FILED

August 31, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE 

FOR PUBLICATION

MEMPHIS PUBLISHING COMPANY, )

) Filed: August 31, 1998

Appellee, )

)

v. ) DAVIDSON CHANCERY

)

TENNESSEE PETROLEUM ) Hon. Irvin H. Kilcrease, Jr.,

UNDERGROUND STORAGE TANK ) Chancellor

BOARD, AND J.W. LUNA AS )

COMMISSIONER OF THE )

TENNESSEE DEPARTMENT OF )

ENVIRONMENT AND )

CONSERVATION, )

)

Appellants. )

)

) No. 01S01-9710-CH-00232

For the Appellant: For the Appellee:

John Knox Walkup S. Russell Headrick

Attorney General & Reporter Stephen P. Hale

Memphis, Tennessee

Michael E. Moore

Solicitor General

Barry Turner

Deputy Attorney General

Nashville, Tennessee

O P I N I O N
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AFFIRMED. DROWOTA, J.
1

The law is codified at Tenn. Code Ann. § 68-215-101 et seq.

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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 TennesseePetroleum 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
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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
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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.
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(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.
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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 ¶ 0.404[1] (2d

ed. 1995); 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal
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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, ¶ 0.404[1]. 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 substantially different from the evidence in the initial

proceeding; (2) the prior ruling was clearly erroneous and would result in a manifest

injustice if allowed to stand; or (3) the prior decision is contrary to a change in the

controlling law which has occurred between the first and second appeal. See

generally 5 Am.Jur.2d Appellate Review §§ 611-613 (1995 & 1998 Supp.); Miller,

supra, ¶ 0.404[1]; Wright, et al., supra, § 4478, at 790; see e.g. Jett, 175 Tenn. at

299, 133 S.W.2d at 999 (“The former opinion of the Court of Appeals was the law

of the case on the second trial, and the evidence being the same, the circuit judge

could not have done otherwise than to submit this issue of sound health to the

jury....); Clingan v. Vulcan Life Ins. Co., 694 S.W.2d 327 (Tenn. App. 1985) (The

initial appeal did not establish the law of the case because the facts in the second

appeal were not substantially the same as the facts in the prior appeal); Arizona v.

California, 460 U.S. 605, 618, n. 8, 103 S.Ct. 1382, 1391, n. 8, 75 L.Ed.2d 318

(1983) (The doctrine does not apply if the court is “convinced that [its prior decision]

is clearly erroneous and would work a manifest injustice.”); Sherley v.

Commonwealth, 889 S.W.2d 794, 798 (Ky. 1994) (The law of the case doctrine does

not apply where there has been an intervening change of controlling authority.)
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Having outlined the parameters of the law of the case doctrine, we must next

consider the defendants’ contention that the doctrine should not apply to issues

implicitly resolved by an intermediate appellate court decision which this Court

declined to review with concurrence in results only.

We have previously stated that, when we deny discretionary review, this Court

is not necessarily committed to all the views expressed in the opinion of the

intermediate appellate court. Meadows v. State, 849 S.W.2d 748, 752 (Tenn. 1993);

Adams v. State, 547 S.W.2d 553, 556 (Tenn. 1977); Street v. Calvert, 541 S.W.2d

576, 587 (Tenn. 1976); Bryan v. Aetna Life Ins. Co., 174 Tenn. 602, 611, 130 S.W.2d

85, 88 (1939). We discussed in Meadows the practical reasons for this rule.

This Court’s use of the denial with concurrence in results only designation has

been founded upon similar considerations. For example, simply because of the

sheer volume of applications for appeal, this Court does not have the ability to grant

review and write an opinion in every case in which it disagrees with some portion of

the intermediate appellate court decision. In addition, the problematic portion of the

intermediate appellate decision is not always raised as an issue by the parties in their

applications for review. Occasionally, the issue is raised, but the record is deficient.

On other occasions, the troubling rationale of the intermediate appellate court relates

to a well-settled area of the law, so there is no need for another decision of this

Court. In all these circumstances our ability to deny review with concurrence in

results only precludes publication of the intermediate appellate court decision,

Pairamore v. Pairamore, 547 S.W.2d 545, 548 (Tenn. 1977); see also Rule 4.4,

Rules of Tenn. Sup. Ct. This designation also alerts the bench and the bar that this
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Court disagrees with some aspect of the intermediate appellate court decision.

Consequently, this designation has been an important tool which has enabled this

Court to efficiently utilize the judicial resources at its disposal and to carefully

supervise the jurisprudence in this State.

However, this Court’s denial of review with concurrence in results only does

not lessen the application of the law of the case doctrine with respect to issues which

were explicitly or implicitly resolved by the intermediate appellate court decision. To

the contrary, generally such a denial reflects this Court’s specific conclusion that the

intermediate appellate court reached the correct result, although we may disagree

with a portion of the underlying rationale. Therefore, an intermediate appellate court

decision constitutes the law of the case with regard to the parties involved in the case

despite this Court’s denial of review by concurrence in results only. Ladd, 939

S.W.2d at 91; Patton v. McHone, 822 S.W.2d 608, 615, n.10 (Tenn. App. 1991). 

CONCLUSION

Applying these principles to the facts in this appeal, we hold that the decision

of the Court of Appeals in the first appeal of this case is controlling as the law of the

case despite this Court’s denial of review with concurrence in results only. There are

no grounds which justify reconsideration of the issue. The evidence offered following

the remand was substantially the same as in the initial proceeding. The prior ruling

was not clearly erroneous, and there has been no change in the controlling law

between the first and second appeal. The effect of the 1990 amendment on MPC’s

right to reimbursement from the Fund was at issue in the initial trial and appellate

proceedings as is evident from the decisions of both the trial court and the Court of
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Appeals. Although implicitly decided, a determination of this issue was necessary

and essential to the decision of the Court of Appeals which reversed the trial court’s

judgment. This Court’s denial of review with concurrence in results only does not

abrogate the law of the case effect of that decision.

Consequently, we affirm the decision of the Court of Appeals which upheld the

Chancellor’s finding that the law of the case, as established by the initial 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.” This cause is remanded to

the Chancery Court with instructions that the matter be remanded to the Tennessee

Petroleum Underground Storage Tank Board for a determination of the

reasonableness and necessity of the remediation expenses claimed by Memphis

Publishing Company. 

____________________________________

FRANK F. DROWOTA, III,

JUSTICE

Concur:

Anderson, C.J.

Birch, Holder, Barker, JJ.