Preservation and Posttrial Motions

In Rothwell v. Rothwell, 2025 Ark. App. 613, the Court of Appeals considered whether an issue that became apparent in the circuit court’s final order was preserved for appeal when it was not raised in the appellant’s posttrial motion for reconsideration or new trial.

RESULT: On rehearing, the Court of Appeals “declined to hold that [an appellant’s] failure to object in the posttrial motion precludes him from raising the issue on appeal[.]” Id. at 26. In other words, if the appellant files a post-judgment (Rule 59 or Rule 60) motion, he or she is not required to include every appealable issue that was raised by the court’s final order.

REASONING:

• The Supreme Court has consistently said that posttrial motions are optional. It is not necessary to file a posttrial motion to preserve an issue for appeal that appeared in the circuit court’s final order or judgment. Harrell v. City of Conway, 296 Ark. 247, 249, 753 S.W.2d 542, 543 (1988).
  
• If a posttrial motion is not necessary to preserve an issue for appeal, then it should not be the case that an appellant could waive an issue by failing to raise it in his or her posttrial motion.
  
  THIS CASE IS NOTEWORTHY BECAUSE:
  
• Before the rehearing, the Court of Appeals ruled that “a party who files [a posttrial] motion and fails to include an argument that could be addressed by the circuit court has not raised the issue at the earliest opportunity and therefore has waived the issue.”
  
• The final opinion includes a dissent by Judge Wendy Wood, advocating for such a rule: “Although I recognize that a party is not generally required to raise issues in a posttrial motion in order to preserve them for appeal, a party who files such a motion specifically challenging the circuit court’s order creates an opportunity to bring all issues regarding the order to the attention of the circuit court.” (Emphasis in original).

FINAL THOUGHTS: Be careful with posttrial motions! The Court’s waiver rules are ever evolving. Before firing off a posttrial motion, take a good look at the appealable issues and draft the motion with the appeal in mind.