Filed 3/25/13 Schindelar v. Neefe CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SUSAN M. SCHINDELAR et al., D059639 Individually and as Trustees, etc.,
Plaintiffs, Cross-defendants and Appellants, (Super. Ct. No. GIC857198)
v.
RICHARD NEEFE et al.,
Defendants, Cross-complainants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego 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 Procedure1 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
1 All further undesignated statutory references are to the Code of Civil Procedure. 2 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. Background
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.
3 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 Neefe-
Nolan's mailbox; (2) removal of rocks by Neefe-Nolan in 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]."
4 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]."
5 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. Efforts To Prepare Required Easements
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
6 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
7 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 the
settlement agreement stating "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
8 [Schindelar-Sznyter's] property. The retaining wall contemplated in [Schindelar-
Sznyter's] reply brief does not accomplish this intention." As to the wall height issue, the
court confirmed its tentative ruling that a two-course reduction of the height of the
retaining wall was proper.
3. Ruling on poolside easement
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. October 22, 2010 Order
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
9 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 time the
court would select the proposed deeds which most 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.
10 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." (In re Marriage of Falcone & Fyke (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. MERITS
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 whether the trial court's ruling [construing] the settlement . . . is supported by
substantial evidence." (Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 889.)
11 "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
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 requirements."
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"
12 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. Appointment of an elisor
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,
13 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.