Williams v. Poulos

May 12, 1995
[Not for Publication]
[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 94-2057
GEORGE C. WILLIAMS, ET AL.,

Plaintiffs, Appellants,

v.

RICHARD E. POULOS, ET AL.,

Defendants, Appellees.

No. 94-2058
GEORGE C. WILLIAMS, ET AL.

Plaintiffs, Appellees,

v.

RICHARD E. POULOS, ET AL.,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

Before

Boudin, Circuit Judge,

Campbell, Senior Circuit Judge,

and Stahl, Circuit Judge.

Allen S. Rugg, with whom Alan D. Strasser, Kutak Rock, John S.

Whitman, and Richardson & Troubh, were on brief for appellants.

Terry A. Fralich, with whom Peter J. DeTroy, and Norman, Hanson &

DeTroy, were on brief for appellees.

STAHL, Circuit Judge. After appellants obtained
STAHL, Circuit Judge.

substantial relief in their lawsuit alleging illegal

wiretapping in violation of 18 U.S.C. 2511(1) and Me. Rev.

Stat. Ann. tit. 15 710(1), the district court, pursuant to

the statutory schemes, ordered appellees to pay appellants'

attorney fees and expenses in the amount of $283,950.58.

Appellants now argue that the district court abused its

discretion in awarding as little as it did; appellees

maintain in their cross-appeal that the abuse of discretion

occurred in awarding appellants anything at all. After

careful review of the record, we conclude that the district

court's basic approach is sound but that on certain matters

it failed to provide a sufficient basis to justify certain of

its deductions and made computational errors; thus we modify

the district court order accordingly.

I.
I.

BACKGROUND
BACKGROUND

We have previously recited in detail the factual

background to the underlying, substantive lawsuit, Williams

v. Poulos, 11 F.3d 271 (1st Cir. 1993) (the "Williams"

lawsuit), and we therefore provide only a brief summary here.

Appellants (plaintiffs in the Williams lawsuit) were

defendants in a RICO lawsuit stemming from the demise of

Consolidated Auto Recyclers, Inc. ("CAR"), Bowers v. Allied

Capital Corp., Civ. No. 91-0021-B (D. Me. filed January 1991)

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(Brody, J.) (the "Bowers" lawsuit). In the course of

discovery in the Bowers litigation, appellants learned from

Richard Poulos, counsel for CAR's principals (the Bowers

plaintiffs) that he had secret tapes of some of their

conversations. After further discovery, appellants initiated

the Williams lawsuit, seeking, inter alia, declaratory and

injunctive relief, under federal and Maine wiretap laws,

forbidding Poulos and the Bowers plaintiffs from using the

tapes in the Bowers lawsuit. On February 3, 1993, following

a six-day bench trial, the district court granted in large

part appellants' requested relief, and we affirmed.

Williams, 11 F.3d at 274.

Appellants then filed an application for attorney

fees with the district court, pursuant to the federal and

Maine wiretap statutes, both of which provide for the

recovery of reasonable attorney fees and costs from

defendants in successful civil actions. 18 U.S.C. 2520(a)-

(b)(1); Me. Rev. Stat. Ann. tit. 15, 711(2). The

application, as amended, sought $715,202.12 in attorney fees

and costs.1 In its Order and Memorandum of Opinion dated

1. Appellants' initial application for fees and expenses on
January 13, 1994, requested a total of $734,389.62. After
appellees filed a memorandum with the district court opposing
the application, appellants filed an amended application (the
Application), deducting $6,600 in computer research charges,
$2,125 in telephone surcharges, and $10,462.50 in charges for
attorney travel time, reducing the total amount requested to
$715,202.12. This amended figure comprised approximately
$616,349 in attorney fees and $78,253 in expenses from the

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September 2, 1994, the district court stated that the

Application was "unreasonable on its face and grossly

inflated" and that it contained "exorbitant costs and

numerous instances of inefficient allocation of the law

firms' resources." The district court awarded appellants

$283,950.58 -- about 40% of the amount requested.2 The

court arrived at this figure in the following manner:

(1) In calculating reasonable fees for services

rendered by Kutak Rock, the court used local billing rates,

rather than the Washington, D.C., rates requested.

Appellants, in defense of this request, claim they could

locate no available, qualified local counsel willing to sue

Poulos, and therefore Kutak Rock's out-of-town rates were

reasonable. The court, however, found that appellants chose

three law firms that represented appellants, with expert fees
and court reporter costs accounting for the balance. The
lion's share of the fees and expenses -- approximately
$491,749 in fees and $59,589 in expenses -- requested in the
Application were billed by Kutak Rock, the Washington, D.C.,
law firm that served as appellants' lead counsel. The
Application includes fees and expenses totalling
approximately $96,777 billed by Richardson & Troubh,
appellants' Maine counsel, and approximately $46,463 billed
by Murray, Plumb & Murray, counsel for Ralph Dyer, intervenor
in the Williams lawsuit. Dyer did not appeal from the
district court's order awarding reduced fees. However,
because the district court based its decision on the
propriety of the entire Application, and because appellees
contend that the entire Application should be denied, we
consider the fees and expenses billed by Dyer's counsel in
our analysis.

2. The total award comprised $246,741.58 in attorney fees
and $37,209 in costs.

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Kutak Rock as lead counsel in the wiretap case because Kutak

Rock already represented them in the underlying Bowers

lawsuit. This adjustment resulted in a reduction of

approximately $159,000.

(2) The court found that appellants had overstaffed

the case, stating that it had "found numerous occasions when

Plaintiffs' counsel duplicated efforts" and offering as an

example bills from three lawyers for time spent in preparing

for and attending Poulos's deposition. The court found that

such duplicative billing reflected bad faith and subtracted

an additional $100,000 to correct for overstaffing and as a

penalty for appellants' bad faith request.

(3) On its own, the court calculated reasonable

travel expenses from Washington, D.C., to Bangor, Maine, and

cut $8,524 from appellants' request. It also declined to

allow reimbursement for meal expenses altogether ($1,245),

and, citing the inherent cost of coordinating work between

law firms, allowed just $11,000 of $34,088 in requested

photocopy charges and $6,000 of $16,312 in requested postage,

telephone and fax charges. These cuts reduced appellants'

requested expense award by a total of $43,169.

(4) Noting that appellants had agreed not to seek

reimbursement for attorney travel time and computer research

charges, the court subtracted $13,575 from the requested

total.

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(5) Finally, apparently to correct for what it

called a "misallocation of resources," the court stated that

it would divide the tasks performed by appellants' lawyers

into three categories and, in accordance with the relative

expertise demanded by each task, allow compensation for those

services at 50%, 75% or 100% of each lawyer's local rate.3

Stating that it had "determined to the extent possible based

on the information made available by counsel, how many hours

fall within each category for each lawyer," the court

subtracted an additional $115,000 from the requested fee.

Appellants argue that the method the district court

used to arrive at a reasonable fee was not in accordance with

applicable law and that the court provided insufficient

explanations for the cuts that it made. Appellees maintain

that, because the district court found, inter alia, that the

fee request was "unreasonable on its face and grossly

inflated" and at least in part reflected bad faith, it

therefore had no discretion to do anything but deny the fee

request in its entirety.

3. Services compensated at 50% included: "conferences with
co-counsel and opponents; proofreading and copyreading;
notification and preparation for depositions; review of
documents; telephone conversations."
Services compensated at 75% included: "general
research; taking and attendance at depositions; letter
drafting; drafting and reading of memoranda; preparation for
hearings and court conferences; discovery activity."
Services compensated at 100% included: "court
appearances, in-chambers conferences, and the preparation and
drafting of motions and briefs."

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II.
II.

DISCUSSION
DISCUSSION

A. Standard of Review

We review a district court's fee award for mistake

of law or abuse of discretion. Lipsett v. Blanco, 975 F.2d

934, 937 (1st Cir. 1992). A district court's discretion in

calculating a reasonable fee is particularly broad; this

tribunal "lacks the means to replicate the trial court's

first-hand knowledge of the litigation and its nuances."

Foley v. City of Lowell, 948 F.2d 10, 19 (1st Cir. 1991).

Our review, however, is not without bite. We

require that the trial court "make concrete findings [and]

supply a `clear explanation of its reasons for the fee

award.'" United States v. Metropolitan Dist. Comm'n, 847

F.2d 12, 16 (1st Cir. 1988) (omitting internal citation and

quoting Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st

Cir. 1984)). While these demands should not be so great as

to cause a district court to "drown in a rising tide of fee-

generated minutiae," id., we do expect a court making

substantial reductions in a prevailing party's fee request

"to spell out the whys and wherefores." Brewster v. Dukakis,

3 F.3d 488, 493 (1st Cir. 1993) (quoting Metropolitan Dist.

Comm'n, 847 F.2d at 18). Otherwise, judicial review is next

to impossible.

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Even when we cannot affirm an attorney fees award,

however, we need not always remand for more detailed

findings. "A request for attorney's fees should not result

in a second major litigation." Jacobs v. Mancuso, 825 F.2d

559, 562 (1st Cir. 1987) (quoting Hensley v. Eckerhart, 461

U.S. 424, 437 (1983)). When the record provides us with

ample resources, then, "much as we dislike the task that has

been put upon us," id., we may set forth our own findings and

amend the award accordingly. We have done so in the past,

see, e.g., id.; Rogers v. Okin, 821 F.2d 22, 31 (1st Cir.

1987); Hart v. Bourque, 798 F.2d 519 (1st Cir. 1986);

Grendel's Den, 749 F.2d at 951, and we do so here.

B. The District Court's Methodology

Appellants argue that the district court erred in

its failure to use the lodestar framework to determine a

reasonable fee. Where the applicable statutory scheme

prescribes no alternative method, "we have customarily found

it best to calculate fees by means of the [lodestar] time-

and-rate-method . . . ." Tennessee Gas Pipeline Co. v. 104

Acres of Land, 32 F.3d 632, 634 (1st Cir. 1994) (quoting

Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 526 (1st

Cir. 1991) (alterations in Tennesee Gas)). A court employing

this method multiplies the number of hours reasonably

expended on the litigation by a reasonable hourly rate to

arrive at the lodestar figure. Hensley, 461 U.S. at 433;

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Metropolitan Dist. Comm'n, 847 F.2d at 15. To determine a

reasonable number of hours, a court may begin with the number

of hours actually spent and then subtract "hours which were

duplicative, unproductive, excessive, or otherwise

unnecessary." Metropolitan Dist. Comm'n, 847 F.2d at 15.

(quoting Grendel's Den, 749 F.2d at 950). This is, in fact,

essentially what the district court did. It began with the

total number of hours appellants' attorneys spent on the

litigation, and made deductions for duplicative, excessive

and unnecessary billing. While it performed this exercise in

an unorthodox manner -- deducting lump sums, rather than

hours -- this was in large part undoubtedly necessitated by

appellants' failure to specify the amount of time spent on

each task billed and to summarize the hours spent by each

attorney on different parts of the litigation. In any event,

we have never required that district judges "march in

lockstep, following an unyielding, essentially wooden

approach in all fee award cases." Id. In fact, we "have

left reasonably open the question of precisely how the judge

ascertains the number of hours reasonably expended."

Tennessee Gas, 32 F.3d at 634 (quoting Metropolitan Dist.

Comm'n, 847 F.2d at 15.). While we take issue with some

aspects of the manner in which the district court implemented

its methodology, we find no error in its choice of

methodology per se.

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C. Use of Local Rates

Appellants maintain that, in order to obtain

meaningful relief from appellees' illegal wiretapping,

exigent circumstances left them with no choice but to assign

the lion's share of the wiretap litigation to its Washington,

D.C., counsel, Kutak Rock. Appellants' local firm in the

Bowers litigation, Berman & Simmons, refused to sue Poulos,

appellants claim, forcing them to begin an expensive search

for new local counsel. After interviewing thirty lawyers,

appellants finally found a Maine lawyer -- John Whitman, of

Richardson & Troubh -- willing to take the case, but whose

involvement in other litigation prevented him from ever

taking over the primary role in the Williams lawsuit. Thus,

appellants claim, because they were unable to find suitable

local counsel, their decision to use Kutak Rock was entirely

reasonable, and the district court erred in limiting

reimbursement for Kutak Rock's services to prevailing Maine

rates.

In general, "the proper rate to apply to the work

of out-of-town counsel is that of the forum community, rather

than that which the attorney charges in the community in

which she practices." 2 Mary Frances Derfner & Arthur D.

Wolf, Court Awarded Attorney Fees 16.03[8] (1994); see

Maceira v. Pagan, 698 F.2d 38, 40 (1st Cir. 1983) ("The

reasonable hourly rate is usually stated to be `that

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prevailing in the community for similar work.'" (quoting

Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980) (en

banc))). Nevertheless, out-of-town rates may be applied if

the complexities of a particular case require the particular

expertise of non-local counsel, Maceira, 698 F.2d at 40, or

"when the case is an undesirable one which capable attorneys

within the forum community are not willing to prosecute or

defend," 2 Derfner & Wolf 16.03[8] (1994) (citing cases).

While the district court, in its sound discretion,

might have found that appellants' lawsuit against Poulos was

one that no capable attorney in Maine was willing to

prosecute, it did not do so. Instead, it found that

appellants were using Kutak Rock in the Williams suit because

it already represented them in the underlying Bowers

litigation. The same district judge presided over both

lawsuits, and his familiarity with the litigants and their

counsel, and with the willingness of the local bar to sue one

another, far exceeds ours. This was not a ruling on summary

judgment; nothing required the district judge to take

appellants' self-serving explanations as true. Apparently,

he believed that appellants' difficulty in finding suitable

local counsel was far less a factor motivating their

retention of Kutak Rock than was Kutak Rock's familiarity

with the case and its client: this is both an entirely

logical conclusion and a finding supportable on the record,

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given that two local law firms did in fact join the fight

against Poulos and the other appellees. Therefore, we do not

fault the district court's decision to use prevailing local

rates in determining a reasonable fee.

That said, the district court's calculation of a

reasonable local hourly rate contains a mathematical error of

some consequence.4 To arrive at this rate, the district

court divided what it thought was the total requested fee of

Kutak Rock -- $569,775.24 -- by the total number of hours

Kutak Rock billed -- 2,867 -- to arrive at a weighted average

billing rate for all Kutak Rock employees of $198.11. The

actual average billing rate of all Kutak Rock employees

(i.e., the sum of their hourly rates divided by the number of

employees who billed) was $131.82. The court noted that the

weighted average was approximately 50% greater than the

actual average, reflecting that higher-paid lawyers billed

the bulk of the hours. It then assigned a local hourly rate

to each Kutak Rock employee (roughly equivalent to the rates

commanded by the two local firms on the application),

computed their average -- $95.45 -- and increased this figure

by 50% to arrive at a weighted local average of $143.10.

Finally, it multiplied this latter figure by 2,867 hours to

4. To their credit, appellants directed our attention to
this error, even though correcting it results in a lower
local hourly rate.

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arrive at an adjusted local fee request for Kutak Rock of

$410,267.70.

In fact, the $569,775.24 figure with which the

district court began included $68,014 in expenses and did not

reflect the adjustments appellants made in their amended

Application. Kutak Rock's portion of the adjusted attorney

fee request was actually $491,749, and its total adjusted

hours were 2,818. Using these figures, and employing the

district court's methodology, the adjusted local fee request

for Kutak Rock is $356,054.5

D. Reductions for Duplicative Billing and Misallocation of

Resources

In deducting $100,000 to compensate for duplicative

billing and to penalize appellants for bad faith in

requesting such compensation, the district court stated that

it had "found numerous occasions when Plaintiffs' counsel

duplicated efforts." It provided only one example: bills by

three lawyers for time spent in preparing for and attending

Poulos's deposition.6 Appellants argue that, because Poulos

5. We arrived at this result as follows:
1) $491,749 2,818 = $174.50
(weighted average rate)
2) $95.45 x ($174.50/$131.82) =
$126.35
3) $126.35 x 2,818 =
$356,054.30

6. In fact, the Application includes billing entries from
five lawyers who attended at least part of Poulos's

deposition: two from Kutak Rock, one from Richardson &

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was the most important deponent in the case, their deployment

of lawyers in the taking of his deposition was entirely

reasonable, and, moreover, that this single example cannot

possibly sustain a finding of bad faith and a deduction of

$100,000.

Assuming for the moment that sending three lawyers

to a deposition constitutes overstaffing, we agree with

appellants that this single example, along with the district

court's reference to other, unspecified "numerous occasions"

of similar overstaffing, do not constitute a sufficient basis

for a finding of bad faith and a combined penalty and

deduction of $100,000. Our own scrutiny of the fee

application, however, persuades us that the district court's

concerns were not entirely unjustified. In addition to the

Poulos deposition, for example, two, three or four attorneys

attended depositions on May 27-29 and June 11-12, 1992. Four

attorneys -- two partners from Kutak Rock, one from

Richardson & Troubh and one from Murray, Plumb & Murray --

billed time for attendance at the preliminary injunction

hearing on June 29, 1992. Four lawyers attended -- and, we

assume, participated in -- the trial.

We do not mean to underestimate the importance of

key depositions or hearings in the course of litigation, or

the possible value of employing more than one lawyer at

Troubh, and two from Murray, Plumb & Murray.

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trial. Nor do we question the appellants' contention that

this was particularly hard-fought litigation, with appellees

raising many time-consuming, frivolous arguments. This was

not, however, complex antitrust litigation between two

Fortune 500 companies. And, in assessing the reasonableness

of a fee request, a court should "ordinarily greet a claim

that several lawyers were required to perform a single set of

tasks with healthy skepticism." Lipsett v. Blanco, 975 F.2d

934, 938 (1st Cir. 1992). Appellants' arguments that the

demands of this case were so great as to warrant extensive

work by four partners, and occasional work by additional

partners and associates, from three different law firms --

and that this strike force of lawyers always divided tasks

efficiently -- apparently did not persuade the district

court. Thus, giving due deference to the district court's

general sense that the case was overstaffed, and having

scrutinized the fee request ourselves and concluded -- as

indicated by the above examples -- that there was at least

some duplication of effort, we will modify this portion of

the district court's order and deduct $40,000 for

overstaffing.

The district court's decision to deduct $115,000

for misallocating resources suffers from a similar lack of

specific examples as well as an analytical flaw. The

principle that legal work demanding differing levels of skill

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and expertise may be compensated differently is firmly

established. See, e.g., Jacobs 825 F.2d at 561 n.3 ("Within

reason, the court may establish . . . multiple hourly rates

to reflect differences in the types of services performed for

the client."). Here, however, the district court appears to

have deducted twice for this differential. First, in

calculating the overall fee for Kutak Rock's work, the

district court calculated the weighted average of all of

Kutak Rock's attorneys at $143.10 per hour, which we have

corrected to $126.35. This calculation, however, already

accounts for the fact that some work was performed by

associates and paralegals. Work that was actually and

appropriately performed by these lower-paid employees --

i.e., work that falls into the district court's lower-

compensated categories -- should not then be subject to a

further deduction of 25% or 50% of their billing rates. Yet,

the district court stated that it arrived at its $115,000

deduction after "determin[ing] to the extent possible based

on the information made available by counsel, how many hours

fall within each category for each lawyer" and "then

reduc[ing] that lawyer's local rate according to the

[tripartite] framework." (emphasis added). This was

analytically incorrect.

As was the case with the deduction for duplicative

billing, however, we think the district court's instincts

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were correct. Of the 3,734 hours billed, partners' time

accounted for approximately 80% of that total. This would at

least place a court on notice that close scrutiny of resource

deployment was necessary. The manner in which the bills were

presented, however, made such scrutiny virtually impossible.

An entry for a lawyer's work on any given day typically

includes several different tasks, but only a single figure

reflecting the total number of hours spent on the case that

day.7 Thus, the bills provide no indication of how much

time was spent on each task, making it extremely difficult to

determine if the lawyers' time was allocated efficiently.

Appellants' plaints that, had the district court

asked for further explanations, they could have supplied

them, are unavailing. We have stated previously that "[i]n

order for litigants to receive fee awards . . . they [must]

submit `a full and specific accounting of the tasks

performed, the dates of performance, and the number of hours

7. As an example, we cite the billing entry for Kutak Rock
partner Ronald Massumi for March 15, 1993, totalling 6.25
hours at a cost of $1,093.75:

Conference with Mr. Rugg regarding
appellate procedure; telephone conference
with Mr. Murray's office; correspondence
to Mr. Whitman; research regarding
injunctions pending appeal, federal rules
of civil and appellate procedure, 1st
Circuit caselaw on stays/injunctions
pending appeal, notice of appeal
procedure; draft motion for injunction
pending appeal, and memorandum in support
of motion for injunction pending appeal.

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spent on each task.'" Tennessee Gas, 32 F.3d at 634 (quoting

Weinberger, 925 F.2d at 527). The bills submitted do not

contain this level of detail. Attorneys preparing bills in

fee-shifting cases in the District of Maine have been

specifically warned to account for time spent on each task.

Weinberger v. Great N. Nekoosa Corp., 801 F. Supp. 804, 816

n.21 (D. Me. 1992) (determining appropriate fee award despite

denying request on other grounds and stating that "[i]n

future, the Court admonishes counsel to separate different

activities by the discrete amount of time devoted to each

activity"), aff'd sub nom, BTZ, Inc. v. Great N. Nekoosa

Corp., 47 F.3d 463 (1st Cir. 1995).

It has long been the law of this Court that "the

absence of detailed contemporaneous time records, except in

extraordinary circumstances, will call for a substantial

reduction in any award or, in egregious cases, disallowance."

Tennessee Gas, 32 F.3d at 634 (quoting Grendel's Den, 749

F.2d at 952). Given the significant deficiencies in the

Application, and the fact that billing by partners accounted

for the vast majority of hours -- giving rise at least to a

suspicion that resources might have been misallocated, which

is unprovable because of the manner in which the bills were

prepared -- we do not think that a deduction of $115,000 is

unreasonable and we will not disturb this portion of the

district court's order.

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E. Deductions for Excessive Expenses, Travel Time and

Computer Time

We will also leave intact the district court's

deduction of about half of appellants' requested expenses.

The district court's explanations for these cuts were

satisfactorily clear and reasonable.

The district court did, however, incorrectly deduct

$6,975 in travel time charges and $6,600 in computer research

costs. Appellants' requested total of $715,202.12 already

reflected the removal of these costs, so they should not have

been deducted a second time. We will therefore add back

$13,575 to the award to correct for this error.

F. Appellees' Cross-Appeal

Appellees devoted virtually all of their brief and

reply brief to arguments explaining why the district court

had no discretion to do anything but deny the fee request in

its entirety. We will devote considerably less space to this

contention. Even assuming arguendo that the district court

would have been within its discretion if it had denied the

request entirely because of the Application's deficiencies,

nonetheless we are extremely hesitant to instruct the court,

after it had sifted through hundreds of pages of bills and

decided to grant part of the request despite its deficiencies

and excesses, that it had no discretion to do so. In Lewis

v. Kendrick, 944 F.2d 949, 956 (1st Cir. 1991), we reversed a

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district court award of attorney fees of approximately

$49,000 and held that the plaintiff was entitled to nothing.

In that case, however, the district judge had retired, making

remand to the trial judge impossible, id. at 954, the

plaintiff obtained minimal relief, and the requested fees and

costs were approximately 140 times the worth of the damages

award, id. at 956. We held in that case that counsel had

purposefully defied the caselaw regarding attorney fee

requests. Id. This is not such an extreme case. Appellants

obtained substantially all the relief that they sought and,

while opinions may differ as to what is a "reasonable" fee in

this case, we do not think that the record remotely supports

a finding of overreaching and bad faith in the Application

sufficient to justify the denial of any award at all.

Nor do we find merit in appellees' contention that

we should remand to allow them to conduct discovery and

further contest the propriety of the Application.

Appellants' award is substantially less than their original

request; discovery in this case would simply be another

example of litigious waste.

G. Recalculation

We now recalculate the award in light of our

rulings. The district court awarded $283,950.58. We reduced

the adjusted amount for Kutak Rock's fees by $54,213.70. We

reduced the deduction for duplicative billing from $100,000

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to $40,000 and reinstated $13,575 in incorrect deductions.

These adjustments result in a net increase in the total award

of $19,361.30. Thus, the total award for appellants'

reasonable attorney fees and expenses is $303,311.88.

III.
III.

CONCLUSION
CONCLUSION

For the foregoing reasons, the district court order

is

affirmed in part and modified in part. No costs.
affirmed in part and modified in part. No costs.

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