OPINION
APODACA, Judge.Plaintiff Henry M. Jacobs, Jr. (Jacobs), a nontenured assistant professor at Eastern New Mexico University from 1970 to 1975, brought this civil rights action under 42 U.S.C. Section 1983 (1970), contending the original defendants violated his constitutional rights in failing to renew his contract for 1975-76. As defendants, he named members of the university administration, individual members of the Board of Regents (regents), and the board itself. The board and its members, except Stratton, were dismissed by summary judgment pri- or to the first trial. After the first trial, defendants Meister, Shannon and Bulls (defendants), and Stratton appealed a judgment on the jury verdict for Jacobs. The supreme court remanded for a new trial. Jacobs v. Stratton, 94 N.M. 665, 615 P.2d 982 (1980) (Jacobs I). The facts of this case are set out fully in that opinion and we refer only to those facts necessary to disposition of this appeal.
After a second, nonjury trial, the trial court found Stratton not liable, but entered judgment in favor of Jacobs against defendants. The trial court awarded damages for emotional distress, based upon its determination that Jacobs had been deprived of his rights under the first and fourteenth amendments to the United States Constitution in his termination. Defendants appeal this judgment, arguing the evidence adduced at trial does not support the trial court’s judgment that Jacobs’ constitutional rights were violated or the award of damages. We disagree and affirm the trial court.
First Amendment
During his five years at the university, Jacobs published articles and engaged in other speech activities, frequently voicing his criticism of the university administration. He was also involved in organizational activities for the purpose of expressing faculty opinion of the administration. The reasons given by the administration for nonreriewal were Jacobs’ failure to make satisfactory progress toward securing his doctorate and teaching techniques “inimical to the high standards sought by” the university. After review, the board repeated these reasons for affirming the administrative decision not to renew Jacobs’ teaching contract. Jacobs contends the reasons given were pretextual and that the real reason for nonrenewal was his speech activity.
In Jacobs I, the supreme court previously remanded this case for litigation under the burden of proof allocation described in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Mt. Healthy set forth a definitive procedure for determining whether a governmental agency’s adverse job decision violated the employee’s first amendment rights. First, the employee must carry the burden of showing his conduct was constitutionally protected. Second, the employee is required to show the protected conduct was a substantial or motivating factor in the agency’s adverse employment decision. If these burdens are met, the burden then shifts to the agency to show that it would have reached the same decision absent the protected conduct.
Under Mt. Healthy, Jacobs had the initial dual burden of showing his conduct was constitutionally protected and was a motivating factor in the decision not to renew. Id. The burden then shifted to defendants to show they would have reached the same decision in the absence of protected conduct. Id. The trial court essentially concluded Jacobs carried his burden under Mt. Healthy and defendants failed to do so.
The first element that Jacobs was required to prove — that his conduct was constitutionally protected — is partly factual and partly a matter of legal doctrine. Not all speech by a public employee is entitled to first amendment protection.
In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), Myers, an assistant district attorney, was upset about her transfer to another division of the office. For this reason, she prepared a questionnaire soliciting the opinions of co-workers regarding the office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressure to work in political campaigns. Myers was terminated on the ground that she had created a “mini-insurrection” within the office. The Supreme Court upheld the termination, stating that when an employee speaks upon matters only of personal interest, rather than of public concern, disciplinary action taken because of such speech is not ordinarily prohibited by the first amendment. The Court recognized that Myers’ question concerning pressure on employees to work on political campaigns touched on a matter of public concern. But taking the question in context, and recognizing that close working relationships are essential to fulfilling public responsibilities, the Court held that the discharge did not offend the first amendment.
Thus, the Supreme Court adopted a balancing approach, weighing the needs of the government as an employer against the public interest in an employee’s speech, to determine whether the speech is protected by the first amendment. See Pickering v. Board of Educ., 891 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). See also L. Tribe, American Constitutional Law, § 12-18 at 930-31 n. 15 (2d ed. 1988).
With this background in mind, we review the findings and conclusions of the trial court.
Neither party disputes that during Jacobs’ employment as a professor of business administration at the university, he made a number of public statements critical of the university administration. He criticized the university administration in newspaper articles; in a report to the North Central Association, the association that accredits the university; in communications with legislators; and in the courses he taught.
Defendants, however, argued below, and continue to argue on appeal, that their decision not to rehire Jacobs resulted from Jacobs’ inadequate teaching techniques and his failure to make progress toward a doctoral degree.
The trial court found that Jacobs’ criticism of the university “was a substantial or motivating factor” in defendants’ decision to terminate his employment, that defendants would not have terminated Jacobs “absent his conduct in criticizing” the university administration, and that defendants’ stated reasons for terminating Jacobs were pretextual in nature. Although those issues were hotly contested at trial, we believe the trial court’s findings are supported by substantial evidence. We have no right to reject them. See Sanchez v. Homestake Mining Co., 102 N.M. 473, 697 P.2d 156 (Ct.App.1985) (appellate court may not reweigh the evidence or substitute its judgment for that of the trier of fact); Anaconda Co. v. Property Tax Dep’t, 94 N.M. 202, 608 P.2d 514 (Ct.App.1979) (facts found by trial court shall not be disturbed by appellate court so long as they are supported by substantial evidence).
Defendants contend, however, that even if Jacobs’ criticism of the university was the motivation for the decision not to rehire him, his first amendment rights were not violated. They argue that, under Connick, Jacobs’ criticism was not protected by the first amendment because it undermined close working relationships and disrupted the proper functioning of the university. As support for this argument, they point to three findings of fact by the trial court:
33. The decision not to rehire Mr. Jacobs was related to the educational process and his working relationship with the University and was supported by a reasonable basis in fact.
46. Plaintiff’s statements were derived [directed] at persons he would normally be in day-to-day contact so as to interfere with a close working relationship and the defendants had an interest in promoting the efficiency of public service performed through its employees.
47. Jacobs[’] conduct in criticizing the administration did interfere with promoting the efficiency of rendering public services at ENMU.
With respect to findings 46 and 47, we note these findings establish factors considered by Connick as arguing against a first amendment right. Yet, those factors are not dispositive of the issue. In Con-nick, the Supreme Court held that the overriding concern in Myers’ conduct was her own employment situation, not matters of public interest. Here, Jacobs’ statements had very little to do with his individual employment situation and addressed matters of great public interest. Even if his criticism of such matters disrupted university activities and affected his working relationships with his superiors and colleagues, the public interest in his comments could provide a first amendment protection to him. A university may have the right to require its employees to channel their criticism in a way that minimizes disruption to the university, but defendants have not contended that Jacobs was terminated for failure to follow appropriate channels. In summary, we conclude that, despite findings 46 and 47, the record and the trial court’s other findings amply support the trial court’s conclusion that Jacobs’ criticism of the university was protected by the first amendment.
With respect to finding 33, we believe the “decision not to rehire” referred to in that finding is the decision made by the regents after defendants had decided not to rehire him. The finding is a verbatim adoption of one proposed by defendants that followed another requested finding relating to the proceedings before the regents. This finding is related to defendants’ contention, discussed below, that their decision not to rehire Jacobs caused him no harm because the ultimate decision was made by the regents. The finding does not relate to defendants’ motive in not rehiring Jacobs. Although this finding could be read to contradict the findings of the trial court regarding defendants’ motives, we will presume that the trial court did not make inconsistent findings. See Ledbetter v. Webb, 103 N.M. 597, 711 P.2d 874 (1985) (in case of doubtful or ambiguous findings, appellate court shall indulge every presumption to sustain judgment and reconcile seeming inconsistencies, if possible, to avoid what may be challenged as contradictions).
If the trial court findings can be reconciled by a reasonable reading, we will adopt that reading. Id. See also State ex rel. Goodmans Office Furnishings, Inc. v. Page & Wiriz Constr. Co., 102 N.M. 22, 690 P.2d 1016 (1984) (findings are to be liberally construed in support of a judgment and are sufficient if a fair consideration of all of them taken together justifies the trial court’s judgment). We do not believe that it requires any mental gymnastics to reconcile the trial court's findings. Thus, we uphold those findings and consequently the conclusion that defendants’ decision not to rehire Jacobs was a violation of his first amendment rights.
Causation
Defendants also argue that, even assuming their decision not to rehire Jacobs violated his first amendment rights, they are nevertheless not liable to Jacobs. They contend that the regents made the ultimate decision not to rehire Jacobs and that the trial court found that the regents had not violated Jacobs’ constitutional rights. This argument raises a question of causation.
Resolution of this question depends on the nature of the violation of Jacobs’ rights. For example, if defendants’ liability was predicated solely on their failure to grant Jacobs a proper hearing (a violation of procedural due process), then their liability would be limited if the regents later granted a hearing satisfying the requirements of procedural due process. Under this premise, defendants would be liable only for damages caused by the delay and, perhaps, for emotional distress proved to have resulted from the “insult” of not being granted a proper hearing in the first instance. See Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). In this context, Jacobs would have been entitled to a hearing in which he was granted the procedural protections provided by the due process clause; once he was provided such a hearing, he would have had no claim for any further damages.
Yet, in determining the consequences of defendants’ violation of Jacobs’ first amendment rights, we believe the later decision of the regents did not absolve defendants from liability. In this connection, we are persuaded by the reasoning in Professional Association of College Educators v. El Paso County Community College District, 730 F.2d 258, 266 (5th Cir.), cert. denied, 469 U.S. 881, 105 S.Ct. 248, 83 L.Ed.2d 186 (1984), in which the defendants argued they would not be liable for the firing of a teacher, despite a constitutionally improper notice, because the decision was made by the school board after an independent hearing. The court in El Paso County Community College District stated:
It is not necessary that the improper motive be the final link in the chain of causation: if an improper motive sets in motion the events that lead to termination that would not otherwise occur, “intermediate step[s] in the chain of causation” do not necessarily defeat the plaintiff’s claim. Bowen v. Watkins, 669 F.2d 979, 986 (5th Cir.1982).
Id. at 266.
Relying on this “set in motion” principle, we conclude that the summary judgment granted in favor of the regents did not insulate defendants from liability for the violation of Jacobs’ first amendment rights. The facts here do not indicate a situation under which the regents would independently review every professor’s contract to determine whether it should be renewed. Were that the case, we might be able to say the decision of the regents ended the potential liability of defendants. Here, however, the hearing before the regents was a special proceeding. The regents would not have reviewed defendants’ decision if defendants had not refused to renew Jacobs’ contract. Thus, defendants’ decision, which was based on a constitutionally improper motive, set in motion the events that led to Jacobs’ termination.
Due Process
Having held against defendants on the first amendment issue, we need not address the equal protection and procedural due process issues. However, because of our supreme court’s mandate in Jacobs I, we discuss briefly why we do not rest affirmance of this appeal on the procedural due process issue.
Jacobs I, in discussing the issue of procedural due process, stated, “[i]t is also clear that Jacobs had a constitutional right to have the procedures followed which were set out in the faculty handbook, because these procedures gave him an entitlement.” 94 N.M. at 667, 615 P.2d at 984. Jacobs I also stated, however, “[i]t is clear that ... Jacobs could be discharged for no reason whatever, or for a variety of reasons.” Id. Jacobs I was decided more than eight years ago. Since then, decisions of the United States Supreme Court have established, in our view, that the two passages quoted above from Jacobs I may be inconsistent. If Jacobs could be discharged for “no reason whatever,” then he was not entitled to any procedural due process protections with respect to his termination.
In Olim v. Wakinekona, 461 U.S. 238, 250-51, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813 (1983), the United States Supreme Court wrote:
[Due] [p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement. If officials may transfer a prisoner “for whatever reason or for no reason at all, ” there is no such interest for process to protect. The State may choose to require procedures for reasons other than protection against deprivation of substantive rights, of course, but in making that choice the State does not create an independent substantive right. (Footnote omitted, citations omitted, emphasis added.)
Earlier in that opinion, the Court stated:
These cases demonstrate that a State creates a protected liberty interest by placing substantive limitations on official discretion. An inmate must show “that particularized standards or criteria guide the State’s decisionmakers.” If the decisionmaker is not “required to base its decisions on objective and defined criteria, ” but instead “can deny the requested relief for any constitutionally permissible reason or for no reason at all, ” ibid., the State has not created a constitutionally protected liberty interest. (Emphasis added, citation omitted.)
461 U.S. at 249, 103 S.Ct. at 1747.
Although Olim dealt with procedural due process protections for liberty interests, the same analysis was later applied to property rights in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985). There, the Court said:
The point is straightforward: the Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct. Were the rule otherwise, the Clause would be reduced to a mere tautology. “Property” cannot be defined by the procedures provided for its deprivation any more than can life or liberty,
Although disapproving of the Supreme Court’s doctrine, Professor Tribe has concluded:
The practical impact of the Court’s adoption of a positivist approach to the definition of “property” ... is that a public employee can count on procedural due process protection only if the law or contract defining the employee’s job expressly provides that the employee can be discharged only for cause.
L. Tribe, supra, § 10-10 at 697.
He further stated: “Hence, if a statute gives an official ‘unfettered discretion,’ it creates no protected interest, even if the exercise of that discretion is channelled through required procedural mechanisms.” Id. at 698.
Jacobs’ claim, that he was not rehired because of a violation of his first amendment rights, does not in itself provide him with any right to procedural due process from his government employer. The first amendment claim and the procedural due process claim are independent. Mt. Healthy stated at 429 U.S. 283-84, 97 S.Ct. 574-75:
Even though [employee] could have been discharged for no reason whatever, and had no constitutional right to a hearing prior to the decision not to rehire him, Board of Regents v. Roth, 408 U.S. 564 [92 S.Ct. 2701, 33 L.Ed.2d 548] (1972), he may nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms.
Implicit in this statement is the proposition that the employee in Mt. Healthy had no procedural due process right to a pretermination hearing despite his first amendment claim. Similarly, in Perry v. Sindermann, 408 U.S. 593, 599 n. 5, 92 S.Ct. 2694, 2698 n. 5, 33 L.Ed.2d 570 (1972), the Court discussed a plaintiff’s right to procedural due process without any reference to his first amendment claim. The Court said:
The Court of Appeals suggested that the respondent might have a due process right to some kind of hearing simply if he asserts to college officials that their decision was based on his constitutionally protected conduct. [Sindermann v. Perry,] 430 F.2d [939], at 944 ([5th Cir.1970)]. We have rejected this approach in Board of Regents v. Roth, ante, [408 U.S.] at 575 n. 14 [92 S.Ct. at 2708 n. 14].
In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Court stated that it might require a hearing before a direct infringement upon first amendment rights, such as a seizure of books or an injunction against meetings. But the Court continued: “[w]hatever may be a teacher’s rights of free speech, the interest in holding a teaching job at a state university, simpliciter, is not itself a free speech interest.” Id. at 575 n. 14, 92 S.Ct. at 2708 n. 14.
Although we are bound by the mandate in Jacobs I, and would not rest a holding on the above analysis without seeking permission from our supreme court to re-examine the issue, see State v. Manzanares, 100 N.M. 621, 674 P.2d 511 (1983); Crane Co. v. American Standard, Inc., 603 F.2d 244 (2d Cir.1979), but see Morrow v. Dillard, 580 F.2d 1284 (5th Cir.1978), we recognize that our supreme court is not bound by the law of the case when there has been subsequent authority from the United States Supreme Court. For these reasons, we anticipate that any holding by this court based on the discussion of procedural due process in Jacobs I would be reversed on certiorari. Thus, we base our decision solely on the analysis of the first amendment issue.
Damages
The trial court found that, “[a]s a direct and proximate result of the defendants’ Meister, Shannon and Bulls [sic] wrongful termination of the plaintiff, plaintiff has incurred damages for emotional distress in the amount of $60,000.00.” Defendants argue there was insufficient evidence to support this finding solely because Jacobs did not produce medical expert or other evidence to support the award of damages for emotional distress.
Initially, defendants did not submit to the trial court any requested findings addressing the issue of damages. Yet, after the trial court found liability, defendants asked that the findings be supplemented by an apportionment of the damages already awarded. They also requested the trial court to strike the finding on emotional distress damages on the same basis urged on appeal, that is, that Jacobs had produced no corroborative evidence to support his claim and his own testimony that the emotional injury he had incurred was caused by defendants’ wrongful conduct. Defendants never requested a finding that Jacobs had failed to produce any evidence of causation. Instead, they argued to the trial court, as they contend in their brief on appeal, that Jacobs’ evidence, consisting of his own testimony, was unacceptable without supporting expert testimony.
We believe defendants’ contention, that Jacobs’ proof of causation required expert medical corroboration to support the trial court’s finding of causation, is incorrect. For the reasons that follow, I would hold that Jacobs’ own testimony was substantial evidence of emotional injury sufficient to support the award of damages and that the corroborative evidence defendants insist be required is simply not necessary.
The United States Supreme Court, in Carey, determined that a plaintiff claiming emotional distress caused by deprivation of his constitutional rights under Section 1983 must prove that an injury actually occurred. Carey recognized that “[distress is a personal injury familiar to the law, customarily proved by showing the nature and circumstances of the wrong and its effect on the plaintiff.” Id., 435 U.S. at 263-64, 98 S.Ct. at 1052-53. See also Dominguez v. Stone, 97 N.M. 211, 638 P.2d 423 (Ct.App.1981) (emotional distress can be proved, in jpart, by the circumstances of the wrong). In Carey, the Section 1983 claims were limited to procedural due process and defendants were not held liable for deprivation of other constitutional rights, as in the case before us.
After Carey, the Supreme Court in Memphis Community School District v. Stachura, 477 U.S. 299, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986), held that where a plaintiff proved he has been deprived of substantive constitutional rights, the proof requirement of actual injury resulting from the wrongful conduct is no less than when a plaintiff claims he has been deprived of procedural due process alone. In Carey, the plaintiffs relied upon the trial court to presume injury from constitutional deprivation and did not produce any evidence of actual injury. In Stachura, the jury was erroneously instructed to find inherent value in the constitutional right lost. Such was not the case here; the trial court neither presumed injury nor attached an inherent value to Jacobs’ rights under the first and fourteenth amendments. Instead, Jacobs himself testified of the injury, its cause, and the effects it had on his life.
As required by Carey and Stachura, New Mexico courts have placed the burden of proving the existence of injury and resulting damages with reasonable certainty on the plaintiff who is seeking compensatory damages. See Gulf Ref. Co. v. Etcheverry, 85 N.M. 266, 511 P.2d 752 (Ct.App.1973). An award of damages must be based upon the evidence adduced at trial. See Sanchez v. Martinez, 99 N.M. 66, 653 P.2d 897 (Ct.App.1982). Where plaintiff is claiming emotional distress, this court has not required that proof of the injury be by expert testimony, as argued by defendants. See Sweitzer v. Sanchez, 80 N.M. 408, 456 P.2d 882 (Ct.App.1969) (evidence of acute emotional distress came from plaintiff; it was trial court’s function to judge plaintiff’s credibility and determine weight to give his testimony). Nor have defendants presented us with any basis for requiring special proof in Section 1983 cases. Under New Mexico law, Jacobs had the burden of proving causal connection between the wrongful conduct and his injury. Hebenstreit v. A.T. & S.F. Ry., 65 N.M. 301, 336 P.2d 1057 (1959). Defendants do not cite to any authority for their contention that, in Section 1983 cases, causal connection also must be shown by expert medical testimony. See In re Adoption of Doe, 100 N.M. 764, 676 P.2d 1329 (1984).
Having concluded that Jacobs could prove emotional distress resulting from deprivation of his constitutional rights without the need of expert testimony, I now turn to the question of whether there was substantial evidence to support the finding on damages.
Substantial evidence is such relevant evidence as a reasonable mind may accept as adequate to support a conclusion. Tapia v. Panhandle Steel Erectors Co., 78 N.M. 86, 428 P.2d 625 (1967). On review, this court does not weigh the evidence, but looks to see whether the evidence, viewed in the light most favorable to the trial court’s findings, affords substantial evidence. Id. Based on my previous discussion, I believe Jacobs proved “the nature and circumstances of the wrong.” Carey v. Piphus, 435 U.S. at 264, 98 S.Ct. at 1052. Likewise, my review of the record reveals that Jacobs also produced evidence of the effect of defendants’ conduct on him. Id.
Defendants have conceded Jacobs testified he was unable to obtain another permanent teaching position after leaving the university due to the circumstances surrounding defendants’ refusal to rehire him. Injury to his self-image as a professional teacher and to his ability to retain other gainful employment may be inferred from his testimony. It is also clear that the extent of the injury was affected by the fact, later proved at trial, that he was terminated for having exercised his first amendment rights. Additionally, Jacobs testified his eventual divorce from his wife and the resulting separation from his family were caused by his inability to support his family, which, in turn, resulted from the manner in which he lost his job with the university. I find this evidence sufficient to support the trial court’s finding on damages for emotional distress caused by defendants’ wrongful conduct. See Topmiller v. Cain, 99 N.M. 311, 657 P.2d 638 (Ct.App.1983) (compensatory damages are recoverable if they proximately result from violation of a legally recognized right of the person seeking damages). Although defendants now urge that the period elapsing between the time of the constitutional deprivation and the time of the injury supports a finding of no causal connection, I believe the record is absent of any evidence presented by defendants to rebut Jacobs’ testimony on this issue.
Even though Jacobs’ testimony on emotional distress may be weak and thus fall at the low end of the scale of proof required to support a finding that such injury should be compensated in damages, I nonetheless conclude that the record supports the finding on damages. Cf. Sweitzer v. Sanchez. The standards for determining emotional distress damages in a tort action are stated in Dominguez, which in turn are adopted from the Restatement (Second) of Torts,’ Section 46 (1965). Dominguez recognized that whether a plaintiff has established emotional distress and damages resulting from such injury is to be determined by the fact finder. In instances where a plaintiff claims emotional distress resulted from the unconstitutional conduct of a defendant, this court must rely on the experience of the trial judge to determine causation and magnitude of injury and to arrive at the appropriate compensation in damages. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The trial court can properly award substantial damages as compensation for harms that normally flow from a tortious injury without specific proof of their existence, although it should consider any evidence that the harm is greater or less than what ordinarily results from such conduct. Restatement, supra, § 912 (1979). It is reasonable to conclude that the involuntary loss of a job would cause emotional distress, and that the distress would be greater in circumstances such as this, where Jacobs devoted several years to a career that was terminated on pretextual grounds.
On appeal, defendants have not argued that the amount of damages was excessive. We will not disturb the award unless it appears to be improperly influenced or based upon a patently mistaken view of the evidence. See Grammer v. Kohlhaas Tank & Equip. Co., 93 N.M. 685, 604 P.2d 823 (Ct.App.1979). In particular, as with pain and suffering, the law cannot fix a standard for measuring emotional distress, id., and this court must leave the proper compensation to the judgment of the fact finder. See Mathis v. A.T. & S.F. Ry., 61 N.M. 330, 300 P.2d 482 (1956); Sweitzer v. Sanchez; Strickland, v. Roosevelt County Rural Elec. Coop., 99 N.M. 335, 657 P.2d 1184 (Ct.App.1982), cert. denied, 463 U.S. 1209, 103 S.Ct. 3540, 77 L.Ed.2d 1390 (1983). We conclude that the finding on damages was supported by substantial evidence.
We affirm the judgment in favor of Jacobs. He has requested attorney fees for services rendered in this appeal, pursuant to 42 U.S.C. Section 1988 (1982). We remand to the trial court for consideration of his request for such fees and an appropriate award. See Jacobs I.
IT IS SO ORDERED.
BIVINS, C.J., concurs in part and dissents in part. HARTZ, J., specially concurs.