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Robert A. Leflar Law Center
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University of Arkansas
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It’s All Or Nothing: Preserving Errors For Arkansas Appeals

By · November 18, 2016 · 2016 Ark. L. Notes 1938
In categories: Appellate Practice, Extended Article, Featured Story

 Perhaps more than the most paranoid litigation attorneys lose sleep (or find nightmares) when reflecting on the topic of preserving issues for appeal. Seemingly well-versed in the teachings of Murphy’s Law, preservation stumbling blocks haunt us, and we should all strive to educate ourselves on this fickle topic to better assist clients and, more selfishly, to maintain personal sanity.

Locating these stumbling blocks brings to mind humanity’s age-old pursuit of the pesky kitchen fly, whose skillful dodges make it difficult to locate and swat. Our goal is to corner that fly and prevent it from buzzing away by cutting off its escape routes. Similarly, an adept attorney should locate and corner preservation stumbling blocks and swat them down to prevent problems.

This article focuses on a particular preservation-law fly that has received considerable attention in Arkansas’s appellate courts.[2] It is no study in rocket surgery that we must move the trial court for relief before seeking appellate review.[3] The trial court must also rule on our motion before we may trouble an appellate court.[4] The specificity of such a ruling is the point that has gotten so much airtime recently on the Arkansas appellate courts’ airwaves, and the resulting law is somewhat surprising and perhaps counterintuitive. For example, suppose you move the trial court for relief on three grounds, and it denies your motion and explains why one of your three grounds fails. Are the two unmentioned points preserved? What if the trial court denies the motion with no explanation? Is anything preserved? Hopefully the following discussion will help you resolve some of these questions.

The All-or-Nothing State of the Law

The story begins with the Arkansas Supreme Court’s 2012 decision in Arkansas Lottery Commission v. Alpha Marketing.[5] The appellant moved the trial court to dismiss the appellee’s amended complaint because the appellant was entitled to sovereign immunity, among other reasons.[6] The trial court reiterated the parties’ arguments in its ruling, including the sovereign-immunity arguments, but it did not resolve or elaborate on that issue.[7] Instead, the trial court addressed and rejected the appellant’s other arguments and denied the motion.[8] The appellant filed an interlocutory appeal.[9]

In a 4–3 decision, the Arkansas Supreme Court dismissed the appeal because “the absence of an express ruling [on sovereign immunity was] fatal.”[10] It explained that “[l]ogic dictates that, before an interlocutory appeal may be pursued from the denial of a motion to dismiss on the ground of sovereign immunity, we must have in place an order denying a motion to dismiss on that basis.”[11] The court further concluded that it could not and should not presume a ruling from the trial court’s silence.[12] Finally, it extrapolated the principle behind the ruling requirement to situations where the trial court ruled upon the challenged action but for reasons other than those raised on appeal:

We have no way of determining from the record that the trial court did in fact make a ruling, nor, assuming one was made, the nature or extent of the ruling. It may be that the trial court reserved a ruling until the evidence was more fully developed and that the issue was left unresolved. It may be that depending on the ruling, appellant waived any objection on appeal, because it was he who elicited proof of the convictions during his case in chief. The point is that with no record of a ruling we can only speculate as to whether a ruling was made and what the particulars of the ruling may have been. Obviously, for an accurate and fair review of the question, that information is critical.[13]

The Arkansas Supreme Court, again in a 4–3 decision, relied on Alpha Marketing to resolve TEMCO Construction, LLC v. Gann, a 2013 decision involving a final judgment.[14] The appellees in TEMCO moved to dismiss the appellant’s complaint on three grounds, one of which was the appellant’s failure to satisfy certain statutory requirements.[15] The appellant responded by contesting these grounds as well as by arguing that if the trial court bought the appellees’ statutory-requirements argument, then the statute in question is unconstitutional.[16] The trial court bought the appellees’ statutory-requirements argument and dismissed the complaint.[17] The trial court explained that it had considered “all arguments, pleadings, briefs, and exhibits,” but its order discussed only its acceptance of the appellees’ statutory-requirement argument.[18] It did not discuss the appellant’s response to that argument, the appellant’s alternative argument that the statute in question is unconstitutional, or the parties’ other arguments.[19]

The appellant raised its contentions to the Arkansas Supreme Court, but that court concluded that the appellant did not preserve its arguments.[20] The court determined that the trial court’s consideration of “all arguments, pleadings, briefs, and exhibits” carried no preservational weight,[21] and it rejected the appellant’s contention that the trial court effectively ruled on its arguments by dismissing on the very ground that the appellant’s arguments sought to counter.[22] The court emphasized, moreover, that its lack of original jurisdiction precludes it from resolving issues in the first instance.[23]

While Alpha Marketing and TEMCO suggest that some discussion of each argument is required for preservation, subsequent decisions provide a more Seinfeldian requirement: The ruling should be about nothing, or at least not say anything more than “granted” or “denied.”[24] For example, the Arkansas Supreme Court later distinguished TEMCO by explaining that a trial court’s grant of summary judgment, which contained no specific findings, could have been based on any of the grounds raised below because Arkansas Rule of Civil Procedure 52(a) does not obligate trial courts to make findings of fact or conclusions of law when deciding a motion.[25] Because the trial court essentially said nothing, everything was preserved.

The result is the following rule as the Arkansas Court of Appeals recently summarized:

[W]hen a circuit court’s order specifies a particular ground for the court’s decision, that ground alone is subject to our review. Other arguments that the appellant raised below but did not obtain a ruling on are not preserved for appeal, and we are precluded from addressing them. By contrast, if the circuit court’s order is more in the nature of a “blanket” decision and does not articulate a particular basis for its ruling, then the order encompasses all of the issues presented to the circuit court in the parties’ briefs and arguments.[26]

What Attorneys Should Do

After chewing on this all-or-nothing ruling rule, you probably wonder why you should not obtain a blanket ruling limited to the words “granted” or “denied.” A blanket ruling would have lower costs than an all-encompassing ruling in terms of resistance from opposing counsel and the trial court. Indeed, a blanket ruling may be advisable in some circumstances, but consider a few things.

First, the law occasionally requires something more than a blanket ruling.[27] For example, if you plan to seek certain types of interlocutory review, be sure that the trial court addresses the jurisdictional hook that gives the appellate court power to review. The Arkansas Supreme Court said as much in Alpha Marketing when it explained that “before an interlocutory appeal may be pursued from the denial of a motion to dismiss on the ground of sovereign immunity, we must have in place an order denying a motion to dismiss on that basis.”[28] So if the appellate court’s jurisdiction rests on a specific finding, opt for the all-encompassing order.

Constitutional challenges also require an express ruling.[29] The Arkansas Supreme Court stated in TEMCO that it “has consistently required express rulings from trial courts on constitutional challenges,” and it is not enough that the trial court seemingly ignores your constitutional challenge by applying the challenged statute.[30] This rule may fall within the ruling requirement, but cautious counsel should elect for a detailed ruling in light of the court’s expansive language in TEMCO.

Arkansas Rule of Civil Procedure 52(a), moreover, requires trial courts to make findings of fact and conclusions of law at a party’s request following bench trials and when granting or refusing interlocutory injunctions. Rule 52 generally does not require findings and conclusions when resolving motions, so if you plan to appeal the resolution of a motion, a blanket ruling may work. Note that I say “generally” because sometimes more-detailed findings and conclusions are required for resolving motions,[31] like rulings on motions for class certification.[32] In short, do not allow your desire for a blanket ruling to contravene a rule requiring flesh on the bones.

Of course, it may be your strategic preference to get a specific ruling, in which case you need specifics on every issue that you may appeal. For example, you may want the reviewing court to have a front-row seat to faulty reasoning, and a mere “granted” or “denied” just will not do. The possibilities here are endless and best left to the practitioner’s judgment.

Second, it is unclear how long the more-permissive attitude toward blanket rulings will continue. If reviewing courts cannot discern the contours of rulings that actually contain some analysis, then it seems odd that their telepathic powers would be keener when confronted with a blanket ruling. Therefore, the Arkansas Supreme Court could quickly reverse course on its blanket-ruling attitude by importing the logic supporting its refusal to review issues not analyzed in non-blanket rulings. Of course, you do not want your case to prompt the turnaround, so the extra-cautious will obtain detail on every potentially reviewable point. Better safe than sorry. Although you may find yourself in an uncomfortable position asking the trial court to provide more detail, you could seek a writ of mandamus should the trial court refuse.[33] Remember that the appellant must obtain a ruling; a trial court’s failure to rule is not error correctable by ordinary appeal.[34]

Finally, if you are drafting a specific order or opinion, consider adding a sentence that says something like, “The Court has considered each and every argument presented by [PARTY] in opposition of this motion and rejects them all.” This sentence should alleviate concerns that the lower court did not rule or deferred doing so.[35] Just keep in mind that the trial court’s mere consideration of an issue, coupled with its implicit rejection, is presently not enough. The sentence may also ease concerns that an argument was unintentionally omitted and unpreserved for review.

Conclusion

Preserving issues for appeal can be daunting. Hopefully this article shines light on the current law on a particular aspect of preservation—ruling specificity—and enables you to swat the next preservational fly that comes your way.


Notes

[1] Luke K. Burton is the career law clerk for the Honorable Morris Sheppard Arnold of the U.S. Court of Appeals for the Eighth Circuit. He was formerly an associate at Kutak Rock LLP where he practiced appellate advocacy. He would like to thank Samantha Leflar of Kutak Rock LLP for her assistance in the preparation of this essay. Nothing in this essay should be construed as representing the views of the Honorable Morris Sheppard Arnold or the U.S. Court of Appeals for the Eighth Circuit.

[2] This essay focuses only on preservation in Arkansas, not federal, courts.

[3] Silkman v. Evangelical Lutheran Good Samaritan Soc’y, 474 S.W.3d 74, 76 (Ark. 2015).

[4] Grunwald v. McCall, 446 S.W.3d 217, 221 (Ark. App. 2014).

[5] Arkansas Lottery Com’n v. Alpha Marketing, 386 S.W.3d 400,403 (Ark. 2012).

[6] Id. at 401–02.

[7] Id. at 403.

[8] Id.

[9] Id. at 403–04; see also Ark. R. App. P.—Civ. 2(a)(10) (allowing interlocutory appeals of orders denying a motion to dismiss based on sovereign immunity).

[10] 386 S.W.3d at 403–05.

[11] Id. at 404.

[12] Id.

[13] Id. at 405 (quoting McDonald v. Wilcox, 780 S.W.2d 17, 19 (Ark. 1989)).

[14] TEMCO Const., LLC v. Gann, 427 S.W.3d 651, 654–55 (Ark. 2013).

[15] Id. at 653–54.

[16] Id. at 654.

[17] Id. at 654–55.

[18] Id.

[19] TEMCO, 427 S.W.3d at 654-55.

[20] Id. at 655–60.

[21] Id. at 655–56.

[22] Id. at 655–57.

[23] Id. at 659–60.

[24] See J-McDaniel Const. Co., Inc. v. Dale E. Peters Plumbing Ltd., 436 S.W.3d 458, 465 (Ark. 2014).

[25] Id.

[26] Sloop v. Kiker, 484 S.W.3d 696, 699 (Ark. App. 2016) (citations omitted).

[27] See Alpha Mktg., 386 S.W.3d at 404–05.

[28] Id. at 404.

[29] TEMCO, 427 S.W.3d at 658–59.

[30] Id.

[31] But see Ark. R. Civ. P. 52(a)(1).

[32] See BPS Inc. v. Richardson, 20 S.W.3d 403, 411 (Ark. 2000).

[33] See TEMCO, 427 S.W.3d at 661–62 (Hannah, C.J., dissenting) (acknowledging the “unenviable” position in which TEMCO places counsel, but noting that a petition for relief to the Arkansas Supreme Court may help attorneys facing a trial court’s intransigence).

[34] See Eversole v. Eversole, 476 S.W.3d 199, 205–06 (Ark. App. 2015) (rejecting that trial court committed reversible error by failing to make a specific ruling).

[35] See Smith v. Daniel, 452 S.W.3d 575, 578 (Ark. 2014) (reasoning that a similar sentence acknowledging the trial court’s consideration of “all of the other arguments” that appellants submitted in favor of summary judgment and its denial of summary judgment “as to each argument” preserved the issues for appeal).

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