Opinion highlights for the week of March 16, 2025

 

The Arkansas Supreme Court handed down one decision this week.  By my count, the Arkansas Court of Appeals handed down fifteen signed decisions.  Some of those Court of Appeals decisions shed light on appellate practice and procedure.

The appeal was dismissed for lack of a final order in American Health Law Association v. Estate of Fred Cunningham, 2025 Ark. App. 171.  AHLA moved for summary judgment, arguing that it was immune from damages in the Estate's negligence action.  The trial court denied this motion, so AHLA appealed.  The Estate moved to dismiss the appeal in the absence of a final order, arguing that an order denying summary judgment based on a claim of immunity is not an appealable order unless it involves sovereign immunity - which was not an issue here.

The Court agreed with the Estate.  It distinguished between immunity from civil damages and immunity from suit; here, the statute AHLA relied upon provided immunity from civil damages - that is, immunity from liability, not immunity from suit.  The former is merely a defense to a suit, while the latter provides entitlement not to stand trial.  Interlocutory appeals are permitted in cases involving immunity from suit; otherwise, the right not to be tried would be lost if the matter improperly proceeded to trial.  Because immunity from liability was involved - not immunity from being tried at all - the trial court's order was not a final appealable order.

A couple of procedural issues appeared in Henry v. State, 2025 Ark. App. 174.  First, because Henry did not move for dismissal at the close of all the evidence in his bench trial for fleeing, his challenge to the sufficiency of the evidence was not preserved for appeal.  Second, the mythical fourth Wicks exception did not serve to revive this challenge.  That exception permits an appellate court to take notice of errors affecting substantial rights, even if those errors weren't raised at trial.  But this exception only applies to constitutional or statutory errors, not sufficiency of the evidence arguments.

Two procedural issues also appear in Youngberg v. State, 2025 Ark. App. 177.  First, Youngberg's argument that he didn't receive written notice of his SIS conditions, thus barring revocation, was not raised at trial.  This is a procedural, not jurisdictional, issue, so this argument was waived for failure to object below.  Second, Youngberg's due process argument - that he lacked notice of the grounds of revocation - was not raised at trial.  Therefore, it could not be considered on appeal because the trial court had no opportunity to rule on the issue.

Finally, Hughes v. Bright, 2025 Ark. App. 180, illustrates the problem of inconsistent arguments at trial and on appeal.  The court noted "that the main thrust of [Appellant's] appeal - that the court erred in finding a material change in circumstances - is at complete odds with her arguments below, where she argued strenuously that there was a material change in circumstances." Id. at 8.  "Our general rule is that a party is bound by his or her pleadings and the allegations therein and cannot maintain an inconsistent position on appeal."  Id. at 9.  After reviewing a couple of cases, the court concluded that the Appellant "cannot succeed on the merits with her new and inconsistent arguments on appeal." Id. at 10.

Never a dull moment!  Thanks for reading.

Legislation conferring original jurisdiction upon the Court of Appeals

 

Old habits die hard - that includes keeping up with legislation filed during sessions of the Arkansas General Assembly.  Which brings me to HB 1832, filed today.  You can see a copy of it here:

https://arkleg.state.ar.us/Home/FTPDocument?path=%2FBills%2F2025R%2FPublic%2FHB1832.pdf

If I am reading this correctly, the Arkansas Court of Appeals "shall have exclusive original jurisdiction over a facial constitutional challenge" to Code sections, legislative acts, and administrative rules.  The court's "procedure will conform to that prevailing in bench trials in the circuit court."  The Court of Appeals' decision "may be appealed to the Supreme Court."

The General Assembly's findings and emergency clause offer some clues as to what is going on here.  The findings state that "[t]he purpose of this act is to establish the exclusive original jurisdiction of the Court of Appeals under the authority of Arkansas Constitution, Amendment 80, section 9, pertaining to facial constitutional challenges."  The emergency clause cites the need for "consistent legal interpretation of facial constitutional challenges to acts of the General Assembly...."

Perhaps the issue is displeasure with circuit court rulings - otherwise, why place "exclusive original jurisdiction" with the Court of Appeals?  In any event, stay tuned. 

Opinion highlights for the week of March 9, 2025

 

The Arkansas Supreme Court handed down six decisions today, March 13, 2025; the Arkansas Court of Appeals handed down nineteen signed opinions yesterday.  Some of the Court of Appeals decisions are worth noting here.

A revocation of SIS case, Nelson v. State, 2025 Ark. App. 151, was remanded to settle and supplement the record.  The court noted the general rule:

We require the entire record to properly confirm our jurisdiction, meaning that we need to ensure that the circuit court had the authority to revoke and determine whether there might be an illegal sentence issue.  Without a complete record, we cannot make those determinations.

Id.at 2.  The matter was remanded to settle and supplement the record "with the necessary documentation containing the 2014 felony information, the original conditions of Nelson's SIS issued in 2014, and the 2014 judgment." Id. at 2-3.

In the companion case of Nelson v. State, 2025 Ark. App. 152, Nelson argued that the prosecutor's "Short Report of Circumstances" was erroneous in a number of ways.  The court rejected these arguments for two reasons.  First, "Nelson's arguments are not preserved for appeal because he did not present them to the circuit court. ... [O]bjections to forms filed with the sentencing order, such as a short report, must be presented to the circuit court to be preserved for appeal."  Second, because Nelson did not identify any report factors that should have been selected, he did not demonstrate error or prejudice.

The appeal was dismissed in Seaside Pools v. Curtis, 2025 Ark. App. 155, for failure to comply with Ark. R. Civ. P. 54(b).  Seaside installed a pool for the Curtises.  When they didn't complete payments, Seaside brought an action against them, Generations Bank, and the Department of Finance and Administration (alleging the latter two entities might have some interest in the property).  Ultimately, the trial court granted summary judgment to the Curtises.  Seaside appealed, but in its notice of appeal, it did not abandon pending but unresolved claims under Ark. R. App. P.-Civ. 3(e).

The court noted the general rules.  Appeals can be taken from a final judgment or decree.  Determining finality is a jurisdictional question that may be raised by the court at any time.  When there are multiple claims for relief or multiple parties involved, an order adjudicating fewer than all the claims, or the rights/liabilities of fewer than all the parties, is not a final, appealable order.  Dismissal of a claim without prejudice does not create finality.

Untangling the procedural situation, the Seaside court determined that DFA and the claims against it had not been expressly dismissed.  Generations had not been dismissed as a party, and the claims against it had only been dismissed without prejudice.  Between those facts, the failure of Seaside to abandon its unresolved claims, and "no attempt to comply with Rule 54(b)," the court found that it lacked jurisdiction and dismissed the appeal.

Rogers v. Arkansas Department of Human Services and Minor Child, 2025 Ark. App. 162, involved the termination of parental rights.  One of Rogers' arguments was that termination of her parental rights was not in the minor child's best interest, because Rogers had custody of the child's sister - termination would interfere with the sibling relationship.  But this argument was not preserved for review because Rogers did not make it at the termination hearing.  "Even in termination cases, arguments raised for the first time on appeal will not be addressed." Id. at 9.

In Gregory v. State, 2025 Ark. App. 164, the defendant objected to certain testimony once, but did not object when other victims were asked the same question.  This issue was not preserved for appeal.  "A defendant must object at the first opportunity, and he must then renew his objection each time the issue is raised; otherwise, he has waived his argument regarding that issue on appeal." Id. at 10.

Finally, in Le v. State, 2025 Ark. App. 165, the court decided an appeal concerning an expired commitment order.  The court considered the merits "because cases like this will always become moot before litigation can run its course." Id. at 4 n.1.

Thanks for reading!