R.J. Chiodini v. David Lock

Cite as 2024 Ark. App. 505
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-23-331

R.J. CHIODINI Opinion Delivered October 23, 2024
APPELLANT
APPEAL FROM THE STONE COUNTY
V. CIRCUIT COURT
[NO. 69CV-22-4]

DAVID LOCK HONORABLE HOLLY MEYER, JUDGE

APPELLEE AFFIRMED

N. MARK KLAPPENBACH, Judge

This appeal is another in a series of litigation and resulting appeals between

neighboring landowners, appellant, R.J. Chiodini and appellee, David Lock. 1 Both parties

live on Jimmy Creek Road in Fox, Arkansas. Lock’s land lies north of Chiodini’s. In the

first lawsuit filed in 2005, Chiodini alleged that Lock had constructed a fence in 1995 or

1996 that breached the boundary line between them and encroached on approximately three

acres of Chiodini’s land. Chiodini believed that there was a boundary by agreement in an

old fence line that did not encroach on Chiodini’s land. The circuit court disagreed, finding

that the true boundary was the line shown by the Gorton survey, which is slightly farther

south of the new fence line. Chiodini appealed, and we affirmed the circuit court’s decision

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Throughout these proceedings, Chiodini and Lock have represented themselves pro
se.
and remanded to the circuit court for it to specifically describe the boundary line as reflected

in the Gorton survey. Chiodini v. Lock, 2010 Ark. App. 340, 374 S.W.3d 835 (Chiodini I).2

Chiodini filed another lawsuit in 2011 alleging adverse possession of the same land, which

suit was dismissed and title quieted in Lock. On appeal, we affirmed the circuit court’s

dismissal of the lawsuit. Chiodini v. Lock, 2014 Ark. App. 219 (Chiodini II).

The most recent litigation began when Chiodini filed a complaint in January 2022

asserting that he had adversely possessed all the lands south of the newer fence line and east

of Jimmy Creek Road ever since the end of the last litigation. Lock responded that the

correct boundary had been fully and finally litigated to be the Gorton survey line, that

Chiodini had recently, in 2020 or 2021, wrongly bulldozed trees and flags marking the survey

line that had been placed by the surveyor, and that Lock was tired of being harassed. Lock

said that the fence he constructed in 1995 or 1996 was only to contain cattle, not to mark

the boundary and that the actual boundary line was settled by the Gorton survey and was

farther south of the cattle fencing. In 2011 or 2012, Lock fenced the survey line on the west

side of the Road but not the east side although survey markers remained on the survey line

east of the road. In 2022, Lock placed fence posts on the survey line on the east side of

Jimmy Creek Road. Lock alleged that he (Lock) had bushhogged and allowed horses to

2
In a related appeal, Chiodini v. Lock, 373 Ark. 88, 281 S.W.3d 728 (2008), involving
these parties and the same boundary-line issue, Chiodini attempted to appeal the denial of
a hearing for a preliminary injunction and the denial of motions related to alleged discovery
violations. The supreme court denied Chiodini’s request for a writ of certiorari.

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pasture on his property on the east side of the road. Lock requested to be reimbursed for

damages to his property and for Chiodini’s complaint to be dismissed.

As discovery progressed, Chiodini filed a motion for sanctions against Lock alleging

that Lock had been untruthful and evasive, which motion was denied. At the conclusion of

the bench trial, the circuit court denied Chiodini’s most recent claim of adverse possession.

Chiodini filed a motion for new trial alleging bias and prejudice on the part of the circuit

court against him (Chiodini) and alleging that there had been a miscarriage of justice. The

circuit court treated the new-trial motion as a motions to recuse and to reconsider. The

circuit court denied the motion to recuse but issued amended findings of fact and

conclusions of law. Chiodini filed an objection to the amended findings alleging bias and

prejudice, again requested a new trial and the court’s recusal, and alternatively, asked the

circuit court to take additional testimony to clarify errors of fact or law. These motions were

denied. The circuit court filed an amended decree in January 2023, and a notice of appeal

was filed in February 2023. Only Chiodini filed an appellate brief.

Appellant asserts six points on appeal, all alleging that the circuit court abused its

discretion in the following ways: (1) by displaying bias and prejudice against him; (2) by not

holding Lock in contempt for providing untruthful responses in his answer, during

discovery, and during trial; (3) by making rulings and findings on assumptions and

extrapolations, not on viable testimony or evidence; (4) by knowingly including erroneous

facts in its findings to his detriment; (5) by erroneously concluding that the land at issue was

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wild and unimproved and that res judicata controlled; and (6) by not granting him a new

trial or allowing additional testimony.

Appellant’s first point is that the circuit court was biased against him and should have

recused. We review a circuit court’s denial of a motion to recuse under an abuse-of-discretion

standard. Ferguson v. State, 2016 Ark. 319, 498 S.W.3d 733. A clearly erroneous

interpretation or application of a law or rule will constitute a manifest abuse of discretion.

Id. There also exists, however, a presumption of impartiality. Irvin v. State, 345 Ark. 541, 49

S.W.3d 635 (2001). The decision to recuse is within the circuit court’s discretion, and it will

not be reversed absent abuse. Ferguson, supra. An abuse of discretion can be proved by a

showing of bias or prejudice on the part of the circuit court, and the burden is on the party

seeking to disqualify. Id. To decide whether there has been an abuse of discretion, we review

the record to see if prejudice or bias was exhibited. Id. Absent some objective demonstration

by the appellant of the circuit judge’s prejudice, it is the communication of bias by the judge

that will cause us to reverse his or her refusal to recuse. Id. Whether a judge has become

biased to the point that the judge should disqualify himself or herself is a matter to be

confined to the conscience of the judge because bias is a subjective matter peculiarly within

the knowledge of the circuit judge. See Hawkins v. State, 2018 Ark. App. 443, 558 S.W.3d

891.

We hold that the circuit court did not abuse its discretion. Our review of the record

makes it apparent that the circuit court was trying to keep both pro se parties on track during

the litigation. It urged both sides to obtain legal representation because the litigation “has

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been awkward, painful, and tumultuous.” The judge remarked that just because the court

ruled against a party did not necessarily mean the court was biased and that it was never the

court’s intention to be inordinately rude or disrespectful to anyone. The court declined to

recuse or grant a new trial on the basis of alleged prejudice and bias. We acknowledge that

the circuit court was abrupt at times, and appellant expressed that he felt intimidated by the

circuit court, but on this record, we are not convinced that the circuit court abused its

discretion in declining to recuse.

Appellant’s second point on appeal is that the circuit court abused its discretion in

not holding Lock in contempt of court for providing untruthful responses in his answer to

the complaint, during discovery, and at trial. The making of a false statement may constitute

contumacious conduct if it obstructs the judicial process. Jolly v. Jolly, 290 Ark. 352, 356,

719 S.W.2d 430, 432 (1986); Ellis v. Ellis, 2017 Ark. App. 661, 536 S.W.3d 166. The circuit

court recognized that Lock had been difficult and less than cooperative in discovery. The

circuit court, however, challenged appellant on his perception that the court allowed the

opposing side to lie with no consequence. The circuit court remarked that it took

inconsistent or untrue statements into account when determining the credibility of

testimony. We hold that appellant failed to demonstrate reversible error on this issue.

Appellant’s remaining arguments can be considered collectively because they are an

attack on the circuit court’s assessment of the evidence presented at trial. Appellant argues

that the circuit court made rulings and findings on assumptions, extrapolations, and

evidence not supported by testimony at trial. Appellant pointed out many of the alleged

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errors to the circuit court in his motion for new trial. In response, the circuit court issued

amended findings and granted much of the relief requested by appellant. Thereafter, the

circuit court entered a final “first amended decree” that superseded the previous order,

which was a simplified decision on the merits.

On the merits of the lawsuit, we will affirm unless the circuit court’s findings are

clearly against the preponderance of the evidence. Strother v. Mitchell, 2011 Ark. App. 224,

382 S.W.3d 741. A finding is clearly erroneous when, although there is evidence to support

it, the reviewing court on the entire evidence is left with a definite conviction that a mistake

was committed. Id. In reviewing a circuit court’s findings of fact, we give due deference to

the circuit court’s superior position to determine the credibility of the witnesses and the

weight to be accorded the testimony. Id.

In our review of the testimony and evidence, appellant simply disagrees with the

circuit court’s assessment and characterization of the evidence as a whole. However, it is the

circuit court’s function in a bench trial to determine the facts. While it may not craft facts

out of whole cloth, it may make reasonable inferences from the evidence presented. After

our de novo review of this record, we are not left with a firm conviction that the circuit court

committed reversible error.

Affirmed.

THYER and WOOD, JJ., agree.

Rodrick J. Chiodini, pro se appellant.

One brief only.

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