Cross v. Cross

• Decision Date: 08 June 2016
• Docket Number: No. CV–15–881,CV–15–881
• Citation: 2016 Ark. App. 327,497 S.W.3d 712
• Parties: John Cross and Glenda Cross, Appellants v. Brenda Cross and James Gary Cross, Appellees
• Court: Arkansas Court of Appeals

2016 Ark. App. 327

497 S.W.3d 712

John Cross and GlendaCross, Appellants

v.Brenda Cross and James GaryCross, Appellees

No. CV–15–881

Court of Appeals of Arkansas, DIVISIONS II & III.

Opinion Delivered June 8, 2016

RAYMOND R. ABRAMSON, Judge

On April 27, 2016, we issued an opinion disposing of this appeal and cross-appeal.Cross v. Cross,2016 Ark.App. 224, ––– S.W.3d ––––.Appellants have petitioned for rehearing, arguing that we failed to address one of their alternative arguments.We grant rehearing and issue this substituted opinion.¹

This is a boundary dispute between two brothers and their wives.The Miller County Circuit Court found that there was a boundary by acquiescence and that res judicata barred the claims of appellants Glenda and John Cross, who were seeking to quiet title.Appellants raise eight points on appeal.AppelleesJames Gary Cross(Gary) and Brenda Cross cross-appeal and argue that the circuit court erred in refusing to award them attorney's fees on the basis that appellants' claim lacked a justiciable issue.We affirm in part and reverse in part on direct appeal.We affirm on cross-appeal.We also remand the case so that the circuit court can amend the decree to include a metes-and-bounds description showing the location of the fence.

This is the latest in a series of lawsuits between John Cross and Gary Cross over the boundaries of various properties located in Miller County.The parties own several thousand acres between them in Miller County.This case involves the tract that appellants purchased from Virginia and William Cox in February 2014.The legal description of the Cox property calls for a rectangular half-of-a-half-of-a-quarter-section tract.It is bounded on the north by another tract owned by appellants and on the east and south by appellees.The parties each own forty-acre tracts that are adjacent to the west side of the Cox property.Of these two forty-acre tracts, appellees own the southerly forty-acre tract that is separated from their tract immediately to the south of the Cox property by a tract owned by appellants that meets at the southwest corner of the Cox property.

The parties' westerly forty-acre tracts are separated by a lake and were the subject of litigation in 1999 and 2002.In 2005, the parties stipulated that the north-south line between the parties was the line on a survey prepared by Kenneth Lynch.This line divided the lake.

The eastern line of the Cox property and appellants' property to the north of the Cox property was the subject of a suit brought by appellees against the Coxes and appellants in 2008.In its decree filed in 2011, the court found that the parties and their predecessors in title had recognized a fence to the east of the Coxes' survey line to be the boundary between the lands in question for more than forty years.This fence meanders inside the survey line at the northeast corner of the Cox property.Title to the property lying east of the fence was quieted in appellees.This resulted in a loss of a little more than two acres from the description of the Cox property.There is another fence on the western side of the Cox property, estimated to be approximately sixty feet off the section line called for in the deed from the Coxes to the appellants.

The present litigation started on July 7, 2014, when appellants filed their petition seeking to quiet title to the Cox property.Appellants asserted that appellees were trespassing over the southwest corner of the Cox property between the fence and the section line in order to access their property that adjoined the western boundary of the Cox property.Appellants also contended that appellees were claiming the western fence as an improper boundary between the parties.They filed an amended petition to add the alternative theory of adverse possession.

Appellees timely filed answers to both complaints.In both answers, appellees asserted the affirmative defenses of collateral estoppel and/or res judicata.The affirmative defenses were based on the 2008 litigation over the boundary line between the parties.

The case proceeded to a bench trial.The court took the matter under advisement and requested proposed findings of fact and conclusions of law.

After the trial but before the court announced its decision, appellees filed a motion seeking attorney's fees pursuant to Ark.Code Ann. § 16–22–309(Repl.1999).They argued that appellants lacked any justiciable issue because the issue had previously been resolved in appellees' favor in the prior litigation.Appellants responded, arguing that the claim for fees had been waived because it was not addressed in appellees' case-in-chief.

The circuit court entered its order on July 15, 2015, finding that appellants and their Cox predecessors failed to meet their burden to prove their quiet-title claim.The court found no evidence that the Coxes or the appellants had occupied the area between the fence and the line called for in appellants' deed from the Coxes.The court further found that no party disputed that there was a previous lawsuit concerning this same fence line, that the same fence completely surrounded the Cox property, that the court ruled in favor of appellees in that earlier case, and, therefore, res judicata prevented appellants from relitigating the same claims, even if the earlier litigation did not involve the entire fence line.The court also found that appellees had made it clear in their pleadings and correspondence to opposing counsel that they contended that the fence was the true boundary of the Cox property by arguing that the issue had already been litigated and resolved in a previous lawsuit.The court noted that appellees made a motion to have the pleadings conform to the evidence.As such, the court found that the evidence was undisputed that the fence between the appellant/Cox property and appellees' property to the west was divided by a fence that had been present for over forty years and which had been recognized as the true boundary by acquiescence between those tracts of property.The court rejected appellants' alternative argument of adverse possession as also barred by res judicata.The court granted appellees costs of $2,500.

Appellants timely filed a motion for new trial and motion for additional findings.The motion argued that the court improperly relied on the affirmative defense of boundary by acquiescence that had not been pled and that the order was against the preponderance of the evidence.The motion also challenged the award of costs as not supported by the evidence.

On July 22, 2015, the court entered its judgment dismissing the case with prejudice.It incorporated the earlier July 15, 2015 order.It also denied the parties' posttrial motions.This appeal and cross-appeal timely followed.

In civil bench trials, the standard of review on appeal is whether the circuit court's findings were clearly erroneous or clearly against a preponderance of the evidence.Tadlock v. Moncus,2013 Ark. App. 363, 428 S.W.3d 526.A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been committed.Id.

Although appellants argue eight different points, they can be broken down into four distinct points: whether the circuit court was correct in finding that the old fence was a boundary by acquiescence; whether res judicata bars appellants' claims; whether appellants had proved their claim for adverse possession; and whether the amount of costs awarded was arbitrary and not supported by the record.We affirm the circuit court's finding that the fence was the boundary by acquiescence.This holding renders it unnecessary to discuss the circuit court's reliance on res judicata.

Appellants argue multiple points concerning the circuit court's ruling that the fence was the boundary between the parties by acquiescence.Appellants not only contend that the court erred in allowing this affirmative defense to be raised in the first place via appellees' motion to amend the pleadings to conform to the proof, but also erred in finding that there was a boundary by acquiescence.We take appellants' arguments in order.

We will not reverse a circuit court's decision regarding the amendment of pleadings to conform to the evidence in the absence of a manifest abuse of discretion.Ison Props., LLC v. Wood,85 Ark. App. 443, 156 S.W.3d 742(2004).Arkansas Rule of Civil Procedure 15(b) governs the amendment of pleadings to conform to the evidence:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended in its discretion.The court may grant a continuance to enable the objecting party to meet such evidence.

Beginning with their opening statement, appellants objected whenever there was testimony about the fence along the boundary between the parties.However, even when an objection is made that the issue was not included in the pleadings, the circuit court may allow an amendment at its discretion.Hope v. Hope,333 Ark. 324, 969 S.W.2d 633(1998).

Appellants note that the circuit court did not specifically grant appellees' motion to amend the pleadings to conform to the evidence.Although the court did not specifically say that it was granting the motion, it is clear that it did so.In King v. State, Office of Child Support Enforcement,58 Ark. App. 298, 952 S.W.2d 180(1997), a complaint was treated as...