Matlack, Inc. v. Louisiana Public Service Com'n, 93-CA-0277

CourtSupreme Court of Louisiana
Citation622 So.2d 640
Docket NumberNo. 93-CA-0277,93-CA-0277
Decision Date24 May 1993

Page 640

622 So.2d 640
MATLACK, INC., et al.
No. 93-CA-0277.
Supreme Court of Louisiana.
May 24, 1993.
Rehearing Denied Sept. 2, 1993.

Page 646

Carolyn DeVitis, Thomas K. Kirkpatrick, Kirkpatrick & Kirkpatrick, Baton Rouge, for applicant.

James L. Ellis, Taylor, Porter, Brooks & Phillips, Baton Rouge, for respondent.

HALL, Justice. *

In this direct appeal, we are asked to determine whether the Louisiana Public Service Commission ("LPSC") erred in rendering an order granting L & B Transportation, Inc. ("L & B") a certificate of public convenience and necessity, authorizing it to transport certain liquid products statewide. The LPSC's order expanded L & B's existing motor carrier authority from contract to common carrier. 1 Finding the LPSC erred, the district court rescinded L & B's common carrier certificate and reinstated its contract carrier permit. We affirm.


In November 1985, L & B was granted a contract carrier permit. Under that permit, L & B was authorized, subject to certain exceptions, 2 to transport for Ciba-Geigy

Page 647

and four unnamed shippers within a hundred mile radius of Port Allen, Louisiana; L & B also was authorized to transport hydrochloric acid ("HCI") statewide. In February 1986, L & B filed an application for a common carrier certificate, seeking authority, subject to certain exceptions, 3 to transport liquid products in bulk statewide. After notice, four existing common carriers--Younger Brothers, Inc., Stephens Truck Lines, Inc. ("Stephens"), DSI Transports, Inc. ("DSI"), and Groendyke Transport, Inc. ("Groendyke") (collectively the "Protestants")--filed protests with the LPSC.

At the hearings conducted before the LPSC in May 1986, L & B presented eleven supporting shipper witnesses who testified as to their individual needs for specialized and prompt services. Protestants presented seven witnesses who testified that they opposed the application based on L & B's alleged lack of fitness, alleged failure to demonstrate a need for the proposed service, and alleged potential loss of revenue and traffic to themselves. In July 1986, the LPSC denied certification. In September 1986, the LPSC, by a split 3-to-2 vote, granted L & B's request for reconsideration. On December 2, 1986, L & B amended its application to "restrict against the transportation of molasses." And, on December 10, 1986, the LPSC, with one commissioner dissenting and one voting to deny, rendered an order granting L & B's application. In March 1987, the LPSC, by a split 3-to-2 vote, denied Protestants' request for rehearing and confirmed its earlier grant of authority to L & B.

Five existing common carriers--Stephens, Matlack, Inc., DSI, Groendyke, Jobbers Oil Transport, Inc. ("JOTCO"), and Dupre Transport, Inc. ("Dupre") (collectively the "Intrastate Carriers")--timely sought judicial review pursuant to LSA-R.S. 45:1192 in the Nineteenth Judicial District Court, Parish of East Baton Rouge. The LPSC answered the appeal, generally denying all the allegations of the petition. L & B intervened, uniting with the LPSC in opposing the appeal.

Before the district court, Intrastate Carriers alleged that the LPSC's grant of common carrier authority was not supported by the evidence in the record and was thus arbitrary and capricious. They further alleged that they will suffer serious economic harm as a result of the LPSC's actions. Finally, quoting the language of LSA-R.S. 45:1192, they prayed that this appeal "shall be given precedence over all other civil cases in the court, and shall be heard and determined as speedily as possible." Despite the latter prayer, this case remained in abeyance for over two years.

In September 1989, the district court rendered its initial decision, reversing the LPSC. The core of the district court's written reasons for judgment is found in the following excerpt:

A close evaluation of the testimony of the supporting shippers has led to the conclusion that the evidence of need required by La.R.S. 45:164 is not present.... The transcript consists of general, conclusory and self-serving statements which are insufficient to prove that the public convenience and necessity require additional service. CTS [Enterprises, Inc. v. Louisiana Public Service Comm'n, 540 So.2d 275, 280 (La.1989) ]. Allegations of carrier service failure must be proven by facts [sic] specific instances where the shipper was unable to transport its commodity due to inadequate service....

This record is devoid of specific instances where a shipper has been unable to ship its commodity due to inadequate service. Instead, the testimony is full of generalized statements devoid of documentation or proof.... A factual review of the

Page 648

testimony has led to the conclusion that the burden of L and B has not been met.

The district court, in support of its decision, cited two of this court's decisions dealing with the need to establish the elements of public convenience and necessity. First, citing CTS Enterprises, supra, the court noted that the fact the carrier will provide excellent service does not suffice to establish that the public convenience and necessity will be materially promoted. Second, citing Miller Transporters, Inc. v. Louisiana Public Service Comm'n, 518 So.2d 1018 (La.1988), the court noted that the effect which granting a permit will have upon the existing carriers must be weighed in determining whether the public interest will be served by issuing a certificate. Applying these criteria, the court determined that the LPSC erred in granting L & B's application. Accordingly, the court rescinded L & B's common carrier certificate and reinstated its contract carrier permit.

L & B responded by filing a motion for new trial, which the court granted. Thereafter, an evidentiary dispute arose between the parties, prompting Intrastate Carriers to file a Motion in Limine to restrict the evidence that could be presented at the new trial. The court granted the motion and limited the admissible evidence to that which was in existence at the time the matter was before the LPSC. 4 Based on that evidentiary ruling, no additional evidence was submitted, and in October 1992, the district court adopted its original written reasons for judgment rendered in September 1989 and reinstated its original decision. In adopting its prior written reasons for judgment as its ruling on the new trial, the court, noting the lengthy appellate delay, suspended the operation of its decision pending a ruling by this court on direct appeal.

From that decision, the LPSC and L & B timely perfected the instant appeal to this court pursuant to La. Const. Art. 4, Sec. 21(E). For the reasons that follow, we find, as did the district court, that the LPSC erred in granting L & B a certificate of public convenience and necessity.


As we write this opinion, six years have elapsed since the LPSC rendered the decision from which this appeal was taken. At the outset, we address a thorny procedural question raised by the parties. L & B strenuously urges that it should be allowed to introduce into the record additional evidence of its six year operating history since the LPSC granted its common carrier certificate. L & B contends that this evidence establishes, albeit after-the-fact, the correctness of the LPSC's decision. In support of this position, L & B relies heavily upon Red Ball Motor Freight, Inc. v. Louisiana Public Service Comm'n, 286 So.2d 337 (La.1973), in which we remanded to the district court for the purpose of allowing additional evidence pursuant to LSA-R.S. 45:1194. 5 On the other hand, Intrastate Carriers strongly oppose, contending that the LPSC's decision must be judged based on the evidence in the record, setting forth the conditions in the transportation industry at the time the LPSC's decision was made. Distinguishing Red Ball, supra, they note that the proffered evidence in that case--a cost study--did not involve post-hearing events or occurrences; whereas,

Page 649

the proffered evidence in this case involves just that.

We recognized in Red Ball that LSA-R.S. 45:1194 permits the court in a "proper case" to remand for the purpose of taking additional evidence. 286 So.2d at 340; see Illinois Central Railroad Co. v. Louisiana Public Service Comm'n, 240 La. 854, 125 So.2d 387, 388 (1961) (noting remand is appropriate when interest of justice requires it). Yet, we noted in White v. Louisiana Public Service Comm'n, 259 La. 363, 250 So.2d 368, 372 (1971), that such new evidence should be permitted only in "exceptional cases." We find that this is not such a case.

A remand for purposes of allowing additional evidence is inappropriate when such evidence is not necessary to the determination of the certificate's validity. 60 C.J.S. Motor Vehicles Sec. 92(11) (1969). The LPSC's determination of public convenience and necessity is based on the conditions in existence when the application is filed and in light of the then-existing facts. Guandolo, Transportation Law 66 (1965) ("Guandolo"); 60 C.J.S. Motor Vehicles Sec. 92(6) n. 43 (1969); Brook Ledge, Inc. v. Public Utilities Comm'n, 145 Conn. 617, 145 A.2d 590, 592 (1958); Arizona Corporation Comm'n v. Gibbons, 86 Ariz. 210, 212-13, 344 P.2d 167, 169-70 (1959); Corporation Comm'n v. Pacific Motor Trucking Co., 100 Ariz. 87, 89, 412 P.2d 33, 35 (1966). An assailment of the LPSC's determination cannot be based on facts and occurrences arising subsequent to the LPSC's hearing and findings. Gibbons, supra. Applying these principles here, we find that because the additional evidence L & B seeks to introduce--its six year post-hearing operating history--consists entirely of facts and occurrences arising subsequent to the LPSC's hearing and findings, LSA-R.S. 45:1194 is inapplicable. Thus, we, like the district court, restrict our review to the record.

We note, however, that L & B...

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