author: CALOGERO, Chief Justice. JOHNSON, J.,

text:
    STATE of Louisiana v. Keith WALKER.
    No. 2006-KK-1045.
    Supreme Court of Louisiana.
    April 11, 2007.

      Charles C. Foti, Jr., Attorney General, Eddie J. Jordan, Jr., District Attorney, Matthew Brandon Derbes, Donna R. An-drieu, Assistant District Attorneys, for applicant.
    Craig Evan Gibbs, New Orleans, for respondent.
   CALOGERO, Chief Justice.

Lin a single bill of information, the defendant Keith Walker is charged with possession of heroin with intent to distribute, a violation of La.Rev.Stat. 40:966(A)(1), and possession of marijuana with intent to distribute, a violation of La.Rev.Stat. 40:966(A)(2). The defendant moved to suppress the evidence and, after conducting a hearing on August 26, 2005, the district court granted the motion. The state sought review in the court of appeal which found no error in the trial court’s ruling. State v. Walker, 06-0411 (La.App. 4 Cir. 4/25/06). We granted the staters writ application to determine whether the conduct of the police leading to the seizure of the contraband, i.e., the officer’s following the defendant into a third party’s residence to effect an investigatory stop, did not require a warrant and was otherwise entirely reasonable. State v. Walker, 06-1045 (La.6/23/06), 930 So.2d 989. For the reasons set forth below, we vacate the district court’s ruling granting the motion to suppress and remand the case to the district court for further proceedings.

DISCUSSION

The circumstances surrounding recovery of the evidence in the present case are straightforward. On the afternoon of March 9, 2005, three units of the New Orleans Police Department conducting a proactive “stacked patrol” of the Holly-grove area ^entered the 3400 block of General Ogden Street. From their vantage point in the lead vehicle, Officers Schnapp and O’Brien spotted the defendant and another man standing directly in front of the residence located at 3428 General Ogden. Officer Schnapp testified at the hearing on the motion to suppress that the defendant had his back to the street “and was displaying an object or objects to the second black male who was facing him, that is his arms were bent at the elbow and his palms were facing up.” When the two men observed the approaching police unit, they separated. As the other man walked away, the defendant tucked his opened hand into his pants pocket and entered the front yard of 3428 General Ogden through an open fence, heading for a center stairway which provided access to the porch of the residence.

The officers exited their patrol unit and asked the defendant to stop. The defendant instead walked up the stairs, pushed his way past an African-American woman standing at the doorway of the residence, and went inside. Officer Schnapp also walked past the woman in the doorway and into the residence. As he entered, the officer saw the defendant remove a yellow object from his pants pocket and walk through the front room of the residence into the kitchen, which also served as a laundry room containing a washer and dryer. The defendant discarded the object behind the dryer and then surrendered to the police. After handing defendant over to his partner, Officer Schnapp reached behind the dryer and retrieved a single plastic baggie containing eighteen foils of heroin and fifteen yellow bags of marijuana. The officer then spoke to the woman in the doorway who informed him that she knew the defendant “from the neighborhood but he was not allowed in her residence.” The defendant made no statements to the officers on the scene but indicated at booking that he lived in the 3400 block of Hollygrove Street, an address around the corner from 3428 General Ogden.

| .¡Officer Schnapp testified at the suppression hearing that he decided to act based on his observation that the defendant held something in his hand as he stood outside the premises of 3428 General Ogden talking with the unidentified man and that “when he saw us[,] he began to move.” Based on his seventeen years of experience in the field, Officer Schnapp concluded that he and his partner had interrupted a narcotics transaction. At the same time, the officer acknowledged that he did not hear what, if anything, the defendant may have said to the woman at 3428 General Ogden when he pushed past her through the front door. The officer further acknowledged that he said nothing to the woman before he followed the defendant into the home, that he did not know the residence belonged to someone else until after he retrieved the contraband discarded behind the clothes dryer and placed the defendant under arrest, and that he did not see what the defendant held in his hand until he followed his suspect across the threshold of the residence.

At the close of the suppression hearing, the district court agreed with the state that Officer Schnapp and his partner had formulated reasonable suspicion for an investigatory detention when they first directed the defendant to stop outside the residence at 3428 General Ogden. However, the district court ultimately found that, while Officer Schnapp had engaged in good police work, he lacked both probable cause to believe that the defendant had actual possession of any drugs before he ^entered the home and exigent circumstances for crossing the threshold of the premises without a warrant, i.e., that there was a reasonable probability that inside the residence the defendant would destroy any contraband. “I think what the officer did was reasonable,” the district court observed, “but the question is, [wa]s it legal? ... Can you run into somebody else’s house after somebody and you don’t know if he in fact does have drugs on him?”

Although the district court reached the wrong result under the particular facts of this case, it began with the correct legal premise. The Fourth Amendment applies “ ‘to all invasions on the part of the government and its employ[e]es of the sanctity of a man’s home and the privacies of life.’ ” Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639 (1980)(quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886)). Because the “ ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,’ ” Payton, 445 U.S. at 585-86, 100 S.Ct. at 1379-80 (quoting United States v. United States Dist. Court (Plamondon), 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972)), absent exigent circumstances or some other well-recognized exception such as consent, the police must obtain a warrant before they enter the home to conduct a search or to seize a person and thereby intrude on an individual’s reasonable and legitimate expectation of privacy. Payton, 445 U.S. at 599-602, 100 S.Ct. at 1387-88; see also Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981)(absent consent or exigent circumstances, a search warrant is required to enter the home of a third party to arrest an individual; thus, any evidence seized without a search warrant is inadmissible against the third party).

La. Const, art. 1, § 5 provides that any person adversely affected by a search or seizure in violation of the state constitution has standing to raise its illegality. |sThus, the warrantless entrance and the seizure of an individual inside a third person’s house may violate the third person’s state constitutional guarantee against unreasonable searches and seizures. In order to provide innocent third persons in such situations with a more perfect safeguard than the Fourth Amendment to be secure in their houses, the state constitutional delegates specifically considered and adopted the provision giving standing to raise the illegality to “(a)ny person adversely affected.” See Documents of the Louisiana Constitutional Convention of 1973 Relative to the Administration of Criminal Justice, pp. 905-906, 1145-1146; Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974 35 La. L.Rev. 1, 23 (1974); and Jenkins, The Declaration of Rights, 21 Loy.L.Rev. 9, 29 (1975). Still, a Louisiana court must view the actions of the officer under the particular circumstances and determine whether his presence inside the home violated the defendant’s privacy. “It is defendant’s right to privacy, not a specific place, which is protected by the Fourth Amendment.” State v. Nine, 315 So.2d 667, 671 (La.1975), citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,19 L.Ed.2d 576 (1967).

Nevertheless, even granting “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” Payton, 445 U.S. at 601, 100 S.Ct. at 1388 (footnote omitted), it has long been settled that a person may not frustrate an otherwise lawful arrest on probable cause which the police are entitled to make in a public place without a warrant, United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), simply by stepping across the threshold of his home. United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300 (1976)(“[A] suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson, by the 1 ^expedient of escaping to a private place.”).

The question seemingly raised by the instant case is whether the Santana rationale with regard to an arrest based on probable cause also provides a rationale for pursuing an investigatory stop, based on reasonable suspicion, begun in a public place and continued across the threshold of a home without a warrant. Santana generally stands for the proposition that “ ‘when a citizen has knowingly placed himself in a public place and valid police action is commenced in that public place, the citizen cannot thwart that police action by then fleeing into a private place.’ ” See 4 Warren R. LaFave, Search and Seizure, § 9.2(d), p. 316 (4th ed. 2004)(quoting Edwards v. United States, 364 A.2d 1209, 1214 (D.C.App.1976), ajfd on reh’g, 379 A.2d 976 (D.C.App.l977))(on original hearing, the court assumed there was no probable cause for an arrest, but still applied Santana to affirm the denial of the motion to suppress; on rehearing, the court revisited the question of probable cause and found there was such to effectuate an arrest, and again applied Santana to affirm the denial of the motion to suppress). In such circumstances, “the suspect has only himself to blame for the fact that the encounter has been moved from a public to a private area.” LaFave, Search and Seizure, § 9.2(d) at 317. However, because an investigatory stop based on reasonable suspicion requires only “ ‘some minimal level of objective justification,’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989)(quoting Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)), as opposed to probable cause required for an arrest or a search, courts have divided over the question of whether as a general matter the police may pursue a fleeing suspect across the threshold of a home to complete an investigatory detention. Compare United States v. Gori, 230 F.3d 44, 53 (2nd Cir. 2000) (holding that the Santana 17analysis, which supports the warrantless arrest of a suspect who has no legitimate expectation of privacy in the home, a fortiori allows the lesser intrusion of a brief investigatory detention); with State v. Maland, 140 Idaho 817, 103 P.3d 430, 435 (2004) (holding that police may not intrude into a residence to effectuate a stop pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

However, because of the particular facts of this case, we need not reach the question whether the police may pursue an investigatory stop begun in a public place across the threshold of a home without a warrant to find that Officer Schnapp’s seizure of the contraband here was lawful. The defendant did not retreat into his own home but into the residence of a third person who, by her own account to the police, had previously informed him that he was not allowed in her home. Although Officer Schnapp was not aware at the time he observed the defendant push his way into the residence that he had witnessed the defendant commit the felony offense of unauthorized entry of an inhabited dwelling, see La.Rev.Stat. 14:62.3, the defendant had no objectively reasonable and legitimate expectation of privacy when he fled into that home. See Terry v. Martin, 120 F.3d 661, 664 (7th Cir.1997)(temporary visitor with no connection to the premises other than criminal activity had no reasonable expectation of privacy and no standing to object to a search of the residence by police); State v. McKinney, 93-1425, p. 12 and n. 4 (La.App. 4 Cir. 5/17/94), 637 So.2d 1120, 1126 and n. 4 (suspect who did not have owner’s permission to be in the house had no reasonable expectation of privacy therein, i.e., one that society would recognize)(citing United States v. Jacobsen, 466 U.S. 109, 122, n. 22, 104 S.Ct. 1652,1661, n. 22, 80 L.Ed.2d 85 (1984)(bur-glar has no legitimate expectation of privacy in home that he is burglarizing)).

While La. Const, art. I, § 5 explicitly confers upon a Louisiana citizen broader ^standing than the federal Fourth Amendment to raise the violation of a third person’s privacy rights, because it protects anyone “adversely affected” by the official action, State v. Owen, 453 So.2d 1202, 1205 (La.1984), Officer Schnapp’s intrusion on the owner’s privacy interests by entering her residence on the heels of an intruder and removing him without her express consent scarcely added to the initial disruption caused by the defendant’s unauthorized entry into the home after he ignored the officers’ attempt to stop him outside the premises. Under these circumstances, permitting the defendant to assert a third party’s privacy interests he had violated by his own actions would serve no legitimate purpose. United States v. Leon, 468 U.S. 897, 907 and n. 6, 104 S.Ct. 3405, 3412 and n. 6, 82 L.Ed.2d 677 (1984) (exclusionary rule is designed to deter police misconduct and its application therefore “ ‘must be carefully limited to the circumstances in which it will pay its way by deterring official [ lawlessness.’")(quoting Illinois v. Gates, 462 U.S. 213, 257-58, 103 S.Ct. 2317, 2342, 76 L.Ed.2d 527 (1983) (White, J., concurring in the judgment)); cf. State v. Barrett, 408 So.2d 90S, 905 (La.l982)(defendant not “adversely affected” by illegal entry into third person’s home by police executing an arrest warrant for defendant and seizing evidence used only against defendant and not against third person).

Because the officers did not need a warrant to enter the premises, “[t]he touchstone of [the] analysis under the Fourth Amendment is ... ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ ” Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977)(quoting Terry, 392 U.S. at 19, 88 S.Ct. at 1878-79). For purposes of the Fourth Amendment, the reasonableness of any intrusion on an individual’s privacy interests “depends ‘on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law | ¡¡officers.’ ” Mimms, 434 U.S. at 109, 98 S.Ct. at 332 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975)).

In the present case, we have no dispute with the trial court’s finding that the officers’ conduct was otherwise reasonable for purposes of the Fourth Amendment. Officer Schnapp’s observation of an apparent drug deal followed by the defendant’s flight on approach of the “stacked patrol” gave the police the requisite reasonable suspicion, ie., minimal level of objective justification, to pursue and detain their suspect. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000)(“Our cases have ... recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.”) (citations omitted). In fact, the seizure of the defendant did not occur until after he discarded the baggie filled with contraband behind the clothes dryer in the residence, whereupon he acquiesced to the official show of authority by surrendering to the officers. Cf. California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991)(recovery of property abandoned by a person before the police have seized him either by the application of physical force or by his submission to the assertion of official authority does not implicate the Fourth Amendment). The defendant, therefore, had no privacy interests in the items he discarded at the time the officers physically detained him and recovered the evidence. Accordingly, under the facts of this case, the seizure of the abandoned contraband from inside the residence and the subsequent arrest of the defendant were not in violation either of the defendant’s right to privacy under the Louisiana

Constitution or of his rights under the Fourth Amendment to the United States Constitution.

|inDECREE

For the reasons set forth above, the district court ruling granting the defendant’s motion to suppress is vacated and the case is remanded to the district court for further proceedings.

DISTRICT COURT JUDGMENT VACATED; CASE REMANDED TO THE DISTRICT COURT

JOHNSON, J., dissents and assigns reasons.

JOHNSON, J.,

dissenting.

Li respectfully dissent. In my opinion, the issue presented by this case is whether it was legal for the police officer to pursue the defendant into a private residence. This case presents a situation in which the police had grounds sufficient for a Terry stop, but they lacked probable cause to make an arrest. Therefore, the |Jssue is whether a police officer may conduct a “hot pursuit”, when a suspect has entered a private home. Police officers can not actively create “street encounters” unless they have knowledge of suspicious facts and circumstances sufficient to allow them to infringe upon the suspect’s right to be free from government interference. State v. Saia, 802 So.2d 869 (La.1974). These encounters must be carefully scrutinized to determine if there is in fact probable cause.

In the instant case, the State was unable to provide controlling jurisprudence in which flight alone is sufficient to elevate reasonable suspicion into probable cause to justify warrantless pursuit into a residence. The record reflects that the police officer observed the defendant standing on the sidewalk in front of 3428 General Ogden Street in New Orleans, Louisiana. The Defendant stood with his back to the street and was showing another unknown male something in his hand. When the men saw the police officers’ vehicles, they separated. Defendant placed his hands in his pockets and walked into the front yard at 3428 General Ogden Street. Sergeant Jake Schnapp exited his vehicle and requested the defendant to stop. The defendant pushed an unknown female, who was standing in the doorway, and entered the residence.

This Court has not previously recognized an exception to the rule requiring probable cause and exigent circumstances for a police officer to lawfully pursue a suspect into a private residence. Under present Louisiana law, because the officers in the present case had only a reasonable suspicion when they approached the defendant, they had no authority to pursue the defendant into the residence unless the ^defendant’s flight gave rise to probable cause. An individual’s startled look at approaching officers and retreat into a protected area does not, alone, give rise to probable cause for an arrest. State v. Ferrand, 664 So.2d 396 (La.1995); State v.Talbert, 449 So.2d 446, 448. Although flight alone, does not always indicate guilt, flight, combined with other information the officers may rely upon, may amount to probable cause to support an arrest. See State v. Hathaway, 411 So.2d 1074,1078-79(La.1982).

The Fourth Amendment prohibits police officers from making a warrantless entry into a person’s home, unless the officers have probable cause, and are presented with exigent circumstances. Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); United States v. Prescott, 581 F.2d 1343, 1350 (9th Cir. 1978) (“[A]bsent exigent circumstances, police who have probable cause to arrest a felony suspect, must obtain a warrant before entering a dwelling to carry out the arrest.”). “It is a ‘basic principle of Fourth Amendment lavf that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton, 445 U.S. at 586, 100 S.Ct. 1371, 63 L.Ed.2d 639.

The Fourth Amendment to the United States Constitution and Art. 1, § 5 of the Louisiana Constitution protect citizens against unreasonable searches and seizures. The purpose of the Fourth Amendment, however, is not to eliminate all contact between the police and the citizenry. Police officers do not need probable cause to arrest, or reasonable cause to detain each time they attempt to converse with or approach a citizen. As long as the person rematas free to disregard the encounter and walk away, there has been no intrusion upon that person’s liberty or privacy which would require some particularized and objective justification under the Fourth Amendment. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 1 ¿497 (1980); State v. Williams, supra; State v. Lanter, 391 So.2d 1152 (La.1980).

When police officers make an investigatory stop without the legal right to do so, property abandoned or otherwise disposed of as a result thereof, cannot be legally seized. With regard to abandoned contraband, if property is abandoned without any prior unlawful intrusion into a citizen’s right to be free from government interference, then such property may be lawfully seized. In such cases, there is no expectation of privacy and thus no violation of a person’s custodial rights. It is only when the citizen is actually stopped without reasonable cause, or when a stop without reasonable cause is imminent, that the “right to be left alone” is violated, thereby rendering unlawful any resultant seizure of abandoned property. State v. Andrishok, supra; State v. Chopin, supra; State v. Ryan, 358 So.2d 1274 (La.1978).

An arrest by a police officer can be made without a warrant only if he has reasonable cause to believe that the person to be arrested has committed an offense. LSA-C.Cr.P. art. 213. Reasonable cause for an arrest exists when facts and circumstances known to the arresting officer, and of which he has reasonable trustworthy information, are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. State v. Edwards, 375 So.2d 1365 (La.1979). Under the facts of this case, I would affirm the decision of the lower courts, in granting the motion to suppress the evidence.

      . In brief, as he did at the hearing, the defendant asserts there was an insufficient basis for a reasonable belief under La.Code Crim. Proc. art. 215.1 that the defendant had been involved in criminal activity. Essentially questioning the officer’s credibility, the defendant contends the officer told differing stories with regard to the drug transaction: one that involved a perceived transaction with a black man and another that involved a perceived transaction with two white men in a black pick-up truck. Officer Schnapp explained at the hearing that the black truck was stopped by other officers and that, though he had included that detail in the gist of his police report, he had neglected to include it in the narrative portion. He explained that all four persons were at the scene and that the defendant and the black man may have been intending to "service” the potential buyers in the black truck. Before concluding there was a reasonable basis for stopping the defendant, the district court specifically found the officer's testimony to be credible, noting that the officer could have simply lied rather than say he had seen no actual contraband during the transaction, and dismissed the omission in the report as simply a mistake. We find no abuse of discretion in that determination.

      . Teny v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
      The right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by LSA-C.Cr.P. art. 215.1, as well as by both state and federal jurisprudence. State v. Hayden, 98-2768 (La.App.4Cir.5/17/00) 767 So.2d 732; State v. Belton, 441 So.2d 1195 (La. 1983); State v. Andrishok, 434 So.2d 389 (La.1983); State v. Chopin, 372 So.2d 1222 (La. 1979). We have held that reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. The right to make an investigatoiy stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Andrishok, supra; State v. Chopin, supra.

      The totality of the circumstances, "the whole picture,” must be considered in determining whether reasonable cause exists. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Although flight, nervousness, or a startled look at the sight of a police officer is, by itself, insufficient to justify an investigatory stop, State v. Chopin, supra; State v. Truss, 317 So.2d 177 (La.1975), this type of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable cause, State v. Williams, 421 So.2d 874 (La.1982); State v. Wade, 390 So.2d 1309 (La.1980).

      . However, other courts have ruled that reasonable suspicion(rather than probable cause) with a "hot pursuit” may justify a warrantless entry into a suspect’s home. United States v. Gomez, 633 F.2d 999 (2nd Cir.1980). The person stopped retreated into a nearby apartment. The court ruled that force can be used when an individual will not stop, but asserted that the "agents” initial kicking and banging on the door, gave them considerable pause.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WASHINGTON ST. TAMMANY ELECTRIC COOPERATIVE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    Nos. 2006-CA-2814, 2007-CA-109.
    Supreme Court of Louisiana.
    April 11, 2007.

      Phelps Dunbar, Kyle Christian Marion-neaux, John Owen Shirley, Sr., Baton Rouge, Amanda Hurt Smith, Eve Kahao Gonzalez, for Applicant in No. 2006-CA-2814 and Appellee in No. 2007-CA-109.
    Sharp Dooley, John Malone Sharp, Stephen H. Shapiro, Baton Rouge, for Appel-lee in No. 2006-CA-2814 and Appellant in No. 2007-CA-109.
   PER CURIAM.

11 This case is before the court on direct appeal from a district court judgment affirming a ruling by the Louisiana Public Service Commission (LPSC) finding Washington St. Tammany Electric (WST) in contempt, but reducing the fine imposed to $500. The matter originated as a complaint filed by one electric utility alleging another electric utility violated the so-called “300 foot rule.” The Rules of Practices and Procedures of the Louisiana Public Service Commission govern the procedural manner by which this matter is to be resolved before the LPSC. The fundamental issue before this court involves a ruling by an administrative law judge on an exception covered by the provisions of Rule 55(q) rather than a ruling based on the provisions of Rule 67.

| j,For reasons that follow, we vacate the judgment of the district court and the contempt proceeding before the LPSC. The matter is remanded to the LPSC for consideration of the administrative law judge’s ruling on the exception filed by Cleco Power, L.L.C. (Cleco) in response to WST’s petition for de novo review of the staff opinion dated March 30, 2004.

FACTS AND PROCEDURAL HISTORY

During November 2003, Cleco filed a complaint against a competing electric utility, WST, claiming WST had extended service to Syntex Concorde Medical Building in violation of LSA-R.S. 45:123 and general orders of the LPSC relating to the 300 foot rule. The LPSC staff rendered an opinion that was unfavorable to WST. On the fourteenth day following the staff opinion, WST initiated a de novo proceeding before the Executive Secretary. The petition was faxed, followed by filing of a hard copy the next day. The matter was referred to the Administrative Hearing Division by the Secretary. Subsequently, Cleco filed an exception of prescription claiming the petition was prescribed as it had not been timely filed. Cleco argued that fax filings were only allowed under Rule 61 with permission of the administrative law judge. Following a hearing on the exception, on May 10, 2004, the administrative law judge concluded that the staff opinion dated March 30, 2004, was final as no party timely sought review. The decision on the exception, which resulted in the dismissal of the action, was not submitted to the Commissioners as required by Rule 55(q).

Islnitially, since the issue involved an alleged violation of the 300 foot rule, Part XIV, Special Procedures, of the LPSC’s rules applied to the dispute. Part XIV contains only one rule — Rule 67. In accordance with Section A of Rule 67, regarding pre-adjudication procedure, the dispute was assigned to a staff team for investigation following which the team was to prepare an opinion. The staff opinion was issued on March 30, 2004. According to the special procedures for adjudication of a violation of the 300 foot rule, the opinion becomes a final Commission action on the fourteenth day after issuance unless a de novo proceeding is initiated in accordance with the procedures contained in Section B(l) of Rule 67. Section B(l) provides that any one of the competing utilities may initiate a de novo proceeding before the Executive Secretary, who shall then refer the matter to the Administrative Hearings Division. A hearing on the merits shall be held within ten days of the due date established for discovery. The hearing date may be extended by agreement of the parties. The administrative law judge shall issue a decision within thirty days of the hearing. The decision shall be final and subject to appeal in accordance with the procedures applicable to appeals of interlocutory rulings. Rule 67 B.

Pursuant to Rule 67 B, WST filed a petition for de novo review with the Executive Secretary by fax transmission on April 13, 2004, the fourteenth day following the staff opinion. WST submitted the original hard copy the following day. In due course, the matter was assigned to an administrative law judge. In response, Cleco filed an exception of prescription alleging the petition for de novo review was prescribed because fax filings were not allowed except under specific circumstances not present in this case.

UThe administrative law judge held a hearing on the exception and sustained Cleco’s exception of prescription finding that Rule 61 prohibited fax filing and that the staff opinion became final on the fourteenth day. Due to the finding of the administrative law judge that the petition for de novo review was untimely, the merits of the staff opinion regarding the violation of the 300 foot rule were never considered.

WST argues that because Cleco filed an exception which did not involve the merits of a 300 foot rule violation, the exception considered by the administrative law judge was subject to the rules applicable to the Administrative Hearings Division, Part XI, containing Rules 54-62. The preamble to Part XI which addresses the Administrative Hearings Division provides, in part:

To the extent any Rule within this section conflicts with provisions elsewhere in the Rules of Practice and Procedure or in previously issued Orders of the Commission addressing procedural matters, the Rule within this Part shall govern.

Rule 55 addresses the delegation of authority by the Commission to the administrative law judges. Subpart (q) provides the administrative law judge shall “[sjubmit written recommendations to the Commissioners concerning all final determinations in proceedings, including determinations on the merits and determinations on exceptions and motions which result in the involuntary dismissal of a proceeding before the Commission.” (Emphasis added.)

When the administrative law judge made a determination that the fax filing of the de novo petition filed by WST was an untimely attempt to seek review of the staff | ¡¡opinion, the decision granting Cleco’s exception of prescription resulted in an involuntary dismissal of a proceeding before the Commission. Accordingly, the matter should have been referred to the Commission for consideration in accordance with Rule 55(q). Because written recommendations were not submitted to the Commissioners concerning a final determination, a critical step in the process was omitted. WST argues, and we agree, that all proceedings following the granting of the exception were without effect because the time delays for review of the decision never properly commenced.

CONCLUSION

In light of the foregoing, the decision of the Nineteenth Judicial District Court is vacated. Additionally, Order No. U-27686 of the Commission, dated November 16, 2005, is likewise vacated.

The matter is remanded to the Public Service Commission for consideration of the administrative law judge’s ruling on the exception of prescription filed by Cleco in response to WST’s petition for de novo review filed by fax on the fourteenth day following the staff opinion regarding violation of the 300 foot rule.

JUDGMENT VACATED; COMMISSION ORDER VACATED; REMANDED TO PUBLIC SERVICE COMMISSION.

      . Appellate review is governed by LSA-Const. art. IV, § 21(E) which provides in part:
      Appeal may be taken in the manner provided by law by any aggrieved party or intervenor to the district court of the domicile of the commission. A right of direct appeal from any judgment of the district court shall be allowed to the supreme court.

      . LSA-R.S. 45:123(A)(1) provides, in part:
      No electric public utility shall construct or extend its facilities or furnish or offer to furnish electric service to any point of connection which at the time of the proposed construction, extension, or service is being served by, or which is not being served but is located within three hundred feet of an electric line of another electric public utility, except with the consent in writing of such other electric public utility.

      . We express no opinion as to whether an exception of prescription was the proper procedural device. No one has raised this as an issue and the parties proceeded as if this were the proper procedural device.

      . Appeals of interlocutory rulings are covered under Rule 57 found in Part XI, Administrative Hearings Division.

      . At the time of the hearing, Rule 61 provided, in part, as follows:
      Parties are to submit the original plus one copy of each pleading to be filed with the Records Division. Parties may not submit pleadings for filing by fax or other electronic means, except at the direction of the administrative law judge.
      Since that time, Rule 61 has been deleted and the substance has been incorporated in Rule 3 which includes provisions for filing by facsimile.

      . The Public Service Commission is entitled to deference in its interpretation of its own rules and regulations. Plantation v. Louisiana Public Service Commission, 96-1423, p. 5 (La. 1/14/97), 685 So.2d 107, 110. However, the Public Service Commission is bound by its own rules. Washington-St. Tammany Electrical Cooperative, Inc. v. Louisiana Public Service Commission, 95-1932, p. 11 (La.4/8/96), 671 So.2d 908, 915 n. 3.


text:
    The COUNCIL OF the CITY OF NEW ORLEANS v. SEWERAGE AND WATER BOARD OF NEW ORLEANS; Boh Bros. Construction Co., L.L.C.; Renaissance Integrated Solutions, L.L.C.; and Ris New Orleans, L.L.C.
    No. 2006-C-1989.
    Supreme Court of Louisiana.
    April 11, 2007.
    Penya Marzula Moses-Fields, City Attorney, Joseph Vincent DiRosa, Jr., Chief Deputy City Attorney, Heather Moore Valliant, Thomas Ainsworth Robichaux, Assistant City Attorneys, for Applicant.
    Herman, Herman, Katz & Cotlar, Russ Michael Herman, Sidney Alan Cotlar, Steven J. Lane, Soren Eric Gisleson, David Kendrick Fox, New Orleans, Kingsmill Riess, Marguerite K. Kingsmill, New Orleans, Lambert & Lambert, John D. Lambert, Jr., New Orleans, Gerrard Michael Victor, Auzenne & Associates, Maria Jul-ianna Lucia Auzenne, New Orleans, David A. Rubenstein, for Respondent.
   PER CURIAM.

11 This matter originated with a petition for temporary restraining order, preliminary injunction, and permanent injunction filed on behalf of the Council of the City of New Orleans (Council). The Council named as defendants the Sewerage and Water Board of New Orleans (SWB); Boh Bros. Construction Co., L.L.C.; Renaissance Integrated Solutions, L.L.C.; and RIS New Orleans, L.L.C., seeking to halt the allegedly unlawful laying of fiber optic cable while sewer pipes beneath certain city streets were being removed and replaced. The pipe replacement work was undertaken pursuant to orders of the U.S. Environmental Protection Agency. The Council specifically alleged that the SWB laid the fiber optic cable alongside the new pipe without obtaining a franchise from the Council.

The SWB responded to the suit with various exceptions, including an exception of no right of action which the trial court granted, dismissing the Council’s suit. The 12trial court’s oral reasons for the dismissal were that the Council was not a juridical person and did not have the capacity to bring this suit.

The Council appealed. The Mayor, who also disputes the Council’s authority to bring such an action, requested that the City Attorney file an intervention in the appellate court on behalf of the City of New Orleans (City). The Court of Appeal, Fourth Circuit reversed and remanded, finding that pursuant to the express provisions of the Charter, the Council has the capacity to sue to enforce its franchise authority. The Council of the City of New Orleans v. Sewerage & Water Board of New Orleans, 05-0384 (La.App. 4 Cir. 7/12/06), 936 So.2d 862.

The City filed a writ application, which this court granted. Id. 06-1989 (La.11/9/06), 941 So.2d 28.

In its brief to this court, the Council admits that it has passed a resolution awarding a franchise to the SWB granting the SWB the authority to construct its fiber optic housing network of 26,000 linear feet in the New Orleans Central Business District. Nevertheless, the Council suggests this matter has not become moot because there are remaining consequences in the controversy. See Footnote 2, infra. Although the City admitted in brief to this court that the “Council’s lawsuit is strictly an issue of whether SWB obtained the necessary franchise permit to lay the conduit,” (p. 9 of brieD the City did not address the mootness issue in its original brief. We ordered briefing on the issue of whether this matter should be dismissed as moot.

The SWB did not make any filing in this court, despite the fact that the SWB had filed a brief in the appellate court in opposition to the Council’s appeal. That | sbrief is instructive of the actions of the parties both prior to and subsequent to the ruling of the district court and prior to the filing of an appeal by the Council:

On April 29, 2004 the Sewerage and Water Board of New Orleans requested from the New Orleans City Council the granting of a telecommunications franchise to install 26,000 linear feet of a conduit capable of housing fiber optic strands in an area of the Central Business District of the city of New Orleans bounded by Commerce Street, Poydras Street, South Claiborne Avenue and the Mississippi River.
Facing an important and legally mandated EPA Consent Decree deadline and little or no action taken on the franchise request by the New Orleans City Council, the Sewerage and Water Board of New Orleans carved out 8,000 linear feet of sewer line and redesigned the conduit installation so that the EPA Consent Decree mandate could be met and the conduit installation could move forward with the award of a contract in December 2004.
The most economic method of installing the conduit was to do so simultaneously with the sewer repairs and replacement work under Contract 3636 which was awarded to Boh Bros. Construction Company, Inc. The installation of 8,000 linear feet of disjointed conduit lines would provide no immediate revenue benefit to the Sewerage and Water Board of New Orleans but would make it possible to preserve and accomplish the original intents of establishing a fiber optic housing network in the subject area of the CBD once the New Orleans City Council acted upon the franchise request.
The reaction of the New Orleans City Council ... was to vote on January 31, 2005 at a Special Meeting to employ attorneys and have them file suit on behalf of the New Orleans City Council against the Sewerage and Water Board of New Orleans.
After hearing argument of all counsel present, Judge Nadine Ramsey sustained the Sewerage and Water Board of New Orleans’ Exception of No Right of Action indicating that the plaintiff, New Orleans City Council, lacked the requisite capacity to sue and dismissed the lawsuit....
Immediately following the decision of the trial court, two (2) very important actions were taken.... The first was that Mayor Ray Nagin, who serves as President of the Sewerage and Water Board of New Orleans, with full knowledge that the New Orleans City Council had just been defeated in the trial court in its action against the Sewerage and Water Board of New Orleans, stated publicly that the Sewerage and Water Board of New Orleans would not proceed with the execution of Contract 3636 and that the attorneys for both sides would meet in an effort to construct an acceptable franchise ordinance.
The second important action was that on March 17, 2005 the agreed upon franchise ordinance was approved unanimously by the New Orleans City Council granting the authority to the Sewerage and Water |4Board of New Orleans to construct its fiber optic housing network through the installation of 26,000 linear feet of new sewer and conduit lines throughout the subject area of the New Orleans Central Business District. By doing so, the New Orleans City Council has effectively rendered its lawsuit moot. However, even though there is no genuine issue to determine with respect to the New Orleans City Council’s filing of a lawsuit, which was to enjoin the Sewerage and Water Board of New Orleans from taking action without a franchise, the New Orleans City Council has chosen to take an appeal of the decision from the Civil District Court. [Emphasis supplied.]

The case of St. Charles Parish School Board v. GAF Corporation, 512 So.2d 1165 (La.1987), on rehearing, is directly on point. In that case the parties settled after this court granted a writ. Finding the matter moot, this court stated:

The full and final settlement of the entire controversy between the parties raises the question of whether this case is moot and no longer presents a justiciable controversy. It is well settled that courts will not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies.
In order to avoid deciding abstract, hypothetical or moot questions, courts require that cases submitted for adjudication be justiciable, ripe for decision, and not brought prematurely.
A “justiciable controversy” connotes an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interest, and upon which the judgment of the court may effectively operate through a decree of conclusive character.
A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. If the case is moot “there is no subject matter on which the judgment of the court can operate.” ...
The doctrine that courts will not hear moot cases serves two complementary purposes: it prevents the useless expenditure of judicial resources and assures that the courts will not intrude prematurely into policymaking in a manner that unnecessarily constrains the other branches of government. Mootness should therefore properly be regarded as rooted in part in the separation of powers, although its application is rooted as well in a rule of self restraint on the theory that the state should not be burdened with expense of litigating insubstantial controversies.
|KAll of the legal questions arising from the controversy between the parties in the present case became moot, abstract or hypothetical upon the settlement of the case. The compromise or settlement of the lawsuit extinguished the original demand or claim and prevents any further action or proceeding thereon....
The [United States Supreme Court] has held that although it may become unnecessary or impossible to grant the primary relief originally sought in an action, remaining consequences of the litigation may prevent the case from becoming moot.[]
In essence, the parties’ object is to elicit from this court an opinion on a question of law that has become academic because of their settlement.... It is fundamental in our law that courts sit to administer justice in actual cases and that they do not and will not act on feigned ones, even with the consent of the parties. The duty of this court, as of every judicial tribunal, is limited to determining rights of persons or of property which are actually controverted in the particular case before it. When in determining such rights, it becomes necessary to give an opinion on a question of law, that opinion may have weight as a precedent for future decisions. But the court is not required to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it. No stipulation of the parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty of the court in this regard. [Citations omitted.]

512 So.2d at 1170-1173.

IfiThe principles regarding mootness that were thoroughly explained by Justice Dennis in St Charles Parish School Board v. GAF Corporation are applicable in the instant case. Until the intervention was filed on May 12, 2005, the opposing parties were the Council and the SWB. Those two parties settled their differences via the passage of an ordinance on March 17, 2005, granting the franchise for the laying of 26,000 linear feet of conduits, the amount sought in the SWB’s original request for a franchise. Thus, there was no longer a basis for the court to issue an injunction, which was the relief sought by the Council’s petition. The suit for injunction was moot before the City intervened in the appellate court proceeding.

The parties had knowledge of the agreement reached by the Council and the SWB in March of 2005, and the appeal of the Council to the fourth circuit should have been withdrawn. Although the appeal was not withdrawn, the appellate court was made aware of the settlement by the SWB in its brief. The SWB judicially admitted the issue was moot.

The opinion of the fourth circuit is absent any reference to the settlement or to the issue of mootness. This oversight was erroneous. Because any justiciable issue had been eliminated by the time this case reached the appellate level, the appellate court should have declined to rule on the case and should have dismissed the appeal. See Chauvin v. Wellcheck, Inc., 05-1571 (La.App. 1 Cir. 6/9/06), 938 So.2d 114 (When the issues raised in the parties’ demands are rendered moot, the trial court and the appellate court are without further subject matter jurisdiction.)

Accordingly, we vacate the judgment of the court of appeal without addressing the issues raised by the City or the Council.

JUDGMENT VACATED.

      . At oral argument before this court, both parties agreed that the trial court was in error in stating the Council is not a juridical person, although the attorney for the City did not concede that the Council was authorized to retain its own attorney.

      . This court gave several examples of injunction cases having remaining consequences:

        Liner v. Jafco, Inc., 375 U.S. 301, 304-09, 84 S.Ct. 391, 393-96, 11 L.Ed.2d 347 (1964) (injunctive relief mooted, but liability on indemnity bond remains); but cf. Local No. 8-6, Oil Workers v. Missouri, 361 U.S. 363, 369-70, 80 S.Ct. 391, 395-96, 4 L.Ed.2d 373 (1960) (injunctive relief mooted, remaining penalty provisions severable and subject of separate action). See also University of Texas v. Camenisch, 451 U.S. 390, 393-94, 101 S.Ct. 1830, 1833-34, 68 L.Ed.2d 175 (1981) (injunction moot after student graduated, but the question of whether the University must pay the deaf student’s interpreter remained).
      These cases are readily distinguishable from the instant case in which nothing remains to be decided following the grant of the franchise. However, in urging this case is not moot, the Council cites Cat’s Meow Inc. v. City of New Orleans, 98-0601 (La. 10/20/98), 720 So.2d 1186, for the proposition that collateral consequences will allow the court to consider an otherwise moot issue. The Council claims the intervention by the City is just such a consequence. We disagree.
      It is significant that the City did not intervene until May 12, 2005, which was after this case became moot because of the settlement reached between the Council and the SWB in March of 2005.


text:
    Thurman and Rosemary KAISER v. Harry HARDIN and United Services Automobile Association.
    No. 2006-C-2092.
    Supreme Court of Louisiana.
    April 11, 2007.

      McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Peter Joseph Wan-ek, Lynda Albano Tafaro, Metairie, for applicant.
    George F. Kelly, III, for respondent.
   PER CURIAM.

| ¶ Defendants, Harry Hardin and United Services Automobile Association (“USAA”), seek review of a ruling of the court of appeal which amended the trial court judgment to increase plaintiffs’ damage award. For the reasons that follow, we now reverse the judgment of the court of appeal and reinstate the trial court’s judgment.

UNDERLYING FACTS AND PROCEDURAL HISTORY

By way of background, plaintiffs, Thurman and Rosemary Kaiser, both of whom are in their mid-70’s, were involved in a total of three separate automobile accidents during the span of three and a half weeks. The first accident occurred on December 28, 2000, when plaintiffs were involved in a rear-end collision with Leon Parker in Jefferson Parish. On January 15, 2001, plaintiffs were involved in a second accident when their vehicle was rear-ended by Harry Hardin at the intersection at St. Charles Avenue and Euterpe Street in Orleans Parish. Finally, on January 22, 2001, ^plaintiffs were involved in a third accident when Amy Mullen backed her vehicle out of a service alley onto Lane Street and collided with plaintiffs’ vehicle.

The instant litigation began when plaintiffs filed suit against Mr. Hardin and his insurer, USAA, based on the January 15, 2001 accident. Prior to trial, Mr. Hardin stipulated to liability. The case then proceeded to a jury trial on the issue of damages.

At trial, Mr. Hardin, testified that he hydroplaned into the back of plaintiffs’ vehicle on the St. Charles Avenue. According to Mr. Hardin, plaintiffs-told him that they weren’t injured and did not need medical attention. He testified that his vehicle did not receive any damage from the accident, but that plaintiffs’ vehicle had minor damage to its bumper.

Mrs. Kaiser testified that she suffered a stroke in October 2000, three months before the accident. She explained that she experienced tingling in two of her fingers as a result of the stroke. She also admitted that on December 28, 2000, two weeks prior to her accident with Mr. Hardin, she and Mr. Kaiser were rear ended in a car accident on the service road near Transcontinental Boulevard in Jefferson Parish. She stated that she was not injured in this accident. Two weeks later, on January 15, 2001, Mr. Hardin rear ended her husband’s Nissan truck on St. Charles Avenue. Mrs. Kaiser testified that she felt immediate pain but did not go to the hospital because she believed her pain would not last. She first sought treatment two days after the accident with Dr. French at the Pontchartrain Bone and Joint Clinic, complaining of neck pain extending into her arms and numbness in her left fingers and thumb. According to Mrs. Kaiser, Dr. French prescribed various medications, including | sCelestone shots in her shoulder, as well as physical therapy. On January 22, 2001, after she saw Dr. French, Mrs. Kaiser was involved in a third car accident when Amy Mullen backed out of a service alley and hit plaintiffs’ car. Mrs. Kaiser testified that this accident was not as severe as her second accident because she saw the car backing toward her and was able to brace her arms against the dashboard to prepare for the jolt.

Mrs. Kaiser testified that she continued to seek treatment from Dr. French for a year, until he moved away, at which time she sought treatment for two or three years from Dr. Sketchier. She asserted that she continues to suffer from the same symptoms since her January 15th accident and that she must visit Dr. Sketchier every three months for her injections.

On cross examination, Mrs. Kaiser admitted that she made a claim for soft tissue injuries which she sustained as a result of the first accident of December 28, despite her current testimony that she was not injured in that accident. When asked about the police report, which indicated that she suffered a possible injury as a result of the first accident, she indicated the report was wrong because she never spoke to the officer. Mrs. Kaiser also admitted that she never told the police officer she was injured after the second accident of January 15, but asserted that she told Mr. Hardin that she was “hurting.” Mrs. Kaiser claimed that Dr. French’s records, which indicated Mrs. Kaiser had been suffering from her symptoms for one month prior to the second accident were inaccurate. Finally, she admitted that the property damage caused to the Kaiser vehicle in the third accident of January 22 was much more extensive and expensive than the property damage caused by the second accident of January 15.

Mr. Kaiser testified next. He testified that after the first accident, he was shook up and felt discomfort in his right shoulder and left arm, but did not seek medical |4attention. He stated that his vehicle sustained approximately $862.00 in damage as a result of the second accident and opined that the second accident was much more severe in impact than the first accident. According to Mr. Kaiser, his right biceps slipped down to his elbow as a result of the impact of the second accident; however, he explained that he immediately pushed his right biceps back into place and it remained in a straightened position. He also experienced pain in his right shoulder. Mr. Kaiser acknowledged that he did not immediately seek medical treatment for his pain. In addition, Mr. Kaiser testified that in his opinion the third accident was not nearly as severe as the second accident.

According to Mr. Kaiser, he first sought treatment with Dr. Persich, his family doctor, for his shoulder and biceps injuries about two months after the second accident when his injuries appeared to be getting worse. At Dr. Persich’s recommendation, Mr. Kaiser sought treatment from Dr. French at the Pontchartrain Bone and Joint Clinic. Mr. Kaiser testified that he only told Dr. French about his second accident “because the second one did me in.” He testified that Dr. French told him he had a ruptured biceps tendon and recommended physical therapy, which Mr. Kaiser attended twice a week. Mr. Kaiser testified that Dr. Sketchier, who began to see him after Dr. French left the Ponteh-artrain Bone and Joint Clinic, told him that he would eventually require surgery on his torn rotator cuff. Mr. Kaiser testified that after the accident, his sexual activity was curtailed, that he could no longer play football, garden, or cut the grass.

On cross examination, Mr. Kaiser acknowledged that he told his attorney he suffered discomfort in his right shoulder and left arm after the first accident. He also acknowledged his interrogatories indicated that he suffered soft tissue injuries and neck pain as a result of the first accident, but claimed that he didn’t remember anyone telling him that he suffered soft tissue injuries. He also acknowledged that Dr. French |5told him he had severe degenerative arthritis in both shoulders, which likely predated the accident.

Dr. Donald French’s deposition was entered into the record. In his deposition, Dr. French, an orthopedic surgeon, testified that he first saw Mr. Kaiser in March 2001 when Mr. Kaiser sought treatment for injuries sustained in the second accident of January 15, 2001. At that time, Mr. Kaiser reported that he suffered pain in both shoulders, and an abnormality in his right arm. Dr. French testified that Mr. Kaiser appeared to have suffered a biceps tendon rupture in the right arm and that x-rays revealed degenerative changes of the humeral heads in both shoulders and spurring in both shoulders which would have developed over a long period of time predating the accident. During that first visit, Mr. Kaiser did not mention that he was involved in two other automobile accidents. Dr. French admitted that the degeneration in Mr. Kaiser’s shoulder could have caused the biceps rupture and that there was no way to date exactly when the rupture occurred. Dr. French prescribed physical therapy for Mr. Kaiser and gave him cortisone shots in the shoulder. Dr. French also opined that it was medically impossible for Mr. Kaiser to put his biceps tendon back into place.

With regard to Mrs. Kaiser, Dr. French indicated that she first sought treatment at his office on January 17, 2001 with complaints of neck pain as well as numbness in the upper left extremity or the left arm. At that time, Mrs. Kaiser did not inform Dr. French of her December 28, 2000 accident, but only related the details of her January 15, 2001 accident. Dr. French reported that Mrs. Kaiser’s x-rays revealed degenerative changes of the cervical spine which predated the January 15th accident. As a result of her injuries, Dr. French prescribed physical therapy which Mrs. Kaiser attended from February 2001 to July 2001. Dr. French opined that Mrs. Kaiser has suffered a pinched nerve after her stroke, but that the accident would not have aggravated it. Dr. French testified that it was not more probable than not that the | (¡January 15th accident aggravated Mrs. Kaiser’s degenerative disease any more than the December 28th or January 22nd accident. He also testified that he gave Mrs. Kaiser cortisone injections once every three to four months in addition to physical therapy.

Paul Van Hoose, a claim representative employed by State Farm, was the next witness to testify. Mr. Van Hoose testified that plaintiffs had filed uninsured motorist claims against State Farm for all three accidents. He testified that plaintiffs made personal injury claims for all three accidents. With regard to the December 28th accident, Mr. Kaiser made a claim for personal injuries including headaches, right shoulder pain, sore neck and an earache and Mrs. Kaiser made a claim for neck and shoulder pain. With regard to the January 22nd accident, Mrs. Kaiser reported that her neck was sore and Mr. Kaiser reported neck and back injuries. With regard to the January 15th accident, Mrs. Kaiser reported neck, right shoulder, and arm injuries (both arms) and Mr. Kaiser did not report a specific injury.

Dr. Wendy Jamison, a neurologist, testified next. Dr. Jamison testified that she first saw Mrs. Kaiser on October 5, 2000 for complaints of numbness in her left arm and her left leg, numbness in her face, and tingling in her fingers, which Dr. Jamison diagnosed as a stroke. Dr. Jamison opined that the stroke reduced the strength in Mrs. Kaiser’s left-hand grip and that this reduced strength could contribute to Mrs. Kaiser’s limited strength in her left arm.

Dr. Jamison next saw Mrs. Kaiser on February 1, 2001, complaining of neck pain. At that time, Mrs. Kaiser informed Dr. Jamison that she had been involved in three car accidents since her stroke. Mrs. Kaiser reported she had suffered no injuries in the first accident, had been diagnosed with whiplash after the second accident and |7believed the third accident aggravated her neck pain. Dr. Jamison testified that Mrs. Kaiser’s complaints were consistent with the type of injuries involved in a rear-end accident. Dr. Ja-mison opined that Mrs. Kaiser suffered from arthopathy and sclerosis and that these conditions would cause Mrs. Kaiser to be more affected by a rear-end collision than a normal person. Dr. Jamison also testified that Mrs. Kaiser complained of headaches on her first visit after her stroke, that Mrs. Kaiser told her the headaches predated the stroke, and that Mrs. Kaiser regularly took four to six Anacins in a day to treat the headaches. Dr. Jamison also testified that a vehicle accident could aggravate the weakness Mrs. Kaiser suffered as a result of her stroke.

Dr. Jeffrey Sketchier, an orthopedic surgeon, was the next witness to testify. Dr. Sketchier first saw Mrs. Kaiser on February 25, 2002 for complaints of pain in her left shoulder, discomfort in the neck, and numbness, tingling, and pain which radiated down her left arm. Upon examination, Dr. Sketchier believed that Mrs. Kaiser suffered from some spurring and some degeneration of the rotator cuff, which he opined may have happened when Mrs. Kaiser extended her hand to the dashboard of the vehicle upon impact during the January 22nd accident. Dr. Sketchier opined that an MRI of Mrs. Kaiser revealed a considerable amount of preexisting degeneration of the neck with some disc bulges and some spurring within the neck, which is consistent with Mrs. Kaiser’s age. Dr. Sketchier continued Dr. French’s treatment of giving Mrs. Kaiser periodic cortisone injections every three or four months. He also testified that the MRI revealed foraminal compromise, which essentially means a tightening of the nerve passage. He testified that in light of Mrs. Kaiser’s age and prior medical history, she was predisposed for an injury in a rear-end collision. Dr. Sketchier opined that Mrs. Kaiser’s condition probably would not get better, but lswould also not get worse and she would continue to require cortisone injections for the rest of her life. He also testified that she was not a candidate for surgery because of her age.

Dr. Sketchier also testified that he saw Mr. Kaiser for the first time in February 2002. At that time, he diagnosed Mr. Kaiser with a ruptured biceps tendon, which is not uncommon for elderly men. By 2004, Mr. Kaiser’s shoulder began to get worse and Dr. Sketchier ordered an MRI, which revealed a tear in the rotator cuff. After viewing the results of the MRI, Dr. Sketchier recommended that Mr. Kaiser undergo surgery to repair the rotator cuff, which would cost around $1800-$2200. Dr. Sketchier also testified that if someone with degenerative arthritis, such as Mr. Kaiser, suffered a trauma, that trauma might aggravate' the arthritis but would return to a baseline of where they were before the trauma.

At the conclusion of trial, the jury rendered a verdict in favor of plaintiffs. It awarded $6,500 in total damages to Mr. Kaiser, consisting of $1,500 in past medicals, $1,500 in future medicals and $3,500 in general damages. As to Mrs. Kaiser, the jury awarded $20,000 in total damages, consisting of $3,500 in past medicals, $3,200 in future medicals, and $13,300 in general damages.

The district court signed a judgment consistent with the jury’s verdict. Plaintiffs moved for a new trial, which the district court denied.

Plaintiffs appealed, seeking review of the damage award. In an opinion not designated for publication, the Court of Appeal, Fourth Circuit amended the judgment to increase plaintiffs’ damages. Kaiser v. Hardin, 05-0792 (La.App. 4th Cir.7/19/06), 933 So.2d 260, 2006 WL 2136016 (unpublished). Specifically, the court of appeal increased Mrs. Kaiser’s award of past medical expenses from $3,500 to $7,734.86 and increased her general damage award from $13,200 to $30,000. It increased Mr. Kaiser’s past 19medical expenses from $1,500 to $4181.50, increased his future medical expenses from $1,500 to $7,000 and increased his general damages from $3,500 to $30,000.

Upon application by Mr. Hardin and USAA, we granted certiorari to consider the correctness of that ruling. Kaiser v. Hardin, 06-2092 (La.11/17/06), 942 So.2d 521.

DISCUSSION

General Damages

In Duncan v. Kansas City Southern Railway Co., 00-0066 (La.10/30/00), 773 So.2d 670, we set forth the standard for appellate review of general damage awards:

General damages are those which may not be fixed with pecuniary exactitude; instead, they “involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms.” Keeth v. Dept, of Pub. Safety & Tramp., 618 So.2d 1154, 1160 (La.App. 2 Cir.1993). Vast discretion is accorded the trier of fact in fixing general damage awards. La.Civ.Code art. 2324.1; Hollenbeck v. Oceaneering Int, Inc., 96-0377, p. 13 (La.App. 1 Cir. 11/8/96); 685 So.2d 163, 172. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert, denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn, 623 So.2d at 1260.
The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages. Cone v. National Emergency Serv., Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089; Reck v. Stevens, 373 So.2d 498 (La.1979). Only after a determination that the trier of fact has abused its “much discretion” is a resort to prior awards appropriate and then only for the purpose of determining the highest or |inlowest point which is reasonably within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).

With these principles in mind, we now turn to a review of the general damage awards in this case.

Mr. Kaiser

The jury awarded Mr. Kaiser general damages in the amount of $3,500. In increasing this award to $30,000, the court of appeal recognized that Mr. Kaiser’s testimony that he pushed his biceps muscle back in place following the accident was a medical impossibility. Nonetheless, the court felt this conclusion did not diminish the “glaring fact” that Mr. Kaiser experienced “some muscular damage as a result of the rear end collision.” As support, the court of appeal pointed to the testimony of Dr. French and Dr. Sketchier, who both testified that it would be unusual for Mr. Kaiser to not have experienced some degree of pain at the time the biceps muscle ruptured.

Based on our review of the record, we cannot say the jury’s award represents an abuse of its vast discretion. Although the medical testimony revealed Mr. Kaiser suffered a biceps tendon rupture or rotator cuff tear, the only evidence which connected this injury to the second accident was Mr. Kaiser’s own testimony. The jury could have viewed this testimony with some skepticism, given the medical impossibility of Mr. Kaiser’s statement that he pushed his biceps tendon back into place. Additionally, the medical testimony suggested that causes unrelated to the accident, such as age-related degeneration, could be responsible for some of Mr. Kaiser’s condition.

Considering the record as a whole, we believe the jury concluded Mr. Kaiser suffered some muscle aches as a result of the second accident. An award of $3,500 lufor such injuries does not represent an abuse of the jury’s vast discretion. The court of appeal erred in disturbing this award.

Mrs. Kaiser

The jury awarded Mrs. Kaiser $13,200 in general damages. In increasing this award to $30,000, the court of appeal observed that “[i]t is not a stretch to take notice that even a minor injury to an elderly person could prove to be relatively substantial.” The court further explained that Mrs. Kaiser’s stroke, which preceded the accident, should in no way impede her general damages claim.

Mrs. Kaiser’s primary complaint following the accident was pain and discomfort in her neck as well as weakness in her shoulders and arms. However, the medical evidence indicated that Mrs. .Kaiser suffered from degenerative changes of the cervical spine which pre-dated the accident. The testimony also revealed that it was unlikely that the second accident aggravated her condition any more than the first or third accidents.

Considering the record as a whole, we believe the jury concluded that some of Mrs. Kaiser’s complaints were related to the second accident, but found that much of her injuries were either pre-existing or attributable to the other accidents. An award of $13,200 for such injuries does not represent an abuse of the jury’s vast discretion. The court of appeal erred in disturbing this award.

Special Damages

Special damages are those which have a “ready market value,” such that the amount of the damages theoretically may be determined with relative certainty, including medical expenses and lost wages. McGee v. A C and S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770. In reviewing a jury’s factual conclusions with regard to | ^special damages, an appellate court must satisfy a two-step process based on the record as a whole: There must be no reasonable factual basis for the trial court’s conclusions, and the finding must be clearly wrong. Guillory v. Ins. Co. of North America, 96-1084 (La.4/8/97), 692 So.2d 1029. Therefore, we now turn to a discussion of whether the jury’s award of special damages was based on manifestly erroneous factual findings.

Mr. Kaiser

Although Mr. Kaiser requested $4,180.50 in past medical expenses, the jury awarded him only $1,500. In awarding the full $4,180.50 in past medical expenses for Mr. Kaiser, the court of appeal reasoned that “the jury to some extent believed his trial testimony and attributed his injuries to the January 15th accident.”

As discussed earlier, the jury’s general damage award in this case suggests it found some, though not all of Mr. Kaiser’s injuries resulted from the second accident. This finding is not clearly wrong, as the medical testimony establishes Mr. Kaiser’s injuries could have resulted from other causes, such as age-related degeneration or been due to the other accidents. The $1,500 award in past medical expenses is consistent with a finding that Mr. Kaiser suffered some muscle aches from the accident, but was not entitled to recover all of his requested expenses.

The jury awarded Mr. Kaiser in $1,500 in future medical expenses. In increasing this award to $7,000, the court reasoned that by making some award for future medical expenses, the jury must have found Mr. Kaiser would require some medical treatment in the future as a result of the second accident. Citing Dr. Sketch-ler’s testimony, the court reasoned that Mr. Kaiser would need to undergo surgery to repair his torn rotator cuff. Therefore, the court of appeal increased the award to cover the full cost of this surgery.

|isln refusing the make a full award of future medical expenses, the jury obviously concluded that Mr. Kaiser’s torn rotator cuff did not result from the second accident. In order to reverse that factual finding, the court must find that there was no reasonable factual basis for the jury’s finding.

Our review of the record indicates there was no testimony specifically connecting the torn rotator cuff to the second accident. Dr. Sketchier admitted he did not diagnose the torn rotator cuff until 2004, over three years after the second accident. Under these circumstances, we cannot say the jury was clearly wrong in refusing to award future medical expenses in connection with the rotator cuff surgery.

Mrs. Kaiser

The jury awarded Mrs. Kaiser past medical expenses in the amount of $8,500. In increasing this award to the full $7,734.86 requested by Mrs. Kaiser, the court of appeal determined these medical expenses resulted from the second accident of January 15. The court reasoned that neither Mrs. Kaiser’s stroke nor the pre-existing degenerative problem involved neck and shoulder pain and found “[tjhose complaints conceivably developed after the January 15, 2001 accident.”

The question of whether it is “conceivable” that Mrs. Kaiser’s neck and shoulder pain originated from the second accident is irrelevant for purposes of the manifest error analysis. Instead, in order to reverse the jury’s factual finding that all of Mrs. Kaiser’s expenses did not result from the second accident, the court must find there is no reasonable factual basis for this conclusion.

|14A review of the medical testimony indicates that Mrs. Kaiser suffered a stroke and had age-related degenerative changes, both of which pre-dated the second accident. Additionally, defendants also put on evidence which disputed Mrs. Kaiser’s testimony that she was injured in the second accident only. Paul Van Hoose, the claim representative for State Farm, testified that Mrs. Kaiser made personal injury claims for all three accidents. Moreover, Dr. French’s records indicated that Mrs. Kaiser presented at his office two days after the second accident, complaining that she had been suffering neck and arm pain for approximately one month-well before the second accident. Considering this evidence, we believe there was a reasonable factual basis for the jury’s finding that only part of the medical expenses claimed by Mrs. Kaiser was attributable to the second accident.

Conclusion

Based on our review of the record, we find the jury’s general damage award does not represent an abuse of the jury’s vast discretion. Additionally, we find the jury’s award of special damages is consistent with its factual findings, which are supported by the record. Accordingly, the court of appeal erred in disturbing the general and special damage awards. Insofar as the court of appeal increased the damage awards, we must reverse its judgment and reinstate the judgment of the district court.

DECREE

For the reasons assigned, the judgment of the court of appeal, insofar as it increased the damage awards in favor of Thurman Kaiser and Rosemary Kaiser, is reversed. The judgment of the district court is reinstated and affirmed in its entirety. All costs in this court are assessed against plaintiffs.

      . This accident was settled out of court. The driver was uninsured and plaintiffs settled with their uninsured motorist carrier.

      . Plaintiffs also named Ms. Mullen and her insurer, State Farm Mutual Automobile Insur-anee Company, as defendants, based on the January 22, 2001 accidents. Plaintiffs settled with these defendants prior to trial. Accordingly, we will not discuss these defendants further.

      . The claim report identified Mr. Kaiser's injury as "unknown.” On cross examination, Mr. Van Hoose clarified that State Farm was aware that Mr. Kaiser planned to make a personal injury claim, but was simply unaware of the nature of the claim.

      . Dr. Sketchier essentially continued Dr. French’s treatment when Dr. French moved his practice to Tennessee.

      . Likewise, we do not find it inconsistent that the jury awarded some, though not all, of the requested future medical expenses. The jury could have reasonably concluded that Mr. Kaiser would have some future medical expenses, such as expenses for physical therapy, which resulted solely from the second accident.


text:
    In re Edward A. DOSKEY.
    No. 2005-OB-2317.
    Supreme Court of Louisiana.
    April 11, 2007.
    Paul Thomas Kernan, New Orleans, for applicant.
    Richard Anthony Goins, Scott Thomas Whittaker, New Orleans, Charles Bennett Plattsmier, Baton Rouge, for respondent.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

| petitioner, Edward A. Doskey, is an attorney licensed to practice law in the State of Florida. When petitioner applied to take the Louisiana Bar Examination, he was advised by the Committee on Bar Admissions (“Committee”) that he could not sit for the exam. The Committee cited two disciplinary complaints filed against petitioner in Florida, one of which was still pending at that time and which petitioner had failed to disclose to the Committee. We subsequently granted petitioner permission to sit for the bar exam, with the condition that upon his successful completion of the exam, he apply to the court for the appointment of a commissioner to take character and fitness evidence. In re: Doskey, 05-1844 (La.7/18/05), 905 So.2d 1086.

Petitioner thereafter successfully passed the essay portion of the bar exam, and upon his application, we appointed a commissioner to take evidence and report to this court whether he possesses the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana. We also authorized the Office of Disciplinary Counsel to conduct an investigation into petitioner’s qualifications to be admitted to the bar.

The commissioner conducted a character and fitness hearing in July 2006, pursuant to Supreme Court Rule XVII, § 9(B). The commissioner received documentary evidence and heard testimony given by petitioner and his witnesses. At|gthe conclusion of the hearing, the commissioner filed his report with this court, recommending that petitioner be conditionally admitted to the practice of law. Both petitioner and the Committee objected to that recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(B)(3).

After hearing oral argument, reviewing the evidence, and considering the law, we conclude petitioner, Edward A. Doskey, is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of one year. Should petitioner commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

CONDITIONAL ADMISSION GRANTED.


text:
    Steven and Lynn PLOTKIN v. BROADMOOR, L.L.C., et al.
    No. 2007-CC-0693.
    Supreme Court of Louisiana.
    April 11, 2007.
   PER CURIAM.

Writ granted. The decision of the court of appeal to grant the plaintiffs’ motion to strike the jury is reversed and the trial court’s ruling denying the motion to strike the jury is reinstated for the reasons explained by the trial court. See Berrigan v. Deutsch, Kerrigan & Stiles, 04-0189 (La.3/26/04), 871 So.2d 332, citing State v. Walker, 95-0185 (La.6/30/95), 658 So.2d 190 (the right of a litigant to a jury trial is fundamental in character and the courts will indulge every presumption against a waiver, loss, or forfeiture).

KIMBALL and TRAYLOR, JJ., would deny the application.


text:
    In re H. Edward ELLZEY.
    No. 2007-B-0729.
    Supreme Court of Louisiana.
    April 12, 2007.
   ORDER

Considering the Petition for Interim Suspension for Threat of Harm filed by the Office of Disciplinary Counsel,

IT IS ORDERED that H. Edward Ell-zey, Louisiana Bar Roll number 5339, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ John L. Weimer John L. Weimer Justice, Supreme Court of Louisiana