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.,                                         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.
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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.



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       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]."




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       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]."




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       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

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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

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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

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[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

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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.

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                                        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.)

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       "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 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,

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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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