Opinion
D081386
04-24-2024
GERALD SINGLETON, Plaintiff and Appellant, v. THOMAS FRIEDBERG, et al., Defendants and Respondents
Singleton Schreiber, Benjamin I. Siminou and Jonna D. Lothyan for Plaintiff and Appellant. Law Offices of Friedberg and Bunge, Thomas F. Friedberg; and Law Office of John W. Cutchin and John W. Cutchin for Defendants and Appellants.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2014-00016556-CU-OR-CTL, Katherine A. Bacal, Judge. Affirmed. Motion to substitute appellants granted. Request for judicial notice granted. Motion for sanctions denied.
Singleton Schreiber, Benjamin I. Siminou and Jonna D. Lothyan for Plaintiff and Appellant.
Law Offices of Friedberg and Bunge, Thomas F. Friedberg; and Law Office of John W. Cutchin and John W. Cutchin for Defendants and Appellants.
DATO, J.
This case involves a conflict between neighbors that dates back as far as 2014. For a brief period in 2018, it appeared the parties had reached a settlement that would avoid the need for further court involvement-but the last decade of litigation has shown the opposite to be true. This is the second appeal our court has considered arising out of the supposed settlement of the dispute. We resolved the first, concerning the fate of a tree on the Friedberg and Bunge property that obstructed the Singletons' bay view, by affirming the trial court's interpretation of the settlement agreement and its March 2019 minute order directing Friedberg/Bunge to remove the tree. In this second appeal, the Singletons challenge a different part of the same minute order-the directive that they sign a particular easement regarding the common wall between the two properties. Although the time for appealing the 2019 order has passed, they argue this aspect of the order is void and, as such, can be attacked at any time. We find it is not void and again affirm the order.
This party will be referred to hereafter as Friedberg/Bunge.
Although this case originated with Terry and Margaret Singleton, they transferred their property to their son, Gerald, while this appeal was pending. Because we grant their substitution motion (see below), Gerald Singleton is now the proper appellant, but we refer to the Singletons throughout for the sake of clarity.
FACTUAL AND PROCEDURAL BACKGROUND
We describe the facts based on the record and our prior opinion. In 2012, Terry and Margaret Singleton were asked by their new neighbors, Thomas Friedberg and Sarah Bunge, if they could access the Singleton property to make it easier to put up a wall between their two houses. The Singletons agreed, only to later learn (after construction was finished) that the wall in question had been partially erected on their side of the property line. They sued for trespass (among other causes of action) in 2014. On the day set for trial, in July 2018, the parties agreed to a settlement: the Singletons would give Friedberg/Bunge an easement for the wall in exchange for a payment and Friedberg/Bunge trimming or removing various plant life-most notably a Podocarpus tree-that obstructed the Singleton's view of the water.
Creative Smartscape, the company the built the wall, was an additional party in the lawsuit and agreed to pay a smaller sum.
In more granular terms, the neighbors agreed that if an arborist thought the tree could sustain a significant cut back to the Friedberg/Bunge roofline, it would be trimmed-but if not, it would be removed entirely. As for the wall, the parties elected to cure the trespass by agreeing to an easement granted from the Singleton property to the Friedberg/Bunge property. In defining the wall on the record, the parties described its length (nearly 75 feet) and its location in between their properties. They did not define its width. Charles Viviano, the Singletons' lawyer, clarified that the easement would be "as to the wall only," which was affirmed by opposing counsel. The parties also agreed that John Cutchin, one of the Friedberg/Bunge attorneys, would prepare the easement (hereafter, the Cutchin Easement). Under Code of Civil Procedure Section 664.6, the trial court retained jurisdiction to enforce the settlement.
All subsequent unspecified statutory references are to the Code of Civil Procedure.
Although the parties agreed to the terms of the settlement and understood they would be bound by those terms, disputes arose almost immediately as to the meaning and timing of their respective commitments. Friedberg/Bunge did not remove the tree (which apparently could not survive a cut to the roofline), and in response the Singletons took the position that they were excused from executing the easement. A stalemate ensued, with both parties filing motions to enforce the settlement terms.
On March 22, 2019, the court dealt with these cross-motions by granting each in part. In addition to reiterating that Friedberg/Bunge had to remove the tree and the Singletons needed to execute the Cutchin Easement, the court also clarified the timing for the two parties to complete their obligations. The court noted that, based on the earlier settlement terms, "the timing on the easement and the payment of sums comes before the removal of the tree." In a minute order following the hearing, Judge Bacal ordered that within five days, the Singletons were to "execute the easement attached as exhibit A to the declaration of John Cutchin," and that Friedberg/Bunge would have the tree removed within 45 days. At that point, the Singletons had already been provided with a draft of the easement showing it would be three feet in width. Moreover, the court explicitly stated that "it appears the Singletons have no objection to the form of the easement. Thus, the Singletons are ordered to execute the easement."
For the remainder of this opinion, we will refer to this as the Cutchin Easement.
Although the court's concern with expediency was apparent from its minute order, there were additional delays. Friedberg/Bunge filed a notice of appeal on April 26 in which they claimed the settlement terms did not obligate them to remove the tree if it could not be cut back to the roofline. Around the same time in April, the Singletons hired their own surveyor and realized they disagreed with the contours of the Cutchin Easement.
Specifically, they took issue with the three-foot width. They apparently had their own alternative easement drawn up and signed it rather than the one prepared by Cutchin. They did not raise their issues with the Cutchin Easement by cross-appeal. Our court resolved the appeal in October 2020 (in an unpublished opinion), finding that the plain language of the settlement belied Friedberg/Bunge's position that they never committed to remove the tree. (Singleton et al. v. Friedberg et al. (Aug. 19, 2020, D076029).) We affirmed the March 2019 minute order.
Only after remittitur issued in October 2020 did the Singletons formally object to the precise dimensions of the Cutchin Easement. They did so by filing a second motion to enforce the settlement in June 2021. Although much of this motion was focused on compelling Friedberg/Bunge to finally remove the tree, the Singletons also included a request that the court "clarify [the] property boundary." (Some capitalization omitted.) This was, in fact, a new request that the court either order the parties to adopt a different easement or hold an evidentiary hearing to determine the necessary scope of the easement.
Judge Bacal denied the motion. In her minute order on July 12, 2021, she specifically explained that, although the Singletons were now arguing that "the easement prepared by defendants is incorrect because it included the footings of the wall-which are approximate[ly] 2 - 2.5 feet-in addition to the 8" width of the wall," they had previously been "informed that the proposed easement would be 'a 3.00 foot wide strip of land' in February of 2019, and they did not object despite having had the opportunity to do so."
After the denial of their motion, the Singletons obtained new counsel and brought yet a third "motion to enforce" on August 1, 2022. In this motion, they included their new proposed easement tailored to their opinion of where the boundary should run. Before denying the motion, Judge Bacal expressed incredulity as to how the case could continually be before her when (1) she had already ruled on both parties' motions to enforce the settlement under section 664.6, (2) her order was affirmed from the Friedberg/Bunge appeal, and (3) the time for the Singletons to appeal had long since passed.
In response, new counsel for the Singletons, Mark Stender, argued that the lapsed time for appeal was not dispositive because either the March 2019 minute order was not a final appealable judgment, or it was void since it was not representative of the parties' agreement-and thus subject to attack at any time. Judge Bacal responded that, in her view, the case ended in March of 2019, when she "ordered the Singletons to execute the easement attached as Exhibit A to the declaration of Mr. Cutchin." She then suggested that perhaps the Singletons were really asking for reconsideration of her decision-and directed, "that's what you put in front of the court, not a renewed motion under 664.6." This appeal followed from the court's denial of the Singletons' third "motion to enforce."
This prompted a discussion between Judge Bacal and Attorney Stender regarding how this court could have taken up and decided the Friedberg/Bunge appeal from an unappealable order. The Singletons do not reassert this argument on appeal, and as such they have conceded the March 2019 minute order was appealable. But more importantly, as we stated in the prior appeal, we are confident the order was appealable. (See Pangborn Plumbing Corp. v. Carruthers & Skiffington (2002) 97 Cal.App.4th 1039, 1046, fn. 3 ["This is an appealable order because it purports to finally resolve all issues between these particular parties . . . [citation], require[ing] no further judicial action and [leaving] nothing to be done but to enforce . . . [citation] . . . the parties' settlement agreement."]; see also Cal. Rules of Court, rule 8.104(c)(2) [explaining that, for purposes of appeal, the relevant entry date of an appealable minute order is "the date it is entered in the permanent minutes," unless "the minute order directs that a written order be prepared," in which case the date that the written order is filed is used.].) Here, Judge Bacal signed the minute order and stated clearly that it would be the order of the court, leaving no ambiguity that a more formal order or judgment was pending. Less formalized orders have been upheld as appealable. (See Walton v. Mueller (2009) 180 Cal.App.4th 161, 167 [even an appeal from an unsigned minute order was not premature when the minute order made no mention of a further written order that would be prepared for entry].)
The Singletons never submitted any motion for reconsideration under section 1008, subdivision (a), perhaps because it would have been excessively untimely to do so in 2022. (See § 1008, subd. (a)(i) [motion for reconsideration must be made within 10 days of notice of entry of the order being challenged].)
Although Judge Bacal did deny the motion on the record, she noted her concern that the motion itself was improper, stating, "I have no idea how I can now have another motion to enforce settlement under [section] 664.6. In my mind, there is nothing to be heard now that I haven't already ruled on. Time for appeal on plaintiff's side expired. On defendants appeal affirmed. So maybe somebody can explain for me the procedural posture on how I can have these motions pending."
DISCUSSION
A. The March 2019 Minute Order is Not Void
The timing of events in this case is critical to our consideration of the issues. The Singletons concede they received a draft copy of the Cutchin Easement in February 2019. It was already clear at that time that the easement would be three feet wide, more than triple the width of the aboveground part of the wall. The court's March 22, 2019 order noted that "the Singletons have no objection to the form of the [Cutchin Easement]" and specifically directed them to execute it. At no time in the next month did the Singletons seek reconsideration of the court's order. And even after Friedberg/Bunge filed their notice of appeal on April 26 challenging a different aspect of the court's order, the Singletons filed no cross appeal. (Cal. Rule of Court, rule 8.406(b).) Consequently, their claim can survive only if, as they argue, timing is immaterial because the March 2019 minute order was void and thus open to attack at any time.
The Singletons are correct that a court order pursuant to section 664.6 must hew to the terms of the parties' settlement. (§ 664.6, subd (a).) The court's power in this regard comes from the parties' decision to settle their case under certain terms and voluntarily bind themselves to a specific agreement. As such, the court cannot create new terms or impose different obligations than those to which the parties assented. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810 (Weddington).) Courts are vested with the authority, however, to interpret settlement terms and conditions. (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566; Estate of Jones (2022) 82 Cal.App.5th 948, 952.) Interpretation is a duty the court must sometimes exercise to effectuate the settlement. (See Jones v. World Life Research Institute (1976) 60 Cal.App.3d 836, 840.) This is an important function, as it would be too easy otherwise for parties to later "escape their obligations" by claiming they never agreed to something. (See Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1431.)
We return to the record to review what the parties agreed to do. They did indeed agree to an easement for the 75-foot common wall, and "the wall only" between their properties. There was no specific discussion, however, of the foundational footing for the wall or whether the footing should be considered part of the "the wall" for purposes of the easement. The parties attempted to define the wall, but only described the length (approximately 75 feet) and location (between the parties' properties), not the width. We do not read this to mean, as the Singletons assert, that the only legitimate conclusion is that they agreed to an easement running along the precise contours of the above-ground part of the width of the wall without accounting for the footing below. To the extent the wall might be conceptually separated into an above-ground, eight-inch width section and an additional two two-and-a-half foot subterranean width section, there was no such specific discussion. However, as the trial court commented, the Singletons knew in February 2019 that the proposed easement would have a width of three feet and did not object to it then or in March. Given all this, it would seem unreasonable to interpret the phrase "the wall" as narrowly as the Singletons now urge.
The Singletons eventually suggested this approach, with a separate easement width above ground and a wider one below ground to accommodate the footing, in their favored version of the easement.
In support of their position that the order is void, the Singletons rely on this court's decision in Machado v. Myers (2019) 39 Cal.App.5th 779 (Machado). Machado has some similarities to this case; it was a dispute between neighbors that resulted in a settlement, then a motion to enforce, and a subsequent judgment entered under section 664.6. But the circumstances that led us to conclude the Machado judgment was void are materially different from the facts of the case before us.
In Machado, supra, 39 Cal.App.5th 779, an ambiguous property line between two formerly connected plots of land caused a dispute between the Machado and Myers families, who were both using the area as if it were a part of their property. (Id. at p. 783.) Among other issues, the Myerses had an air conditioning unit located in the disputed area. In settling prior to trial, they committed to move the unit at their own expense in exchange for various concessions from the Machados, including a license agreement that would allow the Myerses to use the Machados' property "near the current location of the [air-conditioning] unit." (Id. at p. 784.) Although the details of the licensing agreement were left undetermined at the settlement, the parties agreed it would be revokable "upon certain conditions" they would jointly decide on later through counsel. (Id. at p. 785.)
As in this case, resolution of the issues plaguing the neighbors broke down after the settlement. Claiming the Myerses never moved the air conditioner, the Machados filed a motion to compel compliance of the settlement under section 664.6 in August 2016. The Myerses did not oppose. The court granted the motion but did not immediately enter any judgment. (Machado, 39 Cal.App.5th 779, 786.) The case dragged on for various reasons, and in late 2017, the Machados filed an application to enter judgment pertaining to the court's earlier decision to grant their 2016 motion. As an attachment, the Machados submitted a proposed judgment that they claimed reflected their oral settlement, but which omitted the license entirely-a position they felt was justified by the Meyerses' alleged breach of their obligation to remove the air conditioner. Despite this defect, the trial court entered the Machados' proposed judgment, prompting the Myerses to appeal. (Machado, at p. 788).
Other terms of the settlement were also dropped from the judgment the court adopted, although the license remained the central omission. (Machado, supra, 39 Cal.App.5th 779, 793.)
Upon review, our court declared the judgment void under section 664.6, because in adopting it, the court unilaterally changed the terms of the parties' agreement by removing a central obligation of the Machados. As we explained, "rather than reflecting the terms of the parties' agreement, the judgment entered improperly modified the settlement terms. These modifications were made in connection with the Machados' argument- asserted for the first time in the application to enter judgment-that the Machados were relieved from any obligation to enter a license agreement because of [the Myerses'] purported breaches." (Machado, supra, 39 Cal.App.5th 779, 793.)
Although the Singletons argue that the court's order compelling them to sign the Cutchin Easement is a similar improper modification of their settlement, we are unconvinced. If the court had adopted an order that freed Friedberg/Bunge from their obligation to remove the tree, or perhaps omitted the Singletons' easement obligation entirely, that would be much more akin to the issue in Machado. But nothing in the March minute order comes close to that. Rather, the parties agreed to execute an easement for the wall, prepared by Attorney Cutchin. The existing draft for this document clearly showed a three-foot width that was not controversial at the time. The Singletons made no objections to the easement. The court later ordered them to sign it-doing no more than enforcing the "terms the parties themselves ha[d] previously agreed upon." (Weddington, supra, 60 Cal.App.4th 793, 810.) The order is not now void because the full ramifications of what they agreed to did not become apparent to the Singletons until later.
This is not to suggest that the Singletons had no recourse to address their concerns with the Cutchin Easement. The proper remedy, however, was to object at the time of the first motion to enforce the settlement and, potentially, appeal or cross-appeal, not this after-the-fact attack on the validity of the court's order.
Although the Singletons claim they were not aware of their concerns with the Cutchin Easement until April 2019, they had notice as early as February 2019 that the width for the easement would be three feet. The fact that it was not until April that they sufficiently scrutinized the document and compared it to the wall's above-ground eight-inch width was a problem of their own creation.
Even if we assume, as some parts of the record indicate, that the Singletons may have doubted the finality (and thus appealability) of the March 2019 minute order, certainly the fact that their opponent filed and then prosecuted a successful appeal from that same order should have clarified the situation.
B. Standing, Substitution, and Sanctions
In March of 2023, while this appeal was pending, the Singletons deeded their property to their son, Gerald Singleton. Friedberg/Bunge seized on this change in ownership, claiming the Singletons now lack standing to pursue this appeal. To address this procedural concern, the Singletons submitted a motion to substitute Gerald as the appellant in this action- a change that was opposed, although belatedly, by Friedberg/Bunge. This kind of substitution is routine. (Cal. Rules of Court, 8.36; Eisenberg, et al., Cal. Prac. Guide: Civil Appeals and Writs (The Rutter Group 2024) ¶ 2:279 ["If a party . . . transfers possessory interest in the action while an appeal is pending, substitution of . . . the transferor party's transferee occurs by filing a motion for substitution of parties in the appellate court"].) We now grant the motion, curing any standing defect. (See Estrada v. Royalty Carpet Mills, Inc. (2022) 76 Cal.App.5th 685, 719 [noting liberal allowance for "permitting plaintiffs who lack or have lost standing to substitute as plaintiffs the true real parties in interest"]; Goodley v. Wank &Wank, Inc. (1976) 62 Cal.App.3d 389, 394 [real property actions are assignable interests]; see generally Civ. Code, § 954].)
For the sake of clarity, we refer to Gerald by his first name, intending no disrespect.
In support of this argument, they ask that we take judicial notice of the deed. We grant the request as the deed was recorded as part of an official act of the county. (Evid. Code, § 452, subd. (c).)
Friedberg/Bunge filed a late opposition to the Singletons' substitution motion. Although strictly speaking we need not address their untimely arguments, their purported concerns that certain aspects of the cause of action are not assignable is irrelevant. Because we ultimately uphold the minute order, the action is over. The Singletons' obligations under the settlement constitute transferrable interests in real property.
Here, we pause to address some practical issues this substitution of parties purportedly raises. At oral argument, counsel for Friedberg/Bunge (attorney Cutchin) expressed his concerns that if we grant the substitution motion, there would be no way to ensure Gerald's compliance with the March 19 minute order short of initiating a brand new lawsuit against Gerald.Although this was not explicitly stated, we take these comments to mean that counsel questions whether our grant of the substitution motion is necessarily effective in the trial court and binds Gerald to an order that previously pertained only to his parents.
Specifically, attorney Cutchin asked, "How do I enforce against the new part[y]? If they refuse to do it, I have to sue them again. I don't see how I can get around another lawsuit, starting at the beginning, if the new party refuses to comply."
To address this concern, we first provide some background on substitution motions brought during an appeal. Beginning in 2005, the proper procedure in these instances has been for the party requesting a substitution to file such a motion in the reviewing court, as the Singletons did here. (Cal. Rules of Court, rule 8.36(a); see, e.g., Kaney v. Custance (2022) 74 Cal.App.5th 201, 204, fn. 2 [substitution of party effectuated by appellate court under Cal. Rules of Court, rule 8.36(a)]; Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 606, fn. 1 [same].) When such a motion is granted, the appellate court clerk must notify the clerk of the superior court. (Cal. Rules of Court, rule 8.36(a).) In previous years, a more cumbersome procedure under an earlier version of former rule 48(a) required parties to first move in the superior court for substitution, and then present a copy of an order granting the motion to the reviewing court, after which the reviewing court would issue its own duplicative order. (Fay v. Steubenrauch (1903) 138 Cal. 656, 657; Erickson v. Boothe (1949) 90 Cal.App.2d 457, 459; Reay v. Heazelton (1900) 128 Cal. 335, 338.) This process was meant to ensure that the substitution would be understood and effectuated at both levels. (See discussion in Reay, at p. 338 [application for substitution in both courts will help avoid "vexatious questions"]; but see Hollaway v. Scripps Memorial Hospital (1980) 111 Cal.App.3d 719, 724 , fn. 1 [former rule 48(a) not intended to dilute the jurisdiction of the court of appeal, nor to create conflict between superior and appellate court orders].) But because the 2005 amendment to former Rule 48 intended "[n]o substantive change" (Adv. Com. com., Cal. Rules of Court (2005 ed.) foll. rule 48), an appellate court's decision to substitute parties necessarily applies prospectively in the superior court as well.
Regardless of the historic procedure and the reasons for it, the approach taken by the current Rule of Court is simpler given that the trial court's jurisdiction is generally stayed while we decide an appeal. (Code Civ. Proc., § 916; Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1343.) Moreover, there is little logic to the position that a litigant who successfully substitutes in on appeal-asking to assume both the benefits and responsibilities of their predecessor-would then be treated differently than their predecessor would have been after the remittitur issues. Nonetheless, in an effort to avoid further disputes, we wish to make it exceedingly clear that due to this court's grant of the Singletons' motion to substitute, Gerald is now a party to the action in the superior court and is bound to complete any outstanding obligations from his parents' prior agreement with Friedberg/Bunge. Since we affirm the trial court's interpretation of that settlement and its effectuation of the same in the March 19 minute order, this means Gerald must fulfill the specific directives of the March 19 order that once pertained to his parents-including executing the Cutchin Easement.
This comports with Gerald's declaration in support of the substitution motion, in which he stated that, in accepting ownership of his parents' house, he "agreed to accept my parents' rights and liabilities associated with the property, including any obligations under the settlement my parents negotiated with Thomas Friedberg and Sarah Bunge ...."
In response to attorney Cutchin's expressed concerns about the substitution of parties, at oral argument counsel for the Singletons stated that Gerald was "willing to agree to the terms of the settlement as agreed to, meaning a definition of the wall and only the wall, and not to allow the respondents to encroach any further onto the property." This statement is unhelpful. Since we find the order was not void, there is nothing further for Gerald to "agree" to. There is only a previous agreement to be carried out. And it is the trial court's interpretation of that agreement-which we have twice affirmed-that governs.
We turn now to the issue of sanctions. We decline the Friedberg/Bunge request to impose sanctions against the Singletons in this case. (§ 128.5, subd. (b)(2).) While the Singletons' dubious third "motion to compel" before the trial court may well have been filed primarily to reset the proverbial clock on appeal, we cannot say that no reasonable attorney could have believed there was arguable merit in their contention that the order itself was void. It has at least as much credence as the Friedberg/Bunge claim in the first appeal. As with many positions taken by parties in cases that come before us, even those that do not ultimately prevail make some sense from the litigant's perspective. Courts "take a dim view of frivolous appeals," but we reserve sanctions for only the most egregious abuse of the appellate process. (Brown v. Wells Fargo Bank, NA (2012) 204 Cal.App.4th 1353, 1356; Malek Media Group LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 834 [sanctions should be used sparingly so attorneys are not deterred from vigorously representing their clients and parties are not deterred from pursuing legitimate appeals].) However, if either party in this case continues to delay performance of the outstanding terms of the settlement, it will be for the trial court to decide whether it should revisit the sanctions issue.
DISPOSITION
We affirm the March 2019 minute order of the trial court. Our decision means that both parties will be required to promptly complete their obligations under the settlement. Any part of the order that once applied to the Singletons now applies to Gerald. This admonition is not intended to constrain the discretion of the trial court to manage the case, but rather to forestall further unnecessary delay. The original timeline specified in the court's order mandated that the Singletons (now Gerald) execute the Cutchin Easement within five days of the order. After that, within five days of the recording of the easement, Friedberg/Bunge were required to pay $150,000 to the Singletons (now Gerald) by either manner of payment explained in the minute order. Within an additional 45 days, Friedberg/Bunge were to remove the Podocarpus tree. Following issuance of the remittitur, it will be for the trial court to set a new date for sequential compliance with the court's order, but we see no reason why the original timeline should not govern unless the court finds a different schedule is warranted.
According to the minute order, Friedberg/Bunge may "either (1) pay the full amount ($150,000) or (2) pay $100,000 to [Gerald Singleton] and, by a separate method, pay $50,000 to be held in trust by the Singleton['s] counsel pending the removal of the Podocarpus tree. If Friedberg/Bunge paid $50,000 held in trust by [ ] Singleton[s'] counsel, that money must be returned to Friedberg/Bunge within 5 court days' notice of the removal. If Friedberg/Bunge paid the full amount of $150,000, [ ] Singleton[ ] must pay Friedberg/Bunge $50,000 within 5 court days of notice of the removal."
The other defendant in the suit, Creative Smartscape, agreed to contribute a total of $20,000 to the removal of the tree. As the trial court stated in its order, "Smartscape will pay the Singletons $10,000, separate and apart from potential contribution for removing the tree and, if the Podocarpus tree is removed, will contribute an additional $10,000." However, Smartscape was not a party to this appeal.
Respondents are entitled to costs on appeal.
WE CONCUR: IRION, Acting P. J. KELETY, J.