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.
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