Chiodini v. Lock

• Decision Date: 26 May 2010
• Docket Number: No. CA 09–297.,CA 09–297.
• Citation: 374 S.W.3d 835,2010 Ark. App. 340
• Parties: R.J. CHIODINI, Appellant v. David LOCK, Appellee.
• Court: Arkansas Court of Appeals

2010 Ark. App. 340

374 S.W.3d 835

R.J. CHIODINI, Appellant

v.David LOCK, Appellee.

No. CA 09–297.

Court of Appeals of Arkansas.

April 21, 2010.

Rehearing Denied May 26, 2010.

Rodrick J. Chiodini, pro se.

David Lock, Fox, for appellee.

ROBERT J. GLADWIN, Judge.

[Ark. App. 1]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.

[Ark. App. 2]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.

[Ark. App. 3]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. [Ark. App. 4]Parker v. S. Farm Bureau Cas. Ins. Co., 326 Ark. 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. SeeArk. 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 [Ark. App. 5]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 [Ark. App. 6]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 responsesdid 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. SeeArk. 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 [Ark. App. 7]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...