1 IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 46323

EAGLE SPRINGS HOMEOWNERS ASSOCIATION, INC.,

Plaintiff

- Respondent,

v. JAN RODINA,

Defendant

- Appellant. ) ) ) ) ) ) ) ) ) Boise, August 2019 Term

Opinion Filed: November 7, 2019

Karel A. Lehrman, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Lynn G. Norton, District Judge.

The decision of the district court is affirmed.
Neal Colborn PLLC, Boise, for appellant. Gary Neal argue d.
Vial Fotheringham LLP, Boise, for respondent. Christopher Tingey argued.

_____________________________ BURDICK, Chief Justice. This appeal involves a dispute between the Eagle Springs Homeowner s ’ Association (“the HOA”) and Jan Rodina, a homeowner in the HOA . After a dispute over a fence project , t he HOA filed a complaint seeking injunctive relief in Ada County district c ourt. Rodina asserted
, among other defenses, that the HOA approved his project and waived the right to enforce certain provisions of the subdivision’s Covenants, Conditions, and Restrictions (“ CC &R s ”)

. The district
court awarded summary judgment in favor of the HOA and granted injunctive relief . We affirm, finding that the HOA did not approve his project as built and that Rodina failed to show that a genuine issue of material fact precluded the award of summary judgment against him.
I. FACTUAL AND PROCEDURAL BACKGROUND The Eagle Springs Subdivision. Located in Boise, Idaho, t he Eagle Spring s S ubdivision consists of 230 residential lots

a nd is governed by the CC&Rs

. T he CC&Rs are enforced and administered by the HOA through2 a Board of Directors (“the Board”)

. T he CC&Rs’ purpose is to “protect, enhance and preserve the value, amenities, desirabili ty, and attractiveness” of the s ubdivision

. U nder the CC&Rs, homeowners must obtain approval from the HOA’s “Architectural
Committee” to “improve” the exterior of their property. T he Architectural Committee is tasked with “us[ing] its judgment to see that all Improvements conform and harmonize as t o external design, quality and type of construction, architectural character, materials, color, location

. . . height, grade and finish ground elevation, natural conditions, landscaping and all other aesthetic
considerations

. . . . ” A n “Improvement” is b roadly defined as “an y structure, facility or system

. . . which is erected, constructed or placed upon . . . any portion of the Property.” T he
CC&Rs s pecifically list fences, walls, and landscaping within the definition of “Improvements”

. T he CC&Rs provid e precise requirements for specific alterations . For example: the Committee

may only approve fences that are “in general con formance” with aesthetic models; f ences and
walls may not sit cl oser than 20 feet to any street; and n o fence may exceed 6 feet in h eight

. To obtain the Committee’s approval, a homeowner must fill ou t a nd submit a “Review and Approval Form”. This form r eferences the CC&R s ’ guidelines and asks for “ a detailed
descri ption ” of the desired changes

. Once submitted, the Committee review s t he application and
will either approve, deny, or delay its decision on the application. Once a decision is reached, the
Committee’s decision is “conclusive and binding on all interested parties.” T he CC&Rs state that
the Committee’s prior approval does not waive its right to d eny “ a ny simila r proposal” in the
future. In addition to approving and d enying applications, t he CC&Rs authorize the
Architectural Committee to grant “variances from compliance with any of the architectural provisions of the Project D ocuments, including restrictions upon height, size, floor area or placement of structures, or similar restrictions, when circumstances such as topography, natural obstructions, hardship, aesthetic or environmental considerations may require.” A variance

ex cuses any violation for which it is granted. The CC&R s specifically declare that granting a variance “shall not operate to waive any of the terms and provisions of the [CC&R s] for any purpose except as to the particular Building Lot and particular provisio n hereof covered by the
variance.” The CC & R s also provide that “[t]he failure to enforce any of the provisions herein at any time shall not constitute a waiver of the right to enforce any such provision.”3 Rodina’s Project

. Rodina’s property is a corner l ot within the Eagle Creek subdivision located at the intersection of Big Springs Blvd. and N

. Cayuse Way. Rodina’s house faces north and meets Big Springs Blvd, a residential street runni ng east to we st. T he e ast side of the property abuts the
north

- to

- sou th N. Cayuse Way. In May 20 1 6, Rodina submitted a “Review and Approval Form” with the Architectural
Committee (the “First Application”)

. Rodina described his project as follows: Fence Repair: Fence will be repaired and extended on the east side facing N. Cayuse Way to cover the full length of the house. Landscaping: In order to repair the fence and to level the fence with the house, some landscaping will be needed at the backyard and the east side of the house. Nick Barber, the President of the HOA and m ember of the Architectural Committee, conditionally approved the application by writing “*

- Fence to be stained to match

– All repairs to be in compliance w[ith] CC&Rs and all applicable municipal, county, and state codes.”
At the end of May 2016 , Rodina began constructing a three

- foot retaining wall “to level
the sever e slope of the parcel.” Rodina also constructed a new fence, placing it atop the retaining wall, which placed it closer to N

. Cayuse Way. I n August 2016, the HOA asked Rodina to submit a se cond Review and Approval Form (the “Second Application”)

. Rodina did so, writing : As per our previously approved request by the HOA, we are planning to level the property by using retaining wall blocks . In addition, to avoid the continued trespassing
, and to provide better privacy and security for our family, we are moving the fence on the east side slightly forward, closer to N Cayuse Way.
A ll work will be done based on Ada c ounty building codes. In addition, the construction site has already been visited and the plans were approved by the Sheriff that stopped by today.
After additional back and forth with Rodina to discern the full scope of the project, the
Committee den ied the second application and stated that the project , as built
, violated th e CC &R s. The HOA communicated to Rodina its conclusion s that: Rodina’s project exceeded the scope of the First Application; his fence exceeded t he 6

- feet limit because it was atop the 3

- foot retaining wall ; the fence was too close to the street; and the retaining wall could negatively impact how the property drains to adjacent properties

. Lastly, the HOA told Rodina that it would consider a new application for the proposal if the fence dimensions were fixed and Rodina obtained assurances that grading and drainage c hanges wou ld not burden other properties. The
HOA offered to hold a meeting with Rodina to discuss the project further

.4 A few weeks later, after Rodina failed to make any changes to his property, the HOA informed Rodina that they would be holding a formal m eeting to determine whether it would take legal action to en force the CC&R s an d invited him to attend

. In October 2016, the HOA
sent a formal cease

- and

- desist letter to Rodina , explaining that the Board was considering legal
action and invited him to subm it a less ambitious project. In response, Rodina told the Board he was working with th e c ounty on receiving approval for the project

. The HOA explained that compliance with the county codes w as only part of the requirements and that Rodina also needed

to c omply with the CC&Rs. In November 2016, Rodina attended the Board meeting and
informed the Board that the fence and wall were in compliance with relevant county codes. The
Board reiterated that the construction n evertheless violated the CC & R s and that it p lan ned to proceed with legal action

. Legal Proceedings In June 2017, the HOA filed a complaint against Rodina seeking injunctive relief. The
HOA asked the district c ourt to o rder Rodina to re store the property to its previous condition , or , alternatively, permit the HOA to restore the property and seek reimbursement from Rodina. In
his a nswer, Rodina asserted the equitabl e defenses of waiver, laches, and estoppel . He also argued that the Association’s action violated its good faith and fiduciary duties und er Idaho Code
section 30

- 29

- 830 and section 30

- 29

- 842 and the implied covenant of good faith and fair dealing. Specifically, he argued that the HOA waived its ability to deny his improvements because it had

“ approved the construction of similar improvement s ” with “ similar fences ” atop “ similar landscaping and retaining walls.” In January 2018, the HOA filed a motion for summary judgment. T he HOA argued that
Rodina’s waiver defense failed because the CC&Rs contain multiple no

- waiver provisions and
that Rod ina failed to request approval for his actual project. In response, Rodina contended that genuine issues of material fact precluded summary judgment on the issues of waiver and the implied covenant of good faith and fair dealing. In support, Rodina submitt ed emails from the Board discussing two fence variances and some HOA Board meeting m inutes which discussed
fence variances. In response , the HOA argued that its approval of allegedly similar proj ects wa s “i rrelevant” in light of the CC&R s ’ non

- waiver provi sion on enforcement and non

- waiver provision for Architectural Committee approval

. The HOA also argued that Rodina failed to produce any evidence of bad faith.5 After the summary

- judgment hearing in February 2018, the district court granted the
HOA ’s mot ion

. In its written decision , the district court determined that Rodina exceeded the scope of the First Application and, as finished, his project violated a number of the CC&R’s.
R ejecting Rodina’s waiver defense
, the court ruled that the plain language of CC&R s ection 9.5 “clearly states the ‘ committee/[HOA] does not waive the enforcement of the [CC&Rs] simply because it has previously approved similar proposals

. ’ ” In addition, the district c ourt ruled that
Rodina failed to submit sufficient evidence to su pport a finding that the HOA had approved similar projects . Next, t he district court ruled that no genuine issues of material fact precluded an award of summary judgment on Rodina’s allegation that the HOA violated its duty of good faith and fair dealing

. The district c ourt reasoned that the Board did not breach its duty of good faith and fair dealing by approving other variances before denying Rodina’s project because the
HOA ’s decision and actions were within its discretion

. The district court ordered Rod ina to remove the unapproved construction and to restore the property to compliance with the CC&Rs

. The court also award ed attorney’s fees to the HOA under section 8.1 of the CC&Rs.
Rodina promptly filed a motion to r econsider. With it, Rodina filed a co py of a
memorandum decision and order issued in Eagle Springs HOA v. Herren

— a n earlier Ada County district court case involving the HOA

— and a personal declarati on. Rodina’s personal declaration stated that the HOA’s enforcement action against him “ has not been made in good
faith ” and wa s, Rodina believe d
, “ premised in part on my national origin, based upon derogatory statements made by one of Plaintiff’s board members. ” Rodina also declared that “ the
enforcement of the covenants has [sic] and is not uniform

. ” He attached seven photographs to the
declarations which were “ examples of violations that have not bee n enforced by the [HOA]

. ” Rodina stated that he took the attached photographs “ which show those violations by other members of the Association, includi ng the HOA President. ” The attached photographs show various fences and driveways with no identifying information other than one photograph indicating “HOA President”. Several of the photograph s appear to be of the same home. Rodina argued that the HOA had waived its right to injunctive relief by failing to u niformly enforce the

covenants. T his , Rodina argued, should preclude summary judgment because the district court found that there were similar improvements in its decision granting the HOA’s motion

. T he district court denied Rodina’ s motion for reconsideration. The court declined to
consider much of the evidence submitted on reconsideration for various reasons, including6 insufficient foundation
, relevancy, or that it contained a legal conclusion

. The c ourt also
corrected Rodina’s assertion that it had found that there were other similar projects: For clarification, this Court found there was not sufficient evidence to support a finding that the Committee had approved similar projects. Rodina has failed to present any additional evidence to support reconsideration of its finding that the record is insufficient to find a material issue of fact remains that the Association approved substantially similar projects. Recognizing that the Herren decision was no t binding, the district court nevertheless took its analysis into consideration but found it distinguishable. Rodina timely appeals

.
II. STANDARD OF REVIEW
A. Summary Judgment

“ This Court reviews a grant of summary judgment under the same standard of review the district court originally applied in its ruling. ” Johnson v. Wal

- Mart Stores, Inc. , 164 Idaho 53, 56, 423 P.3d 1005, 1008 (2018) (citing Conner v. Hodges , 157 Idaho 19, 23, 333 P.3d 130, 134 (2014)). The movant carries the burden to show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” I.R.C.P. 56(a); Wattenbarger v. A.G. Edwards & Son s , 150 Idaho 308, 317, 246 P.3d 961, 970 (2010). To
determine whether the record contains genuine issues o f material fact , the trial court “must liberally construe the facts, and draw all reasonable inferences, in favor of the nonmoving party.”
Johnson , 164 Idaho at 56, 423 P.3d at 1008 (quoting Liberty Bankers Life Ins. v. Witherspoon, Kelley, Davenport & Too le, P.S. , 159 Idaho 679, 685, 365 P.3d 1033, 1039 (2016) )

. If the moving party has demonstrated the absence of a question of material fact, the burden shifts to the nonmoving party to demonstrate an issue of material fact that will preclude summary judgme nt. The nonmoving party must present evidence contradicting that submitted by the movant, and which demonstrates a question of material fact. However, a mere scintilla of evidence or only slight doubt as to the facts is not sufficient to create a genuine i ssue of material fact for the purposes of summary judgment.
Id. (internal quotations and citations omitted).
I n cases where the trial court will sit as the trier of fact, the trial court “is entitled to arrive at the most probable inferences based upon t he undisputed evidence properly before it and grant the summary judgment despite the possibility of conflicting inferences.” P.O. Ventures v. Loucks Family Irrevocable Tr. , 144 Idaho 233, 237, 159 P.3d 870, 874 (2007) (citing Intermountain7 Forest Managemen t v. Louisiana Pacific , 136 Idaho 233, 235, 31 P.3d 921, 923 (2001)). “Resolution of the possible conflict between the inferences is within the responsibilities of the
fact finder.” Id. (citing Cameron v. Neal , 130 Idaho 898, 900, 950 P.2d 1237, 1239 (1997 )).
B. Restrict ive Covenants “Restrictive covenants, which restrict the uses to which a party may put his or her property, are valid and enforceable.” Brown v. Perkins , 129 Idaho 189, 192, 923 P.2d 434, 437 (1996) (citing Sun Valley Ctr. v. Sun Valley Co.
, 107 Idaho 411, 413, 690 P.2d 346, 348 (1984)).
But such covenant s are “in derogation of the common law right of a person to use land for all lawful purposes,” so this Court will not construe them “to extend by implication any restriction not clearly expres sed in the covenant s .” Id. (citing Post v. Murphy , 125 Idaho 473, 475, 873 P.2d 118, 120 (1994)). “All doubts and ambiguities are to be resolved in favor of the free use of land.”
Id. In other words, “restrictions that are found to be clearly expressed in the Restrictive Covenants are to be applied against the free use of land, while restrictions that are not clearly expressed will be resolved in favor of the free use of land.” Id. (citing Thomas v. Campbell , 107 Idaho 398, 404 690 P.2d 333, 339 (1984)).
O therwise, this Court generally applies the same rules of construction as it does for any other contract. Sun Valley Ctr. v. Sun Valley Co. , 107 Idaho 411, 413, 690 P.2d 346, 348 (1984). Where contract terms are clear and unambiguous, the interpretation of the contract’ s meaning is a question of law. On the other hand, where the terms of a contract are ambiguous, the interpretation of the contract’s meaning is a question of fact. The preliminary question of whether a contract is ambiguous is a question of l aw over which this Court exercises free review

. . . To determine whether there is an ambiguity in the Restrictive Covenants . . . [this] Court must determine whether the provisions are reasonably susceptible to conflicting interpretations. In interpreting any provisions of a contract or restrictive covenant, the entire agreement must be viewed as a whole

. Brown , 129 Idaho at 192

– 93, 92 3 P.2d at 437

– 38 (citations omitted).
III. ANALYSIS
A. The district court did not err in determining that Rodina exceeded the plain language of the First Application and that his project violated the CC&Rs.
1. We decline to consider Rodina’s argument that the Architectural Committee and the HOA failed to act on the First Application

. Rodina argues that the First Application’s approval was void because neither the Architectural Committee nor the HOA technically acted on it. Rodina contends that b ecause Nick Barber h andwrote the additional terms on the First Application , as opposed to the8 Committee or the HOA, that the terms did not apply

. Rodina argues that since the Committee never technically acted on the application, the application was automatically approved as
submitted due to the Committee ’s failure to act on the submission. In response, the HOA asserts that Rodina failed to preserv e this argument and invited any possible error because he admitted that the First Application was approved in his answer

. We agree with the HOA. This Court has consistently stated that we “ will not hold that a trial court erred in making a decision on an issue or a party’s position on an issue that it did not have the opportunity to address. ” State v. Gonzalez , 165 Idaho 95, 99, 439 P.3d 1267, 1271 (2019) . T o be properly preserved for appellate review, “ both the issue and the party’s position on
the issue must b e raised before the trial court . . . .” Id. In a similar vein, t he invited

- error doctrine “ estop [s] a party from asser ting an error when the party’s own conduct induces the
commission of the error. ” City of Middleton v. Coleman Homes , 163 Idaho 716, 727, 418 P.3d 1225, 1236 (2018) (quoting Thomson v. Olsen , 147 Idaho 99, 106, 205 P.3d 1235, 1242 (2009) ).

“ The purpose of the invited error doctrine is to prevent a party who caused or played an important role in prompting a trial court to [take a certai n action] from later chall enging that [action] on appeal.” Id. (quoting Taylor v. McNichols , 149 Idaho 826, 834, 243 P.3d 642, 650 (2010) ). Here, Rodina conceded that the First Application had been approved on numerous
occasions . The first instance was in the Second Application , when he began by stating: “As per previously approved request by the HOA . . .” Next, Rodina admitted that the Architectural
Committee a pproved his application in his answer by specifically admitting the allegations in paragraphs N o. 20 and No. 21 in the HOA’s complaint. There, the HOA alleged that “ [Rodina] applied for approval, and was granted approval by the Architectural Committee ” and t he

“ Approved Work was completed on or by September 11, 2016. ” Likewise, Rodina argued that
th e HOA approved his entire pro ject, not just the first phase , in his summary

- judgment motions

. He took the same position during oral argument at the sum mary

- judgment hearing

. And so , even if error could be assigned to the district court’s decision on this point
, no hint of Rodina’s appellate argument can be found below. Thus, Rodina failed to preserve this issue for appeal. See Gonzalez , 165 Idaho at 99, 439 P.3d at 1271. In addition , Rodina played an important role in creating any possible error that could be assigned to the district court’s decision by continually and consistently asserting that the First Application had been approved. See City9 of Middleton v. Coleman Homes , 163 Idaho at 727, 418 P.3d at 1236

. Thus, Rodina is estopped from asserting error under the invited

- error doctrine.
2. Rodina’s project exceeded the plain terms of the First Application.
Rodina next argues that the First Application should be read to cover his project. T he district court determined that many of Rodina’s impro vement s exc eeded the scope of the First Application . As a consequence, Rodina violated section 4.1 of the CC&Rs by failing to get the requisite approval for those aspects which exceeded the First Application

. In addition, Rodina’s project was found to be in violation of specific provision s of the CC&Rs as follows:

• The new fence’s height exceeded 6 feet without prior approval in violation of

s ection 4.2.4(a) (requiring fences to be no higher than six feet).

• The new fence was built closer than 20 feet to N. Cayuse Way in violation of

s ection 4.2.4(a) (stating that fences shall not extend closer to any street than 20 feet).

• The new fence was “ substantially different ” from the prior fence in violations of Section 4.2.3 (requiring “general conformance” for fences) and Nic k Barber’s comments (stating that the fence be “stained to match”).

• The retaining wall did not fall under the approval for “landscaping” because the “landscaping” and “walls” are listed as separate improvements under

s ection 3.12. Reasoning that its gran t of injunctive relief to remove the retaining wall and fence would remedy
all the remaining allegations, the district court dismissed the HOA ’s claims on grading and drainage violations. We apply a de novo review to the plain meaning of the CC&Rs and rea ch the same
conclusion. “ The determination of whether a document is ambiguous is a question of law, over
which we exercise free review. ” Atwood v. Smith , 143 Idaho 110, 114, 138 P.3d 310, 314 (2006)

. Rodina’s project ran afoul of the CC&R s ’ requirement tha t he receive prior approval. Unlike the Second Application, t he First Application does not even suggest that Rodina would build a retaining wall , construct a new fence, or move the north/south fence clos er to N

. Cayuse Way. Contrary to Rodina’s claims, b ui lding a separate retaining wall does not fall under “repairing” or “leveling” the existing fence. As used, t he term “leveling” refer s to straightening out the horizontal axis so the fence would sit parallel to the house’s horizontal lines. While this m ight have necessarily included rais ing one side, it does not necessarily include constructing a retaining wall or raising the entire fence and moving it closer to the street . Likewise,10 “extend[ing]” the fence “to cover the full length of the house ” plainly mea ns extending the north/south axis of the fence closer to Big Spring Blvd

. ( Which would thereby “cover” more of
the house as it extends further to the front of the house

. ) The east/west axis extending toward N

. Cayuse Way already “ covered ” the entire length of the back of the house. We agree with the
district court that the retaining wall cannot be read into the term “landscaping” because the
definition of improvements in the CC&Rs lists “landscaping” and “walls” separately. See Twin Lakes Vill. Prop. Ass’n

. v. Crowley , 124 Idaho 132, 137, 857 P.2d 611, 616 (1993) (“[V] arious provisions in a contract must be construed, if possible, so to give force and effect to every part
thereof. ”) (citation omitted). In addition, Rodina’s project also violated specific co venants and Barber’s admonition
that all repairs comply with the CC&Rs

. First, the new fence impermissib ly encroached on N

. Cayuse Way. While Rodina’s fence prior to the project was closer than the specified 20 feet from
N

. Cayuse Way, (the HOA “presumes” that this was done with the consent of the develop er), this existing encroachment does not give a subsequent property owner cart e blanche to enlarge the
variance. Next, t he fence exceeded the 6

- foot height limit because it sat upon a three

- foot retaining w all. While Rodina argues that the fence remains 6

- feet high and only the ground level has change d , t his hyper

- technical interpretation is unavailing. At a practical level, t he base of the
new fence feature s a three

- foot tall section which was then covered by fill dirt and the retaining wall. Without the unapproved fill dirt and retaining wall, there is no question the fence is around
nine

- feet tall. In sum, Rodina has failed to show error in the district court ’s ruling that his project exceeded the scope o f the First Application’s approval and thus violated the CC&Rs

. B. The district court properly awarded summary judgment in favor of the HOA on Rodina’s defense of waiver. On appeal, Rodina takes issue with the district court’s reliance on the CC&Rs ’ no

- waiv er provisions. The Eagle Springs CC&Rs contain a number of no

- waiver (or “anti

- waiver”) provisions . First, section 9.5 of the CC&Rs declares that any approval granted by the
Architectural Committee “ shall not be deemed to constitute a waiver of any right t o withhold approval or consent as to any similar proposals, plans and specifications, drawings or matter whatever subsequently or additionally submitted for approval or consent. ” Next, section 9.9 provides that when the Architectural Committee grants a var iance, “[t] he granting of such a variance shall not operate to waive any of the terms and provisions of [the CC&Rs] for any11 purpose except as to the particular Building Lot and particular provision hereof covered by the variance . . . .” Lastly, section 15 .5.5 states that “[t]he failure to enforce any of the provisions herein at any time shall not constitute a waiver of the right to enforce any such provision.” “Waiver is an equitable doctrine based upon fairness and justice.” Hecla Mining Co. v.
Star

- Mor ning Mining Co. , 122 Idaho 778, 782, 839 P.2d 1192, 1196 (1992)

. It is “a voluntary, intentional relinquishment of a known right or advantage . . . . ” Pocatello Hosp. v. Quail Ridge
Med. Inv’r
, 156 Idaho 709, 719, 330 P.3d 1067, 1077 (2014) (quoting Knipe Land Co. v.
Robertson , 151 Idaho 449, 457, 259 P.3d 595, 603 (2011)). The “party asserting waiver must have acted in reliance upon the waiver and altered the party’s position.” Hecla Mining Co. , 122 Idaho at 782, 839 P.2d at 1196 (quoting Brand S Corp. v. King , 102 Idaho 731, 734, 639 P.2d 429, 432 (1981)). However, “[w]aiver will not be inferred from the parties’ conduct absent ‘a clear and unequivocal act manifesting an intent to waive, or from conduct amounting to estoppel.’ ” Pocatello Hosp. , 156 Idaho a t 719, 330 P.3d at 1077 (quoting Knipe Land Co. , 151 Idaho at 458, 259 P.3d at 604 ). In the context of restrictive covenant s , “[w]aiver usually involves a failure to object to other violations of the same or similar servitudes such that it would be
unfair to allow the claimant to enforce the servitude against the current violation.” Restatement (Third) of Property (Servitudes) § 8.3 (2000). “The existence of waiver ordinarily is a question of fact and is foremost a question of
intent.” Hecla Mining Co., 122 Idaho at 782, 839 P.2d at 1196. “In order to establish waiver the intention to waive must clearly appear, although it may be established by conduct.” Id. “[I]f there is any substantial evidence in the record to support a waiver it is for the trier of fac t to determine
whether the evidence establishes such a waiver.” Fletcher v. Lone Mountain Rd. Ass’n , 162 Idaho 347, 354, 396 P.3d 1229, 1236 (2017) (quoting Riverside Dev. Co. v. Ritchie , 103 Idaho 515, 518, 650 P.2d 657, 660 (1982). “When . . . there is n o dispute as to the material facts and only one reasonable inference can be drawn from them, the question of whether a waiver has occurred becomes one of law.” 13 Williston on Contracts § 39:21 (4th ed.).
In Smith , this Court addressed how certain CC&Rs m ay be waived and why the factual circumstances are important to that determination. 82 Idaho 141, 350 P.2d 348 (1960). There, the defendant purchased property within a subdivision and began to build a home. Id. at 145,
350 P.2d at 350. Halfway through cons truction, the HOA filed suit alleging that the home would
violate the CC&R s ’ prohibition against homes located within ce rtain distances from “ street12 lines” Id. at 14 5

- 4 6, 350 P.2d at 350. At trial, the issue was whether “street line” referred to the
curb l ine or the property line. Id. at 147, 350 P.2d at 351. Determining the CC&R s to be unambiguous, the district court refused to admit the lot owner’s proffered testimony from eight
witnesses. Id. at 146, 350 P.2d at 351. The testimony would h ave, according t o the lot owner
, “disclose[d] that ten of the fourteen homes built in said subdivision were built at a distance of 25 feet back from the curb line, not 25 feet back from the property line. ” Id. at 147, 350 P.2d at 351.
This C ourt reversed, determining tha t the ter ms were ambiguous
, so testimony regarding their common usage in the subdivision was admissible. Id. The Court then articulated why such testimony was important: Where a court of equity is asked to enforce a covenant by ordering specific performanc e and granting an injunction to prevent a breach of it, equitable principles will prevail and the rules of fair dealing and good conscience must be applied. So in this case if such proffered evidence discloses that a substantial number of homes within the subdivision are in fact located less than 25 feet from the front property line it would be inequitable to require appellants to comply with the restrictions under an interpretation or construction different from that applied to other property owners.
Id. a t 148, 350 P.2d at 351

– 52 (emphasis added). Such testimony “would enable the court to determine if there had been such acquiescence in a particular interpretation by the parties
interested as to in effect constitute an abandonment of the construction and i nterpretation

c ontended for by respondents.” Id. The Court further noted that “[w]hether there has been such acquiescence depends upon the circumstances of each case.” Id. (citing 14 Am. Jur. 644, § 295.).
T he Smith court continued : Another material reaso n is that if such proffered evidence discloses that respondents have knowingly and without objection permitted several other grantees within the subdivision to violate the restrictions which they here seek to enforce against appellants equity will not assi st them in such enforcement. Such rule rests upon the equitable ground that, if any one who has a right to enforce the covenant and so preserve the conditions which said covenant was designed to keep unaltered shall acquiesce in material alterations of tho se conditions, he cannot thereafter ask a court of equity to assist him in preserving them.
Id. at 148, 350 P.2d at 352 (emphasis added).
Absent from Smith were any s o

- called “anti

- waiver” provision s to complicate the waiver inquiry. Despite failing to p rovide any authority in his brief, there is authority to support Rodina’s theory that a non

- waiver provision can be waived. For example, t his Court has held that such a provision could be waived in an adhesion cont ract

. See Lewis v. Cont’ l Life & Acc. Co.
,13 93 Idaho 348, 355, 461 P.2d 243, 250 (1969)

. More g enerally, courts hold that “a party to a written contract can waive a provision of that contract by conduct despite the existence of a so

called antiwaiver or failure to enforce clause in the contract.” 1 3 Williston on Contracts § § 39:36 (4th ed.). This rule “is based on the view that the nonwaiver provision itself, like any other term in the contract, is subject to waiver by agreement or conduct during performance.” Id. Indeed, anti

- waiver provision s are placed in contracts “to give a contracting party some assurance that its failure to require strict adherence to a contract’s term will not result in a complete and unintended loss of its contract rights if it later decides that strict performance is
desir able.” Id. A contractual provision which states that “a term or condition of any sort cannot be eliminated by a waiver

. . . is ineffective,” so “a party has the same power to waive the
condition

. . . as though the provision did not exist.” Id. But, “[i]n order to establish that an antiwaiver clause is not enforceable, the party asserting a waiver must show a clear intent to waive both the clause and the underlying contract provision.” Id. On appeal, Rodina’s arguments mostly attack no

- waiver provisions in restrictive covenants as a general matter . He asks this Court to void the CC & Rs ’ no

- waiver provision s as a matter of public policy. He contends that “[i]t is reversible error to hold that the Plaintiff can never waive its right to enforce specific terms o f the [CC&Rs] as a consequence of its past actions of approving similar improvements . . . or by failing to enforce [its] terms . . . .” Under Rodina’s formulation, the district court supposedly reasoned that no matter how many violations
or variances

— no m atter how severe the departure from the CC&Rs

— the HOA could never waive enforcement or abandon the CC&Rs. Legal error might well be assigned to such reasoning, but we do not read the district court’s decision so broadly.
When t he district co urt rejected R odina’s argument based on approval of similar projects
, t he district court reasoned that “[r]egardless of whether the Architectural Committee has approved similar proposals [,] ” the plain language of section 9.5 “clearly states the
Committee/ [HOA] does not waive the enforcement of the Declarations simply because it has previously approved similar proposal s.” L ater in its decision, t he district court also determin ed that Rodina had failed to advance enough evidence to show a genuine issue of material fact as to whether there were, in fact, “similar” projects: “Rodina has failed to submit any evidence of approval of substantially similar projects (such as having the same issues with fence height and movement as shown in the photographs of his Project).” While R odina submitted HOA Board14 Meeting Minutes and an email showing that the Association approved “variances in two recent
incidents” from the 20

- foot street distance requirement (§ 4.2.4(a) ), the court noted that “ [n] o approval form for either variance was sub mitted to create a material issue of fact for the C ourt’s consideration in evaluating whether the projects were substantially similar . . . .” Later on, the
district court clarified its decision when it denied Rodina’s motion for reconsideration . In

c orrec ting Rodina’s statements that the court had found the HOA failed to uniformly enforce the
covenants, the court reiterated : “[T]his Court found there was not sufficient evidence to support a finding in that the Committee had approved similar project s .”
Thus
, the district court’s decision pointed ly relied more on that lack of evidence than a broad application of the no

- waiver provisions. This being so, w e find no error in the district court’s analysis. T o survive summary judgment and advance his defense to th e factfinder,
Rodina wa s required to show evidence to support the inference tha t the HOA waived provision s of the CC&Rs. Fletcher , 162 Idaho at 354, 396 P.3d at 1236

. A s this matter was set for a bench
trial
, 1 the trial court was “entitled to arrive at the most probable inferences based upon the undisputed evidence properly before it and grant the summary judgment despite the possibility of conflicting inferences.” P.O. Ventures v. Loucks Family Irrevocable Tr. , 144 Idaho 233, 237, 159 P.3d 870, 874 (2007) (citing Intermountain Forest Management v. Louisiana Pacific , 136 Idaho 233, 235, 31 P.3d 921, 923 (2001)). Rodina was required to produce evidence supporting
the inference that the HOA intended to waive the following restrictions :

• The Architectural Commit tee must approve all improvements (§4.1).

• Fences must be n o higher than 6 feet (§ 4.2.4 ).

• Fences may not sit closer than 20 feet to any street. (§ 4.2.4)

• Fences must be “in general conformance” with the subdivision. ( § 4.2.3).

• Architectural Committee app roval of one project does not waive the right to deny a subsequent proposal. (§ 9.5).

• A variance does not waive any provision other than for the particular lot and provision for which it is granted. ( § 9.9)

1 At oral argument, some confusion arose regardin g whether this case was set for a jury trial or a bench trial

. Neither of the a ppellate counsel represented the parties for the entire proceedings below. The district court ’s decision stated th at the matter was set for a bench trial and t he only indication of a jury trial was a checked b ox in the parties’ proposed scheduling plan accepted by the court

. However, the minutes from a subsequent hearing reveal that the HOA informed the court this was an error and it should have reflected a bench trial. The court agreed and reset the matter. Re gardless, nei ther party made a jury demand, and t hus
, a bench trial was proper. See I.R.C.P. 38 (d) (“ A party waives a jury trial unless its demand is properly served and filed.” )15 • Failure to enforce any provision does not waiv e the right to enforce that provision. ( § 15.5.5).
V iewed in the light most favorable to Rodina, his proffered evidence fall s short.
Rodina claims the record discloses as many as four “ noncomplying ” fences which show that the Board “engaged in waiver” . H e first directs thi s Court’s attention to an email from Nick
Barber to the Board. There
, Barber apprised the Board of Rodina’s project and explained that they had “ a dilemma, ” because the HOA approved two variance s on prior occasions, but
Rodina’s fence was “ in a higher profile location in the subdivision and more visible. ” Barber also wrote that the HOA’s decision on Rodina’s project would “ likely set precedence [sic]

. ” Next,
Rodina points to the Board’s minutes where it di scussed the two prior variances. Th e July 18,
2016 minutes reveal that one of the two fences was “ relocated prior to the board reviewing [,] ”
but “ the board agreed it is not worth the legal fees that would be incurred by the HOA to force
him to take it down. ” Next, Rodina directs this Court’ s attention to the Board’s minutes from June 20, 2016 , where there was additional discussion about a “fence relocation and variance request” that had been “relocated without prior approval” and was in violation of the CC&R s prohibiting fences closer than 2 0 feet from the street. Rodina next highlights the Board’s Minutes from August, where the Board discusses how denying a homeowner ’ s “phase two of the fence
install

. . . would not stand up in court” because while “[t]here is a restriction that a fence cann ot exceed six feet in height . . . it does not stipulate how short it can transit to and does not address ‘decorative’ options

. ” Recalling that “[w]aiver will not be inferred from the parties’ conduct absent ‘a clear and unequivocal act manifesting an int ent to waive, or from conduct a mounting to estoppel[,]’”
Rodina has not met his burden to produce evidence supporting an inference of waiver by the
HOA in this case

. Pocatello Hosp. , 156 Idaho at 719, 330 P.3d at 1077 (quoting Knipe Land Co.
, 151 Idaho at 457, 259 P.3d at 603). First, Rodina’s reference to “noncomplying” fences is a
mischaracterization. Rodina has produced a record which shows that the HOA approved two (at most, four ) variances for fences. Under the CC&R s, granting a variance excuses the vi olation for
which it is granted. Thus, there is no violation of the CC&Rs. Likewise, granting a variance does not waive the HOA’s ability to deny a variance in the future. So m erely pointing to the approval of a similar project does not serve as a basis fo r Rodina to reasonably infer that the HOA waived the underlying covenant. A ny variance granted by the Architectural Committee falls short of the16 “ clear and unequivocal act manifesting an intent to waive ” the provisions subject to the
variances. Second, Ro dina has produced two actions that would support an inference that the HOA
intended to waive , at most, two sections of the CC&Rs. T he Board granted one variance even though the fence was completed before the homeowner sought approva l and sat closer than 20
feet to the street

. While the variance absolves the impropriety, this at least shows an aberration
f rom the plain terms of the CC&R s

. A lthough t his supports the inference that the HOA waiv ed
enforcement of the prior

- approval provision (§ 4.1) and the dist ance

- from

- the

- street provision (§ 4.2.4), this evidence falls well short of “a clear and unequivocal act” to waive the specific

covenants regarding fence height (§ 4.2.4(a)) and construction ( § 4.2.3)

. Pocatello Hosp. , 156 Idaho at 719, 330 P.3d at 1077

. Third, this evidence falls short of showing intent to waive any of the non

- waiver provisions. For the project that was granted a variance despite failing to secure Architectural Committee approval, t he HOA came to this conclusion because it was “not worth the legal fees”
to enforce. T he CC&Rs require the Board to consider such a factor under section 9.7.3 of the CC&Rs. (“[T]he Board shall determine whether there is a noncompliance and, if so, the nature thereof and the estimated cost of correcting or removi ng the same.”)

. T he Board assessed the severity of the violation and the cost to enforce it, and eventually decid ed to grant a variance

. In
contrast, the Board noted that Rodina’s project is in “a higher profile location” than the other project s and ultima tely decided against approving his proposed w o rk or granting a variance. S o, b y presenting evidence that the Board discussed each proposal in detail and worried about “setting precedent ,” Rodina produced evidence which supports the inference that the Board did

not intend t o waive any of the CC&R’s, let alone any of the non

- waiver provisions

. As such , Rodina failed to produce sufficient evidence to show the Board waived it s right to deny his application or enforce the CC&R s against him. Even though some of the HOA’s actions could support an inference of waiver for certain provisions , those actions also show compliance with the CC&Rs and fail to show intent to waive the no

- waiver provisions . Thus, the district court properly awarded summary judgment to the HO A despite the conflicting inferences by adopting the most reasonable inference from the undisputed facts

. See P.O. Ventures , 144 Idaho at 237, 159 P.3d at 874.17 Lastly, we decline to address Rodina’s arguments which are founded in hypotheticals
rather than the facts of this case. The facts of this case remove it from the equitable considerations that carried the day in Smith

. This is not a case were the HOA has failed to enforce its provisions and a substantial number of the homes are in violation. Smith as ked whether a lot owner could seek injunctive relief to impose a restriction even though 71% of the homes were in violation of that particular CC&R if the plain meaning were given to the disputed

terms

. Here, there is no dispute about the plain meaning of the CC&Rs. Rather, every example of

a “noncompliance” that Rodina produced was not a violation under the express terms of the
CC&R’s because each was granted a variance. This falls short of “several violations” constituting a “material alteration” of the r estrictive covenant s. Smith , 82 Idaho at 148, 350 P.2d
at 352

. And even if the variances were violations, they would represent only 4 homes in a 230

- lot subdivision, or just under 2% of the homes. This stands in sharp contrast to the 71% of the
homes in Sm ith

. C. The district court properly determined that t he HOA did not violate the implied covenant of good faith and f air dealing. Rodina next argues that the HOA violated the implied covenant of good faith and fair dealing by failing to uniformly enforce the covenants. In support, Rodina cites to the Ada County
district court decision in Herren and section 15.6 of the CC&R s

. Rodina also urges this Court to “broaden” the implied covenants by “requiring homeowners to carry the burden of proving, by a prepondera nce of the evidence, that wa i ving [a specific covenant] for some owners, but not others, has been made in good faith.” In response, the HOA contend s that Rodina raises this issue for the first time on appeal by only citing to Idaho’s General Business Corpo ration statute s regarding fiduciary duties in his answer . Even if properly preserved, the HOA contends that the district court prope rly ruled that the HOA did not violate the implied covena nts of good faith and fair dealing based on Rodina’s lack of eviden ce and the plain terms of the CC&Rs . Lastly, the HOA contends that Rodina failed to preserve his broaden

- the

- im plied

- covenants argument below. As a preliminary issue , the HOA’s argument that Rodina failed to argue the implied covenant of good faith and f air dealing before his motion for reconsideration can be quickly disposed of . Rodina’s answer stated: Rodina denies the allegations of Paragraph 7, because while the [HOA] may enforce the provisions of the [CC&Rs] , Rodina specifically d enies that this18 enfo rcement is “ fair and reg ular.” The enforcement of the Declaration has been uneven and discriminatory. The enforcement of the Declaration is subject to the limitations of the implied covenant of good faith and fair dealing , and the conduct of the Associatio n is also constrained to be exercised in good faith pursuant to I.C. 30

- 29

- 830,

- 842, and pursuant to their fiduciary duties, see Steelman v. Mallory
, 110 Idaho 510, 716 P.2d 1282 (1986). The prosecution of this complaint exceeds those limits and is not a validly authorized action.
Rodina also advanced both sources in his memorandum opposing summary judgment , thereby preserving both issues for appeal. As a second preliminary issue, we decline to analyze Herren v. Eagle Springs HOA

— the Ada County district court case that Rodina advanced below and on appeal

— in this opinion

. The opinion of a lower court is not binding on this Court. And while t he memorandum decision in that case contains sound legal reasoning, it involved a different homeowner, different fac ts, and different provisions of the CC&Rs

. It is no more binding on this Court than it was on the district court. The district court properly distinguished it
, and we find no reason to reiterate that analysis
here.
W hile multiple sources of good faith an d fiduciary duty were raised below, Rodina only advances the implied covenant of good faith and fair dealing on appeal. The implied covenant of good faith and fair dealing requires “that the parties perform in good faith the obligations imposed by their ag reement,” and a violation of the covenant occurs only when “either party violates, nullifies or significantly impairs any benefit of the contract

. ” Thurston Enterprises, Inc. v. Safeguard Bus. Sys., Inc. , 164 Idaho 709, 723, 435 P.3d 489, 503 (2019) (citin g Idaho First Nat’l Bank v. Bliss Valley Foods, Inc. , 121 Idaho 266, 288, 824 P.2d 841, 863 (1991) )

. “No covenant will be implied which is contrary to the terms of the contract negotiated and executed by the parties.” Shawver v. Huckleberry Estates , L.L.C. , 140 Idaho 354, 362, 93 P.3d 685, 693 (2004) (citing First Sec. Bank of Idaho v. Gaige , 115 Idaho 172, 176, 765 P.2d 683, 687 (1988)). In support, Rodina argues that section 15.6.1 of the CC&Rs requires the HOA to “uniformly enforce” the CC&Rs. That prov ision provides: Interpretation. The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for the development and operation of the Property. This Declaration shall be construed and governed under t he laws of the State of Idaho.
T his provision does not require the HOA to enforce its provisions uniformly. Rather, this provision urges the Architectural Committee to interpret the terms in light of the CC&R s ’19 purpose “to protect, enhance and preserve th e value, amenities, desirability, and attractiveness”
of the subdivision

. By requiring the Committee to approve every improvement , the CC&Rs

ensure the uniformity of the subdivision. However, t he Committee is empowered to grant variances to permit reasonab le deviations when circumstances so require and changes would not
sacrifice the overall uniform scheme. Because the CC&Rs grant the Committee discretion in approving improvement s and granting variances, no violation of the implied covenant of good
faith an d fair dealing directly flows from a Committee decision denying an application . This is

true even if it previously granted variances for other projects. We will not imply a covenant of
uniform enforcement where none exists. See Shawver , 140 Idaho at 362, 9 3 P. 3d at 693

. For similar reasons, Rodina has not show n bad faith by pointing to the existence of other variances.
He merely shows separate instances where the Committee exercised its discretion and reached a
different outcome. The undisputed material fa cts do not tell a story of bad faith or an unreasonable exercise
of that discretion

. Rodina submitted the First Application to the Committee. The Commi ttee approved it. Only when Rodina began a project substantially outside the approval’s scope did the
HOA i nquire about the project. Despite this, t he HOA allowed Rodina to submit the Second Application for consideration. T he HOA informed Rodina that the Second Application would not be approved because it violated a nu mber of the CC&Rs

. However, the HOA offer ed to meet
with Rodina and invited him to submit an additional application with plans bringing the project
into conformance . After an additional meeting, and no new submission by Rodina, the
Committee denied the Second A pplication. Yet Rodina persisted wit h construction, telli ng the HOA that he was getting c ounty approval. This was despite repeated explanations from the HOA that the county c o de did not supersede or replace the CC&Rs. Before bringing its complaint, the
HOA again explain ed its position to Rod ina and offered him another chance to bring his property
into conformance to avoid any additional action. Rodina ignored the invitation. Applying the undisputed facts to the CC&Rs, there is no violation of the implied covenants of good faith and fair deal ing. As pointed out by the district court, the Board acted within the discretion granted to it under the CC&R’s. The district court also noted that the HOA
submitted evidence , including an affidavit from Nick Barber, showing the “[t]wo fence variance

reque sts [were] submitted and were discussed in detail,” which allowed the Committee to consider the “property location in the subdivision, visibility of the fence . . . the aesthetics of the20 fence[, and] drainage pattern.” The Board determined that Rodina’s co mpleted project “negatively impact[ed] the aesthetics of the subdivision and unreasonable interfere [d] with the use and enjoyment of neighboring lots.” This evidence permitted the district court to infer that
the Committee denied Rodina’s Second Applicatio n only a fter “ careful consideration ” of the
CC&Rs ’ guidelines . Thus, we find no error in t he district court ’s conclusion that Rodina “failed
to show a material issue of fact exists that the Board/Committee acted in a manner that was self

serving or outside the scope of their discretion

. . . .” Lastly, Rodina’s argument that this Court should “broaden” the implied covenants is unsupported by argument or authority a nd not raised below . He si mply asks this Court to “requir [e] homeowners associations to carry the burden of proving, by a preponderance of the evidence, that waving [a specific covenant] for some owners, but not others, has been made in good faith.” Rodina’s argument in this regard is that the district court’s reliance on the no

- waiver provision co uld allow bad faith dealing. The district court rejected this argument when Rodina
made it in his motion for reconsideration , reasoning that Rodina “still does not include any argument or evidence that the Board’s decision as to Rodina’s Project was made i n bad faith.” We likewise decline to entertain this argument on appeal because it addresses situations not at
issue in this case. Ameritel Inns, Inc. v. Pocatello

- Chubbuck Auditorium , 146 Idaho 202, 205, 192 P.3d 1026, 1029 (2008) ( “ We decline to address a hypothetical scenario not at issue in this case, as such a discussion would be mere dicta.”). To the extent Rodina argues that the HOA violated the implied covenants by bringing an enforcement action against him, the argument is
meritless. Both below and on appeal, Rodina has argued that the HOA can waive its right of enforcement by failing to enforce provisions. Thus, Rodina effectively concedes that the HOA’s decision to enforce Rodina’s violations was necessary to protect the subdivision and the CC&Rs.
D. Rodina raises his argument that Idaho should adopt the doctrine of reasonable expectations for the first time on appeal

. Rodina asks this Court to recognize the doctr ine of reasonable expectations and asserts that “the doctrine should be extended and in cluded as a subset of the good faith and fair dealing doctrine, to all adhesion contracts, including restrictive covenants. ” Rodina raises this argument for the first time on appeal. As a result , we decline to entertain this argument. See Bradford v.
Roche Moving & Storage , 147 Idaho 733, 736, 215 P.3d 453, 456 (2009) (“We will not address
issues raised for t he first time on appeal.”) (citation omitted).21 E. Whether either party is entitled to attorney ’s fees. Rodina asks for attorney ’s fees under a number o f bases ; however, he is not entitled to fees because he is not the prevailing party

. The HOA argues that it , as the prevailing party, is entitled to attorney ’s fees on appeal under sections 8.1 and 7.5 of the CC&R’s
, the HOA’s bylaws , and Idaho Code sectio n 12

- 121

. Section 8.1 of the CC&Rs reads in relevant part: In the event an attorney or attorneys are employed . . . to enforce compliance with

or specific performance of the terms and conditions of this Declaration, each Owner agrees to pay reasonable atto rney’ s fees in addition to any other relief or remedy obtained against such Owner.
Because we determine that the HOA prevail s on appeal, we award the HOA attorney ’s fees on appeal under section 8.1 of the CC&Rs.
CONCLUSION
We affirm the district court’s o rder grant ing summar y judgment in favor of the HOA and granting injunctive relief. A ttorney ’s fees and costs to the HOA. Justices BRODY, BEVAN, STEGNER, and MOELLER CONCUR

.