Pledger v. Noritsu America Corp.

• Decision Date: 12 June 1995
• Docket Number: No. 94-1289,94-1289
• Citation: 899 S.W.2d 843,320 Ark. 371
• Parties: Jim PLEDGER, Director of the Department of Finance and Administration, Appellant, v. NORITSU AMERICA CORPORATION, Appellee.
• Court: Arkansas Supreme Court

Page 843

899 S.W.2d 843

320 Ark. 371

Jim PLEDGER, Director of the Department of Finance and Administration, Appellant, v. NORITSU AMERICA CORPORATION, Appellee.

No. 94-1289.

Supreme Court of Arkansas.

June 12, 1995.

[320 Ark. 374-A] Beth B. Carson, Acting Chief Counsel, Little Rock, for appellant.

William Thomas Baxter, Barry E. Coplin, Robert S. Shafer and Allison Graves, Little Rock, for appellee.

NEWBERN, Justice.

Noritsu America Corporation has petitioned for rehearing contending we should not have considered whether the photographic development equipment produced "articles of commerce," as that was not argued by Mr. Pledger on appeal. The rehearing petition must be denied as we conclude the argument was before us.

Western Paper Co. v. Qualls, 272 Ark. 466, 615 S.W.2d 369 (1981), is a primary citation presented in Mr. Pledger's initial brief. In his argument he quoted the Western Paper Co. case opinion, in part, as follows: " 'Ordinarily, we think of a manufactured article as something to be placed on the market for retail to the general public in the usual course of business.' Morley v. E.E. Barber Construction Co., 220 Ark. 485, 248 S.W.2d 689 (1952)...." The argument contending that the photo processing equipment was not manufacturing equipment also [320 Ark. 374-B] quoted the following from Riggs v. Hot Springs, 181 Ark. 377, 26 S.W.2d 70 (1930): "We think of a manufactured article as something to be placed on the market for retail to the general public in the usual course of business."

Although, as Noritsu points out, Mr. Pledger's brief did not cite Ark.Code Ann. § 26-53-114(a)(1)(A) which addresses the "articles of commerce" aspect of the manufacturing exemption, that concept was a subject of the Western Paper Co. case which, as noted above, was cited in the argument and relied upon. Section 26-53-114(a)(1)(A) provides the basic exemption for manufacturing equipment upon which Noritsu must rely. It must serve as the foundation of any argument for exemption for manufacturing equipment. Even if a fundamental part of that subsection had not been argued, we would have difficulty ignoring it in a case in which the issue is exemption pursuant to that law.

Noritsu cites Cummings v. Boyles, 242 Ark. 923, 415 S.W.2d 571 (1967), and Ford v. Ford, 270 Ark. 349, 605 S.W.2d 756 (Ark.App.1980), for the proposition that an argument not made on appeal is waived. We cannot say there was a waiver here. By abstracting testimony about the nature of the articles produced and then quoting language from cases making it clear that such items are not "articles of...