Hsu v. County of Clark, No. 46461.

Docket NºNo. 46461.
Citation173 P.3d 724
Case DateDecember 27, 2007
CourtSupreme Court of Nevada
173 P.3d 724
TIEN FU HSU; Lisa Su Family Trust; Lisa Su, Trustee; Peter B. Liao; Westpark, Inc.; Lucky Land Company; Lucky Land Company Investments; Lucky Land Company Enterprises, Limited Partnership; and West Park Company 1, Appellants,
v.
COUNTY OF CLARK, a Political Subdivision of the State of Nevada, Respondent.
No. 46461.
Supreme Court of Nevada.
December 27, 2007.

[173 P.3d 726]

Law Offices of Kermitt L. Waters and Kermitt L. Waters and James Jack Leavitt, Las Vegas, for Appellants.

David J. Roger, District Attorney, and Michael L. Foley, Deputy District Attorney, Clark County; Jones Vargas and Kirk B. Lenhard, R. Douglas Kurdziel, and Scott M. Schoenwald, Las Vegas, for Respondent.

BEFORE THE COURT EN BANC.1

OPINION

By the Court, MAUPIN, C.J.:


In this appeal, we determine whether this court should adopt equitable exceptions to the law of the case doctrine. We also revisit the prior decision we issued in the first appeal of this airspace takings case, given our intervening decision in McCarran International Airport v. Sisolak,2 which set forth a new scheme for analyzing airspace takings claims. We conclude that, in some instances, equitable considerations justify a departure from the doctrine that the principles set forth in a first appeal are the law of the case on all subsequent proceedings. Accordingly, when this court issues an intervening decision that constitutes a change in controlling law, courts may depart from the decided law of the case and apply the new rule of law. Thus, applying the rule of law set forth in Sisolak to this case, we conclude that appellants properly established a claim for a per se regulatory taking of airspace and are entitled to appropriate just compensation.

FACTS AND PROCEDURAL HISTORY

This matter involves a novel takings issue raised during a suit for inverse condemnation.

In 1981 and 1990, Clark County passed two ordinances that placed "transition zone" height restrictions on property surrounding McCarran International Airport, including a strip of land owned by appellants. In 1995, appellants (the landowners) counterclaimed

173 P.3d 727

against the County in an eminent domain action, contending that these restrictions inversely condemned an avigation easement over their property without compensation and in violation of the Nevada and United States Constitutions. On a motion for summary judgment, the district court ruled that the ordinances enlarging transition zones over the property constituted a per se physical taking of the landowners' property as a matter of law. In support of its holding, the district court specifically concluded that the transition zone height restrictions preserved the right of aircraft to fly through the airspace and that aircraft actually utilized the airspace. The matter proceeded to a jury trial on the sole issue of just compensation and resulted in a substantial jury verdict.

On appeal, this court, sitting en banc as a five-justice court,3 reversed the district court in an unpublished order, concluding that the district court erred in determining that a per se physical taking occurred.4 In this, we determined that the height restrictions created by the ordinances did not involve a physical ouster, but rather regulated use of the property. From this, we reasoned that the takings issue should have been decided under the regulatory takings principles set forth in Penn Central Transportation Co. v. New York City.5 Concluding that the landowners had not exhausted their administrative remedies, as required by Penn Central, we reversed and remanded to give the landowners that opportunity.

On remand, the district court directed the landowners to submit a proposed development plan to the County by January 1, 2006, and stated that it would dismiss the landowners' claims if they had not submitted a plan or otherwise begun to exhaust their administrative remedies by this date. However, rather than submitting a development plan for approval, the landowners sold the subject property, causing the district court to dismiss the case without prejudice on December 6, 2005.6 The landowners then filed the present appeal to this court.

During the pendency of the landowners' current appeal, this court issued a published opinion in McCarran International Airport v. Sisolak.7 In Sisolak, under facts similar to this case, this court concluded that county "runway approach zone" height restrictions constituted a permanent physical invasion of the landowner's airspace and determined that Sisolak's inverse condemnation claims were properly analyzed as a "per se regulatory taking,"8 as defined in Loretto v. Teleprompter Manhattan CATV Corp.9 Because the height restrictions constituted a per se taking, this court further concluded that Sisolak's claims did not fall within the ambit of Penn Central, indicating that Sisolak was not required to exhaust his administrative remedies before bringing suit. This court accordingly affirmed the district court's inverse condemnation award.

The landowners now argue that, because the facts in this case are similar to those in

173 P.3d 728

Sisolak, they are entitled to the benefit of this court's Sisolak decision, indicating that we should revisit our prior decision in Hsu I, and reinstate the original judgment of the district court. In this, they seek our clarification of the scope of the "law of the case" doctrine.

DISCUSSION

The doctrine of the law of the case provides that the law or ruling of a first appeal must be followed in all subsequent proceedings, both in the lower court and on any later appeal.10 Thus, under a general application of this doctrine, our decision in Hsu I would remain the law of the case and could not be revisited in this appeal. Nonetheless, the landowners contend that we should adopt equitable exceptions to the established law of the case doctrine and re-analyze our holding in Hsu I in light of our decision in Sisolak. The landowners further argue that application of Sisolak requires this court to reinstate the district court's initial judgment, including its finding of liability, the award of just compensation, and attorney fees and prejudgment interest.

We agree that in some instances, equitable considerations justify a departure from the law of the case doctrine. Accordingly, we take this opportunity to establish that when this court issues an intervening decision that constitutes a change in controlling law, courts subject to the previously decided law of the case may depart from it and apply the new rule of law. Following our general discussion of the law of the case doctrine, we analyze the landowners' claims in light of our decision in Sisolak and conclude that the transition zone height restrictions imposed by the County effectuated a per se regulatory taking of the landowners' airspace. Finally, we assess the impact of Sisolak on the calculation of just compensation and determine that the County is entitled to a new trial to determine the proper compensation due.

Law of the case doctrine

Under the law of the case doctrine, "[w]hen an appellate court states a principle or rule of law necessary to a decision, the principle or rule becomes the law of the case and must be followed throughout its subsequent progress, both in the lower court and upon subsequent appeal."11 The law of the case doctrine "is designed to ensure judicial consistency and to prevent the reconsideration, during the course of a single continuous lawsuit, of those decisions which are intended to put a particular matter to rest."12 The law of the case doctrine, therefore, serves important policy considerations, including judicial consistency, finality, and protection of the court's integrity.13

However, the law of the case doctrine is not a jurisdictional rule.14 Rather, as observed by the United States Supreme Court, it "merely expresses the practice of courts generally to refuse to reopen what has been decided[:] [it is] not a limit to their power."15 Accordingly, the United States Supreme Court has concluded that "[u]nder law of the case doctrine, as now most commonly understood, it is not improper for a court to depart from a prior holding if convinced that it is

173 P.3d 729

clearly erroneous and would work a manifest injustice."16 Based on statements such as these, federal courts have adopted three specific exceptions to the law of the case doctrine, concluding that a court may revisit a prior ruling when (1) subsequent proceedings produce substantially new or different evidence, (2) there has been an intervening change in controlling law, or (3) the prior decision was clearly erroneous and would result in manifest injustice if enforced.17 Nevertheless, as the United States Supreme Court has noted, absent those "extraordinary circumstances," a court "should be loathe" to revisit its prior decisions.18

In addition to the federal courts, many state courts have also adopted these three exceptions to the law of the case doctrine.19 While the remaining states have not clearly embraced all of these specific exceptions, most recognize that a court is not absolutely bound by the law of the case and embrace at least one or more of these exceptions, or allow departure from prior decisions if enforcement of the previous decision would cause an unjust result.20 Although this court has never explicitly adopted any formal exceptions to the law of the case doctrine, in Clem v. State, we implicitly acknowledged the possibility of exceptions to the law of the case, stating that "[w]e will depart from our prior holdings only where we determine that they are so clearly erroneous that continued adherence to them would work a manifest injustice."21 Similarly, in Leslie v. Warden, we actually revisited our decision upholding a death penalty sentence when we determined that failure to do so "would amount to a fundamental miscarriage of justice."22

Given that a majority of states in this country have adopted at...

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108 practice notes
  • Carmona v. Carmona, No. 06-15581
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 17, 2008
    ...cross claim. The law of the case doctrine only applies to successive appeals in the same suit. See Hsu v. County of Clark, 123 Nev. 625, 173 P.3d 724, 730 n. 26 (2007). Where the suit involves a new party and new claims, as it does here, it is only res judicata, and not the law of the case ......
  • Carmona v. Carmona, No. 06-15581.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 17, 2008
    ...bar IATSE's cross claim. The law of the case doctrine only applies to successive appeals in the same suit. See Hsu v. County of Clark, 173 P.3d 724, 730 n. 26 (Nev.2007). Where the suit involves a new party and new claims, as it does here, it is only res judicata, and not the law of the cas......
  • Rippo v. State, No. 53626
    • United States
    • Nevada Supreme Court of Nevada
    • August 2, 2018
    ...our prior decision was based on false representations by the State and the trial judge. See Hsu v. Cty. of Clark, 123 Nev. 625, 630, 173 P.3d 724, 729 (2007) (observing that federal courts recognize exception to the doctrine when "subsequent proceedings produce substantially new or differen......
  • Franchise Tax Bd. of Cal. v. Hyatt, No. 53264.
    • United States
    • Nevada Supreme Court of Nevada
    • September 18, 2014
    ...immunity to FTB in the present case as it relates to Hyatt's intentional tort causes of action. Hsu v. Cnty. of Clark, 123 Nev. 625, 632, 173 P.3d 724, 730 (2007) (stating that “the doctrine of the law of the case should not apply where, in the interval between two appeals of a case, there ......
  • Request a trial to view additional results
108 cases
  • Carmona v. Carmona, No. 06-15581
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 17, 2008
    ...cross claim. The law of the case doctrine only applies to successive appeals in the same suit. See Hsu v. County of Clark, 123 Nev. 625, 173 P.3d 724, 730 n. 26 (2007). Where the suit involves a new party and new claims, as it does here, it is only res judicata, and not the law of the case ......
  • Carmona v. Carmona, No. 06-15581.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 17, 2008
    ...bar IATSE's cross claim. The law of the case doctrine only applies to successive appeals in the same suit. See Hsu v. County of Clark, 173 P.3d 724, 730 n. 26 (Nev.2007). Where the suit involves a new party and new claims, as it does here, it is only res judicata, and not the law of the cas......
  • Rippo v. State, No. 53626
    • United States
    • Nevada Supreme Court of Nevada
    • August 2, 2018
    ...our prior decision was based on false representations by the State and the trial judge. See Hsu v. Cty. of Clark, 123 Nev. 625, 630, 173 P.3d 724, 729 (2007) (observing that federal courts recognize exception to the doctrine when "subsequent proceedings produce substantially new or differen......
  • Franchise Tax Bd. of Cal. v. Hyatt, No. 53264.
    • United States
    • Nevada Supreme Court of Nevada
    • September 18, 2014
    ...immunity to FTB in the present case as it relates to Hyatt's intentional tort causes of action. Hsu v. Cnty. of Clark, 123 Nev. 625, 632, 173 P.3d 724, 730 (2007) (stating that “the doctrine of the law of the case should not apply where, in the interval between two appeals of a case, there ......
  • Request a trial to view additional results

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