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.
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