# American Sheet Metal Works, Inc. v. Con-Ark Builders, Inc. > Supreme Court of Arkansas · June 21, 1982 · 276 Ark. 366 URL: https://www.frixlaw.com/law-library/cases/7822092 ## Case - **Full name:** AMERICAN SHEET METAL WORKS, INC. v. CON-ARK BUILDERS, INC. - **Court:** Supreme Court of Arkansas - **Decided:** June 21, 1982 - **Citations:** 276 Ark. 366; 635 S.W.2d 241; 1982 Ark. LEXIS 1428 - **Precedential status:** Published - **Opinion:** Dissent by Hays - **Judges:** Hays, Hickman, Holt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7822092 ## Opinion text Steele Hays, Justice, dissenting. I thoroughly disagree with the decision to affirm. I believe the question of whether American Sheet Metal Works was “licensed and qualified” is one of fact and the trial court erred in taking the case from the jury at the close of the evidence. The majority agree with the trial court that the issue was a question of law, correctly decided. By taking that view, the opinion shuns the necessity of dealing with the evidence, and avoids both a formidable task and an unconvincing result. But having declared the issue to be one of law, the opinion fails to state with any clarity the rule of law it relies on. No cases are given and Ark. Stat. Ann. § 14-613 is cited merely as requiring that general contractors must “first offer an opportunity to Arkansas licensed and qualified . . . subcontractors.” And Con-Ark insists that American Sheet Metal Works was not licensed and qualified. By avoiding any specific citation of the law, the majority leaves the dissent with the burden of proving that American Sheet Metal was not, under the law, unlicensed and unqualified. As to the license, it is undisputed that American Sheet Metal was licensed and if the license was insufficient by not including a “mechanical specialty designation” then where is the law that makes that requirement? It is certainly not to be found in § 14-613, the only statute cited. Appellees’ brief recognizes the void and offers § 71-710 of the Contractor’s Licensing Law of Arkansas as giving the Licensing Board power to limit the license of a contractor “to the character of work for which the applicant is qualified.” But the problem here is there was absolutely no evidence presented that the Board had limited the license of American Sheet Metal; to the contrary, there was evidence from which the jury could have readily determined that the Licensing Board considered American Sheet Metal fully qualified to perform the work on which it had bid. Moreover, we have held licensing statutes must be construed strictly in favor of an individual against whom such enactments are sought to be applied. Davidson v. Smith, 258 Ark. 969 , 530 S.W.2d 356 (1975). Con-Ark’s argument would have us do the reverse. If a litigant under our system is to be deprived of the opportunity to present his cause to a jury on the basis of an adverse rule of law, it ought to be possible (and essential) to clearly state what that rule is and where in our code or our cases it is to be found. Anything less is as unfair to the successful party as it is to the losing party. Perhaps American Sheet Metal Works was thought to be unqualified, which § 14-613 does require. But that surely is a question of fact and the burden of proving that allegation was on Con-Ark. The proof was to the contrary, evidenced by the fact that Con-Ark’s motion for a directed verdict made no claim that American Sheet Metal was not qualified. For the sake of argument, let us assume that by inference § 14-613 does require that the license of American Sheet Metal Works bear a mechanical specialty designation in order for it to take advantage of the statute and enforce its bid. The evidence presented in this case is such that the jury could reasonably infer that American Sheet Metal did in fact have a mechanical specialty designation which was simply omitted from its license through oversight. This was precisely the import of the testimony of Mr. Robert Carter and others that American Sheet Metal was a mechanical contractor licensed since 1969; had done mechanical work previously for Con-Ark; that the company had requested a mechanical designation from the Licensing Board and was unaware that its license failed to include the designation; that when Con-Ark asked about the mechanical designation he appeared before the Licensing Board to point out the mechanical designation was missing and the license was reissued for the years 1977-1978 to show the mechanical specialty effective July 1, 1977. When this evidence is considered in light of the following letter to American Sheet Metal from the Licensing Board, there is ample evidence to submit the issue to the jury: Dear Mr. Carter: This is to advise that it is the Board’s opinion that you are presently qualified to do the mechanical work you now have under contract as well as any future contracts undertaken. (My italics.) Your Certificate of License has been amended to read as follows and mailed to you under separate cover: “SPECIALTY: Mechanical — Sheet Metal — Air Conditioning” Yours very truly, CONTRACTORS LICENSING BOARD /s/ Howard Jones, Administrator The result reached by the majority goes against what we have said in a host of cases: On appeal a directed verdict is reviewed by taking that view of the evidence most favorable to the party against whom the verdict is directed, together with all reasonable inferences which can be drawn therefrom, and we must reverse if there is any substantial evidence tending to establish an issue in his favor. Farm Bureau Mutual Insurance Company v. Parks, 266 Ark. 454 , 585 S.W.2d 936 (1979), and Housing Authority of the City of Texarkana v. E. W. Johnson Construction Co., Inc., 264 Ark. 523 , 573 S.W.2d 316 (1978). Even more, we have said, correctly, that where the evidence is not in dispute if it is such that fair-minded men might draw different conclusions from it, a jury question is presented. Moore Ford Company v. Smith, 270 Ark. 340 , 604 S.W.2d 943 (1980); Williams v. Curtis, 256 Ark. 237 , 506 S.W.2d 563 (1974). The majority opinion states that American Sheet Metal’s arguments that it was qualified, capable of being bonded, and had its license amended all “arose after the fact” and Con-Ark was not required under § 14-613 to accept American Sheet Metal’s bid after the State of Arkansas awarded the contract to Con-Ark. The reasoning ignores two things: First, that § 14-613 makes it mandatory for Con-Ark to award the subcontract to the subcontractor whose name and bid Con-Ark listed on its bid to the State, and it is undisputed that Con-Ark listed American Sheet Metal and American Sheet Metal’s bid of $642,969.00 on its bid to the State. Second, it ignores the fact that although Con-Ark wrote to American Sheet Metal on February 22, 1978, to ask its interpretation of § 14-613 as to its having the necessary license to bid any plumbing, heating or ventilating work, adding, “Sure hope we can work something out to our mutual benefit,” there was evidence that two weeks earlier on February 8 Con-Ark was engaged in efforts to acquire the entire contract for itself by substituting Nabco, simply a division of Con-Ark, for American Sheet Metal, which is precisely what § 14-613 seeks to avoid. The fact is that Con-Ark managed to accomplish this objective to the loss of American Sheet Metal, and whether by so doing Con-Ark violated § 14-613 and rendered itself liable to American Sheet Metal should be resolved by a jury and not by a directed verdict. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7822092. Public record. Not legal advice.