Newman Signs, Inc. v. Hjelle, 9394-B

• Decision Date: 25 March 1982
• Docket Number: No. 9394-B,9394-B
• Citation: 317 N.W.2d 810
• Parties: NEWMAN SIGNS, INC., a North Dakota Corporation, Plaintiff and Appellant, v. Walter HJELLE, as North Dakota State Highway Commissioner, and the North Dakota Highway Corridor Board, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 810

317 N.W.2d 810

NEWMAN SIGNS, INC., a North Dakota Corporation, Plaintiff and Appellant, v. Walter HJELLE, as North Dakota State Highway Commissioner and the North Dakota Highway Corridor Board Defendants and Appellees.

Civ. No. 9394-B.

Supreme Court of North Dakota.

March 25, 1982.

Edmund G. Vinje, II, Fargo, for plaintiff and appellant.

Albert A. Wolf, Sp. Asst. Atty. Gen., Bismarck, for defendants and appellees.

PAULSON, Justice.

Newman Signs, Inc., appeals from the judgment entered by the District Court of Cass County on September 30, 1980, and from the court's order dated January 20, 1981, denying a motion to amend the findings of fact and the judgment. We affirm.

This is the second time this case has reached this Court. The facts have been set out at length in our prior opinion. Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741 (N.D.1978), appeal dismissed, 440 U.S. 901, 99 S.Ct. 1205, 59 L.Ed.2d 449 (1979). In 1974, Newman Signs brought this action against Hjelle, as North Dakota State Highway Commissioner, requesting compensation for outdoor advertising signs owned by Newman Signs which were to be removed pursuant to the Federal Highway Beautification Act of 1965, 23 U.S.C. Sec. 131, and the North Dakota Highway Beautification Act, Chapter 24-17, North Dakota Century Code. The first five counts of the action raised issues regarding the compensability of certain categories of signs, and the sixth count was an action for damages. The damage count was severed, and the first five counts were tried without a jury to the District Court of Cass County in August, 1976. The court's judgment of December 10, 1976, was appealed to this Court, challenging the district court's interpretation of the Federal and State acts and the constitutionality of the North Dakota Highway Beautification Act. In Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741 (N.D.1978), we held that the State act was constitutional and that the Federal and State laws had been interpreted correctly. We remanded to the district court, however, for determination of two issues which the district court had failed to address: compensation for expanded, reconstructed, or substantially altered signs, and compensation for signs erected without a permit on property on which the State Highway Department held advertising rights.

Newman Signs appealed from our 1978 decision to the United States Supreme Court, which dismissed the appeal for want of a substantial federal question on February 21, 1979. Newman Signs, Inc. v. Hjelle, 440 U.S. 901, 99 S.Ct. 1205, 59 L.Ed.2d 449 (1979).

On remand, the district court issued findings of fact and conclusions of law on the issues remanded by this Court. The district court held that signs lawfully erected under State law prior to January 1, 1968, which were expanded or substantially altered would be compensated only as to the value of the sign prior to the expansion or alteration; signs abandoned or reconstructed after abandonment would not be entitled to compensation; signs erected without permits upon property on which the advertising rights had been purchased by the Highway Department would not be entitled to compensation; and signs erected pursuant to interim permits which specifically provided that the sign owner waived any right to compensation were not compensable, notwithstanding a subsequent amendment in Federal law which Newman Signs claimed required compensation for such signs.

Newman Signs has appealed from the district court's judgment and from the court's order denying a motion to amend the findings of fact and judgment. The following issues are presented on appeal:

1. Is compensation required for signs erected after December 1, 1965, pursuant to interim policies requiring permits containing provisions for removal without compensation?

2. Did the district court err as a matter of law in determining that signs which were expanded or substantially altered were to be compensated only as to the value of the signs prior to expansion or alteration?

3. Did the district court err as a matter of law in determining that signs which were destroyed by the elements or vandalism and not reconstructed within one year, or which contained no advertising copy for one year, would be deemed abandoned and non-compensable?

I.

Newman Signs first contends that it is entitled to compensation for removal of signs which were erected pursuant to interim permits. The interim permits contained the following language:

"UNDER NO CIRCUMSTANCES WILL THE PERMITTEE BE PAID JUST COMPENSATION FOR THE REMOVAL, CHANGING, ALTERING OR MODIFICATION OF ANY SIGN, DEVICE OR DISPLAY ERECTED BY VIRTUE OF THIS PERMIT AND THE PERMITTEE EXPRESSLY WAIVERS [sic] HIS RIGHTS, IF ANY, TO SUCH REDRESS."

This precise issue was resolved in our prior decision in this case. We held that signs erected under interim permits which contained the above waiver of compensation were not lawfully erected under State law for the purpose of compensation. Compensation for their removal was therefore not required.

In reaching this conclusion, we considered the provision in the Federal Highway Beautification Act requiring just compensation for removal of signs lawfully erected under State law, 23 U.S.C. Sec. 131(g). At the time of our decision in the prior appeal of this case, that subsection provided in part as follows:

"(g) Just compensation shall be paid upon the removal of an outdoor advertising sign, display, or device lawfully erected under State law."

Subsection (g) was amended in 1978, and now provides in part as follows:

"(g) Just compensation shall be paid upon the removal of any outdoor advertising sign, display, or device lawfully erected under State law and not permitted under subsection (c) of this section, whether or not removed pursuant to or because of this section."

In addition, Newman Signs draws our attention to the recently enacted ¹ Department of Transportation and Related Agencies Appropriation Act of 1982, Pub.L.No.97-102, 95 Stat. 1442. The relevant portion of that enactment provides:

"HIGHWAY BEAUTIFICATION

For necessary expenses in carrying out section 131 of title 23, U.S.C. and section 104(a)(11) of the Surface Transportation Assistance Act of 1978, $2,000,000 to remain available until expended: Provided, That, notwithstanding any other provision of law, any determination as to whether any outdoor advertising sign, display, or device is or has been lawfully erected under State law or is entitled to compensation shall not be affected by any waiver of compensation."

Pub.L.No.97-102, 95 Stat. 1447.

Newman Signs contends that the 1978 amendment to 23 U.S.C. Sec. 131(g) and the enactment of the 1982 Appropriation Act require that this Court overrule its earlier decision on this issue. On remand, the district court held that the 1978 amendment had "no application to the issues" before the court. The 1982 Appropriation Act was enacted after the district court rendered its decision; therefore, its applicability was not addressed by the district court.

We agree with the district court that the 1978 amendment to 23 U.S.C. Sec. 131(g) has no application to this case, and we further conclude that the 1982 Appropriation Act is also inapplicable. When we resolved this issue in our prior opinion in this case, holding that the interim permit signs were not lawfully erected under State law and were therefore not compensable, that result became the law of the case, and the issue is not open for reconsideration on this appeal.

This Court has on many occasions addressed the doctrine of "law of the case". For example, in Mulhauser v. Becker, 74 N.D. 103, 121, 20 N.W.2d 353, 362 (1945), the Court stated:

"The doctrine of 'law of the case' is based upon the theory of res adjudicata and necessarily applies to the issue determined. Certainty and orderliness require some such doctrine. As said in Wittmayer et al. v. Security State Bank et al., 57 N.D. 934, 224 N.W. 303: 'Questions fairly raised and decided on a former appeal in the same action are not open for consideration on a subsequent appeal; they become the law of the case, and are binding upon the parties in all subsequent stages of the litigation.'

In Jacobson v. Mutual Benefit Health & Acc. Ass'n, 70 N.D. 566, 570, 296 N.W. 545, 549, we say: 'The decision on the former appeal became, and is, the law of the case and the questions then determined are not subject to review on this appeal.' "

On several other occasions, this Court has concluded that the decision in a prior appeal is the law of the case, and the issues raised are res judicata as between the parties in each particular case. See, e.g., Gajewski v. Bratcher, 307 N.W.2d 826, 831 (N.D.1981); Jennings v. Shipp, 148 N.W.2d 330, 331 (N.D.1966); Chicago, Milwaukee, St. Paul and Pacific Railroad Co. v. Johnston's Fuel Liners, Inc., 130 N.W.2d 154, 165 (N.D.1964); Desautel v. North Dakota Workmen's Compensation Bureau, 75 N.D. 405, 414, 28 N.W.2d 378, 384 (1947); Pearce v. North Dakota Workmen's Compensation Bureau, 68 N.D. 318, 325, 279 N.W. 601, 603 (1938); Schmidt v. Beiseker, 19 N.D. 35, 36-37, 120 N.W. 1096 (1909).

The basis for the "law of the case" doctrine was noted by the United States Supreme Court in Roberts v. Cooper, 61 U.S. (20 How.) 467, 481, 15 L.Ed. 969, 973-974 (1858):

"But we cannot be compelled on a second writ of error in the same case to review our own decision on the first. It has been settled by the decisions of this court, that after a case has been brought here and decided, and a mandate issued to the court below, if a second writ of error issued out, it brings up for revision nothing but the proceedings subsequent to the mandate. None of the questions which were before the court on the first writ of error can be reheard or examined upon the second. To allow a second writ of error or appeal to a court of last resort on the same questions which were open to dispute on the first, would lead to endless...