CHRISTINA J. GREENFIELD, Plaintiff-Appellant,
ERIC J. WURMLINGER and ROSALYN D. WURMLINGER, husband and wife, Defendants-Respondents
[Copyrighted Material Omitted]
2015 Opinion No. 47
Appeal from the District Court of the First Judicial District of the State of Idaho, in and for Kootenai County. Hon. Lansing L. Haynes, District Judge.
The judgment of the district court is affirmed.
Christina J. Greenfield, Post Falls, argued in her own behalf.
John C. Riseborough, Paine Hamblen LLP, Spokane, Washington, argued for respondents.
EISMANN, Justice. Chief Justice BURDICK, Justices J. JONES, W. JONES, and HORTON CONCUR.
This is an appeal out of Kootenai County from a judgment holding that the defendants were not violating the subdivision CC& R's by operating a bed and breakfast from their home or by having arborvitaes higher than six feet, and awarding them a judgment totaling $168,755.37 against the plaintiff for her conduct that caused them emotional distress. We affirm the judgment of the district court and award attorney fees on appeal.
This is an appeal from a judgment resolving a dispute between two neighbors. In 1994, Eric and Rosalynn Wurmlinger (Defendants) built their home in the Park Wood Place subdivision in Post Falls, Idaho, on a lot next to the home of Judy Richardson. The Defendants operated a bed and breakfast from their home, and they planted a row of arborvitaes near the property line between their lot and the lot owned by Ms. Richardson. In 2005, Christina Greenfield (Plaintiff) purchased the Richardson property. The following year, Plaintiff had an attorney write to the Defendants, stating that the operation of their bed and breakfast violated the subdivision's protective covenants, conditions, and restrictions (CC& R's) and that the height of the arborvitaes violated the height restriction on fences contained in the CC& R's and the height restriction on hedges contained in a city ordinance. Thereafter, the dispute between Plaintiff and Defendants centered on the operation of Defendants' bed and breakfast in their home and the height of their arborvitaes near the boundary between the two properties.
On April 12, 2006, Post Falls sent Mr. Wurmlinger a letter stating that the city had received a complaint regarding a hedge on his property and that the city code required fences and hedges within a side yard setback to be no higher than six feet. The letter quoted the relevant ordinance and asked that the hedge be brought into compliance within thirty days. Defendants trimmed their arborvitaes to bring them into compliance, and in June 2006 the city amended its ordinance to remove the limitation on the height of hedges. Thereafter, Defendants allowed their arborvitaes to grow taller than six feet.
By 2010, the arborvitaes had grown to a height of ten to twelve feet. In April 2010, Defendants returned from a vacation and discovered that about four to six feet had been cut from ten of their arborvitaes. It is
undisputed that Plaintiff had her agent cut the trees. Plaintiff was charged criminally, but the charges were later dismissed. Thereafter, Defendants began experiencing vandalism to their property. Over a period of about eighteen months, there were fourteen incidents of paint being splashed or poured on improvements to their property, with the last incident occurring about four months before the jury trial in this case.
On September 23, 2010, Plaintiff filed this action alleging four claims against Defendants. First, Plaintiff asked for a declaratory judgment that Defendants were violating the CC& R's by operating the bed and breakfast, allowing their arborvitaes to grow higher than five feet, and obstructing a pedestrian easement across their property. She sought an injunction requiring Defendants to cease the alleged violations. Second, Plaintiff alleged that the plants and trees on Defendants' property that blocked her view of the Spokane River constituted a nuisance. She sought damages and an order requiring Defendants to remove the offending foliage. Third, Plaintiff alleged that Defendants had agreed to maintain their foliage along the common boundary line at a height of six feet; that Plaintiff had the foliage trimmed to the agreed height when Defendants breached that agreement; and that Defendants then contacted law enforcement which resulted in Plaintiff being charged with a misdemeanor. As a result, Plaintiff claimed that Defendants intentionally caused her emotional distress, for which she was entitled to recover damages. Fourth, Plaintiff alleged that Defendants breached their agreement with her and made false and defamatory statements about her to law enforcement, which negligently caused her emotional distress. She requested an award of damages on that claim. Defendants filed a counterclaim seeking damages for negligent or intentional infliction of emotional distress, common law trespass, and timber trespass.
Prior to trial, Plaintiff's claim for intentional infliction of emotional distress was dismissed upon Defendants' motion for summary judgment. Plaintiff's claims for nuisance and negligent infliction of emotional distress and Defendants' claims were tried to a jury. It returned a special verdict finding that Plaintiff had failed to prove her claims of nuisance and negligent infliction of emotional distress. The jury also found that Defendants had proved their claim of negligent infliction of emotional distress, for which it awarded them $52,000 in damages, and their claim of timber trespass, for which it awarded them $17,000 in damages. The jury also found that Defendants had proved that Plaintiff committed a common law trespass, but Defendants did not prove any damages for that claim. Plaintiff's action for a declaratory judgment that Defendants were in violation of the CC& R's was tried to the district court, and it later entered a decision finding that Plaintiff had failed to prove that claim.
The timber trespass damages were trebled to $51,000 pursuant to Idaho Code section 6-202, and the court awarded Defendants court costs and a reasonable attorney fee totaling $65,755.37. It entered a judgment against Plaintiff in the amount of $168,755.37, and she timely appealed.
Did the District Court Err in Finding that Defendants Were Not Violating the CC& R's?
Prior to the jury trial, the district court instructed the parties that it would determine the issues regarding Defendants' alleged violations of the CC& R's, but would do so based upon the evidence presented during the jury trial. After the jury returned its verdict, the court had a status conference with the parties, and it informed them that they could submit closing arguments in writing regarding the alleged violations of the CC& R's. Once they had done so, the court filed its decision finding that Plaintiff had failed to prove the alleged violations of the CC& R's.
With respect to the alleged violations of the CC& R's, Plaintiff lists the following issues:
a) Did the District Court err in its finding that the Respondents' operation of their business, the River Cove Bed and Breakfast
and wedding event facility did not violate the neighborhood CC& Rs?
b) Did the District Court err in its finding that the Respondents' operation of their business, the River Cove Bed and Breakfast and wedding event facility was " Not open to the public" ?
c) Did the District Court err in its finding that the Respondents' operation of their business, the River Cove Bed and Breakfast and wedding event facility, qualifies as a " Home Occupation" and not a " Business" as so defined in the neighborhood CC& Rs?
d) Did the District Court err in its finding that the Respondents' lack of maintenance of the arborvitae hedge, which is located on or near the real property line that separates both properties, did not violate the neighborhood CC& Rs height restrictions and therefore refuse to enter an Injunction prohibiting the Respondents' [sic] from allowing the arborvitae shrubs to exceed the height restrictions as set forth in the neighborhood CC& Rs?
Operation of the bed and breakfast. The CC& R's provide that no lot within the subdivision can be used for any purpose except for a single family residence, but that " [h]ome occupations of family members, which have no exterior visibility, are not prohibited provided they are conducted totally within the residence, are not open to the public, have no employees and do not generate extra vehicular traffic or street parking." Defendants' house has six bedrooms, three of which they rent for their bed and breakfast.
Initially, Defendants had weddings at their home which attracted a significant number of guests; they owned a boat and offered river cruises to those staying at their bed and breakfast; and they once set up a tent trailer to accommodate a couple who wanted to attend an athletic event in nearby Coeur d'Alene. In 2008, there was a wedding which resulted in nine cars parking on the street. That prompted a call from the city, which licenses home occupation businesses and requires that they comply with certain conditions. As a result, Defendants changed their wedding policy, and the district court found that they " now offer small nuptial exchange ceremonies that involve no more than eight individuals," that the ceremonies are conducted in the residence, that those in the wedding party must stay in the bed and breakfast, and that any music is played very softly. The court found persuasive the testimony of neighbors who never heard any excessive noise coming from Defendants' property.
Covenants that restrict the uses of land are valid and enforceable. Brown v. Perkins, 129 Idaho 189, 192, 923 P.2d 434, 437 (1996). However, " [b]ecause restrictive covenants are in derogation of the common law right of a person to use land for all lawful purposes, covenants are not to be construed to extend by implication any restriction not clearly expressed in the covenants." Id. Rather, " [a]ll doubts and ambiguities are to be resolved in favor of the free use of land." Id. Therefore, while clearly expressed restrictions will be upheld, " restrictions that are not clearly expressed will be resolved in favor of the free use of land." Id.
The district court found that the bed and breakfast had no exterior visibility. There was only a small plaque with the street address affixed to Defendants' brick lamppost near their driveway, and the photographs introduced into evidence showed what appeared to be a home, not a commercial enterprise. The court found persuasive the testimony of a neighbor who lived across the street and did not know that the Wurmlingers operated a bed and breakfast in their home until Mr. Wurmlinger told him. The court found that the operation is conducted totally within the residence and that guests walking outside to use the hot tub or gather on the patio are normal activities for a residence. The court determined that the words " open to the public" in the CC& R's meant that members of the public could simply walk in the front door, off the street, unannounced and without invitation, to ask for accommodations. Defendants' bed and breakfast does not accept walk-up clientele, but only accepts people with advance reservations arranged over the telephone. It does not have street signs or directional signs inviting the public to walk in and obtain a room. The court found that the Wurmlingers had no employees,
which fact was undisputed. Finally, the court found that since 2008 the bed and breakfast has not generated extra vehicular traffic or street parking.
In her brief, Plaintiff cites testimony concerning the operation of the bed and breakfast prior to 2008. In the declaratory judgment claim in her complaint filed on September 23, 2010, she alleged that " [t]he Defendants' operation of the Bed and Breakfast is [present tense] in violation of the CC& R's" ; she requested an order " declaring that the Defendants' operation of the Bed and Breakfast in Parkwood Place is [present tense] a violation of the CC& R's" ; and she sought " an Injunction prohibiting the Defendant's [sic] from operating the Bed and Breakfast, or any similar business, in Parkwood Place." (Emphasis added.) The district court found that at the time the complaint was filed, the operation of the bed and breakfast was not in violation of the CC& R's. Plaintiff also argues that Defendants repeatedly referred to the bed and breakfast as a " business" and the evidence showed it was profitable. A " home occupation" by definition would be a business, and profitable home occupations are not excluded by the CC& R's.
Plaintiff also asserts that " a 'Home Occupation' [is] not a 'Business' as so defined in the neighborhood CC& Rs," but she does not cite to any definition of " business" in the CC& R's. However, the provision regarding home occupations prohibits " any trade or business of any kind," and then excludes from that prohibition " [h]ome occupations of family members" that comply with certain conditions. In context, that would certainly indicate that a home occupation would be a trade or business.
Arborvitaes. The CC& R's provide that " [n]o lot, lots or parcels, shall ever be enclosed or fenced by any fence or structure exceeding five (5) feet in height." Based upon the testimony of a surveyor, the district court found that Defendants have thirty-three arborvitaes on their property and that Plaintiff has two on hers. Plaintiff contended that the arborvitaes on Defendants' property constituted a fence under the CC& R's. The district court found that the relevant provision in the CC& R's was unambiguous and that it did not provide that arborvitae or any other trees or landscaping constituted a fence. The restriction as to the height of fences was in a section of the CC& R's titled " Building Restrictions" and in a subsection titled " Building Conditions,"  and in the context there was nothing indicating that the word " fence" included foliage.
" A trial court's findings of fact will not be set aside on appeal unless they are clearly erroneous." Camp v. East Fork Ditch Co., Ltd.,
137 Idaho 850, 856,
55 P.3d 304, 310 (2002). In applying that principle, the appellate court cannot reweigh the evidence, judge the credibility of the witnesses, or substitute its view of the facts for that of the trial court. Argosy Trust ex rel. Andrews v. Wininger, 141 Idaho 570, 572, 114 P.3d 128, 130 (2005). It is the responsibility of the trial court to judge the credibility of witnesses and weigh conflicting evidence. Bream v. Benscoter, 139 Idaho 364, 367, 79 P.3d 723, 726 (2003). The appellate court's role is simply to determine whether there is evidence in the record that a reasonable trier of fact could accept and rely upon in making the factual finding that is challenged on appeal. Miller v. Callear, 140 Idaho 213, 216, 91 P.3d 1117, 1120 (2004).
Plaintiff does not argue in her brief that the district court's findings are clearly erroneous. She argues that Defendants called their bed and breakfast a " business" and that such business " creates excessive traffic, constant noise, and intrusions from unwelcome patrons who stray onto adjacent properties, block driveways, mail boxes, and causes street congestion." She cites nothing in the record supporting her accusations. " This Court will not search the record for error. We do not presume error on appeal; the party alleging error has the burden of showing it in the record." Id. at 218, 91 P.3d at 1122 (citation omitted). Plaintiff has failed to show that the district court erred in finding that she had failed to prove that Defendants were violating the CC& R's.
Did the District Court Err in Finding that Defendants' Planting of Trees and Shrubs that Block Plaintiff's View of the River Did Not Constitute a Nuisance?
In her complaint, Plaintiff alleged that " [t]he Defendants have planted shrubs and trees upon their real property which block the Plaintiff's view of the Spokane River and which infringe upon the Plaintiff's real property," and she alleged that such conduct constituted a nuisance. Plaintiff asserts various issues on appeal that can be grouped as asserting that the district court erred in finding that Defendants' planting of trees and shrubs that block her view of the river did not constitute a nuisance. She lists as issues the following:
o) Did the District Court err in its finding that Respondents' [sic] did not purposely and or negligently plant large trees and or shrubs to intentionally block Appellant's view of the Spokane River, which infringes upon Appellant's real property, obstructs her free use of ...