Opinion
No. 1819
12-28-2020
LAURA BERTRAM v. SHAWN YUTHSAKDIDECHO
Circuit Court for Anne Arundel County
Case No. C-02-FM-19-000207
UNREPORTED
Fader, C.J., Arthur, Gould, JJ. Opinion by Fader, C.J. *This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
The Circuit Court for Anne Arundel County found Laura Bertram, the appellant, in contempt for failure to comply with a subpoena for her deposition and the production of records. The court ordered Ms. Bertram to produce the requested discovery and pay attorneys' fees incurred by Shawn Yuthsakdidecho, the appellee, in connection with his attempts to obtain the discovery. On appeal, Ms. Bertram argues that the court: (1) abused its discretion in denying her requests for a postponement of the contempt hearing so that she could have counsel present; and (2) erred in proceeding with the contempt hearing when her counsel was not present. Finding no error or abuse of discretion, we will affirm.
BACKGROUND
Factual Background
Mr. Yuthsakdidecho and Brandi Smith are parties to a contentious child custody and support case that began in January 2019. Ms. Bertram owns one or more businesses that employ or have employed Ms. Smith. Ms. Bertram is also Ms. Smith's mother and, at the time of the contempt hearing, lived with Ms. Smith.
All events relevant to this appeal occurred in 2019. Accordingly, we will omit the year throughout the remainder of the opinion.
Mr. Yuthsakdidecho unsuccessfully attempted to obtain financial information from Ms. Smith to use in litigating the proper amount of child support. He eventually issued subpoenas seeking such information from several third parties, including Ms. Bertram. On May 16, Mr. Yuthsakdidecho's counsel personally served Ms. Bertram with three subpoenas, one in her individual capacity and the others on behalf of two businesses. Each subpoena stated that Ms. Bertram was "compelled to appear at a . . . deposition" at Mr. Yuthsakdidecho's counsel's office on June 17. Each also required Ms. Bertram to produce "any and all documentation regarding Brandi Smith AKA Brandi Bertram including cancelled checks, tax forms, any other benefits or communication . . . fringe benefits, use of credit cards. Any and all employment records of anyone named 'Arnold' involved, employe[]d or related to your business." The subpoenas further stated that if Ms. Bertram were to "provide[] a complete file to the office 10 days in advance, [she would be] excused from appearance" at the deposition.
Ms. Bertram filed no objection to the subpoena pursuant to Rule 2-510(f) and neither produced any documents in advance nor appeared for the deposition. On July 16, at Mr. Yuthsakdidecho's request, the court issued an order compelling Ms. Bertram to produce the requested records by the end of that month. In response, Ms. Bertram produced only a two-page list identifying dates and amounts of checks issued to Ms. Smith from January 4, 2018 through July 25, 2019, with no underlying support or additional documentation.
Unsatisfied with that response, on August 1, Mr. Yuthsakdidecho filed a second motion to compel that included a petition seeking an order to show cause why Ms. Bertram should not be held in contempt (the "Petition"). Mr. Yuthsakdidecho requested, among other things, that the court: (1) compel Ms. Bertram to produce the documents requested in all three subpoenas; (2) order Ms. Bertram to show cause why she should not be held in contempt for failing to produce documents and appear for deposition; (3) hold a contempt hearing; (4) extend the discovery deadline; (5) award him attorneys' fees and costs; (6) enter a default judgment or alternative sanctions against Ms. Smith; (7) find that Ms. Bertram "intentionally concealed or destroyed evidence"; and (8) permit service to be made on Ms. Smith's counsel. The Petition did not mention incarceration, but Mr. Yuthsakdidecho included with it a form of notice pursuant to Rule 15-206(c)(2)(C), which the Rule requires only when incarceration is sought.
The court issued an order to show cause, which required Ms. Bertram to appear at a contempt hearing set for September 24. Ms. Bertram did not appear on that date, but the court determined that Mr. Yuthsakdidecho had improperly served the order on Ms. Smith's counsel and not on Ms. Bertram. The court therefore directed that the show cause order be reissued and served personally on Ms. Bertram, and reset the hearing date for October 23. The reissued show cause order directed Ms. Bertram to appear at the hearing "to show cause, if any, why [Mr. Yuthsakdidecho] should not be granted the relief requested in the Petition[.]" The form order also provided, in bold lettering: "NOTICE: If jail time is requested in the Petition, read the Notice attached to this Show Cause Order." The accompanying notice, which will be discussed below in more detail, contained the same language as that required by Rule 15-206(c)(2)(C) when incarceration is sought.
The Civil Contempt Hearing
Mr. Yuthsakdidecho served Ms. Bertram with the show cause order and the Petition on October 9. Two days later, counsel entered an appearance on behalf of Ms. Bertram. On October 18, Ms. Bertram filed a motion to postpone on the ground that her counsel was unavailable on the date of the hearing. In a supplement to her motion, she asked that the hearing be postponed until November 15, when both counsel and the court would be available. Mr. Yuthsakdidecho opposed the motion, which the court denied the day before the hearing. That night, at 10:17 p.m., Ms. Bertram filed a renewed motion to postpone in which she contended that she had a right to counsel at the hearing and that denial of her motion would violate that right.
Ms. Bertram attended the October 23 civil contempt hearing without counsel. At the outset, she again requested a postponement so that her lawyer could attend. The court paused the hearing to allow Ms. Bertram to seek a continuance from the postponement judge, who again denied the request. In explaining her ruling, the judge stated that Ms. Bertram had retained counsel with "knowledge of th[e] conflict" between her schedule and the hearing date and that there had already been a series of delays in the case.
When the contempt hearing resumed, Mr. Yuthsakdidecho's counsel and the court questioned Ms. Bertram extensively regarding her failure to appear for her scheduled deposition and her failure to produce subpoenaed documents. Ms. Bertram provided non-responsive or seemingly evasive answers to many of the questions, testified that she had not understood the subpoenas, and stated multiple times throughout the proceeding that she wanted to have her lawyer present. The court expressed frustration with Ms. Bertram's "run-around answer[s]" to questions about the income and benefits Ms. Bertram had provided her daughter and told Ms. Bertram that it believed she was "playing games." That led to the following exchange:
THE COURT: Look, your daughter is in a lot of trouble when it comes to whatever their circumstances are. Okay? You don't need to be in that same trouble.
[MS. BERTRAM]: I don't want to be in it, Your Honor.
THE COURT: Then start answering the questions straightforward without worrying about whether you - if you tell me the truth whether it's going to hurt your daughter's custody case or her civil case or her criminal case or whatever other cases she has in the courtroom.
[MS. BERTRAM]: This is why I want a lawyer, Your Honor. Because I don't -
THE COURT: Okay. The questions are simple. Does your daughter have credit cards that belong to you or any of your companies that she uses for her expenses? If the answer to that is yes - and I know the answer is yes that there is one and possibly two cards - you must provide them to your lawyer who is going to be told that she has 20 days to turn all of this information over to the attorney representing the defendant in this case.
[MS. BERTRAM]: Yes, ma'am.
THE COURT: Because if you don't I'm going to find that you are violating my direct orders -
[MS. BERTRAM]: Yes, ma'am.
THE COURT: - and I am going to hold you in contempt. And I may find that you're doing it intentionally. And I have the authority to put you in jail until you comply.
[MS. BERTRAM]: Yes, ma'am.
THE COURT: Do you understand that?
[MS. BERTRAM]: Yes, ma'am.
At the conclusion of the hearing, the court found Ms. Bertram in contempt, which the court stated she could purge by "making sure that her attorney gets all of the documentation that has been requested; and appearing at the deposition when scheduled to do so." The court did not impose any sanction to compel compliance with the order, but did enter an award of attorneys' fees incurred by Mr. Yuthsakdidecho "related to the issue of the motions to compel and show cause orders relating to Ms. Bertram[.]" In a subsequent written order, the court restated its findings and conclusions, awarded attorneys' fees of $4,145 to Mr. Yuthsakdidecho, and specified the materials it was ordering Ms. Bertram to produce.
Ms. Bertram filed this timely appeal.
Efforts to enforce the contempt order in the circuit court have apparently been stayed pending the outcome of this appeal. In light of the apparent relevance of the records to the calculation of child support, it is not apparent to this Court why the stay issued. Absent a stay, a trial court is not deprived of jurisdiction to enforce its orders while they are on appeal. See Kent Island, LLC v. DiNapoli, 430 Md. 348, 360-61 (2013) ("[I]n the absence of a stay, . . . a trial court may continue ordinarily to entertain proceedings during the pendency of an appeal, so long as the court does not exercise its jurisdiction in a manner affecting the subject matter or justiciability of the appeal.").
DISCUSSION
A trial court "may continue or postpone a trial or other proceeding as justice may require." Md. Rule 2-508. We "review[ ] for abuse of discretion a trial court's ruling on a motion to postpone." Howard v. State, 440 Md. 427, 441 (2014); Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006) ("[T]he decision to grant a continuance lies within the sound discretion of the trial judge" and will not be disturbed absent an abuse of discretion.). A court abuses its discretion when its decision is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Jenkins v. City of College Park, 379 Md. 142, 165 (2003).
A trial court's ruling on the right to counsel is a question of law that we review without deference. State v. Graves, 447 Md. 230, 240 (2016) (state and federal constitutional issues "are appropriately classified as questions of law," which we review "de novo to determine if the trial court was legally correct[.]" (quoting Davis v. Slater, 383 Md. 599, 604 (2004))).
THE CIRCUIT COURT DID NOT ABUSE ITS DISCRETION IN DENYING MS. BERTRAM'S REQUESTS FOR A POSTPONEMENT, AND DENYING THOSE REQUESTS DID NOT VIOLATE HER RIGHT TO COUNSEL.
Ms. Bertram's central contention is that the circuit court abused its discretion in denying her requests for a postponement because forcing her to proceed at the hearing without her lawyer violated her right to counsel. We hold that the court neither abused its discretion in denying her a postponement nor erred in proceeding with the hearing without her counsel present. We reach the second of these conclusions both because Ms. Bertram did not have a right to counsel in connection with the contempt proceedings and because, even if she had such a right, she was not denied it.
Setting aside for a moment Ms. Bertram's contention that the court was required to postpone the contempt proceeding to accommodate her right to counsel, we find no hint of an abuse of discretion in the court's denial of her motions for postponement. Among the factors that lead us to that conclusion are:
• The Petition was filed in an attempt to obtain financial information that Ms. Smith had apparently refused to provide for months and that was allegedly necessary to determine the appropriate amount of child support.
• In the Petition, Mr. Yuthsakdidecho alleged that in addition to the delays from Ms. Smith's discovery failures, Ms. Bertram had already failed to provide properly subpoenaed records, failed to appear for a properly noticed deposition, and failed to respond appropriately to an order to compel.
• The matter had been further delayed because Ms. Bertram had not appeared for the originally scheduled contempt hearing in September. Although Mr. Yuthsakdidecho had improperly attempted to serve her through Ms. Smith's
counsel, no one identified a problem until Ms. Smith, her counsel, Mr. Yuthsakdidecho, and his counsel all showed up at the hearing.
• Ms. Bertram: (1) was Ms. Smith's mother, employer, and housemate, not an uninterested third-party; and (2) apparently had failed to retain counsel in connection with the matter even though the subpoenas were issued in May, her deposition was scheduled for June, and the court had issued the order to compel in July.
The September hearing was not set exclusively to address the contempt issue, and the court apparently heard argument regarding other pending matters.
In short, the court did not abuse its discretion in determining that additional delay was unwarranted under the circumstances.
A. Ms. Bertram Did Not Have the Right to Counsel at the Civil Contempt Hearing.
We now turn to Ms. Bertram's primary contention on appeal, which is that the court was obligated to grant her requests for postponement to accommodate her lawyer's schedule, either as a matter of law or because not doing so constituted an abuse of discretion. Ms. Bertram grounds her alleged right to counsel in both the federal and State constitutions and in the notice that accompanied the court's show cause order. Mr. Yuthsakdidecho responds that Ms. Bertram had no right to counsel because she "was not actually sentenced to incarceration" during the contempt proceeding. We agree with Mr. Yuthsakdidecho that Ms. Bertram did not have a right to counsel in connection with the contempt proceedings. Moreover, as we explain in Part B, even if she had such a right, the court did not violate it.
"[A] civil contempt proceeding is intended to preserve and enforce the rights of private parties to an action and to compel obedience to orders and judgments[.]" Arrington v. Dep't of Human Res., 402 Md. 79, 93 (2007). Unlike criminal contempt proceedings, which are "punitive in nature," civil contempt proceedings are "remedial, . . . intended to coerce future compliance[.]" Id.; see also State v. Roll, 267 Md. 714, 728-30 (1973) (distinguishing civil contempt, in which "the sanction is coercive and must allow for purging," and criminal contempt, which penalizes "past misconduct which may not necessarily be capable of remedy").
In Roll, the Court of Appeals also distinguished "direct contempt" from "constructive contempt." See 267 Md. at 727-34. Direct contempt occurs when the contemnor, in the presence of the court, "interrupt[s] the order of the courtroom and interfere[s] with the conduct of business." Id. at 734. "[D]irect contempts may be summarily punished," id. at 732, because the court has "personal knowledge of the facts," id. at 734. Conversely, constructive contempt occurs when the alleged contemptuous conduct "was not committed in the presence of the court," id. at 731, and requires the presentation of evidence to prove that the conduct occurred, id. at 734.
One coercive mechanism that is available when a court has found a party in contempt is incarceration. See Md. Rule 15-206. When incarceration is at stake in a contempt proceeding, the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights guarantee a right to counsel. Rutherford v. Rutherford, 296 Md. 347, 357-63 (1983). Thus, in Rutherford, the Court of Appeals held that "an indigent defendant in a civil contempt proceeding cannot be sentenced to actual incarceration unless counsel has been appointed to represent him or he has waived the right to counsel." Id. at 363. But the right attaches only when the alleged contemnor faces the actual possibility of incarceration. Id. at 358, 363; see also Arrington, 402 Md. at 100 ("If incarceration to compel compliance with [a court] order is sought, . . . the defendant is entitled to counsel and must be notified of that right."); Zetty v. Piatt, 365 Md. 141, 156 (2001) ("[D]ue process requires the appointment of counsel for indigents in civil contempt proceedings if they are sentenced to imprisonment"); Jones v. State, 351 Md. 264, 273-74 (1998) (holding that "the right to be represented by counsel" in a civil contempt proceeding applies only "if incarceration is sought"); Redmond v. Redmond, 123 Md. App. 405, 415 (1998) ("[A] civil contempt proceeding where there is a possibility of incarceration cannot be prosecuted unless the defendant has been afforded a lawyer."). Where incarceration is not on the table, there is no right to counsel in a civil contempt proceeding. Cf. Jones, 351 Md. at 273-74.
Rule 15-206 governs constructive civil contempt proceedings. Rule 15-206(c)(1) requires that an order or petition that initiates a contempt proceeding must "expressly state" whether incarceration is sought. If so, then Rule 15-206(c)(2)(C) requires the provision of a notice to the alleged contemnor that in relevant part states:
TO THE PERSON ALLEGED TO BE IN CONTEMPT OF COURT:
1. It is alleged that you have disobeyed a court order, are in contempt of court, and should go to jail until you obey the court's order.
2. You have the right to have a lawyer. If you already have a lawyer, you should consult the lawyer at once. If you do not have a lawyer, please note:
(a) A lawyer can be helpful to you by:
(1) explaining the allegations against you;
(2) helping you determine and present any defense to those allegations;
(3) explaining to you the possible outcomes; and
(4) helping you at the hearing.
(b) Even if you do not plan to contest that you are in contempt of court, a lawyer can be helpful.
(c) If you want a lawyer but do not have the money to hire one, the Public Defender may provide a lawyer for you.
. . . .
(e) DO NOT WAIT UNTIL THE DATE OF YOUR COURT HEARING TO GET A LAWYER. If you do not have a lawyer before the court hearing date, the judge may find that you have waived your right to a lawyer, and the hearing may be held with you unrepresented by a lawyer.
3. IF YOU DO NOT APPEAR FOR A SCHEDULED PREHEARING CONFERNCE, MAGISTRATE'S HEARING, OR COURT HEARING BEFORE THE JUDGE, YOU WILL BE SUBJECT TO ARREST.
Here, as discussed, Mr. Yuthsakdidecho did not request incarceration to coerce Ms. Bertram's compliance with the court's orders. Although his Petition did not expressly state that incarceration was not requested, he identified the specific relief he requested and did not include incarceration. Notably, that stands in contrast to the relief Mr. Yuthsakdidecho sought in a contempt petition filed a month-and-a-half earlier concerning Ms. Smith, in which he requested that the court "Incarcerate [Ms. Smith] for Constructive Civil Contempt."
Ms. Bertram did not object to Mr. Yuthsakdidecho's motion on the ground that it did not state expressly that he was not seeking incarceration, see Md. Rule 15-206(c)(1), nor does Ms. Bertram claim that deficiency provides grounds for reversal. In any event, the record contains no indication of any harm resulting from that deficiency.
Nor did the court's show cause order place incarceration at issue. The only mention of incarceration in the form order is the statement that " If jail time is requested in the Petition, read the Notice attached to this Show Cause Order." (Bold in original; italics added). The notice referenced in the order is the form notice containing language identical to that in Rule 15-206(c)(2)(C), which, as noted, applies only if incarceration is requested. Although the court's inclusion of the notice as part of its form show cause order, regardless of whether incarceration is sought, might raise some questions, the order and the Rule both state that the guidance applies only when incarceration is sought. Here, it was not.
As mentioned above, Mr. Yuthsakdidecho also included the form notice from Rule 15-206(c)(2)(C) with his Petition. The record does not contain an explanation of why he included the form notice, but doing so certainly would not have satisfied his obligation to state in his Petition that he was seeking incarceration, if he had been. There is no indication in the record that any party or the court thought incarceration was on the table at the October 23 hearing.
Nor did any statements at the hearing place incarceration at issue. Indeed, the sole mention of the possibility of incarceration during the hearing was the court's statement that if, following the hearing, Ms. Bertram failed to provide her attorney with the requested documents so that she could produce them to Mr. Yuthsakdidecho's counsel within 20 days, then the court would "find that you are violating my direct orders . . . and I'm going to hold you in contempt," and if the court found that she was violating that subsequent order intentionally, then the court had "the authority to put you in jail until you comply." In context, it was clear that incarceration was not at issue in that hearing but might be considered at a subsequent hearing based on future, intentional noncompliance with an as-yet unissued order.
In sum, incarceration was not at issue in the October 23 hearing. Ms. Bertram thus faced only potential financial penalties during that hearing, which do not give rise to a right to counsel under either the United States or Maryland constitutions. See Zetty, 365 Md. at 158-59 (stating that a potential financial penalty is not a "deprivation of liberty [that] itself . . . requir[es] the assistance of counsel" in a civil contempt hearing and "that actual imprisonment is a penalty different in kind . . . and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel" (quoting Scott v. Illinois, 440 U.S. 367, 373 (1979))).
Ms. Bertram suggests that even if incarceration were not at issue, she had a right to counsel at the contempt hearing because the notice provided with the show cause order, which parroted the language of Rule 15-206(c)(2)(C) (quoted above), said that she did. She contends that the notice stated "unequivocally" that she was entitled to have legal representation for the hearing. For two reasons, we disagree. First, a form notice is not a source of rights. Even if the notice had stated that every alleged contemnor is entitled to legal representation at every contempt hearing, regardless of whether incarceration is sought, such an incorrect statement of the law would not have given her a right to counsel that did not otherwise exist. Second, the notice, in combination with the other documents with which it was served, did not state that. To the contrary:
• The order informed Ms. Bertram that she should read the notice " If jail time is requested in the Petition" (bold in original; italics added);
• The heading on the notice specified the circumstance in which it was applicable as "Jail Time Requested on Petition " (bold in original; italics added); and
• The Petition did not seek incarceration.
To be sure, it would be clearer if the court were to use different form show cause orders when incarceration is sought and when it is not, rather than include the Rule 15-206(c)(2)(C) notice with all show cause orders and inform recipients to read the notice only if a separate document seeks incarceration. Nonetheless, read in context, we do not think the notice stated that Ms. Bertram had a right to counsel here, where incarceration was not sought in the Petition. And in any event, as we have explained, she did not have such a right. Cf. Bradford v. State, 199 Md. App. 175, 194-95 (2011) ("If the moving party seeks incarceration as a possible means of compelling compliance, . . . the defendant is entitled to counsel and must be properly informed of his or her right to counsel."). Because Ms. Bertram did not have a right to counsel at the contempt hearing, the court did not abuse its discretion in denying her motions for postponement, nor did it err in proceeding with the contempt hearing without her counsel present.
B. The Court Was Not Required to Accommodate Ms. Bertram's Counsel's Schedule.
Even if we were to assume that Ms. Bertram had a right to counsel in connection with the contempt proceedings, we would still affirm because: (1) Ms. Bertram had counsel; and (2) under the circumstances, the court was not obligated to accommodate Ms. Bertram's counsel's schedule.
Ms. Bertram's argument on appeal is not that she lacked the means to retain counsel or even that she lacked counsel. Indeed, she acknowledges that she had counsel, whom she retained on October 11, which was two days after being served with the show cause order and 12 days before the scheduled contempt hearing. Notably, although Ms. Bertram was served with the show cause order on October 9, that was not when she should have first realized that she may need counsel. That date was nearly five months after she was served with the subpoenas at issue, nearly four months after the deposition she decided not to attend, and nearly three months after the court's order to compel. In any event, Ms. Bertram's attorney was presumably able to assist her in advance of the contempt hearing in explaining the allegations of the Petition to her, helping her determine and present her defenses, and explaining to her the possible outcomes of the proceeding. See Md. Rule 15-206(c)(2)(C).
Ms. Bertram argues on appeal, as she did below, that 12 days between the time she retained counsel and the hearing was insufficient time for preparation. The record contains no support for that argument. This was a straightforward matter of compliance with a basic subpoena issued several months before the hearing. --------
Instead, at its core, Ms. Bertram's argument is that because she chose to retain counsel who was unavailable at the time of the hearing for which she retained that counsel, the court was obligated to reschedule the hearing for a time that was more convenient for her counsel. She is incorrect. It is within a court's sound discretion to grant or deny a postponement "as justice may require." Md. Rule 2-508(a). "[I]n light of its obligation to manage the court's docket and prevent cases from remaining unresolved indefinitely[,] . . . the court 'has inherent authority to manage its affairs and achieve an orderly and expeditious disposition of cases.'" Zdravkovich v. Siegert, 151 Md. App. 295, 307-08 (2003) (quoting Hossainkhail v. Gebrehiwot, 143 Md. App. 716, 728 (2002)); see also Neustadter v. Holy Cross Hosp. of Silver Spring, 418 Md. 231, 243 (2011) (observing that we have affirmed denials of motions to continue where, among other situations, "a litigant's chosen counsel was absent"); see also Touzeau v. Deffinbaugh, 394 Md. 654, 678 (2006) (affirming the denial of a motion for a continuance based on a litigant's failure "to mitigate the consequences of not being represented by counsel at the hearing"). Under the circumstances presented here, the postponement court acted well within the bounds of its discretion in denying Ms. Bertram's motions to postpone, and the circuit court did not err by proceeding with a hearing that her retained counsel did not attend.
Finally, Ms. Bertram's attempt to distinguish her actions from those of the appellant in Touzeau, see 394 Md. at 678, by arguing that she was diligent in retaining counsel two days after being served with the show cause order, is misplaced for two reasons. First, a party does not act diligently by retaining counsel who is unavailable for the very hearing for which the counsel is retained, at least absent any demonstration that that particular counsel is uniquely situated to handle the matter, that an "unforeseen circumstance" exists, or that other attorneys are not reasonably available. See id. at 676-78. Second, for reasons already discussed, Ms. Bertram should reasonably have been aware of the need to retain counsel months earlier, but she failed to do so. Cf. id. at 676 (finding "a lack of diligence" where litigant "made no attempt to obtain counsel until . . . only two weeks before the [ ] hearing and some four months after [the opposing party] filed his emergency motion").
CONCLUSION
The postponement court did not abuse its discretion in denying the motion for postponement and the circuit court did not abuse its discretion or err in proceeding with the contempt hearing. We will therefore affirm.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.