Tye Sheats v. City of East Wenatchee ( 2018 )

FILED
DECEMBER 11, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
TYE SHEATS, ) No. 35555-1-III
)
Appellant, )
)
v. )
) PUBLISHED OPINION
CITY OF EAST WENATCHEE, )
DOUGLAS COUNTY, CITY OF )
WENATCHEE, CHELAN COUNTY, The )
Wenatchee World newspaper, )
)
Respondents. )
LAWRENCE-BERREY, C.J. — RCW 4.28.020 prescribes a procedure before
superior courts are deemed to have acquired subject matter jurisdiction over a civil action.
The procedure requires service of a summons or filing of a complaint. We hold that the
initial pleading filed by Officer Tye Sheats substantially complied with the statutory
requirement of filing a complaint so that the trial court obtained subject matter
jurisdiction over this action.
RCW 42.56.250(2) exempts certain employment information from dissemination
in response to a request for public records under the Public Records Act (PRA), chapter
No. 35555-1-III
Sheats v. City of East Wenatchee
42.56 RCW. We hold that polygraph reports taken by peace officers as part of a pre-
employment screening qualify as “other related materials submitted with respect to an
applicant,” so that such reports are exempt under RCW 42.56.250(2).
But when an agency elects to disseminate exempt records in response to a PRA
request, a person seeking to enjoin dissemination has a heavy burden, which
includes establishing that dissemination of the record would clearly not be in the public
interest. RCW 43.101.095(2)(a), which requires rigorous screening of peace officers to
determine their suitability for employment, evinces clear public policy that peace officers
be law abiding persons. Here, Officer Sheats’s redacted polygraph report discloses
numerous instances of theft and dishonesty. Because the public has an interest in
knowing whether a particular officer is law abiding, the public has an interest in viewing
Officer Sheats’s redacted report.
We affirm the trial court’s decision generally denying Officer Sheats’s motion for
a permanent injunction.
FACTS
Officer Sheats works as a police officer for the East Wenatchee police department
in Douglas County. In 2016, he applied for an opening at the Wenatchee police
department in Chelan County. As part of the application process, he submitted to a
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polygraph test. During the test, Officer Sheats admitted to numerous wrongdoings
between 2000 and 2016, including several incidents of theft and dishonesty.
On June 2, 2017, and pursuant to the requirement of Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), Wenatchee Assistant City Attorney Danielle
Marchant wrote a letter to defense counsel in a case where Officer Sheats was identified
as a prosecution witness. The letter disclosed Officer Sheats’s admitted wrongdoings as
potential impeachment material. Soon after, Ms. Marchant notified the Douglas County
prosecuting attorney’s office of the potential impeachment material and attached a copy
of the letter she had written to defense counsel. Douglas County Prosecuting Attorney
Steven Clem requested from Ms. Marchant a copy of Officer Sheats’s polygraph report.
Citing PRA exemptions, Ms. Marchant declined to produce the report.
Officer Sheats was a named prosecution witness in a Douglas County criminal
case. Mr. Clem filed a motion in that case to obtain a copy of the polygraph report from
the city of Wenatchee. In a letter to Ms. Marchant, Mr. Clem explained he needed the
report to comply with his obligation under Brady to disclose potential impeachment
material to defense counsel. The State provided the city of Wenatchee and Officer Sheats
notice of its motion. The city of Wenatchee did not oppose the motion. Officer Sheats
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did not file any response. The Douglas County Superior Court issued an order directing
the city of Wenatchee to provide a copy of Officer Sheats’s polygraph report.
Ms. Marchant complied with the order and provided the Douglas County
prosecutor’s office with a copy of the polygraph report. That same day, Mr. Clem
provided a redacted copy of the report to the East Wenatchee police department and to the
East Wenatchee city attorney. Soon after, the Douglas County prosecuting attorney’s
office provided the same redacted report to all criminal defense attorneys who had a
pending case with Officer Sheats identified as a prosecution witness.
On July 17, 2017, a reporter for the Wenatchee World made a PRA request to the
city of East Wenatchee seeking “‘[a]ll disciplinary records, citizen complaints and ethics
complaints pertaining to East Wenatchee Officer Tye Sheats.’” Clerk’s Papers (CP) at 4.
The city informed Officer Sheats that it would release the redacted report unless it
received an injunction before July 27, 2017.1
PROCEDURE BELOW
On July 26, 2017, Officer Sheats, through counsel, filed an action in Douglas
County Superior Court to enjoin the respondent cities and counties from releasing, and
We note that Officer Sheats’s polygraph report is not within the scope of the
1
newspaper’s PRA request.
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the respondent newspaper from obtaining, his polygraph report. Officer Sheats did not
file a summons and complaint. Instead, he filed a six-page pleading comprised of three
parts. The first part was an ex parte motion requesting a temporary restraining order
(TRO) and an eventual permanent injunction. The second part was a declaration of facts
setting forth much of the information contained above. The third part was a
memorandum of authorities citing and quoting several relevant statutes in support of his
ultimate request for a permanent injunction.
That afternoon, Officer Sheats presented his ex parte motion to the court and the
court issued a TRO. The order enjoined the respondent cities and counties from
disclosing the polygraph report and enjoined the Wenatchee World from obtaining the
report. The court set a hearing for 8:00 a.m. on August 14, 2017, for argument related to
the request for the permanent injunction.
On July 28, a process server served the initial pleading and order on Mr. Clem.
Mr. Clem was not authorized to accept service on behalf of Douglas County. There is no
evidence that Officer Sheats served anyone other than Mr. Clem with the initial pleadings
or order.
Also on July 28, Douglas County filed a motion to dissolve the TRO and noted its
motion for August 1. There were multiple bases for the motion, including improper
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service of the initial pleadings and order. Douglas County did not allege lack of subject
matter or personal jurisdiction.
At the August 1 hearing, Mr. Clem’s substantive objection with the TRO was its
overbreadth: it prevented Douglas County from complying with its obligation to disclose
Brady material to defense counsel in cases where Officer Sheats was listed as a
prosecution witness. In response to the trial court’s comments, the parties expressed
optimism that they could agree to a narrower TRO. On August 2, Mr. Clem obtained
signatures from all parties on an amended TRO, and the court signed the amended TRO.
The amended TRO permitted the respondent cities and counties to disclose Brady
material to defense counsel in cases where Officer Sheats was listed as a prosecution
witness.
All parties except Chelan County filed briefs prior to the August 14 hearing.
Although all parties provided substantive arguments in their briefs, only the city of East
Wenatchee and the city of Wenatchee included procedural arguments in their briefs.
Those briefs were filed two business days before the August 14 hearing.
Both cities argued that Officer Sheats had not properly commenced the action.
The city of East Wenatchee cited CR 3 and argued that Officer Sheats’s failure to file a
complaint or serve a summons meant he had “not actually commenced a lawsuit, [and
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the] Court [should] dismiss his motion.” Clerks Papers (CP) at 127. Other than citing
CR 3, the city of East Wenatchee did not provide any additional authority or argument for
its position. Specifically, it did not mention or discuss lack of subject matter or lack of
personal jurisdiction.
The city of Wenatchee cited RCW 4.28.020 and argued that because Officer
Sheats had “failed to file a summons and complaint, [the] Court ha[d] not yet acquired
jurisdiction over this matter or the parties.” CP at 92. Other than citing to the statute, the
city of Wenatchee did not provide any additional authority or argument for its position.
Officer Sheats did not respond to the late procedural arguments. Nor did the
parties discuss personal jurisdiction at the August 14 hearing.
In a written decision, the trial court determined that Brady required the disclosure
of the redacted polygraph report to defense attorneys who had cases where Officer Sheats
was listed as a prosecution witness. The court also determined that because the redacted
report was required to be disclosed under Brady, it could be disseminated to persons
making a PRA request.
Officer Sheats appealed, assigning error to the court’s findings that the redacted
report be disclosed under Brady and that it be disclosed under the PRA.
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ANALYSIS2
A. PROCEDURAL CHALLENGES BY RESPONDENT CITIES
1. Subject matter jurisdiction
The city of Wenatchee argues that Officer Sheats did not properly commence the
matter in accordance with RCW 4.28.020. It argues that this failure prevented the trial
court from acquiring subject matter jurisdiction.
Unfortunately, the city offers no additional authority or argument on this claim.
An appellate court may decline to address an issue that is insufficiently briefed or argued.
RAP 10.3(a)(6); Scott’s Excavating Vancouver, LLC v. Winlock Prop., LLC, 176 Wn.
App. 335, 348, 308 P.3d 791 (2013) (“We decline to address arguments unsupported by
citation to authority or argument.”). We address the issue nonetheless because
“[w]henever it appears by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the action.” CR 12(h)(3).
2
Respondent Chelan County did not file a response brief and joined respondent
Douglas County in its response brief. Letter from Prosecuting Attorney Douglas Shae to
Renee Townsley, Clerk of Court, Wash. Ct. App. Div. III, (Mar. 23, 2018), Sheats v. City
of East Wenatchee, No. 35555-1-III (Wash. Ct. App.). Respondent Wenatchee World
newspaper did not file a brief and joined the other respondents in their response briefs.
Letter from Erin McCool, Ogden Murphy Wallace to Renee Townsley, Clerk of Court,
Wash. Ct. App. Div. III, (Apr. 6, 2018), Sheats v. City of East Wenatchee, No. 35555-1-
III, (Wash. Ct. App.).
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We review questions of subject matter jurisdiction de novo. Dougherty v. Dep’t of
Labor & Indus., 150 Wash. 2d 310, 314, 76 P.3d 1183 (2003). In Marley v. Department of
Labor & Industries, 125 Wash. 2d 533, 539, 886 P.2d 189 (1994), the Washington Supreme
Court clarified what it means for a trial court to have subject matter jurisdiction:
Section 11 of the Restatement [(Second) of Judgments (1982)]
defines subject matter jurisdiction: “A judgment may properly be rendered
against a party only if the court has authority to adjudicate the type of
controversy involved in the action.” (Italics ours.) We italicize the phrase
“type of controversy” to emphasize its importance. A court or agency does
not lack subject matter jurisdiction solely because it may lack authority to
enter a given order.
....
A tribunal lacks subject matter jurisdiction when it attempts to
decide a type of controversy over which it has no authority to adjudicate.
[T]he focus must be on the words “type of controversy.” If
the type of controversy is within the subject matter
jurisdiction, then all other defects or errors go to something
other than subject matter jurisdiction.
Robert J. Martineau, Subject Matter Jurisdiction as a New Issue on Appeal:
Reining in an Unruly Horse, 1988 B.Y.U. L. REV. 1, 28.
In Washington, our superior courts are courts of general jurisdiction and have the
authority to hear and decide cases in equity and all cases at law for which jurisdiction has
not been vested by law in some other court. WASH. CONST. art. IV, § 6. Unquestionably,
the trial court here had subject matter jurisdiction to construe the PRA and to issue or
decline to issue an injunction. But our inquiry does not end here.
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“It is axiomatic that a judicial power vested in courts by the constitution may not
be abrogated by statute.” James v. Kitsap County, 154 Wash. 2d 574, 588, 115 P.3d 286
(2005). “However, . . . where statutes prescribe procedures for the resolution of a
particular type of dispute, state courts have required substantial compliance or satisfaction
of the spirit of the procedural requirements before they will exercise jurisdiction over the
matter.” Id. Here, RCW 4.28.020 is a statute that prescribes procedures before a trial
court acquires jurisdiction over a civil action. It provides:
From the time of the commencement of the action by service of summons,
or by the filing of a complaint, or as otherwise provided, the court is
deemed to have acquired jurisdiction and to have control of all subsequent
proceedings.
RCW 4.28.020 (emphasis added).
The question then becomes whether Officer Sheats substantially complied
with the procedural requirements of RCW 4.28.020.
“Substantial compliance has been defined as actual compliance in respect to
the substance essential to every reasonable objective of the statute. It means a
court should determine whether the statute has been followed sufficiently so as
to carry out the intent for which the statute was adopted.”
James, 154 Wash. 2d at 588 (quoting In re Habeas Corpus of Santore, 28 Wash. App. 319,
327, 623 P.2d 702 (1981) (citation omitted)).
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Here, Officer Sheats substantially complied with RCW 4.28.020’s requirement to
file a complaint. The objectives of a complaint are “(1) a short and plain statement of the
claim showing that the pleader is entitled to relief and (2) a demand for judgment for the
relief to which the pleader deems the pleader is entitled.” CR 8(a). The initial pleading
filed by Officer Sheats contained a declaration setting forth the claimed facts and a
memorandum explaining the legal bases for the relief he requested. Because the pleading
achieves every reasonable objective of a complaint, we conclude that Officer Sheats’s
initial pleading substantially complied with RCW 4.28.020’s requirement that a complaint
be filed. See Schlesinger v. Councilman, 420 U.S. 738, 742 n.5, 95 S. Ct. 1300, 43 L. Ed.
2d 591 (1975) (“[P]apers filed by Councilman—motions for a temporary restraining order
and a preliminary injunction, and supporting affidavit and briefs—although not formally
denominated a complaint, were adequate to apprise petitioners of the nature of the claim
and the relief sought and to invoke the jurisdiction of the court.”).
2. Personal jurisdiction
The cities of Wenatchee and East Wenatchee both argue that Officer Sheats’s
failure to file a complaint and serve them process causes the court to lack personal
jurisdiction over them.
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Whether a court has personal jurisdiction over a defendant is a question of law
reviewed de novo. Lewis v. Bours, 119 Wash. 2d 667, 669, 835 P.2d 221 (1992).
Proper service of a summons and complaint is a prerequisite to the court obtaining
jurisdiction over a party. Streeter-Dybdahl v. Nguyet Huynh, 157 Wash. App. 408, 412, 236
P.3d 986 (2010); Woodruff v. Spence, 76 Wash. App. 207, 209, 883 P.2d 936 (1994); Lee v.
W. Processing Co., 35 Wash. App. 466, 469, 667 P.2d 638 (1983). Officer Sheats failed to
properly serve any party with a summons and complaint.
Officer Sheats argues that the cities waived their objection to lack of personal
jurisdiction. CR 12(h)(1) provides in relevant part:
A defense of lack of jurisdiction over the person, improper venue,
insufficiency of process, or insufficiency of service of process is waived . . .
if it is neither made by motion under this rule nor included in a responsive
pleading or an amendment thereof . . . .
The city of East Wenatchee never asserted lack of personal jurisdiction. It,
therefore, waived its jurisdictional defense.
The city of Wenatchee did assert the defense. But the assertion was a one sentence
statement contained in an 9-page brief filed two business days before the hearing on the
merits. We must decide whether this assertion was sufficient under CR 12(h)(1).
In Sanders v. Sanders, 63 Wash. 2d 709, 388 P.2d 942 (1964), the wife filed a
divorce action against her husband, who had recently moved from Washington State to
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South Carolina. Id. at 711. An attorney who previously represented the husband when he
lived in Washington specially appeared to protect the husband’s interests. Id. That
attorney later brought a motion to change venue, but did not then or later move to dismiss
for lack of personal jurisdiction. Id. at 714. On appeal, the court discussed whether a
special appearance was sufficient under CR 12(h)(1) to apprise the trial court of the
jurisdictional challenge:
To constitute a motion challenging jurisdiction the statement must be clear
enough both to inform the trial judge as to the nature of the issue and to ask
for an immediate ruling on it. While the bare statement that the attorney is
there on a special appearance may serve to inform the judge of
jurisdictional problems, it in no way requests an immediate ruling, and there
is no opportunity for objection thereto or for noting same for purposes of
the record.
Id. at 715.
Here, the jurisdictional challenge raised in the city of Wenatchee’s brief arguably
informed the trial court of the jurisdictional challenge. But the filing, which occurred
only two business days prior to the hearing on the merits, did not afford Officer Sheats
sufficient opportunity to object and to respond to the issue. We, therefore, conclude that
the city of Wenatchee waived its personal jurisdictional challenge.
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3. Premature appeal
Both cities argue that the appeal is premature because it was filed after the trial
court issued its written decision but prior to entry of a final judgment.
RAP 2.2(a)(3) permits appellate review of a written decision that affects a
substantial right in a civil case if the decision in effect determines and discontinues the
action. Here, the parties submitted the case on briefs and declarations. There were no
witnesses nor were there any genuine issues of material fact. Similar to a summary
judgment motion, here there was no need for formal findings of fact and conclusions of
law. The trial court’s decision determined that Officer Sheats was not entitled to his
requested injunction and there was nothing left to determine. Under these circumstances,
the written decision was appealable. See Backlund v. Univ. of Wash., 137 Wash. 2d 651,
656 n.1, 975 P.2d 950 (1999) (Failure to enter findings and conclusions following a
memorandum decision will not preclude appellate review in an appropriate case.).
B. SUBSTANTIVE CHALLENGES BY OFFICER SHEATS
1. Disclosure of redacted polygraph report as Brady material
On appeal, Officer Sheats acknowledges that the redacted polygraph report must
be disclosed in certain criminal cases. He argues that disclosure is limited only to those
criminal cases where “there is a reasonable probability that, had the evidence been
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disclosed to the defense, the result of the proceedings would have been different.” Br. of
Appellant at 11. We disagree.
A prosecutor has a constitutional duty to disclose both exculpatory evidence and
impeachment evidence favorable to a criminal defendant. Brady, 373 U.S. at 87
(prosecutor’s failure to disclose evidence favorable to an accused violates due process);
see also United States v. Bagley, 473 U.S. 667, 678-84, 105 S. Ct. 3375, 87 L. Ed 2d 481
(1985) (Failure to disclose evidence that could have been used to impeach a government
witness violates due process.). This constitutional duty to disclose exists even if the
governmental record is exempt from disclosure under a state statute. See Pennsylvania v.
Ritchie, 480 U.S. 39, 57, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987).
Therefore, even if Officer Sheats’s polygraph report is exempt from dissemination
under the PRA, the respondent cities and counties are required to disclose it to defense
counsel in cases where the polygraph report would qualify as exculpatory evidence or
impeachment evidence favorable to the criminal defendant.
2. Enjoining dissemination of redacted police report to persons making
a PRA request
Officer Sheats argues that the trial court erred when it refused to enjoin
dissemination of his redacted polygraph report to persons making a PRA request. He
argues the report is exempt from dissemination.
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Whether a particular exemption of the PRA applies is a question of law that we
review de novo. Resident Action Council v. Seattle Hous. Auth., 177 Wash. 2d 417, 428,
327 P.3d 600 (2013) (citing RCW 42.56.550(3); Progressive Animal Welfare Soc’y v.
Univ. of Wash., 125 Wash. 2d 243, 271, 884 P.2d 592 (1994)). “Courts shall take into
account the policy of this chapter that free and open examination of public records is in
the public interest, even though such examination may cause inconvenience or
embarrassment to public officials or others.” RCW 42.56.550(3). Courts should construe
exemptions to the PRA narrowly to allow the PRA’s purpose of open government to
prevail when possible. Ameriquest Mortg. Co. v. Office of Att’y Gen., 177 Wash. 2d 467,
487, 300 P.3d 799 (2013) (citing RCW 42.56.030). The party attempting to prevent
dissemination of the public record has the burden of proving that the exemption applies.
Ameriquest, 177 Wash. 2d at 486-87.
Officer Sheats argues that RCW 42.56.250(2) exempts dissemination of a pre-
employment polygraph report. We agree. RCW 42.56.250 provides in relevant part:
The following employment and licensing information is exempt from public
inspection and copying under this chapter:
....
(2) All applications for public employment, including the names of
applicants, resumes, and other related materials submitted with respect to
an applicant.
(Emphasis added.)
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Any law enforcement officer who receives a conditional offer of employment must
submit to a background investigation (including a check of criminal history), a
psychological examination, and a polygraph test. RCW 43.101.095(2)(a). The purpose
of these requirements is “to determine the applicant’s suitability for employment.” Id.
The results of the polygraph test are part of the materials submitted with respect to the
applicant. Even construing RCW 42.56.250(2) narrowly, we conclude that the exemption
applies here.
Respondents counter that the exempt status of a record is not dispositive of
whether dissemination should be enjoined. We agree.
“[F]inding [that] an exemption applies under the PRA does not ipso facto support
issuing an injunction.” Lyft, Inc. v. City of Seattle, 190 Wash. 2d 769, 786, 418 P.3d 102
(2018). In order to enjoin dissemination of an exempt record, the party attempting to
prevent dissemination must show that “disclosure would clearly not be in the public
interest, and would substantially and irreparably damage any person or would
substantially and irreparably damage vital government functions.” Id. at 785 (citing
RCW 42.56.540).
Officer Sheats’s redacted polygraph report contains numerous admissions of theft
and dishonesty. Washington public policy favors hiring and retaining law abiding peace
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officers. This policy is legislatively recognized in RCW 43.101.095’s requirement that
peace officers submit to a background check (including a check of criminal history), a
psychological evaluation, and a polygraph test to determine their suitability for
employment. The public has an interest in knowing if a current peace officer is a law
abiding person.3 Officer Sheats is unable to establish that dissemination of his redacted
polygraph report would clearly not be in the public’s interest.
We conclude that the trial court correctly denied Officer Sheats’s request for a
permanent injunction.
3. Dissemination would not violate right to privacy
Officer Sheats claims that his right to privacy under RCW 42.56.050 would be
violated by the public dissemination of his redacted polygraph report. We disagree.
RCW 42.56.050 provides that an individual’s right to privacy is violated if (1) the
disclosure would be highly offensive to a reasonable person, and (2) disclosure of the
record is not a matter of legitimate public concern. As noted above, Officer Sheats
cannot satisfy the second prong.
3
An agency need not disseminate exempt records of all officer misconduct. An
isolated minor incident, or even a series of incidents before becoming an officer, is not
necessarily indicative of present character. When choosing whether to disseminate an
exempt record, the agency should ask whether a reasonable person would consider the
record probative of the officer’s present character.
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C. ATTORNEY FEES
The cities request an award of reasonable attorney fees.
1. The city of Wenatchee
The city of Wenatchee seeks attorney fees for its efforts for procuring the
dismissal of the TRO at the trial court. It cites Cecil v. Dominy, 69 Wash. 2d 289, 418 P.2d
233 (1966).
In Washington, attorney fees are not available as costs or damages absent a
contract, statute, or recognized ground in equity. City of Seattle v. McCready, 131 Wash. 2d
266, 273-74, 931 P.2d 156 (1997). The court in Cecil held that attorney fees are
recoverable in an action where a trial on the merits has for its sole purpose the
determination of whether an injunction should be dissolved, the injunction is dissolved,
and a trial was the sole procedure available to the party attempting to dissolve the
temporary injunction. 69 Wash. 2d at 293. The rationale for this equitable remedy is that
the only action to be taken by the enjoined party is legal action to dissolve the injunction
and a wrongfully enjoined party should be awarded damages. McCready, 131 Wash. 2d at
278 (citing Cecil, 69 Wash. 2d at 291-92).
Officer Sheats responds that the city of Wenatchee did not request attorney fees at
the trial court level and, therefore, waived its right to recover fees. We agree.
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In general, an argument not raised in the trial court is waived on appeal.
RAP 2.5(a). “While an appellate court retains the discretion to consider an issue raised
for the first time on appeal, such discretion is rarely exercised.” Karlberg v. Otten, 167
Wash. App. 522, 531, 280 P.3d 1123 (2012) (citing Smith v. Shannon, 100 Wash. 2d 26, 38,
666 P.2d 351 (1983)). We decline to review this unpreserved claim of error.
2. The city of East Wenatchee
The city of East Wenatchee requests attorney fees and costs under RAP 18.1,
RAP 14.3, and RAP 18.9(a).
RAP 18.1 sets forth the requirements to request attorney fees when such fees are
permitted by applicable law. East Wenatchee has not cited to an applicable law that
entitles it to attorney fees in responding to this appeal.
RAP 14.3 provides for the recovery of certain expenses to the prevailing party.
The respondent cities and counties have substantially prevailed on appeal and are entitled
to recover allowable costs. We defer a decision on such an award to our commissioner or
clerk.
RAP 18.9(a) permits this court to award a prevailing party reasonable attorney fees
for responding to a frivolous appeal. An appeal is frivolous if there are no debatable
issues on which reasonable minds might differ. Kinney v. Cook, 150 Wash. App. 187, 195,
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208 P .3d 1 (2009). Here, we agreed with Officer Sheats that the lower court had subject
matter jurisdiction, that the parties waived their defense of lack of personal jurisdiction,
and that his polygraph report was exempt from disclosure under RCW 42.56.250(2). His
appeal, therefore, was not frivolous.
Affirmed.
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Lawrence-Berrey, C.J.
WE CONCUR:
Siddoway, J.
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