dissenting. Because I believe that the majority misapplies the law-of-the-case doctrine and fails to reach the issues properly before this court, I respectfully dissent.
The majority inconsistently holds that we may not rule on the front-end loaded method in this appeal, claiming such rulings would be barred by the law-of-the-case doctrine while simultaneously approving the trial court’s abandonment of the front-end loaded method for contributions returned prior to 1999. The majority also inconsistently allows application of 26 U.S.C. § 72 to pre-1999 returns without making that rule applicable to all returns. The majority’s opinion applied the law-of-the-case doctrine. This doctrine prevents a court from reconsidering issues of law or fact that have already been decided on a previous appeal. Jones v. Double “D” Properties, Inc., 357 Ark. 148, 161 S.W.3d 839 (2004). This doctrine serves to effectuate the efficiency and finality of the judicial process and is meant to maintain consistency while avoiding reconsideration of issues once decided during the course of a single, continuing lawsuit. Jones, supra (citing Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 69 S.W.3d 383 (2002)). An exception, however, to the law-of-the-case doctrine is when there is materially different evidence presented after the issuance of the appellate court’s mandate to the trial court. Wilson v. Wilson, 301 Ark. 80, 781 S.W.2d 487 (1989).
In this case, subsequent to the decision in Weiss v. McFadden, 356 Ark. 123, 148 S.W.3d 248 (2004) (“McFadden IT’), the trial court held a hearing to take further evidence and preserve the subsequent record for appeal. At this hearing, new testimony was taken concerning the availability of data from the federal government, the methodology of wide-scale refunds, and the nature and ratio of post-tax contributions in retirement accounts under federal law. Quite simply, there was new evidence regarding the very issue that appellants now bring to this court’s attention. Specifically, there is now testimony before the trial court that, under federal law, even if a retiree chooses to recover a lump-sum amount of post-tax contributions in the initial payments from their benefit system, the balance still contains post-tax contributions over the life of the retiree. This is directly related to our statement in McFadden II, supra that “either the appellees have received their post-tax contributions or they have not.”
There is sufficient new evidence that the record on this appeal is materially different from the previous records, and the issues argued by appellants are squarely within the above-noted exception to the law-of-the-case doctrine. See, e.g. Wilson, supra.
Furthermore, the majority relies on the circuit court’s decision about what was to be decided on remand. This is error and violative of the mandate rule under our jurisprudence. The mandate rule is the legal principle that a lower court is bound to follow the dictates of a superior court and that the jurisdiction conferred on the trial court upon remand is bounded by the mandate and decision of the superior court. City of Dover v. A. G. Barton, 342 Ark 521, 29 S.W.3d 698 (2000). When we remand with specific instructions, those instructions must be followed as found in both the mandate and opinion. Id. A lower court is bound to follow both the letter and spirit of the opinion and mandate of the appellate court. Id. (emphasis added). In working equity, a trial court should look beyond the mere words of affirmance or reversal and look to the effect of the opinion in proceeding upon remand. Glover v. Woodhaven Homes, Inc., 346 Ark. 397, 57 S.W.3d 211 (2001) (quoting Kneeland v. American Loan & Trust Co., 138 U.S. 509 (1891)).
In the matter under review, I believe that our holding in McFadden II, supra, was not followed. Appellees proposed a remedy that ignored the effect of our ruling, and that remedy was accepted by the trial court. The mandate rule should require us to clarify that holding now. In examining both the mandate and opinion of McFadden II, it is clear that we did not approve of the trial court’s remedy. We found that the remedy did not apply the voluntary-payment rule to any of the taxes in the case when illegal exaction jurisprudence requires the application of the voluntary-payment rule to taxes paid before the illegal-exaction suit was filed. See e.g., McFadden II, supra. We remanded based on this issue, but only after noting that the appellees’ suggested remedy was not viable. Furthermore, we stated that there were equitable solutions to this remedial quagmire and gave one example that allowed a recovery of income tax paid on the portion of benefits that were the return of post-tax contributions and took into account the voluntary-payment rule. In Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003) (“McFadden I”), we noted that the parties agreed that some portion of the benefits paid to the retirees was post-tax contributions being returned. If the trial court did not follow the letter and spirit of our previous opinions, the mandate rule is not a bar to adjudicating the issues. Our instruction to fashion a remedy providing for a harmonious treatment of federal and state tax laws was not followed by the trial court.1
I believe that it was reversible error to reject our conclusion in McFadden II that the state-tax treatment must be harmonious with that of federal taxation. Accordingly, I would reverse and remand this case with instructions, to the trial court to craft a remedy that is harmonious as to the state and federal treatment of the post-tax contribution corpus in the retirees annuity accounts.
For the forgoing reasons, I respectfully dissent. I am authorized to state that Chiefjustice Dickey and Justice Brown join in this dissent.I note that appellees have discovered and seek to call to the attention of the court a statutory provision approving the use of 26 U.S.C. § 72. This statute was not cited to us in the original appeal and the law of the case prevents us from considering it now.