Opinion highlights for the week of April 20, 2025

This week, the Supreme Court issued three decisions while the Court of Appeals issued twenty-three signed decisions.  As with last week, both courts produced opinions worth noting here.

Gates v. Hudson, 2025 Ark. 48, specifies that summary judgments are reviewed de novo on appeal.  The majority stated: "We review circuit court orders granting summary judgment de novo, viewing the evidence in the light 'most favorable' to" the party against whom summary judgment was granted. Id. at 5.  The majority appended this commentary in a footnote:

An aside about the standard of review.  This court has long reviewed summary judgment orders "de novo."  That is, we have not given lower court decisions on summary judgment any deference. ...

To be sure, on summary judgment, we view the evidence in the light most favorable to the non-moving party.  But that is not a standard of review; it is the framework that we - and lower courts - use to evaluate summary judgment.  A standard of review describes the level of deference we give a lower court's decision.  And the concurrence does not dispute that we do not give a lower court's summary judgment decision any deference.

Id. at 5 n.1.

One concurrence challenged this statement about the standard of review.  The concurrence quoted what "has been our standard of review for decades" and noted that "'de novo' review of summary judgment appears for the first time in this case." Id. at 16-17.  The concurrence was also troubled because "the parties did not argue for a departure from our standard-of-review language; the majority makes this change sua sponte." Id. at 17.

My thanks to Brett Watson for calling Gates to my attention.

Eastern Equipment v. Bates, 2025 Ark. App. 244, raises a couple of interesting points.  The trial court granted Bates' motion to strike Eastern's answer and denied Eastern's motion for sanctions due to spoliation.  Based on the ruling striking Eastern's answer, it filed an interlocutory appeal as permitted by Ark. R. App. P.-Civ. 2(a)(4).

The Court of Appeals disagreed that Eastern's denied spoliation motion could also be considered on appeal.  The court observed that "[a]n appeal from an interlocutory decision brings up for review only the decision from which the appeal was taken, meaning the issues raised in the appeal must be reasonably related to the order appealed from...." Eastern Equipment, 2025 Ark. App. 244, at 4.  The court could not say that Eastern's motion seeking sanctions for spoliation was related to Eastern's stricken answer.  The court held that it did not have jurisdiction over this aspect of the appeal.

The court also addressed the relationship between a trial court's oral pronouncements and written order.

Generally speaking, a written order controls over oral pronouncements, but that is the case only when there is a conflict or a discrepancy between the oral ruling and the written order.  We routinely rely on a trial court's oral statements from the bench to inform or explain the reasoning behind a written order.

Id. at 7 (citations omitted).  This is useful insight for supporting arguments about the meaning of written orders.

Travis v. State, 2025 Ark. App. 255, involved a revocation of probation.  Travis challenged the trial court's revocation based on her failure to pay fines and fees - but said nothing on appeal about other violations found by the trial court, such as failure to report and committing new crimes.  The Court of Appeals affirmed: "When the circuit court bases its decision on alternate, independent grounds, as it did here, and the appellant challenges only one of those grounds, we will affirm without addressing the merits of any of the grounds." Id. at 5.

Finally, Fitzhugh v. Fitzhugh, 2025 Ark. App. 260, was dismissed due to an untimely notice of appeal.  The trial court entered an order changing custody on October 25, 2023.  Amended orders were subsequently filed on November 8 and 17, 2023.  The Appellant filed a notice of appeal on November 30, 2023, stating that she appealed from these last two amended orders and "all other orders leading up to that Order."

The Court of Appeals rejected the appeal: "Because [Appellant] did not appeal from the October 25, 2023 order, which is the order that first addressed all her issues now on appeal, we dismiss." Id. at 3-4.  Timely filing of a notice of appeal is jurisdictional.  Appellant's "arguments on appeal stem from issues that were first addressed in that" October order.  Her notice of appeal was untimely as to that order, and a subsequent motion to extend the time to file was untimely.

The amended orders did not change those portions of the October order Appellant sought to appeal.  "[W]hen the appeal concerns matters decided in the original order and left unchanged, there must be a notice of appeal from that order, not just the amended order." Id. at 6.  "This court's consideration of these arguments on appeal from the amended orders would effectively permit a party to revive an otherwise untimely appeal by prompting minor but practical modifications." Id. at 6-7.

That's enough.  Have a great weekend!

Opinion highlights for the week of April 13, 2025

 

I count three Arkansas Supreme Court and seventeen signed Arkansas Court of Appeals decisions handed down this week.  Both courts produced opinions worth nothing here.

Standridge v. Fort Smith Public Schools, 2025 Ark. 42, includes a seemingly rare discussion about "direct[ing] the clerk to immediately issue the mandate."  The case involves a student's ability to transfer within a school district - from one public school to another - without being banned from playing sports at the new school for one year.

The student raised statutory and constitutional challenges.  I'll note two points that don't ordinarily concern this blog.  First, the opinion engages in an educational statutory construction discussion - this is worth your time.  Second, even though the majority reversed on the student's statutory claim, it went on to affirm the trial court on the constitutional claims.  This seems contrary to the practice of avoiding constitutional questions if possible. See, e.g., Tollett v. Wilson, 2020 Ark. 326, 608 S.W.3d 602  ("It is our duty to refrain from addressing constitutional issues if or when the case can be disposed of without determining constitutional questions.").

After addressing the merits, the majority directed the clerk to immediately issue the mandate: "Having already been barred from participating [in sports] in the fall - and with the ban lasting only a year - any further delay would severely undermine the relief to which [the student] is entitled." Standridge, 2025 Ark. 42, at 12.  And in response to the dissent, the majority noted that "while we typically expedite mandates in election or execution cases, nothing in the rule prohibits doing so in other cases where, as here, compelling reasons exist. See Ark. Sup. Ct. R. 5-3(b)." Standridge, 2025 Ark. 42, at 12.

The dissenting justices challenged the propriety of immediately issuing the mandate.  Agreeing that the rule doesn't prohibit prompt issuance here, "this is simply not a case in which doing so is appropriate." Id. at 17.  The practice is typically reserved for expedited cases, such as those involving election and execution issues.  The student did not request expedited consideration or immediate mandate issuance. "While this case is no doubt extremely important to the parties, the same can be said for every case this court decides." Id.

The Supreme Court remanded Weatherford v. State, 2025 Ark. 44, to settle and supplement the record.  The court noted its duty to "scrutinize the record for all errors prejudicial to the appellant in cases resulting in life-imprisonment sentences." Id. at 2. The court couldn't do that here: the record was incomplete, missing an audio recording of a law enforcement interview.  Thus, the case was remanded.

Although there are other candidates, let's consider one Court of Appeals case, Miller v. State, 2025 Ark. App. 229.  One of Miller's arguments on appeal challenged comments made by the State during voir dire implicating Miller's privilege against self-incrimination.  He argued that the trial court should have granted a mistrial even though he did not move for one.

The Court of Appeals first noted that Miller's attorney "objected, made his argument, and was given what he requested" - a cautionary instruction. Id. at 8.  The attorney did not move for a mistrial.  In light of these facts, the court would not consider Miller's mistrial argument on appeal.

Miller argued that under the third of the mythical Wicks exceptions, the court should consider his argument even though he did not request a mistrial.  This exception to Arkansas's objection requirement permits an appellate court to consider errors serious enough to require the trial court to intervene, even without objection.

Miller could cite no case applying this exception in his favor, but there was an Arkansas Supreme Court opinion denying application of Wicks in a situation involving the right against self-incrimination.  Given that Miller received his requested relief, did not move for a mistrial, and the third Wicks exception did not apply, the court found that Miller's point was not preserved for appeal.

Thank you for reading - have a great weekend!

Upcoming Appellate Law Section officers

Following the Arkansas Bar Association's Appellate Law Section meeting on April 3, 2025, the following attorneys will serve as the section's officers: Martha Ayres, Chair; Tory Lewis, Chair-elect; and Frank Arey, Secretary.

There are some very talented appellate practitioners in the Arkansas Bar.  I appreciate the opportunity to associate with them in this way.  My thanks to outgoing Chair Tasha Taylor for the nomination.

Congratulations to Ms. Taylor, too, for a worthwhile CLE program on April 3, 2025.  While I could not attend, I have seen a copy of the materials, and these are outstanding.

Opinion highlights for the week of April 6, 2025

 

The Arkansas Supreme Court decided four cases this week.  The Arkansas Court of Appeals handed down twenty-two signed opinions.  Both courts produced opinions meriting attention here.

In Tilley v. Malvern National Bank, 2025 Ark. 29, Tilley sought to reverse the trial court's award of summary judgment below.  His first argument to the Arkansas Supreme Court complained that, upon remand of an earlier decision, the trial court ignored the Supreme Court's mandate "for a jury trial" when it considered and granted the motion for summary judgment.

MNB argued that Tilley did not develop this argument below, nor did he obtain a ruling from the trial court.  The Supreme Court noted that Tilley devoted the better part of a page to developing this argument before the trial court.  Nor was the Supreme Court concerned about the purported lack of a ruling.

Compliance with the mandate on remand is an issue of subject-matter jurisdiction that can be raised at any time, including for the first time on appeal.  This is an issue of subject-matter jurisdiction because the mandate tells a circuit court, among other things, what it has jurisdiction to consider on remand.  Thus, Tilley has not waived his mandate argument.

 Id. at 4 (footnote omitted).  Although beyond this blog's scope, the subsequent discussion among the justices is instructive.  The majority determined that the trial court did not contravene the mandate; a minority believed that the trial court "violated" the mandate.  This discussion is worth your review.

Turning to the Court of Appeals, in Ross v. State, 2025 Ark. App. 204, the court opined that Ross did not preserve an argument for appeal.  Ross argued that the trial court should have granted his motion to suppress a statement for a number of reasons, including false promises of leniency.  The court did not think this argument was preserved.

When an appellant has raised multiple arguments in his motion to suppress, we will refuse to reach the merits of those arguments that were not specifically ruled on by the circuit court in denying the motion.  Ross did not raise the issue of offers of leniency below; thus, it is not preserved for appeal.

Id. at 7.

An argument changed on appeal was not considered in Sanders v. State, 2025 Ark. App. 205.  On appeal, Sanders argued that the evidence was insufficient to convict him - the evidence did not negate his justification defense.  The court noted that "a party is bound by the nature and scope of the objection and arguments made at trial and may not enlarge or change those grounds on appeal." Id. at 5.  Below, Sanders argued the evidence was insufficient to demonstrate his intent to injure; the court distinguished that argument from his justification argument on appeal, which was not articulated below and thus not preserved for review.

In Buzbee v. Blann Transportation, 2025 Ark. App. 206, a section of the opinion starting on page 14 is entitled "Preservation Issues."  The court disposed of a number of arguments that were "either raised for the first time on appeal or not supported by citation to authority...."  Id. at 14.  By my count there are at least four arguments summarily disposed of here; rather than delve into them, they are noted if you are interested.

If you are still with me, take heart - the last case I'll note is McAllister v. McAllister, 2025 Ark. App. 215.  In this probate case, the trial court vacated a TRO on June 21, 2023; Appellant filed a notice of appeal concerning this order that same day; on October 2, 2023, the trial court entered a "Certification of Final Judgment" that made a number of substantive findings and conclusions; the Appellant did not file a new notice of appeal or amend the earlier notice.

The Court of Appeals concluded that it lacked jurisdiction.  The October 2, 2023, order was a final order, but Appellant didn't file a notice of appeal about this order, so "we have no jurisdiction to hear an appeal from that order." Id. at 6.

The notice of appeal from the order vacating the TRO was of no moment.  TROs are "short-term, stop-gap remed[ies]".  Id. at 6-7.  "The question of whether the TRO should have been vacated in June 2023 is now moot because it has been replaced by an October 2023 final order" addressing the merits.  Id. at 7.  "As a general rule, this court will not review issues that are moot.  To do so would be to render advisory opinions, which this court will not do." Id.

Hopefully the weather will be better this weekend than last - I hope you enjoy it.

Opinion highlights for the week of March 30, 2025

 

The Arkansas Supreme Court handed down two opinions this week; by my count, the Arkansas Court of Appeals handed down twelve signed decisions.  Two of those Court of Appeals fit my rough criteria for noting here.

Tarr v. Arkansas State Board of Nursing, 2025 Ark. App. 195, addresses the proper standard of review in an administrative appeal.  Tarr challenged the Board's suspension of her license, as affirmed by the circuit court.  She claimed lack of notice and an unduly harsh sanction.

Tarr argued for a de novo standard of review, citing Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which held that courts need not defer to agency interpretations of law in cases of ambiguity.  The Court of Appeals rejected this argument.

We disagree that this is the proper standard.  In both Loper and Myers [v. Yamato Kogyo Co., Ltd., 2020 Ark. 136], the issue was whether courts were required to defer to agency interpretations regarding questions of law and statutory ambiguities.  Both opinions stressed, however, that judicial review of agency fact-finding remains deferential.

Tarr, 2025 Ark. App. 195, at 6 (one citation omitted).  The court disagreed that Tarr's appeal involved statutory interpretation - her receipt of notice involved a factual determination.  Thus, Ark. Code Ann. section 25-15-212(h), and a determination whether substantial evidence supports the agency's decision, provide the proper standard of review.

In Daniels v. Lyle, 2025 Ark. App. 197, Daniels brought a medical malpractice claim following the death of his wife.  Among other arguments, the defendants challenged jurisdiction to hear the appeal.  They noted that Daniels did not designate the complete record on appeal; under Ark. R. App. P.-Civ. 3(g), this meant his notice of appeal needed to include a concise statement of points relied upon, but Daniels did not provide that.

The court observed "that the purpose of this rule is to prevent prejudice and afford the appellees an opportunity to require that there be included in the record any matter not designated by the appellant." Daniels, 2025 Ark. App. 197, at 7.  Daniels only raised one point on appeal - this was the only point relied on by the circuit court, and it was fully briefed by the parties. Daniels had also supplemented the record, as ordered, with almost one thousand additional pages of material.  The court thought that was enough: "In this circumstance, we find that the appellees have not been prejudiced, and we proceed to the merits of the appeal." Id. at 8.

Thanks for reading!