497 S.W.3d 712
Ark. Ct. App.2016Background
- This is a boundary dispute between brothers John and Gary Cross (and their wives) over a tract purchased by appellants (the Cox property) in Miller County, Arkansas; the property is bounded on the west by a fence and by a survey line called the Lynch/section line.
- Prior litigation in 2011 had quieted title east of a meandering fence and found that the fence had been recognized as a boundary for over forty years; other earlier stipulations/surveys (2005 Lynch survey) also affected adjacent lines.
- Appellants sued in 2014 to quiet title to the Cox tract and alleged appellees trespassed between the western fence and the section line; they alternatively pleaded adverse possession.
- Appellees pleaded res judicata/collateral estoppel based on prior litigation; at trial appellees moved (and the court treated pleadings as conformed to evidence) to establish a boundary by acquiescence based on the fence.
- The circuit court found a boundary by acquiescence in the fence, dismissed appellants’ quiet-title and adverse-possession claims (res judicata noted), awarded appellees $2,500 in costs, and denied appellees’ request for attorney’s fees under Ark. Code Ann. § 16-22-309.
- On appeal, the Arkansas Court of Appeals affirmed the fence-as-boundary ruling, reversed the costs award for lack of documentation, remanded for a metes-and-bounds description of the fence boundary, and affirmed denial of attorney’s fees on cross-appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the fence is a boundary by acquiescence | Appellants: no agreement or conduct establishing the fence as the boundary | Appellees: long-standing recognition and use of the fence as boundary; prior decree supports it | Court: affirmed boundary by acquiescence based on long-term conduct and testimony |
| Whether amendment of pleadings to conform to evidence was improper | Appellants: amendment was raised late and prejudiced their defense | Appellees: Rule 15(b) permits amendment to conform to evidence; prior decree put parties on notice | Court: amendment (treated as made) not prejudicial; discretionary and permissible |
| Whether appellants proved adverse possession to the Lynch/survey line | Appellants: claimed adverse possession of the strip to the Lynch line | Appellees: no evidence of possession outside the fence; prior findings show fence recognized as boundary | Court: appellants failed to carry burden; adverse-possession claim rejected |
| Whether costs and attorney’s fees were properly awarded | Appellants: costs award arbitrary; no documentation; opposed fees | Appellees: sought costs and counsel fees (claimed action lacked justiciable issue) | Court: reversed costs award for lack of documentation; affirmed denial of attorney’s fees (no bad-faith/complete absence of justiciable issue) |
Key Cases Cited
- Tadlock v. Moncus, 2013 Ark. App. 363, 428 S.W.3d 526 (standard of review for bench trial findings)
- Ison Props., LLC v. Wood, 85 Ark. App. 443, 156 S.W.3d 742 (review of amendment of pleadings to conform to evidence)
- Travis v. Houk, 307 Ark. 84, 817 S.W.2d 207 (prejudice test for amendments — fair opportunity to defend)
- Warren v. Collier, 262 Ark. 656, 559 S.W.2d 927 (acquiescence inferred from long-term conduct)
- Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (decree must describe boundary with sufficient specificity)
- Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (court may amend decree to add specific survey-based description)