Opinion
G060079
08-23-2022
LADERA RANCH MAINTENANCE CORPORATION, Plaintiff, Cross-defendant, and Respondent, v. GRANT A. TINSLEY, Defendant, Cross-complainant, and Appellant.
The Appellate Law Firm, Berangere Allen-Blaine and Aaron Myers for Defendant, Cross-complainant, and Appellant. Whitney Petchul, Frederick T. Whitney, Jane A. Gaba, Jacky P. Wang; Gordon Rees Scully Mansukhani, Craig J. Mariam and John P. Cogger for Plaintiff, Cross-defendant, and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-2016-00864515, John C. Gastelum, Judge. Affirmed.
The Appellate Law Firm, Berangere Allen-Blaine and Aaron Myers for Defendant, Cross-complainant, and Appellant.
Whitney Petchul, Frederick T. Whitney, Jane A. Gaba, Jacky P. Wang; Gordon Rees Scully Mansukhani, Craig J. Mariam and John P. Cogger for Plaintiff, Cross-defendant, and Respondent.
OPINION
GOETHALS, J.
Grant A. Tinsley appeals from the trial court's entry of judgment, after a bench trial, in favor of Ladera Ranch Maintenance Corporation (LARMAC), the homeowners' association for the development in which Tinsley owns property and resides. The court found in favor of LARMAC on its complaint for declaratory relief based on breach of community covenants, conditions, restrictions and reservation of easements (CC&Rs) and related governing documents; it found against Tinsley and his co-owner, Karen D. Jennings, on their cross-complaint against LARMAC for breach of the CC&Rs, nuisance interference with their quiet enjoyment of their property, and declaratory relief. Tinsley contends the judgment must be reversed for four reasons: (1) LARMAC lacked authority under the CC&Rs for some of the actions it took concerning a tarp Tinsley erected, trees he removed, and his trash bins; (2) LARMAC did not conduct a reasonable investigation; (3) LARMAC failed to act in good faith regarding these and other alleged rule violations involving Tinsley; and (4) the trial court did not make "complete findings" on his breach of contract claim. As we explain, Tinsley does not meet his appellate burden to demonstrate error. We therefore affirm the judgment.
In his reply brief, Tinsley acknowledges that Jennings did not sign or include her name in his notice of appeal; in light of the disposition, whether she would be entitled to relief from the judgment had it been reversed is a moot question that we do not address.
FACTUAL AND PROCEDURAL BACKGROUND
The trial court's statement of decision and the judgment summarize the pertinent background. Tinsley installed a large tarp, approximately 16 feet by eight feet, along the property line between his home and the neighboring residence without obtaining approval for the improvement and failed to pay several fines eventually totaling $1,300 for violating the community governing documents. The trial court upheld the fines and ordered removal of the tarp. In deciding to assess the fines, a "committee made up of LARMAC homeowners . . . determined that the tarp was not compliant with the governing documents." A second committee reached the same conclusion in rejecting Tinsley's application for approval of the tarp as "inconsistent with the prevailing community standards." An appeal to the LARMAC board of directors failed to result in approval of the tarp. Testimony at trial showed the board determined the tarp was unsightly and unattractive, did not comply with the community Aesthetic Standards, was in disrepair, constituted a nuisance, and was in violation of the association's governing documents.
Similarly, without approval Tinsley removed two trees that were planted by the original developer between the sidewalk and the street in front of his home. He later failed to replace either tree despite association requests; the association replaced both trees at a total cost of $450, which the trial court ordered Tinsley to repay. The court found that while Tinsley tried to justify his removal of the trees by claiming they were dying or unsightly, he "never replaced the trees as required by the governing documents." Although Tinsley "cited an ongoing drought" and a related ordinance, the court found "the pertinent ordinance deals with care in watering. It does not prohibit the planting of a new tree to replace a dead tree."
The trial court also ordered that Tinsley "take nothing" on the cross-complaint's breach of contract (CC&Rs), declaratory relief, and nuisance causes of action. The court found "no credible evidence at trial to support these claims." The court observed the "Cross-Complainants' personal opinion regarding the appearance of the tarp or their personal interpretation of the applicable standards is not the issue here." The court found no "credible testimony or evidence to show the Association wrongfully denied them an opportunity to appeal the . . . decision to deny approval for the tarp." To the contrary, "the Board considered Cross-Complainants' late-filed appeal and rejected their arguments."
The court found the "Cross-Complainants offered no credible evidence to support . . . claims" they were "singled . . . out" for enforcement while "the Association . . . allow[ed] other homeowners to, among other things: (1) maintain unsightly 'Tarp-like' structures on their property, (2) remove street trees without replacing them, and, (3) space their trash cans more than one foot apart without penalty." The court also found unconvincing "testimony and documentary evidence from Cross-Complainants regarding the conduct of current and former neighbors, i.e., a pattern of harassment and annoying behavior by the occupants of the adjoining and nearby homes purportedly depriving them of the quiet use and enjoyment of their home."
While Tinsley and Jennings argued a "security sign" in front of their home "complies with Association requirements and any fines assessed were improperly imposed," the trial court concluded "they are wrong on both counts." Upholding LARMAC's actions against Tinsley's challenge, the court concluded the sign, "mounted on [a] chain across their entryway," "does not comply with any reasonable interpretation of the Association's signage requirements." The court ordered removal of the tarp, the security sign, and the chain within 30 days of entry of the judgment.
Finally, the court found no merit in the cross-complaint's "claims relating to alleged failure to maintain [their] rear slope." (Formatting adjusted.) While their location along "a common area slope at the rear of their property" obligated Tinsley and Jennings "to pay an additional assessment of $30 per month (now $35)," they claimed that "the slope consists mostly of weeds, and remains, for the most part, sparsely planted." "Not so," concluded the court, finding that "the Association offered credible evidence regarding its efforts to maintain the rear slope." In contrast, "[o]ther than some photographs taken at distinct intervals-literally snapshots in time-Cross-Complainants offered no credible evidence to corroborate their self-serving testimony on this point."
The court entered judgment for LARMAC; Tinsley now appeals.
DISCUSSION
Tinsley contends the trial court erred in granting relief to LARMAC on its breach of contract and declaratory judgment causes of action insofar as they alleged the tarp he erected and refused to remove breached the association's governing documents. He contends LARMAC 's decisions concerning the tarp, including to fine him and to reject his application for approval of the tarp, "fell outside the scope of [LARMAC 's] authority" under the governing documents, in particular the CC&Rs, as "evidenced by [LARMAC]'s inability to find a provision under which it fit." He argues the trial court therefore erred in upholding LARMAC's decisions as to the tarp, including by entering judgment on fines for it and in granting injunctive relief requiring its removal.
Tinsley similarly asserts the court erred in failing to grant him declaratory relief on his cross-complaint alleging nuisance interference with his quiet enjoyment of his property and breach of contract regarding those same governing agreements. As with the tarp, he contends the association's decisions concerning "trash can placement" and "the posting of the warning sign" exceeded its authority under the CC&Rs. Tinsley concedes that ordinary community maintenance decisions fall within the discretion of a homeowners' association. Nevertheless, as to the tarp, trash cans, and warning sign, he relies on the principle that actions outside the association's scope of authority under its governing documents are not entitled to deference. (Ekstrom v. Marquesa at Monarch Beach Homeowners Assn. (2008) 168 Cal.App.4th 1111, 1122 (Ekstrom).)
We review the trial court's decision to grant or deny declaratory relief for abuse of discretion. (Dolan-King v. Rancho Santa Fe Assn. (2000) 81 Cal.App.4th 965, 974.) "Discretion is abused" only when, "in its exercise, the court exceeds the bounds of reason." (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) We presume the judgment is correct, and the appellant bears the burden of overcoming that presumption. (Ekstrom, supra, 168 Cal.App.4th at p. 1121.)
To the extent the trial court's decision is based on its resolution of disputed facts, the deferential substantial evidence standard applies. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 581-582 (Schmidt); Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 43.) Under that standard, we resolve all conflicts in favor of the judgment. (Schmidt, at p. 581.) In our appellate role, we cannot reweigh the evidence; instead, we must view the record in the light most favorable to the judgment and make all reasonable inferences to support it. (Id. at pp. 581-582.)
"'[T]o the extent our review of the court's declaratory judgment involves an interpretation of [CC&R] provisions, that . . . is a question of law we address de novo.'" (Ekstrom, supra, 168 Cal.App.4th at p. 1121.) As with written contracts or documents generally, "[w]e review the interpretation of . . . CC&Rs de novo." (Id. at p. 1123; see Hanna v. Mercedes-Benz USA, LLC (2019) 36 Cal.App.5th 493, 507 ["in the absence of any conflict in extrinsic evidence presented to clarify an ambiguity," written agreements are interpreted de novo].) In some instances, a "judicial deference rule," which is an adaptation of the business judgment rule, may apply to inform judicial review of homeowner association actions; this rule can elucidate the proper interpretation of an association's governing rules or regulations and their implementation. (Ekstrom, at pp. 1121-1125)
Here, no application of the rule of deference is necessary to uphold the decision of the association or the trial court concerning the tarp. Even applying de novo review, we conclude a large tarp measuring 16 feet in length by eight feet across-which Tinsley anchored between his home and a tree, and erected in a vertical fashion as a visual and sound-inhibiting barrier between his home and his neighbor's-falls within the definition of an "Improvement" under the governing CC&Rs. (See § 1.35, discussed below.) It therefore required approval by LARMAC's "Aesthetics Review Committee," which Tinsley failed to obtain. (§ 4.4.1 ["Improvements Requir[e] Approval"].)
Specifically, section 1.35 of the CC&Rs defines an "Improvement" as: "any structure, vegetation, or appurtenance thereto," and then proceeds to give examples that it does not state are exhaustive or exclusive, but which "includ[e] . . . fences, all types of walls, . . . landscaping, . . . windbreaks, patio covers," and so on. (Italics added.) Black's Law Dictionary explains that an "appurtenance" is "[s]omething that belongs or is attached to something else; esp., something that is part of something else that is more important." (Black's Law Dict. (11th ed. 2019) p. 127, italics added.)
These definitions and the examples given in section 1.35 of the CC&Rs are broad enough to encompass Tinsley's tarp. He attached the tarp to his house, thereby making it appurtenant to that structure; the tarp was of such size and shape that it could reasonably be viewed as a type of fence, wall, or patio cover (or "awning" or "sunshade" as described by LARMAC in a May 2015 email sent to Tinsley). The tarp was also made appurtenant to Tinsley's tree, by which-again given the tarp's ample dimensions-it could be regarded as having the same barrier effect that structural or vegetative "landscaping" sometimes does, such as a "windbreak" (two other improvements enumerated in § 1.35).
Tinsley argues that he did not intend the tarp to function as a sunshade or awning, contrary to LARMAC's description, but whatever his intention, the barrier effect of a large tarp stretched along the property line between his home and his neighbor's is evident. The tarp was attached to his residence with hooks drilled into the side of the structure; it was visible from the neighboring house, and also from the sidewalk, street, and other neighborhood vantage points.
Tinsley acknowledges that LARMAC received complaints about the tarp from other community residents. He does not dispute that he agreed in the association's governing documents to vest authority to approve or disapprove of improvements with his neighbors serving on the Aesthetics Review Committee (ARC) (CC&Rs, § 4.4.1.) This included, in the exercise of the committee's sole discretion, weighing such community intangibles as "not be[ing] detrimental to the appearance of the surrounding area," "harmony with surrounding structures," and "not detract[ing] from the beauty, wholesomeness and attractiveness of the [whole] LARMAC Property" (CC&Rs, § 4.4.3).
Tinsley clearly does not view the tarp as "rubbish, debris, unsightly material, or objects and trash" proscribed by that section (CC&Rs, § 2.6, italics added), and we recognize that there is no accounting for others' tastes-de gustibus non est disputandum. One man's trash may indeed be another's treasure, and vice versa.
But when Tinsley moved into the neighborhood, he agreed to be bound by his neighbors' collective determination regarding the propriety of his property's appearance. He does not argue that LARMAC abused its discretion in declining to approve his tarp on that ground or any similar as-applied basis. Instead, Tinsley's challenge here is a facial one in which he claimed that the tarp "fell outside the scope of [LARMAC's] authority" to require approval as an improvement. The examples given in section 1.35 of the CC&Rs demonstrate otherwise.
A wit to the end, Oscar Wilde's supposed last words were: "This wallpaper and I are fighting a duel to the death. Either it goes or I do." The staggering attorney fees awarded here, nearly $600,000.00-composed of more than $298,000 to LARMAC as plaintiff and in excess of $286,000 to LARMAC as cross-defendant-may suggest there was a battle to the death in the courtroom below. But no issue regarding attorney fees is currently before us.
Because the CC&Rs nowhere require enumeration of all structures or vegetation-or appurtenances thereto-which might constitute an improvement, the illustrations cited in section 1.35 dispose of Tinsley's contention that his tarp "is not governed by" the CC&Rs. Even without deference to LARMAC's interpretation of its governing documents, the tarp falls within the documents' expansive definition of an improvement. Tinsley's consent to be governed by the CC&Rs, including the provisions requiring approval for improvements and authorizing fines for failure "to comply with the LARMAC governing documents" (CC&Rs, § 13.1.5), furnished the authority he claims was lacking. The trial court did not err in granting LARMAC's requested relief concerning the tarp.
Tinsley's appellate challenge to association rules regarding trash collection is likewise unavailing. Tinsley does not say whether he was assessed a fine or any other penalty regarding his trash cans. LARMAC did not request, nor did the trial court award, any monetary damages or injunctive relief pertaining to trash collection.
Tinsley argues a neighbor and LARMAC board member he found nettlesome is the source of his current problems: "Ms. [N.] requested that the rule on trash cans be changed to specify the exact time trash cans could be put out and the time by which they must be removed from the street, also specifying that they must be spaced one foot apart." He also references "[a]n e-mail from Waste Management, the company that collects trash in Ladera Ranch, stat[ing] that they require a spacing of at least two feet." But it is undisputed that Ms. N. recused herself from all Board decisions concerning Tinsley's property.
Tinsley's record reference for this point is his posttrial closing brief, in which he wrote that Waste Management "preferred" the two-foot spacing.
Although it is unclear, we infer Tinsley raises the trash collection issue on appeal in support of his belief the trial court should have granted him relief on his crosscomplaint alleging LARMAC breached the community CC&Rs. His specific appellate challenge is that "[a]t the urging of Ms. [N. citation], changes to the time that trash cans could be placed and removed from the street were made to Community Guidelines not the CC&R[s]." He then invokes "the express terms of Section 14.2.5 of the CC&R[s], 'If there are conflicts or inconsistencies between this Master Declaration and the Articles[,] Bylaws[,] Aesthetics Standards[,] or Community Guidelines[,] then this Master Declaration shall prevail.'" Tinsley also cites a corresponding code provision giving primacy to an association's "bylaws, articles of incorporation, or declaration" over its "operating rules," if the latter conflict with the former. (Civ. Code, § 4205, subd. (d).)
The argument fails because Tinsley does not identify how a change in Community Guidelines regarding trash collection bins conflicted with the CC&Rs. He does not suggest the CC&Rs established fixed times for residents to set out or remove their bins, or how the Community Guidelines were in any way inconsistent with the CC&Rs. We therefore find no merit in his contention that the Community Guidelines were somehow "unenforceable."
Tinsley provides more detail with respect to his claim that LARMAC's "demands for removal of [his] warning sign, and the fines it issued for . . . failure to remove it, were not enforceable." He argues LARMAC had no authority to order removal of the sign because a "section of the Community Guidelines, Section II.F.6, . . . does not prohibit posting the sign on chains." That section also says nothing to endorse the manner in which the sign was "strung across the entryway" to Tinsley's property. In any event, he again overlooks the CC&Rs' broad definition of improvements requiring approval (§ 1.35) and the ARC's express authority to grant or deny approval (§ 4.4.3). Section 1.35 of the CC&Rs expressly identifies "signs" as an improvement, and as discussed, section 4.4.3 vests authority to apply the "Standards for Approval" of improvements with ARC community representatives. Tinsley's invocation of a section of the Community Guidelines over the CC&Rs, which he elsewhere acknowledges are controlling, does not aid him here.
According to Tinsley, he used "[t]he sign . . . to prevent neighborhood children from riding their bicycles and skateboards down [his] entryway or ringing the doorbell and running off."
Tinsley also argues that because he raised the validity of his warning sign in his cross-complaint, the trial court could not afford LARMAC any relief on the subject. He contends that because LARMAC did not request injunctive relief in its complaint as to the warning sign, "the lower court erred in awarding such relief." (Citing Mock v. Shulman (1964) 226 Cal.App.2d 263, 270 (Mock).) We are not persuaded.
LARMAC's breach of contract and declaratory relief claims were based on Tinsley's alleged violation of community rules, including the CC&Rs requiring approval "by the ARC." The trial court "may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue." (Code Civ. Proc., § 580, subd. (a).) In invoking the trial court's equitable powers, LARMAC's prayer for relief in its complaint broadly sought all "relief as the Court may deem just and proper."
"Equity is not limited in scope or type of relief which may be granted. Equitable remedies may be molded by the exigencies of each case." (Oceanside Community Assn. v. Oceanside Land Co. (1983) 147 Cal.App.3d 166, 178 (Oceanside), disapproved on other grounds in Citizens for Covenant Compliance v. Anderson (1995) 12 Cal.4th 345, 366.) Thus, Mock "does not support [the] contention that the scope of the pleadings strictly limits the equitable remedies available." (Oceanside, at p. 178.) We find the relief awarded "comes within the scope of the pleadings" (ibid.), particularly since the cross-complaint enlarged the issues tried. In any event, any variance between pleading and proof is harmless where retrial would merely result in amendment of the complaint to conform to proof. (Appel v. Burman (1984) 159 Cal.App.3d 1209, 1214; Cal. Const., art. VI, § 13.)
Tinsley asserts that LARMAC "did not conduct a reasonable investigation of [his] alleged violations," nor did it "act in good faith, reasonably, or fair[ly]," rather, "its decisions were arbitrary and capricious." (Bolding omitted and capitalization adjusted.) Tinsley faults LARMAC's efforts to support its affirmative demands that he remove his tarp and replant the trees he removed, but also its allegedly inadequate inquiry into noise emanating from his home and other neighbor complaints. While the latter did not result in a judgment against him, it appears he believes LARMAC 's allegedly unreasonable, bad faith conduct required judgment in his favor on his cross-complaint.
Reasonableness and good faith are factual questions. (Ekstrom, supra, 168 Cal.App.4th at p. 1123.) We therefore review the trial court's decisions on such matters with deference. (See Schmidt, supra, 44 Cal.App.5th at pp. 581-582.) We do not "determine whether substantial evidence might support the losing party's version of events," but rather "only [whether] substantial evidence exists to support the [judgment]." (Id. at p. 582.) In a bench trial, as here, the trial court is the sole judge of witness credibility. (Ibid.) This rule extends to the weight of the evidence and resolution of conflicts in the evidence. (Id. at pp. 581-582.)
We decline Tinsley's invitation to reweigh the evidence on appeal. He complains for instance that "noise complaints initiated by Ms. [N.], and resulting fines . . ., were devoid of any objective evidence." He notes that LARMAC "offered no decibel readings" regarding his supposedly "too loud" music and claims LARMAC "ignored" a neighbor's contrary assessment ("Cannot hear the music") handwritten on the complaint form signed by other neighbors. Tinsley cites no authority that decibel readings are required; the number of noise complaints supports the trial court 's ruling in favor of LARMAC.
Tinsley implies there was something deficient in the trial court's decisions in favor of LARMAC's actions; he suggests for example that "the condition and number of street trees in front of other homes in the neighborhood" undercuts the judgment. We disagree. Tinsley does not state what the condition or number of those trees were, nor why that should have compelled a ruling in his favor on the street tree issue-whether on review by LARMAC or the trial court. (See Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685 ["appellant must affirmatively demonstrate error"].)
We are required to draw every inference in favor of the judgment. There was evidence in the record that LARMAC received complaints Tinsley overwatered his trees, supporting the inference he caused or contributed to their decline. This would distinguish Tinsley's implied claim that the condition or number of trees in front of other homes indicated selective enforcement against him for failure to maintain his trees or replant them. Tinsley points to no authority that LARMAC was required to acquiesce to his unilateral decision to remove his trees, which required community approval, or in his refusal to plant replacements. He contends LARMAC "failed to consider whether planting new trees was lawful or appropriate during a drought emergency," but, as the trial court explained, LARMAC was not required to do so. To the contrary, the ordinance on which he relied "deals with care in watering" and did not "prohibit the planting of a new tree to replace a dead tree."
Tinsley's decision to recount or recast select evidence in his favor and against the judgment is contrary to our standard of review. On appeal, "'[a]ll of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. '" (9 Witkin, Cal. Procedure (6th ed. 2022) Appeal, § 390, p. 426.) Tinsley flips the standard of review in contending the evidence does not support the conclusion that LARMAC's actions were reasonable and were in good faith. Not only are these fact-based inquiries requiring deference to the trial court (ibid.), but Tinsley in filing his cross-complaint bore the burden of proof as the plaintiff on his claims of nuisance, breach, and declaratory judgment. It was therefore his burden to establish LARMAC's actions were unreasonable, in bad faith, or unauthorized.
When the party challenging the trial court's interpretation of the evidence bore the burden of proof at trial, the question for the reviewing court is whether the evidence required judgment for that party as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571 (Roesch); e.g., Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057, 1074.) Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." (Roesch, at p. 571.) Tinsley does not meet that high burden.
Tinsley contends LARMAC "displayed arbitrary decision-making in its efforts to enjoin and fine" him, claiming as proof that "the fines assessed . . . were contrary to [LARMAC's] own Fine &Fee Schedule." But in asking the trial court to make a finding on this issue in its statement of decision, Tinsley did not contend the fines were excessive; he demanded that the trial court justify the fine amounts. In particular, Tinsley requested "that the Statement of Decision identify each fine imposed . . . and make a finding supported by explanation describing how LARMAC complied with [applicable rules for] each fine imposed ...." The trial court properly refused such requests. Moreover, as LARMAC points out and Tinsley does not dispute, the governing documents provided that "Fine[s] may be modified . . . based on specific circumstances and facts, e.g., history of the violation, cooperation by homeowner and multiple violations."
The court held in adopting its proposed statement of decision as its final that, "[t]o the extent that [a specific] request purports to ask this Court to decide alleged 'controverted issues' that are not outcome determinative, the request is denied." To be outcome determinative, the fines would have to be excessive or unauthorized; Tinsley did not argue they were.
As to issues on which LARMAC bore the burden of proof, such as proving the tarp violated community rules, Tinsley argues LARMAC's "equivocation about what provisions [were] allegedly violated shows an intent by [LARMAC] to label [Tinsley and Jennings] as violators first and then, subsequently, find a provision to support its conclusion." The trial court, as the arbiter of factual determinations such as intent, was not persuaded. The fact that LARMAC cited multiple provisions of the CC&Rs does not mean they were inconsistent. For example, while Tinsley dismisses section 2.6 as inapplicable because it referred to "trash," it also referred to "unsightly material," which was within the association's purview to regulate regarding "Exterior Items." Similarly, the association could properly invoke-without creating any inconsistency-section 4.4.1 regarding the necessity of obtaining approval for improvements. The association's reference to the tarp as a "sunshade" requiring approval finds support in section 1.35's reference to "patio covers" and "awnings" requiring approval.
Finally, we find no merit in Tinsley's claim that the trial court failed to make "complete findings" in its statement of decision (SOD). Tinsley claims the SOD "did not address [his] allegations" concerning LARMAC's alleged breach of the CC&R's by "failing reasonably to . . . maintain slopes while charging a $30 monthly 'slope assessment' fee ...." To the contrary, the trial court expressly resolved this issue, finding that "the Association offered credible evidence regarding its efforts to maintain the rear slope."
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
WE CONCUR: O'LEARY, P.J., SANCHEZ, J.