Zacky v. Dillon
Filed
1/15/13 Zacky v.
Dillon CA2/6
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
SCOTT ZACKY,
as Trustee, etc.,
Plaintiff and Appellant,
v.
HADDON B.
DILLON,
Defendant
and Respondent.
2d Civil No. B235722
(Super. Ct. No.
1242498 )
(Santa Barbara County)
We revisit a dispute
between abutting landowners over the scope and extent of a driveway
easement. In 2011, we affirmed a
judgment in favor of the dominant tenement owner concerning its rights in a
non-exclusive driveway easement. (
I).)
certain terms of its judgment on remand.
It conducted further proceedings and issued its judgment following
appeal. Appellant Scott Zacky, trustee
of the owner of the dominant tenement (Zacky) appeals and contends that the
remand and in effect reversed Zacky I. We disagree and affirm.
BACKGROUND
Zacky owns the property
at 1676 East Valley Road in Montecito (1676 EVR).
Dillon owns adjacent property at 1666 East Valley Road (1666 EVR). These adjoining
parcels resulted from the subdivision of "Mañana" in 1969 by Robert
Neustadt and Maria Neustadt Spalding.
kept the two parcels in the hands of the subdividing owner. At the same time, a long, rectangular
driveway easement (56 feet by 146 feet) was created to serve as a "grand
entrance" driveway to the parcel that became1676 EVR. As a result, 1676 EVR later became the
dominant tenement and 1666 EVR, the servient tenement. (Zacky
I, at pp. 2-3.)
In 1972, Robert
Neustadt, his sister, Maria Spalding, and Robert's wife, Candice Taylor
Neustadt, held title to 1676 EVR and 1666 EVR.
Later that year, they sold both properties. On April 24, 1972,
they deeded 1666 EVR to John and Pamela Williams, but reserved the driveway
purposes easement for the benefit of 1676 EVR.
The closing of the escrow for the sale of 1676 EVR to Alfred and Peggy
Morgan was delayed pending the execution of several documents among the
parties, including a deed granting an easement for utility and sewer purposes
on the easterly 28 feet of 1666 EVR, in favor of 1676 EVR, which also
recognized that the "'56 ft. driveway easement' [would be] a common
driveway with [1666 EVR]." The
documents were signed on July 6, 1972, and recorded on September 6, 1972. (Zacky I, at pp. 2-3.)
Historically, the sides
of the driveway easement have been flanked with continuous mature hedges with
"deeply embedded" fences. Near East Valley Road, the hedge and fence are open on one side to accommodate the 1666
EVR driveway. (Zacky I, at p. 3.)
In 2006, Dillon acquired
a partial interest in 1666 EVR. In 2007,
she acquired the remaining interest from Gulf Horizons, Limited, (Gulf) and
became its sole record owner. In
December 2006, Zacky's predecessors in interest brought an action against
Dillon and Gulf, seeking to quiet title
in favor of 1676 EVR to a driveway easement over 1666 EVR and obtain other
related relief. (Zacky I, at p. 4.)
On May 22, 2009, the trial court issued its judgment (2009 judgment). The 2009 judgment quiets the title of 1676
EVR to the recorded driveway easement, and declares that such title includes a
"reservation of easement 'for driveway purposes' [over 1666 EVR with] all such rights as are commonly allowed for a
non-exclusive 56 foot wide grand entrance driveway [in] Montecito, including
but not limited to ingress and egress, parking, washing of cars, recreations,
installation of gates, paving and curbing, and all rights which they acquired
from the after reformed reservation of easement, provided that reasonable
access for driveway purposes is allowed to the servient tenement [1666 EVR],
including access through any installed gates, so long as such use does not
damage or unreasonably interfere with the grand entrance of the dominant
tenement."
The 2009 judgment
further declares that 1676 [EVR] shall "possess a prescriptive easement
over 1666 . . . [EVR], including having the 'driveway'
easement area fenced off from the house at 1666 [EVR], the construction and
maintenance of the walls announcing the entrance to [1676 EVR], planting, . . .
and maintaining mature and tall plantings at the edges of the 56 foot wide
entrance, whether located within the 'driveway' easement boundaries or
immediately adjacent thereto, . . . provided
that reasonable access for ingress and egress and access purposes is allowed to
the servient tenement, including access through any gates subsequently
installed." (Italics
added.) Another portion of the 2009
judgment uses similar language to recognize the right of 1676 EVR "to have
the 'driveway' easement fenced off from the house at 1666 [EVR]." The 2009 judgment further provides for the
reformation of specific deeds to reflect the rights of 1676 EVR in the
easement.
her agents "from altering in any way any plants, shrubs, trees,
improvements, paving, pipes or structures in [the] 'driveway' easement and
prescriptive easement, and from impeding or impairing [the] access [of 1676
EVR] to that 'easement' . . . and from entering onto 1676 [EVR]."
Dillon appealed the 2009
judgment. On January 6, 2011, in Zacky I, this court
affirmed that judgment but remanded the case with directions to clarify the
rights of the respective parties to use the non-exclusive driveway easement,
and to revise the provisions of the judgment concerning the installation of
gates by 1676 EVR. (Zacky I, at pp. 13-14].)
As directed, the trial
court conducted further proceedings.
Prior to the first hearing, the court requested and received additional
briefing by the parties. Counsel and the
court discussed a proposal to identify two separate areas of the easement. The lower portion (Area 1) would begin at East Valley Road, and extend to the upper edge of the driveway that enters 1666
EVR. The much larger Area 2 would
encompass the remainder of the easement, and end where it abuts 1676 EVR. Dillon's counsel advised the court that after
the entry of the 2009 judgment, 1676 EVR installed a high rock curb and plants
that blocked 1666 EVR's access to its back yard from Area 2. Counsel reminded the court that historically,
there had been flat material, such as paving stones, dirt or lawn along the
paved portion of Area 2, which had allowed access to the back yard of 1666 EVR
by delivery and construction vehicles.
The court later recognized that Dillon's "concern that the high
rock curb, plantings and gate opener arm blocks or otherwise limits access to
the backyard and gate [was] not unreasonable [and stated that the] clarified
judgment should provide for 1666 EVR's limited but reasonable access to the
backyard and gate in a manner that does not interfere with the 'grand entrance'
use."
As directed by the trial court, Zacky lodged a proposed judgment
with the court following the initial hearing.
Dillon submitted objections and comments thereto. The court provided the parties the
opportunity to present argument at a second hearing.
On July 1, 2011, the trial court issued its judgment following appeal, including an
exhibit depicting Areas 1 and 2 of the driveway easement. The 2011 judgment grants both 1666 EVR and
1676 EVR non-exclusive and concurrent use of Area 1 "for all 'multifarious
uses' to which driveways are put in Montecito," subject to specific
restrictions.
title="">[4] It limits the use of Area 2 by 1666 EVR
"to pedestrian and vehicular access to the back yard and gate of 1666 EVR
provided that such use does not unreasonably interfere with 1676 EVR's use of
Area 2 as its 'grand entrance.'"
The 2011 judgment
further specifies that 1676 EVR is responsible for maintaining the entire
easement. It grants 1666 EVR restricted
rights to trim and maintain only the side of the hedge along the easement that
faces west (toward the non-easement portion of 1666 EVR) "so long as such
trimming and maintenance does not damage the health of the hedges
[or] . . . reduce [their]
height . . . ; and so long as the trimming extends no
further east than the fence line historically embedded in the hedge." It also grants 1666 EVR a restricted right
"to trim vegetation horizontally if such vegetation is outside of the
reserved easement or the prescriptive easement created in the [2009
judgment]."
DISCUSSION
Zacky contends that the
trial court acted in excess of its jurisdiction on remand because the 2011
judgment grants Dillon "a right of unlimited pedestrian and vehicular
access to [1666 EVR] in Area 2 of the easement," and "conflicts with
and effectively negates [Zacky's] right to have that area isolated from [1666
EVR] as adjudged below, and affirmed" in Zacky I, and thus reverses Zacky
I. We disagree.
When an appellate court
remands a case with directions requiring specific proceedings on remand, those
directions are binding on the trial court.
Any material variance from the directions is unauthorized and void. (See
Hampton v. Superior Court (1952) 38 Cal.2d 652, 655-656.) On review, our task is to ascertain whether
there was a material variance in the trial court's execution of the prior
appellate ruling. We will examine the
appellate opinion as a whole to determine the intent of the judgment or
order. We will not disturb a subsequent
trial court judgment after remand for an immaterial departure from our directions
in the prior appeal. (
1128, 1131-1132.)
Zacky claims that the
2011 judgment grants Dillon a right of unlimited pedestrian and vehicular
access to Area 2 of the easement. We
disagree.
The 2011 judgment does
not grant Dillon "unlimited" access to 1666 EVR from Area 2. Zacky bases his claim on the following
language in the 2011 judgment: "Use
of Area 2 by 1666 EVR shall be limited to pedestrian and vehicular access to
the back yard and gate of 1666 EVR provided that such use does not unreasonably
interfere with 1676 EVR's use of Area 2 as its 'grand entrance.'" Dillon's access to Area 2 is not unlimited
because it remains subject to several restrictive provisions of the 2009
judgment. For example, the 2009 judgment
(as affirmed in Zacky I) prohibits
Dillon from altering the plants, improvements, structures, and paving, that
isolate the easement from the non-easement portion of 1666 EVR "in any
way." The 2011 judgment does not
materially change those prohibitions. It
clarifies that 1676 EVR possesses all rights and responsibility to maintain the
hedge and fence, and grants Dillon only restricted rights to trim the
hedge.
Zacky further argues
that the 2011 judgment "conflicts with and effectively negates [Zacky's]
right to have [Area 2] isolated from [1666 EVR] as adjudged below, and
affirmed" in Zacky I, and in
effect reverses Zacky I. We disagree.
This argument rests on the false premise that the 2009 judgment bars
Dillon from accessing 1666 EVR from the portion of the easement that is now
defined as Area 2, under any circumstances.
It does not.
Under the 2009 judgment,
and Zacky I, the right of 1676 EVR to
have "the 'driveway' easement area fenced off from the house at 1666
[EVR]," is subject to the proviso "that reasonable access for ingress
and egress and access purposes [be] allowed to the servient tenement [1666
EVR], including access through any gates subsequently installed." That proviso reflects that under certain
circumstances, 1666 EVR could use that easement, including that portion now
defined as Area 2, to access the non-easement portion of 1666 EVR. The history of the easement supports such
use.
The trial court's
statement of decision, which it issued concurrently with the 2009 judgment,
contains the following relevant findings concerning the history of the
easement: "The Court finds that the
Welsh family [1676 EVR] has never denied to Mrs. Dillon [1666 EVR] access to
the easement. When she put a gate in the
ancient fence separating her house from the easement, they did not
complain. After all, the gate they
proposed also would have permitted pedestrian access to 1666 in the easement
area." The gate that Dillon
installed connects the non-easement portion of 166with to Area 2 of the easement. Zacky I
also recognizes the parties' prior use of the easement, including
Area 2: "In 2005, during a
heavy rain season, water drained across 1676 EVR onto 1666 EVR and caused
substantial damage. Dillon obtained
Welsh's permission to place a dumpster in the driveway easement, and to remove
some of the hedge and fence to provide workers more direct access to the
damaged section of 1666 EVR." (
stated that the judgment on remand "should provide for 1666 EVR's limited
but reasonable access to the backyard and gate in a manner that does not
interfere with the 'grand entrance' use."
Zacky also argues that
the existence of an access gate in the fence along the easement in Area 2 is
inconsistent with provisions in Zacky I and
the 2009 judgment which provide that 1676 EVR can "fence off" the
easement from the balance of 1666 EVR.
We disagree. The trial court made
the following significant finding in its 2009 statement of decision: "[F]or much longer than . . . five years
. . . fences precluded access to the easement by 1666 [EVR] except at the very
bottom by the cut off driveway to 1666 and where the fence was taken down by
Mrs. Dillon, but where she acknowledged
the isolation by installing a gate rather than leaving the area open . . . ."
(Italics added.]) Thus, while
recognizing the right of 1676 EVR to "fence off," the easement, the
court found that the fence continued to isolate the easement from the remainder
of 1666 EVR, even after Dillon installed a gate in it.
In summary, the trial
court considered the relevant evidence, and clarified the parties' respective
rights in the non-exclusive driveway easement.
It did not reverse Zacky I or
deviate from our directions on remand.
(See Hampton v. Superior Court,
supra, 38 Cal.2d at pp. 655-656.)
DISPOSITION
The judgment is
affirmed. Costs on appeal are awarded to
respondent.
NOT TO BE PUBLISHED.
PERREN,
J.
We
concur:
GILBERT, P.J.
YEGAN, J.
>
James Brown, Judge
Superior Court County of Santa Barbara
______________________________
The Law
Offices of E. Patrick Morris and E. Patrick Morris for Plaintiff and Appellant.
The Law
Office of John Derrick and John Derrick for Defendant and Respondent.
were Gregg Welsh, individually and as trustee of the Pearl Welsh Trust UTD,
etc., and Laura Welsh. In 2007, the
Welshes sold the property involved in this litigation to the Robert D. Zacky
and Lillian D. Zacky Trust dated July 1988. Its trustee, Scott Zacky (Zacky), was
substituted in as plaintiff in 2010. (
