Opinion highlights for the week of November 9, 2025

 

The Arkansas Court of Appeals handed down eleven decisions on November 12; the Arkansas Supreme Court handed down five decisions the next day.  We'll look at one decision from each court.

Wood v. State, 2025 Ark. 175, involves a pro se appeal from the denial of a petition to correct an illegal sentence.  The circuit court denied Wood's petition on July 1, 2024.  Wood filed a motion for reconsideration on July 19, 2024; this was denied by the circuit court on August 15, 2024.  Wood then filed a notice of appeal on September 11, 2024.

The State argued that the Supreme Court lacked jurisdiction because Wood did not file his motion for reconsideration within ten days after judgment, as required by Ark. R. App. P.-Civ. (4)(b).  The Supreme Court rejected this argument.

However, the time for filing posttrial motions in criminal cases is not limited to ten days.  Rather, in a criminal case, a posttrial motion for reconsideration may be filed within thirty days of the circuit court's order, and the time to file a notice of appeal is consequently extended to an additional thirty days from the date the posttrial motion has been denied.

Id. at 2.  The court cited Ark. R. Crim. P. 33.3 and Ark. R. App. P.-Crim. 2(b)(1) in support, and observed that "[t]hese two criminal-procedure rules have been generally applied in postconviction appellate proceedings when the circuit court rules on the reconsideration motion." Wood, 2025 Ark. 175, at 2.  Thus, given the timing of Wood's filings, the court had jurisdiction to consider his appeal.

 Snyder v. State, 2025 Ark. App. 539, addressed a number of issues; one was an argument that the trial court erred by denying a motion for a new trial.  The Court of Appeals found that Snyder's argument on this point was not preserved.

 

 An issue must be presented to the circuit court at the earliest opportunity to preserve it for appeal.  An objection made for the first time in a motion for new trial is untimely, and a motion for new trial cannot be used as an avenue to raise new allegations of error that have not been raised and preserved at trial.  Here, Smith’s allegations of Brady violations are based on Young’s and Officer Kelsey’s trial testimony. However, Smith did not object at trial, and he cannot use a motion for new trial to raise the issues.

Id. at 9-10 (citations omitted).

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Opinion highlights for the week of November 2, 2025

 

In terms of opinions released, this was a slower week for our appellate courts.  The Arkansas Supreme Court handed down one decision, while the Arkansas Court of Appeals handed down twelve.  A couple of those Court of Appeals decisions are worth noting here.

Richardson v. State, 2025 Ark. App. 527, involved an appeal from a trial court's decision to extend Richardson's probation.  One of his arguments was that the trial court abused its discretion by failing to explain the basis for its decision.  Among other reasons given for not reaching this argument, the Court of Appeals noted a lack of authority for the argument:

Richardson fails to cite any authority (case law, statute, or court rule) to support his contention. ... [H]e fails to present persuasive authority to support his argument. ... We do not research or develop an appellant's argument for him.

Id. at 5.

Note how the court illustrated "authority" - by reference to "case law, statute, or court rule" but not to anything else.  That list omits authoritative treatises, commentaries to model codes such as the UCC or the Model Penal Code, annotations, and so on.  That list is also consistent with a UALR Bowen law review article's conclusion that our appellate courts do not generally rely upon secondary authority; that article is cited and summarized here: https://areylaw.blogspot.com/2024/10/useful-articles-michael-beaird.html

If all I have is secondary authority, I'll use it.  But Richardson is at least a reminder that the preference is for "case law, statute, or court rule."

Jones v. MNLRN, LLC, 2025 Ark. App. 537, contains this footnote addressing denials of summary judgment:

9 Under this point, Jones observes that in the trial court’s order denying the parties’ cross-motions for summary judgment, the trial court had found that the relevant documents were ambiguous. However, the denial of a summary-judgment motion is not an appealable order and is not subject to review on appeal, even after a trial on the merits.  We review the final judgment, which is tested upon the record as it existed at the time it is rendered.

 

Id. at 17 n. 9 (citations omitted).  Not only are denials of summary judgment not appealable orders or reviewable on appeal, but any trial court findings upon denial should be handled with caution.

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Opinion highlights for the week of October 26, 2025

 

By my count the Arkansas Supreme Court handed down seven opinions on October 30, 2025.  The day before, the Arkansas Court of Appeals handed down twenty-three opinions.  Several of these decisions are candidates for mention here, but two - one from each court - really merit your attention.

Evans v. Harrison, 2025 Ark. 164, reversed a trial court's order requiring a county clerk to certify a local ballot initiative.  The court held that the Arkansas Constitution required this result - the timing of the ballot initiative's filing didn't meet the constitutional time limits.  How the court got to this issue makes this case interesting to appellate lawyers.

The majority noted that the parties focused on other issues in their initial briefing.  The court "ordered two rounds of supplemental briefing, eventually asking the parties to address a problem that the record revealed in this case: whether a circuit court can require a county clerk to certify a local ballot initiative when the proponent failed to timely file it." Id. at 3.

Responding to the dissent's criticism, the majority contended that it was "at most supplementing the contentions of counsel." Id. at 8.  Both parties had opportunities to argue the issue raised by the court.  Even if that had not happened, the majority believed it still acted correctly to address this issue not originally raised by the parties:

It should go without saying, but "[w]e took an oath to uphold the Arkansas Constitution, not the Arkansas Reports."  When the record reveals such an apparent violation of our constitution - a violation that affects every single Arkansan anytime there is an election for a local initiative - we are perfectly within our right to address it.

 Id. at 8-9.  The court added in a footnote: "To turn a blind eye to such a glaring constitutional violation in this specific case would be a dereliction of our duty." Id. at 9 n.30.

The three-justice dissent observed that "[t]he majority raises legal issues on its own" and that "[a] fundamental proposition of appellate procedure is that the parties raise the issues and the court decides them." Id. at 10, 11.  It also noted that "[w]e will not reverse a circuit court based on an argument raised for the first time on appeal." Id. at 12.  The dissent questioned the status of these rules going forward.

Moving forward, where do all these doctrines stand? Will the court now reach constitutional issues raised for the first time on appeal? What about in criminal appeals? Do we still follow preservation principles? Certainly, a criminal defendant facing life in prison would like for us to address potential constitutional defects. The court, or members of the majority, can now raise issues sua sponte for parties. It is imperative that the court treat all litigants the same. ...

Id. at 14. 

There you have it: a potential exception permitting plain error review of "glaring constitutional violation[s]" even if they weren't raised and ruled on below.  The majority's reference to this "specific" case, and the language in footnote 26, may be attempts to limit the scope of this ruling.

Turning to the Court of Appeals, in McCain Mall v. Nick's Bar Louie, 2025 Ark. App. 505, the court expressed concern about a case reviewed and remanded by the Arkansas Supreme Court.  In an earlier opinion, the Court of Appeals dismissed McCain Mall's appeal brought under Ark. R. App. P. - Civ. 2(a)(1) for lack of finality - some matters remained outstanding below.  McCain Mall did not invoke Rule 2(a)(2).

McCain Mall successfully obtained review by the Arkansas Supreme Court.  McCain Mall cited Ark. R. App. P.-Civ. 2(a)(2) as a basis for jurisdiction, even though that wasn't the provision McCain Mall cited previously.  Apparently without explanation, the Arkansas Supreme Court also cited Rule 2(a)(2), vacated the Court of Appeals' earlier decision, and remanded the case.

Members of the Court of Appeals were taken aback.  The majority noted that "[t]he supreme court's docket order appears to signal a sea change in our finality jurisprudence." McCain Mall, 2025 Ark. App. 505, at 2.  A concurrence went further.

 

I would anticipate well-read and enterprising appellate attorneys will use this precedent to circumvent and avoid lack-of-finality holdings in the future.  Going forward, if an order is not final and appealable under the usual standard of Arkansas Rule of Appellate Procedure-Civil 2(a)(1), a party can avoid a dismissal if the order has the effect of determining or discontinuing the action under Rule 2(a)(2).

Id. at 8-9.  The concurrence predicted this result:

Therefore, in the future, I would anticipate that appellate attorneys will predicate the jurisdiction of their appeals under either Rule 2(a)(1) or Rule 2(a)(2).  Why not?  That will require this court to analyze a circuit court's order not only to determine whether it is final but it will also require this court to analyze whether the order has the effect of determining or discontinuing the action, whatever that means.

Id. at 9. 

There is an interesting common thread here: in both of these cases, the Arkansas Supreme Court was willing to consider matters raised for the first time in that court, and not before lower courts.

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