Spring Break

 

There are no new decisions to highlight this week - appellate judges like Spring Break, too.  Have a great weekend!

Opinion highlights for the week of March 16, 2025

 

The Arkansas Supreme Court handed down one decision this week.  By my count, the Arkansas Court of Appeals handed down fifteen signed decisions.  Some of those Court of Appeals decisions shed light on appellate practice and procedure.

The appeal was dismissed for lack of a final order in American Health Law Association v. Estate of Fred Cunningham, 2025 Ark. App. 171.  AHLA moved for summary judgment, arguing that it was immune from damages in the Estate's negligence action.  The trial court denied this motion, so AHLA appealed.  The Estate moved to dismiss the appeal in the absence of a final order, arguing that an order denying summary judgment based on a claim of immunity is not an appealable order unless it involves sovereign immunity - which was not an issue here.

The Court agreed with the Estate.  It distinguished between immunity from civil damages and immunity from suit; here, the statute AHLA relied upon provided immunity from civil damages - that is, immunity from liability, not immunity from suit.  The former is merely a defense to a suit, while the latter provides entitlement not to stand trial.  Interlocutory appeals are permitted in cases involving immunity from suit; otherwise, the right not to be tried would be lost if the matter improperly proceeded to trial.  Because immunity from liability was involved - not immunity from being tried at all - the trial court's order was not a final appealable order.

A couple of procedural issues appeared in Henry v. State, 2025 Ark. App. 174.  First, because Henry did not move for dismissal at the close of all the evidence in his bench trial for fleeing, his challenge to the sufficiency of the evidence was not preserved for appeal.  Second, the mythical fourth Wicks exception did not serve to revive this challenge.  That exception permits an appellate court to take notice of errors affecting substantial rights, even if those errors weren't raised at trial.  But this exception only applies to constitutional or statutory errors, not sufficiency of the evidence arguments.

Two procedural issues also appear in Youngberg v. State, 2025 Ark. App. 177.  First, Youngberg's argument that he didn't receive written notice of his SIS conditions, thus barring revocation, was not raised at trial.  This is a procedural, not jurisdictional, issue, so this argument was waived for failure to object below.  Second, Youngberg's due process argument - that he lacked notice of the grounds of revocation - was not raised at trial.  Therefore, it could not be considered on appeal because the trial court had no opportunity to rule on the issue.

Finally, Hughes v. Bright, 2025 Ark. App. 180, illustrates the problem of inconsistent arguments at trial and on appeal.  The court noted "that the main thrust of [Appellant's] appeal - that the court erred in finding a material change in circumstances - is at complete odds with her arguments below, where she argued strenuously that there was a material change in circumstances." Id. at 8.  "Our general rule is that a party is bound by his or her pleadings and the allegations therein and cannot maintain an inconsistent position on appeal."  Id. at 9.  After reviewing a couple of cases, the court concluded that the Appellant "cannot succeed on the merits with her new and inconsistent arguments on appeal." Id. at 10.

Never a dull moment!  Thanks for reading.

Legislation conferring original jurisdiction upon the Court of Appeals

 

Old habits die hard - that includes keeping up with legislation filed during sessions of the Arkansas General Assembly.  Which brings me to HB 1832, filed today.  You can see a copy of it here:

https://arkleg.state.ar.us/Home/FTPDocument?path=%2FBills%2F2025R%2FPublic%2FHB1832.pdf

If I am reading this correctly, the Arkansas Court of Appeals "shall have exclusive original jurisdiction over a facial constitutional challenge" to Code sections, legislative acts, and administrative rules.  The court's "procedure will conform to that prevailing in bench trials in the circuit court."  The Court of Appeals' decision "may be appealed to the Supreme Court."

The General Assembly's findings and emergency clause offer some clues as to what is going on here.  The findings state that "[t]he purpose of this act is to establish the exclusive original jurisdiction of the Court of Appeals under the authority of Arkansas Constitution, Amendment 80, section 9, pertaining to facial constitutional challenges."  The emergency clause cites the need for "consistent legal interpretation of facial constitutional challenges to acts of the General Assembly...."

Perhaps the issue is displeasure with circuit court rulings - otherwise, why place "exclusive original jurisdiction" with the Court of Appeals?  In any event, stay tuned. 

Opinion highlights for the week of March 9, 2025

 

The Arkansas Supreme Court handed down six decisions today, March 13, 2025; the Arkansas Court of Appeals handed down nineteen signed opinions yesterday.  Some of the Court of Appeals decisions are worth noting here.

A revocation of SIS case, Nelson v. State, 2025 Ark. App. 151, was remanded to settle and supplement the record.  The court noted the general rule:

We require the entire record to properly confirm our jurisdiction, meaning that we need to ensure that the circuit court had the authority to revoke and determine whether there might be an illegal sentence issue.  Without a complete record, we cannot make those determinations.

Id.at 2.  The matter was remanded to settle and supplement the record "with the necessary documentation containing the 2014 felony information, the original conditions of Nelson's SIS issued in 2014, and the 2014 judgment." Id. at 2-3.

In the companion case of Nelson v. State, 2025 Ark. App. 152, Nelson argued that the prosecutor's "Short Report of Circumstances" was erroneous in a number of ways.  The court rejected these arguments for two reasons.  First, "Nelson's arguments are not preserved for appeal because he did not present them to the circuit court. ... [O]bjections to forms filed with the sentencing order, such as a short report, must be presented to the circuit court to be preserved for appeal."  Second, because Nelson did not identify any report factors that should have been selected, he did not demonstrate error or prejudice.

The appeal was dismissed in Seaside Pools v. Curtis, 2025 Ark. App. 155, for failure to comply with Ark. R. Civ. P. 54(b).  Seaside installed a pool for the Curtises.  When they didn't complete payments, Seaside brought an action against them, Generations Bank, and the Department of Finance and Administration (alleging the latter two entities might have some interest in the property).  Ultimately, the trial court granted summary judgment to the Curtises.  Seaside appealed, but in its notice of appeal, it did not abandon pending but unresolved claims under Ark. R. App. P.-Civ. 3(e).

The court noted the general rules.  Appeals can be taken from a final judgment or decree.  Determining finality is a jurisdictional question that may be raised by the court at any time.  When there are multiple claims for relief or multiple parties involved, an order adjudicating fewer than all the claims, or the rights/liabilities of fewer than all the parties, is not a final, appealable order.  Dismissal of a claim without prejudice does not create finality.

Untangling the procedural situation, the Seaside court determined that DFA and the claims against it had not been expressly dismissed.  Generations had not been dismissed as a party, and the claims against it had only been dismissed without prejudice.  Between those facts, the failure of Seaside to abandon its unresolved claims, and "no attempt to comply with Rule 54(b)," the court found that it lacked jurisdiction and dismissed the appeal.

Rogers v. Arkansas Department of Human Services and Minor Child, 2025 Ark. App. 162, involved the termination of parental rights.  One of Rogers' arguments was that termination of her parental rights was not in the minor child's best interest, because Rogers had custody of the child's sister - termination would interfere with the sibling relationship.  But this argument was not preserved for review because Rogers did not make it at the termination hearing.  "Even in termination cases, arguments raised for the first time on appeal will not be addressed." Id. at 9.

In Gregory v. State, 2025 Ark. App. 164, the defendant objected to certain testimony once, but did not object when other victims were asked the same question.  This issue was not preserved for appeal.  "A defendant must object at the first opportunity, and he must then renew his objection each time the issue is raised; otherwise, he has waived his argument regarding that issue on appeal." Id. at 10.

Finally, in Le v. State, 2025 Ark. App. 165, the court decided an appeal concerning an expired commitment order.  The court considered the merits "because cases like this will always become moot before litigation can run its course." Id. at 4 n.1.

Thanks for reading!

Two great appellate CLE options

 

A few weeks ago, I posted about an upcoming Arkansas Bar Association appellate CLE program.  Registration is now open.  The program will be held on April 3, 2025, at the Fayetteville Public Library and will run from 8:00 a.m. to 4:15 p.m.  More information can be found here: https://www.arkbar.com/events/event-description?CalendarEventKey=601da0a2-722f-4d07-82c7-01934bb08605&Home=%2fcle--events%2fevent-calendar

Meanwhile - and I'm late to point out this one - the Justice Donald L. Corbin Appellate Symposium will take place March 13 and 14, 2025, at UALR.  More information can be found here: https://www.pulaskibarfoundation.com/corbinsymposium

They both look like great programs.

Opinion highlights for the week of March 2, 2025

 

The Arkansas Supreme Court handed down one decision on Thursday; the Arkansas Court of Appeals handed down thirteen signed decisions on Wednesday.  Let's take a look at three of those appellate decisions.

In Bauer v. Beamon, 2025 Ark. 16, the Supreme Court addressed the back end of the appellate process: the jurisdictional effect of a mandate.  Procedurally, there were two trips to the appellate court and decisions in the trial court that all affected the decision - please be patient with me.  

The trial court granted relief and attorney's fees to the Beamons.  The Bauers appealed and the Beamons cross-appealed.  On the case's first trip to the Supreme Court (2023 Ark. 194), the court reversed the damages award against the Bauers, affirmed on cross-appeal, and noted lack of jurisdiction to review the award of attorney's fees - that award apparently occurred after the damages award, but the Bauers did not file an amended notice of appeal.

After the mandate issued, the Beamons sought payment of their attorney's fee award.  The Bauers responded with their own motions: one for attorney's fees, and another to set aside the Beamons' fee award on the basis of Ark. R. Civ. P. 60(c)(4).  The trial court ultimately concluded it lacked jurisdiction to proceed with any relief.  The Bauers appealed that decision, bringing the case back to the Supreme Court.

The court wrote that the "single issue on appeal is whether the circuit court erred by concluding it lacked jurisdiction to consider the Bauers' motions." Bauer, 2025 Ark. 16, at 4.  An examination of the first appeal's mandate was required to determine if it foreclosed trial court relief.

The court began its analysis by setting forth basic mandate rules.

The mandate is the official notice by the appellate court, directed to the court below, advising that court of the action taken by the appellate court, and directing the lower court to duly recognize, obey, and execute the appellate court's judgment.  Under the mandate rule, a circuit court has no power or authority to deviate from the mandate issued by the appellate court. ...  

The lower court may not vary the decision or judicially examine it for any purpose other than execution.  The lower court's jurisdiction is limited to that which is conferred by the appellate court mandate. ... 

 

 Id. at 4 (citations omitted).

On the first appeal, the Supreme Court concluded that it lacked jurisdiction to consider the Beamons' fee award.  The Bauers' subsequent motions were not affected by that earlier appeal, but presented new issues.  The Bauers' request for fees was a collateral matter, over which jurisdiction remained in the trial court.  The Bauers' motion to set aside was governed by Ark. R. Civ. P. 60(c)(4) and was not affected by the law-of-the-case doctrine.

Thus, since the Supreme Court's first mandate did not address the issues raised by either of the Bauers' two subsequent motions, the trial court retained jurisdiction over those matters.

Addressing a couple of Court of Appeals decisions won't be quite so laborious.

In Butler v. Arkansas Department of Human Services, 2025 Ark. App. 137, a mother and father challenged the termination of their parental rights.  On appeal, both parents raised a particular argument, but the panel held that it was not preserved for appeal by the father.  While the mother raised an objection in the trial court that preserved the argument, the father did not join her objection.  "A party is bound by the scope of the arguments made to the circuit court." Id. at 7.

In Fondren v. Fondren, 2025 Ark. App. 144, the court ordered rebriefing.  The Appellant's brief did not contain a sufficient statement of the case and facts: he offered a "scant summary" of two witnesses' testimony, and merely listed six other witnesses.  He also provided "an inadequate one-sentence summary of a portion of the circuit court's order.  This is far from all the essential information the court needs to understand and decide the case." Id. at 2.

The Appellee raised several issues on cross-appeal, but the underlying facts were not discussed in the Appellant's statement of the case - and it appears that she did not offer her own statement of the case, but that isn't clear - so the court could not address her arguments, either.  The court was also troubled by the Appellee's presentation of her arguments as appellee and cross-appellant - they did not proceed in the order required by rule.

It behooves counsel to provide this court not only well-argued briefs but also briefs that are organized and otherwise in compliance with Rule 4-2.  Because of the mandatory nature of Rule 4-2, we cannot ignore the failure of both counsel to comply.  Accordingly, we order the parties to file substituted briefs curing any deficiencies.

Fondren, 2025 Ark. App. 144, at 3.

Thank you for reading - comments are welcome.

Opinion highlights for the week of February 23, 2025

 

The Arkansas Supreme Court handed down an opinion on the merits this week - there were other filings on the docket, however.  The Arkansas Court of Appeals handed down twenty-four opinions.  This is a long post about some of these cases from both courts, but two of these decisions - Cypert and WPH, LLC - deserve your further study.

A claim went unaddressed for lack of jurisdiction in Cypert v. State, 2025 Ark. 11.  The trial court entered judgment on January 29, 2024; the defendant filed a motion for a new trial claiming juror misconduct on January 31, 2024; the defendant then filed a notice of appeal on February 12, 2024; the trial court ruled on the post-trial motion for a new on February 27, 2024.  Significantly, the defendant did not file an amended notice of appeal challenging the denial of his post-trial motion.

The court held that the defendant's "failure to file an amended notice of appeal after the circuit court denied his motion for a new trial means we lack jurisdiction to review his juror misconduct claim." Id. at 4.  The court reviewed one rule and one Code section in its discussion.

First, the court stated the general rule: "For this court to exercise jurisdiction, a party must have timely filed a notice of appeal." Id. at 4.  Ark. R. App. P.-Crim. 2 applies here.  While Rule 2(b)(2) states that a notice of appeal filed prior to disposition of a post-trial motion is treated as being filed the day after an order disposing of that motion, that language does not confer jurisdiction over the post-trial motion's claim.

Instead, Rule 2(b)(2) adds that when a notice of appeal is filed before the resolution of any post-trial motion, the original notice only "appeal[s] the underlying judgment."  To obtain review of a later-resolved post-trial motion, an appealing party must "amend the previously filed notice" within thirty days of that subsequent decision.  And Rule 2(e) allows a party who misses that deadline to file a motion for belated appeal within 18 months.

Cypert, 2025 Ark. 11, at 5.  The Defendant did not file an amended notice of appeal, nor did he seek a belated appeal on this claim.  Without a notice of appeal raising this claim, the court lacked jurisdiction to consider it.

Second, the defendant asserted that Ark. Code Ann. section 16-91-113 required review of his juror misconduct claim.  But the court did not read that section as conferring jurisdiction: "Far from providing jurisdiction, that provision governs issue presentation and preservation in cases where a notice of appeal has been timely filed." Cypert, 2025 Ark. 11, at 6.

The defendant further argued that the juror misconduct was so egregious that he was effectively denied a trial - the extraordinary nature of this claim justified the court taking jurisdiction.  The court disagreed, noting that the defendant wasn't entirely deprived of a jury trial and that he could've remedied this problem with a belated appeal.

Cypert is worth reading to understand the jurisdictional nature of notices of appeal; the other arguments discussed are also enlightening.  And let me repeat this: I offer no criticism of appellate counsel here.

Turning to the Court of Appeals, Petties v. State, 2025 Ark. App. 112, considered the third of the mythical Wicks exceptions.  The defendant argued the trial court had a duty to intervene when his own attorney admitted the defendant's guilt in his opening statement; he claimed this was a violation of Ark. Const. art. 2, section 10, but he made no objection to the statement at trial.  The defendant argued that the third Wicks exception allowed review anyway - this exception to the contemporaneous objection rule allows appellate consideration when the trial court had a duty to intervene to correct a serious error.

The Petties panel disagreed.  This exception applies to errors affecting the criminal trial's very structure, such as trial by jury, presumption of innocence, and the State's burden of proof.  Distinguishing other cases, the court noted no indication that the defendant disagreed with his trial counsel's strategy; trial counsel testified that he consulted with the defendant about it beforehand, and implied that the defendant agreed.  In this context, the court declined to extend the third Wicks exception - this wasn't a structural error.

An extended discussion about final judgments consumes much of WPH, LLC v. Ferstl Consulting, LLC, 2025 Ark. App. 118.  I will try to hit the high points.

Ferstl brought a declaratory judgment action, seeking a declaration of rights under a contract with WPH.  When WPH did not respond following (purported) service of process, the trial court entered a default judgement that declared Ferstl's rights.  Two months later, WPH and Ferstl took action on the same day: WPH moved to set aside the default judgment, and Ferstl petitioned for supplementary relief.  The motion to set aside was denied, so WPH filed a notice of appeal.  At that point, there was no ruling on Ferstl's supplementary relief petition.

The court grappled with Ferstl's argument that both the default judgment and the order denying the motion to set aside lacked finality, in light of the unresolved supplementary relief petition.  Ultimately, based on Ark. R. App. P.-Civ. 2(a)(12), the court found that a statutory provision in the Declaratory Judgment Act, Ark. Code Ann. section 16-111-101, permitted appeal of the trial court's order declaring rights - the default judgment - even if further relief was or could be claimed.  The declaratory judgment was final and appealable when entered.  The court concluded:

Probably, we have jurisdiction to review the order denying the motion to set the judgment aside because the judgment gave Ferstl everything it asked for originally and was therefore final under Rule 2(a)(1).  Probably, any jurisdictional issues the petition presented were for a future court to address if and when it was adjudicated.  But if we are wrong, the orders on appeal were at least a “separable part” of the action that could be appealed under the provision in the Act, incorporated by Rule 2(a)(12), that allows the court to enter an appealable declaration as to some issues presented by a dispute “whether or not further relief is or could be claimed.”  Ark. Code Ann. § 16-111-101.  Bottom line: we have appellate jurisdiction.

WPH, LLC, 2025 Ark. App. 118, at 11-12.

I've omitted a great deal of the discussion.  You really should read this opinion.

There are other cases on the Court of Appeals docket addressing finality, changing the scope of an argument on appeal, and remanding to settle the record.  But this post is long enough.

Thank you for reading.