Upcoming Appellate Law Section officers

Following the Arkansas Bar Association's Appellate Law Section meeting on April 3, 2025, the following attorneys will serve as the section's officers: Martha Ayres, Chair; Tory Lewis, Chair-elect; and Frank Arey, Secretary.

There are some very talented appellate practitioners in the Arkansas Bar.  I appreciate the opportunity to associate with them in this way.  My thanks to outgoing Chair Tasha Taylor for the nomination.

Congratulations to Ms. Taylor, too, for a worthwhile CLE program on April 3, 2025.  While I could not attend, I have seen a copy of the materials, and these are outstanding.

Opinion highlights for the week of April 6, 2025

 

The Arkansas Supreme Court decided four cases this week.  The Arkansas Court of Appeals handed down twenty-two signed opinions.  Both courts produced opinions meriting attention here.

In Tilley v. Malvern National Bank, 2025 Ark. 29, Tilley sought to reverse the trial court's award of summary judgment below.  His first argument to the Arkansas Supreme Court complained that, upon remand of an earlier decision, the trial court ignored the Supreme Court's mandate "for a jury trial" when it considered and granted the motion for summary judgment.

MNB argued that Tilley did not develop this argument below, nor did he obtain a ruling from the trial court.  The Supreme Court noted that Tilley devoted the better part of a page to developing this argument before the trial court.  Nor was the Supreme Court concerned about the purported lack of a ruling.

Compliance with the mandate on remand is an issue of subject-matter jurisdiction that can be raised at any time, including for the first time on appeal.  This is an issue of subject-matter jurisdiction because the mandate tells a circuit court, among other things, what it has jurisdiction to consider on remand.  Thus, Tilley has not waived his mandate argument.

 Id. at 4 (footnote omitted).  Although beyond this blog's scope, the subsequent discussion among the justices is instructive.  The majority determined that the trial court did not contravene the mandate; a minority believed that the trial court "violated" the mandate.  This discussion is worth your review.

Turning to the Court of Appeals, in Ross v. State, 2025 Ark. App. 204, the court opined that Ross did not preserve an argument for appeal.  Ross argued that the trial court should have granted his motion to suppress a statement for a number of reasons, including false promises of leniency.  The court did not think this argument was preserved.

When an appellant has raised multiple arguments in his motion to suppress, we will refuse to reach the merits of those arguments that were not specifically ruled on by the circuit court in denying the motion.  Ross did not raise the issue of offers of leniency below; thus, it is not preserved for appeal.

Id. at 7.

An argument changed on appeal was not considered in Sanders v. State, 2025 Ark. App. 205.  On appeal, Sanders argued that the evidence was insufficient to convict him - the evidence did not negate his justification defense.  The court noted that "a party is bound by the nature and scope of the objection and arguments made at trial and may not enlarge or change those grounds on appeal." Id. at 5.  Below, Sanders argued the evidence was insufficient to demonstrate his intent to injure; the court distinguished that argument from his justification argument on appeal, which was not articulated below and thus not preserved for review.

In Buzbee v. Blann Transportation, 2025 Ark. App. 206, a section of the opinion starting on page 14 is entitled "Preservation Issues."  The court disposed of a number of arguments that were "either raised for the first time on appeal or not supported by citation to authority...."  Id. at 14.  By my count there are at least four arguments summarily disposed of here; rather than delve into them, they are noted if you are interested.

If you are still with me, take heart - the last case I'll note is McAllister v. McAllister, 2025 Ark. App. 215.  In this probate case, the trial court vacated a TRO on June 21, 2023; Appellant filed a notice of appeal concerning this order that same day; on October 2, 2023, the trial court entered a "Certification of Final Judgment" that made a number of substantive findings and conclusions; the Appellant did not file a new notice of appeal or amend the earlier notice.

The Court of Appeals concluded that it lacked jurisdiction.  The October 2, 2023, order was a final order, but Appellant didn't file a notice of appeal about this order, so "we have no jurisdiction to hear an appeal from that order." Id. at 6.

The notice of appeal from the order vacating the TRO was of no moment.  TROs are "short-term, stop-gap remed[ies]".  Id. at 6-7.  "The question of whether the TRO should have been vacated in June 2023 is now moot because it has been replaced by an October 2023 final order" addressing the merits.  Id. at 7.  "As a general rule, this court will not review issues that are moot.  To do so would be to render advisory opinions, which this court will not do." Id.

Hopefully the weather will be better this weekend than last - I hope you enjoy it.

Opinion highlights for the week of March 30, 2025

 

The Arkansas Supreme Court handed down two opinions this week; by my count, the Arkansas Court of Appeals handed down twelve signed decisions.  Two of those Court of Appeals fit my rough criteria for noting here.

Tarr v. Arkansas State Board of Nursing, 2025 Ark. App. 195, addresses the proper standard of review in an administrative appeal.  Tarr challenged the Board's suspension of her license, as affirmed by the circuit court.  She claimed lack of notice and an unduly harsh sanction.

Tarr argued for a de novo standard of review, citing Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which held that courts need not defer to agency interpretations of law in cases of ambiguity.  The Court of Appeals rejected this argument.

We disagree that this is the proper standard.  In both Loper and Myers [v. Yamato Kogyo Co., Ltd., 2020 Ark. 136], the issue was whether courts were required to defer to agency interpretations regarding questions of law and statutory ambiguities.  Both opinions stressed, however, that judicial review of agency fact-finding remains deferential.

Tarr, 2025 Ark. App. 195, at 6 (one citation omitted).  The court disagreed that Tarr's appeal involved statutory interpretation - her receipt of notice involved a factual determination.  Thus, Ark. Code Ann. section 25-15-212(h), and a determination whether substantial evidence supports the agency's decision, provide the proper standard of review.

In Daniels v. Lyle, 2025 Ark. App. 197, Daniels brought a medical malpractice claim following the death of his wife.  Among other arguments, the defendants challenged jurisdiction to hear the appeal.  They noted that Daniels did not designate the complete record on appeal; under Ark. R. App. P.-Civ. 3(g), this meant his notice of appeal needed to include a concise statement of points relied upon, but Daniels did not provide that.

The court observed "that the purpose of this rule is to prevent prejudice and afford the appellees an opportunity to require that there be included in the record any matter not designated by the appellant." Daniels, 2025 Ark. App. 197, at 7.  Daniels only raised one point on appeal - this was the only point relied on by the circuit court, and it was fully briefed by the parties. Daniels had also supplemented the record, as ordered, with almost one thousand additional pages of material.  The court thought that was enough: "In this circumstance, we find that the appellees have not been prejudiced, and we proceed to the merits of the appeal." Id. at 8.

Thanks for reading!