Opinion highlights for the week of September 20, 2026

 

The Arkansas Supreme Court's September 24, 2026, nine-page syllabus primarily disposed of various petitions for review and motions.  No opinions were handed down, but seven cases were submitted for decision.

The Arkansas Court of Appeals produced seventeen opinions on September 23, 2026.  Yet again, there are several candidates for discussion here, but we'll focus on two of them.

Birotte v. State, 2026 Ark. App. 428, considered a sufficiency of the evidence challenge to an aggravated assault conviction.  At trial, Birotte did not challenge the aggravated assault charge in his motion for a directed verdict - nothing in that motion alerted the trial court to a sufficiency of the evidence challenge to aggravated assault.  But on appeal, Birotte based his challenge on language used in the context of another challenge below to a different charge.

The Arkansas Court of Appeals affirmed because Birotte did not preserve this argument in compliance with Ark. R. Crim. P. 33.1.

Rule 33.1 requires more than the use of language that might also bear upon an element of another offense. The motion must sufficiently identify the particular deficiency in the State’s proof to alert the circuit court to the issue being raised. Here, counsel specifically identified the charges of fleeing and criminal mischief and articulated the alleged deficiencies in the State’s proof as to those charges. He did not do so with respect to aggravated assault.

Birotte, 2026 Ark. App. 428, at 4 (citation omitted).

Southern Farm Bureau v. Arvie, 2026 Ark. App. 433, contains a couple of interesting points.  This case involved a Pulaski County Circuit Judge's decision to transfer this declaratory judgment case to Phillips County Circuit Court.  A related auto accident case was already pending in Phillips County.  Southern Farm Bureau ("SFB") appealed the trial court's transfer order.

The Court of Appeals determined that the transfer order was a final, appealable order for purpose of appellate jurisdiction. Id. at 4 n.7.  The Arkansas Supreme Court found a similar order to be final, but there were other cases pointing in the other direction.  This order, like the one found to be final by the Supreme Court, "effectively transferred the entire action to another county. Thus, pursuant to the supreme court’s most recent declarations, we find this order to be a final, appealable order and that we have jurisdiction over the matter." Id. 5 n.7.

The transfer order did not indicate the basis for the transfer decision, but at the hearing stated a reason.  The Court of Appeals relied on that oral reason in its decision.

Here, there was no conflict or discrepancy between the circuit court’s oral ruling and its written order. Rather, the oral ruling merely explained the simple denial in the written order, and we routinely rely on a circuit court’s oral statements from the bench to inform or to explain the reasoning behind a written order.

Id. at 6 n.8.  The trial court's decision was reversed.

Thanks for reading - enjoy your weekend. 

Opinion highlights for the week of September 13, 2026

 

The Arkansas Supreme Court did not issue a syllabus this week.  The Arkansas Court of Appeals' September 16, 2026, syllabus lists twenty opinions.  There are several candidates for mention here, but we'll note four of them.

Hall appealed the revocation of his suspended imposition of sentence in Hall v. State, 2026 Ark. App. 405.  He argued that the trial court erred in finding a violation of his conditions and he challenged two conditions on First Amendment grounds.

The Arkansas Court of Appeals first noted that Hall's admission to one violation sufficed to revoke his SIS.  Turning to the constitutional challenge, the court declined to address that: since it affirmed the revocation due to violation of another condition, there was no need to address the constitutional challenge.  The court noted: "Our supreme court has held that it will not address a constitutional argument when the case can be disposed of without doing so." Hall, 2026 Ark. App. 405, at 7.

Hernandez v. State, 2026 Ark. App. 400, documents a six-judge panel's disagreement over the adequacy of an Anders "no merits" brief.  The majority, citing Ark. Sup. Ct. R. 4-3(b), took issue with the brief's treatment of the revocation decision at trial.

The revocation decision is an adverse ruling, and the Rule requires counsel to provide “an explanation as to why each adverse ruling is not a meritorious ground for reversal.” Counsel’s argument section includes no reference to the evidence, the circuit court’s findings, or our standard of review, and there is no explanation as to why an appeal of the revocation decision would be wholly without merit.

Hernandez, 2026 Ark. App. 400, at 3.  The majority believed counsel's "one-page argument section is noncompliant." Id. at 3 n.2.

The dissenting judge noted: "There is no merit to an appeal of the circuit court's revocation, and no change in the brief will alter that fact." Id. at 7.  He believed the majority took "too stringent" of a view of the briefing requirements and reviewed the ways in which the brief was adequate.

This case is worth reviewing if you file Anders briefs.

In Mion v. Bishop, 2026 Ark. App. 408, Mion's counsel argued at trial that the circuit court should apply two cases applicable to "spite fences."  On appeal, counsel argued that the circuit court relied on "spite fence" law but did not address cases on nuisance law.  The Court of Appeals declined to address this argument.

Mion cannot urge the circuit court to apply the law found in [the two "spite fence" cases] and on appeal ask this court to apply general nuisance law. It is well settled that under the doctrine of invited error, a party may not complain on appeal of an erroneous action of a circuit court if he or she induced or acquiesced in that action. This court has also long held that it will not review an alleged erroneous ruling or order unless a party makes known to the circuit court beforehand the action that he or she desires the court to take or objects to the action of the court and cites the grounds, therefore.

 Id. at 11 (citations omitted).

Finally, in Lynch v. Arkansas Department of Human Services, 2026 Ark. App. 411, the Court of Appeals noted that DHS made an argument for termination on an independent ground not ruled on by the circuit court.  The Court of Appeals affirmed on the basis of that argument in the course of its de novo review.

 

Under our de novo review, we will affirm a termination-of-parental-rights order on a statutory ground that was pled in a DHS petition but not relied on—or addressed—by the circuit court if the ground was proved at the termination hearing. This principle is consistent with the broader rule that an appellate court may affirm when the circuit court reaches the right result, even if for a different reason. Our de novo review opens the entire record for review and does not constrain the appellate court to the circuit court’s rationale, allowing for review of the record for additional reasons to affirm.

Id. at 8-9 (citation omitted).

Thank you for reading. 

Opinion highlights for the week of September 6, 2026

 

The Arkansas Supreme Court issued a syllabus today.  No decisions were handed down, but several cases are listed as submitted.  The eight-page syllabus also lists a number of orders disposing of motions.

Yesterday, September 9, 2026, the Arkansas Court of Appeals issued a syllabus listing decisions in ten cases.  We'll note one of those decisions here.

Whitt v. State, 2026 Ark. App. 398, involved an appeal from multiple convictions.  Whitt argued on appeal a lack of substantial evidence on one element supporting one conviction.  The State argued that Whitt did not make this specific argument below, so the argument was not preserved for review.

The Court of Appeals agreed with the State.  It noted Ark. R. Crim. P. 33.1(c)'s requirement that a motion for directed verdict must "specify the respect in which the evidence is deficient."  A general motion does not meet that requirement.  Whitt's motion below failed this test.

Appellant’s directed-verdict motion before the circuit court was only a recitation of the elements of rape. He did not identify the specific element that he now claims the State failed to prove. Because appellant’s motion did not inform the circuit court of the specific issue in the State’s case that is now being challenged, this issue is not preserved for review.

Whitt, 2026 Ark. App. 398, at 3 (footnote omitted).  The Arkansas Court of Appeals applied this same rule to another argument on appeal, where Whitt's "directed-verdict motion... was also nothing more than a recitation of the elements of the crime." Id. at 4.

Thank you for reading.