Watkins v. Paragould Light & Water Commission

Cite as 2016 Ark. App. 432
ARKANSAS COURT OF APPEALS
DIVISION II
No.CV-15-523
OPINION DELIVERED: SEPTEMBER 28, 2016
CONNIE WATKINS AND
RICHARD WATKINS, HUSBAND APPEAL FROM THE GREENE COUNTY
AND WIFE CIRCUIT COURT
[NO. 28CV-2006-335]
APPELLANTS
HONORABLE MELISSA BRISTOW
RICHARDSON; HONORABLE PAMELA
V. HONEYCUTT; HONORABLE DAVID N.
LASER; HONORABLE VICTOR L. HILL,
PARAGOULD LIGHT & WATER JUDGES
COMMISSION AND CITY OF
PARAGOULD
APPELLEES AFFIRMED
ROBERT J. GLADWIN, Chief Judge
Nearly ten years ago, appellee Paragould Light & Water Commission (PLWC)
petitioned the Greene County Circuit Court to enjoin appellants Connie and Richard
Watkins from interfering with PLWC’s efforts to trim trees around its electrical power
lines. 1 The lawsuit grew in size and complexity when Mr. and Mrs. Watkins filed a pro se
counterclaim that asserted over twenty causes of action ranging from breach of contract to
intentional torts to civil-rights violations. The counterclaim was ultimately dismissed by
1
The suit was actually filed by the City of Paragould, acting by and through the
Paragould Light & Water Commission. We will refer to PLWC as the operative party for
the sake of convenience.
Cite as 2016 Ark. App. 432
summary judgment, and the circuit court entered an order enjoining Mr. and Mrs. Watkins
from interfering with PLWC’s tree trimming.
In this pro se appeal, Mr. and Mrs. Watkins argue that several errors occurred over
the lengthy history of the case, which saw four separate circuit judges presiding. We find no
merit in appellants’ arguments and affirm the circuit court’s rulings.
I. Factual Background and Procedural History
Because appellants do not directly challenge either the sufficiency of the evidence to
support the injunction or the propriety of granting summary judgment on their
counterclaim, we set forth only those facts necessary for an understanding of the issues on
appeal.
Appellants live on a residential lot which has a number of trees along its northern
and southern borders. The trees on the southern border are interspersed along an old fence
row between appellants’ lot and an open field farther to the south. A major PLWC
electrical-distribution line runs east and west along that fence row, and at least one power
pole is located along the row, at or near the corner of appellants’ lot. The proof below
revealed that PLWC’s line had been in place since at least 1983 and that PLWC had trimmed
the trees around the line for many years.
Beginning in 1999, appellants and PLWC experienced a series of conflicts over
PLWC’s tree-trimming methods. That year, Mrs. Watkins alleged that the trees in her front
yard were trimmed improperly while she was out of town. In 2002, she sued PLWC in
small-claims court for damage to her trees but later nonsuited the action. In 2003, Bill Fisher,
the CEO and general manager of PLWC, agreed that appellants could trim their own trees.
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Despite this agreement, appellants requested PLWC’s assistance in 2004 to trim the trees in
the northern, or front, part of their property. When the crew arrived, Mrs. Watkins objected
to the personnel that PLWC had sent to do the job. According to witnesses, she became
quite confrontational with the workers and with Bill Fisher. Near this same time, Mr.
Watkins attempted to trim a tree himself and caused a limb to fall on a power line.
Consequently, PLWC informed appellants that they could trim their own trees if they did
so in a manner that met electric-safety codes but that, unless they removed encroaching
vegetation by May 1, 2004, PLWC crews would remove it.
In April 2006, Bill Fisher sent appellants a letter reserving PLWC’s right to trim trees
on the City’s rights-of-way or easements. PLWC also commissioned a survey of appellants’
property that, unlike previous surveys, located most, if not all, of the southern fence-row
trees even farther south, off appellants’ property.
With this survey in hand, PLWC attempted to trim the trees near the southern part
of appellants’ lot in July 2006. However, the trimming crew was met with resistance by
Mrs. Watkins and did not accomplish the task. A few months later, on November 9, 2006,
PLWC crews arrived at appellants’ property to trim the trees on the northern part of the
lot. Mrs. Watkins got involved in the process, attempted to direct the tree trimming, and,
according to witnesses, insulted and cursed the workers.
Concerned that winter weather was on the horizon, PLWC planned to trim the trees
along appellants’ southern border on November 28, 2006. Given PLWC’s history with
appellants, Bill Fisher was concerned about the possibility of a confrontation. He therefore
asked the Paragould Police Department to provide officers for a civil standby during the tree
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trimming. PLWC crews, along with two police officers, arrived in the open field south of
appellants’ property on the morning of November 28.
Appellants, who had learned of the trimming, appeared at the work site and tried to
stop the trimming. Witnesses would later testify that Mrs. Watkins rushed at the crew, yelled
and cursed at them, refused to leave the restricted work area, and slapped a police officer’s
arm when the officer tried to move her away. As a result, Mrs. Watkins was handcuffed at
the scene and taken to the police station. She was later convicted of misdemeanor disorderly
conduct in connection with the incident. Our court affirmed the conviction in Watkins v.
State, 2010 Ark. App. 85, 377 S.W.3d 286, cert. denied, 562 U.S. 892 (2010).
A few days after the above-described confrontation, PLWC filed a petition in the
circuit court alleging that it owned, or had acquired by prescription, “right of way easements
for the erection, maintenance, repair, removal and replacement of its electrical transmission
lines . . . on, over, across and through [appellants’] property.” PLWC asked that appellants
be enjoined from interfering with the easement. Appellants counterclaimed that PLWC had
engaged in improper tree trimming and had, among other things, engineered Mrs. Watkins’s
arrest, defamed her, and interfered with her right to complain publicly about the tree-
trimming situation.
In March 2009, Judge Victor Hill dismissed several of the counts in appellants’
counterclaim by summary judgment. He ordered that the remaining counts be tried
separately from PLWC’s claim for an injunction. The case was later transferred to Judge
David Laser, who conducted a bench trial on the injunction issue over the course of six days
in June and September 2011.
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Following the trial, Judge Laser granted PLWC’s request for an injunction in an order
entered May 10, 2012. Judge Laser ruled that PLWC had maintained the power lines over
appellants’ property for more than thirty years; that appellants had acquiesced in PLWC’s
line maintenance without incident for many years; and that PLWC was entitled to
a right of way easement by prescription relating to the power lines which cross any
portion of [appellants’] property, which easement is a total of twenty feet wide (ten
feet on either side of the poles in place) for the purpose of utility construction,
erection, installation, operation, inspection, maintenance, repair, renewal,
substitution, and removal under, over, across and through its entirety.
The court further ruled that, based on appellants’ history of confrontational behavior, they
should be enjoined from interfering with PLWC’s tree trimming. Appellants filed posttrial
motions, which were denied, and a notice of appeal. At their request, Judge Laser recused
from all future rulings in the case.
We dismissed appellants’ appeal without prejudice in Watkins v. City of Paragould,
2013 Ark. App. 539, for lack of a final order. 2 The case returned to the circuit court, with
Judge Pamela Honeycutt presiding. PLWC soon filed a motion for summary judgment,
seeking dismissal of all remaining counts of appellants’ counterclaim. Judge Honeycutt
granted PLWC’s motion for summary judgment in a February 20, 2015 order. Thereafter,
appellants filed a complaint against Judge Honeycutt with the Administrative Office of the
Courts, and she recused on that basis.
The case was then transferred to Judge Melissa Richardson, who denied appellants’
posttrial motions. This appeal followed.
2
Our opinion also noted that appellants had not filed their record in time to pursue
an interlocutory appeal from the injunction order.
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II. Statements of Fraud and Conspiracy
At the outset, we must take the unusual measure of striking a significant portion of
appellants’ initial brief and reply brief due to a violation of Rule 1-5 of the Rules of the
Supreme Court and Court of Appeals (2016).
Rule 1-5 provides that no appellate argument, brief, or motion shall contain language
showing disrespect for the circuit court. If such language appears in an appellate brief, we
may strike the offending language. See Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467
(1992).
Throughout appellants’ initial brief and reply brief, they assert that one of the circuit
judges who presided below purposely interfered with their attempt to perfect an earlier
appeal; deceived them with fraudulent advice and promises; deliberately made legal errors;
and conspired with PLWC. Appellants also state that two of the other judges who presided
on the case adopted and participated in the alleged fraud. These allegations go far beyond a
claim of bias and are clearly in violation of Rule 1-5.
Consequently, we strike from appellants’ briefs all language accusing the circuit
judges in this case of fraud, deceit, conspiracy, and deliberate commission of errors. Further,
because these allegations are most egregious in appellants’ first two points on appeal, we
strike those arguments in their entirety without reaching their merits.
We feel compelled to inform appellants that, by rights, we could strike their entire
brief—so pervasive is their offensive language. See McLemore v. Elliot, 272 Ark. 306, 614
S.W.2d 226 (1981). And, had appellants been attorneys rather than pro se litigants, we
would not hesitate to refer them to the Committee on Professional Conduct. See generally
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White v. Priest, 348 Ark. 783, 73 S.W.3d 572 (2002). However, we have exercised our
discretion in a manner that we hope will allow appellants, as nonprofessionals, to appreciate
the import of Rule 1-5 without suffering the summary affirmance of their entire appeal.
Still, we caution appellants that the First Amendment rights that they have championed in
their pleadings and briefs cannot be used as an excuse to make blatant accusations of fraud
and conspiracy against the courts. Rule 1-5 stands as an acknowledgement that parties can
present their arguments on appeal without the use of disrespectful language.
Appellants should also not mistake our lenience in this instance as acceptance of the
kinds of accusations contained in their briefs. We caution appellants that, should they file
any future briefs or motions in our court that contain the same or similar language or
accusations, we will strike those motions or briefs in their entirety.
Having made this point with what we hope is the utmost clarity, we now proceed
to appellants’ remaining arguments.
III. “Sua Sponte” Declaration of Easement Without Notice
Appellants argue that Judge Laser’s injunction order declared, without notice to
them, that PLWC had an easement over part of their property. We see no basis for reversal.
Appellants correctly note that Judge Hill and Judge Laser initially stated that the
easement issue would be tried to a jury. However, by the time the injunction issue was set
for a bench trial, Judge Laser recognized in a pretrial hearing that, in order for PLWC to
prove entitlement to an injunction, it would necessarily have to show that it “had a right to
be [on appellants’ property]” whether by “deed, easement or prescription.” During the
bench trial and in their briefs to the court, appellants addressed the easement issue and argued
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at several points that no easement existed. Thus, appellants’ claims of being surprised when
Judge Laser addressed the easement issue in the injunction order are not well taken. Further,
appellants’ argument that the circuit court rendered an improper declaratory judgment is
unavailing. The court simply made a finding that an easement existed as part and parcel of
the injunction issue.
IV. Dissolution of Agreement
Appellants’ argument under this heading is that PLWC’s complaint was a “single
cause of action” for an injunction, but the basis for their argument is unclear. We generally
decline to consider points that are incomprehensible and lacking in convincing authority or
argument. See Howard v. Adams, 2016 Ark. App. 222, 490 S.W.3d 678.
As far as we can tell, appellants claim that the injunction dissolved their 2003
agreement with PLWC, which would have allowed them to trim the trees on their property
themselves. Actually, the injunction stated that appellants’ right to trim their own trees was
“conditionally granted” by PLWC. Appellants do not challenge the court’s ruling that the
agreement was conditional. It is the appellants’ burden to demonstrate reversible error, Nucor
Steel-Ark. v. Ark. Pollution Control & Ecol. Comm’n, 2015 Ark. App. 703, 478 S.W.3d 232,
and that has not been done on this point.
V. Survey Issues
As mentioned previously, PLWC commissioned a survey of appellants’ boundary
lines in 2006. The survey was performed by Bradley Hancock, who referenced the original
plat of appellants’ neighborhood rather than certain earlier surveys. As a result, Hancock
determined that the markers set by the previous surveyors did not accurately reflect the
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boundaries of appellants’ lot. He therefore established new boundaries, which had the effect
of locating most or all of the southern trees on appellants’ lot farther south off their property.
At trial, appellants challenged the accuracy of the Hancock survey and likewise do
so on appeal. However, the circuit court viewed the competing surveys and determined
that the Hancock survey was the most accurate. We generally defer to the circuit court’s
determination of the credibility of competing surveys. See Jenkins v. Dale E. & Betty Fogerty
Joint Revocable Tr., 2011 Ark. App. 720, 386 S.W.3d 704; Ward v. Adams, 66 Ark. App. 208,
989 S.W.2d 550 (1999).
Appellants argue further that Hancock’s survey is no longer viable because, after
completing his survey, he went back to appellants’ lot and withdrew his stakes. Thus,
appellants contend, the circuit court should not have given the survey credence or attached
it to the injunction order.
Hancock testified at trial that he pulled up his survey stakes because he had been
harassed by Mrs. Watkins to the point that he thought it best to do so. Nevertheless, he
testified that he stood by his opinion of his survey’s boundaries. Again, this is a credibility
issue for the circuit court to resolve, and we defer to the court’s findings. Jenkins, supra;
Ward, supra.
VI. Judicial Estoppel
Next, appellants argue that the doctrines of judicial estoppel and inconsistent
positions prohibit PLWC from claiming an easement over their property. They cite Bill
Fisher’s testimony at Mrs. Watkins’s 2007 criminal proceeding that PLWC had a “blanket”
easement (apparently meaning unspecified as to dimensions) over appellants’ property. At
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the 2011 injunction trial, Fisher admitted his error and stated that he later found out that
there was no blanket easement. In its injunction order in this case, the circuit court did not
establish a “blanket easement” but instead placed PLWC’s easement ten feet on either side
of their light poles.
Appellants first contend that the circuit court in the criminal proceeding was misled
by Fisher’s testimony. One of the necessary elements of judicial estoppel is that the court in
the first proceeding must have relied on the position taken by the party. Dupwe v. Wallace,
355 Ark. 521, 140 S.W.3d 464 (2004). There is no indication in the criminal trial that the
court convicted Mrs. Watkins based on the type of easement that was in place. Rather, the
court focused on whether Mrs. Watkins’s behavior on November 28, 2006, amounted to
disorderly conduct. 3 Furthermore, Mr. Fisher admitted to the court in this case that his
earlier, inconsistent testimony was mistaken. Thus, the circuit court here had the correct
information before it and was not misled.
VII. Recorded Timeline
Appellants argue that the testimony of several persons who witnessed Mrs. Watkins’s
behavior on November 28, 2006, is contradicted by a timeline, prepared from a police lapel-
microphone recording. They essentially claim that Mrs. Watkins’s alleged disorderly
conduct could not have taken place during the short period of time reflected in the
recording. Mrs. Watkins presented the same argument to this court in the appeal of her
criminal conviction. We rejected her argument there because “it appears there were further
3
Appellants included the trial transcript of the criminal proceeding in their present
record on appeal.
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events that occurred that were not recorded.” Watkins v. State, 2010 Ark. App. 85 at 3, n.1,
377 S.W.3d at 288, n.1. We see no reason to take a contrary view here and therefore affirm
on this point.
VIII. Evidentiary Errors
Under this heading, appellants set forth approximately a dozen alleged evidentiary
errors committed by the circuit court. Most, if not all, of the points are unsupported by
convincing argument or authority or are unaccompanied by a showing of prejudice. We do
not address arguments that are not supported by convincing argument or authority. Kuelbs
v. Hill, 2010 Ark. App. 793, 379 S.W.3d 716. Nor do we reverse an evidentiary ruling
absent a demonstration of prejudice or a showing that a substantial right of the appellant is
affected. Razorback Cab of Ft. Smith, Inc. v. Amon, 2016 Ark. App. 352, ___ S.W.3d ___.
Most of appellants’ arguments (when stripped of the language that we struck from
their brief) concern the circuit judge’s limitation of their cross-examination of witnesses.
We observe that, in the cited instances, the court was either concerned with the relevance
of appellants’ inquiries; the fact that similar impeaching evidence was already before the
court; or that the witnesses had already been on the stand and appellants had failed to cross-
examine them at that time. The circuit court has the authority to make the interrogation of
witnesses effective and to avoid a waste of time. See Ark. R. Evid. 611(a) (2016). Based on
the record before us, that authority was duly and properly exercised in this case.
IX. Court-Reporter Charges
Appellants claim that they were overcharged by the court reporter in preparing the
record on appeal and that the court-reporter charges around the state are inconsistent. They
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ask us to interpret Arkansas Code Annotated section 21-6-402 (Supp. 2015), which sets
forth miscellaneous circuit court fees. Appellants have not provided us with sufficient
information to determine if a statutory violation has occurred. They are essentially seeking
an advisory opinion, which our appellate courts do not issue. See Brumley v. Keech, 2012
Ark. 263.
Affirmed.
VIRDEN and GLOVER, JJ., agree.
Richard and Connie Watkins, pro se appellants.
Michael Mosley and Scurlock Law Firm, by: James V. Scurlock II, for appellees.
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