Bad Neighbors Make Good Court Foes : Lawsuit: An Encinitas attorney who objected to a next-door fence may have lost the battle, but he won the war, to the tune of $10,000. The target of his wrath is furious.

By TOM GORMAN

June 5, 1990 12 AM PT

TIMES STAFF WRITER

The court case goes like this:

Guy builds fence. Angry neighbor--who is an attorney--doesn’t like it and sues. Judge rules the fence is legal, but agrees with the angry neighbor that the fence owner’s property wasn’t very well maintained. The judge awards the upset neighbor a $1,000 judgment--then orders the fence builder to pay his angry neighbor about $10,000 in legal and court costs.

Charles Federmack says it’s the most expensive $400 fence he ever built.

“The lesson is, don’t live next door to a lawyer,” he said.

The judge shakes her head. “This case should have been handled on ‘The People’s Court.’ This is like the Hatfields and the McCoys.”

The feuding began on Silver Peak Place, a neighborhood street in Ranch View Estates, an attractive, 32-home Encinitas subdivision complete with views of Olivenhain, on Encinitas’ back side, and CC&Rs--those; covenants, conditions and restrictions that homeowners place on themselves to make sure the neighborhood doesn’t go to pot.

Enter Charles Federmack, who bought his home on a third-acre lot and, over the years, slowly and surely erected a 5-foot-high, redwood-post fence with wide, plastic-coated wire meshing. Not chicken wire, but the nice stuff.

The fence ran up his back yard, toward a higher terrace that happened to be on the same level as Lawrence Eden’s back yard. In fact, Federmack’s property line comes to within 15 feet or so of Eden’s back patio.

Not wanting to peer through his neighbor’s fence, Eden had offered to landscape and tend to that upper terrace of Federmack’s back yard, without even pretending to take ownership of the land, court records show. Federmack effectively said no, don’t touch my property.

Eden, who didn’t want to look at the fence, threatened to sue.

“Everybody told me that there’s no way he’d sue, that he’s just bluffing,” says Federmack, a retired movie industry sound expert. “We all thought he was just blowing hot air.”

With the blessing of the homeowners association and the county, Federmack put up the fence.

A double dog dare by any other name.

Eden, an attorney, hired another attorney to represent him, and sued Federmack in Vista Municipal Court. That was two years ago; civil lawsuits don’t move too quickly in busy courtrooms. Eden even filed requests for two temporary restraining orders, to stop Federmack from working on that part of the yard where the fence would go, just outside Eden’s back patio.

Municipal Judge S. Patricia Rosenbaum ruled against Eden’s requests for restraining orders, and even ordered Eden to pay Federmack $1,200 in legal costs he had to pay to fight the requests.

Rosenbaum also agreed that the fence is legal. But the judge said she would entertain an amendment to Eden’s lawsuit, allowing him to contend that Federmack, who has since sold the property, had not maintained his back yard up to CC&R; standards. Eden did just that.

“Homeowners are legally entitled to enforce the CC&Rs; of their homeowners association,” Rosenbaum says, and, looking at pictures, she agreed with Eden that Federmack’s property wasn’t properly maintained.

The judge ruled that Federmack should pay $1,000 to Eden as punishment.

Great, said Eden. His attorney wrote up the technical paper work, and offered that each side should absorb his own legal costs. Call it a wash, Eden said.

Federmack disagreed, and argued through his attorney that Eden should pay the entire court costs for the litigation because, after all, the fence was legal. The judge ruled that, in the end, Eden won the case because of the CC&R; violation on yard maintenance, and said that, if anybody should pay anything, it should be Federmack.

Eden submitted a bill to Federmack for $38,265. Federmack flinched. On Monday, Federmack was in court, and Eden and his attorney were on the phone. They huddled in Rosenbaum’s chambers, and talked on the telephone squawk box.

Rosenbaum pared down Eden’s request, and ordered Federmack to pay about $10,000 in court costs.

Federmack, who is looking at about $25,000 in his own court and legal costs, was furious.

“This is an outrage,” he said. “This is why attorneys drive BMWs and Mercedeses with car phones.”

Neither Eden nor his attorney could be reached for comment.

Federmack says he can’t afford to appeal. “I’m financially destitute now,” he says. “There’s nothing more he can milk out of me.”

End of story? Not quite.

Federmack says Eden illegally trespassed on his property to install a gas line to Eden’s back-yard spa.

“I’ve already sued him for trespassing,” Federmack said.

He says he’d be willing to settle that case for the amount of Monday’s judgment.

Says Rosenbaum: “The two of them have spent an enormous amount of money--both their own and the public’s--to resolve what is a relatively minor dispute over landscaping.” She sighed. “But there are legal principles at stake.”