Island Woods Homeowners Association v. McGimpsey, Docket No. 35363 (Idaho App. 3/24/2010)

• Decision Date: 24 March 2010
• Docket Number: Docket No. 35363.
• Parties: ISLAND WOODS HOMEOWNERS ASSOCIATION, Plaintiff-Respondent, v. PHILIP P. McGIMPSEY, Defendant-Appellant.
• Court: Idaho Court of Appeals

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ISLAND WOODS HOMEOWNERS ASSOCIATION, Plaintiff-Respondent, v. PHILIP P. McGIMPSEY, Defendant-Appellant.

Docket No. 35363.

Court of Appeals of Idaho.

Filed March 24, 2010.

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Patrick H. Owen, District Judge.

Order on summary judgment and orders awarding attorney fees and costs, affirmed.

Philip P. McGimpsey, Eagle, appellant pro se.

Greener Burke Shoemaker P.A.; Lisa M. McGrath, Boise, for respondent.

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

GRATTON, Judge.

Philip P. McGimpsey ("McGimpsey") appeals from the district court's order and judgment in favor of Island Woods Homeowners Association ("IWHA"), including its awards of costs and attorney fees. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

McGimpsey is the owner of a residence located in the Island Woods Subdivision in Eagle, Idaho. McGimpsey purchased the property as an unimproved lot in 2001. The City of Eagle issued a Certificate of Occupancy to McGimpsey on October 24, 2005. McGimpsey has occupied the residence since November 2005. The recorded Declaration of Covenants, Conditions, and Restrictions of Island Woods Subdivision No. 1 ("CC&Rs") applies to all properties located within the subdivision.

In a letter dated September 5, 2006, IWHA notified McGimpsey that he had not completed his landscaping as required by the CC&Rs. The letter requested that McGimpsey comply within ten days by submitting a landscaping plan to the Architectural Control Committee ("ACC") for approval prior to commencing work on his landscaping. McGimpsey responded indicating that a landscaping plan had already been submitted and approved in 2004. He stated that his intention was to complete the landscaping upon resolution of a legal dispute with his dirt contractor. Thereafter, counsel for IWHA wrote a demand letter notifying McGimpsey that he was in violation of the CC&Rs, specifically, Article IX, Sections J and M, regarding landscaping and installation of a photosensitive pole light and mailbox, and that IWHA planned to compel compliance or seek damages for non-compliance. McGimpsey did not respond. Counsel for IWHA sent a second demand letter, again citing violations of the CC&Rs and requesting documentation of landscaping plans. McGimpsey responded claiming that he was in complete and full compliance with the CC&Rs due to a "waiver" provision, Article XI, Section 9, titled "Construction and Sales Period Exception."

IWHA filed a complaint alleging that McGimpsey had breached the CC&Rs with respect to landscaping and installation of a photosensitive pole light and mailbox. McGimpsey answered and denied any breach of the CC&Rs based upon the exception in Article XI, Section 9. IWHA filed a motion for summary judgment. The district court issued a memorandum decision and order, from which McGimpsey appeals, concluding that IWHA was entitled to summary judgment because McGimpsey had failed to complete the required landscaping set forth in Article IX, Section J, and that the exception contained in Article XI, Section 9 did not apply. The court ordered McGimpsey to comply immediately with the landscaping provision. The court also determined, however, that IWHA was not entitled to summary judgment for McGimpsey's alleged failure to install a mailbox as required by Article IX, Section M.¹ Subsequently, the court heard oral argument on McGimpsey's motion to alter or amend, which the court treated as a motion to reconsider, as well as IWHA's request for attorney fees and costs. The court issued a memorandum decision and order denying McGimpsey's motion to reconsider and granting attorney fees and costs to IWHA.

A judgment was entered on May 28, 2008, based upon the court's April 22, 2008, order, in favor of IWHA in the amount of $16,354.20, plus interest. On June 2, 2008, McGimpsey filed a notice of appeal seeking review of the summary judgment decision as well as the award of attorney fees and costs. Thereafter, the district court denied McGimpsey's second motion to alter or amend the judgment and entered a supplemental award of attorney fees for the litigation during the time period subsequent to the initial award of fees. McGimpsey filed a second amended notice of appeal on September 10, 2008, seeking relief from the district court's April 22, 2008, order denying his motion for reconsideration and awarding costs and attorney fees, the judgment entered upon that order on May 28, 2008, and the court's August 25, 2008, order granting supplemental costs and fees.

II. ANALYSIS

When reviewing an order for summary judgment, the standard of review for an appellate court is the same standard used by the district court ruling on the motion. Best Hill Coalition v. Halko, LLC, 144 Idaho 813, 816, 172 P.3d 1088, 1091 (2007). Summary judgment is proper when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Idaho Rule of Civil Procedure 56(c). If there is no genuine issue of material fact, only a question of law remains, over which we exercise free review. Watson v. Weick, 141 Idaho 500, 504, 112 P.3d 788, 792 (2005). "All disputed facts are to be construed liberally in favor of the non-moving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the non-moving party." Sprinkler Irrigation Co. v. John Deere Insurance Co., Inc., 139 Idaho 691, 695-96, 85 P.3d 667, 671-72 (2004). "Where the evidentiary facts are undisputed and the trial court will be the trier of fact, `esummary judgment is appropriate, despite the possibility of conflicting inferences because the court alone will be responsible for resolving the conflict between those inferences.'" Pinehaven Planning Board v. Brooks, 138 Idaho 826, 828, 70 P.3d 664, 666 (2003) (quoting Aberdeen-Springfield Canal Co. v. Peiper, 133 Idaho 82, 86, 982 P.2d 917, 921 (1999)).

A. Interpretation of CC&Rs

Idaho recognizes the validity of covenants that restrict the use of private property. Pinehaven Planning Board, 138 Idaho at 829, 70 P.3d at 667. When interpreting restrictive covenants, the court generally applies the rules of contract construction. Id. In applying the rules of contract construction, the court must first determine whether or not the covenants are ambiguous. Id. A covenant is ambiguous when it is capable of more than one reasonable interpretation on a given issue. Id. (citing Post v. Murphy, 125 Idaho 473, 475, 873 P.2d 118, 120 (1994)). Ambiguity is a question of law over which this Court exercises free review. Brown v. Perkins, 129 Idaho 189, 192, 923 P.2d 434, 437 (1996). In order to determine whether or not a covenant is ambiguous, the court must view the agreement as a whole. Id. at 193, 923 P.2d at 438. If a covenant is unambiguous, then the court must apply it as a matter of law. City of Chubbuck v. City of Pocatello, 127 Idaho 198, 201, 899 P.2d 411, 414 (1995). Where there is no ambiguity, there is no room for construction; the plain meaning governs. If, however, a covenant is ambiguous, its interpretation is a question of fact. Pinehaven Planning Board, 138 Idaho at 829, 70 P.3d at 667. Thus, where a covenant is ambiguous, summary judgment would be improper. Best Hill Coalition, 144 Idaho at 817, 172 P.3d at 1092.

McGimpsey contends on appeal that the district court incorrectly interpreted and applied Article IX, Section J (landscaping) and Article XI, Section 9 (course of construction exception) of the CC&Rs. The court held that the provisions are clear and unambiguous. We agree.²

Article IX, Section J provides:

Landscaping: Within thirty (30) days after occupancy of the Dwelling Unit located thereon, each Lot shall have rolled (sod) lawns, fully automatic underground sprinklers, two (2) deciduous trees at least two and one half inches (2 1/2") in diameter, three (3) conifer trees at least six (6) feet tall and twenty (20) shrubs or bushes as approved by the Architectural Control Committee. A landscape plan shall be submitted to and approved by the Architectural Control Committee prior to commencement of any landscaping work. During construction of the Dwelling Unit, there shall be installed in the front yard within ten feet (10') of the front boundary line, a photosensitive pole light designed to switch on automatically at sunset and off at sunrise with a minimum bulb power of 60 watts.

The district court determined that the undisputed evidence demonstrated that McGimpsey had occupied his residence beginning in November 2005 and that he had failed to complete the required landscaping within thirty days. As the court noted, McGimpsey does not question the existence or validity of the CC&Rs. Rather, he contends that Article XI, Section 9, operates to excuse compliance with the thirty-day requirement of Article IX, Section J.

Article XI, Section 9 states, in relevant part:

Construction and Sales Period Exception: During the course of construction of any permitted structures or improvements and during the initial sales period, the restrictions (including sign restrictions) contained in this Declaration or in any Supplemental Declaration shall be deemed waived to the extent necessary to permit such construction and the sale of all Dwelling Units; provided that, during the course of such construction and sales, nothing shall be done which will result in a violation of these restrictions upon completion of construction and sale.

The district court concluded that the exception in Section 9 did not apply, reasoning:

The exception created for the course of construction and the initial sales period does not apply once a dwelling unit is occupied. Thus, an owner/builder can postpone the landscaping requirements until the dwelling unit is occupied. This would prevent a situation...