MEMORANDUM DECISION AND

Filed: 07/23/2018 11:07:35 Fourth Judicial District, Ada County Christopher Rich, Clerk of the Court By: Deputy Clerk - Korsen, Janine IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OFADA EAGLE SPRINGS HOMEOWNERS Case No. CV01-17-1 1897 ASSOCIATION, NC., Plaintiff, vs. JAN RODINA, MEMORANDUM DECISION AND ORDER DENYING MOTION TO STRIKE AND MOTION TO RECONSIDER Defendant. On May 1, 2018, Defendant Jan Rodina filed a Motion to Reconsider the Court's Memorandum Decision and Order Granting Summary Judgment to Plaintiff Eagle Spring Homeowners Association, Inc. on the Complaint.1 Defendant filed a supporting memorandum and affidavits, but did not set the Motion for hearing? Plaintiff filed an opposition to the Motion for Reconsideration on May 9, 20183 and also filed a Motion and supporting memorandum to Strike Defendant s Evidentiary Submissions in Support of the Motion to Reconsider.4 Plaintiff did not request a hearing. On June 13, 2018, Defendant Rodina filed a reply memorandum on the Motion to Reconsider and an objection to Plaintiff s Motion to Strikefi Plaintiff replied on the Motion to Strike? 1 2 Rodina s Motion for Reconsideration, filed May 1, 2018. Brief in Support of Rodina s Motion for reconsideration ( Def's Memo ), filed May 1, 2018; Declaration of Jan Rodina in Support of Rodina's Motion for Reconsideration ( Rodina Dec. ), filed May 1, 2018; Affidavit of Gary L. Neal in Suppon of Rodina s Motion for Reconsideration ( Neal Aff."), filed May 1, 2018. 3 Plaintiff s Memorandum in Opposition to Rodina's Motion for Reconsideration ( Pl s Opposition ), field May 9, 2018. 4 Plaintiff s Motion to Strike Evidentiary Submissions in Support of Rodina s Motion for Reconsideration ( Pl s Memo to Strike"), filed May 9, 2018; Memorandum in Support of Plaintiffs Motion to Strike Evidentiary Submissions in Support 0f Rodina s Motion for Reconsideration ( Pl s Memo to Strike"), filed May 9, 2018. Reply Memorandum to Plaintiff s Memorandum in Opposition to Rodina s Motion for Reconsideration ("Reply Memo"), filed June 13, 2018. 6 Rodina s Objection to Plaintiff s Motion t0 Strike ( Def's Objection ), filed June 13, 2018. 7 Response to Rodina s Objection to Plaintiff's Motion to Strike, filed June 20, 2018. Page 1 of 12

On June 5, 2018, the Court set a briefing schedule on the motions stating that the Court would consider the matters fully submitted on June 21, 2018. The Court has considered all documents filed in support of an opposition to the motions and, based 0n the Court s scheduling order, finds the motions fully submitted for consideration. LEGAL STANDARD Motions for reconsideration are governed by.r.c.p. 11.2.8 When considering a motion for reconsideration, the trial court should take into account any new facts presented by the moving party that bear on the correctness of the interlocutory order. Id. at 344, 179 P.3d at 307. The burden is on the moving party to bring the trial court's attention to new facts and the trial court is not required to search the record to determine if there is any new information that might change the specification of facts deemed to be established. Id. However, a motion for reconsideration need not be supported by any new evidence or authority. Fragnella v. Petrovich, 153 Idaho 266, 276, 281 P.3d 103, 113 (2012), reh'g denied (Aug. l, 2012). The purpose of a motion for reconsideration is to reexamine [the correctness] of an order." lnt'l Real Estate Solutions, Inc. v. Arave, 157 Idaho 816, 340 P.3d 465, 468 (2014). The Idaho Supreme Court has stated, A decision of whether to grant or deny a motion for reconsideration made pursuant to Idaho Rule of Civil Procedure 11(a)(2)(B) is left to the sound discretion of the trial court. Van v. Portneuf Medical Center, 147 Idaho 552, 560, 212 P.3d 982, 990 (2009). Reconsideration is within the district court s discretion, as long as the district court (1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) reached its 8 The previous version was found in.r.c.p. 11(a)(2)(B) which read: A motion for reconsideration of any interlocutory orders of the trial court may be made at any time before the entry of final judgment but not later than fourteen (14) days after the entry of the final judgment. A motion for reconsideration of any order of the trial court made after entry of final judgment may be filed within fourteen (14) days from the entry of such order... There is no Idaho appellate caselaw interpreting this new language. However, based on the similarity between the current and former language, the Court determines that prior caselaw discussing.r.c.p. 11(a)(2)(B) still may be used to guide the interpretation of.r.c.p. 11.2(b). Page 2 0f 12

decision by an exercise of reason, the district court properly acted within its discretion. See Commercial Ventures, Inc. v. Rex M. & Lynn Lea Family Trust, 145 Idaho 208, 212, 177 P.3d 955, 959 (2008). When a district court decides a motion to reconsider, the district court must apply the same standard of review that the court applied when deciding the original order that is being reconsidered. Int l Real Estate Solutions, /nc., 157 Idaho at 819, 340 P.3d at 468. Thus, whatever standard applied to the underlying motion also applies to the motion for reconsideration. ANALYSIS Defendant requests the Court reconsider its decision at summary judgment. In addition to responsive briefing, Plaintiff raised evidentiary objections to Defendant s supporting affidavits in a Motion to Strike. Because the Court does not consider inadmissible evidence when reaching a decision on the merits of a motion, the Court must first address Plaintiff s evidentiary objections prior to reaching a decision on the Motion to Reconsider. A. Motion to Strike/Objection to Evidence Plaintiff asserts in the Motion to Strike that (1) portions of Jan Rodina s Declaration along with the photo attachments and (2) Paragraph 2 and ExhibitAto Gary Neal s Affidavit are inadmissible and should not be considered by the Court when reaching a determination on the merits of the motion. Rodina s objection does not contain any response related to the actual evidence Plaintiff wants the court to disregard. Rather, Defendant argues Plaintiff improperly cited Idaho Civil Rule 12(f) and that Idaho Rule of Civil Procedure 56 supports the consideration of the evidence. Rule 12(f) allows the Court to strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter... An affidavit in support of a motion to reconsider summary judgment is not a pleading and does not appear to contain evidence that is redundant, immaterial, impertinent, or scandalous so the Court will not strike all or part of the affidavit from the record based on Rule 12(f). However, the admissibility of evidence at summary judgment is governed by Rule 56 (See IDAHO R. CIV. PRO. 56(c)(4)). On a motion to reconsider, the Court applies the same standard Page 3 of 12

of review as the underlying order. Therefore, the Court applies the standard under Rule 56 related to affidavits to determine whether the evidence is admissible. The question of admissibility is a threshold question to be answered before applying the liberal construction and reasonable inferences rule to the admissible evidence. Hec/a Min. Co. v. Star Morning Min. Co., 122 Idaho 778, 784, 839 P.2d 1192, 1198 (1992) (citations omitted). Pursuant to Idaho Rule of Civil Procedure 56, A party may object that the material cited to support or dispute a fact is not admissible in evidence at the hearing." IDAHO R. Clv. PRO. 56(c)(2). To support a factual position for purposes of a motion for summary judgment, a party must support the assertion by[] citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions, interrogatory answers, or other materials." IDAHO R. CIV. PRO. 56(c)(1)(A). The Rule also sets forth the requirements for an affidavit to be used as evidence, stating: An affidavit used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. Sworn or certified copies of all papers or parts of papers referred to in an affidavit must be attached to or served with the affidavit... See also Hecla Min. Co. v. Star-Morning Min. Co., 122 Idaho 778, 786, 839 P.2d 1192, 1200 (1992) '(citing Gardner v. Evans, 110 Idaho 925, 930, 719 P.2d 1185, 1190, cert. denied, 479 U.S. 1007, 107 S.Ct. 645, 93 L.Ed.2d 701 (1986)) (concluding the rule requires admissibility and competence). The Court will consider all relevant evidence when reaching a decision. IDAHO R. EVID. 402. Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." IDAHO R. EVID. 401. Idaho Rule of Evidence 403 indicates when relevant evidence may be inadmissible. Rule 403 states: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. It is not this Court s practice to strike even inadmissible evidence from the record. Instead, the Court reviews the evidence, and if the challenged evidence is inadmissible, Page 4 of 12

the Court simply will not consider it further. The Court now evaluates each declaration and/or affidavit separately to determine whether the evidence contained therein should be considered when reaching a decision on the Motion to Reconsider. 1. Declaration of Jan Rodina Plaintiff asserts the following portion of Jan Rodina s Declaration should be stricken as inadmissible: (1) paragraph 3; (2) paragraph 4; and (3) the attached photographs. Paragraph 3 Plaintiff asserts paragraph 3 is inadmissible because it is not a statement offact, but rather a statement of opinion and/or a legal conclusion. The entirety of Paragraph 3 is as follows: The Association s enforcement action against me has not been made in good faith and is, believe, premised in part on my national origin, based upon derogatory statements made by one of Plaintiff s board members. In his Motion to Reconsider, Rodina argues that his application was denied in bad faith, although he does not cite to his affidavit regarding the alleged defamatory statement. Rodina's statement that [the] enforcement action against me has not been made in good faith... 1) is a legal conclusion requiring specialized knowledge for which a foundation has not been laid in the affidavit. Therefore, that statement is inadmissible and the Court will not consider it in its analysis on the motion to reconsider. See IDAHO R. EVID. 701 ( If a witness is not testifying as an expert, testimony in the form of an opinion 0r inference is limited to one that is:...not based on scientific, technical or other specialized knowledge ). Thus, the remaining issue is whether the Court will consider Rodina s reference to a derogatory statement based on his national origin that Rodina believes shows the board acted in bad faith. 'Plaintiff asserts Rodina failed to provide evidence that the derogatory statement about his national origin was made as part of his application process and that, without the inclusion 0f the alleged derogatory statement, Rodina is simply asking the Court to rely on his belief to find bad faith.9 In short, Plaintiff argues there is no evidence that the denial by the Association was connected to any alleged 9 Pl s Memo to Strike, pp. 2 3. Page 5 of 12

defamatory statement. No actual language of any derogatory statement was included in Rodina s Declaration. There is no evidence of who actually said it other than some unspecified Board Member, or when it was said, therefore, the Court has no context to evaluate the statement or any possible bad faith. Because Rodina failed to provide context and facts showing that the derogatory statement was made in connection to the denial of the fencing application, the Court determines it is irrelevant to any bad faith or waiver claims. Therefore, the Court does not consider Paragraph 3 when reaching a decision on the Motion to Reconsider. Paragraph 4 and Photo Attachments Plaintiff objects to the Courts consideration of the attached photographs and the Paragraph 4, which references them. In Paragraph 4, Rodina states, the enforcement 0f the covenants has and is not uniform. In this paragraph, Rodina asserts that he has observed and documented violations of the declarations that have not been enforced by the Plaintiff and that Plaintiff took the seven photographs attached t0 his declaration to show violations. Defendant claims that these violations were made by other members of the Association, including the HOA President. Plaintiff argues Paragraph 4 is irrelevant because the Declaration fails to identify when the photographs were taken, where they were taken, or what is pictured in them with any specificity. Plaintiff further argues there is no statement about how or why the depictions in the photographs are in violation 0f the Declaration. Thus, Plaintiff asserts Paragraph 4 is insufficient to lay foundation for admission of the photographs or to adequately authenticate the photographs. Whether there is a proper foundation upon which to admit evidence is a matter within the trial court's discretion." Harris, lnc., v. Foxho/Iow Constr. & Trucking, lnc., 151 Idaho 761, 770, 264 P.3d 400, 409 (201 1). Authentication 0r identification is required for the admission of documentary evidence. Harris, lnc., v. Foxhollow Constr. & Trucking, Inc., 151 Idaho 761, 770, (2011) (Citing IDAHO R. EVID. 901). To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." IDAHO R. EVID. 901(a). Page 6 of 12

The Court accepts Rodina s statement that he took these photographs in his neighborhood. However, the Court finds there is insufficient foundation in the record for the Court to consider the photographs as part of its determination on the pending motion. Rodina simply states, "attached hereto are seven photographs I have taken which show those violations by other members of the Association." The photographs or the affidavit do not specifically identify the address of the violation, when they were taken, or upon what authority or basis Rodina bases his belief that violations are present. The photographs, even when considering Paragraph 4 of the Rodina Declaration, do not show when or what violation is purportedly taking place in the pictures. Photographs are generally admissible where the witness who identifies them testifies that they correctly portray relevant scenes or objects. McKee v. Chase, 73 Idaho 491, 501, 253 P.2d 787, 792 (1953). However, Photographs introduced to prove an ongoing condition must be supported by an explanation showing that the conditions in the photograph actually represented an ongoing condition. See Shea v. Kevic Corp., 156 Idaho 540, 546, 328 P.3d 520, 526 (2014). Rodina s statement that he took the photographs with only his belief that they were of violations by other members of the Association does not provide admissible evidence that the Court can consider and evaluate. Without any factual evidence to support the assertion that the photographs are evidence of violations that were not enforced by the Association, or explanation of how these photos are or are not substantially similar to the work Rodina completed on his property, the photographs are irrelevant under.r.e. 402. Neal Affidavit Plaintiff argues Paragraph 2 and Exhibit A of the Affidavit of Gary L. Neal in support of Rodina s Motion for Reconsideration ( Neal Affidavit ) are irrelevant, and therefore inadmissible, and should not be considered by the Court. Paragraph 2 reads as follows: That attached hereto as Exhibit A is a true and correct copy of the Findings of Fact, Conclusions of Law and Order in the case captioned Eagle Springs Homeowners Association, nc., an Idaho Corporation vs. Nathan and Maly Ann Herren, husband and wife. The matter was litigated in Ada County Idaho as Case Number CVOCOS1909 [(Herren decision)]. Page 7 of 12

Plaintiff argues that the facts in the attached case do not mirror the facts in the underlying case and, therefore, the ruling is not relevant this matter. In contrast, Defendant argues that, similar to the ruling in the attached case, Plaintiff waived the right for injunctive relief by failing to uniformly enforce the covenants. Regardless of the parties arguments, whether the Court should consider a legal ruling in another court case is not an evidentiary issue. That is a district court case which is not binding on this Court. Still, the Defendant incorporated that case into his analysis on the motion to reconsider. This Court may still consider the analysis and another court s decision when evaluating the facts in this case, although the Court does not consider that case binding legal precedent. The Court considers the Herren decision as legal argument as part of legal standard and analysis, and will not disregard it as an evidentiary issue. B. Motion to Reconsider Defendant requests reconsideration of the Court s summary judgment decision dismissing the affirmative defenses of the breach of the covenant of good faith and fair dealing and waiver based upon the non uniform enforcement of the protective covenants? Defendant requests the Court find there is a genuine issue of material fact as to whether (1) Plaintiff waived its right to the relief requested in the Complaint and (2) Plaintiff acted in bad faith by denying Rodina s Second Approval Form based on the non uniform enforcement of the Declarations.". Affirmative Defenses of Laches and Estoppel. Defendant did not raise arguments regarding the Court's decision at summary judgment on the affirmative defenses of Iaches or estoppel. The Court incorporates its decision at summary judgment on these issues herein. Since reconsideration was not requested and no new arguments were raised, the Court will not reconsider its decision at summaryjudgment dismissing the affirmative defenses or laches and estoppel. ll. Affirmative Defense Of Waiver Defendant requests reconsideration of summary judgement on the affirmative defense of waiver based upon non uniform enforcement of the protective covenants. See Def s Memo, p. 4. See generally Def s Memo. Page 8 of 12

Defendant argues [i]t is reversible error to hold the Plaintiff can never waive approvals by approving construction of similar improvements in the neighborhood. In support of this argument, Defendant relies on the district court s decision in Eagle Springs Homeowners Association, Inc. V. Herren. Although Herren is not binding precedent on this Court, the Court reviews that analysis when evaluating the facts of this case. In Herren, the court found that the defendants violated the protective covenants of the Declaration but the Eagle Springs Homeowners Association Inc. had waived their right to injunctive relief by failing to uniformly enforce the convenants pursuant to 15.6 of the Declaration. That court found that the Association was not enforcing street parking uniformly. The Association allowed vehicles to be parked for up to 72 hours instead of following the clear and specific terms prohibiting street parking except in designated areas,. That Court found the defendants had violated the Declaration but the Board had failed to enforce the parking violation against all homeowners. In the present case, Rodina argues that the Association not uniformly enforcing street parking is the equivalent of not uniformly enforcing fencing variations. The Declarations contain clear and absolute terms regarding both street parking and fence requirements. However, this case is distinguishable from Herren because, in this case, the Architecture Committee has the ability to allow variances to specific provisions set forth in the Project Documents. In Herren, the Declarations had a blanket ban on street parking without any provision for variances but the Association deviated from that universal restriction. Therefore, the court in Herren did not waive the Association s ability to enforce parking violations. Instead, the Herren court required the Association to uniformly enforce the parking interpretation created by the Association. In contrast, the Declarations allow the Association to grant variances in fencing. The Declarations only allow improvements on subdivision properties including the Property at issue in this case as permitted by the Architectural Committee [and] approved in writing." Declarations 4.1. See also Declarations 9.1.2 Under the Declarations, the Architectural Committee is authorized to use its judgment to see that all Improvements conform and harmonize as to external design, quality and type of construction,... materials, color, location on the Property, height, grade and finished ground elevation,... landscaping, and all other aesthetic Page 9 of 12

considerations. Declarations 4.1. See also Declarations 9.1.50. In this case, Defendant had the ability obtain approval from the Architecture Committee for the variances he sought with his fence. The Court thoroughly analyzed Rodina s project and found it did not comply with the plain language 0f the Declarations. Therefore, Defendant has not shown a genuine issue of fact that the Association acted outside the scope of their authority under the Declarations to deny projects that do not conform to the Declarations after evaluating their impact on the neighborhood. In Rodina s allegation that the Restrictive Covenants of the Declaration have not been interpreted uniformly, he incorrectly asserts this Court found that the Association failed to uniformly enforce the covenants. For Clarification, this Court found there was not sufficient evidence to support a finding that the Committee had approved similar projects. Rodina has failed to present any additional evidence to support reconsideration of its finding that the record is insufficient to find a material issue offact remains that the Association approved substantially similar projects. Therefore, the Court finds there is no genuine issue of material fact that Plaintiff waived their right to injunctive relief by not uniformly enforcing the covenants of the Declaration. Therefore, the Court will not reconsider its decision dismissing the affirmative defense of waiver. l. Affirmative Defense of Good Faith and Fair Dealing Defendant asserts that construction of the Declarations that allows waiver "invites bad faith as it would allow [the Association] to approve the plans of friends and relatives while denying the plans of [other homeowners] to in a favored category? In the reply, Defendant states, Implied in the contract are the covenants of good faith and fair dealing. There is nothing fair about letting others violate the covenants while seeking enforcement against Rodina. 14 This seems to argue that Plaintiff breached the duty of good faith and fair dealing Rodina's fourth affirmative defense. However, Defendant Memo Granting Summary Judgment, p. 14. Def s Memo, p. 4. Defs Reply, p. 2. Page 10 0f 12

does not include any argument related t0 his claim of breach of the good faith and fair dealing, just that the construction of the declaration could result in bad faith dealings. At summary judgment on the affirmative defense of good faith and fair dealing, the Court found: Rodina has presented no evidence showing that a material issue of fact exists that the Board s actions were seif serving or in violation of the Declarations... Thus, the evidence before the Court is undisputed that the Board acted within its discretion under the Declarations and the unambiguous language of the Declarations permitted that discretion as a matter of1igaw. Therefore, the Court GRANTS summary judgment for the Plaintiff... On reconsideration, Defendant still does not include any argument or evidence that the Board's decision as to Rodina s Project was made in bad faith. On reconsideration, Rodina makes a policy argument that is not part of the pleadings in this case. Rodina s affirmative defense actually raised was about the Association s decision related to his Second Approval Form but no new evidence was presented at reconsideration to support this claim." Therefore, the Court will not reconsider its decision dismissing Rodina s affirmative defense 0f bad faith. CONCLUSION Based on the foregoing, Defendant s Motion to Reconsider, filed May 1, 2018, is DENIED. ORDERED Signed: 7/23/2018 10:54AM Lynn VNoLr/ton District Judge 15 Defendant does not argue or present evidence to support this claim, but Court has ruled that evidence needs to be presented regarding discretionary enforcement. See Adams v. Kimberley One Townhouse Owner's Ass n, Inc., 158 Idaho 770, 777, 352 P.3d 492, 499 (2015) (finding that absent any proof that the Board had engaged in conduct amounting to discretionary enforcement, it was illogical to assume the board would not equally restrict all owners. ). 1 17 Memorandum Decision and Order, p. 18. The Court notes it found Rodina's statements asserting bad faith in his declaration based on an alleged derogatory statement by a Board Member inadmissible. However, even if the Court had not found it inadmissible, Defendant did not cite this portion of his Declaration of make any related argument regarding the derogatory statement in his opening brief or reply brief. Thus, it appears Defendant is asking this Court to make any relevant arguments between the statement and bad faith for him. This Court declines to do so. Page 11 of 12

CERTIFICATE OF SERVICE l hereby certify that on JUIY 23, 2018, e mailed (served) a true and correct copy of the above document to the following: Christopher Tingey - cmt@vf Iaw.com Brindee Collins - idahob@vf-iaw.com Gary Neal, James Colborn reception@idahorealestatelaw.com Kaleena Bluemer Kaleena@angstman.com CHRISTOPHER D. RICH Clerk of the Court gmmw Deputy Clerk Signed: 7/23/2018 11:08AM Page 12 0f 12