35 results for 'judge:"Virden"'.
J. Virden finds the county court improperly denied the estate’s petition for a writ to revive a deficiency judgment obtained during foreclosure proceedings against debtors to the estate. The 10-year period for revival did not begin to run from the date of the initial foreclosure decree, but from that of the deficiency judgment. The decree did not dismiss the parties from the case or put the judgment into execution. Reversed.
Court: Arkansas Court Of Appeals, Judge: Virden , Filed On: May 8, 2024, Case #: CV-23-200, Categories: Debt Collection, Due Process, Banking / Lending
J. Virden finds the circuit court properly granted the behavioral health facility's petition to involuntarily commit the psychiatric patient. The patient absconded after a supervisory petition was granted, then was admitted to the facility with exacerbated psychosis. The patient, diagnosed with bipolar mania, has not complied with medication requirements and has refused therapy. She has been uncooperative, irritable and paranoid, has demonstrated poor judgement, and lacks insight into her condition. She has also been arrested for assault and presents a danger to herself and others. The appeals court defers to the circuit court's superior position. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden , Filed On: May 1, 2024, Case #: CV-23-465, Categories: Administrative Law, Health Care, Commitment
J. Virden finds the trial court properly convicted defendant for sexual assault and rape committed against his minor grandchildren based on sufficient evidence. The children testified the abuse, including vaginal and oral penetration, seemed like normal life. Defendant told one of the children that if she told anyone she would be committed to a mental institution, also threatening to hurt her pets. Witness credibility was properly considered, and the court properly elected to run the sentences consecutively. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden , Filed On: April 17, 2024, Case #: CR-23-581, Categories: Sentencing, Sex Offender, Child Victims
J. Virden finds the Workers' Compensation Commission properly affirmed the administrative law judge's determination the poultry processing worker sustained a compensable injury in the form of an occupational disease. The worker, who hung live chickens by their feet as they scratched and pecked him, developed a rash and nausea. He was later diagnosed with cardiopulmonary arrest, acute renal failure and other ailments after he was found unresponsive and taken for medical treatment. The processing facility does not specifically argue sufficiency of the evidence until its reply brief. The appeals court will not consider arguments first raised in a reply brief, being the worker would have no opportunity for rebuttal. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden , Filed On: April 10, 2024, Case #: CV-23-133, Categories: Tort, Due Process, Workers' Compensation
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J. Virden finds the trial court properly convicted defendant for multiple counts of being an accomplice to rape and kidnapping. Evidence shows defendant and the victim engaged in discussion of their sexual fetishes on a particular website, later meeting and engaging in non-sexual "pup play," where the victim pretended to be a dog. Evidence shows the victim was drugged and overpowered by defendant and forced to engage in sexual acts. The court has broad discretion on evidentiary rulings according to the rape-shield statute. Certain statements were properly allowed, and no abuse of discretion is found. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden , Filed On: March 27, 2024, Case #: CR-23-174, Categories: Evidence, Sex Offender
J. Virden finds the trial court properly convicted defendant for meth possession with the purpose to deliver based on sufficient evidence. An officer staking out a known drug house saw defendant pull up in his vehicle, stopped him, and found baggies with meth on his person. Furthermore, a search of his vehicle yielded various amounts of meth, as well as baggies. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden , Filed On: March 27, 2024, Case #: CR-23-337, Categories: Drug Offender, Evidence, Search
J. Virden finds the workers compensation commission properly awarded the prison mental health advisor a permanent anatomical impairment rating. The rating of 10% impairment was awarded for both the advisor's wrists for her compensable injury of carpel tunnel syndrome. Though the department argues there were no objective physical findings after surgery, there is still no requirement that medical testimony be based solely on objective findings. The record contains all necessary supporting findings. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden , Filed On: March 13, 2024, Case #: CV-23-30 , Categories: Evidence, Health Care, Workers' Compensation
J. Virden finds the county court properly determined the trust acquired a tract of land by adverse possession and acquiescence. The disputed land on the boundary between lots owned by the competing trusts has been maintained and used by the one trust for decades. This maintenance has been variously done be the lessee of a portion of the land as well as by owner family members. Businesses have also paid rent to the trust for billboards erected on the disputed tract. No clear error is found in the court's decision that the trust proved acquisition, and the parties’ conduct demonstrates an implied agreement. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden, Filed On: February 28, 2024, Case #: CV-22-532, Categories: Property, Contract
J. Virden finds the trial court properly convicted defendant for kidnapping. All evidence supports the conviction, as well as the court's denial of defendant's motion to represent himself. Defendant's arguments supporting self-representation included singing, explaining the problem was that he needed a real girlfriend, and referring to himself a soldier of truth and understanding. He also addressed the court as “Mommy” and “Judge K.” Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden , Filed On: January 31, 2024, Case #: CR-22-818, Categories: Evidence, Kidnapping, Self Representation
J. Virden finds the circuit court properly terminated the parent's parental rights to their infant children. Following removal of the children, the mother was incarcerated, and both parents failed to undergo treatment, tested positive for drugs, and failed to complete anger management or parenting classes. Both had violated a no-contact order and were charged with public intoxication, as well as disorderly conduct and resisting arrest. Furthermore, both parents attended only two of nine child visitations, leaving early each time. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden, Filed On: January 17, 2024, Case #: CV-23-382, Categories: Evidence, Family Law, Guardianship
J. Virden finds the circuit court properly terminated the mother's parental rights to her five children. The department filed a petition for emergency custody and dependency-neglect based on inadequate supervision, food, clothing, shelter and/or medical or mental healthcare, failure to protect a child from serious physical injury, and maltreatment. One child drowned while being cared for by a 13-year-old developmentally delayed child. The mother's boyfriend was also found to have abused the children. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden , Filed On: January 17, 2024, Case #: CV-23-507, Categories: Evidence, Family Law, Guardianship
J. Virden finds the trial court improperly denied the request for arrest reports and other materials under the Arkansas Freedom of Information Act. The trial court improperly interpreted case law involving the availability of materials during an ongoing investigation, improperly applying the undisclosed-investigations exemption. The case law did not establish a rule on what constitutes an undisclosed or ongoing investigation. Reversed.
Court: Arkansas Court Of Appeals, Judge: Virden , Filed On: January 10, 2024, Case #: CV-22-751, Categories: Public Record, Due Process
J. Virden finds the trial court properly convicted defendant by guilty plea for first-degree battery. At sentencing, the prosecutor spoke about parole eligibility and good behavior and had an exchange with defense counsel involving the wide range of potential punishments, during which the prosecutor said defendant almost cut the victim's arm off. The jury had already been instructed that closing arguments are not evidence. Moreover, the trial court properly overruled defense counsel’s objection because the prosecutor was permitted to ask for the maximum punishment available and could also seek to impress upon the jury the seriousness of the injury. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden , Filed On: December 13, 2023, Case #: CR-22-583, Categories: Prosecutorial Misconduct, Sentencing, Battery
J. Virden finds the trial court properly convicted defendant for manslaughter based on sufficient evidence. Walmart surveillance video showed defendant's car spinning and hitting other cars, and striking an 86-year-old grandmother pushing a shopping cart. He also tested positive for meth and marijuana. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden , Filed On: December 13, 2023, Case #: CR-23-278, Categories: Evidence, Manslaughter, Vehicle
J. Virden finds the circuit court properly denied the ex-husband's request to terminate his spousal support obligation. The ex-wife's ex-boyfriend, with whom she had a child, did not support her and his contact with her was only when he visited his child. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden, Filed On: November 29, 2023, Case #: CV-22-659, Categories: Evidence, Family Law
J. Virden finds the circuit court properly ruled that attorney-client privilege and work product objections to discovery production in a bid dispute were insufficient and waived. The involved companies jointly responded to a request for proposals to replace Nevada's computer-based child support enforcement system as contractor and subcontractor. Nevada did not award a contract, though a year later it issued further requests for proposals. The contractor won this bid without including the subcontractor. The contractor's preliminary statement involving discovery delays is not a sufficient attorney-client privilege or work product doctrine objection. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden, Filed On: November 29, 2023, Case #: CV-22-338, Categories: Discovery, Privilege, Contract
J. Virden finds the Board of Review properly upheld the appeal tribunal's decision the recipient must repay almost $16,000 in unemployment and pandemic assistance benefits. The overpayment was a result of the agency's receiving insufficient information to determine the recipient's last place of work, not due to agency error. The recipient also fails to satisfy her unemployment-waiver analysis. Affirmed in part.
Court: Arkansas Court Of Appeals, Judge: Virden , Filed On: November 15, 2023, Case #: E-22-457, Categories: Employment, Evidence, Covid-19
J. Virden finds the circuit court properly revoked defendant’s probation and suspended imposition of sentence for his guilty plea conviction for domestic battery. Defendant failed to pay fines, costs and fees, nor did he meet with his probation officer according to the terms of his probation. He also committed the new offense of domestic battery. All evidence supports the revocation. Defendant’s arrest and incarceration for the new offense were not related to revocation proceedings and his time in jail could not have been due to his inability to make bail in the revocation proceedings. The court correctly ruled that no jail-time credit is warranted. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden, Filed On: November 8, 2023, Case #: CR-23-122, Categories: Probation, Bail, Battery
J. Virden finds the circuit court properly awarded decedent’s wife a homestead and dowery interest in a property that decedent’s son claims funds a trust which would prevent the award. The court properly refused to admit certain trust documents by its own discretion and the arguments are not preserved for appeal because they were not raised in court. The circuit court also did not err in determining that no constructive trust was formed. The son does not assert that fraud, constructive fraud, false promise, or violation of fiduciary duty occurred that would give rise to a constructive trust. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden, Filed On: November 1, 2023, Case #: CV-21-443, Categories: Evidence, Trusts, Wills / Probate
J. Virden finds the trial court properly revoked defendant’s suspended imposition of sentence for his convictions on charges of commercial burglary, theft of property and firearm possession. The state presented evidence that defendant was honked at by a customer in the Walmart parking lot as he backed out of a parking space. That customer testified that defendant “floored it,” causing his car to spin and hit several other cars, also striking and killing another customer who had been loading groceries into her car. Defendant later tested positive for meth and marijuana. All evidence supports the revocation and the sentence is within statutory limits. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden, Filed On: November 1, 2023, Case #: CR-23-67, Categories: Drug Offender, Probation, Negligent Homicide
J. Virden finds the trial court properly convicted defendant for possession of meth and drug paraphernalia. Defendant was stopped while driving due to the arresting officer’s previous knowledge of his license suspension. The officer observed a glass pipe with a crystalline substance in the vehicle. Upon a search, he found digital scales and a baggie of 6.8 grams of meth. Defendant says that the officer’s testimony regarding defendant’s surprised reaction to the officer's seeing the pipe was speculative and misleading because it implied defendant knew of the pipe despite the lack of any evidence. The argument is not preserved for review. All evidence supports conviction. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden, Filed On: October 25, 2023, Case #: CR-23-141, Categories: Drug Offender, Evidence, Search
J. Virden finds the circuit court properly granted the grandparents’ petition to adopt the deceased mother’s child. The grandparents were granted permanent guardianship after the death of the mother. The other grandmother contests the order based on the advanced ages of the petitioners, also saying that it severs the legal relationship between her and the child. The petitioners are healthy and have a plan for in place for the child’s care if they should pass away before she is 18 years old. The court determined that the child is healthy and flourishing with the grandparents, who wish for visitation with the other grandmother to continue. The order gives stability and permanency priority over the other grandmother’s legal relationship. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden, Filed On: October 25, 2023, Case #: CV-22-543, Categories: Evidence, Family Law, Guardianship
J. Virden finds the trial court properly entered a change of custody order as to the divorced parties’ older minor daughter, and awarding custody of the younger daughter to the father. The trial court analyzed the custody arrangements under different standards, finding the living arrangements had significantly changed due to the father’s relocation. The mother failed to rebut the presumption that the relocation is in the older child’s best interest. The father testified that he had been convicted of sexual assault before the parties married. Though the mother asks the court of appeals to simply reverse and grant her custody, this court cannot act as a fact-finding body, and must reverse and remand for a specific finding on whether father posed no danger. Affirmed in part. Reversed in part and remanded.
Court: Arkansas Court Of Appeals, Judge: Virden, Filed On: October 4, 2023, Case #: CV-22-382, Categories: Evidence, Family Law, Guardianship
J. Virden finds the circuit court properly terminated the father’s parental rights to his minor child. The department filed a petition for emergency custody and dependency neglect alleging that the children were removed from the home due to parental drug use, inadequate supervision and medical neglect. The petition was filed after a family service worker dropped by the home to administer a drug test as part of an open dependency-neglect case regarding another sibling. Both parents were not in compliance with the current plan, and both produced cold urine samples. All evidence supports termination. Arguments regarding permanency goals are not preserved and would still fail because the potential family placements for the children are with a maternal relative and any rights of the paternal relatives were not derivative of their relationship with the child. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden, Filed On: October 4, 2023, Case #: CV-23-195, Categories: Family Law, Due Process, Guardianship
J. Virden finds that the trial court properly convicted a former Arkansas deputy of negligent homicide for fatally shooting an unarmed teenager. The deputy said he shot the the teen in the neck after the teen exited his truck and reached into the bed of the pickup while failing to comply with commands to show his hands. Two witnesses testified that they never heard the deputy tell the teen to show his hands. No abuse of discretion is found in denying the officer's requested jury instruction regarding the definition of "negligence," because the model instruction accurately stated the law, and the modification would have added a provision that did not exist. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden , Filed On: September 27, 2023, Case #: CR-22-377, Categories: Negligent Homicide, Jury Instructions
J. Virden finds the Arkansas Board of Review properly required the worker to repay unemployment-compensation benefits. The overpayment was a result of a final disqualifying determination finding that the worker was not able and available to work, not due to agency error. There is substantial evidence to support the findings. The Board also found that the worker was not at fault in causing the overpayment, which meets the first prong of the Federal Pandemic Unemployment Compensation-waiver analysis. This question is remanded for findings as to whether repayment of the FPUC benefits would be contrary to equity and good conscience. Affirmed in part.
Court: Arkansas Court Of Appeals, Judge: Virden , Filed On: September 20, 2023, Case #: E-22-362, Categories: Employment, Covid-19, Labor
J. Virden finds the circuit court properly awarded $39,085 in attorney fees to the estate administrator in the underlying trust-administration case regarding the removal of the trustee. Detailed findings were made regarding how the amount was calculated, and nothing indicates that the court granted the award without due consideration. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden , Filed On: September 20, 2023, Case #: CV-21-40, Categories: Trusts, Wills / Probate, Attorney Fees