                                Cite as 2013 Ark. App. 495

                ARKANSAS COURT OF APPEALS
                                       DIVISION I
                                      No. CV-12-923


                                                 Opinion Delivered   September 18, 2013
ACEVA TECHNOLOGIES, LLC, AND
SUNGARD AVANTGARD, LLC                           APPEAL FROM THE WASHINGTON
                  APPELLANTS                     COUNTY CIRCUIT COURT
                                                 [NO. 2007-1677-2]

V.                                               HONORABLE KIM M. SMITH,
                                                 JUDGE

                                                 AFFIRMED ON DIRECT APPEAL;
TYSON FOODS, INC.                                REVERSED AND REMANDED ON
                                 APPELLEE        CROSS-APPEAL



                           JOHN MAUZY PITTMAN, Judge

       Aceva Technologies, LLC, and Sungard Avantgard, LLC (collectively “Aceva”),

bring an appeal from a jury verdict in the Washington County Circuit Court in favor of

appellee, Tyson Foods, Inc. Aceva challenges several of the trial court’s rulings, and Tyson

brings a cross-appeal from its refusal to award prejudgment interest. We affirm on the direct

appeal and reverse and remand on the cross-appeal.

       In 2004, the parties entered into a Value Assessment Agreement (VAA), in which

Aceva agreed to evaluate Tyson’s credit department’s processes and software needs for

$30,000. Aceva advised Tyson that it would save about $2,000,000 by implementing Aceva’s

software. Following that recommendation, Tyson purchased Aceva’s software and entered

into a Software License Agreement (SLA) in February 2005, whereby Tyson paid Aceva a

licensing fee of $400,000 and a first-year maintenance fee of $80,000. Tyson also agreed to
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pay approximately $170,000 for Aceva to customize and install the software in accordance

with Tyson’s needs. Aceva agreed to complete the work in twelve weeks, beginning in

March 2005. The SLA contained the following limitation-of-liability clause:

       a) Limitation: EXCEPT AS PROVIDED FOR IN THIS AGREEMENT, ACEVA’S
       AGGREGATE LIABILITY TO CUSTOMER IN ANY WAY RELATED TO
       THIS AGREEMENT, AND REGARDLESS OF WHETHER THE CLAIM FOR
       SUCH DAMAGES IS BASED IN CONTRACT, TORT, STRICT LIABILITY,
       OR OTHERWISE, WILL NOT EXCEED THE LICENSE FEES RECEIVED BY
       ACEVA FROM CUSTOMER FOR THE AFFECTED SOFTWARE FOR THE
       12 MONTH PERIOD PRECEDING THE OCCURRENCE OF SUCH
       LIABILITY.

       b) No Consequential Damages. EXCEPT AS PROVIDED FOR IN THIS
       AGREEMENT NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT,
       INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES.

       Aceva did not meet the twelve-week deadline. During the next year, Aceva billed

Tyson almost $900,000 for license and maintenance fees and services; according to Tyson,

the software never met its requirements and could not be used. Tyson notified Aceva of

breach on April 11, 2006, and demanded cure by May 12, 2006; in the alternative, it

demanded reimbursement for its out-of-pocket costs of $887,199.60. Aceva did not satisfy

those demands.

       Tyson sued Aceva in 2007, asserting breach of the VAA, the agreement to provide

professional services, the SLA, express warranty, and implied warranties, and the implied

covenant of good faith and fair dealing in the VAA and SLA; negligence in performing the

VAA and professional services; promissory estoppel; unjust enrichment; negligent

misrepresentation; deceptive trade practices; and fraud. Tyson notified Aceva that, pursuant

to paragraph 10(f) of the SLA, the governing law would be that of Delaware. Aceva asserted

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various affirmative defenses, including Tyson’s material breach; it also contended that the

VAA and SLA had merged and that there was only one contract between the parties (the

SLA). Aceva also brought a counterclaim against Tyson for breach of contract, promissory

estoppel, and unjust enrichment.

       Aceva moved for partial summary judgment to enforce the limitation-of-liability

provision of the SLA. It also filed a motion in limine, asking the court to permit it to produce

evidence of that provision and to preclude Tyson from introducing any evidence of damages

in excess of $400,000. Aceva asked the court to instruct the jury that the limitation-of-

liability clause applied to all of Tyson’s claims (except the fraud claims, if they survived). In

response, Tyson argued that all remedies under the Uniform Commercial Code were available

if it could prove that the limited remedy failed of its essential purpose, and that whether a

limited remedy failed of its essential purpose is a question of fact for the jury.1 It also argued

that the VAA was a separate agreement, which contained no limitation-of-liability clause, and

was not merged into the SLA.

       The circuit court partially granted Aceva’s motions in limine and for partial summary

judgment, leaving the “failure-of-essential-purpose” question for the jury. The court stated

that if that provision did not fail of its essential purpose, it applied to the SLA-related claims



       1
        Delaware’s version of section 2-719 of the UCC, like the comparable statute in
Arkansas, provides that a seller’s right to limit remedies in a UCC contract to “repair or
replacement” or “return and refund” is subject to subsection (2) where circumstances cause
an exclusive or limited remedy to “fail of its essential purpose”; if it fails, the UCC’s remedies
are available and the buyer may disregard that term of the contract. Del. Code Ann. Tit. 6,
§ 2-719 (2013).

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(including negligence) but not to the VAA. The court dismissed several claims, leaving those

for breach of the VAA, the SLA, and express warranty; negligence in performance of

professional services; promissory estoppel; unjust enrichment; deceptive trade practices; and

fraud for trial.

        The case was tried before a jury. Tyson nonsuited its claim for breach of the VAA.

During its case-in-chief, Tyson called witnesses who testified about Aceva’s failure to perform

adequately, using documentary evidence consisting of computer screen shots, emails, and

software-generated reports. The court denied Aceva’s motions for directed verdict based on

the limitation-of-liability clause. Over Tyson’s objection, the trial court permitted Aceva to

present the testimony of Harit Nanavati, a software engineer with Aceva during the relevant

time frame, who performed a live demonstration of the software using a computer server

provided by Aceva. Tyson argued that it needed an opportunity to first inspect the computer

server used by Nanavati in the demonstration to verify whether he was using the same

software that Tyson had on its server. Aceva assured the trial court that the software was the

same version that Tyson had, and the trial court permitted Nanavati to demonstrate that the

software worked at that time. Tyson asked for a recess to inspect the software before

conducting its cross-examination of Nanavati. The trial court denied Tyson’s request for a

recess. Nevertheless, after Nanavati had testified, during the presentation of the remainder

of Aceva’s case-in-chief, the circuit court allowed Tyson to inspect the computer. Kevin

McManus, a management consultant, testified that the software worked properly.




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       Michael Mader, an IT employee of Tyson, testified on rebuttal that, based on his

limited inspection of the Aceva server and software, there were significant differences between

those files and the software files on Tyson’s server. He stated that, although he could not

identify the precise changes, “digital fingerprints” indicated that the software used by Aceva

during the demonstration was an altered version of the Aceva software that had been installed

on Tyson’s servers. Mader testified that he set up a computer so that Regina Villines, Tyson’s

next witness on rebuttal, could remotely access Tyson’s server and enable her to demonstrate

the actual software that had been installed on Tyson’s server. Villines then demonstrated the

problems with the version of the Aceva software running on Tyson’s system. During Aceva’s

cross-examination of Villines, it asked for a recess to permit McManus to inspect the version

of the Aceva software installed on Tyson’s server before Aceva finished asking questions of

Villines. After the trial court denied this motion for a recess during Villines’s testimony, Aceva

decided not to ask her any further questions and stated that it had no further rebuttal

witnesses. At that time, the testimony was completed.

       About fifteen minutes later, Aceva asked to present McManus as a surrebuttal witness

so that he could testify that the software on Tyson’s server had an expired business calendar.

The trial court denied this request and Aceva proffered McManus’s testimony. In his

proffered testimony, McManus acknowledged that months before trial, Aceva had been given

a copy of the software on Tyson’s server and that it had been given an opportunity to log

onto Tyson’s server to further review the software, but had declined because he saw no need




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to do so. McManus acknowledged that he had been aware of the business-calendar issue

before trial.

       The jury found that Aceva had breached the SLA, causing Tyson damages; that Aceva

had not breached an express warranty to Tyson; that Aceva was negligent in performing the

VAA, causing Tyson damages; that Aceva had not committed deceit; that Aceva had not

violated the Arkansas Deceptive Trade Practices Act; that Tyson had not breached the SLA;

and that the limitation-of-liability remedy in the SLA had failed of its essential purpose. The

jury awarded damages of $512,000 to Tyson and no damages to Aceva. Tyson moved for

prejudgment interest, attorney’s fees, and costs. The circuit court entered judgment on the

jury verdict and awarded attorney’s fees of $300,000 to Tyson, plus $100,000 in costs. The

court denied Tyson’s request for prejudgment interest. Aceva then pursued this appeal and

Tyson filed a cross-appeal from the order denying its motion for prejudgment interest.

       In its first point on appeal, Aceva argues that the trial court abused its discretion in

refusing to call a recess so that it could inspect Tyson’s computer and software that was shown

to the jury during rebuttal on the last day of trial. Aceva further asserts that after the record

was closed, it discovered that Tyson had “rigged the software to fail by mis-configuring the

business calendar setting,” and that when it sought to reopen the record to introduce this

newly-discovered evidence, the circuit court refused to do so.2 Aceva argues that it had no

choice but to rest its case after the circuit court refused to give it any time in a recess to



       2
         We address whether the court abused its discretion in refusing to reopen the record
in the next point.

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inspect the computer and software on the laptop computer that Villines had shown the jury

while accessing the Aceva software running on Tyson’s servers through a wireless internet

connection.

       Trial courts have considerable discretion in the control and management of

proceedings at trial. Walcott & Steele, Inc. v. Carpenter, 246 Ark. 95, 436 S.W.2d 820 (1969);

Coca Cola Bottling Co. v. Jordan, 186 Ark. 1006, 54 S.W.2d 403 (1932). The trial court has

an affirmative obligation to administer the docket efficiently. Odaware v. Robertson Aerial-AG,

Inc., 13 Ark. App. 285, 683 S.W.2d 624 (1985). We cannot say that the trial court abused

its discretion in denying Aceva’s request for a recess because the jury had already heard nine

days of testimony and Aceva had presented its lengthy case-in-chief, during which its

witnesses had testified (with a demonstration) that the software did work and that the only

problems were caused by Tyson. Because it is not at all apparent that a short recess to permit

Aceva to prepare a witness for surrebuttal would have changed the outcome of the trial, we

affirm on this point.

       In its second point, Aceva argues that the circuit court erred in refusing to reopen the

record to permit it to introduce evidence concerning Tyson’s computer and software that

was shown to the jury. Aceva argues that McManus had his first opportunity to inspect the

laptop and software that Tyson had shown to the jury after the record was closed; at that

time, he discovered that the software had appeared to malfunction when Tyson showed it

to the jury only because Tyson had erroneously set the software’s business calendar function

(for the wrong year). According to Aceva, the court abused its discretion in refusing to


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reopen the record to admit McManus’s testimony and correct the misimpression that Tyson

had left with the jury.

       Whether to reopen the record was within the trial court’s discretion, in light of all of

the relevant circumstances. Sugarloaf Development Co., Inc. v. Heber Springs Sewer Improvement

District, 34 Ark. App. 28, 805 S.W.2d 88 (1991). Evidence should be reopened where to do

so would serve the interests of justice and cause no undue disruption of the proceedings or

unfairness to the party not seeking to have it reopened. Id. The general rule is that we will

not reverse the trial court’s decision to admit or refuse evidence in the absence of an abuse of

that discretion and a showing of prejudice. Mason v. Mason, 319 Ark. 722, 895 S.W.2d 513

(1995); Acker Construction, LLC v. Tran, 2012 Ark. App. 214, 396 S.W.3d 279; Simpson v.

Braden, 2011 Ark. App. 250. The factors to be considered have been explained in Trial

Handbook for Arkansas Lawyers:

               A court should not reopen a case except for good reason and on proper
       showing. The exigencies of each particular case have much weight in controlling the
       discretion of the court. Factors taken into consideration in allowing a party to reopen
       a case to introduce new evidence include:

              1. Failure to introduce evidence occurred because of inadvertence, calculated
              risk, or the court’s mistake. 75 Am. Jur. 2d Trial § 382.

              2. Surprise or unfair prejudice inuring to the opponent by the new evidence.
              75 Am. Jur. 2d Trial § 382.

              3. Failure to prove a basic element of a crime; e.g., value of property stolen or
              age of the defendant or victim. Bland v. State, 251 Ark. 23, 470 S.W.2d 592
              (1971) (value); George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991), opinion
              supplemented on denial of reh’g, 306 Ark. 360, 818 S.W.2d 951 (1991) (age
              of defendant).



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              4. Diligence of the party seeking introduction of the new evidence. 75 Am.
              Jur. 2d Trial § 382.

              5. Admissibility, relevance, and lack of cumulativeness of new evidence to the
              proponent’s case. Walker v. State, 240 Ark. 441, 399 S.W.2d 672 (1966).

              6. Time or stage of the proceedings at which the motion is made. 75 Am. Jur.
              2d Trial §§ 386 to 394.

              7. Time and effort expended upon the trial. 75 Am. Jur. 2d Trial § 382.

              8. Effect reopening the proof will have on completing the trial, considering the
              opponent’s right to respond to it. 75 Am. Jur. 2d Trial § 382.

              9. Any cogent reasons which justify denying the request. 75 Am. Jur. 2d Trial
              § 382.

              Greater liberty should be allowed in the matter of reopening the proof when
              the case is tried to the court without a jury. Midwest Lime Co. v. Independence
              County Chancery Court, 261 Ark. 695, 551 S.W.2d 537 (1977).

John Wesley Hall, Jr., Trial Handbook for Arkansas Lawyers § 86:5 (2006).

       We cannot say that the trial court abused its discretion in refusing to reopen the record

for Aceva to present the surrebuttal testimony of McManus. During nine days of testimony,

the jury had heard both parties’ versions of what had gone wrong with the software and had

seen two computer demonstrations. Aceva had previously declined the opportunity to log

onto Tyson’s server, and its expert witness was aware of the business-calendar issue before

trial. If Aceva had chosen to do so, McManus could have testified about this matter during

Aceva’s case-in-chief. We affirm on this issue.

       In its third point, Aceva argues that the circuit court erred as a matter of law in failing

to enforce the limitation-of-liability clause and in permitting the jury to decide whether it

failed of its essential purpose. Because we hold that the SLA did not supersede or encompass

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the VAA, addressed below, we need not decide the limitation-of-liability issue. The jury

rendered a general verdict for damages after finding that Aceva was negligent in performing

the VAA and that it breached the SLA. Because the verdict was general, there is no way to

ascertain the allocation of damages as to negligence and breach of contract. Where the jury

verdict is rendered on a general-verdict form, it is an indivisible entity or, in other words, a

finding upon the whole case. Bradshaw v. Alpha Packaging, Inc., 2010 Ark. App. 659, 379

S.W.3d 536. We will not speculate on what the jury found where special interrogatories on

damages are not requested and a general jury verdict is used. Hyden v. Highcouch, Inc., 353

Ark. 609, 110 S.W.3d 760 (2003). We affirm on this point.

       In its fourth point, Aceva argues that the circuit court erred in refusing to enforce the

limitation-of-liability clause against Tyson’s claim for negligent performance of the VAA.

Aceva asserts that Tyson’s allegations relating to negligent performance of the VAA directly

relate to the SLA and, therefore, come within the limitation-of-liability clause’s broad terms.

Under this point, Aceva also argues that the SLA superseded the VAA because of the

integration clause found at paragraph 10(g) of the SLA. That clause stated: “This agreement

constitutes the entire agreement and supersedes any prior or contemporaneous oral or written

agreements regarding the subject matter . . . .”

       The trial court did not err in its construction of the SLA as not encompassing the

VAA, which Aceva had already performed. A merger clause in a contract, which extinguishes

all prior and contemporaneous negotiations, understandings, and verbal agreements, is simply

an affirmation of the parol-evidence rule. Simpson, supra. The parol-evidence rule is a rule


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of substantive law in which all antecedent proposals and negotiations are merged into the

written contract and cannot be added to or varied by parol evidence. Id. It is a general

proposition of the common law that, in the absence of fraud, accident, or mistake, a written

contract merges, and thereby extinguishes, all prior and contemporaneous negotiations,

understandings, and verbal agreements on the same subject. Id. Merger is largely a matter of

intention of the parties; in fact, intention is a prerequisite for merger and the trial court will

use a “totality-of-the-circumstances” approach to determine the parties’ intention. Id.

Although whether the subsequent writing included a merger or integration clause is important

to the question of intention, it is not determinative; the court will look to all of the other

circumstances evidencing the parties’ intent before deciding whether merger applies. Id.

Merger only happens, however, when the same parties to an earlier agreement later enter into

a written integrated agreement covering the same subject. Id. The cases cited by Aceva do

not support its argument that under Delaware law, the SLA’s integration clause superseded

the VAA.

       Tyson contended that the VAA and SLA did not cover the same subject, and the trial

court agreed, as do we, because the VAA and SLA were completely separate contracts dealing

with different subject matters. Under the VAA, Aceva gave Tyson professional advice for a

separate consideration. Pursuant to the SLA, it sold licensed software and related services to

Tyson. The agreements were executed months apart and were not part of the same

transaction. The parties entered into the VAA in April of 2004 for Aceva to perform an

independent study of Tyson’s credit department’s systems and software needs in exchange for


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$30,000. Aceva performed this analysis and recommended that Tyson choose its software.

Tyson then followed that recommendation and entered into the SLA with Aceva in February

2005. We affirm on this point.

       In its last point, Aceva argues that, even if we affirm on the other issues, we should

hold that the circuit court erred in awarding Tyson $100,000 in costs under the SLA’s

indemnification clause found in Section 7(c),3 which provided:

       Indemnification: Aceva shall indemnify, defend, and hold harmless Customer, its
       affiliates, directors, officers, employees and agents from and against any all suits, claims,
       demands, losses, damages, costs and expenses of any nature whatever, including
       without limitation, litigation expenses, attorney’s fees and liabilities, incurred in
       connection therewith, arising out of: (a) injury to, or death of, any person whatsoever
       or damage to property of any kind by whomever owned, proximately caused in whole
       or in part by the acts or omissions of Aceva, any of its members, employees, agents or
       other persons directly or indirectly employed by or associated with Aceva; or (b) any
       breach by Aceva of a representation, warranty or covenant contained herein or in any
       Schedule.

       Aceva contends that it is not obligated to reimburse Tyson for its costs expended in

suing Aceva, but is only required to indemnify Tyson if it is sued by a third party. The scope

of the indemnity clause is a matter of contract interpretation, which is governed by Delaware

law. If a writing is plain and clear on its face, i.e., its language conveys an unmistakable

meaning, the writing itself is the sole source for gaining an understanding of intent. City

Investing Company Liquidating Trust v. Continental Casualty Co., 624 A.2d 1191 (Del. 1993).

When there is uncertainty in the meaning and application of the terms of the contract, the

appellate and trial courts will consider testimony pertaining to antecedent agreements,



       3
           Aceva does not challenge the reasonableness of the award.

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communications, and other factors which bear on the proper interpretation of the contract.

Pellaton v. Bank of New York, 592 A.2d 473 (Del. 1991). In that situation, the language used

by the parties is subject to different meanings and is, thus, ambiguous, or more precisely, not

reflective of the parties’ shared intent. City Investing, supra. The agreement’s language is not,

however, rendered ambiguous simply because the parties in litigation differ concerning its

meaning. Id.; see also Mahani v. Edix Media Group, Inc., 935 A.2d 242 (Del. 2007).

       Aceva cites Oliver B. Cannon & Son, Inc. v. Dorr-Oliver, Inc., 394 A.2d 1160 (Del.

1978), in support of its assertion that the Delaware Supreme Court has held that an

indemnification clause nearly identical to that set forth in the SLA was limited to third-party

claims and did not cover costs related to litigation between the parties. We disagree. The

indemnity clause in Cannon was significantly different from the one in this case. It provided:

               SUBCONTRACTOR (Cannon) shall hold CONTRACTOR (Dorr-Oliver)
       and Owner (Barcroft) harmless from any and all claims, liabilities and causes of action
       for injury to or death of any person, and for damages to or destruction of any property,
       resulting from any and all acts or omissions of SUBCONTRACTOR, its agents,
       employees and subcontractors, in connection with the performance of the Work, and
       shall defend any such claim asserted or brought against CONTRACTOR or Owner,
       provided, however, the CONTRACTOR and Owner shall have the right, without
       relieving SUBCONTRACTOR of any obligations hereunder, to participate in the
       defense of such suit if CONTRACTOR or Owner so elects.

Id. at n.2. The Cannon court found that the indemnity clause was of a kind “commonly

found in construction contracts” that were “intended to protect the general contractor (and

owner) from suits brought by third parties who are injured by acts of the subcontractor.” Id.

at 1165. The Cannon indemnity clause, is therefore, easily distinguished from the provision

in this case, which stated that Aceva would indemnify Tyson “from . . . all . . . losses . . .


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damages, costs and expenses . . . arising out of . . . a breach by Aceva of a representation,

warranty or covenant contained herein . . . .” This provision unambiguously included the

litigation costs of this lawsuit. We affirm on this point.

       On cross-appeal, Tyson argues that the trial court erred in denying it an award of

prejudgment interest because the damages were capable of ascertainment at the time of the

loss. Prejudgment interest is compensation for recoverable damages wrongfully withheld from

the time of loss until judgment. Spann v. Lovett & Co., 2012 Ark. App. 107, 389 S.W.3d 77.

It is allowable where the amount of damage is definitely ascertainable by mathematical

computation or if the evidence furnishes data that makes it possible to compute the amount

of damages without reliance on opinion or discretion. Id. If a method exists for fixing an

exact value on the cause of action at the time of the occurrence of the event that gives rise to

the cause of action, prejudgment interest should be allowed, because one who has the use of

another’s money should be justly required to pay interest from the time it lawfully should

have been paid. Id. However, where conflict exists over the validity of the damages sought

by the plaintiff and the fact-finder is required to use its discretion to determine the amount

of damages, prejudgment interest should not be awarded. Id. It is always dependent upon

the initial measure of damages being determinable immediately after the loss and with

reasonable certainty. Baptist Memorial Hospital – Forrest City, Inc. v. Neblett, 2012 Ark. App.

191, 393 S.W.3d 573. In Arkansas Law of Damages, the author explains:

              Unlike the requirement for statutory penalty interest in the insurance statute,
       the controlling factor for pre-judgment interest is not whether the plaintiff recovers a
       particular amount. If a sum certain is sought and a lesser amount awarded, pre-
       judgment interest is still appropriate. In Brown v. Summerlin Associates, Inc., [272 Ark.

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       298, 614 S.W.2d 227 (1981),] a surveyor claimed over $16,000 for the value of his
       services, but the court awarded only $11,000 on a quantum meruit basis. Pre-
       judgment interest was appropriate, although the opinion does not clarify whether the
       interest was from the time the bill was submitted. It is unclear how the damages were
       “ascertainable as to amount and time.” If the case satisfies the test by having “the
       initial measure of damages” known, most cases certainly will. The court determined
       that at some prior point, the defendant knew how much was to be paid and when it
       was to be paid. Thus, pre-judgment interest was appropriate.

Howard W. Brill, Arkansas Law of Damages § 10:3, at 142 (5th ed. 2004). An award of

prejudgment interest is a question of law, to be decided by the court. Spann, supra. The

appellate court gives no deference to conclusions of law, which it reviews de novo. Id.

       Tyson states that the date of breach was May 12, 2006, when Aceva failed to comply

with the thirty-day deadline for curing the breach and that at that time, Tyson’s out-of-pocket

expenses, of which it demanded a refund, were undisputed. They included (1) $30,000 paid

to Aceva for the VAA; (2) the $400,000 license fee Tyson paid to Aceva pursuant to the SLA;

(3) $162,000 that Tyson paid to Aceva for two years’ maintenance fees; and (4) $314,000 that

Tyson paid to Aceva for professional services. In its notice demanding that Aceva cure the

breach by May 12, 2006, Tyson sought its total out-of-pocket payments to Aceva

($887,199.60). According to Tyson, the amount awarded by the jury (which was less than

its total out-of-pocket expenses) was equal to the sum of the $30,000 VAA fee, the $400,000

license fee, and one year of maintenance fees, $82,000. We agree with Tyson that it is

irrelevant that the damages were contested and that the amount of loss was ascertainable on

May 12, 2006. The trial court, therefore, erred in denying Tyson’s motion for prejudgment

interest.



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      Affirmed on direct appeal; reversed and remanded on cross-appeal.

      WYNNE and GRUBER, JJ., agree.

       Wright, Lindsey & Jennings, LLP, by: Gary D. Marts, Jr.; and
       Blank Rome, LLP, by: Daniel E. Rhynhart and Inez R. McGowan, pro hac vice, for
appellants.

      Reece Moore Pendergraft, LLP, by: Timothy C. Hutchinson; and
      Brown & James, P.C., by: Steven H. Schwartz, pro hac vice, for appellee.




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