Cline v. Berg , 273 Va. 142 ( 2007 )

Present: All the Justices
THOMAS SCOTT CLINE, ET AL.
v. Record No. 060237 OPINION BY JUSTICE CYNTHIA D. KINSER
January 12, 2007
ROY C. BERG, JR.
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
Roy C. Berg, Jr. (Berg), filed a bill of complaint
against Thomas S. Cline and Teresa B. Cline (the Clines),
seeking an injunction requiring the Clines to dismantle and
remove a 32-foot high, 200-foot long fence constructed of
utility poles and plastic wrap because it unreasonably
interfered with Berg’s use and enjoyment of his real
property. After hearing evidence ore tenus, the circuit
court held the fence was a private nuisance and ordered the
Clines to remove it. We, however, conclude the circuit
court abused its discretion in granting injunctive relief
to Berg because it failed to apply the “clean hands”
doctrine. For that reason, we will reverse the circuit
court’s judgment.
RELEVANT FACTS
Berg and the Clines are adjacent landowners in Augusta
County and previously lived next door to one another.
After several disagreements between the parties, the Clines
decided to move from their residence adjoining Berg. They
built a home on a 76-acre parcel of real estate that also
joins Berg’s property. The Clines’ new home is still in
view of Berg’s residence although it is situated
approximately 1800 feet away on top of a hill.
Soon after moving into their new home in January 2005,
the Clines discovered that Berg had constructed a tripod
about 11 feet tall and equipped with motion sensors and
seven flood lights. The flood lights intermittently come
on when the Clines turn on certain lights in their home. A
neighbor, who had been to the Clines’ home on several
occasions, testified that Berg’s lights are obviously
directed at the Clines’ home and illuminate their property.
The neighbor likened the lights to “someone having their
high beams on their car shining them towards the house.”
The Clines learned Berg had also installed
surveillance cameras on his property. The cameras tracked
some of the Clines’ movements while on their property.
When asked at trial if any of the cameras had the Clines’
house in view, Berg answered, “Not really. . . . If [the
cameras] track across – the camera that sits there on
camera three on the tracker . . . might catch the very top
of [the Clines’] roof [b]ut [t]hey are not aimed at his
home or his house.” The Clines’ evidence, however,
contradicted Berg’s testimony. Because Berg’s surveillance
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system uses “wireless . . . cameras” that operate on an
“open frequency,” the Clines were able to pick up the
wireless signal from Berg’s cameras. When the Clines began
receiving interference on their television, they unplugged
the wireless transmitter they use with their television,
and, in Mr. Cline’s words, “low and behold there’s our
house on the TV.”
Berg testified he installed the lights because rabid
raccoons had been spotted in the neighborhood and because
the Clines had allegedly harassed him. Berg also
introduced testimony from a real estate appraiser who
opined the Clines’ fence has caused a “nine percent
diminution in [the] value” of Berg’s property. But, the
appraiser admitted the market value of Berg’s property
would increase by nine percent if the Clines remove the
fence.
In a letter to Berg, the Clines’ attorney warned that
“[t]he intensity and direction of [the] lights make them
very noticeable in the Cline[s’] house and are disrupting
their use and enjoyment of their home.” He requested Berg
to “redirect these lights so that they do not illuminate or
shine in the direction of the Cline[s’] property, or just
. . . leave them turned off.” Berg testified that, in
response to the letter, he changed the wattage of the bulbs
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in the flood lights from 125 watts to 100 watts and
“double-checked” to insure that the illuminated area is
within the boundary of his property.
When Berg failed to comply with the request to
redirect the lights, the Clines’ attorney again wrote to
Berg, informing him to
accept this letter as notice on behalf of the
Clines that they plan to build a solid fence
between your property and theirs. This will be
high enough to block their view of your property,
and to address your stated concerns. They would
prefer not to incur this expense, but your
actions leave them no choice. Unfortunately, to
be effective, this fence will have to be 35 feet
high and over 200 feet long and will run close to
your rear property line. Frankly, it will be an
eyesore and probably affect not only their
property value, but yours as well. However,
their undisturbed use of their home and property
are worth the expense and inconvenience.
Plans will be to start this project in five
days. If you do not want this built, simply
leave the Cline family alone, and turn off your
light display. If you continue with your antics,
they will have no other recourse than to proceed.
A few months later, the Clines built the fence at
issue. It is constructed with approximately 20 utility
poles spaced 10 feet apart. A type of plastic wrap used to
cover silage is attached to the poles. The fence is 32
feet high and runs approximately 200 feet along the border
between the Cline property and the Berg property. The
Clines initially considered building a 50-foot high, indoor
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horse-riding arena but settled for the fence as a
compromise to their other neighbors. Mr. Cline testified
the fence blocks the lights and other devices Berg
installed to watch the Cline family and then explained why
he erected the fence:
The reason is because Mr. Berg was stalking us.
He basically used the lights as an intimidation
factor. Every time me or my wife would walk out
to let the dog out, he would sit there and play
with the lights on and off to let us know that he
was watching us. If we would drive up and down
our own driveway, he would take the lights and
track us with it. If my son was down in the
field taking care of the neighbor’s horses and
coming back up, then he would be waiting with the
lights.
When Berg filed his bill of complaint against the
Clines, he circulated a letter to nine other nearby
residents, seeking their support in having the Clines’
fence removed.1 Berg stated in his letter, “I hate to burst
[the Clines’] bubble but I am from the city with apartment
buildings that are 20 and 30 stories high, and no view of
anything but walls, and trash cans. I will just install
higher perimeter lights that will light, track, and record
movement around my property.”
After considering the evidence introduced by both
parties, the circuit court, in a letter opinion, rejected
1
Notably, none of these residents testified on Berg’s
behalf at the trial in this case.
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Berg’s explanation for installing his surveillance system.
The court explained that, when “compar[ing] the testimony
of Berg against the evidence introduced by the Clines
. . . , it becomes apparent that Berg was not truthful with
the [c]ourt.” In the circuit court’s view, “[t]he evidence
introduced by the Clines proved beyond any question that
Berg’s surveillance system allowed Berg to watch on his
television anything going on at the Cline residence,
provided it took place in front of an open window.”
Continuing, the circuit court expressed the “firm
. . . opinion that Berg [was] primarily responsible for
what is an intolerable situation” and stated it was
“satisfied beyond question that the Clines would never have
even thought about such a fence had they been left alone.”
Addressing the Clines’ argument that the “clean hands”
doctrine barred the equitable relief sought by Berg, the
circuit court indicated it “could, in good conscience,
dismiss the [b]ill of [c]omplaint on that doctrine.” The
circuit court even stated the “clean hands” doctrine would
be the “[f]irst and foremost” way to rule in favor of the
Clines. But, the circuit court refused to apply the
doctrine because it believed the fence is “an ugly scar on
a beautiful area” and should be removed. The circuit court
concluded that, although the fence does provide some
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protection to the Clines from Berg’s lights and is not a
“spite fence,” it is nonetheless a private nuisance.2
For the reasons stated in its letter opinion, the
circuit court entered an order directing the Clines to
remove the fence from their property. The Clines appeal
from that judgment.
ANALYSIS
The dispositive issue on appeal is whether the circuit
court abused its discretion in granting injunctive relief
to Berg because it failed to apply the “clean hands”
doctrine. With regard to that issue, the Clines argue that
Berg, as the party seeking an equitable remedy, must have
“clean hands” in order to prevail. Continuing, the Clines
point out that the circuit court found “Berg [was]
primarily responsible for what is an intolerable situation”
and that it could dismiss the bill of complaint on the
“clean hands” doctrine. Given these findings, the Clines
contend the circuit court then abused its discretion by
ignoring Berg’s “unclean hands” and granting him injunctive
relief.
“The doctrine of ‘unclean hands’ is an ancient maxim
of equity courts,” Richards v. Musselman, 221 Va. 181, 185,
2
The term “spite fence” is defined as “[a] fence
erected solely to annoy a neighbor.” Black’s Law
Dictionary 1437 (8th ed. 2004).
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267 S.E.2d 164, 166 (1980), and is generally expressed in
these terms:
“Pursuant to the equitable maxim that ‘He who
comes into equity must come with clean hands,’
. . . the complainant seeking equitable relief
must not himself have been guilty of any
inequitable or wrongful conduct with respect to
the transaction or subject matter sued on.
Equity will not give relief to one seeking to
restrain or enjoin a tortious act where he has
himself been guilty of fraud, illegality,
tortious conduct or the like in respect of the
same matter in litigation.”
Id. at n.1 (quoting W. deFuniak, Handbook of Modern Equity
§ 24 (2d ed. 1956)); accord Butler v. Hayes, 254 Va. 38,
43, 487 S.E.2d 229, 232 (1997) (“a litigant who seeks to
invoke an equitable remedy must have clean hands”);
Firebaugh v. Hanback, 247 Va. 519, 526, 443 S.E.2d 134, 138
(1994) (“[h]e who asks equity must do equity, and he who
comes into equity must come with clean hands”); McNeir v.
McNeir, 178 Va. 285, 290, 16 S.E.2d 632, 633 (1941) (“a
plaintiff must come in with clean hands, that is, he must
be free from reproach in his conduct”); Walker v.
Henderson, 151 Va. 913, 927-928, 145 S.E. 311, 315 (1928)
(same). Application of the doctrine turns upon the facts
of each particular case and is therefore left to the sound
discretion of the fact finder. Wiglesworth v. Taylor, 239
Va. 603, 608, 391 S.E.2d 299, 303 (1990).
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Applying these principles, we conclude the circuit
court abused its discretion by failing to apply the “clean
hands” doctrine. At the outset, we note that Berg did not
assign cross-error to the circuit court’s factual findings
that he was the party primarily responsible for the
“intolerable situation” at issue and that the Clines would
never have constructed the fence if Berg had merely left
them alone. Thus, those factual findings are binding on
appeal. Chesapeake Hosp. Auth. v. Commonwealth, 262 Va.
551, 565, 554 S.E.2d 55, 62 (2001).
Berg, nevertheless, maintains the circuit court was
correct in refusing to apply the “clean hands” doctrine.
Characterizing the circuit court’s factual and credibility
findings as “a severe ad hominem attack” upon his character
and testimony, Berg argues the application of the “clean
hands” doctrine in this case would create an inequitable
result and violate public policy because the fence is a
private nuisance.
It is true that the doctrine is not absolute and
should not be applied when the result would be inequitable
or violate public policy. Richards, 221 Va. at 185, 267
S.E.2d at 167; Harrell v. Allen, 183 Va. 722, 732, 33
S.E.2d 222, 226 (1945); Waller v. Eanes, 156 Va. 389, 398,
157 S.E. 721, 725 (1931). We do not, however, agree with
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Berg’s position that such a result would ensue in this
case. Berg ignores the circuit court’s finding that the
Clines would never have erected the fence if he had left
them alone as requested in their attorney’s letter to Berg.
The circuit court further opined “the fence would disappear
if the surveillance equipment, including the lights,
disappeared.” A court of equity “will not relieve against
conditions brought about by the improper conduct of the
party seeking relief.” Wilson v. Wall, 99 Va. 353, 356, 38
S.E. 181, 182 (1901). Irrespective whether the fence is a
private nuisance, Berg was not “free from reproach in his
conduct,” McNeir, 178 Va. at 290, 16 S.E.2d at 633, and
that conduct was “in respect of the same matter in
litigation.” Musselmann, 221 Va. at 185 n.1, 267 S.E.2d at
166 n.1 (citation omitted).
CONCLUSION
In light of the unchallenged factual findings
regarding Berg’s conduct, we conclude the circuit court
abused its discretion in failing to apply the “clean hands”
doctrine and deny the injunctive relief requested by Berg.
We will therefore reverse the judgment of the circuit court
and enter final judgment here in favor of the Clines.3
3
In light of our decision, it is not necessary to
address the Clines’ remaining assignments of error.
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Reversed and final judgment.
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