Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 432021
Jones, P.J.
Plaintiff William Bucy and two coplaintiffs, Michael Mitchell and Jaime Wing, filed suit against AT&T Wireless and other wireless service providers to challenge the practice of charging customers a fee for local number portability. Of the three named plaintiffs, only Bucy is a customer of AT&T Wireless. AT&T Wireless petitioned to compel arbitration of plaintiff Bucy’s claims based upon an arbitration clause included among the terms and conditions of the wireless service agreement. AT&T Wireless appeals from the order denying arbitration. We will reverse the order.
The plaintiffs’ lawsuit named two other wireless service providers as well, but this appeal concerns only AT&T Wireless. Appeals by the other service providers arising from the same lawsuit are pending before us in Mitchell v. Sprint, A105911 and Wing v. Cingular, A105906. AT&T sought to compel arbitration only by plaintiff Bucy because Bucy is the only named plaintiff who is an AT&T Wireless customer.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff first became a subscriber of AT&T Wireless in October 2001 when AT&T acquired his account from Bay Area Cellular Telephone Corporation (dba Cellular 1). At that time, plaintiff was sent a welcome guide that contained that the terms and conditions of AT&T’s wireless service. After 2001, Bucy changed his rate plan several times, most recently in March 2003, when he entered into a one-year service agreement subject to a new set of written terms and conditions.
The terms and conditions of AT&T’s wireless service agreement include an arbitration clause calling for the arbitration of all disputes arising out of “our relationship.” Notwithstanding the agreement to arbitrate all disputes, the customer retains the right to bring an action in small claims court, and both parties may litigate debt collection matters.
The arbitration clause allows only individual claims to be heard in arbitration. The provision states: “An arbitrator... may not order relief on a consolidated, class wide or representative basis.” Further, the arbitration clause provides: “[A]ny arbitration will be conducted on an individual basis and not on a consolidated, class wide, or representative basis.”
The arbitration agreement sets up a three-tiered system for allocation of costs. If the customer’s claim is for less than $1,000, the customer must pay a fee of $25, and AT&T will pay the balance of administrative fees and costs. If the customer’s claim is between $1,000 and $75,000, then the customer must share in the costs of arbitration, but need pay no more than the equivalent court filing fee. And, if the claim is in excess of $75,000, then all administrative costs and expenses will be divided equally.
In April 2003, AT&T Wireless began charging its customers a “Regulatory Programs Fee” that included a fee for local number portability, even though a portability program had never been implemented. In June 2003, plaintiff Bucy and his two coplaintiffs brought a class action alleging unfair business practices under the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.), violations of the False Advertising Act (Bus. & Prof. Code, § 17500 et seq.), fraud, breach of contract, and breach of the implied covenant of good faith and fair dealing.
Based upon the arbitration clause in its wireless service agreement, AT&T petitioned to compel arbitration of plaintiff Bucy’s claim. Plaintiff opposed the petition, arguing that the arbitration clause was procedurally and substantively unconscionable. Plaintiff also questioned the existence of an arbitration agreement, asserting that he had never signed any written contract with Cellular 1 containing an arbitration clause and he was not alerted to the arbitration clause in the welcome guide from AT&T Wireless.
The trial court identified two reasons for denying AT&T’s petition to compel arbitration. First, the court found that AT&T Wireless failed to prove an agreement to arbitrate. Second, the court found that even if an arbitration agreement exists the agreement is unconscionable. In particular, the court found the arbitration agreement procedurally unconscionable, having been presented on a take-it-or-leave-it basis. Further, the court found the ban on class-wide arbitration to be substantively unconscionable.
DISCUSSION
I. Existence of Arbitration Agreement
An order compelling arbitration is warranted only upon a finding that “an agreement to arbitrate the controversy exists.” (Code Civ. Proc., § 1281.2.) General principles concerning the formation of a contract govern this threshold issue. (Marcus & Millichap Real Estate Investment Brokerage Co. v. Hock Investment Co. (1998) 68 Cal.App.4th 83, 88-89.) The appellate court will uphold the trial court’s finding on the existence of an arbitration agreement when substantial evidence supports that finding. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 357.) However, when, as here, the evidence consists entirely of written declarations and documentary evidence, we make a de novo determination of whether the parties agreed to arbitrate their disputes. (68 Cal.App.4th at p. 89.) We conclude that an agreement to arbitrate exists.
The evidence was undisputed that Bucy entered into an agreement with AT&T Wireless for the provision of wireless service. Bucy admitted in his complaint that he is a customer of AT&T Wireless, and he admitted in his declaration that he had filled out a form when he signed up for service with Cellular l, which was later taken over by AT&T Wireless. The complaint expressly alleges that plaintiffs “entered into written contracts with Defendants wherein Defendants promised to provide wireless telephone service to Plaintiffs... in exchange for... a monthly fee. Each of these contracts were form adhesion contracts which included the same material terms.” (Italics added.) Indeed, the causes of action for breach of contract and breach of implied covenant of good faith rest upon the existence of a contract.
AT&T Wireless presented as evidence a copy of the written “Terms and Conditions” for Bucy’s most recent wireless service agreement. Plaintiff does not dispute that the terms and conditions include an arbitration clause. Plaintiff contends that he never assented to those terms and conditions.
Certainly a contract is not formed without mutual assent. (Civ. Code, §§ 1550, 1565; Windsor Mills, Inc. v. Collins & Aikman Corp. (1972) 25 Cal.App.3d 987, 993.) However, the existence of mutual assent is determined by objective criteria, not by one party’s subjective intent. The test is whether a reasonable person would, from the conduct of the parties, conclude there was a mutual agreement. (Marin Storage & Trucking, Inc. v. Benco Contracting & Engineering, Inc. (2001) 89 Cal.App.4th 1042, 1050.)
This is not a case in which the contractual nature of the document was not obvious to an unsuspecting customer. (Cf. Windsor Mills, Inc. v. Collins & Aikman Corp., supra, 25 Cal.App.3d at pp. 993-994.) The opening paragraph of the terms and conditions states: “Get the most out of your wireless service by knowing the terms of your Agreement with us. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. They govern the relationship between you and AT&T Wireless and explain our respective legal rights concerning all aspects of our relationship, including...: [¶] Resolution of past or future disputes by arbitration instead of court trials and class actions.” (Capitalization in original.) The document goes on to state in all capital letters that by using the wireless service “you consent to the terms and conditions set forth in this agreement. If you do not agree with these terms and conditions... do not use the service or device and notify us immediately to cancel service and/or return the equipment....”
Plaintiff acknowledged in his complaint that the terms and conditions packet was part of the wireless service agreement. The complaint alleges that, “The section of the ‘Terms and Conditions’ to the [AT&T] service contract yields no mention of the Regulatory Programs Fee.” His only evidence to refute the binding effect of those Terms and Conditions was his declaration: “I do not believe I got a contract from AT&T [in October 2001] when they started to provide my wireless phone service.” Whether or not Bucy recognized the welcome guide he was sent in 2001 as a “contract” is irrelevant in light of the uncontroverted evidence that Bucy entered into a new contract in March 2003 subject to the terms and conditions. Those terms and conditions give the customer 15 days in which to review the terms and cancel the agreement. Plaintiff obviously continued to use the wireless service after March 2003; according to the complaint filed in June 2003, he remains an AT&T customer.
Certainly the wireless service agreement was a contract of adhesion—a standardized contract imposed upon the subscriber without any opportunity to negotiate the terms. (See generally, Neal v. State Farm Ins. Co. (1961) 188 Cal.App.2d 690, 694; accord Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113; Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 817.) However, a contract of adhesion is nonetheless a valid and existing contract. (Graham v. Scissor-Tail, Inc., supra, 28 Cal.3d at p. 819.) Such contracts “are, of course, a familiar part of the modern legal landscape.... They are also an inevitable fact of life for all citizens—businessman and consumer alike.” (Id. at pp. 817-818, fns. omitted.) A finding of adhesion merely begins another inquiry--whether a particular provision within the contract should be denied enforcement on the ground that it is unconscionable. (Id. at pp. 819-827; see Marin Storage & Trucking, Inc. v. Benco Contracting & Enginerring, Inc., supra, 89 Cal.App.4th at p. 1056.)
II. Unconscionability
An agreement to arbitrate is valid, irrevocable, and enforceable except when grounds exist for the revocation of any contract. (Code Civ. Proc., §§ 1281, 1281.2, subd. (b).) Unconscionability is one ground upon which a court may refuse to enforce a contract (Civ. Code, § 1670.5), and the burden is on the party opposing arbitration to prove the defense. (Engalla v. Permanente Medical Group, Inc., supra, 15 Cal.4th at p. 972.)
The statutory reference to grounds for revocation of an agreement is a misnomer; the issue on a motion to compel arbitration is whether there are grounds to rescind the arbitration agreement. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973.)
The determination of unconscionability is a question of law for the court. (Civ. Code, § 1670.5, subd. (a); Flores v. Transamerica HomeFirst, Inc. (2001) 93 Cal.App.4th 846, 851.) On appeal, when the extrinsic evidence is undisputed, as it is here, we review the contract de novo to determine unconscionability. (93 Cal.App.4th at p. 851 ; Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1527.)
In determining whether a particular contractual provision is unconscionable, we examine both a procedural and a substantive element of unconscionability. The procedural element focuses on the way in which the disputed provision was presented--i.e., whether there was “oppression” or “surprise.” Oppression arises from an inequality of bargaining power that results in no real negotiation and an absence of meaningful choice. Surprise involves the extent to which the supposedly agreed-upon terms are hidden in a prolix printed form drafted by the party seeking to enforce them. The substantive element of unconscionability has to do with the effects of the contractual provision and whether it is overly harsh or one-sided. (Armendariz v. Foundation Health Psychcare Services, Inc (2000) 24 Cal.4th 83, 114; A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486.)
To be unenforceable, a contract must be both procedurally and substantively unconscionable, but the courts employ a “sliding scale” or a balancing relationship between the two elements of unconscionability, such that the greater the degree of unfair surprise or unequal bargaining power, the less the degree of substantive unconscionability required to annul the contract and vice versa. (Armendariz, supra, 24 Cal.4th at p. 114; Marin Storage & Trucking, Inc., supra, 89 Cal.App.4th at p. 1056.)
The terms and conditions of the wireless service agreement here were presented on a take-it-or-leave-it basis, first mailed to plaintiff as a welcome guide and then provided as a packet accompanying his new wireless service contract. We agree with the trial court’s conclusion that the wireless service agreement was a contract of adhesion and, hence, procedurally unconscionable. (See Flores v. Transamerica HomeFirst, Inc., supra, 93 Cal.App.4th at p. 853; Stirlen v. Supercuts, Inc., supra, 51 Cal.App.4th at pp. 1533-1534.) The more difficult question is whether the arbitration clause is substantively unconscionable.
A. Debt Collection Exception
The arbitration clause provides two exceptions to the agreement to submit disputes to arbitration: “(1) you may take claims to small claims court if they qualify for hearing by such a court, or (2) you or we may choose to pursue claims in court if the claims relate solely to the collection of any debts you owe to us.” The trial court found that in allowing AT&T Wireless to bring debt collection actions in court the arbitration agreement was so one-sided as to be substantively unconscionable.
The lack of mutuality is, of course, a basis for finding substantive unconscionability. (Armendariz, supra, 24 Cal.4th at pp. 117-121.) The courts have found unconscionable a clause requiring arbitration for the weaker party while giving the stronger party a choice of forum. (Id. at pp. 120-121 [only employee’s claims of wrongful termination subject to arbitration]; Little v. Auto Stiegler, Inc. (2003)29 Cal.4th 1064, 1073 [allowing appeal of any award over $50,000 effectively gave only employer right to appeal]; Harper v. Ultimo (2003) 113 Cal.App.4th 1402, 1407-1408 [personal injury damages not available without contractor’s consent]; Flores v. Transamerica HomeFirst, Inc., supra, 93 Cal.App.4th at p. 855 [only borrower’s claims subject to arbitration while lender had remedy of foreclosure].)
Not every instance of one-sidedness is invalid: “[A] contract can provide a ‘margin of safety’ that provides the party with superior bargaining strength a type of extra protection for which it has a legitimate commercial need without being unconscionable.” (Stirlen v. Supercuts, Inc., supra, 51 Cal.App.4th at p. 1536; accord, Armendariz, supra, 24 Cal.4th at p. 117.)
In Flores v. Transamerica HomeFirst, Inc., supra, 93 Cal.App.4th 846, we held an arbitration clause in a reverse mortgage loan agreement to be unconscionable where the borrowers were required to arbitrate any controversy arising out of the loan agreement while the lender was free to proceed by judicial or nonjudicial foreclosure, by self-help remedies such as setoff, and by injunctive relief to obtain appointment of a receiver. (Id. at pp. 854-855.) We observed that “[a]s a practical matter, by reserving to itself the remedy of foreclosure, [the lender] has assured the availability of the only remedy it is likely to need.” (Id. at p. 855.)
The arbitration clause here is markedly different. While AT&T has reserved the right to bring debt collection matters to court, that right belongs to the customer, too (e.g., on a declaratory relief action to challenge an assertedly improper charge). Moreover, the customer is free to pursue any claim in small claims court. Because we have concluded that the arbitration may properly proceed on an individual and not a class-wide basis, we find it improbable that any particular customer would have a claim exceeding the $5,000 jurisdictional limit for small claims court (Code Civ. Proc., § 116.220, subd. (a)(1).) Under the circumstances, we cannot say that the arbitration clause lacks the requisite “modicum of bilaterality.” (Armendariz, supra, 24 Cal.4th at p. 117.)
In any event, even if we were to conclude that the debt collection exception is unfairly one-sided, the arbitration clause could still be enforced. The trial court has authority to sever an unconscionable provision and enforce the remainder of the contract or to limit the application of the unconscionable clause so as to avoid an unconscionable result. (Civ. Code, § 1670.5, subd. (a); Little v. Auto Stiegler, Inc., supra, 29 Cal.4th at pp. 1074-1075.) “If the illegality is collateral to the main purpose of the contract, and the illegal provision can be extirpated from the contract by means of severance or restriction, then such severance and restriction are appropriate.” (Armendariz, supra, 24 Cal.4th at p. 124.) Here, the debt collection exception is a single, discrete provision that is not integral to the arbitration agreement. The offending provision can be stricken without affecting the rest of the arbitration agreement and without affecting the current proceedings, which do not involve a debt collection matter.
B. Ban on Class Arbitration
In Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094 (Szetela), the court held an arbitration clause prohibiting class-wide arbitration to be unconscionable and unenforceable. In that case, the plaintiff was a credit card holder who alleged that the bank (credit card company) had improperly charged him a $29 fee for exceeding his credit limit. The arbitration clause in the credit card agreement prohibited joining or consolidating claims in arbitration or arbitrating claims as a representative, as a member of a class, or as a private attorney general. When the plaintiff brought a class action, the bank successfully moved to compel arbitration on an individual basis. The appellate court held the ban on class treatment to be unconscionable, and the court directed the trial court to proceed to arbitration on a class basis.
The issue is pending before the California Supreme Court in Discover Bank v. Superior Court, review granted April 9, 2003 (S113725), and Mandel v. Household Bank, review granted April 9, 2003 (S113699).
The Szeleta court reasoned that the ban on class arbitration was unfairly one-sided: “Although styled as a mutual prohibition on representative or class actions, it is difficult to envision the circumstances under which the provision might negatively impact Discover, because credit card companies typically do not sue their customers in class action lawsuits. This provision is clearly meant to prevent customers... from seeking redress for relatively small amounts of money, such as the $29 sought by Szeleta. Fully aware that few customers will go to the time and trouble of suing in small claims court, Discover has instead sought to create for itself virtual immunity from class or representative actions despite their potential merit, while suffering no similar detriment to its own rights.” (Szeleta, supra, 97 Cal.App.4th at p. 1101.)
In the present case, the ban on class-wide arbitration does tend to favor AT&T Wireless. The obvious effect is to limit the scope of potential damages that AT&T Wireless would face in class arbitration without the ability to obtain judicial review. Yet, the ban on class arbitration does not affect the choice of forum. Class actions through litigation are necessarily precluded by the agreement to arbitrate. The limitation is only on the breadth of the arbitration proceeding--i.e., the manner in which the arbitration is to occur. And the limitation in the present case is materially different from the clause in Szetela. The arbitration clause here expressly permits the customer to obtain relief in small claims court. Moreover, the cost to the customer is limited to $25 on claims under $1,000; AT&T will pay all other administrative costs and fees. In contrast to the credit card customers in Szetela, AT&T’s subscribers are not deterred from seeking redress for small amounts. And for larger claims between $1,000 and $75,000, the customer need pay no more for arbitration costs than the equivalent of a court filing fee. Under these circumstances, we do not find the arbitration clause so one-sided or unreasonable to be substantively unconscionable.
Oddly, the Szetela court seems to have presumed that the credit cardholders were free to go to small claims court but would be unlikely to do so. Yet, the arbitration clause in that case withdrew the right to litigate any claim in court. (Szeleta, supra, 97 Cal.App.4th at p. 1096.)
Our analysis does not end there, however. The Supreme Court has recognized two distinct defenses to a motion to compel arbitration: (1) the arbitration agreement is unconscionable, and (2) arbitration would compel the claimant to forfeit certain statutory rights. (Armendariz, supra, 24 Cal.4th at p. 113; Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 86.) The parties here have not made a distinction between the two defenses but have treated the latter as a version of unconscionability. We treat the two defenses separately.
It is now well settled that even claims arising under a statute designed to further important social policies may be arbitrated. (Green Tree Fin. Corp.-Ala. v. Randolph (2000) 531 U.S. 79, 90; Cruz v. PacifiCare Health Systems, Inc., supra, 30 Cal.4th at p. 317 [UCL and False Advertising Act]; Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1084 [Consumer Legal Remedies Act ].) But arbitration will be denied if the prospective litigant is precluded from fully vindicating the statutory cause of action in the arbitral forum. (531 U.S. at p. 90 ; Armendariz, supra, 24 Cal.4th at pp. 99-104.) In Armendariz, the claimant/employees sued for sexual harassment under FEHA, but the arbitration clause in their employment contract confined the potential relief to back pay and precluded recovery of punitive damages and attorney fees--recovery that would otherwise have been available under FEHA. The Supreme Court held the limitation on remedies was unlawful as it would prevent the employees’ full vindication of their rights under FEHA. (See also Stirlen v. Supercuts, Inc., supra, 51 Cal.App.4th at pp. 1539-1540 [limit on remedies under several statutes]; Graham Oil v. ARCO Products Co. (9th Cir. 1995) 43 F.3d 1244, 1248 [limit on remedies that would be available under Petroleum Marketing Practices Act].)
The Szeleta court apparently relied upon this principle in finding that the contractual ban on class arbitration violates public policy. The Szeleta court reasoned that the ban would undermine consumer protection statutes by eliminating the private attorney general mechanism: “[The clause] contradicts the California Legislature’s stated policy of discouraging unfair and unlawful business practices, and of creating a mechanism for a representative to seek relief on behalf of the general public as a private attorney general. (See, e.g., Bus. & Prof. Code, § 17200 et seq.) It provides the customer with no benefit whatsoever; to the contrary, it seriously jeopardizes customers’ consumer rights by prohibiting any effective means of litigating Discover [Bank’s] business practices. This is not only substantively unconscionable, it violates public policy by granting Discover [Bank] a ‘get out of jail free’ card while compromising important consumer rights.” (Szeleta, supra, 97 Cal.App.4th at p. 1101.)
We cannot agree that the ban on class arbitration immunizes businesses from consumer protection lawsuits. The arbitration clause has no effect on actions by the Attorney General or other governmental prosecutors to redress unfair business practices. (EEOC v. Waffle House, Inc. (2002)534 U.S. 279; see Gilmer v. Interstate/Johnson Lane Corp. (1991) 500 U.S. 20, 32 .) Nor does the ban on class arbitration do anything to limit litigation. The customer’s right to litigate has already been curtailed by the arbitration agreement itself. As we have said, plaintiff’s monetary claims under the UCL and False Advertising Act are arbitrable even though such claims vindicate important statutory rights. What is restricted here is the breadth or manner of arbitration and the ability to pursue the claims of others within the arbitration.
The California Supreme Court has held that claims under the UCL for injunctive relief to benefit the general public are not arbitrable. (Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303, 315-316; see also Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1079-1082 [claims for injunctive relief under the Consumer Legal Remedies Act].) AT&T Wireless did not dispute plaintiff’s argument below that the claims for injunctive relief are not arbitrable. The only question before us, then, is whether plaintiff’s claims for monetary damages and restitution of the local number portability fees are arbitrable.
There is no statutory right to class arbitration. Class arbitration has been held permissible when the trial court, in the exercise of its discretion, finds that the interests of justice require class-wide relief. (Keating v. Superior Court (1982) 31 Cal.3d 584, 609-614, reversed on other grounds sub nom. Southland Corp. v. Keating (1984) 465 U.S. 1; Blue Cross of California v. Superior Court (1998) 67 Cal.App.4th 42, 64; see Green Tree Financial Corp. v. Bazzle (2003) 539 U.S. 444; Cruz v. PacifiCare Health Systems, Inc., supra, 30 Cal.4th at pp. 318-319.) However, judicial recognition of a class-wide remedy in arbitration cannot be equated with a nonwaivable statutory right. Indeed, a nonwaivable right to class arbitration would undermine the purpose of arbitration. Arbitration is meant to resolve private disputes in an expeditious and efficient manner, not to remedy a public wrong. (Broughton v. Cigna Healthplans, supra, 21 Cal.4th at p. 1080.) The fact that the procedural device of class treatment is not available in arbitration is “part and parcel of arbitration’s ability to offer ‘simplicity, informality, and expedition’ [citing Gilmer v. Interstate/Johnson Lane Corp., supra, 500 U.S. at p. 31], characteristics that generally make arbitration an attractive vehicle for the resolution of low-value claims.” (Iberia Credit Bureau, Inc. v. Cingular Wireless (5th Cir. 2004) 379 F.3d 159, 174.)
III. Waiver
Plaintiff Bucy argues that AT&T Wireless waived its right to compel arbitration by delaying its petition to compel for eight months until after certain preliminary proceedings had been completed. The trial court rejected the argument, and we review the determination on waiver under the substantial evidence rule. (Engalla v. Permanente Medical Group, Inc., supra, 15 Cal.4th at p. 983; Groom v. Health Net (2000) 82 Cal.App.4th 1189, 1195, 1198.)
The record contains ample support for the trial court’s finding that waiver was not established. The fact that AT&T Wireless removed the lawsuit to federal court and then unsuccessfully resisted remand back to state court does not provide a basis for waiver. (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1205 [venue efforts provide no basis for waiver of arbitration].) Nor does the fact that plaintiff incurred expenses in the proceedings constitute the prejudice that gives rise to waiver. (Ibid.; Groom v. Health Net, supra, 82 Cal.App.4th at p. 1197.) Plaintiff Bucy made no showing that the delay adversely affected his ability to have his claims resolved fairly in arbitration. There is no indication that AT&T Wireless took advantage of judicial discovery procedures not available in arbitration in order to gain information about plaintiff’s case. In the absence of any showing of prejudice to plaintiff, the trial court properly found that the delay by AT&T Wireless did not result in a waiver. (St. Agnes Medical Center v. PacifiCare of California, supra, 31 Cal.4th at pp. 1203-1205; Groom v. Health Net, supra, 82 Cal.App.4th at pp. 1195-1198.)
DISPOSITION
The order denying arbitration is reversed, and the trial court is directed to enter a new order compelling arbitration of the monetary claims on an individual basis. The parties shall bear their own costs on appeal.
We concur: Stevens, J., Simons, J.