Opinion
E070066
03-05-2020
Estate of PAUL RICHARD WILSON, Deceased. MARISA GONZALEZ, Petitioner and Respondent, v. LANNY WILSON, Objector and Appellant.
The Law Office of Jeffrey D. Grotke and Jeffrey D. Grotke, for Objector and Appellant. The Law Offices of Vincent Miller and Vincent J. Miller, for Petitioner and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIP1400189) OPINION APPEAL from the Superior Court of Riverside County. Thomas H. Cahraman, Judge. Affirmed. The Law Office of Jeffrey D. Grotke and Jeffrey D. Grotke, for Objector and Appellant. The Law Offices of Vincent Miller and Vincent J. Miller, for Petitioner and Respondent.
I.
INTRODUCTION
While in the hospital on the morning before undergoing surgery, Paul Richard Wilson decided he wanted to execute a will. He asked registered nurse Amber Pule and petitioner and respondent, Marisa Gonzalez, to witness it. Paul dictated his will to Gonzalez, which left everything to Gonzalez, and asked her to transcribe it. After nurse Pule confirmed the transcription was accurate, Paul executed his will, and Gonzalez and nurse Pule signed it as witnesses.
Because this appeal involves Paul Richard Wilson and his brother, Lanny Wilson, we refer to them by their first names to avoid confusion. We do not intend any disrespect.
After Paul died, Gonzalez petitioned the probate court to appoint her as administrator of Paul's estate and to admit his will into probate. Paul's brother, objector and appellant, Lanny Wilson, filed a will contest. The probate court denied Lanny's will contest, granted Gonzalez's petition, appointed her as administrator of Paul's estate, found Paul's will valid and entered it into probate.
We conclude the probate court did not err and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On November 6, 2013, Paul, who was 72 years old, was hospitalized and scheduled for surgery in the afternoon. Around 10:00 a.m., Paul decided he wanted to execute a will before undergoing the procedure. He called nurse Pule into his room, and asked her and Gonzalez to witness the execution of his will. Due to a stroke and other health complications, Paul could not write well, so he asked Gonzalez to transcribe the will for him.
After Paul finished dictating his will, Nurse Pule reviewed what Gonzalez had transcribed page-by-page to make sure she had written down Paul's dictation accurately. Nurse Pule initialed each page "ap" in the upper right-hand corner after verifying its contents were accurate. Paul signed and dated the will, and Gonzalez and Nurse Pule signed and dated it as witnesses.
The will, titled "Living Will of Paul R. Wilson," states, in relevant part: "I Paul Richard Wilson operating with sound mind and full mental faculty @ the moment do hereby give all of my worldly possessions, property at 26119 Elder Ave . . . 28929 Alessandro Bl. . . ." "I own both properties outright and hold the deed outright. I give all of my cars, antique property, all of my guns, alladin [sic] lamps. I give her all property, cash, bank accounts, cash accounts at Visterra, to Marisa Gonzalez with her to do as she wants. She has rights to everything at both properties and throughout the United States and worldwide that are under my name." "I give her all of this without any mental reservation or purpose of evasion. I do this also to circumvent any other people trying to get any of my property." "Eva and Art Calderon have no rights to any of my property, legal property, or thought of property." "This paper superseeds [sic] any & all Living Wills and power of attorney or legal rights by anybody to my property." "Marisa Gonzalez is the sole owner to all property of Paul Richard Wilson born on October 31, 1941 in Creston, Iowa."
Also on November 6, 2013, Paul executed a durable power of attorney for health care form and an all-purpose power of attorney form. Both instruments granted Gonzalez power of attorney over him.
After Paul died, Lanny successfully petitioned to be appointed administrator of Paul's estate. Gonzalez, however, petitioned the probate court to remove Lanny as administrator, appoint her instead, and to probate Paul's will. In response, Lanny filed a will contest. After a "[bench] trial [that] took about a year," during which several witnesses testified, the probate court denied Lanny's will contest, granted Gonzalez's petition, found Paul's will was valid, admitted it into probate, and appointed Gonzalez as administrator of Paul's estate.
Lanny timely appealed.
III.
DISCUSSION
In the summary of his argument in his opening brief, Lanny asserts the probate court committed 14 reversible errors. But, at the conclusion of his brief, Lanny contends the probate court made only nine "reversible errors." All of these errors, however, boil down to three dispositive issues: (1) whether Paul had testamentary capacity when he executed his will; (2) whether Paul's will is testamentary; and (3) whether Gonzalez may be the sole beneficiary of Paul's will. We conclude the trial did not err in answering these inquiries in the affirmative, finding Paul's will valid, entering it into probate, and appointing Gonzalez as the administrator of Paul's estate.
A. Standards of Review
We independently interpret the applicable statutes and review the probate court's factual findings for substantial evidence. (Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 382.) We view the record in the light most favorable to Gonzalez as the prevailing party and resolve all conflicts and apply all reasonable inferences in support of the probate court's order. (Axis Surplus Ins. Co. v. Reinoso (2012) 208 Cal.App.4th 181, 189.)
Under the substantial evidence standard of review, "[w]e look at the evidence in support of the successful party, disregarding any contrary showing, and we resolve all conflicts in favor of the respondent." (Canister v. Emergency Ambulance Services (2008) 160 Cal.App.4th 388, 394.) "When two or more inferences can be reasonably deduced from the facts, we do not substitute our deductions for those of the finder of fact." (Ibid.) Nor do we evaluate the credibility of witnesses or reweigh the evidence. (Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 514-515.) "If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm." (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
B. Substantial Evidence Supports the Probate court's Finding that Paul Had Testamentary Capacity to Execute Paul's Will
Lanny claims the probate court erred in finding that Paul had testamentary capacity when he executed his will because he suffered from delusions and erroneously believed he owned property "worldwide" and he was worth millions, billions, or even trillions of dollars. We conclude substantial evidence supports the probate court's factual finding that Paul had sufficient testamentary capacity at the time he executed his will. (Goodman v. Zimmerman (1994) 25 Cal.App.4th 1667, 1677-1678 [reviewing probate court's finding that testator had capacity for substantial evidence].)
Probate Code section 810, subdivision (a) creates "a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions." "[T]he standard for testamentary capacity is exceptionally low." (In re Marriage of Greenway (2013) 217 Cal.App.4th 628, 642.) "A person challenging the validity of a trust instrument on the grounds that the trustor lacked capacity to execute the document . . . carries the heavy burden of proving such allegations." (Doolittle v. Exchange Bank (2015) 241 Cal.App.4th 529, 545.)
Unless otherwise noted, all statutory references are to the Probate Code.
We review the probate court's finding that Paul had sufficient testamentary capacity to execute his will for substantial evidence. (In re Marriage of Greenway, supra, 217 Cal.App.4th at p. 649.)
Substantial evidence supports the probate court's finding that Paul had testamentary capacity when he executed his will. Although Paul at times suffered from delusions, such as stating he was far wealthier than he actually was, "[w]hen one has a mental disorder in which there are lucid periods, it is presumed that his will has been made during a time of lucidity. [Citations.]" (Estate of Goetz (1967) 253 Cal.App.2d 107, 114.)
Here, Gonzalez provided substantial evidence that Paul was lucid at the time he dictated and executed his will. Nurse Pule testified that, on the day Paul executed his will, she checked if he was "of sound mind" at 7:00 a.m., 11:00 a.m.—around the time Paul executed his will—and 3:00 p.m. On all three occasions, Paul appeared oriented and did not show any signs of senility or dementia. Paul also did not exhibit signs of confusion or disorientation after his surgery later that afternoon.
Attorney Lauro Pacheco met with Paul a few weeks after he executed his will to discuss legal issues associated with his real property. Paul showed Pacheco several "legal documents," including a "handwritten" will. Because Paul wanted his legal advice, Pacheco wanted to determine if Paul "clearly . . . understood what he was asking [Pacheco] to do." Pacheco "tried to confuse him" by talking about the legal documents and what legal action he wanted Pacheco to take. Pacheco "felt like [he] was talking to a colleague" because Paul "knew what he was asking [Pacheco] to do." Paul also told Pacheco that "he wanted the wills that he had done in the hospital recognized."
Dr. Stephen Read testified that Paul "had the right mental capacity to make a will" on November 6, 2013. Dr. Read observed that Paul's medical records indicated he suffered from "periods of delusion" before and after November 6, but there was "no evidence" that he had "delirium or confusional states" on November 6. Dr. Read noted that on November 6, various medical professionals treating Paul communicated directly with him, "not through an intermediary," about his medical needs and the procedures he may need to undergo. Those professionals also indicated that Paul was "oriented throughout the day."
Dr. Read also noted "an absence of statements of concern" about Paul's mental state from those professionals and "an absence of laboratory findings" that would suggest Paul had been suffering from delusions on November 6. Dr. Read considered these "negative findings" to be "significant." In Dr. Read's view, Paul's asking Nurse Pule and Gonzalez to be witnesses to his will as he dictated it was "prime evidence of [his] presence of mind."
Although Lanny presented evidence that Paul intermittently suffered from delusions, the probate court correctly found there was no evidence Paul suffered from any such delusions on the morning of November 6, 2013, when he executed his will. Nor is there any evidence that Paul suffered from any cognitive defect that affected his ability to bequeath his possessions as he saw fit at the time he executed his will.
Gonzalez, on the other hand, provided the testimony of Nurse Pule, Paul's attending nurse, who verified Paul was of sound mind three times on November 6, 2013. Nurse Pule observed Paul dictating his will and unequivocally testified that he was mentally competent to do so.
Nurse Pule's testimony was buttressed by the testimony of Pacheco and Dr. Read. Pacheco met with Paul a few weeks after he executed his will to discuss Paul's legal affairs. While doing so, Paul showed Pacheco his will, which he "wanted recognized." Pacheco did not detect any signs of mental incapacity from Paul, but rather felt like he was "talking to a colleague" when discussing legal issues with Paul. Pacheco unambiguously testified that he believed Paul knew what he was doing with regard to his legal affairs. Similarly, Dr. Read testified that he could not find any evidence in Paul's medical records that suggested Paul was mentally incapable of executing his will when he did. We conclude the testimony of Nurse Pule, Pacheco, and Dr. Read is substantial evidence to support the probate court's finding that Paul had testamentary capacity on November 6, 2013, when he executed his will. (In re Frederick G. (1979) 96 Cal.App.3d 353, 366 ["The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions."].)
Lanny suggests Paul lacked testamentary capacity not only because he sometimes suffered from delusions, but also because he left "'worldwide'" property to Gonzalez in his will. Because Paul did not own any properties (i.e., real estate) outside of the United States, Lanny argues this shows Paul lacked testamentary capacity because he did not understand the nature of his property. (See § 6100.5, subd. (a)(1).)
We disagree. Paul generally gave Gonzalez "rights to everything at both properties and throughout the United States and worldwide that are under [his] name," but specifically gave her, among other things, two parcels of real property—identified by their addresses—and "cash accounts at Visterra." Taken together, this shows that Paul wanted to ensure that Gonzalez received everything he owned, particularly his real properties and certain cash accounts.
Further, Paul's friend, William Cornett, testified that Paul was a pilot that frequently flew international and had made international investments. As the trial court properly recognized, these investments may have been the "worldwide" property referred to in his will. In other words, Paul may have referred to his property "throughout the United States and worldwide" to ensure there was no ambiguity about what he was gifting Gonzalez.
But even if Paul erroneously believed he had real properties outside of the United States, the broad, sweeping language of his will makes clear that Paul intended to give Gonzalez all of his property. There is no evidence in the record that Paul did not understand the "nature and situation" of his property such that he had insufficient testamentary capacity to execute his will in order to leave all of his property to Gonzalez, wherever it may be and in whatever form. (§ 6100.5, subd. (a)(1).) On the other hand, there is substantial evidence to support the probate court's finding that Gonzalez met her "exceptionally low" burden that Paul had adequate testamentary intent on November 6, 2013, when he executed his will. (In re Marriage of Greenway, supra, 217 Cal.App.4th at p. 642.) In short, Lanny failed to carry his "heavy burden" of showing Paul lacked adequate testamentary capacity at the time he dictated his will. (Doolittle v. Exchange Bank, supra, 241 Cal.App.4th at p. 545.)
C. Paul's Will Is Testamentary
Lanny claims that Paul's will was invalid because it was a "Living Will" that intended to be a present-day transfer of his property Gonzalez immediately, not after his death. Lanny therefore asserts Paul's will was not "testamentary." In light of the overwhelming evidence of Paul's testamentary intent in dictating and executing his will, we disagree.
"'[N]o particular words are necessary to show a testamentary intent . . . ' as long as the record demonstrates that the decedent intended the document to be his or her last will and testament. (Citation.)" (Estate of Stoker (2011) 193 Cal.App.4th 236, 244.) Here, Paul's testamentary intent is indisputable. The text of Paul's will itself reflects his testamentary intent. His will leaves all of his property to Gonzalez, specifically states that the other individuals have no rights to his property, and that his will supersedes all previous wills and powers of attorney. This language unambiguously conveys Paul's testamentary intent. (See Estate of Stoker, supra, at p. 244.)
Even if the text were ambiguous, Gonzalez provided evidence that "confirmed [Paul's] testamentary intent." (Estate of Stoker, supra, 193 Cal.App.4th at p. 244.) Nurse Pule testified that Paul wanted her to be a witness to him executing his will before he underwent surgery. Pacheco testified that Paul wanted his will "recognized." Dr. Read testified that Paul's medical records indicated that Paul wanted to execute his will before undergoing surgery because he knew he was going to be put under anesthesia and it was possible he would "not come out." All of this testimony amply supports the trial court's conclusion that Paul's will was testamentary in nature.
D. Gonzalez Is a Valid Beneficiary of Paul's Will
Lanny asserts Gonzalez is an invalid beneficiary of Paul's will for three interrelated reasons. First, Lanny contends Gonzalez was Paul's "care custodian," which presumptively precluded her from receiving any transfer from Paul. Second, Gonzalez "drafted" Paul's will, so she may not be a beneficiary under any circumstances. Third, Lanny contends Gonzalez became the sole beneficiary of Paul's will through fraud, menace, duress, and undue influence. We reject all three contentions.
1. Gonzalez was not Paul's care custodian
Relying primarily on Bernard v. Foley (2006) 39 Cal.4th 794, 801 (Foley), Lanny asserts the probate court erred by concluding Gonzalez was not Paul's "care custodian," which he claims would have precluded her from being a beneficiary of Paul's will. We disagree.
Foley, supra, 39 Cal.4th 794, involved former section 21350, which provided that a "'care custodian'" could not validly receive a donative transfer. The Foley Court held that preexisting personal friends who provide healthcare services to a decedent could qualify as "'care custodians'" excluded from receiving a donative transfer. (Foley, supra, 39 Cal.4th at p. 797.) The Legislature, however, repealed section 21350 and replaced it with section 21380, effective January 1, 2011. (See Jenkins v. Teegarden (2014) 230 Cal.App.4th 1128, 1136.) Foley therefore does not apply here. (See Beckwith v. Dahl (2012) 205 Cal.App.4th 1039 [holding former section 21350 applies only to wills executed before January 1, 2011].)
Section 21380 creates a presumption that a donative transfer is "presumed to be the product of fraud or undue influence" if the recipient is a "care custodian." (§ 21380, subd. (a)(3).) But section 21362, subdivision (a) provides that the definition of a "care custodian" excludes "a person who provided services without remuneration if the person had a personal relationship with the dependent adult (1) at least 90 days before providing those services, (2) at least six months before the dependent adult's death, and (3) before the dependent adult was admitted to hospice care, if the dependent adult was admitted to hospice care." Anyone who satisfies these criteria may receive a donative transfer from a testator, even if he or she is the testator's "care custodian."
Here, the probate court properly found that Gonzalez satisfied those criteria and, accordingly, was excluded from section 21380's bar on donative transfers. It is undisputed that Gonzalez and Paul had been friends for many years before his death and, though she provided him some services, she always did so for free. Lanny suggests Paul paid her in the form of free rent. Even if that is true, free rent does not constitute "remuneration" under section 21362, subdivision (a). "Remuneration" is "[p]ayment; compensation, esp. for a service that someone has performed," or "[t]he act of paying or compensation." (Black's Law Dictionary (11th ed. 2009).) And even if free rent did constitute remuneration, the trial court properly found that Lanny failed to provide any evidence that suggests Gonzalez received free rent from Paul because she provided him with care giving services. We therefore conclude the probate court did not err in finding that Gonzalez was not a care custodian under section 21362.
2. Gonzalez did not draft Paul's will
Section 21380 creates a "conclusive" presumption that "an instrument making a donative transfer" is "the product of fraud or undue influence" if the recipient of the transfer is "the person who drafted the instrument." (§ 21380, subd. (a)(1)-(2).) Thus, anyone who drafts a will is disqualified from being a beneficiary of it. (Butler v. LeBouef (2016) 248 Cal.App.4th 198, 211.)
Section 21380's conclusive presumption does not apply if the testator prepares a "CERTIFICATE OF INDEPENDENT REVIEW" under section 21384, but Paul did not do so.
Here, Lanny claims Gonzalez "drafted" Paul's will because she altered it after Paul had executed it by adding in language that Paul did not dictate. In support, Lanny proffered a handwriting expert who, according to Lanny, testified that Paul's will was "altered after the fact."
At oral argument, Gonzalez's counsel pointed out that the testimony of Lanny's expert was equivocal. Although he testified that some words that appeared "crowded in among pre-existing written lines," which suggested they were added "later," he could not definitively determine when those words were added. Specifically, Lanny's expert testified that the words could have been added "one second" after the pre-existing lines had been written. Gonzalez is therefore correct there was no evidence Paul's will was altered after he executed it, as Lanny suggests. But even if Lanny's handwriting expert unequivocally testified Paul's will was altered after the fact, Nurse Pule and Gonzalez testified otherwise, and the probate court was entitled to credit their testimony while rejecting that of Lanny's expert. (See In re Marriage of Cipriari (2019) 32 Cal.App.5th 83, 94 [appellate court is "bound by the trial court's credibility determinations"].) Regardless, as the probate court found, "the fact that some language appears to have been squeezed in, does not tell us that anything was forged later on. The best evidence we have, is that the entire will was written at the behest of Paul . . . in the hospital at about 11:00 AM on November 6, 2013, and that . . . Gonzalez just wrote down what he said . . . . This was the testimony of [Gonzalez], and as to this point she was credible." Given Nurse Pule's and Gonzalez's testimony, substantial evidence supports this finding.
Substantial evidence supports the probate court's conclusion that Gonzalez did not add terms to Paul's will after he executed it. Nurse Pule and Gonzalez testified that Gonzalez wrote down Paul's will word-for-word as he dictated it, and both of them testified that his will was complete by the time he signed it. Neither of them testified that Paul's will, as entered into evidence, was different from when Paul executed it on November 6, 2013. The probate court found their testimony on this issue credible, and we may not second-guess that finding, despite Lanny's contradictory evidence. (People v. Babick (2014) 229 Cal.App.4th 1238, 1245 ["We do not review the evidence to see if there is substantial evidence to support the losing party's version of events, but only to see if substantial evidence exists to support the [judgment] in favor of the prevailing party."].)
3. Gonzalez did not procure Paul's will by fraud, duress, menace, or undue influence
The probate court found the rebuttable presumption that Gonzalez procured Paul's will by fraud, menace, duress, or undue influence applied because she was his fiduciary and a witness to his will. (See §§ 6112, 21380, subd. (b).) The probate court found, however, that Gonzalez rebutted the presumption by clear and convincing evidence. The probate court considered the testimony of Gonzalez and Nurse Pule (and other unspecified witnesses) to be "overwhelming with regard to lack of duress, menace, or fraud." The probate court concluded Gonzalez rebutted the presumption of undue influenced based on "two tracks of analysis": (1) Gonzalez and Paul had a long-term friendship and he held "great affection" for her and her children; and (2) Paul reaffirmed "his testamentary intentions repeatedly" and performed legal acts consistent with those intentions. We conclude substantial evidence supports the probate court's conclusion that Gonzalez satisfied her burden of proving by clear and convincing evidence that Paul's will was not the result of her fraud, menace, duress, or undue influence. (Estate of Shinkle (2002) 97 Cal.App.4th 990, 993 [reviewing whether party rebutted presumption for substantial evidence], disapproved on another ground in Foley, supra, 39 Cal.4th at p. 816 fn.14.)
Gonzalez does not dispute the presumption applied.
"'Undue influence' means excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity." (Welf. & Inst. Code § 15610.70; see also Probate Code, § 86 ["'Undue influence' has the same meaning as defined in [s]ection 15610.70 of the Welfare and Institutions Code."].) In the probate context, fraud, duress, and menace generally involve situations where a beneficiary takes advantage of the testator through misleading or coercive means. (See Graham v. Lenzi (1995) 37 Cal.App.4th 248, 256 ["[T]he Legislature was aware that certain individuals are uniquely positioned to procure gifts from elderly persons through fraud, menace, duress or undue influence."].)
Edwin Eckles, who knew Paul for about 10 years before he died, testified that Paul asked him in 2011 to hire Gonzalez's son, Prashanti Gonzalez, to work at Eckles's auto repair shop. Paul "even went as far as to basically offer to pay [Prashanti's] wages." Eckles agreed, and Prashanti worked at the shop for about six to nine months.
During that time, Paul frequently came to the shop to build a car with Prashanti. In fact, Eckles testified that he saw Paul every day when he and Prashanti were building the car, and often saw Gonzalez's other children in Paul's car when he would drop off and pick up Prashanti.
Eckles also testified that Paul had told him that he planned on giving Gonzalez his estate. In Eckles's view, Paul and Prashanti had a "grandfather-grandson type of relationship. As Eckles understood it, Gonzalez and her family were "the only family [Paul] had."
Prashanti testified that he considered Paul to be his "Grandpa." Prashanti's son also called Paul "'Grandpa.'" In addition to building the car together, Paul taught him other various tasks, such as how to remove a car engine, lay cement, and install a coded door lock. Paul used Prashanti's son's birthday as the code to the door to his house. The two of them baked bread together, watched movies, and did "countless things" together.
Rosemary Bowers, the mother of Prashanti's child, Isaiah, testified that Prashanti and their son were "like family" to Paul. Paul took Isaiah to run errands and to places like the airplane museum. The two of them "hung out at the house and bonded." Bowers testified that Prashanti "was extremely devastated when he heard that Paul died."
Cornett, Paul's friend of about 45 years, testified about Paul's relationship with Gonzalez. Paul told Cornett toward the last year of his life that "he was going to change his will" and leave his estate to Gonzalez. According to Cornett, Paul had a family-like relationship with Gonzalez and her children, but never saw Lanny, who Paul "despised."
In addition to this testimony, as the probate court observed, Paul reaffirmed his intentions—to freely and knowingly give Gonzalez his estate—on several occasions. First and foremost, as outlined above, Nurse Pule testified that Paul asked her to be a witness to his will and that Gonzalez transcribed his dictation verbatim. Second, on the same day that he executed his will, Paul gave Gonzalez power of attorney over him and designated Gonzalez as his agent to make healthcare decisions for him. Third, Pacheco testified that Paul told him a few weeks after executing his will that he wanted it "recognized."
In short, Eckles, Prashanti, Cornett, and Bowers consistently testified that Paul had a long-term, substantive relationship with Gonzalez and her family well before he executed his will. Their testimony—coupled with the ample, undisputed evidence of Paul's testamentary intent before, during, and after executing his will—is substantial evidence to support the probate court's finding that Gonzalez did not procure Paul's bequest to her through fraud or undue influence. We therefore conclude the trial court did not err in finding that Gonzalez is a valid beneficiary of Paul's will, admitting it into probate, and appointing Gonzalez as administrator of Paul's estate.
Gonzalez's request for judicial notice filed May 15, 2019, exhibit "K" is denied.
IV.
DISPOSITION
The judgment is affirmed. Gonzalez shall recover her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. RAPHAEL
J.