City of San Antonio v. San Antonio Independent School District , 1984 Tex. App. LEXIS 6952 ( 1984 )

CANTU, Justice,

dissenting.

Today a majority¹ of this court bows to the dogged reluctance of the appellant City’s refusal to accept appellate finality and we are treated to the application of a new twist to the doctrine of the law of the case. That doctrine as applied today transforms the prior result into the law of that case and the result in this appeal, the majority pronounces, becomes the law of this case.

I think judicial honesty would be best served if both simply disagreed and registered their disagreement with the holding of the Eastland Court of Appeals instead of fantasizing that our brethren in Eastland were incapable of recognizing issues being presented, not once but twice. The import of both opinions is that the decision of the Eastland Court was based upon an erroneous or incomplete application of the law necessary to a plenary disposition of the matter before it. If the majority believes the prior opinion to be erroneous² it should exhibit the honesty and candor one can at least attribute to the City’s posture in the instant appeal.³

Justice Dial, after alluding to the doctrine, makes the following statement: “Since the court neither expressly or by necessary implication determined the meaning of § 48’s ‘payments in lieu of taxes,’ we hold that the Eastland decision is inapplicable to that issue now before this court.” ⁴ Such a statement can only mean that the Eastland Court was not authorized to arrive at a final decision on the merits without addressing every contention raised by the parties. This court, as does every appellate court, often disposes of points deemed unnecessary to a final determination by simply not addressing them. A disposition sub silentio does not mean that the court has not given the contentions raised due consideration. To the contrary, addressing unnecessary contentions rarely adds to the jurisprudence of this state regardless of the parties’ desire for an advisory opinion.

To conclude that the Eastland Court, and the Texas Supreme Court as well, did not expressly or by necessary implication address the contention now once again urged is hogwash. The Supreme Court’s action on the application for writ of error and subsequent motion for rehearing can hardly be classified as a failure to consider the contentions urged simply because the court refused to write on the matter. In my opinion the contentions reurged were just as conclusively overruled by both courts’ refusal to address them. See Goodman v. Olsen, 365 So.2d 393, 396 (Fla.App.1979) [... when a point which was not discussed in an appellate opinion is necessarily determined by the opinion, the doctrine of law of the case is applicable].

The doctrine has often been addressed by Texas courts and defined as that principle which states that questions of law decided on appeal to a court of ultimate last resort will govern the case throughout all of its subsequent stages, including a retrial and a subsequent appeal. Barrows v. Ezer, 624 S.W.2d 613 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ); Kropp v. Prather, 526 S.W.2d 283 (Tex.Civ.App.—Tyler 1975, writ ref’d n.r.e.); Houston Endowment, Inc. v. City of Houston, 468 S.W.2d 540 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref’d n.r.e.). The doctrine has also been stated to mean that the holdings announced in a former appeal constitute the law of the case; that matters were either presented to or directly passed upon or which were in effect disposed of on a former appeal to a court of civil appeals will not again be passed upon by that court. Allied Finance Co. v. M.T. Shaw, 373 S.W.2d 100 (Tex.Civ.App.—Fort Worth 1963, writ ref’d n.r.e.).

In Roberts v. Armstrong, 231 S.W. 371 (Tex.Comm’n App.1921, holding approved, judgment adopted), the court in quoting from Wells on Res Adjudicata and Stare Decisis, § 6B, stated:

It is a well-settled principle that the question of law decided on appeal to a court of ultimate resort must govern the case in the same court and the trial court, through all subsequent stages of the proceedings, and will seldom be reconsidered or reversed, even if they appear to be erroneous.

The application of this rule, however, contemplates that the facts on the second appeal shall be substantially the same, or rather, perhaps, that they shall not be such as to affect materially the legal questions involved under the first appeal.

It is undisputed that the facts on the second appeal [the instant one] are identical to those in the first appeal. It is further undisputed that the legal questions involved are the very same ones presented in the first appeal. Nor is there any serious contention, other than by the City in its bid to have the same matter once again litigated, that the decision of the Eastland Court is clearly erroneous.⁵ Even the majority is unwilling to agree that clear error exists in the Eastland opinion in view of the notation of no reversible error granted by the Supreme Court.

This very court in Exxon Corp. v. Butler, 585 S.W.2d 881 (Tex.Civ.App.—San Antonio 1979, writ dism’d, 619 S.W.2d 399), speaking through Justice Murray, recognized that the doctrine applies irrespective of whether the decision of the former appeal is right or wrong. See also, Chicago & N.W. Transportation Co. v. United States, 574 F.2d 926 (7th Cir.1978). Thus, even if the majority disagrees with the prior holding and desire to express the opinion that the Eastland Court fell into error, the doctrine mandates that this court refuse to reconsider what has already been decided. This is so not because of a limitation on the power of this court, but because of public policy’s concern with a finality to litigation. Elliott v. Moffett, 165 S.W.2d 911 (Tex.Civ.App.—Texarkana 1942, writ ref’d w.o.m.). Because the Eastland Court is a court of coordinate jurisdiction, comity considerations require this court to refuse to rehear that which has once before been advocated and rejected. People v. Watson, 57 A.D.2d 143, 393 N.Y.S.2d 735, 738 (1977). The doctrine of the law of the case is designed to prevent just such an anomaly as would result from this court telling the trial court that it had erred in obeying the mandate of the Eastland Court. See Chicago & N.W. Transportation Co. v. United States, supra, at 930.

The United States Court of Appeals for the Seventh Circuit in Chicago recognized the long term effects of the problem which the majority now creates. It stated:

The fact that earlier review was by a different court does not alter our conclusion. If anything, that fact makes the case for application of the doctrine even stronger, for principles of comity come into play. If we now held that the commission erred in obeying the mandate of the three-judge court, a third court reviewing the commission’s order following our remand might hold that we in turn were wrong. That result would be prevented only by the same doctrine of law of the case, aided by principles of comity. See Gulf Research & Development Co. v. Schlumberger Well Surveying Corp., 98 F.Supp. 198, 200-201 (D.Del.), petition for mandamus denied sub nom; Gulf Research & Development Co. v. Leaky, 193 F.2d 302 (3rd Cir.1951), affd per curiam by an equally divided court, 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 668 (1952); see generally, Hoffman v. Blaski, 363 U.S. 335, 345, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1969) (Frankfurter, J., dissenting), that should govern us now.

574 F.2d at 930.

The law of the case must control the disposition of this case in the absence of some unusual circumstance or some compelling reason. See Chicago & N. W. Transportation Co. v. United States, supra. None appears of record and the majority can point to none other than to intimate that the Eastland Court did not finish the job or that upon subsequent reflection egregious error cries out from the prior holding.

While this court may reserve to itself the right to disagree with the decision of the Eastland Court as it may be applied to another case, yet it is well settled that a judgment of an appellate court in a ease becomes the law of that particular case, and is not subject to review on a second appeal. Cf., Rail N Ranch Corp. v. State, 441 P.2d 786, 7 Ariz.App. 558 (1968).

I find the following language in Rail N Ranch Corp. v. State, supra, appropriate:

As we view the doctrine of law of the case, a policy objective is to provide for the orderly processing and expeditious resolution of controversy in a particular law suit. This policy would be frustrated if it were to be insisted that only the opposing parties in a particular appeal were to be bound as between themselves by an appellate decision rendered in a case. Multiple appeals in a single suit are not uncommon, and if decisions rendered on appeal were to be binding only as between the opposing parties on appeal, instead of orderly procedure, we would have a procedural maze with many cul-de-sacs.

And, were we to attempt to completely undo what we did [or a court of coordinate jurisdiction did for us]⁶ in the previous proceeding, we would be violating the fundamental principle of res judicata which we are seeking to satisfy, in that we would be holding against the position of parties to the previous appellate proceeding who have not been heard from in this appeal. And in any event, such judicial wheel-spinning would appear to be the very thing this doctrine is designed to avoid.

441 P.2d at 790.

I would affirm the judgment of the trial court insofar as it acts in obedience to the mandate of the Eastland Court and decline to give the City an advisory opinion on matters not properly before this court.⁷ I respectfully register my dissent.

1 . Since the registering of my dissent to the original majority opinion written by Justice Dial, Chief Justice Cadena, now candidly and in a "no holds barred" approach lambastes the holding of the Eastland Court of Appeals in his concurring opinion. Although Justice Dial’s opinion can no longer accurately be referred to as a majority opinion, collectively both opinions do a disservice to the doctrine of the law of the case. Insofar as both opinions refuse to adhere to the doctrine, I will continue to refer to them collectively as “the majority.”

2 . Chief Justice Cadena’s belated attempt to claim error in the Eastland holding, however, falls short of the prerequisite to invoking the exception to the doctrine. The exception applies only where the decision on a former appeal was clearly erroneous. Connecticut General Life Insurance Co. v. Bryson, 148 Tex. 86, 219 S.W.2d 799 (1949); Miller v. Winn, 28 S.W.2d 578 (Tex.Civ.App. — Fort Worth 1930, writ refd). I refuse to ascribe to the observation made by Chief Justice Cadena that the Supreme Court by refusing to grant writ of error with the notation "no reversible error” was incapable of recognizing error of such “egregious nature.” If the error was so egregious it would have been readily identifiable without the need for further reflection. I further question the authority of the majority to decline to adhere to the doctrine when only one justice ascribes to the “erroneous holding” exception.

3 . The City of San Antonio in its Supplemental Motion for Summary Judgment and throughout the appellate history of this case has openly displayed its intentions, viz;

Although the facts in this case are undisputed and are the same for purposes of the court’s decision as when the Eastland decision was rendered the City still asserts the same legal contentions, arguments, and authorities as it has always asserted. This is not because of mere stubborness, but because of two factors about the Eastland decision: (1) The decision was wrong. It did not address the issues raised by the parties’ briefs; it cited law not cited by either party and not relevant to the proper determination of the case; and it recited as ‘undisputed facts’ matters not true and not even in the record. (2) It also failed to decide the City’s alternative point, raised by crosspoint in City appellee’s brief upon which point a decision was necessitated by the decision on the portion of the case which the court determined adversely to the City. Although the omission was called to the East-land Court’s attention on Motion for Rehearing, that court summarily (in one week) denied such motion without comment....

In short, City wishes a relitigation of its principal contentions for the reasons contained above and City especially wants an express judicial determination of its alternative point.... This point has never been expressly determined one way or the other by any court.

4 .Even the City admits that the Eastland opinion impliedly decided the point it now urges on appeal but urges that such decision by implication should not be binding as law of the case inasmuch as the basis for the decision cannot be ascertained from a reading of the opinion.

5 . The City categorizes the Eastland opinion as “bizarre and arcane."

6 . The first appeal was taken to this court but was subsequently transferred to the Eastland Court in November 1980 by virtue of a Supreme Court docket equalization order. The Eastland Court thus delivered an opinion we were originally obligated to deliver.

7 . The City persists in its brief on appeal: "In order for the court to understand why the City is still litigating the case instead of merely bowing to the Eastland decision it is felt that the issues in the first trial and appeal should be outlined because they are not revealed by the Eastland opinion....”