Programming note

I will be out of the office until the week of October 6, 2025.  Opinion highlights will resume at that time.

Opinion highlights for the week of September 14, 2025

This post leads with another point of personal privilege: my youngest daughter, Maddie (on the left) passed the bar exam earlier this month.  We asked Justice Courtney Hudson of the Arkansas Supreme Court (on the right) to swear her in early.  She very graciously did so on September 17th - it was a very memorable occasion.  

There's a bit of a back story.  Maddie met Justice Hudson when Maddie was four years old - because when I served on the Court of Appeals from 1997-98, I hired Justice Hudson, recently graduated, to be one of my law clerks.  And here we are, twenty-eight years later.

Justice Hudson gave Maddie a tour of the building, which we all enjoyed.  Here she is with an obviously younger picture of her father.

On to the opinions.  The Supreme Court did not release any opinions this week; the Court of Appeals handed down nine opinions.  Let's consider a couple of those decisions.

Dunklin v. Chatham, 2025 Ark. App. 427, involved a post-divorce dispute over the mother's access to her minor child.  She filed motions for reunification counseling and for the trial court's recusal.  The former motion was denied in a March 8, 2024, order; the latter motion was denied on April 11, 2024.  Ultimately, the trial court dismissed with prejudice all pending motions at the mother's request on April 23, 2024.

The mother appealed that April 23, 2024, order and "all interlocutory orders entered prior to the final order."  The father moved to dismiss her appeal for two reasons.  First, he argued that the mother invited error when she sought dismissal of her pending motions with prejudice.  Second, he noted that she did not designate the earlier two orders in her notice of appeal, and they did not qualify as intermediate orders under Ark. R. App. P.-Civ. 2(b).

The court declined to dismiss the appeal.  The father's motion "is supported only by a blanket statement and reference to Rule 2(b) without any convincing argument as to why the orders are not intermediate orders that involve the merits and affect the final order." Dunklin, 2025 Ark. App. 427, at 9.  Further, the two earlier orders were not appealable, and the court could not say that these orders did not affect the final order.

Rothwell v. Rothwell, 2025 Ark. App. 431, involved a contentious divorce and property division.  The trial court credited the wife for a payment the husband made to his attorney.  The husband failed to object to this in a posttrial motion, but did on appeal.  The court concluded that this argument was not preserved for appeal.

Although a party is not required to file a posttrial motion to preserve error, a party who files such a motion and fails to include an argument that could be addressed by the circuit court has not raised the issue at the earliest opportunity and therefore has waived the issue.

Rothwell, 2025 Ark. App. 431, at 26.

Thanks for reading, including the point of personal privilege.

Opinion highlights for the week of September 7, 2025

 

That picture is meant to acknowledge my classmate, Magistrate Judge Barry Bryant, who retires from Federal service this month.  You always want to see good people appointed to these positions, and Judge Bryant is one of the best.  Congratulations on a remarkable career, Judge, and Godspeed in your retirement.

The Arkansas Supreme Court handed down two opinions this week; the Arkansas Court of Appeals handed down fourteen.  There are a handful of candidates for consideration here, but let's limit ourselves to three of those decisions.

Clevenger v. State, 2025 Ark. 128, involved an appeal of a first degree murder conviction.  Among other arguments, Clevenger objected to the testimony of two witnesses, claiming a violation of Ark. R. Crim. P. 17.1.  But because his objection "came the following day - not contemporaneously" his objection was not preserved for appeal, nor did his prior written discovery motions and oral argument preserve this point.  His objection to an expert witness failed for similar reasons: he did not object contemporaneously, but did so for the first time on appeal, and an earlier objection to the introduction of photographs did not preserve this issue.

Hargrove v. Union Pacific Railroad Co., 2025 Ark. App. 415, provides a rare example of an abuse of discretion argument that worked.  When Hargrove's counsel failed to timely respond to a status report demand the trial court dismissed his complaint.  Hargrove's counsel moved to vacate the dismissal, noting that the trial court's demand diverted to his junk email folder, and two medical matters prevented his periodic review of that folder.  In addition, the dismissal would effectively be with prejudice since the statute of limitations had run.

The trial court did not relent, so Hargrove appealed.  The Court of Appeals noted that Rule 41(b) dismissals are reviewed for abuse of discretion.

The standard is a deferential one. An "abuse" requires an erroneous ruling made improvidently, thoughtlessly, or without due consideration. ...

Though not a common occurrence, we have one here, in the end, all things considered.

Hargrove, 2025 Ark. App. 415, at 4. Specifically, the court did not think the initial Rule 41(b) dismissal was an abuse of discretion - but when the trial court denied the Rule 60(b) motion to vacate, that was an abuse of discretion.  "Good cause" was shown for the tardy response to the status report, and "a miscarriage of justice resulted from the [trial] court's decision to stand on its order, all things considered." Hargrove, 2025 Ark. App. 415, at 5.

Six judges voted for that result; three judges dissented.  Hargrove helps to define what abuse of discretion means.

In Mack v. Mack, 2025 Ark. App. 421, the Court of Appeals determined that failure to develop an argument below meant it was procedurally barred.  One party moved to set aside a judgment; the other party moved to dismiss, and the trial court asked the first party to explain why he was asking to relitigate an issue.  The first party never mentioned or developed any argument regarding Rule 60(c)(4), nor did he proffer any testimony.

[C]onclusory assertions and general statements do not rise to the level of developed argument to preserve an issue for appellate review.  Thus, because [the first party] failed to develop his argument below, it now is procedurally barred.

Mack, 2025 Ark. App. 421, at 24.

That is enough for a Friday afternoon.  Thanks for reading. 

Opinion highlights for the week of August 31, 2025

 

The Arkansas Court of Appeals handed down eight decisions on Wednesday.  The Arkansas Supreme Court's docket on Thursday noted the disposition of various petitions and motions, and noted cases and motions submitted - but no decisions on the merits.

One of those Court of Appeals decisions is worth noting here, Wheeler v. State, 2025 Ark. App. 407.  In challenging his conviction, Wheeler made an argument "under double-jeopardy principles" that he could not be convicted on two separate charges for the same incident.  Thus, he argued, the evidence was insufficient on the second of the two convictions, and it should be reversed and dismissed.

The Court of Appeals rejected this argument as "not preserved for review because it was not timely raised below." Id. at 11.  "[A] defendant cannot object to a double-jeopardy violation on the basis of overlapping charges in the same prosecution until he has actually been convicted of multiple offenses, and if he fails to object after being convicted, his double-jeopardy argument is waived." Id. at 12.  Wheeler did not make this argument after his convictions, therefore, it was waived.

Thank you for reading.