Opinion highlights for the week of February 1, 2026

 

Twenty opinions appear on the Arkansas Court of Appeals' February 4, 2026, docket; two opinions and several per curiam orders appear on the Arkansas Supreme Court's docket for the following day.  We'll note three opinions and one per curiam order in this post.

The Arkansas Supreme Court settled on a standard of review for a first-of-its-kind appeal in Merrell v. State, 2026 Ark. 15.  This case involves an extended-juvenile-jurisdiction ("EJJ") offender; the trial court determined that Merrell deserved sentencing as an adult, and imposed a life sentence.  Merrell appealed.

Noting that "this is the first appeal from the imposition of an adult sentence on an EJJ offender" addressing the merits, the court had to "first determine the proper standard of review...." Id. at 16.  Arkansas Code imposes a preponderance of the evidence burden of proof on the State to prove at trial that an EJJ defendant's adult sentence was proper; in other appeals involving this burden of proof, the court "applied the clearly-erroneous standard of review." Id.  "Appeals from an EJJ designation are also reviewed under the clear error standard." Id.  The court determined to apply that same standard of review here: "we will not reverse the circuit court's order imposing an adult sentence on Merrell unless it is clearly against the preponderance of the evidence." Id.

An unfortunate use of artificial intelligence in a brief is the subject of a per curiam order issued in Arkansas Department of Human Services v. Ward, 2026 Ark. 17.  On December 11, 2025, the court ordered an attorney to respond to concerns about citations in a brief that could not be located.  To her great credit, the attorney admitted error and took other steps, including self-reporting to the Office of Professional Conduct.  The court noted her response and imposed a reprimand.  This order is required reading if you make use of AI in your pleadings.

Turning to the Court of Appeals, in McBride v. McBride, 2026 Ark. App. 58, the court reminded attorneys about the requirements for a brief's Statement of the Case.

The “Statement of the Case” in an appellant’s brief is required by Arkansas Supreme Court Rule 4-2(a)6) to “identify and discuss all material factual and procedural information” essential to understand and decide the issues on appeal. Here, appellant’s “Statement of the Case” is a mere half page; it contains procedural dates but is woefully inadequate regarding the parties’ testimony and other material evidence. Appellee’s brief supplements the facts somewhat. In this instance, we will not require appellant to rebrief her appeal. We caution all attorneys, however, to be mindful of and compliant with the entirety of Rule 4-2 regarding the contents of electronic briefs.

McBride, 2026 Ark. App. 58, at 1 n.1.

Long v. State, 2026 Ark. App. 62, explores the trial-level detail required to preserve an argument for appeal.  "An appellant must raise an issue in the circuit court and support it with sufficient argument and legal authority, if there is any, to preserve it for appeal." Id. at 3.  When he argued separation of powers at trial, Long "did not cite any provision of the Arkansas Constitution, any standard of constitutional review, or any case law or secondary authority to support his argument." Id. at 4.  Because Long did not provide the trial court with a developed argument, the court did not address it on appeal.

Thank you for reading.

 

Proposed amendments to three rules of appellate procedure

 A per curiam opinion of the Arkansas Supreme Court, delivered January 29, 2026, notes proposed amendments to three of the Arkansas Rules of Appellate Procedure - Civil.  A copy of the per curiam opinion can be found at this link: https://opinions.arcourts.gov/ark/supremecourt/en/524121/1/document.do

The first proposed change involves Ark. R. App. P.-Civ. 3(f).  The proposal eliminates the requirement that notices of appeal or cross-appeal be served "by any form of mail which requires a signed receipt."  The requirement is no longer necessary in the age of electronic filing.

The second proposed change relates to the first.  If adopted, Ark. R. App. P.-Civ. 4(a) will require that a notice of cross appeal will be required ten days after the notice of appeal is filed, not ten days after receipt.

The final proposed change is similar to the second and also relates to the first.  The proposed new Ark. R. App. P.-Civ. 6 will require an appellee to file a designation of other parts of the record to be included on appeal within ten days after the notice of appeal is filed, not ten days after receipt.

Comments on these proposals are due on or before April 1, 2026.

Opinion highlights for the week of January 25, 2026

 

Despite the weather, our appellate courts handed down decisions this week.  Ten opinions appear on the Court of Appeals' January 28, 2026, docket; two opinions were issued by the Supreme Court the next day.

Two opinions involve what seems to be a rarity: successful "sufficiency of the evidence" arguments.  These are fact-intensive, so I'm not going to spend a lot of time on them here; you should read these opinions if you are interested in winning "sufficiency" arguments.  In Parris v. State, 2026 Ark. 5, the Supreme Court reversed a theft by receiving conviction for lack of substantial evidence: the conviction was based upon inadmissible hearsay about the gun having been stolen.

And in Keeton v. State, 2026 Ark. App. 53, the Court of Appeals reversed and dismissed an obstructing governmental operations conviction, where the basis for the State's case was correct advice the defendant gave her daughter.  The defendant had no interaction with officers attempting to serve a warrant upon her daughter; she merely told her daughter on the phone that she did not have to answer the door.  The evidence was thus insufficient to sustain the conviction.

The Court of Appeals dismissed an appeal for lack of jurisdiction in Caldwell v. Arkansas Racing Commission, 2026 Ark. App. 50.  Caldwell appealed an unfavorable Commission decision, but he submitted an untimely petition for review.  The circuit court noted that untimeliness but also addressed the merits in a decision favoring the Commission.  Caldwell then appealed that circuit court decision.  The Court of Appeals found that the circuit court did not err when it found the petition for review to be untimely.

[T]he petition for judicial review was untimely filed in circuit court. This means that court lacked jurisdiction to rule on the additional arguments Caldwell raised. So, too, we lack jurisdiction beyond the task of deciding the threshold question of whether the circuit court had jurisdiction to review the Commission’s decision; as we have explained, it did not, so the Commission’s decision is affirmed.

Id. at 8.

Finally, in Taylor v. Independence County, 2026 Ark. App. 54, the Arkansas Court of Appeals acknowledged that Taylor could raise the Independence County Court's jurisdiction for the first time on appeal.  Apparently the county court issued an order despite the absence of any judicial proceeding invoking the county court's jurisdiction.

The Arkansas Supreme Court also issued a number of per curiam orders, including one noting proposed changes to rules of appellate procedure.  If those proposals are worth reporting here, I will do so by a separate post.

Thank you for reading.