Filed 7/14/26 Schafer v. Smith CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
JAMES SCHAFER et al.,
Plaintiffs and Appellants, A173331
v. (Marin County
VERONICA SMITH et al., Super. Ct. No. CIV2301286)
Defendants and Respondents.
James and Donna Schafer (the Schafers) filed a complaint requesting
declaratory and injunctive relief against their neighbors, Veronica and
George Smith (the Smiths). At issue in the lawsuit was a border fence
constructed by the Smiths that allegedly interfered with the useability of a
driveway easement providing access to the Schafers’ Marin County home. A
bench trial produced mixed results for both sides.
The court found that, although the Smiths “intentionally placed the
fence within the area covered by the driveway easement” in willful violation
of a set of neighborhood covenants, conditions, and restrictions (CC&Rs),
their placement of “a fence along the border of the paved driveway does not
meaningfully restrict the ability of cars to use or access the driveway.”
Based on that finding, the court ruled for the Smiths on nuisance and
easement interference claims, and declined to issue injunctive relief.
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But the court granted limited declaratory relief to the Schafers.
Granting in part the Schafers’ request for declaratory relief, it announced
that “[u]nder the terms of the . . . CC&Rs, the Schafers may lawfully seek to
use the driveway easement (notwithstanding the presence of the fence) . . .
should it become reasonably necessary for driveway purposes, such as, for
example, the repair or maintenance of the driveway, or widening the
driveway to comply with local . . . regulations.”
On appeal from the ensuing judgment, the Schafers argue that the
trial court abused its discretion by effectively extinguishing a portion of
their driveway easement. They also contend that the court erred as a
matter of law by failing to recognize that the CC&Rs require the issuance of
an injunction once a CC&R violation is found, as it was here. We see no
merit in the appeal and will affirm.
I. BACKGROUND
A. The Parties, the Properties, and the Driveway Easement
The Schafers (through a trust) and the Smiths own adjacent
residential lots with a shared boundary line. Both properties are in the
Kent Woodlands subdivision in Marin County and are subject to CC&Rs
binding on all property owners in the Kent Woodlands Property Owners
Association (KWPOA). The Schafers and the Smiths are members of the
KWPOA.
A reciprocal 20-foot-wide easement strip runs the length of the shared
boundary line between the Smiths’ and the Schafers’ respective properties.
Within this 20-foot zone, the Smiths benefit from a 10-foot-wide easement
on the Schafers’ property and the Schafers benefit from a 10-foot-wide
easement on the Smiths’ property.
The easements were recorded on the subdivision map in 1957 and
labeled as “Driveway Easement.” A previous owner of the Schafer property
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installed a paved driveway within the easement strip, leading to the
Schafers’ home. (The Smiths enter their residence from a separate entry
point.) A small area of the paved driveway falls within the Schafers’
easement on the Smiths’ property.
In June 2021, the Smiths constructed a fence on their property
bordering the paved driveway, running 60 linear feet within the Schafers’
easement. The Smiths constructed this fence without prior approval from
the KWPOA. The KWPOA issued a stop work order to the Smiths near the
end of their construction project. The Smiths ignored the stop work order,
finished constructing the fence, and requested retroactive approval for
construction of the fence from the KWPOA.
The KWPOA declined to grant approval, found that the Smiths had
violated the CC&Rs by failing to seek advance approval for construction of
the fence, and ordered the Smiths to pay a $100 fine. (It did not address
whether the fence unreasonably interferes with the Schafers’ use of their
driveway easement.) The Smiths paid the fine and the fence remains in
place.
In May 2023, the Schafers filed a complaint against the Smiths
alleging four causes of action: (1) nuisance, (2) declaratory relief,
(3) injunctive relief, and (4) interference with easement.
B. The Trial Court’s Decision
After a September 2024 bench trial, which included a judicial site visit
at the conclusion of testimony, the trial court issued a statement of decision
finding that the Schafers were (1) unable to prove nuisance or interference
with easement and (2) not entitled to injunctive relief, but (3) were entitled
to limited declaratory relief. Its reasoning was as follows.
First, the trial court found that “[w]hile the fence extends in part into
the driveway easement burdening the Smith property, it does not intrude
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upon the paved concrete driveway the Schafers use to access their
residence” and thus that the Schafers failed to prove private nuisance or
interference with the easement.
Second, the trial court declared that “the Schafers retain an
enforceable right to use the driveway easement notwithstanding the
presence of the fence” and that, should it become reasonably necessary in
the future, the Schafers may seek compelled removal of the fence so they
may use the easement in its entirety for repair or to comply with regulatory
requirements.
Third, the trial court ruled that, having failed to prove nuisance or
interference with their easement rights, the Schafers were not entitled to
injunctive relief. The court also denied the Schafers’ alternative basis for
requesting injunctive relief—that the Smiths’ violation of the CC&Rs
mandated the issuance of an injunction.
Properly interpreted, the court concluded, Article XI, Section 1 of the
CC&Rs simply provides permissive authority to issue an injunction and
does not displace the court’s equitable power to decide whether injunctive
relief is warranted on the facts presented. The court “considered all the
facts [and] circumstances and [found] that injunctive relief is not necessary
and appropriate in this case.”
Having reached these findings and conclusions, the court noted that
its statement of decision “provided mixed relief” to the parties, but deemed
their respective requests to be deemed the prevailing party premature in
advance of posttrial motions for costs and fees. Following entry of judgment,
the parties renewed their respective requests to be designated the prevailing
party, filing post-judgment cross-motions seeking an order to that effect.
The court denied both motions.
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The Schafers filed a timely appeal from the judgment.
II. DISCUSSION
A. Standard of Review
The Schafers argue that, on the undisputed facts, the court abused its
discretion as a matter of law in refusing to enter an injunction. They ask us
to conduct de novo review of this ruling. The Smiths counter that the trial
court’s factual finding that their fence does not unreasonably or
substantially interfere with the Schafers’ easement rights should be
reviewed for substantial evidence, and that, to the extent the court’s
declaratory and injunctive relief rulings are premised on matters of law,
those rulings may be reviewed de novo but must be affirmed as correct. The
Smiths have it largely right.
Abuse of discretion is, of course, the overall rubric we must apply, but
under the broad umbrella of abuse of discretion there are nuanced
differences in the intensity of our review. We credit a trial court’s
discretionary choices within the framework of applicable law; we give
deference to findings of fact that are supported by substantial evidence; and
we always stand ready to review de novo the court’s application of the law.
(Friends of South Fork Gualala v. Department of Forestry & Fire Protection
(2024) 106 Cal.App.5th 1180, 1195–1196.) So long as the trial court
correctly applies the law, any choice it makes within the range of its legally
permitted discretion may be overturned only if there is an indication the
choice was arbitrary or beyond the bounds of reason. (Ibid.)
In this case, these layers of review apply as follows. We conduct de
novo review in addressing the Schafers’ claim that their easement rights
were effectively extinguished, since that contention turns on whether the
court correctly applied the governing law of easements. We review for
substantial evidence the court’s factual finding that there was no
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substantial or unreasonable interference with the Schafers’ driveway
easement. And generally, we review the denial of injunctive relief for
whether the court’s exercise of its remedial authority was within the range
of discretion allowed by applicable law, but as part of that analysis we
review the court’s interpretation of the CC&Rs de novo.
B. The Trial Court’s Judgment Did Not Result in an
Extinguishment of the Schafers’ Easement Rights
The Schafers’ primary argument, and the central issue in this appeal,
is whether the trial court correctly understood and applied Scruby v.
Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 703 (Scruby). According
to the Schafers, the controlling authority is Cottonwood Duplexes, LLC v.
Barlow (2012) 210 Cal.App.4th 1501 (Cottonwood), which makes clear that
Scruby cannot be applied in a manner that “effectively extinguish[es] a
substantial portion of a recorded easement.” We reject the premise of the
argument—that the trial court’s ruling in this case “effectively extinguishes”
anyone’s rights—and conclude that the court correctly understood and
applied Scruby.
1. Scruby v. Vintage Grapevine, Inc.
The trial court’s finding that there was no substantial interference
with the use and enjoyment of the Schafers’ property—which is an element
of a nuisance cause of action—was dispositive of their nuisance claim as well
as their claim of interference with easement rights. The court’s rejection of
both claims turned on its analysis of the respective nonexclusive rights of
servient and dominant tenement holders to an easement. (See Civ. Code,
§ 803 [defining servient and dominant tenements in an easement].) In the
context we have here, the Smiths are the servient tenement holders and the
Schafers are the dominant tenement holders to the disputed easement.
Because the court’s easement analysis drew on principles enunciated in
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Scruby, the main issue in this appeal boils down to whether it properly
applied the holding in that case. We conclude that it did.
In Scruby, appellant Scruby brought an action for declaratory and
injunctive relief to resolve an easement dispute with Vintage Grapevine,
Inc. (Grapevine), the owner of a winery on adjacent property. (Scruby,
supra, 37 Cal.App.4th at p. 700.) That case, like this one, involved deeded
rights to a nonexclusive easement running along the border of the parties’
adjacent properties. (Id. at pp. 700–701.) “By the grant of this easement,
Scruby’s land became the dominant tenement and the Grapevine property
became the servient tenement.” (Id. at p. 701.) Scruby alleged certain
aspects of Grapevine’s winery operations (placement of some tanks and the
location of some grapevines) interfered with Scruby’s ability to use the 52-
foot-wide easement for its intended purpose—ingress and egress to his lot.
(Ibid.) The trial court denied relief, finding that there was no unreasonable
interference with Scruby’s easement rights. (Id. at pp. 701–702.)
In affirming, the appellate panel in Scruby began with an in-depth
review of certain “controlling principles” in the law of easements (Scruby,
supra, 37 Cal.App.4th at pp. 702–703), starting with the definition of an
easement as something less than fee ownership. “ ‘An easement is a
restricted right to specific, limited, definable use or activity upon another’s
property, which right must be less than the right of ownership.’ ” (Id. at
p. 702.) Much depends on the scope of the easement at issue, the court
explained. Where a dominant tenement holder enjoys the right to use “an
easement limited to roadway use grants a right of ingress and egress and a
right of unobstructed passage to the holder of the easement[,]” the “roadway
easement does not include the right to use the easement for any other
purpose.” (Id. at p. 703.)
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Under the principles outlined in Scruby, in any clash between
dominant and servient tenement holders over nonexclusive use rights to an
easement, the servient tenement holder—who, after all, is the fee owner of
the underlying land—has a natural advantage. “Every incident of
ownership not inconsistent with the easement and the enjoyment of the
same is reserved to the owner of the servient estate.” (Scruby, supra,
37 Cal.App.4th at p. 702.) “The owner of the servient estate may make
continued use of the area the easement covers so long as the use does not
‘interfere unreasonably’ with the easement’s purpose.” (Id. at pp. 702–703.)
Bearing this starting point in mind, there is always a zone of potential
conflict in the case of a nonexclusive easement. “When the easement is
‘nonexclusive’ the common users ‘have to accommodate each other[,]’ ” the
Scruby court explained. (Id. at p. 703.)
On the one hand, “[t]he owner of the dominant tenement must use his
or her easements and rights in such a way as to impose as slight a burden
as possible on the servient tenement.” (Scruby, supra, 37 Cal.App.4th at
p. 702.) On the other hand, despite the generally free hand a fee owner has
in using its own property, an obstruction by the servient tenement holder
which “unreasonably interferes with the use of a roadway easement can be
ordered removed ‘for the protection and preservation’ of the easement.” (Id.
at p. 703.) Of particular note for our purposes, the applicable standard of
review is specific. “Whether a particular use by the servient owner of land
subject to an easement is an unreasonable interference with the rights of
the dominant owner is a question of fact for the trier of fact, and its findings
based on conflicting evidence are binding on appeal.” (Ibid.)
Turning to the application of these principles, the Scruby court’s
analysis was straightforward. It first upheld the trial court’s finding that
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the scope of the easement at issue there, though 52 feet wide, “was limited
to an easement of ingress and egress to and from the property.” (Id. at
pp. 703–704.) It then rejected Scruby’s argument that “Grapevine has
encroached on their easement by using it for agricultural equipment,
planting of grapevines, and other winery-related uses.” (Id. at p. 706.) On
this issue, it concluded that “Scruby has not been granted the right to
exclusive use of each and every square inch of the easement area.” (Ibid.)
“Rather,” the court held, “Grapevine may make continued use of the
easement area although it may not do anything that unreasonably
interferes with Scruby having access to their property.” (Ibid.) And since
substantial evidence supported the trial court’s finding that “Grapevine’s
use of the easement area had not unreasonably interfered with Scruby’s
right of ingress and egress” (ibid.), the appellate panel affirmed.
In this case, the trial court’s application of Scruby was also
straightforward. First, it found that the express purpose of the easement
was for a driveway. Then it reviewed the evidence and found no
unreasonable interference with that purpose. Similar to the water tanks
and the grapevines in Scruby, the Smiths’ fence was placed along the border
of the paved surface within the driveway easement. After reviewing all of
the evidence and visiting the site, the trial court found that “having a fence
along the border of the paved driveway” does not constitute an unreasonable
interference with the Schafers’ ability to use their driveway. We see no
reason to disturb that finding.
In an effort to persuade the trial court that it should find for them on
the issue of unreasonable interference with their easement rights, the
Schafers argued that, (i) to allow a full turning radius while using the
driveway, (ii) for purposes of maintenance, and (iii) in anticipation that
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county authorities might someday require widening of the driveway to
comply with applicable environmental regulations, they are entitled to have
uninhibited use of the full 20-foot width of the easement area on the border
of the two properties.
The court considered and rejected the turning radius argument, which
was based on Mrs. Schafer’s testimony. In view of all of the evidence
presented at trial as well as its own observations during a site visit, the
court found Mrs. Schafer’s testimony on this point to be unpersuasive. And
as for the Schafers’ arguments about maintenance and road widening, it
rejected those claims as speculative prognostications that did not prove any
current interference. On all three points, the court relied on assessments of
the evidence that were solely within its province to undertake and that we
will not second-guess.
2. Cottonwood Duplexes, LLC v. Barlow
In a footnote, the Scruby court observed that “[n]o pro tanto
extinguishment of the granted easement results from [our] decision which
determines that Grapevine’s current use of a portion of the easement does
not interfere with Scruby’s right of ingress and egress to their property as
presently developed.” (Scruby, supra, 37 Cal.App.4th at p. 706, fn. 2.)
Cottonwood, a later case involving a dispute over a nonexclusive easement
running along the border of adjoining properties, picked up on this footnote
(Cottonwood, supra, 210 Cal.App.4th at p. 1508), and held that what the
trial court did in that case—it permanently reduced the easement area by
half, without any evidence of abandonment—partially extinguished the
dominant tenement holder’s easement rights. (Id. at pp. 1506–1510.)
The Schafers contend that, in this case, the trial court did the same
thing. According to them, by declining to order the removal of the Smiths’
fence, the court effectively extinguished a portion of their easement rights.
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We disagree, as a close examination of Cottonwood will show. That case
involved a dispute between a subdivision developer, Cottonwood Duplexes,
LLC (Cottonwood) and Barlow, the owner of a lot to the north of the
subdivision that Cottonwood wished to develop. (Cottonwood, supra,
210 Cal.App.4th at pp. 1503–1505.) The easement in dispute was created
long before the subdivision map was filed and long before Cottonwood
acquired ownership of and developed a plan to build the 16 lots it owned.
(Ibid.) The easement granted Barlow driveway use to a road known as
Gatchett Lane, a 60-foot-wide lane that ran 207 feet along the length of the
southern boundary of Barlow’s property. (See id. at p. 1503 [width]; id. at
p. 1515, appen. D [length].)
At the time the easement was granted, Gatchett Lane was the sole
access road to Barlow’s lot. (Cottonwood, supra, 210 Cal.App.4th at pp.
1512–1513, appens. A & B.) But things changed over time. The original
developer of the subdivision, Cottonwood’s predecessor, built three new
roads to serve as access points for all lots in the subdivision, including
Cremia Place. (Id. at p. 1504.) And by the time the dispute between
Cottonwood and Barlow arose, Cremia Place provided an entry point to
Barlow’s property in addition to Gatchett Lane. (Id. at p. 1514, appen. C.)
The tract map for the subdivision included a note stating that no
development would occur within the area of the Gatchett Lane easement—
which crossed four of the lots on the map—until the easement was
quitclaimed or its area reduced to 15 feet along the northern property line of
several lots Cottonwood wanted to develop. (Cottonwood, supra,
210 Cal.App.4th at p. 1504.) All lot owners whose property the easement
crossed agreed to quitclaim their easement rights to in accordance with that
condition, except Barlow. (Id. at p. 1505.)
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When Cottonwood arrived on the scene, it offered Barlow $30,000 to
cede his easement rights, but he refused. (Cottonwood, supra,
210 Cal.App.4th at p. 1505.) In effort to deal with the lone holdout, Barlow,
Cottonwood sued, seeking to quiet title to all but a portion of Gatchett Lane,
15 feet in width and 107 feet in length. (Ibid.) In support of this claim, it
argued that, given the evolution of development within the subdivision and
the building of a new road providing access to Barlow’s property, Barlow no
longer needed to use the entirety of Gatchett Lane, so the court should quiet
title in a manner that permitted Cottonwood to proceed with development of
its lots on the southern border of Gatchett Lane. (Ibid.)
In reliance on Scruby, the trial court ruled for Cottonwood, accepting
the argument that “ ‘the reasonable use requirements of the Barlow Parcel
both presently and in the future do not require the full size and scope of the
Gatchett Lane easement.’ ” (Cottonwood, supra, 210 Cal.App.4th at
p. 1506.) In essence, the trial court ruled that nearly half of Barlow’s
easement rights, in width and length, could be ordered extinguished—
permanently, by quieting title—because, in its view, Barlow no longer
needed them. (Ibid.) And it so ordered. (Id. at p. 1503 [“the trial court
narrowed and shortened a road and utility easement”].)
Concluding that the trial court had misread Scruby, the Court of
Appeal held that Barlow was within his rights to insist on the preservation
of his easement rights, whether he was presently using them or not.
“[T]here was no evidence Barlow intended to abandon any part of the
easement Gatchett granted him[,]” the panel pointed out. (Cottonwood,
supra, 210 Cal.App.4th at p. 1509.) In an effort to defend the trial court’s
ruling, Cottonwood pointed to Scruby’s reference to a dominant tenement
holder’s obligation to use its easement in manner that minimally burdens
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the servient tenement holder. (Id. at pp. 1508–1509.) But according to the
Cottonwood panel, “[t]he legal principles applied in Scruby cannot be
logically ‘extended’ to sanction the extinguishment of a granted easement,
either in whole or in part, against the will of the easement owner.” (Id. at
p. 1509.)
“Because Scruby did not consider whether a court can partially
extinguish a granted easement if the evidence shows that the owner of the
dominant tenement does not reasonably need, either now or in the future,
the entirety of the easement, Scruby is not authority for the proposition that
a court has such power[,]” said the Cottonwood court. (Cottonwood, supra,
210 Cal.App.4th at p. 1508.) “Neither Scruby nor any of the legal principles
on which the Court of Appeal relied in Scruby dealt with, let alone
authorized, extinguishment of a granted property right just because, in the
court’s view, the owner of that right does not appear to need it, either now or
in the future. Scruby dealt with the scope of use of an easement, not its
continued existence.” (Id. at p. 1509, original italics.)
Cottonwood is distinguishable. This case, like Scruby, involves a
ruling addressing the use of an easement, not its continued existence. We
reject the Schafers’ effort to convince us that the trial court here made the
same error that the trial court made in Cottonwood. Nothing in the trial
court’s statement of decision, or in the legal effect of its judgment—as shown
by the fact that, unlike the trial court in Cottonwood, it did not enter a quiet
title remedy—declares the continued existence of anyone’s easement rights
to be at an end. Quite to the contrary, as shown by the Solomonic character
of the declaratory relief it awarded, the court confirmed the continued
existence of the full width of the easement the Schafers claim and permitted
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them to seek removal of the Smiths’ fence in the future if circumstances
should so warrant.
In the end, the Schafers resort to the argument that, if we affirm, we
will be endorsing bad policy that allows servient owners to “unilaterally
seize” portions of easements and extinguish a dominant owner’s easement
rights. But an appeal to the equities is not enough to win the day for them.
It is certainly true, as the trial court acknowledged, that the Smiths have
not shown themselves to be models of neighborliness. In the trial court’s
recounting of the evidence, they come across as unrepentant scofflaws. But
as property owners, the Smiths were within their rights to build their fence
and are within their rights to keep it in place—unless and until the fence
can be shown to interfere unreasonably with the Schafers’ rights to use the
driveway easement for its intended purpose. The problem for the Schafers
is that, on this record, that degree of interference was not proved.
C. The Trial Court Properly Denied Injunctive Relief
“The grant or denial of a permanent injunction rests within the trial
court’s sound discretion and will not be disturbed on appeal absent a
showing of a clear abuse of discretion.” (Horsford v. Board of Trustees of
California State University (2005) 132 Cal.App.4th 359, 390.)
The Schafers argue that the trial court abused its discretion by
denying injunctive relief because the language of the CC&Rs entitled them
to an injunction. The Smiths contend that the trial court was correct in its
interpretation of the CC&Rs. Specifically, the trial court found that the
language of the CC&Rs made the authorization of an injunction permissive
and not mandatory. We review the court’s interpretation of the CC&Rs de
novo. (Eisen v. Tavangarian (2019) 36 Cal.App.5th 626, 635.)
The pertinent language of the CC&Rs is as follows: “Section 1.
Remedy at Law Inadequate. Except for the nonpayment of any Assessment,
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it is hereby expressly declared and agreed that the remedy at law to recover
damages for the breach, default or violation of any of the covenants,
conditions, restrictions, limitations, reservations, grants of easements,
rights, rights-of-way, liens, charges or equitable servitudes contained in this
Declaration are inadequate and that the failure of any Owner, tenant,
occupant or user of any Lot to comply with any provision of the Governing
Documents may be enjoined by appropriate legal proceedings instituted by
any Owner, the Association, its officers or Board of Directors, or by their
respective successors in interest.”
The trial court was correct to conclude that “may” means “may.” As is
apparent from the CC&Rs, by their terms, they declare that damages are
inadequate to remedy a breach and state that an injunction may not be
denied because damages relief is available. By so providing, the CC&Rs
depart from a basic equitable principle that sometimes justifies denial of
injunctive relief. (See Department of Fish & Game v. Anderson-Cottonwood
Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1565 [“ ‘an injunction is an
unusual or extraordinarily equitable remedy which will not be granted if the
remedy at law (usually damages) will adequately compensate the injured
plaintiff’ ”].) But whatever private parties agree upon, a court’s power to
grant an injunction is a matter of judicial discretion that cannot be
controlled or displaced by contract.
In this case, the trial court found that the Smiths deliberately violated
the CC&Rs by failing to seek advance approval for the construction of their
fence. The language of the CC&Rs certainly entitled the Schafers to seek an
injunction as a remedy for the violation, but the ultimate decision about
whether to grant injunctive relief was within the trial court’s discretion.
And in exercising its discretion, the issue of adequacy of money damages
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had nothing to do with the court’s decision to deny injunctive relief. The
Schafers cite various cases for the proposition that an exercise of discretion
resting on an error of law is a reversible abuse of discretion, but we see no
legal error. The trial court’s decision to grant declaratory relief confirming
the Schafers’ easement rights, while denying injunctive relief for a fence
encroachment that it found did not interfere with the Schafers’ ability to use
the driveway easement, was well within its discretion.
The Schafers complain that the trial court did not balance the
equities, as shown by the fact that it did not require the Smiths to show
anything about the costs of removing the fence so that the burden to them
could be balanced against the burden to the Schafers of not having access to
the full width of their driveway easement. Such a balancing was
unnecessary. The Schafers fail to appreciate that, as explained by Scruby,
the Smiths, as the servient tenement holders, have the right to use their
own property freely so long as they do not unreasonably interfere with the
Schafers’ privilege of using the driveway easement. And as we have pointed
out, the trial court made an adverse factual finding against them on that
issue.
Once the court found against the Schafers on the critical issue of
unreasonable interference, that was the end of the matter. It was not
required to go further. The Schafers cite various cases in an effort to
demonstrate that the failure to conduct a balancing of the equities is, in
itself, an abuse of discretion. But those cases are inapposite. A balancing of
the equities is generally done when a court determines how much a
dominant tenement owner may use the easement with the least hardship on
the servient tenement owner. (6 Miller & Starr, Cal. Real Estate (4th ed.
2026) § 15:63.) That is the opposite of what we have here.
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III. DISPOSITION
The trial court’s decision is affirmed. The Smiths are entitled to their
costs on appeal.
STREETER, J.
WE CONCUR:
BROWN, P. J.
GOLDMAN, J.
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