Bill Walmsley

Derrick Walker appealed the denial of unemployment compensation benefits by the Arkansas Board of Review, which had upheld an Appeal Tribunal ruling that he was not able to perform suitable work. The Arkansas Court of Appeals reviewed the Tribunal’s decision and reversed, holding that the denial was not supported by substantial evidence. The court noted that the facts closely matched those in its prior decision in McDaniel v. Director, where a similar finding was overturned, and therefore remanded the case for an award of benefits.

labor & employment

Ralph Shane Calaway appealed the Union County Circuit Court’s denial of his motion to modify a 2012 order of protection that required him to stay away from Tara Fallen Crotty, her children, and family members for three years. The original order was based on their past dating relationship, his possession of firearms, and a history of extreme violence; in his motion, Calaway sought to remove certain language from the order, shorten its duration to six months, and add a provision allowing him to possess firearms. Arkansas Code Annotated section 9-15-209 permits modification of such orders upon application, notice, and a hearing, but the trial court denied the request after a hearing at which Crotty testified she continued to fear Calaway due to his temper and history of unwanted contact. The Arkansas Court of Appeals affirmed, holding that Calaway’s failure to appeal the original order barred relitigation of its basis and that the evidence supported the trial court’s finding of no material change in circumstances sufficient to warrant modification, as Crotty’s credible testimony indicated he still posed a threat.

family lawgunsprocedure

Robert Kenneth Barber appealed his conviction for possession of a controlled substance, arguing that the trial court should have suppressed statements made during a custodial interrogation without Miranda warnings. The Arkansas Court of Appeals did not reach the merits of that claim. Instead, it ordered Barber to file a supplemental addendum within seven days containing a DVD of dashcam video from the traffic stop, which had been admitted into evidence and played at the suppression hearing. The court explained that Arkansas Supreme Court rules require inclusion of all exhibits essential to understanding the case, and that de novo review of suppression issues requires the appellate court to examine the full record presented to the trial court.

criminal lawprocedure

The case involved H.V., a seventeen-year-old, appealing her adjudication as delinquent by a Benton County juvenile court for acting as an accomplice to theft of property, a class A misdemeanor, after her twenty-year-old boyfriend stole a tool accessory from a Wal-Mart store. The Arkansas Court of Appeals affirmed the adjudication and probation order. The court held that substantial evidence supported the finding of accomplice liability because video footage and testimony showed H.V. standing close to her boyfriend, blocking the camera’s view while he removed a security tag and concealed the item, and glancing around afterward, which the court viewed as an attempt to aid the theft. Under Arkansas statutes, a person is an accomplice if they aid or attempt to aid another in committing the offense with the purpose of facilitating it, and the court concluded her conduct went beyond mere presence or knowledge of the crime.

criminal law

In Johnson v. State, the Arkansas Court of Appeals reviewed the Lafayette County Circuit Court’s revocation of Bobby Johnson’s probation after he pleaded guilty in 2009 to three counts each of breaking or entering and theft of property and received five years’ probation. The State had petitioned to revoke based on multiple alleged violations, and Johnson appealed, claiming the trial court improperly took judicial notice that he knew the probation conditions and erred by allowing the State to reopen its case after initially ruling to hear additional testimony from a probation officer confirming Johnson had signed and received the conditions. The court affirmed the revocation, holding that testimony from Johnson’s probation officers about routine signing and delivery practices, combined with Johnson’s own admissions of reporting issues and other conduct, provided sufficient evidence of violations under a preponderance standard. It further ruled that any reopening of the case caused no prejudice because the circuit court retained jurisdiction before entering the sentencing order and the additional evidence merely confirmed findings already supported by the September hearing record.

criminal law

The case involved James Green’s appeal of a trial court order revoking his probation and sentencing him to three years in prison. Green had pleaded guilty in 2006 to furnishing prohibited articles and received a four-year probation term; the State filed a revocation petition in 2007 alleging violations, but the hearing did not occur until September 2013, after the probation period had ended. Although Green raised a confrontation-clause objection, the Arkansas Court of Appeals did not address the merits of the revocation. Instead, it remanded the case because Arkansas law permits revocation after the probation term expires only if the defendant was arrested, a warrant was issued, a timely petition was filed with a follow-up warrant, or similar conditions occurred before expiration. The record contained only an indication that a warrant had been issued, without the warrant itself or other proof, leaving the trial court’s jurisdiction unclear and requiring supplementation of the record.

criminal lawprocedure

The case involved Taneka Robinson’s appeal of the Crittenden County Circuit Court’s revocation of her 2006 probation for aggravated assault, based on alleged violations such as failing to pay fines and costs, failing to report to her probation officer, and using marijuana. The State introduced a 2009 violation report prepared by a former probation officer, which Robinson objected to on hearsay and confrontation-clause grounds. The Arkansas Court of Appeals affirmed the revocation. The court held that Robinson failed to properly preserve and develop her confrontation argument for review, that the revocation was independently supported by her own testimony admitting failures to report and drug use, and that any error in admitting the report was harmless given the trial court’s findings on her willful nonpayment of fines despite extended opportunities to comply and the lower preponderance-of-the-evidence standard in revocation proceedings.

criminal lawprocedure

The case involved a dispute over whether Bank of the Ozarks had become the successor trustee of the Hamilton Living Trust after the deaths of the original trustees. Beneficiary Susan Cossey petitioned the circuit court for an accounting of the trust’s activities, which the Bank resisted on the ground that it had declined the trusteeship. The circuit court ruled that the Bank had acted as trustee, ordered it to provide an accounting, and awarded Cossey attorney’s fees. The Arkansas Court of Appeals dismissed the Bank’s appeal without prejudice, holding that the orders were not final and appealable because the accounting had not yet occurred and would require further action by the Bank and continued court oversight. The court further explained that the appeal could not proceed under probate appeal statutes, as the underlying matter arose under the Trust Code rather than the Probate Code.

propertyprocedure

Ralph Trezza, a truck driver for USA Truck, appealed the Arkansas Workers’ Compensation Commission’s denial of his claim for a right ankle injury he sustained at the company’s West Memphis terminal on October 22, 2011. He had parked his truck, logged off-duty to begin a 34-hour restart period, and injured himself while walking to the bathroom; the Commission ruled that he was not performing employment services at the time. The Arkansas Court of Appeals affirmed, holding that substantial evidence supported the Commission’s finding because Trezza had completed his work for the day, was not required to remain with or supervise his truck, and was not carrying out any task that advanced the employer’s interest. The court noted that the injury occurred outside the time and space boundaries of employment under Arkansas law, distinguishing it from cases involving on-call or residential employees.

labor & employment

In King v. State, appellants Clyde Ray King and Eileen McMurray appealed a Pulaski County Circuit Court order granting the State’s petition to forfeit two vehicles—a 2003 BMW and an 1980s-model Cadillac—under Arkansas’s civil forfeiture statute. The court affirmed the forfeiture after finding that King had used both cars to transport and sell oxycodone and methadone pills on multiple occasions in May 2012, as shown by police testimony and King’s own admissions. Although King held valid prescriptions for the drugs, the court held that his subsequent sale of them violated the controlled-substances laws, making the vehicles subject to forfeiture by a preponderance of the evidence. The court rejected claims that the BMW’s title in McMurray’s name or her lack of knowledge protected her interest, applying prior precedent that one co-owner’s use of a vehicle for illegal activity can divest the other’s interest. The decision was not clearly erroneous, and arguments regarding the trial court’s discretion or evidentiary gaps were either unpreserved or unavailing.

criminal lawproperty

Alvester Bingham appealed a trial court order granting summary judgment to C&L Electric Cooperative in a civil case. The Arkansas Court of Appeals declined to address the merits of the appeal because Bingham’s addendum omitted key documents from the record, specifically his complaint and C&L’s answer and amended answer. Under Arkansas Supreme Court Rule 4-2(a)(8), the addendum must contain pleadings essential for the court to understand the case and confirm jurisdiction. The court therefore ordered Bingham to file a supplemental addendum containing those pleadings within seven calendar days.

procedure

The case involved Sharon Singleton’s appeal of a circuit court order terminating her parental rights to her two children after the Arkansas Department of Human Services removed them in 2012 due to unstable housing, lack of food, and parental drug use. The children were adjudicated dependent-neglected, and after a year of services the goal shifted to adoption; at the February 2014 termination hearing the court found Singleton had failed to maintain stable employment or housing, complete required assessments and classes, or stop using drugs. The trial court terminated her rights on two statutory grounds—that the children had been out of her custody for more than twelve months without the conditions causing removal being remedied despite DHS efforts, and that aggravated circumstances existed because further services were unlikely to achieve reunification—while also determining termination was in the children’s best interest. On appeal, Singleton’s counsel filed a no-merit brief asserting no reversible errors, and the Arkansas Court of Appeals, after independent review of the record, agreed there were no meritorious issues and affirmed the termination order while granting counsel’s motion to withdraw.

family law

Paul Sims, a high school counselor employed by Bismarck Public Schools since 1995, was discharged in 2009 after audits revealed that some students lacked the math credits required for graduation under state standards; the Arkansas Board of Review denied his unemployment benefits claim, finding misconduct connected to his work. The Arkansas Court of Appeals reversed that decision and remanded for an award of benefits. The court held that misconduct requires an intentional or deliberate violation or negligence of such degree as to show wrongful intent, and the evidence showed only that Sims, like school administrators and the student handbook, was unaware of a recent change from three to four required math credits. The two transcript issues were distinct, Sims had received only a single prior evaluation rating him as proficient overall, and the employer failed to prove substantial evidence of disqualifying misconduct.

labor & employment

In King v. Jackson, appellants Ida King and Kenneth Caldwell sued appellees Leslie and Karen Jackson in Pulaski County Circuit Court for ejectment and trespass. The trial court dismissed the ejectment claim but left the trespass claim unaddressed; after an earlier appeal was dismissed for lack of a final order, the appellants obtained a voluntary nonsuit without prejudice of all remaining claims and appealed again. The Arkansas Court of Appeals dismissed the appeal, holding that it lacked jurisdiction because no final, appealable order existed. The court explained that a voluntary nonsuit without prejudice leaves claims subject to refiling, creating the risk of piecemeal appeals, and that the appellants’ notice of appeal failed to include the required statement abandoning unresolved claims with prejudice under the appellate rules.

propertyproceduretorts & liability

In Duncan v. Arkansas Department of Human Services, the Arkansas Court of Appeals reviewed the termination of parental rights of Becky Duncan and Patrick Gaither to their five children, who had been removed from the home in 2012 due to domestic violence, inadequate food, and environmental neglect, and later adjudicated dependent-neglected with a goal of reunification. The trial court terminated both parents’ rights after finding they had failed to remedy the conditions causing removal and that termination was in the children’s best interest. The appeals court reversed the termination of Duncan’s rights and remanded for further reunification services, holding that the evidence showed she had substantially complied with the case plan, maintained employment and suitable housing, completed required classes, and made progress in therapy, rendering the trial court’s findings on additional services and child-support payments clearly erroneous. It affirmed the termination of Gaither’s rights, agreeing there were no meritorious grounds for appeal given his positive drug test, lack of housing and counseling, and failure to comply with psychosexual evaluation recommendations.

family law

The case involved Krysta Dawson’s appeal of a Sebastian County Circuit Court order terminating her parental rights to her children B.D. and J.A. The Arkansas Department of Human Services had taken the children into custody after Dawson’s arrest on Oklahoma probation violations stemming from her 2010 no-contest pleas to second-degree manslaughter and child neglect, which arose from the bathtub drowning of another child. The trial court found the children dependent-neglected, and after Dawson was later sentenced to four years in prison for violating her suspended sentence, DHS petitioned to terminate her rights on multiple statutory grounds, including the manslaughter conviction. The Arkansas Court of Appeals affirmed the termination, holding that sufficient evidence supported both the children’s best interest and at least one statutory ground for termination under Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(1). The court also granted Dawson’s counsel’s motion to withdraw after reviewing the no-merit brief.

family lawcriminal law

In Villasaldo v. Arkansas Department of Human Services, the Arkansas Court of Appeals reviewed Samantha Villasaldo’s challenge to the Sebastian County Circuit Court’s termination of her parental rights to her son J.G., who was adjudicated dependent-neglected in 2011 after suffering a skull fracture and broken ribs from physical abuse by an unknown offender, along with both parents’ failure to protect him. DHS had provided services including parenting classes, evaluations, and counseling, but filed for termination after the child remained out of custody for over a year, citing grounds such as unremedied conditions causing removal, subsequent factors endangering the child, and aggravated circumstances. The court affirmed the termination, holding that evidence—including psychological evaluations showing Villasaldo’s persistent lack of empathy, her failure to distance herself from potential abusers, and the unappealed adjudication finding—established she remained unable to protect J.G. despite case-plan compliance, making return to her custody contrary to the child’s welfare and necessitating permanency.

family law

In Belair v. State, the Arkansas Court of Appeals reviewed Thomas Belair’s appeal from the revocation of his probation, which had been imposed after his 2010 guilty plea to breaking or entering. The State alleged multiple violations, including failure to pay fines and costs as well as new criminal charges in Tennessee. At the revocation hearing, Belair objected on confrontation-clause grounds to a probation officer’s testimony about the Tennessee charges, but the trial court overruled the objection, granted a directed verdict on most of the alleged violations, and revoked probation solely for nonpayment of fines and costs. On appeal, Belair argued that the trial court erred in admitting the contested testimony. The Court of Appeals affirmed, holding that any error was harmless because the revocation rested only on the unchallenged evidence of nonpayment, and proof of a single violation is sufficient to sustain revocation.

criminal lawprocedure

This case involved a contract dispute between Southern Building Services and the City of Fort Smith over a construction project that the City terminated for delays. Southern sued for $183,701 in unpaid contract funds plus fees, while the City counterclaimed for liquidated damages, completion costs, and interest. Following a prior appeal that ordered a set-off of Southern’s claim against the City’s $134,250 liquidated-damages award (plus other adjustments), the trial court on remand found the City to be the prevailing party—due to its 90% reduction of Southern’s claim—and awarded it attorney’s fees while denying Southern prejudgment interest. The Arkansas Court of Appeals reversed, holding that Southern was the prevailing party because it obtained a net recovery of $18,451 after the set-off, and that Southern was entitled to prejudgment interest on its funds under the interest-on-the-balance rule since both parties’ claims arose from the same contract. The case was remanded for recalculation of fees and interest.

business & regulatoryprocedure

The case involved X.O.P., a juvenile charged with rape in Crawford County Circuit Court after an alleged nonconsensual sexual act with a former girlfriend. The trial court adjudicated him delinquent for second-degree sexual assault instead, even though the State never amended its petition and X.O.P. received no prior notice of the lesser charge. The Arkansas Court of Appeals affirmed the adjudication as modified, holding that the ruling did not violate due process. The court reasoned that second-degree sexual assault was effectively a lesser-included offense under the facts because both charges shared the disputed element of forcible compulsion (on which X.O.P. had notice and defended), while the distinguishing element of penetration was undisputed by the parties; it distinguished the case from one where the reduced charge turned on an unproven and un-noticed element.

criminal lawprocedure