Opinion
A131375 Marin County Super. Ct. No. CIV086415
12-14-2011
GARY M. WINSTON, Plaintiff and Respondent, v. DAWN GRAY et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Attorney Stephen James Wagner signed a contract with Attorney Dawn Gray, which stated that Gray would provide legal research and other discrete legal projects for him. Gray provided legal research for Wagner regarding a family law matter involving Gary M. Winston. Subsequently, Winston sued a number of attorneys, including Wagner and Gray, for legal malpractice related to a failed postnuptial property agreement. Winston deposed Gray; Attorney Debra Steel Sturmer represented her at the deposition. Sturmer instructed Gray not to answer any questions regarding her communications with Wagner based on the attorney-client privilege. Winston filed a motion to compel and the trial court found that Wagner and Gray did not have an attorney-client relationship and Gray and Sturmer did not show that there was substantial justification for Gray's refusal to answer deposition questions. The court imposed sanctions in the amount of $6,840 against Gray and Sturmer. Gray and Sturmer appeal from this sanctions order and claim that the attorney-client privilege applies and, even if it does not, the lower court abused its discretion in awarding these sanctions to Winston. We affirm the lower court's sanctions order.
BACKGROUND
Gray is a certified family law specialist and has been licensed by the California Bar since 1983. She maintains a law office in Grass Valley, California, but resides in North Carolina. She works exclusively as a contract lawyer providing legal services to family law attorneys in California.
In 1996, Wagner and Gray entered into a contract. The contract provided that Gray agreed "to perform work for Wagner in connection with his ongoing family law cases. . . . This work includes, but is not limited to, review of case files and other documents, legal research, preparation of written documents, and telephone and/or office discussions. . . ." The agreement further provided that "Wagner further understands and agrees that this agreement for Gray's services is completely independent of any financial arrangements between Wagner and his client(s), and agrees that Wagner is responsible for payment of Gray's fees and costs as set forth herein regardless of whether or not a client pays Wagner for any amounts which Wagner bills the client for Gray's time or for any other charges." The contract also stated that "Wagner and Gray understand and acknowledge that at all times during Gray's work on any case, Wagner remains the attorney of record in the case and is solely responsible to his client(s) for the legal decisions involved in the case. Wagner and Gray agree that all suggestions, approaches, research and other work done by Gray for Wagner are at all times subject to Wagner's review, revision and approval, and that Wagner is solely responsible to his client(s) for the content and legal effect of any arguments made or documents used in any case, including those based on Gray's work."
The agreement between Wagner and Gray also specified the following: "Gray agrees not to accept a project from any other attorney if such project involves a party whose interests are adverse to those of any of Wagner's clients on whose cases Gray has worked for Wagner. Gray acknowledges that she has an obligation to abide by the Rules of Professional Conduct, and the Business and Professions Code sections applicable to conflicts of interest. Wagner understands and acknowledges that Gray meets none of the criteria set forth in Business [and] Professions Code[, section] 6148[, subdivision] (a)(4), and in particular carries no errors and omissions insurance coverage."
In 2007, Wagner asked Gray to complete work for him in connection with Wagner's representation of Winston in his dissolution action. The projects primarily involved legal research and writing in connection with the preparation of motions, declarations, and other pleadings.
On December 31, 2008, Winston filed a complaint for legal malpractice against various people, including Wagner and Gray. Subsequently, he filed a first amended complaint and alleged legal malpractice and breach of fiduciary duty against all of the defendants. He also alleged fraud against Wagner and his firm.
The complaint is not in the record on appeal.
In response to various discovery requests, Gray asserted that she never had an attorney-client relationship with Winston. On April 29, 2010, Timothy F. Perry, one of the attorneys representing Winston, requested Gray's file for the Winston matter. At that point in time, there was no assertion of an attorney-client privilege.
On May 28, 2010, Perry noticed Gray's deposition for June 18, 2010. Sturmer advised Perry that Gray lives in North Carolina and that Gray would appear for her deposition on September 21, 2010, in Raleigh, North Carolina. Sturmer did not raise any attorney-client privilege issue.
On August 24, 2010, Gray and Wagner filed a joint answer to Winston's first amended complaint, and Gray did not allege that she was acting as Wagner's attorney. According to Sturmer, Perry called her on September 16, 2010, and stated that he just realized that Gray might assert the attorney-client privilege regarding communications with Wagner. Perry denied ever suggesting that Gray would claim the attorney-client privilege and claimed to be "astounded" when Sturmer later asserted the privilege. On September 17, 2010, Gray provided her responses to the interrogatories and asserted the attorney-client privilege as to communications with Wagner. Gray maintains that Perry raised the possibility of a stipulation setting forth the basic facts to permit a trial court to rule on the attorney-client issue. Winston responds that both counsel briefly discussed this issue, but Gray's counsel never proposed any stipulation.
On September 21, 2010, Gray appeared at her deposition. Sturmer instructed her not to produce her contract with Wagner and not to answer any questions about her communications with Wagner on the grounds that the attorney-client privilege applied. More than one month later, on November 12, 2010, Winston moved to compel Gray's responses to deposition questions and for monetary sanctions in the amount of $16,639.53.
At his deposition on December 1, 2010, Wagner stated that in his opinion, as a "layperson," Gray never represented him in a legal matter. Subsequently, Gray agreed to continue her deposition without asserting the attorney-client privilege and answered the questions related to communications between Wagner and her. Winston modified his request for sanctions against Gray and Sturmer to $10,400, since Gray appeared for her deposition in the Bay area.
On February 8, 2011, the trial court heard Winston's motion to compel Gray's answers to questions at her deposition and his request for monetary sanctions. The court filed its ruling on February 14, 2011. It noted that the motion to compel was moot as Gray had appeared for her continued deposition and answered questions without objection. The court observed that Gray declared that she considered the family law attorneys who hired her to be her clients. The court rejected Gray's attempt to have the court determine, in the context of a discovery motion, a key issue in the case related to whether she had an attorney-client relationship with Winston. The court concluded that Gray's evidence did not show that Wagner hired her to give him legal advice. Rather, she was hired to perform discrete tasks or projects involving legal research and writing. The court found that Gray failed to show that she acted with substantial justification in asserting the attorney-client privilege to the questions posed to her during her deposition in September 2010.
The trial court granted Winston's request for sanctions. The court found that Gray did not act with substantial justification in asserting the attorney-client privilege as to her communications with Wagner. The court ordered sanctions in the amount of $6,840 to be paid by Gray and her attorney, Sturmer.
DISCUSSION
I. Jurisdiction over the Appeal and the Standard of Review
An order compelling discovery is not an appealable order. (See Roden v. AmerisourceBergen Corp. (2005) 130 Cal.App.4th 211, 215.) However, an appeal may be taken from "an order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000)." (Code Civ. Proc., § 904.1, subd. (a)(12).) Here, the sanctions order directed Gray and Sturmer to pay Winston $6,840, and therefore we have jurisdiction to consider this appeal.
We review the superior court's discovery orders for abuse of discretion. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 171.) An abuse of discretion is shown when the trial court applies the wrong legal standard, and we review the court's interpretation of a statute de novo. (See, e.g., Zurich American Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1493.) When the facts asserted in support of and in opposition to the motion are in conflict, the trial court's factual findings will be upheld if they are supported by substantial evidence. (HLC Properties, Ltd. V. Superior Court (2005) 35 Cal.4th 54, 60.) The party claiming the privilege has the burden of establishing the preliminary facts necessary to show that the communication was made in the course of an attorney-client relationship. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729.) Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply. (Evid. Code, § 917, subd. (a).)
II. The Attorney-Client Privilege
Gray and Sturmer contend that the lower court erred in failing to find that the attorney-client privilege applies. They cite Evidence Code section 951, which provides that " 'client' means a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity . . . ." They maintain that Wagner consulted Gray for the purpose of securing legal service or advice from her in a professional capacity and therefore the privilege applies.
When urging their interpretation of Evidence Code section 951, Gray and Sturmer fail to cite to any other statute in the Evidence Code concerned with attorney-client privilege. They also avoid any discussion of the public policy underlying the attorney-client relationship. Finally, they do not cite any case that has applied the privilege to a situation where the "client" was not seeking legal advice about his or her own claims or defenses.
When interpreting a statute, "[o]ur fundamental task . . . is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute." (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) When determining what the Legislature meant, " '[t]he statutory language itself is the most reliable indicator, so we start with the statute's words, assigning them their usual and ordinary meanings, and construing them in context. If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute's plain meaning governs. On the other hand, if the language allows more than one reasonable construction, we may look to such aids as the legislative history of the measure and maxims of statutory construction. In cases of uncertain meaning, we may also consider the consequences of a particular interpretation, including its impact on public policy.' " (Martinez v. Combs (2010) 49 Cal.4th 35, 51.)
The attorney-client privilege only protects confidential communications between a client and his or her attorney during the course of an attorney-client relationship. Evidence Code section 952 defines such a confidential communication as "information transmitted between a client and his lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship."
"[T]he fundamental purpose behind the privilege is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters. [Citation.] . . . [T]he public policy fostered by the privilege seeks to insure 'the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, [so] that the former may have adequate advice and a proper defense.' [Citation.]" (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599.) The privilege is to be strictly construed. (City & County of S.F. v. Superior Court (1951) 37 Cal.2d 227, 235.)
Gray and Sturmer argue that Wagner employed her in her professional capacity for the purpose of securing legal service or advice and therefore the attorney-client privilege attached to their communications. This argument is fatally flawed. Wagner did not employ Gray to investigate or provide any legal advice for any claim particular to him. Thus, she did not provide any advice to Wagner in furtherance of his own particular interest. (See Evid. Code, § 952.) The entire purpose of the attorney-client privilege is to encourage a client to make full disclosure to his or her attorney without fear that others may be informed. (D.I. Chadbourne, Inc. v. Superior Court, supra, 60 Cal.2d at p. 733.) Gray and Sturmer's construction of the statute is not supported by policy or any court decision.
Gray and Sturmer criticize the lower court's decision for citing Formal Opinions of the State Bar of California Standing Committee on Professional Responsibility and Conduct and a treatise. We need not address the relevance of these opinions as we concluded there are opinions from our Supreme Court and Courts of Appeal that are on point.
Gray and Sturmer argue that we should look at the plain meaning of the words in Evidence Code section 951; they then proceed to define "legal services or advice" and claim that the use of the disjunction means that consultation for the purpose of securing any legal service satisfies the statute. They maintain that "retaining another attorney to secure legal service creates an attorney-client relationship between the attorneys." Such an interpretation violates the cardinal rule of statutory construction that the words of a particular statute are to be interpreted in their context. (See, e.g., Martinez v. Combs, supra, 49 Cal.4th at p. 51.) The interpretation of the statute proposed by Gray and Sturmer also ignores numerous cases—dating back to the 1800s—that have consistently held that the attorney-client privilege does not attach to advice or services provided by an attorney to a client when the communications are not for the purpose of the attorney's professional representation of the client. Thus, for example, the privilege is not applicable when the attorney acts merely as a negotiator for the client, is providing business advice, or is merely acting as a trustee of the client. (See, e.g., Aetna Casualty & Surety Co. v. Superior Court (1984) 153 Cal.App.3d 467, 475; Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 32; Estate of Perkins (1925) 195 Cal. 699, 710; Hager v. Shindler (1865) 29 Cal. 47, 68.)
Courts have uniformly held that the attorney-client privilege attaches only to communications that are made for the purpose of the attorney's professional representation; the privilege does not attach to communications to the client made for some unrelated purpose. (Solon v. Lichtenstein (1952) 39 Cal.2d 75, 80 ["A communication to be privileged must have been made to an attorney acting in his professional capacity toward his client"].) Indeed, an attorney's work product has been described as " 'the product of [the attorney's] effort, research, and thought in the preparation of his client's case.' " (BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1253-1254, fn. 4, italics added.) Here, the record unequivocally establishes that Wagner did not engage Gray to provide him with legal advice about any legal rights or duties involving him. Gray's communications to Wagner were for a purpose unrelated to any legal representation of Wagner.
In the lower court, when arguing that the privilege applies, Gray submitted a declaration. She declared that she works "exclusively as a contract lawyer, providing legal service primarily to family law attorneys in California." She opined that she considered the family law attorneys who hired her to be her clients. This statement, however, does not mean that she has an attorney-client relationship with them. Gray's subjective belief is legally irrelevant; it is the intent and the conduct of the parties that controls the question as to whether an attorney-client relationship has been created. (Zenith Ins. Co. v. O'Connor (2007) 148 Cal.App.4th 998, 1010.)
In her declaration, Gray stated that her work for Wagner "involved only discrete tasks or projects as identified and requested by Wagner. The projects primarily involved legal research and writing in connection with the preparation of draft motions, declarations and other pleadings. My work was always done at the specific request and direction of Wagner. After submitting a draft to Wagner, he was responsible for the review, revision, finalization and ultimate filing and service of any pleadings and motions." Gray's declaration establishes that she did not have an attorney-client relationship with Wagner. She did not provide any legal advice or legal services regarding any legal rights or duties involving Wagner.
Gray's contract with Wagner also established that Evidence Code section 951 does not apply. The contract stated, "Gray agrees to perform work for Wagner in connection with his ongoing family law cases." It specified that the worked included, but was not limited to, "review of case files and other documents, legal research, preparation of written documents, and telephone and/or office discussions." Additionally, the contract provided as follows: "Wagner and Gray understand and acknowledge that at all times during Gray's work on any case, Wagner remains the attorney of record in the case and is solely responsible to his client(s) for the legal decisions involved in the case. Wagner and Gray agree that all suggestions, approaches, research and other work done by Gray for Wagner are at all times subject to Wagner's review, revision and approval, and that Wagner is solely responsible to his client(s) for the content and legal effect of any arguments made or documents used in any case, including those based on Gray's work."
The contract between Wagner and Gray was not an attorney-client retainer agreement. The contract established that Wagner was ultimately responsible for all legal decisions and opinions. The dominant purpose of the relationship between Gray and Wagner was not one of attorney-client; rather, the two attorneys had a business relationship where one was to provide discrete tasks related to legal issues concerning the clients of one of the attorneys. (See Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 739-740.) Gray was not representing Wagner in any particular matter; she was not providing him with any legal advice regarding a potential claim or defense that Wagner may have had. The communication between Gray and Wagner was not made for the purpose of any legal representation of Wagner and was clearly not privileged under Evidence Code section 952.
Winston also cites the conflict of interest provision in the contract between Gray and Wagner as showing that they did not have an attorney-client relationship. The contract states the following: "Wagner understands and acknowledges that Gray contracts to perform work for many attorneys and law firms and may have done work for an attorney who is opposing counsel on a case on which Gray is performing work for Wagner. Gray agrees not to accept a project from any other attorney if such project involves a party whose interests are adverse to those of any of Wagner's clients on whose cases Gray has worked for Wagner." Winston maintains that the conflict of interest provision does not mention any potential conflict between Gray's clients and Wagner, but simply mentions potential conflicts between Gray's other contract work and current contract work for Wagner's clients.
Finally, Gray and Sturmer contend that two sentences in the contract between Wagner and Gray establishes an attorney-client relationship between them. They cite the following: "Wagner understands and acknowledges that Gray meets none of the criteria set forth in Business and Professions Code[, section] 6148[, subdivision] (a)(4), and in particular carries no errors and omissions insurance coverage. This statement is provided as required by that subsection." They claim that this shows Gray's desire to form an attorney-client relationship with Wagner. This argument makes little sense. These sentences do not indicate that Gray provided any legal advice or services to Wagner with regard to any claims or liabilities he had.
Accordingly, the lower court correctly found that the attorney-client privilege did not apply to the facts of the present case.
III. The Award of Sanctions to Winston
The trial court awarded discovery sanctions to Winston to be paid by Gray and Sturmer because it found that there was no substantial justification for their assertion of the attorney-client privilege at Gray's deposition in North Carolina. Gray and Sturmer contend that the lower court abused its discretion in finding that they acted with no substantial justification. They maintain that Gray was obligated to assert the privilege (see Mitchell v. Superior Court, supra, 37 Cal.3d at p. 600), and that Gray had a good faith belief that such a privileged existed. Additionally, they argue Winston suffered no harm as a result of Gray's initial refusal to answer deposition questions. They emphasize that Gray later answered the questions and the motion to compel was moot by the time the court considered the motion. They claim that the court abused its discretion because the sanctions were punitive rather than designed to accomplish the objectives of discovery.
Although Gray and Sturmer claim that no sanctions should have been awarded to Winston, they do not assert that the amount was in excess of the actual costs to file the motion. Their appeal is therefore limited to a consideration of whether the sanctions were properly imposed and we will not review the appropriateness of the amount awarded.
Code of Civil Procedure section 2023.030 governs the application of sanctions for misuse of the discovery process. This section provides that a court "may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. . . ." (Code Civ. Proc., § 2023.030, subd. (a).) In fact, if statutorily authorized, the court must impose a monetary sanction against a party and/or attorney who unsuccessfully makes or opposes a discovery motion unless the court finds that the person subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.480, subd. (f).)
Gray and Sturmer assert that Winston did not show that Gray's refusals to answer on the basis of attorney-client privilege "were insubstantial, were interposed for purposes of delay or harassment, or were otherwise unreasonable." (Union Mut. Life Ins. Co. v. Superior Court (1978) 80 Cal.App.3d 1, 15.) They claim that Winston simply made a conclusory statement that Gray did not act with substantial justification. Gray and Sturmer contend that the trial court failed to make a specific finding, which they claim is required by Code of Civil Procedure section 2023.030. Gray and Sturmer conclude that the lower court "failed to apply the correct legal standard in awarding sanctions to Winston."
Even if it were true that the lower court did not expressly analyze the "substantial justification" exception to the imposition of sanctions contained in Code of Civil Procedure section 2023.030, subdivision (a), this would not require reversal of the lower court's order. An "order imposing sanctions" is not "defective for failing to specify with particularity the basis for awarding sanctions," because "[u]nlike other statutes authorizing sanctions [citation] the discovery statutes do not require the court's order to 'recite in detail' the circumstances justifying the award." (Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261.) "Indeed, the trial court is not required to make findings at all." (Ibid.)
In fact, contrary to the assertion of Gray and Sturmer, the lower court did set forth its reasons for ordering sanctions. The court summarized Winston's argument that Gray and Sturmer had no basis for invoking the privilege and did so to frustrate Winston's prosecution of the action and thereby provide a tactical advantage to the defense. According to Winston, the refusal to answer questions " 'was part of a strategy to allow the defendants to complete the deposition of plaintiff Winston before either she or defendant Wagner substantively testified, thereby allowing them to "contour" their testimony around plaintiff's.' " The trial court correctly concluded that the evidence unequivocally established that Wagner did not hire Gray to provide him with legal advice but to perform discrete tasks as identified and requested by Wagner. Moreover, the court pointed out that Wagner testified that in his opinion, as a layperson, Gray had never represented him personally on a legal matter. Thus, the lower court found that there was absolutely no legal basis for the assertion of this privilege. As already extensively discussed, we agree with this finding.
Gray and Sturmer assert that the legal issue was novel and one of first impression in California. It was not. The reason no decision has specifically addressed this issue is because their argument is somewhat absurd. A review of the statutes, the policy underlying the privilege, and the numerous cases discussing the attorney-client privilege makes it clear that the attorney-client privilege does not apply when the "client" is not seeking legal advice or services with regard to the "client's" own legal duties and rights. The privilege also does not apply because, under the contract, the so-called client was responsible for all final legal decisions and opinions.
Furthermore, the record supported a finding that the refusal was for the purpose of obtaining a tactical advantage. As a result of the delay, counsel for Winston did not have the benefit of knowing Gray's answers prior to deposing Wagner.
Additionally, Winston points out that on May 28, 2010, Perry noticed Gray's deposition for June 18, 2010. The deposition did not actually occur until September 21, 2010. During that period of time, Gray and Sturmer could have filed for a protective order rather than waiting until just before September 21, 2010, to advise opposing counsel that they planned to assert that the communications between Gray and Wagner were absolutely protected under the attorney-client privilege.
Furthermore, Sturmer was representing both Gray and Wagner. Wagner was the holder of the attorneyclient privilege; he testified that he did not believe he had an attorneyclient relationship with Gray. Moreover, on December 1, 2010, he waived any privilege. Thus, Sturmer could have obtained his waiver prior to Gray's deposition.
Finally, the complaint that Winston suffered no detriment and therefore an award was an abuse of discretion lacks merit. In the present case, the lower court found that the assertion of privilege and refusal to answer the deposition questions was without substantial justification, and therefore it properly imposed sanctions. (Code. Civ. Proc., § 2025.480, subd. (f).) The fact that Gray answered the questions after Winston had already filed the motion to compel did not make the award of sanctions punitive. The initial refusal to answer questions on September 21, 2010, forced Winston to file the motion to compel on November 12, 2010. Winston therefore suffered the detriment of spending money to file a motion to compel. Those costs were not eliminated simply because Gray, after November 12, 2010, decided to respond to the questions.
Accordingly, we conclude that the lower court did not abuse its discretion in ordering Gray and Sturmer to pay sanctions to Winston for the costs associated with bringing the motion to compel deposition responses.
IV. Winston's Request for Sanctions on Appeal
Winston asks this court to impose additional sanctions on Gray and Sturmer for pursuing an appeal of the sanctions order. He argues that sanctions imposed by the trial court are imposed to deter the misuse of the discovery process and that the compensatory and deterrent functions for imposing sanctions would be thwarted if the appellate court did not impose additional sanctions to compensate the respondent for the time and expense of opposing the appeal. Winston does not cite any statute that authorizes an award of sanctions on appeal simply because the appeal is from an order imposing sanctions for misuse of the discovery process.
We may impose sanctions on the grounds that the appeal is frivolous and taken solely for the purpose of harassment or delay. (Code. Civ. Proc., § 907; Cal. Rules of Court, rule 8.276.) The Supreme Court has defined a frivolous appeal as one that "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.]" (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) The court stressed that an appeal is not frivolous simply because it is without merit. (Ibid.) Sanctions are intended to prevent "indefensible conduct" but not to deter the "vigorous assertion of [a party's] rights." (Id. at p. 648.)
Although the arguments on appeal are weak, we do not believe that the appeal is completely without merit. Accordingly, we will not impose sanctions on appeal.
DISPOSITION
The order awarding sanctions in the amount of $6,840 to Winston is affirmed. Winston is awarded the costs of appeal.
Lambden, J. We concur: ________
Kline, P.J.
________
Richman, J.