Appellate Court Found Unclean Hands Even Though That Ground Was Not Entertained By Lower Court.
Trees, trees, trees! Boy, do they generate disputes between neighbors when views are impacted. The next case is extraordinary because the reviewing court reversed an attorney’s fees award, on its own, based on the equities—too many fees spent on a tree trimming dispute which should have been resolved had the two parties been true neighbors.
Katz v. Puda, Case No. D071644 (4th Dist., Div. 1 Aug. 24, 2018) (unpublished) was a dispute between neighbors, where there was no homeowner association, about obstruction of view by untrimmed trees. There was a recorded Declaration of Restrictions (DOR) requiring the trimming of trees, but the neighbors could not reach a resolution and submitted the dispute to a three-day bench trial, where the lower court found the DOR unenforceable and awarded the prevailing neighbor $42,542.50 in attorney’s fees.
The Fourth District, Division 1, on appeal, affirmed the lower court’s denial of tree trimming relief, but on a different ground because it did believe that the DOR was sufficiently clear as to be enforceable. However, it found that the whole dispute was such that both sides were guilty of unclean hands. The dispute should not have escalated to the point of consuming three days of a trial court’s time and attorney’s fees of over $40,000 by one side, with the potential for ongoing enforcement litigation in the courts. That resulted in the wholesale reversal of the fee award—with the appellate court obviously peeved by both parties’ failure to act in a neighborly manner.
BLOG OBSERVATION—The “winning” appellate attorney as far as obtaining a reversal of the fee award was Barry A. Ross, an Orange County-based attorney who does a lot of HOA work and who is an acquaintance of co-contributor Marc. Congratulations, Barry.