Opinion highlights for the week of March 1, 2026

 

The Arkansas Court of Appeals handed down eighteen opinions on March 4, 2026; the Arkansas Supreme Court handed down three opinions on the following day.  One of those Supreme Court decisions deserves careful appellate practitioner attention.  We'll note one of those Court of Appeals decisions, too.

Readers may recall a summary of Evans v. Harrison, 2025 Ark. 164, in a post dated November 7, 2025; if you'd like to review that, click on the "Evans exception" tab in the list of "Labels" on the right.  I characterized Evans as "a potential exception permitting plain error review of 'glaring constitutional violation[s]' even if they weren't raised and ruled on below."  Evans received some elaboration in a concurrence and dissent issued in Wheeler v. State, 2025 Ark. 196, 197.

The Evans exception perhaps made another appearance in Gamble v. State, 2026 Ark. 44.  Gamble argued on appeal that the circuit court erred by denying his motion to suppress; he contended that the statement at issue was the product of a pretextual arrest.  His argument turned on an earlier decision, State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215 (2002), which adopted a particular interpretation of an Arkansas Constitution provision.  The Gamble court summarized Sullivan as holding that pretextual arrests are unreasonable police conduct warranting application of the exclusionary rule.

On appeal, neither party initially asked the Supreme Court to overrule Sullivan.  But the court was troubled by Sullivan, so it asked the parties for supplemental briefs - as it did in Evans - on whether Sullivan should be overruled.  After that briefing, the court overruled Sullivan, essentially finding its reasoning unsatisfactory: the Sullivan court relied on cases from the '70s and '80s to justify its interpretation of our 1874 constitution, when a proper analysis would have examined how the relevant constitutional provision was understood at the time of its adoption.

Of course, for the appellate practitioner, the intriguing development is the court's decision to ask for supplemental briefs and then to ultimately overrule its own precedent.  Again, neither party asked for this.  Should we now ask our appellate courts to overturn precedent based on the Arkansas Constitution, following Evans and Gamble? Maybe so, especially if we can offer a textual or originalist argument for overruling that precedent.

The import of this turn of events is underscored by the Gamble dissent.  This dissent noted the majority's departure from the rule "that we will not make an argument for a party or raise an issue sua sponte unless it involves the trial court's jurisdiction." Gamble, 2026 Ark. 44, at 15.  The dissent tied the majority's departure back to Evans.

In Evans, the majority reversed the circuit court by finding facts absent from the record based on a legal theory that neither party raised either below or on appeal, prompting a critical dissent, which I joined. The Evans dissent recognized the dangers and the inefficiency of this court ordering supplemental briefing rather than addressing the arguments presented by the parties.

Id. at 17-18.  The dissent also noted Evans' extension into criminal appeals, thanks to Gamble.

 

The error in Evans has now been expanded to the criminal realm, where a person’s most fundamental liberty is at stake. By upending the most basic practices of fairness and objectivity, the majority has transformed a once neutral arbiter into legal counsel for the State, which is staffed with attorneys who are experts in criminal law.

All our precedents are now at the mercy of the whims of a majority of this court without regard to the arguments presented by the parties. ...

Id. at 19-20.

The majority's response is found in footnote 2.  It claimed an independent power to properly construe governing law; it noted United States Supreme Court cases that overturned precedent not directly challenged on appeal; and it argued that a case relied upon by the dissent was not controlling here.

Finally, Brigance v. State, 2026 Ark. App. 150, noted a couple of rules deserving mention.  First, a party cannot agree with a circuit court's proposed course of action and then attack that action on appeal.  And second, if you want to preserve a jury instruction argument for appeal, you must proffer an alternate jury instruction and see that it is included in the record.

Thank you for reading.

Opinion highlights for the week of February 22, 2026

 

The Arkansas Supreme Court did not hand down any opinions yesterday - but it was a busy day at the Arkansas Court of Appeals on Wednesday, February 25.  By my count, twenty-six signed opinions and one per curiam opinion were issued by the Court of Appeals.  That per curiam opinion may be the most interesting of the lot from an appellate practitioner's standpoint, but we'll consider a couple of the other opinions, too.

In Tate v. Phillips County, 2026 Ark. App. 141, Tate moved to remand her appeal for lack of a final order.  Apparently, in an attempt to comply with Ark. R. Civ. P. 54(b), the required Rule 54(b) certificate was signed and entered as a "stand-alone" document; it did not follow immediately after the circuit judge's signature on the judgment.  Tate conceded that this certificate did not suffice to confer jurisdiction on appeal, and asked for a remand for entry of a compliant judgment and certificate.

Instead of granting Tate's motion, the Court of Appeals dismissed for lack of jurisdiction, due to improper placement of the certificate.

Rule 54(b)(1) requires that a proper certificate “shall appear immediately after the court’s signature on the judgment.” (Emphasis added.) Our supreme court has construed the word “shall” when used in our rules of civil procedure to mean that compliance is mandatory. The plain language of the rule therefore requires that the certificate be located on the judgment immediately after the court’s signature. ...

...

Because the circuit court’s purported certificate in this case was not located on the judgment, it is insufficient to permit an appeal under Rule 54(b). Because the order before us is not final, we lack jurisdiction over the matter and have no recourse other than to dismiss the appeal.

Tate, 2026 Ark. App. 141, at 2-3 (citations omitted).

The concurrence and dissent in Tate are both worth reading.  The concurrence notes the benefit of having a settled, bright-line rule, even if we don't like it.  It also offers a form certificate in compliance with Rule 54(b).  The dissent makes the point that everything required for jurisdiction was in the record, just not in the proper order.  It questions why the court didn't grant Tate's motion and remand, instead of dismissing the appeal - that would have been a less costly and time-consuming approach.

Settles v. State, 2026 Ark. App. 119, addresses the specificity required for a proper motion for directed verdict.  Settles' motion argued that "he didn't do anything that the statute required him to do," and noted particular acts he did not take. Id. at 2.  One reason the Court of Appeals did not reach this argument is lack of specificity.  "To preserve for appeal a court’s decision on a directed-verdict motion, the issue must be stated clearly and specifically to the circuit court." Id. at 4. Settles' contention that he did not do "anything" was not specific enough: "Because he did not identify the elements of the crime set forth in the statute, Settles’ motion did not meet the specificity requirements of Rule 33.1." Id. at 5.

Finally, Humes v. State, 2026 Ark. App. 122, notes a recent exchange on the Arkansas Supreme Court.  Humes challenged the sufficiency of the State's evidence.  The Court of Appeals "reviewed the entire record" but noted in a footnote:

 

Following our supreme court’s lead, we have restricted our consideration in this criminal sufficiency-of-evidence appeal to evidence that tended to support the conviction. Our supreme court’s most recent decisions in this area have omitted that express restriction. Compare Matthews v. State, 2025 Ark. 213, at 4–5, 725 S.W.3d 16, 19 (citing Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980)..., with Matthews, 2025 Ark. 213, at 8, 725 S.W.3d at 21 (Baker, C.J., concurring) (objecting that the majority omitted the restriction from the standard of review); see also Reaves v. State, 2025 Ark. 202, 725 S.W.3d 22 (omitting the same restriction the same day); Tait v. State, 2026 Ark. 28 (omitting it since). Because the outcome in this appeal is the same whether we look at all the evidence or some of it, here we merely note the issue.

Humes, 2026 Ark. App. 122, at 4 n.1 (some citations omitted). 

Thank you for reading.

Opinion highlights for the week of February 15, 2026

 

The Arkansas Court of Appeals listed twelve decisions on its February 18, 2026, docket.  The Arkansas Supreme Court listed five the next day, but one of those decisions was handed down last week and was counted in the last "Opinion Highlights" - so there are just four new decisions this week.  Let's note two of those Court of Appeals decisions here.

An administrative appeal was dismissed without prejudice in Arkansas Towing & Recovery Board v. A-1 Recovery Towing, 2026 Ark. App. 102.  A-1 Towing appealed a decision of the Board; the circuit court remanded the matter for a new hearing and directed that a Board member recuse.  The Board then appealed that circuit court order.

The Court of Appeals noted that a "circuit court's order of remand to an administrative agency for further proceedings is not a final, appealable order." Id. at 4.  "If [an order to remand] directs the agency to complete a step that is a predicate to the circuit court reaching its ultimate decision" then that order is not final and appealable. Id.  In that situation, the circuit court's order contemplates that the agency will complete its task on remand, and if the matter returns to the circuit court it will then reach a final decision.  The circuit court did not rule on the merits here, and in light of these rules, dismissal was compelled.

In Martin v. Higgins, 2026 Ark. App. 104, Martin appealed the circuit court's ruling on two points.  The Court of Appeals noted his inconsistent position when arguing one of those points: Martin told the circuit court "it was no longer necessary for [it] to comply with this court's mandates" in a filing below, but on appeal he complained "that the circuit court failed to comply with our mandate." Id. at 9.  The court invoked the general rule: "a party is bound by his or her pleadings and the allegations therein and cannot maintain an inconsistent position on appeal." Id.

Thank you for reading.