Schindelar v. Neefe
Filed 3/25/13 Schindelar v. Neefe CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
SUSAN M. SCHINDELAR et al.,
Individually and as Trustees, etc.,
Plaintiffs, Cross-defendants and Appellants,
v.
RICHARD NEEFE et al.,
Defendants, Cross-complainants and Respondents.
D059639
(Super. Ct.
No. GIC857198)
APPEAL from
a judgment of the Superior Court
of
County, Steven R. Denton, Judge. Affirmed.
In November
2005 Susan M. Schindelar and Edward W. Sznyter III (collectively
Schindelar-Sznyter), individually and as trustees of their family trust, sued
Richard Neefe and Sherri Nolan (collectively Neefe-Nolan), claiming
Neefe-Nolan's remodeling of their home resulted in various encroachments on
their property. In March 2007 the
parties executed a settlement agreement, which resolved the disputes. The settlement agreement required the parties
to mutually exchange easements. From
March 2007 through June 2009 counsel for Neefe-Nolan attempted to finalize the
exchange of the easements required under the settlement agreement, but no
agreement could be reached.
In May 2009
Neefe-Nolan filed a complaint for breach
of contract against Schindelar-Szynter alleging they refused to cooperate
regarding the exchange of easement deeds. !(1 AA 121-128)! Schindelar-Szynter
answered and filed a cross-complaint alleging Neefe-Nolan failed to comply with
the settlement agreement. Thereafter the
parties filed cross-motions to enforce the settlement agreement under California
Code of Civil Procedure
name="_ftnref1" title="">[1]
section 664.6.
In ruling
on the motions, the court made findings regarding the parties' rights and
obligations with respect to the easements in dispute. The court required the parties to redraft the
proposed easements in accordance with its findings. The parties met and conferred in order to
redraft the easement deeds. However,
Schindelar-Sznyter refused to sign the revised deeds. Because of their refusal to sign the deeds,
Neefe-Nolan sought an order from the court appointing an elisor to execute the
easement deeds, which the court granted.
Schindelar-Sznyter,
appealing in propria persona, assert (1) the court impermissibly
"modif[ied]" the settlement agreement; (2) because the terms of the
"settlement agreement depend on the acceptance by a license board,"
it was error for the court to substitute its own "guess at what would be
accepted"; (3) the court erred by appointing "an elisor to record
legal documents before a judgment [was final]"; and (4) the court erred by
forcing Schindelar-Sznyter to sign the deeds that were "constructed to
abrogate terms of the settlement agreement." We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A.
Neefe-Nolan
have lived at the property located at 16212 Orchard
Bend Road in Poway (the
Neefe-Nolan property) since 1993. When
they originally purchased the property it came with certain rights to use the
neighboring property located at 16208 Orchard Bend
Road (the Schindelar-Sznyter property), some of
which were of record, others of which were not.
In May 2000 they purchased an expanded easement and right-of-way for
ingress and egress for the installation, operation, maintenance and replacement
of a gate, wall, sewer, telephone, gas, and other utility lines over the
Schindelar-Sznyter property for $5,000 from its former owner, Deanna Stevens.
Schindelar-Sznyter
purchased their property in or around 2001.
B. The
Schindelar-Sznyter v. Neefe-Nolan Action
In November
2005 Schindelar-Sznyter sued Neefe-Nolan for (1) removal of encroaching
structures, (2) trespass, and (3) nuisance.
They contended that improvements constructed by Neefe-Nolan, including a
retaining wall, a pilaster for Neefe-Nolan's entry gate, a mailbox, and certain
landscaping, encroached on their property.
Neefe-Nolan
cross-complained, contending they had the right to maintain those improvements
by virtue of recorded easements and long-standing use.
B.
Settlement of Schindelar-Sznyter
v. Neefe-Nolan Case
On February 23, 2007, the parties
engaged in a mediation before retired Judge Vincent DiFiglia that resulted in a
settlement of their disputes.
The
settlement agreement addressed the following issues: (1) relocation of
order to not impede access of Schindelar-Sznyter to the Schindelar-Sznyter
property; (3) removal by Neefe-Nolan of a trash pad and trash day coordination;
(4) parking on the easement; (5) placement of a turnaround; (6) the grant to
Neefe-Nolan of an easement for encroaching pilasters; (7) release of certain
landscaping rights by Neefe-Nolan; (8) the grant to one another of an exclusive
easement for landscaping (subject to approval by Schindelar-Sznyter); and (9) a
grant by Schindelar-Sznyter to Neefe-Nolan of an easement to allow the
retaining wall already in existence to remain.
With regard
to the grant of an easement in favor of Neefe-Nolan for the encroachment of
their pilasters, the agreement provides:
"[Schindelar-Sznyter] agree to grant [Neefe-Nolan]
an easement for the encroaching pilaster.
The pilaster easement shall exist for so long as the pilaster
remains. If the pilaster shall ever be
removed, this easement shall terminate.
[Neefe-Nolan] shall be responsible for preparing the legal description
for this easement in their favor subject to the approval by
[Schindelar-Sznyter]."
In addition
to the easement to allow the encroaching pilasters, Schindelar-Sznyter also
agreed to grant Neefe-Nolan a landscape easement that included the area around
the pilasters. That portion of the
agreement provides:
"[Schindelar-Sznyter] grant[] [Neefe-Nolan] an
exclusive easement for landscaping and sprinklers in the area of the gate
[e]asement east of a line drawn between the centerposts of the two outer
pilasters and east of the existing walls.
The cost of the sprinkler system and irrigation shall be borne solely by
[Neefe-Nolan]. [Neefe-Nolan] shall be
responsible for preparing the legal description for this easement in their
favor subject to the approval by [Schindelar-Sznyter]."
In addition
to the pilaster and landscaping easements, the settlement agreement also
provides "[Schindelar-Szynter] will grant [Neefe-Nolan] an easement for
the existing retaining wall to remain."
In turn, Neefe-Nolan agreed to reduce the height of the retaining wall
to the lowest level permitted by the City of Poway's
requirements.
Additionally,
the settlement agreement provides that Neefe-Nolan "shall erect a fence of
approximately 3 feet in height on [their] [p]roperty adjacent to the retaining wall
that will prevent [Neefe-Nolan's] guests from trespassing on the
[Schindelar-Sznyter] property above the retaining wall."
The
settlement agreement also provides for a poolside easement as follows,
"[Neefe-Nolan] grant[] [Schindelar-Sznyter] an exclusive easement for
landscaping and sprinklers in the area described by [Neefe-Nolan's] proposed
easement of February 6, 2002 . . . . [Schindelar-Sznyter] shall be responsible for
preparing the legal description for this easement in their favor subject to the
approval by [Neefe-Nolan]."
By March
2007 Neefe-Nolan had relocated their mailbox, removed rocks existing along the
north edge of the turnabout driveway, removed the trash can pad from behind the
gate, stored trash receptacles on their property alone, refrained from parking
in the easement below the gate and walls, and had not expanded the turnaround
driveway area. Neefe-Nolan could not,
however, unilaterally complete the obligations related to the pilaster easement,
the reciprocal landscaping easement or the retaining wall easement since those
items required cooperation and approval by Schindelar-Sznyter.
C.
As part of
the settlement, the parties were to review and approve legal descriptions for
the easements to be exchanged, after which deeds reflecting the easements would
be recorded. However, efforts to obtain
Schindelar-Sznyter's cooperation creating, exchanging and executing the
easement deeds were unsuccessful.
D. Neefe-Nolan
File Action To Enforce Settlement Agreement
Because no
agreement could be reached, Neefe-Nolan filed a complaint for breach of the
settlement agreement, setting forth their efforts to finalize that agreement
and Schindelar-Sznyter's failure to cooperate.
Schindelar-Sznyter filed a cross-complaint, alleging that it was
Neefe-Nolan who breached the settlement agreement.
E.
Cross Motions To Enforce the
Settlement Agreement
The parties
agreed to resolve the actions by filing cross-motions
to enforce the settlement agreement pursuant to section 664.6. The court issued a tentative ruling on the
motions on July 23, 2010. On July
27, 2010, the parties appeared before the trial court for oral
argument on the cross-motions to enforce the settlement agreement. At the hearing, counsel for the parties
addressed three main issues of dispute:
the gate pilaster easement, the retaining wall easement, and the
landscaping easement regarding the area adjacent to Schindelar-Sznyter's pool.
1. Ruling
on gate pilaster easement and
landscaping easement around pilasters
In its
tentative ruling, the court stated that the "easement proposed by
[Neefe-Nolan] . . . appears to encompass a larger area then
what is described within the settlement agreement. To the extent [Neefe-Nolan's] proposed easement
encompasses a larger area, it is incorrect and must be redrafted." During the hearing on the motion, counsel for
Neefe-Nolan provided the court with a depiction of the pilaster landscape
easement area. Counsel highlighted a
line on the exhibit that counsel contended was the "line drawn between the
center posts of the two outer pilasters" and "east of the existing
wall" referred to in paragraph 8 of the settlement agreement. The boundary as highlighted by Neefe-Nolan
showed a line that follows the undulation of the retaining wall. Schindelar-Sznyter disagreed and maintained
the proper interpretation of the landscape easement was what they had
previously submitted. The court took the
motion under submission.
On August 2, 2010, the trial court issued
its final ruling regarding the cross-motions to enforce the settlement
agreement. With respect to the easement
for the gate pilaster and landscaping around the gate and wall, the court ruled
as follows: "[Neefe-Nolan's]
interpretation of the language is more reasonable, and is adopted by the
court. Thus, this easement encompasses
two areas. First, the area on the east
side of a line drawn between the centerposts of the two outer pilasters to the
west side of the wall and gate. Second,
the area on the east side of the existing wall and gate to [Neefe-Nolan's]
property line. Thus, the exhibit
[Neefe-Nolan] provided the court during the
hearing . . . denotes the correct easement."
2. Ruling
on easement for existing retaining wall
In their
motion to enforce the settlement agreement, Schindelar-Sznyter asserted the
purpose of allowing Neefe-Nolan to keep the retaining wall was because
"neither party knew with certainty what wall height would allow
[Neefe-Nolan] to support their house addition . . . ." Schindelar-Sznyter also contended through
their expert that no retaining wall was necessary to support the additions to
the Neefe-Nolan property. Based on the
evidence they presented, Schindelar-Sznyter requested the court rule "that
the wall can be removed and that the grading easement complies with the
Settlement Agreement."
Neefe-Nolan
contended that, according to their expert, a two-course reduction in the
existing retaining wall would comport both with the express language in
"retaining wall to remain" and with the requirement the wall be
reduced to the lowest level which would be permitted by the City of Poway.
With
respect to the retaining wall issue, in its tentative ruling the trial court
concluded "the court finds that a two-course reduction in the wall's
height satisfies [Neefe-Nolan's] obligation under paragraph 9 of the settlement
agreement."
On August
2, 2010, the court issued its final ruling with respect to reducing the height
of the retaining wall: "Regarding
the retaining wall, the agreement contemplates an area of level ground adjacent
to the room addition. This intention is
supported by the necessity of a fence in order to prevent [Neefe-Nolan's]
guests from trespassing onto [Schindelar-Sznyter's] property. The retaining wall contemplated in
[Schindelar-Sznyter's] reply brief does not accomplish this
intention."
tentative ruling that a two-course reduction of the height of the retaining
wall was proper.
3.
With
respect to this issue, the parties were essentially in agreement regarding the
location of the easement. In its
tentative ruling, the court indicated the landscaping easement adjacent to
Schindelar-Sznyter's pool was incorrect only regarding the obligation to
maintain the trees in that area
and needed to be redrafted on that basis.
In its final ruling the court confirmed its tentative ruling as it
related to the pool's landscaping easement.
E.
Upon
receipt of the trial court's final rulings, efforts were undertaken to exchange
easement deeds in accordance with the trial court's rulings. However, no agreement could be reached
regarding the easement locations, nor the language for necessary easement
deeds. Accordingly, on October 22, 2010,
Neefe-Nolan filed a proposed order confirming the court's ruling on the
cross-motions to enforce the settlement agreement, which the court signed.
F. Clarification of the Trial Court's Ruling
The parties
were unable to reach an agreement concerning the deeds which would reflect the
court's ruling. Therefore, at a status
conference on November 19, 2010, the court instructed the parties to exchange
proposed deeds by December 20, 2010, after which a simultaneous exchange/filing
of briefs responding to the proposed deeds would be filed on January 7, 2011.
The court
also set a follow-up hearing for January 13, 2011, at which
accurately reflected the terms of the court's rulings.
At the
follow-up hearing the court provided clarification as to how the settlement
agreement was to be interpreted. The
court addressed the language of the deeds and made further orders regarding any
modifications to the proposed deeds that would be necessary to ensure that they
complied with the court's prior rulings.
The parties were then ordered to meet and confer in order to prepare and
record final deeds relating to the easements to be exchanged.
The court
also stated that if there was ongoing refusal to execute the deeds as reflected
in the court's ruling, an elisor could be appointed upon request.
G. Court's
Appointment of an Elisor and Entry of Judgment
On March
28, 2011, because Schindelar-Sznyter continued to refuse to execute deeds
necessary to finalize and record the easements, Neefe-Nolan filed an ex parte
application for filing of judgment and appointment of elisor. In that application, Schindelar-Sznyter's
continued refusal to execute the deeds was detailed.
After
consideration of the ex parte application and oral argument from the parties,
the court ordered the appointment of an elisor for purposes of executing the
necessary easement deeds. At the same
time, the court also entered a final judgment reflecting its prior order.
DISCUSSION
I. WAIVER
In their
opening brief, Schindelar-Sznyter cite no legal argument or authority in
support of their claim the court erred in its interpretation of the settlement
agreement. "The absence of cogent
legal argument or citation to authority allows this court to treat the
contentions as waived." (
(2008) 164 Cal.App.4th 814, 830); see also Cal. Rules of Court, rule
8.204(a)(1)(B) [each point in a brief must be supported by "argument and,
if possible, by citation of authority"].)
Here,
Schindelar-Sznyter raise four different issues to be addressed by this court in
the section of their brief entitled "Questions Presented." However, they provide no legal authority or
argument to show how the court erred in ruling on these issues. Thus, they have waived the right to challenge
the court's ruling on appeal.
Further, as
we shall discuss, post, even if we
were to reach the merits of Schindelar-Sznyter's contentions on appeal, we
would conclude the court did not err.
II.
A. Standard
of Review
"A
trial court, when ruling on a section 664.6 motion, acts as a trier of
fact. [Citation.] Section 664.6's 'express authorization for
trial courts to determine whether a settlement has occurred is an implicit
authorization for the trial court to interpret the terms and conditions to
settlement.' [Citation.] The proper standard of review, therefore, is
[construing] the settlement . . . is supported by
substantial evidence." (Skulnick
v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 889.)
"When
a trial court's factual determination is attacked on the ground that there is
no substantial evidence to sustain it, the power of an appellate court begins
and ends with the determination as to whether, on the entire record, there is
substantial evidence, contradicted or uncontradicted, which will support the
determination, and when two or more inferences can reasonably be deduced from
the facts, a reviewing court is without power to substitute its deductions for
those of the trial court. If such
substantial evidence be found, it is of no consequence that the trial court
believing other evidence, or drawing other reasonable inferences, might have reached
a contrary conclusion." (Bowers
v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.)
B. Analysis
1. There
was no modification of the settlement agreement
The court
did not "modify" the settlement agreement as Schindedlar-Sznyter assert. Rather, the trial court interpreted the terms of the settlement agreement in light of the
evidence presented by both parties.
As a result, substantial evidence supports the trial court's rulings.
2. Retaining wall easement
As is
discussed, ante, Schindelar-Sznyter
agreed to grant Neefe-Nolan "an easement for the existing retaining wall
to remain." In exchange,
Neefe-Nolan agreed to "reduce the height of the retaining wall to the
lowest level as permitted by the City of Poway's
On appeal,
Schindelar-Sznyter contend the trial court erred in its interpretation of the
retaining wall easement because the settlement agreement required a
"license board" to approve the proposed changes to the retaining wall
and instead of relying on a "license board" the trial court
substituted its own "guess" for what it thought would be accepted.
Schindelar-Sznyter
have cited no authority for the proposition that there is a requirement that a
"license board" approve the proposed changes to the retaining
wall. Indeed, the settlement agreement
contains no such requirement. Moreover,
the trial court did not "guess" with respect to its interpretation of
the retaining wall easement. Instead,
the court based its decision on the language
of the settlement agreement, along with evidence presented by the parties. Thus, the court did not err in its decision
on this issue.
3.
The
appointment of an elisor is one method available to a court for enforcement of
its judgments. (Rayan v. Dykeman
(1990) 224 Cal.App.3d 1629, 1635.) Among
other functions, an elisor can be appointed for "deed and document
execution" where there are "recalcitrant litigants who refuse to obey
orders of the court." (Id.
at p. 1635, fn. 2.) "Where one of
the parties will not or cannot execute a document necessary to carry out a
court order, the clerk of the superior court or his or her authorized
representative or designee may be appointed as an elisor to sign the
document." (Super. Ct. San Diego
County, Local Rules, rule 2.5.11.)
Schindelar-Sznyter
assert that the court erred in appointing an elisor to sign the deeds because
they were "constructed to abrogate terms of the settlement agreement"
and the appointment was done before a final judgment was entered. As discussed, ante, however, Neefe-Nolan presented evidence that
Schindelar-Sznyter refused to sign the deeds, which were consistent with the
court's ruling, as ordered by the court.
Further, Schindelar-Sznyter have provided no authority for the proposition
that a final judgment must be entered before an elisor may be appointed. In fact, the record shows that the court
entered its final judgment simultaneously with the appointment of the elisor. Moreover, the court did not force
Schindelar-Sznyter to sign deeds that "abrogated" the terms of the
settlement agreement. The court, relying
on evidence presented by each side, interpreted the settlement agreement and
determined that the deeds prepared by Neefe-Nolan conformed to the terms of the
settlement agreement. Thus, appointment of an elisor was proper
under the circumstances.
DISPOSITION
The judgment is affirmed.
Neefe-Nolan shall recover their costs on appeal.
NARES,
Acting P. J.
WE CONCUR:
HALLER, J.
McDONALD, J.
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All further undesignated
statutory references are to the Code of Civil Procedure.
