Hildenbrand v. Avignon Villa Homes Community Association, Inc.

• Decision Date: 15 January 2021
• Docket Number: 245,120
• Court: Kansas Court of Appeals
• Parties: JIM HILDENBRAND, and JAMES B. HILDENBRAND, Trustee of the JAMES B. HILDENBRAND LIVING TRUST, Dated March 1, 2012, Appellees/Cross-appellants, v. AVIGNON VILLA HOMES COMMUNITY ASSOCIATION, INC., Appellant/Cross-appellee.

JIM HILDENBRAND, and JAMES B. HILDENBRAND, Trustee of the JAMES B. HILDENBRAND LIVING TRUST, Dated March 1, 2012, Appellees/Cross-appellants, v. AVIGNON VILLA HOMES COMMUNITY ASSOCIATION, INC., Appellant/Cross-appellee.

No. 120, 245

Court of Appeals of Kansas

January 15, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Johnson District Court; Rhonda K. Mason, judge.

Lawrence L. Ferree, III, and Brett T. Runyon, of Ferree Bunn, Rundberg & Ridgway, Chtd., of Overland Park, for appellant/cross-appellee.

Eldon J. Shields, of Gates Shields Ferguson Swall Hammond, P.A., of Overland Park, for appellees/cross-appellants.

Before Atcheson, P.J., Bruns, J., and Burgess, S.J.

MEMORANDUM OPINION

ATCHESON, J.

A long-running legal battle between James B. Hildenbrand and Avignon Villa Homes Community Association that oversees the development where he lives has returned to us for a second visit. In the first appeal, we reversed and remanded a judgment the Johnson County District Court entered for the Homes Association requiring Hildenbrand to remove extensive and unapproved landscaping to his home. In a bench trial, the district court incorrectly applied the governing statutory standard in reviewing the determination of a Homes Association committee to reject Hildenbrand's landscaping plans. After reopening discovery and hearing additional evidence on remand, the district court ultimately: (1) found the Homes Association's Architectural Review Committee did not act in good faith and, therefore, violated K.S.A 2015 Supp. 58-4604(a) when it rejected the bulk of Hildenbrand's landscaping plans; (2) set aside the earlier order requiring Hildenbrand to remove the landscaping; (3) rescinded an award of attorney fees to the Homes Association; and (4) ordered Hildenbrand to pay $25, 000 in contractual fines to the Homes Association because he did not get approval from the Architectural Review Committee before landscaping his home.

The Homes Association has appealed, and Hildenbrand has cross-appealed. We affirm the district court in all respects except the amount of the fines. The district court's reasoning and the record support fines of $17, 600. We remand to the district court for the limited purposes of revising the amount of the fines.

Factual and Procedural History

A. History Through First Appeal

We draw on our earlier opinion to set out the factual background and the procedural history leading up to the first remand to the district court. See Hildenbrand v. Avignon Villa Homes Community Association, Inc., No. 114, 040, 2016 WL 6350201 (Kan. App. 2016) (unpublished opinion) (Hildenbrand I). In what Hildenbrand I described as a condensed account, we stated:

"In 2012, Hildenbrand moved into Avignon Villa Homes, a residential development catering to adults with grown children. The homes are, by design, quite similar in appearance. The Homes Association arranges for mowing, snow removal, and other maintenance services for the community residents. The homeowners pay fees to the Homes Association and agree to abide by the extensive covenants, rules, and regulations governing land use in the development. Hildenbrand was informed of and received a copy of those materials during the purchase process.

"To promote the common appearance of the community, the Homes Association has developed several model landscape plans. The association's covenants require a homeowner to submit any contemplated landscaping to the Architectural Review Committee for advance approval. The committee consists of development homeowners elected by their peers.

"Shortly after Hildenbrand moved in, he and the Homes Association were at odds over some flower pots he put around his residence, his apparently continuing failure to park a car in his garage, and the placement of a satellite dish in his backyard. While Hildenbrand and the association were warring over the satellite dish, he submitted a plan for landscaping of his backyard that was considerably more elaborate than the suggested approaches. The association refused to consider his plan, since the dispute over the satellite dish had not been resolved. The association assessed daily 'fines' against Hildenbrand because he refused to move the satellite dish to an approved location on his property.

"In response to a request from Hildenbrand, the Federal Communications Commission issued an opinion letter to the effect that the Homes Association could not dictate where the satellite dish should be placed. The association withdrew its demand the dish be moved and rescinded the fines.

“In the meantime, Hildenbrand had been working with a professional landscaper to design plans for both his backyard and front yard. In late 2012, Hildenbrand submitted that landscape plan for his backyard to the association. The Architectural Review Committee approved parts of the plan and rejected other components. The next spring, Hildenbrand e-mailed a revised backyard plan and says he had a front yard plan hand delivered to the association's management office. During the court proceedings, the Homes Association suggested Hildenbrand didn't provide a front yard plan. The parties do agree the front yard plan never went to the Architectural Review Committee for consideration.

"In late April 2013, Hildenbrand spoke with the Homes Association property manager about his landscaping plans. She apparently looked at a file and seeing the review of the backyard plan from the preceding fall told Hildenbrand something to the effect that the landscaping had been approved. Taking that representation as a categorical go-ahead, Hildenbrand had the landscaper begin the extensive changes to his front and backyards. In June, the Homes Association and its lawyer sent letters to Hildenbrand telling him to stop the landscaping because his plan had not been approved. Although not directly relevant to the point we decide, we mention conflicting trial evidence some of which suggests the landscaping had largely been completed by then and some of which suggests the most sweeping aspects of the plan remained to be done. The undisputed trial evidence established Hildenbrand completed the landscaping and paid about $17, 000 for the project.

"Rather than responding directly to the Homes Association or its lawyer about the demand he halt the landscaping, Hildenbrand hired his own lawyer and filed a Chapter 61 limited action in the district court alleging the association's position violated his legal rights. The Homes Association counterclaimed for an order requiring removal of the landscaping-characterized as specific performance of the association's covenants- and for a money judgment reflecting both fines it had levied against Hildenbrand for the unapproved landscaping and its legal fees. Given the issues and the relief each side sought, the district court removed the case from the limited actions docket and treated it as a regular Chapter 60 civil suit substantially expanding the discovery options and pretrial motions routinely available to litigants.

"Hildenbrand and the Homes Association tried the case to the district court sitting without a jury in early 2014. Broadly characterizing the evidence, the Homes Association did not contend the landscaping was aesthetically objectionable in any abstract sense or offer specific evidence it would materially diminish property values within the community. Rather, the association argued that Hildenbrand patently violated the covenants, rules, and regulations to which he agreed by making substantial changes to his property without advance approval and that the landscaping was far and away the most elaborate and ostentatious in the community. The association suggested both current owners and potential buyers might be put off by widely varying landscaping of the homes or especially elaborate landscaping of a few homes, thus undercutting a fundamental goal of presenting a common appearance throughout the development. Hildenbrand presented evidence, albeit questioned by the Homes Association, that removing the landscaping and restoring his property would cost about $40, 000. The district court ruled against Hildenbrand on his claims against the Homes Association and entered an order that the landscaping be removed. In its ruling, the district court noted that Hildenbrand's overall landscaping plan had never been submitted to or considered by the Architectural Review Committee. So the district court stayed its order and directed that the Architectural Review Committee render a decision on the landscaping plan. The district court also gave Hildenbrand the option to challenge the committee's decision if he believed it were improperly made.

"Hildenbrand promptly submitted his full landscaping plan to the Architectural Review Committee, and the committee, a week later, rejected the bulk of the plan and, thus, the actual work that had been done. Exercising his prerogative under the district court's order, Hildenbrand disputed the decision.

"The district court heard testimony and received other evidence regarding the Architectural Review Committee's decision. The district court ruled that the committee acted in 'good faith' in denying Hildenbrand's landscaping plan and, therefore, satisfied the governing legal standard. The district court rejected Hildenbrand's arguments that the committee applied unwritten or nonexistent restrictions to the plan and had allowed comparable landscape motifs for other residents. The district court reasoned that good faith could shield a committee decision that differed from earlier decisions for other residents or was 'erroneous or unfair.' In its memorandum decision on this point, the district court focused on what it perceived to be the 'state of mind' of the committee members as they reviewed the

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