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

• Court: Supreme Court of Tennessee
• Writing for the Court: DROWOTA; ANDERSON
• Citation: 975 S.W.2d 303
• Parties: MEMPHIS 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.
• Decision Date: 31 August 1998

Page 303

975 S.W.2d 303 MEMPHIS 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. Supreme Court of Tennessee,
at Nashville. Aug. 31, 1998.

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.

Page 305

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...