Opinion highlights for the week of October 19, 2025

 

The Arkansas Supreme Court's October 23, 2025, docket did not report any decisions.  The Arkansas Court of Appeals handed down twenty-three opinions on October 22, 2025.  Although there are other candidates, let's look at three of those opinions.

McDonnell v. Estate of Chance, 2025 Ark. App. 488, involved an appeal in a probate case.  The probate court denied McDonnell's claim against the estate with prejudice.  Subsequent to this denial, the probate court approved a final distribution and closed the administration of the estate.  McDonnell filed her notice of appeal a few days after the probate court's final actions.

The Court of Appeals dismissed McDonnell's appeal as moot.  "Our supreme court has held that mootness is a threshold issue that precedes even the issue of subject-matter jurisdiction." Id. at 6.  The court noted that McDonnell had not posted a supersedeas bond and obtained a stay of the probate court's orders, as permitted under Ark. R. App. P.-Civ. 8(c)(1).  Nor did she petition to reopen the estate under Ark. Code Ann. 28-53-119(a)(1) and Ark. R. Civ. P. 60.  Thus, the Court of Appeals found that the appeal was moot - with McDonnell's claim denied and the estate closed, no existing legal controversy remained.  The appeal was dismissed.

The appeal in Smith v. City of El Dorado, 2025 Ark. App. 490, was dismissed for lack of jurisdiction.  Smith's notice of appeal was due "in early March"; he moved for an extension of time in the trial court to file his notice of appeal.  On April 17, the circuit court extended the deadline to May 16.  Smith filed his notice of appeal on May 15.

The Court of Appeals noted that timely filings of a notice of appeal and the record are jurisdictional prerequisites for the court.  Under Ark. R. App. P.-Civ. 4(b)(3), the trial court could extend the thirty-day deadline - but only for fourteen days, not the month-long extension granted here.  The notice of appeal should have been due May 1, under a proper extension; here, it was too late when filed on May 15.

An order terminating parental rights was appealed in Lindsey v. Arkansas Department of Human Services, 2025 Ark. App. 491.  While setting out the standard of review - de novo review of the appellate record - the court issued this warning:

Typically, most of the appellate record is the testimony and evidence at the termination hearing.  It does not include things (for example) that no one asked about at the termination hearing because everyone had heard the evidence in previous hearings.  Although we affirm as to both parents, we advise the Arkansas Department of Human Services (DHS) that affirming grounds for termination was a close call - perhaps necessarily, perhaps not - because the proof it offered on important points was terse, if not conclusory.

Id. at 2 (emphasis added).  The court gave this example in a footnote: "[I]n a case where parental drug use was an issue, we should not have had to scour the record to identify the drug as methamphetamine." Id. at 2 n.1.

Something to keep in mind while assembling the record and drafting that Statement of the Case and Facts.

Thank you for reading!

Opinion highlights for the week of October 12, 2025

 

The Arkansas Supreme Court handed down five opinions on October 16, 2025; the Arkansas Court of Appeals did not issue any opinions this week.  Two Supreme Court decisions are of interest here.

Weatherford v. State, 2025 Ark. 150, involved an appeal of convictions for murder, residential burglary, and theft of property.  Among other claims, Weatherford argued on appeal that the State did not prove all of the residential burglary elements.  Citing Ark. R. Crim. P. 33.1(a), the Supreme Court declined to address this argument because it was not presented to the trial court: "[T]he record demonstrates that Weatherford based his directed-verdict motion on different grounds from those raised on appeal." Weatherford, 2025 Ark. 150, at 10.

Weatherford also argued that no testimony supported a sentencing enhancement for committing murder in front of a child.  Again citing Rule 33.1(a), the Supreme Court declined to address this argument: "[A]lthough Weatherford moved for a directed verdict on the sentence enhancement at the close of the State's case, he did not renew this motion at the close of all the evidence." Weatherford, 2025 Ark. 150, at 13.  Thus, the argument was waived.

Hause v. City of Fayetteville, 2025 Ark. 156, involved an appeal from the denial of a preliminary injunction.  The Supreme Court affirmed the trial court on this point.  Note this language from the majority opinion:

The constitutional questions are disputed, and the law on this issue remains unsettled. We cannot resolve them at this preliminary stage, and the uncertainty does not justify reversing the denial of a preliminary injunction. We reserve judgment until the circuit court addresses the merits, so that any clarification or development of the law can be made on a fully developed record through the normal appellate process.

Id. at 8. A dissent joined by two other judges took the majority to task for not resolving these issues in the instant appeal. 

[T]he majority begins by inventing a new rule that we cannot decide "novel" or "disputed" constitutional or legal questions at the preliminary-injunction stage. ... That's not the law, and I cannot join the majority's newfound approach to reviewing preliminary-injunction decisions.

Id. at 10.

Hause provides another argument against reversing a trial court's preliminary injunction decision, pro or con: the appellate court shouldn't act on the underlying issues until the record is developed.

Thanks for reading! 

 

Readers may recall that I attended the National Legal Aid and Defender Association's 2025 Appellate Defender Training earlier this year in Massachusetts.  Although a bit ideological at times, this was by far the best appellate training I have ever experienced.  The tips for handling criminal appeals are priceless.  As I hoped, some of the lessons are proving useful for my civil appeals, too.

This training will be just next door in Mississippi on January 13-16, 2026.  That's a real opportunity for Arkansas appellate attorneys.  If you are interested in registering, you can follow the site to see when registration opens, here: https://www.nlada.org/adt-2026-save-the-date  And if you want to go, keep up and register soon - these programs fill up fast.

Opinion highlights for the week of October 5, 2025

The Arkansas Court of Appeals issued thirteen opinions on October 8, 2025; the next day, the Arkansas Supreme Court issued two opinions.  Let's look at three of those Court of Appeals decisions.

The Evanses brought an interlocutory appeal in Evans v. O.A.K. Construction, 2025 Ark. App. 474.  They sought to "partially dismiss [the] counterclaim" filed by the defendants.  The trial court's July 18 letter opinion contained some explanation for its decision to deny the motion, but the July 31 order merely referenced "[u]pon examination of the record" for grounds.

The notice of appeal filed by the Evanses appealed from both the letter opinion and the order.  They argued that Ark. R. App. P.-Civ. 2(a)(4) permitted an interlocutory appeal, because the trial court's order had the effect of determining and striking out a statutory defense to the counterclaim.

The Court of Appeals disagreed.  There was no improper fact finding by the trial court, as was the situation in one case cited by the Evanses, nor did the trial court's order strike a pleading.  The order was simply a general denial of a motion to dismiss, and it did not contain a Ark. R. Civ. P. 54(b) certificate.  Thus, the appeal was dismissed for lack of jurisdiction.

Blissitt v. State, 2025 Ark. App. 479, witnessed another attempt to apply the mythical Wicks exceptions.  Blissitt argued that the prosecutor misstated the law of parole eligibility to encourage the jury to impose a stronger sentence.  He admitted not raising this claim before the trial court, but argued the third Wicks exception - concerning the trial court's duty to intervene without an objection to correct serious errors - permitted his argument on appeal.

The Court of Appeals found that the issue was not preserved for review. "The third exception is limited only to those errors affecting the very structure of the criminal trial, such as the fundamental right to a trial by jury, the presumption of innocence, and the State's burden of proof." Id. at 13.  Under Arkansas Supreme Court precedent, a prosecutor's closing argument did not qualify as such an error - it did not affect the very structure of a criminal trial.

Finally, in Marziale v. Brown, 2025 Ark. App. 468, the Court of Appeals applied Ark. R. App. P.-Civ. 3(e)(vi) to find that claims were abandoned and could not be argued on appeal.  After rulings by the trial court, certain official-capacity claims were still pending against one defendant.  However, in their notice of appeal, appellants followed Rule 3(e)(vi) and stated that each of them "abandons any pending but unresolved claim."  The official-capacity claims against this defendant fell within that category; thus, they were abandoned and the Court of Appeals would not consider them on appeal.

Opinion highlights for the week of September 28, 2025

 

Nineteen decisions were handed down by the Arkansas Court of Appeals on October 1, 2025; the Arkansas Supreme Court handed down two decisions the next day.  Let's examine some of those Court of Appeals decisions.

Among other arguments raised in Spencer v. State, 2025 Ark. App. 450, Spencer argued that the trial court admitted certain evidence without proper authentication; she claimed that her assertion that one of the items "hadn't been verified" sufficed to raise this issue at trial.  The Court of Appeals disagreed and found that the issue was not preserved for appeal.  Spencer raised a hearsay objection and another claim about this evidence, but did not argue authentication.  Since this argument was not raised below, the Court of Appeals would not review it on appeal.

In a twenty-one page opinion, the Court of Appeals considered a number of issues in a divorce case, Vallis v. Vallis, 2025 Ark. App. 465.  Among them was the husband's claim that a vehicle was non-marital property.  However, at a hearing the attorneys for both parties "agreed and represented that they thought what the circuit court divided was found to be marital property"; of course, this included the vehicle. Id. at 19.  Although the Court of Appeals seemed to affirm the trial court on another basis, it noted the rule "that an appellant cannot complain on appeal that the circuit court erred if the appellant induced, consented to, or acquiesced in the court's position." Id.

Finally, in Shelter Mutual Insurance Co. v. Velazquez, 2025 Ark. App. 462, Shelter sought to bring an interlocutory appeal on a partial summary judgment ("PSJ") favoring Velazquez.  The Court of Appeals dismissed the appeal for lack of jurisdiction, finding that the PSJ was not a final, appealable order.  The PSJ apparently found that Velasquez was covered by Shelter's uninsured-motorist provision.

Shelter acknowledged that its subsequent appeal was interlocutory in nature.  However, Ark. R. App. P.-Civ. 2(a)(2) - permitting an appeal from an order that effectively determines an action - did not apply, because claims against another party (the car's driver) and the issue of damages remained outstanding.  Rule 2(a)(4) - permitting an appeal from an order that strikes an answer - did not help, because nothing was stricken.  Nor was there an Ark. R. Civ. P. 54(b) certificate.  Thus, dismissal was appropriate.

Enjoy your weekend!

Opinion highlights for the week of September 21, 2025

The Arkansas Supreme Court handed down ten decisions this week; the Arkansas Court of Appeals handed down fourteen.  We'll note some of those decisions here, but since I'm catching up from my absence, their treatment may be abbreviated.

Hudson v. State, 2025 Ark. 129, addressed an argument that "the record could not be settled and remains insufficient" for review.  On remand to settle the record, the trial court - over Hudson's objection - found that the record had been settled.  On appeal, Hudson disagreed and argued that missing interviews prevented the Supreme Court from performing mandatory review of all adverse rulings.

The court set forth the applicable rules:

When there is an omission in the record, we consider whether the reconstructed record permits a full review of the proceedings from which an appeal has been taken. ... We have recognized that, while a verbatim record is certainly ideal, it is not required in every instance; instead, we evaluate whether the supplemental record enables a full and complete appellate review.

Id. at 16.  Here, the supplemented record was sufficient for a full appellate review.  The court explained why that was so in some detail.  Thus, "we can review any adverse rulings" and reversal was not necessary.

Vasquez v. State, 2025 Ark. 134, found an abuse of discretion but held that it constituted harmless error.  The court noted that "an abuse of discretion is established when the circuit court erroneously interprets or incorrectly applies the law." Id. at 9.  The court elaborated on the applicable legal standard:

 

[T]he State is wrong to assume that our deference is tantamount to abdicating our role as a reviewing court.  Judicial discretion means sound discretion guided by law. ... [J]udicial discretion is not arbitrary, nor is it governed by the court's whim or caprice; rather, it is dependent on the settled legal principles applicable to the case. 

The trial court's admission of certain evidence did not comply with the applicable Rules of Evidence, and was thus an abuse of discretion.  But the court subsequently found this to be harmless error.

Turning to the Court of Appeals, Duvall v. State, 2025 Ark. App. 435, notes that generally there is no appeal from a guilty plea.  The court identified three exceptions.  First, Ark. R. Crim. P. 24.3(b) permits entry of a conditional plea of guilty premised on the appeal of a denied suppression motion.  Second, an appeal may permitted if it concerns a posttrial motion challenging the validity and legality of the sentence itself.  And third, an appeal may be permitted of an alleged error that occurred as part of a sentencing proceeding that took place separate and apart from the plea itself.

Finally, Hedrick v. Pope, 2025 Ark. App. 438, considered the effect of a subsequent nunc pro tunc ("NPT") order on a previously filed notice of appeal.  The original "final" order was filed on October 9; the notice of appeal was filed on October 13; and the NPT order was filed on October 26.  No subsequent notice of appeal was filed, but Hedrick sought to appeal from the NPT order, too.

The court observed that "the better practice would have been to file an amended notice of appeal that included the" NPT order. Id. at 1, n.1.  However, since the NPT order did not alter the October 9 order's findings of fact and conclusions of law - the NPT order had a different title and attached certain briefs referenced in both orders, that's all - the court reached the merits.  "[I]n this specific instance, the nunc pro tunc order in no way altered the findings of fact and conclusions of law that were already referenced in the prior order." Id.

Thanks for reading!