Entergy Corporation, Entergy Services, Inc., Entergy Power, Inc., Entergy Power Marketing Corporation, Entergy Arkansas, Inc., and Entergy Texas, Inc. v. David Jenkins, George W. Strong, Francis N. Gans and Gary M. Gans, Individually and on Behalf of All Persons Similarly Situated ( 2014 )


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  •                                                                                          ACCEPTED
    01-12-00470-CV
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    12/24/2014 2:54:58 PM
    CHRISTOPHER PRINE
    CLERK
    NO. 01-12-00470-CV
    FILED IN
    IN THE COURT OF APPEALS            1st COURT OF APPEALS
    HOUSTON, TEXAS
    FOR THE FIRST DISTRICT OF TEXAS
    12/29/2014 8:00:00 AM
    AT HOUSTON, TEXAS
    CHRISTOPHER A. PRINE
    Clerk
    ENTERGY CORPORATION, et al.,
    Appellants
    v.
    DAVID JENKINS, et al.,
    Appellees
    APPELLEES’ REPLY TO RESPONSE TO
    MOTION FOR EN BANC RECONSIDERATION
    Joseph D. Jamail                          Fred Hagans
    State Bar No. 10536000                    State Bar No. 08685500
    denise@jamail-kolius.com                  fhagans@hagans-law.com
    Frank M. Staggs, Jr.                      Jennifer Rustay
    Jamail & Kolius                           Hagans Burdine Montgomery & Rustay
    500 Dallas, Suite 3434                    3200 Travis, Fourth Floor
    Houston, Texas 77002-4793                 Houston, Texas 77006
    Telephone: (713) 651-3000                 Telephone: (713) 222-2700
    Telecopier: (713) 651-1957                Telecopier: (713) 547-4950
    E.R. Norwood                              John H. Conway
    The Norwood Law Firm                      Brickfield Burchette Ritts & Stone
    340 Main Street                           1025 Thomas Jefferson Street, N.W.
    Liberty, Texas 77575                      Washington, D.C. 20007
    Telephone: (936) 336-3700                 Telephone: (202) 342-0800
    Telecopier: (936) 336-7634                Telecopier: (202) 342-0807
    Michael D. Sydow                         Joe F. Sandlin
    The Sydow Firm                           Box 656
    1980 Post Oak Blvd., Suite 2100          Anahuac, Texas 77514
    Houston, Texas 77056                     Telephone: (409) 267-3793
    Telephone: (713) 622-9700                Telecopier: (409) 267-3792
    Telecopier: (713) 552-1949
    ATTORNEYS FOR APPELLEES
    TABLE OF CONTENTS
    Page
    INDEX OF AUTHORITIES..................................................................................... ii
    SUMMARY OF THE ARGUMENT ........................................................................ 1
    ARGUMENT ............................................................................................................. 1
    I.        A Court Of Appeals Cannot Disregard A Prior Appellate
    Ruling Unless A Recognized Exception To The Law Of The
    Case Doctrine Applies. .......................................................................... 1
    II.       Entergy Misconstrues Entergy Louisiana ............................................. 6
    PRAYER .................................................................................................................. 10
    CERTIFICATE OF COMPLIANCE ....................................................................... 12
    CERTIFICATE OF SERVICE ................................................................................ 12
    -i-
    INDEX OF AUTHORITIES
    Page(s)
    Cases
    Appalachian Power Co. v. Public Serv. Comm’n of West Virginia,
    
    812 F.2d 898
    (4th Cir. 1987) ........................................................................... 9
    Briscoe v. Goodmark Corp.,
    
    102 S.W.3d 714
    (Tex. 2003) ........................................................................... 3
    Caplinger v. Allstate Ins. Co.,
    
    140 S.W.3d 927
    (Tex. App.—Dallas 2004, pet. denied) ................................ 4
    City of Houston v. Harris,
    
    192 S.W.3d 167
    (Tex. App.—Houston [14th Dist.] 2006, no pet.) ............. 2, 3
    Entergy Louisiana, Inc. v. Louisiana Public Service Comm’n,
    
    539 U.S. 39
    (2003)...................................................................................1, 6, 7
    Ford Motor Co. v. Garcia,
    
    363 S.W.3d 573
    (Tex. 2012) ........................................................................... 2
    Gotham Ins. Co. v. Warren E&P, Inc.,
    No. 12-0452, 
    2014 WL 1190049
    (Tex. Mar. 21, 2014) .................................. 4
    Lawrence v. City of Wichita Falls,
    
    122 S.W.3d 322
    (Tex. App.—Fort Worth 2003, pet. denied) ......................... 2
    Nat’l Union Fire Ins. Co. v. Ninth Court of Appeals,
    
    864 S.W.2d 58
    (Tex. 1993) ............................................................................. 2
    -ii-
    SUMMARY OF THE ARGUMENT
    Entergy’s attempts to justify the majority’s decision to revisit the
    jurisdictional issue that it fully litigated and lost on a prior appeal are deeply
    flawed. First, Entergy is wrong to claim that a court of appeals had unbounded
    discretion whether to treat a prior ruling as the law of the case. Second, Entergy
    again misconstrues the scope of FERC’s exclusive jurisdiction by adopting a
    reading of Entergy Louisiana, Inc. v. Louisiana Public Service Comm’n, 
    539 U.S. 39
    (2003) that is divorced from the actual facts and circumstances of that case.
    Neither argument supports the majority’s opinion.
    ARGUMENT
    I.    A Court Of Appeals Cannot Disregard A Prior Appellate Ruling Unless
    A Recognized Exception To The Law Of The Case Doctrine Applies.
    Entergy has no legal basis for trying to relegate the law of the case doctrine
    into a principle that can be ignored on a whim. But Entergy’s motives for diluting
    the doctrine are obvious. Having lost the jurisdictional argument in Jenkins I,
    Entergy’s only escape from being held accountable for theft was to convince this
    Court to reverse Jenkins I, even though both the Texas Supreme Court and United
    States Supreme Court had refused to review it. This Court should correct its
    dilution of the law of the case doctrine.
    First, Entergy mistakes the “discretionary” nature of the law of the case
    doctrine with the notion that the doctrine may be disregarded at will. See Response
    -1-
    at 8-9. There is no such thing as unbridled discretion, whether for law of the case
    or any other discretionary ruling. Indeed, courts routinely scrutinize discretionary
    rulings and reverse them when they are arbitrary, unreasonable, or made without
    regard to guiding legal principles. See Ford Motor Co. v. Garcia, 
    363 S.W.3d 573
    ,
    578 (Tex. 2012); see also Nat’l Union Fire Ins. Co. v. Ninth Court of Appeals, 
    864 S.W.2d 58
    , 59-60 (Tex. 1993) (court of appeals abused its discretion by applying
    an “erroneous legal standard”). And here, the operative legal principles require
    adherence to a prior ruling on the same issue because no recognized exception
    applies.
    Entergy asserts that jurisdictional rulings can always be revisited, but it cites
    no Texas cases holding that questions of jurisdiction are categorically exempt from
    being treated as law of the case. To the contrary, Jenkins pointed out instances
    where courts have not hesitated to give preclusive effect to jurisdictional rulings.
    See, e.g., Lawrence v. City of Wichita Falls, 
    122 S.W.3d 322
    , 326-27 (Tex. App.—
    Fort Worth 2003, pet. denied) (governmental immunity).
    Instead, Entergy cites City of Houston v. Harris, 
    192 S.W.3d 167
    , 171 (Tex.
    App.—Houston [14th Dist.] 2006, no pet.), which dealt with a very different
    situation. The Harris court considered jurisdiction on the basis of the facts after an
    earlier appeal had looked at jurisdiction solely from the sufficiency of the
    pleadings.   The Harris case did not reverse the earlier holding, but rather
    -2-
    considered jurisdiction based on factual sufficiency, an issue not before the earlier
    panel. See 
    id. (previous opinion
    “solely addresses a challenge to the sufficiency of
    the pleadings,” whereas second appeal examines sufficiency of proof submitted on
    the jurisdictional issue). No comparable differences exist that could conceivably
    justify revisiting Jenkins I.
    Entergy similarly misleads with its cite to Briscoe v. Goodmark Corp., 
    102 S.W.3d 714
    , 716-17 (Tex. 2003). The Briscoe Court does not suggest that a court
    of appeals has carte blanche to disregard a prior appellate ruling on jurisdiction
    just because it disagreed with the result. As Jenkins explained, Briscoe dealt with
    a unique set of facts where the parties and an incomplete record had misled the
    court of appeals into dismissing the first appeal for lack of appellate jurisdiction.
    Id.; see also 
    id. at 719
    (Jefferson, C.J., concurring). Under those circumstances,
    the Court concluded that revisiting the “clearly erroneous” prior decision was
    appropriate.    Nothing remotely like Briscoe exists in this case because the
    jurisdictional issue was fully and accurately developed in Jenkins I. Tellingly,
    Entergy fails to address these obvious distinctions that make Briscoe inapposite,
    even though Jenkins pointed them out.
    Moreover, Entergy cannot avoid opinions of other Texas courts holding that
    an exception to law of the case for “clearly erroneous” decisions does not apply to
    rulings like Jenkins I that the Texas Supreme Court declined to review. See
    -3-
    Caplinger v. Allstate Ins. Co., 
    140 S.W.3d 927
    , 930 (Tex. App.—Dallas 2004, pet.
    denied). Entergy quibbles with the reasoning in Caplinger, but Entergy cites no
    opinions supporting its view.
    Instead, Entergy overreaches by misstating the holding in Gotham Ins. Co. v.
    Warren E&P, Inc., No. 12-0452, 
    2014 WL 1190049
    , at *3 n.8 (Tex. Mar. 21,
    2014). In Gotham, the Texas Supreme Court noted that the court of appeals had
    declined to treat a prior ruling as law of the case. 
    Id. The Texas
    Supreme Court
    did not address the propriety of that decision, finding that the Court itself was not
    bound to a prior ruling that it previously declined to review. 
    Id. At most,
    Gotham
    stands for the principle that the Texas Supreme Court can choose to review an
    issue that it decided to forgo on an earlier appeal. Gotham does not endorse
    Entergy’s notion that this Court may bypass the appellate process by reviewing a
    decision of another court of appeals with which it disagrees.
    Second, Entergy advances a single-sentence argument that changed
    circumstances provide a basis for avoiding the law of the case doctrine. Without
    record or legal citation, Entergy asserts the procedural posture of the case is
    different because FERC has exercised jurisdiction over Entergy’s purchasing
    practices, and discovery has shown that the damages claimed rests on the ESA.
    Response at 11. That claim, however, is wrong. (1.CR.12-17, 42-44; 16.CR.2350-
    55, 2380-82).
    -4-
    Entergy’s inability to identify any new developments pertinent to
    jurisdiction is telling. Because Entergy’s arguments are purely legal, they are
    identical to those Entergy raised in Jenkins I and are not affected by any facts
    developed in discovery. In Jenkins I, Entergy made the same argument that FERC
    has exclusive jurisdiction over Jenkins’s challenge to Entergy’s wholesale power-
    purchasing decisions. Entergy then made the same argument to the Texas Supreme
    Court and then to the United States Supreme Court, but was unable to convince
    either Court that review was warranted. When the case returned to the trial court,
    Entergy made the same arguments again, and the issue was again briefed by the
    parties. (See 5.CR.516-764; 16.CR.2330-2616). The trial court properly followed
    Jenkins I and rejected Entergy’s attempts to relitigate the issue.1 (17.CR.2653-56;
    18.CR.2764-2825). Indeed, the only difference between this appeal and Jenkins I
    is Jenkins’s additional showing that class certification is appropriate. That is not a
    type of changed circumstance that justifies revising Jenkins I.
    Additionally, FERC has not exercised jurisdiction over the purchasing
    practices at issue in this case, despite the fact that this case has been part of the
    public record since 2003, when the suit was filed, nor has Entergy requested it to
    1
    Entergy tries to dismiss the trial court’s extensive Findings of Fact and
    Conclusions of Law as nothing but Jenkins’s briefing. Response at 2 n.1. In
    reality, both sides submitted proposed Findings and Conclusions and fully briefed
    the issues. The trial court then ruled in Jenkins’s favor by adopting his proposed
    findings.
    -5-
    do so.       Indeed, FERC has specifically declined to examine past purchasing
    practices.     The purchasing practices at issue in this case were the subject of
    litigation, in a class action suit filed in Louisiana. See Delaney v. Entergy La., Inc.,
    4.CR.514, Ex. M (Order Certifying Settlement Class). Yet in Delaney, the case
    was not dismissed based upon a claim of FERC exclusive jurisdiction. Rather than
    claiming that only FERC had jurisdiction, Entergy sought and obtained court
    approval of a settlement, thereby invoking judicial jurisdiction.
    In sum, the only way to sustain the majority’s effective overruling of
    Jenkins I is by creating a new exception to the law of the case doctrine, or by
    relegating the doctrine into a meaningless principle that courts can disregard
    whenever they choose.       Neither approach comports with Texas law or sound
    judicial policy.
    II.   Entergy Misconstrues Entergy Louisiana
    Ignoring the ruling in Jenkins I, Entergy tries to expand the scope of FERC’s
    exclusive jurisdiction by misinterpreting the decision in Entergy Louisiana, Inc. v.
    Louisiana Public Service Comm’n, 
    539 U.S. 39
    (2003). Unlike this suit, which
    challenges Entergy’s wholesale purchasing decisions, Entergy Louisiana dealt with
    cost allocations among the members of the Entergy System Agreement. The
    holding hinged on facts and provisions of the System Agreement materially
    different from this case.
    -6-
    The dispute in Entergy Louisiana started in 1993, when FERC initiated a
    proceeding to determine whether Entergy had violated the System Agreement by
    classifying certain “mothballed” units as “available” for cost equalization. 
    Id. at 44.
    FERC determined that Entergy had, in fact, violated the System Agreement.
    
    Id. However, FERC
    then approved an amendment to the System Agreement that
    explicitly establishes when a “mothballed” unit can be considered available. 
    Id. at 44-45.
    Section 10.02 was amended, to read as follows:
    A unit is considered available to the extent the capability can be
    demonstrated and (1) is under the control of the System Operator, or (2) is
    down for maintenance or nuclear refueling, or (3) is in extended reserve
    shutdown (ERS) with the intent of returning the unit to service at a future
    date in order to meet Entergy System requirements. The Operating
    Committee’s decision to consider an ERS unit to be available to meet future
    System requirements shall be evidenced in the minutes of the Operating
    Committee and shall be based on consideration of current and future
    resource needs, the projected length of time the unit would be in ERS status,
    the projected cost of maintaining such unit, and the projected cost of
    returning the unit to service.
    
    Id. at 44
    n.3 (emphasis added). By this language, the Supreme Court recognized
    that the System Agreement now “dictates how and by whom” the classification of
    units “should be made.” 
    Id. at 50.
    As a result, the Louisiana PUC’s later attempt
    to challenge decisions dictated by the tariff were preempted by FERC. 
    Id. Unlike the
    amended portion of the System Agreement at issue in Entergy
    Louisiana, the System Agreement does not “dictate how and by whom” decisions
    will be made about the amounts of wholesale energy to be purchased. Nothing in
    -7-
    the System Agreement, including the items listed in Entergy’s response, dictates
    how Entergy must make its decisions regarding the amounts of wholesale energy it
    purchases.
    Entergy points to sections that generally indicate how the System Capability
    will be operated and/or controlled (MSS-3 Section 30.02, ESA Sections 4.08 and
    6.01). Only one of the sections identified by Entergy even deals with “buying and
    selling” wholesale energy—Section 6.02(d). That section is written in very general
    language: “Services . . . shall: . . . (d) Determine the availability of energy for
    purchase from or sale to outside systems on an economical basis under effective
    contracts and arrange for and schedule such transactions.” This language does not
    require any specific type of decision making, contained within designated minutes
    or documents, nor is there anything that requires Entergy to consider present and
    future needs, or how to evaluate costs between generated energy versus energy
    available for purchase. In particular, there is nothing in the System Agreement that
    requires (or even permits) Entergy to use a false, artificially low hypothetical cost
    of generated energy to avoid purchasing lower cost wholesale energy.
    Interestingly Entergy points to Sections 30.08, 30.09, and 30.10 of the
    System Agreement concerning “after-the-fact” allocations among the various
    Operating Companies, including “specified adders.” None of this, however, is
    included in the purchasing decisions. In fact, the evidence is that Entergy actually
    -8-
    ignores the “specified adders” that must be included in the cost allocations when
    creating a hypothetical cost of generated energy to use in its comparisons with the
    actual cost of available wholesale energy for purchase.      Because the System
    Agreement does not prescribe or dictate the parameters for Entergy’s wholesale
    purchasing decisions, Jenkins’s challenge to those decisions is not preempted by
    FERC.
    Entergy Louisiana is further distinguishable because it did not involve
    purchasing decisions regarding wholesale power.       That is an important—and
    dispositive—distinction. Entergy ignores the fact that FERC has clearly expressed
    that it treats “purchasing decisions” differently, a point that Jenkins I correctly
    noted. Entergy tries to sidestep this hurdle by overstating the holding in cases,
    such as AEP Generating Co., 36 FERC ¶ 61,226 (1986). That case, however, deals
    with cost allocations among integrated system participants, not the purchasing
    decisions at issue in this case. The same is true of Appalachian Power Co. v.
    Public Serv. Comm’n of West Virginia, 
    812 F.2d 898
    , 900, 903 (4th Cir. 1987),
    which dealt with FERC’s exclusive jurisdiction over an agreement authorizing
    cost-allocations among members of system, pursuant to its power to scrutinize
    “rates or charges” for the transmission and sale of energy in commerce. Entergy’s
    purchasing decisions do not trigger FERC’s exclusive jurisdiction, and this Court
    was wrong to hold otherwise.
    -9-
    PRAYER
    For these reasons, Appellees pray for the relief requested in their Motion.
    Appellees also pray for such further relief to which they may be entitled.
    Respectfully submitted,
    JAMAIL & KOLIUS
    /s/ Joseph D. Jamail
    Joseph D. Jamail
    State Bar No. 10536000
    Frank Staggs
    State Bar No. 19003700
    500 Dallas Street, Suite 3434
    Houston, Texas 77002
    Telephone: (713) 651-3000
    Telecopier: (713) 651-1957
    THE NORWOOD LAW FIRM
    E.R. Norwood
    State Bar No. 15113500
    340 Main Street
    Liberty, Texas 77575
    Telephone: (936) 336-3700
    Telecopier: (936) 336-7634
    -10-
    THE SYDOW FIRM
    Michael D. Sydow, Esq.
    State Bar No. 19592000
    1980 Post Oak Blvd., Suite 2100
    Houston, Texas 77056
    Telephone: (713) 622-9700
    Telecopier: (713) 552-1949
    HAGANS BURDINE MONTGOMERY
    & RUSTAY, P.C.
    Fred Hagans
    State Bar No. 08685500
    Jennifer Rustay
    State Bar No. 24002124
    3200 Travis, 4th Floor
    Houston, Texas 77006
    Telephone: (713) 222-2700
    Telecopier: (713) 547-4950
    OF COUNSEL:
    John H. Conway
    Admitted Pro Hac Vice
    Brickfield Burchette Ritts & Stone
    1025 Thomas Jefferson Street, N.W.
    Eighth Floor, West Tower
    Washington, D.C. 20007
    Telephone: (202) 342-0800
    Telecopier: (202) 342-0807
    Joe F. Sandlin
    State Bar No. 17621000
    Box 656
    Anahuac, Texas 77514
    Telephone: (409) 267-3793
    Telecopier: (409) 267-3792
    COUNSEL FOR APPELLEES
    -11-
    CERTIFICATE OF COMPLIANCE
    This motion complies with the length limitations of TEX. R. APP. P. 9.4
    because this motion consists of 2,189 words, excluding the parts of the motion
    exempted by TEX. R. APP. P. 9.4(i)(1).
    /s/ Joseph D. Jamail
    Joseph D. Jamail
    CERTIFICATE OF SERVICE
    I certify that a copy of this motion was served on counsel of record as
    follows via eFile and/or electronic mail and/or Certified Mail–RRR on the 24th
    day of December, 2014.
    Mr. Larry L. Germer                           Mr. Paul A. Scheurich
    Mr. David L. Tolin                            ENTERGY SERVICES, INC.
    Ms. Kelli B. Smith                            350 Pine Street
    GERMER GERTZ, L.L.P.                          P.O. Box 2951
    P.O. Box 4915 (77704)                         Beaumont, Texas 77704
    550 Fannin, Suite 400
    Beaumont, Texas 77701
    Mr. David C. Duggins                          Mr. Richard G. Baker
    Mr. Mark Strain                               BAKER & ZBRANEK, PC
    DUGGINS WREN MANN & ROMERO, LLP               1935 Trinity Street
    P.O. Box 1149                                 Liberty, Texas 77575
    Austin, Texas 78767
    /s/ Joseph D. Jamail
    Joseph D. Jamail
    -12-