Alexander v. Chapman, 88-63

• Decision Date: 12 June 1989
• Docket Number: No. 88-63,88-63
• Citation: 771 S.W.2d 744,299 Ark. 126
• Parties: Elsie ALEXANDER, Administratix of the Estate of John Alexander, Deceased, Appellant, v. Jerry C. CHAPMAN, M.D., and Crestview Family Clinic, Appellees.
• Court: Arkansas Supreme Court

Page 744

771 S.W.2d 744

299 Ark. 126

Elsie ALEXANDER, Administratix of the Estate of John Alexander, Deceased, Appellant, v. Jerry C. CHAPMAN, M.D., and Crestview Family Clinic, Appellees.

No. 88-63.

Supreme Court of Arkansas.

June 12, 1989.

Samuel A. Perroni, William R. Wilson, Jr., Little Rock, for appellant.

Laura J. Hensley, Calvin J. Hall, Little Rock, for appellees.

HICKMAN, Justice.

This is the second appeal in this medical malpractice case. For the second time, a jury returned a verdict for the defendant. In the first appeal, the only issue presented was whether the trial tactics used by the defense attorneys were so objectionable as to require retrial. We reversed and remanded on that basis. Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986).

At both trials, the judge used AMI 1501 to instruct the jury on a physician's duty of care; but at the second trial, the appellant objected. AMI 1501 provides that a physician must possess and, using his best judgment, apply with reasonable care the degree of skill and learning ordinarily possessed by members of his profession in good standing in the same type of practice in the same or similar locality. The appellant argued that AMI 1501 has been superseded by the burden of proof provisions of the medical malpractice act. See Ark.Code Ann. § 16-114-206(a) (1987). The act does not use the "best judgment" language found in the model instruction. Appellant claimed this language constituted a subjective standard of care and imposed an unfair hardship on medical malpractice plaintiffs.

The trial judge instructed the jury using AMI 1501 and that is the error presented in this second appeal. The same instruction was given at the first trial, and the appellant could have made an objection but did not. The medical malpractice act, which appellant now claims superseded AMI 1501, was in effect at the time of the first trial. We find the law of the case doctrine bars an attempt to raise this issue on a second appeal.

The general rule is that, where the pleadings and issues are substantially the same, all questions which were actually presented or which could have been presented in the first appeal are barred in the second appeal. See 5B C.J.S. Appeal & Error § 1825; 5 Am.Jur.2d Appeal & Error § 752. Some jurisdictions hold that only questions actually decided are barred from subsequent consideration. But Arkansas follows the general rule. We have said in a number of cases that an argument which could have been raised in the first appeal and is not made until a subsequent appeal is barred by the law of the case.

In First American National Bank of Nashville, Tennessee v. Booth, 270 Ark. 702, 606 S.W.2d 70 (1980), we affirmed a second appeal on that basis. At the initial trial, the court held that a loan made by the bank was usurious. On the first appeal, we reversed that finding and the case was remanded. The trial court then held that the bank's lien was inferior to the appellee's. The bank brought a second appeal questioning that ruling. We held the issue of lien priority could have been presented on the first appeal. In affirming, we said the following:

There is no reason why this Court could not have determined the issue had it been properly raised. Since, in the course of orderly procedure, appeals will not be allowed by piecemeal, no further relief is available.

In Woodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (1971), a car accident case, judgment was awarded against Woodward in the first trial, and he appealed. We reversed, saying there was not sufficient evidence that his negligence was the proximate cause of the accident. Woodward lost at the second trial and appealed again. One of his arguments on appeal was that it was error to give a certain jury instruction. We said the following:

Since this very same instruction was given at the initial trial over appellant's objection and not complained of upon first appeal, the law of the case again must be applied and we are precluded from considering it now for the first time.

In Moore v. Robertson, 244 Ark. 837, 427 S.W.2d 796 (1968), there were three defendants in a wrongful death case. One defendant failed to answer. Default judgment was entered against him but was later set aside. The plaintiffs appealed, saying the default judgment should have been allowed to stand. We agreed and reversed and remanded.

After a new trial, plaintiffs prevailed but appealed the amount of the verdict and the defendant cross-appealed. The defendant's argument was that the answers of the other two defendants should have operated to his benefit. We refused to consider that theory since it could have been raised on the first appeal but was not.

In St. Louis Southwestern Railway Co. v. Jackson, 246 Ark. 268, 438 S.W.2d 41 (1969), a case involving a car-train collision, the railroad appealed from a verdict against it and asserted several points of error. It unsuccessfully urged a particular theory that grandparents of the decedent should not recover for mental anguish. This case was reversed on other grounds. On retrial, the verdict was against the railroad. In its second appeal, it propounded a new theory for its argument that the grandparents should not recover mental anguish damages. We held that the law of the case barred consideration of that argument:

We would be less than honest if we did not agree with the appellant that the law of the case doctrine is a harsh rule, but when weighed on a scale of justice we find that the confusion and uncertainty which would result without use of the doctrine outweighs the harshness.

In a concurring opinion, Justice George Rose Smith addressed the contention raised in a dissenting opinion that the new theory could not have been raised in the first appeal because it had not been presented at the first trial. Justice Smith observed that the matter could have been brought to this court's attention as an issue that could arise on retrial:

When we are affirming a case we customarily reject arguments that are vulnerable to technical procedural defects, such as a failure to make the proper objection in the trial court, a failure to include in the motion for a new trial an objection in a criminal case, a failure by the trial judge to give a requested instruction that was imperfectly drawn, a failure to save an exception in a criminal case, and a host of other procedural defects that must ordinarily be given effect in the orderly conduct of litigation.

When, however, we have already found reversible error and are remanding the case for a new trial, the situation is wholly different--quite as much so as night from day. It is then our practice--and rightly so--to consider on its merits any contention that may arise again when the case is retried, regardless of procedural defects that would otherwise compel us to reject the contention. The only requirement is that the point be brought to our attention in the briefs....

. . . . .

Our practice is demonstrably right. It involves no unfairness either to the trial court or to the losing party, because the case is going back for a new trial in any event. Hence what we try to do is to prevent still a third trial as a result of some error that is called to our attention upon the first appeal. The view of the dissenting opinion, on the other hand, would encourage such unnecessary third trials by requiring us to reject, on procedural grounds, contentions that ought to be disposed of on their merits upon the first appeal.

We have the same situation in this case. Could the same objection to AMI 1501 have been made at the first trial? Yes. The same law was in effect and the same instruction was given. During oral argument, the appellant stated that, at the first trial, the judge was going to give her proffered instruction instead of AMI 1501. But when the appellee objected, the appellant decided not to press the issue. She withdrew her proffered instruction and allowed AMI 1501 to be given without objection. She was, therefore, precluded from challenging the instruction in the second trial.

It makes no difference that the appellant did not object to the instruction at the first trial. St. Louis Southwestern Railway v. Jackson, supra. See also Norris v. Bristow, 361 Mo. 691, 236 S.W.2d 316 (1951); 75 Am.Jur.2d Trial § 927. It also makes no difference that the trial court's decision to overrule the appellant's objection was not based on the law of the case doctrine. We will affirm the court's ruling if it is correct for any reason. Sanders v. Newman Drilling Co., 273 Ark. 416, 619 S.W.2d 674 (1981). See also 5 C.J.S. Appeal and Error § 1464(6). The appellee was not bound to present to the trial court every conceivable reason for overruling the appellant's objection. So even if we were to say it was error to give the instruction, we would not reverse. The appellant's objection was correctly overruled because of the law of the case doctrine.

Finally, we point out that our reliance on the law of the case doctrine does not conflict with the general proposition that when a case is reversed and remanded for a new trial, all of the issues are opened anew. Overton Constr. Co. v. First State Bank, 285 Ark. 361, 688 S.W.2d 268 (1985); Sanders v. Walden, 214 Ark. 523, 217 S.W.2d 357 (1949). In cases in which there is a broad remand, we allow a party to amend its pleadings as necessary. Here, there was no amendment of pleadings. The law of the case doctrine prevents consideration of an argument that could have been made at the first trial.

The appellant also asks us to award costs of $1,336.10 to her for additional parts of the record designated by the appellees. The portions included by the appellees and paid for by the appellant were unnecessary to the consideration of the issues in this case. Costs are awarded to the appellant as requested.

Affirmed.

PURTLE, J., not participating.

HOLT, C.J., and GLAZE, J., and ROBERT M. FORD, Special...