Brodbent v. Smith

              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
                                 

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. 

(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, 

. 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, 

.

                                          2
                                   

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, 

; Wright v. Viele, 

. 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, 

, 

 (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. 

        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.




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