Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Mendocino County Super. Ct. No. 06-97543
Lambden, J.
Appellant Lee Edmundson appeals, contending that the superior court erred when it denied his petition for writ of mandate and complaint for declaratory and/or injunctive relief, ordered his $2,500 bond be paid to Monte Reed and Barbara Reed (collectively, Reeds), and sanctioned him $7,920 in attorney fees. The Mendocino County Board of Supervisors (Board) and the Reeds appear as respondents in opposition to the appeal. The Reeds have moved for sanctions, contending Edmundson’s appeal is frivolous. We affirm the superior court’s judgment, bond order, and sanctions order, and deny the Reeds’ motion.
BACKGROUND
The Prior Proceedings
In 2005, Mendocino County’s (County) Coastal Permit Administrator (CPA) approved the Reed’s application for a coastal development permit (permit) to perform extensive work on residential property they owned in the town of Mendocino. When no appeal was made to the Board, the County issued a “Notice of Final Action.” Joan Curry, who has since passed away, then appealed to the Coastal Commission (Commission), which Edmundson joined as co-appellant.
According to the County’s “Notice of Final Action,” the Reeds’ request was to “[r]emodel and add to an existing 1,145 sq. ft. one story residence, to create a two-bedroom, four bathroom, 5,428 sq. ft. two-story residence, 27 ft.-8 in. tall, with an 826 sq. ft. attached garage, paved driveway, patio, retaining wall, underground water storage tank, 80 sq. ft. utility building, LPG tank, entry gate, landscape berms, 240 ft. or 30 inch high metal picket fence, and 450 ft. of 6 foot high solid fence.”
Although the Reeds question whether Edmundson was a party to that appeal, the superior court found he was a proper party to it.
The Reeds petitioned the superior court for a writ of mandate in Reed v. Coastal Commission (Super. Ct. Mendocino County, 2006, No. SCUK CVPT 05-95399(Reed)), arguing the Commission had no jurisdiction to consider the Curry/Edmundson appeal, and Edmundson applied to intervene. When the superior court denied his application, Edmundson appealed to this court in Reed v. Coastal Commission, case No. A114432. The superior court subsequently ruled in the Reeds’ favor, concluding that the Commission did not have statutory jurisdiction to consider the appeal because the town of Mendocino had not been properly designated as a “sensitive coastal resource area” within the meaning of Public Resources Code section 30016 and Mendocino Town Zoning Code section 20.608.030, subdivision (6). The subsequent superior court judgment stated that “the County’s approval of [the permit] is now final[.]” The Commission did not appeal and the judgment became final. We subsequently dismissed Edmundson’s appeal because it had become moot.
The court’s ruling refers in its disposition section to a “ ‘scenic coastal resource area,’ ” an apparent clerical error. The ruling refers elsewhere to the proper term, “ ‘sensitive coastal resource area.’ ”
Edmundson petitioned to the Supreme Court for review of that dismissal. The Supreme Court subsequently denied his petition. (Reed, et al. v. California Coastal Commission (June 13, 2007, S151671) 2007 Cal. Lexis 6161.)
The Present Action
After the superior court issued its judgment in Reed and while his appeal was pending, Edmundson filed a petition and complaint in superior court against the Board and the Commission. The court issued a temporary restraining order to the Board, dismissed the Commission as a party, directed Edmundson to join the Reeds as indispensable parties and real parties in interest, and ordered Edmundson to post a $2,500 undertaking. The Reeds moved for judgment and dismissal, arguing that Edmundson’s new action was barred on five separate and independent grounds, which grounds they repeated in their opposition to Edmundson’s preliminary injunction application.
The superior court indicated it would grant the Reed’s motion for judgment and dismissal of Edmundson’s action at the end of the October 2006 hearing on the matter. In a November 1, 2006 written order and accompanying judgment, the court found that Edmundson’s action was barred on four of the five grounds asserted by the Reeds, dissolved the temporary restraining order, released to the Reeds the $2,500 bond that Edmundson had previously posted, denied the Reeds’ request for sanctions, and dismissed the action.
Between the October 2006 hearing and the November 1, 2006 order and judgment, Edmundson filed a self-styled “motion for reconsideration” and a renewed “motion for reconsideration,” which the court did not consider because he did not comply with procedural requirements. After the court entered its November 1 judgment, Edmundson filed another reconsideration motion. The court denied this motion because Edmundson had not presented any new facts, evidence, or law, found his motion was without substantial merit, and ordered him to pay the Reeds $7,920 in attorney fees as sanctions.
Edmundson subsequently filed a timely notice of appeal. He also filed a writ of supersedeas with this court, which we denied on December 18, 2006.
DISCUSSION
I. The Superior Court’s Judgment
The superior court found that Edmundson’s action was barred for four separate and independent reasons: the collateral estoppel effect of the Reed final judgment; Edmundson’s failure to exhaust his administrative remedies; certain statutes of limitations; and, pursuant to Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, his failure to timely name a necessary and indispensable party, namely the Reeds.
A. Edmundson’s Equitable Tolling and Equitable Estoppel Arguments
Edmundson argues that he appealed the CPA’s approval of the permit directly to the Commission, rather than first appearing before the Board, “based on state and local codes, official written notices (in the instant case and similar others), and an accepted practice in effect since at least 2001—all of which authorized appeals from the town of Mendocino either to the County or to the Commission, at the election of the aggrieved party.” (Fn. omitted.) He claims that, since the superior court later determined that this “direct appeal practice was improper,” “absent application of the doctrine of equitable tolling, [Edmundson] could not change his venue to the respondent Board of Supervisors because he would be time-barred.” His argument appears to attack the superior court’s exhaustion of administrative remedies and statute of limitations rulings, and his equitable tolling and equitable estoppel arguments refer to cases involving these legal issues.
The record does not contain written opposition by Edmundson to the Reeds’ motion for judgment and dismissal, but he raised equitable tolling and equitable estoppel arguments at the hearing on the matter.
The parties engage in an extended debate about the legal issues involved in Edmundson’s arguments, citing various laws and cases. We need not address these matters in great detail, however, because Edmundson’s arguments rest first and foremost on his contention that he appealed directly to the Commission because of codes, practice, and “official written notices” that authorized appeals from the town of Mendocino to the County or to the Commission, at the election of the aggrieved party. Edmundson fails to establish that he so relied.
Edmundson refers us to two documents in the record, neither of which show a timely and reasonable reliance. It is elementary that one must establish that he or she relied on purportedly improper conduct to his injury in order to show that equitable estoppel applies. (E.g., Sofranek v. County of Merced (2007) 146 Cal.App.4th 1238, 1250.) Furthermore, “ ‘[t]olling can only suspend the running of a statute that still has time to run; it cannot revive a statute which has already run out.’ ” (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 651-652.)
Edmundson’s first document is his own declaration in support of the temporary restraining order, to which he attached certain County and Commission notices and one Commission letter to a County coastal planner, dated as far back as 2001, involving other parties and matters. Edmundson contends these documents “show without any doubt that both [the County and the Commission] operated publicly and consistently in allowing [direct appeals to the Commission] in the past and reflected this policy explicitly in their public notices.” While we do not necessarily agree with Edmundson’s interpretation of the contents of these documents, we need not reach this issue. The documents on their face do not indicate that they were of a “public” nature or that the matters involved were sufficiently similar to the matter of the Reeds’ permit, and Edmundson does nothing to establish these things. Furthermore, and most importantly, Edmundson’s own declaration makes clear that he obtained these documents only after “the Reeds raised the issue of direct appeals to the Commission in their lawsuit[.]” In short, there is no evidence that Reed relied on, or should have relied, on any of these documents in deciding to appeal directly to the Commission rather than first appealing to the Board.
Edmundson also refers us to the County’s May 16, 2005 “Notice of Final Action” regarding the Reeds’ permit, which states that “[t]he project was not appealed at the local level. [¶] The project is appealable to the Coastal Commission pursuant to Public Resources Code, Section 30603.” Although we do not necessarily agree with Edmundson’s interpretation of this language, we need not reach this issue either because, as respondents point out, this notice indisputably was received by Edmundson after his time to appeal to the Board had run.
Edmundson himself all but concedes the issue in his reply brief. He notes that the respondents “argue simply that [Edmundson] could not have relied on the [May 16, 2005 notice of final action] because it was issued after the time ran for filing an appeal with the Board of Supervisors.” Edmundson then states: “[W]hile true at one level, this ignores the remaining abundant evidence that would cause any citizen—as it did appellant—to understand that he can take an appeal to the Coastal Commission or the Board of Supervisors. In other words, both existing practice and an entire pattern of county-issued notice over time told appellant he had a right to seek Commission review.”
Again, Edmundson fails to cite to anything in the record which establishes that he relied on any County or Commission representations about his right of direct appeal in the matter of the Reeds’ permit. This is fatal to his cause. Edmundson bears the burden of establishing that the trial court erred when it did not follow his equitable tolling and equitable estoppel arguments and, instead, found that his action was barred by his failure to exhaust administrative remedies and certain statutes of limitations. “ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. [Citations.] . . . [C]onclusory claims of error will fail.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) Accordingly, Edmundson’s equitable tolling and equitable estoppel arguments fail because he does not establish a proper reliance, and we need not address them further.
B. Collateral Estoppel
Edmundson argues that he is not challenging the superior court’s judgment in Reed. He contends that he “ ‘accepted’ that ruling while still contending he was entitled to a hearing before the [Board] or, alternately, by a trial court (without further administrative exhaustion).” He contends that the superior court’s ruling in Reed “never precluded the Board of Supervisors from taking up the matter and providing administrative review” and, therefore, he is “entitled to a hearing before the Board of Supervisors or, alternately, by a trial court (without further administrative exhaustion),” which he seeks for no other purpose than to challenge the permit’s approval.
Edmundson’s argument is unpersuasive. His action, both as originally filed and, apparently, as amended, seeks “an administrative appeal and review of the decision approving the contested permit,” an “order that petitioner has exhausted his administrative remedies or is excused from doing so and allow him to adjudicate the legality of the permit before a court of law based on the existing administrative record,” and an “injunction prohibiting respondent County from finalizing approval of any development or suspending any approval with respect to the contested permit pending the administrative appeal and decision or adjudication before this court on the merits[.]” Clearly, his petition and complaint are a direct attack on the superior court’s ruling in Reed that the permit’s approval was “final.”
The record contains an amended petition and complaint, with a handwritten notation indicating it was filed in September 2006, but it is not endorsed by the superior court.
Although not specifically argued by respondents, and as we have already indicated, Edmundson, as appellant, bears the burden of establishing that the superior court erred when it found that the Reed judgment’s “final” language had a collateral estoppel effect on his action. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564; In re S.C., supra, 138 Cal.App.4th at p. 408.) Edmundson does not provide us with legal authority to support his arguments however, as a review of them readily demonstrates. In his opening brief, Edmundson states: “[Edmundson] was simply saying that if [the superior court] was correct, then application of equitable tolling principles would afford him review by the Board of Supervisors or by a court of law. To date, no agency, no court, absolutely no one has reviewed this [approval of the Reed’s remodel] for compliance with the Mendocino Town Plan and Zoning Laws.”
In his reply brief, Edmundson adds: “Reeds return to the mantra that [the Reed] ruling was a ‘final judgment’ and that this precluded forever and always Edmundson from obtaining administrative review of [the approval of the permit]. But Reeds overlook that the [Reed] decision only concerned the jurisdiction of the Coastal Commission to hear an appeal. Nowhere does that ruling address whether [Edmundson] was entitled to an alternative forum for administrative review.
“For any judge to utter that a permit is ‘now final,’ does not automatically make it lawfully true. In the related appeal, [Edmundson] contends that such a pronouncement has no legal effect when an appeal has been taken on a denied intervention application. Judgments plainly are not final when an appeal is taken. No matter what the trial court says or how it characterizes the issue as being totally resolved by its ruling.
“If [Edmundson] is correct in his position that the judgment was not final based on his appeal, then he was entitled to disregard the trial court’s characterization and seek his remedy by a companion suit that would compel an administrative hearing. Such action does not collaterally attack the [Reed] ruling; rather, it is quite the opposite, as it accepts the validity of the [Reed] ruling but seeks a remedy that is not inconsistent with it, i.e., an administrative review by the Board of Supervisors. [Edmundson] maintains that [the ruling below in this action]—based on whichever of the grounds claimed—was simply wrong.”
Edmundson insists further that “[i]f principles of equitable tolling apply,” “then a ruling that [Edmundson] . . . was engaged in an impermissible collateral attack was itself flawed.”
Edmundson’s arguments may or may not have legal authority to support them, but we are under no obligation to find it. (Estate of Hoffman (1963) 213 Cal.App.2d 635, 639.) Most significantly, Edmundson never establishes why the Reed judgment does not preclude his present action pursuant to the collateral estoppel doctrine. Edmundson states that “[f]or any judge to utter that a permit is ‘now final,’ does not automatically make it lawfully true.” Again, it is Edmundson’s burden on appeal to show why it is not the case, a burden which he fails to meet. Therefore, this independent ground for the trial court’s judgment is sufficient reason alone to deny his appeal.
In his reply brief, Edmundson does refer us, without citations, to purported contentions in his appeal of the superior court’s denial of his motion to intervene in Reed v. Coastal Commission, case No. A114432. These appeals have not been consolidated and no request for judicial notice has been made. Moreover, the gist of Edmundson’s argument, as summarized in his reply brief, is that the Reed judgment could not be final while his appeal was pending. As we have already indicated, we have dismissed his appeal, and the Supreme Court has denied his petition for review of that dismissal. Therefore, he cannot maintain this argument.
As we have also indicated, the superior court also granted the Reeds’ motion for judgment and dismissal on the independent ground that Edmundson failed to “timely name a necessary and indispensable party,” a ground we also need not further address in light of our rulings herein. However, we have reviewed all arguments presented in this appeal to the extent necessary to rule on the Reeds’ motion for sanctions, which we discuss in part IV, post.
II. The $2,500 Bond
Edmundson next argues that the trial court erred when it ordered that the $2,500 bond he had posted be paid to the Reeds. This argument lacks merit as well.
It has also been said that “the purpose of requiring security is to afford compensation to the party wrongly enjoined or restrained.” (City of South San Francisco v. Cypress Lawn Cemetery Assn. (1992) 11 Cal.App.4th 916, 922 [regarding injunction undertakings].) As Edmundson acknowledges, the imposition or release of a bond such as that posted by Edmundson is left to the sound discretion of the lower court. (See Dickey v. Rosso (1972) 23 Cal.App.3d 493, 498 [referring to the trial court’s sound discretion in setting the amount of a preliminary injunction undertaking].)
When the superior court issued its judgment in the action below, it dissolved the temporary restraining order and ordered the $2,500 bond released to the Reeds. The court stated:
“The court finds [the Reeds] have suffered substantial delay. It is getting close to the rainy season. Their ability to commence work under the coastal development permit has been prejudiced based upon this litigation, delaying the construction on their property. The court based this finding upon their contractor’s declaration that was submitted in opposition to the preliminary injunction motion.”
Edmundson argues that the court erred because the Reeds, as experienced developers, were not surprised by the appeal, took “unilateral steps” to obtain architectural drawings and engage a contractor while the permit was under challenge, and that any delay between the issuance of the permit and commencement of the project “was attributable to the Reeds’ lawsuit against the Coastal Commission and the pendency of the administrative appeal.” Edmundson also contends that none of the delay between issuance of the TRO and the hearing on the preliminary injunction was attributable to him because he “attempted to expedite the setting of a hearing,” that there were no “change in facts” during the two months of the action, and that the contractor’s declaration was “generic” and sought to “pin all the blame on [Edmundson] for having challenged the CDP in the first place.”
Edmundson’s arguments do not establish an abuse of discretion. The Reeds’ purported lack of surprise, their efforts to pursue their project in and out of court, and Edmundson’s purported efforts to expedite proceedings do not make the court’s conclusions unreasonable. It is plain that the court acted within its discretion to conclude that Edmundson’s initiation of his action delayed the project after determining that his action lacked merit. The Reeds, rather than being able to proceed with approved work after the issuance of the judgment in Reed, were prohibited from doing so until November 2006 by the August 2005 temporary restraining order issued in the present action. The superior court reasonably believed this delay would create problems during the rainy season that the Reeds otherwise would not have faced. Compensating the Reeds the relatively modest amount of $2,500 for this delay was well within the trial court’s discretion.
III. The $7,920 Sanction
Edmundson also argues that the superior court should not have sanctioned him by ordering him to pay the Reeds $7,920 in attorney fees. This too lacks merit.
“ ‘It is well settled that the award of sanctions under [Code of Civil Procedure] section 128.5 is a discretionary act on the part of the trial court. [Citation.] . . . [Citation] . . . “Under the appropriate standard of review of an order awarding sanctions under section 128.5, it is not the province of this court ‘to consider the record on appeal to determine if appellant’s conduct meets the standards of frivolousness. . . . [¶] . . . Where the issue on appeal is whether the trial court has abused its discretion, the showing necessary to reverse the trial court is insufficient if it presents facts which merely afford an opportunity for a different opinion: “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice. . . .” [Citation.]’ ” [Citation.]’ [Citation.]” (Muega v. Menocal (1996) 50 Cal.App.4th 868, 873-874.)
Edmundson’s arguments can be summarized as follows. The superior court erred in sanctioning him $7,920 “solely because [Edmundson] submitted a motion for reconsideration.” He tried to have the trial court rule without a hearing, but the trial court “forced a hearing, . . . then turned around and sanctioned [Edmundson] for inconveniencing the Reeds and having obliged their Los Angeles attorney to file papers and travel to Fort Bragg.” The trial court did not impose sanctions or award fees when it issued its judgment. His “simple motion for reconsideration” was purported based on “a factual misrepresentation by Reeds’ attorney as to [Edmundson’s] failure to exhaust” his remedies, although he was entitled to “insure a sound trial court record of the proceedings for appeal.” Finally, the court never explained why the facts brought forth by Edmundson did not constitute new facts within the meaning of Code of Civil Procedure section 1008.
Edmundson’s arguments avoid the most important question, however, which is whether he presented sufficient new facts or law to have an arguable chance to prevail in his reconsideration motion. As the superior court pointed out at the hearing on the motion, its final judgment was based on four separate and independent grounds. The record indicates Edmundson did not submit any new facts, evidence, law, or argument regarding such dispositive matters as the statutes of limitations bar the court had found. Therefore, his motion could not change the court’s judgment, whether or not his contentions had merit. The superior court acted well within its discretion when it ordered sanctions under these circumstances.
IV. The Reeds’ Motion for Sanctions
The Reeds have moved pursuant to Code of Civil Procedure section 907 (section 907) for this court to jointly and severally sanction Edmundson and his attorney, Rodney Richard Jones, $18,930 for filing and pursuing a frivolous and dilatory appeal, including Edmundson’s petition for a writ of supersedeas. We deny their motion.
Section 907 states that “[w]hen it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.” California Rules of Court, rule 8.276(e), similarly provides that on a party’s motion, this court may impose sanctions on a party or an attorney for taking a frivolous appeal or appealing solely to cause delay.
“Courts have struggled to apply section 907. On the one hand, the statute should be used to compensate for a party’s egregious behavior and to deter abuse of the court system and the appellate process. On the other hand, sanctions should not be awarded simply because an appeal is without merit. Indiscriminate application of section 907 could deter attorneys from vigorously representing their clients and deter parties from pursuing legitimate interests.” (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1295.)
The Supreme Court provided guidance regarding appellate sanctions in In re Marriage of Flaherty (1982) 31 Cal.3d 637. The court stated, “an appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]
“However, any definition must be read so as to avoid a serious chilling effect on the assertion of litigants’ rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. Counsel should not be deterred from filing such appeals out of a fear of reprisals. Justice Kaus stated it well. In reviewing the dangers inherent in any attempt to define frivolous appeals, he said the courts cannot be ‘blind to the obvious: the borderline between a frivolous appeal and one which simply has no merit is vague indeed . . . . The difficulty of drawing the line simply points up an essential corollary to the power to dismiss frivolous appeals: that in all but the clearest cases it should not be used.’ [Citation.] The same may be said about the power to punish attorneys for prosecuting frivolous appeals: the punishment should be used most sparingly to deter only the most egregious conduct.” (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.)
The Reeds argue that the record of this case, as well as that of Reed, “demonstrate that [Edmundson’s] motivation has simply been to delay issuance of the [permit], and to hinder the Reeds’ ability to pursue their remodeling project.” They contend Edmundson’s appeal contains a “half-hearted focus on only one of the four independent grounds upon which the trial court based its judgment in favor of respondents.” They also argue that “any reasonable person” would have read the Reed judgment to mean that the permit was final and, therefore, that Edmundson did not have a continued right to oppose it, particularly in light of the running of the local appeal period and the relevant statute of limitations. They further argue that “a reasonable person” would have found the finality of the Reed judgment precluded a new action based on the same facts and the same purpose (to challenge the permit), and certainly would have concluded after the trial court’s denial of Edmundson’s motion for reconsideration and award of sanctions that the trial court’s ruling was correct.
The Reeds’ arguments are unpersuasive in light of the guidance provided in In re Marriage of Flaherty, supra, 31 Cal.3d 637. While Edmundson and his counsel pursued this action after the Reed judgment, we do not see indications in the record that they did so deliberately in order to “to harass the respondent or delay the effect of an adverse judgment.” (Id. at p. 650.) Instead, it appears that the circumstances of this case are somewhat unique. Given the apparent scarcity of relevant case law, as evidenced by both parties’ appellate briefs, and the fact that Reed primarily involved a procedural challenge to the Commission’s jurisdiction by the Reeds rather than the substantive merits of the permit itself, a reasonable attorney could believe that the application of collateral estoppel was not unassailable. Moreover, while it is not necessary for us to discuss further the merits of Edmundson’s equitable tolling and equitable estoppel arguments in order to decide this appeal, we have reviewed these arguments and the record before us, and do not consider these arguments to be totally and completely without merit, i.e., frivolous.
As this court has recently noted, the three elements essential to collateral estoppel are “whether the necessary parties are the same or in privity, there was previously a final judgment on the merits, and the issues are identical.” (Smith v. ExxonMobil Oil Corp. (2007) 153 Cal.App.4th 1407, 1415.)
Of course, this should not be taken as an indication one way or the other that we believe these arguments have further merit.
The Reeds are also incorrect when they assert that Edmundson’s appeal addresses only one of the four grounds for the superior court’s ruling; Edmundson’s papers address all four in some fashion, as our discussion herein indicates. Furthermore, the superior court’s denial of Edmundson’s motion for consideration is not relevant, given the court’s emphasis on Edmundson’s failure to put forward new facts or law. That is not a requirement for an appeal from a judgment below.
The fourth ground for the court’s ruling was that Edmundson failed to “timely name a necessary and indispensable party.” Edmundson addresses this in footnote 2 of his reply brief. In an event, the superior court relied for this ground on Sierra Club, Inc. v. California Coastal Com., supra, 95 Cal.App.3d 495, which discussion indicates such a dismissal is without prejudice pursuant to Code of Civil Procedure section 389, subdivision (b). (Sierra Club, Inc., at pp. 500-501.) Under these circumstances, we cannot conclude on the papers and record submitted to us that Edmundson’s appeal was frivolous.
DISPOSITION
The judgment is affirmed. Respondent is awarded appellate costs.
We concur: Kline, P.J, Haerle, J.