Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Ct. No. 05CC07279, Kazuharu Makino, Judge.
Mazur & Mazur, Janice R. Mazur and William E. Mazur, Jr., for Plaintiffs and Appellants
No appearance for Defendant and Respondent
OPINION
ARONSON, J.
Plaintiffs Thomas and Renee Hafen, Trustees of the Hafen Trust, appeal from the trial court’s judgment in defendant Rhonda Nielsen’s favor. Nielsen owns a vacant parcel adjacent to the Hafens’ home. The Hafens brought this action to enforce an unrecorded and confidential agreement they made with the prior owner of Nielsen’s property. They alleged the agreement to grant mutual view easements and exchange certain portions of the properties was enforceable against Nielsen as an equitable servitude.
Following a bench trial, the trial court refused to enforce the agreement against Nielsen based on the court’s findings that (1) Nielsen took title to her property without actual or implied notice of the agreement, (2) Nielsen had no duty to investigate whether the agreement existed, and (3) the Hafens failed to show refusing to enforce the agreement would be inequitable. The Hafens challenge the sufficiency of the evidence to support the trial court’s rejection of their equitable servitude claim. Specifically, they argue the evidence showed (1) Nielsen at least had inquiry notice of the agreement — that is, she had enough information regarding the agreement to require her to investigate its existence and terms — and (2) their reliance on the agreement made the refusal to enforce it inequitable.
We conclude substantial evidence supports the trial court’s findings and therefore affirm the judgment in Nielsen’s favor on all causes of action.
I
Facts and Procedural History
This action concerns adjoining, hillside parcels in Trabuco Canyon, California. A single-family residence with panoramic views in all directions lies on one parcel, located at 30021 Canyon Creek Drive (30021). The best views from that residence are to the west across the adjacent parcel located at 30022 Canyon Creek Drive (30022). The only flat and readily developable portion of 30022 is the portion nearest 30021. Development on this flat area would significantly impact the view west from the residence on 30021. Directly south of 30022 are two additional undeveloped lots the parties refer to as lots 2 and 4.
As of April 2001, Terry and Linn Moshenko owned 30021 and Mark and Linda Frauman owned 30022. On April 21, 2001, the Moshenkos and the Fraumans entered into the “Agreement for Property and Easement Exchange” (2001 Agreement). The two couples agreed to exchange 30022’s flat portion for an equal-sized portion of 30021, with an engineer to determine the exact location and dimensions of both parcels. The Moshenkos and Fraumans also agreed to grant one another view easements across their properties. The 2001 Agreement, however, was “contingent upon, and of no force and effect unless” the parties completed the land exchange and granted the easements it described. Neither the Moshenkos nor the Fraumans recorded the 2001 Agreement and Terry Moshenko died before the couples exchanged any land or granted any easements.
The record does not clearly indicate who owned lots 2 and 4 in 2001.
The Hafens purchased 30021 in August 2002. Theodore Carlson and Michael Meacher purchased 30022 and lots 2 and 4 in January 2004. Carlson acted as a straw man for Meacher’s purchase, taking title in his name because his superior credit score enabled Meacher to obtain a more favorable loan. Realtor Winthrop Clark served as a dual agent on both the Hafens’ and Meacher’s purchases. He disclosed the 2001 Agreement to the Hafens and Meacher, explaining he thought it was unenforceable because the Moshenkos and the Fraumans never fulfilled the agreement’s conditions by actually exchanging land and granting view easements. After purchasing 30021, the Hafens nonetheless used 30022’s flat portion as their own by parking vehicles and leaving equipment on the area, irrigating and weeding it, and allowing their children to play on it.
In July 2004, Meacher listed 30022 and lots 2 and 4 for sale with Clark as the agent. Clark had difficulty attracting potential buyers. After unsuccessfully marketing the properties for six months, Clark and Meacher blamed the untidy conditions on the Hafens’ property for repelling prospective buyers. Clark requested a meeting with Meacher and Thomas Hafen to discuss the situation. During the meeting, Hafen testified Clark became verbally abusive and therefore he asked Clark to leave. Meacher, however, remained behind to continue negotiations with Hafen about cleaning up his property and confirming the 2001 Agreement to exchange land and view easements. Hafen and Meacher reached an agreement that the Hafens, Meacher, and Carlson signed on January 29, 2005 (2005 Agreement).
In the 2005 Agreement, Meacher and the Hafens agreed to exchange 30022’s flat portion for a similar-sized portion of 30021 and to “keep” one another’s view “unobstructed.” The Hafens agreed to construct a garden wall on Meacher’s property and to install trees and shrubs to provide a view shed behind the wall. The Hafens also agreed to move vehicles, equipment, and various other items “out of sight in order to enhance the value for the sale of [Meacher’s] property.” If Meacher could sell 30022 for more than $300,000, he agreed to pay the Hafens one-half the amount exceeding $300,000 up to a maximum of $10,000. Finally, Thomas Hafen agreed to provide Meacher with environmental and consulting services at a designated hourly rate.
The 2005 Agreement also expressly rescinded the 2001 Agreement and provided that it was “confidential and shall run with the land” and “will not be disclosed to other property owners in the neighborhood.” Thomas Hafen testified Meacher requested the confidentiality provision because Meacher did not want Clark to learn about the 2005 Agreement after Hafen dispatched Clark from their meeting. Meacher, however, testified Hafen requested the confidentiality provision and denied he had any reason to keep Clark uninformed about the 2005 Agreement. Neither the Hafens nor Meacher recorded the 2005 Agreement until after the Hafens filed this lawsuit.
After signing the 2005 Agreement, the Hafens removed some of the equipment, tools, and other items from the flat portion of the land and also started constructing the garden wall on Meacher’s property. Although Meacher told Thomas Hafen he liked the wall, he testified he thought the Hafens failed to fully perform under the 2005 Agreement and therefore it was unenforceable.
In early March 2005, Nielsen agreed to purchase 30022 for $550,000 and lots 2 and 4 for $650,000. The parties opened escrow with Clark serving as the agent for both Nielsen and Meacher. Clark learned that Meacher and Hafen reached an agreement that generally dealt with cleaning up 30021 and also rescinded the 2001 Agreement. Clark, however, never received a copy of the 2005 Agreement and did not know its terms. He asked Meacher for a copy of the 2005 Agreement to give to Nielsen during escrow, but Meacher refused because of the agreement’s confidentiality provision. According to Hafen, he did not provide Nielsen or Clark with a copy of the 2005 Agreement before escrow closed because Meacher assured Hafen he would do so. Clark did not disclose the 2001 Agreement to Nielsen because Meacher told him the 2005 Agreement rescinded it.
Unable to obtain a copy of the 2005 Agreement, Clark provided Nielsen with a document entitled “Trabuco Canyon Disclosures, ” which included a paragraph stating, “The seller [sic] will be supplying an additional disclosure of an agreement between them and the property across from 30022 Canyon Creek. This agreement was discussed, in part, at my house with Mr. Meacher. I am told this agreement has a nondisclosure clause that precludes me from viewing it.” Nielsen thought this disclosure referred to an agreement between Meacher and Carlson that made Meacher the equitable owner of 30022 and lots 2 and 4, and Carlson the title holder. Nielsen did not interpret this disclosure as referring to an agreement with the Hafens.
During escrow, both Meacher and Clark informed Nielsen that Meacher discussed with Thomas Hafen the possibility of exchanging 30022’s flat portion for a portion of the Hafens’ property. Meacher told Nielsen he engaged in those discussions to facilitate his specific development plans for the parcels he owned, but abandoned those plans when he decided to sell the parcels. Meacher and Clark advised Nielsen she could pursue those same discussions with Hafen if she wished.
Meacher also testified he disclosed the 2005 Agreement’s “generalities” to Nielsen and, in response, Nielsen asked whether an attorney drafted the agreement and whether anyone recorded it. Meacher answered both questions in the negative and Nielsen did not inquire further.
Nielsen acknowledged learning about Meacher and Hafen’s land exchange discussions before her escrow closed, but testified she thought those discussions had nothing to do with her because she did not plan to follow Meacher’s development plans. Nielsen further testified the discussions did not concern her because Meacher told her nothing had been finalized. Indeed, Meacher testified he thought the 2005 Agreement was merely a “memorandum of some understandings” that would lead to further negotiations, but was not a binding agreement requiring the exchange of property or view easements.
During escrow, Nielsen and a friend were watching the sunset from the property at 30022 when Thomas Hafen approached and introduced himself. Hafen testified he talked to Nielsen for at least 45 minutes and disclosed the 2005 Agreement’s terms regarding the land exchange and view easements. Nielsen, however, testified this “sunset meeting” lasted no more than 10 minutes and the two exchanged small talk only. She emphatically denied Hafen said anything about the 2005 Agreement or its terms.
George Polycrates is a civil engineer who lived in the area and prepared the parcel map subdividing 30022 and lots 2 and 4 in the late 1980’s. Nielsen hired him to perform some work for her at 30022 and lots 2 and 4. Thomas Hafen testified Polycrates called him before Nielsen closed escrow and asked whether Hafen had an agreement restricting the use of 30022. Hafen responded a confidential agreement existed. After obtaining Meacher’s permission, Hafen faxed Polycrates a copy of the 2005 Agreement. Nielsen testified Polycrates said nothing to her about either the 2005 Agreement or the 2001 Agreement and she did not know Polycrates discussed either agreement with Hafen. Nielsen also testified Polycrates told her 30022’s flat portion was the place to build any residence on the parcel.
Polycrates did not testify at trial, but the Hafens introduced excerpts from his deposition. Polycrates could not recall when he spoke with Thomas Hafen regarding the 2005 Agreement. He explained he phoned Hafen to inquire about the 2005 Agreement to satisfy his own curiosity, not on behalf or at the request of Nielsen. He emphasized that he inquired because of the work he previously had done on the parcels and he was not acting as Nielsen’s engineer. Polycrates testified he reported his conversation with Hafen to Nielsen, but he did not say when.
Nielsen closed escrow on May 19, 2005, without receiving a copy of either the 2005 Agreement or the 2001 Agreement. She testified she knew nothing about either agreement until after closing. The 2005 Agreement first came to Nielsen’s attention when the Hafens’ attorney contacted her to ask about the disclosures she received during escrow. Nielsen refused to be bound by the 2005 Agreement because she knew nothing about it before escrow closed.
The Hafens filed this action on June 15, 2005. The operative second amended complaint alleged five causes of action against Nielsen on the theory both the 2005 Agreement and the 2001 Agreement were enforceable against her as equitable servitudes. The first and second causes of action sought specific performance and declaratory relief regarding the land exchange and view easements described in the 2005 Agreement. The third cause of action alleged the Hafens acquired a prescriptive easement for the nonexclusive use of 30022’s flat area because the Hafens and their predecessors continually used the area for approximately 20 years. If the 2005 Agreement’s land exchange and view easements could not be enforced for any reason, the fourth and fifth causes of action sought specific performance and declaratory relief regarding the view easements described in the 2001 Agreement.
The Hafens also alleged claims for breach of contract, fraud, and conspiracy to defraud against Meacher and Carlson, but dismissed those claims after reaching a settlement during trial. The Hafens named Clark on the conspiracy to defraud cause of action, but the trial court granted Clark summary judgment and we affirmed that judgment in an unpublished opinion. (Hafen v. Clark (June 23, 2008, G038395) [nonpub. opn.].)
Following a bench trial, the trial court refused to enforce the 2005 Agreement against Nielsen as an equitable servitude and entered judgment in Nielsen’s favor. In its statement of decision, the trial court found Nielsen had no actual or imputed knowledge of the 2005 Agreement and no duty to investigate whether an agreement existed between Meacher and the Hafens regarding view easements and a land exchange. The trial court further found the Hafens could not show that declining to enforce the 2005 Agreement against Nielsen was inequitable.
The trial court also found that (1) the 2005 Agreement could not be enforced as a covenant running with the land because the parties failed to record it and (2) the 2001 Agreement could not be enforced because the 2005 Agreement rescinded it. The trial court made no ruling on the Hafens’ prescriptive easement cause of action. Presumably, either the Hafens or the trial court dismissed that claim before trial. The Hafens do not challenge these additional rulings or the lack of a ruling on the prescriptive easement claim. (Behr v. Redmond (2011) 193 Cal.App.4th 517, 537 [appellant waives argument by failing to asserting it in opening brief].)
The Hafens timely appealed the trial court’s judgment.
II
Discussion
A. Governing Principles Regarding Covenants Running with the Land and Equitable Servitudes
A covenant running with the land is an agreement between landowners regarding the use of land. It is “both a private contract benefiting and enforceable by the original parties and also a continuing agreement benefiting and binding upon the successor owners of the same properties.” (8 Miller & Starr, Cal. Real Estate (3d ed. 2009) § 24:1, p. 24-4, original italics (Miller & Starr).) “In California, only covenants specified by statute run with the land [citation], ....” (Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 353 (Citizens).) The Civil Code establishes specific steps for creating a covenant running with the land, including a requirement the parties describe the benefited and burdened parcels in a writing that is recorded in the county where the parcels are located. (Soman Properties v. Rikuo Corp. (1994) 24 Cal.App.4th 471, 481-482, disapproved on other grounds in Citizens, at pp. 360-363, 366.)
“An equitable servitude is a restriction on the use of real property that is enforceable even though not imposed as a covenant in the manner provided by law. The doctrine of equitable servitudes arose as a means of giving effect to restrictions that did not meet the stringent legal standards required for covenants running with the land.” (8 Miller & Starr, supra, § 24:1 at p. 24-4.) When a covenant does not run with the land, it nonetheless may be enforced against a subsequent owner as an equitable servitude if (1) the subsequent owner took title with knowledge of the covenant’s terms, and (2) it would be inequitable to permit the subsequent owner to avoid the restrictions the covenant imposed. (Marra v. Aetna Constr. Co. (1940) 15 Cal.2d 375, 378; Richardson v. Callahan (1931) 213 Cal. 683, 686-687; Oceanside Community Assn. v. Oceanside Land Co. (1983) 147 Cal.App.3d 166, 175-176 (Oceanside), disapproved on other grounds in Citizens, supra, 12 Cal.4th at pp. 360-363, 366.)
B. The Trial Court Did Not Err by Refusing to Enforce the 2005 Agreement as an Equitable Servitude
The Hafens made no attempt to enforce the 2005 Agreement against Nielsen as a covenant running with the land.
The trial court refused to enforce the 2005 Agreement as an equitable servitude based on its findings that (1) Nielsen had no duty to investigate whether an agreement existed between Meacher and the Hafens regarding a view easement or land exchange, (2) Nielsen took title to 30022 without actual or imputed notice of the 2005 Agreement, and (3) the Hafens could not show refusing to enforce the 2005 Agreement against Nielsen would be inequitable. The Hafens argue the trial court erred in making each of these findings.
1. Substantial Evidence Supports the Finding Nielsen Had No Duty to Investigate
The Hafens contend the trial court erred in finding Nielsen had no duty to investigate because she had enough information regarding the 2005 Agreement to put her on notice of its possible existence. According to the Hafens, a reasonable investigation would have uncovered the 2005 Agreement and therefore Nielsen must be charged with knowledge of the agreement.
“Determination of whether a covenant is... enforceable as an equitable servitude rests upon the resolution of factual matters such as intent, notice and equitable factors.” (McCaffrey v. Preston (1984) 154 Cal.App.3d 422, 436, italics added (McCaffrey).) “Whether information known to a purchaser or encumbrancer is sufficient to imply notice depends on the circumstances of each particular case. Whether he or she had sufficient information to prompt a reasonable person to make a further investigation and, thus, whether notice is to be implied, is a question of fact.” (5 Miller & Starr, supra, § 11:81 at pp. 11-245 to 11-246, italics added.)
“The trial court is the sole arbiter of the facts.” (Navarro v. Perron (2004) 122 Cal.App.4th 797, 803.) When reviewing a trial court’s factual determinations, we apply the substantial evidence standard of review. (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 461 (SFPP); McCaffrey, supra, 154 Cal.App.3d at p. 436 [applying substantial evidence standard to trial court’s decision whether to enforce a covenant as an equitable servitude].)
“Under the substantial evidence test, ‘“‘[w]e must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.] Where the evidence supports more than one inference, we may not substitute our deductions for the trial court’s. [Citation.] We may overturn the trial court’s factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings. [Citation.]’”‘ [Citation.]” (Lawrence v. Hartnell Community College Dist. (2011) 194 Cal.App.4th 687, 693 (Lawrence).)
“‘“[T]he power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, ” to support the findings below. [Citation.]...’ [Citation.]” (SFPP, supra, 121 Cal.App.4th at p. 462.) “If the trial court’s resolution of the factual issue is supported by substantial evidence, it must be affirmed.” (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)
Here, substantial evidence supports the trial court’s finding that Nielsen had no duty to investigate whether an agreement existed between the Hafens and Meacher regarding view easements and a land exchange. No one recorded either the 2005 Agreement or the 2001 Agreement and Nielsen testified she did not learn about either agreement until after escrow closed. She acknowledged Clark and Meacher told her about discussions between the Hafens and Meacher regarding a possible land exchange, but she testified Meacher told her nothing had been finalized. Indeed, Meacher testified he thought the 2005 Agreement was a nonbinding memorandum of understanding that imposed no restrictions on 30022.
The Trabuco Canyon Disclosure that Clark provided Nielsen merely stated “[t]he seller [sic] will be supplying an additional disclosure of an agreement between them and the property across from 30022 Canyon Creek.” Clark could not provide Nielsen more information about the 2005 Agreement because he did not know its terms and Meacher refused to provide Clark with a copy because of the agreement’s confidentiality provision. Nielsen testified she interpreted the foregoing disclosure as referring to an agreement between Meacher and Carlson concerning Meacher’s equitable ownership of lots 2 and 4, and did not think the disclosure referred to an agreement involving the Hafens.
Finally, the trial court rejected Thomas Hafen’s testimony that he told Nielsen about the 2005 Agreement during the “sunset meeting.” The trial court found more credible Nielsen’s testimony that she and Hafen talked for less than 10 minutes and did not discuss the 2005 Agreement.
The Hafens do not dispute the foregoing constitutes substantial evidence supporting the trial’s court’s finding. The Hafens fail to recognize, however, that the substantial evidence standard governs our review of the trial court’s finding that Nielsen had no duty to investigate. Instead, the Hafens simply argue they presented evidence supporting the contrary conclusion.
Assuming the Hafens presented substantial evidence showing Nielsen had a duty to investigate, that alone would not permit us to reverse the trial court’s finding. As explained above, we may overturn the trial court’s factual findings only if the evidence is insufficient to support those findings as a matter of law. (Lawrence, supra, 194 Cal.App.4th at p. 693.) It is not sufficient for the Hafens to show the evidence could support a different finding; they must show the evidence required a different finding. (Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 683-684 [“‘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’”].) The Hafens failed to make that showing.
2. Substantial Evidence Supports the Finding Nielsen Did Not Have Imputed Notice of the 2005 Agreement
The Hafens do not challenge the trial court’s finding Nielsen lacked actual notice of the 2005 Agreement.
The Hafens also argue Nielsen had notice of the 2005 Agreement because her realtor (Clark) and her civil engineer (Polycrates) had notice of the agreement before escrow closed. According to the Hafens, Clark’s and Polycrates’s knowledge of the 2005 Agreement is imputed to Nielsen because they acted as her agents. The evidence, however, showed Clark did not have any knowledge of the terms in the 2005 Agreement and Polycrates did not act as Nielsen’s agent when he discussed the 2005 Agreement with Thomas Hafen.
Clark knew Meacher and the Hafens entered into an agreement, but Meacher refused to provide him with a copy because the 2005 Agreement contained a confidentiality provision. Clark testified he knew only that the 2005 Agreement generally dealt with the Hafens cleaning up 30021 and also rescinded the 2001 Agreement. The Hafens failed to point to any evidence showing Clark knew the 2005 Agreement included view easements or a land exchange.
As for Polycrates, he acknowledged phoning Thomas Hafen to ask about the 2005 Agreement and Hafen testified he faxed Polycrates a copy of the agreement before escrow closed. Polycrates, however, testified that he inquired about the 2005 Agreement to satisfy his own curiosity regarding the parcels involved and did not act as Nielsen’s engineer at the time. Polycrates’s testimony also was vague and inconsistent regarding when he spoke with Nielsen and what he told her. Substantial evidence therefore supports the trial court’s decision rejecting the Hafens’ imputed notice theory.
3. The Trial Court Did Not Abuse Its Discretion in Finding No Inequities Resulted from Refusing to Enforce the 2005 Agreement
Assuming the Hafens established Nielsen took title with notice of the 2005 Agreement, they still had to show it would be inequitable not to enforce the 2005 Agreement against Nielsen. (See, e.g., Oceanside, supra, 147 Cal.App.3d at pp. 175-176.) The trial court, however, found the Hafens could not make that showing because they created the situation giving rise to this dispute by failing to record the 2005 Agreement, making the agreement confidential, and failing to give Nielsen a copy when they had ample opportunities to do so.
The trial court is vested with the discretion to determine whether it is equitable to enforce a covenant as an equitable servitude. (See Hartford Casualty Ins. Co. v. Travelers Indemnity Co. (2003) 110 Cal.App.4th 710, 724 (Hartford) [when a trial court rules based on equitable considerations, the decision is a matter of discretion; “‘“‘From the very nature of equity, a wide play is left to the conscience of the chancellor in formulating his decrees’”’”].) We review the trial court’s decision for an abuse of discretion. (Oceanside, supra, 147 Cal.App.3d at p. 176; Taormina Theosophical Community, Inc. v. Silver (1983) 140 Cal.App.3d 964, 973; see also Hartford, at p. 724.)
The Hafens argue it was inequitable for the trial court not to enforce the 2005 Agreement against Nielsen because (1) the view easement provided in the 2001 Agreement was a substantial factor in their decision to purchase 30021 from the Moshenkos, (2) they sought to protect their view by entering into the 2005 Agreement with Meacher, (3) they performed under the 2005 Agreement’s “additional provisions, ” and (4) Nielsen “had plenty of cues to indicate that there was an issue with the property prior to her close of escrow.”
None of these arguments, however, establishes the trial court abused its discretion by refusing to enforce the 2005 Agreement. First, the Hafens’ reliance on the 2001 Agreement’s view easement when they purchased 30021 does not make the trial court’s refusal to enforce the 2005 Agreement’s view easement inequitable. As the trial court found, the Hafens failed to take the readily available steps necessary to protect any view easement or other rights they claimed in 30022. Although they had ample opportunity, the Hafens did not record the 2005 Agreement nor did they give a copy to Nielsen once they learned she was in escrow to purchase 30022. Indeed, not only did the Hafens fail to ensure Nielsen received notice of the 2005 Agreement, they made it more difficult for her to discover the 2005 Agreement by including a confidentiality provision in the agreement.
Second, the Hafens’ efforts to protect their view rights by entering into the 2005 Agreement with Meacher likewise do not establish the trial court abused its discretion. As explained above, the Hafens failed to take the steps necessary to ensure the 2005 Agreement would actually protect their rights and could be enforced against anyone other than Meacher.
Third, the Hafens’ performance under the 2005 Agreement’s “additional provisions” does not make the trial court’s refusal to enforce the agreement’s view easement and land exchange provisions inequitable. Presumably, the “additional provisions” to which the Hafens refer are the provisions requiring them to clean up their property and construct the garden wall on Meacher’s property. These provisions, however, expressly relate to Meacher’s efforts to sell 30022, not to any ongoing use of 30022. Nothing about the Hafen’s performance under these provisions provided Nielsen with notice of the 2005 Agreement or its view easement and land exchange provision. Any claim the Hafens had arising out of their performance would be against Meacher, not Nielsen.
Finally, the fact Nielsen purportedly had “cues to indicate that there was an issue with the property” does not make the trial court’s refusal to enforce the 2005 Agreement inequitable. As explained above, the Hafens had the means available to ensure Nielsen had notice of the 2005 Agreement, rather than just “cues” regarding “an issue with the property.” We cannot fault the trial court’s conclusion that the Hafens’ failure to use those means tipped the scales of equity toward refusing to enforce the 2005 Agreement against Hafen.
III
Disposition
The judgment is affirmed. In the interest of justice, the parties shall bear their own costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.