author: Donald L. Corbin, Justice.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Marion PHARR, Individually, and as Administratrix of the Estate of Bryan Bain Chadwick
    90-202
    808 S.W.2d 769
    Supreme Court of Arkansas
    Opinion delivered May 13, 1991
    [Rehearing denied June 10, 1991.]

      Boswell, Tucker & Brewster, by: Ted Boswell, for appellant.

      Bill R. Holloway, Murray F. Armstrong, and John P. Lewis, for appellees.
   Donald L. Corbin, Justice.

Appellant, State Farm Mutual Automobile Insurance Company, appeals a judgment filed December 27, 1989, in Drew County Circuit Court in favor of appellee, Marion Pharr. Appellant makes only one assignment of error, that being the court erred in denying its motion for directed verdict. We find no error and affirm.

On the afternoon of November 3, 1987, fourteen-year-old Bryan Bain Chadwick, a student in the Monticello School District, was transported from school to the vicinity of his home in a school bus owned by the District and driven by Sheila Herron, a substitute driver. The bus was headed east on Arkansas State Highway 4. Bryan’s home is located on the north side of the highway, making it necessary for Bryan to cross the highway after leaving the bus. There is contradictory evidence as to where Bryan was let off the bus that day. Stephan Chadwick and Bryan Lee Pharr, decedent’s brother and step-brother, respectively, both saw the bus stop and Bryan get off. Both boys testified that the bus stopped across from the driveway to the house west of theirs instead of across from their driveway, as was the usual practice. The neighbor’s driveway is approximately seventy-five feet west of their driveway.

Upon exiting the bus, rather than crossing the highway in front of the bus, Bryan remained on the south side of the highway and walked to his family’s mailbox to get the mail. The mailbox is located on the south side of the highway and opposite the driveway to Bryan’s home. Although the length of time is disputed, the bus driver waited some short period after Bryan exited the bus before turning off the safety devices and proceeding down the highway in the same easterly direction. The cars that had been stopped behind the bus when Bryan got off followed. When all these cars passed, Bryan attempted to cross the highway, apparently unaware that a log truck was approaching from the east. The truck, driven by Adrian Dewitt Thompson, hit Bryan, resulting in Bryan’s death.

Appellee, both individually and as administratrix of the estate of Bryan Bain Chadwick, deceased, brought this wrongful death action against appellant as insurance carrier of the Monticello School District, pursuant to Ark. Code Ann. § 23-79-210 (1987). A jury trial was held December 7, 1989. The jury, returning a verdict on interrogatories, found there were acts of negligence on the part of both the Monticello School District and Bryan Chadwick which were the proximate causes of Bryan’s death; the jury found no negligence on the part of Adrian Thompson. The jury apportioned responsibility between the Monticello School District and Bryan Chadwick as ninety (90) percent and ten (10) percent, respectively.

On appeal, appellant’s only assignment of error is that, as the evidence introduced failed to show that Bryan Chadwick’s death was proximately caused by the negligence of the Monticello School District or its employee, the trial court erred in not granting its motions for a directed verdict.

In reviewing the denial of a motion for a directed verdict, we examine the evidence in the light most favorable to the party against whom the motion is sought, giving the evidence its highest probative value and taking into account all reasonable inferences therefrom. St. Louis Southwestern Ry. v. White, 302 Ark. 193, 788 S.W.2d 483 (1990). If there is any conflict in the evidence or the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, a jury question is presented. Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980). We affirm if there is any evidence sufficient to warrant the verdict. Catlett v. Stewart, 304 Ark. 637, 804 S.W.2d 699 (1991). This court, in Collier v. Citizens Coach Co., 231 Ark. 489, 330 S.W.2d 74 (1959), defined proximate cause as being “‘[t]hat which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.’ ” Id. at 492, 330 S.W.2d at 76. In support of its assignment of error, appellant contends that in addition to the negligence of Bryan Chadwick in crossing the highway, Adrian Thompson’s operation of the log truck was the efficient intervening cause which resulted in Bryan Chadwick’s death. We disagree.

The question of intervening efficient cause is simply whether it is the original act of negligence or an independent intervening cause that is the proximate cause of an injury; this is a question for the jury. Nationwide Rentals Co. v. Carter, 298 Ark. 97, 765 S.W.2d 931 (1989). Although proximate cause is the efficient and responsible cause, it need not be the last or nearest one. Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980). The original act or omission is not eliminated as a proximate cause by an intervening cause unless the latter is in itself sufficient to stand as the cause of the injury. Hill Constr. Co. v. Bragg, 291 Ark. 382, 725 S.W.2d 538 (1987). The intervening cause must be such that the injury would not have been suffered except for the act, conduct, or effect of the intervening cause totally independent of the acts or omissions constituting the primary negligence. Id. The mere fact that other causes intervene between the original act of negligence and the injury for which recovery is sought is not sufficient to relieve the original actor of liability if the injury is the natural and probable consequence of the original negligent act or omission and is such as might reasonably have been foreseen as probable. Larson, supra.

The question of foreseeability is material in considering the issue presented here. In Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980), we took the following position regarding foreseeability:

[I]n no case is the connection between an original act of negligence and an injury broken by an intervening act of negligence of another if a person of ordinary sagacity and experience, acquainted with all the circumstances, could have reasonably anticipated that the intervening event might, not improbably, but in the natural and ordinary course of things, follow his act of negligence or if the misconduct is of a character which, according to the usual experience of mankind, is calculated to invite or induce the intervention of some subsequent cause, an intervening cause will not excuse the original misconduct but will be held to be the result of it, and that the original act or omission will not be considered too remote to be a proximate cause if, according to the usual experience of mankind, the result ought to have been apprehended; and that the test is in the probably injurious consequences which were to be anticipated, not in the subsequent event and agencies which might arise. [Citations omitted.] The intervening act or omission of a third person is not a superseding cause when the original actor’s negligent conduct is a substantial factor in bringing about an injury, if the actor, at the time of his negligent conduct realized that a third person might so act or if the intervening act is a normal response to a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent. [Citation omitted.]

Id. at 210-11, 600 S.W.2d at 10-11. We see no reason to abandon this position now.

The evidence established that on the day of the incident the school bus stopped for Bryan Chadwick to get off at a point some distance from that which it ordinarily stopped. Although the length of time the bus waited for Bryan to cross the highway was disputed, without question the bus disengaged its safety devices and drove away while Bryan was still on the side of the highway opposite his house.

Appellee offered into evidence as Plaintiff’s Exhibit No. 5 the Arkansas Department of Education School Bus Drivers’ Handbook. The section entitled “the afternoon trip” describes the routine to be followed in transporting and unloading children at their respective homes. This section explicitly states, “ [t]he bus should not be moved until children have crossed the road.” Appellee also offered as its Exhibit No. 5 the Monticello School District Transportation Policies, which includes ten instances of when a school bus driver “could be ruled liable or negligible.” One of those instances is for failure to properly supervise pupils crossing in front of the bus. Clearly, these policies and regulations are adopted in an effort to avoid incidents such as the one giving rise to this law suit. In that such incidents are sought to be avoided, it is obvious they are foreseeable.

Viewing the evidence in the light most favorable to appellee, we believe that not only was Bryan Chadwick’s being struck by another vehicle while attempting to cross the highway to his home after the school bus drove away a reasonably foreseeable occurrence, but also the evidence was sufficient to warrant the verdict.

Appellant also contends that the time lapse between Bryan Chadwick’s departing the bus and his attempting to cross the road, together with his actions during that lapse, constitute a break in the “natural and continuous sequence” required for a finding of proximate cause. Appellant relies on Kapp v. Sullivan Chevrolet Co., 234 Ark. 395, 353 S.W.2d 5 (1962), in arguing that, because of this obvious break in the continuous chain of events, the jury had to rely upon conjecture and speculation in finding that the alleged negligence on the part of the Monticello School District, or its employee, proximately caused the death of Bryan Chadwick.

In Kapp, supra, the appellant was injured in a car accident. She filed suit against the appellee alleging different acts of negligence involving the installation of seat belts in the car in which she was a passenger when the accident occurred. This court posed questions as to when or why the belt broke, and whether, except for the breaking of the belt, appellant would not have been injured. The court noted that no proof was presented on either issue. In addressing its own questions, the court stated, “[o]nIy with guess and speculation could any one hazard an answer to those questions. Proximate causation here is left wholly within the field of conjecture and speculation. Many things must be assumed, and inference must here be piled upon inference to hold that plaintiff made a submissible case.” Id. at 418, 353 S.W.2d at 18.

The case at bar is distinguishable from Kapp, supra, in that, as stated previously, there was evidence presented from which the jury could find proximate cause, as was required for the verdict. A review of this evidence reveals that no speculation or conjecture is required to arrive at the conclusion that the negligence on the part of the Monticello School District, or its employee, proximately caused the death of Bryan Chadwick.

Affirmed.

Glaze and Brown, JJ., concur.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Charles T. HODGES and Ruby P. Hodges v. JET ASPHALT and Rock Company, Inc., and Farris Johnson
    90-161
    808 S.W.2d 775
    Supreme Court of Arkansas
    Opinion delivered May 13, 1991

      Kinard, Crane, & Butler, by: Mike Kinard, for appellant.

      Smith, Stroud, McClerkin, Dunn & Nutter, by: R. Gary Nutter and Carol J. Dalby, for appellee.
   Robert L. Brown, Justice.

The appellants in this case, Charles T. Hodges and Ruby P. Hodges, who were plaintiffs below in this tort action, raise one point on appeal. They contend that the trial judge erred in denying their motion for a new trial and in finding that the jury verdict was not clearly against the preponderance of the evidence.

We disagree and affirm the trial judge’s decision.

This case concerns a traffic accident between appellant Ruby P. Hodges, who was driving a Chevrolet Caprice, and appellee Farris Johnson, who was driving a three-axle dump truck owned by appellee Jet Asphalt and Rock Company, Inc. The accident occurred on August 31, 1988, at approximately 3:30 p.m. on U.S. Highway 79 within the city limits of Stephens, Arkansas. Hodges, with her two-year-old son in the passenger seat, was making a left turn across the south-bound lane into her driveway when her car was struck by Johnson’s dump truck. Johnson was attempting to pass Hodges in the left lane and had signaled with his blinker light, but he did not sound his horn while passing. Both Hodges and her son sustained injuries.

Hodges filed a negligence action against the appellees, complaining of physical and emotional injuries and asking for damages of $500,000 against each appellee. Her husband joined her in the complaint, seeking $50,000 for loss of consortium. The couple asked for $100,000 for physical and emotional injuries to their son.

The case was presented to the jury on October 3, 1989, on interrogatories without objection by the appellants. In two separate interrogatories the jury answered that it had found by a preponderance of the evidence that Johnson and Hodges were each negligent and that each person’s negligence proximately caused damages. The third interrogatory and answer read:

Interrogatory No. 3
If you have answered both Interrogatory No. 1 and Interrogatory No. 2 “Yes,” then answer this Interrogatory:
Using 100% to represent the total responsibility of the occurrence and any injuries or damages resulting from it, apportion the responsibility between the parties whom you have found to be responsible.
Answer: Farris Johnson 15%
Ruby Hodges 85%

The jury then in separate interrogatories stated these amounts for damages sustained: $75,000 by Ruby Hodges, $10,000 by her husband, and $10,000 by their son.

Judgment, which awarded $ 10,000 to the son but denied any recovery to Hodges or her husband, was entered by the trial court on October 23,1989. The appellants filed a motion for new trial, asserting that the verdict was both too small and clearly against the preponderance of the evidence. The trial court denied that motion. The $10,000 award in favor of the son has been paid and is not part of this appeal.

The appellants’ principal argument on appeal is that the trial judge erred in refusing to grant'a new trial, but underlying that is their contention that the jury was wrong in its assessment of fault. Particularly, the appellants contend that Hodges could not have been eighty-five percent negligent under the evidence presented in this case, and especially because the lead vehicle has the superior right of way. For the appellants to take anything under our comparative fault-statute, the appellees must be more at fault than the appellants. See Ark. Code Ann. § 16-64-122 (1987).

Our test for reviewing the denial of a motion for new trial, however, is whether there is any substantial evidence to support the jury verdict. See Ferrell v. Southern Farm Bureau Casualty Insur. Co., 291 Ark. 322, 724 S.W.2d 465 (1987). In determining the existence of substantial evidence, we must view the evidence in the light most favorable to the appellees. See Egg City of Arkansas, Inc. v. Rushing, 304 Ark. 562, 803 S.W.2d 920 (1991). Substantial evidence compels a conclusion one way or the other and is more than mere speculation or conjecture. See Sander v. Walker, 298 Ark. 374, 767 S.W.2d 526 (1989).

One major bone of contention at trial was whether Hodges made a left turn signal prior to turning. She testified that she did, and her expert testified that the filament in the left-turn blinker bulb had oxidized, which meant it was on at the time it was broken. Johnson said he did not see either a blinker signal or brake lights; nor did a third-party witness traveling south in her car toward the two vehicles. An expert for the appellees testified that the bulb for the blinker and the brake were the same and the oxidized filament could just as well have been the brake-light filament. The appellants’ expert also admitted this. The jury apparently chose to believe the appellees on the issue of Hodges’ failure to signal. There was testimony, too, that Hodges had worked the 11:00 p.m. to 7:00 a.m. shift at a convenience store the night before and had taken only a two-hour nap prior to the time that the accident occurred. Hodges also testified that she did not see Johnson’s truck until just before the collision and never saw the third-party vehicle.

The jury evaluated and weighed this testimony, and other testimony as well, as it was required to do, and then made its decision. It was, of course, within the jury’s province to believe or disbelieve the testimony of any witness. See Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1990). We hold that the evidence which was presented to the jury on the appellees’ behalf was substantial. Accordingly, the trial court was correct in denying the motion for new trial.

Affirmed.


text:
    Scott T. McENTIRE v. STATE of Arkansas
    CR 91-8
    808 S.W.2d 762
    Supreme Court of Arkansas
    Opinion delivered May 13, 1991

      Larry J. Steele, for appellant.

      Winston Bryant, Att’y Gen., by; Gil Dudley, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Scott T. McEntire appeals his conviction for DWI I and his sentence to 24 hours imprisonment in the county jail, a $150 fine, and suspension of his driver’s license for ninety days. He raises three issues on appeal, but, finding no merit in any of the three, we affirm the conviction.

At 12:12 a.m. on the morning of January 1, 1990, a state police officer observed McEntire driving left of center in a white pickup truck. After the officer stopped the truck, McEntire stepped out. He “was uncoordinated as he could be,” according to the officer. The officer took him to the station, where McEntire requested a breathalyzer test. However, he refused to sign a form which contained a question about whether he was willing to take the test. He also either could not or would not blow into the breathalyzer machine for a sufficient period of time so that the jailer could get a reading. The test was administered at least twice to no avail. McEntire testified that he asked for the test to be given a third time, but the jailer administering the test refused. The jailer testified that he gave the test more than two times. McEntire did not ask for an alternative means of testing.

The prosecutor charged McEntire with DWI and refusal to take a breathalyzer test. Before trial the prosecutor nol prossed the breathalyzer charge, leaving only the DWI charge to be tried. On October 2, 1990, a jury convicted McEntire of DWI and sentenced him as previously stated.

McEntire first claims that the DWI charge should have been dismissed because he was not provided an opportunity to take the breathalyzer test. Yet McEntire’s own testimony belies this claim, because he testified that he was given two opportunities to take the test. He simply did not complete it, and no reading was obtained. For this reason there was no test available to be introduced into evidence.

Nor were the officers, under these circumstances, required to assist McEntire further. Had the test been completed, the obligation of the officers would have been different. Then, in order to introduce the test into evidence, the prosecutor would have had to prove that an officer also advised McEntire of his right to have an additional chemical test performed and that the officer also assisted McEntire in obtaining that test. See Ark. Code Ann. § 5-65-204(e)(2) (Supp. 1989). But that requirement is not applicable where no breathalyzer test was completed. The trial court correctly refused to dismiss the DWI charge on this basis.

The second issue deals with the trial court’s refusal to grant McEntire’s motions. Before trial McEntire moved for a copy of the arresting officer’s personnel file. The trial court denied the motion. McEntire then moved to suppress the evidence and to dismiss the DWI charge on grounds that Act 44 of 1989 is void for vagueness and is also capricious. Apparently, McEntire’s theory was that if Act 44 is void for vagueness, the old statute, which invalidated an arresting officer’s actions when the officer failed to meet the standards, is resurrected. Act 44 replaced the old statute. That motion, too, was denied.

On appeal McEntire makes the same arguments. We begin by noting that Act 44 addresses the problem of officers who have not met all of the law enforcement standards. It states in part:

(a) Actions taken by law enforcement officers who do not meet all of the standards and qualifications set forth in this subchapter or made by the Arkansas Commission on Law Enforcement Standards and Training shall not be held invalid merely because of the failure to meet the standards and qualifications.

Ark. Code Ann. § 12-9-108 (a) (1990-91 Adv. Code Svc.). It is true that Act 44 does not itemize those standards. Yet it is true as well that the standards are not unconstitutionally vague because they are either set out under Ark. Code Ann. § 12-9-106 (1987) in particular or as part of the Commission rules. Standards that are fixed and definite are, by necessity, not vague.

This was not the fact situation in the case cited by McEntire to support his vagueness theory. See Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). In Long we said a law is vague when it leaves the police or factfinder free to decide, without a fixed standard, what is prohibited. In the case before us those standards are readily ascertainable. Act 44 clearly states that failure to meet those standards does not invalidate the officer’s official actions.

The trial court was correct in denying McEntire’s motions and in finding that Act 44 is not void for vagueness. It was further correct in denying McEntire access to the arresting officer’s personnel file, because that discovery would have served no useful purpose. Where prejudice will result from the state’s failure to comply with discovery rules, action by the trial court assuring discovery is appropriate. See Henry v. State, 29 Ark. App. 5, 775 S.W.2d 911 (1989). Here, no prejudice has been shown. Failure to comply with the law enforcement standards no longer invalidates an arresting officer’s actions, as Act 44 makes abundantly clear. We have previously held that Act 44 does not violate the ex post facto clause under either the federal or state constitution. See Ridenhour v. State, 305 Ark. 90, 805 S.W.2d 639 (1991). We hold today that Act 44 is not unconstitutionally vague or capricious.

For his final argument McEntire argues error in the trial court’s failure to instruct the jury that public service was an alternative sentence to jail time. Again, McEntire misreads the operable statute which states:

(a) Any person who pleads guilty, nolo contendere, or is found guilty of violating § 5-65-103 may, for a first offense, be imprisoned for no less than twenty-four (24) hours and no more than one (1) year, except that the court may order public service in lieu of jail, and, in such instance, the court shall include the reasons therefor in its written order or judgment.

Ark. Code Ann. § 5-65-111 (a) (1987). By its terms this statute does not confer upon the trial court the authority to instruct the jury on public service as an álternative sentence. It states, rather, that the court may order public service in lieu of jail, presumably as part of sentencing following a bench trial or in the nature of post-conviction relief. The trial court did not abuse its discretion in refusing to give this instruction.

Affirmed.


text:
    Robert TROUTT v. Donna Kay MATCHETT
    91-99
    808 S.W.2d 777
    Supreme Court of Arkansas
    Opinion delivered May 13, 1991

      Robert Troutt, pro se.

      Stuart Vess, for appellee.
   Robert L. Brown, Justice.

This dispute involves an appeal from an order by the trial court dismissing with prejudice a complaint for false arrest filed by appellant Robert Troutt against appellee Donna Kay Matchett. The dismissal order alluded to the fact that the case had previously been dismissed twice. There are no additional documents or pleadings in the record evidencing the prior complaints or the reasons for the two prior dismissals.

The appellant gives the following history of his litigation. He says that he filed his first complaint on December 18,1984. That complaint was dismissed on October 22,1986, without prejudice. The trial court’s reason for the dismissal is unclear. The appellant advances no theory for the dismissal but says that the dismissal was involuntary. The appellee asserts that the dismissal was due to failure to prosecute. The appellant states that he then filed a second complaint on October 14, 1987, but took a voluntary nonsuit on November 14,1988, four days before trial, because the trial court threatened sanctions. The complaint which is the subject of this appeal followed next on November 14, 1989, and the dismissal with prejudice was entered by the trial court on April 17, 1990.

The appellant, appearing pro se, argues on appeal that he has been denied his day in court and that his previous counsel was ineffective. He cites an earlier decision by this court which, he says, requires the appellee’s repayment of the consideration for making the bond, because she surrendered him without cause. See Troutt v. Langston, 283 Ark. 220, 675 S.W.2d 625 (1984). In that decision we granted a writ of mandamus and stated generally that consideration should be returned when a surrender is made without cause. That decision, however, adduced a legal principle and did not pretend to affirm a finding of fact in this case that the appellee had indeed surrendered the appellant without cause. In sum, the earlier Troutt decision does not resolve the issue of whether the appellant has been denied relief or his right to be heard.

On the validity of the trial court’s dismissal, we have no way of knowing whether it was correct or not, based on the record before us. We do not have the two previous complaints in the record; nor to we have the two earlier dismissal orders. All that we have are arguments of counsel and oblique allusions to what transpired before. Under these circumstances we are left to speculation and conjecture about whether the previous dismissals were voluntary or involuntary. That information is essential for resolving the procedural question at hand. The record filed on appeal is, quite simply, fatally defective. See Ark. R. App. P. 6. We have held repeatedly that the burden is on the appellant to bring up a record sufficient to demonstrate that the trial court was in error. See, e.g., SD Leasing, Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983). When the appellant fails to meet that burden, we have no choice but to affirm the trial court. Id.

Lastly, the appellant’s assertion that his previous counsel was ineffective is wholly without merit. That attorney is not a party to this litigation; moreover, there is nothing in record to substantiate this accusation. All we have before us is the bald statement by the appellant that his previous attorney nonsuited the second complaint after the trial court threatened sanctions. Again, the appellant’s record is totally insufficient.

The trial court’s order is affirmed.

Affirmed.

Holt, C.J., not participating.


author: Morton Gitelman, Special Justice. David Newbern, Justice,

text:
    PARAGOULD CABLEVISION, INC. v. CITY OF PARAGOULD, Arkansas; and Pargould Light and Water Commission
    90-153
    809 S.W.2d 688
    Supreme Court of Arkansas
    Opinion delivered May 13, 1991

      Hilburn, Calhoun, Harper, Pruniski & Coleman, Ltd., by: James M. McHaney, Jr:, and Of Counsel: David R. Goodson, and Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., by: Bruce M. Sokler, for appellant.

      Branch, Thompson & Philhours, A Professional Association, by: Robert F. Thompson, for appellee City of Paragould.

      W. Randolph Young', and Goodwin, Hamilton, Moore & Colbert, for appellee Paragould Light and Water Comm’n.
   Morton Gitelman, Special Justice.

This is an appeal from the Greene County Chancery Court which entered a summary judgment dismissing the complaint of appellant, Paragould Cablevision, Inc. (Cablevision). Cablevision is the holder of a non-exclusive franchise to operate a cable television system in the appellee City of Paragould, Arkansas (City). The company has operated its system since 1963 and it has approximately 6,000 subscribers. The current franchise .expires December 9, 1993.

Sometime after the 1983 renewal of Cablevision’s franchise, citizens in Paragould expressed dissatisfaction with its services and rates. The City employed consultants to study the feasibility of initiating a city-owned cable television system, and in June 1986, the voters authorized the City to acquire and operate a system. Subsequently, the City enacted a resolution whereby the appellee Paragould Light and Water Commission (Commission) was charged with the duty of acquiring and operating a cable television system and, after a municipal election on October 31, 1989, the City undertook to issue Capital Improvement Bonds under Act 871 of 1985 in the amount of $3.22 million to finance the cost of the system.

On January 18, 1990, Cablevision filed a complaint in this case seeking an injunction against the issuance of the bonds and a declaration that the Commission had no power to acquire and operate a cable television system. Cablevision’s complaint is based upon the claims that the Commission has no power to operate a cable television system under the state legislation authorizing its existence and that a delegation of such power to the Commission by the City is ultra vires; also, the arrangement contemplated by the City and the Commission constitutes an illegal exaction under Ark. Const. art. 16, § 13.

After a hearing, the chancellor found that the City has authority under Act 328 of 1987 to construct and operate a cable television system and, under Acts 871 of 1985 and 26 of 1988, it has the authority to issue bonds to finance construction of the system; the chancellor also found that the City can legally and properly delegate authority to the Commission to construct and operate the system and that such delegation is not a prohibited delegation of legislative authority but, rather, is a delegation of administrative and ministerial functions. Thus, as the chancellor further found, there is no illegal exaction prohibited by the Arkansas Constitution. We affirm.

I. Issues on Appeal

Cablevision concedes, as it must, that Arkansas cities have the authority to own and operate cable television systems. Act 328 of 1987; Ark. Code Ann. § 14-199-601 (a) (Supp. 1989) provides:

Any first-class city, second-class city, and incorporated town may own, construct, acquire, purchase, maintain, and operate a television signal distribution system for the purpose of receiving, transmitting, and distributing television impulses and television energy, including audio signals and transient visual images, to the inhabitants of the city or town and to the inhabitants of an area not to exceed two (2) miles outside the boundaries of the city or town.

Cablevision also does not contest the authority of cities to issue bonds for the purpose of financing a cable television system.

Although at one time the power of municipal corporations to engage in entrepreneurial activities was subject to serious question, see 12 E. McQuillin, Municipal Corporations § 36.02 (3d rev. ed. 1986), the peculiar nature of cable television renders it distinct from municipal hotels, brickyards, tanneries, taxi companies, and the like. The furnishing of news, information, and entertainment to the public is an activity that is clearly tinged with a public interest, and cable television systems are clearly subject to governmental regulation.

Prior to federal regulation of cable communications, courts were sometimes called upon to sort out the legal issues involved in what were called “Community Antenna Television” (CATV) enterprises. In the absence of statutory guidance, courts resorted to basic principles of property law and the law of unfair competition. See, e.g., Intermountain Electronics, Inc. v. Tintic School Dist., 377 P.2d 783 (Utah 1963); Cable Vision, Inc. v. KUTV, Inc., 211 F.Supp. 47 (D.Idaho 1962), vacated, 335 F.2d 348 (9th Cir. 1964); Dispatch, Inc. v. City of Erie, 249 F.Supp. 267 (W.D. Penn. 1965); Lamb Enterprises, Inc. v. City of Erie, 286 F.Supp. 865 (W.D. Penn. 1967), aff'd, 396 F.2d 752 (3d Cir. 1967); United Artists Television, Inc. v. Fortnightly Corp., 377 F.2d 872 (2d Cir. 1967); Buckeye Cablevision, Inc. v. F.C.C., 387 F.2d 220 (D.C. Cir. 1967); Black Hills Video Corp. v. F.C.C., 399 F.2d 65 (8th Cir. 1968).

In more recent times, federal regulation has been the prominent focus in analyzing the legal framework of the cable television industry. The Cable Act of 1984, 47 U.S.C. § 521 to 559 establishes national policy in this area. See Reyerson & Sinel, Regulating Cable Television in the 1990’s, 17 Stetson L. Rev. 607 (1988). The Cable Act specifically provides that cable systems are not common carriers or public utilities, section 541(c). Furthermore, the act does not prohibit municipal ownership of cable systems or franchises, section 522(4), nor does it require that franchises be exclusive, section 541(a)(1). Thus, the federal legislation has no preemptive effect in the case before us.

II. Status of the Commission

Cablevision’s key argument is that, although the City is authorized to acquire and operate a cable television system in competition with the existing private system, the City has no power to delegate such authority to the Commission, and the Commission has no authority to accept such delegation. Cablevision argues that the Commission is a creature of statute and has only those powers expressly granted by the enabling act. This argument requires us to consider the status of the Commission.

In 1933, the City issued bonds and constructed a municipal electric light plant which was completed in 1939. In 1941, the City, by ordinance, created a commission to control and operate the municipal plant. This ordinance refers to, and is based upon, Act 70 of 1941. Act 70 authorized municipal corporations “owning, operating and controlling municipally-owned light and power plants” to create a five-member board for “the purpose of directing, controlling and operating such municipal light and power plants within such city. . . .” The act goes on to prescribe the method of selection of such board members and the power of the board to control and operate the plant and dispose of surplus property, but states that the board “shall not sell or rent the right to own, use and operate the equipment of such light and power plant.” Section 1 of Act 70 states that it applies to cities having a population (under the 1940 census) of not less than 7,070 or more than 7,085. Act 70 was never judicially challenged, but it could be viewed as an example of the type of local or special legislation prohibited by Amendment 14 to the Arkansas Constitution. See Anderson, Special and Local Acts in Arkansas, 3 Ark. L. Rev. 113 (1948).

In 1953, the General Assembly passed Act 562, which rectified the questionable validity of Act 70. Act 562 permits cities of the first class “whose municipally owned water, sewer and/or light plants are not now being operated by a commission or commissions created by or pursuant to valid special or local acts of the Arkansas Legislature,” to create such commissions. In all material respects, the powers of such commissions are the same as the powers of the board created under the authority of Act 70. The City promptly passed an ordinance re-establishing its power commission under Act 562, designating it as the Light Plant Commission of the City of Paragould. In 1984, by ordinances, the City vested control of the water and sewer system in the Commission and changed its name to Paragould Light and Water Commission.

Cablevision claims that the Commission is a separate and distinct entity from the City, having its origin in Act 562 of 1953, and is in no way an arm of the City or its alter ego. Because Act 562 does not grant power to such commissions to operate anything but electric plants, waterworks, and sewer plants, Cablevision argues that operation of a cable television system by the Commission would be ultra vires.

The City contends that the Commission is an agency of the City and is the most efficient department of city government to operate a cable system. The Commission owns vehicles and, more importantly, light poles, which are the means of conveying television signals from the central receiving equipment to the homes of subscribers. Also, the Commission has personnel, equipment, and expertise for the billing of consumers and collection of accounts.

At trial, Cablevision introduced no independent evidence to prove that the Commission is a distinct entity from the City. Instead, Cablevision relied on the four corners of Act 562 to prove that the only powers of a commission created under that act exclude operation of a cable system. In the absence of a record demonstrating that the actual authority and operation of the Commission is independent of the City, we are left with the task of interpreting the legislative intent underlying Act 562. In doing so, we are struck with the many indications within the act itself that the legislature did not intend to create entities separate and apart from the cities with municipally owned light, water and sewer plants. Section 1 of Act 562 provides: “Hereafter a city of the first class may, by the enactment of an ordinance or ordinances, create a commission or commissions to operate, control and supervise such of its municipally owned water, sewer and/or light plants as may be prescribed by an ordinance or ordinances. . . .” (Emphasis added). Such language hardly supports the argument that the Commission is unable to accept any additional duties prescribed by the city council, such as operation of a city-owned cable system. Further, Section 6 of Act 562 provides:

Said board or boards created pursuant to the provisions of this act shall have full power to operate and control the plant or plants entrusted to its direction. . .and, subject to such restrictions as may be prescribed in the ordinance creating said board or boards shall have full power to buy and pay for out of the earnings or revenue of said plants for the welfare and benefit of the citizens and inhabitants of the Municipal Corporation. . . (emphasis added).

Section 9 of Act 562 states that the “board shall make due report to the City Council with reference to the conditions and affairs of the Municipal Plants under its control at such time and in such manner as the City Council may designate.” Finally, Section 12 of Act 562 states: “Nothing contained in this act shall be construed to prohibit the City Council of any city subject to the terms of this act from repealing or amending any act which it may have passed pursuant to the authority hereby conferred.” All of the terms of Act 562 cited, when considered with the history of legislative regulation of municipally owned utilities, inescapably point to the conclusion that the powers and limitations of Act 562 are directed to cities and not to the entities allegedly created by the act.

Crucial to Cablevision’s argument is the characterization of the Commission as a distinct entity, a “utility commission” with limited powers. Cablevision relies on Portis v. Board of Public Utilities, Lepanto, 213 Ark. 201, 209 S.W.2d 864 (1948). The issue in that case was whether the Town of Lepanto, which owned its waterworks and sewer plant, had the power to issue revenue bonds to expand the plant or whether the Board of Public Utilities, created under Act 95 of 1939, had the power to issue such bonds. We held that the power to issue the bonds was in the town and that Act 95 did not expressly grant such power to the board. This case does not support Cablevision’s theory.

First, the exact holding of Portis is that the legislature did not take away, in Act 95, the power of the town to issue revenue bonds; we said:

Clearly we think it was the intention of the Legislature under Act 95 that Cities or Towns should still have the sole right to issue bonds. . .and realizing that municipalities would need the revenues from these plants to secure any bonds that might be issued by the municipalities, themselves, and for other purposes, the Legislature intended that the sole power to issue such revenue bonds should rest with the municipality.

213 Ark. at 207, 209 S.W.2d at 867.

Second, although we cited and discussed the famous “Dillon Rule” in the Portis case—that municipal corporations have only those powers expressly granted by statute, or those necessarily implied, or essential — we do not find that the Public Utilities Board of Lepanto was a comparable entity to the Paragould Light and Water Commission. Cablevision relies on language in Portis where we stated:

In short, we hold that Act 95, supra, did not confer upon the Board of Utilities here the power to issue revenue bonds; that, being a creature of the statute, the Board had only such powers as were expressly, or impliedly given to it by the Legislature, and that it was the clear intent of the lawmakers that only one municipal authority, the municipality itself, should have the power to issue these revenue bonds.

213 Ark. at 208, 209 S.W.2d at 868. This language does not aid Cablevision’s case. In Portis, we were dealing with Act 95 of 1939. That legislation was clearly designed to allow transfer to a new entity the operation and management of utility plants which had been constructed by improvement districts and which had paid up the bond issues used to construct the plants.

In the 1930’s, many smaller communities in Arkansas undertook construction of electric light plants. In the absence of private utility companies ready and willing to undertake such construction, many of the communities utilized the statutory authority to create improvement districts for the purpose of issuing bonds and constructing the system. The improvement district, once created, would issue bonds, to be retired either by revenues generated by the system or by tax assessments on real property within the district. Improvement districts have always been considered distinct municipal corporations which are creatures of the state. 1 E. McQuillin, Municipal Corporations § 2.03(a) (3d rev. ed. 1986); Fitzgerald v. Walker, 55 Ark. 148 (1891); Gladson v. Wilson, 196 Ark. 996, 120 S.W.2d 732 (1938).

The Portis case is bottomed on the fact that the Board of Utilities was a successor to the improvement district which had built the Lepanto plant. The Commission in this case, on the other hand, was created by the act of the City under permissive legislation, Act 562 of 1953, which states: “Hereafter a city of the first class may, by the enactment of an ordinance or ordinances, create a commission or commissions to operate, control and supervise. . .municipally owned water, sewer and/or light plants. . .” Unlike the Board of Utilities in the Portis case, the Commission here is not a successor to a municipal corporation and owes its existence to an ordinance enacted by the City.

Appellees argue that the “Dillon Rule” was “repealed” in Arkansas by Act 266 of 1971, codified at Ark. Code Ann. § 14-43-602 (1987), and popularly known as the “Home Rule Act.” That statute can best be characterized as a limited home rule statute. True home rule for municipal corporations is found in state constitutions, because home rule for cities is simultaneously a grant of legislative power to home rule cities and a limitation of state legislative power. The limited home rule expressed in Act 266 does not settle issues relating to ultra vires actions by municipal corporations. However, we need not decide the current status of the “Dillon Rule” in Arkansas in this case because we find that the Commission is not a distinct legal entity apart from the City for the purpose of operating a cable television system.

Consistent with this conclusion, in Adams v. Bryant, 236 Ark. 859, 370 S.W.2d 432 (1963) we held that a commission created by ordinance of the City of Clarksville to operate the municipal power, water, and sewer plant was an agent of the city and not a distinct municipal corporation. Although the Clarksville plant was originally built by an improvement district, we held that the city was not bound to follow Act 95 of 1939 to create a Public Utilities Board and could delegate the operation of the utilities to its own agency, consisting of three appointed commissioners (as opposed to five elected commissioners as specified in Act 95). Furthermore, the plaintiffs in Adams, were seeking an injunction to prevent the utility commissioners from engaging in activities far removed from operating the utilities, viz., purchasing stock in a proposed industrial park and contributing to a fund to promote the dairy industry. The injunctive relief was denied, suggesting that a city can delegate to its “utility commission” duties in addition to those associated with the operation of the utility plants. In the case before us, it would make little sense to say that the City has the express legislative power to own and operate a cable television system, but cannot delegate operation of the system to a commission created by a city ordinance under the permissive authority of a state statute.

III. Delegation of Powers

The Adams case also answers Cablevision’s argument that the Paragould ordinances and franchise agreement with the Commission constitute an improper delegation of legislative power. We recognize the general rule that the legislative powers of a municipal corporation cannot be delegated. 2 E. McQuillin, Municipal Corporations § 10.40 (3d rev. ed. 1986); City of Harrison v. Snyder, 217 Ark. 528, 231 S.W.2d 95 (1950); Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984). The questions here, however, are whether the Commission is a part of the City or a separate entity and whether the powers allegedly delegated are legislative or ministerial or administrative. The first question has been discussed in the previous part of this opinion, where we concluded that the Commission was created under permissive legislation and is not a separate municipal corporation.

In answering the second question, we find several indications that the powers to be exercised by the Commission are not legislative powers, but rather administrative or ministerial powers. Immediately after the initial filing of this lawsuit, the Paragould City Council adopted Resolution 89-1, declaring:

Whereas, in order to make more clear the intentions of the parties that the franchise agreement dated January 15,1989, grant to the Commission only administrative or ministerial duties but reserve to the city council all legislative powers; now therefore, the City and the Commission do hereby amend the cable franchise agreement. . .as follows. . . .

The resolution then amends the franchise agreement in several respects and adds a new section:

Nothing in this agreement shall be construed to grant to the Grantee any legislative authority, it being the intention of Grantor to grant to the Grantee administrative and ministerial duties associated with the construction and operation of a cable television system by Grantee but reserving to the city council all legislative power.

Prior to the resolution, the franchise agreement entered into by the City and the Commission was almost exactly like the Cablevision franchise agreement. We do not understand Cablevision to be arguing that it, a private corporation, had been delegated legislative powers in its franchise. Thus, any powers the Commission has by virtue of the franchise agreement cannot be characterized as legislative.

Other indications that the relationship between the City and the Commission does not involve unlawful delegation of legislative powers are: (1) the bonds issued to finance the construction of the system are in the name of the city, (2) the city controls the rates charged to the subscribers, and (3) a citizen’s advisory committee selects the programming to be offered. The reasons for initially entrusting management of the municipally owned cable system to the Commission do not reflect even a hint of delegation of legislative powers. The Commission is the natural agency to administer the system as it has the personnel, vehicles, rights of way, and light poles that are necessary for operation of a cable television distribution system. Furthermore, under the federal Cable Act of 1984, a city must award a franchise to operate the cable system. Cablevision argues that the franchise method of regulation is proof that the Commission is a separate entity from the City. In actuality, the Commission is the best possible operator of the Paragould system because, even though Act 562 of 1953 is permissive, as we held above, the Commissioners are elected and thus, for First Amendment purposes, the City Council is not controlling access to cable channels or exercising editorial control. The Cable Act of 1984 simply requires that government not have editorial control over the cable channels. 47 U.S.C. § 533(e)(2) (Supp. 1990).

Because we find that the Commission is an agency of the City and because the City has clearly retained all legislative power in connection with operation of the city-owned cable system, Cablevision has not shown any constitutional or statutory violation, and the actions of the City do not constitute an illegal exaction.

Affirmed.

Holt, C.J., and Newbern, J., dissent.

Corbin, J., not participating.

David Newbern, Justice,

dissenting. Section 1 of Act 562 of 1953, codified as Ark. Code Ann. § 14-201-203(a) (1987), contains this language:

A city of the first class may, by ordinance, create a commission or commissions to operate, control, and supervise such of its municipally owned water, sewer, or light plants as may be prescribed by ordinance which are not now being operated by a commission created by or pursuant to valid special or local acts of the General Assembly.

The question in this case is nothing more than whether a commission created pursuant to this statute may operate a cable television facility. If I properly understand the Court’s opinion the holding is that operation of the cable system by such a commission is permitted because it would be practical to do so and because the Paragould Light and Water Commission is a creature of city ordinance under the authority of this “permissive” statute. While I agree the statute is permissive, I cannot read it as permitting the Commission to operate anything other than “water, sewer, or light plants.”

It would perhaps be a very good thing if there were a way we could insert “cable television authority” in the series of items a light and water commission created under Act 562 is allowed by law to control, but nothing in the Court’s opinion shows how we can do that. Our first duty is to apply the statute just as it reads, giving the words their ordinary meaning. Kansas City Southern Railway Co. v. Pleger, 301 Ark. 564, 785 S.W.2d 462 (1990); Jones v. Davis, 300 Ark. 130, 777 S.W.2d 582 (1989). While we may have the luxury of interpretation when the language of a statute is ambiguous, Dooley v. Hot Springs Family YMCA, 301 Ark. 23, 781 S.W.2d 457 (1989); Death & Permanent Total Disability Trust Fund v. Hempstead County, 304 Ark. 438, 803 S.W.2d 527 (1991), that is hardly the case in this instance.

I respectfully dissent.

Holt, C.J., joins in this dissent.


author: Per Curiam.

text:
    Johnnie Michael COX v. STATE of Arkansas
    CR 91-16
    807 S.W.2d 665
    Supreme Court of Arkansas
    Opinion delivered May 13, 1991

      Paul Petty, for appellant.
    No response.
   Per Curiam.

The appellant in this case was sentenced to death for capital murder on June 30, 1990, and received a Rule 36.4 warning at time of sentencing. Counsel for the appellant then moved to withdraw. On July 26,1990, the appellant filed his motion, pro se, within thirty days of sentencing in support of his counsel’s motion to withdraw. He further moved to proceed under Rule 37 and for the appointment of new counsel “to file an appeal for ineffective assistance of counsel.” (Though Rule 36.4 was then in effect he couched his motion in terms of Rule 37.) His reference tp Rule 37 implies a request for a new trial on grounds of ineffective counsel, and we treat it as such. The trial court refused to grant his motion for post conviction relief and appointment of new counsel by order dated July 27,1990, and gave as one reason the fact that the appellant had not made specific allegations of ineffective assistance in his motion.

We denied counsel’s motion to withdraw on March 18,1991, but did not consider the denial of post conviction relief at that time.

Counsel for the appellant have now filed an amended motion to withdraw and cite as authority Mobbs v. State, 303 Ark. 98, 792 S.W.2d 601 (1990). In Mobbs, we said if a convicted defendant makes a timely Rule 36.4 claim, the trial court should forthwith appoint a new attorney to prosecute the post conviction motion in the trial court and the direct appeal as well.

We agree that the Mobbs rationale is persuasive in this case and that new counsel should be appointed to represent the appellant in his direct appeal and with respect to any other proceedings in connection with his claim for post conviction relief. Counsel’s motion to withdraw is granted.

Remanded for further proceedings consistent with this opinion.


author: Steele Hays, Justice.

text:
    James H. HARRELL and Zella Harrell v. INTERNATIONAL PAPER CO., A New York Corporation
    91-88
    808 S.W.2d 779
    Supreme Court of Arkansas
    Opinion delivered May 20, 1991

      Robert E. Irwin, for appellants.

      Mitchell, Williams, Selig & Tucker, by: Sherry P. Bartley, for appellee.
   Steele Hays, Justice.

This dispute arises from the sale of 2.26 acres containing a railroad spur purchased in 1985 by James and Zella Harrell from the International Paper Company (IP). In 1989 the Harrells sued IP for negligently permitting the removal of the spur by Union Pacific Railroad, successor to Missouri Pacific Railroad. IP’s motion for summary judgment was granted and the Harrells have appealed. Finding no issue of material fact or error of law, we affirm.

On November 5,1985, pursuant to an offer and acceptance agreement executed on October 23, 1985, IP conveyed the 2.26 acres, known as the “Russellville Woodyard Site,” to the Harrells by special warranty deed. The habendum clause recited “with all appurtenances thereunto belonging.” Located on the site was some 500 feet of railroad spur which was connected to the main line of Missouri Pacific (now operated by Union Pacific) by trackage known as the “switch,” no part of which was on the Harrell property.

On May 30, 1990, IP filed a motion for summary judgment supported by numerous exhibits and affidavits asserting the following: In 1974 Missouri Pacific entered into a “side track” agreement with IP granting IP permission to be served by the switch pursuant to an “Industrial Track Agreement” dated August 2,1962, between Missouri Pacific and a previous owner of the woodyard site, George Cline. Under the terms of the agreements no rights could be transferred without the consent of the railroad. In May of 1987 Union Pacific wrote to IP asking that the side track agreement be cancelled and IP notified Union Pacific that it had no objection to the cancellation. The motion further asserted that Union Pacific had removed only its own equipment, the switch, from its own right-of-way and that nothing had been removed from the Harrell property. The deposition of James Harrell, also an exhibit to the motion, confirmed these assertions.

No response was filed to IP’s motion for summary judgment and on July 27, 1990, the trial court granted the motion. The Harrells moved to vacate, contending that under Ark. R. Civ. P. 56 they were entitled to a hearing. IP’s response pointed out that Rule 56 does not mandate a hearing and that Rule 12(i) and 78(c) of the civil rules provide that if a party opposes a motion “under this or any other rule” he shall respond within ten days, and unless a hearing is requested or ordered by the court, a hearing is deemed to be waived. The Harrells then filed an amended motion to vacate. Both motions were denied and the Harrells have appealed, contending that summary judgment should not have been granted because questions of fact arose by reason of the conveyance of “all appurtenances thereunto belonging.”

Arkansas R. Civ. P. 56(c) provides that when a motion for summary judgment is made and supported by affidavits, pleadings, admissions and the like, an adverse party may not rest upon the allegations of the pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. When a litigant is so confronted and does not respond, the rule states clearly that “summary judgment, if appropriate, shall be entered against him.”

Here, the underlying factual element of the complaint was that IP had authorized Union Pacific to remove the railroad spur from the Harrells’ property. IP’s motion, with supporting documentation, including the deposition of James Harrell, declared to the contrary that IP had not authorized the removal of any part of the Harrells’ property and that, in fact, nothing had been removed from that property. Confronted with that challenge to their version of facts material to the case, it was incumbent on the appellants to show what fact issues remained. Pruitt v. Cargill, Inc., 284 Ark. 474, 683 S.W.2d 906 (1985); Hughes Western World, Inc. v. Westmoor Mfg. Co., 269 Ark. 300, 601 S.W.2d 826 (1980); Cummings v. Beardsley, 271 Ark. 596, 609 S.W.2d 66 (1980).

Nor can we agree with appellants’ argument that the phrase “with all appurtenances thereunto belonging” dictates a different result in this case. As appellees correctly point out, an appurtenance is “a thing belonging to another thing as principal, and which passes as incident to the principal thing.” Alwes v. Richheimer, 185 Ark. 535, 47 S.W.2d 1084 (1932). The switch removed by Union Pacific was situated entirely on its own right-of-way and belonged to Union Pacific. We find nothing in the pertinent agreements from which to conclude that IP had any interest in the switch susceptible of being conveyed to the Harrells as an appurtenance to the property sold by IP. See 25 Am. Jur. 2d Easements and Licenses § 15 (1966); 77 Am. Jur. 2d Vendor and Purchaser § 87 (1975).

We find no error by the trial court and, accordingly, the order of summary judgment is affirmed.


author: Tom Glaze, Justice.

text:
    IN THE MATTER OF George Alexander BROWN v. B.G. BROWN
    90-226
    809 S.W.2d 808
    Supreme Court of Arkansas
    Opinion delivered May 20, 1991

      Basil V. Hicks, Jr., for appellant.

      Hopkins Law Firm, by: Gregory M. Hopkins-, and Richard C. Downing, P.A., by: Patrick C. Downing, for appellee.
   Tom Glaze, Justice.

Appellant appeals the lower court’s August 14, 1990 and October 2,1990 orders finding him in civil contempt for willfully failing to comply with an April 27, 1989 divorce decree, incorporating a property settlement agreement which required him to pay appellee, his former wife, $50,000. Appellant’s sole argument is that no credible evidence exists to support the trial court’s finding that he had the ability to pay the $50,000; thus his incarceration is an imprisonment for debt in violation of art. 2, § 6 of the Arkansas Constitution.

Our review of a finding of contempt is limited to examining the findings of the trial court and reversing only if the trial court’s decision is against the preponderance of the evidence. See Ex Parte Johnston, 221 Ark. 77, 251 S.W.2d 1012 (1952). In arguing he had no ability to pay his obligation to his former wife, appellant relies heavily on the fact that, prior to his divorce, he had filed a voluntary Chapter 11 bankruptcy proceeding. He stated that a bankruptcy trustee had control of his estate and that little of his property has been liquidated. Appellant further states he lives with his mother, he is unsalaried, he has received only $4,000 from the trustee and he has assigned to his former wife the proceeds of his estate that might remain after his creditors are paid.

Appellee countered appellant’s evidence by detailing appellant’s assets and liabilities existing before and at the time he filed for bankruptcy. In 1986, he had a net worth of over two million dollars, in 1987, his net worth was over one and one-half million dollars, and on May 8, 1988, when he filed his petition for bankruptcy, he was worth $314,000. While appellant’s net worth appeared to decrease during this period, the appellee introduced the bankruptcy judge’s earlier findings that the appellant failed to disclose all of his assets and income. Specifically, the bankruptcy judge found appellant did not reveal what his partnership arrangement was with his mother. Because appellant demonstrated a total lack of good faith in disclosing his financial interests, the bankruptcy judge appointed a trustee to administer appellant’s estate. Even after his appointment, the trustee testified later in this contempt action that, while appellant’s mother denied any business relationship with her son, the trustee was unable to separate appellant from his mother’s farming operation.

Appellee further showed that the appellant never tendered a Chapter 11 plan to the trustee, requesting his estate be liquidated accordingly. The trustee also stated the appellant made no efforts to sell any of his real property. Appellant conceded that, when he borrowed money, he had told banks that the property in his mother’s name was actually his inheritance property, which he then used as collateral for bank loans.

Based upon the above and other evidence, the chancellor, in finding appellant had the ability to pay his obligation to appellee, resolved the conflicts in testimony in appellee’s favor. Additionally, he found evidence that the appellant had received some money during his bankruptcy, but had never given any of it to the appellee. The chancellor was convinced that appellant had an ongoing business relationship with his mother that could have, if disclosed, produced sufficient funds to pay his obligation to appellee. In sum, neither the bankruptcy judge nor, in this action, the chancellor, believed the appellant’s story that he had insufficient funds or resources to pay his debts. Clearly, the trial judge determined that any inability the appellant had in paying the appellee was due to appellant’s own actions or inactions. While inability to perform is a defense to contempt citations, we have held that where the inability to pay is due to actions or inactions on the appellant’s own part, a finding of contempt is proper. Ex Parte Coffelt, 239 Ark. 324, 389 S.W.2d 234 (1965).

When there are conflicts in the testimony, it is our duty to give the same force to the findings of the trial court in contempt proceedings as we do in other cases when there is a conflict in testimony. Dennison v. Mobley, Chancellor, 257 Ark. 216, 515 S.W.2d 215 (1974). In following this rule when reviewing the record before us, we are unable to say the trial court’s finding of contempt is clearly against the preponderance of the evidence.

For the reasons stated above, we affirm the trial court’s civil contempt orders.

Holt, C.J., not participating.

       We note that appellee argues this appeal is moot because appellant was released, temporarily at least, from jail on January 31,1991. Appellant, however, limits his appeal from the August 14 and October 2,1990 contempt orders and seeks the overturn of those orders. What has occurred in this case since appellant’s appeal of those two orders is unclear and does not bear on the validity of these final orders. Therefore, we opted to address the merits of appellant’s appeal.


text:
    Carlos GOMEZ v. STATE of Arkansas
    CR 91-30
    809 S.W.2d 809
    Supreme Court of Arkansas
    Opinion delivered May 20, 1991

      La Jeana Jones, for appellant.

      Winston Bryant, Att’y Gen., by: Pamela Rumpz, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant was convicted on August 6,1990, of delivery of a controlled substance in violation of Ark. Code Ann. § 5-64-401 (1987). He was sentenced as an habitual offender under Ark. Code Ann. § 5-4-501 (1987) to serve a term of life in the Arkansas Department of Correction. He makes four assignments of error, among which we find no merit.

On August 20, 1989, appellant, Carlos Gomez, sold thirty-five capsules of cocaine to undercover agent W. L. Holbrook of the Ninth West Drug Task Force. On August 21,1989, appellant was charged by felony information with two counts of delivery of a controlled substance and one count of possession of a firearm. A warrant for his arrest was issued the same day. On August 25, 1989, a first amended information was filed charging appellant with only the count of possession of a controlled substance giving rise to the conviction from which this appeal is taken. In February 1990, appellant was tried on the remaining counts of delivery of a controlled substance and possession of a firearm.

As required by Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), when there is a challenge to the sufficiency of the evidence, the appellate court must review that point prior to considering any alleged trial error. Therefore, although appellant’s challenge to the sufficiency of the evidence is made in his last point, we will address it first.

I.

IT WAS ERROR TO DENY APPELLANT’S MOTION FOR A DIRECTED VERDICT AT THE CLOSE OF THE STATE’S CASE AND AT THE CLOSE OF THE DEFENDANT’S CASE.

Appellant contends that because Officer Holbrook’s testimony was the only eyewitness account of the drug sale, and because he, appellant, offered the testimony of a witness corroborating his own testimony denying the transaction took place, there was not sufficient evidence to convict him. We disagree.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Dunlap v. State, 303 Ark. 222, 795 S.W.2d 920 (1990). In reviewing the sufficiency of the evidence, this court views the evidence in the light most favorable to the appellee, and affirms if there is any substantial evidence in support of the verdict. Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990). Evidence is substantial to support a conviction if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). In reviewing the sufficiency of the evidence, this court need only consider evidence in support of the conviction. Id. Furthermore, the credibility of the witnesses and the weight to be given their testimony are for the jury. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983). Where the testimony is conflicting this court does not pass upon the credibility of the witnesses and has no right to disregard the testimony of any witness after the jury has given it full credence. Id.

At trial, Officer Holbrook testified that he bought thirty-five gelcaps of cocaine from appellant. He said he gave appellant $150.00 for the cocaine. Officer Holbrook also described particulars of the transaction.

Considering the evidence in the light most favorable to the state, we cannot say there was not substantial evidence to support the conviction.

II.

THE DENIAL OF APPELLANT’S MOTION FOR CONTINUANCE WAS ERROR.

Appellant claims there was no opportunity for him to talk with his court-appointed public defender prior to the commencement of the trial, and therefore the trial court erred in denying his motion for continuance. Appellant is Cuban and claims that he does not understand English well enough to communicate with his attorney without an interpreter. He says that his attorney contacted the Sevier County jail on August 2, but no interpreter was available at that time. He says his attorney had another trial on August 3,1990, and due to her schedule, August 2 was the only possible opportunity for the two of them to discuss the case. The motion for continuance was made the day of trial.

The trial court has discretion to determine whether a continuance is appropriate; the denial of a continuance will not be reversed unless there was a clear abuse of discretion which constitutes a denial of justice. Cessor v. State, 282 Ark. 330, 668 S.W.2d 525 (1984). The burden is on the appellant to establish prejudice and an abuse of discretion in denying the continuance. Butler v. State, 303 Ark. 380, 797 S.W.2d 435 (1990). Additionally, in reviewing the denial of motions for continuance based upon alleged inadequacy of time for preparation for trial by a defendant’s attorney, we have been hesitant about finding an abuse of discretion because of the superiority of the trial judge’s perspective, his grasp of the particular situation, and his knowledge of developments which are not matters of record. Swaim v. State, 257 Ark. 166, 514 S.W.2d 706 (1974). However, we did find an abuse of discretion and reversed the conviction in Gonzales v. State, 303 Ark. 537, 798 S.W.2d 101 (1990), a case similar to the case at bar in that the appellant did not speak English well enough to be able to communicate with his attorney without an interpreter. In Gonzales this court held that the appellant’s motion for continuance, which was based on the lack of time for trial preparation, should have been granted because the public defender, through no fault of his own or that of the appellant, did not know that he was to defend the appellant until the day before the case was to be tried. The court noted that “[t]his lack of preparation time was further compounded by the language barrier existing between the appellant and his appointed counsel and the difficulty in obtaining a competent interpreter in a timely manner.” Id. at 540, 798 S.W.2d at 102. The circumstances in the case at bar are clearly distinguishable.

Although appellant’s trial counsel in this case did not represent him in the February trial, she handled the appeals from those convictions. On August 6,1990, she told the court at an in chambers hearing immediately preceding trial that she had been corresponding with appellant for some time concerning those appeals. The prosecutor confirmed for the court that the circumstances giving rise to this charge were similar to those giving rise to the charges tried in February. Appellant’s trial counsel acknowledged being familiar with those circumstances from her work with his appeal from the February convictions. Also, according to the prosecutor, discovery was completed some time before trial. We note that appellant’s attorney did not assert any other need for the continuance except to converse with appellant.

The record is devoid of any documents directly concerning the appointment of appellant’s trial counsel. However, it does include two letters from the trial judge from which we can conclude she has been involved in this case since February 1990.

This court in Pruett v. State, 282 Ark. 304, 669 S.W.2d 186 (1984), another case where the appellant’s trial counsel was a public defender “swamped with work,” stated that “we cannot appreciably slow the flow of the criminal justice system to accommodate overworked attorneys or judges.” Id. at 309, 669 S.W.2d at 189. As appellant’s trial counsel had been involved in this case since at least February 1990, she had ample time within which to communicate with appellant prior to trial.

Appellant has failed to show how he was prejudiced. Therefore, we cannot say the trial court abused its discretion in denying appellant’s motion for continuance.

III.

THE DENIAL OF APPELLANT’S MOTION TO QUASH THE INFORMATION BECAUSE OF A DEFECT IN THE AFFIDAVIT WAS ERROR.

Appellant contends that, because the affidavit for warrant of arrest states no date as to when the alleged offense occurred, the affidavit is defective, and therefore the information should be quashed.

Concerning the issuance of a warrant of arrest, Ark. Code Ann. § 16-81-104 (1987) provides the following:

(a)(2) It shall be the duty of a magistrate to issue a warrant for the arrest of a person charged with the commission of a public offense when, from his personal knowledge or from information given him on oath, he shall be satisfied that there are reasonable grounds for believing the charge.

On August 21,1989, an information was filed charging appellant with delivery of a controlled substance; an affidavit was sworn by Officer Holbrook stating “facts constituting reasonable cause;” and a warrant for arrest was issued by the municipal judge on a finding that “this sworn affidavit and testimony of affiant demonstrate reasonable and probable cause for the issuance of an arrest warrant for the above named individual.” The record reflects compliance with the statutory requirements for issuing a warrant of arrest. Furthermore, the only purpose of an affidavit and arrest warrant is to have an accused arrested and brought before the justice or other officer issuing the warrant so that the accused may be dealt with according to law. Dudney v. State, 136 Ark. 453, 206 S.W. 898 (1918); Cox v. City of Joneboro, 112 Ark. 96, 164 S.W. 767 (1914); Daley v. State, 20 Ark. App. 127, 725 S.W.2d 574 (1987). As the affidavit served its purpose, it is not necessary to our decision to consider whether the affidavit was defective.

IV.

APPELLANT’S OBJECTION TO THE INTRODUCTION OF THE CONTROLLED SUBSTANCE SHOULD HAVE BEEN SUSTAINED BECAUSE THE PROPER CHAIN OF CUSTODY WAS NOT ESTABLISHED.

Appellant contends the gelcaps of cocaine, State’s Exhibit No. 4, were improperly admitted into evidence because the state failed to establish an unbroken chain of custody. He argues there were three missing links in the chain of custody as it was presented at trial. The alleged missing links were the absence of testimonies by Officer Holbrook’s secretary, in that she was the last person to handle the evidence before it was mailed to the state crime lab; the evidence receiving technician at the crime lab who actually received the evidence, checked it in and assigned it a laboratory case number; and possibly a second receiving technician who, following the analysis of the evidence, checked it back into the receiving room until such time as it was mailed back to Officer Holbrook. Appellant neither claims the evidence has been tampered with nor that it has been altered in any way; he simply asserts there are missing links in the chain of custody. Appellant’s argument is without merit.

The purpose of establishing the chain of custody is to prevent the introduction of evidence which is not authentic. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). To prove its authenticity the state must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982). To allow introduction of physical evidence, it is not necessary that every moment from the time the evidence comes into the possession of a law enforcement agency until it is introduced at trial be accounted for by every person who could have conceivably come in contact with the evidence during that period. Phills v. State, 301 Ark. 265, 783 S.W.2d 348 (1990). Nor is it necessary that every possibility of tampering be eliminated; it is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with. Munnerlyn v. State, 264 Ark. 928, 576 S.W.2d 714 (1979).

At trial Officer Holbrook positively identified the matchbox and the gelcaps, State’s Exhibit No. 4, as that which he purchased from appellant. He explained the routine he went through in preparing the evidence to be sent to the state crime lab. He said he placed both the gelcaps and the matchbox containing them in a plastic bag, sealed the bag, and wrote both appellant’s name and his own initials on it. Officer Holbrook also testified that when he received the evidence back from the state crime lab the seal had not been broken.

Norman Kemper, the drug chemist for the Arkansas State Crime Laboratory, in his testimony, explained how evidence is submitted to the crime lab. He said it is submitted “in a sealed condition” either by a law enforcement officer personally or by certified mail. Mr. Kemper said that upon arrival, the evidence is checked in by a laboratory evidence receiving technician and assigned a laboratory case number for identification purposes. The evidence in the case at bar was submitted by certified mail and, as evidenced by the signature on the green card which is part of the certified mail documentation, received by Renee Rice, an evidence receiving technician.

Mr. Kemper further explained for the jury the safeguards the investigators as well as the state crime lab personnel utilize to preserve the integrity of the evidence. He said, “[w]hen we receive evidence into the Lab, we try, if at all possible, not to disturb the original seal. . . . We try to make another incision on the envelope if possible and reseal it. Every time we reseal it we put our initials on it.” During his testimony Mr. Kemper examined the envelope in which the evidence had been mailed to the crime lab and observed, “ [t] his end apparently was opened by the evidence technician. She had to open it somehow to retrieve the envelope and the submission sheet that was inside the envelope, and she put her initials across it.”

Mr. Kemper continued saying that after the evidence is checked in and assigned a case number it is given to him for analysis. He testified that upon receiving this particular evidence, he analyzed it, resealed it, marked it and initialed it. Mr. Kemper identified both his seal and his signature on the bottom of the envelope and pointed out that he wrote both the date on which he originally opened the envelope and the date on which he sealed it. Upon completing this routine he said he turned the evidence back into the receiving room where it was checked in until such time as it was mailed back to Officer Holbrook.

From our review of the testimony presented by the state in establishing the chain of custody, we cannot say the trial judge abused his discretion in allowing the introduction of State’s Exhibit No. 4.

Affirmed.


text:
    Byron L. MAGNESS and Sandra W. Magness v. Willie McENTIRE
    91-5
    808 S.W.2d 783
    Supreme Court of Arkansas
    Opinion delivered May 20, 1991

      James F. Lane, for appellant.

      Laser, Sharp, Mayes, Wilson, Bujford & Watts, P.A., by: Sam Laser and Brian Allen Brown, for appellee.
   Donald L. Corbin, Justice.

Appellants filed suit against appellee in Saline Circuit Court for damages to real property allegedly caused by appellee’s negligence. Appellants hired appellee to clear certain Saline County real estate and to make a road thereon. Appellants claimed that appellee negligently cleared approximately 8,000 square feet of adjacent real estate, causing damages of approximately $5,000. Appellee moved for summary judgment on the grounds that appellants were not the real parties in interest to maintain the suit. Appellee also argued that appellants’ Assignment of Cause of Action, which was filed as an exhibit to their Response to Summary Judgment, was not certified and therefore not in compliance with Ark. R. Civ. P. 56(e).

On June 22, 1989, in response to appellee’s summary judgment motion, the trial court entered a peculiar order which appears below in its entirety:

Defendant Willie McEntire has moved for summary judgment pursuant to Rule 56 of the Arkansas Rules of Civil Procedure. After due consideration, this Court grants summary judgment.
The Complaint of the Plaintiff is hereby dismissed without prejudice.
DATED this 14th day of June, 1989.

Following the entry of this ambiguous order, appellants interpreted it as a dismissal without prejudice and again filed suit against appellee based on the same cause of action. Appellee then moved for summary judgment. On September 21,1990, the trial court granted appellee’s motion, stating that “ [t]he record before the Court indicates that this matter is res judicata . . . .” With no remaining issues of law or fact to be adjudicated, the action was “DISMISSED WITH PREJUDICE.” It is from this September 21, 1990 order of summary judgment that appellants appeal.

When reviewing a summary judgment, this court considers whether the summary judgment was appropriate based on the evidence presented and whether it left any material question of fact unanswered. Ragar v. Krug, 303 Ark. 161, 794 S.W.2d 151(1990). The summary judgment order we are asked to review in this case was entered on the grounds of res judicata. The doctrine of res judicata requires an adjudication on the merits. McCormac v. McCormac, 304 Ark. 89, 799 S.W.2d 806 (1990). There is no doubt that an order granting summary judgment is a final adjudication on the merits which bars subsequent suits on the same cause of action. Widmer v. Wood, 244 Ark. 891, 427 S.W.2d 537 (1968); Estate of Knott v. Jones, 14 Ark. App. 271, 687 S.W.2d 529 (1985). However, a dismissal without prejudice is not an adjudication on the merits and will not bar a subsequent suit on the same cause of action. Benedict v. Arbor Acres Farm, Inc., 265 Ark. 574, 579 S.W.2d 605 (1979). Thus, the issue before us is whether the June 22, 1989 order is an adjudication on the merits that will support the trial court’s September 21,1990 order of summary judgment based on res judicata. In short, the issue is whether the June 22, 1989 order is an order of summary judgment or a dismissal without prejudice.

How then are we to interpret the ambiguous order of the trial court dated June 22,1989? As a general rule, judgments are construed like any other instruments; the determinative factor is the intention of the court, as gathered from the judgment itself and the record. We have followed this general rule stating that judgments should be reviewed by looking to the judgment itself, pleadings, and any evidence presented. Webb v. Herpin, 217 Ark. 826, 233 S.W.2d 385 (1950); Young v. Gurdon, 169 Ark. 399, 275 S.W. 890 (1925); Nakdimen v. Brazil, 137 Ark. 188, 208 S.W. 431 (1919). Most recently, this court has applied this rule in Arkansas State Bank Comm’r v. Bank of Marvell, 304 Ark. 602, 804 S.W.2d 692 (1991). There, we stated that in interpreting a lower court’s order, “[wjhile we look to the language in which [the] order is couched, we also look to whether the evidence supports [the] ruling . . . .” Arkansas State Bank Comm’r, 304 Ark. at 607, 804 S.W.2d at 694, (citing Nakdimen v. Brazil, 137 Ark. 188, 208 S.W. 431 (1919)).

Applying the foregoing rule of construction to this case, we conclude that the trial court’s order dated June 22,1989, is in effect an involuntary dismissal pursuant to Ark. R. Civ. P. 41 (b). After reviewing the record, it is apparent the trial court could have found that appellants failed to join necessary parties or to comply with the certification requirement of Ark. R. Civ. P. 56(e) and that appellants should be given a chance to re-file their claim in compliance with the Arkansas Rules of Civil Procedure. In such a situation, an involuntary dismissal under Rule 41(b) would be appropriate.

Because we construe the June 22, 1989 order as a dismissal without prejudice, we conclude it was error for the trial judge to grant summary judgment and preclude appellants’ claim. We reverse the September 21, 1990 summary judgment and remand this case to the trial court for a trial on the merits pursuant to Ark. R. Civ. P. 41 and Ark. Code Ann. § 16-56-126 (1987).

Glaze, J., not participating.


author: Donald L. Corbin, Justice. David Newbern, Justice,

text:
    Paul PENNINGTON v. STATE of Arkansas
    CR 91-46
    808 S.W.2d 780
    Supreme Court of Arkansas
    Opinion delivered May 20, 1991

      William R. Simpson, Jr., Public Defender, and Thomas B. Devine III, Deputy Public Defender, by: Thomas B. Devine III, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

The appellant was found guilty of possession of cocaine with intent to deliver and sentenced to five years imprisonment under Ark. Code Ann. § 5-64-401 (a)(1)(i) (1987) of the Uniform Controlled Substances Act. That section of the Act covers Schedule I or II controlled substances. On appeal, he claims the trial judge erred in stating he could not consider appellant’s request for probation. We agree with appellant’s contention and remand this case for the sole purpose of allowing the trial court to consider alternative sentencing provided under the Criminal Code, Ark. Code Ann. §§ 5-4-301 to -311 (1987 & Supp. 1989).

The state in this appeal fails to respond to the appellant’s argument except to say that appellant’s contention was not properly raised below, and therefore was not preserved for appellate review. We disagree. At the sentencing hearing, appellant’s counsel stated his position that the trial court had authority to place the appellant on probation. However, the trial court disagreed with counsel, adding that if probation was permitted under the law, it would consider probation. In view of this clear exchange between the trial court and appellant’s counsel, we believe appellant is entitled to have his argument decided on its merits.

To decide whether the trial court had authority to consider appellant’s request for probation, we must review the relevant history of the 1971 Uniform Controlled Substances Act, under which appellant was sentenced, and the 1975 Criminal Code, which provides in § 803 for sentencing in Code offenses and in § 1201 for considering criterion for suspended imposition of sentence or probation.

As already mentioned, appellant was sentenced under the Uniform Controlled Substances Act. In its original form, the 1971 Act provided imprisonment for up to fifteen years for the possession with intent to deliver Schedule I or II narcotic drugs, but it provided no special provision for probation or suspension for such an offense. See Article IV, § 1(a)(i)of Act 590 of 1971 [now codified and amended as section 5-64-401 (a)(1)(i)]. However, as previously mentioned, the 1975 Criminal Code provided for probation for offenses defined by the Code. And while offenses under the Controlled Substances Act were not defined under the Criminal Code, § 1202 of the Code [now section 5-4-302] provided as follows:

When a defendant who pleads or is found guilty of an offense defined by a statute not a part of the code is eligible for suspension or probation pursuant to that statute, the court may make any disposition permitted by that statute.

Thus, because the Controlled Substances Act provided no probation or suspension alternative for the offense of possession of a narcotic drug with intent to deliver (or for the delivery or manufacture of a narcotic drug), the sentencing, probation and suspension provisions of the Code were made applicable to such an offense under section 1202. However, amendments to the 1971 Uniform Controlled Substances Act and the 1975 Criminal Code have since occurred. Therefore, it is important to review those changes to be sure the appellant in this case is entitled to the sentencing and disposition provisions of the Code.

In considering first the Code, we note that the General Assembly amended it by enacting Act 409 of 1983 [Ark. Code Ann. § 5-4-104(e)(1) (1987 & Supp. 1989)] in order to stiffen sentences by eliminating probation and suspension of imposition of sentences in specified crimes, viz., capital murder, treason, a Class Y felony offense or murder in the second degree. The Code previously excepted only defendants convicted of capital murder from receiving probation or suspension. Section 2 of Act 409 [Ark. Code Ann. § 5-4-401 (1987)] provides a defendant convicted of a Class Y felony must receive a determinate sentence of not less than ten years and not more than forty years.

Next, we mention Act 669 of 1985 where the General Assembly amended the Uniform Controlled Substances Act. Act 669 somewhat redefined the offenses of manufacturing, delivery and possession of a controlled substance with intent to deliver under Article IV, section 1(a)(1)(i) [section 5-64-401(a)(1)(i)], but it further provided that these offenses are Class Y felonies for all purposes other than disposition. When enacting Act 669, the General Assembly presumably was aware that the Code sentencing and disposition provisions, as amended by Act 409 of 1983, had excluded the possibility of probation in Class Y felony offenses. Accordingly, by its clear language in Act 669, the General Assembly, while classifying the offense of possession of a narcotic drug with intent to deliver (as well as manufacture and delivery of such drugs) as a Class Y crime, directed that such classification should not be used when considering and applying alternative dispositions.

In sum, we believe a fair construction of the foregoing provisions and amendatory acts of the Uniform Controlled Substances Act and the Criminal Code reflect that, in the present case, the trial judge could have considered appellant’s request for probation. We quickly add, however, that the General Assembly has recently passed Act 608 of 1991 which further amends section 803 [section 5-4-104] and section 1201 [section 5-4-301] of the Code. Briefly, Act 608 amends section 5-4-104(e) (1) to add that a defendant convicted of a drug-related offense under the Uniform Controlled Substances Act is not eligible for probation, and it amends section 5-4-301 (a)(1) to provide that a defendant convicted of a drug-related offense under the Uniform Controlled Substances Act is not entitled to a suspended imposition of sentence or probation except to the extent that probation is otherwise permitted under that Act. Without discussing Act 608 further, we note the General Assembly enacted this law so as to resolve the confusion as to what forms of punishment are permitted or prohibited in cases such as the drug-related offense we have addressed in this appeal.

For the reasons given above, we reverse and remand so the trial court may consider appellant’s request for probation.

Reversed and remanded.

Holt, C.J., Newbern, and Brown, JJ., dissent.

David Newbern, Justice,

dissenting. The crux of the majority opinion is its conclusion that the probation and sentencing provisions of the Criminal Code were made applicable to violations of the Controlled Substance Act because that Act made no provision for suspension or probation. The basis of that conclusion is the language quoted from the Criminal Code and codified in Ark. Code Ann. § 5-4-302 (1987):

When a defendant who pleads or is found guilty of an offense defined by a statute not a part of the code is eligible for suspension or probation pursuant to that statute, the court may make any disposition permitted by that statute.

If “that statute” is a reference to the Controlled Substances Act, or the particular part of the Act pursuant to which Pennington was convicted, then for the Trial Court to be allowed to consider probation, we must at least be able to find something in the Controlled Substances Act which allows it. I cannot find it.

While I understand the majority opinion’s conclusion that the failure to provide for probation as an alternative sentence for one convicted of possession of a controlled substance with intent to deliver relegates the court to the probation provisions of the Criminal Code, I do not agree.

By providing for probation as a possible sentence for one convicted of possession under the Controlled Substances Act at Ark. Code Ann. § 5-64-407 (1987), but not providing for it for one convicted of possession with intent to deliver, the General Assembly made it clear to me that drug dealers are not to be entitled to a probationary sentence.

I respectfully dissent.

Holt, C.J., and Brown, J., join in this dissent.

       Article IV, § 7 of Act 590 of 1971 [Ark. Code Ann. § 5-64-407 (1987) ] does provide for a probationary period for the offense of possession of a controlled substance, but it fails to mention other drug offenses.