Entergy Corp. v. Jenkins ex rel. Situated
| Decision Date | 30 December 2014 |
| Docket Number | NO. 01-12-00470-CV,01-12-00470-CV |
| Parties | ENTERGY CORPORATION, ENTERGY SERVICES, INC., ENTERGY POWER, INC., ENTERGY POWER MARKETING CORPORATION, ENTERGY ARKANSAS, INC., AND ENTERGY TEXAS, INC., Appellants v. DAVID JENKINS, GEORGE W. STRONG, FRANCIS N. GANS, AND GARY M. GANS, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 344th District Court Chambers County, Texas
At what juncture in our Texas jurisprudence did a state tort action for theft and manipulating information, including proprietary software designed todetermine purchasing decisions of electric power,1 get preempted by a byzantine pervasive Federal regulatory scheme for utility rates?2 When did the judicial doctrine of federal preemption become the means whereby claims of theft from citizens are exempt from judicial proceedings for no reason other than the industry in which the accused does business is subject to federal regulations?
The majority opinion pegs that date at November 6, 2014. See Entergy Corp. v. Jenkins, ---S.W.3d---, 2014 WL 5780638, at *1 () (Jenkins II).
More to the point: To how many courts must the same jurisdictional arguments be trotted out and found inadequate before the litigants are accorded a trial on the merits? Prior to our consideration, this case had been reviewed by the trial court in Chambers County, a federal district court for the Southern District of Texas,3 the Edinburg-Corpus Christi Court of Appeals (Jenkins I),4 the Texas Supreme Court5 and the United States Supreme Court. 6 Excepting the initialdismissal from the Chambers County court, and the majority opinion of this Court, all were of one mind with respect to the jurisdictional issue.
Law of the case
The law of the case doctrine is the legal principle that questions of law decided and resolved on appeal will govern throughout the subsequent stages of the case, including retrials and further appeals. See Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 595-96 (Tex. 2006). The doctrine only applies to questions of law7 expressly considered and decided in a prior appeal of the same case. See id. at 596; see also Gantt v. Gantt, 208 S.W.3d 27, 30 n.4 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd). Furthermore, the doctrine may not be waived by the parties as it was established to protect the appellate court's prior judgment, and it is the appellate court that determines whether the legal principle applies on successive appeals. See Jones & Gonzalez, P.C. v. Trinh, 340 S.W.3d 830, 836 (Tex. App.—San Antonio 2011, no pet.).
The doctrine is rooted in public policy and aimed at putting an end to litigation. See Briscoe v. Goodmark Corp., 102 S.W. 3d 714, 716-17 (Tex. 2003). By narrowing the issues in subsequent stages of litigation, the doctrine is aimed atachieving uniformity and consistency as well as judicial economy and efficiency. Id.; In re Henry, 388 S.W.3d 719, 727 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). The law of the case assures lower courts that they can rely on the appellate court's disposition of an issue in presiding over the suit and gives an incentive for trial courts to closely follow these decisions. Duncan v. State, 151 S.W.3d 564, 566 (Tex. App.—Fort Worth 2004, pet. ref'd) (quoting Howlett v. State, 994 S.W.2d 663, 666 (Tex. Crim. App. 1999)).
An exception to the law of the case doctrine is taken when the original decision was clearly erroneous. Brown & Brown of Tex. Inc. v Omni Metals, Inc., 317 S.W. 3d 361, 373-74 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (citing Briscoe, 102 S.W.3d 716)). The operative language for deviation being "clearly erroneous."
Where, as here, an intermediate appellate court renders a decision on an interlocutory appeal and both the Texas Supreme Court and the United States Supreme Court decline an opportunity to review it, the decision, for purposes of the law of the case doctrine, is not clearly erroneous. Caplinger v. Allstate Ins. Co., 140 S.W. 3d 927, 930 (Tex. App.—Dallas 2004, pet. denied); see also Hurd Enterprises, Ltd. v. Bruni, 828 S.W. 2d 101, 106 (Tex. App.—San Antonio, 1992, writ denied).
In support of the panel majority's position that law of the case doctrine is merely optional and its application discretionary with the subsequent reviewing court, the panel's opinion cites Briscoe, see Jenkins II, ---S.W.3d---, 2014 WL 5780638, at *3, despite then-Chief Justice Jefferson's concurrence emphasizing that the underlying case was a page from the "bad facts make bad law" book: Briscoe, 102 S.W. 3d at 719 (Jefferson, J., concurring). In other words, the case was one which handily met the "clearly erroneous" measure.
A court should not examine the question of jurisdiction anew after another court has already decided the question of jurisdiction as a contested issue. Stoll v. Gottlieb, 305 U.S. 165, 172, 59 S. Ct. 134, 137-38 (1938); see Durfee v. Duke, 375 U.S. 106, 113-14, 84 S. Ct. 242, 245-46 (1963). Correspondingly, "[t]he law of the case doctrine is defined as that principle under which questions of law decided on appeal . . . will govern the case throughout its subsequent stages." Ianni, 210 S.W.3d at 596. It therefore applies only to questions of law expressly considered and decided in a prior appeal. See United States v. Hatter, 532 U.S. 557, 565-66, 121 S. Ct. 1782, 1789-90 (2001); City of San Antonio v. San Antonio Indep. Sch. Dist., 683 S.W.2d 67, 69 (Tex. App.—San Antonio 1984, writ ref'd n.r.e.). Thus,in deciding its jurisdiction, a court is not bound by a prior exercise of jurisdiction where it was not questioned, but was passed sub silentio. United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37-38, 73 S. Ct. 67, 69 (1952); see also Gantt, 208 S.W.3d at 30 n.4.
The majority opinion's cite to It's the Berry's, LLC v. Edom Corner, LLC, 271 S.W.3d 765, 771-72 (Tex. App.—Amarillo 2008, no pet.) is also confusing. The panel opinion cites to It's the Berry's for the proposition that "the law of the case doctrine does not either confer or limit subject matter jurisdiction and is not a limitation on the power of the courts to act." However, that is not the purpose of the doctrine. It's the Berry's was an action for forcible detainer in justice court that was transferred to district court and there tried as though that court possessed original subject matter jurisdiction. Id. at 766.
Federal Preemption
The federal preemption issue was determined specifically by the Edinburg-Corpus Christi Court of Appeals, thoughtfully addressed by the United States District Court, and implicitly determined by the Texas Supreme Court and the United States Supreme Court. Nonetheless, flouting the well-established judicial doctrine of law of the case, the majority opinion of this court eschews the careful analysis of the Edinburg-Corpus Christi Court, which adopted the very the three-part test used by FERC itself to determine its jurisdiction over certain tariffdisputes, and decided Jenkins I need not be heeded because the majority disagrees with its sister court's holding on federal preemption.
"[P]reemption issues are [often] complex and highly nuanced, involving both federalism and separation of powers—congressional prerogatives, agency competence, and judicial deference—as well as efficiency, equity, victim compensation, and cost-shifting objectives."8 Legislative intent is the "touchstone" of federal preemption and exclusive jurisdiction analysis.9 The majority notes that "an agency has exclusive jurisdiction when a pervasive regulatory scheme indicates that Congress intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed." Jenkins II, ---S.W.3d---, 2014 WL 5780638, at *4 (emphasis added)(internal quotations omitted). Here, however, the state law claims under the Texas Theft Liability Act for conspiracy and theft are not matters to which the pervasive regulatory scheme governing energy utilities were addressed.
Both in pleadings and during oral argument, appellees have been clear that this case is not about rates but, rather Entergy's power purchasing decisions. As the trial court found, "Entergy may have applied the rate formulas correctly to thecosts it incurred, but Entergy's proper application of the rates does not somehow make the purchases Entergy made prior to charging those rates proper purchases."
November 6, 2014 would also be the date on which the majority opinion, in its glancing mention in this appeal of the class certification, voids the trial court's certification for its lack of jurisdiction, citing the plaintiffs' failure to have exhausted their "administrative remedies." Given that FERC is the federal administrative agency tasked with regulating the electric power grid of the nation, a fair question is: What administrative remedies? This case, as the Edinburg-Corpus Christi Court of Appeals determined, "is inherently judicial in nature, in which Jenkins brings state law tort claims based on those interstate purchasing and allocation decisions." Jenkins I, 187 S.W3d at 801. As such, the courtroom venue of the judicial branch, not an administrative hearing tribunal of the executive, is the more appropriate adjudicative venue for state tort claims based on theft, conspiracy, software manipulation and accounting sleights of hand.
Was it Congress' intent when enacting the Federal Power Act ("FPA") under the Constitution's Commerce Clause to vest in the Federal Energy Regulatory Commission exclusive jurisdiction to hear...
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