author: Tom Glaze, Justice.

text:
    Charles W. FRESHOUR v. Brenda J. WEST
    98-338
    971 S.W.2d 263
    Supreme Court of Arkansas
    Opinion delivered July 9, 1998

      Mildred Havard Hansen, for appellant.

      Gary L. Sullivan, for appellee.
   Tom Glaze, Justice.

In this case, we granted review of the court of appeals decision of Freshour v. West, 61 Ark. App. 60, 962 S.W.2d 840 (1998), wherein the court construed Ark. Code Ann. § 9-10-113 (Repl. 1993), Arkansas’s statutory law which sets out certain precepts that a court must consider before it awards custody of an illegitimate child. Until now, we have had only one opportunity to consider and interpret § 9-10-113. See Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993). Thus, we granted review so we can construe this statute in light of our recognized common-law principles that tend to favor an award of custody of a child to a biological parent as opposed to a third party.

Here, Charles W. Freshour and Tera West were seventeen years old and unmarried when Tera gave birth to Victoria. Because neither Charles nor Tera took responsibility of Victoria, the maternal grandmother, Brenda West, assumed physical custody and care of the child. Afterwards, Brenda applied for and received AFDC and Medicaid benefits for Victoria, and as a result, the State subsequently filed this paternity action against Charles, seeking to determine if he was Victoria’s father, and, if so, to make Charles financially responsible for her. After a DNA test conclusively established his paternity, Charles agreed he was Victoria’s father. The chancellor then entered an order requiring him to pay child support and to provide health insurance for Victoria.

After the foregoing findings, Charles requested the chancellor to award him custody of Victoria, which the chancellor denied, after conducting a full hearing on the matter. In making her decision, the chancellor accompanied the ruling with a lengthy letter opinion wherein she found that Charles is a fit parent to assume his parental role; but even so, the chancellor believed Victoria’s interests would be best served by Victoria remaining in Brenda’s custody. The chancellor concluded that, should circumstances materially change in the future, Charles is a fit person to take custody of Victoria. Meanwhile, the chancellor provided Charles should have liberal visitation with his daughter.

In this appeal, Charles’s sole point for reversal is that the chancellor erred in awarding custody of Victoria to her maternal grandmother, Brenda, because the chancellor found Charles was fit and competent to assume his daughter’s custody. Charles lists a string of case citations for the proposition that the law prefers a parent over a grandparent or other third person, unless the parent is proved to be incompetent or unfit. See e.g. Shuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988); Jones v. Strauser, 266 Ark. 441, 585 S.W.2d 931 (1979); Payne v. Jones, 242 Ark. 686, 415 S.W.2d 57 (1967); Riley v. West, 235 Ark. 192, 357 S.W.2d 497 (1962). Charles contends that when the chancellor found him to be a fit parent, the chancellor was obliged to place Victoria in his custody. Charles’s argument overlooks the fact that the supreme court cases he cites all involved custody cases where the children were legitimate at the time of birth. Flowever, in the instant case, Charles’s responsibility for Victoria was established under Arkansas’s paternity statute, § 9-10-113, and any right Charles may have to the custody of Victoria depends upon the requirements provided in § 9-10-113.

Section 9-10-113(a) provides that an illegitimate child shall be in the custody of its mother unless a court of competent jurisdiction enters an order placing the child in the custody of another party. Section 9-10-113(b) further provides that a biological father, who has established paternity, may petition the proper court for custody of his child where the child resides; however, before the biological father can obtain custody, he must show all of the following:

(1) He is a fit parent to raise the child;
(2) He has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and
(3) It is in the best interest of the child to award custody to the biological father.

Ark. Code Ann. § 9-10-113(c)(1), (2), and (3).

In the present case, Tera, as biological mother, had custody of Victoria under § 9-10-113(a), but she surrendered “physical custody” of Victoria to her mother, Brenda. On this point, the proof shows that both Tera and Victoria had initially lived with Brenda, but after having failed to provide for Victoria or to abide by Brenda’s “house rules,” Tera left the house, and Brenda has since kept Victoria and has been her sole caretaker. The record further reflects that Charles never voluntarily attempted to establish his paternity of Victoria, and such paternity was only established after the State initiated this paternity action against him. In short, for more than three years, Charles failed to make any effort to assume his responsibilities toward Victoria as required under § 9-10-113 (c)(2), and this failure is sufficient for us to uphold the chancellor’s finding and authority to deny Charles custody.

The chancellor also found that, under § 9-10-113(c)(3), it was in Victoria’s best interest for her to remain in Brenda’s custody. We hold the evidence is sufficient to support that finding as well. In this respect, the chancellor gave full consideration to Charles’s growth in maturity since Victoria’s birth — Charles has since married, works steadily, and now responsibly supports two children in his marriage. Nonetheless, in making his argument, even Charles recognizes the difficulties he and his wife would face if there was an immediate removal of Victoria from the only home she has known. He concedes the chancellor acted wisely in providing for the gradual introduction of Charles and his family into Victoria’s new-found world. Besides the fact that Brenda has provided Victoria with a stable and suitable home and loving environment, Brenda also has physical custody and provides for the care of another child of Tera’s. This half-sister, Emily, and Victoria have established a close relationship. It is setded law that, unless exceptional circumstances are involved, young siblings should not be separated from each other by dividing their custody. See Johnston v. Johnston, 225 Ark. 453, 283 S.W.2d 151 (1955); Ketron v. Aguirre, 15 Ark. App. 325, 692 S.W.2d 261 (1985) (where child’s relationship to his younger half-brother was upheld as a compelling reason for refusing to change custody). Based on the record before us, we are unable to say the chancellor erred in finding it is in the best interest of Victoria for her to continue in Brenda’s custody.

In conclusion, we make two additional points. First, we note that the court of appeals in its opinion discussed at length that Charles had failed to show a material change of circumstances to justify a change in custody. Material changes of circumstances aside, we reiterate the fact that it was Charles’s burden in this case to show, pursuant to § 9-10-113, that (1) he is a fit parent, (2) he has assumed his responsibilities for Victoria’s care and support, and (3) award of Victoria’s custody to him would be in her best interest. As discussed above, he failed in his proof. Because of this failure of proof, the chancellor awarded custody of Victoria to Brenda, as it is empowered to do under § 9-10-113(a). The court’s order awarding custody to Brenda was the court’s first involving Victoria. Hereafter, if Charles is to obtain Victoria’s custody, he will be required to present his case pursuant to § 9-10-113.

Second, we emphasize that, while there is a preference in custody cases to award a child to its biological parent, that preference is not absolute. See Larkin v. Pridgett, 241 Ark. 193, 407 S.W.2d 374 (1966) (where a biological mother sought custody of an illegitimate son, but court upheld award to paternal grandparents); Tidwell v. Tidwell, 224 Ark. 819, 276 S.W.2d 697 (1955) (where court upheld nine months’ per year custody of legitimate child in paternal grandparents). Rather, of prime concern, and the controlling factor, is the best interest of the child. Larkin, 241 Ark. at 199, 407 S.W.2d at 377. Here, the chancellor recognized the law’s preference for custody to be with the natural parent, but for all the previously discussed reasons, decided such placement was not in Victoria’s best interest. We cannot say the chancellor was clearly erroneous in her determination.

Charles, of course, may at some future date petition the proper court for custody of Victoria. If he so chooses, in order to be successful, Charles must come within the requirements for custody as set forth in § 9-10-113, including the provision providing that such placement be in Victoria’s best interest.

Affirmed.

Corbin, J., not participating.

       There is some testimony, primarily by Tera, that Brenda was provided “legal guardianship” to Victoria, but the record does not reflect any court order reflecting such guardianship.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Arkansas v. David W. BABBS and Russell C. Conger
    CR 97-1101
    971 S.W.2d 774
    Supreme Court of Arkansas
    Opinion delivered July 9, 1998

      Winston Bryant, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for appellant.

      McCallister & Jones, by: Bobby D. McCallister and Ronald D. Jones, for appellee David W. Babbs.
   Tom Glaze, Justice.

Appellees David W. Babbs and RusseE Conger are charged with the rape of prosecutrix Jocelyn Brooke Shipp. At a pretrial, in-camera hearing, the appeEants proffered testimony indicating that Shipp had consensual sexual intercourse with Conger after the aEeged rape, that such subsequent sexual activity is relevant regarding the issue of consent and Shipp’s credibility, and should be admissible at trial. The trial court ruled in the appeEees’ favor, and the State brings this interlocutory appeal pursuant to Ark. Code Ann. § 16-42-101 (c)(3)(B) (Supp. 1997) of the Rape Shield Statute, arguing that the trial court’s ruling erroneously prejudices its case and should be overturned.

As we have pointed out many times, the purpose of the Rape Shield Statute is to shield victims of rape or sexual abuse from the humihation of having their personal conduct, unrelated to the charges pending, paraded before the jury and the pubhc when such conduct is irrelevant to the defendant’s guilt. Graydon v. State, 329 Ark. 596, 953 S.W.2d 45 (1997); State v. Sheard, 315 Ark. 710, 870 S.W.2d 212 (1994). We have also repeatedly held that the trial court is vested with a great deal of discretion in ruling whether the victim’s prior sexual conduct is relevant, and we wiE not overturn the trial court’s decision unless it constituted clear error or a manifest abuse of discretion. Graydon, 329 Ark. at 601, 953 S.W.2d at 48. In the instant case, no such error or abuse of discretion is found.

Before discussing the propriety of the trial court’s ruling, we initially relate the evidence the State and appellees intend to present at trial. We consider the State’s case first. According to the State, on February 2, 1997, Babbs called Shipp and asked her to come to his house to play basketball. Shipp agreed, and upon arriving at the house, Babbs, Conger, and Shipp played about forty-five minutes before quitting and going into Babbs’s house. Babbs’s mother was in the house. Babbs, Conger, and Shipp eventually ended up in Babbs’s bedroom where Shipp claims Babbs held her down and covered her mouth while Conger had forcible sexual intercourse with her. Shipp said the alleged rape took about two-to-three minutes before she was able to free herself from the two boys, pull on her clothes, and flee. Shipp said that she saw Babbs’s mother in the kitchen as she left the house. Shipp further claims that, on February 17, 1997, she told her boyfriend, William Flope, about the February 2nd incident, who then called Babbs about the matter. Hope’s story is that Babbs essentially admitted that Conger had raped Shipp, but that he had only held her down. On February 18, 1997, Ms. Shipp reported the alleged rape to law enforcement officers, and these rape charges were filed against Babbs and Conger on May 15, 1997.

At the pretrial hearing, Babbs and Conger proffered a very different version of events to that of the State’s. They offered that Amanda Drennan (and two other friends of Shipp) would testify that, shortly after the alleged rape incident, Shipp admitted that she had sex with Babbs and Conger in Babbs’s bedroom on the day in question, that she enjoyed it, and that she was going to “get” Conger again. Appellees further proffered Conger’s mother’s testimony that, within the sixteen-day period between the alleged rape and when Shipp reported it, Shipp came alone to the Conger house; Conger offered that, during the visit, he and Shipp had consensual sex.

In its argument on appeal, the State relies largely on our decision in State v. Sheard, supra. There, ten defendants were charged with the group rape of a fifteen-year-old female. Some of the defendants offered testimony that the victim’s boyfriend, Sheard, one of the defendants, had a prior ongoing consensual sexual relationship with the victim, and on one occasion, performed sex while other boys were in the home. However, there was no testimony that the prosecutrix in Sheard ever agreed to have sex with a person while others joined in, and what sexual acts that were related occurred between the prosecutrix and one other person behind closed doors. In holding the prosecutrix’s prior sexual conduct inadmissible, the Sheard court relied on the established rule that prior acts of sexual conduct are not within themselves evidence of consent in a subsequent sexual act, and that there must be some additional evidence connecting such prior acts to the alleged consent in the present case before the prior acts become relevant. Sheard, 315 Ark. at 713, 870 S.W.2d at 214.

In sum, this court in Sheard held that, whether the prosecutrix had a prior and normal, individual consensual relationship with Sheard, such consensual sex in no way indicated she would agree to being restrained and subjected to sexual intercourse by multiple parties. Applying this rationale to the facts at hand, the State maintains that Shipp’s subsequent consensual individual sexual relationship she is alleged to have had with Conger bore no relevance as to whether she may have consented to the sexual conduct she had with both Conger and Babbs. Although the State recognizes that, unlike the situation in Sheard, here the consensual intercourse with Conger took place after, rather than before, the alleged rape, it submits such distinction bears no legal significance because the “prior sexual conduct” that may be precluded under the Rape Shield Statute includes all sexual behavior of the victim prior to the date of the trial. See Slater v. State, 310 Ark. 73, 832 S.W.2d 846 (1992); see also Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986) (court held “prior” acts mentioned in the Rape Shield Statute do not refer to sexual acts occurring before the incident in question, but merely any sexual conduct by the victim).

We agree with the State’s reading of this court’s case law, and under that precedent, Shipp’s purported consensual sex with Conger, although occurring after the alleged rape took place, is “prior sexual conduct” under the Rape Shield Statute and might be ruled inadmissible for that reason. Still, in considering the evidence presented in the instant case, we believe the trial court did not abuse its discretion in finding Shipp’s alleged subsequent sexual conduct with Conger admissible.

We have consistently held that acts of prior consensual intercourse with the accused are admissible only to show that consent may have been given. State v. Small, 276 Ark. 26, 631 S.W.2d 616 (1982). And as previously mentioned hereinabove, some additional evidence connecting such prior acts to the alleged consent in the present case must be shown before the prior acts become relevant. Sheard, 315 Ark. at 713, 870 S.W.2d at 214. In other words, some evidence must be presented to show that Shipp’s later willingness to have sex with Conger somehow indicates that her earlier sexual encounter with both Babbs and Conger was also consensual. In this respect, as alluded to above, appellees offered testimony to do just that. They proffered testimony of at least three witnesses who would say that, shortly after her alleged rape on February 2, 1997, Shipp bragged to her friends about her sexual encounter at Babbs’s house and vowed that she would “get” Conger again. Appellees also offered telephone records reflecting that Shipp had initiated telephone calls to the homes of Babbs and Conger prior to her report of the alleged rape. Also important, evidence was offered reflecting that there was no close personal or boyfriend relationship existent between Shipp and Conger, as was the situation in Sheard; appellees proffered a videotape interview corroborating this point.

In sum, we believe the trial court was well within its discretion to determine Shipp’s subsequent and consensual sex with Conger to be relevant and probative on the consent issue to be raised at Babbs’s and Conger’s rape trials. While it appears odd, in itself, that Shipp engaged in consensual sex with Conger only days after he allegedly raped her, appellees offered, through other proof, that this oddity is best explained by showing she actually had consensual sex on both occasions — on February 2nd involving both Conger and Babbs, and later involving only Conger. While the State submits that Shipp will dispute appellees’ claims, appellees’ other evidence supports their story that the two sexual incidents were related due to Shipp’s consent on both occasions. We hold the trial court acted well within its discretion in ruling that Babbs’s and Conger’s proffered testimony is probative on the issue of consent, and we are unable to say the trial court erred in finding that such a subsequent sexual encounter between Conger and Shipp is not unfairly prejudicial in these circumstances.

The State further argues, citing Evans v. State, 317 Ark. 532, 878 S.W.2d 750 (1994), that evidence of prior sexual conduct is inadmissible unless it involves the accused and then only if relevant to whether sexual intercourse was consensual. The State contends that the evidence related to Conger’s alleged subsequent consensual intercourse with Shipp would be inadmissible in a case against Babbs because the later sexual activity never involved Babbs. It is settled law that a person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense. Ark. Code Ann. § 5-2-401 to -403 (Repl. 1997); see Smith v. State, 271 Ark. 671, 609 S.W.2d 922 (1981); see also AMCI2d 401. Quite obviously, consent is an issue in Shipp’s rape charge arising from the February 2 incident, and when two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). Accordingly, we find no merit in the State’s attempt to exclude Babbs from the trial court’s ruling.

Affirmed.

       Appellees were initially charged on February 20, 1997, but following a hearing on May 14, 1997, the trial court consolidated the appellees’ cases for trial. Additionally, the trial court permitted the State to nolle prosequi the charge against Babbs and refile it on May 15, 1997.


author: Donald L. Corbin, Justice.

text:
    HENDERSON SPECIALTIES, INC. v. BOONE COUNTY CIRCUIT COURT
    98-410
    971 S.W.2d 234
    Supreme Court of Arkansas
    Opinion delivered July 9, 1998

      Peel & Simons, P.A., by: John R. Peel, for petitioner.

      Johnny L. Nichols and Gail Inman Campbell, for respondent.
   Donald L. Corbin, Justice.

Petitioner Henderson Specialties, Inc., of Russellville petitions this court for a writ of prohibition against Respondent Boone County Circuit Court; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(3). Petitioner raises two points in support of its petition, arguing that Respondent does not have venue to hear the action that Quality Feed Grains, Inc. (Quality), brought against Petitioner. We deny the writ.

On April 11, 1990, Petitioner filed suit against Quality and its owners in the Boone County Chancery Court, seeking foreclosure on a materialman’s lien. Petitioner, through its agent Paul Henderson and its employees, had performed construction in 1989 for Quality, consisting of additions and improvements to Quality’s existing feed mill in Boone County. Quality counterclaimed, alleging negligent construction. On April 8, 1993, the Boone County Chancery Court transferred Quality’s counterclaim to the Pope County Circuit Court, as it was not an equity matter, and, on April 21, 1993, rendered judgment in favor of Petitioner in the foreclosure action. On December 19, 1995, the Pope County Circuit Court granted Quality’s motion for voluntary nonsuit of its counterclaim.

On December 17, 1996, Quality refiled its counterclaim against Petitioner in the Boone County Circuit Court, alleging negligent construction and seeking both compensatory and punitive damages. On April 29, 1997, Petitioner moved for dismissal pursuant to ARCP Rule 12(b)(3), on the basis that Quality failed to state facts to establish venue in the Boone County Circuit Court. The circuit court denied Petitioner’s motion to dismiss in an order entered on March 3, 1998, finding that Boone County is the proper place of venue for the action. Petitioner next filed this petition.

A writ of prohibition is extraordinary relief; hence, we grant it only when the trial court completely lacks, or exceeds, its jurisdiction, and there is no other remedy available. Boatman’s Nat’l Bank v. Cole, 329 Ark. 209, 947 S.W.2d 362 (1997). Venue, however, is a procedural, rather than jurisdictional, issue. Id. This court will grant a writ of prohibition for improper venue only when there are no disputed facts regarding venue. Prairie Implement Co., Inc. v. Circuit Court of Prairie County, 311 Ark. 200, 844 S.W.2d 299 (1992). A writ of prohibition is also inappropriate where the inferences drawn from undisputed facts might lead to different legal conclusions about their effect. See Porter Foods, Inc. v. Brown, 281 Ark. 148, 661 S.W.2d 388 (1983) (holding that the writ should not be granted if personal jurisdiction turns on a question of fact, which the trial court should properly determine). See also Tucker Enterprises, Inc. v. Hartje, 278 Ark. 320, 650 S.W.2d 559 (1983); Wisconsin Brick & Block Corp. v. Cole, 274 Ark. 121, 622 S.W.2d 192 (1981).

Petitioner first argues that Quality’s complaint fails to state facts supporting Respondent’s finding that venue is properly in the Boone County Circuit Court. In order to determine if a complaint lacks facts to support venue, our review is limited to the pleadings; thus, the proof is irrelevant. Boatman’s, 329 Ark. 209, 947 S.W.2d 362. We must also ascertain the character of the action and the primary right asserted from the face of the complaint. Fraser Bros. v. Darragh Co., 316 Ark. 297, 871 S.W.2d 367 (1994). Accordingly, we review the complaint in depth.

Paragraph No. 1 of the complaint alleges that Quality, is an Arkansas business corporation, “with its principal place of business being situated in Boone County[.]” Paragraph No. 2 further alleges that Petitioner is an Arkansas business corporation, “with its principal place of business being situated in Russellville, Pope County, Arkansas.” Paragraph No. 3 alleges “[t]hat this Court has jurisdiction of the subject matter of the Complaint, and of the parties hereto, and venue for [Quality’s] cause of action is proper with this Court.” Paragraph Nos. 4 and 5 allege that Quality “operates a feed mill in Boone County,” and, further, that Quality contacted Petitioner in August of 1989 about the feasibility of constructing improvements to the Boone County feed mill. Paragraph Nos. 6, 7, and 8 provide in relevant part:

(6)
That [Petitioner] . . . made numerous material and specific representations to the representatives of [Quality] that [Petitioner] was a specialized construction company which specialized in the construction of feed mills and additions to feed mills . . . and that [Petitioner], its representatives and employees . . . could construct the improvements and make the requested additions to the existing feed mill of [Quality] ....
(7)
That [Petitioner] . . . failed to construct the improvements and additions to feed mill of [Quality] within the degree of skill and care ordinarily possessed and used by such contractors doing work of similar nature, and further failed to construct said improvements with the proper standards of the construction industry.
(8)
That [Petitioner] . . . improperly and negligently constructed the improvements and additions to the feed mill of [Quality] which resulted in serious damages being sustained to the existing feed mill of [Quality], and specifically serious damages were sustained to many of the specialized parts of the feed mill including but not limited to the pellet mill, scales, cables, hammermill, spouting, cooling system, bins, and many other integral parts of the feed mill. [Emphasis added.]

The complaint further alleges compensatory and punitive damages sustained by Quality’s mill, and the items of personal property set forth in Paragraph No. 8, which were necessarily located in Boone County. Paragraph No. 10 alleges that Petitioner directly and proximately caused the alleged damages in Boone County through its improper construction and negligent workmanship. We conclude that Quality adequately pled facts to support venue in Boone County, and that Respondent properly determined venue on disputed facts and inferences therefrom. This court has repeatedly held that prohibition will not he in such circumstances. Porter Foods, 281 Ark. 148, 661 S.W.2d 388; Murry v. Maner, 230 Ark. 132, 320 S.W.2d 940 (1959); Finley v. Moose, 74 Ark. 217, 85 S.W. 238 (1905).

Paragraph Nos. 8 and 10 also reveal that the primary action asserted sounds in tort. To state a claim for negligence, a plaintiff must allege that it sustained damages, that the defendant was negligent, and that the defendant’s negligence was a proximate cause of the damages. Arkansas Kraft v. Cottrell, 313 Ark. 465, 855 S.W.2d 333 (1993). Because Quality alleges that it has sustained damages, that Petitioner was negligent in its construction, and that Quality’s damages were proximately caused by Petitioner’s negligence, we conclude that the complaint adequately pleads a claim for negligent construction.

We refute Petitioner’s reliance on this court’s holding in Malone and Hyde, Inc. v. Chisley, 308 Ark. 308, 825 S.W.2d 558 (1992), as that situation involved nonresident parties in a personal-jurisdiction dispute. None of the Arkansas venue statutes were at stake.

Petitioner also argues that venue may not be had in Boone County, Quality’s county of residence, under Ark. Code Ann. § 16-60-113(a) (1987), because Quality’s damages were not caused by force or violence. Petitioner mistakenly relies on our holdings in Hooper v. Zajac, 275 Ark. 5, 627 S.W.2d 2 (1982) and Beatty v. Ponder, 278 Ark. 41, 642 S.W.2d 891 (1982). Both of those cases were decided before the Arkansas General Assembly amended section 16-60-113(a) by enacting Act 642 in 1983. Section 16-60-113(a) has since provided:

Any action for damages to personal property by wrongful or negligent act, whether arising from contract, tort, or conversion of personal property, may be brought either in the county where the damage occurred, or in the county where the property was converted, or in the county of residence of the person who was the owner of the property at the time the cause of action arose. [Emphasis added.]

In FirstSouth, P.A. v. Yates, 286 Ark. 82, 689 S.W.2d 532 (1985), this court rejected the appellant’s argument that damages to intangible property fell within the scope of former Ark. Stat. Ann. § 27-611 (1947), now codified as section 16-60-113(a). This court discussed the evolution of that statute:

The legislature, doubtless in response to Hooper and Beatty, amended the statute by Act 642 of 1983, .... That act made two changes: (1) The reference to wrongful or negligent act was extended by the addition of “whether arising from contract, tort, or conversion”; and (2) the words “where the damage occurred” were substituted for “where the accident occurred.”

Id. at 86, 689 S.W.2d at 534.

Thus, Act 642 was specifically amended to include “actions for conversion and for damages by wrongful or negligent act arising nonaccidentally or from contract[.]” Id. (emphasis added). This court further reiterated that since 1947, the reference to personal property has meant physical damage to tangible property, as we have here.

In sum, we conclude that Quality’s complaint sufficiently stated a claim for negligent construction, alleging that the damage to Quality’s personal property occurred in Boone County. Clearly, section 16-60-113(a) supports the trial court’s ruling, as it allows an action in tort, contract, or conversion to be brought in the county where the damage occurred.

Accordingly, we deny the writ of prohibition.

       Petitioner also moved for dismissal on the basis of Quality’s failure to serve the complaint within 120 days. The trial court, however, had granted an extension for service of process and found that Quality had presented “good cause” for such extension.


author: Robert L. Brown, Justice.

text:
    FOUR COUNTY (NW) REGIONAL SOLID WASTE MANAGEMENT DISTRICT BOARD and State of Arkansas, ex rel. Winston Bryant, Arkansas Attorney General v. SUNRAY SERVICES, INC.
    97-1133
    971 S.W.2d 255
    Supreme Court of Arkansas
    Opinion delivered July 9, 1998
    [Petition for rehearing denied September 10, 1998.]

      Katherine C. Gay, for appellant Four County (NW) Regional Solid Waste Management District Board.

      Winston Bryant, Att’y Gen., by: Kelly S. Murphy, Ass’t Att’y Gen., and Charles Moulton, Ass’t Att’y Gen., for appellant State of Arkansas.

      Davis, Cox & Wright PLC, by: Constance G. Clark and William Jackson Butt II, for appellee.
   Robert L. Brown, Justice.

This appeal arises out of litigation by appellee Sunray Services, Inc., a firm that constructs and operates solid-waste landfills, in which Sunray claimed that certain regulations adopted by the appellant Four County (NW) Regional Solid Waste Management District Board (District Board) violated state law. The District includes Washington, Benton, Carroll, and Madison Counties. The trial court upheld two of the District Board’s regulations but struck down six others as not being based upon generally accepted scientific knowledge or engineering practices, as required by Ark. Code Ann. § 8-6-724 (Supp. 1997). The trial court granted summary judgment in favor of Sunray with respect to another regulation requiring a two-mile buffer zone between solid-waste landfills and certain named bodies of water. The District Board and the State urge on appeal that the trial court did not apply the proper standard of review for the six regulations and further erred in concluding that the regulations violated state law. They claim, in addition, that summary judgment regarding the two-mile buffer zone was inappropriate because a fact issue developed based on expert testimony regarding the efficacy of that regulation. We agree with the District Board and the State and reverse the judgment and dismiss the complaint regarding the six regulations. With respect to the regulation for a two-mile buffer zone, we also agree with the appellants, and we reverse and remand for trial. The District Board has filed a motion to substitute counsel, and we grant that motion.

A brief history of the legislation and this lawsuit is helpful. In 1991, the General Assembly passed Act 752, which created eight Regional Solid Waste Management Districts and empowered each district to adopt regulations that were consistent with, but no more restrictive than, applicable environmental protection performance standards adopted by state law or incorporated by reference to federal law. See 1991 Ark. Acts 752. In 1993, the General Assembly expressly removed the authority of municipalities and counties to adopt environmental ordinances that were more restrictive than state or federal law absent a fully-implemented comprehensive area-wide zoning plan. See 1993 Ark. Acts 1280 § 2. The General Assembly also authorized Regional Solid Waste Management District Boards to adopt more restrictive standards for the location, construction, and maintenance of landfills than required by the state and federal governments. See 1993 Ark. Acts 1280 § 5. In December 1993, the District Board enacted permanent regulations known as Chapter E regulations pursuant to Act 1280, which restricted the location, operation, maintenance, and design of solid-waste landfills and provided financial requirements and a means for enforcing the regulations.

Sunray first challenged the Chapter E regulations in federal district court. That court abstained from hearing state-law questions. As a result, Sunray challenged the Chapter E regulations in the Washington County Chancery Court. That court initially granted summary judgment in favor of the District Board on March 22, 1995. Sunray appealed the judgment to this court.

In 1995, the General Assembly amended the Arkansas Code to provide that Regional Solid Waste Management District Boards could adopt more restrictive requirements only if the requirements are based upon generally accepted scientific knowledge or engineering practices. 1995 Ark. Acts 902 § 1, now codified at Ark. Code Ann. § 8-6-724 (Supp. 1997). On Sunray’s motion, this court remanded the matter to the trial court on September 11, 1995, for the purpose of considering the effect of Act 902 on the Chapter E regulations and the trial court’s summary-judgment order.

On April 2, 1996, Sunray filed its fourth amended complaint against the District Board and sought judgment declaring that the Chapter E regulations were invalid. The catalyst for the complaint was Sunray’s interest in developing a solid-waste landfill in Durham, which is located in south Washington County. On remand, Sunray specifically challenged the following Chapter E regulations on various grounds, including the allegation that they were not based upon generally accepted scientific knowledge or engineering practices: (1) § 11.02, which governed the two-mile watershed buffer; (2) § 12.01, which required a full-time, on-site inspector; (3) § 12.03(a), which required quarterly testing of groundwater monitoring wells; (4) § 12.03(b), which mandated a preconstruction inventory of wells within a one-half mile radius of the site; (5) § 13.01(a)(2), which mandated detailed geologic mapping of the site and the area within one mile of the boundary of the site; (6) § 13.01(a)(3)(A)(ii), which required subsurface exploration to evaluate overburden; (7) § 13.01(a)(3)(B)(ii), which mandated geophysical logs of borings that included acoustic logs and video logs; (8) § 13.01(a)(3)(B)(iii), which required the geophysical study of the site to include two of five listed methodologies; (9) § 13.01(a)(3)(C)(ii), which mandated that preferred contaminant transport pathways be determined by dye traces; and (10) § 13.02, which required the use of a double composite liner in conjunction with a leachate detection and collection system.

Also on April 2, 1996, Sunray moved for summary judgment on the basis that there was no genuine issue of material fact that these regulations violated § 8-6-724. On June 6, 1996, the trial court allowed the State of Arkansas to intervene as a party defendant, and both the State and the District Board opposed Sunray’s summary-judgment motion. Sunray subsequently abandoned its motion as to all regulations except for § 11.02, which required the two-mile watershed buffer zone. On September 26, 1996, the trial court entered an order in which it concluded that the two-mile watershed buffer was not based upon generally accepted scientific knowledge or engineering practices and, thus, was violative of § 8-6-724.

After a three-day trial, the trial court entered an order on June 23, 1997, which incorporated a June 11, 1997 letter opinion to counsel. The trial court made detailed findings of fact and concluded that the above-referenced regulations, except for three, were not based upon generally accepted scientific knowledge or engineering practices. Two exceptions were § 12.03(a), which mandated quarterly testing of groundwater monitoring wells and § 13.01(a)(3)(A)(ii), which required subsurface exploration of overburden through hydraulic conductivity tests. The parties stipulated that § 13.01(a)(2) was valid so long as the requirement was limited to mapping the surface. At trial, it developed that the increased cost per household for the Chapter E regulations would be $0.82 a month or less than $0.03 per day.

I. Standard of Review

The District Board and the State first contend that the trial court applied the wrong standard under § 8-6-724 for reviewing the Chapter E regulations. The standard, to repeat, was enacted in 1995 by Act 902 and reads as follows:

Regional solid waste management boards may adopt more restrictive standards for the location, design, construction, and maintenance of solid waste disposal sites and facilities than the state or federal governments, provided such standards are based upon generally accepted scientific knowledge or engineering practices and are consistent with the purposes of this subchapter.

Ark. Code Ann. § 8-6-724 (emphasis added). Specifically, the appellants claim that the trial court erroneously reviewed the regulations against the standard of whether they were generally accepted in state or federal law as opposed to whether they were based upon generally accepted scientific knowledge or engineering practices.

We believe that the District Board and State are correct. In reviewing the trial court’s letter opinion, the court often alluded to whether the regulatory requirement was found anywhere in the United States and whether it was categorically required throughout the state or limited to specific sites. That is not the standard fixed by the General Assembly. Rather, the standard is whether the Chapter E regulations are premised on generally accepted scientific knowledge or engineering practices. It is clear to us that the individual Chapter E requirements are not experimental but rather have been used in one form or another in other jurisdictions in constructing and monitoring solid-waste landfills. It is also clear to us that the Chapter E requirements have more validity in karst geologies where carbonate rocks such as limestone and dolomite predominate as opposed to non-karst terrains. Karst terrains are more likely to have sink holes, underground caverns, and greater porosity, all of which enhances the potential for groundwater movement and contamination. Indeed, counsel for Sunray agreed at oral argument that the Chapter E regulations would be suitable for approximately 69% of the four-county area, which falls into the karst category, but not for the remaining 31%. The District Board and State, however, are quick to add that the entire four-county area is geologically fragüe and that the purpose of the regulations is to determine the extent of that fragility and the state of the bedrock at any given site.

In light of the fact that the Chapter E regulations in dispute unquestionably have scientific or engineering validity in some settings, we cannot say that they are not based upon generaüy accepted scientific knowledge or engineering practices. We hold that the trial court erred in applying the incorrect legislative standard in assessing the validity of these requirements.

In addition, the trial court appears to have employed the wrong standard when reviewing what amounts to legislative action by the District Board. This court has recognized that judicial review of legislative action is not undertaken de novo by a trial court because that would be judicial legislating and violative of the separation-of-powers doctrine contained in Ark. Const, art. 4, § 2. City of Lowell v. M & N Mobile Home Park, Inc., 323 Ark. 332, 916 S.W.2d 95 (1996); Johnson v. Sunray Serv., Inc., 306 Ark. 497, 816 S.W.2d 582 (1991); Wenderoth v. City of Ft. Smith, 251 Ark. 342, 472 S.W.2d 74 (1971). In such situations, the trial court must engage in a presumption that the legislative authority enacted the legislation in a reasonable manner, and the burden is placed on the moving party to prove that the enactment was unreasonable or arbitrary. City of Lowell v. M & N Mobile Home Park, Inc, supra. An enactment is not arbitrary if there is “any reasonable basis” for its enactment. City of Lowell, 323 Ark. at 339, 916 S.W.2d at 99 (emphasis in original), citing City of Little Rock v. Breeding, 273 Ark. 437, 445, 619 S.W.2d 664, 668 (1981). Absent arbitrariness or unreasonableness, legislative action by local government should stand because it is not the role of the judiciary to review the wisdom or rightness of legislation. Johnson v. Sunray Serv., Inc., supra; Wenderoth v. City of Ft. Smith, supra.

It appears to us that the trial court focused on, and then decided, whether the regulations were appropriate based on the evidence without giving proper deference to the legislative role of the District Board. Decisions concerning the nature of the tests to assess the terrain and monitor the landfill clearly fall within the bailiwick of legislative action by the District Board. The trial court’s role was to examine the regulations for arbitrariness or unreasonableness. But this review does not entail questioning the wisdom or rightness of the legislation unless the legislation is not supported by a rational basis. City of Lowell v. M & N Mobile Home Park, Inc., supra.

In sum, we hold that the trial court also erred in evaluating whether the adoption of the Chapter E regulations was correct as opposed to determining whether the District Board’s legislative action was arbitrary or unreasonable.

II. Review of the Regulations

We next must decide whether this court will assess the Chapter E regulations, using the correct standards of review, or remand for the trial court to conduct another trial. We are fully aware that the trial in this matter covered three days. In that trial, eight experts testified, and thirty-six exhibits were introduced. The record in this appeal is 2,346 pages. It is more than obvious to us that the issues in this case have been fully developed.

This court has said that we review chancery cases de novo and when the record is sufficiently developed to enable us to do so, we decide the issues presented without remand. Avance v. Richards, 331 Ark. 32, 959 S.W.2d 396 (1998); Cochran v. Cochran, 309 Ark. 604, 832 S.W.2d 252 (1992); Lynch v. Brunner, 294 Ark. 515, 745 S.W.2d 115 (1988); Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). We said in Ferguson v. Green, supra, that it has been the “invariable practice” of the court not to remand a case to chancery court for further proceedings and proof where we can plainly identify the equities of the parties. Ferguson, 266 Ark. at 565, 587 S.W.2d at 23.

We turn then to the regulations themselves, using the correct standards for review: (1) whether the regulations are based on generally accepted scientific knowledge or engineering practices, and (2) whether the District Board was arbitrary or unreasonable in adopting the regulations.

a. Double composite liner system.

It is undisputed that double composite liners have been used in other states at particular landfill sites to confine leachate. Indeed, Sunray witness, Dr. Rudolph Bonaparte, an expert in geotechnical engineering, admitted as much. Regulation 22 of the Pollution Control and Ecology Commission mandated its usage in the Boone/St. Joe formation, which forms part of the District. With these factors in mind, we cannot say that the District Board’s regulation is not based upon a generally accepted engineering practice.

We turn then to whether it was arbitrary for the District Board to adopt the double-liner requirement throughout the four counties, using the test of whether any rational basis supports it. Dr. Bonaparte urged that a double liner should be used only at specific sites and not have general applicability. Mark Wither-spoon, a registered professional geologist, testified for the District Board and underscored the special, karst characteristics of the Northwest Arkansas geology. He further alluded to the problems with the Parsons landfill, which was located in Washington County and had a state-of-the-art design but which experienced a large influx of waste and resulting contamination problems. Bobby Fanning, Director of the Benton County Environmental Affairs Office, also testified about the Fulton Class I landfill in Benton County, a landfill that also experienced leakage.

We do not view this requirement as comparable to a situation where a regulation is applied categorically throughout an entire state. Here, the application is limited to an area where geology admittedly is fragile and unique. We have no doubt that the southern one-third of the District, which includes Durham, has less carbonate rock and fewer porosity problems. By the same token, the geology in the four counties is not monolithic in any sense, but faulted and fractured, and the sole purpose for these regulations is protection against leachate and water contamination by using systems like the double composite finer. While Sunray would prefer for this requirement to be site-specific, we cannot say that the District Board was unreasonable in requiring the double-finer system throughout the area, particularly in fight of the area’s fragility and the landfill problems experienced in the past.

b. On-site inspector.

State monitoring and inspection of landfill sites on a random basis are required, as the trial court found. Again, the engineering practice of inspection is not contested. The sole issue here is the permanency of the inspector, that is, his or her presence on the site on a daily basis. The question is one of degree and the extent of the inspection. Sunray expert Dr. Bonaparte termed the requirement “unprecedented” and “excessive.” Mark Witherspoon, for the District Board, countered that with full-time inspection, problems such as those experienced at the Parsons landfill would have been detected early on and perhaps prevented.

We would be hard pressed to hold that daily inspection, apparently to be paid for by the District Board, is not beneficial. While, again, this is a conservative approach for detection of potential problems, the District Board was not unreasonable in making this requirement.

c. Wells inventory.

Prior to construction of the landfill, § 12.03(b) requires that wells within a one-half mile radius of the site be tested. As with full-time monitoring, testing surrounding groundwater is a commonplace engineering practice. The trial court, in fact, upheld a regulation for quarterly well testing after the landfill becomes operational. Well testing certainly meets the legislative standard.

Whether the requirement is arbitrary is the next question. Sunray experts Dr. Bonaparte; Dr. William White, a Ph.D. in geochemistry; and James Walsh, a registered professional engineer, all testified that a one-half mile distance is arbitrary and that groundwater might not have any relationship to surrounding wells, especially upgradient wells. Mark Witherspoon for the District Board contended that initial well testing would detect any preexisting contaminant and, thus, would be helpful in weighing the validity of subsequent water-contamination claims.

The rationale of Mark Witherspoon appears totally reasonable, and we perceive no arbitrariness on the part of the District Board in adopting this regulation. Some reasonable distance had to be chosen, and we decline to redraw the radius line. This regulation would have the beneficial effect of providing a connection between a “leaking” landfill and surrounding groundwater.

d. Acoustic and video geophysical logs.

As part of preconstruction design, landfill applicants must submit acoustic and video logs of bedrock topography under § 13.01 of the regulations. The trial court found both methods useful in karst geologies which, to reiterate, is the predominating geology for the four counties. These tests are common engineering practices and meet the legislative standard.

The dispute, however, centers on whether it is unreasonable to require duplicative tests when one should suffice or to require the tests categorically throughout the District. Dr. Bonaparte and Dr. White, for Sunray, opined that core drillings and samples should be sufficient for testing. Dr. White and Mr. Walsh went further and testified that they had never heard of a requirement for acoustic logs for landfills. District Board expert Mark Witherspoon offered that both tests were “within the scale of what’s accepted.” A second witness for the District Board, Charles Fiedler, a consulting engineer, posited that these supplemental tests and logs provide additional data and can substitute for bore core samples that are not retrieved intact. While conservative, the regulation has a rational basis.

e. Surface geophysical studies.

Section 13.01 also requires at least two surface tests for bedrock topography from a list of five tests that includes radar and seismic methods. These tests are clearly bottomed in generally accepted scientific knowledge or engineering practice.

The issue raised by Sunray is whether the tests are inappropriately duplicative and whether they have any validity in a non-karst terrain. Dr. Bonaparte and Dr. White on behalf of Sunray specifically opined, while admitting the tests were appropriate for gathering information, that they should only be applied to a specific site and not required universally. The District Board’s experts, including Mark Witherspoon, Charles Fiedler, and Dr. Jerry Overton, all emphasized that the more data accumulated through multiple tests, the better the opportunity to verify the results. To be sure, we can conceive of a situation where requiring a multitude of tests would at some point cross the bounds of reasonableness. Yet, we cannot fault the rationale for requiring these tests and again decline to hold that the regulation is arbitrary.

f. Dye-trace studies.

This preconstruction requirement relates to determining preferred water transport pathways by using dye tracing. Dye tracing is used, by everyone’s admission, in appropriate geologies such as a karst terrain. It is unquestionably a valid engineering practice.

Sunray experts Dr. Bonaparte and Dr. White again contested the requirement of dye tracing throughout the four-county area. They argued at trial that the test is of little or no consequence in non-carbonate settings where sandstone and shale are the common bedrock and where underwater pathways are virtually nonexistent. Charles Fiedler on behalf of the District Board, however, claimed that the test was also useful in hard-rock terrains.

We note where the trial court described dye tracing as a “powerful tool” for determining groundwater movement in karst settings. At the very least, it would determine the extent of underwater pathways, including whether any existed. The District Board was not arbitrary in mandating dye tracing throughout the four counties.

Because we hold that these six Chapter E regulations are based on generally accepted scientific knowledge or engineering practices and are not arbitrary or unreasonable, we reverse the trial court’s judgment and dismiss Sunray’s complaint with respect to these regulations.

III. Two-mile Buffer Zone

Section 11.02 of Chapter E, entitled “Watershed Buffers,” requires a two-mile buffer zone between the landfill and Beaver Lake; Lake Francis; Lake Sequoyah; Table Rock Lake; Prairie Grove Lake; Lincoln Lake; Osage Creek (Benton County); the Illinois River; the White River including the East, Middle, and West Forks; the Kings River; Osage Creek (Carroll County); and War Eagle Creek. On this point, the trial court entered summary judgment in favor of Sunray and determined that there was no evidence that the two-mile buffer zone was based on generally accepted scientific knowledge or engineering practices.

Our standard of review for an appeal from a grant of summary judgment is well-established and includes the principle that once a party establishes prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a genuine issue of material fact. Sublett v. Hipps, 330 Ark. 58, 952 S.W.2d 140 (1997); Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997).

In the case before us, Sunray relied primarily on three conclusory affidavits filed by its experts: Dr. William White, James Walsh, and Kevin Hodges. Ah three affidavits made one statement on this issue, and that statement was identical:

District Regulation Section 11.02 banning Solid Waste Disposal Facilities within two miles of certain specified surface water bodies is not in accord with, based upon or supported by generally accepted scientific knowledge or engineering practices and is actually a clear violation of such knowledge and practices.

It is obvious that these affidavits provided evidence only in the most conclusory of forms, which is insufficient to support a motion for summary judgment. Robson v. Tinnin, 322 Ark. 605, 911 S.W.2d 246 (1995); Swindle v. Lumbermens Mut. Cas. Co., 315 Ark. 415, 869 S.W.2d 681 (1993).

On the other hand, in response to Sunray’s summary-judgment motion, the District Board’s expert, Mark Witherspoon, provided by way of affidavit:

With regard to the two-mile buffer between landfills and water bodies that was enacted by the District, buffer distances are a generally accepted means of insuring the safety of a landfill. While it is my personal position that the distance selected for a buffer should be based on site-specific criteria or on some reproducible technical formula, there are many laws and regulations throughout America that establish non-site-specific buffer distances between landfills and other things, such as water bodies, airports, and even landfills, and the use of such categorical buffer distances is a generally accepted engineering practice.

In addition, in Mark Witherspoon’s deposition testimony, he discussed the general element of safety achieved by using buffer zones. Though he admitted that a buffer zone might actually have the reverse effect in certain limestone geologies, he stated the general rule that the further you take solid waste away from a water source the better.

It seems patently obvious to this court that a material question of fact needs to be resolved on this issue, with the trial court using the correct standards of review as set out above. See Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998). We are further mindful that this court has addressed the constitutionality of a similar buffer-zone requirement enacted by the Washington County Quorum Court. See Johnson v. Sunray Serv., Inc., supra.

We reverse on this point as well, and we remand for trial on this issue. The District Board has moved for a substitution of counsel with Steven L. Parker being substituted for Katherine C. Gay. We grant the District Board’s motion.

Reversed and dismissed in part. Reversed and remanded in part. Motion to substitute counsel is granted.

Thornton, J., not participating.

       On April 28, 1993, Sunray filed its final Class I landfill permit application with the Arkansas Department of Pollution Control and Ecology.

       Though § 12.01 speaks only in terms of the District Board’s “hosting” the full-time inspector, Dr. Jerry Overton testified that the District would pay for the inspector.


text:
    SEECO, INC. et al. v. Allen HALES, et al.
    98-670
    969 S.W.2d 193
    Supreme Court of Arkansas
    Opinion delivered July 9, 1998

      Everett & Mars, by: Thomas A. Mars and John C. Everett and Bethell, Calloway, Robertson, Beasley & Cowan, PLLC, by: J. Michael Fitzhugh, for appellants.

      Smith, Maurras, Cohen and Redd, PLC, by: Don A Smith; Marilyn J. Eickenhorst; James M. Sturdivant, M. Benjamin Singletary, Timothy A. Carney and Gable Gotwals, for appellees.
   Robert L. Brown, Justice.

This case involves the disqualification of J. Michael Fitzhugh as counsel for appellants Seeco, Inc., Southwestern Energy Company, and Arkansas Western Gas Company (Seeco). Trial in this matter is currently set for September 28, 1998. On June 10, 1998, this court granted the motion of appellees Allen Hales, et al. (Hales) to expedite Seeco’s appeal on various matters, and we temporarily stayed the order of the trial court disqualifying Mr. Fitzhugh from the practice of law in Arkansas. Seeco raises four issues in its interlocutory appeal: (1) the trial judge erred in not recusing in this case because his political opponent, Mr. Fitzhugh, was appearing before him as counsel for Seeco; (2) the trial judge erred in disqualifying Mr. Fitzhugh from the practice of law in this state; (3) the trial judge correctly determined that the conduct of Seeco’s counsel, Thomas Mars and Mr. Fitzhugh, was not improper or unethical; and (4) the trial judge erred in finding that Mr. Mars violated Rule 11 of the Arkansas Rules of Civil Procedure.

Our jurisdiction to hear interlocutory appeals limits us to the issue of Mr. Fitzhugh’s disqualification by the trial judge. Ark. R. App. P.—Civ. 2 (a) 8. We affirm the disqualification of Mr. Fitzhugh but modify the trial judge’s order to limit the disqualification only to participation as counsel in the present case.

In Seeco, Inc. v. Hales , 330 Ark. 402, 954 S.W.2d 234 (1997), this court affirmed the order of Judge Don Langston, certifying a class of more than 3,000 royalty owners, who sought compensatory and punitive damages against Seeco and its subsidiary companies. The amount claimed by the royalty owners exceeds $58,450,000 due to the alleged underpayment of royalties. Following this court’s order of remand, Judge Langston entered a scheduling order on February 3, 1998, that called for the completion of discovery by July 15, 1998, and set the trial date for September 28, 1998.

On March 3, 1998, Michael Fitzhugh announced his candidacy for the circuit judgeship currently held by Judge Langston. On March 10, 1998, Mr. Fitzhugh entered an appearance as local counsel for the defendants. Prior to that time, Mr. Fitzhugh had not represented Seeco in this matter. On March 20, 1998, Mr. Fitzhugh officially filed for the judicial position occupied by Judge Langston. On March 27, 1998, Judge Langston wrote to counsel for the parties and advised that he had learned that Mr. Fitzhugh had contacted the judge’s case coordinator and suggested the judge’s recusal because of his judicial candidacy. Judge Langston informed counsel by letter that although he had recused in other cases where Mr. Fitzhugh was the only attorney for a particular party due to his candidacy, he was not going to recuse in the present case because (1) he had presided over the case for approximately two years, and (2) Mr. Fitzhugh was not the lead attorney for any of the Seeco defendants.

On April 7, 1998, Seeco filed a motion forjudge Langston’s recusal and argued that Canon 3E(1) of the Arkansas Code of Judicial Conduct mandated his recusal because of the candidacy of Mr. Fitzhugh for his judgeship. In an April 28, 1998 response, Hales contended that Judge Langston should not recuse because the addition of Mr. Fitzhugh as local counsel for Seeco was a contrivance by Seeco to create a conflict to force the judge’s recusal. That same day, Hales also moved for the disqualification of both Mr. Fitzhugh and Mr. Mars based on a claim that their activities were a forbidden attempt to “judge shop,” which was prejudicial to the administration of justice in violation of the Arkansas Rules of Professional Conduct.

Judge Langston conducted a hearing on the motions on June 1, 1998, following which he delivered a written opinion from the bench. He entered an order on June 2, 1998, denying Seeco’s motion that he recuse, denying Hales’s motion to disqualify Mr. Mars as counsel, and granting Hales’s motion to disqualify Mr. Fitzhugh.

The sole issue before this court in this interlocutory appeal is the disqualification of Mr. Fitzhugh as Seeco’s counsel in the present case and from practicing law in this state generally during his judicial candidacy. The decision to disqualify an attorney is reviewed under the abuse-of-discretion standard. Berry v. Saline Memorial Hosp., 322 Ark. 182, 907 S.W.2d 736 (1995). An abuse of discretion may be manifested by an erroneous interpretation of the law. Steward v. McDonald, 330 Ark. 837, 958 S.W.2d 297 (1997); Ford Motor Co. v. Nuckolls, 320 Ark. 15, 894 S.W.2d 897 (1995).

In his written order delivered from the bench on June 1, 1998, Judge Langston listed pertinent facts leading up to his decision to disqualify Mr. Fitzhugh as Seeco’s local counsel. He specifically referred to the sequence of events, which included Mr. Fitzhugh’s announcement of his candidacy for the circuit judgeship on March 3, 1998, and his entry of appearance on March 10, 1998, as counsel of record for Seeco. Judge Langston then granted Hales’s motion to disqualify Mr. Fitzhugh on the basis that Rule 8.2 of the Rules of Professional Conduct requires that a lawyer who is a candidate for judicial office comply with the Code of Judicial Conduct, and Canon 4(G) of that Code provides that a judge shall not practice law or appear as counsel in any court in this state. According to Judge Langston’s rationale, Mr. Fitzhugh, as a judicial candidate, was the equivalent of a judge and, thus, was precluded from practicing law in the state pending his candidacy.

We believe that the judge erred in the reason given for disqualifying Mr. Fitzhugh. In addition, the scope of his order, which disqualified Mr. Fitzhugh from the practice of law throughout Arkansas during his quest for the judgeship, was too broad. And, finally, the judge was wrong in refusing to assess whether Mr. Fitzhugh’s conduct violated the Arkansas Rules of Professional Conduct and in deferring such matters instead to the Professional Conduct Committee.

Taking the last point first, we recently stated that the Rules of Professional Conduct are applicable in disqualification proceedings. Norman v. Norman, 333 Ark. 644, 970 S.W.2d 270 (1998), citing Berry v. Saline Memorial Hosp., 321 Ark. 588, 906 S.W.2d 297 (1995); Purtle v. McAdams, 317 Ark. 499, 879 S.W.2d 401 (1994); Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990); First American Carriers, Inc. v. Kroger, 302 Ark. 86, 787 S.W.2d 669 (1990). In Norman, the trial judge similarly refrained from considering the Rules of Professional Conduct in a case involving disqualification of counsel. We held that the trial judge committed error in this regard, and we heard the issue de novo because the facts on the question of a conflict of interest had been fully developed. We determined that because a conflict of interest did exist, trial counsel should have been disqualified. The same reasoning, as expressed in Norman v. Norman, supra, applies to the case presently under consideration. We hold that the issue of whether Mr. Fitzhugh violated the Rules of Professional Conduct is relevant to the issue of his disqualification.

The essential facts surrounding the disqualification issue are not in dispute, and it appears clear to us from those facts that Mr. Fitzhugh participated in a contrived series of events to force Judge Langston to recuse in this case. There is, first, the fact that this litigation had been ongoing for a period of about two years with Judge Langston sitting as the assigned judge. Mr. Fitzhugh announced his candidacy forjudge Langston’s judicial position on March 3, 1998; entered his appearance as local counsel for Seeco on March 10, 1998; formally filed for the judgeship on March 20, 1998; and then sometime between March 21 and 27, 1998 questioned whether Judge Langston intended to recuse. In addition, the lead counsel for Seeco, Mr. Mars, attached an affidavit from his paralegal, Vicky Morgan, to Seeco’s motion for Judge Langston’s recusal, which included a letter from Mr. Mars soliciting campaign donations on behalf of Mr. Fitzhugh. According to Seeco’s motion for recusal, Mr. Mars’s participation in the Fitzhugh political campaign was additional reason for Judge Langston to recuse.

This court and the Court of Appeals have held in the past that it is impermissible for a party or counsel to create an infirmity for purposes of requiring a judge’s recusal. See, e.g., Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988) (holding that the trial judge was not required to recuse because the appellant raised the possibility of a federal class-action lawsuit for failure of the trial judge to provide prompt arraignments); Keene v. State, 56 Ark. App. 42, 938 S.W.2d 859 (1997) (holding that the trial judge was not required to recuse because the appellant had filed a complaint against the judge with the Judicial Discipline and Disability Commission); Korolko v. Korolko, 33 Ark. App. 194, 803 S.W.2d 948 (1991) (holding that the trial judge was not required to recuse when the appellant’s counsel had filed a complaint against the trial judge with the Judicial Discipline and Disability Commission). Cf. Rush v. Wallace, 23 Ark. App. 61, 69, 742 S.W.2d 952, 956 (1988) (“[A] judge’s refusal to disqualify himself cannot be circumvented by a claim that he will be needed to testify during the recusal motion.”).

A litigant, of course, is entitled to counsel of its own choosing. Saline Memorial Hosp. v. Berry, 321 Ark. 588, 906 S.W.2d 297 (1995). But that principle is not absolute and must be balanced against other policy considerations such as the issue we have before us today. Id. This court has long adhered to a firm and unwavering policy against “judge-shopping” by attorneys, and we will not abide an orchestrated effort to force a judge’s removal from a case. Hales argues to this court, as he did to the trial court, that this conduct by Seeco and its counsel is prejudicial to the administration of justice and violates Rule 8.4(d) of the Rules of Professional Conduct. Though this rationale for Mr. Fitzhugh’s disqualification as counsel in this case differs from that espoused by the trial judge, we may affirm when a trial judge reaches the right result though for the wrong reason. Calcagno v. Shelter Mut. Ins. Co., 330 Ark. 802, 957 S.W.2d 700 (1997); Nettleton Sch. Dist. v. Owens, 329 Ark. 367, 948 S.W.2d 94 (1997). We agree with the trial judge’s decision that Mr. Fitzhugh should be disqualified as counsel in this case, though we disagree with the judge’s reason for doing so, and we hold that a violation of Rule 8.4(d) provides ample support for the judge’s conclusion.

There is the added point that the option of allowing Mr. Fitzhugh to remain as counsel for Seeco in this case with Judge Langston presiding is an unconscionable one. Two political opponents involved in high-profile litigation mere weeks before the general election presents a highly inappropriate situation, which, we believe, would do nothing more than undermine confidence in the judicial process.

Judge Langston, of course, not only disqualified Mr. Fitzhugh from participation in the case at bar but also from practicing law before any court in the state during his judicial candidacy. As already indicated, the scope of that order is far too broad and does not comport with the requirements of the Code of Judicial Conduct. The mere fact that a person is a judicial candidate does not disqualify that person from the practice of law. In fact, ordinarily, it is incumbent upon a sitting judge to recuse in cases where a political opponent is appearing as counsel. See generally Ark. Code Jud. Cond. 3E(1). As we understand it, Judge Langston has been doing that in other cases where Mr. Fitzhugh was counsel of record prior to his announced candidacy. As we have already held, that general principle does not pertain to a situation like that before us where the judicial candidate seeks participation in a case of two-year’s duration as a device to force recusal. We do, however, modify the judge’s order and limit its applicability to the present case.

We are mindful of the fact that the issue of Judge Langston’s recusal also arose in 1996 in connection with an alleged royalty interest that the judge and his stepmother had in an oil and gas lease affected by the original complaint. That asserted conflict of interest, it is contended, was later eliminated by an amendment to Hales’s complaint. By our decision today, we do not foreclose an appeal at the appropriate time of any recusal matter relating to Judge Langston. Our rules are clear, however, that at this juncture the interlocutory appeal is limited to the issue of Mr. Fitzhugh’s disqualification. Ark. R. App. P.—Civ. 2(a)8.

Affirmed as modified.

       The entry of appearance does not contain a filemark, but it shows a certificate of service dated March 10, 1998.

       The Judicial Ethics Advisory Committee has issued two advisory opinions on this point. See Advisory Opinion 94-05; Advisory Opinion 94-02.