Eighth Circuit Judicial Conference, July 14 - 16, 2027

 

Although about a year away, if you handle federal appeals - or just want an excuse to visit Davenport, Iowa - this might need to be on your calendar.

Opinion highlights for the week of May 17, 2026 - part two

 

This post addresses the remaining cases on the Arkansas Court of Appeals' May 20, 2026, docket not covered in my July 9, 2026, post.  Three decisions are noted here.

Muruaga-Atkins v. Foster, 2026 Ark. App. 336, involves a dispute over listing real property for sale and over membership in the organization seeking to effect the sale.  Among other arguments, the appellants challenged the organization's authority to sell the property.

The Court of Appeals declined to address this point on ripeness grounds.  Ripeness is a jurisdictional issue - the court lacks jurisdiction to consider issues that are not ripe for review on appeal. Id. at 19.  At this point, the organization had only voted to list the property for sale - it had not yet been listed, nor had an offer to purchase been accepted.  This situation was not reviewable.

Thus, the issue is not ripe for our review. Moreover, at this juncture and without knowing the specifics surrounding the ultimate sale of the property, any determination as to the authority of AFF to sell the property at issue would constitute an advisory opinion. This court will not render an advisory opinion.

Id. at 19-20.

One of the issues in Summers v. Bank OZK, 2026 Ark. App. 352, involved the effectiveness of a Rule 54(b) certificate.  A non-final order was entered by the trial court in June of 2022; some fifteen months later, in September of 2023, a Rule 54(b) certificate was filed separately.

The Court of Appeals noted Ark. R. Civ. P. 54(b)(1)'s requirement that a Rule 54(b) certificate "shall appear immediately after the court's signature on the judgment."  Here, the certificate was a standalone document initially filed fifteen months after the order.

Later in September of 2023, the trial court granted a motion to combine the order and certificate.  The majority found that this did not cure the jurisdictional defect.

While the order purports to cure the defective Rule 54(b) certificate—it being a separate document from the judgment—it is insufficient. The after-the-fact order consolidating the pleadings does not trump the statutory requirement that the Rule 54(b) certificate be placed on the judgment itself immediately following the court’s signature. Here, it is a complete standalone document with its own case caption. Further, the record demonstrates that although the two pleadings were refiled together as instructed by the court, there were no changes to the documents themselves. 

Summers, 2026 Ark. App. 352, at 14.  The court found that this "combined order" Rule 54(b) certificate did not comply with the rules, and therefore the court lacked jurisdiction to consider the combined order on appeal.

A dissent argued that the combined order could be addressed on appeal - the certificate did not standalone, but it was part of a single combined document and it appears after the trial court's signature on the order.

Readers may recall that the Arkansas Supreme Court is considering changes to Rule 54(b) that will address this issue.  The relevant per curiam opinion is at 2026 Ark. 111.

Finally, Harding Logistics v. Director, 2026 Ark. App. 355, was dismissed for lack of jurisdiction.  The petition for review from a Board of Review decision was signed by the president of the employer company, but he was not an attorney.  The act of someone not licensed to practice law, in an attempt to represent others, is a nullity.  The petition seeking review was null and void, leaving the court without jurisdiction.

Enjoy your day.

Opinion highlights for the week of May 17, 2026 - part one

 

An earlier post noted that the Arkansas Court of Appeals handed down forty-five decisions on May 20, 2026.  Having reviewed decisions authored by six judges, I will note four of those decisions here.  A subsequent post will highlight decisions authored by the other six judges.

These four cases involve fairly common appellate practice issues, but they provide worthwhile reminders.

Finney v. State, 2026 Ark. App. 308, involves a probation revocation appeal.  Finney argued that the State did not prove that he inexcusably violated his probationary terms and conditions.  However, the trial court revoked his probation on multiple grounds, and Finney failed to challenge at least one of them on appeal.  The Court of Appeals affirmed, applying the rule that "[w]hen the circuit court bases its decision to revoke on multiple independent grounds, and the appellant fails to challenge any independent alternative basis for the judgment, we will affirm without addressing the arguments targeted to the other grounds." Id. at 3.

Hernandez v. State, 2026 Ark. App. 315 also involves probation revocation.  Counsel for Hernandez filed an Anders brief, but the Court of Appeals ordered rebriefing.  Hernandez provides a good review of Anders' requirements and illustrates its application, but I want to note this line from the Hernandez opinion: "We will continue to order rebriefing until compliance with Anders and Rule 4- 3(b)(1) is achieved." Hernandez, 2026 Ark. App. 315, at 3.

Goodnight v. Arkansas Department of Human Services, 2026 Ark. App. 316, is a child custody appeal.  The Court of Appeals listed seven arguments raised by Goodnight, but declined to address any of them.

As the Department explains, Kristen does not support any of the above arguments with citations to any legal authority. “We do not consider arguments without convincing argument or citation to authority where it is not apparent without further research that the arguments are well-taken.”

Id. at 9 (citation omitted).  The Court of Appeals did consider a "best interest" argument.

Finally, McDaniel v. State, 2026 Ark. App. 327, addresses an appeal from a second-degree sexual assault conviction.  The Court of Appeals offered a cautionary note about McDaniel's statement of the case and the facts, but "all appellate counsel" are encouraged to pay attention here:

Were it not for the State’s thorough supplemental statement of the case and facts, we would not reach the merits of this appeal without first requiring that the case be rebriefed. Appellant’s statement of the case and facts is woefully deficient, providing only an overview of the case’s procedural path to trial, a brief description of the portion of the trial testimony and the instruction to which McDaniel objected, and references to his motions for directed verdict. The statement of the case does not provide any substantive testimony or evidence, which is especially troubling when considering that the transcript is over one thousand pages long and McDaniel challenges the sufficiency of the evidence to support his conviction.

Arkansas Supreme Court Rule 4-2 directs counsel on the required contents of appellate briefs: the statement of the case and facts shall include all information in the appellate record that is essential to understand the case and decide the issues on appeal. Ark. R. Sup. Ct. R. 4-2(6). The requirements of Rule 4-2 are mandatory. McDaniel’s counsel is not alone in failing to provide an adequate statement of the case. This is a frequent occurrence and merits all appellate counsel’s review of Rule 4-2 and adherence thereto.

McDaniel, 2026 Ark. App. 327, at 2 n.1 (citation omitted).

Thank you for reading. 

Summer Break 2026 - part two

 

Summer break rolls on.  Last week, the Arkansas Supreme Court did not post a syllabus.  The Arkansas Court of Appeals did post a syllabus on Wednesday, July 1, 2026.  Sixteen pages in length, that syllabus lists orders disposing of the matters submitted the week before - there are no opinions to note.

The Court of Appeals' syllabus documents the filing of an amicus brief that is interesting.  Filed by the American Society for the Prevention of Cruelty to Animals in Roark v. Hyland, CV-25-540, the brief does a good job setting forth the Society's policy related to the case and the potential harm from a ruling against the City of Little Rock, all in less than eleven pages of argument.  The only authorities cited are Ark. Sup. Ct. R. 4-6, a book, and three items from the internet.

Thank you for reading.

Summer Break 2026 - part one

 

The Arkansas Supreme Court did not issue a docket this week.

The Arkansas Court of Appeals issued a twelve-page docket on Wednesday, June 24, 2026.  This listed a variety of items submitted for decision: petitions for rehearing, fee petitions, various motions to address problems in the record, motions to substitute or appoint counsel, and so forth.  Typically, there will be a docket next week announcing the Court of Appeals' disposition of each item submitted this week.

There's really nothing else to report, other than that last raft of Court of Appeals decisions I need to review.  Have a great day!

The 128th Annual Meeting of the Arkansas Bar Association

 

The Arkansas Supreme Court's single decision issued yesterday addresses a common preservation issue, and the single per curiam opinion also issued yesterday addressed a matter related to admission to the Bar.  The Arkansas Court of Appeals did not issue a docket this week.  There's nothing to discuss on that front.

The 128th Annual Meeting of the Arkansas Bar Association concluded today.  If you are an Arkansas attorney, you owe it to yourself to attend at least one of these.  I missed this afternoon's session with the former Solicitor General of Oklahoma, but I did attend other programs related to appellate practice.

On June 10, 2026, two Court of Appeals judges and a circuit judge presented "Life after Nalley."  I'm going to paraphrase a few of one appellate judge's comments.  (1) Just like attorneys might struggle with what the Court of Appeals says, that court struggles with what the Arkansas Supreme Court says.  (2) The Court of Appeals is really constrained by the record, arguments of parties, and standards of review.  (3) The court sees problems with the use of inconsistent terms to describe the same matter, such as in custody orders.

His most interesting comment - to me - is that all opinions are circulated to all 12 judges before they are released, not just to the 3 on the panel signing the opinion, so that all 12 judges have the opportunity to offer comments and ask questions about the proposed opinion.

After the Nalley program, Tory H. Lewis presented "Appellate Update: The Latest and Greatest in Family Law Appeals."  Ms. Lewis did an excellent job, but since she focused on substantive family law topics, I won't summarize her presentation here.

Today, June 12, 2026, the Chief Justice of the Arkansas Supreme Court gave the annual State of the Judiciary speech.  She highlighted the traveling court program, JLAP's assistance programs, and the preparation of a manual for pro se appellate litigants.  All of these matters reflect the court's ongoing efforts to retain the public's trust and confidence.

One of the other presenters, Casey Mock, offered highly interesting presentations on technology.  A common concern is the effect of social media, etc., on our ability to think clearly.  This photo captures one of Mr. Mock's points:

All-in-all, a great Annual Meeting.

Have a great weekend.

Rule changes and proposals of interest to appellate lawyers

 

The Arkansas Court of Appeals did not hand down a docket this week.  Summer break is in process for that court.

The Arkansas Supreme Court did hand down one opinion, but it did not contain any appellate practice or procedural issues of interest here.   There were a number of per curiam opinions issued addressing rules changes, adopted and proposed.  Two of these opinions merit notice in this post.

One per curiam opinion, at 2026 Ark. 107, adopted changes to Rules 3(f), 4(a), and 6(b) of the Arkansas Rules of Appellate Procedure - Civil.  Rule 3(f)'s amendment deletes the requirement for service of a notice of appeal or cross-appeal "by any form of mail which requires a signed receipt."  This simply isn't necessary with electronic filing.  Rule 4(a) makes a related change: the time limit for filing a notice of cross-appeal now begins with filing of the notice of appeal, not receipt of it.  Rule 6(b)'s change is similar: the appellee's designation of additional parts of the record on appeal must be made within ten days after filing of the notice of appeal, not its receipt.

A second per curiam, at 2026 Ark. 111, proposes changes to Ark. R. Civ. P. 54(b) and Ark. R. App. P.-Civ. 4(a).  The mere mention of Rule 54(b) should be enough to get your attention.

To put this second per curiam into context, recall the case of Tate v. Phillips County, 2026 Ark. App. 141, summarized here on February 22, 2026.  In Tate, the Court of Appeals dismissed an appeal for lack of jurisdiction due to the improper placement of a Rule 54(b) certificate.  The rule required that the certificate "shall appear immediately after the court's signature on the judgment," but the certificate in Tate was signed and entered as a "stand-alone" document.

The proposed change to Rule 54(b) addresses that issue.  If adopted, the certificate "may be attached to the judgment or filed separately...."  The proposed Reporter's Note states that the trial "[c]ourt and the parties remain free to make it part of the judgment document."

The proposal also provides a method for seeking a certificate after the judgment is entered.  The party seeking a certificate must file a motion within fourteen days after entry of the judgment; if that motion is not granted within thirty days after the motion's filing date, it is deemed denied.  No certificate may be entered more than forty-five days after the judgment or more than thirty days after the motion's filing, whichever is later.

What does that all do to the filing deadline for the notice of appeal?  The proposed change to Rule 4(a) addresses this.  If adopted, a notice of appeal must be filed within thirty days from entry of the judgment appealed or entry of the Rule 54(b) certificate.  The deadline for filing a notice of cross-appeal is also addressed.

You really should read this second per curiam, including the proposed Reporter's Notes.  Comments on the proposal can be made to the Clerk of the Courts until August 1, 2026.

The Arkansas Bar Association's Annual Meeting is next week.  Stay tuned - there may be something to report from there.

Thank you for reading.

Opinion highlights for the week of May 24, 2026

 

Each of our appellate courts handed down one decision this week.  The Arkansas Supreme Court also issued two per curiam orders.  Otherwise, the Arkansas Court of Appeals did not issue any orders resolving motions; neither court's docket listed any motions or cases submitted for decision.

These abbreviated dockets may be because this is a short, holiday week.  Or, they may further signal that summer break is near.

In any event, neither opinion issued this week contains anything of interest to this blog - there are no appellate practice or process tips to ponder.

My intent is to wade through the Court of Appeals decisions issued last week, but that will take a bit.  Check back here next week - maybe we'll know something more about summer break's timing, or have other opinions to note.

Have a great weekend!

Summer break clues - and no invited amicus, yet

 

The Court of Appeals' May 20, 2026, docket offers at least two clues that summer break is near: (1) there are forty-five decisions listed, an unusually high number only seen near the end of a term; and (2) no new cases were submitted for decision.

It will take me a bit to work through these.  If summer break is upon us, please check back here for opinion highlights - surely there's something of interest to this blog in that many decisions.

The Supreme Court did issue a docket yesterday, but no decisions were announced.  Three cases were submitted for decision.  In the past, summer break did not always commence at the same time for our two appellate courts.

Remember my April 7, 2026, post about a request for the Supreme Court to appoint an invited amicus for Sanders v. Arkansas Board of Corrections, CV-25-742?  The argument was that no party wanted to defend the trial court's decision below, so, following United States Supreme Court practice, our Supreme Court should appoint someone to defend that decision.  (See that April 7, 2026, post for more background.)

Yesterday, the Supreme Court remanded the case for the trial court to "consider" a dispositive joint motion.  In that context, the Supreme Court also "dismissed" two motions to appoint an invited amicus.

It is interesting to me that the court did not deny the motions - they were merely dismissed.  What does this mean in terms of the law of the case?  Could an invited amicus be requested at the trial court level upon remand, and again if another appeal ensues?  Stay tuned!

Enjoy your Memorial Day weekend.

Opinion highlights for the week of May 10, 2026

 

The Arkansas Court of Appeals handed down seventeen decisions on May 13, 2026.  The Arkansas Supreme Court did not issue any opinions this week.  We will note a couple of those Court of Appeals decisions in this post.

Hopping v. Scarborough, 2026 Ark. App. 303, involves a child-custody dispute.  One of Hopping's issues on appeal challenged the trial court's award of attorney's fees to Scarborough.  She asked the Court of Appeals to "require a reviewable basis" for the award and to overturn Tiner v. Tiner, 2012 Ark. App. 483, 422 S.W.3d 178.  In making its award, the trial court considered the fee petition and its attachments, Hopping's response, and the factors set forth in Chrisco as modified for domestic relations cases.

The majority agreed with Hopping, remanded the case, and overruled Tiner.  "[E]very decision awarding fees in a domestic-relations case, regardless of the basis on which the court is authorized to award it, should provide this court with findings sufficient to enable it to complete a meaningful review of the fee award." Hopping, 2026 Ark. App. 303, at 10.  In the majority's view, the trial court explained the basis for its award in a "conclusory" fashion.

Simply put, the court’s order does not provide this court with any reasoning on which the court’s fee award can be effectively evaluated. ... There very well may be a rational basis to support the court’s conclusion, but without any explanation from the circuit court as to its reasoning behind the award of fees, we are unable to properly perform our appellate function of evaluating whether the court’s award constituted an abuse of discretion. Consequently, in light of the record before us, we must reverse.

Id. at 13.  The case was reversed and remanded for reconsideration of the fee award, and, to the extent it conflicted with the majority's opinion, the Court of Appeals overruled Tiner.

A dissent contended that the trial court followed precedent in making its fee award.  It also argued that the majority substituted its judgment for that of the trial court.

This issue is an interesting basis for bringing an appeal - did the trial court adequately explain its reasoning, so that the appellate court can perform its function of meaningfully reviewing the trial court's decision?  Both opinions in Hopping - the majority and dissent - are worth your time.

Greenwood v. Greenwood, 2026 Ark. App. 306, involved an appeal from an order of protection.  The Court of Appeals dismissed in part for lack of a final order.  While orders of protection entered under Ark. Code Ann. section 9-15-205 can be appealed as final orders, the order of protection involved here contemplated further action - child support was to be determined in a supplemental order, which was not in the record.

Therefore, because the order of protection contemplates further judicial action and there is no certificate complying with Arkansas Rule of Civil Procedure 54(b), we must dismiss the appeal in part regarding the order of protection... without prejudice for lack of a final order.

Greenwood, 2026 Ark. App. 306, at 18-19.

Thank you for reading. 

Opinion highlights for the week of May 3, 2026

 

On May 6, 2026, the Court of Appeals announced fifteen decisions.  One day later, the Arkansas Supreme Court announced two decisions.  We'll note two of those Court of Appeals decisions.

In Arkansas Department of Human Services v. Rawls, 2026 Ark. App. 284, ADHS appealed a trial court order remanding a case back to an office of ADHS for a hearing and the presentation of evidence.  The Court of Appeals dismissed this appeal for lack of a final, appealable order.

"A circuit court’s order of remand to an administrative agency for further proceedings is not a final, appealable order... if it directs the agency to complete a step that is a predicate to the circuit court’s ultimate decision." Id. at 6 (citations omitted).  A remand order might be final if it involves a ruling on the merits, but that was not the case here.  The trial court's order did not decide the parties' rights - it contemplated further action.

In McChristian v. State, 2026 Ark. App. 288, McChristian argued for reversal based on an evidentiary issue, but he requested a mistrial at trial - so the Court of Appeals applied the demanding standard of review for mistrial arguments.  The court found that the denial of the mistrial motion was not an abuse of discretion.

McChristian also argued that testimony of his bad act was incredulous, because he was incarcerated at the time he was alleged to have acted.  The Court of Appeals decided that this argument was not preserved.

On appeal, McChristian asserts that he was in prison during much of the time [the victim] testified that he sexually abused her. However, during the pretrial argument on the admissibility of [her] testimony, McChristian simply informed the trial court that the assaults could not have occurred because he “was not in Little Rock or North Little Rock at the time of the assaults”; he never informed the trial court that he was incarcerated during the times [she] alleged she was assaulted by him. Parties are bound by the scope and nature of the objections and arguments presented at trial.

Id. at 5.  The Court of Appeals determined that this argument was not preserved for review.

Thank you for reading. 

Opinion highlights for the week of April 26, 2026

 

By my count, the Arkansas Court of Appeals handed down nineteen decisions on Wednesday, April 29, 2026; the Arkansas Supreme Court handed down five the next day.  We'll note a couple of those Supreme Court decisions here, although there are other candidates among the Court of Appeals' decisions.

Norris v. Independence County, 2026 Ark. 91, made the news.  In 2025, the Arkansas General Assembly adopted Act 975, which attempted to place original jurisdiction over constitutional challenges to legislation in the Court of Appeals.  In Norris, the trial court dismissed a constitutional challenge to an Arkansas Code provision based on Act 975.  Norris appealed that dismissal, arguing that Act 975 itself is unconstitutional.

The Supreme Court agreed with Norris.  It found that Ark. Const. amend. 80, section 5, excluded original jurisdiction when it expressly granted appellate jurisdiction - alone - to the Court of Appeals.  Similarly, section 6(A) of that amendment granted original jurisdiction to circuit courts.  Act 975 could not vary those constitutional provisions by removing original jurisdiction from the circuit courts and conferring it on the Court of Appeals.

Happily, the Court of Appeals can now return to being a court of (only) appellate jurisdiction.

State v. Ramirez, 2026 Ark. 92, included a discussion about the State's ability to appeal under Ark. R. App. P.-Crim. 3.  An earlier prosecution against Ramirez was nolle prossed on the condition that he successfully enlist in the Marines.  That did not happen, and after Ramirez was involved in another shooting a few months later, the State attempted to reinstate the original prosecution.  The trial court granted Ramirez's motion to dismiss, and the State appealed.

The majority noted the rule's language authorizing the State to appeal when necessary to maintain "the correct and uniform administration of the criminal law."  This language permits an appeal when the appellate holding would establish important precedent or when the case involves a legal issue with widespread ramifications.

The majority concluded that this appeal met those standards: "It presents a novel question about what law governs an agreement to nolle pros pending charges and the circumstances under which the State may continue to pursue charges." Ramirez, 2026 Ark. 92, at 4.  This issue was likely to arise again.

Consequently, we conclude that this appeal has widespread ramifications, that our review is necessary to maintain uniformity, and that this is precisely the kind of appeal that Rule 3 gives us the flexibility to hear. We grant the State’s appeal.

Id.  The majority proceeded to the merits.

Thank you for reading.

A request for additional funds to pay appointed attorneys

 

The 95th Arkansas General Assembly is nearing completion of its 2026 fiscal session.  One of the matters under consideration is contained in an April 1, 2026, letter from the Arkansas Court of Appeals requesting $30,000 in additional funds "to supplement its current $360,000 legal-counsel appropriation."

These funds are "used to award modest attorney's fees to attorneys appointed to represent indigent appellants in direct criminal appeals...."  The Court of Appeals noted a "substantial increase" in the number of fee awards this fiscal year.

Thus far in fiscal year 2026, the court of appeals has awarded attorney's fees 132 times totaling $289,109.75.  By comparison, the court had awarded fees 96 times totaling $225,054.71 on April 1, 2025.

The Court of Appeals anticipates that its criminal caseload will remain "steady and heavy."  These additional funds are requested to ensure fee payments through the current fiscal year; the next fiscal year starts on July 1, 2026.

Those numbers are revealing, in terms of fee payments for these appointments.  There was an average fee payment of $2,344.32 in fiscal year 2025, falling to an average fee payment of $2,190.23 in fiscal year 2026. The cap currently appears to be $2,500.00.

This request was approved by the legislature's Joint Budget Committee this morning, without comment or dissent.  I am not certain if any additional approval is needed, but I do not think so.

If you would like to read the letter, it is the second page of this document: https://www.arkleg.state.ar.us/Home/FTPDocument?path=%2FAssembly%2FMeeting+Attachments%2F005%2F27876%2FB.+vta.pdf

 

Tidbits of appellate CLE here and there

I am not aware of any Arkansas continuing legal education programs dedicated solely to appellate matters appearing in the near future.  However, a couple of upcoming CLE programs do have appellate components.

The United States Bankruptcy Court for the Eastern and Western Districts of Arkansas hosts the annual Honorable James G. Mixon Trial Practice Symposium.  This program alternates locations between Little Rock and northwest Arkansas.  This year, the program will be held at the William H. Bowen School of Law in Little Rock on June 5, 2026.

The agenda includes an hour-long session presented by Justice Barbara Webb, entitled "Through the Appellate Lens: A Perspective from the Arkansas Supreme Court."  If you would like to know more about this program, see the information at this link: https://www.areb.uscourts.gov/news/honorable-james-g-mixon-trial-practice-symposium-1

The Arkansas Bar Association's 128th Annual Meeting is scheduled for June 10-12, 2026, in Hot Springs.  On Wednesday, June 10, there are two appeals-related sessions in the "family law" track: two Court of Appeals judges are presenting a session entitled "Life after Nalley," immediately followed by Tory H. Lewis' presentation of "Appellate Update: The Latest and Greatest in Family Law Appeals."  Ms. Lewis, of Taylor & Taylor, is an accomplished advocate in this field.

Then, on Friday, June 12, there is a morning session entitled "Judges' Roundtables."  The participating judges are not named yet, but if memory serves, appellate judges have participated in the recent past.

Here is the home page for the Annual Meeting: https://www.arkbar.com/?pg=annual-meeting

Am I missing anything?  Let me know in the comments, please.

Opinion highlights for the week of April 19, 2026

 

The Arkansas Court of Appeals issued thirteen opinions on April 22, 2026.  The next day, the Arkansas Supreme Court issued five opinions.  We'll note one opinion from each court.

Thornton v. State, 2026 Ark. 71, involved a number of felony convictions resulting in consecutive life sentences.  Thornton's first point on appeal challenged the trial court's denial of his motions to dismiss.  Citing Ark. R. Crim. P. 33.1(c), the Supreme Court found that these challenges were not preserved.  A general motion merely asserting the State failed to prove its case does not preserve an issue; the trial court must be advised "of the exact element of the crime that the State failed to prove." Thornton, 2026 Ark. 71, at 8-9

Thornton's motion at trial exceeded a page of text in the report.  But the majority characterized it as "general in nature and lack[ing] the specificity required to preserve his sufficiency challenge for appeal." Id. at 10. The motion included none of the arguments raised on appeal; it merely claimed that the State failed to make a prima facie case and then recited the offenses' elements.  Nor was there any reference to the evidence presented in the case.

The dissent noted the length of Thornton's motion and argued that it addressed each element of the charges. Id. at 15.  The majority responded that "the length of a motion for dismissal is not the relevant inquiry under Rule 33.1...." Thornton, 2026 Ark. 71, at 11 n.5.

There's a Wicks issue thrown into Thornton for good measure.  Thornton argued that his defense counsel was not certified by the Public Defender Commission to serve in Class Y felony cases, and since this affected the structure of his trial, the matter could be raised for the first time on appeal under the third Wicks exception.  The Supreme Court declined the invitation: "[T]he mere possibility that counsel did not obtain a certification from the public defender commission does not constitute a structural error within the third Wicks exception." Thornton, 2026 Ark. 71, at 12.

Conway Lakeside v. Washington County, 2026 Ark. App. 246, is a procedurally complex case to describe.  Your correspondent hesitates to attempt this.  Long story short, the state trial court entered judgment imposing a permanent injunction; the next day, in a parallel federal proceeding, a federal court enjoined some of the parties from taking certain action; then, in response to timely pleadings, the state trial court retroactively stayed the entry of its already-entered judgment in light of the federal action.

The Court of Appeals dismissed the appeal because "there is nothing for us to review." Id. at 6.  The only relief initially ordered by the state trial court was the permanent injunction, but that was now stayed.  The state trial court further "expressed that there was no longer a judgment to speak of" and that a written order would be entered in the future if the situation changed, so "there will be a future written order from which a party could appeal." Id. at 5.

This passage from the opinion may explain the reasoning:

There is a jurisdictionally significant difference between staying entry and staying enforcement of a judgment. A judgment is not effective until it is entered. The judgment the circuit court referred to had already been entered on December 17. 

The Arkansas Rules of Civil Procedure do not expressly contemplate staying entry of an order or judgment; and we particularly discourage doing so retroactively. But we have given effect to a retroactive stay at least once, in a case where staying entry of an order prevented conflict with our jurisdiction during an appeal. ... [The state trial court] could do so in the circumstances.

Id. at 4-5 (citations omitted).  No one appealed from the state trial court's retroactive stay of the entry of the judgment imposing the permanent injunction.  Again, there was nothing to be reviewed.

I told you I was hesitant.  Thanks for reading. 

Opinion highlights for the week of April 12, 2026

 

The Arkansas Court of Appeals handed down ten signed opinions on April 15, 2026.  The next day, the Arkansas Supreme Court handed down five opinions.  There are a couple of items outside of those lists that are worth noting this week, in addition to one of the opinions.

In Hughes v. Bright, the Supreme Court dismissed an appeal because review was improvidently granted.  Three justices dissented in an opinion found at 2026 Ark. 69.  The dissent notes errors in the Court of Appeals' decision previously under review, including error in affirming a trial court conclusion and misapplication of a particular doctrine.  The opinion claims that "[t]he court of appeals has a fundamental misunderstanding of the difference between factual allegations and legal conclusions." Id. at 3.  To the dissenters, "this all ties into a broader problem that has plagued circuit courts and the court of appeals for years: an unwillingness to effectuate the statutory preference for joint custody." Id.

The Court of Appeals' per curiam opinion in Ballegeer v. Ballegeer, 2026 Ark. App. 240, addresses a trial court's authority to enforce its orders while an appeal is pending.  The "mere filing of a notice of appeal" does not deprive a circuit court of that authority, nor does the lodging of the record.  "The purpose of a supersedeas bond is to preserve the status quo during the pendency of an appeal; absent such a bond or a properly granted stay, there is nothing preventing the circuit court from proceeding to enforce its judgment." Id. at 1.  In this case, the appellant did not request a stay or file a supersedeas bond, so "the circuit court retains full authority to enforce its order notwithstanding the pending appeal." Id. at 1-2.

In Mata v. Reyes, 2026 Ark. App. 229, the Court of Appeals reversed and remanded a case for specific written findings.  This was a child custody matter; joint custody was not ordered by the trial court.  The statutory presumption favoring joint custody could be rebutted, but the trial court had to enter findings in support of a decision that the presumption was rebutted.  Those findings were not in the trial court's order.

Without the required written findings, we have no way to reliably determine whether the court properly analyzed the facts under the statute.  Due to the statute’s requirement for specific written findings, we cannot presume that the circuit court made such findings as were necessary to support its decision.  Accordingly, we reverse and remand for the circuit court to make the necessary findings concerning whether the joint custody presumption has been rebutted.

Id. at 3 (citations omitted).

Thank you for following along.

Opinion highlights for the week of April 5, 2026

This was a relatively light week, in terms of issued decisions.  The Arkansas Court of Appeals issued eleven decisions on April 8, 2026.  Two decisions appeared on the Arkansas Supreme Court's docket issued the next day.  We'll note two of those Court of Appeals decisions - see if you can spot a theme!

In Golden v. State, 2026 Ark. App. 226, the Court of Appeals affirmed, but noted problems with Golden's statement of the case and the facts.  The court cited Ark. Sup. Ct. R. 4-2(a)(6) and quoted the requirements for concise statements without argument and discussing all material facts and procedural information contained in the record.

Here, the statement of the case consists of eight short sentences basically stating that appellant was charged, tried, and convicted. Clearly, this is woefully deficient and ordinarily merits rebriefing. However, Rule 4-2(b) allows an appellee’s brief to supplement the statement of the case if the appellee believes it to be insufficient, which the State did in this case.

Golden, 2026 Ark. App. 226, at 1 n.1.  Since the State saved the day, the court did not order rebriefing "this time because it is not in the interest of judicial economy to do so." Id. (emphasis in original).

Another footnote in Golden finds that an argument was preserved, despite the State's insistence to the contrary.

 

The State argues that appellant’s argument is not preserved because appellant mistakenly references only the motion for continuance filed by [a private attorney attempting to appear] and not the motion filed and argued by appellant’s counsel. Because appellant’s counsel essentially adopted the motion for continuance filed by [the private attorney] and because both motions argued that a continuance was needed to allow appellant to proceed with private counsel, we address appellant’s arguments on appeal.

Id. at 11 n.2.

Foster v. Sutton, 2026 Ark. App. 224, also addressed a deficient statement of the case and the facts.  A footnote references Ark. Sup. Ct. R. 4-2(a)(6) and quotes the requirements to discuss all material facts and procedural information, and to cite to pages in the record where those items can be found.  "Terry's statement of the case does none of these things" but the court did not order rebriefing "because the appellees' brief supplies the missing information in the missing format." Foster, 2026 Ark. App. 224, at 6-7 n.1.  The court also concluded that certain arguments were not preserved for appeal because they "were neither presented to nor ruled on by the circuit court." Id. at 7.

Thanks for reading.

An interesting request for relief on appeal: invited amici

 

Readers may be familiar with ongoing litigation involving the Arkansas Board of Corrections.  Without getting too far into the weeds, the composition of the Board has changed, and the Board's new majority no longer wishes to make the same arguments advanced by the former majority.

One of the cases involved is on appeal.  There is a trial court decision favorable to the Board, but the parties to the appeal want the Arkansas Supreme Court to reverse the trial court and remand the matter so that it may be dismissed in light of a settlement.

Here's where appellate practitioners might be interested, regardless of their views about the underlying politics.

A former Board member joined with a current Board member to seek relief from the Supreme Court.  They asked to intervene to defend the trial court decision.  But in the alternative, they asked the Supreme Court to appoint an attorney to defend the trial court decision on appeal, since the new Board is disinterested in doing so.

This alternative relief is based on U.S. Supreme Court practice.  The notion is that when a decision on appeal is "orphaned" - that is, a party no longer wishes to defend it - the Supreme Court will appoint an attorney - "invited amici" - to defend the decision.  The Court benefits from full briefing and argument provided by the appointed attorney.

It will be interesting to see how the Arkansas Supreme Court addresses this matter.  I am not aware of an "invited amici" ever being appointed here, but it could have happened.

If you want to review the pleadings and keep up with this case's disposition, you can find the case on the Arkansas Judiciary website, here: https://arcourts.gov/  Search the court records tab for the docket number, CV-25-742.

And if you would like to know more about "invited amici" practice at the U.S. Supreme Court, here's a Cornell Law Review article on the topic: https://scholarship.law.cornell.edu/clr/vol101/iss6/3/

Enjoy - and stay tuned!

Opinion highlights for the week of March 29, 2026

 

Spring Break is over.  On April 1, 2026, the Arkansas Court of Appeals handed down eighteen decisions.  On April 2, 2026, the Arkansas Supreme Court did not hand down any decisions.  Let's take a look at three of those Court of Appeals decisions.

In Toney v. State, 2026 Ark. App. 197, Toney challenged the sufficiency of the evidence to support her lesser-included second-degree murder and first-degree battery convictions.  She argued that there was insufficient evidence that she acted as an accomplice.  The Court of Appeals opined that she failed to preserve her arguments on appeal.

While it is not necessary to specifically state the lesser-included offense by name, the elements of that lesser-included offense must be addressed in the directed-verdict motion. Neither of the elements addressed by Toney are elements of the crimes of which she was convicted. Furthermore, none of the arguments below preserved the arguments raised on appeal regarding lack of evidence to prove that Toney was an accomplice. Accordingly, Toney has failed to preserve her challenge to the sufficiency of the evidence of either offense.

Id. at 5 (citations omitted).

Rebriefing was ordered in Mumtaz Mf v. Lindsey, 2026 Ark. App. 214.  The Court of Appeals noted "briefing deficiencies" that left it "unable to reach the merits of appellant's arguments...." Id. at 1.  These deficiencies under Ark. Sup. Ct. R. 4-2(a) included:

• a brief cover that displayed an incorrect case number and failed to include attorney contact information;
• a jurisdictional statement that did not comply with Ark. Sup. Ct. R. 1-2 by stating which appellate court should hear the appeal;
• a one-page statement of the case and the facts that was argumentative, provided little to no factual or procedural information, and lacked record citations; and
• an argument section with improperly placed standards of review, case citations not in the format required by Ark. Sup. Ct. R. 5-2(d), and the use of at least two opinions that were not designated for publication issued before July 1, 2009.

The court could raise the issue of deficiencies sua sponte, at any time; the mandatory language of Rule 4-2 required doing so here.

Finally, Scallion v. State, 2026 Ark. App. 207, offers guidance for preserving a corroboration challenge.  Scallion argued the State failed to provide sufficient evidence to corroborate her co-defendant's testimony linking her to the murder.  The Court of Appeals determined that this argument was not preserved.

"In order to preserve an accomplice-corroboration challenge to the sufficiency of the evidence for appellate review, a defendant must either have the trial court declare a witness to be an accomplice as a matter of law or submit the issue to the jury." Id. at 5.  Stallings never asked the trial court to declare her co-defendant to be an accomplice as a matter of law, and the trial court never did so.  Nor did she ask the jury to decide the matter, even though two model jury instructions were available for this purpose.  "Because Scallion failed to have [her co-defendant] declared an accomplice as a matter of law or to have the jury instructed on the issue, her claim is barred." Id. at 6.

Thank you for reading.

Opinion highlights for the week of March 15, 2026

 

This was a relatively slow week: the Arkansas Court of Appeals handed down twelve decisions on Wednesday, and the Arkansas Supreme Court handed down two decisions on Thursday.  We will note one of those Supreme Court cases, and two from the Court of Appeals.

In Relyance Bank v. Pharr, 2026 Ark. 55, Relyance's notice of appeal addressed outstanding tort claims against Caldwell with the following language: "Relyance... abandons any pending but unresolved claims but only to the extent required by" Ark. R. App. P.-Civ. 3.  One question on appeal was the propriety of that language - did it result in a final, appealable order by properly abandoning these unresolved tort claims?

"Under Rule 3, a party must abandon any pending but unresolved claims in the notice of appeal. This operates as a dismissal with prejudice of the claims." Relyance Bank, 2026 Ark. 55, at 4.  The rule addresses a past finality problem.  Substantial compliance with this rule suffices, so long as the appellee is not prejudiced.

Here, the Supreme Court held that Relyance substantially complied with the rule.  The "to the extent required" language in the notice of appeal did not affect the abandonment statement in the notice of appeal.  Further, Relyance confirmed its intent to abandon unresolved claims in the jurisdictional statement of its brief.  The tort claims were deemed dismissed, no pending claims remained, and the order appealed was final.

Wells v. Randall, 2026 Ark. App. 187, sounds like an odd little case.  Randall obtained a judgment in replevin against Wells; the latter appealed, arguing that he had title to the property.  Apparently, neither party advanced much in the way of argument on appeal (according to the majority): "the parties... have left all the analysis to us." Id. at 2.

The majority "decline[d] to step off into the void and argue the title issue de novo for one side or the other." Id. at 3.  The majority resolved the appeal by noting Randall prevailed below, and Wells did not demonstrate reversible error.  The trial court was affirmed.

Finally, in Henry v. Pierce, 2026 Ark. App. 194, Henry appealed a contingency fee award to Pierce's attorney, arguing that the fee agreement was erroneously entered into evidence.  The Court of Appeals found that, even if there was error, it was harmless.  At trial, Henry asserted that the issue was the reasonableness of the fee.  But there was a "plethora" of testimony about the reasonableness of the fee here. "Because there was an abundance of evidence regarding the reasonableness of the fee––which was the singular crux of Henry’s argument––any purported error in the admission of the contract was harmless." Id. at 8.

Next week, I think both courts are in recess - appellate courts like Spring Break too!  If that turns out to be incorrect, I'll post here accordingly.

Thanks for reading.