{ "id": 1159717, "name": "Joyce WHALEY and Keith Whaley v. KROGER COMPANY", "name_abbreviation": "Whaley v. Kroger Co.", "decision_date": "2003-02-28", "docket_number": "02-874", "first_page": "122", "last_page": "127", "citations": [ { "type": "official", "cite": "352 Ark. 122" }, { "type": "parallel", "cite": "98 S.W.3d 824" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "303 Ark. 150", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882722 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0150-01" ] }, { "cite": "302 Ark. 86", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884355 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0086-01" ] }, { "cite": "334 Ark. 134", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1655534 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/334/0134-01" ] } ], "analysis": { "cardinality": 443, "char_count": 8400, "ocr_confidence": 0.753, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.04261445358397343 }, "sha256": "45f0c0e0a934ac54179b9fdd26d8172474705960115de94c3304b0e116c4a95f", "simhash": "1:216f24bf610d5b7c", "word_count": 1316 }, "last_updated": "2023-07-14T21:39:04.439665+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Joyce WHALEY and Keith Whaley v. KROGER COMPANY" ], "opinions": [ { "text": "WH. \u201cDub\u201d Arnold, Chief Justice.\nThis appeal arises ticpersonal-injury e. arising out of an alleged electrical shock at a Kroger store in Dewitt, Arkansas, in August 1997. The case was tried before a jury on January 22, 2002, which resulted in a unanimous defense verdict. In this appeal, appellants do not question anything about the trial, evidence, rulings of the trial court, the jury verdict, or the sufficiency of the evidence in support of the defense verdict. Rather, appellants\u2019 sole ground for appeal is whether the trial court committed reversible error in failing to disqualify appellee Kroger\u2019s counsel on the basis of a September 19, 2001, letter concerning settlement negotiations. In that letter, appellee expressed a desire to continue negotiating, but would do so only if appellants withdrew a motion for sanctions which was based upon an order compelling discovery, which appellee argues it never received. There was a hearing on the matter on September 25, 2001, but the trial court did not rule on the motion to disqualify at that time. Appellants renewed the motion to disqualify on the morning of trial, and the trial court denied the motion.\nAppellants argue that during attempts to settle this case before trial, appellee took the position that it would not settle with appellants unless and until appellants withdrew a motion for sanctions which was filed based upon appellee\u2019s failure to timely answer discovery demands. Appellants state that while appellee, at times, tried to refute the fact that it had received communications relative to the same and the trial court\u2019s order in regards to the same, appellee had filed replies and made responses that indicated that it had received the materials. Appellants assert that the difficulty in this case is based upon the fact that a motion to disqualify appellee\u2019s counsel was filed by appellants after appellee\u2019s counsel personally integected himself into the litigation by taking certain matters personally, rather than professionally, and decided that not only would the instant matter not be settled, but that in the future other cases that he might have with appellants\u2019 counsel would also be subject to \u201cnon-settling,\u201d based on appellee\u2019s counsel being upset by the filing of the motion to compel.\nAppellants contend that the conduct of appellee\u2019s counsel went beyond zealous representation, and became personal conduct with a \u201cvent of personal animus that went beyond the bounds of the authorized and desired practice of law.\u201d Appellants assert that appellee\u2019s counsel should have been disqualified from this matter based upon the conduct that appears to violate the Model Rules of Professional Conduct in that counsel was placing his own personal interest into the matter. Appellants contend that when counsel becomes personally involved in a matter where judgment is likely to be clouded or he has an interest in the matter, the same should recuse or be disqualified. Model Rule of Professional Conduct 1.7. According to appellants, appellee\u2019s counsel allowed himself to become personally involved due to the terms of his letter, pleadings, and comments in regard to the problems appellants perceived in this matter. Based on all of the above, appellants state that appellee\u2019s counsel should have removed himself from this matter, and when that did not occur, the trial court should have disqualified appellee\u2019s counsel. Appellants assert that the trial court committed error relative to this matter by not removing appellee\u2019s counsel. Seeco, Inc. v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1998); American Carriers Inc. v. Kroger, 302 Ark. 86, 787 S.W.2d 669 (1990).\nAppellants argue that, based on the above, this court should enter an order reversing this matter and directing that appellee\u2019s counsel be disqualified, and that this matter should be restored to the trial court\u2019s calendar. Otherwise, the prohibitions and sanctions relative to the Model Rules of Professional Conduct violations will not be perceived by appellee and appellee\u2019s counsel to have any \u201cteeth\u201d or remedy, and any violations that occur will not and cannot be otherwise addressed. We disagree and affirm the trial court.\nAppellants do not provide this court with any factual basis or legal authority for the proposition that Kroger\u2019s counsel should have been disqualified. The only evidence having any bearing on the motion to disqualify is a September 19, 2001, letter from appellee\u2019s counsel to appellants\u2019 counsel. That letter expressed appellee\u2019s desire to continue settlement negotiations, provided that appellants\u2019 counsel withdraw a motion for sanctions which was based upon an order compelling discovery, which appellee\u2019s counsel states he never received.\nFurthermore, appellants do not show how appellee\u2019s counsel placed his personal interests over the interests of his client. The jury verdict attests to the fact that appellee\u2019s counsel adequately looked after the interests of Kroger, and the trial of the case went forward without any problems. Appellants do not allege any defect or irregularity in any phase of the trial, argument or conduct of counsel, the introduction of evidence, or the sufficiency of the evidence.\nThis is not a situation where there is a conflict of interest, former representation, or even the appearance of impropriety. Appellants do not allege any former relationship or representation by appellee\u2019s attorney or his firm; rather, the record in this appeal contains one letter that referenced a settlement offer and a desire to continue negotiating, but requested that appellants withdraw a baseless motion for sanctions as a prelude to further negotiations. This letter evidences no personal animus or how such animus, even if true, was prejudicial to the fair and impartial administration of justice.\nThis court has stated:\nDisqualification is an absolutely necessary measure to protect and preserve the integrity of the attorney-client relationship; yet it is a drastic measure to be imposed only where clearly required by the circumstances. We must never forget that a disqualification, though aimed at protecting the soundness of the attorney-client relationship, also interferes with, or perhaps destroys, a voluntary relationship by depriving a litigant of counsel of his own choosing oftentimes affecting associations of long standing. The role of the court is to balance the current client\u2019s right to counsel of choice with the former client\u2019s right to protection of confidences transmitted, or likely to have been acquired, during the prior representation.\nBurnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990). Therefore, disqualification would be appropriate in a case where appellee\u2019s counsel or firm has had a former relationship with appellants, and this is not the case here and has not even been alleged. Thus, this is not a conflict of interest or situation where appellee\u2019s counsel or his firm obtained confidential or proprietary information from appellants.\nAppellee further submits that it has been required to go to the time and expense of defending this frivolous appeal in a motion for sanctions before this court. Appellee contends that this appeal has been prosecuted with absolutely no factual or legal support, and for these reasons and pursuant to Rule 11 of the Rules of Appellate Procedure \u2014 Civil, it filed a motion for sanctions for the imposition of costs and a reasonable attorney\u2019s fee to be assessed against appellants\u2019 counsel personally. We agree, and grant appellee\u2019s motion for sanctions.\nA review of this case confirms that there is no violation of any of the Model Rules of Professional Conduct by appellee\u2019s counsel. Further, there is no factual or legal support for this appeal. For these reasons, sanctions are appropriate and are assessed against appellants\u2019 counsel, personally. Appellee certified that it took ten hours to review the record, conduct research, draft and finalize its appeal brief in this case. Appellee\u2019s counsel\u2019s hourly fee is $150.00; therefore $1,500.00, plus costs, is assessed against appellants\u2019 counsel to be paid to appellee.\nAffirmed.", "type": "majority", "author": "WH. \u201cDub\u201d Arnold, Chief Justice." } ], "attorneys": [ "McCullough Law Firm, by; R.S. McCullough, for appellant.", "Barber, McCaskill, Jones & Hale, P.A., by: Michael J. Emerson and Christine A. Cryer, for appellee." ], "corrections": "", "head_matter": "Joyce WHALEY and Keith Whaley v. KROGER COMPANY\n02-874\n98 S.W.3d 824\nSupreme Court of Arkansas\nOpinion delivered February 28, 2003\nMcCullough Law Firm, by; R.S. McCullough, for appellant.\nBarber, McCaskill, Jones & Hale, P.A., by: Michael J. Emerson and Christine A. Cryer, for appellee." }, "file_name": "0122-01", "first_page_order": 144, "last_page_order": 149 }