Opinion highlights for the week of April 27, 2025

 

This week, the Arkansas Supreme Court handed down six decisions, while the Arkansas Court of Appeals handed down fifteen signed decisions.  We'll concentrate on a few of the candidates for mention here.

A standard of review discussion occupied part of the opinion in Parker v. State, 2025 Ark. 55.  Parker challenged the trial court's decision not to instruct the jury on a lesser-included offense.  The Arkansas Supreme Court's majority stated the standard of review:

If the slightest evidence supports giving an instruction on a lesser-included offense, a circuit court commits reversible error by refusing to give it. ... We review a circuit court's rulings concerning jury instructions for abuse of discretion.  This is a high standard that does not simply require error in the circuit court's decision, but that the circuit court acted improvidently, thoughtlessly, or without due consideration.

Id. at 6-7 (citations omitted).  The majority appended a footnote to this statement:

The concurrence asserts that our standard for lesser-included-offense instructions imposes a higher bar than we currently recognize.  That said, while we do not deny our ability to address potentially confusing issues in our case law when properly before us, that is not the case here.

Id. at 7 n.2.

The concurrence asserts that the court applies a different standard of review than suggested by the language used in the majority opinion.  The concurrence takes a deep dive into the basis and history of the "failure to give a lesser-included instruction" standard of review, and suggests clarifying the standard actually applied:

I’d take a different approach and use this case as an opportunity to clarify the law and hold that: (1) a lower court isn’t required to give a lesser-included instruction unless there’s a sound evidentiary basis for acquitting the defendant of the charged crime and instead convicting him of the lesser; and (2) on appeal, reversal is only warranted (not required) where a judge has abused his or her discretion—that is acted thoughtlessly, improvidently, or without due consideration—in making that determination.

Id. at 14.

Turning to the Court of Appeals, in Love v. State, 2025 Ark. App. 263, the court found that an issue was not preserved for review because the motion for a directed verdict was not specific enough.  Love argued on appeal that the evidence was insufficient to prove he possessed a rifle found in his truck; at trial, his motion stated that "the State has failed to make a prima facie case that [Love] possessed a firearm." Id. at 1.  "An argument that the State has not made a prima facie case is insufficient to preserve any specific deficiency in the State's case for appellate review." Id. at 1-2.

Smith v. Arkansas Department of Human Services, 2025 Ark. App. 271, addressed a preservation issue of interest to parents' counsel.  One of the arguments raised in this termination of parental rights appeal was that the evidence was not sufficient to show meaningful efforts by DHS.  The court found that this argument was not preserved.

Here, [the parent] did not appeal from the finding in the permanency-planning order that DHS had made reasonable efforts to provide family services. Furthermore, she made no objection at the termination hearing that DHS had failed to provide services; therefore, she has waived that issue on appeal.

Id. at 13.  Failure to raise a timely objection - and to the correct order - deserves consideration.

Finally, in Howard v. Jefferson Regional Medical Center, 2025 Ark. App. 277, the court offered a reminder to diligently consider amending notices of appeal.  The trial court granted a motion to dismiss against the Estate for failure to state a claim on September 29, 2023.  The Estate filed a motion for reconsideration on October 9, 2023, and a notice of appeal on October 26, 2023.

Significantly, the trial court never ruled on the motion for reconsideration, nor did the Estate amend its notice of appeal regarding this deemed denial.  That was fatal.  The "Estate did not amend its notice of appeal to include the deemed denial of the motion; therefore, this argument is not preserved for our review." Id. at 7.

I hope these summaries are beneficial - have a great rest of your week!

Opinion highlights for the week of April 20, 2025

This week, the Supreme Court issued three decisions while the Court of Appeals issued twenty-three signed decisions.  As with last week, both courts produced opinions worth noting here.

Gates v. Hudson, 2025 Ark. 48, specifies that summary judgments are reviewed de novo on appeal.  The majority stated: "We review circuit court orders granting summary judgment de novo, viewing the evidence in the light 'most favorable' to" the party against whom summary judgment was granted. Id. at 5.  The majority appended this commentary in a footnote:

An aside about the standard of review.  This court has long reviewed summary judgment orders "de novo."  That is, we have not given lower court decisions on summary judgment any deference. ...

To be sure, on summary judgment, we view the evidence in the light most favorable to the non-moving party.  But that is not a standard of review; it is the framework that we - and lower courts - use to evaluate summary judgment.  A standard of review describes the level of deference we give a lower court's decision.  And the concurrence does not dispute that we do not give a lower court's summary judgment decision any deference.

Id. at 5 n.1.

One concurrence challenged this statement about the standard of review.  The concurrence quoted what "has been our standard of review for decades" and noted that "'de novo' review of summary judgment appears for the first time in this case." Id. at 16-17.  The concurrence was also troubled because "the parties did not argue for a departure from our standard-of-review language; the majority makes this change sua sponte." Id. at 17.

My thanks to Brett Watson for calling Gates to my attention.

Eastern Equipment v. Bates, 2025 Ark. App. 244, raises a couple of interesting points.  The trial court granted Bates' motion to strike Eastern's answer and denied Eastern's motion for sanctions due to spoliation.  Based on the ruling striking Eastern's answer, it filed an interlocutory appeal as permitted by Ark. R. App. P.-Civ. 2(a)(4).

The Court of Appeals disagreed that Eastern's denied spoliation motion could also be considered on appeal.  The court observed that "[a]n appeal from an interlocutory decision brings up for review only the decision from which the appeal was taken, meaning the issues raised in the appeal must be reasonably related to the order appealed from...." Eastern Equipment, 2025 Ark. App. 244, at 4.  The court could not say that Eastern's motion seeking sanctions for spoliation was related to Eastern's stricken answer.  The court held that it did not have jurisdiction over this aspect of the appeal.

The court also addressed the relationship between a trial court's oral pronouncements and written order.

Generally speaking, a written order controls over oral pronouncements, but that is the case only when there is a conflict or a discrepancy between the oral ruling and the written order.  We routinely rely on a trial court's oral statements from the bench to inform or explain the reasoning behind a written order.

Id. at 7 (citations omitted).  This is useful insight for supporting arguments about the meaning of written orders.

Travis v. State, 2025 Ark. App. 255, involved a revocation of probation.  Travis challenged the trial court's revocation based on her failure to pay fines and fees - but said nothing on appeal about other violations found by the trial court, such as failure to report and committing new crimes.  The Court of Appeals affirmed: "When the circuit court bases its decision on alternate, independent grounds, as it did here, and the appellant challenges only one of those grounds, we will affirm without addressing the merits of any of the grounds." Id. at 5.

Finally, Fitzhugh v. Fitzhugh, 2025 Ark. App. 260, was dismissed due to an untimely notice of appeal.  The trial court entered an order changing custody on October 25, 2023.  Amended orders were subsequently filed on November 8 and 17, 2023.  The Appellant filed a notice of appeal on November 30, 2023, stating that she appealed from these last two amended orders and "all other orders leading up to that Order."

The Court of Appeals rejected the appeal: "Because [Appellant] did not appeal from the October 25, 2023 order, which is the order that first addressed all her issues now on appeal, we dismiss." Id. at 3-4.  Timely filing of a notice of appeal is jurisdictional.  Appellant's "arguments on appeal stem from issues that were first addressed in that" October order.  Her notice of appeal was untimely as to that order, and a subsequent motion to extend the time to file was untimely.

The amended orders did not change those portions of the October order Appellant sought to appeal.  "[W]hen the appeal concerns matters decided in the original order and left unchanged, there must be a notice of appeal from that order, not just the amended order." Id. at 6.  "This court's consideration of these arguments on appeal from the amended orders would effectively permit a party to revive an otherwise untimely appeal by prompting minor but practical modifications." Id. at 6-7.

That's enough.  Have a great weekend!

Opinion highlights for the week of April 13, 2025

 

I count three Arkansas Supreme Court and seventeen signed Arkansas Court of Appeals decisions handed down this week.  Both courts produced opinions worth nothing here.

Standridge v. Fort Smith Public Schools, 2025 Ark. 42, includes a seemingly rare discussion about "direct[ing] the clerk to immediately issue the mandate."  The case involves a student's ability to transfer within a school district - from one public school to another - without being banned from playing sports at the new school for one year.

The student raised statutory and constitutional challenges.  I'll note two points that don't ordinarily concern this blog.  First, the opinion engages in an educational statutory construction discussion - this is worth your time.  Second, even though the majority reversed on the student's statutory claim, it went on to affirm the trial court on the constitutional claims.  This seems contrary to the practice of avoiding constitutional questions if possible. See, e.g., Tollett v. Wilson, 2020 Ark. 326, 608 S.W.3d 602  ("It is our duty to refrain from addressing constitutional issues if or when the case can be disposed of without determining constitutional questions.").

After addressing the merits, the majority directed the clerk to immediately issue the mandate: "Having already been barred from participating [in sports] in the fall - and with the ban lasting only a year - any further delay would severely undermine the relief to which [the student] is entitled." Standridge, 2025 Ark. 42, at 12.  And in response to the dissent, the majority noted that "while we typically expedite mandates in election or execution cases, nothing in the rule prohibits doing so in other cases where, as here, compelling reasons exist. See Ark. Sup. Ct. R. 5-3(b)." Standridge, 2025 Ark. 42, at 12.

The dissenting justices challenged the propriety of immediately issuing the mandate.  Agreeing that the rule doesn't prohibit prompt issuance here, "this is simply not a case in which doing so is appropriate." Id. at 17.  The practice is typically reserved for expedited cases, such as those involving election and execution issues.  The student did not request expedited consideration or immediate mandate issuance. "While this case is no doubt extremely important to the parties, the same can be said for every case this court decides." Id.

The Supreme Court remanded Weatherford v. State, 2025 Ark. 44, to settle and supplement the record.  The court noted its duty to "scrutinize the record for all errors prejudicial to the appellant in cases resulting in life-imprisonment sentences." Id. at 2. The court couldn't do that here: the record was incomplete, missing an audio recording of a law enforcement interview.  Thus, the case was remanded.

Although there are other candidates, let's consider one Court of Appeals case, Miller v. State, 2025 Ark. App. 229.  One of Miller's arguments on appeal challenged comments made by the State during voir dire implicating Miller's privilege against self-incrimination.  He argued that the trial court should have granted a mistrial even though he did not move for one.

The Court of Appeals first noted that Miller's attorney "objected, made his argument, and was given what he requested" - a cautionary instruction. Id. at 8.  The attorney did not move for a mistrial.  In light of these facts, the court would not consider Miller's mistrial argument on appeal.

Miller argued that under the third of the mythical Wicks exceptions, the court should consider his argument even though he did not request a mistrial.  This exception to Arkansas's objection requirement permits an appellate court to consider errors serious enough to require the trial court to intervene, even without objection.

Miller could cite no case applying this exception in his favor, but there was an Arkansas Supreme Court opinion denying application of Wicks in a situation involving the right against self-incrimination.  Given that Miller received his requested relief, did not move for a mistrial, and the third Wicks exception did not apply, the court found that Miller's point was not preserved for appeal.

Thank you for reading - have a great weekend!