Background
Robyn Mion and Sara Bishop owned adjacent homes in Fayetteville, Arkansas. Mion’s property included an elevated deck overlooking Bishop’s backyard and swimming pool, with an existing six-foot privacy fence along the shared boundary. After Mion’s boyfriend, Jeffrey Chase, moved in, Bishop and her family became concerned that he was watching them from the deck. Bishop testified that Chase stared at family members and guests using the pool and changed his behavior when Bishop’s husband was present.
In 2023, Bishop constructed a new fence that was eighteen feet high overall. She testified that the height was necessary to screen the elevated deck and that double lattice allowed light through while providing privacy. Mion sued for declaratory relief, alleging that the fence was an unattractive nuisance erected out of animosity. After a bench trial, the Washington County Circuit Court credited Bishop’s evidence, found that the fence was built for privacy rather than spite, and dismissed Mion’s complaint.
The Court’s Holding
The Arkansas Court of Appeals affirmed. It first rejected Mion’s attempt to argue on appeal that the circuit court should have applied general nuisance law instead of the state’s two spite-fence decisions, DeMers v. Graupner and Jenkins v. Dale E. & Betty Fogerty Joint Revocable Trust. Because Mion had presented those cases to the circuit court as the applicable law, the invited-error doctrine prevented her from challenging the court’s use of that framework on appeal.
The court also held that the circuit court did not clearly err in applying the spite-fence cases. Under those decisions, evidence of animosity does not make a fence a nuisance when the fence serves a legitimate purpose. The circuit court was entitled to credit Bishop’s testimony that the fence was built for privacy and to find that it was not motivated by animosity. Because the dispute turned on witness credibility, the appellate court deferred to the circuit court’s superior ability to assess the testimony.
Key Takeaways
- A party that asks a trial court to apply a particular legal framework generally cannot challenge the court’s use of that framework on appeal.
- Under Arkansas spite-fence precedent, animosity alone does not establish a nuisance when the fence serves a legitimate purpose such as privacy.
- After a bench trial, appellate courts defer to the trial judge’s credibility determinations unless the resulting findings are clearly erroneous.
Why It Matters
The decision underscores that even an unusually tall and allegedly unattractive fence is not necessarily an actionable nuisance. When the evidence supports a legitimate privacy purpose, Arkansas courts may reject a spite-fence claim despite tension between neighboring property owners.
The case also illustrates the importance of consistently framing the governing law at trial and on appeal. A litigant who affirmatively relies on a legal theory before the trial court may be barred by invited error from pursuing a different theory after losing.