# Jones v. Flowers

> Supreme Court of Arkansas · April 17, 2008 · 373 Ark. 213

URL: https://www.frixlaw.com/law-library/cases/9689504

## Case

- **Full name:** Gary Kent JONES v. Linda K. FLOWERS and Mark Wilcox, Commissioner of State Lands
- **Court:** Supreme Court of Arkansas
- **Decided:** April 17, 2008
- **Citations:** 373 Ark. 213; 283 S.W.3d 551; 2008 Ark. LEXIS 267
- **Precedential status:** Published
- **Opinion:** Concurrence by Brown
- **Judges:** Tom Glaze
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9689504

## Opinion text

L. Brown, Justice. I concur in the result, but I disagree with the majority’s footnote number 3 and would delete the discussion of Rule 54(e) raised by the State for the first time on appeal.
Two doctrines seem to have been conflated by the majority in the footnote. The first is the doctrine that we will affirm a trial court’s decision for an alternative reason on the basis that the trial court may have reached the right result but the reason stated for the decision is wrong. See, e.g., Bell v. State, 371 Ark. 375 , 387 n.2, 266 S.W.3d 696 , 702 n.2 (2007) (known as the “affirmance rule”). The second doctrine is that this court on occasion will address an issue likely to recur in a new trial after the case has been reversed and remanded to the trial court, which I will call the “likely to recur rule.” See, e.g., Bailey v. Rose Care Ctr., 307 Ark. 14, 20 , 817 S.W.2d 412, 415 (1991).
The issue facing this court is whether, under either doctrine, the issue raised here must first be raised to the trial court before this court addresses it. I believe it should. It is not the task of an appellate court to address undeveloped issues raised for the first time on appeal. As we said in Hanlin v. State, 356 Ark. 516, 529 , 157 S.W.3d 181, 189 (2004):
The problem with this court’s application of the pedophile exception, sua sponte, is that it was not raised by the State before the circuit judge or in this appeal. Thus, Hanlin has not had an opportunity to address it or raise any defense to it. Though this court will go, on occasion, to the record to affirm for a different reason, typically this is done when that alternative reason was raised by a party and has been developed at the circuit court level. See, e.g., Johnson v. State, 343 Ark. 343 , 37 S.W.3d 191 (2001); Heagerty v. State, 335 Ark. 520 , 983 S.W.2d 908 (1998). We have also affirmed for a different reason when the documentary evidence in the record clearly gave us a basis for doing so (State of Washington v. Thompson, 339 Ark. 417 , 6 S.W.3d 82 (1999)), or when a statute, not argued by either party, is used by this court to affirm the trial court’s determination (Robinson v. State, 274 Ark. 312 , 624 S.W.2d 435 (1981)). This court has been resolute in stating that we will not make a party’s argument for that party or raise an issue, sua sponte, unless it involves the trial court’s jurisdiction. See, e.g., Ilo v. State, 350 Ark., 138, 85 S.W.3d 542 (2002). Moreover, we will not consider an argument unless it has been properly developed. See Haire v. State, 340 Ark. 11 , 8 S.W.3d 468 (2000).
See also Simmons First Nat’l Bank v. Wells, 279 Ark. 204 , 650 S.W.2d 236 (1983) (“We must determine the issues upon the record that was made in the trial court. The facts essential to the question now argued were not pleaded in the court below and therefore cannot serve as the basis for a decision in this court.”) (quoting Palmer v. Cline, 254 Ark. 393, 395 , 494 S.W.2d 112, 114 (1973)); Green v. Ferguson, 263 Ark. 601, 605-06 , 567 S.W.2d 89, 91-92 (1978) (case reversed and remanded; court refused to consider appellee’s alternative argument raised for first time on appeal); Sharp v. Great S. Coaches, Inc., 256 Ark. 773, 775 , 510 S.W.2d 266, 267 (1974) (case reversed and remanded; appellee could not raise new argument for first time on appeal that loss of profits could not be included as damages for loss of use); McDonald v. Petty, 254 Ark. 705, 710 , 496 S.W.2d 365, 368 (1973) (trial court reversed; appellees cannot raise for first time on appeal that revivor action must be brought in names of heirs of parties).
Regarding the doctrine that we may address issues likely to recur on remand, we have said:
Counsel for the commission sought to prove the price for which comparable property in the neighborhood had recently been sold. The court excluded that evidence, stating that an expert witness might consider such sales in forming his opinion about the value of the property being condemned, but, said the court, such evidence had no probative value with respect to the property in dispute and therefore should not be heard by the jury. Although we might on this appeal sustain the court’s ruling on the narrow ground that counsel for the commission failed to make an offer of proof that the other property was in fact comparable to the appellees’ land, we must consider the point on its merits, simply because it will doubtless recur upon a new trial. The court’s position was wrong. Upon a proper showing of comparability such evidence is admissible and should be heard by the jury.
Ark. State Highway Comm’n v. Ark. Real Estate Co., Inc., 243 Ark. 738, 740 , 421 S.W.2d 882 , 884 (1967); see also Bailey, 307 Ark. at 20 , 817 S.W.2d at 415 (reversing and remanding for a new trial because appellant’s first point on appeal was found to have merit, then proceeding to address and reject two other of appellant’s points on appeal “since they will likely recur on remand”). In both cases, the issue had been raised to the trial court first.
The cases adduced in the majority’s footnote 3 do not support its position of hearing the Rule 54(e) issue for the first time on appeal. In McCoy v. State, 348 Ark. 239 , 74 S.W.3d 599 (2002) (rehearing denied), we refused to address an alternative basis for affirmance raised by the State and apply the “affirmance rule” because the issue had not been raised to the trial court. That is precisely my point.
In Flores v. State, we listed three reasons for not addressing an alternative argument for affirmance raised by the State: (1) the State did not give notice to the defendant as required by Arkansas Rule of Evidence 803(24); (2) the residual hearsay exception was never raised to the trial court; (3) the trial court never made the necessary findings under Rule 803(24). 348 Ark. 28, 47 , 69 S.W.3d 864, 876 (2002). That holding also supports my position that the issue must first be raised to the trial court.
In Simmons First Nat’l Bank v. Wells, this court did state that we could affirm on a legal theory not raised to the trial court, but we refused to do so because “evidence relevant to Act 401 was not sufficiently developed for us to apply the rule that we will affirm the trial court if the correct result is reached, even if reached on an erroneous theory.” 279 Ark. at 212 , 650 S.W.2d at 240 . We reversed and remanded the case so the issue in controversy could be developed before the trial court. At best, the Wells case is contradictory.
The better rule is not to address arguments under the “affirmance rule” or the “likely to recur rule” that have not been raised and developed before the trial court. For that reason, I dissent from that part of the majority’s opinion addressing the Rule 54(e) issue for the first time on appeal.
Danielson, J., joins this opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9689504. Public record. Not legal advice.