Roell v. Boise City, 25163.

• Decision Date: 21 April 2000
• Docket Number: No. 25163.,25163.
• Citation: 134 Idaho 214,999 P.2d 251
• Parties: William G. ROELL, Plaintiff-Appellant, v. BOISE CITY, a municipal corporation, and Scott Brown, an employee of Boise City, Defendants-Respondents.
• Court: Idaho Supreme Court

999 P.2d 251

134 Idaho 214

William G. ROELL, Plaintiff-Appellant, v. BOISE CITY, a municipal corporation, and Scott Brown, an employee of Boise City, Defendants-Respondents.

No. 25163.

Supreme Court of Idaho, Boise, February 2000 Term.

April 21, 2000.

Howard Q. Noack, Jr., and Angstman Law, Boise, for appellant. Thomas J. Angstman argued. Boise City Attorney's Office, Boise, for respondents. Margery W. Smith argued.

SCHROEDER, Justice.

Following remand from this Court in Roell v. Boise City, 130 Idaho 199, 938 P.2d 1237 (1997) (Roell I), the district court ordered Boise City to pay William Roell (Roell) $604.00, for the conversion of property. Roell appealed the district court's decision. This Court affirms the decision of the district court.

I. BACKGROUND AND PRIOR PROCEEDINGS

The background of this dispute is summarized in Roell I:

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, parking on unimproved surfaces, and allowing three or more horses on residential property. 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.

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 watercraft, or 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 bicycle were left on the property.

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.

The Court vacated the district court's grant of summary judgment and remanded the case to the district court for further proceedings. The district court conducted a hearing and ordered the City to pay $604.00 for certain property taken from Roell. Roell filed a motion for reconsideration, alleging that (1) the City had violated his civil rights pursuant to 42 U.S.C. § 1983 and, (2) that he had been deprived of his constitutionally protected due process rights. The district court denied the motion for reconsideration. Roell appealed to this Court.

II.

THE DISTRICT COURT PROPERLY LIMITED ITS CONSIDERATION TO THE ISSUES THAT WERE PLED PRIOR TO TRIAL.

Roell alleges that his due process rights were violated, and it was constitutionally impermissible for the City to take possession of items from his property. He seeks relief pursuant to Article I, § 14 of the Idaho Constitution and the 5th Amendment of the United States Constitution, and he makes claims pursuant to 42 U.S.C. § 1983. However, these claims were not set forth in the pleadings before the district court prior to trial.

The complaint filed prior to Roell I alleged trespass and conversion:

We note that Roell did not present argument that the City did not follow its own ordinances nor that the ordinances, themselves, are defective or unconstitutional. Thus, the only challenge on appeal is that the City did not have authority under the ordinances or state statutes to take the action that it did.

Roell I at 201, 938 P.2d 1239.

This Court remanded the case to the district court to determine whether property of value had been taken, and, if so, the amount to which Roell was entitled. No other issue existed at that time.

Roell filed a supplemental complaint following remand that made a claim of a due process violation. However, that complaint was dismissed by the district court. Roell has not appealed that decision. Consequently, the case went to trial on the limited question of whether the City had removed property of value. The claims asserted in the motion for reconsideration were not timely in the district court and, consequently, have not been preserved for appeal. Constitutional issues generally will not be considered if raised for the first time on appeal. State v. Fox, 130 Idaho 385, 387, 941 P.2d 357, 359 (1997). Failure to properly raise such an issue below is a waiver of the right to raise the issue on appeal.

III. STANDARD OF REVIEW

Review of the trial court's decision is limited to ascertaining whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law. Conley v. Whittlesey, 133 Idaho 265, 985 P.2d 1127 (1999). A trial court's findings of fact in a court tried case are liberally construed on appeal in favor of the judgment entered in view of the trial court's role as trier of fact. Id. It is the province of the trier of fact to weigh conflicting evidence and testimony and to judge the credibility of the witnesses. Id. If the findings of fact are based on substantial evidence, even if the evidence is conflicting, they will not be overturned on appeal. Id. However, this Court exercises free review over...