author: SOUTHWICK, Presiding Judge,

text:
    Allen Gray SHEELY, Sr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01121-COA.
    Court of Appeals of Mississippi.
    Aug. 20, 2002.
    Rehearing Denied Oct. 29, 2002.
    Certiorari Denied Jan. 30, 2003.

      Mack A. Bethea, Gulfport, for Appellant.
    Office of the Attorney General by John R. Henry, Jr., Booneville, for Appellee.
    Before SOUTHWICK, P.J., LEE, and MYERS, JJ.
   SOUTHWICK, Presiding Judge,

for the court.

¶ 1. Allen Gray Sheely was found guilty of touching a child for lustful purpose by a Harrison County Circuit Court jury. Sheely appeals arguing that the evidence was inadequate, that his rights against self incrimination were violated, that the trial court allowed an improper jury instruction, and that the lower court refused to grant a necessary instruction. We find no error and affirm.

STATEMENT OF FACTS

¶ 2. Because of the nature of the crime charged, we will not refer to the victim by name. The precise date of the assault is unknown. The victim came forward in June 1998, when the then ten-year old girl was living with her parents in a Gulfport, Mississippi apartment complex. The child testified at trial that she had been playing in the parking lot when she noticed Gulf-port Police Officer, Barry Touart, park and exit his marked police car. The girl knew that Officer Touart lived in the apartment complex. She testified that she trusted him and therefore went to speak to him.

¶ 3. Officer Touart testified that he had just gotten off shift and parked his vehicle when the young girl approached. She confided in him about an incident that occurred with Sheely. Upon hearing the nature of the allegation, Officer Touart immediately took the girl to his apartment and contacted his supervisor. It appears that at least five weeks elapsed between the date the incident occurred and when the girl reported it to Officer Touart.

¶ 4. Kevin Jackson, a detective for the Gulfport Police Department, was dispatched to the girl’s apartment. The girl, her parents and several other children were present when he arrived. After obtaining some initial information, Detective Jackson conducted a more thorough interview at the police station. During the interview the girl disclosed that Sheely, who was a friend of the family, had exposed himself to her at his residence and asked her to play with his penis. The girl refused. Sheely masturbated until he ejaculated and then “rubbed himself against her and asked her to give him a bath.” She only participated in washing his back. She never went to visit Sheely again.

¶ 5. Sheely was arrested and later indicted for the felony of unlawful touching of a child.

¶ 6. At trial, Sheely’s defense consisted of his testimony and that of a urologist, Dr. Thad C. Carter. Carter at the time of this incident was treating Sheely for con-dyloma, better known as venereal warts. Dr. Carter testified that Sheely’s condition was characterized by large lesions and mushroom-like masses in his groin area, specifically around his scrotum. Dr. Carter testified that these lesions were surgically removed on June 12th or 13th, and in his medical opinion it would have been impossible for Sheely to perform the acts that the girl alleged. Approximately nine days after his arrest, Sheely made his initial complaint to Dr. Carter that he was having problems with impotency.

¶ 7. Sheely was found guilty and sentenced to ten years in the custody of the Mississippi Department of Corrections as a sex offender. This is Sheely’s appeal.

DISCUSSION

I. Self-Incrimination

¶ 8. Sheely chose to testify at trial. He complains that the State improperly asked him about matters that he did not mention to the police when he was initially confronted with the girl’s allegations against him. Specifically, Sheely objected to the State’s inquiry into why someone who was arrested for a sex crime never mentioned that he was impotent. The State in part argues that the broad scope of cross-examination permits the questioning. We agree with Sheely that this is not really the issue. The point is whether Sheely’s right not to incriminate himself when confronted by the police at the time of his arrest was undermined by the State’s subsequent use of that silence.

¶ 9. The Mississippi Supreme Court has found that a prosecutors’s repeated reference to a defendant’s post-arrest silence, after he had received warnings that he need not answer questions, violated due process. Caston v. State, 1999-KA-01985-SCT (¶ 97), 2002 WL 1038749 (Miss. May 23, 2002), citing Johnson v. State, 596 So.2d 865 (Miss.1992). The rule expressed in such cases is that once a suspect has been given the warnings required in Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), then using the exercise of the right to be silent as a club against the accused at trial undermines the right not to incriminate oneself. Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). A different rule would mean that a new warning would need to be given a person in custody to the effect that “anything you do not say in your own behalf can and will be used against you.”

¶ 10. The problem with Sheely’s receiving the benefit of the Doyle rule is that he did not exercise his right to remain silent when questioned at the time of arrest. Sheely testified that when he was arrested, he told the officer that his accuser was a bothersome little girl who would often beg for sweets, and that he had just had surgery. Thus we find no infringement on the right of someone who is being subjected to custodial interrogation to remain silent. Instead, we find a jury issue as to the significance of what Sheely said or did not say when arrested. An accused does not have a constitutional right to have his first version of why he is innocent not be used against him.

II. Jury Instructions

¶ 11. The following instruction, S-2, is challenged on appeal:

The Court instructs the Jury that voluntary intoxication is not a defense to a criminal act and therefore, if you believe from the evidence in this case beyond a reasonable doubt that the defendant was intoxicated at the time of the crime, and that this intoxication was voluntary on his part and if you further find beyond a reasonable doubt that the defendant committed the acts charged herein, then you are hereby instructed that intoxication is no defense to said acts and you shall find the defendant Guilty as charged.

¶ 12. Sheely argues that the instruction was inappropriate because intoxication was not offered as a defense to the accusations. A jury instruction should be denied if it misstates the law, is not supported by the evidence, or is stated elsewhere in the instructions. Murphy v. State, 566 So.2d 1201, 1206 (Miss.1990). Sheely claims that there was no evidence in the record that would support such an instruction. But there was.

¶ 13. The victim testified that, at the time of the incident, Sheely had an excessive amount to drink. Although this testimony was uncorroborated, it was properly placed in evidence. Whether Sheely confirmed intoxication or not, there was evidence that could cause jurors to believe that he committed the crime while intoxicated. Therefore the instruction was relevant.

¶ 14. The next instruction, D-6, was denied:

The Court instructs the jury that [the victim] is a child who was ten years of age at the time of the alleged offense. In examining the testimony of [this girl], you should take into consideration the following: (a) the youthfulness of the witness; (b) the capacity and ability to observe events and to recollect and communicate those events; and (c) the capacity and ability to understand questions and to frame and make intelligent answers.

¶ 15. Jury Instruction D-12 was also denied:

The Court instructs the jury that with respect to the testimony of a child, the testimony should be viewed in the light of the child’s age and understanding, the capacity to understand sufficiently, or remember correctly the events to which the witness testified.

¶ 16. It is improper for an instruction to try to shape in this way the jury’s evaluation of a young witness’s testimony. Sheely admits that the existing case law in our jurisdiction does not support his proposed jury instructions. Goodnite v. State, 799 So.2d 64 (Miss.2001). However, Sheely argues that this is fundamentally unfair.

¶ 17. Sheely cites no authority, but considering that his argument is that all existing authority is wrong and should now be changed, the absence of authority is to be expected and is not fatal. However, we find no logic to the argument. The weight and credibility of a witness’s testimony is not easily reduced to a formula such as Sheely proposes. The court’s initial instruction stated that jurors were to use their common sense and honest judgment in weighing the testimony of every witness. To single out one particular version of what common sense might require, and apply it to one particular witness, can skew deliberations.

¶ 18. There are a few categories of witnesses where this is allowed. One example is accomplices. Burke v. State, 576 So.2d 1239, 1242 (Miss.1991) (such testimony should be weighed with great caution). We find no reason for a special rule to be created for young witnesses. The common sense manner in which the testimony of a young witness should be viewed is within the understanding of jurors and need not be the subject of an instruction.

III. Weight & Sufficiency of the Evidence

¶ 19. Sheely attacks the sufficiency of the evidence. On appeal, we examine all the evidence introduced at trial. We make that examination in the light favorable to the State, accepting the credible evidence that is consistent with guilt, and making reasonable inferences from the evidence that are consistent with the verdict. Only if after so examining the evidence we become convinced that no reasonable juror could have found guilt beyond a reasonable doubt are we to reverse. McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 20. The young victim testified that Sheely exposed himself to her and asked her to play with his genitals. She testified that Sheely “got on me and finished it and rubbed it against me.” The victim gave a vivid description of Sheely genitalia and the fact that he had lesions in this area. This information was corroborated by the defense’s own witness, Dr. Carter, who testified that Sheely suffered from venereal warts in the area that the girl had described and that these lesions were surgically removed around the time of this incident. The victim was not able to say precisely when she was assaulted. Sheely sought to explain the girl’s knowledge of the male anatomy by establishing that previously someone had made her watch pornography. That may not have been especially exculpatory since the girl knew of Sheely’s anatomy, warts and all.

¶ 21. Other testimony that Sheely argues should have required acquittal came from Dr. Carter. He testified that Sheely was physically incapable of performing the acts of which he was accused. On cross-examination Dr. Carter admitted that he had no objective basis for his opinion. Instead, he had relied on what Sheely had told him. The testimony was also undermined by the fact that Dr. Carter initially saw Sheely on June 6, 1998, and then later in the same month. However it was not until July 1, 1998, that Sheely complained about being impotent. That last date is relevant since it was nine days after he was arrested for this crime.

¶ 22. We agree with Sheely that the victim’s explanations of what he was wearing when the incident took place were inconsistent. The jurors well could have decided that the discrepancies were based on faulty memory or the stress of the trial and did not arise from fabrication.

¶ 23. Sheely also argues that the overwhelming weight of the evidence was contrary to the verdict.

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.

Cross v. State, 759 So.2d 354, 356 (Miss.1999).

¶ 24. The victim testified to what transpired. She was not significantly impeached or otherwise discredited. That is enough. Collier v. State, 711 So.2d 458, 462 (Miss.1998).

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF TOUCHING A CHILD FOR LUSTFUL PURPOSES AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND ADJUDICATION AS A SEX OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.


source: Caselaw Access Project

author: SEE, Justice. JOHNSTONE, Justice

license: Public Domain

text:
    LINCOLN LOG HOME ENTERPRISES, INC. v. Tony AUTREY.
    1000787.
    Supreme Court of Alabama.
    Feb. 15, 2002.
    Rehearing Denied May 10, 2002.

      William F. Patty and Daniel 0. Rodgers of Beers, Anderson, Jackson, Hughes & Patty, P.C., Montgomery, for appellant.
    Gaines C. McCorquodale of McCorquo-dale & McCorquodale, Jackson, for appel-lee.
   SEE, Justice.

Tony Autrey contracted with Lincoln Log Homes of the South (“Lincoln”) to build a log house for Autrey. Lincoln purchases log-home kits from Lincoln Log Home Enterprises, Inc. (“Enterprises”), a North Carolina company, and then hires a contractor to construct the log house on the customer’s land and in accordance with Enterprises’ instruction manuals. The kits include the logs for the house and the blueprints — in this case, the blueprints were customized for Autrey’s house. Lincoln’s owners had attended a training seminar conducted by Enterprises at which they were taught how to market and build Lincoln Log houses.

Once construction of Autrey’s house began, he had problems with the quality of the construction. The foundation was not level; that caused other problems, including doors and windows that did not fit properly, poorly installed plasterboard and poorly finished walls, and inferior wiring. Before the house was completed, Autrey had the house inspected; the inspectors pronounced it substandard, and Autrey ordered Lincoln to stop work on the house.

Autrey had made a partial payment on the house prior to the inspection. When he refused to pay the balance of the contract price, Lincoln sued, alleging breach of contract and conversion. Autrey counterclaimed against both Lincoln and Enterprises, alleging breach of contract, breach of implied warranty, negligence, and fraud. The case went to a jury, which found against Lincoln and Enterprises on all counts and awarded Autrey compensatory damages of $505,000 and punitive damages of $600,000. The trial court issued a judgment on the jury verdict and Enterprises alone appeals.

Enterprises argues (1) that the trial court erred in denying its motion for a judgment as a matter of law (“JML”) and in submitting Autrey’s claims to the jury, (2) that the trial court erred in allowing Autrey to call certain expert witnesses who were not properly disclosed to Enterprises during discovery, (3) that the jury-verdict forms were fatally defective in that they failed to differentiate between compensatory damages and punitive damages, and (4) that the awards of compensatory damages and punitive damages are inappropriate and excessive. Because we hold that the trial court erred in denying Enterprises’ motion for a JML and in submitting Autrey’s claims to the jury, we do not reach the other issues.

“ ‘The standard of review applicable to [the denial of a motion for a JML] is whether the nonmoving party has presented substantial evidence in support of his position.’ K.S. v. Carr, 618 So.2d 707, 713 (Ala.1993). ‘Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). We have held:
“ ‘Upon review of a motion for a [JML], evidence must be viewed in the light most favorable to the non-moving party, and if reasonable inferences in favor of the plaintiffs claim can be drawn from the evidence, the motion múst be denied. Zaharavich v. Clingerman, 529 So.2d 978, 980 (Ala.1988).’ ”

Fleetwood Enters., Inc. v. Hutcheson, 791 So.2d 920, 923 (Ala.2000). The trial court’s denial of Enterprises’ motion for a JML must therefore be considered in the light most favorable to Autrey; if he presented substantial evidence supporting his claims against Enterprises, that is, “evidence of such weight and quality that fair-minded persons” could reach a verdict in his favor, then we must affirm the denial of Enterprises’ motion for a JML.

Enterprises claims that its motion for a JML should have been granted because, it argues, Autrey did not present substantial evidence of an agency relationship between Enterprises and Lincoln.

“Proof of an agency relationship ..., rather than an independent-contractor relationship, is critical to [Autrey’s] action, because it is a ‘well-settled rule that a principal is not ordinarily liable for the torts of its independent contractor.’ Joseph Land & Co. v. Gresham, 603 So.2d 923, 926 (Ala.1992) (citing Fuller v. Tractor & Equip. Co., 545 So.2d 757 (Ala.1989); Butler [v. Aetna Fin. Co., 587 So.2d 308 (Ala.1991)])....
“Furthermore, ‘when a defendant’s liability is based on the theory of agency, agency may not be presumed, and ... to [support a finding of liability] the plaintiff must present substantial evidence of an agency relationship. Carlton v. Alabama Dairy Queen, Inc., 529 So.2d 921 (Ala.1988).’ Battles v. Ford Motor Credit Co., 597 So.2d 688, 689 (Ala.1992). The party asserting the existence of an agency relationship ‘ “has the burden of adducing sufficient evidence to prove its existence.” ’ Mardis v. Ford Motor Credit Co., 642 So.2d 701, 704 (Ala.1994) (quoting Wood v. Shell Oil Co., 495 So.2d 1034 (Ala.1986)).”

Ex parte Wild Wild West Social Club, Inc., 806 So.2d 1235 (Ala.2001).

“The test to be applied in determining the existence of an agency relationship under the doctrine of respondeat superi- or is whether the alleged principal reserved a right of control over the manner of the alleged agent’s performance. Williams v. Tennessee River Pulp & Paper Co., 442 So.2d 20 (Ala.1983).”

Wood v. Shell Oil Co., 495 So.2d 1034, 1036 (Ala.1986).

Evidence presented at trial indicated that Enterprises grants distributorships to sell its products. Mike Kennedy, one of Lincoln’s owners, testified at trial that Enterprises had granted Lincoln a marketing area that consisted of 17 counties in Alabama and 4 counties in Mississippi. Kennedy also testified that at conferences Enterprises conducts in North Carolina, Enterprises trains its distributors to market and to build Lincoln Log houses, and that Enterprises furnishes a construction manual for its distributors to use.

Evidence at trial also indicated that Au-trey had ordered a special customized house- plan for his Lincoln Log house. Au-trey’s exhibit A, submitted at trial, was the three-page sales-order contract for Au-trey’s house. This sales order had the Lincoln Log Homes of the South logo at the top and included as the first item on the order form “1 custom ‘Stoneybrook’ w/flat interior walls on pier foundation system as submitted and drafted by Lincoln Log Home Interprises [sic], Inc.” The sales-order contract contained a list of special features to be included in the custom house. Kennedy testified that Enterprises had drafted special blueprints for Autrey’s house. After the blueprints were finalized, Enterprises assembled a kit for the house. The kit consisted of logs cut for the house and the specialized blueprints. Enterprises then shipped that kit to Lincoln.

Autrey presented no evidence indicating that Enterprises maintained any control over the manner in which Lincoln constructed the log house for Autrey. Enterprises’ relationship with Lincoln appears from the evidence to have extended only to receiving orders for the log-house kits, drawing up blueprints and assembling the kits, then shipping those kits to its distributors. Enterprises does not oversee the construction of the log house, approve the contractors or subcontractors hired by the distributors to build the houses, or inspect or approve the completed houses. The evidence did not indicate that there was any contact between Enterprises and Lincoln regarding Autrey’s house after Enterprises delivered the kit to Lincoln. Moreover, Autrey does not argue that the plans or any of the materials included in the kit were defective; instead, he argues that the method and manner of the construction of the house were defective from the foundation upward. That work was controlled by Lincoln, with no involvement with, or control by, Enterprises.

Because Autrey has not presented substantial evidence that Lincoln constructed Autrey’s log house as Enterprises’ agent, fair-minded persons could not reasonably infer the existence of an agency relationship extending to the construction of the log-kit houses. Therefore, Enterprises’ motion for a JML on the ground that it had no agency relationship with Lincoln should have been granted. For that reason, we reverse the trial court’s judgment and remand the case.

REVERSED AND REMANDED.

HOUSTON, LYONS, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., dissents.

JOHNSTONE, Justice

(concurring).

I concur. I note that, while Autrey pleaded a claim of implied warranty of “fitness and habitability” against Enterprises, the trial judge did not submit that claim to the jury, and the parties do not argue any implied-warranty issue to us.

      . Lincoln and Enterprises were represented by the same counsel at trial. Enterprises is represented by different counsel on appeal.


author: WOODALL, Justice. HOUSTON, Justice

text:
    VINSON GUARD SERVICE, INC. v. RETIREMENT SYSTEMS OF ALABAMA.
    1001561.
    Supreme Court of Alabama.
    Feb. 22, 2002.
    Rehearing Denied May 24, 2002.

      Gregory C. Buffalow and W. Kyle Morris of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for appellant.
    William F. Kelley, Jr., general counsel, Retirement Systems of Alabama, for ap-pellee.
   WOODALL, Justice.

Vinson Guard Service, Inc. (“Vinson”), appeals from a judgment entered in favor of the Retirement Systems of Alabama (“RSA”), in Vinson’s action alleging violations of the Competitive Bid Law. We affirm.

This dispute began in February 2001, when RSA posted “Invitation to Bid No. 00-012,” seeking bids for “Security Guard Services” (“the invitation”). The invitation solicited bids for the provision of security services at properties owned by RSA. These properties were described on a form styled “Schedule A,” which was attached to the invitation. Schedule A included blanks, requesting from the bidders a separate bid for “monthly hours,” a “monthly charge,” and an “annual charge by facility,” for each property or location listed on the schedule. Additionally, Schedule A included a blank requesting a bid for the “total annual charge for all facilities.” Although it illustrated guard schedules for each location for which RSA required security services, Schedule A did not contain the total annual hours for which security services were to be provided.

Five candidates responded to the invitation: (1) Vinson, (2) Murray Guard, Inc. (“Murray”), (3) Burns International Security Services, (4) Montgomery Security Service, and (5) Don Terry and Associates. None of the candidates calculated the same number of total annual hours.

After an initial examination of the bids, RSA notified Murray that it would be awarded the contract. However, after Vinson requested a review of RSA’s decision and objected to the proposed award, RSA suspended its decision to award the contract to Murray. Subsequently, RSA proposed to reject all the bids and to rebid the contract, on the ground that the invitation contained “multiple errors” and “bad information.”

Consequently, Vinson filed a “Complaint for Declaratory and Injunctive Relief’ against RSA. The complaint alleged that Vinson was the “lowest responsible bidder in compliance with the complete terms and specifications of the [invitation], so that the contract should be awarded to [it].” Vinson sought a judgment enjoining RSA from rebidding the contract, declaring Vinson the winning bidder, and compelling RSA to award the contract to Vinson.

On May 4, 2001, the trial court entered a judgment denying Vinson’s requested relief. Specifically, the order stated:

“Defendant, Retirement Systems of Alabama (‘RSA’), has contended that there was a mistake in the calculation of the required number of hours of guard service required by the invitation for bids. Plaintiff, Vinson, contends that it was the responsible low bidder, and that the putative low bidder, by approximately l<t per hour, [Murray] should be disqualified for failure to comply fully with the bid instructions. While the court finds that the lowest responsible bidder with a complete bid package was Vinson, the court does not find existing Alabama statutory authority, or other precedent, which would empower the court to make an affirmative award of the contract to Vinson.
“The alternative request is HEREBY DENIED that RSA should be enjoined from rebidding the contract.”

In other words, the trial court refused to compel RSA to award the contract to Vinson and refused to enjoin RSA from rebidding the contract. From that judgment, Vinson appealed.

On appeal, Vinson contends that the trial court correctly held that it was the lowest responsible bidder and that it erred, therefore, in refusing to compel RSA to award it the security-services contract. As a corollary to that argument, it argues that the trial court erred in refusing to enjoin RSA from rebidding the contract. According to RSA, on the other hand, the trial court correctly concluded that it had no authority under the Alabama Competitive Bid Law, Ala.Code 1975, § 41-16-20 et seq., to compel it to award the contract to Vinson.

Both parties cite Ala.Code 1975, § 41-16-31, which provides:

“Any taxpayer of the area within the jurisdiction of the awarding authority and any bona fide unsuccessful bidder on a particular contract shall be empowered to bring a civil action in the appropriate court to enjoin execution of any contract entered into in violation of the provisions of this article.”

See also Ala.Code 1975, § 41-16-61, applicable to “competitive bidding on contracts of certain state and local agencies,” which provides:

“Any taxpayer of the area within the jurisdiction of the awarding authority and any bona fide unsuccessful bidder on a particular contract shall be empowered to bring a civil action in the appropriate court to enjoin execution of any contract entered into in violation of the provisions of this article.”

Vinson states: “[I]t is clear that the court could properly enjoin any award by RSA to bidders other than Vinson which [was] not in compliance with the invitation to bid or who should have been otherwise disqualified.” Vinson’s Brief, at 16 (emphasis added). “While RSA argue[s] ... that the court lacked power to award a contract ..., it is clear that the injunctive power is broad enough to cover both mandatory and prohibitory relief, i.e., to preclude [an] award to bidders other than Vinson, and preclude rebidding where ... Vinson was the lowest responsible bidder.” Vinson’s Brief, at 16 (emphasis in original). The dispositive issue is whether the Competitive Bid Law authorizes mandatory relief, namely, an order compelling a state agency to award a contract to a certain bidder. If it does not, then, corollarily, the court cannot enjoin the agency from rebidding the contract.

In considering this issue, we do not write on a clean slate. This Court has often addressed the scope of the remedy available under both § 41-16-31 and § 41-16-61. As a threshold matter, this Court has noted that the language of these sections is “unambiguous”; consequently, “ ‘there is no room for construction.’ ” City of Montgomery v. Brendle Fire Equipment, Inc., 291 Ala. 216, 220, 279 So.2d 480, 484 (1973) (quoting Alabama Industrial Bank v. State, 286 Ala. 59, 63, 237 So.2d 108, 111 (1970)).

The remedy provided by the Competitive Bid Law is a “limited one.” Crest Constr. Corp. v. Shelby County Bd. of Educ., 612 So.2d 425, 432 (Ala.1992). “[W]hen letting contracts covered by the Competitive Bid Law, public agencies have discretion to determine who is the lowest responsible bidder.” Crest, 612 So.2d at 429. “Courts will not interfere with that discretion ‘unless it is exercised arbitrarily or capriciously, or unless it is based upon a misconception of the law or upon ignorance through lack of inquiry or in violation of law or is the result of improper influence.’ ” Id. (quoting White v. McDonald Ford Tractor Co., 287 Ala. 77, 86, 248 So.2d 121, 129 (1971)).

“ ‘The provision for letting the contract to the lowest responsible bidder is for the benefit of the public and does not confer on a bidder any right enforceable at law or in equity ....’” Tectonics, Inc. v. Castle Constr. Co., 496 So.2d 704, 705-06 (Ala.1986) (quoting Townsend v. McCall, 262 Ala. 554, 558, 80 So.2d 262, 265 (1955)) (emphasis added in Tectonics). An unsuccessful bidder may not sue for monetary damages, Jenkins, Weber & Assocs. v. Hewitt, 565 So.2d 616, 617 (Ala.1990); or “recover bid preparation expenses.” Crest Constr. Corp., 612 So.2d at 431-32. More to the point, an unsuccessful bidder has no “ ‘right or expectancy to insist upon the award of a contract.’ ” Jenkins, Weber & Assocs., 565 So.2d at 618 (quoting with approval Urban Sanitation Corp. v. City of Pell City, 662 F.Supp. 1041, 1044 (N.D.Ala.1986) (emphasis added)).

These cases answer the first question presented by Vinson — whether Vinson is entitled to a mandatory injunction in the negative. In other words, the Alabama Competitive Bid Law does not authorize an order compelling RSA to award Vinson the contract.

Wallace v. Board of Education of Montgomery County, 280 Ala. 635, 197 So.2d 428 (1967), cited by Vinson, is not to the contrary. In that case, the trial court enjoined the letting of a contract, the substantive provisions of which violated the Competitive Bid Law. 280 Ala. at 638, 197 So.2d at 431. Thus, the power exercised by the trial court in Wallace—and affirmed by this Court—was of the sort expressly contemplated by § 41-16-31 and § 41-16-61, and traditionally exercised by this Court in applying the Competitive Bid Law. Wallace is no authority for the relief Vinson seeks: an order mandating the letting of a contract to a specific bidder.

Vinson insists, however, that the judiciary has “free-standing” injunctive power, that is, outside the statutes. More specifically, it contends that “[t]he power to enjoin, with both prohibitive and mandatory relief, existed in Alabama courts without the statute[s], which w[ere] specific to [the] Alabama Competitive Bid [L]aws.” Reply Brief, at 4. It argues that the judiciary’s broad, general equity powers include both prohibitive and mandatory relief. Vinson insists, in other words, that relief under general equity principles is broader than that afforded by the statutes.

The difficulty in adopting such an approach is, of course, that the exception would swallow the rule, rendering the statutes superfluous. The rule we apply, as distilled from our cases, is consistent with the healthy deference we afford governmental agencies in their determinations as to who is the “lowest responsible bidder.” The trial court did not err in refusing to compel RSA to award the contract to Vinson.

From this conclusion, it follows that Vinson was not entitled to an injunction prohibiting RSA from rebidding. This is so, because, logically, if RSA cannot be compelled to award the contract to Vinson — -or to any of the other entities responding to the invitation — then RSA may have no alternative but to rebid the contract. Indeed, this result is consistent with the principle recited in our cases that the statutes do “not contemplate enjoining future contractual arrangements.” Brendle Fire Equipment, Inc., 291 Ala. at 220, 279 So.2d at 484 (emphasis added); Spring Hill Lighting & Supply Co. v. Square D Co., 662 So.2d 1141, 1146 (Ala.1995); Jenkins, Weber & Assocs., 565 So.2d at 617.

Vinson, nevertheless, suggests that allowing RSA to rebid the contract creates a potential for abuse, such as successive rebids “designed to reward favorite-son candidates.” Reply Brief, at 4. It argues that it is “entitled to the award in order to protect the public interest against such arbitrary or ad hoc practices.” Id.

We are not here presented with a case involving successive rebids, and the trial court made no finding that RSA’s rebid proposal was arbitrary or capricious. As justification for its decision to rebid, RSA cites the errors contained in its invitation. For example, Schedule A not only failed to set forth the total annual hours for which security was to be provided, but RSA had miscalculated on Schedule A the weekend hours it required security services at some of the facilities. Specifically, in relation to four of the facilities, Schedule A computed the hours from 6:00 p.m. Friday through 6:00 a.m. Monday as 48 consecutive hours. That calculation is incorrect, and William Douglass, “RSA director of office services,” testified in the trial court that, “[i]f anyone relied on that [calculation in forming a bid], they would have been mistaken.”

Moreover, because RSA failed to provide bidders with a total of annual hours, none of the candidates bid on the same number of total hours. None of the bidders arrived at the same total number of hours as did RSA. According to RSA, “everybody had miscalculated the hours.” Douglass testified that, because of the errors in the invitation, the “only fair thing to do is to rebid.”

Under these circumstances, we need not consider whether there might be a judicially created remedy for arbitrary, successive bids apparently “designed to reward favorite-son candidates.” Under the facts of this case, any expansion of remedies under the Competitive Bid Law must proceed from the Legislature, not from this Court.

In summary, the trial court correctly refused to compel RSA to award the contract to Vinson, and it correctly declined to enjoin RSA from rebidding the contract. Consequently, the judgment of the trial court is affirmed.

AFFIRMED.

LYONS and JOHNSTONE, JJ., concur.

MOORE, C.J., and HOUSTON, J., concur in the result.

HOUSTON, Justice

(concurring in the result).

The trial court correctly held that under the Alabama Competitive Bid Law, specifically under Ala.Code 1975, § 41-16-31, Vinson Guard Service, Inc. (“Vinson”), lacked standing to seek to be awarded the contract for security guard services put out for bids by the Retirement Systems of Alabama (“RSA”) and to challenge RSA’s decision to rebid that contract. This is so even if Vinson was the low bidder, which Vinson contends it was (a contention RSA disputes). This Court need not decide who was the low bidder; that fact is irrelevant in this action — an action that Vinson had no standing to bring.

      . The Competitive Bid Law, Ala.Code 1975, § 41-16-20 et seq., mandates that contracts awarded "through competitive bidding" be awarded to the "lowest responsible bidder.” § 41-16-27(a) (emphasis added).

      . Murray was never a party to this action and is not involved in this appeal.

      . These two sections "contain[] identical language," differing only as to the specific portions of the Competitive Bid Law to which they apply. Crest Constr. Corp. v. Shelby County Bd. of Educ., 612 So.2d 425, 432 (Ala.1992). Therefore, "[t]he legislature obviously intended these two sections to have the same meaning.” Id.

      . Because our cases have spoken to this issue, we decline Vinson's invitation to consider cases from other jurisdictions construing their respective competitive bid laws.

      . To be sure, the trial court’s injunction in Wallace was mandatory in some respects. However, this Court expressly refused to address those aspects of the injunction, stating: “Whether the mandatory provisions of the decree, if considered separately from the prohibitory provisions, might be erroneous is not presented and, therefore, is not decided.” 280 Ala. at 639-40, 197 So.2d at 432.

        . General Electric Co. v. City of Mobile, 585 So.2d 1311 (Ala.1991), another case cited by Vinson, involved the same species of relief as that involved in Wallace. Indeed, Vinson concedes that it is confronted by a "scarcity of favorable Alabama cases.” Vinson’s Brief, at 20 (emphasis added).