author: Donald L. Corbin, Justice.

text:
    Rafael CAMARGO v. STATE of Arkansas
    CR 98-772
    987 S.W.2d 680
    Supreme Court of Arkansas
    Opinion delivered March 25, 1999

      Robert C. Marquette, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Rafael Camargo appeals the judgment of the Crawford County Circuit Court sentencing him to death for the murders of Deanna Petree and her fifteen-month-old son, Jonathan Macias. This is the second appeal of this matter; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(7). See Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997) (Camargo I). In the first appeal, this court affirmed Appellant’s capital-murder convictions, but reversed his death sentence and remanded the case for resentencing. On remand, Appellant was again sentenced to death. Appellant raises two points for reversal of the sentence. We find no error and affirm the judgment.

The pertinent facts were set out in Camargo I:

Appellant Rafael Camargo was convicted of two counts of capital murder and sentenced to death. On October 31, 1994, he killed his former girlfriend, Deanna Petree, and her fifteen-month-old son, Jonathan. The crimes took place in the home Deanna and Jonathan shared with her mother and three brothers. Her mother and two of the brothers testified that they saw appellant shoot Deanna. Robert, the oldest brother, testified that appellant also pointed the shotgun at him and pulled the trigger; but the gun failed to fire. All the survivors took refuge outside the house and heard additional shots being fired. They saw appellant flee from the house before the police arrived. When the police arrived, they found Deanna and Jonathan shot to death in the house.

327 Ark. at 634-35, 940 S.W.2d at 466. This court reversed Appellant’s death sentence due to the jury’s failure to unanimously return written findings that: (1) one or more aggravating circumstances existed beyond a reasonable doubt; (2) the aggravating circumstances outweighed beyond a reasonable doubt all mitigating circumstances found to exist; and (3) the aggravating circumstances justified a sentence of death beyond a reasonable doubt. See Ark. Code Ann. § 5-4-603(a) (Repl. 1997).

During the resentencing trial, the State presented evidence and exhibits that were nearly identical to those presented in the first trial. The jury unanimously found that two aggravating circumstances existed beyond a reasonable doubt: (1) Appellant previously committed another felony, an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person, and (2) in the commission of capital murder, Appellant knowingly created a great risk of death to a person other than the victims. The jury also unanimously found the mitigating circumstance that Appellant adjusts well to confinement; no other mitigating circumstances were found by any of the jurors. For reversal of the current death sentence, Appellant raises issues concerning the constitutionality of section 5-4-603(a) and the trial court’s refusal to specifically instruct the jury on the mitigating factor of Appellant’s mental retardation.

I. Constitutionality of Section 5-4-603(a)

For his first point for reversal, Appellant argues that section 5-4-603(a) is unconstitutional because it mandates the imposition of the death penalty and does not allow the jury to show mercy for the defendant. This court has addressed this same argument on numerous occasions, and we have repeatedly upheld the constitutionality of section 5-4-603(a), which provides:

(a) The jury shall impose a sentence of death if it unanimously returns written findings that:
(1) Aggravating circumstances exist beyond a reasonable doubt; and
(2) Aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist; and
(3) Aggravating circumstances justify a sentence of death beyond a reasonable doubt. [Emphasis added.]

Appellant’s argument focuses on the word “shall” in support of his argument that if the jury makes those three findings, it has no choice but to impose the death penalty. We disagree.

Section 5-4-603(a) does provide that the jury “shall” impose the death penalty, but only if the jury makes the foregoing three written findings. Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998). The jury may show mercy to the defendant “simply by finding that the aggravating circumstances, even though they exist and ‘outweigh’ the mitigating circumstances, do not ‘justify’ imposition of the death sentence.” Id. at 33, 977 S.W.2d at 207-08. See also Echols v. State, 326 Ark. 917, 936 S.W.2d 509, cert. denied, 117 S. Ct. 1853 (1997) (holding that section 5-4-603(a) merely provides specified criteria that must be fully satisfied before the death penalty can be imposed; it does not contain a binding instruction nor require a mandatory death sentence); Nooner v. State, 322 Ark. 87, 107, 907 S.W.2d 677, 687 (1995), cert. denied, 116 S. Ct. 1436 (1996) (holding that “[w]e have underscored that our statute provides that a jury is free to sentence to life without parole if it finds the aggravating circumstances do not ‘justify’ death.”) Appellant has given us no reason for retreating from our previous holdings, and we decline to do so.

Additionally, the State contends that we could summarily affirm this issue by employing the law-of-the-case doctrine. Particularly, the State contends that because this argument was raised by Appellant during the first trial, the decision in Camargo I is dispositive of the issue, as this court reviewed all alleged errors that may have been prejudicial to Appellant pursuant to Ark. Sup. Ct. R. 4-3(h) and found no such error. Thus, the State argues that the 4-3 (h) review is now the law of the case on this issue.

The law-of-the-case doctrine ordinarily arises in the case of a second appeal and requires that matters decided in the first appeal be considered concluded. Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996) (citing Fairchild v. Norris, 317 Ark. 166, 876 S.W.2d 588, cert. denied, 115 S. Ct. 448 (1994)). The doctrine is not inflexible and does not absolutely preclude correction of error, but it prevents an issue raised in a prior appeal from being raised in a subsequent appeal “unless the evidence materially varies between the two appeals.” Kemp v. State, 335 Ark. 139, 142, 983 S.W.2d 383, 385 (1998) (quoting Fairchild, 317 Ark. at 170, 876 S.W.2d at 590). The doctrine precludes the trial court on remand from considering and deciding questions that were explicitly or implicitly determined on appeal. Foreman v. State, 328 Ark. 583, 945 S.W.2d 926 (1997). Questions that have not been decided do not become law of the case merely because they could have been decided; at the same time, however, law-of-the-case principles are applied when a court concludes that an issue was resolved implicitly despite the lack of any explicit statement. Id. Significantly, the doctrine extends to issues of constitutional law. Kemp, 335 Ark. 139, 983 S.W.2d 383.

It is the State’s contention that when this court conducted its review of the record pursuant to Rule 4-3(h), it implicitly decided the constitutional issue now raised by Appellant. We agree that our 4-3(h) review of the record in Carmargo I would serve as an additional ground for affirming this issue.

Pursuant to Rule 4-3(h), in all criminal appeals where the appellant has been sentenced to death or life imprisonment, this court must review the record for any adverse rulings objected to by the appellant, but not argued on appeal. This court conducted such a review in Camargo I and found no reversible errors. The record demonstrates that Appellant raised the issue of the constitutionality of section 5-4-603(a) during the first trial. The record also demonstrates that the evidence presented in the second trial did not materially vary with that presented in the first trial. Thus, this court’s Rule 4-3(h) review in the first appeal is now the law of the case on this issue.

II. Instruction on Mitigating Factor

For his second point for reversal, Appellant argues that the trial court erred in refusing to instruct the jury on each of the mitigating factors claimed by him. Although he admits that he was allowed to present evidence from a psychiatrist indicating that he functions in a borderline to mild retardation range, Appellant nonetheless argues that it was error for the trial court to refuse to specifically instruct the jury to consider mental retardation as a mitigating circumstance. We disagree.

The record reflects that the trial court instructed the jurors regarding the finding of mitigating circumstances as follows:

If you do unanimously find one or more aggravating circumstances, you should then complete Form 2, which deals with mitigating circumstances. Form 2 lists some factors that you may consider as mitigating circumstances. However, you are not limited to this list. You may, in your discretion, find other mitigating circumstances.
Unlike an aggravating circumstance, you aie not required to be convinced of the existence of a mitigating circumstance beyond a reasonable doubt. A mitigating circumstance is shown if you believe from the evidence that it probably existed. [Emphasis added.]

The trial court then submitted the following mitigating factors to the jurors from Form 2:

The capital murder was committed while [Appellant] was under extreme mental or emotional disturbance.
The capital murder was committed while [Appellant] was acting under unusual pressures or influences or under the domination of another person.
The capital murder was committed while the capacity of [Appellant] to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, intoxication, or drug abuse.
The youth of [Appellant] at the time of the commission of the capital murder.
The capital murder was committed by another person and [Appellant] was an accomplice and his participation relatively minor.
[Appellant] had no significant history of prior criminal activity at the time of the murder.
Other: Specify in writing:

Appellant’s proffered instruction contained the first four mitigating factors given by the trial court and the following additional factors:

[Appellant] is remorseful for the commission of this offense.
[Appellant] has demonstrated his ability to adjust to confinement.
[Appellant] functions in the Borderline to Mild Mental Retardation range of intellectual functioning.
Other (specify in writing): [Appellant] cooperated with police by making a statement and assisting in the recovery of evidence or property.
[Appellant], although legally responsible, suffers from an intellectual deficit to some degree.
[Appellant] has a good work history.

The jury found only one mitigating circumstance, that Appellant adjusts well to confinement. Significantly, that mitigating factor was not specifically listed on Form 2, but rather, was written in by the jury foreperson under the category of “Other.” Thus, the jury obviously considered the mitigating evidence, given that they found one mitigating circumstance, and obviously considered more factors than just those listed on Form 2. Despite this, Appellant contends that it was error for the trial court to refuse to instruct the jury on the specific mitigating factors submitted on his proffered jury form. The State again asserts that this argument was previously rejected in Camargo I and is now the law of the case.

In Camargo I, this court elected to address Appellant’s remaining arguments regarding sentencing to provide guidance for the trial court on remand. One of the issues addressed was Appellant’s argument that the trial court erred in refusing to submit a modified instruction form of mitigating circumstances that included Appellant’s mental retardation as a mitigating factor. This court rejected Appellant’s argument, holding:

Appellant relies upon a fine of United States Supreme Court cases that hold that any death sentence resulting from a deliberate exclusion of any mitigating circumstance is presumptively invalid. Penry v. [Lynaugh], 492 U.S. 302 (1989); Hitchcock v. Dugger, 481 U.S. 393 (1987); California v. Brown, 479 U.S. 538 (1987); Eddings v. Oklahoma, 455 U.S. 104 (1982); Roberts v. Louisiana, 431 U.S. 633 (1977); Gregg v. Georgia, 428 U.S. 153 (1976). We find no such deliberate exclusion, because appellant was permitted to make his argument to the jury. We rejected an identical argument in Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993), in which we held that when the defendant is allowed to present the possible mitigators and the jury is told it is not limited to the mitigators listed on the form, it is not error to submit the standard form to the jury in lieu of a form proposed by the defendant. Id. at 38, 852 S.W.2d at 779.

327 Ark. at 645-46, 940 S.W.2d at 471-72 (emphasis added).

In Sheridan, 313 Ark. 23, 852 S.W.2d 772, relied upon in Camargo I, this court examined the constitutional ramifications of failing to allow the defendant to introduce any relevant mitigating evidence:

In Penry [v. Lynaugh, 492 U.S. 302 (1989)], the United States Supreme Court found that a criminal defendant’s Eighth Amendment prohibition upon the infliction of cruel and unusual punishment is violated where he is sentenced to death and no instructions were given informing the jury that it could consider and give effect to mitigating evidence of the defendant’s mental retardation and former abuse received. The United States Supreme Court has held that it is a mandatory safeguard of the Eighth Amendment for the sentencing body to be allowed to consider any mitigating factor that is relevant to the particular offender’s case. The defense must be allowed during the sentencing phase to introduce any relevant mitigating evidence the defense proffers concerning the character or history of the offender or the circumstances of the offense. Not only must relevant mitigating evidence be admitted, it must be actually considered, which in appropriate cases means specifically instructing the jury to do so. In other words, any death sentence that results from a deliberate exclusion of any relevant mitigating evidence is presumptively invalid.
Applying these U.S. Supreme Court rules to the instant case, it is clear to us that the jury was not limited to the mitigating factors listed on Form 2 but was invited by the judge to consider any others they saw fit and to write them in the blank spaces provided in each category. Therefore, the submission of Form 2 to the jury instead of the form proffered by Sheridan did not act as an impermissible exclusion of relevant mitigating factors. The court specifically told the jurors that the mitigating factors listed were not the sole ones to be considered and that they could consider other factors.

Id. at 37-38, 852 S.W.2d at 779-80 (citations omitted). Accordingly, because we considered and decided in Camargo I the same constitutional argument raised in the instant appeal, our prior decision with regard to that matter is binding in this subsequent appeal horn Appellant’s resentencing trial.

Appellant also raises two additional points regarding the instructions on mitigating circumstances, neither of which has any merit. First, Appellant argues that the jury, “being extremely cautious to avoid the fate of the last jury which failed to properly execute the verdict forms,” failed to consider any mitigating circumstances not enumerated on the instruction forms. This argument is without merit, as noted above, as the one mitigating circumstance unanimously found by the jury, that Appellant adjusts well to confinement, was not enumerated on the instruction forms.

Second, Appellant argues that the fact that the jury executed AMCI 2d 1009, stating that it did not unanimously find by a preponderance of the evidence that Appellant was mentally retarded at the time he committed the murders, indicates that the jury perceived that its findings on that form precluded it from considering the evidence of his mental retardation or intellectual deficit as mitigating factors. We find no merit to this argument, as the trial court specifically instructed the jury on AMCI 2d 1009—EXP, which provides in pertinent part:

If you unanimously find that [Appellant] was mentally retarded when the offense was committed, you will sentence him to life imprisonment without parole.
You should consider any evidence with respect to mental retardation first. Then, if you do not unanimously find that [Appellant] has proved mental retardation by a preponderance of the evidence, you should consider the evidence presented on the issue of mental retarda tion in your deliberations on aggravating and mitigating circumstances. [Emphasis added.]

Clearly, the jury was instructed that it could consider the evidence of Appellant’s mental retardation as a mitigating circumstance even if it concluded that Appellant had not proven mental retardation by a preponderance.

III. Rule 4-3(h)

In accordance with Rule 4-3(h), the record has been reviewed for adverse rulings objected to by Appellant but not argued on appeal, and no such reversible errors were found. For the aforementioned reasons, the judgment is affirmed.


source: Caselaw Access Project

author: Robert L. Brown, Justice. W. H.“Dub” Arnold, Chief Justice,

license: Public Domain

text:
    QUALITY FIXTURES, INC. v. MULTI-PURPOSE FACILITIES BOARD for Pulaski County, Arkansas; Bob Russell; Sherman Tate; Billie Ann Myers; Dr. George Mitchell; Lee Frazier; and Hussey Seating Company
    98-834
    986 S.W.2d 865
    Supreme Court of Arkansas
    Opinion delivered March 25, 1999

      Skokos, Bequette & Billingsley, P.A., by: Keith I. Billingsley and Jay Bequette, for appellant.

      Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Tim E. Howell, Lance R. Miller, and W. Christopher Barrier, for appellee Hussey Seating Company.
   Robert L. Brown, Justice.

This case raises one issue for our review: whether the trial court erred in granting summary judgment and dismissing the complaint of appellant Quality Fixtures, Inc., which contested the bid award for construction of seating at the Alltel Arena to appellee Hussey Seating Company. We hold that the trial court’s judgment was not in error, and we affirm.

On July 15, 1997, appellee Multi-Purpose Facilities Board for Pulaski County, Arkansas (hereinafter Facilities Board) asked for bids for certain construction work at the Alltel Arena in North Litde Rock. Among the bids requested was one for the contract for cast iron seating at the Arena. Two companies submitted sealed bids for this work — Quality Fixtures and Hussey. On March 10, 1998, at 2:00 p.m. the sealed bids were publicly opened by the construction manager for the Facilities Board, Paul Simonetta. Quality Fixtures’s bid was $2,533,548. Hussey’s bid was $2,326,976.

After the bids were opened, the parties were advised that a recommendation would be made to the Facilities Board after review of the bids, the respective bonds, and the status of the contractor’s licenses. In reviewing these matters, the construction manager learned that Hussey’s Arkansas contractor’s license had expired on July 31, 1997.

On March 27, 1998, Hussey approved and signed findings of fact and conclusions of law at a hearing before the Arkansas Contractors Licensing Board, in which it admitted violating Ark. Code Ann. § 17-25-103(a)(1), (3), and (5) by submitting a bid without first obtaining a contractor’s license, by giving false evidence to the Licensing Board, and by submitting a bid with an expired license. Hussey paid a $10,000 penalty for violating the statute and received its renewed contractor’s license on April 1, 1998. On April 9, 1998, the Facilities Board waived any deficiencies in the bid initially received from Hussey and accepted the Hussey bid as the low bid. It then awarded the seating contract to Hussey.

On April 24, 1998, Quality Fixtures filed suit against the Facilities Board and Hussey and sought an injunction against the contract award to Hussey. The complaint further asked for a court order directing that the Facilities Board award the contract to Quality Fixtures as the lowest responsible bidder.

The parties stipulated to the facts, and both Quality Fixtures and Hussey filed motions for summary judgment. In its resulting summary-judgment order, the trial court determined that the Facilities Board had not acted illegally, arbitrarily, or capriciously in awarding the contract to Hussey, and the court dismissed Quality Fixtures’s complaint.

Quality Fixtures now claims on appeal that the trial court erred in granting summary judgment in favor of Hussey. It further contends that the trial court improperly segregated Hussey’s illegal conduct of submitting a bid without a valid license from the Facilities Board’s subsequent action in awarding the contract to Hussey. According to Quality Fixtures, without a current license, Hussey was foreclosed from bidding on the project. Quality Fixtures also argues that the bids were “considered” when the sealed bids were opened and compared on March 10, 1998, and that although the Facilities Board reserved the right to waive formalities or technicalities in the bids, it could not waive Hussey’s fraudulent conduct of submitting an illegal bid. Finally, Quality Fixtures points (1) to the Facilities Board’s statement that bids would not be considered if sent by fax, and (2) to Ark. Code Ann. § 22-9-203(d) (Supp. 1997), which states that the Facilities Board shall award the contract to the “lowest responsible bidder,” which was not Hussey at the time of the bid submissions due to its unlicensed status.

Two statutes seem to be particularly apposite to the issue at hand. First, there is the statute setting the license requirements necessary for a bid to be considered, which includes the necessity for a bidder to have a certificate of license from the state for its bid to be considered. See Ark. Code Ann. § 17-25-313 (Repl. 1995). Next, there is the award procedure for public projects, which prescribes in relevant part:

(d) On the date and time fixed in the notice, the board, commission, officer, or other authority in which or in whom authority is vested to award contracts, shall open and compare the bids and thereafter award the contract to the lowest responsible bidder, but only if it is the opinion of the authority that the best interests of the taxing unit would be served thereby.

Ark. Code Ann. § 22-9-203(d) (Supp. 1997).

There is also a case which is relevant to our review. See Ottinger v. Blackwell, 173 F. Supp. 817 (E.D. Ark. 1959). In Ottinger, the district court held that the Arkansas statute making it a misdemeanor to contract to construct without a license (Ark. Stats. Ann § 71-713 (Supp. 1951)) did not make a contract awarded to an unlicensed contractor illegal or void.

The plaintiff, Ottinger Construction Company, submitted a bid for a highway construction project while it was unlicensed. When the bids were opened, Ottinger was the lowest bid by a wide margin and later realized that it made a mistake in its bid in the amount of $294,000.

It tried to convince the Board to disregard its bid and filed a complaint to enjoin the Board from awarding it the contract because of its mistake. In doing so, Ottinger argued that its bid was illegal due to its unlicensed status. In rejecting Ottinger’s argument, the district court stated that:

The fallacy of this argument is that there is nothing in the statutes which indicates that before a contract can be let it is necessary that the contractor have a license, nor do the pertinent statutes characterize a contract awarded to an unlicensed contractor as illegal or void . . . While the statute says that it is a misdemeanor to contract to construct without having obtained a license, it does not say expressly that a contract cannot be made.

Ottinger, 173 F. Supp. at 821. The important point of this decision for purposes of the instant case is that the absence of a contractor’s license did not render a contract award illegal or void. And while the Ottinger case is not precedent for this court, coming from a different jurisdiction as it does, we agree with its reasoning. Furthermore, the facts of the case before us differ from Ottinger. Here, Hussey had renewed its license and was in good standing by the time the bids were considered by the Facilities Board and the contract was awarded.

In reading the relevant statutes, certain points are clear to us. According to § 17-25-313, bids will not be considered from parties that do not have a certificate of license. Second, it is the Facilities Board (or presumably its designee) that opens and compares the bids after submission and thereafter awards the contract to the lowest responsible bidder. This being the case, Hussey’s bid could not have been considered by the Facilities Board until its contractor’s license was in order. We believe that the trial court correctly differentiated between submission of bids and their opening at a time and date certain and consideration of the bids by the Facilities Board and the awarding of the contract. The plain meaning of the two terms and the action involved are totally different. See Black’s Law Dictionary 306, 1426 (6th ed. 1990). Consideration of a bid must necessarily involve analysis, examination, and inspection. It is the Facilities Board that considers the bids and awards the contract at some point after the bids are opened. We do not read § 22-9-203(d) as necessarily contemplating an immediate award at the time the bids are opened. That, of course, would be impractical in some cases and would place the ultimate decision of awarding the contract on the person opening the bids — in this case the construction manager. It would also foreclose a review of matters such as the validity of the bid bond or scrivener errors in the bids themselves. See Ark. Code Ann. § 22-9-203(c)(2)(A) and (g) (Supp. 1997).

We believe that it would have been an easy matter for the General Assembly to state expressly and specifically that the bid of a party that does not have a contractor’s license at the time of submission is void, if that was in fact the General Assembly’s intent. See, e.g., Ark. Code Ann. § 22-9-203(c)(2)(A) (Supp. 1997) (submitted bid is void when not accompanied by a certified check or corporate bid bond). This has not been done. Nor do the relevant statutes specifically state that the bids are to be considered and the contract awarded at the time the bids are opened and compared. Finally, the statutes do not foreclose the possibility that a contract can be subsequently awarded to a party that did not have a contractor’s license at the time the bids were submitted but later corrected that deficiency prior to the contract’s award. In short, the General Assembly simply has not enacted laws which give credence to Quality Fixture’s theory.

As a consequence, we conclude that the bids were not considered by the Facilities Board for purposes of determining the lowest responsible bidder and awarding the contract until April 9, 1998. Under our reading of the statutes, nothing proscribes the Facilities Board from awarding the contract to Hussey when it did, after Hussey had satisfied the prerequisite of having its contractor’s license renewed.

Quality Fixtures raised in oral argument the potential for abuse such as unlicensed bidders submitting their bids, ascertaining whether they are the low bid at the time the bids are opened, and then securing a license, if need be. Again, should the General Assembly wish to nullify any bid made by a bidder without a contractor’s license, it can readily do so. In the matter before us, the defect in the bid at time of submission was waived by the Facilities Board and had been corrected by the time the contract was awarded. We discern no statutory prohibition against that occurring.

The dissenting opinion argues that bids must be considered at the time they are opened and, inferentially, that the contract must be awarded at that time. Again, the relevant statutes (§ 17-25-313 and § 29-9-203(d)) do not require that. Moreover, it would be impractical to place the bidding process in such a straitjacket, for reasons already stated. What the dissenting opinion really objects to is the waiver by the Facilities Board of its requirement that a bidder have a contractor’s license at the time the bid is submitted. It fell within the purview of the Facilities Board to treat an expired contractor’s license as a formality, and it did so. We do not view that conduct as arbitrary and capricious.

Affirmed.

Arnold, C.J., dissents.

Glaze, J., not participating.

W. H.“Dub” Arnold, Chief Justice,

dissenting. I disagree with the majority. I believe that its holding represents a contribution to the compromise of integrity of the bidding process and the contracting industry as a whole.

While the facts in the instant case are undisputed, what is in dispute is the interpretation of the word “considered” as it is used in Ark. Code Ann. § 17-25-103, the statute requiring that bidders have a current license from the Arkansas Contractors Licensing Board “before a bid will be considered.” The majority obviously agreed with the trial court that a bid is not actually “considered” until the full board compares the bids and awards a contract. I disagree.

The crux of this case is the integrity of the bidding process. There is no dispute that Plussey did not have a valid license from the Arkansas Contractors Licensing Board when it submitted its sealed bid on March 10, 1998, in the amount of $2,326,976.00. In fact, Frances Kelly, Assistant Treasurer of Hussey, in a sworn affidavit dated March 9, 1998, clearly stated that Hussey was not a party to any contract and would not bid until such time as the application for the license was approved. The affidavit clearly specifies that any bid submitted without a license must be withdrawn before the affidavit can be truthfully executed. In fact, Hussey used a false license number on its bid dated March 10, 1998.

While Hussey’s failure to reinstate its license may have simply been due to a clerical error, as they asserted, I believe the trial court nevertheless improperly separated the conduct on the part of Hussey in submitting its illegal bid on March 10, 1998, from the action of the Board in awarding the contract to Hussey on April 9, 1998, after Hussey had admitted guilt and paid a substantial fine.

I believe the majority’s interpretation of the term “considered” is improper for two reasons. To begin with, the first rule in considering the meaning of any statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language, making use of common sense. Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995); Arkansas Dept. of Health v. Westark Christian Action, 322 Ark. 440, 910 S.W.2d 199 (1995). Although there are no Arkansas cases specifically dealing with this issue, in reviewing the plain meaning of the statute, “considered” must mean the time at which the sealed bids are initially publicly opened and compared. Any statutory construction to the contrary would contravene the core purpose of the competitive bidding process.

Other than the statutory construction, another reason I believe the court improperly construed the term “considered” is that the Multi-Purpose Facilities Board in the pre-bid meeting minutes dated March 3, 1998, basically defined the term “considered,” when it used that term to note that bids by facsimile would not be “considered” at the time the bids were publicly opened. The pre-bid meeting minutes from March 3, 1998, at 1:00 p.m. state the following:

(4) Bids will not be considered if sent by facsimile. Bids sent by overnight mail or express delivery must be placed and sealed in an envelope with the bid package number and project marked on the outside. This envelope then needs to be placed into an overnight envelope with the bid package and project clearly marked on the outside and sent to: Pulaski County Purchasing.

The Facilities Board itself gave the term “considered” the same plain and ordinary meaning as defined in Ark. Code Ann. § 17-25-313. The competitive bidding process requires sealed bids. To require otherwise would open the door to the inherent possibility of fraud, collusion, and other improper conduct concerning the award of public construction contract. Thus, the Facilities Board correctly required that if the bid was to be “considered,” it must be received in a sealed bid package, a requirement obviously not available through facsimile transmission. The Facilities Board itself construed the term “considered” to mean at the time the bids were opened and compared on March 10, 1998 — not on April 9, 1998, after Hussey, its hand called, had paid a significant fine and admitted to illegal and fraudulent activity. It seems rather arbitrary, indeed, (and unfair) to agree to disregard one’s own rules and regulations simply to accept the lowest bid, when the next lowest bidder has followed all the rules and regulations to the letter.

Further, Ark. Code Ann. § 29-9-203 (d) states the following:

On the date and time fixed in the notice, the Board, Commission, Officer or other authority in which or in whom authority is vested to award contracts, shall open and compare the bids and thereafter award the contract to the lowest responsible bidder, but only if it is the opinion of the authority that the best interest of the taxing unit would be served thereby. (Emphasis added.)

Obviously, Hussey was the lowest bidder, and accepting the lowest bid would be in the best interest of the taxing unit. However, the statute requires that the lowest bidder be a responsible bidder. By virtue of its illegal activity, requiring it to plead guilty and pay a substantial fine, it would seem that Hussey was not the “lowest responsible bidder,” but that Quality Fixtures was.

While it is true that the Facilities Board, pursuant to Arkansas law, did reserve the right to waive formalities, Hussey’s illegal (and suggestively fraudulent) actions certainly should not be considered “formalities” subject to waiver by the Facilities Board. The Arkansas Contractors Licensing Board did not retroactively grant Hussey a license. The license was effective April 1, 1998, some twenty days after the sealed bids had been opened and examined.

If the Facilities Board is able to act in such an arbitrary and capricious manner by disregarding its own requirements for bidders when it best suits the Board’s needs, then the integrity of the bidding process is being compromised. I regret that the majority has allowed such a compromise.

       Ark. Stats. Ann. § 71-713 (Supp. 1951), was a predecessor statute to Ark. Code Ann. § 17-25-103 (Repl. 1995), and established penalties for operating without a contractor’s license or giving false evidence.

       Under Act 1319 of 1995, codified at Ark. Code Ann. § 22-9-203(g) (Repl. 1996), a board now has the authority to reject a bid where the bid contains a scrivener error and would create serious financial loss to the bidder.


author: Annabelle Clinton Imber, Justice.

text:
    James ARTHUR, M.D., and Allan C. Gocio, M.D. v. Betty Jo ZEARLEY and Herman Zearley
    98-156
    992 S.W.2d 67
    Supreme Court of Arkansas
    Opinion delivered March 25, 1999

      Friday, Eldredge & Clark, by: J. Phillip Malcom and Robert S. Shafer, for appellants.

      Hicks Law Firm, by: George R. Wise, Jr., for appellees.
   Annabelle Clinton Imber, Justice.

This is the second appeal in this medical malpractice case.

The appellants challenge the trial court’s denial of their motion for a directed verdict and they contest certain evidentiary rulings by the trial court. They also contend that the trial court erroneously instructed the jury on certain elements of damages. We affirm on the first two points, but reverse and remand for a new trial on the third point, based on our holding that the trial court erred in instructing the jury that damages could be awarded for lost future earnings, loss of ability to earn in the future, and future medical expenses.

The appellants, Dr. James Arthur and Dr. Allan C. Godo, are neurosurgeons practicing at the Hot Springs Neurosurgery Clinic. Mrs. Betty Zearley sought treatment from Dr. Arthur in May, 1991, for pain related to a neck injury she sustained in a car accident. Dr. Arthur recommended an anterior cervical diskectomy and fusion surgery (“ACF surgery”) to alleviate Mrs. Zearley’s pain. ACF surgery is used to treat pain resulting from disc material impinging upon the cervical spine. The surgery involves removing the disc material and replacing it with a graft which is supposed to maintain the disc space while the body forms new bone between the vertebrae, thereby fusing them together. The most common graft materials used in ACF surgery are bone taken from the iliac crest of the patient’s hip (“autologous bone” or “autograft”) or donor bone taken from a cadaver (“allograft”). The use of either type of graft material carries certain risks. Specifically, when donor bone is used, there is a risk of transmission of disease, and when the patient’s own bone is used, there is an increased risk of infection and pain at the graft site.

Neither of these graft materials was used by Dr. Arthur when he performed the ACF surgery on Mrs. Betty Zearley. Rather, he informed Mrs. Zearley that he would use a white ceramic spacer as graft material and insert it into her spine. The ceramic spacer was a product called “Orthoblock.” Orthoblock is a dense form of hydroxylapatite, a ceramic material developed to replace bone in maxillofacial (dental) surgeries, that is manufactured by Calcitek, Inc. Orthoblock was not designed by the manufacturer or approved by the Food and Drug Administration (“FDA”) for use in the human spine. The package insert accompanying Orthoblock warned that it should not be “used in any position where the implants are likely to sustain significant tensile, flexural, or sheer forces during function” and that aggressive contouring of the material could cause “brittle failure resulting in cracking or breaking of the implant.”

According to Dr. Gene Bolles, an expert witness for the Zearleys, the information contained in the Orthoblock package insert did not support its use in the human spine. He further testified that there was no scientific basis for performing ACF surgery with Orthoblock and that Orthoblock could actually act as an “anti-fusion” device, so as to prevent fusion. However, Dr. Arthur testified that he had a firm scientific basis for performing Mrs. Zearley’s surgery with Orthoblock. First, he relied upon an article published in 1989 in a medical journal that described the use of Orthoblock in ACF surgery and favorably compared the results from that type of surgery with the results from surgery using autograft or allograft material. Second, he had performed eighty to ninety procedures with Orthoblock between 1989 and May, 1991, when Mrs. Zearley came to him for treatment.

With regard to Dr. Arthur’s disclosures before the surgery, Mrs. Zearley testified that he showed her the Orthoblock material and told her that he and Dr. Godo had good results using it in ACF surgery. However, Mrs. Zearley testified that he did not tell her that Orthoblock had not been designed by the manufacturer, or approved by the FDA, for use in the human spine. She also testified that Dr. Arthur did not tell her that there were other alternatives (hip or bone bank bone) or that the use of Orthoblock in ACF surgery was experimental. Dr. Arthur, on the other hand, testified that he told Mrs. Zearley about all of the alternatives and that Orthoblock, although originally developed for dental surgery, was comparable to bone from the hip, based upon his own fairly significant experience with the product over the past two years and based upon findings by a group of doctors that had been published in 1989.

When Dr. Arthur, assisted by Dr. Gocio, performed Mrs. Zearley’s surgery on May 28, 1991, he did not consider it to be experimental surgery, and, thus, saw no reason to seek approval from the hospital’s review board. This assessment by Dr. Arthur was refuted by the deposition testimony of Dr. George Allen. He testified that the surgery was experimental and should have undergone peer review by the hospital’s review board. He also testified that no documented informed consent was obtained by Dr. Arthur before he performed the experimental surgery on Mrs. Zearley.

Mrs. Zearley testified that she continued to experience pain after the surgery. She returned to Dr. Arthur in June and August of 1991 for post-operative check-ups, and related her complaints to Dr. Arthur. Finally, in March of 1993, Mrs. Zearley learned from a newspaper article that Dr. Arthur had been sued for using Orthoblock in spinal surgery. After further investigation, she and her husband, Mr. Herman Zearley, filed this action on June 24, 1993, against the appellants, the Hot Springs Neurosurgery Clinic, St. Joseph’s Regional Health Center, Inc. (St. Joseph’s Hospital), and Calcitek. Zearley I, supra. The Zearleys alleged medical negligence, battery, fraud, outrage, strict liability and breach of warranty and sought compensatory and punitive damages.

Shortly after filing suit, Mrs. Zearley contacted Dr. Edward Saer, an orthopedic surgeon in Litde Rock, about further treatment of her neck. On June 16, 1993, Dr. Saer performed a revision ACF surgery on Mrs. Zearley, removing the Orthoblock spacers and then replacing them with bone taken from Mrs. Zearley’s hip. Dr. Saer testified that Mrs. Zearley’s condition improved significantly after the revision surgery. Mrs. Zearley agreed with Dr. Saer’s assessment when she testified that she was “back to normal” after the revision surgery.

At trial, over a relevancy objection by the appellants, the Zearleys read portions of Dr. Arthur’s deposition in which he testified that all of his patients knew that Orthoblock was not designed or FDA-approved for use in the human spine. Over further objection by the appellants, the Zearleys called three other Orthoblock patients to testify about their own informed consent conferences with Dr. Arthur before surgery. These witnesses testified that Dr. Arthur never informed them that the Orthoblock was not designed or FDA-approved for use in the human spine. At the conclusion of their testimony, the appellants moved for a mistrial, which motion was denied by the trial court.

At the close of the Zearleys’s case-in-chief, the trial court dismissed their claims for battery, fraud, and the tort of outrage. However, the motion for a directed verdict by the appellants based on insufficient evidence of proximate cause was denied by the trial court. The trial court also overruled their objection to the damages instruction based on insufficient evidence of future damages.

The jury returned a verdict in favor of Betty Zearley and against the appellants, and awarded compensatory damages in the amount of $115,000.00. The jury also returned a verdict in favor of Herman Zearley on his claim for loss of consortium in the amount of $15,000.00. The jury rejected the Zearleys’s claim for punitive damages against the appellants. The jury also rejected the Zearleys’s claim against St. Joseph’s Hospital. Appellants bring this appeal from the trial court’s entry of final judgment on the jury’s verdict.

I. Proximate Cause

For their first point, the appellants argue that the evidence was insufficient to establish that the use of Orthoblock in Mrs Zearley’s first surgery was the proximate cause of her injuries, and that the trial court erred in refusing to grant their motion for a directed verdict.

When considering a motion for directed verdict made by a defendant, the plaintiffs evidence, and all reasonable inferences therefrom, are examined in the light most favorable to the plaintiff. Dodson v. Charter Behavioral Health Sys., Inc., 335 Ark. 96, 983 S.W.2d 98 (1998); Avery v. Ward, 326 Ark. 830, 934 S.W.2d 516 (1996). A directed-verdict motion should be granted only if the evidence would be so insubstantial as to require a jury verdict for that party to be set aside; evidence is insubstantial when it is not of sufficient force or character to compel a conclusion one way or the other, or if it does not pass beyond mere suspicion or conjecture. Dodson, supra; City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995); St. Paul Fire & Marine Ins. Co. v. Brady, 319 Ark. 301, 891 S.W.2d 351 (1995).

The appellants argue that neither the medical expert testimony nor any other evidence presented in the case established that Mrs. Zearley’s injuries were caused by the use of Orthoblock. In support of this argument, appellants focus on Mrs. Zearley’s declaration that she would not “have allowed it [Orthoblock] to be put in my spine,” if she had known it was experimental and not designed or FDA-approved for use in the spine. The appellants suggest that this declaration was insufficient to prove proximate cause for two interrelated reasons. First, they assert Mrs. Zearley did not say she would not have undergone ACF surgery at all if she had been fully advised of the facts concerning Orthoblock, but only that she would not have consented to the use of Orthoblock as a graft material. Second, they assert that Mrs. Zearley faced the same risk of lack of fusion (pseudo-arthrosis) in any ACF surgery, regardless of the graft material used, and that the Zearleys failed to present substantial evidence that Mrs. Zearley’s injuries were anything more than the actualization of risks associated with any ACF surgery. In a nutshell, the appellants contend that the Zearleys failed to prove that Mrs. Zearley’s injuries were linked solely to the use of Orthoblock and were not the result of risks commonly associated with other graft materials.

Causation is ordinarily a fact question for the jury to decide. First Commercial Trust Co. v. Rank, 323 Ark. 390, 915 S.W.2d 262 (1996); Catlett v. Stewart, 304 Ark. 637, 804 S.W.2d 699 (1991). The law requires more than a mere possibility that certain injuries resulted from negligence; rather, a reasonable probability must be established. Davis v. Kemp, 252 Ark. 925, 481 S.W.2d 712 (1972). Therefore, a plaintiffs proof of causation must be more than speculation or conjecture. Hill v. Maxwell, 247 Ark. 811, 448 S.W.2d 9 (1969). It must be such that reasonable persons might conclude that it is more probable than not that an event was caused by the defendant. Id. Proximate cause may be shown from circumstantial evidence, and such evidence is sufficient to show proximate cause if the facts proved are of such a nature and are so connected and related to each other that the conclusion may be fairly inferred. Wheeler v. Bennett, 312 Ark. 411, 849 S.W.2d 952 (1991).

As previously stated, we examine the evidence, and all reasonable inferences therefrom, in the light most favorable to the plaintiff. Dodson, supra. Dr. Saer’s testimony is particularly relevant to the causal link between Mrs. Zearley’s injuries and the use of Orthoblock. Mrs. Zearley sought treatment from Dr. Saer two years after the original surgery by Dr. Arthur. According to Dr. Saer, the x-rays of Mrs. Zearley’s spinal column showed that the Orthoblock spacer used at C5-6 was broken and that the one used at C6-7 was not fused. He testified that there was solid bony fusion after the revision surgery on June 16, 1993, and that Mrs. Zearley was “significantly better” the last time he saw her on June 15, 1994. He further testified that “it’s kind of an internal control, if you look at it that way, yes, sir. She had not achieved a solid fusion at C6-7, approximately, two years after her original surgery and it appeared that she had a solid fusion in six months after the re-operation and certainly a year after the re-operation.” Dr. Saer noted that he prefers to use the patient’s own bone as a graft material because the failure-to-fuse rate is low for such bone. In Dr. Saer’s experience, it would be unusual to revise an ACF procedure that’s been done with bone, with the percentage of such revisions being in the less than five percent range. In contrast, Dr. Saer testified that the number of revisions for Orthoblock surgeries was unusual and that he had not seen anything like that as far as revisions for anterior cervical fusions. Evidence of causation was also provided by an expert witness for the appellants, Dr. Richard Saunders. He testified that removing the Orthoblock and replacing it with bone was a test which indicated that the removal of the Orthoblock from Mrs. Zearley’s spine eliminated her pain.

Finally, Mrs. Zearley’s own testimony is significant with regard to the causal connection between her injuries and the use of Orthoblock. Mrs. Zearley testified that she had to lie down most of the time while the Orthoblock was in her spine, and that she could not stand for long periods of time without constant pain. This testimony was consistent with the package insert warnings that Orthoblock should not be used where it was likely to sustain significant tensile, flexural, or sheer forces. With regard to her condition after Dr. Saer’s surgery, Mrs. Zearley testified that there was no comparison between how she felt two years after Dr. Arthur’s surgery and how she felt eighteen months after Dr. Saer’s surgery: “I was basically normal 18 or 19 months after Dr. Saer’s surgery.”

Based upon this testimony by Dr. Saer, Dr. Saunders, and Mrs. Zearley, we conclude that the evidence was of sufficient force or character to enable the jury to determine, without resort to speculation or conjecture, that Mrs. Zearley’s injuries were proximately caused by the use of Orthoblock in the first ACF surgery.

We note that the appellants rely upon Aetna Casualty & Surety Co. v. Pilcher, 244 Ark. 11, 424 S.W.2d 181 (1968), in which we stated:

In view of the undisputed testimony that this germ could have entered Gary in so many ways and from so many sources, and in view of the unchallenged difficulty in controlling it, we must conclude that the jury verdict must have been based on speculation and not on substantial evidence.

The appellants suggest that since the risk of infection could not be eliminated by the hospital in Aetna, so the risk of pseudo-arthrosis could not be ehminated for Mrs. Zearley. However, the cited holding in Aetna was qualified by the following language:

This conclusion is confirmed by the fact that there is no expert testimony showing St. Vincent was negligent. In many cases the courts have held, in a case of this kind, that expert testimony has great weight where there is no direct proof to the contrary.

Aetna, supra. Thus, Aetna is inapposite because here we have expert testimony showing that Dr. Arthur was negligent. Furthermore, both Dr. Saer and Mrs. Zearley testified that her condition significantly improved after the revision surgery using bone from the hip. Dr. Saer also compared the results of each surgery: lack of fusion two years after the surgery with Orthoblock, but solid fusion within six months after the revision surgery with bone. This “internal control,” or test, was confirmed by appellants’s own expert witness, Dr. Saunders, when he acknowledged that the removal of the Orthoblock eliminated Mrs. Zearley’s pain. This evidence sufficiently linked Mrs. Zearley’s injuries to the use of Orthoblock. Thus, we hold that there was substantial evidence to establish that Mrs. Zearley’s injuries resulted from the use of Orthoblock, and we affirm the trial court’s denial of the motion for a directed verdict by appellants.

II. Evidentiary Rulings

For their second point on appeal, the appellants contest several of the trial court’s evidentiary rulings. A trial court is accorded wide discretion in evidentiary rulings, and will not be reversed on such rulings absent a manifest abuse of discretion. Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999); Miskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996).

First, the appellants assert that the trial court improperly admitted Dr. Arthur’s deposition testimony that all of his patients knew that Orthoblock was not designed or FDA-approved for use in the human spine and that he told all of his patients that Orthoblock could fracture and migrate after it was in place. In support of this argument, the appellants contend that Dr. Arthur was present at trial and was ready and able to testify, and that his deposition testimony was not relevant.

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401. A trial court’s ruling on relevancy is entitled to great weight and will not be reversed absent an abuse of discretion. Skiver, supra; Miskelley, supra; Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). Relevant evidence may only be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, see Ark. R. Evid. 403; see also Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979); Potter v. Magee, 61 Ark. App. 112, 964 S.W.2d 412 (1998).

Deposition testimony by Dr. Arthur concerning what he told all of his patients during their informed consent conferences was relevant and admissible under Ark. R. Evid. 406 as evidence of Dr. Arthur’s habit and routine in obtaining informed consent from all of his patients. See Hall v. Arthur, 141 F.3d 844 (8th Cir. 1998). Furthermore, Ark. R. Civ. P. 32(a)(2) states that “[t]he deposition of a party . . . may be used by an adverse party for any purpose.” Dr. Arthur was a party defendant in this lawsuit and the Zearleys were an adverse party. Thus, the use of his deposition was a perfectly permissible practice. See Ouachita Mining & Exp., Inc. v. Wigley, 318 Ark. 750, 887 S.W.2d 526 (1994) (holding that Ouachita Mining was entitled to use the deposition of the defendant as part of its case irrespective of the hearsay rule and irrespective of whether the defendant was available or unavailable at trial). Moreover, our rules of evidence are clear that admissions by a party-opponent are not hearsay. Ark. R. Evid. 801(d)(2); Ouachita, supra. Therefore, we hold that there was no abuse of discretion by the trial court when it admitted Dr. Arthur’s deposition testimony.

The appellants next assert that the trial court improperly allowed testimony from three patients other than Mrs. Zearley concerning what Dr. Arthur told them about Orthoblock prior to surgery. The appellants assert that this evidence was not admissible because it was extrinsic evidence on a collateral matter. They further contend that this testimony was not admissible during the Zearleys’ case-in-chief because it was in rebuttal to Dr. Arthur’s deposition testimony that had been introduced by the Zearleys in their case-in-chief.

A matter is not collateral if the cross-examining party would be entitled to prove the issue as part of the case-in-chief , or if the evidence is relevant to show bias, knowledge, or interest. Ballentine v. Sparkman, 327 Ark. 180, 937 S.W.2d 647 (1997); Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). Whether or not Dr. Arthur obtained an informed consent from Mrs. Zearley was the central issue in this case. Dr. Arthur’s deposition testimony about what he told all of his patients before surgery was contradicted by the testimony of the three other patients. Their rebuttal testimony tended to shed light on the central issue of Mrs. Zearley’s informed consent, and was, thus, admissible under Ark. R. Evid. 401. Such testimony simply was not a collateral matter.

Responding to the second argument advanced by the appellants, Rule 611 of the Arkansas Rules of Evidence states in pertinent part that:

(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

We have held that Rule 611(a) vests considerable discretion in the trial court in the regulation of the mode and order of interrogating the witnesses and presenting evidence. Piercy v. Wal-Mart Stores, Inc., 311 Ark. 424, 844 S.W.2d 337 (1993); Freeman v. Anderson, 279 Ark. 282, 651 S.W.2d 450 (1983). The trial court in this case had the authority to dictate the order in which evidence was presented, absent any abuse of discretion. During the Zearleys’ case-in-chief, the appellants cross-examined Mr. Herman Zearley extensively about when his son Michael Zearley arrived at the hospital before Mrs. Zearley’s first surgery. Mr. Zearley acknowledged that his deposition testimony on this point was inconsistent with his trial testimony. The appellants then sought permission to pursue this line of questioning by reading portions of Mr. Zearley’s deposition testimony, arguing to the trial court that “they [the Zearleys] are going to claim he [Michael Zearley] came at a later time. ...” When the trial court allowed the appellants to proceed, he specifically warned them that he believed they were going forward with rebuttal evidence and, thereby “opening the door” to the admission of rebuttal evidence by the Zearleys during their case-in-chiefi Under these circumstances, we cannot say that the trial court’s decision to deviate from the traditional order of proceedings and to allow the other patients to testify during the Zearleys’ case-in-chief was an abuse of discretion.

The appellants assert alternatively that the testimony by other patients should not have been allowed because it was unfairly prejudicial. They contend that it went beyond rebuttal when all three witnesses testified that they would not have undergone the surgery using Orthoblock if Dr. Arthur had provided them with adequate information about the use of Orthoblock in ACF surgery. Under Rule 403 of the Arkansas Rules of Evidence, relevant evidence may be excluded by the trial court if “its probative value is substantially outweighed by the danger of unfair prejudice. ...” In admitting the challenged testimony, the trial court determined that the probative value of the testimony was not substantially outweighed by any prejudice. We cannot say the trial court’s evidentiary ruling was an abuse of discretion.

As a final argument on this issue the appellants urge that the trial court erred in refusing to grant their request for a mistrial after the challenged testimony by the other patients. It is well setded that a mistrial is an extreme remedy that should be granted only when the error is beyond repair and cannot be corrected by curative relief. Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999); Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). The trial court has wide discretion in granting or denying a motion for a mistrial, and we will not disturb the court’s decision absent an abuse of discretion or manifest prejudice to the movant. Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998); Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). This court has repeatedly held that a mistrial is a drastic remedy which should only be used when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when fundamental fairness of the trial itself has been manifestly affected. Ballentine, supra; Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996). As previously stated with regard to the trial court’s evidentiary ruling on the admissibility of the challenged testimony, we cannot say that the trial court’s denial of the motion for a mistrial was an abuse of discretion.

Ill, Erroneous Jury Instructions

For their third point, the appellants assert error in the trial court’s giving of AMI 2204, AMI 2206, and AMI 2207, which respectively pertain to three elements of damages: future medical expenses, lost future earnings, and loss of ability to earn in the future. The basis for the argument is that no evidence was presented by the Zearleys to support the giving of an instruction on those elements of damages.

A party is entitled to a jury instruction when it is a correct statement of the law, and there is some basis in the evidence to support the giving of the instruction. Coca-Cola Bottling Co. v. Priddy, 328 Ark. 666, 945 S.W.2d 355 (1997); Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996); Parker v. Holder, 315 Ark. 307, 867 S.W.2d 436 (1993). Absent evidence to the contrary, there is a presumption that the jury obeyed its instructions. Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999); Northwestern Nat’l Cas. Co. v. Mays, 273 Ark. 16, 616 S.W.2d 734 (1981). Thus, jury instructions must be based on the evidence in the case, and instructions which reference matters on which no evidence was presented should not be used. Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993). Where reasonable minds will not differ that the evidence does not establish a basis for a jury instruction, it is error for the trial court to give the instruction. Skinner v. R.J. Griffen Inc., 313 Ark. 430, 855 S.W.2d 913 (1993).

With regard to future medical expenses as an element of damages, AMI 2204 permits recovery for medical expenses “reasonably certain to be required in the future.” We have held that future medical expenses need not be proven with the same specificity as past medical expenses. Matthews v. Rogers, 279 Ark. 328, 651 S.W.2d 453 (1983). However, there must be some evidence that medical treatment will be necessary in the future. West Union v. Vostatek, 302 Ark. 219, 788 S.W.2d 952 (1990); Williams v. Gates, 275 Ark. 381, 630 S.W.2d 34 (1982). The Zearleys have presented no such proof in this case. Although Dr. Saer testified about some additional impairment as a result of the second surgery, there was no testimony by any physician that Mrs. Zearley will need future medical care, such as surgery, therapy, or medication. Furthermore, Mrs. Zearley testified at trial that she was not on any medication for her neck and that she had not seen a doctor for any neck complaints since June, 1994, when she last saw Dr. Saer. Thus, there is no proof of any medical expenses being incurred by Mrs. Zearley for a period of three years before trial. In the absence of proof that medical expenses were reasonably certain to be required in the future, the jury was forced to resort to speculation and conjecture. Future medical expenses were, therefore, not an appropriate element of damages for consideration by the jury.

Loss of earnings and loss of earning capacity are two separate elements of damages. AMI 2206 and 2207; Check v. Meredith, 243 Ark. 498, 420 S.W.2d 866 (1967). Loss of future earnings must be proven with reasonable certainty. Swenson & Monroe v. Hampton, 244 Ark. 104, 425 S.W.2d 165 (1968). Evidence involving two basic factors is necessary to prove loss of future earnings with reasonable certainty: (1) the amount of wages lost for some determinable period; and (2) the future period over which wages will be lost. Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983).

There is no proof in this record that Mrs. Zearley, at the time of trial, was still unable to work or was unable to earn as much as she did before the second surgery. She testified at trial that she has worked continuously as a pharmacist tech at a drug store since April, 1994, working forty hours or more per week. According to Mrs. Zearley’s own testimony, she works hard and can do “anything that anybody else can do.” Furthermore, there was no testimony by Mrs. Zearley, her physicians, or any other witness that she would be unable to continue working regularly. The absence of proof here is similar to the absence of proof in Check, supra, where there was “no indication that [the plaintiff] missed even a day’s work for some fourteen months immediately preceding the trial,” and “[no] witness testified that it was either probable or possible that she would be unable to continue working regularly.” We must conclude here, as we did in Check, supra, that the jury had no basis, except pure guesswork, for estimating earnings reasonably certain to be lost in the future. Future lost earnings were, therefore, not an appropriate element of damages for consideration by the jury.

Loss of earning capacity is the loss of the ability to earn in the future and should not be confused with permanency of injury, which is a separate element of damages. Cates, supra. Proof of loss of earning capacity does not require the same specificity or detail as does proof of loss of future wages. Coleman v. Cathey, 263 Ark. 450, 565 S.W.2d 426 (1978). It is well settled that impairment of earning capacity is recoverable only upon proof that an injury is permanent. Wheeler, supra. The issue of permanency of impairment was submitted to the jury based upon Dr. Saer’s testimony that patients who undergo revision surgery usually suffer some “litde additional impairment as a result of the second surgery.” However, there is no indication by any witness, including Mrs. Zearley, that she might not be able to perform her job as well in the future. She testified that she had worked at a shoe store for minimum wage before the second surgery, and that, at the time of trial, she had worked continuously for three years at a pharmacy, presumably for minimum wage. In contrast to Wheeler, supra, where the defendant contended that the trial judge erred in admitting evidence of loss of earning capacity because the plaintiff failed to show with reasonable certainty that her injuries were permanent, in this case there is no evidence of any loss or diminution in Mrs. Zearley’s ability or capacity to earn in the future. Loss of earning capacity was, therefore, not an appropriate element of damages for consideration by the jury.

We hold that the trial court erroneously instructed the jury on three elements of damages: lost future earnings, loss of ability to earn in the future, and future medical expenses. Because this case was submitted to the jury on a general verdict, the appellants are not able to show that they suffered any prejudice by the giving of the erroneous instruction on damages. However, we have made it clear that prejudice will be presumed from the giving of an erroneous instruction unless some additional factor makes it clear that the erroneous instruction was harmless. Dillard Dep’t. Stores, Inc. v. Adams, 315 Ark. 303, 867 S.W.2d 442 (1993); Skinner, supra; Davis, supra. An example of a factor which renders the error harmless is where it is apparent that the jury was not misled because the jury rejected the theory advanced by the erroneous instruction. See Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997) (concluding that damages awarded included only fair market value, rendering an erroneous instruction on incidental expenses harmless). Likewise, another example is where the erroneous instruction was obviously cured by other correct instructions. See Davis, supra (holding that the failure to include an instruction on concurrent causes was cured by the submission of an instruction on comparative fault, which contemplates comparing two causes of an accident and the negligence associated with each cause, thus rendering the error harmless); Long v. Lampton, 324 Ark. 511, 922 S.W.2d 692 (1996) (ruling that an erroneous instruction requiring the plaintiffs to prove fiduciary duty was cured by testimony in which the existence of fiduciary duty was admitted, and by the giving of an additional instruction stating as a matter of law that a fiduciary duty was owed).

In the absence of some additional factor which makes it clear that the erroneous instruction was harmless, we must reverse. Dillard, supra; Davis, supra. We find nothing in this case which would make the erroneous instruction on the three elements of future damages harmless.

Reversed and remanded.

Glaze and Corbin, JJ., not participating.

       In the first appeal, we reversed the trial court’s class certification order and remanded the case to the trial court for decertification. Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995).

       On June 9, 1994, the Zearleys amended their complaint to request class certification and added American Medical International d/b/a National Park Medical Center (“AMI”) as a defendant. Zearley I, supra. After this case was remanded from the class certification appeal, the Zearleys dismissed their claims against Calcitek and AMI.

       Appellants misconstrue Zearley I when they contend that we “practically declared the informed consent conferences of all Orthoblock plaintiffs to be collateral to one another.” Our holding in Zearley I concerned the predominance of individual issues over questions common to the members of the class, and did not concern the admissibility of collateral evidence.

       We note that the appellants also mention at this point in their brief, but not as a separate point on appeal, that the trial court erred in refusing to grant a mistrial after Dr. Arthur was cross-examined about having been sued 102 times in connection with Orthoblock surgeries. The trial court denied the motion for a mistrial, but later admonished the jury not to consider that testimony. We have held that an admonition to the jury is usually considered to cure a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Kimble v. State, 331 Ark. 155, 743 S.W.2d 380 (1998).


author: Annabelle Clinton Imber, Justice. Tom Glaze, Justice,

text:
    Keith HUDSON v. The Hon. Philip PURIFOY, Judge, Chancery Court of Miller County, Arkansas
    99-32
    986 S.W.2d 870
    Supreme Court of Arkansas
    Opinion delivered March 25, 1999

      Dunn, Nutter, Morgan & Shaw, by. W. David Carter and Adam O. Fellows, for petitioner.

      Keil & Goodson, by: John C. Goodson, for respondent.
   Annabelle Clinton Imber, Justice.

The petitioner, Keith Hudson, asks this court to issue a writ of prohibition to the respondent, Judge Philip Purifoy, directing him to refrain from exercising jurisdiction in the proceeding now pending before him in the Miller County Chancery Court. We deny the petition.

On May 4, 1987, the Miller County Chancery Court of Arkansas (hereinafter “the Arkansas court”) entered a divorce decree terminating the marriage of Keith Hudson and Judy Hudson Adcock. The chancellor awarded Ms. Adcock custody of Alana Marie Hudson, the sole child born of the marriage. Soon after the divorce, Mr. Hudson moved to Oklahoma. The parties, however, dispute where Ms. Adcock has lived since the divorce was granted. Mr. Hudson claims that Ms. Adcock moved to Colorado in the early 1990’s, and that she did not return to Miller County, Arkansas until after he requested custody of their child in April of 1998. In contrast, Ms. Adcock contends that although she has maintained a second home and a business in Colorado since 1991, she has continued to reside in Miller County, Arkansas since the divorce was entered in 1987.

Although the 1987 Arkansas custody order was never legally modified, the parents agreed to allow Alana to five with her father in Oklahoma for the 1996-97 and 1997-98 school years. During this time, Alana spent part of her school vacations with her mother in Colorado. In March 1998, Mr. Hudson allowed Alana to visit Ms. Adcock and her relatives in Miller County, Arkansas for one week. Alana did not return to Mr. Hudson’s home in Oklahoma after the one-week visit, and she has continued to five in Miller County, Arkansas since March of 1998. There is a factual dispute as to whether Mr. Hudson abandoned Alana in Arkansas, or whether Ms. Adcock refused to allow the child to return to Oklahoma.

On April 8, 1998, Mr. Hudson filed in Oklahoma a petition to assume jurisdiction and a motion to modify the Arkansas divorce decree. In this pleading, Mr. Hudson asked the court to grant him custody of Alana because she had resided with him for at least six months prior to filing the petition. On the same day, the Oklahoma court entered a temporary ex parte order giving Mr. Hudson temporary custody until a hearing could be held on the merits.

On May 15, 1998, Ms. Adcock filed in the Arkansas court a motion for contempt for past due child support, a motion to increase child support, and a motion for a protective order. This was the first motion to be filed by either party in the Arkansas court since the divorce decree was entered in 1987. In her request for a protective order, Ms. Hudson advised the Arkansas court that Mr. Hudson had already begun legal proceedings in Oklahoma to remove Alana from Arkansas. The Arkansas court, however, did not contact the Oklahoma court to discuss the child-custody matters that were simultaneously pending in their respective courts as is required by Ark. Code Ann. § 9-13-206(c). Instead, on May 15, the Arkansas court issued a protective order prohibiting the removal of Alana from the court’s jurisdiction.

Meanwhile, the Oklahoma court held a hearing on Mr. Hudson’s request for custody on May 18, 1998. Mr. Hudson was present, but Ms. Adcock was not. The record contains a return of summons declaring that on April 16, 1998, a Colorado deputy sheriff served Ms. Adcock with notice of the Oklahoma proceedings. Ms. Adcock, however, contends that she did not receive notice of the Oklahoma proceedings until the day of the hearing. Because Ms. Adcock did not appear, the Oklahoma court granted Mr. Hudson’s request for custody on May 18, 1998. After securing the Oklahoma order, Mr. Hudson traveled to Arkansas and attempted to take Alana back to Oklahoma. His efforts were unsuccessful.

Accordingly, on July 29, 1998, Mr. Hudson filed in the Arkansas court an application for a writ of habeas corpus and a motion to vacate the protective order. In this pleading, Mr. Hudson alleged that he was entitled to possession of Alana pursuant to the custody order entered by the Oklahoma court on May 18, 1998. Mr. Hudson also asked the Arkansas court to vacate its protective order entered on May 15, 1998, because Alana had resided with him in Oklahoma for at least six months before the filing of the action in Arkansas, which meant that Oklahoma had become the “home state” under Arkansas’s Uniform Child Custody Jurisdiction Act, Ark. Code Ann. §§ 9-13-201 to 228 (Repl. 1998). At the conclusion of the hearing on Mr. Hudson’s motions, the court made the following findings from the bench:

We [sic] find that there is not sufficient evidence before the Court that custody was satisfactorily in place with the petitioner, Mr. Hudson, to satisfy the requirements of any Uniform Act between the states. Therefore, the application for Writ of Habeas Corpus must fail. The original custodian, Ms. Hudson, has not relinquished her custody to such an extent that . . . Oklahoma should, in fact, have jurisdiction over the custody of your child. And, therefore, the original order should prevail.

On October 30, 1998, the court entered orders denying Mr. Hudson’s application for a writ of habeas corpus and his motion to vacate the protective order. In denying the motion to vacate the protective order, the court found that it had “jurisdiction to hear child custody matters in dispute, and that there should be no abatement of proceedings in this Court.”

Currently, Mr. Hudson has filed before this court a petition for a writ of prohibition to prevent the respondent, Judge Philip Purifoy, from proceeding further in the child support and custody case filed by Ms. Adcock. Mr. Hudson contends that we should issue the writ because the respondent has exceeded his jurisdiction under Ark. Code Ann. § 9-13-206 (Repl. 1998), and he has no other remedy available. We deny the petition.

I. Issuance of a Writ of Prohibition

We have often stated that we will issue a writ of prohibition only when the trial court completely lacks or exceeds its jurisdiction, and there is no other adequate remedy by appeal or otherwise. Henderson Specialists, Inc. v. Boone County Circuit Court, 334 Ark. 111, 971 S.W.2d 234 (1998); Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998). We have also said that a writ of prohibition is inappropriate when the trial court has not resolved a factual dispute necessary to the determination of jurisdiction. Ellison v. Langston, 290 Ark. 238, 718 S.W.2d 446 (1986); Porter Foods, Inc. v. Brown, 281 Ark. 148, 661 S.W.2d 388 (1983). For example, in Steve Standridge Ins. Inc. v. Langston, 321 Ark. 331, 900 S.W.2d 955 (1995), we refused to issue a writ of prohibition where there was a factual dispute concerning the decedent’s residency; a fact necessary for the jurisdiction determination. Likewise, in Wisconsin Brick & Block Corp. v. Cole, 274 Ark. 121, 622 S.W.2d 192 (1981), we said:

Whether the “rninimum contacts” test has been satisfied is a question of fact. In cases where jurisdiction depends upon the establishment of facts, the issue of jurisdiction must be decided by the trial court, and even if that decision should be wrong, we correct that error on appeal and not on prohibition.

II. UCCfA and the PKPA

The parties in this case do not challenge the Arkansas court’s jurisdiction to enter the original divorce decree awarding Ms. Adcock custody. Hence, the sole issue is whether Arkansas or Oklahoma has jurisdiction to modify the original divorce decree entered by the Arkansas court. This is not the first time that we have dealt with conflicting jurisdiction in child-custody cases. As we have previously explained, the Uniform Child Custody Jurisdiction Act (“UCCJA”), Ark. Code Ann. §§ 9-13-201 to 228 (Repl. 1998), and the Parental Kidnapping Prevention Act (“PKPA”), 28 U.S.C.S § 1738A (1989), govern state conflicts over child-custody jurisdiction. Moore v. Richardson, 332 Ark. 255, 964 S.W.2d 377 (1998). Where the UCCJA and the PKPA conflict, the PKPA controls. Moore, supra; Garrett v. Garrett, 292 Ark. 584, 732 S.W.2d 127 (1987).

The PKPA provides that:

A court of a State may modify a determination of the custody of the same child made by a court of another State, if —
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

28 U.S.C.S. § 1738A(f). Hence, Oklahoma can modify the Arkansas divorce decree, and the child-custody order contained therein, only if Oklahoma has jurisdiction to make the child-custody determination, and Arkansas no longer has jurisdiction or has declined to exercise jurisdiction. See Perez v. Tanner, 332 Ark. 356, 965 S.W.2d 90 (1998); Moore, supra. It is clear that Oklahoma is Alana’s “home state” under the PKPA and the UCCJA. 28 U.S.C.S. § 1738A(b)(4) and (c); Ark. Code Ann. §§ 9-13-202(5) and 9-13-203 (a)(1). However, from the language of subsection 1738A(f), it is also clear that the PKPA “gives preference to the state with continuing jurisdiction.” Perez, supra.

Obviously, the Arkansas court has not declined to exercise jurisdiction in this case. Thus, we must decide if the Arkansas court, which made the original child-custody determination in 1987, has continuing jurisdiction. On this subject, the PKPA provides that:

The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.

28 U.S.C.S. § 1738A(d) (emphasis added). The PKPA does not define the term “residence.” Other jurisdictions, however, have held that the word “residence” as used in section 1738A(d) should be defined by the law of the state that entered the original custody order. See McDougald v. Jenson, 786 F.2d 1465 (11th Cir. 1986); In re Marriage of Pedowitz, 225 Cal. Rptr. 186 (Cal. Ct. App. 1986); Hines v. Shape, No. 314-1993, 1994 WL 636493 (Del. March 8, 1994); In re Marriage of Anderson, 969 P.2d 913 (Kan. Ct. App. 1998); Fortier v. Rogers, 693 N.E.2d 1058 (Mass. App. Ct. 1998). For example, in Fortier, the Massachusetts court applied Florida law to determine whether Florida remained the “residence of the child or of any contestant” as stated in section 1738A(d) of the PKPA. Fortier, supra. Because the Arkansas court entered the original custody order in this case, the trial court should apply Arkansas law when determining whether Arkansas is the still the “residence” of Ms. Adcock.

In the case before us today, there is an unresolved factual dispute as to whether Ms. Adcock, a “contestant” in this matter, has remained a “resident” of Arkansas since 1987. As previously explained, a writ of prohibition is inappropriate when the trial court has not resolved a factual dispute that is necessary to the determination of jurisdiction. See Steven Standridge Ins. Inc., supra; Ellison, supra; Porter Foods, Inc., supra; Wisconsin Brick & Block Corp., supra. Accordingly, we deny Mr. Hudson’s petition for a writ of prohibition so that the trial court may resolve the factual dispute of whether Ms. Adcock has resided in Arkansas since 1987. If either party is unsatisfied with the court’s resolution, he or she may challenge the finding on direct appeal. See Wisconsin Brick & Block Corp., supra.

Petition denied.

Glaze, Corbin, and Thornton, JJ., concur.

Tom Glaze, Justice,

concurring. The Parental Kidnaping Prevention Act (PKPA) controls the outcome of this custody case, but the PKPA was not argued or considered at the hearing before the chancellor. The issue is whether the Arkansas court, which initially awarded custody in this matter, has continuing jurisdiction or whether the Oklahoma court acquired jurisdiction to modify Arkansas’s earlier award because all parties have since moved their residences from Arkansas and Oklahoma subsequently became the home state of the parties’ child.

The majority opinion points out that the trial court did not resolve whether, under the terms of the PKPA, the child’s mother, Judy Adcock, had moved her legal residence from Arkansas, and for that reason the father’s, Keith Hudson’s, petition for writ of prohibition should be denied. While I harbor serious doubt that Adcock retained her legal residence in Arkansas to permit the Arkansas court to retain continuing jurisdiction of this custody case, I must agree that the parties and the trial court failed to develop this issue fully. Arkansas law is well settled that a writ of prohibition is inappropriate when a trial court has not resolved a factual dispute necessary to determine jurisdiction, thus, I join in the majority court’s decision to deny Hudson’s petition. I only add that the PKPA law establishes a home-state bias which is designed to provide certainty in a custody situation like the one now before us. The mere fact that an Arkansas court initially awarded custody in this case does not mean Arkansas’s jurisdiction is automatically maintained or preferred. In fact, if both parties and their child left the state to reside elsewhere, Arkansas lost jurisdiction and the child’s home-state jurisdiction, as defined in the PKPA, controls which state has jurisdiction to modify (if at all) the initial Arkansas court’s decree. The child’s home state in these circumstances appears to be Oklahoma, but because the record is not clear on this point; therefore, I agree that a writ of prohibition does not he.

Corbin and Thornton, JJ., join this concurring opinion.

       Although many of the pleadings in this case refer to Ms. Adcock as “Judy Hudson,” the record reflects that her current name is “Judy Adcock.”


author: Ray Thornton, Justice. Annabelle Clinton Imber, Justice,

text:
    SPRINGDALE WINNELSON COMPANY v. Alan RAKES and Al’s Plumbing, Inc.
    98-1275
    987 S.W.2d 690
    Supreme Court of Arkansas
    Opinion delivered March 25, 1999

      Harrington, Miller, Neihouse & Krug, P.A., by: Wayne Krug, for appellant.

      Stephen Lee Wood, P.A., by: Stephen Lee Wood, for appellees.
   Ray Thornton, Justice.

Appellant, Springdale Winnelson Company, a supply company, sought reimbursement from appellees, Alan Rakes and his company, Al’s Plumbing, Inc., for gross-receipts taxes paid on the sale of tangible personal property. The Benton County Circuit Court granted appellees’s Motion to Dismiss on the grounds that no statutory authority existed to allow Winnelson to pursue an action against Rakes for the reimbursement of uncollected sales taxes. Winnelson brings this appeal, alleging that the trial court erred in dismissing their claim, arguing that Arkansas law places the ultimate burden of gross-receipts taxes on the consumer and that the trial court erred in ruling that Winnelson must prove a good-faith effort to verify their assumption of Rakes’s tax-exempt status before recovery could be had. We affirm the trial court’s dismissal of the claim for recovery.

On September 12, 1989, Rakes completed a credit application for doing business with Springdale Winnelson Company. The application indicated by check marks that Rakes was exempt from state and local sales taxes. The application was approved, and over the coming years Winnelson sold to Rakes a substantial amount of personal property which, without a tax exemption, would qualify as taxable under the Arkansas Gross Receipts Act of 1941, codified at Ark. Code Ann. §§ 26-52-101—26-52-1507 (Repl. 1997). Winnelson filed suit on August 3, 1996, in the Benton County Circuit Court against Rakes seeking reimbursement for the tax obligation following an audit by the Department of Finance and Administration that revealed that Winnelson had made unreported taxable sales to Rakes of $882,409.36 and was responsible for unpaid taxes in the amount of $109,638.55. This audit was completed December 13, 1995, and the State’s Final Assessment and Demand for Payment was issued to Winnelson on March 21, 1996.

At a bench trial on the complaint, the parties agreed that the critical issue was whether Rakes held his company out to be tax-exempt, and whether Winnelson relied in good faith upon that claim of exemption. Alan Rakes testified that he had contact with Winnelson in January of 1990 regarding their failure to collect taxes in 1989, and he was told that the company would bill him for the unpaid taxes. It was the practice of the parties for Winnelson to bill Rakes at the end of each month for the purchases he made in connection with his construction work. These statements did not include state or local taxes on the purchases made. Winnelson did not make a demand for payment until after the 1995 audit, which was after Rakes had moved his business to another supplier.

Mr. Rakes denied claiming his business was exempt from sales taxes, either on the credit application or in any other representation. In October of 1990, Rakes received a letter from Win-nelson asking that he complete and return by October 15, 1990, a form to verify his tax-exempt status. The letter, which was sent to all of Winnelson’s customers, notified them that if they failed to do so, sales taxes would be charged on their accounts. Rakes did not complete or return the form. John Dailey, former president of Winnelson, testified that the company failed to charge Rakes taxes after the October 15, 1990, deadline because Al’s Plumbing was “a good account and we wasn’t trying to stir up any problems with him.”

At the conclusion of Winnelson’s case, Rakes moved for dismissal on the grounds that there was no statutory basis for the claim and that Winnelson had failed to establish their good-faith reliance on Rakes’s tax-exempt status, as required by Ark. Code Ann. § 26-52-519 (Repl. 1997). The trial court granted Rakes’s motion, ruling that a vendor must make a good-faith effort to determine that its customer is, in fact, exempt from sales tax on purchases, and if the vendor fails to make such a good-faith effort, then the vendor is liable for the taxes. The trial court further found that Winnelson had, or should have had, notice as of October 15, 1990, that Al’s Plumbing, Inc. (Rakes), was not exempt from sales tax, and failed to make a good-faith effort to determine the validity of the tax-exempt status extended to Rakes.

Winnelson’s two points on appeal relate to the burden of payment of gross-receipts taxes and whether a seller who is not relying in good faith on the tax-exempt status of his customer becomes liable for the taxes when the purchaser is not tax-exempt. Winnelson argues that the ultimate burden of the Arkansas Gross Receipts Act is upon Rakes as the purchaser, and that it is entided to recover from Rakes taxes unpaid at the point of sale regardless of the existence of a good-faith reliance upon the purchaser’s alleged claim of tax-exempt status.

The statute in effect at the time the present litigation was commenced provides in pertinent part:

The sales tax liability for all sales of tangible personal property is upon the seller unless, at or before, the time of sale, the seller takes in good faith a certificate of resale from the holder of a valid retailer’s permit who is regularly engaged in the established business of reselling property of the type being purchased.

Ark. Code Ann. § 26-52-517 (Repl. 1997).

We further note with interest the provisions of the emergency clause, which made this 1995 act effective from and after July 1, 1995. That emergency clause provided in pertinent part that:

[T]he purchaser in most cases will be in the best position to determine whether the resale exemption is valid but current law does not permit recourse against the purchaser if the property purchased is not in fact resold; and that the practicalities of business require that vendors be permitted to reheve themselves of tax liability upon good faith acceptance of a resale certificate and this act is designed to afford such relief.

Act 358 of 1995.

The most recent enactment on this subject, Act 391 of 1997, amends Ark. Code Ann. § 26-52-519 to read:

(a) The sales tax liability for all sales of tangible personal property or taxable services is upon the seller unless, at or before the time of sale, the seller relies in good faith on a claim by the purchaser or documentation provided by the purchaser that the purchaser is entitled to a sales tax exemption.
(b) If the seller has actual knowledge of information or circumstances indicating that it is unlikely that the purchaser is entitled to a sales tax exemption and exempts the purchase, the seller has not acted in good faith.
(c) If the seller has acted in good faith, the liability for the tax is transferred to the purchaser who shall be liable for tax, penalty and interest due on the purchase.
* * * * *
SECTION 5. Emergency. It is hereby found and determined by the General Assembly that sellers have relied to their detriment in accepting sales tax exemption claims by purchasers in good faith, only later to incur tax liability if the purchaser was not entitled to an exemption; that the purchaser is in the best position to determine whether the exemption claim is valid but current law does not permit recourse against the purchaser if the sale is not tax exempt; that sellers be allowed to reheve themselves of tax liability upon good faith acceptance of a claim that a sale is tax exempt . . .

Act 391 of 1997 (emphasis added).

The first rule in interpreting a statute is to construe it just as it reads by giving words their ordinary and usually accepted meaning. Board of Trustees v. Stodola, 328 Ark. 194, 199, 942 S.W.2d 255, 257 (1997). Our reading of the progression of the statutes on this subject indicates that the law has clearly developed that the burden of payment for uncollected sales taxes rests upon the seller. This is so because it would be impracticable and unreasonable to expect the consumer, the buying public, to know when a sales tax is owed and, if so, to whom it should be paid, and so, therefore, the burden of collecting gross sales-tax receipts has been placed on the seller. Cheney v. Fredrick, 239 Ark. 466, 468, 390 S.W.2d 121, 122 (1965)(citing Arkansas Power & Light Co. v. Roth, 193 Ark. 1015, 104 S.W.2d 207 (1937)). This is borne out by the Department of Finance and Administration’s own rules, which provide:

The Department of Finance and Administration, Revenue Division, does not issue exemption certificates. Consumers who represent to sellers that their purchases or property or services are exempt from the tax must conclusively prove their entitlement to the exemption to the seller. Even though the seller accepts the consumer’s representations that the transaction is exempt from tax, seller shall be hable for the tax if the transaction does not, in fact, qualify for an exemption. Sellers are, therefore, encouraged to obtain indemnification agreements from their customers claiming exemption.

Rule GR-74 of the Department of Finance and Administration.

Appellant contends that our decision in Arkansas Power & Light Co. v. Roth makes it clear that the purchaser bears the ultimate burden for paying the taxes. Arkansas Power & Light Co. v. Roth, 193 Ark. 1015, 104 S.W.2d 207 (1937). We note, however, that in Roth, the seller was permitted to recover from the purchaser because the seller had taken a mortgage from the purchaser to secure the payment for the electricity and the taxes. “The tax was a part of the sale price and is, therefore, a part of the debt secured by the mortgage . . .” Roth, 193 Ark. at 1019, 104 S.W. 2d at 209. Notwithstanding this contractual obligation to pay the taxes, we noted that under the Sales Tax Act then in place, Act 233 of 1935, “the retailer who fails, refuses, or neglects to collect the tax must pay it himself.” Roth, 193 Ark. at 1016, 104 S.W.2d at 208. In Roth we further stated that this imposition of liability upon the seller was accompanied by a responsibility to collect from the purchaser. “He must add the tax to the sales price, and the sum total becomes the price which the purchaser must pay.” Id.

The 1935 statute that we interpreted in Roth to allow the seller to enforce a contractual obligation to pay the taxes has since been amended, but the later enactments continue to place the obligation to collect sales tax upon the vendor, except when the vendor in good faith relies upon a purchaser’s assertion of tax-exempt status. Here, the facts of the case demonstrate that Win-nelson, for whatever reason, failed or neglected to bill for or collect the applicable taxes from Rakes at the time of the sales. Thus, Winnelson is liable for the unpaid taxes in the absence of good-faith reliance upon Rakes’s having a tax-exempt status.

The trial court ruled that Winnelson had failed to make a good-faith effort to determine whether Rakes’s business was in fact exempt from taxes, based upon its factual findings that Winnelson had or should have had notice as of October 15, 1990, that Al’s Plumbing (Rakes) was not exempt from sales taxes on its purchases from Winnelson. When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous, or clearly against the preponderance of the evidence. Jernigan v. Cash, 298 Ark. 347, 349, 767 S.W.2d 517, 519 (1989).

Based upon the evidence presented at the trial, we cannot say that the trial court’s finding that Winnelson had or should have had notice that Al’s Plumbing (Rakes) was not tax-exempt as of October 15, 1990, was clearly erroneous. Winnelson sent letters to each of its customers requesting that a form verifying their tax-exempt status be returned to them by October 15, 1990. The letter further notified the customers that if the form was not completed, their accounts would be charged sales tax. Rakes did not complete or return this form, yet Winnelson failed to start charging Rakes sales tax. In fact, Winnelson’s former president testified that Rakes was not charged sales tax after that point because he was a good customer and Winnelson did not want to create problems with him. On the basis of this testimony, it is clear that the trial court’s finding that Winnelson did not rely in good faith upon Rakes’s tax-exempt status is not clearly against the preponderance of the evidence.

We conclude that the trial court correctly found that the liability for payment of the taxes was upon the seller unless the seller relied in good faith upon a representation by the purchaser of a tax-exempt status. We further conclude that the trial court’s determination that Winnelson did not rely in good faith upon Rakes’s tax-exempt status was not clearly erroneous.

Affirmed.

Glaze and Imber, JJ. concur.

Annabelle Clinton Imber, Justice,

concurring. I join the majority in affirming the trial court’s dismissal of Springdale Winnelson Company’s claim against Alan Rakes and Al’s Plumbing, Inc., for reimbursement of gross-receipts taxes paid on the sale of tangible personal property. However, I believe our holding in this case deserves a brief caveat. In this appeal we were not asked to address, nor do we address, whether there is a statutory basis for a vendor to seek reimbursement of uncollected sales taxes from a purchaser. That issue remains for another day.

Glaze, J., joins in this concurrence.