                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
              ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                PETER T. VAN BAALEN , Plaintiff/Appellant,

                                          v.

LELAND JONES and MAURY MARK MONTOYA, Defendants/Appellees.

                              No. 1 CA-CV 13-0411
                               FILED 07-31-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2010-052335
                The Honorable Alfred M. Fenzel, Judge

                                    AFFIRMED


                                    COUNSEL

Law Office of Richard T. Weissman, PLLC, Mesa
By Richard T. Weissman
Counsel for Plaintiff/Appellant

Sherman & Howard L.L.C., Phoenix
By David A. Weatherwax and Dewain D. Fox
Counsel for Defendants/Appellees


                        MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Kenton D. Jones joined.
                      VAN BAALEN v. JONES, et al.
                         Decision of the Court

W I N T H R O P, Judge:

¶1              Peter T. Van Baalen (“Plaintiff”) brought a private nuisance
action against his neighbors, Leland Jones and Maury Mark Montoya
(collectively, “Defendants”), alleging they had (1) planted trees that
obstructed his scenic views, shed leaves into his pool, and damaged his pool
filter; (2) intentionally parked vehicles so they obstructed his scenic view
and would “spew noxious fumes” onto his property; and (3) constructed an
unsightly fence. The trial court granted Defendants’ motion for summary
judgment and denied Plaintiff’s motion to reconsider the denial of a motion
to compel the discovery of medical records. For the following reasons, we
affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2             The parties own adjacent properties on a hillside, with
Plaintiff’s property located above Defendants’ property. Sometime after
purchasing his property, Plaintiff had a pool built in close proximity to an
existing driveway on Defendants’ property.

¶3             In 2009, Plaintiff sent a letter to Jones demanding he trim or
remove a mesquite tree that allegedly interfered with Plaintiff’s view and
caused problems with his pool. Plaintiff threatened to file a lawsuit against
Jones, and the draft complaint also alleged Defendants were parking their
vehicles in such a manner as to interfere with Plaintiff’s enjoyment of his
property. The parties reached an agreement to remove the tree,1 which
included allowing Plaintiff temporary access to Defendants’ property and
a release of all claims against Jones.2

¶4             Defendants subsequently planted three small saplings near
the property line between the two properties.3 Additionally, Plaintiff
alleged that, after the release, Defendants resumed parking vehicles on their
property so as to partially obstruct Plaintiff’s view and so that, when
running, they “would spew noxious exhaust fumes into [Plaintiff’s] pool
and patio areas.” However, Plaintiff also admitted the parking issue had
“essentially ceased.” Plaintiff also alleged Defendants constructed a fence

1     Plaintiff later acknowledged the tree was on his property.

2     Plaintiff also agreed to “remove all bricks previously placed by [him]
on Jones’ property.”

3     Soon after, the small saplings died and were removed.


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                       VAN BAALEN v. JONES, et al.
                          Decision of the Court

running parallel to a fence on Plaintiff’s property that Defendants left
unfinished on Plaintiff’s side.

¶5           Plaintiff alleged these actions constituted a private nuisance,
and he sought a permanent injunction and damages. Defendants filed a
counterclaim, asserting claims for breach of the written release and abuse
of process.

¶6           Plaintiff subsequently filed a motion to compel production of
Jones’ medical records or, alternatively, for an independent medical
examination (collectively, the “motion to compel”). Plaintiff alleged that,
because Jones’ malicious intent and capacity to testify were at issue, his
mental state was relevant. The trial court denied Plaintiff’s motion to
compel and motion for reconsideration without comment.

¶7             Defendants filed a motion for summary judgment, arguing (1)
Plaintiff could not establish a nuisance claim because he had no right to a
view without an easement; (2) Defendants’ conduct did not significantly
interfere with Plaintiff’s use of his property or significantly harm Plaintiff;
(3) the release barred the nuisance claim as it related to the parking activity;
and (4) the request for an injunction regarding the three small trees was
moot because those trees had died and were not replaced. The trial court
granted Defendants’ motion for summary judgment without comment.
Plaintiff filed a motion for new trial and sought reconsideration of the
summary judgment, which the trial court denied without comment.

¶8            The trial court entered a signed judgment containing Rule
54(b) language that both granted summary judgment on Plaintiff’s nuisance
claims and denied Plaintiff’s motion for reconsideration of the motion to
compel. See Ariz. R. Civ. P. 54(b). Plaintiff filed a timely notice of appeal
from the judgment, and we have jurisdiction pursuant to Arizona Revised
Statutes (“A.R.S.”) section 12-2101(A)(1) and (5)(a) (Supp. 2013).

                                  ANALYSIS

¶9             Summary judgment is appropriate if there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of
law. Ariz. R. Civ. P. 56(a); accord Brenteson Wholesale, Inc. v. Ariz. Pub. Serv.
Co., 166 Ariz. 519, 522, 803 P.2d 930, 933 (App. 1990). We review de novo the
court’s grant of summary judgment. Swift Transp. Co. v. Maricopa Cnty, 225
Ariz. 262, 264, ¶ 11, 236 P.3d 1209, 1211 (App. 2010).




                                       3
                      VAN BAALEN v. JONES, et al.
                         Decision of the Court

¶10            To establish a private nuisance, Plaintiff was required to
prove Defendants’ conduct intentionally and unreasonably interfered with
the use and enjoyment of his property, causing significant harm. See Nolan
v. Starlight Pines Homeowners Ass’n, 216 Ariz. 482, 489, ¶ 32, 167 P.3d 1277,
1284 (App. 2007); Restatement (Second) of Torts (“Restatement”) §§ 821D,
821F, 822 (1979). “The interference must be ‘substantial, intentional and
unreasonable under the circumstances.’” Nolan, 216 Ariz. at 489, ¶ 32, 167
P.3d at 1284 (quoting Armory Park Neighborhood Ass’n v. Episcopal Cmty.
Servs. in Ariz., 148 Ariz. 1, 7, 712 P.2d 914, 920 (1985)).

       I.     Mootness

¶11            Defendants argue the issue of the entire appeal is moot
because the trees at issue died shortly after they were planted, they were
not replaced, and Plaintiff no longer lives in his home. Defendants still own
their property, however, and thus could replace the trees in the future. That
Plaintiff has listed his home for sale does not establish he no longer has a
protectable interest in his property. Plaintiff still owns the property. Thus,
Plaintiff’s appeal is not moot because the parties still own adjacent
properties and these issues could recur. See Bank of New York Mellon v. De
Meo, 227 Ariz. 192, 193-94, ¶ 8, 254 P.3d 1138, 1139-40 (App. 2011) (“A
decision becomes moot for purposes of appeal where, as a result of a change
of circumstances before the appellate decision, action by the reviewing
court would have no effect on the parties.” (citations omitted)). In any
event, this court may decide a moot issue if it is capable of repetition, yet
evades review. Id. (citations omitted).

       II.    View Obstruction as Nuisance

¶12           Plaintiff claims his scenic view was partially obstructed by
Defendants’ trees and parked cars in their driveway. Plaintiff contends the
obstruction constitutes an invasion of his interest in the use and enjoyment
of his property, and that he has a protected interest in a view. Defendants
argue Plaintiff has no legal interest in a scenic view from his property absent
an easement and, therefore, cannot establish a nuisance claim.

¶13           The generally recognized rule is that obstruction of a
landowner’s view does not constitute a private nuisance absent a statute or
an easement to the contrary. See 1 Am. Jur. 2d Adjoining Landowners §§ 93,
102 (2014) (citing cases); see also Sher v. Leiderman, 226 Cal. Rptr. 698, 701
(Cal. Ct. App. 1986); Venuto v. Owens-Corning Fiberglas Corp., 99 Cal. Rptr.




                                      4
                       VAN BAALEN v. JONES, et al.
                          Decision of the Court

350, 357 (Cal. Ct. App. 1971)4; Mohr v. Midas Realty Corp., 431 N.W.2d 380,
381-82 (Iowa 1988); 44 Plaza, Inc. v. Gray-Pac Land Co., 845 S.W.2d 576, 578
(Mo. Ct. App. 1992). Arizona courts have not yet decided this issue.

¶14           Plaintiff appears to contend that in Brenteson this court
implicitly recognized an interest in a scenic view without an easement. We
disagree. The landowner in Brenteson had an express easement, which this
court held extended to the airspace above the easement pursuant to former
A.R.S. § 28-1703 (now § 28-8207). See 166 Ariz. at 523, 813 P.2d at 934.
Brenteson did not recognize a landowner’s right to a scenic view absent an
easement.

¶15           Both parties also find support in Rodgers v. Ray, 10 Ariz. App.
119, 457 P.2d 281 (1969), disapproved of on other grounds in Coburn v. City of
Tucson, 143 Ariz. 50, 51-52, 691 P.2d 1078, 1079-80 (1984). Rodgers held, in a
negligence action, that a landowner owes no duty “to refrain from using his
land so as to obstruct a view across his property for those using the
[adjacent] public highways.” Id. at 121, 457 P.2d at 283. This holding is
unhelpful, however, because it was made in relation to a negligence claim,
not a nuisance claim.

¶16           Defendants contend the court’s discussion of an implied
easement of view in Rohde v. Beztak of Ariz., Inc., 164 Ariz. 383, 793 P.2d 140
(App. 1990), is instructive. However, Rohde did not address a nuisance
claim; rather, the court discussed the elements of an implied easement of
view, a claim Plaintiff does not assert here. See id. at 387-88, 793 P.2d at 144-
45.

¶17           Plaintiff argues that, regardless whether Arizona follows the
general rule that a view is not a legally protected interest, Defendants acted
maliciously, which, under Restatement § 829, constitutes a per se
unreasonable interference with Plaintiff’s interests. Defendants maintain
invasion of a legally recognized interest is required before the court even
considers whether allegedly malicious conduct is unreasonable per se.



4      The parties dispute Venuto’s holding. Venuto recognized that,
although California courts had in some cases found activities that disturb
the enjoyment of property - such as smoke, noise, and dust - constitute a
nuisance, courts have also held that a structure is not a nuisance “merely
because it obstructs the view from neighboring property.” 99 Cal. Rptr. at
357. Thus, Venuto adopted the general rule stated above.


                                       5
                       VAN BAALEN v. JONES, et al.
                          Decision of the Court

Defendants also contend Plaintiff did not establish they acted with a solely
malicious purpose, so Plaintiff cannot defeat summary judgment.

¶18            Arizona has not yet adopted the rule recognized in
Restatement § 829 that malicious conduct constitutes an unreasonable
invasion per se. We do not decide today whether to adopt the general rule
that a landowner has no legal right to a scenic view without an easement or
whether a party’s malicious intent renders any invasion of another’s use
and enjoyment of his property unreasonable per se. Instead, we conclude
Plaintiff has failed to establish the element of significant harm needed to
establish his nuisance claim. Even if we were to assume Plaintiff has a
legally recognized interest in a scenic view and/or Defendants acted
maliciously, Restatement § 829, comment b, states the rule that malicious
conduct is unreasonable per se “applies only when the harm is significant.”
Plaintiff failed to offer evidence that Defendants’ acts caused significant
harm.

¶19          Comment c to § 821F of the Restatement describes “significant
harm” as follows:

               By significant harm is meant harm of importance,
       involving more than slight inconvenience or petty annoyance.
       The law does not concern itself with trifles, and therefore
       there must be a real and appreciable invasion of the plaintiff’s
       interests before he can have an action for . . . a private
       nuisance. . . . [I]n the case of a private nuisance, there must be
       a real and appreciable interference with the plaintiff’s use or
       enjoyment of his land before he can have a cause of action.

Accord Nolan, 216 Ariz. at 489, ¶ 32, 167 P.3d at 1284.

¶20           Even viewing the evidence in the light most favorable to
Plaintiff, we conclude the record does not contain sufficient evidence of
significant harm to preclude summary judgment. See Rand v. Porsche Fin.
Servs., 216 Ariz. 424, 429, ¶ 15, 167 P.3d 111, 116 (App. 2007) (recognizing
that, in reviewing a grant of summary judgment, we view the facts and
inferences in the light most favorable to the party opposing summary
judgment). The significance of the harm is a different inquiry than the
gravity of harm that Plaintiff argues is a question of fact. The gravity of
harm is balanced against the utility of conduct in determining if the conduct
constitutes an unreasonable invasion of the use and enjoyment of property.
`See Restatement §§ 826, 829; Armory Park, 148 Ariz. at 7-8, 712 P.2d at 920-



                                       6
                       VAN BAALEN v. JONES, et al.
                          Decision of the Court

21. It is that balancing that involves weighing competing interests. Our
decision is based upon the lack of evidence of any significant harm caused
by Defendants’ conduct. See Restatement § 821F.

¶21           Plaintiff contends the trees obstructed his view, which
diminished the value of his property. However, Plaintiff offered no
evidence other than his own declaration of this fact.5 Although it is evident
that property with an obstructed view may be worth less than one with an
unobstructed view, Plaintiff’s statement that his property value could be
diminished in the future if the view is obstructed is insufficient evidence of
significant harm. There are currently no trees obstructing Plaintiff’s view,
and Defendants do not live on their property. Thus, the potential harm is
de minimis.      Additionally, Plaintiff offered no expert opinion to
substantiate his opinion. Although a property owner can testify to the
value of his property, see Town of Paradise Valley v. Laughlin, 174 Ariz. 484,
486, 851 P.2d 109, 111 (App. 1992), Plaintiff’s statement did not establish
more than a scintilla of evidence of any significant harm. See Orme Sch. v.
Reeves, 166 Ariz. 301, 311, 802 P.2d 1000, 1010 (1990) (holding that a party
must establish more than a “scintilla of evidence” to preclude summary
judgment).

¶22           In City of Tucson v. Apache Motors, 74 Ariz. 98, 101, 245 P.2d
255, 257 (1952), our Supreme Court held the measure of damages in a
permanent nuisance case “is the difference between the market value of the
premises immediately before and its market value immediately after the
completion of the structure creating the nuisance.” Plaintiff’s statement as
to a possible future diminution in value does not support an award of
damages. As to Plaintiff’s claim for injunctive relief, Plaintiff relies on
Brenteson, 166 Ariz. at 522-23, 803 P.2d at 933-34, for the proposition that
harm need not be actually occurring for injunctive relief to be appropriate.
However, the potential harm in Brenteson - serious bodily injury or death


5      Plaintiff’s declaration stated:

       The nuisances created by the Defendants have significantly
       interfered with the use and enjoyment of my property. If not
       enjoined from recreating the above nuisances and the conduct
       reoccurs, the value of my property and my enjoyment thereof
       will be significantly impaired. If this southern view of the city
       is obstructed, the value of my property could decrease by as
       much as 40%.



                                         7
                        VAN BAALEN v. JONES, et al.
                           Decision of the Court

from an airplane drifting into power lines - was substantially different than
the potential inconvenience and harm Plaintiff alleged here. The injunction
was permitted in Brenteson based upon the potential for serious injury or
death. Id. Here, Plaintiff only speculated his property value may decrease
if Defendants moved back in and replanted the trees. This does not
establish significant harm. Therefore, there is no question of fact for the
jury.6

       III.    Leaves, Fumes, and Fence as Nuisance

¶23            Plaintiff also failed to offer any evidence to support his
assertion that leaves from Defendants’ trees caused actual damage to his
pool system. Even assuming some of Defendants’ leaves blew into his pool,
that fact alone does not establish an invasion that was “definitely offensive,
seriously annoying or intolerable.” See Restatement § 821F cmt. d.
Moreover, Plaintiff did not establish that leaves from Defendants’ trees
were any more to blame for his annoyance than were the leaves from trees
(and debris from other vegetation) on Plaintiff’s own property.

¶24            Plaintiff also offered no evidence that fumes from cars parked
on Defendants’ driveway caused any significant harm. Plaintiff did not
establish how frequently or for how long cars emitted exhaust fumes in the
direction of his pool area. Although Plaintiff stated the cars parked near his
pool area daily, he did not establish the cars were left running for any
significant amount of time while he or his guests were in that area. See Orme
Sch., 166 Ariz. at 311, 802 P.2d at 1010. Thus, Plaintiff has not shown this
conduct was significantly harmful.

¶25            Finally, Plaintiff has admitted in his opening brief that
Defendants’ fence only “minimally detracted from the view” and did so, in
part, because it was left unfinished on Plaintiff’s side. In fact, Plaintiff seeks
only to finish his side of the fence. This fails to rise to the level of significant
harm.



6      Plaintiff also argues Defendants’ alleged malice permits an
injunction absent any damages. Plaintiff cites no authority for this
proposition. Pursuant to Restatement § 829, the existence of malice is
relevant in determining whether Defendants’ conduct was unreasonable.
Plaintiff cites no authority for the proposition that any malicious conduct
may be enjoined absent significant harm.



                                         8
                      VAN BAALEN v. JONES, et al.
                         Decision of the Court

¶26           We conclude the trial court properly granted summary
judgment in favor of Defendants on Plaintiff’s nuisance claims. Plaintiff
failed to establish a question of fact as to the significance of the harm.
Therefore, we need not decide the reasonableness of any invasion or
whether Plaintiff had a legally protected interest in his scenic view. We
affirm the judgment.7

      IV.    Attorneys’ Fees and Costs on Appeal

¶27           Defendants request an award of attorneys’ fees pursuant to
the language in the release. Additionally, pursuant to A.R.S. § 12-349(A)
(Supp. 2013) and Rule 11, Ariz. R. Civ. P., Defendants seek an award of
attorneys’ fees related to the denial of Plaintiff’s motion to compel
discovery. Our resolution of the summary judgment made it unnecessary
to address these issues; therefore, we deny Defendants’ request for fees. We
award Defendants their costs on appeal pursuant to A.R.S. § 12-342 (2003),
however, upon compliance with Rule 21, ARCAP.

                             CONCLUSION

¶28          We affirm the judgment in favor of Defendants and award
Defendants their costs on appeal.




                                :gsh




7      In light of this disposition, it is not necessary to consider Jones’
mental capacity. Therefore, we do not address the denial of Plaintiff’s
motion to reconsider the motion to compel discovery related to this issue.
Additionally, in light of this disposition, we need not and do not address
the effect of the parties’ prior release.


                                     9
