Edward Zane Fair and Ruby Jean Fair v. LEDC, a Missouri Limited Liability Company

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CA04-73

December 15, 2004

EDWARD ZANE FAIR AN APPEAL FROM INDEPENDENCE

AND RUBY JEAN FAIR COUNTY CIRCUIT COURT

APPELLANTS [CV02-120-4]

V. HON. TIM WEAVER, JUDGE

LEDC, A MISSOURI AFFIRMED

LIMITED LIABILITY COMPANY

APPELLEE

Wendell L. Griffen, Judge

This pro se appeal arises from a judgment for rescission and restitution entered against appellants Zane and Ruby Fair in favor of appellee LEDC, a limited liability corporation incorporated in Missouri. Appellants assert twelve grounds for reversal, none of which have merit. Accordingly, we affirm.

In July 1999, appellants executed a written contract with appellee whereby appellants granted appellee the right to cut and remove all marketable timber from certain lands that appellants own. Appellee paid appellants $350,000 for the timber. The contract allowed appellee five years to cut the timber. Beginning in October 2000, apparently because appellants believed appellee was cutting timber from land not subject to the contract, appellants engaged in conduct that interrupted appellee's timber operation.

In 2002, after appellants interrupted appellee's timber-cutting operation, appellee sued for breach of contract, fraud, rescission, injunctive relief, reformation, and punitive damages. Appellee alleged that appellants had thwarted its efforts to cut the timber by removing ribbons that marked the boundary lines for the loggers and by various means of intimidation and threats against appellee's agents.

In response to appellee's first amended complaint, appellants filed a pro se answer and requested a jury trial. On October 11, 2002, appellee filed a motion requesting that the court bifurcate the proceedings to consider the equitable claims separately and, in the interest of judicial economy, before setting a jury trial on the legal claims. The trial court severed the causes of action. This appeal is based upon the rescission of the contract and the order of restitution.

Two contracts were introduced into evidence, with each party claiming that its contract evinced the agreement between the parties. On September 5, 2003, the trial court entered its order in this case and found that the contract introduced by appellee reflected the true agreement between the parties. The court further found that an "abundance" of testimony established that appellants had prevented appellee or appellee's representatives from completing the logging of the property. Thus, the court found that appellants had breached the contract between the parties and that the breach was a material breach warranting rescission of the contract. The court further found that appellants' failure to provide a survey of a certain tract also entitled appellee to rescission.

The court awarded appellee $187,411.23, which reflected the amount paid by appellee to appellants in consideration for the contract, less $162,588.77, the value of the timber cut by appellee prior to appellants' interference. Because the trial court awarded rescission and restitution, it determined that appellee's claim for damages was moot and did not hold a jury trial on that issue.

After receiving a judgment in its favor, appellee sought a writ of garnishment against appellants for $4,127.34 in a Bank of America account held in both appellants' names. On February 10, 2004, appellant Ruby Fair filed a motion to quash the writ of garnishment, arguing that the money in the bank account was exempt because the funds were proceeds from social security income and a retirement annuity. A hearing was set for April 2, 2004; notice was sent to appellants, but they made no appearance. On April 4, 2004, the trial court entered an order denying the motion to quash and ordering that the money in the bank account be tendered to appellee, as partial satisfaction of the judgment. Appellants also appeal from this order.

Appellants raise the following twelve arguments on appeal: 1) the timber contract was forged; 2) appellee did not exist as an entity when its claim was filed; 3) there was no evidence that appellants breached the contract, but "plenty" of evidence that appellee did so; 4) the trial court denied their constitutional right to a jury trial; 5) the case was started by Michelle Huff, appellee's attorney, but she has not been joined as a plaintiff; 6) Huff told appellants that if they would throw away their contract, she would drop the case and would pay them, but appellants refused; 7) Circuit Judge Tim Weaver and Huff "evidentially [sic] tried to make it appear that a hearing on equity issues was a trial on legal issues"; 8) Huff has given false statements in this case; 9) one owner's first name is misspelled on the "forged" contract; 10) the case has no merit; 11) the forged timber contract has been referred for criminal investigation; and 12) the trial court's order improperly ordered that appellant Ruby Fair's social security and teacher retirement money to be given to appellee.

Because appellants chose not to include in the record the hearing held on the equitable issues, the only argument properly preserved for appellate review is their argument regarding the denial of the motion to quash the garnishment. After appellants filed their notice of appeal from the September 5, 2003 order, the Independence County court reporter contacted them regarding their failure to indicate that they had ordered transcripts and exhibits. Mr. Fair responded by letter, indicating that they did not ask for a transcript because there was no jury trial held.

Thus, appellants apparently do not understand that they are required to include in the record the relevant portion of the proceedings that led to the order upon which they base their appeal, as required by Arkansas Supreme Court Rule 4-2(a)(5). Arkansas Supreme Court Rule 4-2(a)(8) also requires that an appellant's brief contain photocopies of the order from which an appeal is taken, along with other relevant pleadings, documents, or exhibits essential to an understanding of the case. Appellants also failed to abstract the notices of appeal, the orders from which they appeal, the contracts in the case, as well as most of the pleadings. Although appellee partially remedied this by abstracting the notice of appeal from the September 5, 2003 order, the contracts, and the pleadings, it did not cure appellants' failure to include in the record the hearing held on the equitable issues.

The fact that appellants apparently do not understand our procedural rules does not excuse their failure to comply with those rules. Pro se appellants are held to the same briefing requirements as attorneys. See Jewell v. Arkansas State Bd. of Dental Examiners, 324 Ark. 463, 921 S.W.2d 950 (1996). Further, it is well-settled that it is an appellant's burden to bring up a record sufficient to demonstrate that reversal is warranted and it is equally well-settled that we will not go to the record to reverse. Simmons First Bank of Arkansas v. Bob Callahan Servcs., Inc., 340 Ark. 692, 13 S.W.3d 570 (2000); Ark. Sup. Ct. R. 4-2(a)(8). However, this is not even a case in which the court can go to the record to affirm because the proceedings from the hearing on the equitable issues, by appellants' choice, were not made part of the record. In the absence of a complete record on appeal, we are compelled to summarily affirm all but one of appellants' arguments. Larry v. Grady School Dist., 82 Ark. App. 185, 119 S.W.3d 528 (2003).1

The only issue that appears to be preserved is appellants' argument regarding denial of their motion to quash the garnishment of the money in the parties' bank account. We affirm the trial court's denial of the motion to quash.2 Appellants failed to appear at the motion on the hearing to quash, but do not allege that they were not notified of the hearing. The trial court questioned Huff regarding the delivery of notice to appellants and was satisfied that notice of the hearing was given to them. The court noted that it was appellants' burden to prove their allegations that the money in the account came from social security and retirement benefits and were thus, exempt. Accordingly, because appellants offered the trial court nothing beyond the bare allegation in their pleading that the money in the bank account was exempt, the trial court properly denied the motion to quash.

Affirmed.

Crabtree and Baker, JJ., agree.

1 With regard to appellants' argument that they were denied their right to a trial by a jury, we note that the constitutional right to a jury trial only extends to those issues that were triable by a jury at common law. See U.S. Const., amend 7; Ark. Const. Art. 2 § 7. Equitable issues were not triable by a jury at common law; therefore, the right to a jury does not extend to equitable issues. Riggin v. Dierdoff, 302 Ark. 517, 790 S.W.2d 897 (1990); Mitchell v. House, 71 Ark. App. 19, 26 S.W.3d 586 (2000). Further, it is well-settled that a trial court may separate legal and equitable claims, where convenient, to avoid prejudice, or where it is in the interest of expedition and economy. Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992); Ark. R. Civ. P. 42(b).

Here, appellee's complaint alleged causes of action that sounded both in law and equity, and appellants made no counterclaims. While the hearing held on the equitable issues was not made part of the record, it is clear from appellee's pleadings that if it succeeded on its equitable claims, a trial on the legal issues would be unnecessary.

2 On February 27, 2004, appellants filed an "affidavit of prejudice" alleging that Circuit Judge Tim Weaver was "prejudiced" and would not act impartially concerning the motion on the writ of garnishment, and requesting that Judge Weaver "transfer" the case to the Arkansas Supreme Court. These assertions were based on appellants' claim that they had been denied their right to a jury trial and that Judge Weaver "upheld a forged contract." Appellants assert that they received no hearing on the affidavit. While Judge Weaver obviously could not have "transferred" the case to the Arkansas Supreme Court, he could have treated appellants' motion as a motion to recuse. However, a judge's decision to recuse is within the trial court's discretion and will not be reversed absent an abuse of that discretion. Searcy v. Davenport, 352 Ark. 307, 100 S.W.3d 711 (2003). We do not believe that the reasons stated by appellants demonstrated abuse of discretion by the trial court.