Minnkota Power Co-op., Inc. v. Lake Shure Properties

• Decision Date: 17 July 1980
• Citation: 295 N.W.2d 122
• Parties: MINNKOTA POWER COOPERATIVE, INC., a corporation, Plaintiff and Appellee, v. LAKE SHURE PROPERTIES, a partnership, and Fred Selberg and LaVonne Selberg, Defendants and Appellants. Civ. 9738-A.
• Court: North Dakota Supreme Court

Page 122

295 N.W.2d 122

MINNKOTA POWER COOPERATIVE, INC., a corporation, Plaintiff and Appellee, v. LAKE SHURE PROPERTIES, a partnership, and Fred Selberg and LaVonne Selberg, Defendants and Appellants.

Civ. 9738-A.

Supreme Court of North Dakota.

July 17, 1980.

Conmy, Feste & Bossart, Fargo, for defendants and appellants; argued by David R. Bossart, Fargo.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for plaintiff and appellee; argued by John D. Kelly, Fargo.

PAULSON, Justice.

This appeal is the sequel to Minnkota Power Coop. v. Lake Shure Prop., 289 N.W.2d 230 (N.D.1980). The reader of this opinion may consult such previous opinion for additional background and factual material. Several issues have been presented for review. The essential question is whether or not the Cass County District Court erred in finding that Minnkota could uprate its 230-kilovolt Center-Fargo transmission line to a 345-kilovolt line within the scope of certain easements which Minnkota had obtained from the Landowners in 1968 and 1969. We affirm the judgment of the district court which permanently and forever enjoined the Landowners from prohibiting, interfering with, or restricting Minnkota's entry into the Landowner's property for modification and uprating of electric transmission lines.

The first issue presented is whether or not it was proper for the district court to "reinstate" its December 17, 1979, judgment. Although we believe the choice of the word "reinstate" was a poor one, we also believe that it was proper under the facts of this case to incorporate the December 17, 1979, judgment into the May 21, 1980, judgment.

In our previous opinion, we found that the 20-day notice requirement for Public Service Commission hearings set out in § 49-22-13 of the North Dakota Century Code applied to waiver hearings and we remanded to the district court with instructions "permitting Minnkota to make application to the PSC for a new hearing on Minnkota's application for a certificate of site compatibility". Minnkota, supra, 289 N.W.2d at 234. We there said in 289 N.W.2d at 231:

"We do not reach the merits of this appeal because of what we deem to be an insufficiency in the notice given to the Landowners by the Public Service Commission (PSC) of a hearing on waiver of all corridor and routing procedures. We reverse and remand to the district court with instructions." (Emphasis added.)

Upon remand, Minnkota applied for a new certificate of site compatibility and a hearing was held before the PSC on April 9, 1980. The PSC granted Minnkota's application on May 8, 1980. On May 9, 1980, Minnkota made a motion for reinstatement of the original December 17, 1979, judgment. The district court granted this motion and issued its findings of fact, conclusions of law, order for reinstatement of judgment, and judgment on May 21, 1980.

In its May 21, 1980, findings of fact the district court found that:

"X. . . . The Supreme Court after determining that notice requirements for the PSC hearing had not been met, declined to rule on the merits of the case. . . ." (Emphasis added.)

and also found that:

"XII. The merits of this lawsuit have been previously tried to this Court on October 16 and 17, 1979, with evidence presented by all parties. This Court's earlier decision on the merits is not inconsistent with the mandate of the Supreme Court, and the previous judgment of this Court is entitled to reinstatement."

Counsel for the Landowners argues that our reversal on the first appeal renders the original judgment a nullity and that it was, therefore, improper to reinstate the first judgment. We disagree.

We conclude that where an appellate court reverses a judgment of the district court and remands to the district court, the district court must comply with the mandate of the appellate court's opinion. We believe the district court did so in this case. Our reversal was a qualified one, and we expressly reserved judgment on the merits in the opinion. Therefore, it was not inconsistent with our opinion for the district court to incorporate its pre-remand judgment into its post-remand judgment. Principles of judicial convenience and economy as well as considerable case law support this proposition.

In Kern v. Kelner, 75 N.D. 703, 32 N.W.2d 169 (1948), at paragraphs 1 and 2 of the syllabus, this court held:

"1. When the judgment of the district court is reversed and the Supreme Court remands the case for further proceedings in conformity with law, it is the duty of the district court to examine the opinion of the Supreme Court transmitted with the remittitur (NDRC 1943, 28-2730) and to determine from what is there said and the nature of the case what further proceedings may properly be had in the action, consistent with the decision and order of the Supreme Court and in conformity with law.

"2. Ordinarily, when a judgment is reversed and the case remanded generally for further proceedings in conformity with law, and the opinion of the appellate court shows that the controversy has not been finally disposed of, the court below is free to make any order or direction in the further progress of the case not inconsistent with the decision and opinion of the appellate court, and conformable to law and justice." (Emphasis added.)

In Bjerken v. Ames Sand and Gravel Company, 206 N.W.2d 884 (N.D.1973), we distinguished, at page 888, that portion of the Kern opinion which held that a trial court has liberal discretion in post-remand proceedings. The approach suggested by the Landowners in the instant case is that, when a judgment is reversed, everything upon which that judgment is based is null and void. We might be inclined to agree where there is an unqualified reversal of a judgment. But to require a new trial based on a qualified reversal which gives specific instructions for the district court to follow would be contrary to the principles of fairness, judicial economy, and convenience, and inconsistent with the established case law in the area. When the mandate of the appellate court makes clear the defects which need to be cured by the district court, the district court need do no more than rectify those defects and proceed in a manner consistent with the appellate opinion. It would be an exercise in futility to require the parties to go back and retry the entire case where it is not necessary to do so to resolve the problems noted in the remanding appeal. In Dobler v. Malloy, 214 N.W.2d 510 (N.D.1973), we cited Kern v. Kelner, 75 N.D. 703, 32 N.W.2d 169 (1948), for the proposition that the district court upon remand has a duty to examine the opinion of the Supreme Court and to determine from it what further proceedings may properly be had in the action consistent with the decision of the Supreme Court. Dobler, supra, 214 N.W.2d at 513. In the instant case, the district court did examine our opinion and in compliance therewith permitted Minnkota to apply for a valid hearing with the PSC. Minnkota did so and the notice requirements were met. The court was not required to have a new trial of issues which had already been litigated before it.

We quote with approval the following language used by the Michigan Court of Appeals in Taines v. Munson, 42 Mich.App. 256, 201 N.W.2d 685, 687-688 (1972):

"While it is true that in the prior case, defendants did argue that the individual plaintiffs were not real parties in interest, and while it is true that this Court made no comment on that argument, we do not agree that this constitutes res judicata. While we can find no Michigan cases directly on point, we believe the better rule was announced by the Sixth Circuit in D'Arcy v. Jackson Cushion Spring Co., 212 F. 889, 891-892 (C.A.6, 1914):

" '(E)very question properly involved upon the appeal, which is determined by the appellate court and constitutes, in part at least, the basis for its conclusion upon the ultimate question presented, becomes a part of the law of the case controlling the lower court in its subsequent proceedings.'

The necessary corollary of this rule is that a question which was not determined by the appellate court, or does not constitute the basis for its conclusion upon the ultimate question presented, is not a part of the law of the case, and does not control the lower court in its subsequent proceedings. To straitjacket proceedings subsequent to a decision on a case by an appellate court by making assumptions regarding the disposition of arguments which the appellate court did not see fit to consider, is not, in our opinion, the wisest of policies."

For the effect of an opinion which orders "judgment reversed" and nothing more, see Tucson Gas & Electric Company v. Superior Court, 9 Ariz.App. 210, 450 P.2d 722 (1969); Hunter v. Hunter, 156 Ind.App. 187, 295 N.E.2d 834 (1973).

Nothing in our previous opinion indicates that the trial court's decision on the merits was in error. Therefore, it was not inconsistent with that prior opinion for the trial court to "reinstate" its judgment as to the merits. The instant case is again before this court because we granted a motion to expedite the appeal. At oral argument both sides indicated their desire that this court decide this case on its merits.

Upon remand, the Landowners received actual notice of the April 9, 1980, PSC hearing by certified mail. In addition, the PSC complied with the statutory notice requirements of § 49-22-13, N.D.C.C. Because the Landowners received actual notice of the PSC hearing, they do not have standing to challenge the constitutionality of the notice provisions of § 49-22-13, N.D.C.C. See State v. Gamble Skogmo, Inc., 144 N.W.2d 749, 769 (N.D.1966) ("a litigant may assert only his own constitutional rights or immunities").

The Landowners filed a counterclaim for damages, which claim was severed by the district court pursuant to Rule 42(b) of the North Dakota Rules of Civil Procedure. The question of damages, therefore, has not been made a part of...