2011 NBCA 53, 2011 NBCA 53

COURT OF APPEAL OF NEW BRUNSWICK 144-10-CA SALLY WILLIAMSON and HAMMOND RIVER AGGREGATES LTD. (Plaintiffs) APPELLANTS SALLY WILLIAMSON et HAMMOND RIVER AGGREGATES LTD. (Demanderesses) APPELANTES - and - - et - RODNEY J. GILLIS, Q.C., and GILBERT, McGLOAN, GILLIS (Defendants) RESPONDENTS RODNEY J. GILLIS, c.r., et GILBERT, McGLOAN, GILLIS (Défendeurs) INTIMÉS Williamson et al. v. Gillis et al., 2011 NBCA 53 Williamson et autre. c.

Gillis et autre, 2011 NBCA 53 CORAM: The Honourable Justice Robertson The Honourable Justice Richard The Honourable Justice Green CORAM : L’honorable juge Robertson L’honorable juge Richard L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: October 25, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 25 octobre 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 362 Décision frappée d’appel : 2010 NBBR 362 Preliminary or incidental proceedings: Court of Appeal [2010] A.N.-B.

No. 426 Procédures préliminaires ou accessoires : Cour d’appel [2010] A.N.-B. n o 426 Appeal heard: April 26, 2011 Appel entendu : Le 26 avril 2011

Judgment rendered: June 2, 2011 Jugement rendu : Le 2 juin 2011 Reasons for judgment: The Honourable Justice Richard Motifs de jugement : L’honorable juge Richard Concurred in by: The Honourable Justice Robertson The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Robertson L’honorable juge Green Counsel at hearing: For the appellants: Eugene J. Mockler, Q.C. For the respondents: Edwin G. Ehrhardt, Q.C. Avocats à l’audience : Pour les appelantes : Eugene J. Mockler, c.r. Pour les intimés : Edwin G. Ehrhardt, c.r. THE COURT The appeal is dismissed with costs of $2,500.00.

LA COUR Rejette l’appel avec dépens de 2 500 $. The judgment of the Court was delivered by RICHARD J.A. I. Introduction [ 1 ] There are conflicting decisions in New Brunswick on the question of whether or not a defendant, who seeks security for costs pursuant to Rule 58.01 of the Rules of Court , must expressly depose to having a bona fide defence or, stated differently, to having a good defence on the merits of the action. This case provides this Court with the opportunity to resolve that issue. [ 2 ] With leave, Sally Williamson and Hammond River Aggregates Ltd. appeal an order requiring Ms.

Williamson to post security for costs. The order was issued by a judge of the Court of Queen’s Bench subsequent to an unreported decision rendered on October 25, 2010. The appellants maintain the judge erred in law in several aspects, including on the question of whether or not the defendants were required to depose as stated above. For the reasons that follow, I would dismiss the appeal. In my view, there is no requirement for a defendant seeking an order for security for costs to depose in this fashion.

The relief under Rule 58.01 is discretionary and, on application of the standard of review applicable to discretionary orders, there is no basis for appellate intervention in this case.

II. Background [3] For the purposes of this appeal, it is not necessary to delve into the minutiae of the allegations found withinthe Notice of Action with Statement of Claim Attached. Suffice it to reproduce the factual

summary the motion judge set out in hisdecision: The Plaintiff, Sally Williamson, with a New Brunswick registered company, Hammond River Aggregates Ltd., has sued Rodney J.Gillis, Q.C. and the law firm of Gilbert, McGloan, Gillis. She is claiming $2,000,000 in special damages together with compoundinterest at 7% from 2004 to date and costs on a solicitor client basis. The Plaintiffs’ claim is for breach of contract and breach offiduciary duty. A Notice of Action with Statement of Claim attached was issued July 28, 2009. A Statement of Defence was filed October 9, 2009.

There is no reference to other pleadings and the Defendants’ Brief on Law filed for this hearing says in paragraph 11 that Discoverieshave not yet been held. The basis for the Plaintiffs’ Claim flows from their allegations they were the major backers in a relatively straightforward incorporationof a corporation and the company’s acquisition of a gravel pit. They allege the Defendants were their lawyers for all of the transactions. Finally, they allege they did not get what they bargained for and that this failure was a direct result of the actions of the Defendants.

The Statement of Defence denies the direct relationship alleged, disputes the Defendants were instructed by the Plaintiffs to carry outanything and claims there was no duty of care or contractual or fiduciary duties owed by the Defendants to the Plaintiffs. The Defendants filed this motion seeking to have Ms. Williamson submit security for costs pursuant to Rule 58.01(

a) of the Rules ofCourt. The Defendants are seeking $62,945.86 plus reasonable disbursements. This amount represents 2/3 of the anticipated costs for anaction of this nature determined from Scale 3 of Rule 59 for a claim of two million dollars plus interest and ancillary charges. The Defendants claim Sally Williamson is not a resident in the Province of New Brunswick. She agrees she and her husband live inSouris, Prince Edward Island for part of the year while also maintaining approximately half of each year in British Columbia and NovaScotia.

She alleges the couple intends to sell their place on P.E.I. to move to her husband’s property in Bonny River, New Brunswick. However there is no proof of Mr. Williamson’s ownership of any lands in New Brunswick, there is no proof of her assertions about thepending move. [4] In his decision on the motion, the judge’s first consideration was whether Rule 58.01 of the Rules of Courtprovided him with discretion. Rule 58.01(

a) says that a plaintiff may be ordered to furnish security for costs where it appears that theplaintiff is ordinarily a resident out of New Brunswick. Noting that there are cases in New Brunswick that suggest the relief must begranted if the criteria is met, the judge aligned himself with other cases, holding that, even if the criteria set out in Rule 58.01 were met, ajudge still has discretion to decide whether or not to order a plaintiff to furnish security for costs. Specifically, the judge referred toGarnett v. Zurich Insurance Company et al. (1988), (NB KB), 83 N.B.R. (2d) 121, [1987] N.B.J.

No. 909 (Q.B.)(QL), where, relying on Cyr v. College Saint-Louis/Maillet (1977), (NB KB), 19 N.B.R. (2d) 26, [1977] N.B.J. No.29 (C.A.) (QL), Jones J. concluded there was “a discretion and presumably it should be exercised in accordance with the principles ofjustice” (para. 22). The judge acknowledged that, in exercising discretion, consideration must be given to the merits of the case. [5] I pause to note that, although the motion judge’s determination that Rule 58.01 confers upon him discretion isnot challenged on appeal, I nevertheless express full agreement with that conclusion.

Not only is discretion consistent with the wordingof Rule 58.01, which says that “[a] plaintiff may be ordered to furnish security for costs”, but it also accords with the decision of thisCourt in Buraglia v. New Brunswick Research and Productivity Council et al. (1995), (NB CA), 161 N.B.R. (2d) 197,[1995] N.B.J.

No. 177 (C.A.) (QL), where Hoyt C.J.N.B. recognized that an order made under Rule 58.01 is discretionary and noted that“in appropriate circumstances, the Rule will not be used [even if the criteria is met] if the effect is to prevent a plaintiff from its day incourt” (para. 5). [6] In his decision, the motion judge reviewed the pleadings and concluded there was a serious issue to be

litigated. The judge acknowledged a line of cases that requires a defendant applying for security for costs to expressly state in anaffidavit that there is a valid defence on the merits, but he declined to follow it. Instead, he followed a case where such a requirementwas expressly rejected. This determination forms the basis of the first ground of appeal. [7] The motion judge then noted Ms. Williamson had not claimed she would be deprived of her “day in court” ifshe were required to post security for costs. He continued by considering the effect of the evidence that Ms.

Williamson’s husband hadproperty interests in New Brunswick, and that Ms. Williamson claimed an interest in Hammond River Aggregates Ltd. On this lastpoint, the judge said he was loathe to assume her interests in the company would be “exigible and could be applied to the costs againstMs. Williamson if she were to lose this case” because the ownership of the company is “being determined co-incidental to this action.” He also noted he had no actual evidence as to the value of the shares. The judge’s conclusions regarding Ms.

Williamson’s interest inHammond River Aggregates Ltd. and the proof of the value of that interest form the basis of the second ground of appeal. [8] The judge next considered Ms. Williamson’s argument that a motion under Rule 58.01 is not necessarybecause, if successful, the Defendants could proceed under Prince Edward Island’s Canadian Judgments (Enforcement) Act, R.S.P.E.I.1988, c. C-1.1, to recover any costs awarded to them. The judge noted that this consideration did not form part of Rule 58 and that JonesJ. had dismissed a similar argument in Garnett. In her third ground of appeal, Ms.

Williamson says the judge erred in dismissing herargument on this point. [9] Having concluded this was an appropriate case to order security for costs, the judge determined the amountby relying on the decisions of Stratton J. (as the then was) in Maryon v. The New Brunswick Telephone Company Limited. (1976), (NB KB), 16 N.B.R. (2d) 59, [1976] N.B.J. No. 237 (Q.B.) (QL), aff’d (1976), (NB CA), 16 N.B.R.(2d) 56, [1976] N.B.J. No. 236 (C.A.) (QL) and of McNally J. in Prism Transport Ltd. v. UPM-Kymmene Miramichi Inc., 2006 NBQB344, 310 N.B.R. (2d) 142, at para. 24. He fixed the amount at $60,000.00.

The determination of the amount is not an issue on appeal. III. Issues on Appeal [10] Ms. Williamson appeals the judge’s order and sets out four grounds of appeal. She claims the judge: 1. Erred in law when he held that the Affidavit upon which the application was brought was sufficient under Rule 58 of the Rules ofCourt; 2. Erred in law when he held there was no evidence to support the value of shares and other property in New Brunswick to satisfy ajudgment for costs; 3.

Erred in law in his failure to properly consider the effect of the Canadian Judgments (Enforcement) Act of Prince Edward Island uponthe application for security; and, 4. Erred in law in that he committed an overriding and palpable error and failed to do justice between the parties in the exercise of hisdiscretion to grant the motion before him. [11] With respect, only the first ground of appeal raises a true question of law that requires a determination on thecorrectness standard.

The other grounds of appeal stand to be determined on application of the standard of appellate review applicable todiscretionary orders. IV. Analysis A. The Standard of Review

[ 12 ] In Maryon , Hughes C.J.N.B. described the standard of review, in an appeal against an order for security for costs, as follows: An order for security, being one for the exercise of a discretion by the Judge hearing the application, will not be interfered with on appeal unless the Court is satisfied the Judge exercising the discretion has acted on a wrong principle of law or because on some other grounds the decision will result in an injustice being done. [para. 4] [Emphasis added.] [ 13 ] The modern formulation of the standard of review applicable to the exercise of judicial discretion in this Province was articulated in The Beaverbrook Canadian Foundation v.

The Beaverbrook Art Gallery , 2006 NBCA 75 , 302 N.B.R. (2d) 161 , by Drapeau C.J.N.B.: Like any other discretionary judicial decision, it may be interfered with on appeal only if it is founded upon an error of law, an error in the application of the governing principles or a palpable and overriding error in the assessment of the evidence (see British Columbia (Minister of Forests) v. Okanogan Indian Band , [2003] 3 S.C.R. 371, 2003 SCC 71 at para. 43 ) or if it is unreasonable, in the sense that nothing in the record can justify it (see The Honourable R.P.

Kerans, Standards of Review Employed by Appellate Courts (Edmonton: Juriliber Limited, 1994) at pp. 36-37 and Secretary of State for Education and Science v. Tameside Metropolitan Borough Council , [1977] A.C. 1014 (H.L.) Lord Diplock at p. 1064). [para. 4] [ 14 ] Time and again since the decision in Beaverbrook , this Court has, in various contexts, applied this formulation of the standard of review to decisions made in the exercise of judicial discretion: Clements and Wawanesa Mutual Insurance Company v. Fougère and Morin , 2007 NBCA 4 , 311 N.B.R. (2d) 368 , Turnbull-Burnight v.

CIBC World Markets Inc. , Oland and Spencer , 2007 NBCA 43 , 318 N.B.R. (2d) 326 , Spielo Manufacturing and Manship v. Doucet and Dauphinee , 2007 NBCA 85 , [2007] N.B.J. No. 510 (QL) , Euclide Cormier Plumbing and Heating Inc. v. Canada Post Corp. , 2008 NBCA 54 , 334 N.B.R. (2d) 211 , Seely v. Corrier , 2009 NBCA 3 , 340 N.B.R. (2d) 262 , State Farm Mutual Automobile Insurance Company v. State Farm Mutual Automobile Insurance Company v. Privacy Commissioner of Canada and Attorney General of Canada , 2009 NBCA 5 , 341 N.B.R. (2d) 1 , Province of New Brunswick v.

Morgentaler, 2009 NBCA 26 , 344 N.B.R. (2d) 39 , Jean v. Pêcheries Roger L. Ltée , 2010 NBCA 10 , 354 N.B.R. (2d) 300 , St-Cœur, Dozois and Doucet v. Conseil récréatif de Bois Blanc Inc. , 2010 NBCA 61 , 363 N.B.R. (2d) 206 , and Pelletier Plumbing & Heating Ltd. et al. v. Cyr , 2011 NBCA 13 , [2011] N.B.J. No. 36 (QL) . [ 15 ] I see no reason why this standard of review ought not to be applied to an order requiring a plaintiff to furnish security for costs. In my view, it is a standard that is wholly compatible with the one applied in Maryon .

Chief Justice Drapeau’s formulation merely clarifies that “principles of law” that might justify appellate intervention are: an error of law, an error in the application of the governing principles, or a palpable and overriding error in the assessment of the evidence. It also clarifies that “an injustice” is done when the decision is unreasonable, in the sense that nothing in the record can justify it. B. Application of the Standard of Review

(1) Sufficiency of the affidavit [ 16 ] Ms. Williamson submits Mr. Gillis’ affidavit, filed in support of the motion seeking security for costs, does not provide a sufficient basis upon which the judge could make the order sought. Specifically, Ms. Williamson says it was incumbent upon Mr. Gillis to expressly state he and his firm have a bona fide defence. A review of the affidavit reveals that Mr. Gillis does not comment on the merits of the defence.

Instead, he attaches to his affidavit the Notice of Action with Statement of Claim Attached and the Statement of Defence. [ 17 ] In his decision, the motion judge acknowledged this omission but noted there are two lines of cases on point: one stating such an omission is not fatal and the other holding otherwise. The judge relied on the pleadings to conclude that “the Defendants are treating this matter seriously and that they believe they have a good defence.”

[18] In my view, this ground of appeal raises the following question of law: in a motion seeking a plaintiff to postsecurity for costs, is it imperative that the defendant state in an affidavit that there is a good defence on the merits? If yes, the judgeerred. If no, he didn’t. [19] Rule 58 does not specify the factors to be weighed in the exercise of discretion under Rule 58.01.

Essentially,the adjudication of a motion seeking security for costs seeks to do justice between the parties by ensuring “equality between litigants”, inthe sense that, “[w]here a plaintiff does not reside in the province and does not possess assets within the province sufficient to satisfycosts, that party is not at risk on an equal footing with a resident party”: Isabelle v. Campbellton Regional Hospital and Arseneau(1987), (NB KB), 80 N.B.R. (2d) 181, [1987] N.B.J. No. 1161 (Q.B.) (QL), at para. 5.

On the one hand, the Courtdoes not want to bar the plaintiff’s action, and, on the other, it wants to prevent a defendant from being deprived of costs if the action isdismissed. In balancing these competing interests, it is not surprising that the merits of the defence feature among the various factors ajudge must weigh. The question is whether the defendant seeking security for costs must depose to having a valid defence or whether aninference of a serious triable issue, drawn from the facts or from the pleadings, is sufficient. [20] In some decisions under the predecessor to Rule 58, referred to in McLellan v.

McLellan (1982), (NB KB), 45 N.B.R.(2d) 179, [1982] N.B.J. No. 424 (Q.B.) (QL) or in Brunswick Printing v. Centennial Office Equipment et al.(1984), (NB KB), 59 N.B.R. (2d) 243, [1984] N.B.J. No. 16 (Q.B.) (QL), and in both these cases, it has been held thata defendant is required to state, in an affidavit filed in support of a motion seeking security for costs, that there is a bona fide defence or,stated differently, that “the defendant has a good defence on the merits or that the grounds of action are trivial or frivolous” (BrunswickPrinting, at para. 17, quoting Charron v.

MacDonald et al., (ON SC), [1938] 4 D.L.R. 768). However, the failure tocomply with this requirement has not always been fatal. In Brunswick Printing, Richard C.J.Q.B. held the requirement was met when thepleadings were attached to the defendant’s affidavit (para. 32). [21] On the other hand, in Edmundston Roladrome et al. v. Roynat Inc. et al. (1985), (NB KB),62 N.B.R. (2d) 444, [1985] N.B.J. No. 193 (Q.B.) (QL), Dickson J. refused to impose upon a defendant the requirement to state, in anaffidavit in support of a motion for security for costs, that there is a good defence on the merits.

Instead, he opined that “an obvious lackof merit in a defence apparent on the face of the material before the court [would be] considered by a court in its discretion as sufficientreason for refusal of an order for security” (para. 12). Dickson J. respectfully declined to follow McLellan, pointing out that it relied onOntario cases where there was a statutory requirement for such a statement. [22] Edmundston Roladrome was followed in 036550 (N.B.) Ltd. v. Shenstone Investments Ltd. (1987), (NB KB), 79 N.B.R. (2d) 271, [1987] N.B.J. No. 82 (Q.B.) (QL).

In my view, the motion judge was correct to likewise follow thisline of jurisprudence. If there were to be, in this Province, a requirement that a defendant seeking security for costs make a specificassertion in an affidavit, this would have been provided for in the Rules of Court, or would arise by necessary inference. Several Rulesmandate specific language in support of various applications or motions: Rules 7.02, 7.06, 21.04, 22.02, 43.03, 44.01, 68.02, 71.02 and76.03. For example, Rule 22.02(1) specifically provides that a plaintiff applying for

summary judgment must file and serve an affidavit“(

a) setting out the facts verifying the claim or part of the claim, and (

b) stating that he knows of no fact which would constitute adefence to the claim or part of the claim except as to amount.” The failure to comply with the mandatory language of s. 22.01(1) isfatal: Harris v. W.H. Goodwin & Co. Ltd., 2008 NBCA 14, 327 N.B.R. (2d) 96. In my view, if there were to be a similar requirementfor a motion under Rule 58.01, it would have been expressly stated or, at least, would be a necessary inference from the language of theRule. [23] This is not to say, however, that the merit of the defence is not a proper consideration.

In cases ofinterlocutory injunctions or of stays of execution, the first step in the analysis is to determine whether there is a serious question to bedetermined: RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17(QL). In my view, this is also a proper consideration in a motion seeking security for costs. While it will certainly be prudent for adefendant seeking security for costs to set out sufficient facts verifying the seriousness of the question(

s) to be tried, the failure to do sowill not always be fatal, especially if the pleadings are before the motion judge and the seriousness of the issue can be inferred fromthese. That is the approach Richard C.J.Q.B. took in Brunswick Printing and the one the motion judge adopted in this case. [24] This approach is also consistent with the jurisprudence of this Court regarding security for costs on appealpursuant to Rule 58.10. In Dugas Estate (Bankrupt), Re (2003), (NB CA), 261 N.B.R. (2d) 99, [2003] N.B.J.

No.230 (C.A.) (QL), Drapeau C.J.N.B. stated: In my view, an order for security for costs should only be issued when it is required in the interests of justice. It goes without saying thata key consideration in the exercise of the judicial discretion recognized by Rule 58.10(1)(

b) is the apparent strength of the grounds ofappeal. An appellant's financial means or lack thereof may also come into play. On that score, I note that judges have shown a great dealof reticence in granting orders for security for costs where the impecuniosity of the appellant is such that the likely consequence of theorder will be a deemed abandonment of an apparently meritorious appeal. That said, an appellant's impecuniosity would not necessarilypreclude an order under Rule 58.10(1)(

b) if the appeal appears to have a very poor chance of success or is vexatious. [para. 9]

[25] This statement applies mutadis mutandis to security for costs under Rule 58.01. [26] I therefore conclude the motion judge did not err in law in ruling that there is no requirement for specificlanguage in an affidavit in support of a motion seeking a plaintiff to post security for costs. The judge correctly held that one of theconsiderations in the Rule 58.01 analysis is whether or not there is a serious question to be tried, and he was correct in finding that thisfactor could be inferred from pleadings.

(2) The other grounds of appeal [27] Ms. Williamson argues the judge erred in holding there was no evidence to support the value of the shares andother property in New Brunswick to satisfy a judgment for costs. To be successful on this ground, Ms. Williamson would have to show apalpable and overriding error in the judge’s assessment of the evidence. She has not done so. Whether or not Ms. Williamson holds anyshares in the corporate plaintiff is a subject-matter of the action, and it was therefore reasonable for the judge to hesitate to attribute thisasset to her.

Moreover, even if it could be shown the judge committed an error in his assessment of the evidence, the error would not bean overriding one. Whether Ms. Williamson has assets in New Brunswick is only one factor that might weigh against ordering securityfor costs. The fact is that Rule 58.01 was triggered because Ms.

Williamson is ordinarily resident out of New Brunswick and the judgecould, upon considering all the relevant factors, order the plaintiff to furnish security for costs. [28] As for the effect of Prince Edward Island’s Canadian Judgments (Enforcement) Act, the motion judge stated asfollows: At the hearing, Ms. Williamson’s counsel suggested the motion under rule 58 was unnecessary as, if the Defendants were successful,they could immediately file claims under Prince Edward Island’s new Canadian Judgments (Enforcement) Act and be immediatelyreimbursed from Ms. Williamson.

With respect, apart from the problems of collection if Ms. Williamson does not have sufficient resources in Prince Edward Island, therecould be a more immediate problem if Ms. Williamson exercises her ambition to move but does so by moving to either Nova Scotia orBritish Columbia. In this regard, I note Justice Jones commented upon a similar suggestion to be considered with respect to Reciprocal Enforcement ofJudgments Act in other jurisdictions in the Garnett v. Zurich Insurance Company et al. case cited above.

At paragraph 13 he said: Clearly Order 58 contemplates applications where plaintiffs are from other jurisdictions in Canada which are reciprocating states underthe terms of the aforementioned Act. This is not a ground for avoiding the responsibility to provide security for costs. See Goldberg et alv.

DeLorey and DeLorey (NB KB), 30 N.B.R. (2d) 395, Dickson, J. at p. 397: “The practice in this province has beenalmost invariably to require the provision of security; although the matter is within the discretion of the judge hearing the application.While the existence of reciprocal enforcement arrangements may be a factor to consider in exercising the discretion, I cannot see that itshould be a very important factor, because a successful defendant may be put nevertheless to very considerable expense in recovering hiscosts outside the jurisdiction.” I recognize the differences between the new legislation in P.E.I. and the standard reciprocal enforcement legislation.

I do not understandwhy a Court in New Brunswick would accept the new legislation over the use of our own Rules of Court. There is a simple processbefore us and I would not risk adversely affecting the Defendants who are seeking the protection of the Court by accommodating thePlaintiff’s desire to avoid pre-paying the potential costs. [29] There is no rule of law that prevents a judge from ordering a plaintiff to post security for costs because theplaintiff resides in a jurisdiction, like P.E.I., that has adopted legislation to enforce inter-provincial judgments.

The existence of suchlegislation is a factor, and the judge considered it. Therefore, it cannot be said the judge committed an error in the application of thegoverning principles. [30] As for the fourth ground of appeal, the arguments advanced in support of it invite this Court to re-weigh thefactors and to substitute what Ms. Williamson hopes would be a different conclusion. That is not our role. The standard of review doesallow us, however, to look at the motion judge’s decision and determine whether it is unreasonable, in the sense that nothing in the

record can justify it. Assessing it in that light, I conclude there was evidence in the record to justify the order for security for costs: Ms. Williamson is ordinarily resident out of New Brunswick; the pleadings reveal a serious issue to be determined at trial; ownership of the asset Ms. Williamson says might be used to satisfy a judgment for costs will be a live issue at trial; the P.E.I. Canadian Judgments (Enforcement) Act is no legal impediment to an order for security for costs; security for costs will not deprive Ms.

Williamson of her day in court; and, it will serve to prevent the defendants from being deprived of costs if the action is dismissed. [ 31 ] In sum, the motion judge applied the right legal test, considered the relevant factors, weighed these, and came to a conclusion that, in the circumstances, is justified on the record. He judicially exercised his discretion and there is, in my respectful view, simply no basis for appellate intervention. V. Disposition [ 32 ] For these reasons, I would dismiss the appeal and order Ms. Williamson to pay costs of $2,500.00. ____________________________ J.C. MARC RICHARD, J.A.

WE CONCUR: ______________________________ J.T. ROBERTSON, J.A. ______________________________ BRADLEY V. GREEN, J.A.