*1 is а strong presumption “There record the decision appellant not testify.” that conduct counsel’s falls within wide We have held in an earlier case range professional assis reasonable to make a record on failure tance, petitioner and the has the burden of right waiver of does testify overсoming presumption identify constitute ineffective assistance of counsel. ing the acts and omissions of Williams, 489, 14, at 385 S.W.3d which, per viewed from counsel’s when event, In any 237. the court credited trial, spective time of at the could not have Spruell’s testimony agreed that Sandrelli professional been the result reasonable testify and found Sandrelli’s con- judgment.” Feuget, 2015 Ark. 454 trary Spruell testimony unbelievable. ex- S.W.3d “Matters of trial strategy 738. plained that in the first trial the State did tactics, improvident, if arguably not play the video interviews with Sandrel- fall profes within realm of counsel’s li; however, trial, in the second the State judgment sional grounds are not Spruell did the video. introduce was con- finding of assistance of coun ineffective cerned Sandrelli’s demeanor the vid- State, sel.” Noel 35, 41-42, 342 Ark. eo as well as the video depicting interview 123, 127 giving Sandrelli different than he answers gave on in the first cross-examination trial. on argument Sandrelli’s Spruell explained stated that he these per takes the circuit court’s issue with agreed facts to Sandrelli Sandrelli formance example, as a fact-finder. For he that he testify. should not argues that on court “focuses err clearly did when it found that points support would trial Spruell’s to not testify advice was based ignores facts professional reasonable judgment. support appellant.” highlights He testi mony Star, testified Woodrow who Affirmed.
that he Spruell never told that he Rhad
reservations about the second
trial. notes that Sandrelli Star’s Spruell’s testimony.
contradicted held,
as we have
repeatedly
it
axiomatic
credibility determinations
within
of the trial court. Williams v.
province
We also on the second
point. argues that Sandrelli the court erred brought
when “did not the fact address Spruell get
forth on the failure to *2 Firm, by: Donald
Knapp Lewis E. Law Lewis, Jr., Helena, Knapp, Michael C. and appellee. GOODSON, COURTNEY HUDSON Associate Justiсe | interlocutory appeal This is an ¶ Phillips County Circuit Court’s dis- Jr., Halpert, qualification of Charles E. appellant, Country counsel for the Helena (“the Club”). reversal, For Club Club argues that the circuit court erred alleged of an conclusion that evidence negotia- during made statement settlement to allow Bil- appеllee, tions was admissible ly Ray Splash Spa Brocato Pool and d/b/a (“Brocato”), attorney Club’s witness; court erred in and attorney disqualifying the Club’s opposing statement that would be called as witness. jurisdiction pursuant to Arkansas Our 2(a)(8) Appellate Rule of Procedure—Civil mer- unable address the us, its of on the record beforе and to settle the we therefore remand record. September Brocato filed
On against alleging claims complaint of contract a violation breach Deceptive Practices Act Arkansas Trade |2(“ADTPA”). alleged in The facts as Brocato had complaint indicated that been pool сleaning providing maintenance previous for the five services Club agree- oral years pursuant parties’ parties Brocato that the had a ment. dealing per- course of wherein he would appropriate form the services he deemed bill the for those and then Club services. was contacted indicated that he he April Club 2015 and that prepare pool up- instructed coming summer He claimed that season. maintenance, repairs, Office,by: E. Hal- he Halbert Law Charles conducted bert, cleaning April May on the appellant. pool response that he submitted invoices Brocato filed a to the motion work, support and brief in which Club Club he asserted by Halpert statement payment since- refused to to him. remit during negotiations not made settlement alleged he had suffered dam- *3 was in response instead but made to a ages $11,505.48, in plus the amount in- of demand Brocato’s for payment. costs, he also requested terest and and if it Even was found have been $25,000 made damages. in punitive during negotiations, settlement Brocato ar- attorney, Halpert, The through its gued that the statement was inadmissi- complaint filed an answer to the and a ble under Rule 408 because would be counterclaim, counterclaim. In its the Club prove used to the Club’s intent and bias alleged that had Brocato been notified that claim, ADTPA not to relation all work must be advance and approved for, of, liability invalidity or amount of that he had approval failed to ask addition, the claim. In Brocato contended certain extra The Club denied that work. Halpert that “undoubtedly” would performed, this еxtra work had and been testify called to aas at trial witness be- been, if it had Club indicated that cause he of was the board directors of addition, it was not authorized. In the Club the Club when the decision was made knowingly placed claimed that had pay argued Brocato. Brocato thus that pool excessive orders for chemicals and this to Halpert’s evidence was relevant pump that he a new had installed allegedly credibility and that the Club’s motion but produce had failed to an invoice for it. should be denied. The actions con- Club asserted that these 6, 2016, July On court appar- of stituted both fraud and a violation ently telephоne hearing held a on the ADTPA damages and requested excess Club’s motion to evidence. exclude Howev- $11,000, of punitive damages. as well as er, parties both that agree hearing transcribed, there is no 16, 2016,
On June the Club filed mo- of what during hearing. occurred evidence, tion to claiming exclude that July circuit court an then entered order recently Halpert had notified Halpert repre- disqualifying he intended to him as witness senting the court found that Club. The trial, July which was scheduled for Halpert potential “the for Mr. called motion, 2016. According to the Club’s Bro- as witness is imminent and could be |.¡introduce cato intended to statement of purpose construed the evidence allegedly by Halpert during a tele- by |4Mr. Hal- presented and/or phone during possi- conversation which the pert would be some other reason than bility of settlement discussed with negotia- introduction of settlement counsel, Halpert Brocato and his tions.” The court thus concluded that “[i]t responded, paying aren’t a fuck- “We him appears that Mr. has a conflict Halpert ing thing.” The Club claimed both repre- as such he disqualified Halpert and Brocato’s denied this senting Defendant in this matter.” The argued Ar- event. The Club further interlocutory notice of timely Club filed prevented kansas Rule Evidence disqualification. appeаl from the order introduction of this ad- argues mission of this at trial alleged appeal, statement On the Club might require disqualification concluding of Hal- that evi- erred pert. alleged during dence an statement made disqualifica- note the outset that negotiations was admissible
settlement
UWe
absolutely
tion of
nec-
Halpеrt as
Brocato to call
a witness
allow
protect
preserve
essary measure
further
trial. The
contends that
Club
integrity
attorney-client
rela-
by disqualifying
the circuit court erred
tionship; yet it is a drastic measure to
opposing
Halpert
only
clearly required
imposed
where
that he
statement
Craig Carrigo,
the сircumstances.
witness.
(2000);
Arkansas Rule
Evidence 408
Morgan,
Burnette v.
states
follows:
This court reviews
(1) furnishing, offering,
Evidence
trial
an at-
court’s decision
*4
(2)
furnish, or
accepting,
to
promising
an
torney under
abuse-of-discretion
State,
accept,
or
offering,
promising to
valu-
standard. Wilburn
346 Ark.
137,
Craig,
(2001);
or
compromising
consideration in
340
able
sideration
we
S.W.3d
held that was
attorney
iting
advocate
both
error for the
circuit
not to make a
necessary
an advocate
witness:
verbatim
confer-
an in-chambers
in the
becomes witness
who
puts
ence.
We stated that
this court at a
unseemly position
arguing his
cred
disadvantage
considerable
reviewing
(2) the roles of
wit
ibility;
advocate and
points
pertaining
to unrecorded
ness are inconsistent and should not be hearings when a
verbatim record
individual;
assumed
one
|7us,
before
put
and we
bench and bar
should
act
both trial
“henceforth,
on notice that
this court will
| (-.counseland a
witness
strictly
apply
construe and
Administrative
625-26,
Id.,
appearance
at
impropriety.
Order
4.”
No.
Id.
S.W.3d
152-54.
625.
factors,
Citing
foregoing
the Club
Robinson,
Citing
we
remanded
argues
court in
this ease
trial court to
settle the record Williams
“summarily”
potential
concluded
as a
witness
(2005), where the court conducted an off-
*5
imminent and that
a conflict of
there was
the-record,
of a video-
in-chambers review
requiring disqualification.
interest
taped statement
the
defendant
sought by
Club contends that
evidence
the
sought
suppress
George
to
trial. See
also
pur-
was invented
356
v.
Ark.
151. S.W.3d 770
pose of disqualifying
its
(remanding where
suppression
the
no
on
proof
court heard
the
issue
hearing was not
on
rec-
transcribed
the
apply
sought
Weig-
to
the
failed
out in
ord).
compliance
have further held that
We
el.
4
with
No.
Administrativе Order
is manda-
Unfortunately,
to
we are unable
address
tory,
discretionary.
Thompson v. Guth-
arguments
the
the
merits
Club’s
this
rie,
Ark.
Pursuant Arkansas Court (2016), mine whether the abused its discre- 4 court Administrative Order No. “[u]n- tion disquаlifying Halpert less it under parties, waived record facts in this duty case. therefore remand any shall circuit court to We to mat- require this case settle record verbatim this record made proceedings, any Appel- all ter. note that including communica- Arkansas Rule of 6(b) provides tions late between court and one more Procedure—Civil any of the jury, pertaining parties may members method settle to which the matter transcript contested the court or the no before record when is available. certified, There record of the so- to file a verbatim We order hearing.” “telephone Neither containing record the neces- supplemental any claims was taken. thirty this sary days of within have Brocato shall then majority perceives opinion. court’s what lack case supplemen- from the date the of a record does days fifteen decision; making a prevent this court from lodged to file substituted tal record it. The сircuit decided addendum, facilitates abstract, containing and brief disqualify Attorney sponte. sua Halbert of the portions supplemental the relevant Although a circuit deci we review court’s 4—2(b)(3) Sup. Ct. See Ark. R. record. under an sion | «(2016). service of the substituted After standard, Valley abuse-of-discretion brief, opportunity have thе Club will Commission, Phillips County Election pre- brief time responsive file a (2004), Ark. 183 S.W.3d Clerk, or it Supreme Court by the scribed extremely deferential previously has rely on brief decision, this case shows a clear appeal. filed in this abuse that discretion. record; appel- to settle Remanded law, disqualification of Under Arkansas suрplemental to file record lant ordered lawyer is not “[a] favored thirty days; due within substituted brief course, gant, of entitled days supplemen- from when fifteen within choosing.” Floyd filed; may then file appellee tal Saline Mem’l (quoting responsive brief. Hosp. Berry, (1995)). that disqualifi- We have Womack, imposed cation is a measure Wood, JJ., drastic Hart, dissent. *6 only clearly required the circum- where Hart, Justice, Linker Josephine Morgan, Id. Burnette (citing stances. dissenting. (1990)). In Burnette, this court stated, “We must nev- decision to remand this majority’s forget though disqualification, er that a troubling. the record is case to settle protecting aimed the soundness of to settle. did Appellee There no record attorney-client relationship, also interferes disqualify motion to At- file a written with, destroys, voluntary re- perhaps Likewise, disputed it is not torney Halbert. litigant depriving a of counsel lationship by not even make an oral appellee did choosing—oftentimes affecting his Attorney In motion Halbert. standing.” long associations of 303 Ark. at fact, brief, this fact appellee in his confirms 155, 794 at 148. so far as to distance himself goes even Co., Weigel v. Farmers Insurance In states: ruling. He Inc., adopted three-part this court position on the dis-
Appellee takes seeking requires disqualifi- Appellant’s attorney. Ap- qualification (1) attorney-witness cation of an pellee trial court never asked attorneys Further- disqualify Appellant’s counsel. of the issues the determination more, argument never made Appellee gated; that the evidence unobtaina- elsewhere; disqualification Ap- for or ble against in the hear- pellant’s telephone prejudicial is or attorney’s client. 356 ing. 147, 153 (2004). Obviously, appellee prove any
did not of the elements in the
Weigel test appellee did not even
ask the circuit court to disqualify Attorney
Halbert.
As previously, noted the circuit court’s
decision reviewed for an abuse discre- Valley,
tion. supra. An abuse of discretion
means a discretion improvidently exer-
cised, which is defined thoughtlessly
and without due consideration. Id. Acting |10oral
without much so as an motion to
disqualify Attorney Halbert con-
sidering Weigel test is exercising dis- thoughtlessly
cretion and without due con-
sideration.
In making its decision settle rec- case,
ord majority has failed to
appreciate that an costly is a en- Furthermore,
deavor parties. for both
though this court hears appeals expedi-
tiously, interlocutory appeals delay litiga-
tion. Creating unnecessary obstacle to
appellant’s receiving the relief to obviously justice. entitled thwarts I
therefore respectfully dissent. Womack, JJ., join.
Wood and *7 App.
Jimmy WILSON, Appellant
DIRECTOR, DEPARTMENT OF SERVICES,
WORKFORCE
Centerpoint Energy, Appellees
No. E-16-386 Arkansas,
Court of Appeals II, III
DIVISION IV.&
OPINION DELIVERED:
MARCH