Roell v. Boise City

• Decision Date: 09 June 1997
• Docket Number: I-X,No. 23002,D,23002
• Citation: 130 Idaho 199,938 P.2d 1237
• Parties: William ROELL, Plaintiff-Appellant, v. BOISE CITY, a Municipal Corporation, Scott Brown, an employee of Boise City, and John and Jane Doesefendants-Respondents. Boise, February 1997 Term
• Court: Idaho Supreme Court

Page 1237

938 P.2d 1237

130 Idaho 199

William ROELL, Plaintiff-Appellant, v. BOISE CITY, a Municipal Corporation, Scott Brown, an employee of Boise City, and John and Jane Does I-XV, Defendants-Respondents.

No. 23002.

Supreme Court of Idaho,

Boise, February 1997 Term.

June 9, 1997.

Harold Q. Noack, Jr., Boise, for plaintiff-appellant.

Margery W. Smith, Boise, for defendants-respondents.

TROUT, Chief Justice.

I. BACKGROUND AND PRIOR PROCEEDINGS

William Roell (Roell) owns two lots in Boise, one of which is an open lot located at 414 S. Garden and the other an improved lot at 419 S. Garden. Apparently, Roell spends most of the year in California and the remainder at the house on S. Garden. In 1991, Boise City (City) representatives first cited Roell for violations of various provisions of the Boise City Code, including the zoning code, the housing code, and the litter ordinance. Specifically, the City cited Roell for maintaining outdoor storage, maintaining an automobile wrecking yard, maintaining a junk yard, violating the litter ordinance Prior to the clean-up, several of the City's enforcement specialists and the contractor hired to perform the clean-up inspected the items in the yard at 419 S. Garden and determined which items were "litter" and "junk" that should be removed and which items should remain. The enforcement specialists instructed the contractor not to remove any titled vehicle, any motorcycles, a cushman scooter, a water craft, and several lawn mowers. On February 5, 1993, the City notified Roell of the pending clean-up and instructed Roell "to remove or dispose of the offending weeds, grasses, debris, garbage, litter, rubbish or refuse" and further urged Roell "to remove all items of value." Roell again did nothing, and, on April 27, 1993, the contractor removed from Roell's property those items that the City believed to have no value. Specifically, the contractor removed lawn mowers that were in pieces, bike parts, bike tires, a rusty oil barrel, more than sixty automobile tires, various construction materials, and broken tree limbs. All complete mowers and bicycles were left on the property.

                parking on unimproved surfaces, and allowing three or more horses on residential property. 1  Roell did nothing.  Throughout the following two years, City representatives visited the property at 419 S. Garden more than twenty times, leaving notices of violation and speaking at various times with Roell, Roell's son, and Roell's co-owner.  The City additionally obtained Roell's California address and sent notices of the violations to Roell at that address.  Roell steadfastly refused to clean up the property and, in fact, did not respond to the City's various notice requests.  Because of Roell's failure to respond to the citations, the City authorized a physical clean-up of the property located at 419 S. Garden in February 1993
                

Roell subsequently filed this action for trespass and conversion, alleging that the City had no right to enter his property to do the clean-up and that, in doing so, the City wrongfully had taken more than $10,000 of Roell's personal property. The City filed a motion for summary judgment. Despite the fact that there was at least some indication in the record that Roell maintained that the property had value, the district court concluded that the items removed were litter, that the City had authority to remove the litter if Roell refused, and that there was no basis for Roell's trespass and conversion actions. Roell now appeals that decision, arguing that a material issue of fact exists regarding whether the items removed from Roell's yard constituted "litter, junk, or garbage" within the definitions found in the Boise City Code and whether the City had authority to remove the items. We agree that a material issue of fact exists and conclude that summary judgment was improper.

II.

ISSUES ON APPEAL

A. Standard of Review

Our review of a district court's ruling on a motion for summary judgment is the same as that required of the district court when ruling on the motion. Friel v. Boise City Hous. Auth., 126 Idaho 484, 887 P.2d 29 (1994). Pursuant to I.R.C.P. 56(c), summary judgment must be entered 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 a judgment as a matter of law." I.R.C.P. 56(c). As when the motion initially is considered by the district court, this Court, on review, liberally construes the record in the light most favorable to the party opposing the motion and draws all reasonable inferences and conclusions in that party's favor. Farm Credit Bank of Spokane v. Stevenson, 125 Idaho 270, 869 P.2d 1365 (1994). If we determine that reasonable people could reach different conclusions or draw conflicting inferences from the evidence, we will deny the motion. Stevenson, 125 Idaho at 272, 869

                P.2d at 1367.   However, if the evidence reveals no disputed issues of material fact, only a question of law remains, and this Court exercises free review.  Id. at 272, 869 P.2d at 1367
                

B. Material Issues Of Fact Exist

Roell claims that a jury, not the City, should have determined whether the items on his property were litter, junk, or garbage within the meaning of the litter ordinance and whether his property was a nuisance within the meaning of the nuisance ordinance. We note that Roell did not present argument that...