text:
    Patricia HICKSON v. Edward SAIG, Individually; The Saig Company, an Arkansas Corporation; RA-RPM, an Arkansas Limited Partnership; RPM Realty, an Arkansas Limited Partnership, general partner of RA-RPM, et al.
    91-332
    828 S.W.2d 840
    Supreme Court of Arkansas
    Opinion delivered May 4, 1992

      Eichenbaum, Scott, Miller, Liles & Heister, P.A., by: Christopher O. Parker, for appellant.

      Gill & Elrod, by: W.W. Elrod II, for appellees RA-RPM, RPM Realty Fund, and Rector-Phillips-Morse, Inc.

      Rieves & Mayton, by: Elton A. Rieves III, for appellees Edward Saig and The Saig Co.
   Robert H. Dudley, Justice.

This appeal arises from the granting of a partial summary judgment in favor of the appellees. The trial court certified the case for an immediate appeal under A.R.C.P. Rule 54(b). We reverse and remand.

On September 15, 1987, RA-RPM, a limited partnership that owned Meadowbrook Square Shopping Center in West Memphis, Arkansas, sued Patricia Hickson and Linda Gregg for breach of a lease agreement. In its complaint, RA-RPM alleged that on September 11,1984, or slightly over three years before the filing of the suit, appellant Hickson and Linda Gregg leased retail space in the shopping center for their women’s apparel shop and that they had failed to pay approximately $16,000.00 in past due rent and maintenance fees. Appellant Patricia Hickson filed an answer in which she admitted executing the lease, but alleged that she executed the lease only because of an act of deceit which was perpetrated by RA-RPM’s agent, appellee Edward Saig.

Appellant Patricia Hickson also filed a counterclaim against appellee RA-RPM in which she alleged that the deceit by the leasing agent caused her to suffer damages. Subsequent pleadings brought in appellees RPM Realty Fund, a limited partnership and general partner of RA-RPM, and Rector-Phillips-Morse, a corporation and general partner of RPM Realty Fund. Appellant Hickson additionally filed a third-party complaint against the leasing agent, appellee Edward Saig, and his employer, appellee Saig Company, and alleged they also caused her to suffer damages. The trial court ordered the complaint and counterclaim consolidated with the third-party complaint. RA-RPM appellees and Saig appellees filed motions for summary judgment. They contended that the deceit was allegedly perpetrated more than three years before the counterclaim and third-party complaint were filed, and therefore, the three-year statute of limitations barred the counterclaim and third-party complaint. It is undisputed that the three-year statute of limitations is controlling. The trial court granted the motions for summary judgment.

We have often written that summary judgment is an extreme remedy that should be granted only when it is clear that there is no genuine issue of material fact to be litigated. Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Any doubt and all inferences must be resolved against the moving party. Carmichael v. Nationwide Life Ins. Co., 305 Ark. 549, 810 S.W.2d 39 (1991).

In viewing the affidavits submitted to the trial court in the light most favorable to appellant Patricia Hickson, as we must do, the following facts were established for these motions. In August and September 1984, appellant Hickson and her partner, Linda Gregg, entered into negotiations with Edward Saig to lease retail space in the shopping center for their women’s apparel business. At that time appellant Hickson had heard a rumor that WalMart, .the anchor tenant in the shopping center, would soon move to another location. During these negotiations appellant Hickson specifically asked appellee Saig whether the Wal-Mart store would be relocated. Saig assured her that the Wal-Mart store would remain in the shopping center. Based upon that assurance,, on September 11, 1984, appellant Hickson and Linda Gregg signed a lease for retail space. On November 8,1984, the Evening Times, a West Memphis newspaper, published an article announcing Wal-Mart’s plans to move to a different location. Appellant Hickson did not read the article and was not aware that Wal-Mart had announced plans to relocate. However, in late 1984 and early 1985, she again heard that Wal-Mart planned to move. She again inquired of appellee Saig, and he again assured her that Wal-Mart was not going to move. Based upon these further assurances, appellant Hickson sought and obtained a Small Business Administration loan so she could purchase the interest of her partner, Linda Gregg. She completed the purchase in the summer of 1985. In July 1985, the merchants who leased space in the shopping center, including appellant, held a meeting, and appellee Saig told them that the rumor of Wal-Mart’s relocation was false. On August 22, 1985, Wal-Mart closed its store in the shopping center and relocated in a new shopping center. Appellee Rector-Phillips-Morse, Inc. is liable as the general partner of the limited partnership RPM Realty Fund, which is liable as a general partner of RA-RPM, the owner of the Meadowbrook Square Shopping Center, and RA-RPM in turn is liable for any deceit committed by its leasing agents, Edward Saig and the Saig Company.

The issue is whether the trial court correctly held that there was no genuine issue of material fact concerning the running of the three-year statute of limitations. The deceit occurred when appellee Saig made the false statement that induced appellant Hickson to enter into the lease agreement. Thus, the period of limitation began to run when the lease was signed on September 11, 1984, and the counterclaim and cross-complaint were not filed until December of 1987, which was more than three years later. However, if there is some positive act of fraud or deceit which would conceal a plaintiffs cause of action, the statute of limitations is tolled until the fraud or deceit is discovered, or should have been discovered by the exercise of reasonable diligence. Talbot v. Jansen, 294 Ark. 537, 744 S.W.2d 723 (1988). Appellant Hickson contends that appellee Saig, by continuing to deny the truth of the rumor that Wal-Mart was going to leave, concealed the deceit, and her cause of action did not accrue until she discovered the truth on August 22, 1985, when Wal-Mart closed its store in the shopping center. Appellees responded that upon publication of the newspaper article on November 8, 1984, the planned move of Wal-Mart became public knowledge, and any reasonably prudent person in appellant’s position knew, or with reasonable diligence should have discovered, appellees’ deceit, and therefore the claim was barred. The trial court, in granting summary judgment in favor of appellees, held that there was no genuine issue of material fact and that, as a matter of law, upon the publication of the newspaper article, appellant knew, or with reasonable diligence should have discovered, the falsity of appellee Saig’s statement. That ruling was in error. The proof on the motions for summary judgment showed that appellant Hickson detrimentally relied on appellee Saig’s false statements, and appellant did not know about the newspaper article or discover the truth until Wal-Mart closed its store. Thus, there is a genuine issue of material fact as to whether the newspaper article should have put appellant on sufficient notice to require her to investigate and determine the truth, and that issue is for the trier of fact to decide.

Appellee Saig additionally contends that the trial court’s ruling should be affirmed because the misrepresentation was not material and a summary judgment is proper where there is no genuine issue as to any material fact. See A.R.C.P. Rule 56. We summarily dismiss the contention by stating that there is a genuine issue of whether the alleged misrepresentation was material in causing the appellant to enter into the lease.

Reversed and remanded.

Brown, J., not participating.


source: Caselaw Access Project

author: Robert H. Dudley, Justice. Tom Glaze, Justice,

license: Public Domain

text:
    Gary MAUPPIN [Garry Mauppins] v. STATE of Arkansas
    CR 91-107
    831 S.W.2d 104
    Supreme Court of Arkansas
    Opinion delivered May 4, 1992

      Killough, Ford & Hunter, by: Paul N. Ford, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of two counts of capital murder and two counts of attempted capital murder. He was sentenced to death by lethal injection on one of the counts of capital murder, life imprisonment without parole on the other count of capital murder, and thirty years imprisonment on each count of attempted capital murder. The four convictions are jointly appealed. We reverse and remand for a new trial.

Appellant, Gary Mauppin, and Kenneth Reed, a convicted felon, were both in the Cross County jail the day before the crimes were committed, and appellant told Reed: “Kenny, I am going to kill me two guys. One of them was named Dolphus Sams and another guy out in a trailer house.” Early in the evening of August 10, 1985, appellant and Dolphus Sams were riding in Sams’s truck when Sams scolded him for breaking into the house of his former girlfriend, Pat Lloyd. Appellant became angry when Sams scolded him and asked to be taken to his home in Colt. Sams took appellant home, where he remained until about 11 p.m., when he left on foot and found a car with the keys in it. He took the car, drove to his former girlfriend’s house in Wynne, looked through a window, and saw her in bed with another man, Rick Stapler. He went to a liquor store, bought a six-pack of beer, went home, and got a .22 caliber rifle and a box of shells. He left his home and drove to the mobile home of Dolphus Sams near Fitzgerald Crossing. He opened the door with a key he had possessed for about four months and, once inside, found Dolphus Sams and Ervin Snyder asleep in separate bedrooms. He went into the living room area and, over a considerable period of time, drank the six-pack of beer plus eight or ten more cans of beer which he found in Sams’s refrigerator. Sometime between 2:00 and 3:00 a.m., he put a shell in the chamber of the .22 and went into Sams’s bedroom, where Sams was sleeping face down. Appellant put the .22 next to the back of Sams’s head and shot him. The shot instantly killed Sams. He took $15.00 from Sams’s pocket and went to Snyder’s bedroom and shot him in the back of the head. Again, death was instantaneous. He said that the reason he shot Snyder was because he thought Snyder might have seen or heard him shoot Sams. He took $75.00 to $ 100.00 from the top of a chest-of-drawers that was next to Snyder’s bed.

Appellant found the keys to Sams’s truck and drove the truck to the home of his former girlfriend, Pat Lloyd. He hid outside her house for about an hour, cut her telephone line, and then around 3:30 a.m., climbed inside through a window. Pat Lloyd and Rick Stapler, who were on a mattress in the living room, heard him coming through the window. They saw him with the rifle and lay motionless. When appellant went into a bedroom, Rick Stapler ran toward a nearby house to call the police. As he was running he saw a newspaper deliveryman, Billy Neal, and his wife, Betty Neal. He asked one of them to call the police, and Betty Neal made the call. Wynne policeman Donald Hopper and Cross County Deputy Sheriff Jackie Clark immediately responded. They began to search the house and, by his flashlight beam, Deputy Clark saw a foot sticking out from under a bed. He first motioned to Officer Hopper and then commanded the intruder to “Come out.” Officer Hopper joined him and said, “Get up from there.” Suddenly, the appellant jumped up and started shooting at them. He hit Officer Hopper seven times and Deputy Clark once.

Appellant quickly left and tried to go to an aunt’s house but saw a number of police cars around her house so he left there and, at about 6:30 a.m., went to the home of Mary Jane and David Franz. He told them he had gone to Pat Lloyd’s house, cut the phone line with wire cutters and, while there, shot three or four policemen, killing at least two of them. He said, before going to Pat Lloyd’s house, he had killed Dolphus Sams and another man who was staying at Sams’s mobile home. He said he killed Sams and Snyder in self-defense. He tried to give David Franz the wire cutters and did give him a wristwatch that came from Pat Lloyd’s home. The Franzes left and called the police.

The police responded and ordered appellant out of the house. He did not come out. They threw tear gas into the house, and Officer Elmer St. Clair rushed inside just in time to see appellant shoot himself in the head with the .22 caliber rifle. The appellant was transported by ambulance to a Memphis hospital where he underwent brain surgery. He was subsequently returned to Wynne and was confined in the Cross County Hospital where, on August 24,1985, thirteen days after shooting himself in the head, he gave a confession. Expended cartridge cases found at Sams’s mobile home and expended cartridge cases found at Lloyd’s home were determined to have been ejected from the .22 caliber rifle which Officer St. Clair recovered from the appellant. The watch that appellant gave David Franz was determined to be Rick Stapler’s watch that appellant had taken from Pat Lloyd’s house. On August 23,1985, the appellant was charged with the crimes. Over the next five years there were numerous proceedings involving appellant’s mental condition. In October 1990, over five years after the crimes were committed, appellant was tried and convicted.

Appellant makes a number of arguments involving the trial court’s orders directing the State Hospital to evaluate his mental condition. In one of the arguments he contends that, under the applicable statutes, the circuit court lost jurisdiction to try him, and therefore, his convictions are void. The factual predicate to his argument is as follows. On September 13, 1985, the circuit court ordered the State Hospital to evaluate the appellant to determine (1) his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law and (2) whether appellant was aware of the nature of the charges and capable of cooperating effectively with his attorney in the preparation of his defense. On December 10, 1985, Dr. Roy Ragsdill, the Director of Forensic Psychiatry Services of the State Hospital, responded that appellant was unaware of the nature of the charges and the proceedings against him and that he was unable to cooperate with his attorney. On the basis of that report, and the statute then in effect, Ark. Stat. Ann. § 41-607 (Supp. 1985), the circuit court ordered appellant committed to the State Hospital for a period not to exceed one year. Exactly one year later, on December 10, 1986, Ruben Harris, a Staff Physician for the State Hospital reported to the trial court:

It is my opinion that Mr. Mauppin is still suffering from the mental defect, Dementia Secondary to Trauma to the head with residual aphasia, for which he was found not competent to stand trial for first degree murder in that he still can marginally communicate on any complex thought process and express himself in a limited way using short simple sentences only. His comprehension of what is said to him appears to be even more limited than his expressing himself.

On February 20, 1987, Dr. Ragsdill again gave the trial court a letter of evaluation. In it, Dr. Ragsdill wrote:

In my opinion, he continues to be unable to appreciate the charges and proceedings against him in any rational way and unable to assist effectively in the preparation of his own defense due to the neurological residuals of his self-inflicted head wound. He continues to have severe difficulties in comprehending language and in expressing his own thoughts. In my opinion, it is not likely that he is going to improve sufficiently ever to be able to be considered competent to stand trial.

Although the record does not give us the exact date, it was apparently just after this letter that appellant was returned to the Department of Correction as a parole violator to serve the remainder of a prior sentence. On January 25, 1988, while appellant was still in prison, the State asked for a re-evaluation. The trial court immediately ordered another evaluation. For some reason unknown to us, but agreed by the parties not to be the fault of either the State or the appellant, appellant was not taken to the State Hospital for the evaluation. Nine months later, on October 21, 1988, the trial court ordered the Sheriff of Cross County to go to the Department of Correction, get appellant, and take him to the State Hospital for a re-evaluation. On December 13,1988, David A. Pritchard, a staff psychologist, not a psychiatrist as required by Ark. Code Ann. § 5-2-305, issued the report on behalf of the State Hospital which provided in part:

Diagnosis: Axis I - Dementia secondary to gunshot wound to head, Moderate; Axis II - Deferred; Axis III - Bilateral, mild to profound, sensorineural hearing loss, secondary to gunshot wound to head.
The defendant appears to be unaware of the nature of the charges and the proceedings taken against him. He is not capable of cooperating effectively with an attorney in the preparation of his defense.
At the time of the commission of the alleged offense, the defendant did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

The report did not state whether the appellant’s condition was of a nature that would preclude fitness to proceed at some future date or whether the appellant presented a danger to himself or others.

By March 3, 1989, appellant had been released by the Department of Correction to the custody of the Sheriff of Cross County to be held on the charges filed in this case. The State, on March 3, again moved for another evaluation. The trial court immediately ordered a re-evaluation and commitment for treatment for up to one year. On August 23,1990, Dr. B. R. Bogost, a staff psychiatrist for the State Hospital, wrote:

The above patient has now improved from his previously diagnosed psychiatric illness and is now fit to proceed. He is ready to return to Court for disposition. He is able to understand the charges against him and is able to assist his attorney in his defense.
He is no longer in need of inpatient psychiatric care. However, at the time of the commission of the alleged offense, the defendant did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.
The patient has neurosensory deficit secondary to the gunshot wound to his head sustained in 1985. Close attention should be given to talking to him face to face and with no surrounding noise.

The trial court ordered the case to go to trial on October 1,1990.

Appellant contends that under the statutes applicable to the above set of facts, the circuit court lost jurisdiction to try him. The argument is without merit. The governing statutes are now codified as Ark. Code Ann. §§ 5-2-301 to -325 (1987), but when the proceedings started in 1985 they were codified as Ark. Stat. Ann. §§ 41-601 to-617 (Repl. 1977). There were only minor changes in the statutes over the five-year period, and they are not material to this case. Generally speaking, the statutes provide for a mental evaluation of the accused by an appropriate mental health facility. Ark. Code Ann. § 5-2-305 (Supp. 1991). The evaluation is to determine the accused’s competency (1) at the time of the crime and (2) at the time of trial. The test at the time of the crime is whether the accused had the capacity to appreciate the criminality of his conduct, or to conform his conduct to the requirements of the law. Ark. Code Ann. § 5-2-305 (d)(4) (Supp. 1991). The test at the time of trial is whether the accused is aware of the nature of the charges against him and is capable of cooperating effectively with his attorney in the preparation of his defense. Ark. Code Ann. § 5-2-305(d)(3) (Supp. 1991). When, under the-time-of-the-crime evaluation, the accused is found not to have had the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, the trial judge may acquit the accused on the basis of the evaluation. Ark. Code Ann. § 5-2-313 (Supp. 1991). When this is done, the circuit court may commit the accused to an appropriate institution for up to thirty days. After that, the circuit court loses jurisdiction, and jurisdiction for a civil commitment is placed in the probate court. Ark. Code Ann. § 5-2-314 (Supp. 1991); Stover v. Hamilton, 270 Ark. 310, 604 S.W.2d 934 (1980).

Here, the accused was never acquitted by the circuit court, and the circuit court never lost jurisdiction to the probate court. Instead, the issue concerned the accused’s competency at the time of trial. From 1985 to 1990, the accused was determined to be unable to cooperate effectively with his attorney in the preparation of his defense. Section 5-2-302 of the Arkansas Code Annotated of 1987 provides that no person who lacks the capacity to understand the proceedings against him or to assist effectively in his defense shall be tried, convicted, or sentenced so long as such incapacity endures. Section 5-2-310 provides that if the circuit court determines that the accused lacks fitness to proceed, the proceedings against him shall be suspended. Thus, the circuit court never lost jurisdiction.

Appellant next argues that the trial court erred in ordering his re-evaluation for a number of reasons. First, he argues that he was in the State Hospital from December 23,1985, to February 20,1987, a period of thirteen months, which is longer than the one-year period that a circuit court can commit a person who lacks fitness to proceed. See Ark. Code Ann. § 5-2-310(b)(1) (1987) (now a ten-month period, see Ark. Code Ann. § 5-2-310(b)(1) (Supp. 1991)). There are two answers to that argument. First, the circuit court may not commit an accused for longer than one year for “restoration of fitness to proceed.” The accused has not shown that the only reason he was in the State Hospital was because of his mental condition. The court orders and petitions, as well as common sense, would lead us to think that it is entirely possible that the commitment had a dual purpose: mental evaluation and the medical recuperation of a person who had recently shot himself in the head and had brain surgery. Second, even if the commitment might have violated the statute, an illegal detention will not void a subsequent conviction. In a comparable situation involving an illegal arrest, we wrote: “It goes almost without saying that a defendant, after having been fairly tried in a court of competent jurisdiction and found guilty ... is not entitled to be set free on the basis of some flaw in the manner of his arrest.” Singleton v. State, 256 Ark. 756, 757, 510 S.W.2d 283, 284 (1974). That reasoning is applicable to this case.

Appellant also argues that the trial court erred in sending him back to the State Hospital for re-evaluation because the statutes do not mention re-evaluation. We also reject this argument for two reasons. First, as set out above, we will not void a conviction for a prior illegal detention. Second, the circuit judge interpreted the applicable statute in a common sense manner. The statute provides, in part: “When the court, on its own motion or upon application of the Director of the Department of Human Services, the prosecuting attorney, or the defendant, determines, after a hearing if one is requested, that the defendant has regained fitness to proceed, the criminal proceeding shall be resumed.” Ark. Code Ann. § 5-2-310(c) (Supp. 1991). Common sense dictates that the above quoted language contemplates a reevaluation that later determines whether the defendant has regained fitness to proceed.

In a somewhat related argument appellant argues that the trial court erred in refusing to rule that he would never recover sufficiently to stand trial. The underlying facts are as follows. On January 23, 1989, appellant filed a petition asking that the charges against him be dismissed because he would never be competent to stand trial. He primarily 'based his petition on the report signed by David Pritchard, a staff psychologist. The trial court denied the petition stating that Dr. Pritchard’s report “is not in compliance with Ark. Code Ann. § 5-2-310... in that the letter does not address the issue of fitness to proceed, or whether the defendant is dangerous to himself or the person or property of others.” The ruling of the trial court was correct for the reasons given by the trial court.

Appellant argues that the trial court erred in refusing to grant his motion for a directed verdict. This point of appeal is procedurally without merit. Appellant moved for a directed verdict at the close of the State’s case-in-chief, but failed to renew the motion at the close of the case. Therefore, he cannot challenge the sufficiency of the evidence on appeal. A.R.Cr.P. Rule 36.21(b); Sanders v. State, 305 Ark. 112, 895 S.W.2d 953 (1991).

The first assignment of trial error that we consider involves the trial court’s denial of appellant’s motion to suppress his confession. Appellant moved to suppress the confession he gave while in custody on the ground that he did not knowingly and intelligently waive his Fifth, Sixth, and Fourteenth Amendment rights. The trial court heard evidence on the motion and refused to suppress the statement. A majority of this court, consisting of the Chief Justice and Justices Dudley, Newbern, and Brown agree that ruling was in error. The Supreme Court of the United States, in a series of cases, has set out the applicable principles. In Miranda v. Arizona, 384 U.S. 436, 467 (1966), the Court recognized that custodial interrogation inherently produces “compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” To neutralize this inherent compulsion and give true meaning to the Fifth Amendment privilege against self-incrimination, the Court in Miranda imposed a clear standard for police to follow in dealing with an accused. Before questioning an accused, the police must fully apprise the suspect of the State’s intention to use his statements to secure a conviction and must inform him of his rights to remain silent and to have counsel, if he desires. Id. at 468-70. A waiver of these rights is valid only if it is made “voluntarily, knowingly and intelligently.” Id. at 444. An incriminating statement obtained on the basis of a waiver must be excluded unless the State establishes to the satisfaction of the trial court by a preponderance of the evidence that the waiver was voluntarily, knowingly, and intelligently given. Colorado v. Connelly, 479 U.S. 157, 168 (1986).

The inquiry into waiver has two distinct dimensions. Colorado v. Spring, 479 U.S. 564 (1987); Moran v. Burbine, 475 U.S. 412 (1986). “First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran at 421. “Involuntary confession” jurisprudence is concerned with governmental intimidation, coercion, or deception. Colorado v. Connelly, 479 U.S. 157 (1986). Such governmental overreaching is not at issue in this case, and we do not discuss it further.

“Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran at 421. In Colorado v. Spring, 479 U.S. 564, 574 (1987), the Court wrote:

The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege. Moran v. Burbine, supra, at 422; Oregon v. Elstad, supra, at 316-317. The Fifth Amendment’s guarantee is both simpler and more fundamental: A defendant may not be compelled to be a witness against himself in any respect. The Miranda warnings protect this privilege by ensuring that a suspect knows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time. The Miranda warnings ensure that a waiver of these rights is knowing and intelligent by requiring that the suspect be fully advised of this constitutional privilege, including the critical advice that whatever he chooses to say may be used as evidence against him.

“Only if the ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Moran at 421 (citing Fare v. Michael C., 442 U.S. 707, 725 (1979)). The “totality of the circumstances” appellate review mandates inquiry into an evaluation of “age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” Fare at 725. Thus, a court must look at the totality of the circumstances to see if the State proved that a defendant had the requisite level of comprehension to waive his Fifth and Sixth Amendment rights.

In this case, the trial judge did not make a finding of fact on the issue of a knowing and intelligent waiver. Instead, he found only that the statement was voluntary. The trial judge stated that he was guided by the case of Colorado v. Connelly, supra, and held that there was no police “intimidation or coercion or deception” and that the waiver was “voluntarily” given. As previously set out, coercion, or police overreaching, is not the issue before us, and the case of Colorado v. Connelly, supra, is a case about coercion. In that case, “voices” told the accused to confess, and the Supreme Court held that an accused’s hearing of “voices” was not governmental misconduct which would render the statement coerced. The issue of a “knowing and intelligent” waiver was not before the Supreme Court in that case, and its reasoning is inapposite to the case at bar.

At the suppression heáring, in order to prove by a preponderance of the evidence that the waiver was knowingly and intelligently given, the State called only two witnesses, Buddy Early, the Wynne policeman who was the guard outside the appellant’s hospital room on the day he gave the confession, and Dave Parkman, the investigator for the Cross County Sheriffs Office who took the confession. Policeman Early was asked if the appellant was given a Miranda warning, and he responded that investigator Parkman gave the appellant a written statement advising him of his rights and that appellant signed the statement and initialed each of the six questions on the statement. He was not asked if appellant was allowed to read the statement. He was not asked if appellant was already familiar with his rights. He was not asked if the appellant was allowed sufficient time to read the warning form. He was not asked the interval of time that elapsed between his entry into appellant’s hospital room and when appellant signed the form. He was not asked about appellant’s age, experience, education, background, intelligence, whether he was under sedation for pain at the time, whether he had the requisite capacity to understand the warnings given him, whether he understood his Fifth Amendment rights, or whether he understood the consequences of waiving those rights. He was asked numerous questions going to the issue of voluntariness, but that is not the issue. In summary, he was not asked questions to prove that the appellant possessed the requisite level of comprehension to waive his constitutional rights.

Investigator Parkman testified that he explained each of appellant’s rights to him and that appellant signed the statement of rights form and initialed each question on the form. He testified that the appellant nodded yes to indicate he understood the questions on the form. Investigator Parkman, like officer Early, did not testify about appellant’s age, experience, education, background, intelligence, whether he had the capacity to understand the warnings, or whether he had the capacity to understand his Fifth Amendment rights and the consequences of waiving those rights. Investigator Parkman testified that appellant appeared to be in critical condition immediately after he shot himself, that he was taken to a hospital in Memphis where he had brain surgery, and that appellant had just been returned to the Cross County Hospital when he gave the statement. He admitted that appellant could not speak, but could only communicate by motions and writing, and that Parkman, not appellant, wrote the statement. He was not asked, and did not testify whether appellant had been, or still was, under sedation or medication. Investigator Parkman answered numerous questions going to the voluntariness of the confession. It is significant that the State did not offer the testimony of any nurses, aides, doctors, or visitors from the hospital in Memphis, the Cross County Hospital, or the State Hospital.

While the State did not put on evidence going to the level of appellant’s comprehension, appellant put in evidence the reports from the State Hospital which went directly to the issue. On December 10, 1985, just a little over three months after the confession, Dr. Roy Ragsdill found the appellant was unaware of the nature of the charges and proceedings against him and unable to cooperate with his attorneys. The other reports, quoted in an earlier part of this opinion, indicate that this mental condition continued for almost four years. His “aftercare plan” in 1989 states, “[P]atient does have a hearing loss and wears a hearing aid. He can understand conversation if spoken to slowly and directly face-to-face. Patient will require medication management and supportive therapy while incarcerated pending disposition of his charges.”

The waiver of rights form initialed by the appellant and signed by him is also significant. Appellant’s initials on the form are printed with an unsteady hand, and the signature is also printed with an unsteady hand. In contrast, at an earlier hearing on October 17, 1989, the State introduced five letters and one card written by appellant. The State offered these to show that appellant was capable of going to trial. They are dated from November 8, 1985, or shortly after the crimes, to February 11, 1988. They reflect a steady and fluid penmanship, wholly unlike the initials on the form.

The totality of the circumstances reflects that the accused shot himself in the head on August 11, 1985. He was thereafter taken to a hospital in Memphis, had brain surgery, and was returned to the Cross County Hospital where, on August 24, 1985, just thirteen days after the gunshot wound and an unknown number of days after surgery, he gave the confession. The record does not reflect whether appellant was under medication for pain, nor does it reflect his level of intelligence, experience, or comprehension of his constitutional rights. The only direct evidence relating to his level of comprehension is the evidence from the State Hospital which indicated that appellant was unaware of the nature of the charges and proceedings against him. If he was unaware of the nature of the charges and proceedings, it would be most difficult for him to appreciate and understand his rights and to knowingly and intelligently waive them. Thus, upon our review of the totality of the circumstances, we hold that the State did not show that the waiver was made with a full awareness of both the nature of the rights being abandoned and the consequences of the decision to abandon them. Accordingly, we reverse on this point.

Appellant asked the trial court to give AMI Criminal 4005.1, the instruction that outlines the defense of voluntary intoxication. The trial court refused to give the instruction, and that ruling was in error.

At common law, evidence of voluntary intoxication could be admitted to show the accused was incapable of forming the specific intent to commit a crime. In 1976, in the then new criminal code, the General Assembly provided that “self-induced intoxication is an affirmative defense to a prosecution if it negates the existence of a purposeful or knowing mental state.” Ark. Stat. Ann. § 41-207 (1976). In 1977, by Act 101 of 1977, the General Assembly removed self-induced intoxication as a statutory defense. As a result, we held that when the legislature removed the statutory affirmative defense, there was no longer any statutory law on the subject, and the common law on the subject was reinstated. Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978). Thus, from 1978 until it was overruled, Varnedare was the law in this State. The crimes at issue in this case occurred in 1985. In 1986, we overruled Varnedare in the case of White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986), and held that the General Assembly had previously intended to completely eliminate self-induced intoxication as a defense and had not intended to reapply the common law to the subject.

The crimes in this case were committed on August 11, 1985, when Varnedare was still the law. At the time of these crimes, our substantive law recognized the common law defense of voluntary intoxication to specific intent crimes. The ruling of the trial court applied White to retroactively abolish the justification defense, and in so doing, eliminated a defense that was available at the time of the offense. This was in error. The same conduct that would have gone unpunished under the defense made available in Varnadere, would result in a conviction after White. An accused is entitled to any defense that existed at the time of the commission of the crime, even if that defense was based only on a court’s erroneous interpretation of the law. James v. United States, 366 U.S. 213 (1960).

Such a holding is based on the judicial corollary of the prohibition of ex post facto laws. “Ex post facto” literally means a law passed after the fact. That is, after the occurrence of the fact, or the crime. The constitutional prohibition on ex post facto laws is a limitation upon the powers of the legislature and does not of its own force apply to the judicial branch. However, the principle on which the clause is based, the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties, is fundamental to our concept of constitutional liberty, and as such, is protected against judicial action by the due process clause of the Fifth Amendment. Marks v. United States, 430 U.S. 188 (1977). Accordingly, the Supreme Court held that an unforeseen judicial enlargement of a criminal statute, applied retrospectively, operates precisely like an ex post facto law that is prohibited by Article I, § 10 of the Constitution of the United States, and it follows that such an interpretation is barred by the due process clause of the Fourteenth Amendment from achieving precisely the same result by judicial construction. The fundamental principle is that the required criminal law must have existed when the crime occurred. Collins v. Youngblood, 110 S. Ct. 2715 (1990).

Appellant makes numerous other assignments of trial error, but none have merit. We address only those which might arise upon retrial. Appellant argues that the death penalty is cruel and unusual punishment in violation of the Eighth Amendment. This issue has been decided adversely to appellant’s position. Gregg v. Georgia, 428 U.S. 153 (1976); Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987), cert. denied, 484 U.S. 917 (1987). He argues that the Arkansas death penalty statute, Ark. Code Ann. § 5-4-603 (1987), is unconstitutional because it mandates death. We have often rejected this contention, Pickens v. State, supra, and most recently did so in Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992). He argues that the trial court erred in allowing death qualification of the jury. The Supreme Court of the United States and this court have both rejected this argument. Lockhart v. McCree, 476 U.S. 162 (1986); Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991). Appellant argues that the statutory aggravating circumstances for the death penalty are unconstitutional because they are vague and over-broad. We rejected this argument in Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989). He argues that the capital murder statute is unconstitutional because it overlaps the first degree murder statute. We have also rejected this argument. See Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991).

Additionally, appellant argues the trial court abused its discretion in denying his motion for a change of venue. We have repeatedly emphasized the significance of the trial court’s observation of the witnesses on these motions, and we cannot say the trial court abused its discretion in this case. See Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). He argues that the trial court erred in not ordering funds for a private psychiatrist. We have rejected this argument. See Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989). Finally, he argues that the trial court erred in allowing a number of exhibits into evidence because of an alleged break in the chain of custody. We cannot say the trial court erred in its ruling. See Neal v. State, 298 Ark. 565, 769 S.W.2d 414 (1989). Appellant makes other assignments of error that we do not address as they are not likely to arise again upon retrial.

Appellant has not complied with the requirement of Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals by abstracting all objections decided adversely to him in this death sentence case. The Attorney General stated that he did so but, in fact, he did not. Despite these failures to comply with the rule, we have chosen not to order that the case be rebriefed because that would cause another delay in a case that is already seven years old.

Reversed and remanded for a new trial.

Hays, Glaze, and Corbin, JJ., dissent.

Tom Glaze, Justice,

dissenting in part. I strongly disagree with the majority decision that Gary Mauppin did not understand his rights and knowingly and intelligently waive them. Basically, the majority court must disbelieve the testimony of Officers Dave Parkman and Buddy Early to reach that conclusion, and such a call on credibility of witnesses is not this court’s function. These officers’ testimony was replete with how Mauppin voluntarily and knowingly responded to questions reflecting the details of how he chillingly killed two men during their sleep.

The officers related that Mauppin could not talk, but he answered questions by writing notes, nodding his head, using his hands and demonstrating how the victims were positioned in their beds when he shot them. The officers employed crime scene diagrams which Mauppin used to show where the victims and certain items were located in the bedrooms. Parkman testified on this point as follows:

His [Mauppin’s] responses were accurate. The nod of the head, agree or disagree, corrections in some things that we asked him, the physical facts that backed up what Mr. Mauppin responded to, which were accurate. I don’t believe we found one place on our diagrams where Mr. Mauppin was inaccurate. What he pointed out was always accurate as to what the questions were toward him and that’s why I say he understood very well what we were talking about.

Both officers testified that Mauppin disagreed on some sets of facts presented him. In this respect, Parkman related the following:

Yes, sir. I remember on two different occasions, I remember recalling an instance where Mr. Mauppin was arrested and where he had went to that morning after these shootings and there was a table beside a bed in the bedroom where Mr. Mauppin had been laying. There was some cigarettes and a lighter on that table. I asked Mr. Mauppin about a pack of cigarettes and a lighter on that table and he corrected me as two packs of cigarettes and we did verify the fact that there were two packs of cigarettes on that table instead of one. I recall that incident and then he corrected me on a time element. I don’t recall exactly where it was. I believe it was the time he spent in Dolphus Sams trailer. I believe there was a correction there. We thought the time was shorter as to the time he had spent in the trailer and he corrected us in that. I believe that’s the time element I’m talking about.

Officer Early testified that he was guarding Mauppin in the hospital when Mauppin wrote a note requesting Parkman’s presence. Early was in Mauppin’s room when Parkman spoke with Mauppin. Mauppin was sitting on the corner of his hospital bed. Early confirmed that Mauppin understood his rights and initialed each one. The majority refers to Mauppin’s unsteady hand when initialing the rights form, but Mauppin, who was left-handed, used his right hand in initialing the form. On this point, the majority opinion refers to letters and a card which were later written in a steady and fluid penmanship. They were letters written to family members. One letter, in fact, wás written only two months after his confession and during the time he purportedly was unaware of the nature of the charges against him. Yet, excerpts from that letter, written in very good penmanship, and others were read and summarized by the prosecutor, without objection, as follows:

“August 11,1985-1 shot myself. There is a hole in my head about two inches by two inches. The doc told me wouldn’t live long. I have a twelve year old brain and can’t talk and can’t remember nothing. Don’t know why at all. August 26, 1985 - In prison diagnostic unit. Stayed there 37 days. Man give me test and told me I had a nine to twelve year old brain. Went to Cummins October 1 and I was in Barracks 19. Had job in laundry. Worked one day and then locked me down in 16 building.” It goes on to tell about birthdays. It goes on talking about how many letters he received from each of his children. It says here in this same letter in November of 1985 - “Diane one letter, Mom and Dad five to seven letters. They don’t send me no money and it rough to get by on. I been there three months. Nobody ever show up. The reason Pat Lloyd cause all of it. That bitch.” So, he goes on to show hostility towards individuals. He asks questions of how members of his family are. He wrote a letter on him birthday, July 4,1986, that’s twenty-seven pages long. It’s been introduced into evidence here. It’s asking his girls if they want him to build things like this Exhibit No. 3 that’s already been introduced and for them to write down what they want on it. He draws pictures one every page and asks them how they like his artwork. He goes into what he does during the day from 9:30 to 10:00, it tells what he did then. That he laid down, that he wrote, that he went to the visitors hours. He watched Price is Right. He goes into great detail of everything he’s done.

Besides the foregoing passages, other letters exhibiting Mauppin’s reasoning powers were displayed to the trial judge. Aside from grammatical errors, Mauppin’s correspondence reflects a man with communicative skills, and the letters support Officer Parkman’s and Early’s assertion that Mauppin had the capability to intelligently and knowingly waive his rights before having given his confession.

The majority points out that the trial court failed to make a finding on the issue of a knowing and intelligent waiver, but both the prosecutor and Mauppin’s counsel discussed these terms repeatedly when arguing Mauppin’s motion to suppress. Appellant does not contend on appeal that the trial court failed to consider this “knowing and intelligent waiver” issue when ruling on his motion, and I suspect even he will be surprised with this aspect of the majority opinion. One has to ignore a substantial part of the record to assume the trial court did not have these elements in mind when it overruled Mauppin’s motion. Nevertheless, I believe the record reflects the “totality of the circumstances” supports the view Mauppin intelligently and knowingly waived his rights before giving his confession. The majority simply disregards Officer Parkman’s and Early’s testimony and Mauppin’s own handwriting in order to reach a contrary conclusion. And because I am also of the view that the trial court ruled on Mauppin’s entire motion, including the elements of a knowing and intelligent waiver, I conclude the court was not clearly erroneous.

The prosecutor contended Mauppin feigned an inability to understand his rights, and produced convincing evidence to support his contention. At most, conflicting evidence was presented bearing on this issue, and I believe the majority court is wrong in holding Mauppin did not have the knowledge and intelligence to waive his rights. Again, in doing so, the majority not only discredits entirely the officers’ testimony, but also it ignores Mauppin’s own penmanship which, in my view, conclusively shows he had the ability to communicate very well.

I would not reverse this case on the voluntary and knowing issue relied upon by the majority court. Therefore, I dissent.

Hays and Corbin, JJ., join this, dissent.

       Mauppin’s motion to suppress alleged he was unable to make a knowing and intelligent waiver of his right to counsel and to make a voluntary statement.


author: Robert H. Dudley, Justice.

text:
    James PLEDGER, Director Department of Finance and Administration, State of Arkansas v. GETTY OIL EXPLORATION COMPANY
    91-228
    831 S.W.2d 121
    Supreme Court of Arkansas
    Opinion delivered May 4, 1992

      Rick L. Pruett, for appellant.

      David J. Dziak of Texaco, Inc.’s Tax Department; and Jack, Lyon & Jones, P.A., by: Eugene G. Sayre, for appellee.
   Robert H. Dudley, Justice.

The single issue in this case is whether the accrued interest income of the appellee corporate taxpayer, Getty Oil Exploration Company, constituted apportionable business income in 1983 and 1984 under the Uniform Division of Income for Tax Purposes Act. The chancellor determined that the income was not taxable by the State of Arkansas. We affirm the chancellor’s ruling.

Getty Oil Company, the taxpayer’s parent corporation, was a publicly traded major integrated oil company which was incorporated in Delaware but had its headquarters and commercial domicile in Los Angeles, California. In 1979, in anticipation of a subsequent merger, Getty Oil Company formed a wholly owned domestic subsidiary, Getty Reserve Oil, Inc., which also was headquartered in Los Angeles. This subsidiary was authorized to do business in eighteen states, including Arkansas. At the same time, Reserve Oil and Gas Company was a major integrated oil and gas producer and marketer and was a parent company of numerous wholly owned subsidiaries, including Reserve Oil, Inc.

On January 23, 1980, Getty Oil Company acquired the Reserve Oil and Gas Company by corporate merger. The merger included the assets of the wholly owned subsidiary, Reserve Oil, Inc. The assets of Reserve Oil, Inc. were transferred, as planned, to Getty Reserve Oil, Inc. None of the assets of Reserve Oil, Inc. were shown to be in Arkansas. Reserve Oil, Inc. was subsequently dissolved and is no longer material to this case. Getty Reserve Oil, Inc. soon transferred the assets it received from Reserve Oil, Inc. to its parent, Getty Oil Company for a consideration of $159,750,000.00. Getty Oil Company paid this amount with a promissory note dated August 1,1980, payable to Getty Reserve Oil, Inc. and bearing interest at the rate of six (6) per cent. (It is the interest on this note that will accrue in 1983 and 1984 which the Department of Finance and Administration will attempt to tax.) Getty Oil Company never made a cash payment on the note and for the first sixteen months, made no entries reflecting interest owing on the note. Likewise, Getty Reserve Oil, Inc. made no entries showing interest accruing on the note. Next, on December 31, 1982, immediately before the tax years at issue began, the books of Getty Reserve Oil, Inc. reflected an accrual of $24,247,189.42 interest income on the note and the records of Getty Oil Company reflected the same as an accrued interest expense.

After the note had been executed and delivered, Getty Reserve Oil, Inc. conducted an active oil and gas exploration business in eighteen states and, as a part of that business, acquired and managed gas producing properties in Arkansas.

In early 1983, Getty Oil Company negotiated the sale of Getty Reserve Oil, Inc.’s corporate stock to an unrelated company, Comajo Petroleum Company. However, Getty Oil Company wanted to keep the Arkansas gas producing properties and negotiated retention of those assets.

Meanwhile, from August 10, 1972, until December 28, 1982, Getty Oil Company owned an inactive subsidiary named Getty Oil International (Spain) S.A. On December 28,1982, the name of this subsidiary was changed to Getty Oil Exploration Company. On February 11, 1983, Getty Oil Exploration Company became qualified to do business in Arkansas under the name of Getty Arkoma, Inc., and immediately afterwards, the promissory note and the title to the Arkansas gas producing properties were transferred from Getty Reserve Oil, Inc. to Getty Oil Exploration Company. (The State contends that the income tax liability began to accrue at this time to Getty Oil Exploration Company.) Getty Oil Exploration Company had no employees of its own; it contracted with Getty Oil Company for the active management of the Arkansas gas fields. It did not hold the note; it was held in Getty Oil Company’s office. Getty Oil Exploration Company did not control the note; it was controlled by Getty Oil Company’s corporate treasury department. Getty Oil Exploration Company gave nothing for the note which was later cancelled under generally accepted accounting principles.

On December 31, 1983, Getty Oil Company issued a new promissory note to Getty Oil Exploration Company in the amount of $204,793,434.14 bearing interest at the rate of eleven (11) per cent. This new note represented a consolidation of all indebtedness between the parent and the subsidiary. Getty Oil Exploration Company’s books, which were kept by the corporate treasury department of Getty Oil Company, reflected an intercompany interest income of $23,211,877.00 as of December 31, 1984. This interest was classified on the corporate books as non-operating revenue. On December 31,1984, the trial balance of Getty Oil Exploration Company books showed accrued intercompany interest receivable of $11,979,097.00 and long-term intercompany notes receivable of $216,026,213.00.

On February 17,1984, Texaco, Inc. acquired all of the stock of Getty Oil Company and all of its subsidiaries. As part of the plan of reorganization of the merged companies, Texaco, Inc. made Getty Oil Company a wholly owned subsidiary. Texaco, Inc. owned another subsidiary, Texaco Producing, Inc., and it caused Texaco Producing, Inc. to acquire all of the stock of Getty Oil Exploration Company. By the end of 1984, Getty Oil Company had transferred most of its assets and liabilities, including the liability on the note at issue, to Texaco Producing, Inc. in exchange for stock in Texaco Producing, Inc. In 1985, Texaco, Inc. caused Getty Oil Exploration Company to transfer all of its assets, including the promissory note and title to the gas properties in Arkansas, to Texaco Producing, Inc. as a dividend in kind. Thus, Texaco Producing, Inc. held both the liability of the note payable and asset of the note receivable. The asset and the liability were then canceled by offsetting accounting entries on the books of Texaco Producing, Inc. Under generally accepted accounting principles, when an obligation and an asset are in the same company, it is the accepted practice to cancel the note.

In Arkansas, Getty Oil Company filed a separate income tax return in 1983 and filed an apportioned income tax return in 1984. It did not attempt to deduct the interest accruing to Getty Oil Exploration Company on either of these returns. Getty Oil Exploration Company, the taxpayer, filed an apportioned tax return in both 1983 and 1984, and reported the accrued interest income, but designated it as “nonbusiness income.” Therefore, it did not pay income tax to the State of Arkansas on the accrued interest income.

Through auditors, the Director of the Department of Finance and Administration conducted an audit of Getty Oil Exploration Company’s 1983 and 1984 income tax returns and reclassified the accrued interest as “business income.” This reclassification caused Getty Oil Exploration’s gross income to be increased in 1983 from $1,838,208.00 to $22,638,083.00 and in 1984 from $1,063,283.00 to $21,372,622.00, and caused a deficiency assessment of $389,433.00. Getty Oil Exploration Company protested the deficiency assessment, but it was affirmed by the Administrative Law Judge of the Revenue Department’s Board of Hearings and Appeals. The Commissioner of Revenues denied a request for a revision. In 1987, an assessment of corporate income tax and interest was made against Getty Oil Exploration Company in the amount of $512,065.18. This amount was paid by Texaco, Inc., under protest, and this suit for refund was filed in the Chancery Court of Pulaski County. The chancellor found that the accrued interest was “nonbusiness income” and entered a judgment in favor of the taxpayer for the amount paid under protest.

The Director of Finance and Administration’s single point of appeal is that the accrued interest was “business income” and therefore taxable. The argument is without merit.

Arkansas is one of twenty-three states that have adopted UDITPA, the Uniform Division of Income for Tax Purposes Act, Ark. Code Ann. §§ 26-51-701 to -723 (1987, Supp. 1989). This Act governs the manner in which Arkansas may impose income and franchise taxes on the earnings of multistate and multinational corporations doing business in the State. UDITPA is designed to fairly apportion among the states in which a corporation does business the fair amount of regular business income earned by the corporation’s activities in each state. Under UDITPA, net taxable business income of a corporate taxpayer involved in a multistate business is apportioned by a well recognized three-factor formula consisting of tangible property, payroll, and sales. Ark. Code Ann. §§ 26-51-710 to -717 (1987).

“Business income” is defined in Ark. Code Ann. § 26-51-701 (a) (1987, Supp. 1989) as:

[I]ncome arising from transactions and activity in the regular course of the taxpayer’s trade or business and includes income from tangible and intangible property if the acquisition, management, and disposition of the property constitute integral parts of the taxpayer’s regular trade or business operations. [Emphasis added.]

“Nonbusiness income” is defined in Ark. Code Ann. § 26-51-701(e) (1987, Supp. 1989) as “all income other than business income.”

To the extent that it constitutes “nonbusiness income,” interest income is allocated to the state of the taxpayer’s commercial domicile. Ark. Code Ann. §§ 26-51-704 and -707 (1987). In this case the taxpayer, Getty Oil Exploration Company, paid the tax on the accrued interest in California, the state of its commercial domicile.

The focus of the statute defining “business income” is the nature of the taxpayer’s business. Under the statute business income arises from either of two sources: (1) transactions and activity in the regular course of the taxpayer’s business, referred to as the transactional test, or (2) income from the acquisition, management, and disposition of property that constitutes integral parts of the taxpayer’s regular business, referred to as the functional test. See McGowan and Murray, The Business v. Nonbusiness Income Controversy: Recent Developments, 8 Journal of State Taxation 303, 303-304 (1989).

Under the transactional test, the transfer of the note from Getty Reserve Oil, Inc. to the taxpayer, Getty Oil Exploration Company, was an extraordinary and non-recurring event. It was not a transaction in the “regular course of the taxpayer’s business.” The evidence clearly shows that the taxpayer gave no consideration for the multi-million dollar intercompany note, and the parent corporation simply used the subsidiary taxpayer to hold the note. It was a unique, non-recurring event. This is the only promissory note that the appellee taxpayer, Getty Oil Exploration Company, is shown to have held. It was not shown to have accrued any other interest. The chancellor correctly held this was a non-recurring event and was not a transaction that occurred in the regular course of the taxpayer’s business.

The proof is equally clear under the functional test. The appellee taxpayer, Getty Oil Exploration Company, was not in the business of acquiring, managing, or disposing of this type of property. Before 1983, it existed only as an inactive corporate shell named Getty Oil International (Spain) S.A. The shell did not acquire, manage, or dispose of notes or invest in other intangible assets. The related company that originally held the note, Getty Reserve Oil, Inc., was sold to an unrelated company. The parent company changed the name of this corporate shell to Getty Oil Exploration Company at the end of 1982 and in January 1983, transferred the note and the gas producing property in Arkansas into it. The appellee taxpayer is not the successor of the original holder, Getty Reserve Oil, Inc., which ceased to exist within the taxpayer’s corporate family. The appellee taxpayer was a subsidiary corporate entity into which the parent placed the intercompany note for bookkeeping purposes; it gave no consideration for the note. It was a passive holder of a note that was generated as a result of an intercompany transaction to which it was not a party. It did not have a plan of active corporate investment in order to expand the corporation. It did not manage the note; it had no employees. It did not hold the note; it was held at the parent company’s office. It did not control the note; it was controlled by the parent corporation. It did not have any active investment strategies in intangibles such as stocks, bonds, or promissory notes. Thus, the acquisition, management, and disposition of notes was not an integral part of the taxpayer’s regular trade or business. The taxpayer proved that the intangible income was earned in the course of activities unrelated to its regular business operations within the State.

The Director argues that one of the principal purposes for the taxpayer’s existence was to manage the note. He argues that the taxpayer’s income from gas operations amounted to only $1,838,200.00 in 1983 and $1,063,283.00 in 1984, while the intercompany interest income amounted to $20,799,875.00 in 1983 and $20,309,339.00 in 1984. Based on these figures he argues that the taxpayer’s main purpose was to manage the note. For the reasons set out in the preceding paragraphs, it is clear that the taxpayer’s regular business purpose was not to manage notes. In addition, the “purpose” test has been discredited by the Supreme Court of the United States. In ASARCO, Inc. v. Idaho State Tax Comm’n, 458 U.S. 307 (1982), the State argued that, under UDITPA, it should be able to tax its apportionable share of the intangible income of a corporation doing business in the State but domiciled elsewhere if the intangible property is acquired, managed, or disposed of for purposes relating or contributing to the taxpayer’s business. Rejecting the State’s “purpose” test, the Court observed that this concept would be no limitation at all on the State’s ability to tax the income of a corporation not domiciled within it and said:

The business of a corporation requires that it earn money to continue operations and to provide a return on its invested capital. Consequently, all of its operations, including any investment made, in some sense can be said to be “for purposes related to or contributing to the [corporation’s] business.”

Id. at 326.

Similarly, in the present case, such a “purpose” interpretation of UDITPA’s definition of business income would eliminate the distinction between business and nonbusiness income. Thus, the chancellor made no error in her application of the law.

We are not aware of any case to the contrary. The Director cites us to the case of Bendix Corp. v. Director, Div. of Taxation, 125 N.J. 20, 592 A.2d 536 (1991), but that case is clearly distinguishable. It does not involve the interpretation of UDITPA, but rather involves constitutional issues under the Commerce and Due Process Clauses. It does not involve an isolated note that was generated and passively held as the result of an intercompany transaction, but rather involves investments which were an integral part of the taxpayer’s plan of expansion of the existing corporate business by merger and acquisitions.

The appellee taxpayer makes an alternative argument for sustaining the ruling of the chancellor. It argues that the income from the notes did not have a rational relationship with the State of Arkansas, and a tax on this income would be violative of the Due Process Clause for the State of Arkansas to tax the income from the notes. See Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U.S. 207 (1980). We do not reach the argument since we affirm the chancellor under the language of the statute.

Affirmed.


author: Steele Hays, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Benny ROARK
    91-327
    828 S.W.2d 843
    Supreme Court of Arkansas
    Opinion delivered May 4, 1992

      Treeca J. Dyer, for appellant.

      Wynne & Wynne, by; Tom Wynne, III, for appellee.
   Steele Hays, Justice.

This appeal presents an issue of first impression under the Arkansas Highway Beautification Act, Ark. Code Ann. §27-74-401 — 502(1987 and Cum. Supp. 1991). In part, the act provides that junkyards within a thousand feet of interstate, primary and designated highways be screened from the view of the traveling public unless they are in an area zoned for industrial use.

Appellee Benny Roark operates Big Ben’s Auto Salvage in Fordyce, consisting of some fifty acres adjacent to U.S. Highway 79. In May 1984 the Arkansas State Highway Commission (plaintiff/appellant) identified and classified Big Ben’s Auto Salvage as an illegal junkyard and notified Mr. Roark of the screening requirements of the act. Some attempt was made toward compliance, but not agreeably to the Commission and finally it petitioned the chancery court for a mandatory injunction.

In March 1991, just prior to trial on April 1, the City of Fordyce granted Mr. Roark’s application to rezone a portion of his property from commercial to industrial usage. Following trial, the chancellor held that the case was controlled by that provision of the act [Ark. Code Ann. § 27-74-406 (1987)] which exempts junkyards zoned for industrial usage and relieved Roark of any screening requirement under the act. The Commission has appealed and we reverse.

The Commission contends that the chancellor erred, first, in ruling § 27-74-406 is controlling over Ark. Code Ann. § 27-74-405 (1987) where an existing junkyard is rezoned to defeat the requirement of the state and federal highway beautification acts; and, second, in finding that an established junkyard prohibited under § 27-74-405 can become a permitted junkyard under § 27-74-406 by subsequent zoning to an industrial usage.

The chancellor’s findings that § 27-74-406 is controlling over § 27-74-405 and that an established junkyard can become a permitted junkyard by subsequent zoning to industrial usage are clearly erroneous under the circumstances. Section 27-74-405 provides that no junkyard shall be established, operated, and maintained, any portion of which is within 1,000 feet of the right-of-way of any interstate, primary or designated highway. However, § 27-74-406, on which Roark relies, makes allowance for junkyards “within those areas which are zoned industrial under authority of the laws of this state.”

Thus the issue presented is whether the appellee can avoid the screening requirements of the highway beautification act by the simple expediency of rezoning his property to industrial use so as to come within the exception recited in § 27-74-406. We think not, and certainly not in the context of this case. We construe the act to mean that the exemption for industrial zoning applies to zoning in existence on the effective date of the act.

Among other things, the Federal Highway Beautification Act (23 U.S.C.S. § 131, et seq.) provides for the control of junkyards and billboards to preserve natural beauty and promote public safety and investment in areas adjacent to the interstate and primary highway systems. In furtherance of the act’s objectives, Congress required states receiving federal funds to establish provisions for the effective control of billboards and junkyards. The Arkansas Highway Beautification Act was adopted pursuant to that congressional directive and declares that junkyards not conforming to its provisions are public nuisances.

We find merit in the Commission’s argument that the language used in § 27-74-406 is conjunctive, i.e., “nothing shall prohibit the establishment, maintenance, and operation of outdoor junkyards. . . ,” (our emphasis), lending substance to the inference that a junkyard must be established in an existing industrial zone in order to claim the exemption provided for in § 27-74-406.

We deem the Arkansas Highway Beautification Act to be remedial and, hence, to be liberally construed so as to effectuate the purpose sought to be accomplished by its enactment. See generally Yarbrough v. Arkansas State Highway Commission, 260 Ark. 161, 539 S.W.2d 419 (1976). In that light we hold the act cannot be avoided by taking recourse to industrial zoning for no purpose other than to escape its modest requirements.

Reversed and remanded for the entry of a decree in harmony with this opinion.


text:
    Jason Shavrome HELTON v. ARKANSAS DEPARTMENT OF HUMAN SERVICES
    91-324
    828 S.W.2d 842
    Supreme Court of Arkansas
    Opinion delivered May 4, 1992

      Killough, Ford, & Hunter, by: Robert M. Ford, for appellant.

      Cecilia F. Roberts, for appellee.
   Steele Hays, Justice.

The Arkansas Department of Human Services filed a complaint against Jason Shavrome Helton alleging that Helton was the putative father of a child born to Angela Frazier. The Department moved for paternity blood testing pursuant to Ark. Code Ann. § 9-10-108 (1987). The motion was accompanied by Ms. Frazier’s affidavit asserting that she and Helton had had sexual intercourse during the period of conception and after a hearing, the chancellor ordered Helton to report for paternity testing. Helton brings this appeal from that order.

The Department points out quite correctly that the order, not being final, is not appealable. Ark. R. App. P. 2(a).

We have held in numerous cases that we do not reach the merits of an appeal if the order appealed is not final. Corning Bank and Bailey Bippus v. Delta Rice Mills, Inc., 281 Ark. 342, 663 S.W.2d 737 (1984); Heffner v. Harrod, 278 Ark. 188, 644 S.W.2d 579 (1983); McIlroy Bank & Trust v. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982); Roberts Enter., Inc. v. Arkansas Highway Comm’n, 277 Ark. 25, 638 S.W.2d 675 (1982). In these and other cases we have stated that in order for a judgment to be appealable, it must dismiss the parties from the court, discharge them from the action or conclude their rights to the subject matter in controversy. See also Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967), and Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984).

Appeal dismissed.


author: Donald L. Corbin, Justice.

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY v. LITTLE ROCK QUARRY COMPANY, INC.
    91-356
    830 S.W.2d 362
    Supreme Court of Arkansas
    Opinion delivered May 4, 1992

      Kemp, Duckett, Hopkins, & Spradley, by: Donald K. Campbell, III, and Randolph B. Hopkins, P.A., for appellants.

      Dodds, Kidd, Ryan & Moore, by: Robert T. James, for appellee.
   Donald L. Corbin, Justice.

The question presented in this case is whether the trial court applied the correct statute of limitations to an action against the appellant surety company on a construction bond issued to the Arkansas State Highway Commission.

Lamar Haddox, a now insolvent contractor, contracted with the Highway Commission to perform a construction project. The contract included a contract bond that Haddox executed with appellant United States Fidelity and Guaranty Company (USF&G). Final payment on the construction contract was made on December 12, 1989.

This suit arose when Haddox defaulted on his $29,091.18 debt to appellee Little Rock Quarry Company, which had supplied the project with road materials. The company filed this action on June 29,1990, and appellant moved to dismiss contending that appellee’s suit was barred by the six month statute of limitations set out in Ark. Code Ann. § 22-9-403 (1987), the statute governing actions on public works contract bonds. The trial court denied appellant’s motion to dismiss, finding that the contract bond provided broader coverage than that required by the statute governing bonds for public works and was therefore a common law bond not subject to the six month statute of limitations set out in section 22-9-403(b). The court awarded judgment to appellee in the amount of the unpaid balance for the furnished road materials, plus a statutory penalty and attorneys’ fees. On appeal, the sole question is whether the trial court correctly decided the statute of limitations issue. We affirm.

The “condition” of the bond at issue contains the following language:

NOW, THEREFORE, if the above bounden Lamar Haddox Contractor, Inc. . . . shall indemnify and save harmless said Arkansas State Highway Commission against any loss or damage of whatever kind and character, arising or occasioned by deeds of negligence of said principal, his agents, servants, and employees, in the prosecution of the work, or by reason of improper safeguards or incomplete protection to the work and shall pay all bills for materials, labor and supplies entered into contingent and incident to the construction of said work, or used in the course of performance of the work, and shall complete said work within the time specified in said Contract, then this obligation shall be null and void; otherwise to remain in full force and effect. [Emphasis added.]

We have consistently distinguished common law bonds and statutory bonds based on the obligations assumed by the bond. City of Hot Springs v. National Surety Co., 258 Ark. 1009, 531 S.W.2d 8 (1975); State, ex rel. Berry Asphalt Co.v. Western Surety Co., 223 Ark. 344, 266 S.W.2d 835 (1954). The rule is that a bond is a common law bond to which the ordinary statute of limitations applies if the bond affords greater protection than that which is required under the statute. Id Accordingly, we must determine whether the bond in the present case provides broader coverage than that required under Ark. Code Ann. § 22-9-401 (1987), the statute setting out the required liability coverage for contract bonds on public works. This statute provides that all surety bonds required by the state agencies for the construction of public works “shall be liable on all claims for labor and materials[.]” (Emphasis added.)

As the bond liability required by this statute is limited to claims for labor and materials, we agree with the trial court that the bond’s coverage for claims of negligence provided broader coverage than that mandated under section 22-9-401. While section 22-9-401 (b) contains considerable language defining the scope of claims for labor and materials, the statute cannot be reasonably interpreted to require protection for claims based on negligence. The trial court was therefore correct in finding that the bond is a common law bond not governed by the six month statute of limitations set out in section 22-9-403.

Appellant relies on two sub-arguments in urging us to hold that the bond at issue is a statutory bond. We are unpersuaded by these arguments because neither is relevant for purposes of determining the applicable statute of limitations to the bond at issue.

Appellant relies primarily on the language used by this court in New Amsterdam Casualty Co. v. Detroit Fidelity & Surety Co., 187 Ark. 97, 58 S.W.2d 418 (1933). In that case, the appellant insurance company brought an action against the surety company to recover for unpaid premiums on the contractor’s liability policies. The language of the bond at issue was strikingly similar to the bond language in this case, and the court held that neither the bond nor the applicable statute guaranteed coverage for unpaid insurance premiums. In so holding, the court stated that “[t]he bond sued on is a statutory bond, and such bonds, executed in the form prescribed by the statute, are to be construed,... as though the law requiring and regulating them were written in them.” Id. at 100, 58 S.W.2d at 419. Appellant relies on this language in urging us to hold that the bond at issue is a statutory bond governed by the six month statute of limitations.

We are unimpressed with appellant’s argument. At issue in the New Amsterdam case, supra, was whether the statute governing public works contract bonds required coverage for a type of claim that was not enumerated in the bond. In that case, the term “statutory bond” was employed to explain that the bond must be interpreted to conform with the requirements of its governing statute even if the bond’s language does not enumerate the protection required by statute. In that sense, every public works bond is a “statutory bond” as section 22-9-403(a) explicitly states that “[t] he liability imposed by § 22-9-401. . .shall be deemed an integral part of the bond, whether or not the liability is explicitly set out or assumed therein.” (Emphasis added.)

We believe the issue in the more recent case of Berry Asphalt, supra, is more analogous to the issue in this case as the issue posed in Berry Asphalt was whether the statutory six month statute of limitations governed an action on a bond that we determined provided broader coverage than that mandated by statute. We are also unpersuaded by appellant’s attempt to distinguish Berry Asphalt, and reaffirm the holding in that case that such bonds are governed by the common law statute of limitations.

Appellant also relies on Ark. Code Ann. § 27-65-131 (1987) in urging us to hold that the bond at issue is strictly a statutory bond. Subsection (b) of that statute authorizes the Highway Commission to condition its bonds as it “may require.” Appellant argues that because the form of the bond at issue is identical to the Highway Commission’s exemplary proposal form for contract bonds, the bond’s coverage is not broader than that required by section 27-65-131.

We disagree with this argument for two reasons. First, the bond liability imposed by section 27-65-131(b) is limited to “liability for material, labor, supplies, and expenses used in or incidental to the work, including that which may become due to subcontractors[.]” We find no suggestion in this statutory language that the legislature intended to require highway bonds to provide the extent of coverage afforded in the bond at issue. Rather, the only statutory requirement imposed by section 27-65-131 is that bonds furnished to the Highway Commission assume liability for the claims of laborers and materialmen. As we have already determined that the bond protection extended in the present case exceeded these requirements, we are unswayed by appellant’s argument.

Furthermore, we do not see the relevance of section 27-65-131 since section 22-9-403 restricts applicability of the six month statute of limitations to bonds limiting coverage to the requirements of section 22-9-401. Section 22-9-403 is captioned “STATUTORY LIABILITY AS INTEGRAL PART OF BOND — LIMITATION OF ACTION.” Subsection (a) provides that “[t]he liability imposed by § 22-9-401 . . . shall be deemed an integral part of the bond,. . while subsection (b) provides that “ [n] o action shall be brought on a bond after six (6) months from the date the final .payment is made on the contract^]” (Emphasis added.) Thus, the qualified introductory clause of subsection (a) indicates the legislature’s intent to limit the six month statute of limitations to bonds affording protection against claims for labor and materials — the minimum coverage mandated by section 22-9-401. As the bond in this case afforded protection beyond that required under section 22-9-401, we find no merit to appellant’s statute of limitation argument and affirm the judgment of the trial court.


author: Robert L. Brown, Justice.

text:
    Fred REICHENBACH, JR. et al. v. Rose A. SERIO, et al.
    92-193
    830 S.W.2d 847
    Supreme Court of Arkansas
    Opinion delivered May 4, 1992

      Q. Byrum Hurst, for appellants.

      Steven W. Elledge, for appellees.
   Robert L. Brown, Justice.

This appeal arises out of a wet-dry election in the Roc Roe Township that resulted in a vote in favor of a dry township. The appellants brought a complaint against the Monroe County Election Commission alleging irregularities and failure to comply with statutory procedures. The circuit court dismissed the complaint, and this appeal ensued. The appellants raise two points for reversal: the Monroe County Judge failed to enter an order calling the election, thereby thwarting any appeal or election contest, and the full text of the proposed measure did not appear on the election petitions. Neither issue has merit, and we affirm.

The facts are not in dispute. On August 10, 1990, an Initiative Petition was filed by forty-nine purported voters requesting the right to vote for a dry township in the general election in Roc Roe Township in Monroe County. The County Judge failed to enter an order directing that an election be held in the township affected, but the matter was placed on the general election ballot in the following form:

An Initiated Petition to Establish Roc Roe Township, Monroe County, as a Dry Township, thereby making the Manufacture or Sale of Intoxicating Liquors Illegal in Roc Roe Township.
[ ] FOR the manufacture or sale of intoxicating liquors.
[ ] AGAINST the manufacture or sale of intoxicating liquors.

The drys prevailed in the general election on November 6, 1990, receiving 87 votes, while the wets received 67 votes. No contest of the election procedure was made prior to the election.

On November 19, 1990, the appellants filed a complaint against the Commission alleging several election irregularities and failure to follow correct election procedures. On November 20,1990, the County Judge certified the election results. Following a hearing and briefs by the parties, the circuit court dismissed the appellants’ complaint on the basis that the voters were given an opportunity to cast a free and intelligent vote, the statute does not render the particular acts complained of as fatal to an election, and the appellants did not demonstrate that the results would have been different except for the alleged irregularities.

The appellants first urge that the election process was impermissibly deficient because the county court failed to enter an order directing that an election be held. The lack of an order is undisputed. The Arkansas Code does require that an order directing that an election be held be entered:

(a) Upon application by written petition, signed by a number of legal voters in any county, city, town, district, or precinct to be affected equal to thirty-five percent (35 %) of the qualified voters, it shall be the duty of the judge of the county court in the county at the next regular term thereof, after receiving the petitions, to make an order on his order book directing an election to be held in the county, city, town, district, or precinct to be affected thereby, on some day named in the petition no earlier than sixty (60) days after the application is lodged with the judge of the court. . . .

Ark. Code Ann. § 3-8-302 (a) (1987). The appellants further contend that the absence of an order impeded their ability to appeal since they had nothing to appeal from. Under the applicable statute, there is a ten-day time frame from entry of the county judge’s order in which an appeal must be taken. Ark. Code Ann. § 3-8-205 (c) (1) (1987). Without an order, according to the appellants, the appellate process was never activated. Furthermore, they assert that they were left largely in the dark about election particulars.

It is somewhat unclear from the record before us what notice, if any, was given to the electorate in advance of the election. All we know from the record is that petitions were filed with forty-nine purported names from the affected township. We can only presume that the county clerk then certified the petitions and the issue was placed on the ballot by the Election Commission according to law without challenge from the appellants. See Ark. Code Ann. § 3-8-205(b) (1987). Though no order was entered by the county judge, the fact remains that an election was held, and the appellants did not demonstrate to the satisfaction of the circuit court how the election results would have been altered by virtue of an order from the County Judge. Nor does the abstract shed any light on this point. We have previously held in no uncertain terms that those who would challenge an election must show “that the outcome would have been different but for the irregularities.” Henard v. St. Francis Election Committee, 301 Ark. 459, 462, 784 S.W.2d 598, 600 (1990); see also Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989). That has not been shown in this case.

We further observe that there is nothing before us to suggest that the electorate in the township did not cast free and intelligent votes, which is a pivotal fact that we have noted in the past and one that the circuit court relied on in its decision. See Henard v. St. Francis Election Committee, supra; Swanberg v. Tart, supra. Though, again, it is somewhat unclear from the record exactly what information the electorate received before November 6, 1990, we do note that the votes cast in the wet-dry election were approximately the same as the township cast in other contested matters which were on the ballot for the general election. Moreover, the wet-dry issue as described on the ballot was not one of overriding complexity. On the contrary, it was readily understandable from the ballot’s description.

More than a hundred years ago, we stated that “the voice of the people is not to be rejected for a defect or want of notice, if they have in truth been called upon and spoken.” Wheat v. Smith, 50 Ark. 266, 278, 7 S.W. 161, 165 (1887). In that early case we addgd: “Elections are not to be lightly set aside, though the law has not been strictly complied with. ... It is of the utmost importance that the public should have confidence in the administration of the election laws, and to know that the will of the majority, when fairly expressed, will be respected.” 50 Ark. at 280, 7 S.W. at 166.

More recently, we quoted with approval from Wurst v. Lowery, 286 Ark. 474, 695 S.W.2d 378 (1985), that “the failure to publish notice of an election is immaterial if the election is actually held and the electors have not been deprived of the opportunity to express themselves.” Henard v. St. Francis Election Committee, 301 Ark. at 461, 784 S.W.2d at 600. No such deprivation to the voters is shown in the case before us. Indeed, it appears from the record that the Roc Roe electorate cast as many or more votes on the wet/dry issue as on any other.

Finally, after an election has been conducted, we have held that statutory requirements are merely directory and not mandatory:

[A] 11 provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election, all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void.

Phillips v. Rothrock, 194 Ark. 945, 952-953, 110 S.W.2d 26, 30 (1937); quoted with approval, Henard v. St. Francis Election Committee, 301 Ark. at 462, 784 S.W.2d at 600; see also Swanberg v. Tart, supra. Accordingly, the requirement for a county judge’s election order would be directory and not mandatory after the election takes place.

In sum, because the election was held after petitions were duly filed without challenge and because there is no proof before us that the absence of a court order altered the election results or that the electorate did not freely and intelligently cast their votes based on the ballot description, we refuse to void the election, even though statutory procedures were not strictly followed. The appellants argue that they were not informed about the wet-dry measure before the actual election. This may have been the case, though we find it difficult to believe how the issue could have caught the appellants completely by surprise in light of the fact that a sizeable number of township residents signed the election petitions, and the issue was certified for election and placed on the ballot. Surely, the issue was a subject of discussion within the community. The circuit court’s decision of this first point is affirmed.

For their second issue, the appellants contend that the election petitions circulated and signed by forty-nine signators failed to comply with the dictates of Ark. Code Ann. § 7-9-104 (a) (Supp. 1991), in that the petitions did not contain the title and full text of the measure actually proposed to the voters at the general election. Rather, the petitions contained this description: “We, the undersigned, request the right to vote for a dry precinct in the general election in Roc Roe Township, Monroe County, Nov. 6, 1990.” The appellants argue that this description was deficient and actually misleading to the signators. We disagree. Section 7-9-104 (a) reads that the petition and order of referendum “shall be substantially the following form of petition. . . .’’(Emphasis ours.) Substantial compliance with the recommended form, including the ballot title and full text, is contemplated under the specific terms of the statute.

With respect to what is required in a ballot title for a petition for referendum, we have liberally construed what constitutes sufficiency. See Fletcher v. Bryant, 243 Ark. 864, 422 S.W.2d 698 (1968). In Fletcher, we stated that a ballot title is sufficient if it alleges the general purpose of the act to be referred, and we did not require that the details of the referred act be set out in the petition. Also, in Henard v. St. Francis Election Committee, supra, we disregarded the failure to publish notice of a local option alcohol election with the full text of the proposed measure and ballot title, when the election was actually held, and the electorate had expressed itself. Both cases are instructive for the case at hand. We do not believe that it was fatal for the election petitions to contain a description of the proposed measure that was dissimilar in form to the ballot language. Nor do we believe that the petition language is misleading. It apprised the potential signee that the petition was for the purpose of voting for a dry township at the general election. We hold that text was sufficiently precise.

Affirmed.


author: Per Curiam.

text:
    Richard Lee MITCHAEL v. STATE of Arkansas
    CR 91-150
    828 S.W.2d 844
    Supreme Court of Arkansas
    Opinion delivered May 4, 1992

      Roger T. Jeremiah, for appellant.
    No response.
   Per Curiam.

In this case, the court was required to issue an order on counsel, Roger T. Jeremiah, to appear before us on Monday, February 3,1992, and show cause why he should not be held in contempt. See Mitchael v. State, 308 Ark. 100, 821 S.W.2d 49 (1992). In sum, Mr. Jeremiah failed to file a brief due on June 11, 1991, and failed to respond to the clerk’s letter explaining why. In fact, no brief or response had been filed at the time the court’s show cause per curiam was issued on January 21, 1992.

Mr. Jeremiah appeared before us on February 3,1992, and pled not guilty. He filed his brief on February 17, 1992, and the case was decided on April 13,1992. The court appointed a special master to take evidence bearing upon the cause, if any, for Mr. Jeremiah’s failure to properly pursue the appeal of Richard Lee Mitchael’s conviction. On Tuesday, March 24,1992, the special master afforded Mr. Jeremiah a hearing where he changed his guilty plea to one of no contest. The hearing has been transcribed and reviewed, and the special master has filed his findings of fact with this court for its consideration in determining whether Mr. Jeremiah’s actions or inactions constitute contempt.

Mr. Jeremiah concedes he should have timely filed a brief for Mitchael, or if he, Jeremiah, had doubts as to whether Mitchael actually desired to pursue an appeal, Jeremiah should have moved to withdraw as counsel or to dismiss the appeal. He stated he was wrong in doing nothing. Jeremiah asserts he failed to acquaint himself with the Rules of Appellate Procedure, particularly Rule 10 of the Rules of the Arkansas Supreme Court, which addresses a party’s failure to file briefs. Counsel Jeremiah says his lack of knowledge directly resulted in his failure to perfect Mitchael’s appeal.

Counsel’s statements have been considered in mitigation of this court’s finding of contempt in this matter. His remarks concerning lack of knowledge run somewhat inconsistent with his having been found in contempt of this court in 1988. See Smith v. State, 295 Ark. 700, 750 S.W.2d 61 (1988). In Smith, Mr. Jeremiah similarly admitted he neglectfully failed to file his brief within the time specified by the court. There, he extended his apology to this court, and this court fined Mr. Jeremiah $250.00.

Based upon the record before us, Mr. Jeremiah is held in contempt of this court and fined $500.00.


text:
    Barbara Lynn MOFFITT v. STATE of Arkansas
    CR 92-444
    828 S.W.2d 356
    Supreme Court of Arkansas
    Opinion delivered May 4, 1992

      Linda Scribner, for appellant.
    No response.
   Per Curiam.

Appellant, Barbara Lynn Moffitt, by her attorney, has filed for a rule on the clerk.

Her attorney, Linda Scribner, admits that the record was tendered late due to a mistake on her part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    W.C. SWAFFAR, Executor of the Estate of Eddie Linn Swaffar, Sr., Deceased v. Eddie Linn SWAFFAR, Jr., et al.
    91-254
    828 S.W.2d 355
    Supreme Court of Arkansas
    Opinion delivered May 4, 1992

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: M. Stephen Bingham, for appellant.

      J.R. Nash, for appellant.
   Per Curiam.

This appeal is dismissed on grounds of mootness. See Swaffar v. Swaffar, 309 Ark.-73, 827 S.W.2d 140 (1992).