               IN THE SUPREME COURT OF THE STATE OF IDAHO

                                 Docket No. 46099

ROCKY W. FLETCHER and DELORES L.            )
FLETCHER, husband and wife,                 )
                                            )
      Plaintiffs-Appellants,                )
                                            )
v.                                          )
                                            )
LONE MOUNTAIN ROAD ASSOCIATION,             )
an Idaho unincorporated non-profit          )
association; ALAN K. SIMS, an individual;   )
LOU ANN STAMP, an individual; EUGENE        )
DEPAULIS, an individual; THOMAS D.          )
VALENZUELA, an individual; ROY              )
STULTS and MARILYN STULTS, husband          )
and wife; ANDREW J. PONDER and              )
DARCY PONDER, husband and wife;             )
ROBERT L. IMPERATRICE and JEAN              )
IMPERATRICE, husband and wife,              )
                                            )
                                                    Boise, August 2019 Term
      Defendants-Respondents,               )
                                            )
                                                    Opinion Filed: November 13, 2019
and                                         )
                                            )
                                                    Karel A. Lehrman, Clerk
DOUGLAS B. GRANT and JANE DOE               )
GRANT, husband and wife; CCM, LLC, an       )
Idaho Limited Liability Company; BRIAN      )
REED, an individual; RICK M. PICCININI,     )
an individual; EDWARD J. SITAR, an          )
individual; KATHLEEN STONE, an              )
individual; LINDA D. SUTLIFF, an            )
individual; RAWLAND L. AHLMAN, an           )
individual; RAWLAND L. AHLMAN,              )
Trustee of the RAWLAND L. AHLMAN            )
LIVING TRUST and CHERYL A. WILSON,          )
Trustee of the NORMA A. AHLMAN              )
MARITAL TRUST; JANET L. RICHMOND,           )
an individual; GARY A. WILSON and JANE      )
DOE WILSON, husband and wife; DANIEL        )
D. GREGG, an individual; RYAN C.            )
WELLS, an individual, and JOHN K.           )
MOATS and JANE DOE MOATS, husband           )
and wife;                                   )
                                        1
                                        )
      Defendants.                       )
_______________________________________ )

       Appeal from the District Court of the First Judicial District of the State of Idaho,
       Kootenai County. Charles W. Hosack, District Judge.

       The district court’s decision is reversed and the case remanded.

       James, Vernon & Weeks, P.A., Coeur d’Alene, for appellants, Rocky W. and
       Delores L. Fletcher. Susan P. Weeks argued.

       Ramsden, Marfice, Ealy & Harris, LLP, Coeur d’Alene, for respondents Alan K.
       Sims and Andrew J. and Darcy Ponder. Michael E. Ramsden argued.

       Lou Ann Stamp, Athol, respondent pro se.

       Eugene DePaulis and Lucinda DePaulis, Athol, respondents pro se.

       Roy Stults and Marilyn Stults, Athol, respondents pro se.

       Robert Imperatrice and Jean Imperatrice, Athol, respondents pro se.

       Thomas Valenzuela, Athol, respondent pro se.

       Lone Mountain Road Association, Athol, respondent pro se.
                                       _____________________

BRODY, Justice.
       Rocky and Delores Fletcher appeal the district court’s denial of attorney fees on remand
after an amended judgment was entered in their favor. The district court awarded some costs to
the Fletchers as the prevailing parties but found that the subdivision’s covenants, conditions, and
restrictions (CC&Rs), which govern this dispute, did not provide a basis for an award of attorney
fees. We reverse the district court’s decision, holding that the Fletchers’ declaratory judgment
action constituted an “enforcement action” under section 5.1 of the CC&Rs. We remand the case
to the district court for a determination of the amount of reasonable attorney fees to be awarded
and apportionment of those fees against the parties.
                 I.      FACTUAL AND PROCEDURAL BACKGROUND
       The Fletchers first appealed to this Court in 2017 following an adverse judgment from the
district court. Fletcher v. Lone Mountain Road Association, 162 Idaho 347, 349–50, 396 P.3d
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1229, 1231–32 (2017). The Fletchers own property in the Twin Lakes Meadows Subdivision in
Kootenai County. There is a private gravel and dirt road known as “Lone Mountain Road” which
runs through the subdivision. Some of the lots, but not all, adjoin or connect to the road. Over the
years, because Delores Fletcher suffers from asthma, the Fletchers used asphalt grindings, oiling,
and other dust control methods—at their own expense—to abate the dust on the stretch of Lone
Mountain Road that is adjacent to their property. Disputes arose for several contentious years
between the Fletchers and the “Lone Mountain Road Association”—i.e. the Fletchers’
neighbors—over the payment of maintenance costs incurred by the Association, attempts to stop
the Fletchers from utilizing their own dust control methods, and the repair of potholes. The
disputes came to a head in 2009 when the Association made written demand that the Fletchers
stop oiling Lone Mountain Road.
       In response to their neighbors’ demand, the Fletchers brought this declaratory judgment
action, seeking a declaration which outlined the rights and responsibilities of subdivision
property owners with respect to Lone Mountain Road. The relief sought included a determination
of the ownership of the road and a determination of the parties’ rights to use and maintain the
road. The Fletchers also brought a claim for trespass against defendants Alan Sims and Lone
Mountain Road Association. Counterclaims were filed against the Fletchers alleging nuisance.
The district court dismissed the nuisance claims in June of 2015, and later dismissed the trespass
claims as well, leaving only the issue of the declaration of the rights and responsibilities of the
lot owners for maintenance of Lone Mountain Road.
       The district court held that the subdivision’s CC&Rs were ambiguous with regard to
maintenance obligations and were contrary to Idaho’s easement laws. Id. The Fletchers appealed,
and we reversed the judgment in part. Id. We remanded the case to the district court with
instructions to enter an amended judgment declaring that the Lone Mountain Road Association
had no right to maintain the road and that it had no right to obtain involuntary contributions from
lot owners for past expenditures. Id. at 356-57, 396 P.3d at 1239-40. We also held that “the
Fletchers [were] the prevailing party” and remanded the case to the district court for entry of an
amended judgment. Id. at 357, 396 P.3d at 1240. We did not award attorney fees on appeal
because the Fletchers sought fees against the Association only “if it chose to participate.” Id. at
356, 396 P.3d at 1238. The Lone Mountain Road Association did not participate in the appeal.
Id.
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          On remand, the district court entered an amended judgment. Shortly thereafter, the
Fletchers filed a memorandum of costs and attorney fees pursuant to section 5.1 of the CC&Rs
which states:
          Any Owner, and any governmental or quasi-governmental agency or municipality
          having jurisdiction over the Property shall have the right to enforce, by any
          proceeding at law or in equity, all restrictions, conditions, covenants, reservations,
          liens, and charges now or hereafter imposed by this Declaration, and in such
          action shall be entitled to recover costs and reasonable attorneys’ fees as are
          ordered by the Court. Failure by any such person or entity to enforce any such
          provision shall in no event be deemed a waiver of the right to do so thereafter.
Pro se respondents, Stamp and DePaulises, objected to the award of attorney fees, arguing that
the CC&Rs’ enforcement provision did not provide for fees and costs in a declaratory judgment
action. Respondents Sims and Ponders argued that the Fletchers failed to timely submit a
memorandum of costs following the original judgment, and that the claim for fees should be
fairly apportioned.
          The district court held a hearing on the objections, and at the end of the hearing
explained, “under my interpretation of 5.1, . . . a declaratory judgment action is not the type of
enforcement action contemplated by Paragraph 5.1, entitling one to an award of attorney fees,
even though the Fletchers are the prevailing party, there is no award of attorney’s fees because
5.1 doesn’t provide for it.” The enforcement claims of nuisance and trespass, the district court
added, were dismissed and lacked a prevailing party. The district court awarded some costs
($1,968.47) to the Fletchers pursuant to Idaho Rule of Civil Procedure 54(d). The Fletchers
timely appealed. Only respondents Sims, Ponders, Stamp, and DePaulis, filed response briefs on
appeal.
                                 II.     STANDARD OF REVIEW
          This Court freely reviews questions of law and contract interpretation. Adams v.
Kimberley One Townhouse Owner’s Ass’n, Inc., 158 Idaho 770, 773, 352 P.3d 492, 495 (2015).
However, the decision to award attorney fees and costs lies within the discretion of the trial
court; thus, we review such determinations for an abuse of discretion. Westover v. Idaho Cntys.
Risk Mgmt. Program, 164 Idaho 385, 430 P.3d 1284, 1287 (2018). A trial court does not abuse
its discretion when it “(1) correctly perceived the issue as one of discretion; (2) acted within the
outer boundaries of its discretion; (3) acted consistently with the legal standards applicable to the


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specific choices available to it; and (4) reached its decision by the exercise of reason.”
Lunneborg v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).
                                       III.    ANALYSIS
       The key inquiry on appeal is whether the district court erred in holding that section 5.1 of
the CC&Rs did not provide for an award of attorney fees in this declaratory judgment action.
Sims and Ponders raise two additional issues that concern the apportionment and segregation of
attorney fees. We will address each issue in turn.
       A. The district court erred in holding that attorney fees could not be awarded
          under section 5.1 of the CC&Rs in this declaratory judgment action.
       Section 5.1 of the CC&Rs governs an award of attorney fees. It states:
              Any Owner, and any governmental or quasi-governmental agency or
       municipality having jurisdiction over the Property shall have the right to enforce,
       by any proceeding at law or in equity, all restrictions, conditions, covenants,
       reservations, liens, and charges now or hereafter imposed by this Declaration, and
       in such action shall be entitled to recover costs and reasonable attorneys’ fees as
       are ordered by the Court. Failure by any such person or entity to enforce any such
       provision shall in no event be deemed a waiver of the right to do so thereafter.

(Emphasis added). The district court held that Fletchers’ declaratory judgment did not constitute
the type of “enforcement” action contemplated by the language emphasized above. The Fletchers
argue that the district court abused its discretion by applying the wrong legal standard in its
analysis. More specifically, the Fletchers contend the CC&Rs provide for an award of attorney
fees because the Fletchers brought the declaratory judgement action “in part to enforce the
CC&Rs and prevent the defendants from maintaining the subdivision road without compliance
with the CC&R provisions.” We agree with the Fletchers’ analysis.
       “In any civil action the court may award reasonable attorney fees, . . . to the prevailing
party or parties as defined in Rule 54(d)(1)(B), when provided for by any statute or contract.”
I.R.C.P. 54(e)(1). This Court has recognized CC&Rs as contracts that may establish the basis for
an award of attorney fees. See, e.g., Adams, 158 Idaho at 777–78, 352 P.3d at 499–500; Asbury
Park, LLC v. Greenbriar Estate Homeowners’ Ass’n, Inc., 152 Idaho 338, 345, 271 P.3d 1194,
1201 (2012). Likewise, this Court generally applies contract principles when interpreting
CC&Rs. Adams, 158 Idaho at 773, 352 P.3d at 495; Sky Canyon Properties, LLC v. Golf Club at
Black Rock, LLC, 155 Idaho 604, 606, 315 P.3d 792, 794 (2013). “To determine whether a
covenant is ambiguous, the court must view the agreement as a whole to determine the intent of
                                                 5
the parties at the time of contracting.” Best Hill Coal. v. Halko, LLC, 144 Idaho 813, 817, 172
P.3d 1088, 1092 (2007). If a covenant is unambiguous, this Court applies its plain meaning as a
matter of law. Adams, 158 Idaho at 773, 352 P.3d at 495. Furthermore, the Court will not rewrite
contracts or extend by implication any restriction not clearly expressed in the covenants. Id.; Best
Hill Coal., 144 Idaho at 817, 172 P.3d at 1092.
       The most analogous case to this situation is Adams v. Kimberley One Townhouse
Owner’s Association, Inc., where a townhouse owner appealed an award of summary judgment
entered in favor of the townhouse-owner’s association. 158 Idaho 770, 771–72, 352 P.3d 492,
493–94 (2015). In Adams, each townhouse was subject to a declaration of covenants, conditions,
and restrictions that did not specifically restrict the owner from leasing the unit. Id. After Adams
rented his townhome to various individuals, he received complaints from neighboring townhome
owners about parking violations, excessive noise, and a renter stealing produce from a
neighbor’s garden. Id. at 772, 352 P.3d at 494. Despite Adams’ strong opposition, the association
passed an amendment to the CC&Rs in 2013 that established several rental conditions and
prohibitions, including a provision prohibiting an owner from renting a unit for a period of less
than six months. Id. Adams then brought a declaratory judgment action seeking to invalidate the
amendment and recover attorney fees. Id. at 772–73, 352 P.3d at 494–95. The district court
awarded summary judgment to the townhouse association on cross-motions for summary
judgment and awarded the association attorney fees and costs. Id. at 773, 352 P.3d at 495.
       On appeal, this Court affirmed, holding that the 2013 amendment was valid and binding
on Adams. Id. at 773–77, 352 P.3d at 495–99. The Court also held that the district court did not
err in awarding attorney fees to the townhouse association in a declaratory judgment action
where suit was brought “to enforce the covenants.” Id. at 777, 352 P.3d at 498. This Court
explained:
       In substance, this action was brought in response to the Association’s attempt to
       enforce the 2013 Amendment and was an attempt by Adams to prevent
       enforcement of the 2013 amendment and to enforce the use provisions of the
       previous versions of the declaration. Therefore this action was properly
       characterized as one ‘to enforce the [CC&Rs],’ and the award of attorney fees
       below was not an abuse of discretion.
Id. at 777–78, 352 P.3d at 499–500.
       In contrast, in Henderson v. Henderson Inv. Properties, L.L.C., this Court reversed an
award of attorney fees where the plaintiff did not seek to enforce the provisions of an LLC’s
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operating agreement. 148 Idaho 638, 642, 227 P.3d 568, 572 (2010). In Henderson, the plaintiff
filed a complaint for judicial dissolution of a limited liability company, followed by a second
complaint seeking a declaratory judgment that the respondents were dissociated from the
company. Id. at 639, 227 P.3d at 569. The district court consolidated the actions and held a trial,
after which it found the respondents were entitled to attorney fees under the enforcement
provision of the LLC’s operating agreement. Id. This Court reversed that decision, determining
that the district court abused its discretion by acting inconsistently with the operating
agreement’s legal standards on both claims. Id. at 640, 227 P.3d at 570. The plaintiff did not
bring an “enforcement action” under the operating agreement by seeking judicial dissolution
because enforcement “would be for the purpose of promoting the continued existence of the
business, not ending it.” Id. at 641, 227 P.3d at 571.
        Here, like the situation in Adams, the Fletchers brought this declaratory judgment action
in direct response to the Association’s efforts to maintain Lone Mountain Road in a manner that
was inconsistent with the CC&Rs. At its core, the action was brought to require strict compliance
with the unambiguous terms of the CC&Rs and make it clear that the Association has no
authority to maintain the road and that it has no authority to demand contributions from the
Fletchers or other lot owners for past maintenance expenditures. The district court’s conclusion
that this was not an action to “enforce” the CC&Rs was erroneous, and therefore, its decision to
deny attorney fees on this basis was not consistent with applicable legal standards. Accordingly,
we reverse the district court’s denial of fees for because it constituted an abuse of discretion.
        B. Equitable allocation should be left to the district court’s sound discretion.
        Sims and Ponders argue that if the Court finds an abuse of discretion by the district court,
“there is no principled reason to penalize those who defended the action from those who did
not.” As such, the Respondents argue that the Court should remand the case with instructions to
allocate attorney fees amongst the 19 defendants. The Fletchers contend that there is no authority
to support that argument and that Idaho Rule of Civil Procedure 54(d)(1)(B) allows the district
court to apportion costs amongst parties equitably. We agree that the allocation of attorney fees
should be left to the district court’s discretion.
        Idaho Rule of Civil Procedure 54(d)(1)(B) provides:
        In determining which party to an action is a prevailing party and entitled to costs,
        the trial court must, in its sound discretion, consider the final judgment or result of
        the action in relation to the relief sought by the respective parties. The trial court
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       may determine that a party to an action prevailed in part and did not prevail in
       part, and on so finding may apportion the costs between and among the parties in
       a fair and equitable manner after considering all of the issues and claims involved
       in the action and the resulting judgment or judgments obtained.
Furthermore, a trial court may “assess costs to non-prevailing co-defendants in a proportionate
way, based on their respective responsibilities for those costs.” Valiant Idaho, LLC v. N. Idaho
Resorts, LLC, 164 Idaho 222, 228, 428 P.3d 800, 806 (2018). “[W]hen a court does so, it must
provide the basis for its reasoning, particularly stating why the costs should be apportioned
among the adverse parties.” Id. (emphasis included). Because an award of costs is committed to
the sound discretion of the district court, we will not order or provide instruction on the
allocation of attorney fees in advance of the district court making this determination. See, e.g.,
Zimmerman v. Volkswagen of Am., Inc., 128 Idaho 851, 857, 920 P.2d 67, 73 (1996).
       C. Segregation of attorney fees should be left to the district court’s sound
          discretion.
       Sims and Ponders next argue that “there is just something manifestly unfair” about letting
the Fletchers claim attorney fees as the prevailing party without segregating the work done on
original claims for trespass, negligence, and additional dismissed counterclaims. They also argue
this Court should affirm the district court’s denial of attorney fees on the alternative basis that the
Fletchers only partially prevailed below. The Fletchers argue that they did not seek attorney fees
for the nuisance counterclaims or costs incurred on the first appeal, as Respondents contend. The
Fletchers also argue that Sims and Ponder have raised the issue of partially prevailing for the first
time on appeal.
       Both this Court and the district court on remand determined that the Fletchers were the
prevailing parties. Sims and Ponders cannot seek, for the first time on appeal, a new
determination that the Fletchers only prevailed in part. “In general, issues presented for
the first time on appeal will not be considered.” State v. Doe, 123 Idaho 370, 371, 848 P.2d 428,
429 (1993). While Sims and Ponders included this argument in their objections below, they
never appealed, or otherwise challenged, the court’s determinations that the Fletchers were the
prevailing party. Because their argument would effectively, and improperly, ask this Court to
change that prevailing-party determination, the argument will not be addressed.
       Respondents also cite Hackett v. Streeter, 109 Idaho 261, 706 P.2d 1372 (Ct. App. 1985),
to argue that compensable and non-compensable claims must be segregated. However, as

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previously explained by this Court, Hackett “mandates segregation of fees for multiple clients; it
does not require that fees be segregated according to the specific claims of each client.” Smith v.
Mitton, 140 Idaho 893, 901, 104 P.3d 367, 375 (2004). In addition, where there is one overall
prevailing party entitled to an award of attorney fees by statute or contract, “the award of
reasonable attorney fees is not required to be limited to the claims upon which the prevailing
party prevailed.” Advanced Med. Diagnostics, LLC v. Imaging Ctr. of Idaho, LLC, 154 Idaho
812, 815–16, 303 P.3d 171, 174–75 (2013).
        The law does not mandate the segregation of attorney fees based on claims pursued at
trial and those dismissed before trial began, nor may it be feasible. Whether to limit an award of
attorney fees to a specific claim is a matter left to the district court’s sound discretion.
                                       IV.     CONCLUSION
        We reverse the district court’s decision and remand this matter to the district court for a
determination of the amount of attorney fees to which the Fletchers are entitled, and the
allocation of responsibility for those fees amongst the parties. We also award Fletchers costs and
attorney fees on appeal because they once again prevailed in enforcing the CC&Rs. The
Fletchers must specify in their memorandum of fees and costs the specific parties against whom
they seek an award on appeal. This Court will then determine the reasonable amount of attorney
fees and costs on appeal and apportion the fees and costs on an equitable basis.


        Chief Justice BURDICK, and Justices BEVAN, STEGNER and MOELLER CONCUR.




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