                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                     Docket No. 41178-2013

CHRISTINA J. GREENFIELD,          )
                                  )                          Coeur d’Alene, April 2015 Term
      Plaintiff-Appellant,        )
                                  )                          2015 Opinion No. 47
v.                                )
                                  )                          Filed: May 21, 2015
ERIC J. WURMLINGER and ROSALYN D. )
WURMLINGER, husband and wife,     )                          Stephen W. Kenyon, Clerk
                                  )
      Defendants-Respondents.     )
                                  )

       Appeal from the District Court of the First Judicial District of the State of Idaho,
       in and for Kootenai County. Hon. Lansing L. Haynes, District Judge.

       The judgment of the district court is affirmed.

       Christina J. Greenfield, Post Falls, argued in her own behalf.

       John C. Riseborough, Paine Hamblen LLP, Spokane, Washington, argued for
       respondents.




EISMANN, Justice.
       This is an appeal out of Kootenai County from a judgment holding that the defendants
were not violating the subdivision CC&R’s by operating a bed and breakfast from their home or
by having arborvitaes higher than six feet, and awarding them a judgment totaling $168,755.37
against the plaintiff for her conduct that caused them emotional distress. We affirm the judgment
of the district court and award attorney fees on appeal.
                                               I.
                                      Factual Background.

       This is an appeal from a judgment resolving a dispute between two neighbors. In 1994,
Eric and Rosalynn Wurmlinger (Defendants) built their home in the Park Wood Place
subdivision in Post Falls, Idaho, on a lot next to the home of Judy Richardson. The Defendants
operated a bed and breakfast from their home, and they planted a row of arborvitaes near the
property line between their lot and the lot owned by Ms. Richardson. In 2005, Christina
Greenfield (Plaintiff) purchased the Richardson property. The following year, Plaintiff had an
attorney write to the Defendants, stating that the operation of their bed and breakfast violated the
subdivision’s protective covenants, conditions, and restrictions (CC&R’s) and that the height of
the arborvitaes violated the height restriction on fences contained in the CC&R’s and the height
restriction on hedges contained in a city ordinance. Thereafter, the dispute between Plaintiff and
Defendants centered on the operation of Defendants’ bed and breakfast in their home and the
height of their arborvitaes near the boundary between the two properties.
         On April 12, 2006, Post Falls sent Mr. Wurmlinger a letter stating that the city had
received a complaint regarding a hedge on his property and that the city code required fences and
hedges within a side yard setback to be no higher than six feet. The letter quoted the relevant
ordinance and asked that the hedge be brought into compliance within thirty days. Defendants
trimmed their arborvitaes to bring them into compliance, and in June 2006 the city amended its
ordinance to remove the limitation on the height of hedges. Thereafter, Defendants allowed their
arborvitaes to grow taller than six feet.
       By 2010, the arborvitaes had grown to a height of ten to twelve feet. In April 2010,
Defendants returned from a vacation and discovered that about four to six feet had been cut from
ten of their arborvitaes. It is undisputed that Plaintiff had her agent cut the trees. Plaintiff was
charged criminally, but the charges were later dismissed.            Thereafter, Defendants began
experiencing vandalism to their property. Over a period of about eighteen months, there were
fourteen incidents of paint being splashed or poured on improvements to their property, with the
last incident occurring about four months before the jury trial in this case.
        On September 23, 2010, Plaintiff filed this action alleging four claims against
Defendants. First, Plaintiff asked for a declaratory judgment that Defendants were violating the
CC&R’s by operating the bed and breakfast, allowing their arborvitaes to grow higher than five
feet, and obstructing a pedestrian easement across their property. She sought an injunction
requiring Defendants to cease the alleged violations. Second, Plaintiff alleged that the plants and
trees on Defendants’ property that blocked her view of the Spokane River constituted a nuisance.
She sought damages and an order requiring Defendants to remove the offending foliage. Third,
Plaintiff alleged that Defendants had agreed to maintain their foliage along the common
boundary line at a height of six feet; that Plaintiff had the foliage trimmed to the agreed height


                                                  2
when Defendants breached that agreement; and that Defendants then contacted law enforcement
which resulted in Plaintiff being charged with a misdemeanor. As a result, Plaintiff claimed that
Defendants intentionally caused her emotional distress, for which she was entitled to recover
damages. Fourth, Plaintiff alleged that Defendants breached their agreement with her and made
false and defamatory statements about her to law enforcement, which negligently caused her
emotional distress. She requested an award of damages on that claim. Defendants filed a
counterclaim seeking damages for negligent or intentional infliction of emotional distress,
common law trespass, and timber trespass.
       Prior to trial, Plaintiff’s claim for intentional infliction of emotional distress was
dismissed upon Defendants’ motion for summary judgment. Plaintiff’s claims for nuisance and
negligent infliction of emotional distress and Defendants’ claims were tried to a jury. It returned
a special verdict finding that Plaintiff had failed to prove her claims of nuisance and negligent
infliction of emotional distress. The jury also found that Defendants had proved their claim of
negligent infliction of emotional distress, for which it awarded them $52,000 in damages, and
their claim of timber trespass, for which it awarded them $17,000 in damages. The jury also
found that Defendants had proved that Plaintiff committed a common law trespass, but
Defendants did not prove any damages for that claim.            Plaintiff’s action for a declaratory
judgment that Defendants were in violation of the CC&R’s was tried to the district court, and it
later entered a decision finding that Plaintiff had failed to prove that claim.
       The timber trespass damages were trebled to $51,000 pursuant to Idaho Code section 6-
202, and the court awarded Defendants court costs and a reasonable attorney fee totaling
$65,755.37. It entered a judgment against Plaintiff in the amount of $168,755.37, and she timely
appealed.


                                            II.
 Did the District Court Err in Finding that Defendants Were Not Violating the CC&R’s?

       Prior to the jury trial, the district court instructed the parties that it would determine the
issues regarding Defendants’ alleged violations of the CC&R’s, but would do so based upon the
evidence presented during the jury trial. After the jury returned its verdict, the court had a status
conference with the parties, and it informed them that they could submit closing arguments in




                                                  3
writing regarding the alleged violations of the CC&R’s. Once they had done so, the court filed
its decision finding that Plaintiff had failed to prove the alleged violations of the CC&R’s.
       With respect to the alleged violations of the CC&R’s, Plaintiff lists the following issues:
       a) Did the District Court err in its finding that the Respondents’ operation of their
       business, the River Cove Bed and Breakfast and wedding event facility did not
       violate the neighborhood CC&Rs?
       b) Did the District Court err in its finding that the Respondents’ operation of their
       business, the River Cove Bed and Breakfast and wedding event facility was “Not
       open to the public”?
       c) Did the District Court err in its finding that the Respondents’ operation of their
       business, the River Cove Bed and Breakfast and wedding event facility, qualifies
       as a “Home Occupation” and not a “Business” as so defined in the neighborhood
       CC&Rs?
       d) Did the District Court err in its finding that the Respondents’ lack of
       maintenance of the arborvitae hedge, which is located on or near the real property
       line that separates both properties, did not violate the neighborhood CC&Rs
       height restrictions and therefore refuse to enter an Injunction prohibiting the
       Respondents’ [sic] from allowing the arborvitae shrubs to exceed the height
       restrictions as set forth in the neighborhood CC&Rs?

       Operation of the bed and breakfast. The CC&R’s provide that no lot within the
subdivision can be used for any purpose except for a single family residence, but that “[h]ome
occupations of family members, which have no exterior visibility, are not prohibited provided
they are conducted totally within the residence, are not open to the public, have no employees
and do not generate extra vehicular traffic or street parking.”        Defendants’ house has six
bedrooms, three of which they rent for their bed and breakfast.
       Initially, Defendants had weddings at their home which attracted a significant number of
guests; they owned a boat and offered river cruises to those staying at their bed and breakfast;
and they once set up a tent trailer to accommodate a couple who wanted to attend an athletic
event in nearby Coeur d’Alene. In 2008, there was a wedding which resulted in nine cars
parking on the street. That prompted a call from the city, which licenses home occupation
businesses and requires that they comply with certain conditions. As a result, Defendants
changed their wedding policy, and the district court found that they “now offer small nuptial
exchange ceremonies that involve no more than eight individuals,” that the ceremonies are
conducted in the residence, that those in the wedding party must stay in the bed and breakfast,
and that any music is played very softly. The court found persuasive the testimony of neighbors
who never heard any excessive noise coming from Defendants’ property.

                                                 4
        Covenants that restrict the uses of land are valid and enforceable. Brown v. Perkins, 129
Idaho 189, 192, 923 P.2d 434, 437 (1996). However, “[b]ecause restrictive covenants are in
derogation of the common law right of a person to use land for all lawful purposes, covenants are
not to be construed to extend by implication any restriction not clearly expressed in the
covenants.” Id. Rather, “[a]ll doubts and ambiguities are to be resolved in favor of the free use
of land.” Id. Therefore, while clearly expressed restrictions will be upheld, “restrictions that are
not clearly expressed will be resolved in favor of the free use of land.” Id.
        The district court found that the bed and breakfast had no exterior visibility. There was
only a small plaque with the street address affixed to Defendants’ brick lamppost near their
driveway, and the photographs introduced into evidence showed what appeared to be a home, not
a commercial enterprise. The court found persuasive the testimony of a neighbor who lived
across the street and did not know that the Wurmlingers operated a bed and breakfast in their
home until Mr. Wurmlinger told him. The court found that the operation is conducted totally
within the residence and that guests walking outside to use the hot tub or gather on the patio are
normal activities for a residence. The court determined that the words “open to the public” in the
CC&R’s meant that members of the public could simply walk in the front door, off the street,
unannounced and without invitation, to ask for accommodations. Defendants’ bed and breakfast
does not accept walk-up clientele, but only accepts people with advance reservations arranged
over the telephone. It does not have street signs or directional signs inviting the public to walk in
and obtain a room. The court found that the Wurmlingers had no employees, which fact was
undisputed. Finally, the court found that since 2008 the bed and breakfast has not generated
extra vehicular traffic or street parking.
        In her brief, Plaintiff cites testimony concerning the operation of the bed and breakfast
prior to 2008. In the declaratory judgment claim in her complaint filed on September 23, 2010,
she alleged that “[t]he Defendants’ operation of the Bed and Breakfast is [present tense] in
violation of the CC&R’s”; she requested an order “declaring that the Defendants’ operation of
the Bed and Breakfast in Parkwood Place is [present tense] a violation of the CC&R’s”; and she
sought “an Injunction prohibiting the Defendant’s [sic] from operating the Bed and Breakfast, or
any similar business, in Parkwood Place.” (Emphasis added.) The district court found that at the
time the complaint was filed, the operation of the bed and breakfast was not in violation of the
CC&R’s. Plaintiff also argues that Defendants repeatedly referred to the bed and breakfast as a


                                                 5
“business” and the evidence showed it was profitable. A “home occupation” by definition would
be a business, 1 and profitable home occupations are not excluded by the CC&R’s.
           Plaintiff also asserts that “a ‘Home Occupation’ [is] not a ‘Business’ as so defined in the
neighborhood CC&Rs,” but she does not cite to any definition of “business” in the CC&R’s.
However, the provision regarding home occupations prohibits “any trade or business of any
kind,” and then excludes from that prohibition “[h]ome occupations of family members” that
comply with certain conditions. 2               In context, that would certainly indicate that a home
occupation would be a trade or business.
           Arborvitaes. The CC&R’s provide that “[n]o lot, lots or parcels, shall ever be enclosed
or fenced by any fence or structure exceeding five (5) feet in height.” Based upon the testimony
of a surveyor, the district court found that Defendants have thirty-three arborvitaes on their
property and that Plaintiff has two on hers.                    Plaintiff contended that the arborvitaes on
Defendants’ property constituted a fence under the CC&R’s. The district court found that the
relevant provision in the CC&R’s was unambiguous and that it did not provide that arborvitae or
any other trees or landscaping constituted a fence. The restriction as to the height of fences was
in a section of the CC&R’s titled “Building Restrictions” and in a subsection titled “Building
Conditions,” 3 and in the context there was nothing indicating that the word “fence” included
foliage.


1
  The word “occupation” in this context means “a person’s usual or principal work or business, especially as a
means of earning a living; vocation.” Dictionary.com. Dictionary.com Unabridged. Random House, Inc.
http://dictionary.reference.com/browse/occupation (accessed: April 30, 2015).
2
    The relevant provision in the CC&R’s is as follows:
           1.       Residential Purposes: No lot shall be used except for single family residential purposes
           and amenities. . . . .
                    a) No grantee under any conveyance, owner, tenant, or other person shall at any time
           conduct, or permit to be conducted on any lot, any trade or business of any kind, either
           commercial or religious, including, but not limited to, day care, school, nursery, out-patient,
           treatment, rehabilitation or recovery facilities, nor shall said premises be used for any other
           purpose whatsoever except for the purpose of a private dwelling or residence for one family.
           Home occupations of family members, which have no exterior visibility, are not prohibited
           provided they are conducted totally within the residence, are not open to the public, have no
           employees and do not generate extra vehicular traffic or street parking.
3
    The provision in the CC&R’s is as follows:
           2.       Building Conditions: No building shall be erected except one detached single-family
           dwelling on each lot which does not exceed two and one half stories in height, together with a
           private attached garage for not less than two cars. No dwelling, building or other structure shall be
           moved on to any lot; new construction being required. No tent, trailer, mobile home, boat or other

                                                            6
       “A trial court’s findings of fact will not be set aside on appeal unless they are clearly
erroneous.” Camp v. East Fork Ditch Co., Ltd., 137 Idaho 850, 856, 55 P.3d 304, 310 (2002). In
applying that principle, the appellate court cannot reweigh the evidence, judge the credibility of
the witnesses, or substitute its view of the facts for that of the trial court. Argosy Trust ex rel.
Andrews v. Wininger, 141 Idaho 570, 572, 114 P.3d 128, 130 (2005). It is the responsibility of
the trial court to judge the credibility of witnesses and weigh conflicting evidence. Bream v.
Benscoter, 139 Idaho 364, 367, 79 P.3d 723, 726 (2003). The appellate court’s role is simply to
determine whether there is evidence in the record that a reasonable trier of fact could accept and
rely upon in making the factual finding that is challenged on appeal. Miller v. Callear, 140
Idaho 213, 216, 91 P.3d 1117, 1120 (2004).
       Plaintiff does not argue in her brief that the district court’s findings are clearly erroneous.
She argues that Defendants called their bed and breakfast a “business” and that such business
“creates excessive traffic, constant noise, and intrusions from unwelcome patrons who stray onto
adjacent properties, block driveways, mail boxes, and causes street congestion.” She cites
nothing in the record supporting her accusations. “This Court will not search the record for
error. We do not presume error on appeal; the party alleging error has the burden of showing it
in the record.” Id. at 218, 91 P.3d at 1122 (citation omitted). Plaintiff has failed to show that the
district court erred in finding that she had failed to prove that Defendants were violating the
CC&R’s.


                                            III.
 Did the District Court Err in Finding that Defendants’ Planting of Trees and Shrubs that
            Block Plaintiff’s View of the River Did Not Constitute a Nuisance?

       In her complaint, Plaintiff alleged that “[t]he Defendants have planted shrubs and trees
upon their real property which block the Plaintiff’s view of the Spokane River and which
infringe upon the Plaintiff’s real property,” and she alleged that such conduct constituted a
nuisance. Plaintiff asserts various issues on appeal that can be grouped as asserting that the




       vehicle or structure shall be used or allowed for human habitation on a temporary or permanent
       basis on any lot at any time. No lot, lots or parcels, shall ever be enclosed or fenced by any fence
       or structure exceeding five (5) feet in height. Approval from the Architectural Control Committee
       shall be required for all fences.

                                                        7
district court erred in finding that Defendants’ planting of trees and shrubs that block her view of
the river did not constitute a nuisance. She lists as issues the following:
        o) Did the District Court err in its finding that Respondents’ [sic] did not
        purposely and or negligently plant large trees and or shrubs to intentionally block
        Appellant’s view of the Spokane River, which infringes upon Appellant’s real
        property, obstructs her free use of property and interferes with her comfortable
        enjoyment of life and property?
        p) Did the District Court err in its finding that the large trees and or shrubs that
        were planted intentionally to block Appellant’s granted view of the Spokane
        River, which infringes upon Appellant’s real property, obstructs her free use of
        property, and interferes with her comfortable enjoyment of life and property,
        should be abated by the Respondents’ [sic] and ordered an injunction prohibiting
        future obstructions of Appellant’s view of the Spokane River, and not interfere
        with her comfortable enjoyment of life and property?
        ....
        z) Did the District Court Honorable Judge Lansing Haynes err by failure to Order
        an Abatement requiring the Respondents’ [sic] to remove any and all shrubs and
        trees located at or near the parties [sic] common property line which obstruct the
        Appellant’s free use of property, and interferes with the Appellant’s comfortable
        enjoyment of life and property?
        aa) Did the District Court Honorable Judge Lansing Haynes err by failure to Enter
        an Injunction prohibiting the Respondents’ [sic] from planting any trees, shrubs,
        or other vegetation which blocks the Appellant’s view of the Spokane River or
        otherwise obstructs the Appellant’s free use of property, and interferes with the
        Appellant’s comfortable enjoyment of life and property?

        The district court did not make any findings regarding whether Defendants’ actions
constituted a nuisance. That issue was submitted to the jury for its decision. On the special
verdict form, the jury was asked, “Did the defendants’ maintenance of the arborvitae and/or
operation of the bed and breakfast constitute a nuisance?” The jury unanimously answered that
question, “No.”
        With respect to Plaintiff’s nuisance claim, the court only ruled on her motion for a
judgment notwithstanding the verdict. One of the issues she raised in that motion was that the
jury should have determined that Defendants maliciously planted the shrubs and trees for the
purpose of annoying her and blocking her view. In denying the motions, the district court ruled
that “[t]he jury was presented with testimony as to the reasons for planting the arborvitae and
other trees” and that “there was substantial and competent evidence to support the jury’s verdict
in this matter.”




                                                  8
       On appeal, Plaintiff argues that after she had an attorney write to Defendants about the
height of their arborvitaes, Defendants began planting other bushes and trees on their property
out of spite in order to block Plaintiff’s view of the river. She also contends that Defendants
agreed to keep their arborvitaes trimmed to a height of six feet, but allowed them to grow higher
out of spite. She argues that Defendants’ actions in planting the bushes and trees had no
beneficial use to them and that their failure to keep them trimmed to a height of six feet in
violation of Mr. Wurmlinger’s agreement shows that the plantings were done solely to annoy
her.
       Plaintiff’s contention that Defendants agreed to keep the arborvitae trimmed to a height
of six feet is based upon their response to a letter sent them by Plaintiff’s attorney. On April 12,
2006, Post Falls sent Mr. Wurmlinger a letter stating that the city had received a complaint
regarding a hedge on his property and that the city code required fences and hedges within a side
yard setback to be no higher than six feet. Defendants trimmed the arborvitae, and by a letter
dated May 8, 2006, the city responded that the pruning satisfied the city. The letter also stated,
“It is important that you maintain this height.” On May 10, 2006, Plaintiff’s attorney sent
Defendants a letter stating, among other things, that the height of the arborvitae violated the
CC&R’s restriction on the height of side fences. On May 17, 2006, Mr. Wurmlinger responded
in writing to the attorney’s letter and stated with respect to the height of the arborvitae as
follows:
               In point 4, it cites that we have large shrubs which are higher than 5 ft.
       The C.C. & R states that fences and enclosing structures not be higher than 5 ft.
       Our shrubbery and trees are living plants and do not fall in that category of the
       C.C. & R’s. We recently pruned all of our shrubs which enhanced the view from
       our neighbors property to the North. The City of Post Falls was satisfied by my
       pruning. We certainly will control and maintain the shrubbery to its current level
       (See attached letter from the City of Post Falls regarding pruning and shrubbery).

       Plaintiff called Mr. Wurmlinger as her first witness, and during her questioning of him
she asked with respect to the letter, “Did you agree to maintain the shrubs at a 6-foot height in a
letter dated May 17th, 2006?” He answered, “I agreed to do what the city told me I had to do at
the time.” The following month, the city amended its ordinance so that the height restriction no
longer applied to hedges.
       In denying Plaintiff’s motion for a judgment notwithstanding the verdict, the district
court did not decide whether or not Defendants’ actions constituted a nuisance. “[T]he court

                                                 9
cannot weigh the evidence when ruling on a motion for judgment notwithstanding the verdict.”
Phillips v. Erhart, 151 Idaho 100, 106, 254 P.3d 1, 7 (2011). The court merely found that there
was substantial and competent evidence to support the jury’s verdict. When reviewing a trial
court’s denial of a motion for a judgment notwithstanding the verdict, “we determine whether
there was sufficient evidence to justify submitting the claim to the jury, viewing as true all
adverse evidence and drawing every legitimate inference in favor of the party opposing the
motion for a directed verdict.” Todd v. Sullivan Constr. LLC, 146 Idaho 118, 124, 191 P.3d 196,
202 (2008). The jury could have reasonably found that Defendants did not plant the bushes and
trees for the purpose of maliciously annoying Plaintiff by blocking her view of the river. The
district court did not err in holding that the evidence was of a sufficient quantity and probative
value that reasonable minds could conclude that the verdict of the jury was proper.


                                             IV.
  Did the District Court Err in Failing to Find that Defendants’ Actions Caused Plaintiff
                                    Emotional Distress?

        In her complaint, Plaintiff alleged that Defendants negligently caused her emotional
distress.   The jury was asked, “Did the defendants’ maintenance of the arborvitae and/or
operation of the bed and breakfast, and/or defendants’ alleged defamatory statements to
neighbors or police negligently inflict emotional distress on plaintiff?,” and the jury unanimously
answered that question, “No.” Plaintiff states as an issue on appeal:
        l) Did the District Court err in its finding that the Respondents’ violation of the
        neighborhood CC&Rs by operating a business, the River Cove Bed and Breakfast
        and wedding event facility, and the arrest of the Appellant after trimming said
        [sic] arborvitae hedge, along with constant harassment, including many false
        allegations of crimes reported by the Respondents, did not cause extreme
        negligent emotional distress on the Appellant?

        The district court did not make any such finding, and Plaintiff did not raise this issue as
part of her motion to set aside the judgment or to grant her a judgment notwithstanding the
verdict. Therefore, there was no ruling by the district court on this issue. It was the jury who
concluded that Plaintiff had failed to prove her claim of negligent infliction of emotional distress.
        In her brief on appeal, Plaintiff recounts her version of the evidence, but she does not
contend that there was insufficient evidence to support the jury’s verdict. It was up to the jury to
decide what witnesses were credible, the weight to be given their testimony, and the reasonable

                                                 10
inferences to be drawn from the evidence. State v. Thomas, 157 Idaho 916, 919, 342 P.3d 628,
631 (2015). “The presumption is in favor of an impartial and considerate action on the part of a
jury, and we must be convinced affirmatively before we could, by any rule of law, be permitted
to question such presumption.” Cox v. Northwestern Stage Co., 1 Idaho 376, 386 (Terr. Sup. Ct.
1871). There was conflicting evidence in this case, and it was up to the jury to decide the
credibility of the witnesses and the weight to be given their testimony. Plaintiff has not pointed
to anything indicting that the members of the jury did not faithfully perform their duty when they
concluded that Plaintiff had failed to prove her claim of negligent infliction of emotional distress.


                                                V.
    Did the District Court Err in Finding that Plaintiff Committed a Timber Trespass and in
                                      Awarding Damages?

           Idaho Code section 6-202 sets forth a cause of action for timber trespass. 4 With respect
to this cause of action, the district court instructed the jury as follows:
                                       INSTRUCTION NO. 18
                   On the defendants’ claim that plaintiff damaged their trees and arborvitae,
           the defendants have the burden of proof on each of the following propositions:
                   1. That defendants owned certain trees and/or arborvitae; and
                   2. That the trees and/or arborvitae were located on the
                   defendants’ property; and
                   3. That plaintiff damaged or destroyed said trees and/or
                   arborvitae; and
                   4. That defendants have sustained damages.
                 You will be asked the following question on the jury verdict form:
            Did plaintiff damage or destroy defendants’ arborvitae and/or spruce tree?


4
    Idaho Code section 6-202 states as follows:

                     Any person who, without permission of the owner, or the owner’s agent, willfully and
           intentionally enters upon the real property of another person which property is posted with “No
           Trespassing” signs or other notices of like meaning, spaced at intervals of not less than one (1)
           notice per six hundred sixty (660) feet along such real property; or who willfully and intentionally
           cuts down or carries off any wood or underwood, tree or timber, or girdles, or otherwise willfully
           and intentionally injures any tree or timber on the land of another person, or on the street or
           highway in front of any person’s house, village, or city lot, or cultivated grounds; or on the
           commons or public grounds of or in any city or town, or on the street or highway in front thereof,
           without lawful authority, is liable to the owner of such land, or to such city or town, for treble the
           amount of damages which may be assessed therefor or fifty dollars ($50.00), plus a reasonable
           attorney’s fee which shall be taxed as costs, in any civil action brought to enforce the terms of this
           act if the plaintiff prevails.



                                                            11
               If you find from your consideration of all the evidence that each of these
       propositions has been proved, then you should answer this question “Yes.” If you
       find from your consideration of all the evidence that any of these propositions has
       not been proved, then you should answer this question “No.”

                                    INSTRUCTION NO. 19
              Any person who willfully, intentionally, and without permission of the
       owner, girdles or otherwise injures any tree on the land of another person, without
       lawful authority, is liable to the owner of such land for the amount of actual
       damages which may be assessed therefor.

                                    INSTRUCTION NO. 20
               If the jury decides that the defendants are entitled to recover from the
       plaintiff on their counterclaim for damage to the defendants’ trees and/or
       arborvitae, the jury must determine the amount of money that will reasonably and
       fairly compensate the defendants for any actual damages proved to be
       proximately caused by the plaintiffs actions.
               The elements of actual damage to defendants’ trees and arborvitae are:
               The difference between the fair market value of the tree or the arborvitae
       immediately before the occurrence, and its fair market value without repair after
       the occurrence and, the loss of utility or contribution of that tree or arborvitae to
       defendants’ real property.

                                    INSTRUCTION NO. 21
               The term “fair market value” means the cash price at which a willing
       seller would sell and a willing buyer would buy the subject property, in an open
       marketplace free of restraints, taking into account the highest and most profitable
       use of the property.
               It presumes that the seller is desirous of selling, but is under no
       compulsion to do so, and that the buyer is desirous of buying, but is under no
       compulsion to do so.
               It presumes that both parties are fully informed, knowledgeable and aware
       of all relevant market conditions and of the highest and best use potential of the
       property, and are basing their decisions accordingly.

       On the special verdict form, the jury unanimously answered “Yes” to the questions:
“Based upon the evidence presented to you, do you find that the arborvitae are trees?” and “Did
defendants prove that plaintiff committed timber trespass?” The jury assessed damages for the
timber trespass in the sum of $17,000.
       Plaintiff lists various issues asserting that the district court erred in finding that she
committed a timber trespass and in awarding damages. She lists the issues as follows:
       f) Did the District Court err in its finding that the arborvitae shrubs that form a
       hedge, as mentioned above, are to be considered trees?


                                                12
       ....
       g) Did the District Court err in its finding that the arborvitae hedge is solely
       located on the Respondents’ property when a mutual ownership was evident on
       both surveys?
       h) Did the District Court err in its finding that Appellant should be accused and
       assessed damages for intentionally and willfully committed Timber Trespass to
       the property of Respondents wherein I.C. § 6-202 allowing for treble damages
       would have applied when a dual ownership of the arborvitae (shrub) hedge, which
       is located on or near the adjoining property line of both the Appellant and
       Respondents, is evident?
       i) Did the District Court err in its finding that the Appellant should be assessed
       “Timber” damages for property (arborvitae hedge) that she equally owns, after the
       Appellant trimmed said arborvitae hedge to the agreed upon height, which was
       previously cut four years prior to the same height by the Respondent at which
       time it was neither damaged or destroyed?
       j) Did the District Court err in its finding that the Appellant has intentionally,
       willfully or negligently damaged and/or destroyed the ten (10) arborvitae shrubs
       in question?
       ....
       n) Did the District Court err in its finding that the Respondents’ Survey was
       properly signed and introduced into evidence?
       ....
       r) Did the District Court err in allowing excessive awards of damages and
       attorney fees to the Respondents’ [sic]?
       s) Did the District Court err in determining whether damages were correctly
       assessed in accordance with the finding for and the allowable amount of awards
       of damages and attorney fees to the Respondents?

       The district court did not make any findings regarding whether Plaintiff committed a
timber trespass or the amount of damages. Those issues were submitted to the jury for its
decision. The court only ruled upon Plaintiff’s motion to set aside the judgment under Rule
60(b) for fraud upon the court because Defendants’ counsel submitted a survey into evidence that
the surveyor had not signed and dated. She also argued that absent such survey, the evidence
would show that some of the arborvitae were on her property.
       The district court held that Idaho Code section 54-1215(1)(b), which requires a surveyor
to seal, sign, and date all surveys presented to a client, was not an evidentiary rule of
admissibility. The court stated that the jury heard testimony about the methods used by the
surveyor and how his measurements, recordings, and findings were accurately transferred to the
survey. The court concluded that offering the survey into evidence did not constitute fraud upon
the court. The court also held that there was substantial and competent, albeit conflicting,



                                              13
evidence presented to the jury as to the location of the arborvitaes. Plaintiff testified that she had
her brother-in-law cut the arborvitaes down to a height of six feet. The court therefore denied the
motion to set aside the judgment for fraud upon the court based upon offering the survey into
evidence and her motion for a judgment notwithstanding the verdict based upon Plaintiff’s
contention that at least some of the arborvitaes were on her property.
       Defendants presented expert testimony that the difference between a shrub and a tree is
that a shrub is capable of growing to a height of only fifteen feet, while a tree is capable of
growing taller and that the species of arborvitaes planted by Defendants was capable of growing
to a height of twenty feet. Defendants presented expert testimony of a surveyor showing where
the arborvitaes were in relation to the parties’ common boundary line, and Plaintiff presented
expert testimony as to her contention in that regard. The district court did not err in holding that
the evidence was of a sufficient quantity and probative value that reasonable minds could
conclude that the verdict finding Plaintiff liable for timber damages was proper.
       Plaintiff contends that the district court erred in assessing damages, but it did not do so.
The jury determined damages pursuant to the evidence and jury instructions to which Plaintiff
did not object. The issue of whether the damages were excessive was never presented to the
district court. Therefore, there is no basis for concluding that the district court erred in allowing
an allegedly excessive award of damages. This Court will not review an alleged error by the trial
court where the record does not show that the court ever ruled on the issue. Ada Cnty. Highway
Dist. v. Total Success Invs., LLC, 145 Idaho 360, 368–69, 179 P.3d 323, 331–32 (2008).


                                             VI.
    Did the District Court Err in Submitting to the Jury Defendants’ Claim of Negligent
                              Infliction of Emotional Distress?

       In their initial counterclaim, Defendants alleged the claims of intentional infliction of
emotional distress and negligent infliction of emotional distress. Later, at Defendants’ request,
the district court entered an order dismissing with prejudice Defendants’ counterclaim of
negligent infliction of emotional distress. Defendants later changed attorneys, and they filed an
amended answer and counterclaim in which they alleged a claim of intentional infliction of
emotion distress, but not negligent infliction of emotional distress.
       Plaintiff alleges as an issue on appeal,



                                                  14
       k) Did the District Court Honorable Judge Lansing Haynes err in his finding that
       the Respondents’ asserted legal claims for “Negligent Infliction of Emotional
       Distress” during the trial were properly disclosed, when in fact, the District Court
       Honorable Judge Lansing Haynes had previously dismissed the Respondents’
       original claim of Negligent Infliction of Emotional Distress on March 22, 2011
       with Prejudice?

       The district court held a pretrial conference one week before trial.          Prior to that
conference, the parties filed written statements of the issues to be tried. In their statement,
Defendants alleged that Plaintiff “harassed them with unfounded complaints to the police,
harassed their guests, trespassed on their property, and made defamatory comments about them
to others.” During the pretrial conference, the court asked Defendants’ counsel whether the
claim that Plaintiff harassed Defendants was an infliction of emotional distress claim.
Defendants’ counsel stated that it was, and the court asked, “Is this an intentional and/or
negligent infliction?” Defendants’ counsel answered, “We propose instructions on both.” The
court then asked Plaintiff if there was any record she wanted to make, and she responded, “No,
your Honor.” The court then stated that Defendants’ counterclaims were intentional and/or
negligent infliction of emotional distress, common law trespass, and timber trespass. The court
again asked Plaintiff if she wanted to make any record on that, and she again stated that she did
not. The court then stated: “So with those clarifications, it looks like we have some consensus
on what is the existence of the defendants’ claims. Anything about the claims or issues that the
Court’s brought up to this point that plaintiff would like to get clarified or remark about?”
Plaintiff responded, “No, your Honor.”
       At the conclusion of the presentation of evidence at the trial, the district court gave the
parties its proposed jury instructions. They included an instruction that addressed “defendants’
counterclaim of negligent infliction of emotional distress against the plaintiff” and set forth the
elements that Defendants must prove to recover on that claim. During the jury instruction
conference, the court asked, “Does the plaintiff have any objection to [the] Court’s proposed jury
instructions or special verdict form or the failure to give any of plaintiff’s proposed
instructions?” and told Plaintiff, “Now is the time to make those objections.”            Plaintiff
responded, “No, your Honor.”
       The order dismissing with prejudice Defendants’ counterclaim of negligent infliction of
emotional distress was not a final judgment because it did not resolve all claims in this case and



                                                15
was not certified as final pursuant to Rule 54(a)(1) of the Idaho Rules of Civil Procedure.
I.R.C.P. 54(a) (2010).      It was simply an interlocutory order that could later be modified,
amended, or reversed. In re Doe, 156 Idaho 103, 107, 320 P.3d 1262, 1266 (2014). Although
Defendants’ amended counterclaim did not allege a claim for negligent infliction of emotional
distress, “[w]hen issues not raised by the pleading are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the pleadings.” I.R.C.P.
15(b).    By failing to object at the pretrial conference that Defendants’ claim of negligent
infliction of emotional distress was to be tried to the jury, Plaintiff consented that such issue
would be tried. The district court did not err in submitting that claim to the jury.


                                               VII.
                        Did the District Court Err in Instructing the Jury?

         Plaintiff contends that the district court erred in instructing the jury. She states as issues
on appeal:
         m) Did the District Court err in its finding that the jury instructions and the
         special verdict form were properly amended and submitted within the time frame
         as specified under I.R.C.P. 51(a)(l)?
         y) Did the District Court Honorable Judge Lansing Haynes err by giving the jury
         improper instructions?

         At the conclusion of the presentation of evidence at the trial, the district court gave the
parties its proposed jury instructions. During the jury instruction conference, the court asked,
“Does the plaintiff have any objection to [the] Court’s proposed jury instructions or special
verdict form or the failure to give any of plaintiff’s proposed instructions?” and told Plaintiff,
“Now is the time to make those objections.” Plaintiff responded, “No, your Honor.” By failing
to object, Plaintiff cannot raise as an issue on appeal the court giving or failing to give any jury
instruction. Saint Alphonsus Diversified Care, Inc. v. MRI Assocs., LLP, 148 Idaho 479, 491,
224 P.3d 1068, 1080 (2009).


                                              VIII.
                         Was Plaintiff Denied Her Constitutional Rights?

         Plaintiff lists as issues on appeal the following:




                                                   16
          q) Did the District Court err in denying Appellant’s invocation of the Fourteenth
          Amendment right to Due Process, which prohibits state and local governments
          from depriving persons of life, liberty, or property without certain steps being
          taken to ensure fairness and to recognize her substantive and procedural rights?
          t) Did the District Court err by depriving Appellant her rights by violating 42
          USC § 1983—Civil action for deprivation of rights and due process?

          Plaintiff contends that she was denied due process of law because:
          1.) Judge Haynes allowed Appellants [sic] attorney to quit within eight (8) weeks
          prior to trial, leaving Appellant vulnerable for bias and prejudice. Appellant
          informed the judge that trial deadlines had passed and that she could not afford
          another attorney; 2.) Judge Haynes should have insisted on a site evaluation so the
          jury could visually see the condition of the arborvitae, the property layout of the
          homes and proximity of where the river, park, and homes were located in
          relationship to one another; 3.) Judge Haynes did not allow Appellants [sic]
          timely disclosed witness Leonard Benes to testify on behalf of Appellant, a
          crucial factor to the Appellants [sic] defense [citation to record]; 4.) Judge Haynes
          allowed the Respondents to submit evidence at trial that was never disclosed to
          Appellant and was in violation of the November 8, 2012, deadline per Court
          Order [citation to record]; 5.) Judge Haynes allowed the Jury Instructions to be
          altered from their original state as quoted within the Idaho Codes; 6.) Judge
          Haynes did not grant Injunctions to Appellant for Abatement and PWP CC&R
          violations as requested.

(Citations to record omitted.)
          Due process requires the opportunity upon reasonable notice for a fair hearing before an
impartial tribunal. Miller v. St. Alphonsus Reg’l Med. Ctr., Inc., 139 Idaho 825, 835, 87 P.3d
934, 944 (2004). Plaintiff’s alleged due process violations contain only two citations to the
record.
          The first is the district court’s refusal to permit Plaintiff to call Leonard Benes as a
witness. When the city sent a letter to Mr. Wurmlinger regarding the height of the arborvitaes,
he took pictures of arborvitaes growing on other lots in the subdivision that were taller than six
feet, including arborvitaes growing on Mr. Benes’s lot. Plaintiff contended that she wanted his
testimony to prove that the hedge was a fence. The court refused to allow his testimony because
Mr. Benes was untimely disclosed as a witness and Plaintiff wanted him to testify regarding
photographs that had not been admitted into evidence or timely disclosed as exhibits. Plaintiff
has not presented any argument or authority showing that the failure to permit Mr. Benes to
testify violated due process.



                                                   17
       The second citation to the record involves evidence that the district court should not have
permitted Defendants to submit during the trial because it was untimely disclosed. In support of
that alleged error, Plaintiff cites to two pages of a pretrial motion in limine she filed to exclude a
list of items of evidence because they were irrelevant, hearsay, or lacked authentication and
because “the List of Exhibits was introduced after the Pre-trial Order for discovery [was]
allowed.” Plaintiff did not cite to any place in the record indicating that the court ever ruled on
the motion or how it ruled, nor did she cite to any place in the record showing that any of such
evidence was admitted during the trial. We will not consider assignments of error not supported
by argument and authority in the opening brief and citations to the relevant parts of the appellate
record supporting the argument. Cummings v. Stephens, 157 Idaho 348, 362, 336 P.3d 281, 295
(2014); VanderWal v. Albar, Inc., 154 Idaho 816, 822, 303 P.3d 175, 181 (2013). Therefore, we
will not address Plaintiff’s other assertions regarding due process violations.


                                            IX.
            Did the District Court Err in Awarding Attorney Fees to Defendants?

       Plaintiff listed as an issue on appeal,
       r) Did the District Court err in allowing excessive awards of . . . attorney fees to
       the Respondents’ [sic]?

She did not present any argument or authority regarding that issue. “We will not consider
assignments of error not supported by argument and authority in the opening brief.” Hogg v.
Wolske, 142 Idaho 549, 559, 130 P.3d 1087, 1097 (2006).


                                              X.
                    Did the District Court Err in Failing To Recuse Itself?

       Plaintiff contends that the district judge was biased against her. Her list of assignments
of error are the following:
       u) Did the District Court Judge Lansing Haynes express an “appearance of
       partiality” against Greenfield during the proceedings?
       v) Did the District Court Honorable Judge Lansing Haynes err by not
       disqualifying himself, as well as his law clerk, Schuyler A. Pennington, from the
       court proceedings do [sic] to their affiliation with the Knights Of Columbus, an
       inclusive Catholic organization of men, wherein Eric Wurmlinger is also affiliated



                                                 18
       with such organization, therefore causing prejudicial bias within the judicial
       outcome of the case?
       w) Did the District Court Honorable Judge Lansing Haynes err by allowing the
       Defendants ‘Unclean hands’ to mislead the trial court into believing that certain
       Trial Exhibits were factual, wherein said exhibits were submitted “Incomplete” or
       contained “Unacceptable” information?
       x) Did the District Court base its findings upon unsubstantiated and incompetent
       evidence from the Respondents’ [sic], and did that evidence support the district
       courts [sic] conclusions of law wherein the Appellant was prejudiced by said
       evidence?
       ....
       bb) Did the District Court Honorable Judge Lansing Haynes commit Fraud Upon
       the Court as witnessed and verified by the Appellant on December 30, 2013, after
       Appellant viewed her case file, wherein the Honorable Judge Lansing Haynes
       commented in his case file notes “The only issue that concerns me is the N.I.E.D.
       (Negligent Infliction of Emotional Distress) claim being dismissed ... We can play
       up the former counsel’s decision and the no objection to putting it to the jury later
       on” wherein Judge Haynes openly admits by acknowledging concerns and states
       “We can Play up ...” the N.I.E.D. claim that Judge Haynes had dismissed with
       prejudice a year and a half prior to trial?

       “Judicial rulings, standing alone, do not constitute a valid basis for a claim of bias or
partiality.” State v. Hairston, 133 Idaho 496, 508, 988 P.2d 1170, 1182 (1999). “Whether it is
necessary for a judicial officer to disqualify himself in a given case is left to the sound discretion
of the judicial officer himself.” Bradbury v. Idaho Judicial Council, 149 Idaho 107, 113, 233
P.3d 38, 44 (2009). In the absence of a motion for disqualification, we will not review the issue
of whether a judge should have disqualified himself or herself because there is no decision by the
judge and no factual record developed from which grounds for disqualification can be discerned.
Idaho Dep’t of Health & Welfare v. Doe, 150 Idaho 563, 568, 249 P.3d 362, 367 (2011).
       In this case, the only issue raised by Plaintiff to the trial court involved the court’s
membership in the Knights of Columbus. Both the court and Mr. Wurmlinger were members of
that organization. Although Plaintiff did not move for disqualification, she raised the issue in her
motion for reconsideration of the denial of her motions to set aside the judgment and to grant a
judgment notwithstanding the verdict. Judge Haynes explained that he was not a parishioner of
the same church as Mr. Wurmlinger; that he had attended mass there a couple times a year, but
his only contact with Mr. Wurmlinger was hearing him say “Good morning” when handing the
judge a church bulletin and the judge responding “Thank you” when he took it; that he and Mr.
Wurmlinger were members of separate councils of the Knights of Columbus; that the councils do

                                                 19
not hold joint meetings; that the judge had not been to a meeting of the council for three years;
and that neither he nor members of his family had ever served on any committees with the
Wurmlingers. Assuming that the Plaintiff raising the issue could be construed as a motion for
disqualification, Judge Haynes did not err in denying that motion.


                                            XI.
             Are Defendants Entitled to an Award of Attorney Fees on Appeal?

       Defendants seek an award of attorney fees on appeal pursuant to the provisions of the
CC&R’s, Idaho Code section 6-202, and Idaho Code section 12-121. Article III, Section 1 of the
CC&Rs provides that, “In any suit or action brought to reinforce these covenants, the prevailing
party shall be entitled to recover costs and reasonable attorney fees from the other party.” Idaho
Code section 6-202 provides that a person who commits a timber trespass may be assessed “a
reasonable attorney’s fee which shall be taxed as costs, in any civil action brought to enforce the
terms of this act if the plaintiff prevails.” Idaho Code section 12-121 provides for the award of
attorney fees to the prevailing party in any civil action, but in normal circumstances this Court
will only award attorney fees on appeal under the statute “when this court is left with the abiding
belief that the appeal was brought, pursued or defended frivolously, unreasonably or without
foundation.” Minich v. Gem State Developers, Inc., 99 Idaho 911, 918, 591 P.2d 1078, 1085
(1979). Defendants are entitled to an award of attorney fees on appeal in defending against the
alleged violations of the CC&R’s under Article III, Section 1, of that document. They are also
entitled to an award of attorney fees on appeal for defending their award of damages for timber
trespass pursuant to Idaho Code section 6-202. Also, because we find that Plaintiff’s remaining
issues on appeal were pursued frivolously, unreasonably, or without foundation, Defendants are
entitled to an award of attorney fees for defending those issues pursuant to Idaho Code section
12-121.


                                              XII.
                                           Conclusion.

       We affirm the judgment of the district court, and we award respondents costs and
attorney fees on appeal.




                                                20
Chief Justice BURDICK, Justices J. JONES, W. JONES, and HORTON CONCUR.




                                 21
