Elliott Sirota, et al., Respondents,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0995

Elliott Sirota, et al.,
Respondents,

vs.

Villas of St. Albans Bay Association,
Appellant.

Filed March 27, 2023
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Hennepin County District Court
File No. 27-CV-21-96

Elliott Sirota, Judith M. Sirota, Estero, Florida (pro se respondents)

Todd R. Iliff, Todd R. Iliff, P.A., Edina, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Jesson, Judge; and
Frisch, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
A tree in a common-interest community grew to partially obstruct respondents
Elliott and Judith Sirota’s (the Sirotas) view of Lake Minnetonka. As a result, litigation
ensued between the Sirotas and appellant Villas of St. Albans Bay Association (Villas),
which maintains the tree. The district court concluded that Villas did not breach any
covenants or duties to its common -interest-community members, but that the tree was a
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private nuisance that needed to be cut down. On appeal, Villas asserts that, because it did
not breach any covenants or duties to its members, this conclusion is legally inconsistent.
In addition, Villas appeals the district court’s vacation of fines that Villas levied against
the Sirotas for violating its Good Neighbor Policy. In a related appeal, the Sirotas assert
that the entire Good Neighbor Policy is invalid, and Villas breached its covenants and
duties to them as members of the common-interest community.
Because the record supports the district court’s findings that Villas breached neither
the covenants in its governing documents nor breached the duties owed to its members, we
affirm as to these two issues. We also agree with the district court’s determination that,
although Villas’s Good Neighbor Policy was properly enacted under its bylaws, the fines
were improperly levied against the Sirotas under that policy because Villas did not provide
sufficient notice to the Sirotas of their specific violations. As a result, we affirm on those
two issues as well. But because Villas was compliant with all its governing documents in
its maintenance of the tree, and thus did not act wrongfully—as the district court properly
determined—we reverse the court’s finding that the tree was a private nuisance.
Accordingly, we affirm in part, reverse in part, and remand to the district court to determine
the narrow issue of attorney fees as it relates to Villas.
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FACTS1
Villas maintains a common-interest community of 20 condominium units in
Greenwood that overlook Lake Minnetonka. Each owner of a unit is a member of Villas.
The Sirotas are owners of one of the units and have been members of Villas since 2000.
When the Sirotas purchased a unit at Villas, they paid a premium to be on the lake and, at
the time, had an unobstructed view of the lake. During construction, three river birch trees
were planted behind the condominium— between the lake and the units—in what Villas
calls its rain gardens. One tree was planted in a rain garden that the Sirotas’ unit overlooks.
Over time, this tree grew to partially obstruct the Sirotas’ view of the lake.
As a common- interest community, Villas and the common elements in its
community, such as the rain gardens and the trees, are governed by the Minnesota Common
Interest Ownership Act—Minnesota Statutes sections 515B.1-101 to 515B.4-118 (2022)—
and its governing documents, such as its amended declaration for the condominium
(the declaration), bylaws, and rules and regulations. The d eclaration includes
Villas-specific covenants and is signed by the members upon the purchase of a unit. One
of the covenants in the declaration, 12.03, states that Villas “shall maintain any rain garden
areas upon the Property as located and shown on the [final plans] and the Plat,” and 12.01
grants Villas “the exclusive right to manage, maintain and alter the common elements,”
such as the rain gardens and trees. The final plans mentioned in 12.03 refer to Villas’s

1 The facts outlined in this section are a summary of relevant portions of the bench trial
viewed in the light most favorable to the verdict.
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landscaping plans that were drafted before the common-interest community’s construction.
These plans outlined where the rain gardens and trees would be placed on the property.
Any conflicts between Villas and members arising out of the Minnesota Common
Interest Ownership Act and the governing documents are managed by Villas’s board,
which holds about two to three meetings each year. In August 2016, Villas’s board began
to receive a growing n umber of requests for tree trimming, due to certain trees partially
blocking some of the members’ views from their units. One of those requests came from
the Sirotas. Villas planned to trim some trees upon agreement by affected members. Villas
noted in a board meeting that the lakeside views were considered assets to the owners and
there was a general agreement to protect those assets within reasonable limits.
Between October 2016 and September 2017, Villas held numerous board
meetings— including a special board meeting to allow the Sirotas to air their grievances
surrounding the tree— to address, among other items, whether to remove, remove and
replace, or do nothing to the tree outside the Sirotas’ window. During this time period,
Villas sought advice from its arborist, who conducted the regular maintenance of the rain
gardens and trees. At trial, the arborist testified that the trees on the property received
regular maintenance, which consisted of trimming lower-level branches (branches that are
approximately ten feet from the ground) and removing dead branches in order to allow
sunlight to surrounding plants. Although the Sirotas requested that their tree be trimmed
more extensively off the top to remove partial obstructions of their view of the lake, the
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arborist advised the board against topping2 the tree and expressed that he was hesitant to
approve additional trimming or pruning of the tree because it would lead to more
maintenance responsibilities for Villas in the future. As a result, the arborist testified that
he advised Villas that the Sirotas’ request of trimming the top of their tree was not a viable
option. Ultimately, Villas, with consensus from other members—including members who
were also affected by the tree’s placement in front of their windows —did nothing to the
tree. Unsatisfied with Villas’s inaction, the Sirotas began sending emails to Villas about
the tree as well as continuously bringing forth their concerns at Villas’s board meetings.
Partly in response to the Sirotas’ persistent communications, in December 2017
Villas adopted a new regulation called the Good Neighbor Policy pursuant to its powers
under its bylaws. Primarily, the Good Neighbor Policy directs Villas’s members to refrain
from (1) bringing forth issues with the community that have previously been addressed and
(2) “making unjustified or unwarranted accusations about violations of the law or the
governing documents orally or in writing or in any public forum other than a meeting duly
called for such purpose.”
The Good Neighbor Policy does not discuss violations or fines. But Villas’s other
rules and regulations establish a complaint and enforcement procedure for policy
violations. Following a complaint of an alleged violation of a Villas policy, these
procedures require notice and an opportunity to be heard with Villas’s board, which then
determines appropriate and reasonable action in response to the alleged complaint or

2 Topping refers to a tree-trimming practice where the whole top of the tree is removed.
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violation. An “appropriate and reasonable action” includes fines. But fines are not to
exceed $100 for each violation. In 2019, the Sirotas were fined $200 for two violations of
the Good Neighbor Policy. The Sirotas paid those fines.
Between May 2020 and August 2020, the Sirotas sent approximately 10 to 13 emails
to Villas’s board members about the tree. As a result, in October 2020, Villas sent the
Sirotas a notice of further violations of the Good Neighbor Policy. But the notice did not
list the specific provisions the Sirotas violated. A hearing with Villas’s board was
scheduled for November 2020. Although given a notice of the hearing date, the Sirotas
chose not to appear for the hearing because they wanted to pursue their case in district
court. After the hearing, Villas fined the Sirotas $1,200 for 12 violations of the Good
Neighbor Policy. The Sirotas did not pay these fines.
In January 2021, the Sirotas filed a complaint against Villas primarily alleging that
the tree was a private nuisance, Villas breached the covenants within its governing
documents, Villas breached its duties to the Sirotas as members, and that the Good
Neighbor Policy was invalid, making the fines levied against them for violating that policy
unenforceable. In response, Villas answered the complaint and brought forth
counterclaims, which alleged that the Sirotas breached covenants in Villas’s governing
documents and sought payment of the Good Neighbor Policy fines . Villas also sought
injunctive relief prohibiting the Sirotas from violating the Good Neighbor Policy and
governing documents and a declaratory judgment on the validity of the Good Neighbor
Policy, the fines, and the Sirotas’ violations of that policy. Villas then moved for summary
judgment on all claims.
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In an August 2021 order, the district court granted summary judgment for Villas on
two of the Sirotas’ claims: equitable estoppel and waiver. The primary claims—of private
nuisance, breach of covenants by both parties, breach of duty by Villas, Villas’s request
for injunctive relief, whether the Good Neighbor P olicy and its fines were valid , and
attorney fees —proceeded to trial. After a bench trial, the district court concluded that
Villas did not breach any covenants or duties, but that the tree was a private nuisance. And
it concluded that the Sirotas were improperly fined for violations under the Good Neighbor
Policy, but that Villas did not exceed its authority in enacting that policy. The district court
denied Villas’s request for injunctive relief and attorney fees because it was not the
prevailing party and denied the Sirotas’ request for attorney fees as well.
Villas and the Sirotas appeal.
DECISION
This appeal involves a barrage of alleged errors by the district court. Villas asserts
that the district court erred on three grounds: (1) determining the tree was a private
nuisance, (2) finding its fines under the Good Neighbor Policy against the Sirotas invalid,
and (3) concluding it was not entitled to attorney fees. Meanwhile, the Sirotas contend that
the district court erred on four grounds: (1) concluding Villas did not breach any covenants
in its governing documents by its maintenance of the tree, (2) finding Villas did not breach
any duties to the Sirotas, as its members, (3) determining Villas did not exceed its authority
in adopting the Good Neighbor Policy, and (4) denying them attorney fees.
In reviewing these issues, first we note the standard of review. Next, we identify
the applicable law that governs each issue. Finally, we apply that law to the facts in the
8
record to determine whether Villas breached any covenants in its governing documents,
breached any duties to the Sirotas, or acted outside of its power in adopting—and fining
the Sirotas under—the Good Neighbor Policy. After making those evaluations, we address
whether the tree is a private nuisance and which party, if any, is entitled to attorney fees.
Generally, in reviewing findings and conclusions from a bench trial, “we do not
reconcile conflicting evidence,” and we “give the district court’s factual findings great
deference and do not set them aside unless clearly erroneous.” Porch v. Gen. Motors
Acceptance Corp., 642 N.W.2d 473, 477 (Minn. App. 2002), rev. denied (Minn. June 26,
2002). A finding is clearly erroneous if we are left with the definite and firm conviction
that the district court made a mistake. In re Distrib. of Att’y Fees between Stowman Law
Firm, P.A. & Lori Peterson Law Firm, 855 N.W.2d 760, 761 (Minn. App. 2014), aff’d,
870 N.W.2d 755 (Minn. 2015). When reviewing mixed questions of law and fact, we
accord the district court discretion in its ultimate conclusions and review such conclusions
under an abuse-of-discretion standard. Porch , 642 N.W.2d at 477. We review issues of
law de novo. Distrib. of Att’y Fees, 855 N.W.2d at 761.
I. The district court correctly concluded that Villas did not breach covenant 12.03
in its declaration when it planted the tree in a slightly different location from
the final landscaping plans.

The Sirotas assert that since Villas did not plant the trees in the rain garden near the
Sirotas’ unit in the locations specified in the final plans, Villas breached covenant 12.03 in
its declaration. The district court concluded that Villas did not breach any covenants
because the Sirotas failed to prove that the parties intended strict compliance with the final
plans for tree placement.
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Because a common-interest community’s governing documents—the declaration
here—constitute a contract between the association and its members, we apply a de novo
standard of review, which is applicable to contract interpretation because it is a question of
law. Roemhildt v. Kristall Dev., Inc., 798 N.W.2d 371, 373 (Minn. App. 2011), rev. denied
(Minn. July 19, 2011); Swanson v. Parkway Ests. Townhouse Ass’n, 567 N.W.2d 767, 768
(Minn. App. 1997). But whether the record supports the finding of fact that Villas did not
breach the declaration is a question of fact we review for clear error. Porch,
642 N.W.2d at 477
Here, the declaration outlines the obligations Villas owes to the Sirotas as members
of Villas. Specifically, section 12.03 of the declaration states that Villas “shall maintain
any rain garden areas upon the Property as located and shown” on the final plans. The
president of Villas testified that maintenance meant that the trees within the rain gardens
were regularly trimmed by an arborist. And the arborist testified that he regularly removed
dead branches and trimmed lower-level branches from the trees within the rain gardens on
the Villas property. No section in Villas’s declaration obligates Villas to maintain the
members’ lake views. Rather, Villas must maintain the rain-garden areas. On this record,
the district court’s conclusion that Villas complied with section 12.03 on maintenance of
the common elements, such as the tree at issue, was supported by the record and was not
done in error.
Still, the Sirotas argue that the intention behind section 12.03 in the declaration was
for Villas to strictly comply with the final plans when it planted the trees in the rain gardens.
In asserting this argument, the Sirotas point to the phrase “as located and shown on the
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final development plans” to show the intent to strictly conform to the final plans.
Accordingly, they assert the mis-planting of the tree directly outside of the Sirotas’ balcony
window is a breach of that covenant.
It is undisputed that the tree that partially obstructs the Sirotas’ view of the lake was
not planted in precise conformance with the final plans. What is disputed, however, is
whether a lack of strict adherence to these plans upon the initial planting of the trees in the
rain garden is considered a breach of the covenant to maintain the rain gardens as shown
in the final plans because one of the trees is partially obstructing members’ views of the
lake.
Like the district court, we do not discern an intent of strict conformance from the
phrase “as located and shown on the final development plans.” The district court here
properly interpreted section 12.03 to allow for some flexibility, given the context provided
by the final plan’s accompanying planting notes that permit field adjustments—notes that
specifically stated that “adjustments in location of proposed plant materials may be needed
in field.” This note provides support from the record that Villas, as described in the district
court’s order, intended “to allow for the possibility that the plants’ exact locations as
depicted in the [final plan] may be adjusted afterwards.”
In sum, the district court’s interpretation that “maintenance” does not include
strictly adhering to the final plans was not in error. Thus the court properly determined
that Villas did not breach covenant 12.03 in its declaration because its decision is supported
by the record.
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II. The district court properly concluded that Villas did not breach any duties to
the Sirotas under the Minnesota Common Interest Ownership Act when it did
not trim the tree outside of the Sirotas’ window per their specific request.

The Sirotas further argue that Villas breached its duty to them when it did nothing
to the tree outside of their window. Specifically, the Sirotas appear to claim that Villas
acted dishonestly when it deferred to the other Villas members its decision on whether to
remove, remove and replace, or do nothing to the tree. The district court concluded that
Villas did not breach its duties to the Sirotas because the Sirotas failed to present evidence
that Villas was dishonest or did not exercise good faith in addressing their request to trim
the tree.
Recall, for findings and conclusions from a bench trial, we “give the district court’s
factual findings great deference and do not set them aside unless clearly erroneous.” Porch,
642 N.W.2d at 477. A finding is clearly erroneous if we are left with the definite and firm
conviction that a mistake has been made. Distrib. of Att’y Fees, 855 N.W.2d at 761. When
reviewing mixed questions of law and fact, we accord the district court discretion in its
ultimate conclusions and review such conclusions under an abuse-of -discretion standard.
Porch, 642 N.W.2d at 477.
To evaluate this issue, we turn to the Minnesota Common Interest Ownership Act
section 515B.3-103(a), which codifies the duties imposed on a board of directors in a
common-interest community. The Act explains that elected directors, in the performance
of their duties, are required to exercise the care required of a director in a corporation or a
cooperative—to act in good faith, in a manner the director reasonably believes to be in the
best interests of the common-interest community, and with the care an ordinarily prudent
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person in a like position would exercise under similar circumstances.
Minn. Stat. § 515B.3-103(a) (citing to Minn. Stat. §§ 302A.251, 308B.455, and 317A.251
(2022)). Moreover, the directors are to fulfill the obligations and enforce the covenants of
the bylaws, rules and regulations, and declarations in a uniform and fair manner upon the
members. Id. Good faith means observance of two standards: (1) honesty in fact and (2)
observance of reasonable standards of fair dealing. Horodenski v. Lyndale Green
Townhome Ass’n, Inc., 804 N.W.2d 366, 373 (Minn. App. 2011).
Turning to the circumstances here, the district court determined that Villas did not
breach its duties to the Sirotas. The record provides ample evidence to support the district
court’s determinations that the board of Villas operated in good faith, with the care of an
ordinarily prudent director in a similar situation and in the interests of fairness among the
other Villas members. See Minn. Stat. § 515B.103(a). For example, Villas (1) conducted
two polls with the members regarding the Sirotas’ request to trim the tree, (2) consulted
with its arborist to get feedback on the best route to handle the Siro tas’ request without
ruining the foliage and overall landscape, and (3) called a special board meeting for the
Sirotas to air their concerns surrounding the tree’s placement. These undisputed facts in
the record establish that the district court did not abuse its discretion in determining Villas
did not breach its duties to the Sirotas because Villas made a fair and honest attempt to
appease all the members of Villas while also trying to reach a resolution with the Sirotas.
To persuade us otherwise, the Sirotas assert that Villas’s board was dishonest when
it deferred to member votes to make a decision on their request. But the board minutes
corroborate that Villas’s board of directors attempted to make a decision in the interests of
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fairness to all members when they deferred action to member votes. And Villas
acknowledged that the lake views were assets to the members, mentioned wanting to reach
a compromise with the Sirotas on the tree issue, and noted efforts (within reasonable limits
and within budget) to ensure members were on the same page about what to do with the
tree—since it is a common element of the community. Finally, the Sirotas were not the
only members affected by the tree at issue . Thus, Villas’s deference to member vote s
appears to have been in the interest of fairness, not dishonesty.
The Sirotas further assert that Villas acted dishonestly when it inaccurately
communicated the Sirotas’ tree-trimming request to the other members. The Sirotas
maintain that they requested a “trimming” of the tree, but Villas asked the members to
decide between removal, removal and replacement, or doing nothing to the tree. 3 In not
using the word “trimming,” Villas breached its duty to them, the Sirotas contend.
This argument also fails. Villas’s options to its members aligned with the advice it
was given from its arborist for how the tree could be fixed, which does not amount to
dishonesty. The arborist testified that it told Villas that trimming the tree (as the Sirotas
requested) and topping the tree (an alternative to trimming that Villas asked its arborist
about) were not feasible options. This meant that only two routes were viable for
potentially addressing the tree issue—removal or removal and replacement.

3 An email exchange from September 2017 outlines that Villas conducted two polls with
its members. The first poll asked members whether they wanted to remove, replace, or do
nothing to the tree. The second poll asked members whether they wanted to cut one trunk
of the tree or do nothing.
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In sum, the record supports the district court’s findings and ultimate conclusion that,
although there was disagreement as to what should be done, Villas operated in good faith
in making decisions regarding the tree.
III. The district court properly determined that Villas was within its authority
when it adopted the Good Neighbor Policy but exceeded its authority when it
levied fines against the Sirotas for alleged policy violations in 2020.

The Sirotas assert that Villas exceeded its authority as laid out in its bylaws when it
enacted the Good Neighbor Policy. And Villas argues— while defending its authority to
invoke the policy —that the district court erred when it vacated the fines Villas levied
against the Sirotas for violating the policy . In resolving these issues, the district court
concluded that, although the Good Neighbor Policy was validly enacted by Villas, Villas
improperly levied fines against the Sirotas for violating the policy. Applying a de novo
standard of review, we first address the validity of the Good Neighbor Policy, then turn to
whether the fines were properly levied under that policy.
The Good Neighbor Policy
To determine whether Villas’s implementation of the Good Neighbor Policy
exceeded its authority, we look to the Minnesota Common Interest Ownership Act and
Villas’s bylaws. Villas’s bylaws section 6.4 adopted the exact language from the
Minnesota Common Interest Ownership Act’s section 515B.3- 102(a)(1)(i-vii), which
grants a common-interest community the power to adopt rules and regulations surrounding
the conduct of its members as long as it pertains to their health, safety, or welfare, noise or
disturbing activity, or potential damage to the common elements or units. Specifically,
15
Minnesota Statutes section 515B.3-102(a)(1)(i-vii), and by extension Villas’s bylaw 6.4,
states:
(a) . . . [T]he association shall have the power to: (1) adopt,
amend and revoke rules and regulations not inconsistent with
the articles of incorporation, bylaws and declaration, as
follows: (i) regulating the use of the common elements;
(ii) regulating the use of the units, and conduct of unit
occupants, which may jeopardize the health, safety or welfare
of other occupants, which involves noise or other disturbing
activity, or which may damage the common elements or other
units; (iii) regulating or prohibiting animals; (iv) regulating
changes in the appearance of the common elements and
conduct which may damage the common interest community;
(v) regulating the exterior appearance of the common interest
community, including, for example, balconies and patios,
window treatments, and signs and other displays, regardless of
whether inside a unit; (vi) implementing the articles of
incorporation, declaration and bylaws, and exercising the
powers granted by this section; and (vii) otherwise facilitating
the operation of the common interest community[.]

(Emphasis added.) Here, because the record reflects that the Good Neighbor Policy was
enacted to extinguish any harassment and bullying transpiring among Villas’s members,
Villas properly adopted this policy consistent with provisions (a)(1) (ii) and (a)(1)(vii) of
the bylaws—to regulate the conduct of unit occupants which may jeopardize the welfare
of other occupants. Villas was thus within its power to adopt the Good Neighbor Policy.
To persuade this court otherwise, the Sirotas contend that, because there was no
disturbing activity that needed to be rectified, Villas did not have the authority to
implement the policy. But this proposed standard severely limits the broad power given to
common-interest communities under the Minnesota Common Interest Ownership Act and
Villas’s bylaws to adopt rules and regulations, especially given the catchall provision,
16
which allows associations to adopt rules and regulations to “otherwise facilitat[e] the
operation of the common interest community. ” See Minn. Stat. § 515B.3-102(a)(1)(vii).
Moreover, the other provision, (a)(1)(ii), does not read that the regulation must have been
implemented due to disturbing activity in order to regulate conduct that may jeopardize
members’ welfare. Id. (a)(1)(ii). Rather, the provision lists three “which-es” and the word
“or” to show that at least one of the three conditions in (a)(1)(ii) can be the basis for the
adoption of new rules and regulations. Id.
In sum, the district court did not err in concluding that Villas was within its power
in adopting the Good Neighbor Policy to regulate members’ conduct.
Fines
Next, we turn to whether the fines Villas levied pursuant to the Good Neighbor
Policy were within its power as a common-interest community. The district court vacated
the fines because Villas did not “notify [the Sirotas] of specific rules [they] have violated,
and which of [their] communications caused the violation,” and as a result the Sirotas
would not have been able to defend themselves properly, even if they did appear at the
hearing in front of the Villas’s board. In determining this issue, we give great deference to
the district court’s findings of fact and do not set them aside unless they are clearly
erroneous. Porch, 642 N.W.2d at 477.
The Minnesota Common Interest Ownership Act’s section 515B.3-102(a)(11)
outlines the power of Villas to levy fines for violations of properly adopted rules and
regulations: “[T]he association shall have the power to . . . after notice and an opportunity
to be heard before the board or a committee appointed by it, levy reasonable fines for
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violations of the declaration, bylaws, and rules and regulations of the association.”
(Emphasis added.)
Here, although Villas complied with its governing documents when it sent the
Sirotas an email outlining a scheduled opportunity for them to be heard before the board in
November 2020,4 Villas’s lack of specificity as to the portions of the Good Neighbor Policy
that the Sirotas violated makes the fines invalid for lack of notice— which the district court
implicitly found. And that implicit finding is supported by the record here. A
common-interest association has no cause of action against a unit owner for fines when the
association “never gave notice to [a unit owner] that he was violating [a] particular rule.”
See Hamline House Ass’n v. Eibensteiner, 402 N.W.2d 832, 835 (Minn. App. 1987)
(explaining that the condominium association could not fine one of its members for renting
their unit to a family in violation of its bylaws without notice and an opportunity to be
heard pursuant to Minnesota Statutes section 515A.3-102(a)(11) (1984)). As a result,
because Villas failed to disclose the “particular rule[s]” that the Sirotas violated under the
Good Neighbor Policy, the record supports the district court’s determination that Villas
cannot levy fines against the Sirotas for violations of those rules. Id.
In sum, the record and caselaw adequately support the district court’s vacation of
the fines levied by Villas against the Sirotas because Villas did not specifically outline the
rules within that policy that the Sirotas violated before the hearing.

4 At oral argument, the Sirotas argued that they were also not given an opportunity to be
heard. This argument fails. Villas sent a notice of violations of the Good Neighbor Policy
that included a hearing date, time, and link to a virtual hearing. The Sirotas decided not to
attend the hearing. This choice did not deprive them of an opportunity to be heard.
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IV. The district court, after concluding that Villas did not breach any covenants or
duties, erred in determining that the tree on its property was a private
nuisance.

After concluding that the district court properly determined that Villas did not
breach any covenants in its governing documents in its maintenance of the tree nor any
duties to the Sirotas in handling their tree-trimming request, we now turn to whether the
tree is a private nuisance. The district court found that the tree was a private nuisance
because the tree materially and substantially infringed upon the free use and enjoyment of
the Sirotas’ unit through its partial obstruction of their view of Lake Minnetonka. Villas
maintains that the tree is not a private nuisance because the district court’s determination
that it did not commit any wrongful conduct is inconsistent with the conclusion that the
tree is a private nuisance. This assertion raises a legal issue, which we review de novo .
Porch, 642 N.W.2d at 477.
A private nuisance is outlined in Minnesota Statutes section 561.01 (2022) as
anything that obstructs the free use of property and interferes with the comfortable
enjoyment of life. Specifically, the statute defines a private nuisance as:
Anything which is injurious to health, or indecent or offensive
to the senses, or an obstruction to the free use of property, so
as to interfere with the comfortable enjoyment of life or
property, is a nuisance. An action may be brought by any
person whose property is injuriously affected or whose
personal enjoyment is lessened by the nuisance, and by the
judgment the nuisance may be enjoined or abated, as well as
damages recovered.

Minn. Stat. § 561.01.
19
Caselaw further clarifies this statute. In Highview North Apartments v. County of
Ramsey,5 the Minnesota Supreme Court further defined a private nuisance as a type of
damage that requires “some kind of conduct causing the nuisance harm which is wrongful.”
323 N.W.2d 65, 70 (Minn. 1982) (emphasis added) (quotation omitted). And what
constitutes wrongful conduct varies, as the Highview North Apartments court explains,
“and may at times be characterized as intentional conduct, negligence, ultrahazardous
activity, violation of a statute or some other tortious activity.” Id. at 71.
Here, the district court concluded that the tree was a private nuisance based upon its
factual finding that the tree substantially and materially interfered with the Sirotas’
comfortable enjoyment of their unit —because their enjoyment was directly ti ed to their
view of Lake Minnetonka. The district court did not—in its public- nuisance analysis—
identify any wrongful conduct by Villas. Nor, as explained above, did the district court
determine Villas acted wrongfully in the enforcement of declaration 12.03 and its duties
under the Minnesota Common Interest Ownership Act. Because wrongful conduct is a
threshold factor in finding a private nuisance, the district court erred. 6

5 The Sirotas assert that reliance on this case to establish the elements of a private-nuisance
claim is incorrect due to a 2003 Minnesota Court of Appeals case, Wendinger v. Forst
Farms, Inc., which holds that a claim of private nuisance does not require proof that the
nuisance harm resulted from a wrongful act except to the extent the plaintiff must prove
fault on the part of the defendant. 662 N.W.2d 546, 551 (Minn. App. 2003), rev. denied
(Minn. Aug. 5, 2003). But Highview North Apartments, as a Minnesota Supreme Court
decision, is the controlling authority here, and we are bound by its holdings.
6 We observe that the parties below—while vigorously contesting whether Villas engaged
in wrongful conduct— did not explicitly tie this issue to the public-nuisance claim, which
was also hotly contested. The Sirotas maintain that Villas thus waived this issue under
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). We discern that this issue still warrants

20
Highview N. Apartments, 323 N.W.2d at 70. And because the district court found no
wrongful conduct, the court erred as a matter of law in concluding that the tree was a private
nuisance.
Nor, upon our review of the record, do we discern wrongful conduct by Villas of
the type generally associated with a private nuisance. In a typical private-nuisance case, a
nuisance resulting from wrongful conduct is categorized as dangerous, toxic, or involving
undisputed infringements on property rights. See Citizens for a Safe Grant v. Lone Oak
Sportsmen’s Club, Inc., 624 N.W.2d 796, 797 (Minn. App. 2001) (holding stray bullets
from a gun club were a private nuisance for neighboring landowners because the gun club
was trespassing on their land). For example, in Highview North Apartments, the private
nuisance was water and sewage runoff into two apartment-building basements after
municipalities discharged these waters into ponds on nearby lands, which they were not
allowed to discharge on. 323 N.W.2d at 65, 70, 72. And in a similar situation involving a
tree—although not a partial view obstruction—in Holmberg v. Bergin, a tree was
determined to be a private nuisance and ordered to be removed because the tree was
pushing a fence out of line and was physically raising the ground level of the sidewalk.
172 N.W.2d 739, 739 (Minn. 1969). None of these cases provide support that a tree
partially obstructing a condominium-unit owner’s view of Lake Minnetonka, but not

appellate review because the individually alleged wrongful-conduct issues—on covenants
and duties—were thoroughly argued even though they were not explicitly tied to the
public-nuisance claim raised under Minnesota Statutes section 561.01 until this appeal.
But while we do not view this legal issue as waived, as the Sirotas argue, we sympathize
with the district court which no doubt would have benefited from more explicit briefing
below.
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creating—through the wrongful conduct of another—a dangerous, toxic, or contravention
of property rights of that owner, should be considered a private nuisance.
On this record, the district court’s conclusion that the tree was a private nuisance
was legally inconsistent with its accompanying findings and conclusions, which firmly
support that Villas did not commit any wrongful conduct. Accordingly, the district court
erred in determining that the tree was a private nuisance.
V. The district court acted within its discretion in denying the Sirotas’ request for
attorney fees, but whether Villas is entitled to attorne y fees as the prevailing
party must be remanded to the district court for reconsideration.

The Sirotas assert that the district court abused its discretion in denying their request
for attorney fees under two sections of the Minnesota Common Interest Ownership Act.
First, because they were the prevailing party. See Minn. Stat. § 515B.4-116(b) (authorizing
the district court to award reasonable attorney fees and costs to the prevailing party). And
second because Villas violated the Act and its governing documents.
See Minn. Stat. §515B.4-116(a) (granting any person adversely affected by an
association’s violation of the statute or its governing documents a right to claim appropriate
relief). Meanwhile, Villas argues that if we were to reverse on the private-nuisance issue,
it would be entitled to attorney fees as the prevailing party. Minn. Stat. § 515B.4-116(b).
The district court did not grant attorney fees to either party. In reviewing the parties’
claims, we “will not reverse the district court’s decision on attorney fees absent an abuse
of discretion.” Carlson v. SALA Architects, Inc., 732 N.W.2d 324, 331 (Minn. App. 2007),
rev. denied (Minn. Aug. 21, 2007). We address each party’s claims for attorney fees in
turn.
22
Here, the district court did not abuse its discretion in denying the Sirotas’ request
for attorney fees. The Sirotas’ claim for fees as the prevailing party fails because our
reversal of the private -nuisance issue no longer makes the Sirotas the prevailing party.
Minn. Stat. § 515B.4-116(b). And their claim for fees as a party adversely affected by
Villas’s violations of the Act and its governing documents also fails given that Villas
violated neither the Minnesota Common Interest Ownership Act nor its governing
documents. Minn. Stat. §515B.4-116(a). As a result, the district court properly exercised
its discretion in denying the Sirotas’ request for attorney fees under both sections.
But the district court is entitled to revisit its determination that Villas was not the
prevailing party and whether to award attorney fees based on our reversal of the
private-nuisance issue. Minn. Stat. § 515B.4-116(b). Because we conclude that the district
court erred in determining that the tree was a private nuisance, and Villas did not breach
any covenants or duties, Villas may be entitled to attorney fees as the prevailing party. Id.7

7 The Sirotas also challenge the district court’s grant of summary judgment on their claims
of equitable estoppel and waiver. We review the granting of summary judgement under a
de novo standard of review. Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC ,
790 N.W.2d 167, 170 (Minn. 2010). Under this review, we determine, in viewing the
evidence in the light most favorable to the Sirotas, whether a genuine issue of material fact
exists and whether the district court erred in its application of law.
STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76 (Minn. 2002). The
Sirotas assert that there were genuine issues of material fact that should have reached the
bench trial on both (1) equitable estoppel, that Villas promised to trim the tree, and
(2) waiver, that Villas, in trimming other trees , waived its right to refuse to trim the tree.
We disagree. There was nothing in the record that provided a genuine issue of material
fact as to whether Villas made any promises to the Sirotas that it would trim the tree— the
record is clear that Villas was consistently uncertain as to how to handle the Sirotas’
requests. And Villas’s trimming of other trees as a waiver is not supported by the record.
It is undisputed that Villas, per section 12.03 of the declaration, must maintain the rain

23
In sum, the district court correctly concluded that Villas did not breach any
covenants in its declaration, did not breach any statutory duties to the Sirotas, and did not
exceed its authority in adopting the Good Neighbor Policy. And the district court properly
vacated the fines levied against the Sirotas for violating the Good Neighbor Policy. But
the district court erred in concluding that the tree was a private nuisance, given the lack of
findings of wrongful conduct by Villas. As a result, the Sirotas are not entitled to attorney
fees, as the district court concluded, but we remand to the district court the narrow question
of whether Villas is entitled to attorney fees as the prevailing party.
Affirmed in part, reversed in part, and remanded.

gardens and the trees within them with regular trimming of the trees’ branches.
Accordingly, the evidence does not support different factual findings with respect to waiver
because the arborist’s tree trimmings were within his normal job duties. As a result, the
district court did not err in granting summary judgment on these two claims.