Chiodini v. Lock
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Cite as 2010 Ark. App. 340
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA09-297
R.J. CHIODINI
Opinion Delivered APRIL 21, 2010
APPELLANT
V.
DAVID LOCK
APPEAL FROM THE STONE
COUNTY CIRCUIT COURT
[NO. CV05-93-4]
HONORABLE STEPHEN CHOATE,
JUDGE
APPELLEE
AFFIRMED AND REMANDED
WITH INSTRUCTIONS
ROBERT J. GLADWIN, Judge
Appellant R.J. Chiodini sued his neighbor, appellee David Lock, claiming that Lock
constructed a fence that breached a long-accepted boundary line and encroached on
Chiodini’s land. Following several discovery disputes and the denial of Chiodini’s motion for
summary judgment, the circuit court held a bench trial and ruled against Chiodini. In this pro
se appeal, Chiodini argues that the court erred in its discovery rulings, in denying his motion
for summary judgment, and in entering the final decree. We affirm and remand with
instructions for the court to amend its final decree to include a specific legal description of the
boundary at issue.
Cite as 2010 Ark. App. 340
I. Background facts
Chiodini and Lock each own large tracts of land in Stone County. Lock’s family has
owned his land for over fifty years. Chiodini’s property, which lies south of Lock’s, was
previously owned by the Ira Thomas family, who sold it to Luke Elliott in 1995. Elliott sold
the land to Chiodini in 2003. For many years, parts of an old fence existed near the
properties’ common border. In the mid-to late 1990s, Lock built a fence that ran somewhat
parallel to, but south of, the old fence line. According to Lock, he obtained a survey and built
the new fence on the actual border line, which his neighbor, Luke Elliott, agreed to. Later,
Lock fenced another area near the common border, creating a small area for hay storage.
When Chiodini bought Elliott’s property, he walked the area with his GPS unit and
concluded that there were discrepancies between the placement of Lock’s new fences and the
true border represented by the old fence. He therefore determined that Lock’s new fencing
encroached on approximately three acres of his land. On December 21, 2005, Chiodini sued
Lock seeking ejectment, removal of the new fences, damages for trespass, an injunction, and
an order establishing a boundary by acquiescence in accordance with the old fence line.
Several discovery disputes ensued, and the circuit court ruled in Lock’s favor on all of them.
Chiodini then filed a motion for summary judgment, which the court denied. The case went
to trial and the circuit judge, sitting as fact-finder, refused to establish a boundary by
acquiescence. Chiodini filed a timely notice of appeal, and this appeal followed.
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II. Discovery rulings
Chiodini served Lock with two sets of discovery during the first four months of the
case. The first set was served on December 30, 2005, along with the summons and complaint,
and it consisted of forty requests for admission, twenty-one interrogatories, and eight requests
for production of documents. The second set, consisting of twenty-five requests for
admission, fifteen interrogatories, and eight requests for production of documents, was served
in late April 2006. After Lock responded to some of the discovery, Chiodini filed numerous
motions, asserting that the responses were late or inadequate. Chiodini asked the court to
deem the requests for admission admitted; to compel Lock to provide additional answers to
the interrogatories and requests for production; and to prohibit Lock from introducing at trial
matters contained in his discovery responses. Judge Tim Weaver conducted several hearings
and issued bench rulings on Chiodini’s motions but recused before any written orders could
be entered. Thereafter, Judge Stephen Choate heard the case and entered a series of orders
on August 20, 2007, denying Chiodini’s motions and prohibiting him from conducting
further discovery. Chiodini contends that the court’s rulings were in error and that Lock
should be sanctioned for discovery violations.1 Our standard of review is well established. The
trial court has wide discretion in matters pertaining to discovery and a trial court’s decision
will not be reversed absent an abuse of discretion. Parker v. S. Farm Bureau Ins. Co., 326 Ark.
Chiodini petitioned the Arkansas Supreme Court for a writ of certiorari with regard
to the discovery orders, but the writ was denied. Chiodini v. Lock, 373 Ark. 88, 281 S.W.3d
728 (2008).
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1073, 935 S.W.2d 556 (1996). An abuse of discretion occurs when discretion is applied
thoughtlessly, without due consideration, or improvidently. Oldham v. Morgan, 372 Ark. 159,
271 S.W.3d 507 (2008).
A. First set of discovery
Answers to Chiodini’s first set of discovery were due on February 13, 2006. See Ark.
R. Civ. P. 33(b)(3), 34(b)(2), and 36(a) (2009). On January 26, 2006, Lock’s attorney, Mitch
Cash, mailed responses to the interrogatories and requests for admission to Chiodini.2 The
responses show that Lock answered twenty interrogatories and objected to one and that he
denied those requests for admission asking him to characterize the old fence line as a boundary
between the properties. On March 3, 2006, Chiodini notified Cash that the responses he
received were unsigned. Cash quickly forwarded signed copies, explaining that he “was
having health problems at the time” and had undergone surgery on January 27, 2006.
On April 20, 2006, Chiodini filed a motion to compel more responsive answers to two
of the interrogatories. Attorney Cash was in the process of withdrawing from the case, but
Lock’s new attorneys filed additional responses on May 9, 2006. Chiodini then filed another
motion to compel, complaining that the responses did not repeat each interrogatory before
answering as required by Ark. R. Civ. P. 33(b)(2) and that the responses were signed by
Lock’s attorney rather than by Lock himself. Judge Weaver held a hearing on June 28, 2006,
and directed Lock’s attorneys to “have him sign everything.” Five days after the hearing, Lock
2
The record does not reveal what became of the request for production of documents.
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filed “Substituted Responses to Plaintiff’s 1st Set of Interrogatories,” which contained answers
or objections to all twenty-one interrogatories, signed and verified by Lock (although the
verification mistakenly referenced the requests for admission).
On July 12, 2006, Chiodini again asked the court to order Lock to sign and verify his
original answers to interrogatories. He also asked that the requests for admission be deemed
admitted based on Lock’s failure to provide signed responses within forty-five days of service.
With regard to the admissions, Lock answered that attorney Cash’s failure to send signed
responses on January 26, 2006, was the result of Cash’s illness, which constituted excusable
neglect. Judge Weaver held a hearing on the motions, but the excerpt of the hearing, which
Chiodini has provided as the record on appeal, does not reveal whether the judge ruled on
the motions. However, when Judge Choate took over the case, he denied Chiodini’s
motions, finding that Judge Weaver ruled from the bench that Lock’s interrogatory responses
were “complete, adequate, and in compliance with [Rule 33]” and that Lock’s responses to
the requests for admission were neither deficient nor late.
We first address Chiodini’s argument regarding the interrogatories. He contends that
Lock was required to sign and verify the original answers to interrogatories and not merely
provide new, substituted responses. We disagree. Arkansas Rule of Civil Procedure 26(e)
(2009) permits a party to “amend” discovery responses, and in fact imposes a duty to do so
if the party learns that the responses are incomplete or incorrect. Furthermore, Chiodini has
not convinced us that receiving substituted answers to interrogatories more than two years
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before trial affected his ability to conduct additional discovery or to prosecute his case.
Chiodini cannot obtain reversal unless he can demonstrate prejudice resulting from the
substituted responses. See generally Keenan v. Am. River Transp. Co., 304 Ark. 42, 799 S.W.2d
801 (1990). Compare Coulson Oil Co. v. Tully, 84 Ark. App. 241, 139 S.W.3d 158 (2003)
(affirming a circuit court’s imposition of sanctions where the defendant supplemented a
deliberately untrue response one month before trial, which impeded the plaintiff’s ability to
depose a witness). We therefore find no error on this point.
Chiodini argues next that the circuit court erred in not deeming the requests for
admission admitted. A requested matter is admitted unless, within thirty days after service of
the request (or within forty-five days if the request was served with the complaint), the party
to whom the request is directed serves on his opponent a written response or objection,
signed by the party or his attorney. Ark. R. Civ. P. 36(a).3 Clearly, Lock’s initial, unsigned
responses did not comport with Rule 36(a)’s requirement that responses be signed by the
party or his attorney. See Womack v. Horton, 283 Ark. 227, 674 S.W.2d 935 (1984). However,
a circuit court may, upon motion, grant additional time to answer requests for admission,
even if the time for answering has expired, based on excusable neglect. See Ark. R. Civ. P.
6(b)(2) (2009). See also Borg-Warner Acceptance Corp. v. Kesterson, 288 Ark. 611, 613, 708
S.W.2d 606, 607 (1986) (holding that Rule 6(b)(2) applies to requests for admission and
Chiodini asserts that the responses must also be verified by a party, but that
requirement was deleted from Rule 36 in 1983. In re Amendments to the Rules of Civ. Proc., 279
Ark. 470, 651 S.W.2d 63 (1983); David Newbern & John J. Watkins, Civil Practice & Procedure
§ 23.3, at 469 (4th ed. 2006).
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provides “broadly for extensions of time to respond in instances of excusable neglect”). In the
case at bar, Lock pleaded excusable neglect based on his attorney’s illness during the time he
sent the unsigned responses.
Our supreme court has not favored a party’s filing late responses in instances involving
ordinary office distractions, Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987), or secretarial
error. Barnett Rest. Supply, Inc. v. Vance, 279 Ark. 222, 650 S.W.2d 568 (1983). However, the
particular facts of each case must be examined and, when the facts warrant, acceptance of late
responses is required. Gibson v. Gibson, 87 Ark. App. 62, 185 S.W.3d 122 (2004); Belcher v.
Bowling, 22 Ark. App. 248, 738 S.W.2d 804 (1987). Our court has also taken into
consideration whether the party who propounded the requests was prejudiced by a late
response. See Belcher, 22 Ark. App. at 251, 738 S.W.2d at 806.
In the present case, we cannot say that the circuit court abused its discretion in refusing
to deem the requests admitted based on a late response. Counsel’s illness, which required
surgery on the day after the unsigned responses were sent, could be considered by the court
as a legitimate, extraordinary distraction leading to excusable neglect. Furthermore, counsel
did not simply ignore the requests or demonstrate a lack of diligence; he responded to the
requests in a timely fashion but simply neglected to sign them. Upon being told of the
omission, he immediately sent signed responses. Compare Adams v. Moody, 2009 Ark. App.
474, ___ S.W.3d ___ (affirming a finding of a lack of excusable neglect where a party claimed
illness and filed several motions over a two-month period seeking extensions of time to file
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an answer but did not file an answer during the two-month period). Moreover, we cannot
see how Chiodini was prejudiced by the unsigned responses, given that he received signed
copies of the responses very early in the lawsuit and only a few days after he notified Cash of
his mistake.
Chiodini also argues that Judge Choate erred in finding that Judge Weaver heard the
motion to deem the requests admitted and issued a bench decision on the motion. We cannot
ascertain all that occurred below with reference to Judge Weaver’s rulings because Chiodini
designated only excerpts from Judge Weaver’s hearings. It is the appellant’s burden to bring
up a record sufficient to demonstrate error. Judkins v. Duvall, 97 Ark. App. 260, 248 S.W.3d
492 (2007). In any event, we view Judge Choate’s ruling as correct on the merits.
B. Second set of discovery
Chiodini propounded a second set of discovery in April 2006. His requests for
production sought, among other things, copies of the fronts and backs of certain checks and
receipts or invoices from establishments that sold fencing material and had transacted business
with Lock between 1995 and 2001. Within thirty days, Lock provided copies of the fronts
of the requested checks. However, he objected that the other materials were “too numerous
to copy.” Lock did not answer the interrogatories or requests for admission within thirty days.
Citing Lock’s late or nonresponsive answers, Chiodini filed motions to compel regarding the
requests for production and the interrogatories, and he asked that the requests for admission
be deemed admitted.
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At the June 28, 2006 hearing conducted by Judge Weaver, Lock’s attorneys provided
Chiodini with copies of the backs of the requested checks and promised that Chiodini could
view the materials that were too cumbersome to copy within a few days. They also promised
that Chiodini would have responses to the interrogatories within a few days. Shortly after the
hearing, Lock filed “Substituted Responses to Plaintiff’s 2nd Set of Interrogatories” and
provided Chiodini with 152 documents contained in the attorneys’ files. Judge Choate would
later rule that Lock’s answers to the interrogatories were “complete, adequate, and in
compliance with [Rule 33]” and Lock’s provision of the requested documents rendered any
noncomformity with the discovery rules moot.
On appeal, Chiodini argues that Lock’s answers to the interrogatories were “an attempt
to replace previously verified responses and change answers.” However, the record indicates
that, despite Lock’s designating his answers to the second set of interrogatories as
“substituted,” he filed only one set of answers to the second set of interrogatories. Chiodini
also argues that Lock’s answers to both the first and second set of interrogatories were
unresponsive. He points out that some of the answers simply cited a long narrative set forth
in a previous answer and that other responses did not provide the information requested. We
are not impressed with many of Lock’s responses and agree that some of them were less than
forthcoming. However, again, Chiodini has not convinced us that he was prejudiced by these
alleged discovery violations or that reversal is warranted. As the appellant, he bears the burden
of demonstrating reversible error. Arrow Int’l, Inc. v. Sparks, 81 Ark. App. 42, 98 S.W.3d 48
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(2003). Likewise, his complaint that he received a “jumble of documents” in response to his
requests for production fails to persuade, given that the record does not reveal precisely what
documents he received or how the responses affected his ability to conduct the lawsuit.
Chiodini cites Calandro v. Parkerson, 333 Ark. 603, 970 S.W.2d 796 (1998), where our
supreme court affirmed the circuit court’s imposition of sanctions on a plaintiff who gave
evasive and nonresponsive answers to discovery. However, in its affirmance, the supreme
court deferred to the circuit court’s discretion on matters involving discovery sanctions, and
we likewise defer to the circuit court in this case.
Regarding the requests for admission, Judge Weaver refused to deem them admitted
because Chiodini had not filed the requests with the circuit clerk as required by Ark. R. Civ.
P. 36(c). However, Judge Weaver ordered Lock to answer the requests within five days, and
Lock did so. Later in the proceedings, Judge Choate also refused to deem the requests
admitted, ruling that the time for Lock’s response did not begin running until Chiodini filed
the requests.
Rule 36(a) of the Arkansas Rules of Civil Procedure provides that each matter
contained in a request for admission is admitted unless answered or objected to “within thirty
days after service.” Rule 36(c) provides that requests for admission “must be filed in a separate
document so titled and shall not be combined with interrogatories, document production
requests, or any other material.” See also Ark. R. Civ. P. 5(c)(1) (2009) (stating that all papers
subsequent to the complaint, which are required to be served on a party or his attorney, shall
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be filed with the clerk of the court either before service or within a reasonable time
thereafter). The circuit court interpreted Rule 36(c) to mean that the time for responding to
requests for admission runs from the date the requests are filed. Chiodini claims that the filing
requirement in Rule 36(c) is independent of Rule 36(a)’s statement that requests for admission
are deemed admitted unless answered or objected to “within thirty days after service.”
Chiodini presents an interesting question. However, we decline to rule on the precise
issue of whether the response time under Rule 36 runs from the date of service or the date
of filing. Instead, we conclude that, under the circumstances of this case, the circuit court did
not act improvidently, thoughtlessly, or without due consideration in its resolution of the
situation. We note first that the requests would have reached attorney Mitch Cash at
approximately the same time he was seeking to withdraw from the case. Lock obtained new
representation, and it was unclear at the hearings if those attorneys had received the requests
or, if so, when they received them. Further, Chiodini was unquestionably required to file the
requests for admission under Rule 36(c) and Rule 5(c)(1). He neglected that requirement at
his peril for more than sixty days. He therefore should not be heard to complain that the
circuit court exercised its discretion to extend Lock’s response time for an additional five days
from the hearing date.4
Chiodini argues that Lock was not prejudiced by his failure to file the requests.
However, we cannot reach that conclusion with certainty, given that a filing might have
provided Lock’s attorneys with additional notice of the requests. We therefore do not
consider this argument as a ground for reversal.
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Chiodini also contends that some of Lock’s responses were insufficient because they
simply “denied” the request without explanation. Rule 36(a) provides that responses shall
“specifically admit or deny the matter or set forth in detail the reasons why the answering
party cannot truthfully admit or deny the matter.” Under this rule, “denied” is an acceptable
response. See Watkins & Newbern, § 23:2, at 468.5
C. Protective order prohibiting further discovery
On July 3, 2006, Lock filed a motion for a protective order concerning Chiodini’s
attempt to subpoena a witness, Ira Thomas, for deposition. The motion recited that the court
had admonished Chiodini at the June 2006 hearing about making it difficult to schedule a
deposition and that, two days after the hearing, he subpoenaed Thomas, an elderly and infirm
resident of Mountain View, to attend a deposition in Heber Springs. The motion also asserted
that Chiodini appeared at Thomas’s home, asked him to sign a piece of paper, and became
“demanding” when Thomas refused. Further, the motion stated that Chiodini persisted in
filing motions to compel despite Lock’s provision of documents, interrogatory responses, and
responses to requests for admission as ordered by the court. Lock sought a protective order
that, among other things, required the Thomas deposition to be held in Mountain View,
prohibited Chiodini from further discovery without making application to the court, and
shielded Lock from “further annoyance, undue burden, and undue expense.” Judge Weaver
Chiodini cites Smith v. Goodyear Tire & Rubber Co., 261 Ark. 541, 543, 549 S.W.2d
798, 799 (1977), for its statement that, where a fact cannot be admitted, the reasons must be
set forth in detail. However, Smith was decided before our adoption of the Rules of Civil
Procedure and we decline to accord it any weight on this issue.
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signed an order that scheduled Mr. Thomas’s deposition in Mountain View rather than Heber
Springs and prohibited Chiodini from seeking further discovery. The order was filed later in
the case.
Chiodini argues, without elaboration, that the court’s order hindered him from
obtaining meaningful discovery in preparation for trial. However, at the time Judge Weaver
signed the order, Chiodini had filed two sets of discovery and had received responses. His
argument does not reveal what more he would have done, had the ban not been in place.
Furthermore, the court’s order apparently arose out of a situation in which Chiodini was
harassing an elderly witness and had continued to file motions to compel and motions for
reconsideration, despite having received responses to discovery and court rulings on all
discovery matters. We therefore see no abuse of discretion warranting reversal.
Based on the foregoing, we affirm the circuit court’s discovery rulings. In light of our
holding, we deny Chiodini’s request to remand the case for imposition of sanctions against
Lock.
III. Denial of summary judgment
On May 9, 2008, Chiodini filed a motion for summary judgment, arguing that the
old fence line constituted a border by acquiescence as a matter of law. The circuit court held
a hearing on the motion, during which Lock called witnesses to testify. Chiodini objected,
arguing that it was improper for Lock to supplement his response to the summary-judgment
motion with live testimony and that he was not prepared to cross-examine witnesses. The
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court overruled Chiodini’s objection and allowed Lock and his mother to testify that the old
fence did not represent a boundary line and that the new fence constructed by Lock was
within the true boundary line. At the conclusion of the testimony, the court denied
Chiodini’s motion for summary judgment, ruling that fact questions remained to be decided.
The court also stated that, even if it was wrong to allow live testimony at the hearing, any
error was harmless because the testimony revealed nothing that was not already a part of the
record in the form of affidavits. Chiodini argues for reversal that 1) the circuit court
improperly allowed oral testimony at the summary-judgment hearing, and 2) Lock failed to
meet proof with proof in responding to the motion for summary judgment.
Chiodini is correct that Ark. R. Civ. P. 56 (2009) does not permit supplementation
by oral testimony of the pleadings, depositions, admissions, interrogatories, affidavits, and so
forth, that a court may consider in ruling on a motion for summary judgment. Mathews v.
Garner, 25 Ark. App. 27, 751 S.W.2d 359 (1988). However, as the court itself observed, the
testimony from David Lock and his mother revealed little more than what was contained in
their affidavits attached to Lock’s response to the motion for summary judgment. Our review
of the affidavits bears this out. We therefore see no ground for reversible error. In any event,
the denial of a motion for summary judgment is not subject to review on appeal, even after
there has been a trial on the merits. Bull Motor Co. v. Murphy, 101 Ark. App. 33, 270 S.W.3d
350 (2007).
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IV. Final decree
On September 29, 2008, the case was tried to the court sitting as fact-finder.
Chiodini’s predecessor in title, Luke Elliott, testified that when he first purchased the
property, he understood that its northern border ran along an old fence line, and he passed
that understanding on to Chiodini. Elliott further testified that, in 1999 or 2000, Lock told
him that he planned to survey the border and construct a new fence thereon. Lock then built
a new fence south of the old fence line, and Elliott said that he accepted that fence as being
on the surveyed border. However, Elliott stated that, based on Lock’s admission in discovery
that the survey was conducted by an unlicensed person, Lock misrepresented the situation.
Jerry Perry, another land owner in the area, testified that there had been an old fence
line on his property since at least 1979, which joined the old fence line at issue in this case.
Perry said that he always considered the old fence to be his boundary line. However, he said
that he had not commissioned a survey of the area along his boundary.
David Lock testified that he obtained his land in 1989 from his father, who had
purchased the property in 1958. According to Lock, an old fence existed on the property in
1958, but it was used to separate livestock rather than serve as a border. Lock stated that no
one knew where the true border line of the property was. Lock testified further that he built
some fences in the 1970s that were close to the old fence, which was now deteriorated, but
that those fences were not understood to represent boundaries. Lock said that he built what
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was being referred to as the new fence in 1995 or 1996, not in 1999 or 2000 as Luke Elliott
had testified. He also said that Elliott never claimed that the old fence line was the border.
Gene Gorton testified that he performed a survey of the common boundary line
between Chiodini and Lock. The survey, which was conducted in either 2003 or 2005, is
difficult to interpret but appears to reflect that Lock’s new fence does not encroach on
Chiodini’s land. Gorton said that Chiodini asked him to set a re-bar in the old fence line and
to draw a straight line to a tree corner, but Gorton could not locate a fence in between those
marks.
Chiodini testified that he was not willing to be bound by a survey because the old
fence line represented a boundary by acquiescence. He admitted that Lock had told him that
he (Lock) and Elliott had agreed that the new fence “would be the line.” However, Chiodini
said that their boundary did not make sense based on his GPS observations.
Ira and Imogene Thomas, who owned Chiodini’s property before Luke Elliott,
testified that they never knew where their northern boundary was and that they did not tell
Elliott where a dividing line was. Lock’s mother, Bonnie Lock, testified that she was never
aware of the boundary line between the northern and southern properties. Mrs. Lock stated
that the old fence that Chiodini wanted to claim as a boundary was just “an old torn down
fence” that “doesn’t make any straight line.” She said that she never recalled anyone saying
that the old fence was the boundary line.
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Janice Lock, David Lock’s wife, testified that she prepared a diagram of the area around
the old fence line. She stated that there was “not much” fencing in some areas and that there
were places where one could walk in between the fence. Donald Lock, David’s uncle,
testified that there were fences “all over” the Lock land and that no one ever treated the old
fencing as a border. He said that David built a new fence on the boundary line in 1996.
On December 11, 2008, the court entered an order denying Chiodini’s claim for a
boundary by acquiescence. The court ruled that Chiodini failed to prove by way of words,
actions, or conduct a tacit agreement between landowners regarding a boundary line, other
than the “new fence,” which Chiodini denied was a boundary. The court then quieted title
in accordance with the Groton survey.
Chiodini argues on appeal that the evidence does not support the court’s refusal to
establish a boundary by acquiescence. Our standard of review is whether the circuit court,
sitting as fact-finder, clearly erred in its ruling. DC Xpress, LLC v. Briggs, 2009 Ark. App. 651,
___ S.W.3d ___. We give due deference to the superior position of the trial court to
determine the credibility of the witnesses and the weight to be accorded their testimony. Id.
Further, it is within the province of the trier of fact to resolve conflicting testimony. Id.
When adjoining landowners silently acquiesce for many years in the location of a
boundary and thus apparently consent to that line, the result is a boundary by acquiescence.
Brown v. Stephens, 2009 Ark. App. 614. A boundary by acquiescence is usually represented by
a fence, a turnrow, a lane, a ditch, or some other monument tacitly accepted as visible
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evidence of a dividing line. Id. An express agreement to treat a fence as the dividing line is
not required. Instead, a boundary line by acquiescence is inferred from the landowners’
conduct over many years so as to imply the existence of an agreement about the location of
the boundary line. Id. Acquiescence need not occur over a specific length of time, although
it must be for a long period of time. Id.
In the present case, Lock and several other witnesses, including his family members and
the Thomases, who once owned Chiodini’s property, testified that they did not consider the
old fence to be a boundary line and that they were not sure where the boundary line between
the two properties was located. Many of these same witnesses also testified that the old fence
was used to contain cattle rather than to declare a border and that the old fence was too run
down to be considered a border. Under these circumstances, we cannot say that the circuit
court clearly erred in ruling that Chiodini failed to prove a tacit acceptance among
landowners of the old fence line as a boundary. Chiodini argues that Lock admitted during
his testimony that some of his interrogatory responses were inaccurate. However, this went
to Lock’s credibility, which was a matter for the circuit court to decide. DC Xpress, supra. In
any event, Lock was not the only witness at the trial who denied the existence of the old
fence as a boundary line.
We therefore affirm the circuit court’s final decree. However, we remand with
instructions for the circuit court to amend its order to include a specific legal description of
the boundary at issue. See Garringer v. Garringer, 2010 Ark. App. 297, ___ S.W.3d ___. Even
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though the court’s order mentions the Groton survey, the order must describe the boundary
with sufficient specificity that it can be identified solely by reference to the decree. Boyster v.
Shoemake, 101 Ark. App. 148, 272 S.W.3d 139 (2008); Adams v. Atkins, 97 Ark. App. 328,
249 S.W.3d 166 (2007).
Affirmed and remanded with instructions.
HENRY and BROWN, JJ., agree.
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