Philip Whiteaker

Daniel Honey was convicted by a Logan County jury of one count of rape and one count of second-degree sexual assault involving a seven-year-old child. On appeal, he contended that the circuit court erred in denying his motion for a mistrial after the State cross-examined him about an undisclosed allegation of improper conduct with another child, which he claimed violated pretrial discovery requests for Rule 404(b) evidence. The Arkansas Court of Appeals did not reach the merits of that argument. Instead, it remanded the case to settle and supplement the record with the missing jury verdict forms, ordered Honey to file a supplemented addendum and a full abstract of the trial testimony, and directed rebriefing. The court explained that these deficiencies prevented it from reviewing the mistrial claim or conducting any harmless-error analysis regarding the strength of the evidence.

criminal lawprocedure

In this case, business partners Spencer Elmen and Steven Wait, equal members and designated managers of two Arkansas LLCs operating a Cupid’s Lingerie store, became embroiled in a dispute after Elmen sued Wait individually and derivatively for alleged conversion, breach of fiduciary duty, and related claims based on assertions that Wait diverted company assets for personal use; Elmen sought monetary damages plus a preliminary injunction removing Wait from management and requiring an accounting. The Pulaski County Circuit Court granted the preliminary injunction, but the Arkansas Court of Appeals reversed and remanded with instructions to dissolve it. The appellate court held that the circuit court abused its discretion because Elmen had not demonstrated irreparable harm, as the alleged financial harms were compensable by money damages and reputational damage does not qualify as irreparable harm warranting injunctive relief. The court further found that the injunction improperly granted sua sponte relief beyond the scope of the pleadings by suspending payments to both parties.

business & regulatoryproceduretorts & liability

Brian Skender sued his employer, Union Pacific Railroad, under the Federal Employers’ Liability Act for a workplace injury sustained in Pine Bluff, Arkansas, filing an initial complaint in 2013 and a second one in 2015 after the first was dismissed without prejudice. The circuit court ultimately dismissed both complaints with prejudice, ruling that Skender had not shown the diligence or extraordinary circumstances needed for equitable tolling of FELA’s three-year statute of limitations. On appeal, the Arkansas Court of Appeals declined to reach the merits of Skender’s challenge to that ruling. Instead, it held that the addendum to his appellate brief was deficient under Rule 4-2(a)(8) because it omitted the pleadings, motions, and related documents from the original 2013 case that are necessary to confirm jurisdiction and decide the issues presented. The court therefore ordered Skender to file a supplemental addendum within seven days.

labor & employmentproceduretorts & liability

Aaron Cutsinger was convicted by a Sebastian County jury of first-degree murder of Leanora Rippy, attempted first-degree murder of her infant son, and committing the murder in the presence of a child, after evidence showed he repeatedly ran over Rippy with his truck and left her and the child on a mountain road. On appeal, Cutsinger argued that the circuit court erred by denying his motion in limine and admitting a text message in which he stated he was “ready to kill me some cops,” claiming the statement was irrelevant and unduly prejudicial. The Arkansas Court of Appeals agreed that admitting the message was error but held the error harmless, because the remaining evidence of guilt—including matching tire tracks and vehicle trim at the scene, DNA from Rippy’s blood and tissue on Cutsinger’s truck and shoes, and his own detailed confession—was overwhelming. The court therefore affirmed the convictions and consecutive sentences.

criminal lawprocedure

In a divorce case between Michael and Pamelia Tipton, the Perry County Circuit Court granted the divorce and ordered an unequal division of marital assets, awarding Pamelia the couple’s real property and mobile home plus her retirement account while allowing Michael to keep his own retirement accounts of unknown value. Michael appealed, arguing that the court failed to follow Arkansas law governing property division. The Arkansas Court of Appeals reversed and remanded, holding that under Arkansas Code Annotated section 9-12-315(a), marital property must be divided equally unless the court finds an equal division inequitable and then expressly considers and recites one or more of nine statutory factors to justify the unequal split. The circuit court’s written order made an unequal distribution based on the parties’ agreement to shield assets from creditors but recited none of the required factors, rendering the division erroneous as a matter of law.

family lawproperty

The case concerned Janefer Ogborn’s challenge to an administrative decision by the Arkansas Department of Human Services placing her name on the Child Maltreatment Central Registry after allegations that she had neglected her three stepchildren by depriving them of adequate food, restricting their movement and sleep, and maintaining severely limited living conditions. Parallel proceedings included a dependency-neglect case in which Ogborn stipulated to a finding of dependency-neglect based on inadequate food, malnutrition, environmental neglect, and extreme cruelty, as well as criminal charges on which she was ultimately acquitted. The Arkansas Court of Appeals affirmed the registry placement. The court held that the circuit court’s dependency-neglect adjudication, issued by a court of competent jurisdiction on the same facts, had preclusive effect under Arkansas Code Annotated section 12-18-807, requiring the administrative law judge to apply issue preclusion and collateral estoppel without relitigating the underlying allegations. Because the “actually litigated” element of collateral estoppel was satisfied, the ALJ properly declined to hold a new hearing or reach a contrary result.

family lawprocedure

The case involved Danielle Knight’s appeal of a Clay County Circuit Court order terminating her parental rights to her son, S.L., after the Arkansas Department of Human Services took custody following her 2016 arrest for methamphetamine and related items found in the home where the child was present. The child had been adjudicated dependent-neglected based on parental unfitness due to drug use, and Knight had only partially complied with the case plan by failing multiple drug screens, lacking stable employment, skipping a required psychological evaluation, and pleading guilty to drug charges. The Arkansas Court of Appeals affirmed the termination, holding that clear and convincing evidence supported both the twelve-months-failure-to-remedy and subsequent-other-factors statutory grounds, as well as the finding that termination was in the child’s best interest because of the risk of potential harm from Knight’s instability and lack of awareness of the child’s special needs.

family law

In Smith v. State, the Arkansas Court of Appeals addressed an appeal from a Columbia County Circuit Court order that revoked Roddrick Larnell Smith’s probation—imposed after his 2016 guilty plea to furnishing prohibited articles—and sentenced him to five years in prison plus five years’ suspended imposition of sentence. Smith’s appointed counsel filed a no-merit brief under Anders v. California and Arkansas Supreme Court Rule 4-3(k), seeking to withdraw on the ground that the appeal lacked merit, and asserted that all adverse rulings had been properly abstracted and discussed. The court determined that counsel had omitted an additional adverse ruling: the trial court’s denial of Smith’s request for continued probation rather than incarceration. Because Rule 4-3(k) requires counsel in a no-merit appeal to abstract every adverse ruling and explain why it would not support reversal, the omission rendered the brief deficient. The court therefore denied counsel’s motion to withdraw without prejudice and ordered rebriefing within fifteen days.

criminal lawprocedure

In this case, Trent Kimbrell appealed after entering a conditional no-contest plea to being a felon in possession of a firearm under Arkansas Code Annotated section 5-73-103, arguing that the statute and the related expungement provisions in section 16-93-303 (governing Act 346 probation dispositions) were unconstitutional as applied to him. His 1995 no-contest plea to conspiracy to deliver a controlled substance resulted in probation that was never completed successfully or expunged, which a prior appeal had already upheld as a valid predicate felony conviction. The Arkansas Court of Appeals affirmed the circuit court’s denial of Kimbrell’s constitutional challenges, holding that the statutes were neither facially nor as-applied unconstitutional. The court’s core reasoning was that Kimbrell lacked standing to contest the 1995-era amendment to section 5-73-103(b)(2), because he had not fulfilled his probation conditions and thus was never entitled to automatic expungement under the version of the law in effect at the time of his plea.

gunscriminal law

Heather Kirby and Jeffrey Semeyn divorced in 2003, with Kirby awarded custody of their two children (one disabled) and Semeyn ordered to pay child support under a decree that included both chart-based support and separate trust contributions for the children's benefit. In 2015, Kirby sought increased support and arrears; the trial court granted the increase (including by counting trust payments as support) but denied arrears, leading to cross-appeals. The Arkansas Court of Appeals affirmed the denial of arrears on direct appeal but reversed and remanded on cross-appeal. It held that the trust payments did not constitute child support because the decree placed them in a separate section from the "support and maintenance" provisions, calculated them as a fixed percentage of gross income rather than per the child-support chart, and provided that any remainder would revert to the parents. This error also invalidated the associated awards of interest and attorney's fees.

family law

The Prescott School District appealed a Nevada County jury verdict awarding Patricia Steed damages on her breach-of-contract claim after the District ended her employment as a teacher during the 2013–2014 school year. Steed had sued for breach of contract, violation of the Arkansas Teacher Fair Dismissal Act, and reckless infliction of emotional distress, but the parties tried only the contract claim to the jury while the other claims remained unresolved. The Arkansas Court of Appeals dismissed the appeal without prejudice, holding that no final, appealable order existed under Arkansas Rule of Appellate Procedure–Civil 2 and Rule of Civil Procedure 54(b). The court explained that Steed’s voluntary nonsuits of the remaining claims, which were dismissed without prejudice in December 2016, did not bar refiling within the applicable savings period, so the action was not fully terminated.

labor & employmentproceduretorts & liability

In O'Dell v. Peck, beneficiary Ashley Peck O’Dell sued trustee Hannah Peck Finley seeking a declaratory judgment on whether the trustee’s reports met the disclosure requirements of the Arkansas Trust Code. The Pulaski County Circuit Court dismissed the complaint with prejudice, concluding that O’Dell lacked standing as a qualified beneficiary. The Arkansas Court of Appeals reversed and remanded, holding that the complaint’s allegations—that O’Dell was a qualified beneficiary entitled to information from the trustee—were sufficient on their face to state a claim. The court reasoned that a motion to dismiss must be decided solely on the complaint’s allegations, which are treated as true, and that affirmative defenses such as lack of standing generally require factual proof beyond the pleadings.

propertyprocedure

In Lacy v. State, Dorian Lacy appealed the Clark County Circuit Court’s denial of his motion for a new sentencing trial after he pleaded guilty to rape and received a 40-year sentence from a jury. Lacy argued that a juror had failed to disclose personal familiarity with the victim, which the juror revealed only after the verdict. The Arkansas Court of Appeals did not reach the merits of the appeal. Instead, it remanded the case to settle and supplement the record with the missing jury verdict form and ordered Lacy to file a substituted abstract and addendum that includes the testimony from the sentencing hearing. The court explained that these deficiencies in the record and abstract prevented it from determining whether any juror misconduct had prejudiced Lacy’s substantial rights.

criminal lawprocedure

The case involved Johna McNeer’s appeal of a Clark County Circuit Court order terminating her parental rights to her twin children, following repeated findings of dependency-neglect due to her drug use, neglect, and parental unfitness. The Arkansas Department of Human Services had taken custody of the children after incidents including a hit-and-run, cocaine found in McNeer’s car near the children, and her failure to comply with drug screens and treatment; custody was briefly returned but later removed again amid ongoing issues. McNeer did not contest the statutory grounds for termination but argued that termination was not in the children’s best interest due to insufficient evidence of adoptability and potential harm. The Arkansas Court of Appeals affirmed the termination, holding that clear evidence supported the best-interest finding, including testimony about McNeer’s long-term drug addiction, repeated treatment failures, incarceration, and resulting instability, which posed a risk of harm to the children if returned to her custody.

family law

The AGRED Foundation appealed a Lafayette County Circuit Court order that granted summary judgment to the Friends of Lake Erling Association (FOLEA) in a dispute over public access to Lake Erling. FOLEA had sued for declaratory relief and injunctions, claiming AGRED’s new permit, fee, and boat-decal programs violated a 1952 agreement requiring the lake’s owner to maintain public access; AGRED had moved to dismiss for lack of standing, and the parties filed cross-motions for summary judgment. The circuit court found FOLEA had standing and granted it partial summary judgment declaring unrestricted access rights, but its order left unresolved one of FOLEA’s specific claims concerning fees for docks and structures. The Arkansas Court of Appeals dismissed the appeal without prejudice, holding that the order was not final and appealable because it did not dispose of all claims and lacked a Rule 54(b) certification.

propertyprocedure

The case involved Johna McNeer’s appeal of a Clark County Circuit Court order terminating her parental rights to her twin children, after the Arkansas Department of Human Services (DHS) had twice removed the children due to neglect and parental unfitness tied to McNeer’s drug use, mental-health issues, failure to comply with drug screens and treatment, and periods of incarceration. McNeer did not challenge the statutory grounds for termination but argued that the evidence was insufficient to support the court’s best-interest finding, particularly regarding adoptability and potential harm if the children were returned to her. The Arkansas Court of Appeals affirmed the termination, holding that the circuit court’s best-interest determination was not clearly erroneous. The court cited evidence of McNeer’s long-term drug addiction, repeated treatment failures, ongoing instability, and incarceration, along with testimony from a CASA director and the children’s therapist describing the children’s anxiety, desire for permanency, and the harm that would result from reunification. The opinion emphasized that potential harm can be assessed broadly in a forward-looking manner without requiring proof of a specific harm by clear and convincing evidence.

family law

The case involved Natasha Furnish's appeal of a Craighead County Circuit Court order terminating her parental rights to three children after the Arkansas Department of Human Services removed them in 2015 due to her positive drug tests and adjudicated them dependent-neglected based on parental unfitness. The trial court granted termination on the subsequent-other-factors statutory ground, finding Furnish had failed to comply with the case plan by not completing parenting classes or drug treatment, obtaining stable housing or employment, or submitting to required drug screens, and it also determined termination served the children's best interests because they were adoptable and faced potential harm from her ongoing drug use and instability. On appeal, the Arkansas Court of Appeals affirmed, holding that the trial court's findings on both the statutory ground and best-interest factors were supported by clear and convincing evidence and were not clearly erroneous. The court noted that a parent's continued illegal drug use alone can establish potential harm and that evidence of adoptability does not require identification of specific adoptive placements.

family law

In *Beck v. Arkansas Department of Human Services*, Crystal Beck appealed a Garland County Circuit Court order terminating her parental rights to her two daughters after the children were removed from her custody in 2015. DHS had removed the girls following Beck’s positive drug test for multiple substances, her driving them while impaired, and concerns about her ability to provide a safe home; the court later adjudicated the children dependent-neglected on grounds of neglect and parental unfitness. The circuit court granted DHS’s petition after finding statutory grounds of twelve months’ failure to remedy, subsequent other factors, and aggravated circumstances, and after determining termination was in the children’s best interest due to Beck’s incomplete compliance with the case plan, ongoing substance use, unstable housing and employment, and the risk of harm to the children. The Arkansas Court of Appeals affirmed, holding that the trial court’s findings on both the statutory grounds and best-interest factors were supported by clear and convincing evidence and were not clearly erroneous.

family law

Matthew Reagan Coger was convicted by a Madison County jury of manufacturing methamphetamine, two counts of possessing drug paraphernalia, being a felon in possession of a firearm, and the misdemeanor of acquiring ephedrine or pseudoephedrine within a 30-day period, and he received an aggregate 29-year sentence. On appeal, the Arkansas Court of Appeals affirmed the felony convictions but reversed the misdemeanor ephedrine conviction. The court held that substantial evidence supported the manufacturing and paraphernalia convictions because officers executing a search warrant found precursors, solvents, an HCL generator, lithium batteries, wet coffee filters, and other manufacturing items in and around the pink trailer where Coger was present; the firearm conviction was supported by a loaded pistol found inside the trailer. The misdemeanor count was reversed for lack of evidence that Coger acquired the substances during the charged 30-day window. The court further held that the trial court did not abuse its discretion in admitting Coger’s 2008 methamphetamine-manufacturing conviction under Arkansas Rule of Evidence 404(b) to show knowledge and intent, citing the similar items recovered in the prior case.

criminal lawgunsprocedure

This case involves a custody dispute between Joanne Doughty (a U.S. resident) and Richard Douglas (an Australian resident) over their minor child E.D., who was born in California in 2010 and moved with Doughty to Arkansas in 2012. After Douglas filed a paternity action in California and Doughty filed in Arkansas, the Arkansas circuit court awarded joint custody and ordered Douglas to pay interim attorney’s fees; Douglas cross-appealed, challenging jurisdiction under the UCCJEA and the fee awards. The Arkansas Court of Appeals affirmed jurisdiction, holding that Arkansas was E.D.’s home state under the UCCJEA because the child had lived there for over six months, the California court had stayed its proceedings after a judicial conference, and no other state had properly asserted jurisdiction. On attorney’s fees, the court affirmed the initial awards as reasonable exercises of discretion tied to the paternity action but reversed the May and August 2014 awards, finding they were based solely on Douglas’s greater financial resources rather than statutory factors.

family law