Brodbent v. Smith

2014 Ark. App. 598
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-14-262
Opinion Delivered October 29, 2014
AL BRODBENT and EVALEE APPEAL FROM THE CROSS
BRODBENT COUNTY CIRCUIT COURT
APPELLANTS [NO. CV-2012-89-4]
V. HONORABLE KATHLEEN BELL,
JUDGE
CHARLEY SMITH, MINNIE
PROCTOR, ERICK HESS, JOHNNY
SMITH, and EDMOND
ZIEGENHORN, Individually and as
Trustees of the FAIR OAKS BAPTIST
CHURCH, and FAIR OAKS BAPTIST
CHURCH
APPELLEES APPEAL DISMISSED
RHONDA K. WOOD, Judge
The trustees of the Fair Oaks Baptist Church sued their former pastor, Al
Brodbent, and his wife, Evalee, for ejectment and damages for continued trespass on
church property. The circuit court granted the trustees’ complaint and ordered the
Brodbents to leave the property. However, the order was silent regarding damages. Al
Brodbent, pro se, filed a notice of appeal. We must dismiss the appeal because the
order appealed from is not final.
The members of the Fair Oaks Baptist Church voted to disband and give the
church’s assets and property to another church organization. Brodbent and his wife
lived in the church parsonage but refused to leave the property, so the church’s
2014 Ark. App. 598
trustees filed a complaint for ejectment and damages against them. Brodbent, pro se,
answered and made a demand for a jury trial. Before the final hearing, he presented
that motion to the circuit court. The court believed it had already denied the motion
and asked the trustees’ attorney, “Is that your understanding that the motion [for a
jury trial] had previously been denied?” He answered, “Yes, your honor. Part of the
consideration too was you required us to amend our complaint to remove any request
for any money damages. So we’re strictly wanting equity, equitable relief.” The court
still denied Brodbent’s motion for a jury trial, and the case proceeded to a final
hearing. At the end, the court granted the trustees’ complaint.
The underlying cause of action was ejectment, and in ejectment actions
plaintiffs may seek both possession and damages for lost rents and profits. Ark. Code
Ann. § 18-60-209(a) (Repl. 2003). Here, the trustees sought both possession and
damages. While their attorney said the complaint had been amended to remove the
claim for money damages, the amended complaint included in the record still has the
damages claim. Further, the court’s order granting the complaint is silent regarding
damages, and no other order disposes that claim.
An appeal may be taken from a final judgment or decree entered by a circuit
court. Ark. R. App. P.–Civ. 2(a)(1) (2014). As a general rule, an order is not final and
appealable until the issue of damages has been decided. Delancey v. Qualls, 2012 Ark.
App. 328. Whether an order is final and appealable is a jurisdictional question that the
appellate court must raise on its own. Ford Motor Co. v. Washington, 2012 Ark. 325.
2
2014 Ark. App. 598
Because the trustees’ complaint included a claim for damages that was never addressed
by the circuit court, we hold that the judgment now being challenged is not final. See
Brann v. Hulett, 2012 Ark. App. 574; Wright v. Viele, 2012 Ark. App. 459. Therefore,
we lack jurisdiction and dismiss the appeal.
We also note that Al Brodbent, acting pro se, filed a notice of appeal on
behalf of his wife. Al Brodbent can represent himself, but because he is not an
attorney he cannot represent his wife. See Davidson Props., LLC v. Summers, 368 Ark.
283, 244 S.W.3d 674 (2006). Where a party not licensed to practice law attempts to
represent others by submitting himself to the jurisdiction of a court, those actions,
such as the filing of pleadings, are rendered a nullity. Id.
Appeal dismissed.
GLOVER and VAUGHT, JJ., agree.
James, House & Downing, P.A., by: Charley E. Swann and Patrick R. James, for
appellants.
Glover & Roberts, by: Danny W. Glover, for appellees.
3