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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