361 results for 'court:"Arkansas Court Of Appeals"'.
J. Virden finds the circuit court improperly terminated the father’s parental rights. Investigation of a report that the parents were leaving their minor children in a rented room with no supervision yielded the father’s claim that he was working when the mother left the children alone. DHS then exercised a hold on the children. The record contains little detail, with no documentation of the father’s progress or compliance from the time of removal until the permanency-planning hearing when the court found he was making progress and working toward reunification. In the absence of proof of other factors, termination is clearly erroneous. Credibility findings on the father are insufficient for termination. Reversed and remanded. There is a dissenting opinion.
Court: Arkansas Court Of Appeals, Judge: Virden, Filed On: May 31, 2023, Case #: CV-22-666, Categories: Family Law, Due Process, Guardianship
J. Brown finds the circuit court properly granted summary judgment to the water authority in this wrongful termination suit. No genuine issue of material fact exists in relation to the former employee’s claims under the Arkansas Whistleblower Act or the Arkansas Civil Rights Act. The employee failed to refute the evidence that he was terminated for the legitimate, nondiscriminatory reasons of failing to meet expectations and for insubordination and harassment. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Brown, Filed On: May 24, 2023, Case #: CV-21-252, Categories: Evidence, Employment Retaliation
J. Barrett finds the trial court improperly dismissed the wife’s divorce, paternity and child custody complaint for lack of subject matter jurisdiction. The parents are legal, seasonal migrant workers and Mexican citizens. The circuit court had entered an order for emergency custody on allegations that the husband had left the children alone in a hot car while he worked, intending to abscond with them. Arkansas is not the family’s legal home, though it is uncontroverted that the children have not lived in Mexico for six consecutive months for the past two years and were not living in Mexico when this case was initiated. The circuit court failed to determine if Mexico or any other state was a home state for the children. Reversed and remanded.
Court: Arkansas Court Of Appeals, Judge: Barrett, Filed On: May 24, 2023, Case #: CV-22-641, Categories: Family Law, Immigration, International Law
J. Virden finds the trial court improperly entered summary judgment in favor of certain tenants who claim the apartment management breached lease agreement covenants, creating and maintaining “a [mold] nuisance in the common areas of the apartment complex.” There is no evidence on record that three tenants in this suit paid rent, signed a lease or otherwise could state a claim. As to other, valid tenants, previous holdings by the Arkansas Court of Appeals have established that a circuit court errs when it grants summary judgment on a breach-of-contract claim when proof of causation was lacking. Nominal damages may be recovered “for a breach of contract unaccompanied by any actual damage,” according to prior guiding cases, which is sufficient to preclude summary judgment. Affirmed in part. Reversed in part and remanded.
Court: Arkansas Court Of Appeals, Judge: Virden, Filed On: May 24, 2023, Case #: CV-20-628, Categories: Landlord Tenant, Damages, Contract
J. Thyer finds the circuit court properly found the decedent’s illegitimate daughter to be an undisputed heir to his estate. The 180-day time limit for the daughter to file a claim was satisfied because the power of attorney acknowledging decedent’s paternity was executed prior to his death. She asserted a claim in a court of competent jurisdiction, satisfying a qualifying condition of the relevant statute. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Thyer, Filed On: May 24, 2023, Case #: CV-22-270, Categories: Wills / Probate, Due Process
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J. Gruber finds the circuit court properly granted summary judgment to the niece who had alleged that her aunt breached multiple duties as the sole trustee of two educational trusts. The niece argues that the order does not specifically mention pre- or postjudgment interest, but that the interest rate is part of the order directing the trustee to comply, stating that the trustee must transfer $250,000, “valued at the day of grantor’s death.” The trustee never argued a specific rate should be applied. The court did not err as a matter of law in ordering the trustee to transfer the amount plus interest at 6% per annum from the date of the grandmother’s death. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Gruber, Filed On: May 24, 2023, Case #: CV-21-35, Categories: Trusts, Wills / Probate, Contract
J. Gladwin finds the trial court properly convicted defendant for aggravated assault on a family member, domestic battery and endangering the welfare of a minor. Though defendant says he was trying to keep his daughter from leaving the house in the middle of the night, she testified that he, while drunk, came into her room as she was sleeping and started an argument. He began throwing lamps, then choked her. She ran out of the house and he and his dog chased her down. He again choked her as she attempted to flee. Home security video confirmed these events. Defendant claims that an evidence rule was used contrary to jury instruction, but his argument is not preserved for appeal. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Gladwin, Filed On: May 24, 2023, Case #: CR-22-773, Categories: Assault, Domestic Violence, Jury Instructions
J. Hixson finds the trial court properly convicted defendant for aggravated assault on a family or household member, terroristic threatening and domestic battering. His wife testified that he choked her unconscious for being unable to find him a pair of socks, stating during the attack that he would kill her and their son if she left him. After the attack defendant would not let her leave the house with both children at the same time. In his motion for directed verdict, defendant’s counsel stated, “On the charge of domestic battery … there’s been insufficient evidence … to show that [defendant] caused … injury” to the victim intentionally.He fails to argue that his proposed “extreme stress” negated purposeful intent. This argument is also conclusory and without citation to supporting authority. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Hixson, Filed On: May 24, 2023, Case #: CR-22-258, Categories: Evidence, Assault, Domestic Violence
J. Thyer finds the trial court improperly convicted defendant for possession of meth and marijuana with the purpose to deliver, improperly denying his motion for directed verdict. The investigating officer testified that he found the drugs in a truck parked near where defendant was sleeping and that he had seen defendant driving it earlier and “believed” it to be defendant’s. The truck’s doors were unlocked, the windows were rolled down, it was parked close to the road and no keys were found. There is no evidence that the truck or the drugs were ever in defendant’s exclusive possession. Reversed and dismissed.
Court: Arkansas Court Of Appeals, Judge: Thyer, Filed On: May 24, 2023, Case #: CR-22-644, Categories: Drug Offender, Evidence
J. Klappenbach finds the trial court improperly dismissed the counterclaim filed by the citizen seeking a declaration of rights to an implied easement of pedestrian ingress and egress over the property at question in this imminent domain action. The counterclaim was wrongly dismissed as untimely. Whether it existed at the time the citizens filed their answer or after, the relevant rule of civil procedure permits filing beyond the 30-day limit for filing an answer. Reversed and remanded.
Court: Arkansas Court Of Appeals, Judge: Klappenbach, Filed On: May 24, 2023, Case #: CV-22-166, Categories: Property, Due Process
J. Harrison finds the Workers’ Compensation Commission properly awarded the teacher permanent disability benefits for a 4% impairment to her cervical spine and 5% wage-loss disability arising from a slip and fall on a wet ramp as she helped children to the school bus. A neuropsychological evaluation stated that “the overall pattern of the … evaluation is not compatible with a traumatic brain injury.” This is sufficient to show that the teacher did not suffer a permanent brain impairment. The district’s argument that the wage loss award is time-barred, claiming that the teacher’s injuries were not incurred on the date in question, is moot. Affirmed on appeal and cross-appeal.
Court: Arkansas Court Of Appeals, Judge: Harrison, Filed On: May 17, 2023, Case #: CV-22-413, Categories: Employment, Health Care, Tort
J. Brown finds the circuit court properly terminated reunification services with the mother, suspending visitation with her and granting permanent custody of the minor children to their father. A family service worker alleged, based on an investigation into a child abuse hotline tip, that the unstable mother has failed to assist the diabetic child with her medical needs. The mother fails to cite any legal authority for her contention that without the court providing services that it cannot assess whether further services could result in successful reunification. The issue of visitation is within the discretion of the court, with the primary consideration being the children’s best interest. The testimony and evidence will not be reweighed. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Brown, Filed On: May 17, 2023, Case #: CV-22-811, Categories: Family Law, Guardianship
J. Thyer finds the circuit court properly revoked defendant’s suspended imposition of sentence on two counts of terroristic threatening, sentencing him as a habitual offender. The SIS was revoked due to defendant’s possessing and using controlled substances and failing to pay costs. The original sentencing order, which did not clarify upon which counts defendant was sentenced as a habitual offender as been corrected on remand. His argument that there was an incorrect departure from guidelines is without merit. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Thyer, Filed On: May 17, 2023, Case #: CR-22-175, Categories: Probation, Sentencing, Terrorism
J. Harrison finds the trial court properly dismissed this lawsuit, for yearslong want of service, which alleges tortious conduct of emergency room workers who reported unfounded elder abuse. The process server is the only witness of the service attempt. His testimony shows that he could reasonably have concluded that the people who accepted process were the emergency room workers, and that service was complete. The case should be considered a “completed attempt,” rather than “no service” case, and the court’s dismissal should have been without prejudice. Affirmed as modified.
Court: Arkansas Court Of Appeals, Judge: Harrison, Filed On: May 17, 2023, Case #: CV-22-1, Categories: Health Care, Due Process, Elder Abuse
J. Harrison finds the district court properly granted the stepfather’s petition to adopt the minor child without the biological father’s consent. The stepfather had assumed the role of father for more than four years. The mother expressed her consent and the petition alleged that the biological father’s consent was not required because he had failed without justifiable cause, for at least one year, to have meaningful communication with his child or to provide care and support as required by the divorce decree. The stepfather is a consistent, dependable presence who has cared for the child since he was a toddler. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Harrison, Filed On: May 17, 2023, Case #: CV-22-420, Categories: Family Law, Guardianship
J. Wood finds the circuit court properly terminated both parent’s parental rights. The department filed for emergency custody as the children had been reported dependent neglected, living with their maternal grandparents while the mother was homeless. A child reported that he had been hit with a belt by his step-grandfather for “breaking the rules.” The mother has been in minimal compliance with her case plan and all evidence supports termination. The father failed to attend a visitation hearing and had not complied with any court orders or case plan. The father filed a motion for reconsideration or relative placement, but because it was not filed within ten days of the termination order it was not subject to the deemed-denial provision of the rules of appellate procedure. The court never ruled on this motion and there is nothing for review. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Wood, Filed On: May 17, 2023, Case #: CV-22-761, Categories: Family Law, Due Process, Guardianship
J. Gladwin finds the circuit court improperly denied certain expenditures by the guardian of the now deceased ward, her husband, as allowable expenditures of the guardianship. The record supports that evidence introduced at the previous hearing on remand shows that no insurance premiums were for a policy on the guardian’s life. The court erred in disallowing these on remand, which were previously mistakenly allowed as the policy might have been on the guardian’s life. The court erred in finding that these premiums should be disallowed on the basis that there is no benefit to the guardianship or estate. The policies would have directly benefited the guardian’s husband had she predeceased him. Reversed and remanded.
Court: Arkansas Court Of Appeals, Judge: Gladwin, Filed On: May 17, 2023, Case #: CV-20-472, Categories: Insurance, Wills / Probate, Guardianship
J. Klappenbach finds the trial court properly convicted defendant for one count of rape. The victim, who had been drinking on and off with defendant, testified that she believes defendant drugged her, remembering only that she woke up on his couch with his penis in her mouth. She bit his penis, then he held her down, forcibly having intercourse despite her protests. Defendant admits to having had sex with the victim, and her testimony constitutes substantial evidence. The jury is free to believe or disbelieve any testimony. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Klappenbach, Filed On: May 17, 2023, Case #: CR-22-560, Categories: Evidence, Sex Offender, Assault
J. Barrett finds the trial court properly granted summary judgment to an agricultural company, ordering the wife of a family member to restore $150,00 in funds belonging to the company. The company’s corporate minutes of the relevant date state that outstanding shares of stock were going to be transferred to the children of a stockholding family member. The wife of the family member transferring the stocks to his sons failed to prove that these actions were fraudulent or were intended to divest her of interest she might have. She then wrongfully conveyed to herself bank funds belonging to the company. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Barrett, Filed On: May 17, 2023, Case #: CV-22-487, Categories: Agriculture, Fraud, Banking / Lending
J. Hixson finds the trial court properly convicted defendant for 30 counts of distributing, possessing or viewing child pornography, sentencing him as a habitual offender to 30 consecutive 15-year prison terms. A tip by an internet service provider resulted in a search of defendant’s computer equipment yielding images of juvenile males engaged in sexually explicit conduct with adult males. Defendant failed to prove that the trial judge exhibited prejudice by not recusing himself based on his past law partnership with the prosecutor. The search of defendant’s home and computer equipment was properly warranted and certain statements made by defendant indicated he knew of the content of certain files. The sentencing order is modified to delete the designation of defendant as a sexually dangerous person. Affirmed as modified.
Court: Arkansas Court Of Appeals, Judge: Hixson, Filed On: May 17, 2023, Case #: CR-22-572, Categories: Sex Offender, Child Pornography, Technology
J. Abramson finds the trial court properly revoked defendant’s probation and granted counsel’s motion to withdraw. Defendant was convicted by guilty plea for false imprisonment and domestic battery. The state alleged that defendant had committed new offenses, tested positive for alcohol and drugs, failed to report, failed to notify of an address change, failed to pay fees, fines and costs and failed to complete a domestic battery course and community service. The record shows that the attorney has complied with rules of procedure according to Anders and that there is no nonfrivolous argument that could serve as the basis for appeal. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Abramson, Filed On: May 17, 2023, Case #: CR-21-255, Categories: Probation, Battery, Due Process
J. Virden finds the circuit court properly terminated the father’s parental rights. A family services worker testified that DHS had placed a hold on three children after police responded to the mother’s home following a report of her and her boyfriend physically fighting while intoxicated. The child shared by her and the father had been living with the mother because the father was in prison because he was convicted of two counts of felon in possession of a firearm. The child has had a stable foster home for over two years. The father concedes that she could not live with him at the halfway house and there is little likelihood that services would result in successful reunification. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Virden, Filed On: May 17, 2023, Case #: CV-22-793, Categories: Family Law, Due Process, Guardianship
J. Murphy finds the county court properly entered order dissolving the divorced couple’s joint-custody arrangement, awarding sole custody of the minor children to the father. The mother was arrested and charged with battery after an altercation had with the father’s new, pregnant wife during a custody exchange. A protective order was entered, and custody was temporarily given to the father. Officer testimony, body camera footage and testimony of a friend who says the children are more well-adjusted in the father’s custody all weigh in favor of the best interest finding. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Murphy, Filed On: May 10, 2023, Case #: CV-22-375, Categories: Family Law, Restraining Order, Guardianship
J. Hixson finds on this interlocutory appeal, the circuit court properly struck the farm’s answers to the lender’s complaints alleging it had defaulted on five retail installment sale contracts and security agreements covering property including tractors and other farm equipment. When the farm responded, after delays, to interrogatories and requests for production, its response that “I hope I can get this information within the next 10 business days,” being evasive, is treated as a failure to respond according to rules of civil procedure. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Hixson, Filed On: May 10, 2023, Case #: CV-22-367, Categories: Agriculture, Property, Banking / Lending
J. Gladwin finds the circuit court properly granted the counterclaim of the wife of the deceased land purchaser, quieting title to the property, giving her the warranty deed and title insurance, and granting $30,000 in compensatory damages. Payment on the land had allegedly become delinquent after her husband died, though she had no access to purged payment records. She was without her husband’s testimony as to payments he had made or agreements he may or may not have had with the seller’s predecessor in title. The seller also failed to provide sufficient records as proof of nonpayment. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Gladwin, Filed On: May 10, 2023, Case #: CV-22-218, Categories: Property, Damages, Contract
J. Klappenbach finds the circuit court improperly entered order striking the roofing company’s counterclaim and third-party complaint as responses to the developer’s suit asserting causes of action for declaratory judgment, breach of contract, breach of warranty, negligence, misrepresentation and fraud and strict liability for an allegedly poor roofing job. No hearing was granted, nor was time to respond given before the court’s ruling. Reversed and remanded.
Court: Arkansas Court Of Appeals, Judge: Klappenbach, Filed On: May 10, 2023, Case #: CV-22-372, Categories: Construction, Due Process, Contract
J. Abramson finds the circuit court properly determined support and visitation in this marriage dissolution and custody dispute. The mother was at some point arrested and pleaded guilty to drug offenses. The father filed for divorce and was later arrested after an altercation with the mother was witnessed by the children. After the divorce was granted, custody was awarded to the mother. Claims of error as to custody and visitation are presented as requests to “second-guess” the weight of the evidence and witness credibility. The father does not cite any legal authority in support of his arguments. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Abramson, Filed On: May 10, 2023, Case #: CV-22-318, Categories: Family Law, Guardianship
J. Murphy finds the circuit court properly denied the elder healthcare facility’s motion to compel arbitration of the medical malpractice claim for lack of a valid arbitration agreement. Power of attorney did not grant the elder’s son the authority to bind the decedent to the arbitration agreement, invalidating it. The decedent did not sign the agreement, and her son only signed as a “responsible party.” A box next to the signature line requesting definition of the signatory’s relationship with the patient was not marked. A space confirming the facility’s receipt of guardianship papers was also left blank. Affirmed.
Court: Arkansas Court Of Appeals, Judge: Murphy, Filed On: May 10, 2023, Case #: CV-22-75, Categories: Arbitration, Health Care, Medical Malpractice
J. Gruber finds the trial court properly convicted defendant for firearm possession and fleeing, sentencing him as a habitual offender to over 500 months in prison. Fleeing at speeds of up to 100 mph after the officer attempted to pull him over, defendant’s vehicle was immobilized and found to contain many firearms, have no registration and to be tagged with incorrect license plates. There is sufficient evidence to show constructive possession of the guns. Defendant’s argument that there is insufficient evidence regarding his identity was not raised at trial and is procedurally barred. The case is remanded to correct a clerical error in the sentencing order. Affirmed and remanded.
Court: Arkansas Court Of Appeals, Judge: Gruber, Filed On: May 10, 2023, Case #: CR-22-743, Categories: Firearms, Escape, Vehicle
J. Hixson finds the board of review improperly ordered the temp worker to repay over $14,000 in unemployment, pandemic assistance and Lost Wage Assistance benefits. The worker failed to contact the agency for reassignment though she was advised of this requirement at hiring. She also failed to show good cause as to why she didn’t seek reassignment, though the board failed to make a finding as to the federal waiver analysis. The worker is correctly ordered to repay state unemployment benefits, though the case is remanded to determine whether she must repay pandemic and LWA benefits. Affirmed in part. Remanded in part.
Court: Arkansas Court Of Appeals, Judge: Hixson, Filed On: May 10, 2023, Case #: E-22-203, Categories: Employment, Government, Covid-19