author: JOHNSON, Justice.

text:
    VOICESTREAM GSM I OPERATING CO., LLC and Cook Inlet/VS GSM IV PSC, LLC v. LOUISIANA PUBLIC SERVICE COMMISSION.
    Nos. 2005-CA-2578, 2005-CA-2579.
    Supreme Court of Louisiana.
    Nov. 29, 2006.

      Brian A. Eddington, Baton Rouge, for Appellant.
    Eve K. Gonzalez, Brandon M. Frey, Ann B. Hill, Jones, Walker, Waechter, Poitev-ent, Carrere & Denegre, Edward H. Ber-gin, Ryan E. Johnson, Baton Rouge, Shirley, Ezell, Guarisco & Marionneaux, Paul G. Guarisco, New Orleans, Kyle C. Mar-ionneaux, Baton Rouge, The Boles Law Firm, Janet S. Boles, Baton Rouge, for Appellee.
   JOHNSON, Justice.

pWe granted this writ application to address whether a fee imposed by a general order of the Louisiana Public Service Commission requiring telecommunications service providers to contribute to a state universal service fund constitutes a tax and therefore exceeds the scope of the Louisiana Public Service Commission’s constitutional authority and jurisdiction. The Plaintiffs, Voicestream GSM I Operating Co., LLC and Cook Inlet/VS GSM IV PSC, LLC, also known as “T-Mobile,” filed a direct appeal to review the lower court’s decision, which declared that the state universal service fee was not a tax, and therefore within the Commission’s authority and jurisdiction granted by the Louisiana Constitution and the Federal Telecommunications Act of 1996. For the foregoing reasons, we affirm the rulings of the lower court.

UFACTS AND PROCEDURAL HISTORY

Voicestream GSM I Operating Co., LLC and Cook Inlet/VS GSM IV PSC, LLC work together in the State of Louisiana to provide inter alia wireless telecommunications services. The companies jointly conduct business under the more widely known corporate name “T-Mobile.” T-Mobile, an independent commercial mobile radio service (“CMRS”), generally referred to as “cellular” service, provides wireless voice and data services to numerous consumers in many states, including Louisiana. In the present case, T-Mobile sought judicial review of the Louisiana Public Service Commission’s (“LPSC”) General Order, dated April 29, 2005, which established a funding for a State Universal Service Fund (“SUSF”) in the amount of $42,2274,141.00, to be funded by all the telecommunications service providers (“TSP”) including wireless carriers (i.e., T-Mobile) that are operating within the state of Louisiana.

When Congress established the Federal Communications Commission in 1934, it set forth the intent to create a universal service which would provide every person in the United States access to “rapid, efficient, nation-wide and world-wide wire and radio communication service with adequate facilities at reasonable charges.” 47 U.S.C. § 151.

| ?The LPSC is an executive branch of the State of Louisiana with constitutional authority to regulate communication services pursuant to LSA — Const, art. IV, § 21(B), which provides:

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

Historically, the LPSC has been challenged to achieve and maintain a universal service. Because there are fewer customers per mile, larger geographic service areas, and limited demand, the resulting low profitability discouraged companies from providing service to rural customers. To ensure affordable telecommunications services to rural and higher cost areas of the state, in 1989, the LPSC, in their effort “to modernize rural telephone service, to facilitate the flow of information in these areas, and reduce the inequities that result from the application of tolls to intrastate telephone calls of short distances” — stabilize the rates, concluded that the public interest warranted statewide implementation of a “Local Option Service” (“LOS”). Under the LOS plan, subscribers statewide could take advantage of extended local calling for calls that previously were billed as toll calls. Telephone subscribers would |4pay, in addition to their monthly phone bill, a flat rate for calls made outside the local calling area, but within twenty-two (22) to forty (40) miles without incurring “toll” charges. The LPSC found that “the implementation of LOS was to be a major step in making such calls more ‘local’ in nature.” While the LPSC mandated the implementation of the LOS plan statewide, the LPSC recognized that the rural companies’ revenues and earnings would be adversely impacted by this plan. Therefore, the LPSC required South Central Bell (now “BellSouth”) to subsidize the costs associated with implementing the LOS plan, which eliminated the financial burden on the rural Independent Local Exchange Carriers (ILEC).

On April 25,1996, the LPSC ordered the ILECs to implement a new form of intrastate long distance calling, “1+ presub-scription” for the intraLATA toll call in Louisiana. The implementation of this plan terminated BellSouth’s funding of the LOS plan for the benefit of local/rural telephone companies. Absent further actions by the LPSC, this plan would have caused the rural companies to continue to offer the LOS calling plans at revenue loss and without the receipt of the needed subsidy. As a result, the rural companies filed a petition asking the LPSC to establish a SUSF to preserve the LOS calling plan. Cognizant of the potential financial burden for the local rural telephone companies, the LPSC, BellSouth, and the local telephone companies reached a Settlement Agreement on November 18, 1998, which insured that both plans (LOS and “1 + presubscription”) would be maintained.

|sThe 1998 Agreement was known as the “Interim LOS Preservation Plan.” This Settlement Agreement excluded cellular providers, Competitive Local Exchange Carriers and independent companies from the requirement of contributing to the Interim LOS Preservation Plan. BellSouth was the primary contributor of the funds for this interim plan. The interim plan was designed to remain in effect for only three (3) years; BellSouth filed a Motion with the LPSC requesting that it replace the Interim LOS Preservation Plan with a permanent fund supported by all TSPs. This would carry out the mandate of the Telecommunications Act which was enacted by Congress in 1996.

The Telecommunications Act of 1996 (“the Act”), allowed states to establish universal service funds to advance the- availability of telecommunications services in low income, rural, and high cost areas at reasonable rates comparable to the rates charged for similar services in urban areas. See, 47 U.S.C. § 254(b)(3). The specific purpose of the Act is to “promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies.” Pub.L. No. 104-104, 110 Stat. 56 (1996). Under the Act, the | fiincumbent local exchange carriers (“ILEC”) are required to provide access to their facilities to requesting telecommunications carriers, known as “competitive local exchange carriers.” 47 U.S.C. § 251. According to 47 U.S.C. § 253, the Act was created to foster competition by removing barriers to entry by an entity seeking to provide interstate or intrastate telecommunications service. While seeking to promote competitive markets, Congress also sought to preserve the goal of “universal service,” therefore, Congress directed the Federal Communications Commission (“FCC”) to establish a federal-state joint board to assist in implementing the universal service principles found in the Act. Simply put, the Act was intended to deregulate the telecommunications industry, open local and long distance telecommunications markets to competition, and ensure universal telephone service for all citizens at affordable rates.

Accordingly, Congress explicitly authorized the collection of funds to support universal service programs. AT & T Corp., et al. v. Public Utility Commission of Texas, 373 F.3d 641, 643 (5th Cir.2004). All interstate telecommunications service providers contribute to the federal universal service fund, which is an equitable and nondiscriminatory fee paid to preserve and advance the universal service. 47 U.S.C. § 254(d). Congress empowered the States to collect funds from carriers providing 17intrastate telecommunications services. AT & T, id. As with the federal universal service fund, the assessment of state universal funds must be equitable, nondiscriminatory, and not burdensome to the federal universal service system. 47 U.S.C. § 254(f). In other words, the State may adopt regulations consistent with the Federal rules to preserve and advance universal service. This permits the FCC to access interstate service providers to fund the federal universal service programs and permits the States to assess intrastate providers to fund the state universal service programs. AT & T, at 644.

In August 2004, the LPSC began taking the necessary procedural steps (i.e., the rulemaking process) in order to implement the Telecommunications Act of 1996 and consider the creation of a SUSF. The universal fund would assume the function(s) of the “Interim LOS Preservation Plan,” but for the first time required contributions from all TSP (including wireless carriers).

l8On April 29, 2005, the LPSC issued a General Order which converted the “Interim LOS Preservation Plan,” to a SUSF to subsidize the LOS functions. The validity of this Order is at issue in this present case before this Court. This Order mandated that all TSPs, including wireless carriers such as T-Mobile, contribute to the SUSF. This Order also provided that each TSP be allowed to recover the amounts contributed from its customers (i.e. “end users”) either by a surcharge (i.e. a line item charge on the customer’s bill) or by including the contribution in the rates the carrier charges its customer. Also, the TSPs were allowed to recover additional administrative costs for collecting and remitting to SUSF. The contributions, which were to be administered by a third party, were based on the intrastate telecommunications end-user revenues from providing service in Louisiana. This third party administrator would distribute the funds to local rural telephone companies. Bell-South’s financial obligation was decreased upon the enactment of this plan because all TSPs contributed to the fund. Although T-Mobile was not required to contribute to the Interim LOS Preservation Plan, the April 29, 2005, General Order mandates that all TSP, including wireless carriers, contribute.

On June 7, 2005, T-Mobile filed a Petition for Declaratory Judgment and Injune-five Relief, pursuant to LSA-R.S. 49:963, seeking to enjoin the enforcement 19of the LPSC’s General Order of April 29, 2005. T-Mobile argued that the Order “constitutes the imposition of a tax in violation of constitutional and statutory provisions and in excess of the Commission’s jurisdiction” pursuant to the provisions of LSA-Const. art. IV, § 21 and art. VII, § T-Mobile argued that the contributions collected would go to neither the LPSC nor any other entity associated with the regulatory system. T-Mobile maintained that the contribution “is not intended to defray any costs incurred in the administration of any regulatory program,” instead will be distributed to private businesses for sole purpose of subsidizing the costs of rural telecommunications carriers, which constitutes an illegal imposition of a tax.

On June 27, 2005, BellSouth, whose funding obligations will be significantly reduced on the implementation of the SUSF, intervened in the action and also opposed T-Mobile’s application for preliminary injunction. BellSouth maintained that the SUSF is an exercise of the LPSC’s regulatory authority and is not a tax. |inBecause the LPSC’s April 29, 2005, General Order did not impose a tax, it is therefore not an unconstitutional exercise of taxing authority.

The Small Company Committee (“SCC”) of the Louisiana Telecommunications Association and several rural telephone companies (collectively “LTA”) also filed a petition of intervention and answer, opposing T-Mobile’s position. They asserted that they are the only providers of “ubiquitous, land-line, high-quality, facilities-based service throughout their respective areas” and if they lose the ability to continue investing in their networks, some rural Louisiana areas may be deprived of the basic universal service where such high-quality land-line services are available at affordable rates. The LTA noted that this outcome would be at odds with the universal service principles codified by Congress in the 1996 Telecommunications Act, and the LPSC’s regulations and policies. The LTA also claimed that the LPSC’s Order was properly adopted pursuant to its regulatory and rulemaking authority under LSA-Const. art. IV, § 21.

On June 30, 2005, the LPSC filed an Exception of No Cause of Action, arguing that T-Mobile procedurally failed to appeal the LPSC’s action according to LSA-R.S. 45:1192, but instead requested a declaratory judgment under LSA-R.S. 49:963, a In statute which is contained in the Louisiana Administrative Procedure Act (“LAPA”) and which sets out administrative procedures for agencies other than the Commission. See, La. Consumers’ League v. LPSC, 351 So.2d 128 (La.1977).

On August 24, 2005, the trial court denied T-Mobile’s request for a preliminary injunction and/or a stay of the LPSC’s General Order of April 29, 2005, finding that the contribution imposed by the Commission in its General Order dated April 29, 2005, is not a tax, and is within the Commission’s authority and jurisdiction.” The trial court also found that the establishment of the SUSF is an exercise of the LPSC’s rate making authority granted by the Louisiana Constitution and the Telecommunications Act of 1996. The trial court noted that according to LSA-C.C.Pr. art. 3601, a preliminary injunction is warranted when the party proves: 1) the likelihood to prevail on the merits; 2) irreparable injury; and 3) the entitlement of relief sought. Here, the trial court acknowledged that this case hinges on whether or not the assessment of the SUSF constitutes a tax. The trial court held that the evidence, law, and jurisprudence support its findings that the subsidy assessment does not constitute a tax. After analyzing Audubon Insurance Co. v. Bernard, 434 So.2d 1072 (La.1983) and Radiofone, Inc. v. City of New Orleans, 93-0962 (La.1/14/94); 630 So.2d 694, the trial court determined that the assessment was not a tax imposed for general revenue raising, but a regulatory fee authorized according to the LPSC’s police power to assure the availability of universal service at a reasonable rate. The trial court held, according to Citizens’ Utility Ratepayer Bd. v. State Corporation Comm’n, 264 Kan. 363, 956 P.2d 685 (1998), which the trial court describes as being the “most compelling case” similar to the case at bar, that:

l^the assessment, or surcharge in that case, as with the assessment in the case sub judice, was not to raise revenue, but rather, to assure universally available service at a reasonable rate. That doesn’t meet the jurisprudential definition of a tax. Also, in both cases, the money collected was not offered to the general public for expenditure at its discretion. Clearly, the use of the assessment is the allocation of costs for the administration of a regulatory program which has its origins back to 1989....

The trial court cited LSA-Const. art. VII, § 3(A), which prohibits the issuance of injunctive relief to restrain the collection of a tax. The trial court denied T-Mobile’s preliminary injunction and the request for a stay of the enforcement of this order.

On September 19, 2005, the trial court ruled on T-Mobile’s and the LPSC’s cross-motions for partial summary judgment, and for the reasons given on August 24, 2005, determined that the required contributions to the SUSF constituted fees, and not taxes. The trial court also denied T-Mobile’s request for a temporary restraining order.

On September 21, 2005, T-Mobile filed a Consolidated Motion and Order for Appeal, requesting that the following judgments be consolidated for appeal: 1) the [ ^denial of T-Mobile’s preliminary injunction; 2) the denial of T-Mobile’s Motion for Partial Summary Judgment; and 3) the denial of T-Mobile’s TRO. The trial court granted this motion. On that same day, T-Mobile filed an Exparte Motion for Partial Dismissal of the Gautreau Group, LLC, which was granted.

T-Mobile filed a direct appeal with this Court pursuant to LSA-Const. art. IV § 21(E).

DISCUSSION

Standard of Review

Before addressing whether the trial court erred in denying T-Mobile’s preliminary injunction, issuance of a temporary restraining order, or motion for partial summary judgment, we note that this matter involves a challenge of the LPSC’s Order, requiring all telecommunications service providers, including wireless carriers, contribute to a State Universal Service Fund (“SUSF”). The LPSC is vested explicitly and implicitly with constitutional power necessary to the performance of its function of regulating common carriers and public utilities through the adoption and enforcement of reasonable rules, regulations, and procedures requisite to those purposes. See, LSA-Const. art. IV, § 21; Bowie v. LPSC, 627 So.2d 164 (La.1993). |uThe Louisiana Constitution grants the LPSC plenary authority over the regulation of all public utilities thereby providing a broad and independent power and authority to regulate. Entergy Gulf States, Inc. v. LPSC, 98-0881 (La.1/20/99), 726 So.2d 870.

In reviewing T-Mobile’s challenge of the LPSC’s Order, this Court stated it best in Alma Plantation v.LPSC, 96-1423 (La.1/14/97), 685 So.2d 107, when it stated that:

The general rule is that an order of the Public Service Commission should not be overturned unless it is shown to be arbitrary, capricious, a clear abuse of authority, or not reasonably based upon the factual evidence presented. Washington St. Tammany Electrical Coop., Inc. v. Louisiana Public Service Comm’n, 95-1932 (La.4/8/96), 671 So.2d 908, 912; Radiofone, Inc. v. Louisiana Public Service Comm’n, 573 So.2d 460, 461 (La.1991). The function of the reviewing court is not to re-evaluate and re-weigh the evidence, or to substitute its judgment for that of the Commission. Washington St. Tammany, supra, at 912; Louisiana Power & Light Co. v. Louisiana Public Service Comm’n, 343 So.2d 1040, 1044 (La.1977). The Commission is entitled to deference in its interpretation of its own rules and regulations, though not in its interpretation of statutes and judicial decisions. Washington St. Tammany, supra, at 912; Dixie Electric Membership Corp. v. Louisiana Public Service Comm’n, 441 So.2d 1208, 1211 (La.1983).

(Emphasis added).

This Court held that the LPSC is “an expert within its own specialized field and its interpretation and application of its own General Orders, as distinguished from legislative statutes and judicial decisions, deserve great weight, because the Commission is in the best position to apply its own General Orders.” Entergy Gulf States, Inc. v. Louisiana Public Service Com’n, (La.2000) 766 So.2d 521. This Court has also held that the LPSC’s orders enjoy a presumption of validity. Transway, Inc. v. LPSC, 253 La. 933, 221 So.2d 53, 55 (La.1969). The LPSC’s power is as complete in every respect as the regulatory power that would have been vested in the legislature in the |1Babsence of LSA-Const. art. IV § 21(B). Therefore, the legislature’s acts or omissions can not subtract from the LPCS’s exclusive, plenary power to regulate all common carriers and public utilities. See, Global Tel*Link, Inc. v. Louisiana Public Service Com’n, 97-CA-0645 (La.1/21/98), 707 So.2d 28.

Now, we must address the primary issue presented before this Court-whether the trial court erred in finding that the LPSC’s General Order dated April 29, 2005, levied a “fee” arising under the Commission’s general ratemaking jurisdiction provided in the LSA-Const. art. IV, § 21 rather than a tax in contravention of LSA-art. VII, § 2. Simply stated, we must address whether the SUSF is a tax or a regulatory fee within the authority of the LPSC.

Is the SUSF a Tax?

T-Mobile suggests that the LPSC’s General Order of April 29, 2005, purportedly levied a “tax,” as opposed to a “fee,” against all TSPs. T-Mobile argues that the required contributions are not “fees” necessary for the regulation of the TSPs, but rather, T-Mobile suggests that these contributions are unconstitutionally levied “taxes” intended to raise revenue for the subsidization of local telephone companies. Also, T-Mobile argues that these “fees” do not go toward the “defrayal of the costs of administration of a regulatory program,” but instead, the “fees” are given to a third party for disbursement to rural phone companies.

|1fiThis Court delineated the difference between a “fee” and a “tax” in Audubon, supra, wherein the Court stated:

It is well settled generally and in Louisiana that not every imposition of a charge or fee by the government constitutes a demand for money under its power to tax. If the imposition has not for its principal object the raising of revenue, but is merely incidental to the making of rules and regulations to promote public order, individual liberty and general welfare, it is an exercise of the police power. In similar fashion, the police power may be exercised to charge fees to persons receiving grants or benefits not shared by other members of society. But if revenue is the primary purpose for an assessment and regulation is merely incidental, or if the imposition clearly and materially exceeds the cost of regulation or conferring special benefits upon those assessed, the imposition is a tax.

Id. at 1074.

This Court reiterated in Safety Net For Abused Persons v. Segura, 96-1978 (La.4/8/97), 692 So.2d 1038, that'a fee is a regulation of public order whereas a tax’s primary purpose is to raise revenue.

The courts in other jurisdictions that have considered this issue have consistently held that charges imposed to reallocate costs between utilities or telecommunications companies are not taxes. Rather, these courts have consistently held the charges are regulatory fees designed to implement a regulatory program. In Schumacher v. Johanns, 272 Neb. 346, 722 N.W.2d 37, the Nebraska Supreme Court held that the Nebraska Telecommunications Universal Service Fund Act (“NTUSFA”) is a constitutional delegation of legislative authority to the Public Service Commission (“PSC”). In that case, Nebraska subscribers, who received telecommunications services and was charged a fee of 6.95 percent of their intrastate telephone service revenues, sought a declaratory judgment that the NTUSFA was unconstitutional and also sought to enjoin the continued implementation and enforcement of said fund. The Nebraska District Court denied the subscribers’ relief, holding that:

the surcharge imposed under the NTUSFA was not a tax because “it is not a forced contribution intended to raise revenue for the maintenance of government or governmental services offered to the general public,” but, rather, is a “regulatory measure” designed to replace revenues lost by telecommunications providers “as a result of the removal of implicit support previously contained in their rates and access charges” with explicit support authorized by the NTUSFA.

The Nebraska Supreme Court affirmed the district court’s ruling and held that:

we conclude that the primary purpose of the NTUSFA is not to generate revenue for governmental purposes, but, rather, to regulate the telecommunications industry through a rebalancing and restructuring of rates. The funding mechanism established by the NTUSFA enables the replacement of implicit subsidies with explicit subsidies in order to achieve universal service under the new, competitive market environment brought about by the Telecommunications Act. The NTUSFA directs that “[t]he implicit support mechanisms in intrastate access rates throughout the state may be replaced while ensuring that local service rates in all areas of the state remain affordable.... ” The surcharge is imposed only on end-user revenues from telecommunications services, and payments from the Fund are made only to eligible telecommunications companies for the sole purpose of “provision, maintenance, and upgrading of facilities and services for which the support is intended.” Based upon our independent review, we conclude that the surcharge assessed by the PSC pursuant to the NTUSFA is not a tax.

|isln Citizens, supra., the Kansas Supreme Court addressed this same issue after Kansas enacted legislation in response to the Telecommunications Act of 1996. In that case, the Kansas legislation established a Universal Service Fund (“USF”) and authorized the Kansas Corporation Commission (“KCC”) to assess all telecommunications carriers, public utilities, and wireless service providers a surcharge for support of the fund. The act also authorized the providers to collect from their customers an amount equal to the required contributions to the fund. Pursuant to these mandates, the KCC required all intrastate telecommunications providers to pay into the fund 14.1 percent of their intrastate retail revenues. The KCC then authorized the providers to pass this assessment through to their customers over a 3-year period, with the highest charge being $3.21 per month. A provider challenged the assessment, arguing that it was a tax which the KCC lacked constitutional authority to impose.

The Kansas court disagreed, reasoning that the surcharge was not a tax because it did not raise revenue. The Kansas Supreme Court concluded that the primary purpose of the fund surcharge was not to raise revenue. As such, the surcharge was not a tax. Citizens’ Utility Ratepayer Bd., 264 Kan. at 400, 956 P.2d at 709-10.

Also, the North Carolina Supreme Court, in State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., 336 N.C. 657, 446 S.E.2d 332 (1994), upheld a statute authorizing the utility commission to create a fund for the expansion of natural gas service to the areas where there was no service. The utility commission ordered millions of dollars in supplier refunds to be deposited into the expansion fund. This order was challenged by a citizen’s group, who argued that the capture of the |, asupplier refund constituted a tax and because the funds were not used for the public purpose, it was an improper exercise of taxing power under the North Carolina Constitution. The Supreme Court concluded that the capture of the refunds was not an unconstitutionally levied tax.

In Consumer Power v. ABATE, 205 Mich.App. 571, 518 N.W.2d 514 (1994), the Michigan Court was faced with a similar situation when a private company sought to impose rate surcharges to recover costs associated with its participation in an energy assistance program. A challenger argued that the surcharges surmounted to a tax on qualified ratepayers. The Supreme Court found that the surcharges were intended to benefit only the participating utilities and not the general public; thus the surcharges were not an unconstitutionally levied tax.

Here, in the case sub judice, the contributions associated with the SUSF are imposed only on end-user revenues from the TSP and are not intended to raise revenue. Rather, the LPSC is using its regulatory authority to allocate the costs for the administration of a regulatory program. As such, the trial court correctly found that the SUSF was, in fact, a “fee” and not an unconstitutional levied “tax.” Because we have determined that the SUSF is a “fee”, there is no need to discuss the limitations to the “Power to Tax” delineated in LSA-Const. art. VII, § 2.

In determining whether the LPSC acted within the scope of its authority when it issued the order requiring all TSPs, including wireless carriers, to contribute to the 1 ?,nSUSF which will subsidize the rural telephone companies, we note, as supported by the above jurisprudence, that the LPSC, unlike other agencies, derives its authority and jurisdiction from the LSA-Const. art. IV, § 21, which gives the LPSC power to regulate, adopt, and enforce rules and regulations necessary as it relates to public utilities, i.e. TSP. The mandate imposed on all the TSPs, including the wireless carriers, is expressly authorized by the Telecommunications Act of 1996 and 47 U.S.C. § 254(f), which mandate that TSPs contribute to the federal universal service 12ifund and empower states to collect fees to establish SUSF including requiring contributions from wireless carriers.

After a thorough review of LSPC’s General Order dated April 29, 2005, we conclude that the implementation of the SUSF is consistent with the Louisiana Constitution as well as with the Telecommunications Act of 1996. Because the LPSC’s order is accorded great weight, it may not be overturned absent an affirmative showing that the decision was arbitrary, capricious, or a clear abuse of discretion or not based on the factual evidence presented.

AFFIRMED.

      . "TSP" is a generic term used to refer to any person or entity offering and/or providing telecommunications services for compensation or monetary gain.

      . 47 U.S.C. § 151 provides that:
      For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is created a commission to be known as the "Federal Communications Commission”, which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter.

      . See, LPSC Order No. U-23267. In 1989, because the LPSC concluded that the LOS plan would reduce revenues by $19-20 million, the LPSC decreased BellSouth’s rate by $19.4 million, which adjusted its portion of the shared intraLATA revenues with the ILECs to ensure that their revenues were not adversely affected by LOS.

      . See, LPSC Order No. U-17949, Subdocket "F." “IntraLATA” is defined as "telecommunications services that originate and end in the same Local Access and Transport Areas.”

      . See, LPSC Order No.U-23267.

      . 47 U.S.C. § 254(b)(3) provides, in pertinent part, that:
      Consumers in all regions of the Nation, including low-income consumers and those in rural, insular, and high cost areas, should have access to telecommunications and information services, including interex-change services and advanced telecommunications and information services, that are reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas.

      . Prior to the passage of the Act, local telephone service was generally provided by carriers that provided such service as a regulated monopoly.

      . 47 U.S.C. 253 provides, in pertinent part, that:
      No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.

      . 47 U.S.C. § 254(d) provides that:
      Every telecommunications carrier that provides interstate telecommunications services shall contribute, on an equitable and nondiscriminatory basis, to the specific, predictable, and sufficient mechanisms established by the Commission to preserve and advance universal service. The Commission may exempt a carrier or class of carriers from this requirement if the carrier's telecommunications activities are limited to such an extent that the level of such carrier's contribution to the preservation and advancement of universal service would be de minimis. Any other provider of interstate telecommunications may be required to contribute to the preservation and advancement of universal service if the public interest so requires.

      . Section 254(f) of the Federal Act provides that:
      (f) A State may adopt regulations not inconsistent with the Commission's rules to preserve and advance universal service. Eveiy telecommunications carrier that provides intrastate telecommunications services shall contribute, on an equitable and nondiscriminatory basis, in a manner determined by the State to the preservation and advancement of universal service in that State. A State may adopt regulations to provide for additional definitions and standards to preserve and advance universal service within that State only to the extent that such regulations adopt additional specific, predictable, and sufficient mechanisms to support such definitions or standards that do not rely on or burden Federal universal service support mechanisms.

      . Specifically, the general order's provision allowing wireless carriers to pass along the costs involved in the universal service fund fees provided:
      [LPSC] Staff recommends that each TSP contributing to the SUSF should be free to determine whether to explicitly recover the contribution through an end-user surcharge appearing on the monthly bill or to incorporate the amount into the cost of the carrier's service offering.

      . LSA-R.S. 49:963 provides, in pertinent part, that:
      A. (1) The validity or applicability of a rule may be determined in an action for declaratory judgment in the district court of the parish in which the agency is located.
      * * * * *
      C. The court shall declare the rule invalid or inapplicable if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was adopted without substantial compliance with required rulemaking procedures.
      D. An action for a declaratory judgment under this Section may be brought only after the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question and only upon a showing that review of the validity and applicability of the rule in conjunction with review of a final agency decision in a contested adjudicated case would not provide an adequate remedy and would inflict irreparable injury.

      .LSA-Const. art. VII, § 1 provides that:
      (A) Except as otherwise provided by this constitution, the power of taxation shall be vested in the legislature, shall never be surrendered, suspended, or contracted away, and shall be exercised for public purposes only.
      (B) The power to tax may not be exercised by any court in the state, either by ordering the levy of a tax, an increase in an existing tax, or the repeal of an existing tax exemption or by ordering the legislature or any municipal or parish governing authority or any other political subdivision or governmental entity to do so.

      . BellSouth also maintained that T-Mobile did not possess a real interest in this matter as the contribution will be collected from the consumer.

      . LSA-R.S. 45:1192 provides, in pertinent part, that:
      If any of the persons ... shall be dissatisfied with any order entered by the commission, ... the dissatisfied person may, within forty-five days after the order made by the commission becomes effective, file in a court at the domicile of the commission, a petition setting forth the particular cause of objection to the order or regulation of the commission complained of.... The court may affirm the order of the commission complained of, or it may change, modify, alter, or set it aside, as justice may require.

      . LSA-Const. art. VII, § 3(A) provides that:
      The legislature shall prohibit the issuance of process to restrain the collection of any tax. It shall provide a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer.

      . As it relates to cross motions for partial summary judgment, which were filed on September 15, 2005, the parties waived service of process and agreed to submit the motion on briefs. The trial court denied T-Mobile’s motion, but granted the LPSC's motion.

      . On September 19, 2005, T-Mobile filed a First Amended Petition, naming the Gautreau Group, LLC, as an additional defendant. The LPSC hired the Gautreau Group, LLC, to serve as the Universal Service Fund Administrator to handle the administrative duties associated with the SUSF. Gautreau was hired to collect the contributions paid by the TSPs and disburse the monies according to the April 29, 2005, General Order. T-Mobile argued that it or any other TSP, which was obligated to pay for the administrator’s services, was permitted to participate in or review the selection of the administrator.

      .LSA-Const. art. IV, § 21(E) provides:
      Appeal may be taken in the manner provided by law by any aggrieved party or interve-nor to the district court of the domicile of the commission. A right of direct appeal from any judgment of the district court shall be allowed to the supreme court. These rights of appeal shall extend to any action by the commission, including but not limited to action taken by the commission or by a public utility under the provisions of Subparagraph (3) of Paragraph (D) of this Section.

      . A thorough review of the record revealed that T-Mobile made the same argument in its preliminary injunction, TRO, and Motion for Partial Summary Judgment; therefore, we need only briefly refer to these matters.

      . See, Radiofone, supra, where this Court held that a city's occupational license tax, which was greater than any imposed by the state and was not authorized by law enacted by the prescribed legislative supermajority, is unconstitutional.

      . In Audubon, where an insurer challenged the constitutionality of an act, which required the insured to pay an additional percentage of its premium to, not only the Louisiana Insurance Rating Commission, but the Firefighters’ Retirement System, this Court held that the legislative act levied a “new tax” because the primary purpose for the assessment was to raise revenue. This Court specifically noted that the assessment of charges for the purpose of improving fire protection and reducing fire insurance rates is not an incident of the insurance rating commission's regulatory function. Thus, this Court concluded that the assessment was unconstitutional.

      .In Safety Net, a nonprofit corporation filed a mandamus action against the city clerk of court and the city judge to enforce collection of additional fees in criminal and civil cases for the benefit of the nonprofit corporation. In that case, this Court held that the fees imposed constituted a tax which violated the separation of powers provision because the fees were not related to the administration of justice.

      . LSA-Const. art. VII, § 2 provides that:
      The levy of a new tax, an increase in an existing tax, or a repeal of an existing tax exemption shall require the enactment of a law by two-thirds of the elected members of each house of the legislature.

      . T-Mobile argues in brief that 47 U.S.C. § 332(C)(3) preempts the State's authority over cellular telephone rates and services, providing that "no State ... shall have any authority to regulate the entry of or the rates charged” by wireless carriers. T-Mobile argues that the States have the authority to regulate "other terms and conditions of service,” however, States may exercise ratemak-ing jurisdiction over wireless carriers only by obtaining authorization from the FCC. T-Mobile argues that the LPSC has not obtained such authorization.
      Procedurally, we note that the issue is not properly before this Court since T-Mobile failed to plead it in its Petition for Declaratory Judgment and Injunctive Relief; it was not ruled upon by the trial court; nor was it listed as an Assignment of Error in T-Mobile’s brief submitted to this Court.
      Specifically, T-Mobile argues that the LPSC does not exercise rate-making jurisdiction over wireless carriers pursuant to the Omnibus Reconciliation Act of 1993, which provides in pertinent part, that:
      ... no State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service ... See, 47 U.S.C. § 332(c)(3)(A).
      T-Mobile maintains that pursuant to this statute, States may exercise ratemaking jurisdiction over wireless carriers only by first obtaining authorization from the FCC. T-Mobile submits that LPSC has failed to sought such authorization.
      In contrast, the LPSC asserts that 47 U.S.C. § 254(f) authorizes the contribution to the SUSF from all TSPs, including wireless carriers. In Bell Atlantic Mobile v. Dept. of Public Utility Control, 253 Conn. 453, 754 A.2d 128 (6/13/00), a commercial mobile radio service provider (wireless carrier), which was licensed by the Federal Communications Commission (FCC) to provide cellular service, sought judicial review of the Connecticut Department of Public Utility Control’s order requiring all telecommunications providers, including wireless providers, to contribute to the state lifeline program according to their intrastate and interstate gross revenues subject to the Connecticut sales tax. The wireless provider argued that 47 U.S.C. 322(c)(3)(A) precludes the Department from imposing a funding requirement on wireless providers. The Connecticut Supreme Court thoroughly analyzed both sections 332(c)(3)(A) and 254(f) of title 47 and concluded that the Department was authorized to impose a funding requirement on wireless providers as the federal law did not preempt state requirement of provider participation in universal service programs.
      This case is parallel to Bell Atlantic in that T-Mobile argues that the LPSC, like the Connecticut Department of Public Utility, is not authorized to mandate wireless providers to contribute to the SUSF.

      . 47 U.S.C.A. § 254(f) provides that:
      A State may adopt regulations not inconsistent with the Commission’s rules to preserve and advance universal service. Every telecommunications carrier that provides intrastate telecommunications services shall contribute, on an equitable and nondiscrim-inatoiy basis, in a manner determined by the State to the preservation and advancement of universal service in that State. A State may adopt regulations to provide for additional definitions and standards to preserve and advance universal service within that State only to the extent that such regulations adopt additional specific, predictable, and sufficient mechanisms to support such definitions or standards that do not rely on or burden Federal universal service support mechanisms.


source: Caselaw Access Project

author: WEIMER, Justice. JOHNSON, J.,

license: Public Domain

text:
    STATE of Louisiana v. Keith MARSHALL a/k/a Gregory Marshall.
    No. 2004-K-3139.
    Supreme Court of Louisiana.
    Nov. 29, 2006.

      Charles C. Foti, Jr., Attorney General, Eddie J. Jordan, Jr., District Attorney, Battle Bell, IV, Assistant District Attorney, for Applicant.
    Christopher A. Aberle, Mandeville, for Respondent.
   WEIMER, Justice.

h Charged by the State with possession of cocaine in violation of LSA-R.S. 40:967(C), Keith Marshall (Defendant), also known as “Gregory Marshall,” waived a jury and elected a bench trial. The trial court found respondent guilty as charged and sentenced him to five years at hard labor. A multiple bill hearing was held immediately, after which the sentence was vacated. Defendant was then sentenced to 25 years as a fourth offender.

The court of appeal reversed Defendant’s conviction and sentence on grounds of insufficient evidence. The court found the trial court’s remarks supporting its verdict at the close of the case appeared so internally inconsistent that the remarks undermined the court’s credibility determinations and eroded any rational basis for rejecting Defendant’s exculpatory testimony in favor of conflicting police testimony. State v. Marshall, 04-1143 (La.App. 4th Cir.11/17/04, 886 So.2d 703)(unpub’d).

Having granted the State’s writ application, State v. Marshall, 04-3139 (La.6/16/06), 931 So.2d 360, we reverse that decision because the court of appeal erred by substituting its evaluation of the trial judge’s subjective decision-making process 1 ¡¿for the purely objective inquiry-required by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (An appellate court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”)

FACTS AND PROCEDURAL HISTORY

Defendant’s present conviction stems from a traffic stop on September 23, 2003, by New Orleans Police Officers Machant Paxton and Curtis Barre, who were conducting a routine patrol on Chef Menteur Highway when they noticed a vehicle with its tail lights out and decided to pull it over. At trial, Officer Paxton testified that he approached the passenger side of the vehicle driven by Defendant after it rolled to a stop, while Officer Barre walked to the driver’s side. As Officer Paxton looked through the window, he observed Defendant remove a clear, plastic bag from his pocket and place it on the passenger-side floorboard of the vehicle. The officer then opened the door and retrieved the bag which contained several pieces of rock cocaine. According to Officer Paxton, Defendant was the sole occupant of the vehicle, and he identified himself as Keith Marshall.

Officer Barre also testified that Defendant was alone in the car. However, in contrast to Officer Paxton’s testimony, Officer Barre stated that it was he who went to the passenger side of the car and stood near the gas tank for safety reasons while | .¡Officer Paxton positioned himself on the driver’s side. After Officer Paxton asked Defendant for his license, which Defendant could not produce, he walked around to Officer Barre’s side of the car, opened the door and retrieved the bag of cocaine. Officer Barre issued the traffic citation to Defendant in the name of Gregory Marshall as opposed to the Defendant’s name, Keith Marshall. Because a check of the vehicle’s plate number revealed that the car, although not owned by Defendant, had not been stolen, the officers left the vehicle locked and secured on the scene and returned the key to Defendant before taking him to jail for booking.

On the other hand, Defendant claimed there was a passenger in the vehicle when he was pulled over by the police. Defendant testified that the passenger was in fact the owner of the vehicle, who had asked him to drive because he was suffering from severe gas pains and was disabled. According to Defendant, Officer Paxton approached the vehicle on the passenger side while Officer Barre stood on the driver’s side. When Officer Paxton opened the door on his side, the passenger, unable to stand, tumbled to the ground. However, Defendant testified that after he was placed under arrest, the officers allowed the passenger, despite his apparent disabilities, to leave the scene in his own car. Defendant further indicated that only Officer Barre approached the driver’s side of the car and that he identified himself to the officer as Keith Marshall. Defendant produced in court the clothing he had worn on the night of his arrest and at booking to demonstrate that he did not, in fact, have possession of the ignition key to the car. Defendant also produced a piece of paper identified as the booking sheet which was the only item in his pants pocket.

|¿Ultimately, there was no dispute that cocaine was found in the car occupied by Defendant. The defense centered around whether Defendant was alone,' as the police officers testified, or accompanied by a passenger, as Defendant testified. To resolve this case, the trial court was required to make a credibility determination.

Before delivering her verdict, the trial judge stated for the record that she had been leaning toward an acquittal. In the judge’s view, Defendant’s testimony about a passenger seemed plausible given the discrepancies in the accounts of the traffic stop given by Officers Paxton and Barre. Because Defendant and Officer Paxton had agreed that Paxton was the officer who approached the vehicle on the passenger side, the judge resolved to discount the testimony of Officer Barre altogether. In deciding whether Officer Paxton or Defendant had given the more credible testimony, the judge took into account that the citation written by Officer Barre identified respondent by an alias, Gregory Marshall. In addition to the ticket issued by Officer Barre, which reflected Defendant used an alias at the scene, the trial court pointed to a piece of paper, identified as the booking sheet from the jail, that also reflected Defendant used an alias. Thus, the trial court not only had documentation from Office Barre, but other information to conclude Defendant was untruthful.

Because Defendant had no driver’s license for identification, the court concluded that the alias could have come only from Defendant and that Defendant. had therefore lied about his name to conceal his prior felony record. The court had cautioned Defendant at the outset of the proceedings, when he waived a jury against defense counsel’s advice, that his prior felony record made trial a “life or death matter” if it led to a conviction and enhanced sentencing under La. R.S. 15:529.1. In the court’s view, Defendant’s apparent lie about his identity discounted his testimony entirely and left the judge with only Officer Paxton, who had given her no articulable | ¡¡reason to believe that he was not telling the truth. The court rendered its verdict accordingly, finding Defendant guilty as charged.

In reversing Defendant’s conviction and sentence, the court of appeal acknowledged that “an appellate court must defer to the fact finder’s credibility choices and justifiable inferences of fact, and it is not the function of this Court to assess credibility or to reweigh the evidence.” (Citations omitted.) Marshall, 04-1143 at 11. However, the court found that, in the present case, “the conclusion reached by the trial court that Mr. Marshall was untruthful and his testimony was not credible, based on the fact that he provided an alias to [the] officers, was unreasonable in light of the trial court’s decision to discredit the testimony of Officer Barre.” Id. at 14. The court of appeal thus could “find no rational basis for the trial court’s determination that the defendant was untruthful, in light of Officer Paxton’s testimony that the defendant gave the correct name ... at the time the defendant was arrested.” Id. Because the trial judge could not logically reject Officer Barre’s testimony altogether yet use it to discredit Defendant’s exculpatory testimony, the court of appeal concluded that the trial judge had erred “in finding that the State satisfied its burden of proof.” Id.

DISCUSSION

The court of appeal reached the wrong result because it lost sight of an important corollary of the Jackson standard of review, which permits an appellate court to impinge on the actual fact finder’s discretion “only to the extent necessary to guarantee the fundamental protection of due process of law.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (footnote omitted). Given this narrow compass, the Jackson standard neither permits a reviewing court to second guess the rational credibility determinations of the fact finder at trial, State ex tel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983), nor requires a reviewing court to consider the rationality of the thought processes employed by a particular fact finder in reaching a verdict. Jackson observed in this regard: “The question whether the evidence is constitutionally sufficient is of course wholly unrelated to the question of how rationally the verdict was actually reached. Just as the [rational fact finder] standard ... does not permit a court to make its own subjective determination of guilt or innocence, it does not require scrutiny of the reasoning process actually used by the factfmder-if known.” Jackson, 443 U.S. at 319 n. 13, 99 S.Ct. at 2789.

In Louisiana, the distinction noted by Jackson plays little or no role in the review of verdicts rendered by a jury because the thought processes of jurors in a criminal case are ordinarily completely beyond review by an appellate court. As noted in State v. Beavers, 364 So.2d 1004, 1009 (La.1978), Louisiana does not subscribe to special verdicts and otherwise follows the rule at common law that jurors generally may not testify with regard to their mental processes in connection with their verdict. See Tanner v. United States, 483 U.S. 107, 117, 107 S.Ct. 2739, 2745-46, 97 L.Ed.2d 90 (1987), now codified in LSA-C.E. art. 606(B). See also, State v. Abney, 347 So.2d 498, 502 (La. 1977), decided under the former La. R.S. 15:470, which was the precursor of LSA-C.E. art. 606(B). The focus of the inquiry-under Jackson thus necessarily remains on “not whether this jury should have found the evidence sufficient, but whether any jury could have done so.” United States v. Bomski 125 F.3d 1115, 1117 (7th Cir.1997) citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

On the other hand, in a bench trial, Louisiana law neither requires nor precludes a statement of reasons supporting the verdict returned by the court sitting as the fact finder in the case. State v. Pizzalato, 93-1415, p. 3 (La.App. 1st Cir. 110/7/94),7 644 So.2d 712, 714. If a trial judge chooses to do so, a statement of the court’s reasons may provide a useful guide for reviewing the sufficiency of the evidence under the Jackson standard. Harris v. Rivera, 454 U.S. 339, 344, 102 S.Ct. 460, 463-64, 70 L.Ed.2d 530 (1981) (“The work of appellate judges is facilitated when trial judges make findings of fact that explain the basis for controversial rulings.”). However, given the origins of Jackson in the Due Process Clause, the pertinent inquiry in judge trials must remain, as it does in jury trials, on the rationality of the result and not on the thought processes of the particular fact finder. See Rivera, 454 U.S. at 348, 102 S.Ct. at 466 (Trial judge had no constitutional duty to explain seemingly inconsistent verdicts rendered in a bench trial of co-defendants because “[e]ven assuming that this acquittal [of a co-defendant] was logically inconsistent with the conviction of respondent, respondent, who was found guilty beyond a reasonable doubt after a fair trial, has no constitutional ground to complain that [the co-defendant] was acquitted.”).

In the present case, we do not find that the trial judge acted in an irrational manner when she chose to rely on the traffic citation issued by Officer Barre contemporaneously with Defendant’s arrest for possession of cocaine, which along with the booking sheet contained an alias, even as she discounted the officer’s in-court testimony approximately four months later when the witness attributed his somewhat wayward recall of the arrest to a bout of the flu. Where the testimony of a witness is impeached in part, the trier of fact has discretion to accept those portions of testimony deemed credible. Stewart v. Allstate Ins. Co., 285 So.2d 556, 559 (La.App. 1 Cir.1973). Thus, it is entirely reasonable for the trial judge to discount | sOfficer Barre’s trial testimony four months after the incident yet rely upon the contemporaneous traffic ticket and the booking sheet.

Officer Paxton testified that Defendant identified himself properly as Keith Marshall, but there was conflict in the evidence at trial on this point. Even if we may assume, arguendo, that the name used by Defendant to identify himself at the time of arrest provided an unreliable basis on which to make rational credibility choices, the trial court was acutely aware of Defendant’s three prior felony convictions, the existence of which Defendant freely conceded during his direct testimony. These convictions provided him with a powerful incentive to extricate himself from the present prosecution and avoid the prospect of enhanced sentencing as a habitual offender. The trial court specifically mentioned Defendant’s record as providing Defendant with an incentive to be untruthful. That prior felony record provided a | nreliable basis in Louisiana law for the court, as well as any rational fact finder, to discount Defendant’s exculpatory testimony. See LSA-C.E. art. 609.1(A), which governs attacks on a witness’s general credibility (“In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions.”); State v. Sweeney, 443 So.2d 522, 529 (La.1983)(“Irre-spective of its relevance to the present prosecution, a conviction per se historically is a relevant factor for the trier of fact’s evaluation of a witness’ credibility.”). Overall, as the judge observed and as any rational fact finder might also conclude, the evidence presented at trial provided no articulable reason for doubting the credibility of Officer Paxton’s testimony, parts of which were corroborated by Defendant’s own account, as a basis for finding Defendant guilty as charged.

Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’s testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Le-grand, 864 So.2d 89, 94 (La.2003). Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984).

Although some discrepancy exists as to who approached which side of the car, both officers testified that they stopped Defendant because his taillights were off at 9:00 p.m. There was no evidence to contradict this fact. Both officers controverted Defendant’s testimony that he was driving with a passenger. Also, the discovery of cocaine in the car is not disputed. Considering these facts in a light most favorable to the prosecution, it was reasonable for the trial judge to rely on Officer Paxton’s testimony to find Defendant guilty. Ultimately, the trial court stated there was no reason to believe that Officer Paxton was not telling the truth and that Defendant’s | intestimony corroborated what Officer Paxton said, except as to the passenger being in the car with Defendant.

The trial court, therefore, rendered a verdict that any rational trier of fact considering the same evidence in a light most favorable to the State could also have returned.

CONCLUSION

Rather than review the evidence, the court of appeal scrutinized the reasoning process which the trial court engaged in to make its determination. The appellate court interposed its opinion and supplanted the trial judge’s verdict even though there was sufficient evidence to convict Defendant. Credibility calls are within the fact finder’s discretion and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d at 943. Accordingly, the court of appeal erred by reversing Defendant’s conviction and sentence based on insufficient evidence. The judgment of the court of appeal is therefore reversed, Defendant’s conviction and sentence are reinstated, and this case is remanded to the district court for purposes of execution of sentence.

REVERSED AND REMANDED.

JOHNSON, J., dissents and assigns reasons.

JOHNSON, J.,

dissents and assigns reasons:

hi respectfully dissent.

In this case, the trial court essentially had to make two credibility determinations. One centered around whether defendant Keith Marshall was alone in the vehicle, as testified to by the two arresting Police Officers, Curtis Barre’ and Mar-chant Paxton, or whether the defendant was the driver of the vehicle. Defendant claimed when arrested, he was driving the vehicle at the request of the owner, Tyreen Giles, who he contends was his passenger. At trial, both officers testified that they walked to the passenger side when they stopped the vehicle, which appears incredible when both maintained there was no passenger in the vehicle. Why would both officers approach the passenger side rather than the driver side. The trial judge commented, ... “[Ijnitially, that led me to believe that there must have been somebody sitting over there on the passenger side for both police officers to go over to the passenger side. There must have been somebody there.” “... [I]n essence, I asked Officer Barre’ how both of them ended up on that side, which meant 12somebody was going to have to go get Mr. Marshall off of the driver’s side.” Further, the trial judge noted that “The drugs came from somewhere. This mystery person that may or may not have been there, maybe it was just bad police work that both of them ended up on the same side, if that did happen.” The court ultimately decided that Officer Barre was not credible, and stated “... we’ve thrown Officer Barre’s testimony out.”

The second credibility determination that the court needed to make was whether the defendant gave an alias when he was arrested. The record shows that it was Officer Barre who did the paper work and listed the defendant by the name of Gregory Marshall, and not Keith Marshall, on the citation and the booking sheet. I agree with the appellate court that the conclusion reached by the trial court that the defendant was untruthful, and his testimony was not credible, based on the fact that he provided an alias to the police officers, was unreasonable in light of the trial court’s decision to discredit the testimony of Officer Barre’. After making a credibility determination to disregard Officer Barre’s testimony, the court could not rationally utilize the same testimony to discredit the defendant. I would affirm the reversal of the defendant’s conviction and sentence.

The standard for appellate review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722, (1998); State v. Barnes, 98-932 (La.App. 5th Cir.2/10/99), 729 So.2d 44, 46, writ denied, 99-1018 (La.9/17/99), 747 So.2d 1099. Under Jackson, a review of a criminal conviction record for sufficiency hof evidence does not require a court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Barnes, 729 So.2d at 46. A reviewing court is required to consider the whole record and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. Id. “[T]he Jackson standard does not serve as a vehicle for a reviewing court to second-guess the rational credibility determinations of the fact finder at trial.” State v. Juluke, 98-0341 (La.1/8/99), 725 So.2d 1291, 1293.

An appellate court must defer to the fact finder’s credibility choices and justifiable inferences of fact, State v. Lee, 94-2584, p. 7 (La.App.4Cir.1/19/96), 668 So.2d 420, 426, and it is not the function of the appellate court to access credibility. State v. Rosiere, 488 So.2d 965, 968 (La.1986).

The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.1/26/00), 775 So.2d 1022; State v. Silman, 95-0154 (La.11/27/95, 663 So.2d 27); State v. Gilliam, 36,118 (La.App. 2 Cir. 8/30/02), 827 So.2d 508, unit denied, 2002-3090 (La.11/14/03), 858 So.2d 422. Where there is conflicting testimony about factual matters, the resolution of which depends on a determination of credibility of the witnesses, this is a matter of the weight of the evidence, not its sufficiency. The credibility of witnesses will not be reweighed on appeal. State v. Hotoph, 99-243 (La.App. 5th Cir.11/10/99), 750 So.2d 1036, 1045, writ denied, 99-3477 (La.6/30/00), 765 So.2d 1062, writ denied, 00-0150 (La.6/30/00), 765 So.2d 1066.

      . In State v. Captville, 448 So.2d 676, 678 (La. 1984), the court stated:
      In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.

      . Before trial, defense counsel informed the trial judge that the passenger had been subpoenaed numerous times; however, he had refused to appear. The trial judge issued an instanter subpoena during the proceedings, but the subpoena was returned with the notation, “No service, medical reasons.” The record reflects defense counsel specifically declined to move for a continuance after conferring with Defendant. Marshall, 04-1143 at 4-5 n. 2.

      . As to Officer Barre's testimony, the court of appeal seems to have applied the Latin maxim falsus in uno, falsus in omnibus which means "false in one thing, false in all." However, "this is only primitive psychology, and should be completely discarded.” John H. Wigmore, A Students’ Textbook Of The Law Of Evidence 181 (1935); Black's Law Dictionary 620 (7th ed.1999). The falsus in uno doctrine is a harsh rule which should be applied with extreme caution and does not require total rejection of a witness's testimony. See Stewart, 285 So.2 at 559.
      Demonstrating Latin acumen, the court in Anglin v. White, 572 So.2d 779, 781 (La.App. 4 Cir.1990), stated:
      The application of the rule falsus in uno, falsus in omnibus is a matter within the discretion of the trier of fact; its pertinence in a given matter does not ipso facto require rejection in to to of the testimony of the witness. The weight to be given a witness’ remaining testimony is a matter to be determined by the trier of fact in light of the circumstances of each individual case. [Citations omitted.]
      Long ago this court specifically rejected a request for a jury instruction applying the doctrine in a criminal matter, finding it was for the fact finder to decide how to weigh a witness' testimony. See State v. Banks, 5 So. 18, 20, 40 La.Ann. 736, 739 (La.1888). The court stated:
      [T]b.e trial judge was ... correct in refusing the charge requested by counsel for the defense, embodying the legal maxim, falsus in uno, falsus in omnibus, .... As the [jurors] were the sole judges of the credibility of the witness, it was their right, untrammeled by any direction, check, or restraint on the part of the court, to adopt their own rules or modes of testing the credit to which the witness was entitled, and of weighting the value of his testimony.

      . The State points out the record on appeal includes the so-called "gist sheet” of Officer Paxton's police report, also written contemporaneously with Defendant’s arrest, which identified Defendant by the name of Gregory Marshall. However, unlike the traffic citation written by Officer Barre which was introduced into evidence at trial, the State did not introduce the gist sheet into evidence at trial or use it to refresh Office Paxton's memory. The report therefore is not part of the record for purposes of reviewing the sufficiency of the evidence and cannot be considered.

      . In the unpublished opinion, the court of appeal considered and rejected two other assignments of error urged by Defendant.


text:
    In re Darryl JACKSON.
    No. 2006-B-2745.
    Supreme Court of Louisiana.
    Dec. 6, 2006.
   ORDER

Considering the Petition for Interim Suspension filed by the Office of Disciplinary Counsel, and the response thereto filed by respondent,

IT IS ORDERED that Darryl Jackson, Louisiana Bar Roll number 20233, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that necessary disciplinary proceedings be instituted in accordance with Supreme Court Rule XIX, §§ 11 and 19.

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana


author: PER CURIAM.

text:
    STATE of Louisiana v. Katrina ROBINSON.
    No. 2006-K-1406.
    Supreme Court of Louisiana.
    Dec. 8, 2006.
   PER CURIAM.

Granted. The decision of the Second Circuit is reversed, defendant’s convictions and sentences are reinstated, and this ease is remanded to the court of appeal for consideration of the defendant’s assignments of error pretermitted on original appeal. In State v. Guzman, 99-1528, p. 6 (La.5/16/00), 769 So.2d 1158, 1162, this Court expressly overruled its prior decision in State v. Godejohn, 425 So.2d 750, 751 (La.1983), and thereby made clear that a guilty plea colloquy is not part of the record for purposes of error patent review. In a case such as this one in which the defendant received a favorable plea bargain and in which the trial court fully conveyed to the defendant that her guilty pleas would fully resolve matters with the state and that no trial would follow, absent a defense assignment of error on the issue, the court’s failure to inform her expressly of the right to a trial by jury is not reviewable on appeal. Cf. State v. Harris, 97-1352, p. 1 (La.10/31/97), 702 So.2d 678, 679 (Trial court’s “failure to comply fully with the three-right rule of State ex rel. Jackson v. Henderson, 260 La. 90, 103, 255 So.2d 85, 90 (1971), adopted as an interim measure until ‘state and federal jurisprudence solidified,’ State ex rel. LeBlanc v. Henderson, 261 La. 315, 333-34, 259 So.2d 557, 563 (1972), does not alone ... [establish] a constitutional defect in [a] guilty plea.”).


author: DOWNING, J. GAIDRY, J.

text:
    Dawn MAGEE v. ABEK, INC.
    No. 2005 CA 0388.
    Court of Appeal of Louisiana, First Circuit.
    May 5, 2006.
    Opinion on Rehearing Nov. 8, 2006.

      William R. Mustian, III, Metairie, Counsel for PlaintiffAppellant Dawn Magee.
    Tammy M. Nick, Slidell, Counsel for Defendant/Appellee Abek, Inc.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   DOWNING, J.

This is an appeal from a judgment dismissing the claimant’s workers’ compensation claim on the basis of res judicata. We affirm the trial court judgment.

A full recitation of the facts can be found in an earlier opinion rendered by this court entitled Magee v. Abek, Inc., 04-2554 (La. App. 1 Cir.4/28/06), 934 So.2d 800. Except for the issue of scarring, (not included in this appeal), the claims asserted by Dawn Magee arise out of the same transaction and occurrence as the earlier claims against Abek, Inc.

Generally, after final judgment, res judi-cata bars re-litigation of any cause of action arising from the same transaction and occurrence. LSA-R.S. 13:4231, LSA-C.C.P. art. 425; Avenue Plaza, L.L.C. v. Falgoust, 96-0173 (La.7/02/96), 676 So.2d 1077, 1079. Workers’ compensation judgments however, are treated differently from ordinary judgments because the flexibility of the workers’ compensation system would be greatly restricted if the same rigid rules applied. Falgout v. Dealers Truck Equipment Co., 98-3150, pp. 8-9 (La.10/19/99), 748 So.2d 399, 405. In Jackson v. Iberia Parish Gov’t, 98-1810 (La.4/16/99), 732 So.2d 517, 520, the Louisiana Supreme Court held where the legislature expressly provides that a workers’ compensation award or judgment can be subject to a claim for modification, res judicata does not apply. Falgout, 748 So.2d at 406-406.

We determine that the workers’ compensation judge adequately explained how it made its determinations. A thorough review of the record supports its decision. Therefore, we affirm the judgment in accordance with Uniform Court of Appeal Rule 2-16.2A(2). All costs of this appeal are assessed against plaintiff-appellant, Dawn Magee.

AFFIRMED.

GAIDRY, J., dissents as res judicata does not apply Jackson vs Iberia Parish Government (La.4/16/99), 732 So.2d 517.

DON REHEARING

GAIDRY, J.

SUMMARY DISPOSITION

The plaintiff-appellant, Dawn Magee, has applied for rehearing of this court’s prior decision affirming the dismissal of her workers’ compensation claim on the grounds of res judicata. We grant her application, vacating our prior decision, reverse the judgment of the workers’ compensation judge (WCJ) sustaining the exception, and remand the case for further proceedings.

The factual background of this case is described in Magee v. Abek, Inc., 04-2554, pp. 2-4 (La.App. 1st Cir.4/28/06), 934 So.2d 800, 805-6. There we affirmed the WCJ’s judgment finding that alleged neck and back injuries were not work-related and that Ms. Magee was not entitled to disability benefits. However, the same judgment also found a left ulnar nerve injury to be work-related and ordered Abek to pay the reasonable and necessary medical expenses associated with that injury, including recommended surgery. We affirmed that judgment in its entirety, including the causation issue relating to the ulnar nerve injury. Ms. Magee now claims that she is entitled to disability benefits by reason of the effects of the recommended surgery.

Even though Ms. Magee was not found to be disabled from any injury, including the ulnar nerve injury, she did receive an award of medical benefits. Under the reasoning set forth in Brown v. Rouse Company, 97-1243, pp. 6-7 (La.App. 4th Cir.1/14/98), 706 So.2d 547, 550-51, as amplified by Jackson v. Iberia Parish Government, 98-1810 (La.4/16/99), 732 So.2d 517, res judicata clearly does not bar litigation of Ms. Magee’s ^present claim related to the ulnar nerve injury under these facts. The WCJ retains modification jurisdiction under La. R.S. 23:1310.8(A) and (B). Whether the claim is meritorious in light of the credibility considerations raised in the prior case is not the issue here; the issue is whether she should be allowed to present the present claim for determination on its merits. Given this matter’s presentation in the context of workers’ compensation, we hold that Ms. Magee is so entitled and accordingly remand the case to the Louisiana Workers’ Compensation Administration, District 6, for further proceedings.

DECREE

We reverse the judgment of the Office of Workers’ Compensation Administration, District 6, and remand the case for further proceedings through this summary disposition, in accordance with Rules 2-16.2(A)(2) and (10) of the Uniform Rules of the Louisiana Courts of Appeal. All costs of this appeal are assessed to the defendant-ap-pellee, Abek, Inc.

REHEARING GRANTED; REVERSED AND REMANDED.

      . See also Anzalone v. Allstate Ins. Co., 97-0866, p. 4 n. 1 (La.App. 1st Cir.4/8/98), 714 So.2d 18, 19 n. 1, writ denied, 98-2180 (La.11/13/98), 730 So.2d 939. It is unnecessary for us to decide whether either res judica-ta or issue preclusion bars reconsideration of Ms. Magee’s claims related to the other claimed injuries, although it certainly would seem that they would.


author: KUHN, J.

text:
    Theodore JOHNSON v. STATE of Louisiana DEPARTMENT OF SOCIAL SERVICES/Louisiana Rehabilitation Services.
    No. 2005 CA 1597.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Rehearing Denied Oct. 25, 2006.

      Theodore Johnson, Bogalusa, Plaintiff/Appellant Pro Se.
    Paul St. Dizier, Baton Rouge, Counsel for Defendant/Appellee State of Louisiana, Department of Social Services, Louisiana Rehabilitation Services.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   KUHN, J.

| ¡¿Plaintiff-appellant, Theodore Johnson, appeals the trial court’s judgment, dismissing his claims against defendant-appellee, the State of Louisiana, Louisiana Rehabilitation Services (LRS), which is administered by the Department of Social Services. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1996, Johnson, a veteran rated with a 70% overall disability by the United States Veterans Affairs was determined eligible for services under 29 U.S.C.A. § 701 et seq., known as the Rehabilitation Act of 1973. This Act authorizes grants to assist states in operating statewide programs designed to assess, plan, develop, and provide vocational rehabilitation services for individuals with disabilities with the goal of preparing and enabling such individuals to engage in gainful employment. Pursuant to the Act, LRS is required to provide information on developing a written individualized plan for employment (IPE) to each individual eligible for vocational rehabilitation services.

LRS prepared an IPE for Johnson, in which he participated. The stated goal of the IPE was that Johnson would obtain employment as a paralegal and, in furtherance of this, he attended the University of New Orleans (UNO) where he successfully completed the paralegal program in May 1998. He subsequently |srequested additional funding to pursue a college degree at UNO in business administration, which LRS declined to fund because Johnson had failed to adhere to his IPE in that he did not attend an interview for a paralegal position that LRS had set up for him. Johnson nevertheless began attending UNO, apparently studying for a business administration degree, without financial assistance from LRS. Johnson again requested tuition assistance for his pursuit of a business administration degree, which LRS denied because Johnson had failed to maintain a 2.0 academic grade point average as required by LRS policy. Johnson then requested a due process hearing to review LRS’s denial, urging that other qualified applicants had been given tuition assistance although they did not have the requisite 2.0 grade point average. The hearing officer upheld the decision of LRS, and Johnson sought an administrative review with the secretary of the Department of Social Services, who likewise upheld LRS’s denial of additional funding for a business administration degree. Johnson subsequently filed a civil action in district court.

According to the allegations of his pleading, Johnson’s petition “is a civil action for review of a final decision of [LRS].” He particularly seeks monetary damages in accordance with 29 U.S.C.A. § 794, which proscribes discrimination against a qualified individual with a disability in the dispensation of benefits. Johnson filed a motion for summary judgment, which the trial court denied. The trial court then addressed the merits of his claims and dismissed Johnson’s petition. This appeal by Johnson follows.

|40n appeal, Johnson complains that the trial court erred by addressing the merits of his claims at the summary judgment hearing, asserting that he received insufficient notice of the trial on the merits. He also urges that the trial court applied an incorrect standard to review his claim, which, he asserts, is not a request for a judicial review of LRS’s action but rather a claim for damages.

SUFFICIENCY OF NOTICE OF TRIAL ON MERITS

Louisiana Code of Civil procedure article 966 D provides, “The court shall hear and render judgment on the motion for summary judgment within a reasonable time, but in any event judgment on the motion shall be rendered at least ten days prior to trial.” Thus, according to the plain language of Article 966 D, the ten-day requirement addresses those instances where judgment on the motion is rendered, i.e., summary judgment is granted. See e.g., Lassere v. State, Dep’t of Health & Hosp., Office of Public Health, 2000-0306 (La.App. 1st Cir.3/28/01), 808 So.2d 513. This requirement prevents the parties from being burdened with unnecessary trial preparation. Lassere, 2000-0306 at p. 6, 808 So.2d at 517.

Johnson asserts the trial court erred when it proceeded to the trial on the merits at the hearing on his motion for summary judgment without waiting ten days between its denial of his motion and the commencement of the trial on the merits. But at the summary judgment hearing, when the trial judge asked Johnson if he would like to argue the merits of his case, he stated, “Yes, sir.” He neither objected to the trial court’s action of addressing the merits of his claims nor requested a | .^continuance. Johnson has not alleged any prejudice, and we have found none. Because Johnson’s motion for summary judgment was denied and he was not burdened with unnecessary trial preparation, we conclude that the trial court’s action of addressing the merits of his case immediately after the denial does not warrant a reversal of the judgment on the merits.

REHABILITATION ACT CLAIMS

Plaintiff claims that LRS violated 29 U.S.C.A. § 794(a), which states in pertinent part:

No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ....

To be entitled to compensatory damages under the Rehabilitation Act, a plaintiff must prove the defendant intentionally discriminated against him on the basis of his disability. Swenson v. Lincoln County Sch. Dist. No. 2, 260 F.Supp.2d 1136, 1145 (D.Wyo.2003).

Section 722 of Title 29 of the United States Code requires States participating in the provision of vocational rehabilitation services under the Rehabilitation Act to establish procedures for mediation and review of determinations made by personnel of the designated State unit that affect applicants or eligible individuals. 29 U.S.C.A. § 722(c)(1); Reaves, 422 F.3d at 680. If an eligible individual disagrees with a decision made under this section, there is a private right of action under § 722(c) (5) (J) (i), but it is available only to a “party aggrieved by a final decision” in the administrative proceedings described in § 722(c). 29 U.S.C.A. § 722(c)(5)(J)(i). Thus, an individual must exhaust certain administrative remedies under § 722(c)(5) | ^before filing suit. See Baumeister v. New Mexico Commission for the Blind, 425 F.Supp.2d 1250 (D.N.M.2006). Once exhausted, the court may then review the records, hear additional evidence, and grant such relief as the court determines to be appropriate. Id.

According to 29 U.S.C.A. § 722(c)(5)(J), entitled “Civil Action”:

(i) In general
Any party aggrieved by a final decision [of a due process hearing or an impartial review by chief official designated by the State] may bring a civil action for review of such decision. The action may be brought in any State court of competent jurisdiction or in a district court of the United States of competent jurisdiction without regard to the amount in controversy.
(ii) Procedure
In any action brought under this sub-paragraph, the court—
(I) shall receive the records relating to the hearing under subparagraph (A) and the records relating to the [impartial review by the chief official designated by the State], if applicable;
(II) shall hear additional evidence at the request of a party to the action; and
(III) basing the decision of the court on the preponderance of the evidence, shall grant such relief as the court determines to be appropriate.

See also La. Admin. Code, tit. 67, part VII, § 107(E):

Under an application of the statutory standard set forth under 29 U.S.C.A. § 722(c)(5)(J)(ii) and La. Admin. Code, tit. 67, part VII, § 107(E), the reviewing court should determine whether the agency’s decision is supported by a preponderance of the evidence, giving “due weight” to the conclusions reached in the State’s due process hearing. This “rather unusual statutory standard” is more deferential than de novo review, and requires the trial court to refrain from substitution of its own |7notions of sound policy for those of the state authorities. See Reaves, 422 F.3d at 681.

Mindful that Johnson specifically prayed only for “damages, special damages” in both his original and amended petition, and on appeal has reiterated that his claim is one for money damages, it is likely the reference in his petition to a “civil action for review of a final decision of the [LRS]” is simply an indication that he has exhausted administrative remedies. This is reinforced by his lack of appellate assertions challenging the trial court’s disposition of judicial review of LRS’s action. But to the extent that Johnson’s petition alleged a cause of action for judicial review of LRS’s final decision, we find no error in the trial court’s dismissal of that claim. Johnson did not request the trial court to “hear additional evidence” as permitted under 29 U.S.C.A. § 722(c)(5)(J)(ii)(II) and La. Admin. Code, tit. 67, part VII, § 107(E)(2). And on appeal, while Johnson notes that under the correct statutory standard a party may request that additional evidence be heard in the civil action, he neither specifies the additional evidence the trial court refused to hear nor asserts entitlement to have additional evidence heard. Johnson has correctly pointed out that the trial court’s application of the Louisiana Administrative Procedures Act to a claim for administrative review of LRS’s action of denying him additional tuition assistance to pursue a business administration degree was error. In particular, we note that La. R.S. 49:964 E of the Louisiana Administrative Procedures Act permits the trial court to receive additional evidence if it is shown that the evidence is material and there were good reasons for the failure to present it in the proceeding before the agency, which is clearly a more restrictive provision than that under 29 U.S.C.A. § 722(c)(5)(J)(ii)(II) and La. Admin. Code, tit. 67, part VII, § 107(E)(2) | sallowing a party to have additional evidence heard at his “request.” Despite the trial court’s failure to apply the proper statutory procedural standards, because Johnson did not request to present additional evidence be heard, and since under both standards deference is owed to the agency, our de novo application of the correct statutory standard yields the same result. Thus, any claim for judicial review Johnson asserted was correctly dismissed.

We turn now to a review of the propriety of the trial court’s dismissal of Johnson’s claim for damages under 29 U.S.C.A. § 794. We likewise find the correct statutory standard for disposition of an action under § 794 is that enunciated in 29 U.S.C.A. § 722(c)(5)(J)(ii) and La. Admin. Code, tit. 67, part VII, § 107(E). See Baumeister, 425 F.Supp.2d at 1257. The trial court’s failure to apply that standard to Johnson’s claim for damages was legal error. See Evans v. Lungrin, 97-0541, p. 91 s(La.2/6/98), 708 So.2d 731, 736. Insofar as his claim for damages under § 794, like the claim for judicial review, Johnson did not request that the trial court consider additional evidence and, on appeal, has not suggested either error with the denial of an opportunity to have additional evidence heard or asserted to this court that he has additional evidence to present. Indeed, by filing a motion for summary judgment, Johnson indicated that the record contained sufficient evidence to establish a prima facie case of entitlement to damages under § 794. Thus, in our appellate review, we examine Johnson’s entitlement to damages de novo, applying the correct statutory standard, i.e., that enunciated in 29 U.S.C.A. § 722(c)(5)(J)(ii) and La. Admin. Code, tit. 67, part VII, § 107(E).

Johnson urges that LRS discriminated against him by failing to provide an accommodation to its policy of providing tuition to those students who earn a minimum grade point average of 2.0. He points to LRS’s response to an interrogatory indicating that exceptions to the 2.0 minimum grade point average have been made on a case-by-case basis.

To state a claim for relief under § 794, Johnson had to prove that (1) he is a “handicapped individual” under the Act, (2) he is “otherwise qualified” for the benefit sought, (3) he was discriminated against solely by reason of his handicap, and (4) the program or activity in question receives federal financial assistance. See Baumeister, 425 F.Supp.2d at 1259. Johnson has failed to prove that he was “otherwise qualified” for the benefits sought or that he was discriminated against “solely by reason” of his handicap.

Section 794 proscribes discrimination between the non-handicapped and the “otherwise qualified” handicapped. Bau- meister, 425 F.Supp.2d at 1270. To recover, ImJohnson had to demonstrate that he was denied services guaranteed to him by the Rehabilitation Act, and that, in spite of his disability, he was “otherwise qualified” to receive the denied services. Id. In other words, Johnson had to prove that if he is otherwise qualified, he can “meet all of [the] program’s requirements in spite of [his] handicap.” This is simply not the case. LRS has a statutory duty to provide vocational training and related services to handicapped persons; Johnson is entitled to such services because he is handicapped. See Baumeister, 425 F.Supp.2d at 1266.

“Otherwise qualified” means that were he not handicapped, Johnson would have qualified for the program or benefits he was denied because of his handicap. Johnson is not otherwise qualified because, absent his handicap, he would not have been eligible for the benefits in the first place. See Baumeister, 425 F.Supp.2d at 1260. Without a showing that the non-handicapped received the services denied to the “otherwise qualified” handicapped, Johnson has not px*oven his entitlement to damages under § 794. Id. Johnson is entitled to LRS’s services only because he is handicapped. Since Johnson is not “otherwise qualified” to receive the vocational rehabilitation services denied to him because of the alleged discrimination, he has failed to establish entitlement to damages under § 794. Having failed to establish entitlement to a reversal of LRS’s denial of his request for tuition assistance to obtain a business administrative degree or for damages under § 794, despite the trial court’s application of the incorrect statutory procedural standards, Johnson’s claims were properly dismissed.

h RECREE

For these reasons, we affirm the trial court’s judgment dismissing Johnson’s claims. Appeal costs are assessed against plaintiff-appellant, Theodore Johnson.

AFFIRMED.

GUIDRY, J., concurs.

      . See La. R.S. 46:2102; La. Admin. Code tit. 67, part VII, § 101.

      . Johnson has multiple diagnoses of status post dislocation of his left hip with Sciatic Palsy and Asceptic Necrosis and status post fracture of the left femur and arthritic spon-dylosis of the back.

      . See 29 U.S.C.A. §§ 720-751; Reaves v. Missouri Dep't of Elementary & Secondary Educ., 422 F.3d 675, 680 (8th Cir.2005).

      . See 29 U.S.C.A. § 722(b)(1), (2)(A); La. Admin. Code, tit. 67, part VII, § 111.

      . See 29 U.S.C.A. § 722(C); La. Admin. Code tit. 67, part VII, § 107(C).

      . See 29 U.S.C.A. § 722(C)(5)(D); La. Admin. Code tit. 67, part VII, § 107(D).

      . Johnson initially filed his civil action in federal court but the action was dismissed.

      . Although Johnson styled his assignment of error as a challenge of the trial court’s ruling denying his motion for summary judgment, because an appeal does not lie from the trial court's refusal to render summary judgment, see La. C.C.P. art. 968, we address the substance of his complaint as part of his right to appeal a final judgment. See La. C.C.P. art. 2083.

      . Under the Louisiana Administrative Procedures Act, La. R.S. 49:964 G:
      The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
      (1) In violation of constitutional or statutory provisions;
      (2) In excess of the statutory authority of the agency;
      (3) Made upon unlawful procedure;
      (4) Affected by other error of law;
      (5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
      (6)Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demean- or on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

      . Although Johnson filed this lawsuit in for-ma pauperis, because he was an unsuccessful litigant appeal costs may be assessed against him. See Benjamin v. Nat’l Super Markets, Inc., 351 So.2d 138 (La.1977).