LA. HOUSEHOLD GOODS v. LA. PUBLIC SERV.

• Decision Date: 30 June 2000
• Docket Number: No. 99-CA-3184.,99-CA-3184.
• Citation: 762 So.2d 1081
• Parties: LOUISIANA HOUSEHOLD GOODS CARRIERS, a Domestic Unincorporated Association, by and through William D. Hathorn, its President; Northlake Moving and Storage Inc., individually and as a Member of Louisiana Household Goods Carriers Association; A-1 Movers, Inc., individually and as a Member of Louisiana Household Goods Carriers Association; and Hathorn Moving and Storage Co., Inc., individually and as a Member of Louisiana Household Goods Carriers Association v. LOUISIANA PUBLIC SERVICE COMMISSION.
• Court: Louisiana Supreme Court

762 So.2d 1081

LOUISIANA HOUSEHOLD GOODS CARRIERS, a Domestic Unincorporated Association, by and through William D. Hathorn, its President; Northlake Moving and Storage Inc., individually and as a Member of Louisiana Household Goods Carriers Association; A-1 Movers, Inc., individually and as a Member of Louisiana Household Goods Carriers Association; and Hathorn Moving and Storage Co., Inc., individually and as a Member of Louisiana Household Goods Carriers Association v. LOUISIANA PUBLIC SERVICE COMMISSION.

No. 99-CA-3184.

Supreme Court of Louisiana.

June 30, 2000.

Janet S. Boles, Boles, Boles & Ryan, Baton Rouge, Counsel for Applicant.

Eve Kahao Gonzalez, Baton Rouge, Stephen Kenneth Conroy, Christine Wendt Marks, Montairie, Counsel for Respondent.

KIMBALL, Justice.¹

This appeal raises the issue of whether the Louisiana Public Service Commission (Commission) erred in granting a common carrier certificate to Pontchartrain Movers, Inc. (Pontchartrain) that authorized the transportation of household goods within a 150 mile radius of Covington, Louisiana. On appeal to the Nineteenth Judicial District Court, pursuant to La. R.S. 45:1192, the Commission's order was affirmed. Protestants appeal directly to this court pursuant to Article IV, § 21 of the Louisiana Constitution of 1974. After reviewing the record of the evidence in this case and the law, we conclude that the Commission's finding that Pontchartrain met the burden of showing public necessity and convenience in its application for a common carrier certificate was not arbitrary and capricious and is reasonably supported by the evidence. Thus, the trial court's judgment is affirmed.

FACTS

Pontchartrain filed an application for a common carrier certificate authorizing the transportation of household goods within a 150 mile radius of Covington, Louisiana on February 7, 1997, which was published in the Commission's bulletin of February 21, 1997. During the 25-day publication period, opposition was filed by the Louisiana Household Goods Carriers Association (Association) and its member carriers. Protestants are certified carriers holding certificates of public convenience and necessity for transporting household goods statewide. A hearing was held on June 17, 1997, by Administrative Law Judge John Chrisman (ALJ) involving 13 witnesses and 17 exhibits. The ALJ took the matter under advisement and issued a proposed recommendation finding that Pontchartrain had met its burden of proving public necessity and convenience required under La. R.S. 45:164 on July 2, 1997. On August 20, 1997, after a public hearing² and upon the final recommendation of the ALJ, the Commission issued Common Carrier Certificate No. 6261 (certificate) to Pontchartrain pursuant to Order No. T-22305. Protestants appealed the order to Judge Janice Clark, of the Nineteenth Judicial District, pursuant to La. R.S. 45:1192, who affirmed the issuance of the certificate on August 25, 1999.

LAW AND DISCUSSION

Protestants contend that the Commission abused its authority in granting the certificate in this instance in that there was no showing of public convenience and necessity that warranted the grant to applicant of authority to transport household goods within a 150 mile radius of Covington, Louisiana.

La. R.S. 45:164 governs the issuance of common carrier certificates by the Commission. Section A of that statute provides, in pertinent part:

[N]o motor carrier shall operate as a common carrier without first having obtained from the commission a certificate of public convenience and necessity, which shall be issued only after a written application made and filed, a public hearing, due notice given to applicant and all competing common carriers, and a finding by the commission that public convenience and necessity require the issuance of a certificate. No new or additional certificate shall be granted over a route where there is an existing certificate, unless it be clearly shown that the public convenience and necessity would be materially promoted thereby.

Thus, in order for a motor carrier to operate as a common carrier under Louisiana law, it must obtain a certificate of public convenience and necessity from the Commission. The Commission will issue such a certificate only after giving notice to competing carriers, holding a public hearing and determining that the public convenience and necessity (PC & N) require the certificate be issued. La. R.S. 45:164; Matlack, Inc. v. Louisiana Pub. Serv. Comm'n, 622 So.2d 640, 649 (La. 1993). Further, if the Commission has previously issued a certificate to another carrier to conduct the same operation, the applicant has the burden of clearly showing that the PC & N would be materially promoted by its issuance. Id. (citing L & B Transport Co. v. Louisiana Pub. Serv. Comm'n, 602 So.2d 712, 714 (La.1992)).

PC & N is a dynamic and flexible concept, which is not susceptible to a rigid or precise definition; thus, it must be determined on a case-by-case basis. Matlack, 622 So.2d at 650, (citing Florane v. Louisiana Pub. Serv. Comm'n, 433 So.2d 120, 123 (La.1983)). Evaluating whether an applicant has met the requisite burden of proving PC & N under La. R.S. 45:164 is a matter within the Commission's sound judgment and discretion. Mississippi Chemical Exp., Inc. v. Louisiana Pub. Serv. Comm'n, 94-0440 p. 7 (La.5/23/94), 637 So.2d 93, 98. The Commission's determination of PC & N is an exercise of its discretionary authority, which is therefore accorded great weight. Id. (citing Florane, 433 So.2d at 123; and Dreher Contracting & Equipment Rental, Inc. v. Louisiana Pub. Serv. Comm'n, 396 So.2d 1265, 1267 (La.1981)). Such determinations by the Commission have a presumption of validity and the party attacking the determination has the burden of proving its invalidity. Id. (citing Louisiana Oilfield Carriers Ass'n v. Louisiana Pub. Serv. Comm'n, 281 So.2d 698, 700 (La.1973)).

Upon judicial review, a court will not overturn the Commission's determination of PC & N unless it is based on an error of law, or if it is arbitrary and capricious. Id. (citing Miller Transporters, Inc. v. Louisiana Pub. Serv. Comm'n, 518 So.2d 1018, 1020 (La.1988) (collecting cases); and Matlack, 622 So.2d at 650 (collecting cases)). Thus, a "Commission's Order should be upheld unless it is arbitrary and capricious or a clear abuse of power." Herman Brothers, Inc. v. Louisiana Pub. Serv. Comm'n, 564 So.2d 294, 297 (La.1990) (collecting cases). A determination by the Commission "is arbitrary and capricious only when the evidence in the record does not and could not reasonably support it." Mississippi Chemical Exp., 94-0440 p. 7-8, 637 So.2d at 98.

Therefore, when reviewing the Commission's determination, it is not the role of the reviewing court to re-weigh the evidence, to re-judge the credibility of the witnesses or to substitute its findings for those of the Commission. Id. at 99 (citing Southern Message Serv., Inc. v. Louisiana Pub. Serv. Comm'n, 554 So.2d 47, 56 (La. 1989); and B & M Trucking, Inc. v. Louisiana Pub. Serv. Comm'n, 353 So.2d 1323, 1328 (La.1977)). Thus, reasonable inferences of fact and of credibility by the Commission should not be overturned upon review, even though the court may feel its own evaluations are as reasonable. Id. (citing Southern Message Serv., 554 So.2d at 56); see B & M Trucking,353 So.2d at 1328 (noting that the case might have been decided differently, but declining to substitute court's judgment for Commission's). More concisely, the court's role in judicially reviewing the Commission's "determination of PC & N is quite narrow: if the determination is reasonably supported by the evidence in the record, [the court] must affirm." Mississippi Chemical Exp., 94-0440 p. 8, 637 So.2d at 99 (citing Scotty's Vacuum Serv., Inc. v. Louisiana Pub. Serv. Comm'n, 450 So.2d 1303, 1304 (La.1984); and B & M Trucking,353 So.2d at 1326-27).

Thus, in this case, the court must determine whether the Commission, acting reasonably on the evidence before it, could have determined that issuing Pontchartrain a common carrier certificate, which gave it the authority for the transportation of household goods within a 150 mile radius of Covington, Louisiana, would materially promote the PC & N and, correspondingly, whether the district court judge erred in affirming the Commission's determination.

In order to determine whether the Commission's order is reasonably supported by the evidence, a comprehensive review of the testimony presented at the hearing before the ALJ is necessary. Ken-Go Servs. Inc. v. Louisiana Pub. Serv. Comm'n, 483 So.2d 141, 143 (La.1986). At the June 17, 1997, hearing Pontchartrain's first witness was Emerson Sims (Sims), Pontchartrain's president and fifty-one percent owner. Sims testified that he is a certified public mover and had many years experience as a mover for a company specializing in moving pianos before starting Pontchartrain in 1994, which was incorporated in 1995. Sims testified about the specialized techniques he uses to move pianos properly and presented photographs of himself and his brother moving a piano to illustrate his points. He estimated that they currently move 10-30 pianos a month, which requires specialized equipment and handling. They currently operate within the ten miles of Covington, but seek authority to make moves within 150 miles of Covington. He believes that there is a demand for his services, with his company receiving calls for service to and from Slidell, Metairie, Hammond, Baton Rouge, Bogalusa, Franklinton, and both south and north shores of the lake. He also testified that his company does blanket moving, which enables the moving of fine furniture and antiques without harm. He and his brother actually make the moves themselves, along with three other full-time employees. The company owns one truck, a bobtail that is twenty-four feet long, with the company logo, and rents an additional truck as...