PEND OREILLE VIEW ESTATES, OWNERS' ASSOCIATION, INC., Plaintiff/Respondent,
T.T. LLC, an Idaho limited liability company; NADIA BEISER; DAVID M. RICHARDS; MARY BETH GIACOMO; and MATTHEW A. FARNER, Defendants/Appellants, MATTHEW A. FARNER and MARY BETH GIACOMO, Third-Party Plaintiffs/Appellants
THERESA ZIRWES, Third-Party Defendant/Respondent.
Opinion No. 112
from the District Court of the First Judicial District of the
State of Idaho, in and for Bonner County. Hon. Barbara A.
Buchanan, District Judge.
judgment of the district court is affirmed.
C. Featherston, Featherston Law Firm Chtd., Sandpoint, argued
C. Erbland, Lake City Law Group PLLC, Coeur d'Alene,
argued for respondent.
an appeal out of Bonner County from a judgment upholding
money judgments against lot owners in phase two of a
subdivision for assessments made for the cost of paving a
road across phase one of the subdivision that provides access
from the county road to phase two. We affirm the judgment of
the district court.
lawsuit involves a subdivision named Pend Oreille View
Estates, which was developed in two phases. The first phase
("Phase I") consisted of 20-acre tracts, and the
second phase ("Phase II") consisted of 60-acre
tracts. On July 26, 1994, the developer recorded the
declaration of covenants, conditions, and restrictions for
Phase I ("Phase I CC&Rs"), and an amendment to
the Phase I CC&Rs was recorded on January 20, 1995.
February 15, 1995, Pend Oreille View Estates Owner's
Association, Inc. ("Association"), was
incorporated. Its stated powers were to "provide for the
acquisition, construction, management, operation,
administration, maintenance, repair, improvement,
preservation, insurance, and architectural control of
Association property within that certain subdivision in
Bonner County, Idaho, commonly known as Pend Oreille View
Estates, Phase I."
January 25, 1995, the developer recorded the declaration of
covenants, conditions, and restrictions for Phase II
("Phase II CC&Rs"), and an amendment to the
Phase II CC&Rs was recorded on May 31, 2005. The Phase II
CC&Rs required that each owner of property in Phase II
must be a member of the Association.
Association desired to pave the roads that went from the
public road, across Phase I, to Phase II because of the dust
created by vehicles on the roads and the cost of maintaining
unpaved roads. It sent its members notice of a special
meeting to be held on July 24, 2012, to vote on an amendment
to the bylaws to permit a special assessment on the members
to pay for the paving of the roads. On February 17, 1995, the
members of the Association voted to adopt an amendment to the
bylaws, which provided for special assessments on the members
to pave the roads in Phase I. The Association decided to pave
the roads that went from the public road, across Phase I, to
Phase II. On July 24, 2012, the members voted to adopt the
proposed amendment, which stated as follows:
4.02.01 One Time Road Paving Assessment. There will
be a one-time assessment assigned to each tract owned by the
members of POVE I [Phase I] and POVE II [Phase II] to
facilitate the paving of Turtle Rock Road, Redtail Hawk Road
and Destiny Lane. Billing will be assessed by distance from
Baldy Mountain Road to the P.O.V.E. Member's property.
Invoices were mailed July 25, 2012 and payment is due Sept.
23, 2012. Paving to commence in late September, 2012.
the amendment, the Association sent notices of assessments to
all of its members who owned property in Phases I and II.
T.T., LLC, Nadia Beiser, David M. Richards, Mary Beth
Giacomo, and Matthew A. Farner (collectively "the
Defendants") all owned real property in Phase II. The
Association sent them bills for their respective assessments.
When they did not pay the assessments, the Association
recorded liens against their properties.
November 12, 2013, the Association filed this action seeking
foreclosure of the liens and money judgments against the
Defendants for the amounts of their respective assessments.
Ms. Giacomo and Mr. Farner filed a counterclaim against the
Association for slander of title, quiet title, an injunction,
and a declaratory judgment, and they filed a third party
complaint alleging the same claims against Theresa Zirwes,
the Association's secretary/treasurer who signed and
recorded the lien claims.
19, 2014, the Association moved for summary judgment, and on
June 11, 2014, the Defendants moved for summary judgment.
After the motions were briefed and argued, the district court
granted the Association's motion and denied the
Defendants' motion. On July 23, 2014, the court entered a
judgment awarding the Association the sum of $41, 540.34
against T.T., LLC, Nadia Beiser and David M. Richards on
count one; the sum of $23, 740.17 against Beth Giacomo and
Matthew A. Farner on count two; and the sum of $23, 740.17
against Beth Giacomo and Matthew A. Farner on count three,
and it dismissed the counterclaims and third party claims
with prejudice. On August 6, 2014, the Defendants filed a
motion to reconsider. After argument and briefing, the court