NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Marin County Super. Ct. No. CV030970)
In Seltzer v. Eugene Burger Management Corporation (2011 WL 1833196, A126308, May 13, 2011) (2011 Cal.App. Unpub. Lexis 3576) (Seltzer I), we affirmed the trial court's judgment entered in favor of defendant and cross-complainant Headlands Homeowners Association (Association) and other defendants, including Eugene Burger Management Corporation (EBMC) (collectively, defendants), on plaintiff and cross-defendant Margaret Seltzer's third amended complaint (TAC), and in favor of the Association on its cross-complaint against Seltzer. Here, Seltzer appeals the trial court's post-judgment orders awarding attorney fees to defendants and denying Seltzer's motion for stay of enforcement and claim of exemption. After reviewing the record, we affirm the trial court's post-judgment orders.
In an order filed on January 12, 2011, we construed respondents' unopposed motion to augment the record on appeal with a copy of the TAC as the submission of a respondents' appendix pursuant to rule 8.124(e)(3) of the California Rules of Court. Accordingly, we deemed the TAC respondents' appendix.
We hereby incorporate by reference our prior opinion in Seltzer I. Thus, the request for judicial notice filed by the Association on August 4, 2011 and the opposition filed by Seltzer on September 29, 2011 are moot.
FACTUAL AND PROCEDURAL BACKGROUND
Following entry of judgment in their favor, defendants filed a Motion for Award of Attorneys Fees, seeking $513,817.50 in attorney fees, as well as $29,108 in paralegal fees and $33,414.75 in costs, pursuant to Civil Code, section 1354 (section 1354).Subsequently, the Association filed a Motion for Attorneys Fees, seeking $248,341 in fees as the prevailing party on its cross-complaint against Seltzer, pursuant to section 1354.
Section 1354 provides: "The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both. [¶] . . . [¶] In an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney's fees and costs." (§ 1354, subd. (a) & (c) [italics added].)
After a hearing on the matter, the trial court entered its attorney fee order on December 4, 2009, and the Association served Seltzer with Notice of Entry of Order on December 9, 2009. In its order, the trial court awarded defendants $306,464.63 in attorney fees. Also, the trial court awarded the Association $236,976 in attorney fees.
On December 24, 2009, Seltzer filed "Notice of Intention to Move For a New Trial and to Vacate Decisions Awarding Attorneys Fees." Seltzer filed her motion pursuant to Code of Civil Procedure, section 657, on the bases, inter alia, she was "prevented from having a fair trial" and "error in law occurring in the trial." Defendants and the Association opposed the motion for new trial, contending Seltzer's motion "focuses again on the Judgment, not the attorney-fee awards." On February 2, 2010, the trial court issued a tentative ruling on Seltzer's new trial motion and held a hearing on the matter the same day. The tentative ruling stated: "Plaintiff's motion for new trial and to vacate decisions awarding attorneys fees to defendants and cross-complainant is denied. [¶] Plaintiff has not shown any basis for relief under Code of Civil Procedure, section 657 or 663." On February 8, 2010, the trial court entered a minute order adopting "in full" its tentative ruling denying Seltzer's new trial motion.
The next matter concerning us here arose in March 2010, when Seltzer filed an ex parte application for an order shortening time on a hearing date for her motion to stay enforcement of judgment and quash writ of execution and levy (motion to stay), pursuant to Code of Civil Procedure, section 918.5. The trial court granted Seltzer's application and set a hearing on the matter for April 8, 2010.
Code of Civil Procedure, section 918.5 provides: "(a) The trial court may, in its discretion, stay the enforcement of a judgment or order if the judgment debtor has another action pending on a disputed claim against the judgment creditor. [¶] (b) In exercising its discretion under this section, the court shall consider all of the following: [¶] (1) The likelihood of the judgment debtor prevailing in the other action. [¶] (2) The amount of the judgment of the judgment creditor as compared to the amount of the probable recovery of the judgment debtor in the action on the disputed claim. [¶] (3) The financial ability of the judgment creditor to satisfy the judgment if a judgment is rendered against the judgment creditor in the action on the disputed claim."
In the memorandum of points and authorities filed in support of her motion to stay, Seltzer identified two pending actions in which she is likely to recover an amount that would more than offset the judgment: "(1) Seltzer v. Headlands Homeowners Association, et al., [Marin County Superior Court No. CV] 080778 ("2008 Action"), and (2) Seltzer v. Headlands Homeowners Association, et al., MCSC Case No. [CV] 096123 ("2009 Action")." Also, Seltzer stated the Association had recently "sent a letter of instruction to the San Francisco sheriff with a writ of execution and notice of levy" on her deposit accounts at the Bank of America. Seltzer claimed the Association did not serve her with notice of execution as required by statute and asserted the assets in her bank accounts are subject to a claim of exemption. On these grounds Seltzer contended the trial court should stay enforcement of the judgment pending appeal and quash the writ of execution and levy.
Code of Civil Procedure, section 700.010, subdivision (a) requires that "[a]t the time of levy pursuant to this article or promptly thereafter, the levying officer shall serve a copy of the following on the judgment debtor: [¶] (1) The writ of execution. [¶] (2) A notice of levy."
Defendants opposed Seltzer's motion for stay, contending Seltzer "has not made even a threshold showing that she has the remotest chance of prevailing" in her pending lawsuits. In its opposition to the stay motion, the Association noted Seltzer never requested a stay of enforcement following entry of judgment. Regarding its writ of execution, the Association stated it served a copy of the writ, Notice of Levy and List of Exemptions on Seltzer by mail, and submitted a copy of the proof of service with its opposition motion. Also, the Association noted Bank of America returned $34,193.71 to the San Francisco Sheriff in response to the levy and that Seltzer filed a claim of exemption on March 15, 2010.
On April 8, 2010, the trial court issued a tentative ruling on Seltzer's motion for stay and claim of exemption, and held a hearing on the matter the same day. The tentative ruling stated: "Plaintiff's motion for stay of enforcement of judgment and to quash writ of execution and levy is denied. Plaintiff has not shown a likelihood of prevailing in her two pending actions, or the amount of a probable recovery in those actions. Nor did she demonstrate the [Association's] financial inability to satisfy a judgment in the two pending cases. [Citations.] [¶] Plaintiff's claim of exemption is denied. Plaintiff did not show that the funds were paid as benefits from a private retirement plan within the meaning of Code of Civil Procedure, section 704.115."
At the hearing, after entertaining argument of counsel, the court adopted its tentative ruling on the motion to stay. With respect to Seltzer's claim of exemption, the trial court granted Seltzer's request to submit further evidence that the funds in her bank accounts were retirement funds and therefore exempt from levy. The trial court stated the claim of exemption would stand submitted after it received additional evidence from Seltzer and any response thereto, and that it would "rule on it based on the written submissions."
The court's written order denying the stay of enforcement and request to quash the writ of execution was not filed until May 14, 2010.
The trial court filed its order on the submitted matter on April 29, 2010. The order stated the court had received additional evidence from Seltzer. The court denied Seltzer's claim of exemption, ruling: "Plaintiff's claim depends on the tracing of funds in her deposit account to an IRA and then to a 'private retirement plan' within the meaning of Code of Civil Procedure, § 704.115(a)(1). Despite being given leave to file a supplemental declaration, Plaintiff never filed competent evidence that her IRA consisted entirely of funds rolled over from a private retirement plan within the meaning of CCP §704.115. (Citation.) Without adequate tracing of these funds to a 'private retirement plan,' plaintiff had the burden of showing that the amounts in the IRA met requirements of CCP §704.115(e). She did not make the latter showing in her initial or supplemental evidence. Also, she claimed an exemption of the entire amount under CCP §704.115 — even though the amount paid on November 18, 2009 was mixed into an account with a $1,344.68 balance. [Citation.] [¶] Plaintiff showed no procedural defects requiring release of the levy."
Code of Civil Procedure, section 704.115, subdivision (e) provides that funds in IRA accounts are exempt from judgment "only to the extent necessary to provide for the support of the judgment debtor when the judgment debtor retires and for the support of the spouse and dependents of the judgment debtor, taking into account all resources that are likely to be available for the support of the judgment debtor when the judgment debtor retires." (Ibid.)
Seltzer filed a notice of appeal (NOA) on May 18, 2010. The NOA appealed from orders after judgment entered on "2/8/10 and 4/29/10."
Seltzer contends that the trial court's attorney fee orders must be reversed because (1) the trial court erroneously determined defendants and the Association were entitled to attorney fees pursuant section 1354; (2) even if defendants and the Association were legally entitled to attorney fees under section 1354, the amounts awarded in attorney fees constitute an abuse of discretion. We address these contentions in turn.
At oral argument and in her brief, Seltzer argued that the trial court's fee order, as well as other post-trial orders challenged on this appeal, should be vacated because the underlying judgment was rendered in excess of the trial court's fundamental jurisdiction. Specifically, Seltzer asserts the trial court "lacked jurisdiction to try the issues of fact in the operative pleadings", exceeded its jurisdiction by awarding damages that were not claimed in the Association's second amended complaint, and exceeded its jurisdiction by entering a corrected judgment. These contentions, however, were all resolved in favor of respondents by our prior opinion in Seltzer I. Accordingly, they are precluded under the law of the case doctrine. (See Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 309 ["Under the law of the case doctrine, ' "the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case." ' (Citation.) . . . The doctrine promotes finality by preventing relitigation of issues previously decided  (citations)," and by precluding "questions that were implicitly determined because they were essential to the prior decision. (Citations.)"].)
Entitlement to Attorney Fees
The trial court granted the defendants' motion for attorney fees incurred in defending against Seltzer's TAC. The court, concluding defendants were entitled to attorney fees under section 1354, ruled as follows: "Plaintiff's causes of action are all properly deemed actions 'to enforce the governing documents.' Specifically, plaintiff's [TAC] sought enforcement of the CC&Rs relating to the maintenance of common areas, levying and application of assessment payments, use of association funds, inspection rights and the amendment of governing documents. (Citations [to TAC].)"
The trial court also granted the Association's motion for attorney fees incurred in obtaining judgment on its cross-complaint against Seltzer for past-due assessments. The court ruled: "As the prevailing party in an action to enforce the subject . . . [CC&Rs, the Association] is entitled to its reasonable attorney fees. (Civ. Code, 1354.) [The Association] obtained a money judgment exceeding $50,000 for unpaid assessments, as well as relief addressing plaintiff's violation of the CC&Rs regarding unauthorized building modifications. . . . [The Association] was the party which prevailed 'on a practical level.' [Citations.]"
We review de novo a "pure issue of law regarding the entitlement to attorneys' fees. (Citation.)" (Abouab v. City and County of San Francisco (2006) 141 Cal.App.4th 643, 661.) On the other hand, the trial court's prevailing party determination in awarding attorney's fees pursuant to section 1354 "should be affirmed on appeal absent an abuse of discretion." (Heather Farms Homeowners Assn., Inc. v. Robinson (1994) 21 Cal.App.4th 1568, 1574 (Heather Farms).)
Seltzer contends the trial court erred by awarding defendants attorney fees under section 1354 because the TAC was not an action to "enforce the . . . governing documents." (§ 1354, subd. (c).) We find her contention unpersuasive. As we noted in Seltzer I, one of the key issues underlying all claims in the TAC was whether the Association was governed by the 1979 CC&Rs, as asserted by Seltzer, or by the 1998 CC&Rs, as alleged by the Association. (See Seltzer I, supra, at p. *8.) Our detailed discussion in Seltzer I of the causes of action alleged in the TAC clearly demonstrates Seltzer alleged the 1979 CC&Rs were the governing documents and that she sought to enforce those CC&Rs, asserting multiple causes of action based on the Association's alleged violations of the 1979 CC&Rs and seeking legal and equitable remedies including money damages, rescission of the 1998 CC&Rs, as well as declaratory and injunctive relief. (See Seltzer I, supra, at p. *5; see also Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1380 (Chee) [stating that "the relevant question concerning entitlement to fees under Civil Code section 1354 is whether the action is to enforce the rights and obligations of the parties under the governing documents, specifically the CC&R's"].) Because Seltzer sought to enforce the 1979 CC&Rs against the Association, and because defendants prevailed on Seltzer's claims, the trial court did not err in concluding defendants were entitled to attorney fees under section 1354.
Thus, contrary to Seltzer's suggestion, the trial court, unlike the trial court in Chee, supra, was not called upon to apportion fees to reflect only fees incurred in defense of claims governed by the CC&Rs. (Cf. Chee, supra, 143 Cal.App.4th at p. 1381 [fee award in favor of Association and owner B properly apportioned to include only fees incurred in defense of owner A's claims governed by the CC&Rs, viz., breach of contract and request for declaratory relief—no fees awarded for defense of owner A's negligence claim].) Further, we reject Seltzer's suggestion that even if section 1354 provides a basis for recovery of attorney fees, only she and the Association are privy to such entitlement because "[n]one of the other defendants was [sic] a party to the contracts or to an enforcement action." In asserting various claims governed by the CC&Rs, Seltzer sued not only the Association, but also former members of its Board of Directors, as well as its management agents. Under these circumstances, we see no reason why the other defendants should be denied standing to seek fees under section 1354. (Cf. Chee, supra, 143 Cal.App.4th at p. 1380 [affirming fee award under section 1354 for Association, as well as apartment owner B, where apartment owner A brought an unsuccessful enforcement action against Association and apartment owner B].)
Seltzer also alleges the Alternative Dispute Resolution (ADR) procedures set forth in the DavisStirling Common Interest Development Act at sections 1369.5101369.590 preclude an award of attorney fees to defendants under section 1354. This allegation, not asserted below, is a complete red herring and finds no support in the language of these ADR sections.
Similarly, Seltzer contends Association's cross-complaint was not an enforcement action, therefore the trial court erred by awarding the Association attorney fees incurred in obtaining judgment on its cross-complaint pursuant to section 1354. Seltzer's contention fails. In its cross-complaint, the Association sought to enforce the 1998 CC&Rs by seeking past due assessments, late charges, interest, and collection expenses. (See Seltzer I, supra, at pp. *11-12). The Association prevailed on the claims alleged in the cross-complaint and won judgment in the amount of $49,249.90, plus late fees and any assessment that came due after February 1, 2009. (See Seltzer I, supra, at p. *11.) Accordingly, the trial court did not abuse its discretion in concluding that the Association was the "prevailing party" within the meaning of section 1354 and awarding attorney fees pursuant to that section. (See Heather Farm, supra, 21 Cal.App.4th at p. 1574 [prevailing party under section 1354 is the party who "prevail[s] on a practical level"].)
Seltzer suggests that the trial court's reliance on section 1354 in awarding attorney fees to the Association on its cross-complaint was erroneous because the cross-complaint sought to collect assessments pursuant to section 1367. However, even if the court erred in awarding the Association fees under section 1354, the Association was entitled to fees under section 1366, subdivision (e)(1) [providing for reasonable attorney fees in collecting delinquent assessments]. (See Abouab v. City and County of San Francisco, supra, 141 Cal.App.4th at p. 661 [stating the rule that a " 'decision correct in law will not be disturbed on appeal merely because it was given for the wrong reason. If correct upon any theory of law applicable to the case, the judgment will be sustained regardless of the considerations that moved the lower court to its conclusion' "].)
Amount of Attorney Fees
"The amount of an attorney fee to be awarded is a matter within the sound discretion of the trial court. [Citation.] The trial court is the best judge of the value of professional services rendered in its court, and while its judgment is subject to our review, we will not disturb that determination unless we are convinced that it is clearly wrong. [Citations.] The only proper basis of reversal of the amount of an attorney fees award is if the amount awarded is so large or small that it shocks the conscience and suggests that passion and prejudice influenced the determination. [Citations.]" (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.)
The first step in determining the amount of a reasonable attorney fee is to calculate the lodestar figure. (EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 774-775.) "The lodestar figure is calculated using the reasonable rate for comparable legal services in the local community for noncontingent litigation of the same type, multiplied by the reasonable number of hours spent on the case. (Citations.)" (Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1242-1243.) The trial court may adjust the lodestar figure upwards or downwards by the application of a multiplier after considering other factors concerning the lawsuit. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134.) Among the factors the trial court may consider in deciding whether to apply a multiplier are "(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award." (Id. at p. 1132.)
Seltzer contends the trial court abused its discretion in the amount of the award to defendants and in the amount of the separate award to the Association for prosecution of the cross-complaint. However, we find no abuse of discretion in the trial court's fee awards.
With respect to the Association's fee request on its cross-complaint, the trial court granted the request in part. The court found the rate charged by the Association's attorneys was reasonable, and Seltzer does not challenge that determination. As the starting point for its lodestar determination, the court used the amount of $257,928.50, not the $261,085 requested by the Association, concluding "it would be inequitable to charge [Seltzer] for the cost of work necessitated by inadequacies in the [Association's] original showing." The court also noted the Association reduced its initial fee figure by $16,029 to reflect fees related to dismissed claims, such as the tree-damage claims that it settled with Seltzer's insurer. Upon reviewing the billing statements, the trial court discovered additional items related to dismissed claims, made further reductions totaling $4,923.50, and awarded attorney fees in the amount of $236,976. The court did not apply a multiplier to the final lodestar amount.
Regarding the $413,678.50 in attorney fees requested by defendants, the trial court found it "appropriate to deduct fees already awarded to defendants in the form of discovery sanctions" totaling $5,059. As for the balance of defendants claim, the court opined defendants had "over litigated this case to a significant extent," for example, by filing motions without an adequate meet-and-confer effort and unsuccessful motions to dismiss and summary adjudication. For that reason, the court decided to reduce the balance of defendants' fee request by 25 percent (i.e., applied a negative multiplier) "to reflect the fair market value for the services rendered," and awarded defendants $306,464.63 in fees.
In sum, the record shows the trial court carefully and dispassionately reviewed defendants' and the Association's requests for attorney fees, in each case awarding only fees that were fair, reasonable and necessary. We find no abuse of discretion in the trial court's fee awards. (See Akins v. Enterprise Rent-A-Car Co., supra, 79 Cal.App.4th at p. 1134 [reversal required only if the amount awarded in attorney fees "is so large or small that it shocks the conscience and suggests that passion and prejudice influenced the determination"].) Accordingly, we affirm the trial court's fee order.
Seltzer also challenges the trial court's orders denying her motion to stay enforcement of judgment and her request for a claim of exemption. We shall address each of these issues in turn.
Relying on Airfloor Co. of California, Inc. v. Regents of University of California (1979) 97 Cal.App.3d 739 (Airfloor), Seltzer asserts she provided sufficient evidence of a set-off—including facts stated in two verified complaints she filed against the Association, as well as her supporting declarations—to warrant imposition of a stay pursuant to Code of Civil Procedure, section 918.5 (section 918.5). We disagree.
In Airfloor, supra, the appellate court held that in exercising its discretion whether to stay execution of judgment on the grounds that the judgment debtor has another action pending on a disputed claim against the judgment creditor, "the court must consider the likelihood of the judgment debtor prevailing in the other action and the financial ability of the judgment creditor to satisfy a judgment on the disputed claim if such should be rendered." (Airfloor, supra, 97 Cal.App.3d at p. 741.) On evidence that the judgment creditor (Airfloor) was "insolvent," and that the judgment debtor's (University of California) other action pending against Airfloor for breach of contract, seeking recoupment of a $450,000 advance on the contract sum of $9 million, "has substantial merit," the appellate court concluded the trial court abused its discretion by denying the University's motion to stay enforcement of Airfloor's judgment in the amount of $100,000. (Id. at pp. 742-743.) The facts here do not compel the same outcome as in Airfloor. Aside from Seltzer's bare assertions, there was no evidence the Association (judgment creditor) might be unable to pay any future judgment obtained by Seltzer. Moreover, the complaints in Seltzer's pending actions against the Association cover much of the same ground litigated in Seltzer I, and the trial court, having presided over the lengthy trial in Seltzer I and developed a thorough working knowledge of dispute between the parties, concluded those pending actions show no likelihood of success. Accordingly, we conclude the trial court did not abuse its discretion by denying Seltzer's motion to stay enforcement of judgment pursuant to section 918.5.
We next address Seltzer's claim that because the funds in her Bank of America deposit account came directly from a private retirement fund, they were exempt from judgment under Code of Civil Procedure, section 704.115, subdivisions (b) and (d). Having reviewed the governing statutes and the evidence proffered by Seltzer, we conclude the trial court properly denied the claim of exemption.
Further statutory references in this discussion are to the Code of Civil Procedure.
As pertinent here, " 'private retirement plan' means: (1) Private retirement plans, including, but not limited to, union retirement plans. [¶] . . . [¶] (3) Self-employed retirement plans and individual retirement annuities . . . ." (§ 704.115, subd. (a)(1) & (3).) All amounts held in or distributed from a private retirement plan described under subdivision (a)(1) are fully exempt from judgment. (See § 704.115, subd. (b) & (d).) On the other hand, amounts held in IRA accounts described under subdivision (a)(3) "are exempt only to the extent necessary to provide for the support of the judgment debtor when the judgment debtor retires and for the support of the spouse and dependents of the judgment debtor, taking into account all resources that are likely to be available for the support of the judgment debtor when the judgment debtor retires." (§ 704.115, subd. (e).)
Here, the evidence shows that on November 18, 2009, Seltzer transferred the sum of $45,518.15 from an IRA account into a Bank of America deposit account. As noted, under 704.115 subd. (e), amounts from an IRA are exempt "only to the extent necessary to provide for the support of the judgment debtor [and his dependents] when the judgment debtor retires[.]" (Schwatrzman v. Wilshinsky (1996) 50 Cal.App.4th 619, 625 & fn.3) Seltzer made no showing regarding the extent to which the funds levied were necessary to provide for her retirement. Accordingly, Seltzer failed to demonstrate she was entitled to an exemption on the funds transferred from her IRA account to the Bank of America.
Seltzer also asserts that she was not required to make the showing required under section 704.115, subdivision (e) because the funds in her IRA account were rolled into that account from a private retirement account in 1992. Thus, she argues, she was entitled to an exemption under section 704.115, subdivision (a)(1). We disagree.
Section 703.080 provides in pertinent part that "a fund that is exempt remains exempt to the extent that it can be traced into deposit accounts or in the form of cash or its equivalent." (§ 703.080, subd. (a).) As the appellate court concluded in McMullen v. Haycock (2007) 147 Cal.App.4th 753, funds rolled over from a private retirement account, under section 704.115, subdivision (a)(1), into an IRA account, under subdivision (a)(3), retain their fully exempt status, and are not subject to the "extent necessary" limitation under subdivision (e) normally applicable to IRA accounts. (See id. at p. 759.) Nevertheless, section 703.080 also provides, "The exemption claimant has the burden of tracing an exempt fund." (§ 703.080, subd. (b).) In support of her claim of exemption, Seltzer offers only the naked assertion that the IRA funds were rolled over from a private retirement account in 1992. The record, however, is devoid of competent evidence establishing that the funds in her IRA account were the proceeds of a private retirement account as that term is defined in section 704.115, subdivision (a)(1). In addition, Seltzer failed to produce documentary evidence regarding activity on the IRA account since its inception in 1992. Accordingly, we conclude Seltzer failed to carry her burden of proof that the IRA funds are traceable to funds from a fully exempt private retirement account.
In sum, we conclude the trial court correctly determined that Seltzer failed to demonstrate the levied funds were exempt from judgment under section 704.115.
The trial court's post-judgment orders awarding attorney fees to defendants and the Association, and denying Seltzer's motion for stay of enforcement and claim of exemption, are affirmed. Seltzer shall bear costs on appeal.
Jenkins, J. We concur: McGuiness, P. J. Siggins, J.