Mion v. Bishop

Cite as 2026 Ark. App. 408 ARKANSAS COURT OF APPEALS DIVISION II No. CV-25-237 ROBYN MION Opinion Delivered September 16, 2026 APPELLANT APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT V. [NO. 72CV-23-2210] SARA BISHOP, INDIVIDUALLY; SARA HONORABLE JOHN C. THREET, BISHOP IN HER CAPACITY AS JUDGE TRUSTEE OF THE SARA BISHOP REVOCABLE TRUST; AND ANTHONY DELAO AFFIRMED APPELLEES CASEY R. TUCKER, Judge Appellant Robyn Mion (“Mion”) appeals the Washington County Circuit Court’s order dismissing her nuisance lawsuit with respect to a vertical extension of an existing fence built by adjacent property owner Sara Bishop, as trustee of the Sara Bishop Revocable Trust.1 Mion argues that we should reverse the order dismissing her nuisance claim and remand for an order declaring the fence a nuisance. We disagree and affirm. I. Facts and Procedural History Sara Bishop, as trustee of the Bishop Trust, purchased the Fayetteville home on West Holly Street in 2009. Mion purchased the adjacent property in 2010 but did not move in 1 Mion names Sara Bishop individually and her husband, Anthony Delao, as co- defendants. For purposes of this opinion, the individual appellees will be referred to as Bishop and Delao, and Sara Bishop Revocable Trust will be referred to as the Bishop Trust. until 2015. Mion’s home includes an elevated deck that extends to within a foot or so of the shared boundary line. There was a previously existing six-foot privacy fence between the two properties. Mion’s elevated deck had a view of Bishop’s back yard and swimming pool, which Bishop built in 2015. Bishop, Delao, and Bishop’s four children enjoyed the pool without any concern for privacy until February 2020 when Mion’s boyfriend, Jeffrey Chase, moved in. That is when the view of Bishop’s pool from Mion’s elevated deck became an issue. Bishop and Delao became concerned about the time Jeffrey spent on the deck looking at them in the pool, which led to Bishop’s constructing the fence in April 2023. On July 23, 2023, Mion filed a complaint for declaratory judgment asking the court to find that Bishop’s fence constituted a nuisance and to order that the fence be deconstructed. Bishop answered, and the parties filed pretrial briefs before the hearing, which was held on January 8, 2025. At the hearing, Mion took the stand first. Mion testified that she purchased her home, which is adjacent to Bishop’s home, in 2010. Mion did not move into the home until 2015, at which time Bishop was already residing in the Holly Street home. When asked to describe her relationship with Bishop, she stated that “it’s been awkward. They seem to have ill will towards my house, in general; towards me and my boyfriend Jeffrey Chase.” Mion’s testimony continued: Q. Okay. You mentioned ill will. You stated that you believe the relationship is kind of contentious. So starting when you moved in, in 2015, what are some events that transpired that would lead you to 2  believe that they harbor some type of ill will or created a contentious relationship? A. Yes. Pardon me. I met each of them individually in 2015 when I was finishing up my house, had done a remodel of my house. They each individually approached my deck and introduced themselves. After that, I would try to wave at them when I would see them, they never waved back, so I eventually stopped waving. They’ve always allowed their dogs to bark -- to bark at me or anybody using that back deck since I’ve owned it. And then after they would continue to allow their dogs to bark at me, I wasn’t comfortable with that because I didn’t know dogs at the time, so I didn’t use my back deck very much. In the beginning of fall of 2015, I was using that back deck and I saw that the Bishops seemed to have people outside. And then, shortly after that, they planted three magnolia trees close to my deck, so I always got the feeling that I was never wanted as a neighbor, especially because they just allowed their dogs to incessantly bark at me. Mion testified that Jeffrey used the deck a lot, and “[h]e was never waved at. They never came and introduced themselves. They’re kind of unneighborly and not hospitable.” She stated that while Bishop’s dogs barked a lot, Jeffrey talked to them in hopes that they would like him because he loved dogs. Mion described an incident on March 15, 2021, in which she overheard Bishop tell Jeffrey to quit speaking to her dogs. Then Bishop told Mion it “was lewd for [her] boyfriend to be shirtless.” Bishop then left. After that exchange, Mion testified that she received a call from a neighbor, Mary Cay, who invited her to come over for a mediation and that Bishop was already there. Mion 3 clarified that this was really “an informal meeting with neighbors.” When questioned about what occurred at this mediation, the following exchange transpired: A. Ms. Bishop asked us -- ask -- asked us to not use my back deck while she was having parties. It was explained to me that she has tried to make her home a sanctuary. I said, “Everybody’s home is their sanctuary.” So just trying to find a -- like find some common ground and things that we can work out, so she asked us to not use my back deck while they were having parties. And I pointed out her hypocrisies. Like, I don’t understand how you have a problem with my boyfriend being shirtless, but you have a pool. And her face just kind of like -- she gave me a blank stare and was speechless. I also told her that I was never comfortable -- I said, “Have you ever thought I never used my back deck because I wasn’t comfortable with your dogs barking at me?” And she had no response to that. She -- I did say that I -- you know, Jeffrey would stop talking to the dogs, as that is something that we could do to help her meet her own needs. But, again, I wasn’t going to let her shame us, shame my boyfriend. So I thought that the agreements I made put this matter to rest. I requested that Ms. Bishop be neighborly and wave when we see each other. She never agreed to that. Q. Okay. So after this mediation, you believe that the issues have been taken care of? A. Yes. And for two years we put our -- we upheld our side of the agreement, and we had two peaceful years. Q. Now, during those two years, did you have more friendly interactions with Bishops -- or with Ms. Bishop and Mr. Delao or – A. More friendly? I mean, no interactions, but not hostile interactions, so it was better. But yeah, no, I haven’t had an interaction since. 4  Q. Since that mediation, did they ever express that they requested more privacy or wanted anything else done by you or your boyfriend to give them more privacy? A. No. In April 2023, Mion learned that Bishop was constructing the fence when she saw men with chainsaws. Mion called the City of Fayetteville and discovered that this fence had been planned since right after the “mediation.” Mion went to Bishop’s house and spoke to Delao to try to stop the construction of the fence. Mion admitted she was volatile, lost her temper and began calling Bishop names when Delao said the fence was going to be built. Mion attempted another mediation through Mary Cay, but Bishop did not attend. She also put curtains around her deck hoping it would alleviate Bishop’s concern for privacy. She said she made other efforts to afford Bishop more privacy, but Bishop continued building the fence. Mion described the fence as follows: “It’s really ugly. It’s an eyesore. It’s like the worst design. It’s more of a billboard than it is a fence.” The newly constructed fence was eighteen feet high with a gap of at least two feet between the existing structure and new structure, a picture of which Mion admitted at trial. Mion denied any sexual activity on the deck and said she and Jeffrey are “kissy and cuddly,” and they “dance as – in the dancer community it’s called in-diaphragm contact” on the deck. She denied that Jeffrey leered down at Bishop’s property. On cross-examination, Mion admitted that in her filed discovery responses, she stated she could not pick Bishop or her family out of a line-up until the fence became an issue, but 5 in her direct examination, she seemed to recall several interactions between the parties. Mion admitted that before the fence issue arose, the only two times she may have spoken to Bishop was in 2015 and then again in September 2020 when Bishop stated she was planting trees. Mion admitted she never asked Bishop to quiet her dogs. Mion then called Ryan Hill, a real estate agent, who testified that the Mion property would be harder to sell because the fence is unattractive, affects curb appeal, and affects desirability of the property. He also stated that the fence affects the use and enjoyment of the property. On cross-examination, Hill agreed that marketability of property would be impacted if “a creepy neighbor . . . comes out and watches [the] kids swim” and the neighbor “likes to watch the girls” swim. Bishop called Kylie Mollner, a friend of Bishop’s daughter. Kylie testified that with permission, she and another friend were laying out beside Bishop’s pool one day in 2022 during spring break while Bishop was not home. Kylie and her friend got totally “creeped out” when Jeffrey was watching them from Mion’s deck. They were uncomfortable and left shortly after they noticed him staring at them from the deck. Bishop then testified. She said everything was fine with Mion and recalled no contact with her until the spring of 2020 when Bishop was planting trees. Bishop denied ever giving Mion the cold shoulder and said there had never been any contact, much less animosity before the tree planting in 2020. She repeated that before Jeffrey moved in, there was nothing that caused one bit of animosity between the parties. 6  Between 2015 and 2020, Bishop and her family used their pool extensively and had no concerns with privacy. Bishop first saw Jeffrey in the winter of 2020. Jeffrey was always on the deck shirtless and smoking when Bishop and the children were in the pool. Jeffrey would stare at them while they were in the pool, except when Delao was outside with them. Then, Jeffrey would go inside. Bishop testified about an incident, the date of which she could not recall, that Mion and Jeffrey appeared to be engaging in sexual activity on the porch. In March 2021, Bishop asked Jeffrey to stop talking to their dogs. During that conversation, Bishop confronted Jeffrey about the sexual encounter she and her children witnessed between him and Mion. Jeffrey responded: “Maybe your kids will learn something.” Bishop indicated Mion was present during this part of the conversation. Bishop left, and that is when the informal mediation occurred. That mediation was the first time Mion had complained to Bishop about Bishop’s barking dogs. She disputed Mion’s memory that they had reached an agreement at that time. After the March 2021 encounter and the informal mediation, Bishop obtained a permit for an extension of her fence. Bishop testified that she waited to build the fence, hoping the trees would grow or the situation would improve and that she was not ready to make such an investment for a fence. Bishop added that in late 2022, Jeffrey appeared to have moved out of Mion’s house. Bishop and her family then resumed their outdoor activities. In January 2023, Bishop heard Jeffrey at the house again. She then went through the process to obtain a new permit and proceeded to build the fence. Bishop testified that she paid a landscape architect to build 7 the fence as tasteful as possible considering the needed height of the fence. Bishop chose double lattice to allow the light to filter through but still provide as much privacy as possible for both neighbors. Regarding the gap between the existing fence and the new structure, Bishop testified that the angle of Mion’s picture that showed the gap was taken from the stairwell, but Bishop and her family were seeking privacy from a second-story deck. Bishop’s final witness was Dennis Lee Sanders, a city employee, who was called to discuss the permit and explain that the fence met the code requirements. After Mr. Sanders’s testimony, Bishop rested. After a short rebuttal, Mion’s counsel made his closing arguments. Important to this appeal, Mion argued in closing: So let’s look at the applicable law. There’s no statute on point regarding this type of fence. [Bishop] seems to rely heavily on the fact that the permit was issued prior to the fence being constructed, but that does not negate the intent of the fence, nor does it negate the detrimental effect on my client’s property. As mentioned in the pre-trial briefs, there are two appellate court cases which address nuisance claims as it relates to the construction of fences. The first is the 1932 case of DeMers v. Graupner. The court did articulate two competing views of nuisance law at the time but did not adopt either of its views. The court held that the fence in that case was not built for the sole purpose of annoying the opposing party and had other legitimate purposes, but the court also noted that the fence at issue was not an unusual height. Here, as argued, we believe that this fence was built for the sole purpose of annoying my client because of the nature of the fence, its unusual height, and any arguments about privacy, I believe, are negated by the large gap that still exists. The second case that is more recent is the 2011 case of Jenkins v. Fogerty. And while it wasn’t dispositive on the facts of the case, it established that the trial 8  court erred in dismissing a nuisance action because a prima facie case had been established. In that case, much like this one, the fence was built with a gap of two feet from the ground to increase the height of the fence, much like the gap here between this fence and the pre-existing fence. And the total height of the fence in that case only reached nine feet off the ground, compared to the 18-foot fence we have here. Additionally, in Jenkins, a real estate agent testified that the fence was unattractive and lowered the value of the properties. And just like in this case where Mr. Hill testified to the diminishment of the marketability of the property. So given the caselaw, I believe that invalidity of the privacy argument, I believe we’ve shown by preponderance of the evidence that this fence was built for the purpose of annoying my client. And that being the case, we request the court to order that this fence be torn down by the defendant at their expense, that the defendants be enjoined from constructing similar obstructions, and that the defendant be ordered to pay my client’s attorney’s fees and costs. After Bishop’s counsel completed closing remarks, the court found that Mion did not establish that the fence created a nuisance and stated its ruling as follows: Everything began after 2020, which could cut both ways that it’s animosity because that’s when the issue arose, but also cuts toward the reason for privacy didn’t arise until after 2020. There was testimony that he would stay out on the deck, watch the people at the pool. Whether he’d see eyes or not, see the body -- whether the body’s position -- his body was positioned, his head’s positioned, they could tell he was watching them. Always stated that he altered when the husband would come out there. They altered their lifestyles due to it. She used a landscape architect for mutual privacy, allowing light to pass through. The testimony was that it was all about privacy, even the discussions with the contractor. [Mion] says it doesn’t completely block the view, there’s at least two gaps you can see through it. She’s been using an alternative to that view that they have been using. 9  Based on all of that, the court does not see it, or at least does not believe it’s been shown by preponderance of evidence that this was strictly for animosity, even though case law could suggest -- even if it was, if it has another purpose, but the court didn’t hear evidence to show that this was strictly for animosity or even partly for animosity for that matter. So the court is going to deny the complaint for declaratory judgment. (Emphasis added.) On January 15, 2025, the circuit court entered its order of judgment and dismissal. Mion filed a timely appeal. II. Standard of Review Following a bench trial, this court determines whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. In doing so, we review the circuit court’s conclusions of law de novo. Gunn v. Wortman, 2024 Ark. App. 111, at 6, 684 S.W.3d 340, 343–44. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire record, is left with a firm conviction that a mistake has been made. Id. We view the evidence and all reasonable inferences arising therefrom in the light most favorable to the appellee. AgriFund, LLC v. Regions Bank, 2020 Ark. 246, at 6, 602 S.W.3d 726, 730. When there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous. Rymor Builders, Inc. v. Tanglewood Plumbing Co., Inc., 100 Ark. App. 141, 147, 265 S.W.3d 151, 155 (2007). We give recognition to the circuit court’s superior opportunity to determine the credibility of witnesses and the weight to be given to their testimony. Gunn, 2024 Ark. App. 111, at 6, 684 S.W.3d at 344; see also Mays v. Viva La Vegan Grocery, Inc., 2024 Ark. App. 513, at 2–3, 700 S.W.3d 750, 758–59. 10  III. Discussion Mion argues that the circuit court “relied strictly on its interpretation of the law as to a spite fence but did not address the overwhelming number of cases on nuisance law.” In Mion’s pretrial brief and closing argument, Mion cited Jenkins v. Dale E. & Betty Fogerty Joint Revocable Trust, 2011 Ark. App. 720 386 S.W.3d 704, and DeMers v. Graupner, 186 Ark. 214, 53 S.W.2d 8 (1932), as the “two appellate court cases which address nuisance claims as it relates to the construction of fences.” Mion’s counsel argued that DeMers and Jenkins, both of which pertain to spite fences, were the “applicable law.” Mion cannot urge the circuit court to apply the law found in DeMers and Jenkins and on appeal ask this court to apply general nuisance law. It is well settled that under the doctrine of invited error, a party may not complain on appeal of an erroneous action of a circuit court if he or she induced or acquiesced in that action. In re Guardianship of L.J.P., 2019 Ark. App. 456, at 8, 588 S.W.3d 58, 63; see also Barrows/Thompson, LLC v. HB Ven II, LP, 2020 Ark. App. 208, at 13, 599 S.W.3d 637, 646. This court has also long held that it will not review an alleged erroneous ruling or order unless a party makes known to the circuit court beforehand the action that he or she desires the court to take or objects to the action of the court and cites the grounds, therefore. Riley v. State Farm Mut. Auto. Ins. Co., 2011 Ark. 256, at 10, 381 S.W.3d 840, 847. This argument has no merit. 11  To the extent that Mion argues that the court misapplied DeMers and Jenkins, this argument fails. In DeMers, supra, the court acknowledged there were two trends 2 in these types of cases but declined to adopt either. Instead, the DeMers court held that the fence was not built for the sole purpose of annoying the opposing party and that there were in fact other legitimate purposes. This court addressed the issue in Jenkins, supra. In Jenkins, the circuit court dismissed the Jenkinses’ case alleging that the fence was a nuisance. We found that when considering the facts—including that the fence was built in response to a boundary dispute—the case should not have been dismissed because a prima facie case had been made by the Jenkinses that the fence had been erected maliciously, and it made the other owner’s property less valuable. DeMers and Jenkins are the two spite-fence cases that are controlling law in the case before us. Pursuant to DeMers and Jenkins, evidence of animosity alone did not render the fence a nuisance so long as it served a legitimate purpose. In this case, the court did not find any animosity and instead found the reasons for erection of the fence was “all about privacy.” 2 One trend in cases from other jurisdictions is that an owner of land may erect on his own property any kind of structure he may desire, even though it might have the effect of causing great annoyance to the neighboring owners, and the motive or intent of the person erecting the structure cannot be questioned unless the structure has no benefit or advantage but is done solely for the purpose of damaging a neighbor; nor can an owner be prevented, even though the purpose is a malicious one, from erecting a structure that merely prevents the free use of light and air by the adjoining property owner. The modern trend in other jurisdictions is that an adjoining landowner may enjoin the erection of a fence done for the purpose of annoying a neighbor and making the use of his property less desirable. 12  Mion argues that the record fails to support the court’s finding that there was no malicious intent or personal animus. We disagree. The circuit court believed Bishop’s testimony that the fence was erected solely for privacy reasons and believed the testimony that the fence was not built with any animosity. The circuit court believed Bishop and her witness that Jeffrey was watching them while in the pool and that he altered his behavior when Bishop’s husband was present. The circuit court was in the best position to evaluate the credibility of the witnesses, and this case turns on credibility. Gunn, 2024 Ark. App. 111, at 6, 684 S.W.3d at 344; see also Mays, 2024 Ark. App. 513, at 2–3, 700 S.W.3d at 758–59. Pursuant to our de novo review of the record and the analysis in DeMers and Jenkins, we hold that the circuit court’s ruling was not clearly erroneous. Affirmed. WOOD and HIXSON, JJ., agree. Robert S. Tschiemer, for appellant. Kutak Rock LLP, by: Kyle T. Unser, for appellees. 13