# FILED
August 31, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE SUPREME COURT OF T ENNESSEE

AT NA SHVILLE

FOR PUBLICATION MEMPHIS PUBLISHI NG 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 & Repor ter Stephen P. Hale

Memphis, Tennessee Michael E. Moore Solicitor General Barry Turner Deputy Attorney General Nashville, Tennessee



## O P I N I O N-2-

AFFIRMED. DROWOTA, J.1 The law is codi fied at Tenn. Code Ann. § 68-215-101 et seq. -3- The issue in th is appea l is wh ether the law of the case doctrine applies on remand to issues implicitly decided by an intermediate ap pellate court i f 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 d octrine applies to all i ssues 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 longstandingrule. Accordingly, we affirm the judgment of the Chanc ellor and the Court of Appeals.

BACKGROUND This case is on appeal for the second time. The first appeal arose when the plainti ff, Memphis Publishing Company, (hereinafter MPC), was d eni ed reimbursement

for remediation expenses incurred as a result of an August 1987 release from its underground storage t ank. The Underground Storage Tank Fund from which MPC sought reimburse ment wa s created by the Tennessee Petr oleum Underground Storage Tank Act of 1988. 1 The Act became effective on July 1, 1988. It is administered by the de fendants, the Tenne ssee Pet roleum Undergrou nd Storage TankBo a rd and J.W. Luna, as Commissioner of the Tennessee Depar tment of Environment and Conserv ation.

Th ough MPC discovered and r eported the release from its unde rgroun d storage tank prior to July 1, 1988, the majority of its a ssessm ent and remediation efforts occurred after that date. MPC filed its application for reimbur sement with the-4-

Board on Septem ber 1990. After a contested case heari ng, the Board denied the application by a final decision and or der. The Board s tated that MPC was not eligible for reimbursement from the Fund because the release had occurred prior to July1, 1988, the effective date of the Act whic h created the Fund. The Board’s finding was based upon an April 1990 amendment to the original Act which stated: “[i]tis the intent of the

general assembly that this chapter shall not apply retroactively to releases or other event s that occurred prior

to July 1, 1998.” Tenn. Code Ann. § 68-215-102(c) (1996 Repl.).

MPC sought judicial rev iew requesting th at th e Chanc ery Court declare the 1990 amendment unconstitutional retrospec tive legislation. The Chancellor affirmed the decision of the Board stati ng:

[MPC] submits that it had a vested right to

claim reimbursement from the fund establ ished by th e UST A ct, and that the 1990 amendment impa irs this right. The pr ovisions of the Act establi shing the U S T Fund create new substantiv e rights, and cannot be retroact ively

applied. [citation omitted.] The provision added by th e 1990 amendment simply confirmed and ratified the original i ntent of the General Assembly t hat the US T Act is no t to be given retrospe ctive application. It is undisputed that MPC discovered an d reported therelease from its underground storag e tank in August of 1987. The Department has consistently followed its policy of using the date of the discovery of the release as theapplicable dateunder the UST Act. MPC’s actions took place well before the effectiv e d ate of the UST Act on July 1, 1988. This Court concludes that M PC never had a vested r ightto claim reimbursement

from the fund because the Act does n ot ap ply to releases, like M PC’s th at occur red pri or to the

July 1 , 1988 effectiv e 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 i ntended to provide-5-

reimbursement

from the Fund for“all releases regar dless of date.” Specifically, the Court of Appeals stated as follows:

MPC presents the fol lowin g issue for our considera tion: ‘Whether the trial court err ed in h olding that MPC had no ri ght to reimbursement

from the Fund u nder the Ori ginal Act, ’ which became effective 1 July 1988.... * * * * We find nothing in the sweeping nature of the perceived problems

addressed by the Original Act, the descr iption o f the compreh ensive regulatory mechanism, nor the description of the broad purpose s of the Fund, to suggest or i mply any date limitati on on the ‘releases’ covered und er the Original Act. * * * * Both the Board and the Chancellor, in determining that MPC was not entitled to recover, r elied on the 1990 Amendment which set forth the general assembly’s ‘intent’ to restrict recoveryto releases or other events which occurr

ed after 1 July 1988. While a later general assembly ’s understanding of

what an Act intended is not bi ndi ng, it is en titled to deferen ce. Legisl ative interpretation of a prior statu te is entitled to respectful consideration, but is not controlling on the courts. Followingthe fundamental rule of statutory construction, this court must ascertain and give effect to the intentio n or purpose of the legislature as expr

essed in the statute. We are of the opinion that the legi slature i nte nded to cover all releases without regard to the date on which they may have occurred. * * * * The Or iginal Act was intended to cov er, from a Fund reimbursement

p erspective, all releases regardless of date. . . . This issue is sustained. Because of our holding regarding this iss ue , we pretermit all other issues raised by MPC. The judgmentof the trial court in affirming the decision of the Board andCommissioner is rev ersed and the cause remanded to the trial court for further, necessary proceedings.-6-

(Internal citations omitt ed.)
Thereafter, the defendants filed an application for pe rmission to appeal from the judgment of the Court of Appeals. This Court denied the applic ation, concurring in results only. The mandate i ssued, and the case returned to the trial cour t for further proceedings.

In the trial court, the defendants a gain contended that MPC had n o righ t to reimbursement

from the Fund becaus e of the 1990 amendment to the Act. In contrast, MPC asserted that the Court of Appeals opinion established the law of the
ca se on remand. The Chancellor agreed, stating “[t]he decision of the Co urt o f 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 re sult s only’ does not change thi s fact.”

The defendants appealed, arguing that when this Court denies permission t o appeal with concurrence in results only, the la w of the case doctrine appli es on remand only toissues which were explicitly addressed by the intermedi ate appellate court decision. The Court of Appeal s r ejected this argument and affirmed the Chancellor ’s decisi on. Thereafter, we granted per mission to appeal to consider whether this Court’s denial of an application for permission to appeal with
concurrence in results onlyprecludes application of the l aw ofthe case doctrine on remand to issues implicitly resolved by the

intermediate appellate court decision. For the reasons that follow, we affirm the judgment of th e Court of Appeals.-7- LAW OF THE CASE DOCTRINE The phrase “law

of the case” refers to a legal doctrine which gener ally 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 decisi on on an issueof 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 c onstitutional mandate nor a limitation on the power of a court. 5 Am. Jur.2d Appe llate 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 recog nition th at issues previously litigated and decided by

a court of competent jurisdicti on 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, av oids indefinite relitig ation of the same issue , fost ers consistent results in the same litigation, and assure s the obedience of lower cour ts to the decisions of appellate courts

. Ladd , 939 S.W.2d at 90; 5 Am.Jur.2d Appellate Review § 6 05(1 99 5) ; 1 B J am es W. Moore, Moore’s Federal Practice ¶ 0.404[1] (2d ed. 19 95 ); 18

Ch ar le s A . Wrig ht, Arthur R. Miller & Edward H. Cooper, Federal-8-

Practice and Procedure § 4478, at 790 (1981).
Therefore, when an initial appeal r esults in a remand to the tri al court, the decision of the appellate court establishes the law of the case which generally must be followed upon remand by the tria l court, and by an appellate c ourt if a second appeal is taken fro m the ju dgment of the trial court entered after remand . Miller, supra , ¶ 0.404[1]. There are limited ci rcumstances which may justify reconsiderati on of an issue which was issue decided in a prior appeal: (1) the evidence offered at a trial or hearing after remand w as 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 pr ior decision is contrary to a change i n the controllinglaw which h as occurred between the fir st and second appeal. See generally5 Am.Jur.2d Appellate Review §§ 611 -61 3 (1995 & 1998 Supp.); Miller, supra , ¶ 0.404[1]; Wright, et al., supra, § 4478, a t 790; see e.g. Jett , 17 5 Te nn. at 299, 133 S.W.2d at 999 (“The former opinion of the Cou rt of A ppeals was the law of th e case on the second trial, and the evidence being the sa me, the circuit judg e could not have done otherwise than to submit this issue of sound health to the jury....); Clingan v. Vulcan Life In s. Co. , 694 S.W.2d 327 (Tenn. App. 1985) (The initial appeal did not esta blish the law of the case because the facts in the second appea l w ere not substantially the same as the facts in the prior appeal); Arizona v. Cal ifornia , 4 60 U.S. 605, 618, n. 8, 103 S.Ct. 13 82, 1391, n. 8, 75 L.Ed.2d 318 (1983) (The doctrine does not apply if the court is “convi nced that [its prior deci sion] is clearly erroneous and would wo rk a manifest injustice.”) ; Sherley v. Commonwealth , 889 S.W.2d 794, 798 (Ky. 1994) (Thelaw of the case doctrine doe s not apply where there has been an intervening c hange of controlling author ity.)-9- Having outlined theparameters of the law of the case d octrine, we must ne xt consider the defendants’ contenti on that the doctrine should not app ly to issues implicitlyresolved by an intermediate appellate court decision which this Court declined to review with concurre nce in res ults only.

We have previously

stated that, when we deny discretionary review, this Court is not necessarily committ ed to all theviews expressed in the opinion of the intermediate appellate court. Meadows v. State , 849 S.W.2d 748, 752 (Te nn. 1993); Adams v. State , 547 S.W.2d 553, 556 (Tenn. 1977); Streetv. Calvert , 541 S.W.2d 576, 587 (Tenn. 1976); Bryan v. Aetna Life Ins. C o. , 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 desi gnation has been founded upon similar considerations. For e xample, simply because o f the sheer volume of applications for appeal, this Court does not have the ability to grant review and writean opinion i n every c ase in whi ch it disag rees with some portion of the intermediateappellate court decision.In addition, the problematic portion of the intermediate appellate decision is not always raised as

an issue by the parties in their applicationsfor review. Occas ionally, the issue is raised, but the

record is deficient. On other occasions, the troubl ing rationale of the intermediate appellate cour t relates to a well-settled area of the law, so there is no need for another d ecision of thi s Court. In all the se circum stances our abilit y to deny revi e w with concurrence in resultsonly precludes public ation of the intermediate ap pel late court decision, Pairamore v. Pairamore , 547 S.W.2d 545, 548 (Te nn. 1977); see also Rule 4.4, Rules of Tenn. Sup. Ct. This designation also aler ts the bench and the bar that this-10-

Court disagrees

with s ome aspect of the intermediate appellat e court decision. Conseque ntly, this designation has been an important tool which has enabled this Court to efficiently utilize the judicial r esourc es at its disposal and to carefully supervise the jurisp rudence in this State.

However, this Court’s denial of revi ew with concurrenc e in results only does not lessen the application of the law of the case doctrine with respect to issues which
were explicitly or implicitly resolv ed by the intermed iate appella te court decision. To the contrary, generall

y such a denial reflects this Court’s specific c onclusion that the intermediate appellate court reached the correct re sult, alt hough we may disagr ee with a portion of

the underlying rati onale. Therefore, an intermediate appel late court decision constitutes the law of the c ase with regard to the partiesinvolved in the case despite this Court’s denial of re view by concurr

ence in results only. Ladd , 9 39 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 control ling as the law of the
case despite this Court’s deni al of review with concurrence in results only. There are
no grounds which justify reconsiderationof the issue. The evidence offered following the remand was substantially the same as in th e initial proceed ing. The prior ruling
was not clearlyerroneo us, and there has been no change i n the controlling law between the first and second appeal. The effect of the 1990 amendment on MPC’s right t o reimbursement from the Fund was at issue in the initial

trial and appellate proceedings as is evident from the decisi ons of both the trial court and the C ourt of-11-

Appeals. Althoug h impli citly decided , a deter

minatio n of t hi s issue was necessary and essential to the decision of the Court of Appeals which reversed th e trial court’s judgment. This Court’s denial of rev iew with concurr

ence in results only do es not abrogate the law of the case effect of that decision.
Conseque ntly, we affirm the decision of the Court of Appeals which upheld the Chancellor’s finding that the law of the c ase, as established by

the initial decision of the Court of Appe als, “mak es it clear that the petiti oner’s release is to be c overed regardless of the date on which the releas e occurred.” This cau se is remand ed to the Chancery Court with instructions that the matter be remandedto the Tennessee Petroleum Undergrou nd Storage Ta n k Board for a determination of the reasonable ness and necessity of the remediation expenses claimed by Memphis Publishing Company.

____________________________________ FRANK F. DROWOTA, III, JUSTICE
Concur: Anderson, C.J. Birch, Holder, Barker, JJ.