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.