Memphis Pub. Co. v. Tennessee Petroleum Underground Storage Tank Bd.

Decision Date31 August 1998
PartiesMEMPHIS PUBLISHING COMPANY, Appellee, v. TENNESSEE PETROLEUM UNDERGROUND STORAGE TANK BOARD, and J.W. Luna as Commissioner of the Tennessee Department of Environment and Conservation, Appellants.
CourtTennessee Supreme Court

John Knox Walkup, Attorney General & Reporter, Michael E. Moore, Solicitor General, Barry Turner, Deputy Attorney General, Nashville, for Appellant.

S. Russell Headrick, Stephen P. Hale, Memphis, for Appellee.

OPINION

DROWOTA, Justice.

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 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 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.

(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.

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 p 0.404 (2d ed.1995); 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal 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, p 0.404. 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...

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