{ "id": 6141322, "name": "David and Ottie HOOKER v. DEERE CREDIT SERVICES, INC., Producers Tractor Co., and John Deere Co.", "name_abbreviation": "Hooker v. Deere Credit Services, Inc.", "decision_date": "1998-06-24", "docket_number": "CA 97-1131", "first_page": "293", "last_page": "302", "citations": [ { "type": "official", "cite": "62 Ark. App. 293" }, { "type": "parallel", "cite": "971 S.W.2d 267" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "304 Ark. 5", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1880962 ], "weight": 3, "year": 1990, "pin_cites": [ { "parenthetical": "Turner, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/ark/304/0005-01" ] }, { "cite": "331 Ark. 525", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604766 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/331/0525-01" ] }, { "cite": "294 Ark. 480", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1895732 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/294/0480-01" ] }, { "cite": "245 Ark. 691", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1606786 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/ark/245/0691-01" ] }, { "cite": "228 Ark. 1091", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726247 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/ark/228/1091-01" ] }, { "cite": "228 Ark. 1084", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726192 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/ark/228/1084-01" ] }, { "cite": "307 Ark. 418", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902414 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0418-01" ] }, { "cite": "312 Ark. 302", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935009 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0302-01" ] }, { "cite": "385 F.Supp. 979", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3333041 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f-supp/385/0979-01" ] }, { "cite": "293 Ark. 320", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869800 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/293/0320-01" ] }, { "cite": "332 Ark. 123", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 377541 ], "weight": 2, "year": 1998, "opinion_index": 0, "case_paths": [ "/ark/332/0123-01" ] }, { "cite": "324 Ark. 463", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9161197 ], "weight": 2, "year": 1996, "opinion_index": 1, "case_paths": [ "/ark/324/0463-01" ] }, { "cite": "331 Ark. 418", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604755 ], "weight": 2, "year": 1998, "opinion_index": 1, "case_paths": [ "/ark/331/0418-01" ] }, { "cite": "316 Ark. 208", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907754 ], "weight": 2, "year": 1994, "opinion_index": 1, "case_paths": [ "/ark/316/0208-01" ] }, { "cite": "289 Ark. 87", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875354 ], "weight": 2, "year": 1986, "opinion_index": 1, "case_paths": [ "/ark/289/0087-01" ] }, { "cite": "41 Ark. App. 29", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136549 ], "weight": 2, "year": 1993, "opinion_index": 1, "case_paths": [ "/ark-app/41/0029-01" ] } ], "analysis": { "cardinality": 916, "char_count": 19173, "ocr_confidence": 0.756, "pagerank": { "raw": 4.288273044730779e-08, "percentile": 0.2706329596822054 }, "sha256": "7905cc39f6ea41c86a761648d1da7419202c475bd3268675282e4009964e95ee", "simhash": "1:0ea7c4027966bbf9", "word_count": 3124 }, "last_updated": "2023-07-14T22:09:37.997804+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Neal, J., agrees.", "Meads, J., concurs." ], "parties": [ "David and Ottie HOOKER v. DEERE CREDIT SERVICES, INC., Producers Tractor Co., and John Deere Co." ], "opinions": [ { "text": "Andree Layton Roaf, Judge.\nDavid 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\u2019 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.\nOn 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\u2019s two attempts to appeal from interim orders entered in the 1994 case had been dismissed by the supreme court and by this court.\nThe Hookers\u2019 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 \u201cirreparable harm\u201d in case number E-94-104 and that they \u201cpossessed no other adequate or speedy remedy at law in stopping the proceedings in case number E-94-104.\u201d The Hookers further asserted that \u201cwe stand a chance of losing our property if those proceedings continue with no assurance that the plaintiffs\u2019 property will not be taken and the necessity of doing an appeal in E-94-104.\u201d 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.\nOn 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.\nAt 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\u2019s 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 \u201csurplus\u201d parties, and the 1997 action was characterized as an attempt by the Hookers to appeal from unfavorable orders entered in the 1994 case.\nOn 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.\nAs a preliminary matter, we first note that the Hookers\u2019 abstract is flagrantly deficient. Although the concurring judge would affirm this case based upon the Hookers\u2019 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.\nThe Hookers\u2019arguments, 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\u2019s 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\u2019 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).\nWe first consider the Hookers\u2019 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\u2019 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\u2019s section of the court room. Hooker objected and asserted that the trial court was denying him \u201cassistance of counsel\u201d 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.\nThe Hookers\u2019 argument that they were denied assistance of counsel in violation of their right to due process is merit-less. They attempt to distinguish \u201cassistance\u201d of counsel from \u201crepresentation.\u201d 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 \u201c[0]nly licensed attorneys can represent another person in court.\u201d\nThe Hookers\u2019 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\u2019s motion to allow the unlicensed lawyers to act as counsel and spokesmen, and stated that \u201cin 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.\u201d This case is obviously neither controlling nor even persuasive authority for this court to disregard our precedent and resolve this issue in the Hookers\u2019 favor.\nWe 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\u2019s 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).\nWe next consider whether the trial court properly dismissed the Hookers\u2019 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\u2019 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.\nWe find ample authority for dismissal of such an action. In his treatise, Arkansas Civil Practice and Procedure \u00a7 33-2 (2d ed. 1993), Justice David Newbern states,\n[T]he declaratory judgment procedure is intended to supplement rather than supersede ordinary actions, and if the question sought to be raised in a declaratory judgment action is already the subject of a pending case a declaratory judgment should be dismissed.\nIn City of Cabot v. Morgan, 228 Ark. 1084, 312 S.W.2d 333 (1958), the supreme court reversed a chancellor\u2019s issuance of a temporary restraining order pursuant to a declaratory-judgment action filed by disgruntled taxpayers, while a civil action was already pending in the justice of the peace court for collection of the tax. The court stated:\n[w]e condemn the practice of a person after being charged with violating the law . . . then asking for a declaratory judgment in an independent cause, with the result that the two cases involving the same subject matter are pending at the 'same time. If such were permitted, it would cast an unnecessary burden on the courts and the law enforcement authorities .... [W]hen . . . another action between the same parties, in which all issues could be determined is actually pending at the time of the commencement of the action for declaratory judgment, the court abuses its discretion when it entertains jurisdiction.\n(Citations omitted.) See also Robinson v. Morgan, 228 Ark. 1091, 312 S.W.2d 329 (1958).\nIn Mid-State Constr. Co. v. Means, 245 Ark. 691, 434 S.W.2d 292 (1968), the supreme court held that a circuit court was without jurisdiction to entertain the question of a deceased worker\u2019s status as an employee in a declaratory-judgment action.filed while the same question was already at issue in a case pending before the Workmen\u2019s Compensation Commission. Also, in Riley v. City of Corning, 294 Ark. 480, 743 S.W.2d 820 (1988), the court affirmed a circuit court\u2019s dismissal of a declaratory-judgment action seeking a determination of whether legislation creating the Corning Municipal Court was unconstitutional, because the- appellant was raising the same issue in a pending appeal to circuit court from a nolo contendere plea of DWI entered in the municipal court.\nThese authorities lead us to the inescapable conclusion that, notwithstanding the additional parties, the trial court correcdy dismissed the Hookers\u2019 declaratory-judgment action. As the appellees so aptly state, the allegations and request for relief in their complaint doomed the Hookers\u2019 1997 case, because a trial court certainly does not have the power to exercise appellate jurisdiction over itself. Indeed, the supreme court has defined jurisdiction as \u201cthe power to hear and determine the subject matter in controversy between the parties to the suit.\u201d Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998).\nWhile it is clear that the Hookers are not happy with the way matters have progressed in the 1994 case, the appellees surely can be no less pleased to find themselves embroiled in litigation over equipment repossessed some five years ago. Doubtless we would all be better served if the Hookers, with the aid of this equipment, were busily engaged in what they apparently do very well \u2014 farming their land and providing nourishment and sustenance for their fellow man.\nHowever, in seeking to do so, they must follow our rules. As the concurring justice in State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990), pointed out:\n[t]he rules of practice and procedure constitute the foundation supporting our system based upon the rule of law. In order for the system to work in an efficient manner, it is imperative that the rules under which litigants and their attorneys operate be, as nearly as possible, definite, certain, and uniform in application.\nId. (Turner, J., concurring). The Hookers are obliged, as are we all, to abide by the rule of law. They are not free to pick and choose from among our rules and laws those provisions which they will follow and others which they will disregard.\nAffirmed.\nNeal, J., agrees.\nMeads, J., concurs.", "type": "majority", "author": "Andree Layton Roaf, Judge." }, { "text": "Margaret Meads, Judge,\nconcurring. I concur in the result reached by my colleagues but would not reach the merits of the appeal because appellants have failed to comply with Rule 4-2 of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas.\nAppellants have filed a brief listing seven points on appeal which are mainly conclusive statements of errors allegedly made by the trial court. These points are difficult to understand and several involve documents for which no abstract has been provided. Each point is followed by a list of citations allegedly supporting that point. However, there is neither discussion nor convincing argument regarding how the citation applies to the point or to the instant case. Appellate review of these points is controlled by the rule that an assignment of error unsupported by convincing argument or authority will not be considered on appeal unless it is apparent, without further research, that the assignment of error is well taken. Smith v. Smith, 41 Ark. App. 29, 848 S.W.2d 428 (1993).\nMoreover, appellant\u2019s brief fails to comply with Rule 4-2, Rules of the Arkansas Supreme Court and Court of Appeals. The fact that appellants are pro se is immaterial. Van Bibber v. Laster, 289 Ark. 87, 709 S.W.2d 90 (1986).\nIn the first place, appellants\u2019 table of contents fads to note the page at which each pleading and document is abstracted. Rule 4-2(a). Moreover, appellant\u2019s statement of the case is deficient. Under the rule, this statement shall be a concise statement, without argument, sufficient to enable the court to read the abstract with an understanding of the nature of the case, the general fact situation, and the action taken by the trial court. Rule 4-2(a). Appellants\u2019 four-page statement consists of a narrative so interspersed with dates, citations, and argument that it is extremely difficult to understand either the nature of the case or the general fact situation.\nFurther, appellants\u2019 abstract is written in narrative form and interspersed with argument and citation to authority. It is not an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of the questions presented to the court for decision. Rule 4-2(a).\nMoreover, appellants have failed to properly abstract the pleadings. Although most of the required pleadings and orders are noted in the abstract, their essential components are missing. Carmical v. City of Beebe, 316 Ark. 208, 871 S.W.2d 386 (1994). Appellants\u2019 abstract is replete with such references as \u201cR. Vol. I, P. 104 is the Order Setting Hearing on P.T.C. Motion for Protective Order for March 13, 1997 & was filed by Chancellor Bell on 3-7-96,\u201d and \u201cHookers did a Pet. To Reconsider the Protective Order filed 3-27-97 R. Vol. 2, ps. 223-237 with exhibits & Affidavits attached filed April 4, 1997 setting forth (p. 223, 227) . . . .\u201d A notation that merely references the location of the document in the record is not sufficient. Hooker v. Farm Plan Corp., 331 Ark. 418, 962 S.W.2d 353 (1998); Rule 4-2(a).\nAlso, I believe appellants\u2019 notice of appeal is insufficiently abstracted. It is abstracted as follows:\nHookers file Notice of appeal on June 27, 1997 to the Arkansas Supreme Court with various orders and exhibits attached, R. Vol.3, ps. 463-472. (P.463)Hookers appeal to Ark. Supreme court under Rules of supreme Court Rule l-2(a)(l). (P.465) Dismissal Order was attached & will not be abstracted again as it has been previously abstracted, (p.476) Protective Order was also attached and has already been previously abstracted, also scheduling Order surrounding Hookers summary Judgment Motion & Order vacating Hooker scheduled hearing on Hookers summary judgment motion was also attached & also has previously been abstracted and will not be abstracted again a second time.\nFrom the foregoing it is virtually impossible for me to determine with specificity the orders from which appellants appeal or the contents of those orders.\nThe appellant bears the burden of producing an abstract that is an impartial condensation, without comment or emphasis, of the material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented on appeal. Hooker, supra. When the abstract is flagrantly deficient, we will affirm the judgment of the trial court. Id. The rules are not relaxed for pro se appellants. Jewell v. Arkansas State Bd. of Dental Examiners, 324 Ark. 463, 921 S.W.2d 950 (1996).\nAlthough appellees have submitted a supplemental abstract, I do not agree that it cures the myriad deficiencies of appellants\u2019 abstract. For example, among the items missing are an abstract of the Durable Power of Attorney, the contracts, the affidavits, and three sets of discovery attached to appellants\u2019 complaint. Also, appellees have not supplemented appellants\u2019 abstract of the notice of appeal.\nFor the reasons stated above, I would affirm the order of the trial court without reaching the merits of appellants\u2019 case.", "type": "concurrence", "author": "Margaret Meads, Judge," } ], "attorneys": [ "Appellants, pro se.", "Barrett & Deacon, by: Ralph W. Waddell and D.P. Marshall Jr., for appellees." ], "corrections": "", "head_matter": "David and Ottie HOOKER v. DEERE CREDIT SERVICES, INC., Producers Tractor Co., and John Deere Co.\nCA 97-1131\n971 S.W.2d 267\nCourt of Appeals of Arkansas Division I\nOpinion delivered June 24, 1998\nAppellants, pro se.\nBarrett & Deacon, by: Ralph W. Waddell and D.P. Marshall Jr., for appellees." }, "file_name": "0293-01", "first_page_order": 321, "last_page_order": 330 }