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No. 03-02-00249-CV, 7/11/2003. Civil Litigation Click here for the full text of this decision FACTS:The appellant, Entergy Gulf States Inc., appeals from a district court judgment affirming a final order of the appellee, the Public Utility Commission of Texas. Entergy sought a rate increase to recover additional sums from its share in the construction of the River Bend Nuclear Generating Station in St. Francisville, La. The commission denied Entergy’s request, finding that Entergy failed to present a prima facie case that the additional cost of the plant’s construction above the adjusted definitive cost estimate (DCE) was prudent. The appellees (Texas Industrial Energy Consumers and the cities of Beaumont, Bridge City, Conroe, Groves, Nederland and Port Neches) support the commission’s decision denying the rate increase. HOLDINGAffirmed. Entergy argues that the commission disregarded the Supreme Court’s opinion in Gulf States Utils. Co. v. Public Util. Comm’n, 947 S.W.2d 887 (Tex. 1997), and the law-of-the-case doctrine. Specifically, Entergy contends that “[a]s a matter of law . . . the Supreme Court decided that [Entergy] had presented a significant amount of evidence supporting the prudence of its entire investment, and that a total disallowance was not supported by the record.” The court disagrees because the Texas Supreme Court’s opinion in Gulf States Utilities does not specifically comment on the weight of the evidence for either party. The law-of-the-case doctrine provides that questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages. Hudson v. Wakefield, 711 S.W.2d 628 (Tex. 1986). The doctrine narrows the issues in successive stages of litigation and serves the policy goals of uniformity of decisions and judicial economy. The doctrine does not necessarily apply if the issues and facts are not substantially the same in the subsequent trial. As such, use of the law of the case is flexible, left to the discretion of the court, and to be determined on a case-by-case basis. Med Ctr. Bank v. M.D. Fleetwood, 854 S.W.2d 278 (Tex. App. � Austin 1993, writ denied). The sentence in the Supreme Court’s opinion that Entergy highlights is: “There was extensive evidence supporting inclusion of all [Entergy's] costs in its rate base and extensive contrary evidence that most of these costs should be excluded.” Entergy interprets this language as the Supreme Court’s recognition that Entergy presented sufficient evidence to establish its prima facie case. This sentence comments on the quantity and not the quality of the evidence introduced. First, this sentence appears in the section in which the court delivers its recitation of the facts. There, the court recounts that Docket 7195 included the testimony of “over 100 witnesses for 132 days [and] the examiners issued a 395-page report.” Second, the Supreme Court discussed its earlier opinion, stating that the Commission could not defer decision on disallowance of the $1.453 billion, and that “the issue remaining for judicial review was whether the [commission] could effectively deny inclusion of those costs in [Entergy's] rate base the way it did.” Nowhere did the court discuss whether Entergy had established a prima facie case or met its burden of substantial evidence. Finally, the court reversed and remanded the case, granting the commission the option of accepting additional evidence. Again, the Supreme Court did not comment on the quality of the evidence presented. The court simply ordered the Commission to render a “straightforward decision.” The law-of-the-case doctrine is inapplicable because the supreme court did not comment on the weight of Entergy’s evidence; rather the opinion focused solely on disapproving of the commission’s procedure in deferring consideration of the $1.453 billion in costs. A review of the commission’s Final Order in Docket 17899 indicates that the commission ruled, after reviewing the entire record, that Entergy had not satisfied its burden of proof or established its prima facie case as to the prudence of the additional costs. Therefore, regardless of the commission’s specific language, the court believes that Entergy received a “straightforward decision” that the $1.453 billion would not be included in its rate base. The evidence is such that reasonable minds could have reached the same conclusion as the commission. Because the court affirms the Commission’s decision that any costs above the adjusted DCE were imprudent, a recalculation of the “flow through” costs is unnecessary. OPINION:Yeakel, J.; Kidd, Yeakel and Puryear, JJ.

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