text:
    Jason PYLES v. STATE of Arkansas
    CR 96-1314
    947 S.W.2d 754
    Supreme Court of Arkansas
    Opinion delivered June 16, 1997
    [Petition for rehearing denied July 14, 1997.]

      Young & Finley, by: Dale W. Finley and Richard H. Young, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

The appellant, Jason Pyles, was convicted of the first-degree murder of Rick Humphries. Pyles appeals that conviction based upon seven arguments of error. Specifically, Pyles contends that the trial court erred by the excluding testimony of a proffered defense witness, testimony relating to a polygraph, and testimony of a note written to the victim. Also, Pyles contends error in the admission of evidence relating to the use of Luminol testing. Pyles claims that the trial court abused its discretion in scheduling the trial well into the night, which resulted in prejudice by requiring the entire defense to be submitted hurriedly. Lastly, Pyles contends that the trial court erred in denying his motion to suppress the confession because it was not voluntary. We agree that Pyles’s confession was not voluntary and, therefore, reverse and remand for a new trial.

On May 18, 1994, Pyles called the police to report finding Rick Humphries dead. The police suspected Pyles in the murder. On May 19, 1994, officers arrested Pyles at his girlfriend’s parents house on two warrants for unrelated misdemeanors, criminal mischief and harassment.

When the officers arrived at the house, Pyles was asleep in a bedroom and not fully clothed. After awakening him, they left the bedroom and awaited for him to come out into the living room. When he did come out of the bedroom, he was instructed of his Miranda rights and given a pat down. There are disputed accounts about whether the officers found a small 35-millimeter film canister during the pat down or when Pyles emptied his pockets in order to leave personal items with a young man at the house. Despite this, the police, upon seeing the canister asked Pyles what was in it and he was evasive. The officers opened the canister and found three small packets of what was identified later as methamphetamine.

Pyles was taken into custody on the misdemeanor warrants and at that time signed an acknowledgment that he had been advised of his Miranda rights and also signed a waiver of those rights. Pyles subsequently confessed to the murder of Humphries.

Appellant was charged with the murder of Pick Humphries on May 23, 1994. At that time he was also charged with possession of a controlled substance with intent to deliver. He was found guilty on the possession charge on May 17, 1995. On April 17 1996, Pyles was found guilty of murder in the first degree in the Sebastian County Circuit Court.

I. Confession Obtained by False Promises

Appellant contends that his confession should be suppressed because the officers made false promises that induced him to confess. He claims that the eliciting of the confession violated his Fifth and Fourteenth Amendments rights because it was not a voluntary statement.

Pyles contends that Officer Donald Steven Howard promised him that he would “help him in every way in the world.” Pyle’s version of the interrogation is that the officers repeatedly told him that if the murder was done in self-defense, a court would be more lenient.

Following a long interrogation of several hours by other officers, Officer Howard began to interrogate Pyles. Officer Howard testified that he knew Pyles prior to the arrest through baseball and that he visited with Pyles about that. He testified that he told Pyles that it was important for him to tell the truth and that “they knew he did it.” He also testified that he told Pyles that he did not believe that Pyles was a cold-blooded killer and that he told Pyles that he would “do everything in the world [he] could for him.” Pyles claims that he confessed after Officer Howard made this statement. The State concedes that a questionable promise may have been made to the appellant.

In Davis v. State, 257 Ark. 388, 517 S.W.2d 515 (1974), this Court examined a confession challenged as involuntary by the appellant. We held that we would examine such challenges on a case-by-case basis and make and determine whether a confession was voluntary based upon the totality of the circumstances. Additionally, we held:

If a police official makes a false promise which misleads a prisoner, and the prisoner gives a confession because of that false promise, then the confession has not been voluntarily, knowingly and intelligently made. In determining whether there has been a misleading promise of reward we look at the totality of the circumstances. The totality is subdivided into two main components, first, the statement of the officer and second, the vulnerability of the defendant. Because these two factors create such a multitude of variable facts, it has been impossible for us to draw bright fines of substantive distinction.

Id. at 267.

In determining the totality of the circumstances, the statements of the officer are first examined. If statements are clearly promises it is not necessary to look farther. Id.

In Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), we determined that a confession is not voluntary if the officer makes statements which are calculated to deceive. We have found no fault with an interrogator trying to persuade an accused to tell the truth or to answer questions, even though there may be misrepresentations of fact made by the interrogator, so long as the means employed are not calculated to procure an untrue statement and the confession is otherwise voluntarily made. Id. A misrepresentation will not invalidate a confession by the defendant as long as it does not constitute an improper influence. Rouw v. State, 265 Ark. 797, 581 S.W.2d 313 (1979).

In Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987), the appellant challenged the voluntariness of his confession. He voluntarily went to the station for questioning in a rape case involving his nephew. Upon his arrival, he was informed of his Miranda rights, and during questioning for approximately one hour, he maintained his innocence. A sergeant then related to Free information which he had learned at a seminar on sexual abuse; he told Free that adult males who have preference for young males are extremely difficult to treat, and the first step is to admit the existence of the problem. He also stated that a court could order counseling and that penitentiaries might have counseling available. It was shortly after this discussion that Free confessed to having had oral sex with the victim on five separate occasions. This court upheld the validity of that confession and noted that the sergeant was trying to persuade Free to tell the truth and that there was no evidence that his statement was meant to mislead Free.

Often it is difficult to determine whether an officer’s statement is a promise of reward or leniency, a statement meant to deceive, or merely an admonishment to tell the truth. In Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979), we allowed a statement by an interrogating officer that, “things would go easier if you told the truth.” However, in Tatum v. State, 266 Ark. 506, 585, S.W.2d 957 (1979), we determined that the statement “I’ll help you any way that I can” was a false promise. On several occasions, we have held statements to be false promises: when the officer claimed he “would do all that he can,” Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1980), and when the officer said, “I’ll help all that I can.” Shelton v. State, 251 Ark. 890, 475 S.W.2d 538 (1972)

The second factor pointed out in Davis v. State, supra, is the vulnerability of the defendant; in instances where it is difficult to ascertain the meaning of a statement, the vulnerability of a particular defendant becomes important.

In the case before us, the record reflects that Pyles became emotional when he was interrogated by Officer Howard. Both Pyles and Officer Howard testified that Pyles held the officer’s hands and wept. Pyles testified that he was emotional and tired from a long interrogation. The statement that Officer Howard made closely resembles those which we held unacceptable in Tatum, Hamm, and Shelton, supra. Therefore, we must conclude that the officer’s action constituted a false promise that resulted in an involuntary confession. We, therefore, reverse on this point. We address only those remaining points that are likely to arise upon retrial.

II. Exclusion of Testimony of Elizabeth Foster

One of Pyles’s defenses was that someone else, namely David Landry, could have committed the murder. Testimony of Elizabeth Foster, a former girlfriend of Landry’s, was proffered. In a suppression hearing before the trial judge, she testified that Landry had a knife similar to the one that was used in the murder, but she could not identify the murder weapon as Landry’s knife. She testified that Landry was a violent person, that he had a drinking problem, and that he had previously threatened her. Also, she testified that he once told her that he would cut someone’s throat if he ever murdered someone. However, she testified that she had never heard Landry make any threats against the victim.

The trial court excluded this testimony, and Pyles challenges that ruling based upon the contention that it is relevant evidence which should have been allowed. In Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993), we addressed the issue of admitting evidence intended to incriminate others of a crime charged against a defendant. We cited language from a North Carolina case and a California case as the rule which was being adopted. Specifically, we examined Killian v. State, 184 Ark. 239, 42 SW.2d 12 (1931), and West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973), where the defendants attempted to introduce testimony that other parties had been responsible for the offense for which they were being tried. In each case, we upheld the trial court’s refusal to allow the testimony because there was no evidence showing the other party was guilty.

In quoting two other jurisdictions, we noted:

The Supreme Court of North Carolina stated: A defendant may introduce evidence tending to show that someone other than the defendant committed the crime charged, but such evidence is inadmissible unless it points directly to the guilt of the third party. Evidence which does no more than create an inference or conjecture as to another’s guilt is inadmissible. State v. Wilson, 367 S.E.2d 589 (N.C. 1988).
The Supreme Court of California has recognized that a defendant has the right to present evidence of third party culpability but stated: [T]he rule does not require that any evidence, however remote, must be admitted to show a third party’s possible culpability . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. People v. Kaurish, 802 P.2d 278 (Cal. 1990).

Following our holding in Zinger, it is evident that any inference that could be gained by allowing Foster’s testimony does not directly prove a link between Landry and the murder. The testimony is speculative and remote. Therefore, we conclude that the trial court did not abuse its discretion in the exclusion of this testimony.

III. Validity of Search

Pyles next contends that evidence related to the film container should have been suppressed because there was an invalid search. Pyles contends that this search was violative of Ark. R. Crim. P. 12.1(a) because there is no reasonable way that an officer could think that he could be endangered by the contents of a film canister. Also, he contends that Rule 12.1(d) was also violated because “the officers did not remember what offenses were charged in the misdemeanor warrants.”

Although decisions by the court of appeals are not controlling upon this court, Pyles challenged this very search in an appeal of his drug possession conviction. Pyles v. State, 55 Ark. App. 201, 935 S.W.2d 570 (1996). The court of appeals held that the search was valid under Rule 12.1.

In Pyles, the court of appeals relied on Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982), stating,

“our Supreme Court held that a search incident to arrest requires no additional justification, finding that a search of containers, whether open or closed, may be conducted pursuant to a lawful arrest. Our Supreme Court has also said that Rule 12.1(d) allows officers to search for evidence of any crime, not just the crime for which an accused is being arrested.

The court of appeals properly applied our holding in Baxter. Accordingly, the trial court properly denied appellant’s motion to suppress.

IV. Scheduling of Trial

Pyles also contends that the trial court erred by requiring that the defense present his case at night without giving the jury a dinner break. Appellant contends that the trial was rushed from its initiation with the hurried selection of jurors, with-the first day of trial continuing until 7:15 pm, and the second day beginning at 9:00 am with the State resting at 3:00 pm. The appellant began its case at 3:15 pm. At 6:39 pm, appellant requested the court to adjourn until the next day; this was denied and the court stated that there would be no adjournment until the defendant rested its case. There was no break the rest of the day except an eight-minute break from 6:27 until 6:35 pm. Appellant contends that he was treated differently than the State. He contends that there was error in the trial court’s continuing the trial well into the evening.

The trial court denied a request by defense attorney to adjourn for the night. The trial court admonished both attorneys saying that they both had “drug the case on and on and gone over stuff that didn’t having any bearing on the case.” The Court went on to say that there had been “more irrelevant testimony in this case than I have ever seen.” Clearly by reprimanding both counsels, the court was not treating one side differently from the other. In fact, after the defense rested, the Court ruled that the State would have to introduce its case in rebuttal before adjourning for the night.

In Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980), we held that “it is the duty of the trial judge to see not only that the trial proceeds in accordance with law but that it proceeds efficiently and effectively and in keeping with the ends of justice. He should be free to shut off long-winded and irrelevant testimony or questioning and to confine counsel to the actual issues in the case.” Also, in Clines, Holmes, Richley, & Ondorff v. State, 280 Ark. 77, 656 S.W.2d 684 (1984), we found no abuse of discretion for a trial court to order a five-day recess as the trial was nearing a close. The Court found that absent proof of “great prejudice” there was no evidence of an abuse of discretion.

It is not necessary for us to rale on this point as the issue will be moot when the case is retried. However, we will note that while a trial court has great discretion in scheduling a trial in a manner to allow all necessary evidence to be presented, we do not find it desirable for a trial court to hurry a trial along. Trial courts should allow both sides ample time to fairly present their sides and allow the jury sufficient time to digest and consider all of the evidence within reasonable time restraints.

All other points raised on appeal are found to be without merit and moot following our decision to remand this case for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Stephen G. SCOLLARD v. Garrett S. SCOLLARD
    96-953
    947 S.W.2d 345
    Supreme Court of Arkansas
    Opinion delivered June 16, 1997

      Edward L. Wright, for appellant.

      Gill Law Firm, by: Joe D. Calhoun, for appellee.
   David Newbern, Justice.

In 1991, Garrett Scollard, the appellant, was negotiating property rights in the course of being divorced from Mary Scollard. He was also fearful that a judgment of a Florida court in favor of his former wife, Jeanette Scollard, would be registered in Arkansas. Admittedly in order to frustrate the collection of any such judgment, Garrett Scollard, on August 31, 1991, conveyed a tract of land to his son, Stephen Scollard, the appellee, allegedly with the understanding that Stephen would reconvey it to Garrett at a later time. In November 1991, Garrett asked Stephen to deed the property to Mary Scollard, Garrett’s estranged wife. Stephen refused to transfer the property and later sold it.

On January 25, 1995, Garrett sued Stephen in a circuit court action alleging constructive fraud. The Trial Court rendered a judgment for Garrett. Stephen has appealed contending that the action was barred by the statute of limitations and the evidence was insufficient to show constructive fraud. We need not address the sufficiency issue as we reverse and dismiss the case because the statute of limitations clearly barred Garrett’s claim. We also decline, due to lack of citation to authority or convincing argument, to address an argument that Stephen waived his statute-of-limitations defense by not asserting it in a timely manner after stating it in his answer to the complaint.

It is undisputed that Garrett and Mary Scollard separated in October 1991, and in November of that year Garrett told Stephen to convey the property to Mary Scollard. Stephen refused. In February 1992, Garrett asked Stephen to return the land to him. Stephen refused.

On February 14, 1992, Garrett sued Stephen in a chancery court action to establish a constructive trust with respect to the land in his favor. On June 9, 1992, Garrett took a voluntary non-suit in that action.

Stephen’s sale of the land occurred in two transactions, one in 1993 and the other in 1994. Garrett brought his circuit court action on January 25, 1995. The complaint alleged that Stephen’s refusal to return the property amounted to constructive fraud and breach of contract. It prayed for damages based on the amount Stephen received for the property. Stephen’s answer asserted the property had been the subject of a gift. He moved to dismiss on the ground that the action was barred by the three-year statute of limitations. See Ark. Code Ann. § 16-56-105.

Garrett, in response to the motion, did not dispute the fact that his action was controlled by the three-year period of limitations. He argued that his cause did not accrue until February 1992, because that was when Stephen refused to return the property to him. Alternatively, he submitted that the statute of limitations was tolled for 116 days because that was the amount of time that his 1992 action was pending in Chancery Court.

The Trial Court dismissed the action on November 30, 1995. The Trial Court granted Garrett’s motion to vacate in an order filed on January 11, 1996. The Trial Court found specifically that Garrett’s cause of action accrued on the last day of November 1991 but was not barred because the pendency of the chancery court action tolled the statute of limitations for 116 days. The Trial Court stated in the order that “the commencement of an action tolls the running of the applicable statute of limitations. The present [breach of contract and constructive fraud] action is essentially the same cause of action as was [the constructive trust suit] filed in 1992.”

Í. Statute of limitations

Assuming constructive fraud occurred, it happened on August 31, 1991, when Stephen allegedly agreed to accept the property on condition that it be returned to Garrett but intended all the while not to return it. While any action Garrett may have had accrued on that date, the running of the statute of limitations would be suspended until the fraud was discovered or should have been discovered through the exercise of reasonable diligence. Chalmers v. Toyota Motor Sales, 326 Ark. 895, 935 S.W.2d 258 (1996); Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996). Thus, the statute of limitations did not began to run until Garrett received notice that Stephen viewed the property as his own. Stephen submits that the statute began to run in November 1991 because that was when he refused to transfer the property to Mary Scollard in response to Garrett’s request. Garrett does not dispute that he made that request, but he contends that the statute did not begin to run until February 1992, when he told Stephen to return the property.

We hold that Stephen’s refusal to dispose of the property as instructed provided notice of Stephen’s claim to Garrett. It was at that time that Garrett discovered, or certainly should have discovered, that Stephen had no intention of recognizing Garrett’s claim to the property. Thus, we agree with the Trial Court that the statute of limitations began to run no later than November 30, 1991. The action was barred after November 30, 1994, unless the running of the statute was tolled.

2. Tolling

Stephen contends that the Trial Court erred by finding that the prior chancery court action tolled the statute of limitations during the 116-day pendency of that action.

Once it has been shown that the statute of limitations period has expired, to avoid dismissal the party resisting the limitations defense has the burden of showing that some of the period is tolled. Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997); Cherepski v. Walker, supra.

Garrett argues that the statute of limitations was tolled by the filing of the earlier action in chancery court. The Trial Court found support for Garrett’s position in two of our cases, Erwin, Inc. v. Arkansas Louisiana Gas Co., 261 Ark. 537, 550 S.W.2d 174 (1977), and Linder v. Howard, 296 Ark. 414, 757 S.W.2d 549 (1988), and in his conclusion that the action filed in circuit court was “essentially” the same as the action filed in chancery court “with the exception of the remedy sought.”

In the Erwin, Inc., case, several parties sued Arkansas Louisiana Gas Company (“ARKLA”) for damages allegedly incurred from a gas explosion. All of the plaintiffs claimed damages in excess of the sums that their insurer, Houston General Insurance Company, had paid them. After the expiration of the limitations period, ARKLA reached an agreement for settlement with each plaintiff, less the amount paid to him or her by the insurance company. With respect to the remainder of each claim, ARKLA asserted that the insurance company was the real party in interest but not a formal party to the litigation, thus those amounts were barred by the statute of limitations. We disagreed on the theory that the insureds were the real parties in interest and the litigation could proceed against ARKLA in their names.

The facts of the Erwin, Inc., case are thus quite different from those at hand. There was no action followed by a dismissal. The claim was continuous and the same from beginning to end. ARKLA had agreed to “split” the claims for settlement purposes, but that had no implication as far as the statute of limitations was concerned.

In the Linder case, the underlying action arose out of an automobile accident occurring on May 17, 1983. Linder was seventeen at the time of the accident and turned eighteen on October 15, 1983. Pursuant to the statutes in effect at the time, Linder had until October 15, 1986, to file an action in connection with her injuries from the automobile accident. Linder’s complaint was filed in chancery court on October 14, 1986. Subsequently, after the limitations period had expired, Linder, acknowledging that the suit was in the wrong court, moved to transfer to circuit court.

The Chancellor transferred the case, but the Circuit Court granted the Howards’ motion for summary judgment on the ground that the action was barred. We reversed, holding that Ark. Code Ann. § 16-57-104(a) (1987) permitted transfer without dismissal of the claim and it was the intent of the General Assembly that a mistake in filing should not require a refiling of the claim. The action, which was filed in a timely manner, was not barred by the statute of limitations upon transfer.

Another case cited by Garrett is Peek v. Pulaski Federal Savings & Loan Assn., 286 Ark. 147, 690 S.W.2d 120 (1985), in which we held that there had been an improper dismissal of a claim pursuant to a local court rule after the statute of limitations had expired. We said the statute of limitations was tolled during the pendency of the suit. There again, there was no lack on continuity.

We fail to see how those cases, or any of the cases cited by Garrett, support the notion that the statute of limitations was tolled in this case. In the Erwin, Linder, and Peek cases, as well as the other cited cases, the transfer, dismissal, or nonsuit occurred outside the time allowed by the relevant limitations statutes. All involved a continuation of the same action. The facts presented by this case are quite different.

Initially, we note that the circuit court action and the previous chancery court action are not the same. The chancery court action alleged the occurrence of fraudulent conduct and requested, by way of remedy, the imposition of a constructive trust, which is a restitutionary remedy designed to disgorge Stephen of his allegedly ill-gotten gain and not to recover damages for Garrett’s alleged loss. The circuit court action sought to impose liability for the tort of constructive fraud and requested damages. The two complaints, though reciting similar facts, stated different causes of action requiring establishment of different elements.

To establish fraud, a plaintiff must show: (1) a false representation of material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; and (5) damage suffered as a result of the reliance. Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993). We have found constructive fraud to exist in cases of rescission of contracts or deeds, and breaches of fiduciary duties, but we have always required that a plaintiff show a material misrepresentation of fact. South County Inc. v. First Western Loan Co., 315 Ark 722, 871 S.W.2d 325 (1994).

On the other hand, a constructive trust is imposed where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. Brasel v. Brasel, 313 Ark. 337, 339, 854 S.W.2d 346, 347 (1993). The duty to convey the property may arise because it was acquired through fraud, duress, undue influence or mistake, breach of a fiduciary duty, or wrongful disposition of another’s property. Betts v. Betts, 326 Ark. 544, 932 S.W.2d 336 (1996). Ordinarily, a constructive trust arises without regard to the intention of the person who transferred the property. Id.

Thus, a constructive trust may be imposed when the elements necessary for constructive fraud are not present. Most important, it is not necessary to show a material misrepresentation of fact to recover under the theory of constructive trust.

Even if we were to conclude that the actions were the same, we are not convinced that the tolling doctrine applies where, as here, the first action was nonsuited within the period of time allowed by the applicable statute of limitations. As Stephen points out, when the chancery court action was nonsuited on June 9, 1992, Garrett had until November 30, 1994, to file his constructive fraud action, a period of almost two and one-half years. Even after Stephen sold the last of the property on April 4, 1994, Garret had well over seven months to file an action in circuit court. Absent some authority or convincing argument that tolling should occur in the circumstances presented, we hold the limitations period ran prior to the filing of the action.

Reversed and dismissed.


author: Tom Glaze, Justice.

text:
    Mrs. Gaines HOUSTON, Trustee, The Pemberton Trust Estate v. William and Mary KNOEDL
    96-1531
    947 S.W.2d 745
    Supreme Court of Arkansas
    Opinion delivered June 16, 1997

      John I. Purtle, P.A. and William & Anderson, by: Leon Holmes, for appellant.

      The Henry Law Firm, P.A.,by: David P. Henry, for appellees.
   Tom Glaze, Justice.

This case involves a dispute over the ownership of a parcel of land located in Lonoke County. In 1938, the property belonged to John Pemberton, who upon his death, devised it to his wife, Mary. In 1946, Mary Pemberton deeded 14.83 acres of the farm land to Ralph and Mildred Pemberton. Later, upon Ralph’s and Mildred’s deaths, the farm acreage became the property of their daughter, Mildred Pemberton Crow. In August of 1993, Mildred conveyed 1.6 acres of the 14.83 acreage to William and Mary Knoedl who planned to build their retirement home on it. It is this conveyance that is the focus of the present litigation.

When the Rnoedls took possession of the 1.6 acre tract of land, John McRae, a beneficiary of a previously established Pemberton Trust, immediately informed Mr. Knoedl that the 1.6 acre tract belonged to the Trust. The Knoedls’ and McRae’s disagreement over the disputed property resulted in the Pemberton Trust filing an ejectment action against the Knoedls in the Pulaski County Circuit Court. That action was dismissed on August 26, 1994, because of improper venue. On November 2, 1994, the Trust filed another ejectment action against the Knoedls, but this time in the Lonoke County Circuit Court. The Trust, however, subsequently voluntarily dismissed their second suit without prejudice.

On December 20, 1995, the Knoedls filed suit in the Lonoke County Circuit Court against the trustees of the Pemberton Trust and John McRae (hereinafter the Trust), alleging slander of title, malicious prosecution, and abuse of process, and requesting compensatory and punitive damages. The Trust answered, denying the Knoedls’ claims, and counterclaimed, again requesting damages and asking that the trial court declare the Trust the owner of the disputed property.

At a jury trial on July 11, 1996, the trial court directed a verdict in the Knoedls’ favor on the Trust’s counterclaim, and allowed the Knoedls’ case to be submitted to the jury. The jury returned a general verdict in the Knoedls’ favor, and awarded them $30,000 in compensatory and $75,000 in punitive damages. After the trial court denied the Trust’s motions for judgment notwithstanding the verdict and new trial, the Trust filed this timely appeal.

The Trust presents six points for reversal, but its first three arguments are not preserved. In each of the three arguments, the Trust urges that the Knoedls’ evidence was insufficient to prove the Knoedls’ allegations of slander of title, malicious prosecution, and abuse of process; consequently, the Trust argues the trial court erred in giving instructions to the jury regarding those causes of action.

First, we note the Trust failed to make a timely objection to the giving of the instructions. In MIC v. Barrett, 313 Ark. 527, 855 S.W.2d 329 (1993), this court held that, in order to be timely, objections to jury instructions must be made either before or at the time the instructions are given. The MIC court held that, even though the parties agreed their objections were originally made at an in-chambers hearing before the jury was charged, there was no record of the hearing. The court concluded as follows:

Since we are not able to ascertain from the record or abstract the specific objections to the remaining instructions made prior to the jury retiring to consider its verdict, these objections will not be addressed.

Like in MIC, the Trust here waited to make its objections and record concerning jury instructions until after the trial court gave the instructions and after counsel rendered closing arguments. Our review of the abstract fails to reveal where any hearing took place where the Trust made specific objections to the instructions prior to the jury retiring to consider a verdict.

In addition, we mention, too, that the Trust failed to preserve its instruction arguments because it did not properly move for a directed verdict at the end of the Knoedls’ case-in-chief and again at the close of all evidence. Such failure constitutes a waiver. See Ark. R. Civ. P. 50(a) and (e). The intent of this rule is to require a party testing the sufficiency of the evidence first to submit the question to the trial court, thereby permitting the court to make a ruling at the conclusion of all the evidence, but prior to the verdict, thus, preserving the specific question for appeal. Willson Safety Products v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990). Preservation of a sufficiency-of-evidence issue for appeal also requires the party moving for directed verdict to state specific grounds upon which it seeks such relief. Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994). Here, the Knoedls offered three separate causes of action against the Trust, and even though the trial court cautioned the Trust to be specific when making its directed-verdict motion, the Trust still failed to specify what evidence might have been omitted or elements not proved in each of the Knoedls’ three counts.

In its fourth argument, the Trust contends the jury’s award of $30,000 in compensatory and $75,000 in punitive damages is excessive and a product of passion and prejudice. This court has stated the standard of review in such matters is that, when an award is alleged to be excessive, this court reviews the proof and all reasonable inferences most favorably to the appellees and determines whether the verdict is so great as to shock the conscience of this court or demonstrate passion or prejudice on the part of the trier of fact. Collins v. Hinton, 327 Ark. 159, 937 S.W.2d 164 (1997). In McLaughlin v. Cox, 324 Ark. 361, 922 S.W.2d 327 (1996), this court found that an award of $18,000 in compensatory damages was not excessive where there was evidence of out-of-pocket expenses totalling $13,500. In affirming the award, the Cox court noted there was evidence of mental anguish, and the amount of damages growing out of mental anguish is ordinarily left to the determination of the jury.

Here, the Knoedls’ evidence supported out-of-pocket expenses totalling $13,720. The Knoedls also presented evidence that, while they were forced to litigate this matter, they suffered stress, stomach problems, marital differences, and sought medical attention and the need of prescription drugs. They further pointed out to the jury, without objection, that the Trust representatives, including John McRae, knew full well that Mildred Crow had deeded the property to the Knoedls, the Trust had no interest in that disputed 1.6 acre tract, and dismissal of all three of their ejectment suits reflected as much. Again, without objection, the Knoedls submitted to the jury that the Trust’s actions were malicious and were intended to interfere with the Knoedls’ peaceful enjoyment of their property. Significantly, the Trust never attempted to disprove the damages presented by the Knoedls. Based upon these damages submitted by the Knoedls, we cannot say the amount awarded by the jury was excessive.

We need mention that the Trust now complains that the trial court gave no instructions on punitive damages. Nonetheless, the Knoedls properly requested and argued in closing arguments that punitive damages be awarded. The Trust never objected to that argument below, nor objected to the failure to give an instruction on the subject. While the Trust was permitted to argue the excessive award of damages issue, which was preserved by a new-trial motion below, it is barred from arguing a new ground for the first time on appeal for challenging the punitive-damage award. See Whitney v. Holland Retirement Center, Inc., 323 Ark. 16, 912 S.W.2d 427 (1996).

In its fifth argument, the Trust submits the trial court erred in allowing a 1978 survey prepared by Forest Marlar to be introduced into evidence. While the Trust raises several grounds on appeal to support its argument, we limit our inquiry to the ones offered and preserved at trial — that the Knoedls failed to establish an adequate foundation for the survey’s introduction, and the Marlar survey had never been recorded. Whitney, 323 Ark. 16, 912 S.W.2d 427.

Marlar, a registered civil engineer, testified that he physically conducted a survey of the subject property in 1978 and determined its boundaries. He stated he had not recorded the survey because that was not the practice at the time. Having been qualified and shown previously to have established the boundaries of the property now claimed by the Trust, Marlor’s testimony was relevant and probative in establishing the description of Mildred Crow’s deed of the subject property to the Knoedls.

Continuing its fifth point, the Trust also suggests that the trial court erred in excluding deeds of surveyed property that the Trust argued surrounded the Knoedls’ tract and showed that Marlar’s surveyed, boundary lines did not match. The trial court excluded the proffered deeds because the Trust offered no one to establish the deeds’ boundaries or descriptions or to show how such evidence disproved the legal description in the Knoedls’ deed. The trial court believed the deeds of neighboring property would be confusing to the jury, since no witness was offered to plat or explain those deeds’ relevance. We are unable to conclude the trial court abused its discretion in so ruling.

Finally, the Trust claimed the trial court erred (1) in excluding the testimony of Denzel Roland and (2) in directing a verdict on the Trust’s ejectment claim. Roland worked for the Pulaski County Assessor’s Office in mapping property ownership for taxation purposes. The Trust urged that Roland’s testimony together with a computerized map Roland produced based on the deeds of adjoining property owners would show that Mildred Crow had previously conveyed the land the Knoedls now claim. The Trust contends on appeal that, by excluding Roland’s testimony, it was denied an opportunity to defend the integrity of its property, support its ejectment claim, and defend against the Knoedls’ slander-of-tide claim.

The trial court denied admission of Roland’s testimony, noting that Marlar had previously testified as to the location of the Knoedls’ property using their deed and existing boundary markers. The trial court also noted that Roland did not know where the boundary markers were located, and he did not know whether the deeds he used were accurate. The admission and exclusion of expert testimony is a matter which lies within the sound discretion of the trial court. Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982). Based on the foregoing, we cannot say the trial court abused its discretion in excluding Roland’s testimony.

For the foregoing reasons, we affirm.


text:
    Doyle MASSONGILL v. COUNTY of SCOTT, Arkansas, Booster Flawkins, In His Capacity as Scott County Judge, the Scott County Quorum Court, and Jimmy Allen Storms, Billy Wayne Wagner, Tom Garrison, Randy Godfrey, Lloyd Hattabaugh, Joyce Holleman, Terry McMellon, Johnny Faye Owens, and Dwayne Wadkins, Individually and in Their Official Capacities As Members of the Scott County Quorum Court
    96-992
    947 S.W.2d 749
    Supreme Court of Arkansas
    Opinion delivered June 16, 1997
    [Petition for rehearing denied September 11, 1997.]

      Oscar Stilley, for appellant.

      Duncan & Rainwater, P.A., by: Neil Chamberlin, for appellees.
   Tom Glaze, Justice.

Appellant Doyle Massongill filed this illegal-taxation class-action suit against appellants Scott County Judge and the Scott County Quorum Court members (hereinafter the County), challenging the validity of two ordinances, 92-3 and 95-3, as amended by 96-3 (hereinafter 96-3). Ordinance 92-3 was enacted on January 13, 1992, and it provided for a solid-waste management program for the County and established a solid-waste collection and disposal fee for households and businesses located in the County. Ordinance 96-3 was enacted on January 3, 1996, and it provided Quorum Court members with health insurance benefits with the expressed purpose to compensate them for rendering judicial duties, such as performing marriages. Massongill filed a motion for summary judgment, and the County responded by filing its motion for partial summary judgment. The chancellor granted the County’s motion, finding both ordinances valid, but concluded 92-3 had gone into effect too soon because its emergency clause was invalid. Massongill appealed.

Because the trial court’s order appealed from was not final regarding Ordinance 92-3, this court granted the County’s motion to dismiss Massongill’s appeal. Afterwards, the parties appeared again before the chancellor, and upon stipulations entered into between the parties, the court entered a final order awarding a partial refund of fees illegally imposed by the County during the emergency period in which Ordinance 92-3 was unlawfully in effect. Massongill appeals now from the trial court’s final order which upholds the validity of the text of both ordinances.

Massongill first questions Ordinance 92-3’s validity contending it is an appropriation measure as defined under Ark. Code Ann. § 14-14-907(a)(1987), and as such, went into effect immediately upon passage by the quorum court and approval of the county judge. Massongill’s argument continues that, because Ark. Code Ann. § 14-14-908(b) provides that an emergency ordinance cannot levy taxes, impose special property tax assessments, or impose a service rate, 92-3, as an appropriation measure which imposes a tax or service fee, must be declared illegal.

Massongill simply misreads § 14-14-907, which in pertinent part provides as follows:

(a)(1) Generally. An appropriation ordinance or amendment to an appropriation ordinance is defined as a measure by which the county quomm court designates a particular fund or sets apart a specific portion of county revenue in the treasury, to be applied to some general object or expenditure or to some individual purchase or expense of the county.
(3) Appropriation measures enacted by a quorum court shall include the following categories of financial management:
(A) The levy of taxes and special property tax assessments as provided by law.
(B) The enactment of specific appropriations by which a specified sum has been set apart in the treasury and devoted to the payment of a particular demand. Specific appropriations may be enacted through the adoption of an annual budget, a statement of estimated receipts and expenditures, in a manner prescribed by law.
* * *
(c) All appropriation ordinances or an amendment to an appropriation ordinance shall be designated “appropriation ordinance.” (Emphasis added.)

As defined in provision (a)(1) above, an appropriation measure in no way enacts a tax or imposes a fee; rather, it merely designates a particular fund or sets apart a specific portion of county revenue to some expenditure or purchase by the County. As is further made clear by § 14-14-907(a)(3)(A), an appropriation measure sets apart its levy of taxes and county revenues as provided by law. Ordinance 92-3’s objective was not to set aside (or appropriate) county revenues for solid-waste-collection purposes; rather, it was enacted to achieve the two following goals: (1) the County would have its own solid waste collection service, and (2) would charge each household in the county a five-dollar fee for that service. Appropriately, 92-3 was not labeled or designated an appropriation measure because it was not one. § 14-14-907(c) supra.

Neither (as contended by Massongill) was the text of Ordinance 92-3, as a whole, invalid because its emergency clause was invalid. Although the County was prohibited under § 14-14-908(b) from imposing a tax or service fee by emergency ordinance, the County’s error in adding an emergency clause to 92-3’s enactment did not sound the ordinance’s death knell. As the County points out, this court has consistently held that the failure of an emergency clause does not render the entire act (or in this case an ordinance) inoperative. See Foster v. Graves, 168 Ark. 1033, 275 S.W.2d 653 (1925). In Beaumont v. Faubus, 239 Ark. 801, 394 S.W.2d 478 (1965), this court stated that, in the situation of an invalid emergency clause, an act takes effect when it would have become effective without the clause. Here, Ark. Code Ann. § 14-14-905(e) provides a nonemergency ordinance becomes effective thirty calendar days after the ordinance’s publication; therefore Ordinance 92-3 went into effect when that calendar period expired. As discussed earlier, in holding 92-3’s emergency clause invalid, the chancellor properly refunded fees the county unlawfully charged residents during that illegal period.

Massongill further challenges 92-3’s validity by arguing it created a monopoly in violation of Article 2, § 19, of the Arkansas Constitution. His argument is without merit. Massongill says that he can find no statute that gives the County the right to monopolize trash collection, and it is the County’s duty to bring such authority to the court’s attention. Of course, Massongill is wrong in attempting to place the burden on the County in this respect, because it is his burden, as appellant, to show error by citation of authority and convincing argument that the trial court erred.

Even so, Massongill’s Article 2, § 19, argument still must fail. He does not attack the constitutionality of Ark. Code Ann. §§ 14-14-801(a) and (b) and -802(b)(1) and (2)(F)(ii), which respectively provide in pertinent part that quorum courts may levy taxes and appropriate public funds for expenses as prescribed by law, and they may by ordinance provide services to their citizens, including solid-waste collection and disposal services. See also § 8-6-212 (Supp. 1995). This statutory authority alone is sufficient to affirm the trial court’s holding on this point, since Massongill does not suggest §§ 14-14-801 and -802 violate Article 2, § 19 of the Arkansas Constitution.

However, other reasons unravel Massongill’s monopoly theory, as well. For example, in reading statutory provisions §§ 14-14-801 and -802 and Ordinance 92-3, we fail to find any language that grants the County a monopoly. Neither do we find any legal authority, and Massongill cites to none on point, that prevents a county from having the exclusive right to collect solid waste. The chancellor here held that Article 2, § 19, does not apply to a governing body, and in support of that holding, the County cites No. Little Rock Transportation, Inc. v. The City of North Little Rock, 207 Ark. 976, 184 S.W.2d 52 (1944), where this court declared an act unconstitutional because it granted an exclusive franchise or monopoly to a private cab company. Discussing this constitutional provision’s history, this court, quoting from Ex parte Levy, 43 Ark. 42, said the following:

The monopolies which in England became so odious as to excite general opposition, and infuse a detestation which has been transmitted to the free States of America, were in the nature of exclusive privileges of trade, granted to favorites or purchasers from the crown, for the enrichment of individuals at the cost of the public. They were supported by no consideration of public good. (Emphasis added.)

The County further relies on Smith v. City of Springdale, 291 Ark. 63, 722 S.W.2d 569 (1987). There, the court, citing Dreyfus v. Boone, 88 Ark. 353, 114 S.W.2d 718 (1908), stated that monopolies are upheld when deemed necessary in executing a duty incumbent on city authorities or the legislature for the preservation of public health. See also Geurin v. City of Little Rock, 203 Ark. 103, 155 S.W.2d 719 (1941), and cf. L & H Sanitation v. Lake City Sanitation, 769 F.2d 517 (8th Cir. 1985). In sum, based on the arguments presented, we conclude Massongill’s monopoly theory must fail.

Lastly, Massongill submits 92-3 must be stricken because the County violated Arkansas’s competitive bidding laws, particularly Ark. Code Ann. § 14-22-111 (1987). He states that the County rejected the low bid for solid-waste disposal submitted by a private company, and then improperly established its own service at a higher cost. In considering this argument, it is sufficient to say that § 14-22-111 did not require the County to accept the low bid; instead, it allows “contracts shall be awarded to the lowest responsible bidder” and permits that “any bid may be rejected.” See § 14-22-lll(a) and (b)(1). While perhaps unnecessary, the County justifies its actions at the bidding stage by explaining that eight bids had been taken and those bids averaged $157,802.31. The County explains its action was reasonable not only because the law authorized its rejection of all bids, but also because the county had subsequently provided trash-collection services at the competitive cost of $169,000.00. Also as a consideration for rejecting the earlier bids, the County pointed out that the low bid was $47,000.00 less than the second lowest bid and, as such, appeared questionable and inadequate. In conclusion, because we hold the County did not violate the state’s competitive bidding laws, nor the other statutory and constitutional provisions argued by Massongill hereinabove, we affirm the trial court’s decision upholding 92-3’s validity.

We next turn to Massongill’s challenge of county ordinance 96-3, which we find has merit. He premises his argument on Ark. Code Ann. § 14-14-1205(c) (Supp. 1995), and urges that the County Quorum Court’s payment of health insurance benefits on behalf of its members amounts to illegal compensation. Section 1205(c) provides as follows:

(c) JUSTICE OF THE PEACE AS COUNTY EMPLOYEE OR DEPUTY. No justice of the peace shall receive compensation as a county employee or deputy, nor shall any justice receive compensation or expenses from funds appropriated by the quorum court for any services performed within the county, other than as provided by this subchapter. (Emphasis added.)

The chancellor held § 14-14-1205(c) is inapplicable because the health insurance benefits involved here cannot be denoted compensation as that term is employed in § 14-14-1205. Furthermore, he expressed that he could find no legislation concerning the authorization of “fringe benefits” or prohibition of same to court members, and as a consequence, he believed such insurance coverage could be awarded members under the County’s broad authority under § 1 of Amendment 55 to the Arkansas Constitution. That constitutional provision provides that a quorum court is authorized by the Arkansas Constitution to “exercise local legislative authority not denied by the Constitution or by law.” Because the chancellor found no law against quorum court members having their insurance benefits paid by the County, he determined the County’s Ordinance 96-3 providing such benefits to be valid. Specifically, the chanceEor held that such benefits may be given due solely to their “status” as quorum court members. We must disagree with the chancellor’s reading of § 14-14-1205.

We again emphasize provision (c) of § 14-14-1205, which very clearly precludes quorum court members from receiving compensation or expenses from funds appropriated by the quorum court for any services performed within the County, other than as provided by this subchapter. (Emphasis supplied.) This sub-chapter dealing with personnel procedures specifically restricts or limits compensation and expenses to be provided quorum court members to that which is provided in § 14-14-1205 and other statutes in subchapter 12. Clearly, health insurance coverage is a County expense under 96-3, and cannot be made otherwise merely by labeling such coverage a “fringe benefit.’’ Accordingly, Ordinance 96-3 and ones like it run contrary to Arkansas’s applicable constitutional and statutory laws that specify and restrict the compensation and expenses that quorum court members and other county officials are entitled to receive. Because we conclude Ordinance 96-3 is illegal as being contrary to § 14-14-1205(c) and to the meaning of § 1 of Amendment 55, we reverse and remand this cause with directions to enjoin the Scott County Quorum Court from paying health insurance benefits in their behalf and order such payments to be repaid. Because the chancellor upheld 96-3, the parties were precluded from addressing any refund payments, we remand with directions that they be allowed to do so in a manner consistent with this opinion. Cf. Tedford v. Mears, 258 Ark. 450, 526 S.W.2d 1 (1975).

We affirm the trial court’s decision upholding the validity of Ordinance 92.3 and reverse its holding concerning Ordinance 96.3 as discussed immediately above.

       We note that both parties argue the other has failed to preserve specific points related to the appropriation-measure argument initially raised by Massongill below, but our review of the abstract reflects all matters now argued were sufficiently addressed at trial and may be considered and decided by us on appeal.

       § 19. Perpetuities and monopolies. Perpetuities and monopolies are contrary to the genius of a republic, and shall not be allowed; nor shall any hereditary emoluments, privileges or honors ever be granted or conferred in this State.

       The Smith decision involved an ordinance granting a waste collection and disposal franchise to a private company. Although the Smith court found a city is authorized to enter into exclusive contracts for sanitation services, it reversed because there had never been competitive bidding as required by law.

       This cost was only $12,000.00 more than the average $157,802.00 amount of the eight bids earlier submitted.


author: Robert L. Brown, Justice. Tom Glaze, Justice, David Newbern, Justice,

text:
    Arvie WILES, Individually and as Administrator of the Estates of B.L. Wiles and Juanita Wiles, Deceased, and Allen Wiles, Individually and as Father and Next Friend of Kayla Joy Wiles, a Minor, and William Wiles v. Eddie Earl WEBB
    96-864
    946 SW.2d 685
    Supreme Court of Arkansas
    Opinion delivered June 16, 1997
    [Petition for rehearing denied September 11, 1997.]

      Gary Eubanks and Associates, by: James Gerard Schulze and William Gary Holt, for appellants.

      Wright, Lindsey & Jennings, by: Troy A. Price, for appellee.
   Robert L. Brown, Justice.

This case involves litigation for wrongful death and personal injury arising out of a vehicular accident. Verdict was rendered in favor of the appellee, Eddie Earl Webb. The appellants raise three points for reversal: (1) the trial court erred in refusing to allow evidence of Webb’s liability coverage; (2) the trial court erred in denying a motion to declare a mistrial following violation of two orders in limine; and (3) the trial court erred in giving the Sudden Emergency instruction to the jury. We agree with the appellants on the third point, and reverse and remand to the trial court for further proceedings. We further take this opportunity to hold that AMI 614 — the Sudden Emergency instruction — is inherently confusing, and for that reason we abolish its usage in all future cases.

Appellant Arvie Wiles is the administrator of the estates of his deceased parents, B.L. Wiles and Juanita Wiles, who suffered fatal injuries when the 1983 Chevrolet Caprice station wagon driven by B.L. Wiles was struck by a 1982 International logging truck driven by appellee Eddie Earl Webb on State Highway 298 in Garland County. Appellant Allen Wiles is the son of B.L. and Juanita Wiles and the father of Kayla Joy Wiles, a minor who was a passenger in the station wagon and who suffered serious injury. Appellant William Wiles, the son of B.L. and Juanita Wiles, was also a passenger in the station wagon who suffered physical injury. The appellants will be collectively referred to in this opinion as the “Wileses.”

The accident occurred on May 18, 1994. Following the accident, the Wileses filed their complaint against Webb and alleged that B.L. Wiles attempted to make a left-hand turn from Tabor Mountain CutoffRoad onto State Highway 298 in order to proceed in an easterly direction. They alleged that Webb, who was proceeding westbound on State Highway 298, crossed the center line and struck B.L. Wiles’s station wagon broadside while it was in the eastbound lane of traffic. The Wileses further claimed that Webb’s conduct was negligent for the following reasons: (1) Webb failed to keep a proper lookout; (2) he failed to keep his vehicle under proper control; (3) he drove at a speed greater than was reasonable and prudent under the circumstances; (4) he crossed the center line and otherwise violated the laws of the State of Arkansas; and (5) he otherwise failed to exercise ordinary care under the circumstances.

Webb answered and counterclaimed, asserting the negligence of B.L. Wiles and theories of apportionment and contribution. The counterclaim was later dismissed.

At trial, the Wileses relied exclusively on physical evidence to make their case. B.L. and Juanita Wiles, who died in the accident, were ages 74 and 64, respectively, at the time of the accident. Kayla Joy Wiles, age 2 at the time of the accident, had no memory of the event. William Wiles, who was 37 years old at the time of the collision, is mentally retarded and has had only a first-grade education. He also had no recollection of how the accident occurred.

A pivotal witness at the trial was Arkansas State Trooper B.R. Skipper, who testified by way of videotape deposition. He testified that the Wiles/Webb accident occurred at approximately 10:45 a.m. and that there were no adverse weather conditions; the pavement was dry; and there was nothing to obscure Webb’s vision. He testified that the initial impact of the vehicles occurred between the center of the truck’s front bumper and an area at or near the left front wheel of the station wagon. As a result of the impact, the station wagon was spun in a clockwise direction and travelled approximately 70 feet west, where it came to rest in a ditch south of the highway. The force of the collision caused Webb’s logging truck to spin one-quarter turn counter-clockwise and travel approximately 25 feet west of the point of impact.

On cross-examination by Webb’s counsel, Trooper Skipper testified that the intersection in question had a stop sign on Tabor Mountain Cutoff Road. He opined that Wiles’s vehicle had entered the intersection to make a left-hand turn onto Highway 298, heading east. Looking at photographs of the accident site, Trooper Skipper referred to the presence of skid marks left by Webb’s logging truck in the westbound lane that proceeded into the eastbound lane. He testified that the skid marks made by Webb’s truck reflected signs of discontinuity or interruption, when the truck changed direction. He stated that the change of direction occurred at the point of initial impact between the two vehicles.

Trooper Skipper further testified that the accident involved was an “angular” collision, which was not quite 90 degrees. He reached this conclusion based on the points of impact on the two vehicles and the belief that B.L. Wiles was turning to his left to head east on State Highway 298. Trooper Skipper also added that Wiles’s vehicle was approximately 18 feet in length. He stated that the speed limit at the place of the accident was 55 miles per hour and that the average reaction time for a driver was 1.5 seconds. He defined “reaction time” as “the time it takes for a person to see an object and then make an evasive move away from that object.” He testified that, based on the physical evidence, he did not find any indication that Webb was driving at a speed in excess of 55 miles per hour. He also testified that Webb left 85 feet of skid marks and opined that, if Webb was travelling at a speed of 45 miles per hour, then his vehicle left skid marks for slightly less than 1.3 seconds before impact with Wiles’s station wagon.

On re-direct examination, Trooper Skipper agreed that B.L. Wiles had a substantial portion of the station wagon in the eastbound lane at the time of the collision. On re-cross examination, he testified that with the length of the station wagon being 18 feet and the total width of the road being 20 feet, he opined that the station wagon partially blocked both lanes of traffic at the time of initial contact.

On re-direct examination, Trooper Skipper then testified that the condition of both vehicles upon collision, especially the damage to the station wagon, would damage the surface of the pavement. However, he admitted that the markings indicating damage to the highway’s surface were found in the eastbound lane. On re-cross examination, Trooper Skipper testified that such markings might not necessarily appear in the westbound lane (Webb’s lane) because on maximum impact, the striking of the station wagon by Webb’s logging truck could cause a downward force that would cause the back end of the truck to rise.

The Wileses also introduced the testimony of three witnesses (Norman Wiles, Chester Wiles, and Arvie Wiles) that skid marks apparently created by Webb’s logging truck began in the westbound lane and proceeded into the eastbound lane.

Webb testified in his own defense. He stated that as he reached the peak of a grade in State Highway 298, he could see the station wagon approaching the stop sign on Tabor Mountain Cutoff Road. He testified that he released the accelerator and stayed in the westbound lane until the station wagon pulled out in front of him. He added that he was not certain whether the station wagon ever came to a complete stop at the stop sign, but he was certain that the station wagon pulled out in front of him. Once the station wagon pulled out into the westbound lane, Webb testified that he applied his brakes as soon as he could and veered to the left in an attempt to steer clear of the vehicle. He testified that his truck skidded and that he struck the station wagon in the middle of the highway. He explained that he did not have time to consider whether to veer left or right and stated that he was not certain what the driver of the station wagon was going to do once he pulled out into his lane. He testified that at the time he came over the grade in the highway, he was travelling at 40 or 45 miles per hour. He testified that, following the accident, he received a phone call from appellant Arvie Wiles, who purportedly told him: “Don’t be hard on yourself. There wasn’t anything you could do and the family doesn’t blame you.”

On cross-examination, appellants’ counsel asked Webb whether he knew if Arvie Wiles had any knowledge of the physical evidence at the scene when the statement was made, to which Webb responded that he did not. Webb testified that at the time he veered to the left, the station wagon had been proceeding across his lane at a constant speed.

The defense also presented evidence that B.L. Wiles was driving without required corrective eyeglasses. There was also the testimony of Ruth Meredith, a purported eyewitness, that Wiles’s station wagon was stopped in Webb’s lane. On cross-examination, her testimony was shown to be at odds with her deposition testimony on several critical points.

The jury answered interrogatories to the effect that Webb was not guilty of negligence and that the negligence of B.L. Wiles was the proximate cause of the accident. Judgment in favor of Webb was entered later. A motion for a new trial was made, raising the same three points raised in this appeal. It was denied.

The Wileses contend that the trial court erred in giving the Sudden Emergency instruction — AMI 614 — under the facts of this case. We agree. AMI 614 reads:

A person who is suddenly and unexpectedly confronted with danger to himself or others not caused by his own negligence is not required to use the same judgment that is required of him in calmer and more deliberate moments. He is required to use only the care that a reasonably careful person would use in the same situation.

AMI Civ. 3rd 614. At trial, the Wileses objected to this instruction on the ground that there was evidence of negligence on the part of Webb.

Our most recent case discussing AMI 614 is Frisby v. Agerton Logging, Inc., 323 Ark. 508, 915 S.W.2d 718 (1996). In Frisby, this court found error in using AMI 614 to instruct the jury-in connection with a collision between the appellant’s Toyota automobile and the appellee’s logging truck. Each party claimed that the other was negligent. The jury returned verdicts in favor of the appellee both on the appellant’s claim for damages and on the appellee’s claim for damages. This court determined that error occurred because the appellant had testified that the appellee’s logging truck was driving in his lane at the time of the collision and that this constituted negligence on the part of the appellee. We then stated:

In order to justify the use of the sudden-emergency instruction, the evidence must show that the driver was in a stressful situation which required a quick decision on the possible courses of conduct. That person must have been aware of the danger, perceived the emergency, and acted in accordance with the stress caused by the danger. Diemer v. Dischler, 313 Ark. 154, 158-59, 852 S.W.2d 793, 795-796 (1993). When there is any evidence of neghgence on the part of the party seeking to invoke the instruction, AMI 614 is inapplicable. Druckenmiller v. Cluff, 316 Ark. 517, 873 S.W.2d 526 (1994). Stated another way, when an emergency arises wholly or partially from the negligence of the person who seeks to invoke the sudden-emergency doctrine, AMI 614 has no application and should not be delivered to the jury. Id.; Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d,788 (1995) (instruction proper where third-party driver encountered collision caused by others and did not in any way create the emergency himself).

Frisby v. Agerton Logging, Inc., 323 Ark. at 513, 915 S.W.2d at 721 (emphasis added).

Thus, the law on this point is clear: the trial court erred in giving the Sudden Emergency instruction only if Webb’s conduct was in any wise responsible for creating the emergency situation. Webb contends that the emergency situation was created when the station wagon pulled out from the stop sign on Tabor Mountain Cutoff Road and that his veering to the left was an instant response to the stress of the emergency. The Wileses’ case, on the other hand, was based on physical evidence, since the two survivors of the crash could not remember what happened, and both suffered from disabilities due to age and mental retardation. The essence of the Wileses’ case was that Webb was inadvertent in his driving, and upon recognizing B.L. Wiles’s station wagon crossing the highway, Webb hit his brakes and either veered to the left into Wiles’s lane or lost control of the logging truck. Had Webb had the truck under control, say the Wileses, he could have veered to the right where there was ample space at the Tabor Mountain Cutoff Road intersection to avoid the station wagon and, thus, the accident.

The physical evidence appears reasonably clear. Webb’s truck crossed the center line, and the point of impact occurred in Wiles’s eastbound lane. Testimony by Webb estimated the point of impact as being potentially as far over as five feet into the eastbound lane. The logging truck’s skid marks were 85 feet.

The issue from the Wileses’ perspective boils down to whether Webb was inadvertent or, in legal parlance, failed to keep a proper lookout and, as a result, lost control of his vehicle. The physical evidence suggests this might have happened, though Webb’s own testimony belies this. This, however, was the issue for the jury to decide, and the issue necessarily embraces an analysis of comparative fault. Indeed, the jury was instructed on ordinary care:

A failure to exercise ordinary care is negligence. When I use the words “ordinary care,” I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence in this case. It is for you to decide how a reasonably careful person would act under those circumstances.

AMI Civ. 3rd 303..

In order for the Sudden Emergency instruction to be given, the trial court must first find: (1) that a sudden emergency was created, and (2) that the defendant had no part in its creation. Then by giving the instruction, the trial court informs the jury that due to an emergent circumstance, the defendant is not as responsible for what occurred as he might otherwise have been. In a comparative-fault case like the one at hand, we believe that the instruction is tantamount to instructing the jury that Webb’s responsibility for what occurred is all but nullified by the trial court’s finding that a sudden emergency was caused solely by the negligence of Wiles. At worst, what occurs is that the trial court all but decides the ultimate issue by instructing the jury on sudden emergency. At best, the instruction confuses matters and skews the analysis in favor of the defendant. The result is that a defendant who did not in any way create the initial emergency circumstance but who is woefully negligent in other respects falls heir to a reduced standard of care.

We conclude that the physical evidence presents some evidence of negligence on Webb’s part, and we hold that it was error to give the Sudden Emergency instruction in the present case. In doing so, we adopt the position of the concurring opinions in Frisby v. Agerton Logging, Inc., 323 Ark. 508, 915 S.W.2d 718 (1996) (Glaze, J., concurring) and Druckenmiller v. Cluff, 316 Ark. 517, 873 S.W.2d 526 (1994) (Glaze, J., concurring). On the issue of confusion generated by AMI 614, Prosser and Keeton on the Law of Torts has this to say:

Despite the basic logic and simplicity of the sudden emergency doctrine, it is all too frequently misapplied on the facts or misstated injury instructions. As a result, the model jury instructions in at least Illinois, Florida, Kansas and Missouri recommend that no such instruction be given, and Mississippi abolished the doctrine altogether in 1980.

W. Page Keeton, et al., Prosser, and Keeton on the Law of Torts § 33, at 197 (5th ed. 1984) (citations omitted). Moreover, we are now of the opinion that the Supreme Court of Hawaii was correct when it stated that the risk of prejudice in instructing the jury on the Sudden Emergency instruction far exceeds the possibility of error in not doing so. See DiCenzo v. Izana, 723 P.2d 171 (Hawaii 1986).

We are mindful of the fact that other jurisdictions are divided on this issue. Some jurisdictions have abolished the instruction or severely limited it. See, e.g., DiCenzo v. Izana, supra; Bass v. Williams, 839 S.W.2d 559 (Ky. App. 1992); Knapp v. Stanford, 392 So.2d 196 (Miss. 1980); Cowell v. Thompson, 713 S.W.2d 52 (Mo. App. 1986); Simonson v. White, 713 P.2d 983 (Mont. 1986); Kozeny v. Miller, 499 N.W.2d 75 (Neb. 1993); Paiva v. Pfeiffer, 551 A.2d 201 (N.J. Super. A.D. 1988). Others have decided to retain it. See, e.g., Young v. Clark, 814 P.2d 364 (Colo. 1991); Weiss v. Bal, 501 N.W.2d 478 (Iowa 1993); Ebach v. Ralston, 510 N.W.2d 604 (N.D. 1994); Lockhart v. List, 665 A.2d 1176 (Pa. 1995); Thomas v. Oldham, 895 S.W.2d 352 (Tex. 1995).

Nevertheless, we are convinced that the better course is to abolish the Sudden Emergency instruction for all future use, and we overrule prior authority to the contrary. Because we do not believe that the issues relating to liability coverage and the orders in limine will reoccur in a new trial, we need not address them.

Reversed and remanded.

Arnold, C.J., Newbern and Corbin, JJ., dissent.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I concur to say the majority opinion is exactly correct in abolishing the AMI 614 Sudden Emergency instruction. The trial judge in the present case said it best as follows:

The 614 problem is going to give the courts in this state a problem until someone of higher power makes up its mind that it is going to get rid of the instruction. Otherwise, the trial courts are in a dilemma.

That so-called “higher power” is this court, since it is this court that adopted AMI 614. Only recently our court recognized again the confusion AMI 614 had caused in Frisby v. Agerton Logging, Inc., 323 Ark. 508, 915 S.W.2d 718 (1996), where we stated, “Hence, the instruction (AMI 614) should not have been given. It added nothing to the comparative fault analysis and only injected confusion into complex proceedings.”

Such confusion over AMI 614 has flourished, rendering at least eight cases (including the present one) before this court in the ’90s alone. Frisby v. Agerton Logging, Inc., 323 Ark. 508, 915 s.W.2d 708 (1996); Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995); Druckenmiller v. Cluff, 316 Ark. 517, 873 S.W.2d 526 (1994); Diemer v. Dischler, 313 Ark. 154, 852 S.W.2d 793 (1993); Smith v. Stevens, 313 Ark. 534, 855 S.W.2d 323 (1993); Berry v. Chapple, 309 Ark. 612, 832 S.W.2d 256 (1992); Scoggins v. Southern Farmers’ Ass’n, 304 Ark. 426, 803 S.W.2d 515 (1991). Courts and attorneys alike have been befuddled on its usage (or nonusage), and jurors can only be elated to be rid of such prattle being introduced into a serious negligence case. Other negligence and comparative-fault instructions left after 614’s removal will be more than adequate to guide jurors through their deliberations.

David Newbern, Justice,

dissenting. As the majority opinion demonstrates, some state courts have, in the last decade, considered whether the sudden emergency doctrine remains useful and appropriate in the context of comparative negligence. Some have said it does, and some have said it does not.

The argument against the doctrine, and thus against AMI 614 which embodies it, is that it either conflicts with or is made unnecessary by the theory of comparative negligence.

There is no conflict. Both the standard negligence instruction, AMI 301, and AMI 614 focus on requiring conduct such as that which would be exercised by a reasonably prudent person under the same circumstances or situation. The question becomes, then, whether AMI 614 is mere surplusage. It is not, and the case now before us demonstrates the reason for that conclusion.

For the sudden emergency instruction to have had any effect in this case, the jury must first have decided that Mr. Webb was “suddenly and unexpectedly confronted with danger to himself or others not caused by his own negligence.” A major flaw in the majority opinion is found in the remark that “. . .we believe that the instruction is tantamount to instructing the jury that Webb’s responsibility for what occurred is all but nullified by the trial court’s finding that a sudden emergency was caused solely by the negligence of Wiles.” The first question presented by the instruction is whether Mr. Webb created the emergency to any degree. It has nothing to do with deciding negligence on the part of Mr. Wiles — a matter not at issue.

Assuming the jury decided that Mr. Webb was not at fault in creating the emergency situation, its next task was to decide whether he used the same “care that a reasonably careful person would use in the same situation.” The majority opinion states that the instruction “skews the analysis in favor of the defendant.” That cannot be so, for virtually the same language as appears in AMI 301 governs the determination whether the defendant acted reasonably when confronted with the sudden emergency. Nor does the instruction excuse a defendant who has not created the emergency but who, in the words of the majority opinion, is “woefully negligent in other respects.” To suggest that the instruction prompts condonation of such conduct underestimates jurors’ intelligence.

The leading case among those decided by the jurisdictions which have considered and rejected the idea that the sudden emergency doctrine should be done away with is Young v. Clark, 814 P.2d 364 (Colo. 1991). Quoting an earlier Colorado case, the Colorado Supreme Court viewed the doctrine as an “evidentiary guideline by which a trier of fact may properly apply the prudent [person] rule in evaluating the evidence of negligence being considered.” Responding to criticisms such as those leveled by the majority in the case now before us, the Colorado Court said:

Such reasoning, in our view, is based on unfounded assumptions about how jurors perceive an instruction explaining the relatively simplistic sudden emergency doctrine. The pattern instruction used by Colorado courts... is a clear statement of the doctrine and obligates the finder of fact to do nothing more than apply the objective “reasonable person” standard to an actor in the specific context of an emergency situation. It thus does not operate to excuse fault but merely serves as an explanatory instruction, offered for purposes of clarification for the jury’s benefit. [Footnote omitted.]

This is a case in which the defendant was shown to have driven into an oncoming lane of traffic, an action which would ordinarily be condemned as demonstrative of negligence at least. The sudden emergency instruction does no more than refine the factual issue.

If the jury in this case found that Mr. Webb was confronted by a sudden emergency, there is not one whit of evidence, physical or otherwise, that he did anything to cause that emergency, allegations of inattentive driving notwithstanding. The question became whether his reaction to it, as demonstrated by the skid marks and explained by his own testimony, was reasonable under the circumstances, i.e., whether it was unreasonable for him in that split-second situation to have veered into the oncoming lane of traffic. The jury answered that question affirmatively in response to a specific interrogatory. The judgment should be affirmed.

I respectfully dissent.

Arnold, C.J., and Corbin, J., join in this dissent.


author: Annabelle Clinton Imber, Justice.

text:
    Garry DOTY and Patricia Doty v. Ida J. BETTIS, et al.
    97-109
    947 S.W.2d 743
    Supreme Court of Arkansas
    Opinion delivered June 16, 1997
    [Petition for rehearing denied September 11, 1997.]

      Lyons, Emerson & Cone, by: Jim Lyons, for appellants.

      Bill W. Bristow, for appellees.
   Annabelle Clinton Imber, Justice.

This appeal concerns the validity of a local-option election whereby the voters of Willis Township in Poinsett County were asked to decide whether Precinct 41 should become dry. The appellants, Garry and Patricia Doty, raise three arguments on appeal in support of their contention that the election results should be set aside. We affirm.

The underlying facts of this case are undisputed. In 1996, certain voters decided to circulate a petition that would place on the ballot an initiative to convert Precinct 41 of Willis Township in Poinsett County into a dry precinct. Accordingly, the proponents prepared and circulated a petition that read as follows:

PETITION
We the undersigned being qualified electors in Precinct 41 of Willis Township in Poinsett County do hereby petition for an election to be held to determine whether or not licenses shall be granted for the manufacture or sale, or the bartering, loaning or the giving away of intoxicating liquor, beer or wine within the designated territory of Precinct 41 of WilHs Township in Poinsett County, Arkansas.

After obtaining the necessary signatures, the promoters submitted their initiative petition to the county clerk of Poinsett County. Twelve of the submitted signature pages contained the above language while the remaining thirteen pages contained only signatures. In contrast to the above language contained on some of the signature pages, the initiative petition submitted to the county clerk said:

"INITIATIVE PETITION"
We, the undersigned legal voters of the State of Arkansas, Poinsett County, Precinct 41 of Willis Township, respectfully propose the following amendment of the law, to wit:
TITLE: To prohibit the manufacture or sale of intoxicating liquors in Precinct 41 of Willis Township of Poinsett County:
and by this, our petition, order that the same be submitted to the people of Precinct 41, Willis Township of Poinsett County to the end that the same may be adopted, enacted, or rejected by the vote of legal voters of said Precinct 41, Willis Township of Poinsett County at the regular general election to [be] held in said Willis Township on the 5th day of November, 1996, ....

The county clerk verified the signatures and certified the petition to the county court and the election commissioners. Likewise, the County Court of Poinsett County found that the signatures were sufficient and ordered the Election Commissioners of Poinsett County to place the following on the ballot:

FOR THE MANUFACTURE OR SALE OF INTOXICATING LIQUORS
AGAINST THE MANUFACTURE OR SALE OF INTOXICATING LIQUORS

Gary and Patricia Dotty appealed the county court’s order to the Circuit Court of Poinsett County alleging that the promoters of the initiative violated several statutory requirements. The circuit court rejected the Dotys’ arguments and ordered the matter to be placed on the November 5, 1996, ballot.

The Dotys filed a notice of appeal of this ruling on November 4, 1996, just one day prior to the scheduled election. We must presume that the initiative was in fact placed on the November 5, 1996, ballot, and that the election was held because courts are without authority to enjoin the holding of a regularly scheduled election, regularly called. Brown v. McDaniel, 244 Ark. 362, 427 S.W.2d 193 (1968). Neither party, however, has informed this court of the result of the election; hence, we do not know whether the initiative passed or failed.

On appeal, the Dotys allege that the results of the election must be set aside because the initiative petition contained the following three procedural defects: 1) all of the signature pages did not contain the full language of the petition as required by Ark. Code Ann. § 7-9-104(c); 2) the explanation of the initiative contained on some of the signature pages was materially different from the initiative language submitted to the county clerk; and 3) the election date was not mentioned in the petition as required by Ark. Code Ann. § 3-8-902(a).

The timing of this appeal is crucial to our review of the issues presented. It is well settled that prior to an election the provisions of the laws are mandatory, and thus, we will strike an initiative from the ballot if does not strictly adhere to the statutory requirements. Reichenbach v. Serio, 309 Ark. 274, 830 Ark. 847 (1992); Henard v. St. Francis Election Comm., 301 Ark. 459, 784 S.W.2d 598 (1990); Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989). In contrast, if the appeal reaches this court after the election has occurred, the only remedy we can provide is to set aside the election results, and thus the statutory requirements are merely directory. Reichenbach, supra; Henard, supra; Swanberg, supra. In other words, once the votes have been cast, we will not set aside the election unless the procedural errors rendered the result doubtful or prevented the electorate from casting free and intelligent votes. Reichenbach, supra; Henard, supra; Swanberg, supra. We have explained that the reason for this rule is that:

It is of the utmost importance that the public should have confidence in the administration of the election laws, and to. know that the will of the majority, when fairly expressed, will be respected.

Reichenbach, supra (citing Wheat v. Smith, 50 Ark. 266, 7 S.W. 161 (1887)).

The Dotys’ appeal was not submitted to this court for consideration until June 9, 1997, which is over seven months after the election occurred. Thus, at this point, the only remedy we can provide to the Dotys is to set aside the election results, which we have previously explained will be done only when it has been demonstrated that the outcome of the election would have been different but for the procedural irregularities. Reichenbach, supra; Henard, supra. Without knowing the results of the November 5, 1996, election it is impossible for us to make this determination. Furthermore, the Dotys have failed to demonstrate in their briefs how the outcome of the election would have been different if the three alleged procedural irregularities had not occurred. Accordingly, we must affirm without reaching the merits of the Dotys’ arguments on appeal.

Affirmed.


author: Per Curiam.

text:
    Robin K. SCHLESIER v. STATE of Arkansas
    CR 97-399
    946 S.W.2d 184
    Supreme Court of Arkansas
    Opinion delivered June 16, 1997

      Gruber Law Firm, by: Wayne A. Gruber, for appellant.
    No response.
   Per Curiam.

Robin K. Schlesier, by his attorney, has filed an amended motion for a rule on the clerk.

His attorney, Wayne A. Gruber, admits in his amended motion that the record was not timely filed due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Jimmie L. WILSON, Appellant/Petitioner v. James A. NEAL, Appellee; John Plegge, Respondent No. I; Wanda W. McIntosh, Respondent No. II
    96-1524
    947 S.W.2d 338
    Supreme Court of Arkansas
    Opinion delivered June 16, 1997

      Wilson Law Firm, P.A., by: E. Dion Wilson, for appellant.
    No response.
   Per Curiam.

This petition for writ of mandamus is the outgrowth of our direction to the trial court to settle the record in this appeal. Petitioner Jimmie L. Wilson moves the court for the writ to direct the trial court to include the record in a U.S. District Court cause, Wilson v. Neal, H-C-95-54, as part of the record in this appeal. Petitioner Wilson claims that without the federal record his record on appeal is inadequate. Petitioner Wilson further challenges the failure of the trial court to include in the record the proceedings before Hon. Lance Hanshaw, Special Circuit Judge; Hon. John Lineberger, Special Circuit Judge; and Hon. Oily Neal, former Circuit Judge.

Respondent Neal answers that he has no objection to supplementing the record in this matter with the Hon. Lance Hanshaw trial (Neal v. Wilson, No. SC-93-691), which is on file with the Arkansas Supreme Court. Respondent Neal also tenders the transcript of proceedings before the Hon. Oily Neal on May 17, 1995/ as a potential supplement to the record in the appeal at hand. He further observes that there is no record of proceedings before Hon. John Lineberger. Respondent Neal adds that Petitioner Wilson made no request for an extension of time for the preparation of the transcripts for these three proceedings and, indeed, had stated in the notice of appeal for each proceeding that a transcript was being prepared.

The petition for writ of mandamus is denied. This extraordinary writ does not lie for matters that involve the discretion of the trial court. Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995). Here, it is clear that the trial court determined that the federal district court record was not relevant to its decision concerning settlement of the record because it was extraneous to the proceeding before it and to its decision. The trial court did note that supplementing the record with other proceedings was a matter to be decided by the appellate court. We agree.

Writ denied.

Newbern, Glaze, and Corbin, JJ., not participating.


author: W.H.“Dub” Arnold, Chief Justice.

text:
    Mike Dane OGLESBY v. STATE of Arkansas
    96-1244
    946 S.W.2d 693
    Supreme Court of Arkansas
    Opinion delivered June 23, 1997

      Hilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd., by: Bruce D. Eddy, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   W.H.“Dub” Arnold, Chief Justice.

Appellant, Mike Dane Ogelsby, appeals the order of the Pulaski County Circuit Court, denying transfer of his case to juvenile court. The interlocutory appeal is proper pursuant to Ark. Code Ann. § 9-27-318(h) (Supp. 1995). Jurisdiction is properly in this Court pursuant to Ark. Sup. Ct. R. l-2(a)(12). We find no error and affirm.

Ogelsby was arrested on April 23, 1996. A felony information was filed on June 19, 1996, charging Ogelsby with residential burglary, a Class B felony, and theft of property, a Class A misdemeanor. At the time of the arrest, Ogelsby was seventeen years old. Oglesby turned eighteen on August 3, 1996.

On August 5, 1996, Ogelsby entered a plea of not guilty. On August 26, 1996, an omnibus hearing was held on Oglesby’s motion to transfer the matter to juvenile court. The motion was denied based upon the seriousness of the offense and the age of the defendant.

Ark. Code Ann. § 9-27-318(e)(Supp. 1995) sets forth statutory factors that a trial court must evaluate when ruling upon a motion to transfer a matter to juvenile court. Specifically, § 9-27-318 provides:

(e) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.
(f) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.

Oglesby contends that the trial court erred in denying his motion to transfer based solely upon the finding that the crime was serious; he argues that pursuant to the statute, a crime must be both serious and violent in order to justify denial of a motion to transfer.

In ruling upon a motion to transfer, a court is not required to give equal weight to each of the factors enunciated in Ark. Code Ann. § 9-27-318(e). Brooks v. State, 326 Ark. 201, 929 S.W.2d 160 (1996); Booker v. State, 324 Ark. 468, 922 S.W.2d 337 (1996); Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994). According to Ark. Code Ann. § 9-27-318(f) (Supp. 1995), a trial court decision to try a juvenile as an adult must be supported by clear and convincing evidence. A trial court’s decision will not be overturned unless it is clearly erroneous. Booker v, State, supra; Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995).

According to Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996), it is the movant’s burden to prove the transfer to juvenile court was warranted. See also, Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993); Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991). This is a burden appellant has not met.

The defense conceded that the offense was serious but claims that the denial of the motion to transfer was improper because the offense was not violent as well. The defense offered no evidence to prove that the motion to transfer was warranted; therefore, the trial court ruling was not clearly erroneous.

Additionally, the State argued below that Ogelsby had turned eighteen and was not eligible for juvenile rehabilitative programs. In the recent case of Smith v. State, 328 Ark. 736, 946 S.W.2d 667 (1997), we held that the age of the juvenile is a permissible factor to evaluate when determining whether a transfer is proper. See also, Maddox v. State, 326 Ark. 515, 931 S.W.2d 438 (1996); Brooks v. State, supra; Hansen v. State, 323 Ark. 407, 914 S.W.2d 737 (1996).

Based upon the seriousness of a Class B felony and the fact that Oglesby is now eighteen years old, we cannot say that the denial of transfer was clearly erroneous. We therefore affirm.

Affirmed.

Corbin, J., not participating.

       Both parties agreed that jurisdiction of the misdemeanor was properly within the juvenile court. Ark. Code Ann. § 9-27-318(a)(3)(Supp. 1995).