Hooker v. Deere Credit Services, Inc.

• Decision Date: 24 June 1998
• Docket Number: No. CA,CA
• Citation: 62 Ark.App. 293,971 S.W.2d 267
• Parties: David and Ottie HOOKER, Appellants, v. DEERE CREDIT SERVICES, INC., Producers Tractor Co., and John Deere Co., Appellees. 97-1131.
• Court: Arkansas Court of Appeals

Page 267

971 S.W.2d 267

62 Ark.App. 293

David and Ottie HOOKER, Appellants, v. DEERE CREDIT SERVICES, INC., Producers Tractor Co., and John Deere Co., Appellees.

No. CA 97-1131.

Court of Appeals of Arkansas,

Division I.

June 24, 1998.

David Hooker, Ottie Hooker, Palestine, for Appellants.

Ralph W. Waddell, D.P. Marshall, Jonesboro, for Appellees.

ROAF, Judge.

David Hooker and Ottie Hooker, pro se litigants who are son and father respectively, appeal from a chancery court order dismissing with prejudice their complaint for declaratory judgment against Producers Tractor Co. (Producers), Deere Credit Services Inc. (Deere Credit), and John Deere Co. (John Deere). The Hookers raise seven points on appeal. They allege that the trial court erred in 1) denying them a jury trial, 2) denying them assistance of counsel (two non-lawyers), 3) denying their right to contract under a power of attorney (given to the same two non-lawyers), 4) improperly converting appellees' motions to dismiss into summary judgment while discovery was yet pending, 5) failing to follow the rules for summary judgment, and 6,7) dismissing the complaint for lack of jurisdiction and improper service upon appellees. We find no merit to any of these points and hold that the trial court properly dismissed the complaint with prejudice.

On January 23, 1997, the Hookers filed a complaint for declaratory judgment against the appellees in St. Francis County Chancery Court, seeking declaratory, injunctive, and compensatory relief regarding contracts executed by Ottie Hooker for the purchase of three pieces of farm equipment, a combine, tractor, and grain drill, from John Deere. When the complaint was filed, there was pending in St. Francis Chancery Court Case No. E-94-104, styled Ottie Hooker v. John Deere Credit and Producers Tractor Co., involving the same contracts and equipment. Ottie Hooker's two attempts to appeal from interim orders entered in the 1994 case had been dismissed by the supreme court and by this court.

The Hookers' 1997 suit in essence complained that the chancellor had ordered sequestration of the equipment in case number E-94-104 on May 6, 1996, sought to restrain and enjoin any further action in the 1994 case with regard to the equipment, and sought damages for the alleged loss of use of the equipment since its repossession by Producers in 1993. The complaint alleged that the Hookers had suffered "irreparable harm" in case number E-94-104 and that they "possessed no other adequate or speedy remedy at law in stopping the proceedings in case number E-94-104." The Hookers further asserted that "we stand a chance of losing our property if those proceedings continue with no assurance that the plaintiffs' property will not be taken and the necessity of doing an appeal in E-94-104." The Hookers further demanded a common-law jury trial and asked that the case not be assigned to Judge Kathleen Bell, the chancellor presiding over E-94-104.

On February 19, 1997, Deere Credit and John Deere filed a motion to dismiss alleging ineffective service of process and that the allegations in the complaint arose out of the same transaction or occurrence involved in E-94-104. Producers filed a motion to dismiss on the same grounds and also moved for a protective order suspending its discovery obligations until after a ruling on its motion to dismiss.

At the hearing held on March 27, 1997, Producers argued that the case should be dismissed under Ark. R. Civ. P. 12(b)(8) because of the prior action pending between the same parties arising out of the same transaction and due to defective service because James H. Hooker, who served the complaint, was neither a duly-appointed process server, sheriff, nor deputy. Deere Credit and John Deere adopted Producer's argument regarding service of process and also contended that the case should be dismissed because it involved the same parties and arose out of the same transactions and occurrence as E-94-104. The additional plaintiff and defendant in the 1997 action, David Hooker and John Deere, were characterized by appellees as "surplus" parties, and the 1997 action was characterized as an attempt by the Hookers to appeal from unfavorable orders entered in the 1994 case.

On April 22, 1997, eighty-nine days after the complaint was filed, Judge Bell dismissed the complaint with prejudice based on lack of subject-matter jurisdiction due to the pending 1994 case and because James Hooker was not authorized to serve process. On May 2, 1997, the Hookers filed a motion for reconsideration of the dismissal. The record does not show that this motion was ruled upon by the court. On June 27, 1997, the Hookers thus timely filed a notice of appeal.

As a preliminary matter, we first note that the Hookers' abstract is flagrantly deficient. Although the concurring judge would affirm this case based upon the Hookers' violation of Ark. Sup.Ct. & Ct. of App. R. 4-2, we do not agree that this case may be disposed of in that manner. Appellees Deere Credit and John Deere have provided a twenty-four-page supplemental abstract, including the complaint, motions to dismiss, and partial transcript of the hearing on the motions. They have also included the dismissal order as an addendum to their brief. See Ark. Sup.Ct. & Ct. of App. R. 4-2(a)(8). The Hookers have adequately abstracted their notice of appeal and we thus have a sufficient record before us to reach at least some of the issues they raise.

The Hookers' arguments, while not models of style, are understandable, and the authorities cited by them are not wholly inappropriate to the issue. Where the appellee cures the appellant's deficient abstract by providing a supplemental abstract, we consider the merits of the appeal. See Southall v. Little Rock Newspapers, Inc., 332 Ark. 123, 964 S.W.2d 187 (1998). In this regard, Deere Credit and John Deere have also requested an award of costs, including reasonable attorney fees, for the preparation of the supplemental abstract. As the supplementation was necessary for us to reach an understanding of this appeal, we grant the request upon appellees' providing a statement of cost of the supplemental abstract and the amount of time devoted to its preparation, as required by Ark. S.Ct. & Ct. of App. R. 4-2(b)(1).

We first consider the Hookers' two related points pertaining to the denial of their right to counsel and denial of their right to contract, pursuant to a durable power of attorney, with the same two non-lawyer counsel. At the hearing on the appellees' motions to dismiss, the trial court inquired of David Hooker, who was proceeding pro se, whether the two persons sitting at counsel table with him were licensed attorneys. After being advised that they were not, the trial court had them removed to the spectator's section of the court room. Hooker objected and asserted that the trial court was denying him "assistance of counsel" relying on several United States Supreme Court and federal district court cases upon the durable power of attorney given to the two non-lawyers. The Hookers make the same arguments on appeal.

The Hookers' argument that they were denied assistance of counsel in violation of their right to due process is meritless. They attempt to distinguish "assistance" of counsel from "representation." Arkansas Code Annotated Section 16-22-206 (Repl.1994) provides that it is illegal to practice law without a license. In Jones v. Ragland, 293 Ark. 320, 737 S.W.2d 641 (1987), the chancellor refused to allow a non-lawyer to sit at counsel table with Jones and assist him during a trial. The supreme court summarily disposed of the identical argument now made by the Hookers by stating "[O]nly licensed attorneys can represent another person in court."

The Hookers' resort to federal decisions to support their argument is also unavailing. Only U.S. v. Stockheimer, 385 F.Supp. 979 (W.D.Wis.1974), has even so much as a semblance of relevancy. There the district court held that where a pro se defendant had effectively waived the right to assistance of counsel and had chosen to defend himself, he would not be forbidden the assistance of two disbarred lawyers in a criminal proceeding. However, the court in Stockheimer declined to grant the defendant's motion to allow the unlicensed lawyers to act as counsel and spokesmen, and stated that "in the absence of any constitutional or federal statutory provision compelling me to either forbid or not to forbid [the] assistance, I may exercise my discretion in the matter." This case is obviously neither controlling nor even persuasive authority for this court to disregard our precedent and resolve this issue in the Hookers' favor.

We do not reach the merits of the argument pertaining to the denial of the right to contract, because the Hookers have failed to abstract the power of attorney. It is the appellant's duty to bring up a sufficient record on appeal. Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993). The necessity of abstracting the material parts of the record, including documents, as are necessary to an understanding of all questions presented in an appeal has been stated time and time again. See Ark. Sup.Ct. and Ct. of App. R. 4-2(b)(2); see e.g., Mills v. Holland, 307 Ark. 418, 820 S.W.2d 63 (1991).

We next consider whether the trial court properly dismissed the Hookers' action, because we need not reach the remaining issues concerning summary judgment and denial of a jury trial if we conclude that the dismissal was proper. In this regard, we agree with appellees that the Hookers' complaint standing alone made it crystal clear that the purpose of the declaratory-judgment action was to thwart the progress of the earlier action filed by Ottie Hooker against two of the three appellees. The complaint made numerous references to the pending action by docket number and baldly asserted that the Hookers wished to enjoin further proceedings in the 1994 case.

We find ample...