DOI TODD, J.
The trial court granted petitions filed by petitioner and respondent William Gary Howard (William) to determine the ownership of estate property and overruled the objections of objector and appellant Lawrence A. Howard. Following a bench trial, the trial court ruled that a bank account was an asset of a trust formed in 2002 by Marjorie Fae Howard (Marjorie), as the evidence showed she had intended to and effectively did transfer the account from a prior trust formed ten years earlier. Appellant contends that the petitions were untimely and improperly filed, the trial court abused its discretion in admitting certain evidence and substantial evidence did not support the orders. We affirm.
At the time of Marjorie Fae Howard's death, she had three children—appellant Lawrence, respondent William
By 2002, Marjorie had become concerned that appellant was trying to take control of her assets. In particular, she was concerned about property in Idaho she and appellant had purchased and about appellant dealing directly with a broker on her investment account and giving him instructions that were contrary to her wishes.
On November 14, 2002, Marjorie established the Howard Living Trust (Trust), which named William as the first successor trustee and his wife, Stephanie Howard, as the second successor trustee. The Trust provided for an initial distribution of $125,000 each to William and Joe before the balance of the assets were divided equally among Marjorie's three children. Schedule A to the Trust listed two parcels of real property and "Wells Fargo Investments, Account No. w43627296" (Wells Fargo Account). The purpose of that schedule was to identify the Trust assets and document the transfer of those assets to the Trust. Marjorie intended that no assets remain in the 1992 Trust. Simultaneously she executed a will, naming the Trust as the pour-over beneficiary.
Also on November 14, 2002, Marjorie signed a letter addressed to Robert Iglehart at Wells Fargo that expressed her desire to transfer the Wells Fargo Account into the newly-established Trust. Appellant identified the signature on the letter as Marjorie's. Hiskey retained the letter and indicated that he would forward it to the bank. His practice would have been to enclose certification of the Trust and send the letter directly to the bank. But when Wells Fargo produced documents relating to the Wells Fargo Account several years later, the letter was not among them. During the 1990's Marjorie received statements from Wells Fargo that showed the account's ownership remained the 1992 Trust.
By 2004, appellant and Marjorie were no longer speaking to one another and she expressed a desire to completely cut him out of her estate. She met with Hiskey to amend the Trust (2005 Amendment). She expressed more vehement concerns about appellant, telling Hiskey that appellant had blocked her e-mails and would not return her calls, and that she feared he would try to put her in a nursing home. The 2005 Amendment to the Trust expressly excluded appellant and his descendants from the distribution of Trust assets and, instead, provided for a single distribution of $100,000 to him. Schedule A to the 2005 Amendment identified the same assets as Schedule A to the Trust. However, in August 2004, Marjorie had transferred the Wells Fargo Account to WM Financial Services, account number N16-580821 (N16 Account). At the time of the transfer, title to the Wells Fargo Account remained as part of the 1992 Trust. Correspondingly, the N16 Account was titled in the name of the 1992 Trust, because the transfer between institutions did not effect any change in ownership. Documents in WM Financial's files, including tax returns, reflected the 1992 Trust ownership. Nonetheless, Marjorie believed that the N16 Account was titled as part of the Trust.
Marjorie died in December 2005. Appellant did not attend her funeral, though he asserted that he would have if he had learned of her death in a more timely manner. Nor has he spoken with or attempted to contact either William or Joe since Marjorie's death. Although at the time of Marjorie's death appellant believed he had been named as the successor trustee under the 1992 Trust, he did nothing to determine or effectuate his role as a trustee.
Sometime in early 2006, during the process of administering Marjorie's estate, William learned that the N16 Account was titled in the name of the 1992 Trust. William tried unsuccessfully to resolve the title issue directly with WM Financial. In mid-2006, William hired an investigator to locate appellant to inform him of his $100,000 distribution under the Trust. After locating appellant, in October 2006, William provided him with information about the Trust, including the distribution that would come from the N16 Account. Although appellant initially agreed to the distribution, he later disputed the amount, claiming that he was entitled to one-third of the N16 Account under the terms of the 1992 Trust. In June 2007, appellant attempted to use the 1992 Trust as a means to re-register the N16 Account in his name. Appellant claimed he was unaware of the Trust's existence until sometime in 2007.
In February 2008, pursuant to Estate of Heggstad (1993) 16 Cal.App.4th 943, William filed a petition to re-title assets into the Trust (Heggstad petition). He outlined the chronology of events to support his allegation that Marjorie had intended for the Wells Fargo Account, and hence the N16 Account, to be in the Trust. Appellant opposed the Heggstad petition. Following a hearing, in May 2008 the trial court denied the petition without prejudice and directed William to open a probate proceeding.
In compliance with the trial court's directive, in July 2008 William filed a petition for probate of will and for letters testamentary, and for authorization to administer under the Independent Administration of Estates Act. Appellant opposed the probate petition, arguing that William was forum shopping and that the petition was moot. The trial court subsequently issued letters testamentary and an order appointing William as executor of Marjorie's estate.
In the probate case, William filed a petition to determine ownership of estate property, seeking an order re-titling the N16 Account as part of the Trust. He also filed a subsequent petition to determine ownership of estate property in the still-pending Heggstad petition matter. Appellant opposed both petitions, and moved for judgment on the pleadings in the Heggstad petition case on the ground the later petition was untimely. The trial court denied the motion.
On March 25, 2010, the trial court commenced a single trial on both petitions. William, appellant, Mary Jayne, and attorneys Hiskey and Richard Davis testified.
At the conclusion of trial, the court issued two, virtually identical statements of decision finding that clear and convincing evidence showed Marjorie had intended the N16 account to be an asset of the Trust. The court entered orders determining ownership of estate property which granted the petitions and directed that the N16 Account be administered according to the terms of the Trust.
Appellant appealed both orders.
Appellant challenges the trial court's orders on several grounds. He argues that the filing of separate petitions was improper and that, applying a three-year limitations period, both petitions were time-barred. He further claims that the trial court abused its discretion in admitting into evidence the November 2002 letter to Wells Fargo, testimony about Marjorie's intent and Hiskey's testimony about the effect of listing the Wells Fargo Account on Schedule A to the Trust. Finally, he contends that substantial evidence did not support the orders. We find no merit to any of appellant's contentions.
William initiated these proceedings by filing a Heggstad petition, which is a procedural device to obtain a determination that property held by the decedent is actually trust property. (See Prob. Code, § 850, subd. (a)(3); Estate of Heggstad, supra, 16 Cal.App.4th at pp. 947, 950.) By way of the petition, he expressly sought an order re-titling the N16 Account to be part of the Trust, as it was an asset "effectively declared by decedent to be held in trust but not formally re-titled into the trust." The trial court denied the petition without prejudice and specifically directed "[p]etitioner to file a probate proceeding." Accordingly, William filed a probate petition to administer Marjorie's estate. As part of that proceeding, he filed a separate petition seeking to re-title the N16 Account in the name of the Trust. Ultimately, the trial court concluded that "the matters are essentially identical. They are identical petitions requesting the same relief." For that reason, the trial court adjudicated the matters simultaneously in a single trial.
Appellant now contends that the initial denial of the Heggstad petition was somehow a determination that the N16 Account was an asset of the 1992 Trust, and that therefore William was precluded from filing the probate action because trust assets are not subject to probate. (See Estate of Heigho (1960) 186 Cal.App.2d 360, 364-365.) Beyond misstating the applicable procedural history, appellant's argument—raised for the first time on appeal—is contrary to the law. The trial court's denial of William's Heggstad petition without prejudice was not a determination of the merits of the petition. (See Estate of Keuthan (1968) 268 Cal.App.2d 177, 180 [holding non-appealable an order denying of petition for distribution without prejudice, as "[t]he words `without prejudice' eliminate any binding effect that the order appealed from might have"].) Rather, it was an acknowledgement that the ownership of the account was in dispute. As the trial court explained, if the N16 Account was determined not to be an asset of either the 1992 Trust or the Trust, then it would have become a part of Marjorie's estate subject to probate. There is no basis to infer anything from the denial of the Heggstad petition without prejudice beyond the trial court's decision to exercise caution in resolving the account's ownership.
Nor do we find any basis to conclude that either petition was time-barred. Generally, an action brought pursuant to Probate Code section 850
Even accepting the February 2006 accrual date, we conclude that both petitions were timely. (See International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611-612 [where the facts are undisputed, whether the statute of limitations bars a claim is an issue of law reviewed de novo].) Preliminarily, we note that the actions within which each petition was filed were brought within any applicable limitations period. The Heggstad petition was filed in February 2008 and the probate proceeding was filed in July 2008. In any event, the later-filed petitions did not seek the recovery of personal property. Rather, they both sought an order re-titling the N16 Account as an asset of the Trust—essentially a claim for declaratory relief. (See generally Yost v. Hillcrest Motor Co. (1963) 215 Cal.App.2d 108, 109 [declaratory relief action to determine title to automobile].) We recognize that, typically, the limitations period for a declaratory relief claim mirrors that of the underlying claim. (United Pacific-Reliance Ins. Co. v. DiDomenico (1985) 173 Cal.App.3d 673, 676-677.) Here, however, where the underlying claim is brought under Probate Code section 850—a statute which likewise borrows the limitations period of the underlying claim—the application of that principle becomes circular. Thus, we resort to the catch-all provision in Code of Civil Procedure section 343, which provides that "[a]n action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued." Under this provision, the petitions were timely, having been filed before February 2010, four years after the February 2006 accrual date urged by appellant.
Appellant next contends that the November 2002 letter to Wells Fargo, William's testimony about Marjorie's intent and Hiskey's opinion testimony should not have been admitted. We review any ruling by the trial court as to the admissibility of evidence for an abuse of discretion. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1078.) In order for the trial court to abuse its discretion, its decision must exceed the bounds of reason by being arbitrary, capricious, or patently absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Moreover, even where a trial court improperly excludes evidence, the error does not require reversal of the judgment unless the error resulted in a miscarriage of justice, meaning it is reasonably probable a more favorable result would have been reached absent the error. (Cal. Const., art. VI, § 13; Evid. Code, § 353; Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432.) "`The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) Appellant has not met his burden.
Over objection, the trial court admitted into evidence the November 14, 2002 letter from Marjorie to Iglehart at Wells Fargo requesting that the Wells Fargo Account be transferred into the Trust. On appeal, appellant renews the two primary objections he made to the admission of the letter below.
First, he asserts that it was not properly authenticated. "`Authentication of a writing is required before it may be received in evidence.' (Evid. Code, § 1401, subd. (a).) `Authentication' means `(a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.' (Evid. Code, § 1400.)" (People v. Smith (2009) 179 Cal.App.4th 986, 1001.) "`Circumstantial evidence, content and location are all valid means of authentication . . . .' [Citation.]" (Ibid.) Here, Hiskey testified that he recognized the letter as something his office prepared in order to instruct Wells Fargo to change the title on the account to reflect the Trust's ownership. He further testified that it would have been his practice to have Marjorie sign the letter in his office, together with the Trust, and that he had no reason to believe he deviated from that practice. Indeed, appellant, himself, identified the signature on the letter as Marjorie's. This evidence sufficiently authenticated the letter, as it showed Marjorie signed the letter when she met with Hiskey and the letter's content was consistent with the Trust.
Second, appellant contends that the letter was not relevant because there was no evidence to show that Wells Fargo ever received it. Hiskey testified that his office's practice was to take responsibility for mailing instruction letters and he had no reason to believe his office acted any differently in this matter. Nonetheless, the evidence also showed no indication that Wells Fargo ever received the letter, as the title to the Wells Fargo Account was not changed and the letter was not included in the documents Wells Fargo produced during litigation.
While appellant claims the lack of evidence showing receipt is fatal to the letter's utility, the trial court ruled that whether the letter was mailed or received was not determinative. It concluded that the letter, regardless of whether it was mailed or received by Wells Fargo, was sufficient to transfer the Wells Fargo Account out of the 1992 Trust. According to Section 1.0 of the 1992 Trust, the trustor (Marjorie) retained the power to withdraw a portion of the trust at any time, so long as the notice of withdrawal was contained in a written document other than a will received by the trustee (again, Marjorie). The 1992 Trust required the trustee to comply with any writing as soon as reasonably possible. The trial court reasoned that "[b]y the terms of the letter, the decedent as the sole settler and trustee was attempting to comply with the withdrawal, by requesting a transfer into the new 2002 trust." In view of the letter's relevance under the terms of the 1992 Trust, we find no basis to disturb the trial court's exercise of discretion in admitting the letter into evidence.
In any event, even if we were to conclude that the letter should not have been admitted, appellant has failed to demonstrate how he was prejudiced by the error. As explained in In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337: "`The burden is on the appellant in every case to show that the claimed error is prejudicial; i.e., that it has resulted in a miscarriage of justice.' [Citation.] Injury is not presumed from error, but injury must appear affirmatively upon the court's examination of the entire record. `But our duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a "miscarriage of justice."' [Citation.]" Beyond characterizing the error as prejudicial, appellant has not directed us to anything in the record to support a finding of prejudice. Indeed, the statements of decision indicate that the trial court considered and weighed all the documentary and testimonial evidence to conclude that the N16 Account should be re-titled under the Trust. Admission of the November 2002 letter affords no basis for reversal.
Without identifying any specific testimony, appellant contends that the trial court abused its discretion by permitting William to testify about Marjorie's intent. During trial, William testified about Marjorie's desire to create a new trust because she was concerned that appellant was trying to take control of her assets, her concern about appellant dealing directly with Iglehart at Wells Fargo, her intent to assure that appellant had no control over her assets and her desire to remove appellant's participation from her estate distribution at the time of the 2005 Amendment. The trial court overruled several hearsay objections to the testimony on the ground the testimony was offered to show the declarant's state of mind.
According to Evidence Code section 1250, subdivision (a), "evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant." Thus, "`[w]hen intent is a material element of a disputed fact, declarations of a decedent made after as well as before an alleged act that indicate the intent with which he performed the act are admissible in evidence as an exception to the hearsay rule, . . .'" (Estate of Truckenmiller (1979) 97 Cal.App.3d 326, 332.) Here, William's testimony about Marjorie's relationship with appellant and her desire to limit his access to her assets was offered to show her state of mind and explain her actions in creating the Trust. (Id. at p. 333 [decedent's statement that he had been "`tricked'" should have been admitted to show his state of mind].) The testimony was not offered for the truth of the matter that appellant was attempting to take control of Marjorie's assets or dealing improperly with Iglehart.
In any event, appellant has again failed to show how any error would been prejudicial. In concluding that Marjorie intended the N16 Account to be an asset of the Trust, the trial court did not rely on any evidence of appellant's behavior or Marjorie's concerns about his actions. Thus, it is not reasonably probable that appellant would have received a more favorable result if the evidence of Marjorie's state of mind had been excluded.
Appellant challenges the trial court's admission of Hiskey's testimony about the effect of listing the N16 Account on Schedule A to the Trust. Hiskey testified that the purpose of identifying assets in the attached schedule was twofold: First, the primary purpose was to "effect the transfer of those properties so that there's documentation apart from any subsequent changing of title or registration that might take place," and second, "to provide hopefully a convenient place to start for a successor trustee in terms of identifying assets." Hiskey elaborated on the first purpose, explaining that by "effect the transfer" he meant "to transfer the ownership of that particular asset to that individual as trustee of the trust." He testified it was his understanding that at the moment the Schedule A properties were identified, they became part of the Trust.
The trial court overruled appellant's objections that Hiskey's testimony was inadmissible opinion testimony on a question of law. We find no abuse of discretion. Appellant renews his argument that Hiskey's testimony concerning the effect of Schedule A embraced the ultimate issue to be determined by the trial court. (See Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178 ["There are limits to expert testimony, not the least of which is the prohibition against admission of an expert's opinion on a question of law"]; Downer v. Bramet (1984) 152 Cal.App.3d 837, 841 ["`The manner in which the law should apply to particular facts is a legal question and is not subject to expert opinion'"].) Preliminarily, we note that the authorities on which appellant relies are inapposite, as Hiskey did not testify as an expert witness. Rather, he gave a percipient account of his representation of Marjorie in connection with his preparation of the Trust and the 2005 Amendment.
In any event, Hiskey's testimony did not address a question of law. Hiskey testified as to his and Marjorie's intent in listing assets on Schedule A to the Trust, as well as to his understanding of the effect of that identification. But he could not testify as to whether those actions were adequate to effect a change in ownership, as he did not know in 2002 whether the Wells Fargo Account was held in the name of the 1992 Trust or Marjorie personally. Thus, he could not testify as to whether his and Marjorie's actions were sufficient to transfer the former Wells Fargo Account from the 1992 Trust. Hiskey's testimony, like William's, concerned Marjorie's state of mind and did not amount to a prohibited opinion on a question of law.
Nor has appellant attempted to show how any erroneous admission of Hiskey's testimony was prejudicial. In its statements of decision, the trial court did not rely on Hiskey's testimony regarding the effect of identifying the Wells Fargo Account on Schedule A. Instead, the trial court relied on the entire sequence of events showing Marjorie's consistent intent to include the Wells Fargo Account as an asset of the Trust.
Appellant's last contention is that the orders were not supported by substantial evidence. "In resolving the issue of the sufficiency of the evidence, we are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party [citations] and in support of the judgment [citation]. All issues of credibility are likewise within the province of the trier of fact. [Citation.] `In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing.' [Citation.] All conflicts, therefore, must be resolved in favor of the respondent." (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926.) "Moreover, when the trial court's findings are set forth in a statement of decision, `any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.' [Citations.]" (TME Enterprises, Inc. v. Norwest Corp. (2004) 124 Cal.App.4th 1021, 1030.) "When the trial court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. [Citation.] The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the order. [Citations.]" (In re Cole C. (2009) 174 Cal.App.4th 900, 916.)
In the statements of decision, the trial court identified the sole issue to be determined as whether the N16 Account was an asset of the 1992 Trust or the Trust, as amended by the 2005 Amendment. In resolving that issue, the trial court concluded that the evidence showed that legal title to both the Wells Fargo Account and the N16 Account was in the name of the 1992 Trust. It further relied on Davis's testimony to conclude that the accounts were one in the same, and that the transfer of the account from Wells Fargo to WM Financial did not effect any change in ownership. Examining the terms of the 1992 Trust, which permitted the trustor to withdraw any portion of the trust at any time in a writing other than a will, the trial court concluded that the November 2002 letter was sufficient to effect a withdrawal of the account from the 1992 Trust, regardless of whether Wells Fargo received the letter.
Rejecting appellant's claim that the N16 Account necessarily remained in the name of the 1992 Trust because Schedule A to the 2005 Amendment listed only the Wells Fargo Account, the trial court relied on the holding in Estate of Heggstad, supra, 16 Cal.App.4th at page 950 that a written declaration of trust by the owner of property, in which owner names herself trustee, is sufficient to create a trust in that property without the necessity of a separate change in title. The court found that the 2005 Amendment plainly stated Marjorie's intent to hold the Wells Fargo Account as part of the Trust. Given evidence the Wells Fargo Account and the N16 Account were one in the same, the trial court ruled that the declarations of trust for both the Trust and the 2005 Amendment were sufficient to establish that the N16 Account was part of the Trust as amended. The statements of decision provided: "The court is convinced by clear and convincing evidence that the settlor, who was the sole settlor and trustee of this 2002 revocable trust and by the 2005 amendment included the WM Financial Services Account as a part of this 2002 trust as amended."
Finally, the trial court relied on evidence establishing Marjorie's intent in revising her estate plan. According to that evidence, Marjorie desired to create a new trust when she executed the Trust in 2002, she expressly listed the Wells Fargo Account on Schedule A to the Trust, she signed a letter in which she directed that the Wells Fargo Account be transferred to the Trust, and the subsequent transfer of the account between institutions was not intended to reflect any change in ownership. The trial court concluded that the totality of the evidence constituted clear and convincing evidence to rebut the presumption provided by Evidence Code section 662 that the owner of legal title to property of the owner of full beneficial title. Accordingly, the trial court ordered that the N16 Account was an asset of the Trust to be administered by William as trustee and that it was not subject to administration in probate.
In arguing that substantial evidence did not support the trial court's orders, appellant relies exclusively on evidence favorable to his position. He points to evidence that the Wells Fargo Account and the N16 Account were titled under the 1992 Trust; that Marjorie would have received monthly statements reflecting that title, even after the creation of the Trust; and that the N16 Account was formed after the Trust was established. When an appellant challenges a finding on the basis of insufficient evidence, he is required to set forth in the opening brief all the material evidence on that issue or finding and not merely evidence favorable to his position. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) An appellant must state fully, with citations to the record, the evidence claimed to be insufficient to support the trial court's findings. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887.) Furthermore, "[a] party who challenges the sufficiency of the evidence to support a finding must set forth, discuss, and analyze all the evidence on that point, both favorable and unfavorable." (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218; accord, Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409-410 ["An appellate court will consider the sufficiency of the evidence to support a given finding only after a party tenders such an issue together with a fair summary of the evidence bearing on the challenged finding, particularly including evidence that arguably supports it," italics omitted].) If the appellant fails to do so, the reviewing court may deem the substantial evidence contention waived. (Foreman & Clark Corp. v. Fallon, supra, at p. 881.) Appellant's inadequate and one-sided presentation of the evidence warrants the conclusion that he has waived any claim concerning the sufficiency of the evidence.
But even were we to find no waiver, we would conclude that substantial evidence supported the orders. The trial court expressly considered evidence relied on by appellant that the Wells Fargo Account and, subsequently, the N16 Account remained titled under the 1992 Trust, even at the time of the 2005 Amendment. It concluded, however, that other evidence compelled the finding that the N16 Account should be held by the Trust. More specifically, it considered William's and Hiskey's testimony that in 2002 Marjorie intended to create a different estate plan than what was provided for in the 1992 Trust; documentary evidence including the Trust and the November 2002 letter reflecting Marjorie's intent that the Wells Fargo Account be held by the Trust; the terms of the 1992 Trust showing that Marjorie had the authority to withdraw assets of that trust at any time, in writing; Davis's testimony that the transfer of the Wells Fargo Account to WM Financial did not change the ownership of the account; and Hiskey's testimony and the 2005 Amendment reaffirming Marjorie's intent that the Wells Fargo Account be held by the Trust and administered by William as trustee. Substantial evidence supported the trial court's determination that the N16 Account was an asset of the Trust.
The orders are affirmed. William is entitled to his costs on appeal.
BOREN, P. J. and ASHMANN-GERST, J., concurs.
