Hooker v. Rodgers CA4/1

• Court: California Court of Appeal
• Decided: June 16, 2015
• Docket: D065888
• Status: Unpublished

Opinion

Filed 6/16/15 Hooker v. Rodgers CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

PATRICK HOOKER, as Trustee, etc., D065888

Plaintiff and Respondent,

DONNA RODGERS et al., (Super. Ct. No. 37-2012-00093065- CU-OR-CTL) Cross-defendants and Respondents,

v.

TIMOTHY VARLEY et al.,

Defendants, Cross-complainants and Appellants.

APPEAL from a judgment and postjudgment orders of the Superior Court of

San Diego County, Jeffrey B. Barton, Judge. The judgment and postjudgment orders are

affirmed; motions to dismiss the appeal are denied; motion for sanctions is denied.

Wingert Grebing Brubaker & Juskie, Stephen C. Grebing and Dwayne H. Stein for

Defendants, Cross-complainants and Appellants. Law Offices of Rodney L. Donohoo and Rodney L. Donohoo for Plaintiff and

Respondent Patrick Hooker, and for Respondents and Cross-defendants Lance Rodgers

and Anthea Rodgers.

Fidelity National Law Group and Paul J. Meshek for Cross-defendant and

Respondent Donna Rodgers.

This dispute arose over the parties' respective easement rights to the use of a

common dock and gangway (the "dock") built for the use of waterfront residential

properties in the Coronado Cays community development (the development), and

located along a property line. Plaintiff and respondent, Patrick Hooker as trustee, etc.

(of the Ellis Family Trust, dated April 9, 1993) (Hooker), the owner of one property

along the dock, sued several neighbors, including defendants and appellants Timothy

and Holly Varley (the Varleys) for declaratory relief, quiet title, conversion and other

theories, stemming from the Varleys' replacement dock construction. The Varleys

cross-complained for declaratory relief, quiet title, et cetera, against Hooker and his

successor homeowners, respondents and cross-defendants Lance Rodgers and Anthea

Rodgers, as well as Donna Rodgers, the former option holder (together, "the Rodgers

parties"). Both sets of properties have rights through wharfage easements and deeds

over an "underwater lot" owned by the City of Coronado (the City). (Coronado Cays

Homeowners Assn. v. City of Coronado (2011) 193 Cal.App.4th 602, 605-608

[Homeowners Association sought determination of easement rights across underwater

lots owned by the City.].)

2 After a bench trial on the complaint and cross-complaint, Hooker largely prevailed

against the Varleys on his requests for declaratory and injunctive relief regarding the

status of the easement rights, as well as his conversion and negligence theories.1 The

trial court's judgment, based on the statement of decision, was issued November 25,

2013, ruling on the various causes of action to establish the wharfage easement rights at

25 percent each, and awarding Hooker conditional injunctive relief if he reimbursed the

Varleys for one-half their construction expenses, or $18,459.81 ("$18,459"), due to the

breach of duties by Hooker's predecessor to maintain the dock. The Varleys were also

found to have exceeded their rights and interfered unreasonably with Hooker's use of the

wharfage easement. The trial court awarded compensatory damages of $1,000 to Hooker

from the Varleys for conversion and negligence. The statement of decision and judgment

expressly provide: "The issues of determining the prevailing party and award of

attorney's fees shall be decided by post judgment motion." Notice of entry of judgment

was served and filed January 10, 2014.

On March 21, 2014, the parties brought cross-motions for attorney fees and costs

awards. Hooker sought to be declared the prevailing party through his claims he had

enforced the covenants, conditions and restrictions (CC&R's) of the Coronado Cays

1 The Varleys dismissed the three Rodgers parties before trial. Hooker had also sued the builder of the new dock, Swift, and obtained $1,000 compensatory damages from him. There is no appearance or issue regarding Swift on appeal. Although Hooker originally sued the owners of the two other properties that adjoined this underwater lot (Lots 211 & 212), they are no longer involved in this action or appeal. Those two properties also had undivided 25 percent leasehold interests in the easements to the dock, making up 100 percent, but this appeal only involves the 50 percent portions between Hooker and the Varleys. (Lots 210 and 209.)

3 Homeowners' Association (CCHOA), and he was thus entitled to statutory costs under

Civil Code section 1354, subdivision (c) (now § 5975).2 The trial court granted

Hooker's motions and awarded him $104,718.90 attorney fees and additional costs

against the Varleys, to be entered upon the judgment, along with costs to the Rodgers

parties.

The Varleys appeal from the March 25 and April 14, 2014 postjudgment orders

and/or the judgment itself (exactly which of these is disputed, in appellate motions we

will address in pt. III, post.).

I

ISSUES PRESENTED; THREE APPELLATE MOTIONS

On appeal, the Varleys claim the trial court erred in awarding postjudgment

attorney fees and costs pursuant to the CC&R's provisions, because the judgment

resulted from a trial over rights granted in easement and title documents. Therefore,

the Varleys argue no issues concerning enforcement of the CC&R's arose until the

motion phase, which "for the first time" addressed entitlement to and amount of

statutory or contractual attorney fees and costs. (§§ 1354, subd. (c), 1717; Salawy v.

Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664, 671 (Salawy) [attorney

2 All further statutory references are to the Civil Code unless noted. Former section 1354, a part of the Davis-Stirling Common Interest Development Act (the Act), is now section 5975, but we continue to refer to it by the number used in the record, section 1354, not using any "former" designation. After amendments that became effective in 2014, the Act (currently § 4000 et seq.) remains applicable to common interest developments in California. (Stats. 2012, ch. 180 (A.B. 805).)

4 fees awards authorized where the "essence" or "gist" of the claims properly falls

within the category of enforcement of governing documents, such as CC&R's].)

To the contrary, Hooker and the Rodgers parties argue as respondents and as

moving parties (dismissal) that the record discloses that legal and factual issues about

the CC&R's were brought before the court throughout trial, in pleadings, exhibits,

testimony and argument, and these cross-actions were properly identified throughout

the proceedings as being in the nature of enforcement actions concerning the

respective duties of the Varleys and Hooker as homeowners in the development.

Hooker and the Rodgers therefore argue the trial court was justified in later making

the awards of statutory and/or contractual fees and costs, to be entered on the existing

judgment. (§§ 1354, subd. (c); 1717.)

As the merits panel, we also consider two motions by Hooker and the Rodgers

parties, to dismiss or partially dismiss the appeal as untimely or excessive, insofar as the

judgment terms are being challenged. Both the appeal and the dismissal motions address

the interrelationship, or lack thereof, between the theories on which the judgment was

issued, and the rationale for the subsequent attorney fees and costs awards. (Torres v.

City of San Diego (2007) 154 Cal.App.4th 214, 221-224 (Torres) [where a nonfinal

judgment is substantially modified or amended, a new appeal period starts to run].)

Further, Hooker and the Rodgers parties seek to have this court award monetary sanctions

for a frivolous appeal. (Code Civ. Proc., § 907.)

As we explain in part III, post, we shall deny the motions to dismiss, and we

construe the only notice of appeal as properly relating only to the postjudgment attorney

5 fees and costs orders, identified by their dates, which were several months after the

judgment was entered to fix the rights of the parties. We have jurisdiction to address the

merits of the Varleys' appeal of the postjudgment orders, and do so in part IV, post. We

interpret the judgment and its underlying statement of decision as a means of determining

the propriety of the trial court's legal conclusions and discretionary decisions that were

made in support of its fees and costs awards. (Chapala Management Corp. v. Stanton

(2010) 186 Cal.App.4th 1532, 1535 (Chapala Management) [on review where a trial

court's statement of decision sets forth the factual and legal basis for the decision, the

appellate court resolves any conflict in the evidence or reasonable inferences to be drawn

from the facts in support of the trial court's determinations].)

Thus, on the merits of the prevailing party and attorney fees issues, the record does

not support any conclusion that the trial court misconstrued the legal issues or evidence

as presented at trial. The trial court had an adequate basis in the record and did not abuse

its discretion in ruling upon the motions for prevailing party determinations, fees and

costs. (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360,

1379-1381 (Chee) [relevant question on entitlement to fees under section 1354 is whether

the action enforced rights and obligations of parties under development's governing

documents].)

In part V, post, we discuss the request for monetary sanctions on appeal,

concluding that they are not justified and will be denied.

6 II

FACTUAL AND PROCEDURAL BACKGROUND

A. Background of Dispute; Complaint and Cross-complaint Filed

We take the factual background from the record and the trial court's statement of

decision, to give context to the attorney fees and costs issues that are argued on appeal.

Pursuant to a complicated series of grant deeds and easements begun in the 1970's by the

assignee of the developer, the properties of Hooker (later bought by the Rodgers) and the

Varleys originally had undivided 25 percent leasehold interests in the easement over the

water of Lot 209-A. Eventually, a merger of the adjoining lots, sets of leases and

property interests was established. The development has two sets of CC&R's, one for

the structures and one for the wharfage rights. The CCHOA issued a member

handbook and created permitting procedures, pertaining to the maintenance and

upkeep of the homes and also the common and dock areas.

When the Varleys moved in sometime after 2004, the dock over the easement area

was deteriorating and they repeatedly asked Hooker's predecessor, Ellis, to contribute to

repairing it. A lot of conflict ensued and Ellis repeatedly rudely refused, and he

eventually moved out. The Varleys made temporary repairs. They obtained legal advice

that led them to believe they had exclusive ownership of portions of the underwater Lot

209-A (the dock and gangway), and could prohibit Hooker as the current owner from

using the dock, partly because he had waived any claim to it.

7 In 2010, the Varleys applied to the CCHOA and the City for permits to replace the

dock in a "like for like" manner. They obtained approval of their plans from the

CCHOA, and construction began. They instructed Swift, their builder, to destroy the

original structures and rebuild them solely on the Varleys' property. As of January

2011, Hooker's property did not have any access to the water from the dock.

Hooker brought this complaint for quiet title, declaratory and injunctive relief and

tort damages, as amended in the first amended complaint (the FAC), alleging that Hooker

was entitled to relief, including moving the dock back to the property line, because his

property owned an undivided 25 percent interest "in an easement to all of Lot 209-A,

which includes the Dock, Ramp, and underlying waterway." He claimed that the Varleys

committed conversion when they denied him access to the dock. In the FAC, Hooker

requested attorney fees allowed by "law, statute, or this Court."

The FAC contains numerous attachments and exhibits, including leases and

assignments of the "dock and wharf reservations" (wharfage easements) over Lot 209-A.

The 1972 leases state, "Lessor has heretofore recorded a Declaration of Covenants,

Conditions and Restrictions. . . . . This Lease is subject and subordinated to the terms of

that Declaration." The grant deed of the residential property also transfers a membership

in the CCHOA, subject to the CC&R's. The ultimate property owners, as lessees, were

required to seek approval of the plans and specifications for construction in the marina

area from the CCHOA's architectural control committee established by the CC&R's.

In the Varleys' amended cross-complaint (FACC), they attached some of the same

copies of the leases and easements but interpreted them differently. The FACC sought

8 declaratory relief to the effect that the property descriptions in the leases and assignments

of the easements allowed the Varleys the exclusive use of the dock. The FACC includes

allegations that the properties are located in a common interest development, and its

CCHOA is governed by the CC&R's. The Varleys had obtained permits and approval for

their construction plans from the CCHOA prior to beginning construction on the dock.

The FACC claimed that Hooker was liable for waste due to the failure of the property

owner to maintain the dock, as required by the lease agreements and easement interests

over Lot 209-A, and by the CC&R's. The FACC also included causes of action for quiet

title by prescription, quiet title, injunction, and nuisance. The Varleys' FACC sought an

award of attorney fees to the prevailing party in the action.

The parties answered each other's pleadings. As relevant here, Hooker alleged as

an affirmative defense to the FACC that the Varleys did not comply with the CC&R's,

and he also sought attorney fees. In July 2013, Hooker made an offer for judgment under

Code of Civil Procedure section 998 (not accepted), that he and the Rodgers parties

would be deemed the prevailing parties on both the FAC and the FACC, and the issue of

costs and attorney's fees would be left to the trial court.3

3 Ultimately, Hooker's recovery from the Varleys was less favorable than the Code of Civil Procedure section 998 offer. However, the court declined to base the attorney fees and costs rulings on that factor because the Code of Civil Procedure section 998 offer was unclear about potential attorney fee liability, and thus it was not a realistic offer. No issues about Code of Civil Procedure section 998 costs are raised on appeal.

9 B. Issuance of Statement of Decision and Judgment

The statement of decision was attached and incorporated by reference into the

judgment filed November 25, 2013. The trial court made extensive factual and legal

findings in reaching the following conclusions. It ordered that the two property

owners each have a 25 percent undivided interest in the easement over Lot 209-A for

building and using the dock. The court found "the use of the easement over Lot 209-

A reflects the intent of the original parties to create the easement, [it] has been used

the same way for forty years, and that it was appropriate for Respondents to raise the

issue." The Varleys had "exceeded their rights and unreasonably interfered with"

Hooker's use of the easement, when they destroyed the original structures and rebuilt

them to deny Hooker any access. The court ruled that the new location of the dock

interfered with Hooker's use of the easement, but that his predecessor's failure to

contribute to the repair of the dock was a partial cause of the dispute.

Accordingly, the court concluded that Hooker was entitled to conditional

mandatory and prohibitory injunctive relief, and must pay half of the construction

costs of the dock to the Varleys ($18,459). Hooker could arrange to have the dock

relocated and was responsible for obtaining all plans and approvals. The Varleys

were ordered not to impede the process of relocating the dock and to "cooperate to the

extent necessary" to allow the process to happen. They were also enjoined from

interfering or preventing Hooker or successor owners from using and enjoying the

easement.

10 Hooker was awarded $1,000 in compensatory damages from the Varleys and

from Swift (their agent), on the conversion and negligence theories. No punitive

damages were awarded. The Varleys did not recover anything on the FACC, other

than the reimbursement of one-half of their building costs ($18,459) awarded to them

in equity, from Hooker.

The judgment concluded, "The issues of determining prevailing party and

award of attorney's fees shall be decided by post judgment motion." Hooker filed and

served a notice of entry of judgment on January 10, 2014.

C. Postjudgment Motions and Orders "Entered"

The posttrial motions included Hooker's motion to be declared the prevailing party

for purposes of statutory fee entitlements, and the Varleys' motions to tax costs. (There

were also cross-motions by Swift and the Rodgers parties, but they are not argued on this

appeal.) At argument, the parties did not dispute that the CCHOA did not want to get

involved in their dispute and told them to resolve it themselves. After the March 21,

2014 hearing on the posttrial motions, the trial court issued four separate minute orders.

On the prevailing party motion, the court determined that Hooker et al. "did, in

fact, prevail on their litigation objectives." The "major points of contention in the

litigation" had been the quiet title claim and the request for declaratory and injunctive

relief, as well as conversion, and Hooker had prevailed on each of those claims.

Specifically, Hooker obtained "a complete victory on the Causes of Action seeking to

enforce the provisions of the deeds, easements and CC&Rs to establish [Hooker's] right

11 to access the jointly owned dock between the properties. . . . Finally, [Hooker] prevailed

on the [Varleys'] cross-complaint which sought attorney's fees under the CC&R's."

In awarding attorney fees, the trial court acknowledged that the FAC did not label

any of its causes of action in terms of violations of specific provisions of the CC&R's.

However, the FAC did allege that the Varleys had violated the CC&R's by constructing

the dock in a manner which denied access to Hooker, and by exceeding the scope of the

plans submitted to and approved by the CCHOA. (Art. II, para. 10 of the CC&R's.) The

ruling states that both the pleading and proof at trial showed that the Varleys had sought

permission from the CCHOA to replace the dock in a "like for like" manner, but they did

not perform the construction according to their plans or the permission as granted to them

by the CCHOA. The construction was in violation of "two sets of applicable CC&R's,"

when it "cut off the access and denied the rights of ownership to [Hooker]."

The issue of the Varleys' failure to obtain the required permission from the

CCHOA to relocate the dock "was central to the litigation." That issue "was pleaded in

the FAC and incorporated into the Causes of Action upon which [Respondent]

prevailed." The court reasoned that the references at trial to the easements and

documents of title were important and complementary to establishing Hooker's rights to

and ownership of an undivided percentage of the dock. "The violation of the CC&R's

were the actions that cut off the access and denied the rights of ownership to Hooker."

With respect to the statutory basis for an award of attorney fees, the trial court

analyzed the authority of Chee, supra, 143 Cal.App.4th at pp. 1379-1380, on the concept

of whether the action had been brought to enforce the rights and obligations of the parties

12 under the governing documents, and it thus justified a fees request. (§ 1354.) The ruling

continued, "The court finds there is a right to recover attorney's fees pursuant to the

Coronado Cays CC&R's, the Wharfage CC&R's as well as Civil Code Section 1354(c)

and its successor Civil Code section 5975. Moreover the Coronado Cays CC&R's had a

prevailing party attorney's fees provision." Both the FAC and FACC had requested an

attorney fees award.

In determining the amount of attorney fees to be awarded, the trial court observed

that this "trial and discovery dealt with complex title, easement and CC&R issues," and

considerable factual and legal disputes on other issues. The court observed that the

attorney fees billings as submitted by Hooker did not support any clear allocation

between work performed for the causes of action that were successful, or the tort claims

on which he did not prevail. The court accordingly reduced the requested fees by 40

percent, "reflecting the amount of the billings that either were spent on Causes of Action

upon which the plaintiff did not prevail . . . . The court endeavored to exercise

appropriate discretion under the totality of the circumstances presented." (Italics added.)

The trial court's four minute orders determined that Hooker was the prevailing

party, although the court acknowledged in one of the orders that it was a somewhat close

case for the determination of the prevailing party. Hooker had been required to pay the

Varleys reimbursement for their construction costs, and he obtained only a small amount

of compensatory damages. Nevertheless, Hooker was entitled as the prevailing party to

an award of $104,718.90 attorney fees against the Varleys. Costs awards were made in

13 his favor against the Varleys and Swift ($4,732.50). Additionally, the Rodgers parties

were awarded costs against the Varleys (in amounts of $11,446.21 and $1,425).

Hooker as the prevailing party sent notice of the rulings on March 25, 2014, and

the formal "ORDER ENTERING FEES AND COSTS ON JUDGMENT" was signed by

the trial court on April 14, 2014. The judgment entered on November 25, 2013 was not

altered and was evidently deemed by the trial court to reflect the postjudgment orders,

including the prevailing party determination and the awards of attorney fees and costs.

The Varleys' attorney filed a notice of appeal on April 18, 2014, checking the

boxes on the form for both a judgment after court trial, and an order after judgment. The

notice states that the order or judgment appealed from was issued March 25, 2014 and

had been "amended April 14, 2014".

III

MOTIONS TO DISMISS

A. Issues Presented

Before the respondents' briefs were filed, Hooker and the Rodgers parties brought

a motion to dismiss, on the grounds that the appeal had not been timely filed with respect

to the underlying judgment, and that the orders that "entered" attorney fees and costs on

the judgment previously entered had not "amended" that judgment in any substantial or

material way, so as to extend the time for appealing any of the judgment's provisions.

(Torres, supra, 154 Cal.App.4th at pp. 221-224.) They argued that the Varleys' appeal

could only address issues related to costs and fees.

14 After the Varleys filed their appellants' opening brief, Hooker and the Rodgers

parties (except Donna Rodgers) brought another motion to (partially) dismiss the appeal,

on the grounds that any challenges to the judgment itself had been abandoned. They

argued the merits of the judgment underlying the postjudgments fees orders were not

specifically addressed or discussed in the opening brief.

In their opposition to each of the dismissal motions, the Varleys contend that the

trial court did not determine until the attorney fees proceedings that the action was one to

enforce the CC&R's, and that this determination "substantially modified the original

judgment." They also argue that the trial court made findings it had not made in the

original judgment, such as which wrongs were "central to the litigation." They therefore

claim that the judgment was amended or substantially modified, materially affecting their

rights and making the appeal timely as to both judgment and orders. (Stone v. Regents of

University of California (1999) 77 Cal.App.4th 736, 743.) The motions have been

deferred to this merits panel (along with the sanctions motion; pt. V, post).

B. Background Regarding Enforcement Efforts of Judgment

As shown in exhibits presented with the appellate motions for dismissal,

opposition, and the sanctions motion (to be addressed separately in pt. V, post), in May

2014, the Varleys sought an order staying execution of the judgment pending appeal,

including the attorney fees award. The Varleys took the position in court that only the

fees and costs portion of the judgment was being appealed and therefore no bond was

required to stay execution. (Code Civ. Proc., § 917.1, subd. (d).) The trial court granted

the relief requested on May 15, 2014, staying execution of the portion of the judgment

15 relating to fees and costs. The court noted that the Varleys had represented to it, through

their attorney as an officer of the court, that the only ruling being appealed was the award

of attorney fees (not the $1,000 compensatory damages). The Varleys told the trial court

their notice of appeal had, in an abundance of caution, included designation of the entire

judgment on the form, because the fees were included in the judgment, which the court

thought was understandable.

Later in May 2014, the Varleys asked the trial court to set the amount of an

undertaking to be required on appeal, on the ground that their attorney had consulted with

the title insurance carrier and had decided "to increase the scope of the appeal to include

the underlying judgment and findings related to the easement between the Ellis [Hooker]

and Varley properties." (Italics added.) The Varleys' counsel noted that they had

received a check for the $18,459 reimbursement owed to them from Hooker, but had

returned it, explaining that they were "increas[ing] the scope of the[ir] appeal." The trial

court declined to rule, other than referring counsel to statutory provisions for the right to

set a bond or the amount of the bond on appeal. The Varleys then posted a bond in the

amount of $200,000.

Also as shown in the sanctions motion, Hooker requested that the trial court begin

contempt proceedings against the Varleys for noncompliance with the judgment, when

they allegedly interfered with the repositioning of the dock. The court set an order to

show cause regarding contempt in September 2014. It is not clear what happened next,

but we need not address such issues not properly raised on appeal or in the subject

motions. (See pt. V, post.)

16 C. Analysis of Dismissal Motions

We first observe that a timely appeal is essential to appellate jurisdiction. (Griset

v. Fair Political Practices Commission (2001) 25 Cal.4th 688, 696-698 [judgment final

where it resolves all issues except for any compliance with its terms]; Jennings v.

Marralle (1994) 8 Cal.4th 121, 126; Code of Civ. Proc., § 904.1, subds. (a)(1), (2).) If

the appeal is untimely, this court has no jurisdiction to consider it, and it must be

dismissed. (Cal. Rules of Court, rule 8.104(b).) A notice of appeal must be filed on or

before the earliest of (1) 60 days after the superior court clerk serves the notice of entry

of judgment or a file-stamped copy of the judgment, showing the date either was served,

(2) 60 days after the date of service of the notice of entry of judgment or a file-stamped

copy of the judgment, or (3) 180 days after the date of entry of the judgment. (Cal. Rules

of Court, rule 8.104(a).)

Normally, when a party seeks to challenge both a final judgment and a

postjudgment costs/attorney fee order, the procedure is to file two separate appeals: one

from the final judgment, and a second from the postjudgment order. (Torres, supra, 154

Cal.App.4th at p. 222.) Here, the Varleys argue that effectively or impliedly, the

judgment was substantively "amended" by the terms of the postjudgment rulings, and that

the single notice of appeal gave us jurisdiction to address all their claims about the lack of

foundation in the judgment for the rulings. This timeliness issue depends on whether the

postjudgment orders amounted " 'to a substantial modification of the judgment,' " so that

a new time period for appeal of the original judgment began. (Ibid.; where judgment was

17 modified merely to add costs, attorney fees and interest, it is not " 'substantially changed

and the time to appeal it is therefore not affected' ".)

In this case, 60 days passed after the January 10, 2014 notice of entry of judgment,

without any appeal being filed. There is only one notice of appeal, listing two dates, the

March 25 notice of rulings on the postjudgment motions, and the April 14, 2014 order

(entering fees and costs on judgment). No motion for reconsideration or new trial or to

vacate the judgment was made. (See Nestlé Ice Cream Co., LLC v. WCAB (2007) 146

Cal.App.4th 1104, 1109-1110 [amendment of nonfinal judgment by new trial order or

order to vacate, in exercise of judicial function or discretion, can amend the judgment and

start a new appeal period running].) No document entitled an amended or modified

judgment has been prepared or entered, and the judgment of November 25, 2013 has not

been expressly altered or superseded.

Several tests have been developed for analyzing whether a later order effectively

amends the substance of an earlier judgment. In Stone v. Regents of University of

California, supra, 77 Cal.App.4th at pp. 743-744, the court looked to whether the change

was a clerical one, as opposed to change that "was material and substantial. '[I]f a party

can obtain the desired relief from a judgment before it is amended, he must act — appeal

therefrom — within the time allowed after its entry. If the amendment materially and in

a substantial respect affects the judgment and the rights of a party against whom it is

rendered, and a party desires relief therefrom, he must appeal from the corrected

judgment.' [Citation.] Changes which correct errors, mistakes and omissions made

through inadvertence, but do not involve the exercise of the judicial function, are

18 considered corrections of clerical errors that leave the original judgment intact." (Ibid.)

In Stone, the court concluded that an appeal of the underlying judgment was timely,

where an amendment or modification order had required the defendants to pay an

additional nine months' worth of defense costs, and it thus materially affected their rights.

(Id. at pp. 743-744.)

Other cases have rejected a test that uses the distinction between clerical or

judicial error, for defining "substantial modification" or amendment, and its effect upon

the time limits for filing a notice of appeal. In Sanchez v. Strickland (2011) 200

Cal.App.4th 758, 764-766 (Sanchez) and Dakota Payphone, LLC v. Alcaraz (2011) 192

Cal.App.4th 493, 506-507 (Dakota Payphone), the courts concluded that merely

distinguishing between clerical error and judicial error does not resolve the issue of

whether a "substantial modification" occurred through a postjudgment order.

"Furthermore, we reject the proposition that all changes correcting clerical errors in

judgments are insubstantial or immaterial." (Sanchez, at p. 766; see CC-California Plaza

Associates v. Paller & Goldstein (1996) 51 Cal.App.4th 1042, 1049 ["we cannot imagine

a more substantial or material change in the form of the judgment than in the identity of

the losing party"].) Effectively, the question on timeliness should be whether the

modification or amendment creates a new legal ground affecting the rights of the parties

that was not addressed or resolved at trial. (Sanchez, at p. 767.)

In another type of situation, the courts have focused on the separately appealable

nature of some postjudgment orders to determine whether an appeal is timely. Under

Code of Civil Procedure section 904.1, subdivision (a)(2), a postjudgment attorney fees

19 award that is separately appealable is viewed as a collateral matter. (Sanchez, supra, 200

Cal.App.4th at p. 766.) Such an award effectively enforces the judgment but does not

change its terms with regard to the substantive resolution of the issues of law and fact that

were presented to the trial court. (Torres, supra, 154 Cal.App.4th at p. 222.) The

rationale is that the party dissatisfied with the judgment could have appealed from it to

obtain review, so a separate or collateral order should not be deemed to be an amendment

that would extend the time for appeal. (Dakota Payphone, supra, 192 Cal.App.4th at

p. 508 ["[I]t is ultimately the parties' ability to challenge the ruling that is key," for

purposes of determining whether there was a substantial modification to the judgment

that gives the party more time to appeal.].) It has "generally been held unfair to the

parties to allow the trial court to make a change that they cannot, thereafter, challenge."

(Id. at p. 507; Sanchez, at pp. 764-767.)

Whether we use the "separately appealable order" rule, or the rule that a

modification materially affecting the rights of the parties is substantial and thus restarts

the time in which to appeal, we conclude that the Varleys' notice of appeal is timely only

as to the postjudgment orders, not the underlying judgment. Although we defer

discussion of the merits of the postjudgment orders until part IV of this opinion, we can

say as a preliminary matter, with regard to the motions, that the prevailing party

determination on the motion under section 1354 did not substantively modify or change

the terms of the judgment. Instead, it implemented the substantive rulings made at trial

on issues central to the litigation, that Hooker had shown the Varleys violated their duties

under the governing rule structures applicable to the development, which included the

20 CC&R's and the permit procedure required for construction that utilized the architectural

committee of the CCHOA. For purposes of analyzing the scope of appellate jurisdiction,

we conclude that the later attorney fees orders do not contain a completely different legal

basis for resolving the substantive causes of action pursued at trial. They did not

impliedly amend or modify the judgment to reflect "a new legal ground" for the outcome.

(Sanchez, supra, 200 Cal.App.4th at p. 767.)

Even though the prevailing party issue was deferred until the postjudgment motion

phase, the Varleys have no colorable claim that they appealed from a judgment that was

somehow substantively "amended" by the postjudgment rulings. Rather, the judgment

expressly anticipated that any issues regarding prevailing party and attorney fees and

costs entitlements would be decided in postjudgment motions, as they were, based on the

terms established in the judgment. Whatever their subjective wishes, the Varleys and

their attorney did not have the power unilaterally to change the scope of their appeal,

from what they had previously designated on the notice of appeal itself. They cannot

confer jurisdiction on this Court by relabeling the record or their claims.

Under the applicable standards, it cannot be said that this notice of appeal was

timely filed as to any of the trial court's rulings and decisions except for the postjudgment

orders on attorney fees and costs, according to the dates given on it. (Code Civ. Proc.,

§ 904.1, subd. (a)(2.) "Amended" is a term of art in this context, and its application is not

supported by this record. The orders clearly were to be "entered" on the existing

judgment and they did not reopen the issues resolved at trial, but only implemented them.

The postjudgment orders are properly before us and we must examine the legal bases for

21 them, as they are founded in and disclosed by the judgment terms. We shall also address

the discretionary decision to award the amounts stated.

In an exercise of our discretion, we deny the motions to dismiss, because it would

be a waste of judicial resources to dismiss in view of the lengthy course of this appeal

and the types of legal issues presented. Neither the motion for dismissal or partial

dismissal presents any essential jurisdictional issues for determination. The briefing is

complete and, as we will show, the substantive issues on the attorney fees and costs

entitlements and amounts are limited. We construe the appeal as having been timely

taken solely from the postjudgment orders, and proceed to the merits.

IV

ANALYSIS OF LEGAL BASES FOR POSTJUDGMENT ORDERS

A. Rules of Review: Entitlement and Amount Issues

We next evaluate the attorney fees entitlement issue to determine whether the

issues joined at trial, as identified and resolved by the statement of decision and

judgment, were sufficiently connected to enforcement of the CC&R's or other governing

documents, for purposes of applying the terms of section 1354, subdivision (c). The

other side of the same coin (not separately argued here) is whether the contractual fee

entitlement of section 1717 applies, where the CC&R's contained an attorney fees

provision.

De novo review applies to a "pure issue of law regarding the entitlement to

attorneys' fees." (Abouab v. City and County of San Francisco (2006) 141 Cal.App.4th

643, 661.) Section 1354 provided that CC&R's create enforceable equitable servitudes,

22 unless unreasonable, which "shall inure to the benefit of and bind all owners of separate

interests in the development. Unless the declaration states otherwise, these servitudes

may be enforced by any owner of a separate interest or by the association, or by both.

[¶] . . . [¶] In an action to enforce the governing documents, the prevailing party shall be

awarded reasonable attorney's fees and costs." (§ 1354, subds. (a) & (c).)4

After the entitlement issues, the next portion of the inquiry examines whether the

trial court's prevailing party determination in awarding attorney fees pursuant to section

1354 amounted to any abuse of discretion. (Heather Farms Homeowners Assn., Inc. v.

Robinson (1994) 21 Cal.App.4th 1568, 1574 (Heather Farms); on § 1717 contractual fees

discretion, see also PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The

amount of fees awarded, or allocation of them, is also subject to abuse of discretion

analysis. (Ibid.; Chee, supra, 143 Cal.App.4th at pp. 1380-1381.) Abuse of discretion

occurs if the trial court exceeded the bounds of reason, or failed to apply correct legal

standards and thereby took action outside the confines of the applicable principles of law

or without substantial support in the evidence. (Gonzalez v. Munoz (2007) 156

Cal.App.4th 413, 420.)

Generally, when we review a judgment based on a statement of decision, we

resolve any conflicts in the evidence or in the inferences to be drawn from the facts, in

4 "Governing documents" was defined in section 1351, subdivision (j) (now § 4150) as meaning "the declaration and any other documents, such as bylaws, operating rules, articles of incorporation, or articles of association, which govern the operation of the common interest development or association." (Added by Stats. 2012, ch. 180 (A.B. 805), § 2, operative Jan. 1, 2014; nonsubstantive change only.)

23 support of the trial court's determinations about the factual and legal issues presented to

it. (Chapala Management Corp., supra, 186 Cal.App.4th at p. 1535.) "If the statement

of decision is ambiguous or omits material factual findings, we will infer any factual

findings necessary to support the judgment." (Ibid.) As another general rule, all

intendments and presumptions are made to support the judgment on matters as to which

the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Ballard v.

Uribe (1986) 41 Cal.3d 564, 574.)

B. Terms of Judgment and Statement of Decision

The Varleys seek to show that the CC&R's and the governing documents did not

play an important role in the trial, which they claim dealt chiefly with the wharfage

easements and documents of title. The gravamen of the action is determined from the

pleadings that allege violation of duties, such as those imposed by the CC&R's.

(Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379, 1388, fn. 2.) In

the judgment, the court resolved the equitable claims by quieting title and issuing

conditional mandatory and prohibitory injunctive relief, and awarded compensatory

damages, all based on its assessment of the respective rights of the parties as residents of

a common interest development. Some of those easement and title documents include

references to the common interest nature of the development and the effect of the

CC&R's. Hooker obtained monetary damages for the conversion and related theories, not

contract. (Cf. Chee, supra, 143 Cal.App.4th at pp. 1380-1381 [interpreted fee provisions

of section 1354, subdivisions (a) and (c) as applicable to cause of action for breach of

contract that sought damages for CC&R's violation].) The court in Chee also noted that

24 equitable theories can support an award of attorney fees under section 1354, where their

effect was to enforce the CC&R's. (Chee, at p. 1380.)

In the factual findings in the statement of decision, the trial court referred to

testimony about the dealings of the CCHOA with the parties concerning the efforts to

repair and monitor access to the dock, and its review of the application by the Varleys to

replace the dock. In the discussion of the respective claims by the parties, the court found

that the Varleys altered the easement in a manner unreasonably interfering with Hooker's

rights to use it, and the court considered and referred to the approval requirements of both

CCHOA and the City.

The Varleys' claim for waste in their cross-complaint, invoking the CC&R's, was

rejected for failure to follow the required procedures for arbitration and timely filing.

However, the trial court in equity was requiring Hooker to compensate the Varleys for

one half the cost of the new dock, as a condition precedent to their right to use it. In

awarding damages against Swift, jointly and severally with the Varleys, the court noted

that when they moved the dock/gangway, they knew this deviated from the plans

submitted to the CCHOA and the City. Both parties obtained some degree of relief at

trial, and the prevailing party issue was deferred until the posttrial phase.

C. Entitlement to Statutory or Contractual Fees; Prevailing Party

With the above summary of the conclusions in the judgment and underlying

statement of decision, we next consider whether the postjudgment attorney fees rulings

broke new ground in deciding whether the cross actions had been brought in enforcement

of the CC&R's. In its rulings, the court referred to the pleading and proof at trial as

25 showing that the Varleys had sought permission from the CCHOA to replace the dock in

a "like for like" manner, but they wrongfully did not complete the construction according

to their plans or the permission as granted to them by the CCHOA. The construction was

found to be in violation of "two sets of applicable CC&R's," when it "cut off the access

and denied the rights of ownership to Hooker." The relevant lease documents invoked

the CC&R's as applicable to and controlling over them. The deeds to the properties also

transferred memberships in the CCHOA.

In its postjudgment orders, the trial court identified the issue of the Varleys' failure

to obtain the required permission from the CCHOA to relocate the dock as "central to the

litigation." That issue "was plead[ed] in the FAC and incorporated into the Causes of

Action upon which [Hooker] prevailed." The references at trial to the easements and

documents of title were identified by the court as important and complementary to

establishing Hooker's rights to and ownership of an undivided percentage of the dock.

"The violation of the CC and R's were the actions that cut off the access and denied the

rights of ownership to [Hooker]." Likewise, the court stated that CC&R's issues had been

dealt with at trial, along with the title and easement disputes. This is in contrast to the

situation in Salawy, supra, 121 Cal.App.4th at p. 671, where the allegations that

"invoked" the governing documents were in actuality based on an alleged promise by the

property owner that was "unrelated to the governing documents." Accordingly, the

action in Salawy did not rely sufficiently on the governing documents to justify a fees

award. (Id. at pp. 671-674.)

26 The trial court's rulings on the motions noted that the FAC did not label any of its

causes of action in terms of violations of specific provisions in the CC&R's. However,

the judgment made other findings about the regulations applicable to these properties,

with respect to whether either Hooker or the Varleys had breached their duties as

homeowners. They were members of the CCHOA and had notice of the CC&R's. It was

crucial to the trial court's determinations that the Varleys had violated the procedures

established by the CC&R's, when they replaced the dock in a manner which denied

access to Hooker, and which exceeded the scope of the plans submitted to and approved

by the CCHOA. (Art. II, para. 10 of the CC&R's.)5 Hooker was likewise bound by

those duties and had to reimburse the Varleys for half of the construction costs. Trial of

both the "action" and cross-action required reference to the governing documents and the

role of the CCHOA, as well as its architectural committee. (Windsor Pacific LLC v.

Samwood Co. (2013) 213 Cal.App.4th 263, 273-275 [the words "action or proceeding"

encompass the entire action or proceeding, including the complaint and responsive

pleadings].)

The trial court interpreted the subject leases and easements in a legal context that

included the equitable servitudes imposed by the recorded CC&R's. (See Citizens for

5 There is no contention here that the permitting procedures established for the CCHOA exceeded the scope of the CC&R's. (See Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 41 [HOA can enforce governing covenant and subsequently enacted restrictions if the provisions are reasonable " 'in light of "the restriction's effect on the project as a whole," not from the perspective of the individual homeowner' "]; Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 975; Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 383.)

27 Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 349 [recorded CC&R's are

enforceable against purchasers of property].) We acknowledge that the Varleys have

some basis to dispute whether the individualized easement and title deeds themselves

should amount to community "governing documents," within the plain language

definitions of section 1351, subdivision (j). However, that argument overlooks the basic

factual and legal context of the trial. At all the relevant times, the trial court was advised

by the pleadings and exhibits that the properties in dispute and their easement interests

over Lot 209-A, including the dock area, were "governed" by the CC&Rs, and were thus

subject to the permitting and approving requirements of the CCHOA. The exhibits

attached to the pleadings and presented at trial mention the CCHOA and the CC&R's,

such as the Leases and related agreements, and this property were developed as a

common interest development. The issue of enforcement of the CC&R's was specifically

alleged in the FACC's claim of relief for Hooker's waste of the property. Those

documents included the Coronado Cays CC&R's (including a prevailing party attorney's

fees provision) and the Wharfage CC&R's.

There is no mystery as to what was before the trial court at either phase of the

proceedings, which were not confined to easement and title, to the exclusion of issues

about the governing documents (e.g., the references to the CC&R's and request for

attorney fees in the FACC). To the extent the statement of decision is ambiguous, we

should infer those factual findings necessary to support the judgment. (Chapala

Management Corp., supra, 186 Cal.App.4th at p. 1535.) As already discussed, the record

shows these postjudgment rulings did not represent a new exercise of a judicial function

28 or discretion, or a new legal ground for the ruling that would be sufficient to "amend" the

judgment or to start a new appeal period running for the underlying judgment. (Nestlé

Ice Cream Co., LLC v. WCAB, supra, 146 Cal.App.4th at pp. 1109-1110; Sanchez, supra,

200 Cal.App.4th at p. 767.)

With respect to the prevailing party issue, one of the postjudgment minute orders

makes note that the case was a close one as to who had gained the most relief. Such a

prevailing party determination is within the trial court's discretion. (Heather Farms,

supra, 21 Cal.App.4th at p. 1574) The determination was adequately based upon the

court's legal conclusions formed at trial and reported in the judgment. For purposes of

applying section 1354, subdivision (c), the record adequately shows Hooker "prevailed

on a practical level," on the claims invoking the CC&R's and resolved at trial. (Heather

Farms, at p. 1574.) Under our reading of the allegations of the FAC and the FACC, the

"gist" and the essence of these cross-actions were to enforce provisions in the governing

documents, on equitable theories. Thus, sufficient connections between the substantive

theories presented at trial and the requirements of the governing documents were shown

to bring this action within the scope of section 1354, subdivision (c). The declaratory and

injunctive relief issued about the dock dispute, on the issues framed by the pleadings,

served to enforce the "rights and obligations of the parties under the governing

documents." (Chee, supra, 143 Cal.App.4th at p. 1380.) The trial court correctly applied

the statutory provisions of section 1354, subdivision (c) to the facts and legal conclusions

already established at trial, in making its postjudgment rulings on prevailing party

attorney fees.

29 D. Amounts of Fees and Costs Awards

"The amount of an attorney fee to be awarded is a matter within the sound

discretion of the trial court. [Citation.] The trial court is the best judge of the value of

professional services rendered in its court, and while its judgment is subject to our

review, we will not disturb that determination unless we are convinced that it is clearly

wrong." (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134

(Akins).)

The trial court is given discretion to allocate fees where there is entitlement to

recover them on some grounds, but not on other theories. (Chee, supra, 143 Cal.App.4th

at p. 1381 [Association's fees for defending an owner's claims for breach of contract and

request for declaratory relief were recoverable as governed by the CC&R's; however,

negligence claims were not within the scope of the fees provision].) Apportionment of

attorney fees between those incurred on causes of action for which fees are properly

awarded, and those incurred on other claims, will not be required "when the claims for

relief are so intertwined that it would be impracticable, if not impossible, to separate the

attorney's time into compensable and noncompensable units." (Bell v. Vista Unified

School Dist. (2000) 82 Cal.App.4th 672, 687.)

In this case, the trial court's rulings on the amounts of fees requested demonstrated

a full understanding of the complicated nature of the litigation. The court distinguished

between the causes of action related to the respective duties imposed under the CC&R's

(the equitable ones on which Hooker was the prevailing party), and the claims on which

Hooker did not prevail. The court deducted amounts that Hooker's attorney had charged

30 for interoffice activities and similar billing matters, in an effort to ensure that no

excessive fees were awarded upon the successful claims. This was a proper discretionary

resolution of the issues presented on the motions for costs and fees awards, and the court

acted within legal bounds in judging the value of professional services rendered. (PLCM

Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095; Akins, supra, 79 Cal.App.4th at

p. 1134 [reversal required only if the amount awarded in attorney fees "is so large or

small that it shocks the conscience and suggests that passion and prejudice influenced the

determination"].) We affirm the postjudgment fees and costs orders.

V

MOTION FOR SANCTIONS ON APPEAL

A. Applicable Standards

Although we have determined the Varleys' appeal is without merit, it is a separate

issue whether it is "indisputably" meritless, i.e., whether "any reasonable attorney would

agree that the appeal is totally and completely without merit." (In re Marriage of

Flaherty (1982) 31 Cal.3d 637, 650 (Flaherty).) A related question raised in the

sanctions motion is whether the Varleys' and their counsel's posttrial and posthearing

actions, in seeking to avoid a bond requirement, then attempting to change the scope of

the appeal, then apparently resisting or failing to cooperate with the reconstruction

efforts, are sanctionable in view of the arguable "abandonment" of any substantive

challenge to the judgment itself in their opening brief (as opposed to attacking the

postjudgment motion orders).

31 In determining whether an appeal is sanctionable, case law applies both subjective

and objective standards. The subjective standard looks to the motives of the appealing

party and his or her attorney, while the objective standard looks at the merits of the

appeal from a reasonable person's perspective. (See Flaherty, supra, 31 Cal.3d at

pp. 649-650.) Whether the party or attorney acted in an honest belief there were grounds

for appeal makes no difference if any reasonable person would agree the grounds for

appeal were totally and completely devoid of merit. (Estate of Walters (1950) 99

Cal.App.2d 552, 558.)

The objective and subjective standards "are often used together, with one

providing evidence of the other. Thus, the total lack of merit of an appeal is viewed as

evidence that appellant must have intended it only for delay." (Flaherty, supra, 31

Cal.3d at pp. 649-650.) An unsuccessful appeal, however, " 'should not be penalized as

frivolous if it presents a unique issue which is not indisputably without merit, or involves

facts which are not amenable to easy analysis in terms of existing law, or makes a

reasoned argument for the extension, modification, or reversal of existing law.' " (Dodge,

Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1422.)

B. Grounds for Motion; Analysis

Hooker, joined by the Rodgers, argues that the Varleys employed purely dilatory

tactics by "purportedly appealing the underlying substantive judgment," and by opposing

Hooker's initial motion to dismiss the appeal. Hooker claims that the Varleys' efforts to

stay execution of the underlying judgment were based on claims that the judgment itself

was being challenged, but they have failed to brief in any significant way any challenges

32 to the judgment, as opposed to the orders, and they cannot have it both ways. Hooker et

al. supply an attorney declaration that they incurred at least $10,950 in attorney fees and

costs related to this appeal.

In connection with the motions to dismiss (pt. III.B., ante) and the factual

background set forth above, we have already outlined the sorry saga in which the Varleys

first sought relief from execution of the judgment, then asked the trial court to set the

amount of an undertaking to be required on appeal, on the ground that their attorney had

consulted with the title insurance carrier and had unilaterally decided "to increase the

scope of the appeal to include the underlying judgment and findings related to the

easement between the Ellis and Varley properties." (Italics added.) The Varleys rejected

Hooker's and the Rodgers' check for the $18,459 owed to them under the judgment, by

claiming that they were "increasing the scope of their appeal" and the entire matter was

being stayed. The trial court declined to rule on their request to set a bond on appeal,

other than to refer counsel to statutory provisions on undertakings. The Varleys then

posted a bond in the amount of $200,000. Next, Hooker requested that the trial court

begin contempt proceedings against the Varleys for noncompliance with the judgment,

when they allegedly interfered with the repositioning of the dock. The record does not

disclose any results of any such contempt proceedings.

It was the Varleys' counsel who unsuccessfully attempted to redefine the scope of

the notice of appeal in connection with the request to stay execution of the judgment,

whether this was done as a strategic matter or as a mistake of law. (See Kim v.

Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 292 ["It is critical to both the

33 bench and the bar that we be able to rely on the honesty of counsel. The term 'officer of

the court,' with all the assumptions of honor and integrity that append to it, must not be

allowed to lose its significance."].) The face of the notice of appeal and the timing of its

filing, in view of the structure of the judgment and the postjudgment orders, do not

support any claim that the judgment terms themselves were timely challenged. Now the

Varleys' opposition to the sanctions motion blames the trial court for causing or

contributing to the "confusion." We are not sympathetic with the Varleys' attitude toward

the trial court. The court was forced to deal with the case in the manner that the parties'

changing theories of trial and procedure required, and it reached the merits of each

question presented by exercising its discretion to make rulings that were based on a

rational interpretation of the proceedings on record.

As explained above, construing the statement of decision, judgment, and

postjudgment orders together, while admittedly a fairly complicated process, has left us

no doubt that both sides presented issues to the trial court concerning enforcement of the

CC&R's and governing documents, within the meaning of section 1354. The rule is that

sanctions should be used sparingly to deter only the most egregious conduct. (Flaherty,

supra, 31 Cal.3d at pp. 649-650) This record does not contain clear and convincing

evidence that would cause any reasonable attorney to agree that each of the grounds

advanced by the Varleys, at the various times involved, completely lacked any merit. We

will not conclude that they subjectively and objectively pursued this appeal in bad faith.

(San Bernardino Community Hospital v. Meeks (1986) 187 Cal.App.3d 457, 470;

Flaherty, supra, at pp. 649-650.)

34 DISPOSITION

The judgment and postjudgment orders are affirmed. The motions to dismiss the

appeal and for sanctions are denied. Hooker and the Rodgers parties are awarded their

ordinary costs in connection with the appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

McDONALD, J.

IRION, J.