Memphis Publishing Co. v. TN. Petroleum Underground ( 1998 )

FILED
IN THE SUPREME COURT OF TENNESSEE 31, 1998
August
AT NASHVILLE
Cecil W. Crowson
Appellate Court Clerk
FOR PUBLICATION
MEMPHIS PUBLISHING COMPANY, )
) Filed: August 31, 1998
Appellee, )
)
v. ) DAVIDSON CHANCERY
)
TENNESSEE PETROLEUM ) Hon. Irvin H. Kilcrease, Jr.,
UNDERGROUND STORAGE TANK ) Chancellor
BOARD, AND J.W. LUNA AS )
COMMISSIONER OF THE )
TENNESSEE DEPARTMENT OF )
ENVIRONMENT AND )
CONSERVATION, )
)
Appellants. )
)
) No. 01S01-9710-CH-00232
For the Appellant: For the Appellee:
John Knox Walkup S. Russell Headrick
Attorney General & Reporter Stephen P. Hale
Memphis, Tennessee
Michael E. Moore
Solicitor General
Barry Turner
Deputy Attorney General
Nashville, Tennessee
OPINION
AFFIRMED. DROWOTA, J.
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The issue in this appeal is whether the law of the case doctrine applies on
remand to issues implicitly decided by an intermediate appellate court if this Court
denied permission to appeal from that decision, but concurred in results only. For the
reasons that follow, we hold that the law of the case doctrine applies to all issues
decided either implicitly or explicitly by an intermediate appellate court. This Court’s
denial of permission to appeal with concurrence in results only does not alter this
longstanding rule. Accordingly, we affirm the judgment of the Chancellor and the
Court of Appeals.
BACKGROUND
This case is on appeal for the second time. The first appeal arose when the
plaintiff, Memphis Publishing Company, (hereinafter MPC), was denied
reimbursement for remediation expenses incurred as a result of an August 1987
release from its underground storage tank. The Underground Storage Tank Fund
from which MPC sought reimbursement was created by the Tennessee Petroleum
Underground Storage Tank Act of 1988.1 The Act became effective on July 1, 1988.
It is administered by the defendants, the Tennessee Petroleum Underground Storage
Tank Board and J.W. Luna, as Commissioner of the Tennessee Department of
Environment and Conservation.
Though MPC discovered and reported the release from its underground
storage tank prior to July 1, 1988, the majority of its assessment and remediation
efforts occurred after that date. MPC filed its application for reimbursement with the
1
The law is codified at Tenn. Code Ann. § 68-215-101 et seq.
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Board on September 1990. After a contested case hearing, the Board denied the
application by a final decision and order. The Board stated that MPC was not
eligible for reimbursement from the Fund because the release had occurred prior to
July 1, 1988, the effective date of the Act which created the Fund. The Board’s
finding was based upon an April 1990 amendment to the original Act which stated:
“[i]t is the intent of the general assembly that this chapter shall not apply retroactively
to releases or other events that occurred prior to July 1, 1998.” Tenn. Code Ann. §
68-215-102(c) (1996 Repl.).
MPC sought judicial review requesting that the Chancery Court declare the
1990 amendment unconstitutional retrospective legislation. The Chancellor affirmed
the decision of the Board stating:
[MPC] submits that it had a vested right to claim reimbursement
from the fund established by the UST Act, and that the 1990
amendment impairs this right. The provisions of the Act establishing
the UST Fund create new substantive rights, and cannot be
retroactively applied. [citation omitted.] The provision added by the
1990 amendment simply confirmed and ratified the original intent of the
General Assembly that the UST Act is not to be given retrospective
application.
It is undisputed that MPC discovered and reported the release
from its underground storage tank in August of 1987. The Department
has consistently followed its policy of using the date of the discovery of
the release as the applicable date under the UST Act. MPC’s actions
took place well before the effective date of the UST Act on July 1,
1988. This Court concludes that MPC never had a vested right to claim
reimbursement from the fund because the Act does not apply to
releases, like MPC’s that occurred prior to the July 1, 1988 effective
date of the Act.
MPC appealed from the Chancellor’s ruling. The Court of Appeals concluded
that at the time the Act passed, the General Assembly had intended to provide
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reimbursement from the Fund for “all releases regardless of date.” Specifically, the
Court of Appeals stated as follows:
MPC presents the following issue for our consideration:
‘Whether the trial court erred in holding that MPC had no right to
reimbursement from the Fund under the Original Act,’ which became
effective 1 July 1988....
****
We find nothing in the sweeping nature of the perceived
problems addressed by the Original Act, the description of the
comprehensive regulatory mechanism, nor the description of the broad
purposes of the Fund, to suggest or imply any date limitation on the
‘releases’ covered under the Original Act.
****
Both the Board and the Chancellor, in determining that MPC was
not entitled to recover, relied on the 1990 Amendment which set forth
the general assembly’s ‘intent’ to restrict recovery to releases or other
events which occurred after 1 July 1988.
While a later general assembly’s understanding of what an Act
intended is not binding, it is entitled to deference. Legislative
interpretation of a prior statute is entitled to respectful consideration,
but is not controlling on the courts.
Following the fundamental rule of statutory construction, this
court must ascertain and give effect to the intention or purpose of the
legislature as expressed in the statute.
We are of the opinion that the legislature intended to cover all
releases without regard to the date on which they may have occurred.
****
The Original Act was intended to cover, from a Fund
reimbursement perspective, all releases regardless of date. . . . This
issue is sustained.
Because of our holding regarding this issue, we pretermit all
other issues raised by MPC. The judgment of the trial court in affirming
the decision of the Board and Commissioner is reversed and the cause
remanded to the trial court for further, necessary proceedings.
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(Internal citations omitted.)
Thereafter, the defendants filed an application for permission to appeal from
the judgment of the Court of Appeals. This Court denied the application, concurring
in results only. The mandate issued, and the case returned to the trial court for
further proceedings.
In the trial court, the defendants again contended that MPC had no right to
reimbursement from the Fund because of the 1990 amendment to the Act. In
contrast, MPC asserted that the Court of Appeals opinion established the law of the
case on remand. The Chancellor agreed, stating “[t]he decision of the Court of
Appeals makes it clear that the petitioner’s release is to be covered regardless of the
date on which the release occurred. The Supreme Court’s concurrence ‘in results
only’ does not change this fact.”
The defendants appealed, arguing that when this Court denies permission to
appeal with concurrence in results only, the law of the case doctrine applies on
remand only to issues which were explicitly addressed by the intermediate appellate
court decision. The Court of Appeals rejected this argument and affirmed the
Chancellor’s decision. Thereafter, we granted permission to appeal to consider
whether this Court’s denial of an application for permission to appeal with
concurrence in results only precludes application of the law of the case doctrine on
remand to issues implicitly resolved by the intermediate appellate court decision. For
the reasons that follow, we affirm the judgment of the Court of Appeals.
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LAW OF THE CASE DOCTRINE
The phrase “law of the case” refers to a legal doctrine which generally prohibits
reconsideration of issues that have already been decided in a prior appeal of the
same case. 5 Am.Jur.2d Appellate Review § 605 (1995). In other words, under the
law of the case doctrine, an appellate court’s decision on an issue of law is binding
in later trials and appeals of the same case if the facts on the second trial or appeal
are substantially the same as the facts in the first trial or appeal. Life & Casualty Ins.
Co. v. Jett, 175 Tenn. 295, 299, 133 S.W.2d 997, 998-99 (1939); Ladd v. Honda
Motor Co., Ltd., 939 S.W.2d 83, 90 (Tenn. App. 1996). The doctrine applies to
issues that were actually before the appellate court in the first appeal and to issues
that were necessarily decided by implication. Ladd, 939 S.W.2d at 90 (citing other
authority). The doctrine does not apply to dicta. Ridley v. Haiman, 164 Tenn. 239,
248-49, 47 S.W.2d 750, 752-53 (1932); Ladd, 939 S.W.2d at 90.
The law of the case doctrine is not a constitutional mandate nor a limitation on
the power of a court. 5 Am. Jur.2d Appellate Review § 605 (1995); Ladd, 939
S.W.2d at 90. Rather, it is a longstanding discretionary rule of judicial practice which
is based on the common sense recognition that issues previously litigated and
decided by a court of competent jurisdiction ordinarily need not be revisited. Ladd,
939 S.W.2d at 90 (citing other cases). This rule promotes the finality and efficiency
of the judicial process, avoids indefinite relitigation of the same issue, fosters
consistent results in the same litigation, and assures the obedience of lower courts
to the decisions of appellate courts. Ladd, 939 S.W.2d at 90; 5 Am.Jur.2d Appellate
Review § 605 (1995); 1B James W. Moore, Moore’s Federal Practice ¶ 0.404[1] (2d
ed. 1995); 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal
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Practice and Procedure § 4478, at 790 (1981).
Therefore, when an initial appeal results in a remand to the trial court, the
decision of the appellate court establishes the law of the case which generally must
be followed upon remand by the trial court, and by an appellate court if a second
appeal is taken from the judgment of the trial court entered after remand. Miller,
supra, ¶ 0.404[1]. There are limited circumstances which may justify reconsideration
of an issue which was issue decided in a prior appeal: (1) the evidence offered at a
trial or hearing after remand was substantially different from the evidence in the initial
proceeding; (2) the prior ruling was clearly erroneous and would result in a manifest
injustice if allowed to stand; or (3) the prior decision is contrary to a change in the
controlling law which has occurred between the first and second appeal. See
generally 5 Am.Jur.2d Appellate Review §§ 611-613 (1995 & 1998 Supp.); Miller,
supra, ¶ 0.404[1]; Wright, et al., supra, § 4478, at 790; see e.g. Jett, 175 Tenn. at
299, 133 S.W.2d at 999 (“The former opinion of the Court of Appeals was the law
of the case on the second trial, and the evidence being the same, the circuit judge
could not have done otherwise than to submit this issue of sound health to the
jury....); Clingan v. Vulcan Life Ins. Co., 694 S.W.2d 327 (Tenn. App. 1985) (The
initial appeal did not establish the law of the case because the facts in the second
appeal were not substantially the same as the facts in the prior appeal); Arizona v.
California, 460 U.S. 605, 618, n. 8, 103 S. Ct. 1382, 1391, n. 8, 75 L. Ed. 2d 318(1983) (The doctrine does not apply if the court is “convinced that [its prior decision]
is clearly erroneous and would work a manifest injustice.”); Sherley v.
Commonwealth, 889 S.W.2d 794, 798 (Ky. 1994) (The law of the case doctrine does
not apply where there has been an intervening change of controlling authority.)
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Having outlined the parameters of the law of the case doctrine, we must next
consider the defendants’ contention that the doctrine should not apply to issues
implicitly resolved by an intermediate appellate court decision which this Court
declined to review with concurrence in results only.
We have previously stated that, when we deny discretionary review, this Court
is not necessarily committed to all the views expressed in the opinion of the
intermediate appellate court. Meadows v. State, 849 S.W.2d 748, 752 (Tenn. 1993);
Adams v. State, 547 S.W.2d 553, 556 (Tenn. 1977); Street v. Calvert, 541 S.W.2d
576, 587 (Tenn. 1976); Bryan v. Aetna Life Ins. Co., 174 Tenn. 602, 611, 130 S.W.2d
85, 88 (1939). We discussed in Meadows the practical reasons for this rule.
This Court’s use of the denial with concurrence in results only designation has
been founded upon similar considerations. For example, simply because of the
sheer volume of applications for appeal, this Court does not have the ability to grant
review and write an opinion in every case in which it disagrees with some portion of
the intermediate appellate court decision. In addition, the problematic portion of the
intermediate appellate decision is not always raised as an issue by the parties in their
applications for review. Occasionally, the issue is raised, but the record is deficient.
On other occasions, the troubling rationale of the intermediate appellate court relates
to a well-settled area of the law, so there is no need for another decision of this
Court. In all these circumstances our ability to deny review with concurrence in
results only precludes publication of the intermediate appellate court decision,
Pairamore v. Pairamore, 547 S.W.2d 545, 548 (Tenn. 1977); see also Rule 4.4,
Rules of Tenn. Sup. Ct. This designation also alerts the bench and the bar that this
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Court disagrees with some aspect of the intermediate appellate court decision.
Consequently, this designation has been an important tool which has enabled this
Court to efficiently utilize the judicial resources at its disposal and to carefully
supervise the jurisprudence in this State.
However, this Court’s denial of review with concurrence in results only does
not lessen the application of the law of the case doctrine with respect to issues which
were explicitly or implicitly resolved by the intermediate appellate court decision. To
the contrary, generally such a denial reflects this Court’s specific conclusion that the
intermediate appellate court reached the correct result, although we may disagree
with a portion of the underlying rationale. Therefore, an intermediate appellate court
decision constitutes the law of the case with regard to the parties involved in the case
despite this Court’s denial of review by concurrence in results only. Ladd, 939
S.W.2d at 91; Patton v. McHone, 822 S.W.2d 608, 615, n.10 (Tenn. App. 1991).
CONCLUSION
Applying these principles to the facts in this appeal, we hold that the decision
of the Court of Appeals in the first appeal of this case is controlling as the law of the
case despite this Court’s denial of review with concurrence in results only. There are
no grounds which justify reconsideration of the issue. The evidence offered following
the remand was substantially the same as in the initial proceeding. The prior ruling
was not clearly erroneous, and there has been no change in the controlling law
between the first and second appeal. The effect of the 1990 amendment on MPC’s
right to reimbursement from the Fund was at issue in the initial trial and appellate
proceedings as is evident from the decisions of both the trial court and the Court of
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Appeals. Although implicitly decided, a determination of this issue was necessary
and essential to the decision of the Court of Appeals which reversed the trial court’s
judgment. This Court’s denial of review with concurrence in results only does not
abrogate the law of the case effect of that decision.
Consequently, we affirm the decision of the Court of Appeals which upheld the
Chancellor’s finding that the law of the case, as established by the initial decision of
the Court of Appeals, “makes it clear that the petitioner’s release is to be covered
regardless of the date on which the release occurred.” This cause is remanded to
the Chancery Court with instructions that the matter be remanded to the Tennessee
Petroleum Underground Storage Tank Board for a determination of the
reasonableness and necessity of the remediation expenses claimed by Memphis
Publishing Company.
____________________________________
FRANK F. DROWOTA, III,
JUSTICE
Concur:
Anderson, C.J.
Birch, Holder, Barker, JJ.
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