                                                First Division
                                                July 17, 2006




1-05-3284

ARCADY TROGUB and ROZALYA TROGUB,        )
                                         )
     Plaintiffs-Appellants,              )
                                         )   Appeal from
            v.                           )   the Circuit Court
                                         )   of Cook County
MATTHEW K. ROBINSON,                     )
                                         )   04 M 300760
     Defendant                           )
                                         )   Honorable
(Government Employees Insurance          )   Michael T. Healy,
Company,                                 )   Judge Presiding
                                         )
     Respondent-Appellee).               )

     JUSTICE McBRIDE delivered the opinion of the court:

     Plaintiffs Arcady and Rozalya Trogub accepted $10,000 to

settle a lawsuit they filed against defendant Matthew K. Robinson

after a minor two-car collision on August 28, 1999, near the

intersection of Milwaukee Avenue and Lake Cook Road in Wheeling,
Illinois.    Robinson rear-ended the Trogubs' southbound vehicle.

The Trogubs' automobile insurance carrier, respondent Government

Employees Insurance Company or GEICO, paid $7,650 for the

Trogubs' resulting medical care and sought a portion of the

Robinson settlement proceeds based on a subrogation clause in

GEICO's written insurance policy.   The circuit court determined

GEICO was entitled to subrogate $7,650, less 40% to reflect the

attorney fees the Trogubs had agreed to pay on the amount

recovered in the action and less $336 the Trogubs incurred in

litigation expenses, for a net recovery to GEICO of $4,254.      The

Trogubs appeal, contending GEICO is not entitled to any part of
1-05-3284
the Robinson settlement proceeds or alternatively, that the

circuit court should not have disallowed an additional $297 in

litigation expenses.   Robinson takes no part in this appeal.

     Unless otherwise stated, the following facts are disclosed

by the record on appeal.   According to the Trogubs, they

originally filed suit against Robinson on November 15, 2000, but

voluntarily dismissed the action on June 27, 2003, because their

treating physician was not available when the matter was called

for trial.   The record on appeal includes a copy of the complaint

the Trogubs filed against Robinson on February 24, 2004.

According to the Trogubs, they reached a settlement agreement

with Robinson on April 4, 2005.     The record also discloses that

on April 5, 2005, the Trogubs filed a "motion to strike [GEICO's]

alleged subrogation lien," in which they indicated GEICO "now

seeks to attach" the Robinson settlement and that GEICO's conduct

was improper because it had not appeared or petitioned to

intervene in the Trogubs' suit against Robinson or filed "any

other action to recover [its] medical payment."    The Trogubs did

not indicate how or when they notified GEICO of their suit,

Trogub v. Robinson, No. 04--M1--300760 (Cir. Ct. Cook Co.)

(hereinafter Trogub v. Robinson) or how or when the Trogubs were
notified of GEICO's intention to pursue its subrogation interest.

     On May 3, 2005, GEICO filed an appearance in Trogub v.

Robinson, a written response to the Trogubs' motion to strike the

lien, and a cross-motion to sanction the Trogubs' attorney


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1-05-3284
pursuant to Supreme Court Rule 137 for filing a motion that was

not well grounded in fact or law in order to harass or delay

GEICO's ability to enforce its subrogation rights.        155 Ill. 2d

R. 137.     GEICO's written response included a copy of its

insurance contract with the Trogubs, which stated in relevant

part:

             "CONDITIONS

             The following conditions apply to this

             Coverage:

                                  * * *

             5.   SUBROGATION

                   When we make a payment under this

             coverage, we will be subrogated (to the

             extent of payment made by us) to the rights

             of recovery the injured person or anyone

             receiving the payments may have against any

             person or organization.     Such person will do

             whatever is necessary to secure our rights

             and will do nothing to prejudice them.

                   This means we will have the right to sue

             for or otherwise recover the loss from anyone

             else who may be held responsible."

GEICO also attached copies of its business records indicating the

insurance company made payments on the Trogubs' behalf to Spevak

Medical in Wheeling, Illinois.


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1-05-3284
     In the reply brief the Trogubs filed in support of their

motion to strike GEICO's lien, the Trogubs indicated that when

they agreed to settle with Robinson for $10,000, they were

operating under the "reasonabl[e] belie[f]" that GEICO had

already enforced its subrogation rights against Robinson's

insurer, State Farm Insurance.     The Trogubs did not provide any

facts or otherwise explain why this belief was "reasonable" or

disclose whether they had been represented by counsel at the

time.   They further indicated, however, that by the time their

lawyer took his litigation expenses and 40% contingency fee and

GEICO took its share, the Trogubs would have little cash to show

for their personal injury action, and they argued these

circumstances would have "a chilling effect" on all subsequent

small personal injury actions.

     On June 7, 2005, the circuit court denied the cross-motions.

     After the circuit court indicated GEICO was entitled to

subrogate and declined to strike the lien, the Trogubs filed a

motion and an amended motion to adjudicate the amount of the

lien.   In the amended motion, the Trogubs indicated they still

objected to GEICO's position, but were willing to address the

amount GEICO might be entitled to, because the question was

delaying payment from Robinson.      They reiterated that their

attorney was entitled to 40% of the lawsuit's proceeds and

further stated:

                  "3.   Plaintiffs have incurred the


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1-05-3284
            following litigation expenses:

            a.   Clerk - 11/15/00 - Initial         $220.00

                 Filing

            b.   Sheriff - 11/15/00 - Service         33.00

                 Attempt

            c.   Clerk - 1/26/00 - Alias Summons       5.00

            d.   Special Process Server -             75.00

                 12/30/00

            e.   Clerk-2/24/04-Refiling [after       271.00

                 voluntary nonsuit]

            f.   Sheriff - 2/2/04 - Service           33.00

                 Attempt

            g.   Clerk - 4/27/04 - Alias               6.00

            h.   Sheriff-4/27/04-Service              34.20

            i.   McMorke [sic] Court Reporters -      90.00

                 3/5/05

            j.   Postage, copying, phone, etc.        54.00

            k.   Police Report                         5.00

                                            TOTAL   $826.20"

     In a written response, GEICO pointed out that no attorney-

client fee agreement or expense receipts or citation to case law

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1-05-3284
had been provided in support of the claimed expenses and fees,

particularly where counsel was seeking more than the usual 33.33%

contingency fee and the expenses of a different lawsuit.    GEICO

suggested that counsel receive the standard one-third or $2,550

of the $7,650, and that the expense claim be reduced to $263.

GEICO also asked the court to order the reimbursement of its

appearance fee, since GEICO had appeared (as "Leinholder

Respondent") only to defend the Trogubs' motions regarding its

lien.

     In reply, the Trogubs and their attorney tendered affidavits

attesting to the 40% contingency agreement.    The Trogubs further

swore they had not been aware that GEICO paid their medical bills

or that GEICO had subrogation rights.    Counsel also tendered a

$90 expense receipt from McCorkle Court Reporter, Inc.

     As indicated above, on September 13, 2005, the circuit court

ruled that GEICO was entitled to $7,650, less $3,060 (40%) for

the Trogubs' attorney fees, and $336 in litigation expenses, for

a net recovery of $4,254 from the $10,000 settlement.    The

circuit court disallowed all the litigation expenses purportedly

incurred in 2000 in the Trogubs' first action against Robinson

(designated as items a through j in the Trogubs' motion), and

disallowed the unexplained entry for "Postage, copying, phone,

etc." in the present action (designated as item j in the Trogubs'

motion).    The circuit court determined the allowable expenses

totaled $439 and that GEICO's proportionate share of the allowed


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1-05-3284
expenses was 76.50%, or $336.     The circuit court also ordered the

clerk of the circuit court to reimburse GEICO's $143 appearance

fee.



       The following principles are generally relevant to this

appeal.     "Subrogation simply means substitution of one person for

another; that is, one person is allowed to stand in the shoes of

another and assert that person's rights against the defendant."

D. Dobbs, Law of Remedies     _ 4.3(4), at 604 (2d ed. 1993).

"Factually, the case arises because, for some justifiable reason,

[a party] has paid a debt owed by the defendant."        D. Dobbs, Law

of Remedies     _ 4.3(4), at 604 (2d ed. 1993).    "Having paid the

defendant's creditor, the [party] stands in the creditor's shoes

*** and 'is entitled to exercise all the remedies which the

creditor possessed against the defendant."        D. Dobbs, Law of

Remedies     _ 4.3(4), at 604 (2d ed. 1993), quoting American Surety

Co. of New York v. Bethlehem National Bank of Bethlehem, 314 U.S.
314, 317, 86 L. Ed. 241, 244, 62 S. Ct. 226, 228 (1941).        "Thus,

a subrogee merely succeeds to the legal rights or claims of a

subrogor."     73 Am. Jur. 2d Subrogation _ 1, at 542 (2001).

Subrogation rights originated in common law to prevent unjust or

unearned enrichment of one party at the expense of another, but

may also be created by statute or contract.        Aames Capital Corp.

v. Interstate Bank of Oak Forest, 315 Ill. App. 3d 700, 706-07,


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1-05-3284
734 N.E.2d 493 (2000).   In the case of an insurance contract,

subrogation rights arise where (1) a third party has caused a

loss and is primarily liable to the insured for the loss, (2) the

insurer is secondarily liable to the insured due to an insurance

policy, and (3) the insurer pays the insured under that policy,

thereby extinguishing the debt owed by the third party.      State

Farm General Insurance Co. v. Stewart, 288 Ill. App. 3d 678, 686,

681 N.E.2d 625 (1997).   When an insurance contract gives the

insurer the right to subrogate to the extent of its payment, the

contract will be enforced as written and the insurer will receive

full subrogation, even if the insured's losses exceed the amount

it recovers from the tortfeasor and the insurer.   Capitol

Indemnity Corp. v. Strike Zone, S.S.B.&B. Corp., 269 Ill. App. 3d

594, 596-97, 646 N.E.2d 310 (1995) (rejecting claim that insured

should be made whole first); Eddy v. Sybert, 335 Ill. App. 3d

1136, 1139, 783 N.E.2d 106 (2003) (insurer's right to subrogation

did not depend on whether insured was made whole by settlement

with tortfeasor).

     The Trogubs raise five main arguments on appeal.   The

Trogubs' first contention is that GEICO failed to produce "any

authenticated evidence" that it paid for their medical care after

they collided with Robinson.   We find, however, that the Trogubs

have waived this contention by failing to cite any portion of the

record on appeal indicating that they objected to the circuit

court's reliance on GEICO's exhibits.   The record on appeal does


                                -8-
1-05-3284
not include a transcript of the proceedings conducted on

September 13, 2005, or a bystander's report, and thus, there is

no way of knowing whether the Trogubs made an objection and

preserved this issue for the purposes of appeal.   In order to

preserve a question for appellate review, a party must make

appropriate objections in the trial court.    Bohannon v. Schertz,

21 Ill. App. 3d 149, 151, 315 N.E.2d 316 (1974).    In addition,

appellants, which in this instance are the Trogubs, bear the

burden of providing a sufficiently complete record to support

their claim or claims of error, and any doubt arising from the

incompleteness of the record will be resolved against the

appellants.    Linn v. Damilano, 303 Ill. App. 3d 600, 603, 708

N.E.2d 533 (1999), citing Foutch v. O'Bryant, 99 Ill. 2d 389,

392, 459 N.E.2d 958 (1984).    Because the record does not

substantiate that the Trogubs objected to the circuit court's

reliance on GEICO's exhibits, we decline to address whether the

exhibits were sufficiently "authenticated."



     The Trogubs' second main contention is that the parties'

insurance contract required GEICO to file a separate action in

order to pursue its subrogation interest.    More specifically,

they argue the contract's subrogation clause, quoted in full

above, "uses non-standard language concerning subrogation," "is

ambiguous," and should have been construed more favorably to the

Trogubs.    The Trogubs fail to explain what a "standard"


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1-05-3284
subrogation clause might state or why they consider this

particular clause unclear, but Aames Capital suggests that even

without the contract language, GEICO's involuntary payment of

medical expenses that were caused by Robinson's tortious contact

with the Trogubs' car would have created an equitable right to

recoup those funds.     Aames Capital, 315 Ill. App. 3d at 706-07

(indicating subrogation rights may arise in equity or contract).

 In addition, we are not persuaded by the Trogubs' unsupported

contention that because the contract language provides GEICO

"will have the right to sue or otherwise recover the loss from

anyone else who may be held responsible," then the "only

inference which can be drawn is that [GEICO must file] a separate

subrogation action or a petition to intervene [to recoup its

loss]."     "The law is well settled that if an insurance contract

is so drawn as to be equivocal, uncertain or ambiguous, as to

require interpretation because [it is] fairly susceptible to two

or more different, but sensible and reasonable constructions, the

one will be adopted which *** is most favorable to the insured."

 (Emphasis added.)     Boal v. John Hancock Mutual Life Insurance

Co., 305 Ill. App. 563, 567. 27 N.E.2d 555 (1940).    See also

Bulley & Andrews, Inc. v. Symons Corp., 25 Ill. App. 3d 696, 323

N.E.2d 806 (1975) (indicating contract language is ambiguous when

it is reasonably susceptible to different constructions).

However, we do not consider the GEICO policy to be equivocal,

uncertain, or ambiguous; nor do we consider the Trogubs'


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1-05-3284
"inference" to be a reasonable interpretation of the clearly

worded policy.    "'A policy term is not ambiguous because the term

is not defined within the policy or because the parties can

suggest creative possibilities for its meaning.'"    Chatham Corp.

v. Dann Insurance, 351 Ill. App. 3d 353, 358, 812 N.E.2d 483

(2004), quoting Lampham-Hickey Steel Corp. v. Protection Mutual

Insurance Co., 166 Ill. 2d 520, 529, 655 N.E.2d 842 (1995).     "In

addition, a court may not read an ambiguity into a policy just to

find in favor of the insured."    Chatham Corp., 351 Ill. App. 3d

at 358.    To the contrary, we find no problem of construction or

interpretation and we read "to sue for or otherwise recover" to

mean that GEICO may use litigation or other less cumbersome, less

expensive means, such as correspondence or telephone calls, to

pursue its loss.   Accordingly, we turn to the Trogubs' other

arguments.

     The Trogubs' third main contention on appeal is that GEICO's

failure to comply with various Illinois statutes prevents it from

legitimately claiming any of the Robinson settlement proceeds.

      For instance, the Trogubs argue section 2-403(c) of the

Code of Civil Procedure (735 ILCS 5/2-403 (West 2002)) required

GEICO to bring a subrogation action in its own name in order to

enforce its subrogation interest and they cite Nitrin, Inc. v.

Bethlehem Steel Corp., 35 Ill. App. 3d 577, 342 N.E.2d 65 (1976),

as an instance in which this requirement was enforced against an

insurer.    We are not persuaded that the statute required GEICO to


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initiate an action, because the statute is entitled "Who may be

plaintiff -- Assignments -- Subrogation" instead of "Who shall be

plaintiff -- Assignments -- Subrogation" and the body of the

statute plainly indicates that in the event a subrogation action

is brought, which did not occur here, the subrogation action

"shall be brought either in the name or for the use of the

subrogee":

                 "Who may be plaintiff -- Assignments --

            Subrogation ***

                 ***

                 (c) Any action hereafter brought by

            virtue of the subrogation provision of any

            contract or by virtue of subrogation by

            operation of law shall be brought either in

            the name or for the use of the subrogee; and

            the subrogee shall in his or her pleading on

            oath, or by his or her affidavit if pleading

            is not required, allege that he or she is the

            actual bona fide subrogee and set forth how

            and when he or she became subrogee."   735

            ILCS 5/2-403(c) (West 2002).

Since subrogee GEICO did not bring an action but only responded

to various motions about subrogation which the Trogubs filed in

Trogub v. Robinson, section 2-403(c) has no relevance here and is

not a basis for concluding that the circuit court's order denying


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the "motion to strike alleged subrogation lien" should be

reversed.    Moreover, the Trogubs fail to cite and we were unable

to find any language in Nitrin indicating section 2-403(c)

requires a subrogee to enforce its rights by filing a separate

action.   735 ILCS 5/2-403(c); Nitrin, 35 Ill. App. 3d 577, 342

N.E.2d 65.

     The Trogubs similarly contend the intervention section of

the Code of Civil Procedure (735 ILCS 5/2-408 (West 2002)) and

Herriford v. Boyles, 193 Ill. App. 3d 947, 550 N.E.2d 654 (1990),

obligated GEICO to bring an intervening petition in Trogub v.

Robinson to enforce its subrogation interest.    Generally, the

intervention statute provides that upon timely application, the

court may, in its discretion, allow anyone to intervene in an

action.   735 ILCS 5/2-408 (West 2002).   The Trogubs conclude that

since GEICO did not adhere to the cited authority, the circuit

court's adverse orders should now be reversed.    We were unable to

find any relevant language in the cited authority.    In addition,

we reiterate that GEICO was only responding to various motions

which the Trogubs filed regarding GEICO's right to subrogate.     We

are not persuaded by the Trogubs' bald contention that unless a

subrogee such as GEICO motions and obtains leave of court to

intervene in an action, the subrogee cannot be permitted to

respond to a pending motion that seeks judicial determination of

the subrogee's rights.




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     The Trogubs also contend that "in essence" GEICO and the

Trogubs have respectively become a judgment creditor and debtors,

and, therefore, section 12-1001(h)(4) of the Code of Civil

Procedure (735 ILCS 5/12-1001(h)(4) (West 2002)) renders the

$10,000 settlement payment from Robinson "untouchable" by GEICO.

 They cite People ex rel. Director of Corrections v. Booth, 215

Ill. 2d 416, 423, 830 N.E.2d 569 (2005), for the proposition that

section 12-1001 "supersede[s] a contractual lien [such as

GEICO's] which is not recognized by statute."       We find this

statutory argument no more persuasive that the Trogubs' two other

statutory arguments.       Article 12 of the Code of Civil Procedure

is entitled "Judgments -- Enforcement," and section 12-1001 in

particular renders certain "personal property, owned by the

debtor *** exempt from judgment, attachment, or distress for

rent."   735 ILCS 5/12-1001 (West 2002).      The subparagraphs of the

statute specify the exempted property, including, as examples,

payments that are traceable to a crime victim's reparation law, a

life insurance contract, and, notably, "a payment, not to exceed

$7,500 in value, on account of personal bodily injury of the
           1
debtor."       The Trobugs' reliance on this statute is misplaced

since the only "debtor" in this case is Robinson.       It is

     1
         The statute was recently amended to exempt a payment of

up to $15,000 "on account of personal bodily injury of the

debtor."       Pub. Act 94-293, _ 5, eff. January 1, 2006.



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undisputed that Robinson, by virtue of his tortious contact with

the Trogubs' vehicle in 1999, became liable for their resulting

compensable loss, and GEICO, by virtue of its insurance contract

with the Trogubs' was secondarily liable for their loss.   The

subrogation authority cited generally at the outset of this

opinion deems Robinson to be a debtor.   It also deems the Trogubs

to be his creditor as well as GEICO's subrogor, and GEICO to be

the subrogee that has "paid the insured under [the] policy,

thereby extinguishing the debt of [Robinson,] the third party."

State Farm General Insurance, 288 Ill. App. 3d 2d at 686-87, 681

N.E. 2d 625.   Furthermore, the case the Trogubs rely upon, Booth,

215 Ill. 2d at 425, 830 N.E.2d 569, indicates that section 12-

1001(h)(4) is triggered when a civil action affects the proceeds

of an earlier, separate action or claim, which did not occur

here.   In Booth, a prisoner received a payment in excess of

$40,000 in settlement of a personal injury action he brought

against a bus company prior to his incarceration.   Booth, 215

Ill. 2d at 418, 830 N.E.2d 569.   After the State became aware

that the prisoner obtained this settlement, it brought a separate

civil action against him based on a statute that makes

incarcerated persons responsible for the expenses of their

incarceration.   Booth, 215 Ill. 2d at 418-19, 830 N.E.2d 569.

The State obtained a judgment against the prisoner for more than

$40,000 and an order attaching the proceeds of his earlier

personal injury lawsuit.   Booth, 215 Ill. 2d at 420, 830 N.E.2d


                               -15-
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569.    The court later determined, however, that section 12-

1001(h)(4) was applicable and shielded the first $7,500 of the

$40,000 personal injury settlement from the State's statutory

judgment against the prisoner.    Booth, 215 Ill. 2d at 421, 830

N.E.2d 569.    The case does not indicate in any way that section

12-1001(h)(4) is triggered when there is only one civil action

instead of two civil actions, or that section 12-1001(h)(4) is a

legitimate means of defeating a contractual right to subrogate.

       In short, we are not persuaded that the subrogation clause

in the GEICO contract or any section of the Code of Civil

Procedure should be construed to obligate GEICO to litigate in

order to enforce its subrogation rights.

       Our conclusion that GEICO was not required to litigate to

recoup its loss also dispenses with the Trogubs' other main

contention on appeal that, "Since GEICO did not file a separate

subrogation action or file a petition to intervene, GEICO failed

to place [the Trogubs] on notice of its intention to assert a

lien on the [Trogubs'] recovery in their third party action."

GEICO was not required by contract or statute to file a

subrogation action or a petition to intervene, or otherwise give

the Trogubs notice of its intent to pursue its subrogation

rights.



       The Trogubs' last contention is that the circuit court

incorrectly disallowed reimbursement of $297 to their attorney,


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consisting of 76.50% of the $333 in filing fees and service of

process expenses incurred in the Trobugs' first action against

Robinson, and 76.50% of $54 in expenses purportedly incurred in

the present action for "Postage, copying, phone, etc."    The

Trogubs ask us to remand this cause to the circuit court so that

the additional funds can be awarded to their counsel.    The

Trogubs rely on Lemmer v. Karp, 56 Ill. App. 3d 190, 195, 371

N.E.2d 655 (1977), which does not indicate an insurer's

subrogation lien should be reduced for expenses incurred in some

other action or for undocumented expenses.    The Trogubs fail to

provide reasoned analysis indicating that we should expand

Lemmer's holding and fail to cite any other authority.    They

contend there is "no precedent" supporting the circuit court's

determination -- apparently forgetting that they brought the

motion which included their request for fees and costs, and that

a moving party always bears the burden of proving its entitlement

to fees and costs (Kaiser v. MEPC American Properties, Inc., 164

Ill. App. 3d 978, 983, 518 N.E.2d 424 (1987)), and that the

moving party must provide detailed records substantiating the

reasonableness of the requested amounts.     Prior Plumbing &

Heating Co. v. Hagins, 258 Ill. App. 3d 683, 688, 630 N.E.2d 1208

(994) (a party seeking attorney fees bears the burden of

presenting sufficient evidence from which the trial court can

render a decision as to their reasonableness).    A fee award

cannot be based upon the court's conjecture or on the opinion or


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1-05-3284
conclusion of the moving attorney.     Kaiser, 164 Ill. App. 3d at

984.

       Finally, GEICO asks this court to impose sanctions against

the Trogubs' attorney pursuant to Supreme Court Rule 375(b) for

bringing a frivolous appeal solely to harass and needlessly

increase GEICO's litigation expenses.    155 Ill. 2d R. 375; see

e.g., Sterling Homes, Ltd. v. Rasberry, 325 Ill. App. 3d 703, 759

N.E.2d 163 (2001) (sua sponte raising question of whether

sanctions should be imposed on appellant where appeal was an

attempt to delay the proceedings and harass the opponent).    While

we have found all of counsel's arguments to be wholly

unpersuasive, the circumstances do not suggest the appeal was not

taken in good faith and was intended to be abusive.    Accordingly,

we decline to order the imposition of sanctions.

       Affirmed.

       CAHILL, P.J., and BURKE, J., concur.




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