I count five Arkansas Supreme Court opinions and sixteen signed Arkansas Court of Appeals opinions handed down this week; a concurrence and dissent from the denial of a petition for review to the Supreme Court are also noteworthy. Let's highlight three cases.
The underlying dispute in Griffin v. Arkansas Board of Corrections, 2025 Ark. 81, is interesting in its own right, but we'll focus on the appellate jurisdiction question. The trial court dismissed the Attorney General's ("AG") complaint without prejudice. The AG appealed that dismissal. The Board moved to dismiss the appeal, arguing that since it was denied without prejudice, it could be refiled, and thus the trial court's order was not a final, appealable order.
The court first noted the general rule: "[W]hen a complaint has been dismissed without prejudice, a party may either appeal the dismissal or elect to plead further." Id. at 4. If a party chooses to appeal and the lower court is affirmed, then the dismissal converts to one with prejudice.
There are exceptions to this rule. If a party voluntarily dismisses one of multiple claims in order to appeal the remaining claim(s), that will not be a final order. The court gave other examples of exceptions, including a defendant's appeal from an order granting a plaintiff's motion for nonsuit or the nonsuit of a compulsory counterclaim - these orders are not final, because of the potential for refiling.
Here, the general rule applied to the AG's dismissal and appeal. The trial court's order covered all of the AG's claims; nonsuits and counterclaims were not an issue. Thus, jurisdiction vested in the court to consider the appeal.
The denial of a petition for review sparked a concurrence and dissent in Crain, et al. v. Crain, et al., 2025 Ark. 86. One justice authored a dissent, joined by another justice, that cited a number of cases from other states (and from Arkansas, too). Yet another justice wrote a concurrence, noting that she did "not share the dissenting justice's penchant for relying on cases from foreign jurisdictions...."
This is likely of no moment, but there apparently are differing views on the use of other states' caselaw. There is a law review article discussing the use of such authority (and other authorities) by our appellate courts; you can find a cite to that article here: https://areylaw.blogspot.com/search/label/Articles%20-%20Arkansas%20appeals
Turning to the Court of Appeals, Burtrain v. State, 2025 Ark. App. 323, provides a lesson in presenting and supporting one's arguments. Burtrain objected to a witness's statement; the trial court admonished the witness; but Burtrain did not request a mistrial. Failure to request a mistrial precluded review of that issue on appeal.
Burtrain attempted to justify review, but his argument was unavailing.
Recognizing that he did not request further relief, Burtrain now argues that the error was so serious that the circuit court should have acted on its own initiative to declare a mistrial. Burtrain is apparently referring to the third Wicks exception to the contemporaneous-objection rule that applies when the error is so flagrant and so highly prejudicial in character as to make it the duty of the court to intervene on its own motion. However, Burtrain does not cite Wicks... or discuss its exceptions to the contemporaneous-objection rule and provides no convincing authority for the assertion that the court should have acted on its own initiative to declare a mistrial. Accordingly, we hold that the circuit court did not err in failing to grant a mistrial sua sponte in the absence of a request by Burtrain.
Id. at 10 (citations omitted).
There are a couple of other Court of Appeals decisions we could discuss, but they present fairly common problems, and I'm ready to start my long weekend. Thanks for reading - comments are welcome.
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