Opinion
E068130
06-15-2018
JAMES CONSTANT, Plaintiff and Appellant, v. CITY OF FONTANA et al., Defendants and Respondents.
James Constant, in pro. per., for Plaintiff and Appellant. Best Best & Krieger, Michelle Ouellette, Sara E. Owsowitz; Snell & Wilmer, Sean M. Sherlock, Todd E. Lundell and Jing (Jenny) Hua for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1612448) OPINION APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa, Judge. Affirmed. James Constant, in pro. per., for Plaintiff and Appellant. Best Best & Krieger, Michelle Ouellette, Sara E. Owsowitz; Snell & Wilmer, Sean M. Sherlock, Todd E. Lundell and Jing (Jenny) Hua for Defendants and Respondents.
Plaintiff and appellant James Constant appeals the dismissal of his amended petition for writ of mandamus (Amended Petition) pursuant to the demurrers filed by respondents and defendants Trammel Crow Company and the City of Fontana (City). Trammel Crow had been approved by the City to develop the Sierra Lakes Commerce Center (Sierra Lakes Project), which abutted property owned by Constant (Property). Constant filed his first petition for writ of mandamus (First Petition) raising causes of action under California's Environmental Quality Act (CEQA) and a violation of his Fifth and Fourteenth Amendment rights for the taking of his Property without just compensation, e.g. a claim for inverse condemnation. Although Constant filed his First Petition within the required 30-day time period for CEQA actions, he failed to name Trammel Crow as the real party in interest. He filed his Amended Petition adding Trammel Crow as a respondent but it was filed after the 30-day time period had expired. The trial court granted the demurrers finding that Constant's CEQA causes of action were barred by the statute of limitations and that his inverse condemnation claim lacked merit.
Constant contends on appeal that the relation-back doctrine avoids the statute of limitations. We affirm the trial court's order dismissing the Amended Petition.
FACTUAL AND PROCEDURAL HISTORY
A. FIRST PETITION
On July 29, 2016, Constant filed his First Petition. He alleged four causes of action under CEQA and one inverse condemnation cause of action. Constant named "CITY OF FONTANA, CALIFORNIA; a public entity of the State of California." He alleged the City was attempting to circumvent important environmental reviews for the construction of the Sierra Lakes Project, which was located in Fontana and consisted of a 597,818 square foot warehouse. Constant co-owned neighboring Property.
Constant alleged he had participated in the administrative review process for the approval of the Sierra Lakes Project. He submitted written and oral comments regarding his concerns to the City. He exhausted his administrative remedies in compliance with Public Resource Code section 21177. A preliminary Notice of Determination (NOD) was filed on July 27, 2016. Constant alleged the First Petition was filed within 30 days of the filing of the NOD.
Constant alleged the EIR for the Sierra Lakes Project was legally inadequate because (1) it lacked public participation; (2) absent non-CEQA authority it puts significant environmental impacts upon similar impacts already in place from previous projects; (3) "through environmental and traffic impacts damages [Constant]'s private property"; and (4) it takes private property for private use of trucking firms using the project warehouse. Constant alleged he was entitled to attorney fees pursuant to Code of Civil Procedure section 1021.5.
Constant entitled the first cause of action "Project Authorization." He alleged the final EIR proposed mitigation of significant environmental impacts using CEQA guidelines California Code of Regulation, title 14, section 15093, subdivision (b). There were significant environmental impacts in the area already present due to another project. He claimed the final EIR identified unavoidable significant impacts due to the Sierra Lakes Project. He complained California Code of Regulations, title 14, section 15093, subdivision (b), which implements CEQA, is invalid and violated the constitution by taking private property without authority.
California Code of Regulations, title 14, section 15093, subdivision (b) provides, "When the lead agency approves a project which will result in the occurrence of significant effects which are identified in the final EIR but are not avoided or substantially lessened, the agency shall state in writing the specific reasons to support its action based on the final EIR and/or other information in the record. The statement of overriding considerations shall be supported by substantial evidence in the record."
His second cause of action was entitled "Overriding Benefits." California Code of Regulations, title 14, section 15093, subdivision (a) provides, "(a) CEQA requires the decision-making agency to balance, as applicable, the economic, legal, social, technological, or other benefits, including region-wide or statewide environmental benefits, of a proposed project against its unavoidable environmental risks when determining whether to approve the project. If the specific economic, legal, social, technological, or other benefits, including region-wide or statewide environmental benefits, of a proposal project outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered 'acceptable.' " Constant alleged the City found the overriding benefits of the Sierra Lakes Project warranted approval despite the environmental impacts. However, Constant alleged the benefits did not outweigh the significant impact on the environment. The City's decision was arbitrary.
The third cause of action was for Cumulative Impacts. Constant alleged the final EIR did not analyze the projects cumulative impacts in light of other projects in the area as required by California Code of Regulations, title 14, section 15130. He also complained the CEQA guideline was arbitrary.
Constant's fourth cause of action was for a violation of Public Resources Code section 21002. He insisted the Sierra Lakes project would make his property inaccessible on one side. The increased daily traffic on the two streets near his property would create a significant and unavoidable air quality impact. This greatly devalued his Property.
Constant's fifth cause of action was for violations of his Fifth and Fourteenth Amendment Rights. He insisted the heavy truck traffic, noise, pollution and congestion created by the development of the Sierra Lakes Project significantly reduced his Property value. It was a taking without due process or just compensation.
Constant sought in his prayer for relief a preliminary injunction to keep the City from taking any action to carry out the Sierra Lakes Project; require the City to circulate a new EIR that complied with CEQA; and an award of attorney's fees and costs.
Constant attached a map of where his Property was located. He also attached his written objections to the final EIR made to the City's Planning Commission and comments before the Commission at a hearing on June 21, 2016. Constant requested that the City not approve the project.
Constant attached as an exhibit the NOD filed on July 27, 2016, for the Sierra Lakes Project. It included the project title and the project applicant, who was named as Trammel Crow.
B. AMENDED PETITION
On September 14, 2016, Constant filed his Amended Petition. He named both the City and "Trammel Crowe Co." as respondents. It was identical to the First Petition but for the addition of Trammel Crow. He attached all of the same exhibits.
Counsel for the City submitted a declaration of good faith meet and confer on September 23, 2016. Counsel declared she spoke with Constant on September 13, 2016, advising him over the telephone that the City intended to file a demurrer to the First Petition on the ground he had failed to name an indispensable party, Trammel Crow. Constant filed his Amended Petition on September 14, 2016, without notifying City. The City was finally served with the Amended Petition on September 19, 2016. They were not personally served. The City notified Constant by email that it was intending to file a demurrer because Constant refused to voluntarily dismiss the Amended Petition.
C. FIRST DEMURRERS
The City filed their demurrer to the Amended Petition on September 23, 2016. The City alleged that each cause of action in the Amended Petition did not state facts sufficient to constitute a cause of action, and the court had no jurisdiction over the fifth cause of action.
The City provided that Constant's failure to name Trammel Crow as the real party in interest violated CEQA guidelines. Constant's failure to timely join Trammel Crow as an indispensable party required dismissal of his CEQA causes of action. Further, his fifth cause of action was not ripe for adjudication because the alleged harm to his Property was too speculative. Moreover, his fifth cause of action failed to state a claim for inverse condemnation. No taking had occurred under the facts in the Amended Petition.
The City argued that pursuant to Public Resources Code section 21167.6.5 subdivision (a), Constant had to timely allege the project applicant as the real party in interest when filing the First Complaint. The project applicant is an indispensable party under the CEQA. The statute of limitations on the CEQA causes of action had expired prior to Constant filing the Amended Petition and the causes of action must be dismissed.
The City stated that the final approval on the Sierra Lakes Project was completed on August 9, 2016, and the final NOD was filed on August 10. Constant filed his First Petition on July 29, 2016, after the City certified the EIR. Constant filed the Amended Petition on September 14, 2016, and for the first time named Trammel Crow. Although the Amended Petition was dated by Constant on September 9, 2016, it was not filed until September 14, 2016, the day after City's counsel notified Constant that he had failed to name Trammel Crow in the First Petition.
Constant never identified Trammel Crow as the real party of interest in the First Petition. Under Public Resources Code sections 21167, subdivision (c) and 21167.6.5, subdivision (a), Constant was required to name the real party in interest within 30 days after the NOD was filed by the City. Further, since the First Petition did not name fictitious parties, e.g. Does, and Constant did not allege he was ignorant of the real parties in interest, he could not cure his failure to name Trammel Crow in the Amended Petition.
Trammel Crow was an indispensable party under Code of Civil Procedure section 389, subdivision (b). If Constant were to be successful, stopping or delaying the Sierra Lakes Project would be prejudicial to Trammel Crow, who obtained approvals to construct the project. This finding was appropriate despite leaving Constant without a remedy to amend the Amended Petition.
The City also responded that the fifth cause of action was not ripe for adjudication because the alleged harm to Constant's Property was too speculative. Constant's entire claim was contingent upon a future event: that the environmental impact of the Sierra Lakes Project would be so severe that it would constitute a taking of his Property without just compensation. Until Constant could show he was harmed he could not claim a taking due to the approval of the Sierra Lakes Project.
Further, he had failed to allege facts amounting to a claim for inverse condemnation. Cases supported that an increase in traffic, which does not result in a complete blocking of egress and ingress for a property, does not constitute a compensable taking. Further, in order to constitute a taking for noise, it must only affect his Property, not the general public. In order for Constant to show a taking he must show that he had been singled out for singular and unique treatment. Finally, Constant could not show a taking because the City was exercising its police power, not its eminent domain power. The City requested that the trial court take judicial notice of the final NOD filed for the Sierra Lakes Project on August 10, 2016.
On September 26, 2016, Trammel Crow filed its demurrer to the Amended Petition. Initially, Trammel Crow noted that Constant had improperly named it as the respondent; it was the real party in interest. Similar to the City's arguments, Trammel Crow argued that the first four CEQA causes of action in the Amended Petition were barred by the statute of limitations pursuant to Public Resource Code section 21167, subdivisions (b), (c) and (e); and Code of Civil Procedure section 389. Trammel Crow was not added as a party until the 30-day time limit had expired . Trammel Crow argued that the joinder of Trammel Crow could not relate back to the First Petition because the First Petition did not name any fictitious Doe defendants as required by Code of Civil Procedure section 474. Further, Constant was well aware of Trammel Crow's identity as the project applicant as Trammel Crow was named on the NOD. Backdating the Amended Petition before the statute of limitations did not save it; it was the filing date that was relevant.
Trammel Crow was an indispensable party as the project applicant. Trammel Crow met the criteria under Code of Civil Procedure section 389. The failure to join an indispensable party warrants dismissal of the action. Moreover, the fifth cause of action in the Amended Petition could not be brought against Trammel Crow because it was a private entity.
Trammel Crow attached exhibits showing that it was a private corporation. They also attached the final NOD filed on August 10, 2016, which named Trammel Crow as the project applicant. Trammel Crow's counsel also submitted a declaration detailing the efforts to meet and confer with Constant prior to filing the demurrer.
Constant filed a declaration claiming that Trammel Crow and City acted in bad faith in their duty to meet and confer. Counsel for the City filed a response detailing the efforts to meet and confer with Constant.
D. RESPONSE TO FIRST DEMURRERS
Constant filed his response to the two demurrers on October 3, 2016. Constant alleged the Sierra Lakes Project should not be allowed to proceed until the City paid for damages to his Property and the City considered a new EIR. Constant merely stated the allegations in the demurrers should be found not true and that the facts and conclusions should not be accepted by the trial court. Constant stated that Public Resources Code section 21167 did not apply because the action was brought under other CEQA statutes.
E. REPLIES TO THE RESPONSE BY CONSTANT
City filed a reply to the response on November 9, 2016. Further, Constant had provided no argument disputing the demurrer as to the fifth cause of action; Constant failed to show that a taking had occurred. Finally, the City fully cooperated with the meet and confer requirements of Code of Civil Procedure section 430.41.
Trammel Crow also filed a reply to Constant's response to the demurrers. Trammel Crow criticized Constant for not addressing any of the issues regarding the statute of limitations. Further, his claim that the Amended Petition was brought under different CEQA statutes was not availing as the California Supreme Court had held that any CEQA action must be brought within 30 days after the filing of the NOD.
On November 17, 2016, the trial court ordered the parties to continue to meet and confer to reach a resolution. The trial court criticized the City and Trammel Crow for filing their demurrers too quickly. They were to provide documentation of their efforts pursuant to Code of Civil Procedure section 430.41. They were also to submit new demurrers, if necessary.
On January 4, 2017, Counsel for the City submitted a new declaration detailing the efforts to meet and confer with Constant to resolve the case. Counsel provided all of the communication between the parties.
F. FILING OF SECOND DEMURRERS BY CITY AND TRAMMEL CROW; RESPONSE BY CONSTANT; AND REPLIES IN SUPPORT OF SECOND DEMURRERS
On January 4, 2017, City filed their second demurrer. As they argued in the first demurrer, Constant's failure to timely name Trammel Crow as a real party in interest violated CEQA and could not be cured; Trammel Crow was an indispensable party with the meaning of Code of Civil Procedure section 389; the fifth cause of action was not ripe for adjudication; and Constant had failed to show a claim of inverse condemnation.
Trammel Crow filed its second demurrer on January 5, 2017. As it argued in the first demurrer, the Amended Petition should be dismissed because Constant's CEQA causes of action were barred by the statute of limitations; the CEQA causes of action must be dismissed because Trammel Crow was an indispensable party; the defect was not curable; and the fifth cause of action could not be brought against Trammel Crow, a private entity. Trammel Crow insisted it tried to resolve the case with Constant prior to filing the second demurrer and attached the emails between it and Constant during the meet and confer period. Trammel Crow also again provided documents showing they were a private entity, the NOD filed on August 10, 2016, and the First Petition.
Constant filed a declaration and exhibits regarding the meet and confer with Trammel Crow and City. On January 9, 2017, he filed his response to the second demurrers filed by the City and Trammel Crow. Constant alleged that trucks were driving through his Property and should be stopped. Constant requested that the trial court "stay Respondent's demurrers until the Project obtains rights for Project purposes of access to [his] property." He insisted that he had properly named Trammel Crow in the First Petition by attaching the NOD, which listed the project applicant as Trammel Crow. This was enough to name them within the statute of limitations. He also complained that truck traffic was running through his Property, which constituted a free use of his Property without compensation in violation of his Fifth and Fourteenth Amendments constitutional rights. Constant also insisted Public Resources Code section 21167.6.5 did not require that it name Trammel Crow before the statute of limitations expired. Constant also stated his fifth cause of action was a CEQA claim, not an inverse condemnation claim. As such, Trammel Crow was a public company for purposes of the CEQA action. Constant also complained that trucks entering the Sierra Lakes Project were trespassing over his Property.
Trammel Crow filed a reply in support of its second demurrer. Trammel Crow insisted Constant had failed to address the statute of limitations, which barred his CEQA causes of action. His mere assertion that he did not have to name Trammel Crow was "plainly wrong." Further, Constant had stated the fifth cause of action was a CEQA action. If this was true, it also was barred. Trammel Crow also contended arguing that trucks ran though his Property contradicted the allegations in the Amended Petition. The Amended Petition stated the road ran next to his Property.
The City also filed a reply in support of their second demurrer. They again claimed that the 30-day statute of limitations had run and Constant had failed to properly name Trammel Crow, an indispensable party. Further, including the project applicant in the exhibits was not properly naming the real party in interest. If the fifth cause of action was a CEQA claim, it was also barred. The City also contended that Constant never addressed the issues that his inverse condemnation claim was not ripe for adjudication or that it did not amount to a taking.
G. TRIAL COURT RULING
The trial court submitted its written decision on February 7, 2017. The trial court noted that Constant had not properly addressed the statute of limitations argument, which barred the first through fourth causes of action. The trial court ruled that the CEQA causes of action were necessarily brought pursuant to Public Resources Code section 21167. The action had to be commenced within 30 days and Trammel Crow and City had met their burden of showing the CEQA causes of action were barred by the statute of limitations. It also agreed with the City that the fifth cause of action did not properly raise an inverse condemnation claim. The matter was not ripe for adjudication because the entire claim relied upon contingent matters and it was too speculative. There was no certainty that egress and ingress to Constant's Property would be blocked by too much traffic. Further, Constant had failed to show that he had unique damages to support his fifth cause of action. Constant had failed to provide sufficient facts to support an inverse condemnation claim against Trammel Crow.
Trammel Crow and the City prepared the notice of judgment. Constant objected to the notice of judgment. For the first time, Constant objected to the proposed order on the ground the relation-back doctrine applied. He could amend the First Petition to name the proper party. He insisted that he merely added Trammel Crow to the Amended Petition and should be relieved from the statute of limitations. The trial court signed the order sustaining the demurrers on February 27, 2017. All of the causes of action were dismissed and the order stated Constant had not shown the defect could be cured by amendment. Judgment dismissing the Amended Complaint was entered on February 28, 2017.
DISCUSSION
Constant makes one claim in his opening brief: under the relation-back doctrine the Amended Complaint avoids the statute of limitations.
"A demurrer tests the legal sufficiency of the factual allegations in a complaint. We independently review the sustaining of a demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. [Citation.] We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken." (Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 81.)
Trammel Crow and the City first contend that Constant has waived his relation-back argument by failing to raise it in the trial court. However, "[t]he Supreme Court has repeatedly stated that appellate courts reviewing a general demurrer make a de novo determination of whether the complaint alleges 'facts sufficient to state a cause of action under any possible legal theory.' " (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1244.) "[P]laintiffs are permitted to raise arguments for the first time on appeal where the facts are not disputed and the issue merely raises a new question of law." (Koch v. Rodlin Enterprises (1990) 223 Cal.App.3d 1591, 1595.) Here, whether the relation-back doctrine applies to exempt the Amended Petition from the statute of limitations relies on facts that are not in dispute (Constant does not allege he was ignorant of Trammel Crow) and matters of law. We will review the claim.
A. RELATION-BACK DOCTRINE
" ' "A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar . . . to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred." ' " (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, 42 (Green Foothills).)
Whenever a local agency approves a project that is subject to CEQA, it must file an NOD pursuant to Public Resources Code section 21152, subdivision (a). "The NOD plays a crucial role in determining the period during which CEQA challenges may be brought. [Public Resources Code s]ection 21167 establishes statutes of limitation for all actions and proceedings alleging violations of CEQA." (Green Foothills, supra, 48 Cal.4th. at p. 43, fn. omitted.) "[T]he plain language of [Public Resources Code] section 21167 makes the filing of a notice of determination of paramount importance for determining which statute of limitations applies to a CEQA claim. If a valid NOD has been filed [citations], any challenge to that decision under CEQA must be brought within 30 days, regardless of the nature of the alleged violation." (Id. at pp. 47-48.) Constant concedes on appeal that he filed the Amended Petition on September 14, 2016, after the 30-day time period had expired.
Numerous California courts of appeal have concluded that CEQA's 30-day statute of limitations bars the joinder of additional parties after the period has expired. (See Save Our Bay, Inc. v. San Diego Unified Port District (1996) 42 Cal.App.4th 686, 691, 699; County of Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 40; Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1189-1190.) Moreover, developers are routinely found to be indispensable parties in CEQA actions. (Beresford, at p. 1187-1190; Sierra Club v. California Coastal Commission (1979) 95 Cal.App.3d 495, 499.)
We see no reason to provide further analysis. It is clear that Constant had to name Trammel Crow as the real party in interest within the 30-day time period and Trammel Crow was an indispensable party. As such, the statute of limitation had run on Constant's CEQA claims when he filed the Amended Petition.
The relation-back doctrine is not applicable here. "The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed." (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) Code of Civil Procedure section 474 provides for an exception. "[Code of Civil Procedure] [s]ection 474 allows a plaintiff who is ignorant of a defendant's identity to designate the defendant in a complaint by a fictitious name (typically, as a 'Doe'), and to amend the pleading to state the defendant's true name when the plaintiff subsequently discovers it. When a defendant is properly named under section 474, the amendment relates back to the filing date of the original complaint. [Citation.] Section 474 provides a method for adding defendants after the statute of limitations has expired, but this procedure is available only when the plaintiff is actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant." (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371-372.)
Here, in the First Petition, Constant did not name any Does but rather only named the City. Constant did not, and could not, name Trammel Crow as a substitute for the fictitious Doe in the First Petition. (See Woo v. Superior Court, supra, 75 Cal.App.4th at p. 176 ["Among the requirements for application of the [Code of Civil Procedure] section 474 relation-back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint"].) Further, Constant was well aware of Trammel Crow as the project applicant, having attached the first NOD to the First Petition, which listed them as the project applicant. Public Resources Code section 21167.6.5, subdivisions (a) and (d), clearly requires that the project applicant be named in a CEQA action. Defendant cannot claim ignorance of the identity of Trammel Crow or the law. Defendant does not meet the exception in Code of Civil Procedure section 474. Further, Constant cannot now amend his Amended Petition to state a proper cause of action under CEQA. As such, the first through fourth causes of action were properly dismissed.
B. INVERSE CONDEMNATION
Constant does not argue on appeal that the demurrer should be reversed on the ground that the fifth cause of action was improperly dismissed. On appeal from a judgment of dismissal entered as the result of the trial court having sustained a demurrer, "[t]he plaintiff 'bears the burden of demonstrating that the trial court erroneously sustained the demurrer as a matter of law' and 'must show the complaint alleges facts sufficient to establish every element of [the] cause of action.' " (Yan Sui v. Price (2011) 196 Cal.App.4th 933, 938.) Although we review de novo a trial court's order sustaining a demurrer without leave to amend, our review is limited to issues which have been adequately raised in the defendant's opening brief. (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116, disapproved on another ground as recognized in Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc., (2005) 133 Cal.App.4th 26, 41-42; see also Christoff v. Union Pacific Railroad Company (2005) 134 Cal.App.4th 118, 125 ["[A]n appellant's failure to discuss an issue in its opening brief forfeits the issue on appeal" even if the review is de novo].) As such, issues not raised in an appellant's brief are deemed forfeited or abandoned. (See e.g., In re Sade C. (1996) 13 Cal.4th 952, 994.)
Since Constant does not raise an issue as to the fifth cause of action, the inverse condemnation cause of action, he has forfeited the issue on appeal and we will not consider it. Moreover, Constant makes no claim there is a reasonably possibility he can cure any defect in the Amended Petition by amendment. The burden of showing such possibility is on Constant. (Yan Sui v. Price, supra, 196 Cal.App.4th at p. 939; see also Rakestraw v. California Physician's Service (2000) 81 Cal.App.4th 39, 43-44.) Accordingly, the trial court properly granted the demurrers filed by Trammel Crow and the City, and dismissed Constant's Amended Petition.
DISPOSITION
The trial court's order dismissing Constant's Amended Petition is affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.