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.
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