Posted by: Tasha C. Taylor | April 22, 2010

Arkansas Supreme Court Overrules Previous Arkansas Appellate Court Decisions Inconsistent with the Court’s Strict Preservation Rule

Today, the Arkansas Supreme Court overruled two previous decisions that were in conflict with the Court’s holdings that require a party to make a “contemporaneous objection at trial” in order to preserve an argument for appellate review. Lamontagne v. Arkansas Department of Human Services, 2010 Ark. 190, at 7, Case No. 09-859 (April 22, 2010)

In its decision, the Court overruled its previous decision in Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000), and the Court of Appeals’s previous decision in Morrow v. Morrow, 270 Ark. 31, 603 S.W.2d 431 (Ark. App. 1980). See Lamontagne.

In 1980, the Court of Appeals observed and held in Morrow that “[t]raditionally appeals from the chancery court are reviewed de novo and there is no requirement of objections to the findings, conclusions and decree of the court to obtain review on appeal.” 270 Ark. at 33, 603 S.W.2d at 432.

In its 2000 decision in Jones, the Arkansas Supreme Court relied on the Court of Appeals’s decision in Morrow to hold that there was no requirement that a contemporaneous objection be made in order to preserve an issue for appeal. Jones, 341 Ark. at 72, 15 S.W.3d at 314. 

Today, in Lamontagne, the Court pointed out that while the Jones decision relied on Morrow, the Morrow decision–as noted by Judge Newbern in his dissent to Morrow–did not rely on any authority for its proposition that an argument can be raised in an appeal from a chancery court decision that was not made below.  In overruling Jones and Morrow, the Court relied, in part, on its 1951 decision in Umberger v. Westmoreland, 218 Ark. 632, 645, 238 S.W.2d 495, 502 (1951), in which the Court held: “we unanimously hold that in cases hereafter tried, all objections to evidence and witnesses must be made in a timely manner in the trial court, and if not so made, such objections will be considered as waived when the case reaches us on appeal.”

From the time the Umberger decision was handed down, more than fifty years ago, the Arkansas Supreme Court has consistently held that “it is incumbent on the parties to raise arguments initially to the circuit court and to give that court an opportunity to consider them.” see Roberts v. Yang, 2010 Ark. 55, at 6, ___ S.W.3d ___; see also Lamontagne, supra.  The Court’s decision today overruling previous appellate court decisions inconsistent with this position confirms that the Court has no plans to waiver from this well-settled rule, as it is frequently requested to do by attorneys.

Judge Wills, in a concurring opinion, which was joined by Judge Danielson, expresses some concern that the Court had to deal with this issue:

It is both remarkable and troubling that this question persists and this court must again clarify the necessity of raising issues below to preserve them for appeal.  I write separately to “call attention of the Bench and Bar” to this issue, as this court did in Umberger over half a century ago.

Lamontagne, 2010 Ark. 190, at 13 (Wills, J., Danielson, J., concurring).

It is hopeful that the Court’s opinion today will alleviate any confusion that caused concern on the part of the concurring justices–a confusion that, at least in part, was caused by the appellate courts’ decisions in Jones and Morrow.


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