCOAST, LTD.,

Appellant, CASE NO.: SC03-66Lower Tribunal Case Nos.:

vs. 020262-EI and 020263-EI

LILA A. JABER, CHAIRMAN,ET AL.,

Appellee.______________________________/

____________________________________________

On Appeal from an Order of theFlorida Public Service Commission

____________________________________________

Initial Brief of CPV Gulfcoast, Ltd.____________________________________________

Jon C. Moyle, Jr.Florida Bar No. 727016Cathy M. SellersFlorida Bar No. 0784958Moyle, Flanigan, Katz, Raymond & Sheehan, P.A.The Perkins House118 North Gadsden StreetTallahassee, FL 32301Telephone: (850) 681-3828Facsimile: (850) 681-8788

Attorneys for CPV Gulfcoast, Ltd.

TABLE OF CONTENTS

Page

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . EXPLANATION OF RECORD REFERENCES . . . . . . . . . . . . . . . . . . . . . . vi

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE AND THE FACTS . . . . . . . . . . . . . . . . . . . . 4

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

I. The PSC Abused its Discretion in Refusing to Sequester FPL’s Witnesses, as Required by Section 90.616, F.S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

A. The Evidence Code Applies to PSC ProceedingsWhich Are Conducted Under Chapter 120, F.S. . . . . . . . . 22

B. No Exception to the Sequestration Rule Exists to Allow FPL’s Expert Witnesses to Avoid Sequestration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

C. All of FPL’s Witnesses Did Not and CouldNot Serve as “Client Representatives” . . . . . . . . . . . . . . . 26

D. That Each FPL Witness Knew About What Every Other FPL Witness Would Testify is Not a Legally Cognizable Basis for Refusing to Invoke the Sequestration Rule . . . . . . . . . . . . . . . . . . . . 27

E. The PSC Lacks Discretion to Refuse toInvoke the Sequestration Rule on Efficiency

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Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

F. The PSC Erred in Refusing to Invoke the Sequestration Rule . . . . . . . . . . . . . . . . . . . . . . . . . . 30

II. The PSC Abused its Discretion in Striking Two CPV Witnesses because Prefiled Testimony was not Submitted for Those Witnesses . . . . . . . . . . . . . . . . . . . . . . . . 32

III. The PSC Erred in Quashing the Trial Subpoena Served by CPV on FPL Officer Paul Evanson . . . . . . . . . . . . . . 41

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

CERTIFICATE OF SERVICE

CERTIFICATE OF FONT

TABLE OF APPENDICES

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TABLE OF CITATIONS

Cases: Page

Oliver B. Cannon & Son, Inc. v. Fidelity & Cas. Co. of New York519 F. Supp. 668, 678 (D. Del.1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Binger v. King Pest Control401 So. 2d 1310, 1314 (Fla. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 36

City of Miami Beach v. Washburn88 So. 2d 555 (Fla. 1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Seaboard Air Line Ry. v. Smith53 Fla. 375, 43 So. 235 (1907) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Spencer v. State133 So. 2d 729, 731 (Fla. 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 20, 31

State v. Goode830 So. 2d 817, 824 (Fla. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

State v. Tascarella580 So. 2d 154 (Fla. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Baker v. Air-Kaman of Jacksonville, Inc.510 So. 2d 1222 (Fla. 1st DCA 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Department of Rehabilitative Serv. v. Brooke573 So. 2d 363 (Fla. 1st DCA 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Duarte v. State598 So. 2d 270 (Fla. 2d DCA 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Goodman v. West Coast Brace & Limb, Inc.580 So. 2d 193, 194, 195 (Fla. 2d DCA 1991) . . . . . . . . . . . . . . . . . . . . . . 17, 24

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State v. Plachta415 So. 2d 1356, 1358 (Fla. 2d DCA 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 40

State v. Schwartz605 So. 2d 1000 (Fla. 2d DCA 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Lugo v. Fla. East Coast Ru. Co.487 So. 2d 321, 323 (Fla. 3d DCA 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Pascual v. Dozier771 So. 2d 552, 554 (Fla. 3d DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Taylor v. State643 So. 2d 1122 (Fla. 3d DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Allstate Insurance Co. v. Mazzorana731 So. 2d 38 (Fla. 4th DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Black v. Sears, Roebuck & Company621 So. 2d 712 (Fla. 4th DCA 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Dardashti v. Singer407 So. 2d 1098, 1099, 1100 (Fla. 4th DCA 1982) . . . . . . . . . . . . . . . . . . 20, 31

Jones v. Div. of Admin.351 So. 2d 365, 366 (Fla. 4th DCA 1977) . . . . . . . . . . . . . . . . . . . . . . . . 17, 24

Keller Industries v. Volk657 So. 2d 1200, 1202-03 (Fla. 4th DCA 1995) . . . . . . . . . . . . . . . . . . . . . . . . 37

Palm Beach Newspapers, Inc. v. Burk471 So. 2d 571, 578 (Fla. 4th DCA 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Thomas v. State372 So. 2d 997, 999 (Fla. 4th DCA 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

State v. Farley

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788 So. 2d 338, 340 (Fla. 5th DCA 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

In re: Application for a Rate Increase by General DevelopmentUtilities, Inc. Docket Nos. 911030-WS, 911067-WS, Order No. PSC-92-0326-PCO-WS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

In re: Application for Increase in Rates and Service AvailabilityChanges in Lee County by Gulf Utility CompanyDocket No. 960329-WS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

In re: Petition for Determination of Need for Proposed ElectricalPower Plan in Manatee County by Florida Power & Light CompanyDocket No. 020263, Order No. PSC-02-0992 PCO-EI . . . . . . . . . . . . . . . . . . . 10

In re: Petition for Determination of Need for Proposed ElectricalPower Plan in Martin County by Florida Power & Light CompanyDocket No. 020262, Order No. PSC-02-0938-PCO-EI . . . . . . . . . . . . . . . . . . . 7

Constitutional Provisions, Statutes, Rules & Orders

Fla. R. Civ. P. 1.330 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Fla. R. Civ. P. 1.330(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 45

Fla. R. Civ. P. 1410(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

§ 90.105, Fla. Stat. (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

§ 90.616, Fla. Stat. (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 16, 18, 19

§ 90.616(2)(b), Fla. Stat. (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

§ 90.616(2)(c), Fla. Stat. (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

§ 90.702, Fla. Stat. (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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§ 90.955, Fla. Stat. (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 § 120.569(2)(f) and (g), Fla. Stat. (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 44

§ 120.569(2)(k), Fla. Stat. (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

§ 120.569(2)(l), Fla. Stat. (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

§ 120.57(1)(b), Fla. Stat. (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

§ 120.68(7)(c), Fla. Stat. (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

§ 120.68(7)(e), Fla. Stat. (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 32, 41

§ 403.519, Fla. Stat. (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6, 9, 10

Fla. Admin. Code R. 25-22.048 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Fla. Admin. Code R. 25-22.080 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Fla. Admin. Code R. 25-22.082 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5

Fla. Admin. Code R. 25-22.082(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Fla. Admin. Code R. 25-22.082(4)(a)1.,2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Other Authorities

Charles W. Ehrhardt, Florida Evidence. § 702.1 (2002 ed.) . . . . . . . . . . . . . . . . 25

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EXPLANATION OF RECORD REFERENCES

The record in this case consists of 21 volumes of documents having

consecutively numbered pages that will be referenced by the notation “(R. [Page

#],” 13 volumes of transcripts that will be references by the notation “(T. [Volume

#] at [Page #]),” and a Table of Appendices accompanying this Brief that are

referenced by the notation “A. [_______]).”

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INTRODUCTION

The Florida Public Service Commission (“Commission,” “PSC”) conducted

a Determination of Need proceeding (hereafter “need determination”) pursuant to

Section 403.519, Florida Statutes (“F.S.”), for two Petitions filed by Florida Power

& Light Company (“FPL”). FPL sought a determination that the construction of

additional electrical generating capacity proposed by FPL is needed. Section

403.519 provides, in pertinent part, that the PSC must consider, when deciding a

need determination case, whether an electrical generating capacity proposal is the

“most cost-effective alternative.” To implement this requirement, the PSC adopted

Rule 25-22.082, Florida Administrative Code (“F.A.C.”), commonly called the “Bid

Rule,” which requires an investor-owned utility, like FPL, to issue a Request for

Proposal (“RFP”) to solicit proposals for the addition of new generating capacity at

its existing or new facilities.

CPV Gulfcoast, Ltd. (“CPV”), an independent power producer in the

business of developing electric generating capacity in Florida, submitted a proposal

and participated in FPL’s RFP process. FPL did not select any proposals

submitted by competing bidders and instead declared itself the “winner” of its own

RFP. FPL designed an RFP process that allowed it to review competing proposals

before finalizing its own bid, did not ascribe weight or other objective measurable

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criteria to any RFP components, and made FPL the judge of competing bids and its

own self-build options.

CPV and other competitors who had submitted proposals to the RFP

intervened in FPL’s need determination proceeding before the PSC. A key issue in

the need determination proceeding was whether FPL conducted the RFP process in

a fair manner so that the outcome would be that the most cost-effective generating

capacity proposal was selected. The intervenors complained that the manifold

deficiencies in the entire RFP process tainted the evaluation process and resulted in

FPL’s selection of an alternative – the “self-build option” – that is not the most

cost- effective.

CPV participated in the need determination hearing to establish that, among

other things, FPL did not conduct the RFP process fairly, that FPL declared itself

the “winner” of the RFP process based on factors other than its own RFP

responses, and that FPL holds a long-seated desire to prevent competitors from

conducting business within its service territory. CPV listed three key witnesses it

intended to call to testify in the need determination hearing to prove these things.

However, at FPL’s behest, the PSC did not allow these three witnesses to testify.

Two witnesses were stricken because CPV was unable to prefile written testimony

for them, even though CPV did not have any means of forcing them to provide

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prefiled testimony because they were not employed by CPV or otherwise under its

control or direction; if fact, the witnesses were being called to testify pursuant to

trial subpoena. In addition to striking these two key witnesses, the Commission also

quashed a trial subpoena that CPV served on an FPL company official who had

made the final decision with respect to select FPL’s self-build option.

Once the Commission denied CPV the ability to present these witnesses’

testimony, CPV was forced to try its case largely through cross examination of

FPL’s witnesses. To prevent FPL’s witnesses from coloring each other’s

testimony, CPV moved to invoke the Rule of Sequestration, pursuant to the Florida

Evidence Code, Chapter 90, F.S., under which witnesses are not permitted to

remain in the hearing room to hear the testimony of the other witnesses. Upon

FPL’s objection, the Commission denied CPV’s sequestration request without

making any factual or legal determinations to support its decision, and offered no

explanation other than it was “not customary” to sequester witnesses in PSC

proceedings. Following the proceeding, the PSC granted FPL’s need

determination.

Chapter 120, F.S., and established case law make clear that CPV, as a party

to the need determination proceeding, was entitled to full and fair participation in the

hearing. CPV contends that the Commission denied this right when it struck CPV’s

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witnesses, denied CPV the ability to present testimony of the key FPL decision

maker in the need determination process, and then refused CPV’s request to invoke

the Witness Sequestration Rule.

Numerous errors were committed during this proceeding, any one of which

warrants reversal of the PSC’s grant of the need determination. When these errors

are taken in toto and considered under Florida statutory and case law, the

inescapable conclusion is that FPL’s need determination process, from start to

finish, was tainted with error that resulted in CPV being denied full and fair

participation at the hearing. On these grounds, this Court should reverse the Public

Service Commission’s Order Granting Determination of Need entered in this

proceeding and remand this cause to the PSC for conduct of a fair need

determination hearing.

STATEMENT OF THE CASE AND THE FACTS

In August 2001, FPL issued a Request for Proposals (“RFP”) for capacity

resources to meet an anticipated need for additional electrical generating capacity.

This initial RFP solicited proposals to provide approximately 1,750 megawatts

(“MW”) of electrical generating capacity to be added at FPL’s Martin, Ft. Myers,

and Midway electrical generating facilities. FPL’s RFP did not identify its Manatee

1 CPV Cana, Ltd., was a party to the Determination of Need proceeding before thePSC, by virtue of having submitted a proposal and paid a $10,000 review fee inresponse to the August 2001 RFP, and having been granted intervention. CPV Canalater was dismissed as a party to the proceeding because it did not resubmit itsproposal or submit a new one when FPL conducted the “supplemental” RFP. (R.2921).

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electrical generating facility as one of the facilities at which it planned to add

capacity, nor did it solicit alternatives for additional capacity at its Manatee facility

as part of the August 2001 RFP. (R. 615, 619, 667). PSC Rule 25-22.082,

F.A.C., known as the Bid Rule, requires FPL to identify the utility’s next planned

generating unit and its proposed location.

A number of entities submitted proposals in response to the August 2001 RFP.

(R. 56). Appellant CPV Gulfcoast and its sister company, CPV Cana, Ltd.1 (“CPV

Cana”), obtained copies of the RFP. CPV Cana, which was in the process of

developing a 250 MW electric generating facility in St. Lucie County, Florida,

submitted a proposal in response to the RFP, proposing to provide a portion of the

generating capacity sought by FPL for its Martin facility. (R. 1082). CPV Gulfcoast

was in the process of developing a 250 MW electrical generating facility in Manatee

County, Florida. Due to the substantial distance between CPV Gulfcoast’s facility

and the facilities identified in FPL’s RFP and related economic considerations, CPV

Gulfcoast did not submit a response. (R. 1385, 1388).

2 These Petitions subsequently were supplanted by Amended Petitions forDetermination of Need filed by FPL on July 16, 2002, after completion of its“supplemental” RFP process. (R. 1851, 1871).

3 FPL’s Martin Unit 8 expansion project and Manatee Unit 3 project each wereproposed to consist of 789 MW of additional electrical generating capacity.

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In February 2002, FPL rejected all competing proposals and instead declared

itself the winner of its RFP to meet the projected capacity need. (R. 56-60) Also,

FPL for the first time announced that it anticipated a capacity need of approximately

2,200 MW instead of only the 1,750 MW capacity stated in the August 2001 RFP.

FPL further announced that it would be adding approximately 1,100 MW of new

generating capacity at its Manatee facility. FPL’s August 2001 RFP did not identify

the Manatee facility as a location for which additional capacity was planned, despite

the Bid Rule’s express requirement for all facilities at which generating capacity will

be added to be identified and proposals solicited for that particular facility. (R. 67).

Rule 25-22.082(4), F.A.C.

In March 2002, FPL filed two Petitions for Determination of Need2, requesting

the PSC to grant a Determination of Need pursuant to Section 403.519,F.S., and

Rule 25-22.082, for the proposed additional electrical generating capacity at its

Martin and Manatee facilities.3 (R. 44, 65). The PSC consolidated these need

determination proceedings. (R. 2036).

4 CPV also filed a Petition for Waiver of Rule 25-22.082(8), F.A.C., arguing that underthe circumstances, the PSC should waive the requirement that CPV have submitted anRFP in order to intervene into the need determination proceeding, because the rule, asstrictly applied to CPV, would violate principles of fairness. But for FPL’s failure tocomply with the Bid Rule, CPV would have submitted a response to the RFP. Thepetition subsequently was determined moot (R. 1776, 2035) after FPL issued a“supplemental” RFP seeking proposals for the provision of the additional generatingcapacity at the Manatee facility. CPV submitted a proposal in response to the“supplemental” RFP. CPV was granted permission to intervene on July 12, 2002, byOrder PSC-02-0938-PCO-EI. (R. 1841).

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Many entities that had responded to the August 2001 RFP, including CPV

Cana, were permitted to intervene and participate as parties in the need determination

proceedings. Rule 25-22.082(8), F.A.C., provides that potential suppliers of

electrical generating capacity who were not participants in an RFP cannot participate

in the need determination proceeding to contest the utility’s capacity selection

process. Under this provision, CPV Gulfcoast arguably was not entitled to

participate as a party because it had not responded to the RFP, even though its

decision not to submit a proposal was solely because FPL had not indicated in the

RFP that it planned additional generating capacity at its Manatee facility. Given the

circumstances, CPV strongly disputed the fairness of the RFP process and

petitioned to intervene in the need determination proceeding.4 CPV Gulfcoast

posited that even though it had not submitted a proposal, its substantial interests

would be affected because the PSC’s need determination proceeding would

5 For example, in its RFP, FPL sought proposals to convert two combustion turbinesat its Martin facility into one combined cycle unit (consisting of a combustion turbinegenerator and a steam turbine generator) and to construct a new combined cycle unit.However, in its self-build option, FPL proposed to itself construct four combustionturbine generators with only one steam turbine generator, at a substantially lower costthan would be required to construct the capacity described in its RFP.

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consider FPL’s proposed self-build option for capacity at the Manatee facility, for

which CPV would have bid, had the RFP identified the Manatee facility as a site for

new generation capacity.

CPV was not the only entity that complained about the manner in which FPL

conducted the RFP process. Several parties that submitted responses to the RFP

intervened in the need determination proceeding, arguing that FPL’s failure to

identify the facilities at which it needed additional capacity and the true amount of

needed capacity violated the clear terms of the Bid Rule, which requires each RFP,

at minimum, to describe the utility’s next planned generating unit(s), its proposed

location, and the proposed MW of the added capacity. Fla. Admin. Code R. 25-

22.082(4)(a)1.,2. Several intervenors argued that FPL applied inappropriate criteria

in evaluating the proposals and changed key aspects of the RFP, including the

capacity description, type of capacity proposed,5 projected costs of constructing

the capacity, and the heat rate, availability values, and outage rates. (R. 933, 940,

973, 977, 1016, 1067-1072). In essence, argued these parties, the criteria in FPL’s

6 FPL requested the PSC to substantially shorten the timeframes established in Rule25-22.080 for conducting need determination proceedings, despite that FPL wassoliciting new proposals. In fact, FPL’s “supplemental” RFP stated that in order fora proposal to be considered, it must be submitted in response to the “supplemental”RFP, and that all responses to the original RFP were null.

7 Section 403.519, F.S., establishes the statutory framework for the PSC’sdetermination of need for electrical power plants that are subject to the FloridaElectrical Power Plant Siting Act. Section 403.519 in pertinent part, provides: “[i]n

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August 2001 RFP were “moving targets” that FPL substantially changed once it had

received their proposals, and that FPL had then rejected their proposals and chosen

the self-build option.

In an effort to placate the parties’ significant concerns about the fundamental

fairness and accuracy of the RFP process, in April 2002, FPL obtained an

emergency waiver of the timeframes and deadlines in the Bid Rule so that FPL could

conduct what it termed a “supplemental” RFP.6 (R. 1703). FPL’s “supplemental”

RFP identified the Manatee facility for capacity addition and projected additional

capacity needs of approximately 1,900 MW. (R. Ex. 3, App. F, p. 7). CPV and

others responded to the “supplemental” RFP.

Following the “supplemental” RFP process, FPL again declared itself the

winner, announcing that it had chosen the “self-build” option. (R. 1866, 1884). The

ostensible ground on which FPL selected its own proposals was that they were the

most cost-effective alternative, as required by Section 403.519, F.S.7 CPV

making its determination [of need], the commission shall take into account the need forelectric system reliability and integrity, the need for adequate electricity at a reasonablecost, and whether the proposed plant is the most cost-effective alternative. ...” Fla.Stat. §403.519 (2002).

8 The PSC does not have any rule expressly or implicitly requiring the submittal ofprefiled testimony in PSC proceedings. The PSC, at one time, had such a rule in place(Rule 25-22.048, F.A.C.) but the rule was repealed on May 3, 1999 and the PSC hasnot subsequently adopted any rules requiring prefiled testimony.

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intervened and was granted party status in the proceeding.(R. 1841).

On July 23, 2002, the PSC issued an Order Consolidating Need Determination

Proceedings, Approving Proposal for Handling Confidential Bid Information and

Establishing Procedure (“Order Establishing Procedure”). (R. 2036). The final

hearing was set for October 2, 3, and 4, 2002. The Order directed the parties to

submit prefiled testimony and exhibits for witnesses they intended to sponsor, and

stated that “[f]ailure of a party to timely prefile exhibits and testimony from any

witness in accordance with the foregoing requirements may bar admission of such

exhibits and testimony.”8 Order No. PSC-02-0992-PCO-EI (emphasis added).

Pursuant to the established time schedule, prefiled testimony was due on or before

August 20, 2002.

In Responses to Interrogatories served on FPL on August 15, 2002, CPV

identified four fact witnesses it planned to call at the need determination hearing,

Mr. Michael Caldwell, Mr. Michael Green, Mr. Sam Waters, and Mr. Douglas Egan,

9 In an Affidavit attached to CPV’s Response to FPL’s Motion in Limine, Mr. Greenswore and attested that he did not know his availability to testify at the hearing until theweek of September 12, 2002. The affidavit also stated that he would be testifyingpursuant to a trial subpoena. (R. 2899, A. 13, p. 34-36).

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and the subject matter about which each would be called to testify. (A. 1).

Specifically, Michael Caldwell, a former FPL employee, was listed as a fact witness

who would testify about FPL’s efforts to prevent competing electric generating

interests from becoming established in Florida. Michael Green, Vice President of

Duke Energy North America, was listed as a fact witness who would testify about

the fundamental lack of fairness in FPL’s RFP process and related matters. (R.

2869, A. 2). Additionally, in its Prehearing Statement, CPV again listed Mr.

Caldwell and Mr. Green as witnesses. CPV’s Prehearing Statement also listed Mr.

Paul Evanson as an adverse witness, though CPV had informally advised FPL well

before this point that it wished to call Mr. Evanson as a witness. (R. 2869). Because

neither Mr. Caldwell nor Mr. Green were CPV employees, CPV did not have

control over their availability to testify. For this reason, CPV was not able to prefile

testimony for these witnesses.9

On September 5, 2002, FPL filed a Motion in Limine to exclude Mr. Green and

Mr. Caldwell from testifying for CPV at the hearing. FPL argued that CPV’s

inability to provide prefiled testimony would place FPL at an “unfair disadvantage”

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because it would have “no opportunity to discover the positions of Mr. Green and

Mr. Caldwell . . . .” However, as evidenced by the attached notices of taking

deposition, FPL availed itself of the opportunity, well in advance of the hearing, to

effect discovery on these witnesses. (A. 3, A. 4). Further, FPL was notified of

CPV’s intent to call these witnesses for a full month before it set their depositions.

On September 19, 2002, three weeks before the hearing, the PSC excluded the

testimony of CPV witnesses Green and Caldwell. Although Order cites

“inconvenience to the parties,” the only party claiming inconvenience was FPL,

although it already had deposed one of the witnesses and had scheduled the

deposition of the other when the Order was issued. The Order stated that the

probative value of the testimony was outweighed by the potential for unfair

prejudice. (R. 3348). Accordingly, CPV was forced to present its case in chief at

the hearing without the benefit of testimony from these two key witnesses.

In the course of discovery, CPV propounded Interrogatories on FPL, several

of which requested FPL to identify FPL employees who had made key decisions

regarding the RFP and “supplemental” RFP, including the “ultimate” decision that

FPL “won” the supplemental RFP. (R. 3831). FPL identified its President, Paul

Evanson, as the ultimate decision maker who had decided FPL had “won” its RFP

process. CPV deposed Paul Evanson and served a trial subpoena on him at the

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deposition. FPL moved to quash the subpoena, maintaining that Mr. Evanson’s

involvement in the case was “limited” – even though FPL previously had identified

him as having made the ultimate decision to choose FPL’s self-build options. CPV

argued that the subpoena had been lawfully issued, was not unreasonably broad,

and did not require the production of irrelevant material, so that the statutory

conditions in Section 120.569(2)(l), F.S., for quashing a subpoena, were not

present. Nevertheless, the PSC quashed the subpoena, leaving CPV unable to call

Mr. Evanson to testify as an adverse witness.

The need determination hearing was held on October 2, 3, and 4, 2002.

Eighteen (18) issues in the proceeding were identified as disputed issues of material

fact. (R. 3099, 3733) CPV called one witness on direct but could not call Messrs.

Evanson, Green or Caldwell, all of whom could have provided key information to

support CPV’s contentions in the case.

CPV, already limited in its case in chief, moved pursuant to invoke the

Sequestration Rule under Section 90.616, F.S., to sequester FPL’s witnesses. FPL

opposed, and the PSC denied, this request. The PSC provided no factual or legal

bases for its decision, other than to observe that sequestering witnesses was “not

consistent” with PSC practice and the circumstances did not warrant the Rule being

invoked. Consequently, all of FPL’s witnesses heard the direct and cross

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examination testimony of every other FPL witness.

Following the hearing and filing of Posthearing Statements, on December 10,

2002, the PSC entered an Order Granting Determination of Need for the Manatee

Unit 3 and Martin Unit 8 facilities. CPV filed a Notice of Appeal in this Court on

January 8, 2003.

SUMMARY OF THE ARGUMENT

CPV Gulfcoast, as a party to this need determination proceeding on the

addition of electrical generating capacity at FPL’s Martin and Manatee facilities, was

entitled to fully and fairly participate in the need determination hearing. At FPL’s

request, the PSC took several actions that deprived CPV of its right to full and fair

participation in the hearing, and these actions warrant reversal of the PSC’s Order

Granting Determination of Need and remand for the conduct of a fair hearing in

which CPV is afforded the full, fair participation to which it is entitled under Florida

law.

Specifically, the PSC denied CPV’s request to invoke the Rule of Witness

Sequestration codified in Section 90.616, F.S., notwithstanding that the Florida

Evidence Code and case law make abundantly clear that once a party requests to

invoke the Rule, only very limited circumstances justify denying invocation. Those

circumstances do not exist in this proceeding. Furthermore, because the PSC struck

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three key witnesses who CPV planned to call in its case in chief, CPV’s case

depended on its ability to effectively cross examine FPL’s witnesses. This ability

was significantly and irreparably undermined by the PSC’s refusal to invoke the

Rule, which allowed all of FPL’s witnesses to hear the direct testimony and cross

examination of every other FPL witness, and afforded clear opportunity for the

witnesses’ testimony to be improperly shaped and influenced by each other’s

testimony. The PSC acted beyond the scope of its discretion in refusing to invoke

the Rule upon CPV’s request, and its action should be reversed.

The PSC also struck two of CPV’s key witnesses it intended to call to testify

in its case in chief. Since these witnesses were not employed by CPV and not

otherwise in CPV’s control, CPV lacked the ability to compel prefiled testimony

from these witnesses. FPL was on notice regarding these witnesses almost two

months before the hearing, and had ample opportunity to conduct discovery to

prepare for hearing. Even though the witnesses were critical to CPV’s case and

were unavailable to prefile testimony due to circumstances beyond CPV’s control,

and even though the potential for unfair surprise to FPL was minimal and could have

been cured through discovery, the PSC nonetheless chose to strike CPV’s

witnesses. In addition, the PSC quashed CPV’s trial subpoena to obtain the

testimony of FPL’s key primary and decision-maker in FPL’s selection of the self-

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build option. CPV was left to proceed without the testimony of its three most

critical witnesses. The PSC’s actions striking CPV’s witnesses denied CPV its

right to present its case, and under the attendant circumstances, constituted an abuse

of discretion that should be reversed and remanded.

In sum, for the manifold reasons discussed herein, CPV Gulfcoast was not

afforded the opportunity to fully and fairly participate in this need determination,

which violated Florida law. Accordingly, the PSC’s Order Granting Determination

of Need entered in Docket Nos. 020262-EI and 020263-EI must be reversed and

remanded for the conduct by the PSC of a fair need determination proceeding in

which CPV Gulfcoast has the ability and opportunity to fully participate.

ARGUMENT

I. THE PSC ABUSED ITS DISCRETION IN REFUSINGTO SEQUESTER FPL’S WITNESSES, ASREQUIRED BY SECTION 90.616, FLORIDASTATUTES.

The standard governing this Court’s review of the PSC’s action in refusing to

invoke the Sequestration Rule is whether the PSC abused its discretion. Spencer v.

State, 133 So. 2d 729 (Fla. 1961); Fla. Stat. §120.68(7)(e). CPV contends the PSC

abused its discretion under Florida statutory and case law in refusing to sequester

-17-

the witnesses in the need determination hearing.

Sequestering witnesses has been accepted practice by Florida courts for

nearly 100 years. Seaboard Air Line Ry. v. Smith, 43 So. 235 (Fla. 1907) . As this

Court has observed, the purpose of sequestering witnesses “is to avoid the coloring

of a witness’s testimony by that which he has heard from other witnesses who have

preceded him on the stand.” Spencer v. State, 133 So. 2d. 729, 731 (Fla. 1961).

Sequestration of witnesses has great benefit as a tool to detect testimonial

inconsistencies and fabrications. Jones v. Division of Administration, 351 So. 2d

365, 366 (4th DCA 1977).

Sequestering witnesses in proceedings in which there are disputed issues of

fact – commonly referred to as “invoking the Rule” -- originated in Florida common

law. Courts have applied an “abuse of discretion” standard to review the actions or

inactions of the trier of fact with respect to sequestering witnesses. Spencer v.

State, 133 So. 2d at 731. This Court has recognized that the common practice is to

sequester witnesses when requested by a party. “Ordinarily, when requested by

either side, the trial judge will exclude all prospective witnesses from the court room

during trial.” Id. at 731 (emphasis added). In the rare situations that depart from the

ordinary, tribunals are given judicial direction in applying the limited exceptions to

the Rule: “Florida courts have established guidelines for trial courts to use in

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carrying out their discretion.” Goodman v. West Coast Brace and Limb, Inc., 580

So. 2d 193, 194 (Fla. 2d DCA 1991). Specifically, parties to a proceeding who also

are witnesses, including representatives of corporate parties, should not be

sequestered. Id. at 194-95. Also, if a witness to be sequestered is needed to

provide advice and information to counsel, and the presence of the witness in the

proceeding will not harm the party requesting sequestration, then the trier of fact

may allow the witness to remain. Id. These are the only exceptions recognized in

case law. Other than in circumstances warranting the application of these narrow

exceptions, courts have held that failure to sequester witnesses, when requested,

constitutes an abuse of the trier of fact’s discretion.

In 1990, the Florida Legislature enacted Section 90.616, F.S., the Witness

Sequestration Rule. This statute establishes the scope of witness sequestration

requirements in Florida tribunals. Section 90.616, Florida Statutes, provides:

(1) At the request of a party the court shall order, or upon its own motionthe court may order, witnesses excluded from a proceeding so thatthey cannot hear the testimony of the other witnesses except asprovided in subsection.

(2) A witness may not be excluded if the witness is:a. A party who is a natural person.b. In a civil case, an officer or employee of a party that is not a natural

person. The party’s attorney shall designate the officer or employeewho shall be the party’s representative.

c. A person whose presence is shown by the party’s attorney to beessential to the presentation of the party’s cause.

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d. In a criminal case, the victim of the crime, the victim’s next of kin,the parent or guardian of a minor child victim, or a lawfulrepresentative of such person, unless, upon motion, the courtdetermines such person’s presence to be prejudicial.

Fla. Stat. § 90.616 (2002)(emphasis added).

Pursuant to this statute, the Legislature has expressly and unequivocally provided

that unless a witness falls within one of these exceptions, witnesses who will testify

in a proceeding shall be excluded from the proceeding. This Court has recognized

the principle that “shall” typically is construed as mandatory, consistent with its

plain meaning – particularly when the term applies to action preceding the denial of a

substantial right. State v. Goode, 830 So. 2d 817, 824 (Fla. 2002). The right to

have witnesses sequestered upon request is a substantial right that bears on the

fundamental fairness of a proceeding. Id. Thus, under Section 90.616 the trier of

fact only possesses discretion to determine whether a witness falls within a statutory

exception to the Sequestration Rule; once it is the witness does not fit within an

exception, the trier of fact does not have discretion to deny a request to invoke the

Rule. Fla. Stat. §90.616, F.S. (2002).

FPL identified ten witnesses it planned to call in its case in chief. (R. 2880-

2881). Before the witnesses were sworn, CPV moved to sequester them under the

Sequestration Rule. (Vol. I, T., p. 29, lines12-20). Because three of its key

witnesses had been stricken, CPV’s case necessarily depended largely on cross

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examination; thus, it would be unfair to allow all of FPL’s witnesses to remain in the

hearing during CPV’s cross examination. Witnesses hearing CPV’s cross

examination questions and answers would be more likely to corroborate their

responses on cross examination. (Vol. I, T., p. 32, line 18-24). See, Spencer v.

State, 133 So. 2d at 731.

Case law holds that allowing witnesses to hear answers to questions posed by

an adverse party after the Rule has been invoked constitutes an abuse of discretion

by the trier of fact. The court in Dardashti v. Singer, 407 So. 2d. 1098, 1099 (Fla.

4th DCA 1982) expressed the reasons for honoring a request for witness

sequestration:

To permit one to sit and absorb the answers of the other in a case suchas this obviously facilitates the very ‘coloring of a witness’s testimony’frowned on by our Supreme Court in Spencer to the point that we findit carries the burden placed by Spencer on the complaining party todemonstrate an abuse of discretion. . . .This is especially so when, ashere, the trial judge’s order failed to make a finding as to why ‘no realprejudice would result from (failure to exclude),’ as this very courtsuggested should be done . . . .

Id. at 1100, citing Thomas v. State, 372 So. 2d 997, 999 (Fla. 4th DCA 1979)(emphasis added).

Numerous aspects of FPL’s decision to declare itself the winner of its own

RFP were extensively addressed on cross examination, and each of FPL’s

witnesses was able to hear the testimony of every other witness testifying about

10CPV acknowledged that an “abuse of discretion” standard applies in reviewing lowertribunal decisions involving invocation of the Rule. Importantly, this standard isreserved for situations in which the tribunal is considering whether there existcircumstances warranting application of an exception to the Sequestration Rule. CPVdisputes FPL’s contention that the PSC had the discretion to deny invocation of theRule on “efficiency” grounds or simply because it did not “recognize” the Rule. (T.Vol. 1 at p. 34, line 11 to p. 35 line 11).

-21-

those matters. Obviously this afforded FPL’s witnesses ample opportunity to

corroborate and “dovetail” their testimony on cross examination.

FPL opposed CPV’s motion to invoke the Rule on several grounds. It

argued that the Florida Evidence Code, Chapter 90, Florida Statutes, does not apply

to Chapter 120 administrative hearings (T. Vol 1 at p. 30, line 13-17); that even if the

Evidence Code did apply, all of FPL’s witnesses were “experts” who fell within an

exception to the Rule, (T. Vol. 1at pp. 7-14, p. 31); that all of its witnesses fell

within the exception applicable to client representatives (T., Vol. 1 p. 31, lines 15-

22); that the Rule’s purpose was not served by invocation in this case, because all

of FPL’s witnesses had prefiled testimony and “[e]very witness here knows what

every witness is going to say....” (T., Vol. 1 at p. 32, lines 3-4); and that invoking

the Rule would result in an inefficient proceeding, since questions posed to a

particular witness may ultimately be deferred to another witness, so having all

witnesses present to hear all the questions would be “more efficient.” (T. Vol. 1 at

page 33, line 24 to page 34, line 25.)10

11 It appears that the Witness Sequestration Rule rarely is invoked at the PSC; however,the agency’s “past practice” involving other parties and other issues, cannot negateCPV’s right to the sequestration benefits that have been created by Florida statute andstrictly interpreted by Florida courts.

12 This does not appear to be the basis for the Commission’s ruling on this issue ,since the Chair appeared to agree that if Chapter 120 is silent on the question,deference to the Evidence Code was appropriate. (T., Vol. 1 at p. 36, line 25 to p. 37,line 7).

-22-

The PSC summarily denied CPV’s motion to invoke the Rule. The PSC

failed to make any findings whatsoever regarding whether CPV would suffer

prejudice by allowing FPL’s witnesses to be present during the examination of its

other witnesses, and if not, why not. The PSC stated only that the “circumstances

present” did not warrant deviation from the Commission’s “prior practice.”11 (T.

Vol. 1 at p. 37, lines 8 - 13). None of the reasons posited by FPL (and apparently

accepted by the PSC) are legally sufficient to deny CPV’s request to invoke the

Rule in this proceeding.

A. The Evidence Code Applies to PSC Proceedings Which are Conducted under Chapter 120, F. S.

FPL argues that PSC evidentiary proceedings are exempt from the Florida

Evidence Code. This is patently incorrect under Florida case law and PSC

precedent.12 The PSC previously has determined that the Evidence Code does

apply to its proceedings. For example, in In re: Application for a rate increase by

General Development Utilities, Inc., Docket Nos. 911030-WS, 911067-WS; Order

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No. PSC-92-0326-PCO-WS (1992 Fla. PUC LEXIS 729), the PSC relied on the

Florida Evidence Code to deny a motion requesting it to take official recognition of

an arbitration proceeding transcript and exhibits in a rate proceeding, stating: “... it is

important to note that the Commission does rely on and follow the Florida Evidence

Code and the Florida Rules of Civil Procedure in proceedings before it.” Id. at 3 .

Similarly, in In re: Application for Increase in Rates and Service Availability Changes

in Lee County by Gulf Utility Company, Docket No. 960329 WSC (PSC 1992), the

PSC relied on Section 90.955 of the Florida Evidence Code to deny a request to

supplement the record in a rate determination case, on the ground that “the exhibit

with which Gulf seeks to supplement the record has not been authenticated under

the applicable evidentiary rules.” Id.

B. No Exception to the Sequestration Rule Exists to Allow FPL’s Expert Witnesses to Avoid Sequestration.

FPL identified ten witnesses it intended to call at the need determination

hearing. FPL contended that all ten witnesses were experts, and that if the Evidence

Code did apply, then all ten witnesses were “experts,” and, as such, were exempt

from the Sequestration Rule. (T. Vol. 1 at p. 31, lines 7 - 14). This argument has no

basis in law or fact.

-24-

First, there is no broad statutory provision that exempts all experts from the

scope of the Witness Sequestration Rule. In fact, case law shows that experts often

are excluded from proceedings, under the Sequestration Rule. Baker v. Air-Kaman

of Jacksonville, Inc., 510 So. 2d. 1222, (Fla. 1st DCA, 1987); Jones v. Division of

Administration, 351 So. 2d 365 (Fla. 4th DCA, 1977). For an expert witness not to

be subject to the Sequestration Rule, the party opposing sequestration must show,

under Section 90.616(2)(c), F.S., that the expert is “essential” to the presentation of

the party’s case. To make this showing, that party must allege and demonstrate

“that the witness has ‘such specialized knowledge or intimate knowledge of the facts

of the case that a party’s attorney could not effectively function without the

presence and aid of the witness . . . .” City of Miami Beach v. Washburn, 88 So. 2d

555 (Fla. 1955)(burden is on the party seeking an exception to the Sequestration

Rule to establish why the Rule should not apply to its witness); Goodman v. West

Coast, 580 So.2d 193, 195 (2nd DCA 1991), quoting Oliver B. Cannon and Son,

Inc. v. Fidelity and Casualty Company of New York, 519 F. Supp. 668, 678 (Del.

1981).

The burden was FPL’s to show that all ten of its “expert” witnesses were

“so essential” to its case, that FPL’s attorneys “could not function effectively

without their presence and aid.” FPL utterly failed to carry this burden. FPL made

13 FPL’s answer to CPV’s expert interrogatory referred CPV to FPL’s answer toCPV’s interrogatory seeking the identity of FPL’s fact witnesses. Moreover, FPLnever offered, and the PSC never accepted, any of FPL’s witnesses as experts.Experts must be accepted as such by the court. Fla. Stat. §90.702 (2002).

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no showing whatsoever that its ten so-called “experts” were “so essential” that

FPL’s counsel “could not effectively function” without their presence in the hearing.

Since FPL failed to carry its burden, FPL’s witnesses were not excepted from the

Sequestration Rule under Section 90.616(2)(c), F.S.

Further, FPL’s witnesses do not qualify for the Section 90.616(2)(c)

Sequestration Rule exception because its witnesses simply were not experts, and any

argument otherwise is contradicted by FPL’s answers to CPV’s interrogatories,

which responded that FPL would not call any expert witnesses at hearing.13 (A. 5)

Additionally, the PSC failed to make two key preliminary factual determinations that

are required for expert testimony to be admitted in a proceeding. Specifically, the

PSC never ascertained whether the subject matter was proper for expert testimony

(i.e., whether it would assist the trier of fact), or whether FPL’s “experts” were

adequately qualified to express an opinion regarding matters on which they were

called to testify. Fla Stat. §§90.105, 90.702; Ehrhardt, Florida Evidence (2d ed.

2002)§ 702.1. For a witness to be considered an expert, the witness must be so

tendered, an opportunity for voir dire must be provided, and the witness accepted an

14 In addition to nine FPL employees, FPL called witness Alan Taylor to testify abouthis role as an independent evaluator who oversaw the RFP process. (R. 2881, T. Vol.I). He is the President of Sedway Consulting and is not an officer or employee ofFPL; thus, he could not fall within the limited exception of Section 90.616(2)(b), F.S.(T., Vol. 1 at p. 744) Black v. Sears, Roebuck and Company, 621 So. 2d 712 (Fla.4th DCA 1993) (reversing trial court that allowing an expert to sit at counsel’s tableafter he had been introduced as party’s corporate representative.“... Said individual wasneither an officer or employee of appellee, and Section 90.616(2)(b), Florida Statutes(1991), clearly provides that in civil cases, the representative of a party that is not a

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as expert by the tribunal. Fla. Stat. §90.702 (2002). In this case, FPL neither

tendered, nor requested the Commission to recognize, any – much less all – of its ten

witnesses as experts. Accordingly, FPL’s argument that all of its witnesses were

experts exempt from the Sequestration Rule, must fail. As a point of fact, most of

FPL’s witnesses were involved in the preparation and evaluation of the RFP and

were listed by FPL to testify about those matters -- which are of a factual nature -- at

the hearing. (R. at 2880-2881) These same witnesses, who were really fact

witnesses, could not conveniently be labeled as “experts” by FPL to avoid

application of the Sequestration Rule.

C. All of FPL’s Witnesses Did Not and Could Not Serve as “Client Representatives.”

FPL claimed that all of its witnesses should be able to remain in the hearing as

“client representatives,” because they were FPL employees from different areas of

the company.14 (T. Vo. 1, p. 32, lines 15-22). This position is specious and ignores

natural person must be an officer or employee to prevent exclusion.”) Id. (emphasisadded.)

-27-

the plain language of Section 90.616(2)(b), F.S., which addresses client

representation of a party that is not a natural person. The statute contemplates that a

party may be representated by only one corporate representative, by providing that a

witness may not be excluded if the witness is “an officer or employee of a party that

is not a natural person.” The statute also calls for the party’s attorney to designate

“the officer or employee who shall be the party’s representative.” The statutory use

of the singular tense (officer, employee, representative) shows legislative intent that

only one person be designated a corporate representative. To allow multiple

corporate representatives would expand the narrow “client representative” exception

to the Sequestration Rule to the point that it would swallow the Rule and defeat its

purpose. FPL should not be permitted to avoid the Sequestration Rule by

designating all of its witnesses as corporate representatives.

D. That each FPL witnesses knew about what every other FPLwitness would testify is not a legally cognizable basis for refusing to invoke the Sequestration Rule.

FPL argued that in any event, the Sequestration Rule’s purpose would not be

served in this proceeding because each of FPL witnesses knew about what every

other FPL witness would testify on direct examination. FPL prefiled direct testimony

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for all of its witnesses, and FPL admitted that every FPL witness’s testimony had

been read by every other FPL witness. (T. Vol. 1 at p. 32, lines 3-6). That FPL’s

witnesses were able to do this calls into serious question the appropriateness and

legality, under Section 90.616, F.S., of the PSC’s practice of ordering the parties to

prefile testimony. As this case illustrates, an obvious effect is that witnesses

routinely read and are familiar with the direct testimony of all other “same party”

witnesses to the proceeding. One must question how the Sequestration Rule ever

can be effectively invoked in a PSC proceeding, when witnesses already know about

what their fellow witnesses will testify on direct examination. Although the PSC

routinely requires prefiled testimony, there is no legal authority mandating it, and the

PSC’s authority to impose this requirement is questionable.

For an adverse party to effectively invoke the Sequestration Rule in a PSC

proceeding, either the witnesses should be required to provide live direct testimony,

or the witnesses should be ordered not to review the prefiled testimony of other

“same party” witnesses before the hearing. That FPL’s witnesses all knew what the

other FPL witnesses were going to testify, even before the first witness was sworn,

violates the language and purpose of Section 90.616, F.S., and is sufficient basis to

remand this case for a new need determination hearing.

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Further, and most significantly for this case, FPL’s position disregards CPV’s

right to fair cross examination of FPL’s witnesses in this proceeding. FPL’s

contention that most of its “witnesses have already been deposed, so there’s no

secrecy about the issues that will be raised in cross examination” presumes that a

discovery deposition is equivalent to cross examination at trial. This is simply not

correct under Florida case law and trial practice. Palm Beach Newspapers, Inc. v.

Burk, 471 So.2d 571, 578 (Fla. 4th DCA 1985). Discovery depositions typically are

used to develop pointed questions for cross examination; the questions posed on

cross examination are not necessarily those asked during a deposition. Accordingly,

just because a witness was deposed does not mean that the witness knows what will

be asked on cross examination. CPV engaged in extensive cross examination during

the hearing on numerous critical points, many of which were not covered in its

depositions of FPL’s witnesses. Thus, FPL’s argument that CPV will not be

prejudiced because FPL’s witnesses read each other’s prefiled testimony is without

merit.

E. The PSC Lacks Discretion to Refuse to Invoke the Sequestration Rule on Efficiency Grounds.

FPL argued that the Rule should not be invoked because it would be

“inefficient.” (T., Vol. 1 at p. 34). Specifically, FPL argued that during cross

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examination, witnesses are often posed questions that may be deferred to other

witnesses, so that it would be “more efficient” for all witnesses to hear the cross

examination questions posed to each witness. This self-serving argument is

completely without merit.

The obvious consequence of denying invocation of the Sequestration Rule is

that witnesses to whom cross examination questions ultimately are deferred already

have heard the question as it was posed to another witness, and so are better

prepared to answer. Clearly, denying invocation of the Rule has significant potential

to seriously undermine the effectiveness of a party’s cross examination. While cross

examination possibly may be shortened if adverse witnesses are able to hear cross

examination and the answers of other witnesses, any “efficiency” that may result

from this practice is greatly outweighed by the likelihood of significant harm to the

party seeking to invoke the Rule. Given the particular circumstances in this case,

allowing all of FPL’s witnesses to hear CPV’s cross examination and the answers

given by fellow FPL witnesses seriously and unfairly undermined CPV’s fundamental

right to present its case.

F. The PSC Erred in Refusing to Invoke the Sequestration Rule.

In sum, the PSC erred in refusing to invoke the Sequestration Rule in this case.

This Court has directed that ordinarily, witnesses must be excluded upon the request

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of a party. Spencer v. State, 133 So. 2d 729, 731 (Fla. 1961). This standard has

been interpreted law to mean that “failure to exclude [witnesses] upon request will

only be countenanced in extra ordinary circumstance.” Dardashti v. Singer, 407

So. 2d 1098, 1100 (Fla. 4th DCA 1982) (emphasis added). This common law

standard was codified in Section 90.616, F.S., which expressly and unequivocally

requires the Rule to be invoked when requested by a party. The Legislature

codified Section 90.616 within Florida’s Evidence Code specifically so it would be

followed by courts and other tribunals in this state in adjudicating disputed issues of

fact. Section 90.616, F.S. contains only four narrow exceptions to the Sequestration

Rule -- which may allow witnesses to be exempt from the Sequestration Rule, and

then only upon a proper showing of appropriate circumstances. Those

circumstances do not exist in this case, and there is nothing in Section 90.616, F.S.,

or any other provision of Florida law granting the PSC discretion to disregard the

law, as FPL suggests they may. (“[Y]ou have the discretion to not to even recognize

the rule of sequestration.” T., Vol. 1at p. 34). FPL completely failed to demonstrate

any extraordinary circumstances or exceptions exist that would permit its witnesses

to remain in the need determination proceeding and listen to CPV’s cross

examination of other FPL witnesses.

15 At the need determination hearing, CPVcalled Mr. Sean Finnerty, an officer withCPV, to testify in Mr. Egan’s place. Mr. Egan was unable to attend the hearing dueto medical reasons.

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For these reasons, the PSC abused its discretion in ruling that all of FPL’s

witnesses could remain in the need determination proceeding once CPV invoked the

Sequestration Rule. Accordingly, its ruling in this proceeding should be reversed and

remanded. Fla. Stat. § 120.68(7)(e) (2002).

II. THE PSC ABUSED ITS DISCRETION IN STRIKING TWO CPV WITNESSES BECAUSE PREFILEDTESTIMONY WAS NOT SUBMITTED FOR THOSE WITNESSES.

The standard governing this Court’s review of the PSC’s action in striking

CPV’s witnesses Green and Caldwell is whether the PSC abused its discretion.

Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981). Fla. Stat. §120.68(7)(e).

CPV contends that under the circumstances present in this case, the PSC abused its

discretion in striking Witnesses Green and Caldwell, for whom CPV was unable to

provide prefiled testimony.

As previously noted, the PSC entered its Order Establishing Procedure on July

23, 2002. The Order provided that “[e]ach party shall prefile, in writing, all

testimony that it intends to sponsor.” In accordance with this Order, CPV timely

filed the testimony of its President, Mr. Douglas Egan.15 In its responses to

16 Mr. Green also served as Chairman of Florida Partnership for AffordableCompetitive Energy (“PACE”), an organization whose member companies areindependent power producers, most of which participated in FPL’s RFP process.See Appendix.

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interrogatories, served on FPL on August 15, 2003, CPV identified three additional

witnesses it planned to call to testify at the hearing. CPV also listed these witnesses in

its Prehearing Statement, which was filed with the PSC and served on FPL on

August 20, 2002. In both of these documents, CPV listed Mr. Michael Green and

Mr. Michael Caldwell as fact witnesses. (R. 2869, A. 1)

Mr. Green was a Vice President of Duke Energy North America, a bidder that

participated in FPL’s RFP process.16 (A. 13, p. 18). In its Response to FPL’s

Interrogatory No. 1, CPV stated that Mr. Green would testify regarding the

“unfairness of FPL’s RFP process and related matters” (A. 1). This issue was in

dispute in the proceeding, identified as Issue No. 10 in the Commission’s Prehearing

Order, and, as previously discussed, was a significant area of contention throughout

the entire need determination proceeding. (R. 3719).

CPV’s other fact witness, Mr. Michael Caldwell, is a former FPL employee

who authored a letter to the PSC Chairman, strongly criticizing the fairness of FPL’s

RFP process and its decision to select itself as the winner of the RFP. In his letter,

Mr. Caldwell suggested that FPL would not conduct a fair RFP process because

17 Ironically, FPL sought to have admitted documents it failed to attach to pre-filedtestimony and failed to list in its Prehearing Statement. FPL conveniently offered thesedocuments during re-direct of FPL witness Silva. Objections were raised, as thisdocument had not been prefiled as required by the Order Extablishing Procedure. ThePSC, notwithstanding its Prehearing Order requiring all direct testimony and exhibits

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doing so would enable competitors to construct power plants in FPL’s territory,

thereby gaining a foothold in Florida’s electric energy market. As a former employee

of FPL, Mr. Caldwell arguably was privy to important and relevant information

concerning FPL’s motivation in selecting the self-build option. Thus, Mr. Caldwell

was a significant witness for CPV, who would have presented testimony to support

CPV’s contention that the entire RFP process was unfairly conducted, specifically

because FPL wished to exclude competitors from its service territory, thus

rendering it a foregone conclusion that FPL would win its own RFP process. (A. 2).

CPV was unable to prefile testimony for these two witnesses because neither

was in CPV’s control. CPV had no means to direct, force, or otherwise require these

witnesses to provide prefiled testimony. Instead, CPV acted in the only way

available to it under the circumstances: it obtained trial subpoenas for both these

individuals to compel their attendance at the final hearing. (A. 6, A. 7).

On September 5, 2002, FPL filed a Motion in Limine to exclude the testimony

of Messrs. Green and Caldwell. (A. 8). FPL argued that CPV’s inability to prefile

testimony did not comply with the PSC’s Order Establishing Procedure.17 This,

to be pre-filed, admitted these documents into evidence. (T., Vol. 3 at pp. 271-283;Exhibits 10 and 11).18 FPL was apprised on August 15, 2002, before the prefiled testimony filing deadline,that CPV intended to call Messrs. Green and Caldwell to testify. Had FPL acteddiligently to schedule these witnesses’ depositions once it knew CPV intended to callthem as witnesses, FPL would have had more than ample lead time to determine thecontent of their testimony and to adequately prepare to address it at the hearing.

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FPL argued, would place it at an “unfair disadvantage” because it would not be able

to review the prefiled testimony of these witnesses. R. at 2810. CPV responded that

neither witness was in its control, so it was not able, through any means, to obtain

prefiled testimony from these witnesses. Mr. Green corroborated this by filing an

Affidavit stating that in response to being approached by CPV about voluntarily

providing testimony, he was obligated to check with his former employer, Duke

Energy, as to whether he could testify voluntarily. Duke did not answer his inquiry

until well after the deadline for pre-filing testimony. R. at 2899. In the meantime,

CPV had subpoenaed Mr. Green; he affirmed it was only pursuant to this subpoena

that he would testify.

In response to FPL’s claim that it would suffer “undue prejudice,” CPV

pointed out that FPL easily could have deposed these two witnesses as soon as it

had received notice that CPV intended to call them as witnesses. Had FPL done so,

it would have had more than ample time to prepare to address their testimony at the

hearing.18 The Prehearing Officer granted the Motion in Limine, excluding Mr. Green

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and Mr. Caldwell from testifying. CPV contends that the Commission committed a

material error in procedure in striking CPV’s witnesses and that this error impaired

the fairness of the need determination proceeding.

The striking of a party’s witnesses “is one of the most drastic remedies” that

courts should invoke only under the most compelling of circumstances. Allstate

Insurance Company v. Mazzorana, 731 So. 2d. 38, 3- (Fla. 4th DCA, 1999), citing

Binger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla. 1981) (reversing trial

court’s exclusion of expert). In Binger, this Court directed that a tribunal’s striking

of a party’s witnesses “should be guided largely by a determination as to whether use

of the undisclosed witness will prejudice the objecting party, and is not dependent on

the adverse nature of the testimony.” Binger, 401 So. 2d at 1314. In this case, FPL

claimed it would be prejudiced by not being able to review the prefiled testimony of

Messrs. Green or Mr. Caldwell, but this claim simply is not substantiated by the

record.

CPV disclosed its intent to call these witnesses in its responses to FPL

interrogatories on August 15, 2002 – some fifty days before the beginning of the

hearing. This was the first time CPV was obligated to list its witnesses, and this is

not a case where a witness was identified late in the proceeding or omitted from a

witness list. FPL had almost two months in which to discover and prepare to

19 “It is error to strike a relevant witness where the opposing party is aware of theproposed testimony.” Pascual v. Dozier, 771So. 2d 552, 554 (Fla 3d DCA 2000).

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address the testimony of Mr. Green and Mr. Caldwell. Approximately three weeks

before the hearing, FPL deposed Mr. Green. FPL scheduled Mr. Caldwell’s

deposition but then cancelled it after the Prehearing Officer ordered CPV’s

witnesses excluded. Any “surprise” to FPL that may have resulted from Mr.

Green’s and Mr. Caldwell’s testimony is largely due to FPL’s own failure to take

timely measures to discern the subject of these witnesses’ testimony, such as

expeditiously conducting depositions once the witnesses were identified. Moreover,

FPL was, or should have been, on notice that Mr. Caldwell likely would testify at the

need determination hearing, because it undoubtedly was aware of the letter Mr.

Caldwell wrote to the PSC complaining of FPL’s conduct in the RFP process --

even before the letter was filed by CPV as an exhibit to Mr. Egan’s testimony.19

Under these circumstances, FPL can hardly argue that it was unduly prejudiced by

the lack of prefiled testimony from either Mr. Green or Mr. Caldwell.

“The right to call witnesses is one of the most important due process rights of

a party.” Pascual 771So. 2d 552, 554 (Fla. 3rd DCA 2000), quoting Keller Industries

v. Volk, 657 So. 2d 1200, 1202-03 (Fla. 4th DCA 1995). Numerous Florida cases

have reversed a lower tribunal’s striking of a party’s witness on facts in which more

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prejudice befell the complaining party than was visited upon FPL in this case. For

example, in Lugo v. Florida East Coast Railway Company, 487 So. 2d 321 (Fla. 3rd

DCA, 1986), the plaintiff did not comply with a pretrial order to list its expert

witnesses and failed to provide a brief statement of the general nature and areas about

which its experts would testify. However, the plaintiff subsequently filed an

extensive affidavit of its expert witness as part of its response to a motion for

summary judgment. Four days before the trial, the defendant deposed the plaintiff’s

expert – just as FPL deposed Mr. Green, and would have deposed Mr. Caldwell,

had the Motion in Limine not been granted. Both in Lugo and in the case at bar, the

tribunal struck the witnesses and precluded their testimony on the ground the pretrial

order was violated. The Court in Lugo held that the trial court’s “exclusion of

witnesses for failure to strictly comply with the pretrial order is indefensible.” Id. at

323. In reversing the order striking the witnesses, the Court in Lugo examined the

objecting party’s ability to cure the prejudice or similarly, independent knowledge of

the existence of the witness; the calling party’s possible intentional, or bad faith,

noncompliance with the pretrial order; and the possible disruption of the orderly and

efficient trial of the case. The appellate court found dispositive that the trial court did

not consider these factors in striking these factors, which in the Court’s view, were

essential to the trial court’s decision making process. The Court reviewed the record

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and determined that the defendant had not been surprised, that the defendant had an

adequate opportunity to cure any prejudice it arguably might have suffered, that there

would have been no disruption of the proceeding had the plaintiff’s witness been

permitted to testify, and that the plaintiffs had not exhibited bad faith in failing to list

its witness.

Similarly, the record in this case shows that FPL cannot, in good faith, argue

they would have been surprised by Mr. Green’s and Mr. Caldwell’s testimony,

because CPV placed FPL on notice it intended to call them as witnesses almost two

months prior to the hearing. And, even if there were potential for surprise or

prejudice – and CPV contends there was not – FPL had plenty of time to cure the

surprise or prejudice by expeditiously deposing the witnesses. As noted, FPL waited

a full month from the time it knew CPV intended to call Witnesses Green and

Caldwell to the time it set the witnesses’ depositions. Also, there is nothing in the

record showing or even suggesting that CPV acted in bad faith in not prefiling the

testimony of Witnesses Green and Caldwell. To the contrary, the record makes

abundantly clear that CPV’s inability to prefile testimony for these witnesses was due

to circumstances beyond CPV’s control, and that CPV had identified these

witnesses well in advance of the hearing and had immediately made them available for

deposition. Nor is there anything in the record indicating that allowing these

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witnesses to testify would have disrupted the orderly conduct of the need

determination hearing.

Excluding a party’s witness is an extremely drastic remedy that should only be

invoked upon a showing of willful, substantial disregard of discovery rules or

scheduling orders that results in prejudice to a party. State v. Tascarella, 580 So. 2d

154 (Fla. 1991) (emphasis added); Taylor v. State, 643 So. 2d 1122 (Fla. 3d DCA

1994); Duarte v. State, 598 So. 2d 270 (Fla. 2nd DCA 1992); State v. Plachta, 415

So. 2d 1356, 1358 (Fla. 2d DCA 1982). There was no such showing in this case.

Case law makes clear that striking a party’s witness “is an extreme sanction that

should not be imposed when other reasonable alternatives are available.” State v.

Farley, 788 So. 2d 338, 340 (Fla. 5th DCA 2001). Before the court excludes

testimony, it must consider any lesser alternatives sanctions that are available. State

v. Schwartz, 605 So. 2d 1000 (Fla. 2d DCA, 1992). As CPV argued in its Response

to FPL’s Motion in Limine, the PSC previously has accepted prefiled deposition

testimony to comply with a Prehearing Order and subsequently allowed the deposed

witness to testify at the hearing. See In Re: Application for Amendment of

Certificates in Lake County in JJ’s Mobile Homes, Inc., PSC-95-0208-PCO-WS.

Because neither Mr. Green nor Mr. Caldwell were under CPV’s control, the

Prehearing Officer could have afforded CPV this option or considered other

20 Counsel for FPL acknowledged that Mr. Evanson was the final and most importantdecision maker in the RFP process, stating: “Well, as I indicated, Mr. Evanson did, infact, make the ultimate decision, as he makes the ultimate decisions in a great manycases, in most any things of substance to Florida Power and Light Company. Thatcould probably be stipulated.” (T., Vol. 1, pp. 12-13).

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reasonable alternatives, rather than imposing the “extreme sanction” of striking Mr.

Green and Mr. Caldwell as witnesses in the proceeding. The failure to first explore

less drastic alternatives before striking CPV’s witnesses is contrary to Florida case

law and constitutes an abuse of discretion. Pursuant to Section 120.68(7)(e), F.S.,

this Court should reverse the PSC’s action and remand this matter to the PSC for the

conduct of a full and fair hearing.

III. THE PSC ERRED IN QUASHING THE TRIALSUBPOENA SERVED BY CPV ON FPL OFFICER PAUL EVANSON.

In its answers to CPV’s interrogatories, FPL identified its President, Mr. Paul

Evanson, as the person who ultimately decided that FPL’s self-build options should

be chosen over the competing alternatives.20 (A. 14). To this end, he was involved in

regular briefings on the need determination process in which numerous proposals,

including CPV’s proposal, were competitively evaluated against FPL’s self-build

options. Evanson regularly received electronic mail correspondence related to the

bids received from competing alternatives, issues raised during the bid evaluation

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process, FPL’s electrical power generation strategy, and other related matters. (A.

12, Comp. Ex. 3). By his own words, Evanson was the person at FPL responsible

for the decision to select FPL’s self-build proposals over the competing proposals.

Knowing Mr. Evanson’s central role in the RFP process, CPV subpoenaed Mr.

Evanson to testify at the hearing. However, at FPL’s request, the Commission

quashed the subpoena, thus preventing CPV from obtaining Mr. Evanson’s

testimony at the hearing.

This proceeding was conducted pursuant to Section 120.57(1)(b), F.S., which,

in pertinent part, provides that the parties shall have the opportunity to present

evidence on all issues. Subpoenas are a proper means to compel testimony that is

relevant, material and not repetitious. Fla. Stat. § 120.569(2)(f),(g) (2002). However,

subpoenas may be quashed if they are not lawfully issued, are unreasonably broad in

scope, or require the production of irrelevant material. Fla. Stat. §120.569(2)(k). In

moving to quash CPV’s trial subpoena served on Mr. Evanson, FPL did not –

indeed, could not– assert any of these statutory grounds for quashing the subpoena.

And, most important, the PSC did not cite these or any other cognizable factual or

legal grounds to quash the subpoena. The PSC’s failure to do so constitutes a

material error warranting reversal and remand for a new, fairly conducted hearing. (T.

Vol. 1 at p. 24).

21 If CPV had wished to obtain testimony on the “number crunching” aspects of theRFP evaluation process, it would have subpoenaed an FPL analyst who worked onthe project. CPV called Mr. Evanson to testify specifically because it sought to probeFPL’s ultimate decision to select the self-build option and the reasons for thatultimate decision – matters that indisputably are relevant and material to determiningwhether FPL selected the most cost-effective alternative. Since FPL identified Mr.Evanson as the person who made the ultimate decision to select the self-build option,unquestionably, he was the best person to testify.

22 FPL cited Department of Rehabilitative Services v. Brooke, 573 So. 2d, 363 (Fla.1st DCA 1991) to support its Motion to Quash. That case is not pertinent to this issue.Brooke involved efforts to subpoena a high-ranking governmental official who hadlittle involvement in the underlying facts of the case. In this case, Evanson is anemployee of a private company who was intimately involved in the most importantaspects of the case; FPL cited no authority, and provided no justification, to extendthe holding in Brooke to an employee of a private company. Moreover, even if Brookewere extended to non-government officials (and CPV argues that such extensionwould seriously undermine the ability to obtain vital information from private entitiesthat could not be obtained via public records searches or in any other manner), Mr.

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Unable to argue that the subpoena should be quashed on any grounds

articulated in Chapter 120, F.S., FPL argued, alternatively, that Mr. Evanson lives

and works more than 100 miles from the hearing, so his deposition, rather than his live

testimony, should be used; that Mr. Evanson was busy, even though these need

cases constitute hundreds of millions of investment dollars in FPL’s operating

systems; and that even though Mr. Evanson made the ultimate decision to select the

self-build option, he did not perform the detailed analysis of FPL’s proposal or the

competing proposals, so he should not be required to testify.21 None of these reasons

constitutes legally sufficient grounds22 for quashing the subpoena.23

Evanson’s testimony was certainly necessary and relevant to CPV’s case in chief, andwas not available from any other FPL officials or employees.

23 Nor, apparently, do they constitute actual factual grounds for quashing thesubpoena, given that FPL stated they could have Mr. Evanson appear and testifyat the hearing if the Commission so desired. (T., Vol. 1 at p. 16).

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First, FPL alleged that Mr. Evanson was more than 100 miles away, but failed

to offer any evidence whatsoever to substantiate this contention. Even an affidavit

attached to its Motion to Quash would have sufficed, but FPL failed to provide one.

Simply put, FPL did not meet its burden to substantiate the facts alleged in its

Motion. Second, FPL’s argument that CPV could have used Mr. Evanson’s

deposition does not justify quashing the subpoena. FPL apparently has confused use

of a deposition at hearing, authorized by Florida Rule of Civil Procedure 1.330, with

the ability to compel testimony at trial by subpoena, which is authorized by Section

120.569(2)(f) and (g), F.S., and Florida Rule of Civil Procedure 1.410(b). Rule

1.330(a)(3), upon which FPL mistakenly relies, in pertinent part provides:

[t]he deposition of a witness, whether or not a party, may be usedfor any purpose if the court finds: . . . (B) that the witness is at agreater distance than 100 miles from the place of trial or hearing . .. . (D) that the party offering the deposition has been unable toprocure the attendance of the witness by subpoena.

Fla. R. Civ. P. 1.330(a)(3)(emphasis added).

Here, CPV did not wish to use a discovery deposition in lieu of live testimony.

CPV wished to have Mr. Evanson testify at the hearing. To that end, CPV properly

24 For example, CPV could have questioned Mr. Evanson regarding any policy FPL mayhave to undermine competition in its service territory, FPL’s settlement with theproposer of the more cost-effective alternative capacity source in the need determinationproceeding, and related matters.25

FPLE’s headquarters is located in Juno Beach, Florida. Under FPL’s “100-mile”argument, none of its employees located there – or, for that matter, anywhere else morethan 100 miles away from Tallahassee – could ever be compelled by subpoena to testifybefore the Commission.

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served a valid trial subpoena on Mr. Evanson to obtain his testimony at the hearing on

many issues.24 If FPLE’s “100 miles away” argument – which has no support in law

– were accepted, it would effectively extend to any case involving FPLE or any other

entity regulated by the PSC, and would mean that no employee of the regulated entity

could ever be compelled by subpoena to testify before the PSC if that employee is

located more than 100 miles away from Tallahassee, Florida.25 Obviously, this

absurd position, if accepted, would substantially undermine the PSC’s ability to fairly,

accurately, and effectively conduct evidentiary proceedings that require the testimony

of witnesses located more than 100 miles away.

FPL further asserts that Mr. Evanson could not be required to testify because

he is a high-ranking official with FPL. FPL’s argument is baseless. A party should be

afforded wide latitude in preparing and presenting its case in chief, including calling

witnesses to testify. Florida Marine Enterprises v. Dawn Anne Bailey, 633 So. 2d

649, 652 (Fla. 4th DCA 1994). There is ample indication that Mr. Evanson was

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integrally involved in the RFP process, to the point that he made the ultimate decision

to select FPL’s self-build options. Thus, the best and most reliable evidence

regarding these decisions comes from him, not from other FPL officials or

employees. In fact, a sense of Mr. Evanson’s involvement in the RFP decision is

readily discerned from a review of the documents attached to CPV’s Response to

FPL’s Motion to Quash Subpoena. For instance, Mr. Evanson was the sole recipient

of a electronic mail communication (“e-mail”), discussing the

. . . flaws in the computer model we used to determine our answer. . . . It lookslike we are going in with a case based on the FPL plan being break-even with aplan consisting of both FPL and non-FPL options. . . . When I know the finaldamage, I’ll let you know, but I didn’t want to sit on this until all the work wasdone. Please call me if you would like to discuss.

These documents and others, as well as testimony of other witnesses, provided

CPV ample relevant information about which CPV could have examined Mr.

Evanson, had it been allowed to do so. Being permitted to elicit testimony from the

person who made the ultimate decision to select FPL’s self-build options (and who

sets and directs policy including electric power generation policy, for FPL, ) was

extremely important to CPV’s case, and would have yielded information clearly

relevant information that was not available from other sources.

CONCLUSION

For the reasons set forth herein, this Court should reverse the PSC’s Order

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Granting Determination of Need and remand this case to the PSC for the conduct of a

new, full, and fair need determination hearing.

Respectfully submitted this 9th day of April, 2003.

_______________________________Jon C. Moyle, Jr.Fla. Bar No.727016Cathy M. SellersFla. Bar No. 0784958Moyle Flanigan Katz Raymond & Sheehan, P.A.118 North Gadsden StreetTallahassee, FL 32301

ATTORNEYS FOR APPELLANT,CPV GULFCOAST, LTD.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 9th day of April, 2003, a true and correct copyof the Initial Brief of Appellant was served by U.S. Mail on those listed below withoutan asterisk and by hand delivery on those listed below with an asterisk (“*”):

*Richard Bellak, Esquire*Martha Carter Brown, Esquire *Larry Harris, EsquireFlorida Public Service Commission2540 Shumard Oak BoulevardTallahassee, Florida 32399-0850

*Charles A. Guyton, EsquireSteel, Hector & Davis, LLP215 South Monroe Street, Suite 601Tallahassee, Florida 32301

Mr. William G. Walker, III, Vice-PresidentFlorida Power & Light Company215 South Monroe Street, Suite 810Tallahassee, Florida 32301-1859

R. Wade Litchfield, EsquireFlorida Power & Light Company700 Universe BoulevardJuno Beach, Florida 22408-0420

Michael B. Twomey, EsquirePost Office Box 5256Tallahassee, Florida 32314-5256

Joseph A. McGlothlin, EsquireVicki G. Kaufman, EsquireMcWhirter, Reeves, et al.117 South Gadsden StreetTallahassee, Florida 32301

_______________________________JON C. MOYLE, JR.

CERTIFICATE OF FONT

Counsel for Appellant hereby certifies that the type font used throughout this Initial

Brief of CPV Gulfcoast, Ltd. is Times New Roman 14-point.

___________________________________

Jon C. Moyle, Jr.

TABLE OF APPENDICES

Document Title App. Number

CPV Gulfcoast, Ltd.’s Answer to FPL First Set of Interrogatories,Interrogatory No. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Michael Caldwell Letter to Lila JaberAttachment to Doug Egan’s direct testimony . . . . . . . . . . . . . . . . . . . . . . . . . 2

Notice of Deposition filed by FPL for Mike Green . . . . . . . . . . . . . . . . . . . . . . . . . 3

Notice of Deposition filed by FPL for Michael Caldwell . . . . . . . . . . . . . . . . . . . . . . 4

FPL’s Answer to CPV’s First Set of Interrogatories, InterrogatoryNo. 31 and No. 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Trial Subpoena for Michael Caldwell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Trial Subpoena for Mike Green . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

FPL’s Motion in Limine to Exclude CPV Witnesses . . . . . . . . . . . . . . . . . . . . . . . . 8

CPV’s Response to FPL Motion in Limine to Exclude Witnesses . . . . . . . . . . . . . . . 9

PSC’s Order Granting Motion in Limine Excluding Witnesses . . . . . . . . . . . . . . . . 10

FPL’s Motion to Quash Subpoena of Paul Evansonwith attachments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CPV Gulfcoast Response to FPL Motion to Quash Subpoena of Paul Evanson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Deposition Testimony of Mike Green . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13