A. Introduction
B. Appeals from Circuit Court that Must be Taken Immediately
1. Appeals from Interlocutory Orders Granting, Modifying, or Denying an Injunction
(a) Appealable orders2. Appeals from Probate Orders
(b) When to appeal
(c) Stay pending appeal
(d) Proceedings on appeal
(e) Effect on proceedings in circuit court
(a) Cautionary note about the Probate Code3. Discretionary Appeals from Certain Discovery Orders
(b) Appealable orders
(c) When to appeal
(d) Stay pending appeal
(e) Proceedings on appeal
(a) Appealable orders
(b) How and when to appeal
(c) Stay pending appeal
(d) Proceedings on appeal
C. Administrative Appeals
1. Appeals Under the Administrative Procedure Act
2. Workers' Compensation Appeals
(a) Appeal process3. Unemployment Compensation Benefits
(b) Record on appeal
4. Public Service Commission Appeals
5. Arkansas Pollution Control and Ecology Commission
(a) Notice of appeal and processing
(b) Presumptions, burden of proof, and evidentiary record
(c) Stays
D. Appeals in Dependency-Neglect Cases
E. Appeals to Circuit Court from District Court
1. De Novo Review
2. Time to Appeal
3. How Taken
4. Procedure on Appeal from District Court
5. Referral from Circuit Court
6. Supersedeas Bonds
F. Election Appeals
1. Time to Appeal
(a) Challenges to outcomes and certification2. Appellate Jurisdiction
(b) Challenges to petitions for local-option elections
3. Expedited Consideration
G. Other Statutory Appeal Rights and Procedures
A. Introduction
The preceding chapters have set out general rules for civil appeals to the Arkansas Supreme Court and Court of Appeals. This chapter focuses on appeals where special considerations or different procedures apply, including appeals from district court to circuit court, and appeals from circuit court that must be taken immediately to avoid forfeiture.
B. Appeals from Circuit Court that Must be Taken Immediately
Although ARAP-Civ 2(a) allows immediate appeals from certain court orders, many attorneys assumed until 2011 that those were also "intermediate orders" under Rule 2(b), which meant a party could forgo an immediate appeal and seek review after judgment. That assumption was wrong: any order that can be appealed immediately must be appealed immediately. In re Estate of Stinnett, 2011 Ark. 278, at 7-8, 383 S.W.3d 357, 361. Stinnett has combined with related preservation doctrines to invert the traditional relationship between interlocutory orders and final judgments, creating grave and generally unappreciated risks of forfeiture. Now, you must assume that every order from which an immediate appeal might be proper will be conclusive and unreviewable if you do not appeal immediately. Until the Arkansas Supreme Court says otherwise, you should assume the following five things:
First, if an order can be immediately appealed under ARAP-Civ 2(a), it will conclude the matters it decides, and be unreviewable in the circuit or appellate courts, unless an immediate appeal is perfected. See Steinbuch v. Univ. of Ark., 2019 Ark. 356, at 11 n.5, 589 S.W.3d 350, 357 n.5; In re Estate of Stinnett, 2011 Ark. 278, at 7-8, 383 S.W.3d at 361; Estate of Shockley v. Bassett, 2021 Ark. App. 326, at 13, 634 S.W.3d 787, 795; Trask v. Trask, 2018 Ark. App. 400, at 10-11, 559 S.W.3d 277, 282-83.
Second, if an order might be an order that can be immediately appealed under Rule 2(a), you should treat it as one and immediately appeal. The appellate courts are the only place—and an immediate appeal the only time—to determine that the order is not final. If the time to take an immediate appeal lapses, or if an attempted appeal is mishandled and dismissed, the order will be treated as final.
For example, if an otherwise nonfinal order is styled as final under ARCP 54(b), but lacks the findings required by ARCP 54(b)(2), an immediate appeal from the order will be dismissed because the order is not final without them. E.g., Gray v. White River Health Sys., 2016 Ark. 73, at 4-5, 483 S.W.3d 293, 296. The appellant will not have received a decision on the merits. However, the mandate will ensure the order is treated as nonfinal in future proceedings.
But the Supreme Court has reasoned that it cannot decide the finality of an earlier order that was not appealed within 30 days because whether an order is final is "always secondary" to whether an appeal is timely. Sloan v. Ark. Rural Med. Practice Loan and Scholarship Bd., 369 Ark. 442, 446, 255 S.W.3d 834, 838 (2007). The dictum that finality is "always secondary" to timeliness has been extended from the facts in Sloan—where no order was timely appealed—to timely appeals from a final order where Rule 2(b) would allow review of an order if an immediate appeal would not have been proper. Pockrus v. Morris, 2020 Ark. App. 364, at 6, 608 S.W.3d 159, 162; see also Massanelli v. Massanelli, 2016 Ark. App. 90, at 5-10 (Harrison, J., concurring) (expressing dissatisfaction with Sloan's approach).
The boundaries of Sloan's "always secondary" statement have not been explored in depth. But see Cooper v. Bryant, 2022 Ark. App. 90, at 5-7 (declining to apply Sloan where the "findings of fact and conclusions of law" that were appealed had no indicia of appealability to put parties on notice that the time to file a notice of appeal had started to run). In this author's view, it is hard to reconcile Sloan with the holding in Stinnett that an "intermediate order" under ARAP-Civ 2(b) is an order that cannot be appealed immediately under ARAP-Civ 2(a). 2011 Ark. 278, at 7-8, 383 S.W.3d at 361. Because an "intermediate order" can be reviewed in a timely appeal from a final order no matter how much time has passed, determining finality also determines timeliness when ARAP-Civ 2(b) is in play. Indeed, Stinnett held that the appeal was timely from one order, but untimely from an earlier order, because the earlier order could have been immediately appealed under Rule 2(a). Id. at 8-9, 383 S.W.3d at 361-62.
Moreover, some orders are neither "final" nor "intermediate" under ARAP-Civ 2. And not every document signed by a judge is an "order." E.g., Brown v. Brown, 2016 Ark. App. 172, at 5. It is not obvious to the author how a broad principle that finality is "always secondary" to timeliness could bar a jurisdictional determination that a Rule 54(b) certificate is defective but allow the equally jurisdictional determination that it accompanied an "order."
Perhaps the principle in Sloan is narrower: ARCP 54(b)(3) might imply a 30-day clock when finality is determined by a 54(b) certificate. See Pockrus, 2020 Ark. App. 364, at 5, 608 S.W.3d 159, 161-62. Sloan, however, has been read broadly so far. See Massanelli, 2016 Ark. App. 90, at 5 (Harrison, J., concurring). But see Cooper v. Bryant, 2022 Ark. App. 90, at 5-7.
Third, when the record in an immediate appeal is lodged with the appellate court, the circuit court ordinarily loses jurisdiction over the matters on appeal until the mandate is returned. For example, a plaintiff who wins a preliminary injunction on a contract-based claim cannot nonsuit that claim until the mandate restores the circuit court's jurisdiction over the merits. Box v. J.B. Hunt Transp., Inc., 2019 Ark. App. 334, at 11-12, 578 S.W.3d 719, 725.
Fourth, appreciate that preclusion doctrines like collateral estoppel and res judicata can apply to orders that are (or might be) immediately appealable under Rule 2(a): where an appeal was taken from an intermediate order admitting a will to probate, but dismissed because the record was tendered late, a circuit court correctly ruled that an attempt to relitigate those matters for appeal from the final order of distribution was barred by res judicata. Simmons v. Estate of Wilkerson, 318 Ark. 371, 372-73, 885 S.W.2d 673, 674-75 (1994); accord Steinbuch v. Univ. of Ark., 2019 Ark. 356, at 11 n.5, 589 S.W.3d 350, 357 n.5 ("To the extent [the appellant] also attempts to appeal the circuit court's [earlier] denial of his motion for preliminary injunction on mootness grounds, he failed to appeal that court ruling pursuant to Rule 2(a)(6) of the Arkansas Rules of Appellate Procedure-Civil. Thus, he failed to preserve any challenge to it."). Indeed, because an order rejecting an asserted privilege was immediately appealed under ARAP-Civ 2(f), the order was sufficiently final to prevent a party from relitigating privilege when the document was sought in a separate action. Entergy Ark., Inc. v. Allen, 2021 Ark. App. 71, at 20-21, 618 S.W.3d 427, 439 (applying collateral estoppel).
Finally, because the findings and conclusions in an order can determine its preclusive effect, an immediately appealable order presents an opportunity for the careful draftsman and requires vigilance by the opposing party.
This subsection discusses some, but not all, orders that can be immediately appealed under ARAP-Civ 2(a). You should heed the principles just discussed when assessing whether any order that is (or might be) an order from which an appeal "may be taken" under ARAP-Civ 2(a)(2)-(13).
1. Appeals from Interlocutory Orders Granting, Modifying, or Denying an Injunction2
Because orders granting, modifying, or denying an injunction typically include findings and conclusions on the merits, you must immediately appeal or risk being bound by otherwise preliminary determinations of those issues. See Steinbuch v. Univ. of Ark., 2019 Ark. 356, at 11 n.5, 589 S.W.3d 350, 357 n.5.
(a) Appealable orders
A party may—and therefore must—immediately appeal from an interlocutory order "by which an injunction is granted, continued, modified, refused, or dissolved, or by which an application to dissolve or modify an injunction is refused[.]" ARAP-Civ 2(a)(6). An "injunction" includes a temporary restraining order. Three Sisters Petroleum, Inc. v. Langley, 348 Ark. 167, 173-74, 72 S.W.3d 95, 99-100 (2002); Mounce v. Jeronimo Insulating, LLC, ...
