In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-4317, 09-4009 & 10-1456
IN RE:
D USTIN JOHN B USSON-SOKOLIK,
Debtor.
D USTIN B USSON-SOKOLIK and C HOMI P RAG,
Appellants,
v.
M ILWAUKEE SCHOOL OF E NGINEERING,
Appellee.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 2:07-cv-00801—Charles N. Clevert, Jr., Chief Judge.
A RGUED S EPTEMBER 14, 2010—D ECIDED F EBRUARY 10, 2011
Before B AUER, FLAUM and H AMILTON, Circuit Judges.
B AUER, Circuit Judge. This case comes to us as a direct
appeal from the Eastern District of Wisconsin’s decision
to affirm findings of the United States Bankruptcy
Court for the Eastern District of Wisconsin. The courts
2 Nos. 08-4317, 09-4009 & 10-1456
below found: (1) that a $3,000 student loan which
Dustin Busson-Sokolik received from the Milwaukee
School of Engineering (“MSOE”) in 1999 was a non-
dischargeable debt under the United States Bankruptcy
Code, and (2) that the school was entitled to collection
costs and attorney’s fees in connection with the bankruptcy
proceedings pursuant to the promissory note for the
loan signed by Busson-Sokolik. The district court also:
(1) denied a motion for sanctions against the school, and
(2) imposed sanctions against Busson-Sokolik and his
attorney, Chomi Prag. Busson-Sokolik and Prag appeal
each of these determinations. After reviewing the
district court’s application of the Bankruptcy Code
de novo and the underlying factual findings in the case
for clear error, we affirm. As to the district court’s im-
position of sanctions against Busson-Sokolik and Prag,
while we do not find any abuse of discretion in the
court’s decision to impose sanctions in this case, we
do find the amount of the sanctions assessed to be exces-
sive and therefore hold that the sanctions be reduced
by half.
I. BACKGROUND
Busson-Sokolik was a student at MSOE from
September 1999 until May 2000. On October 29, 1999,
Busson-Sokolik signed a promissory note with MSOE in
the amount of $3,000, agreeing in relevant part as follows:
I promise to pay the school, or a subsequent holder
of the Promissory Note, the sum of amount(s) ad-
Nos. 08-4317, 09-4009 & 10-1456 3
vanced to me under the terms of this Note, plus
interest and other fees which may become due as
provided in this Note. I promise to pay all reasonable
collection costs, including attorney fees and other
charges, necessary for the collection of any amount
not paid when due . . . My signature certifies I have
read, understand, and agree to the terms and condi-
tions of this Promissory Note.
MSOE sued Busson-Sokolik in a Racine County, Wisconsin
state court in April 2005 to recover unpaid sums under
the loan agreement and obtained a default judgment of
$5,909.63. In June 2005, Busson-Sokolik initiated a
Chapter 13 bankruptcy proceeding, which was later
converted to a Chapter 7 proceeding, in May 2006. On
his bankruptcy petition, he listed MSOE as a creditor.
In August 2006, Busson-Sokolik filed an adversary com-
plaint against MSOE to determine the dischargeability
of his debt to MSOE. The bankruptcy court found that
the debt was non-dischargeable and found that Busson-
Sokolik owed MSOE $16,248.78, an amount that in-
cluded costs and attorney’s fees.
Busson-Sokolik appealed the bankruptcy court’s deci-
sion to the district court. Lengthy delays in filing ensued
and a series of motions alleging misconduct on both sides
were filed. Busson-Sokolik filed a motion for sanctions
under Fed. R. Bankr. P. 9011 based on alleged false state-
ments in MSOE’s brief and MSOE moved to strike
portions of Busson-Sokolik’s reply brief, claiming that
it contained arguments that were never raised in the
opening brief or in the bankruptcy court. MSOE also
4 Nos. 08-4317, 09-4009 & 10-1456
moved for costs and fees under Fed. R. Bankr. P. 8020,
which permits recovery of such costs and fees when a
party has filed a frivolous appeal.
The district court judge denied Busson-Sokolik’s motion
for sanctions, but granted MSOE’s motion for costs and
fees under Fed. R. Bankr. P. 8020, finding that Busson-
Sokolik’s appeal was frivolous. He also granted MSOE’s
motion to strike arguments in Busson-Sokolik’s reply
brief not previously raised, finding those arguments
waived. Finally, he affirmed the bankruptcy court’s
judgment and awarded $80,290.15 to MSOE, specifying
that Busson-Sokolik and his attorney were jointly and
severally liable for $61,942.50 of the judgment, and that
Busson-Sokolik was solely liable for the remaining
$18,347.65.
Busson-Sokolik and attorney Prag have timely ap-
pealed to this court.
II. DISCUSSION
A. The Dischargeability of Busson-Sokolik’s Loan
from the Milwaukee School of Engineering
A key issue is whether the MSOE loan constitutes a non-
dischargeable debt under 11 U.S.C. § 523(a)(8). We re-
view questions of law pertaining to the Bankruptcy
Code de novo and the factual determinations under-
lying the lower courts’ conclusions for clear error. See
Wiese v. Cmty Bank of Cent. Wis., 552 F.3d 584, 588 (7th
Cir. 2009); Mungo v. Taylor, 355 F.3d 969, 974 (7th Cir. 2004).
Nos. 08-4317, 09-4009 & 10-1456 5
Section 523(a)(8) creates exceptions to the general
discharge of a debtor’s financial obligations in bank-
ruptcy under 11 U.S.C. § 727. Under § 523(a)(8)(A), an
individual debtor is not discharged from a debt for “(i) an
educational benefit overpayment or loan made, insured
or guaranteed by a governmental unit, or made under
any program funded in whole or in part by a govern-
mental unit or nonprofit institution; or (ii) an obliga-
tion to repay funds received as an educational benefit,
scholarship or stipend,” unless excepting such debt from
discharge would impose undue hardship on the debtor
and the debtor’s dependents. The bankruptcy court
and the district court each found that the MSOE loan was
non-dischargeable under § 523(a)(8)(A). We agree.
We note at the outset the parties’ failure to explicitly
identify whether the applicable framework for the court’s
analysis should be § 523(a)(8)(A)(i) or (ii). Though the
parties refer to § 523(a)(8)(A) generally, the analysis
below and in the parties’ briefing before this court tracks
§ 523(a)(8)(A)(i). So, section 523(a)(8)(A)(i) will be our
framework.
It is undisputed that MSOE is a § 501(c)(3) non-profit
institution. While it seems clear to us that the funds were
furnished as part of a loan program, Busson-Sokolik
disputes that the funds transferred constituted a loan. We
do not find his argument compelling. For there to be a
loan, there must be “(i) a contract, whereby (ii) one party
transfers a defined quantity of money, goods or services,
to another, and (iii) the other party agrees to pay for
the sum or items transferred at a later date.” In re
6 Nos. 08-4317, 09-4009 & 10-1456
Chambers, 348 F.3d 650, 657 (7th Cir. 2003). The Octo-
ber 1999 promissory note evinces a contract for the
transfer of $3,000 to be repaid at a later date. Since the
Bankruptcy Court made a reliable factual finding that
the $3,000 was transferred to Busson-Sokolik’s student
account on November 9, 1999, each of the three elements
of a loan are present.1
Busson-Sokolik next challenges whether the loan can
properly be considered “educational,” as required to
bring the loan within § 523(a)(8)(A). While some courts
look to the use of the funds received to determine
whether a loan is educational, we adopt the approach
taken by the Fifth Circuit in In re Murphy, 282 F.3d 868
(5th Cir. 2002). In so doing, we hold that it is the pur-
pose of a loan which determines whether it is “educa-
tional.” This approach seems most consistent with the
language of § 523(a)(8)(A). It also aligns with the
1
Busson-Sokolik claims that “no funds changed hands”
between him and MSOE, but since he does not dispute that his
student account was credited with the loan money, this argu-
ment is unfounded. If the loan money was transferred to the
student’s account, it became available for his use, much like
a bank deposit. While the facts indicate that a credit on Busson-
Sokolik’s student account was later refunded to his mother,
this is irrelevant to the question of whether a loan was made
to Busson-Sokolik in the first place. Finding no clear error on
the question of whether the funds were in fact transferred
to Busson-Sokolik and no defects in the formation of a valid
contract between the parties, we affirm the finding that the
sum MSOE transferred to Busson-Sokolik was a loan.
Nos. 08-4317, 09-4009 & 10-1456 7
broader goal of protecting lenders against debtors who
divert educational funds toward other uses. In our view,
adopting a “use” test would be problematic. Such a
test would enable students who abuse funds intended
for their education to receive the benefit of a discharge,
while those who use the loan proceeds as intended
would “retain the burden of paying them even after a
chapter 7 discharge.” Murphy, 282 F.3d at 873. The “pur-
pose” test avoids this potential problem by refocusing
the inquiry on the nature and character of the loan. For
example, rather than trying to determine whether a
computer purchased with loan money was used for
schoolwork, personal use or some combination of both,
we need only ask whether the lender’s agreement with
the borrower was predicated on the borrower being a
student who needed financial support to get through
school.
We find the following facts established below relevant
to our inquiry into the purpose of the MSOE loan:
(1) MSOE is a school; (2) the loan was part of a package
that included scholarship and grant money toward com-
pletion of Busson-Sokolik’s education at MSOE; (3) the
promissory note for the loan was signed while Busson-
Sokolik was a student at MSOE; (4) Busson-Sokolik
had to be a student to be eligible for the loan he
received from MSOE; and (5) the MSOE loan money
was deposited into Busson-Sokolik’s student account at
MSOE, an account he presumably would not have had if
he were not a student. Together these facts establish
that the loan was part of a program specifically designed
by the school to provide financial support to students
8 Nos. 08-4317, 09-4009 & 10-1456
working to complete their education. Under the
purpose driven test this court has adopted, there is no
question that the loan was educational. As a result, we
affirm the finding that 11 U.S.C. § 523(a)(8) bars Busson-
Sokolik from discharging his debt to MSOE in bank-
ruptcy because the debt resulted from an educational loan.
B. The Imposition of Collection Costs and Attorney’s
Fees
We now turn to Busson-Sokolik’s argument that the
bankruptcy court improperly allowed MSOE to recover
costs and attorney’s fees in this case.
Under the “American Rule,” a litigant who prevails in a
lawsuit is not ordinarily allowed to collect attorney’s fees
from the losing side. See Alyeska Pipeline Service Co. v.
Wilderness Society, 421 U.S. 240, 247 (1975). However, this
rule can be overcome by statute or by an enforceable
contract with a provision regarding the allocation of
attorney’s fees. See Travelers Cas. and Sur. Co. of America
v. Pacific Gas and Elec. Co., 549 U.S. 443, 448 (2007).
Busson-Sokolik is correct that there was no statutory
basis for an award of attorney’s fees during the bank-
ruptcy proceedings. However, the basis for the bank-
ruptcy court’s award of fees was contractual, not statu-
tory. Under the promissory note for the MSOE loan,
Busson-Sokolik agreed in writing to pay “all reasonable
collection costs, including attorney’s fees and other
charges, necessary for the collection of any amount not
paid when due.” The bankruptcy court found a valid
Nos. 08-4317, 09-4009 & 10-1456 9
contract existed between the parties that allowed MSOE
to recover its fees based on the above-referenced
language in the promissory note. This was not error.
As the Supreme Court held in the Travelers case, “it re-
mains true that an otherwise enforceable contract allo-
cating attorney’s fees (i.e. one that is enforceable under
substantive, nonbankruptcy law) is allowable in bank-
ruptcy except where the Bankruptcy Code provides
otherwise.” Travelers, 549 U.S. at 448. The fact that the
fees were incurred litigating a bankruptcy case does not
disallow MSOE’s contract based claim for attorney’s
fees under Travelers. Since the promissory note was
an enforceable contract, the fees were separately recover-
able under the substantive law of contracts. Further-
more, Busson-Sokolik has not argued that any portion
of the Bankruptcy Code specifically prohibits a court
from awarding such fees under a contract theory.
Finding no applicable exception in the Bankruptcy Code
and no barrier to formation of a valid contract between
MSOE and Busson-Sokolik, we affirm the award of costs
and attorney’s fees to MSOE pursuant to the terms of
the promissory note.
In concluding our discussion of Busson-Sokolik’s
claim that fees were improperly awarded, we note his
argument that the district court erred in striking
portions of his reply brief that related to the merger
doctrine. The district court found that Busson-Sokolik
failed to raise the merger doctrine in his initial brief at
the district court level. Chief Judge Clevert therefore
held that Busson-Sokolik had waived any argument that
the fee award was improper based on the merger doc-
trine. We agree with the district court that the
10 Nos. 08-4317, 09-4009 & 10-1456
merger issues were waived and decline to apply an
exception to waiver for the reasons set forth below.
Waiver occurs when an appellant attempts to raise an
issue on appeal that was not adequately raised below.
This court has held that when an issue was not raised
in the bankruptcy court, a finding that the issue is
waived at the district court level is “the correct result,
since to find otherwise would permit a litigant simply
to bypass the bankruptcy court.” Matter of Weber, 25
F.3d 413, 415 (7th Cir. 1994). When asked at oral argu-
ment what her best effort was to raise the doctrine of
merger before the bankruptcy court, Busson-Sokolik’s
counsel was unable to present any evidence that the
issue was addressed in that court. Instead she indicated
that her focus had been on the “American rule” and the
lack of a statutory basis for awarding the fees. Since
we find no evidence in the record or from Busson-
Sokolik’s counsel that the issue was raised in the bank-
ruptcy court, we hold that any argument related to the
merger doctrine was waived before it reached the
district court.
Though it is within this court’s discretion to find
an exception to waiver and to consider an appellant’s
argument despite the appellant having waived it, the
circumstances here hardly justify an exception. It is only
under “exceptional circumstances” that we will hear
an argument not adequately presented below. Matter of
Weber, 25 F.3d at 416. Busson-Sokolik argues that we
should consider the merger issue because “an award by
the bankruptcy court of close to $9,000 in attorney’s fees
Nos. 08-4317, 09-4009 & 10-1456 11
to the Milwaukee School of Engineering based on an
unenforceable contract is inherently unfair.” As we
have already discussed above, there was a valid
contract between the parties which provided for the
allocation of attorney’s fees. Busson-Sokolik’s charac-
terization of the contract as “unenforceable” is therefore
incorrect. As to the amount of the fees awarded, Busson-
Sokolik’s characterization is similarly misguided. Busson-
Sokolik provides no support for his proposition that
a $9,000 fee in a case such as this is inherently unrea-
sonable or unfair. The bankruptcy court explicitly found
that MSOE attorney’s fees in the amount of $8,955 were
reasonable. Absent any meaningful challenge to the
award by Busson-Sokolik, we see no reason to disturb
that finding.
The district court first became aware of Busson-
Sokolik’s merger argument in a reply brief. At that point
the issue was waived twice over: first, because the argu-
ment was never raised in the bankruptcy court; and
second, because arguments raised for the first time in a
reply brief as opposed to the appellant’s opening brief are
deemed waived. See, e.g., Nelson v. La Crosse County Dist.
Atty., 301 F.3d 820, 836 (7th Cir. 2002); James v. Sheahan, 137
F.3d 1003, 1008 (7th Cir. 1998). The proper response to
an argument improperly raised in such a brief is to move
to strike the offending portion of the brief. Cleveland v.
Porca Co., 38 F.3d 289, 297 (7th Cir. 1994). MSOE timely
filed a motion to strike the relevant portions of Busson-
Sokolik’s reply brief and the district court properly
granted the motion. Since Busson-Sokolik has failed to
show “exceptional circumstances” that would make this
12 Nos. 08-4317, 09-4009 & 10-1456
case a favorable candidate for an exception to waiver,
we decline to discuss the merits of those portions of his
argument that relate to the merger doctrine.
C. The Parties’ Motions for Sanctions
Finding no error in the district court’s decision to grant
MSOE’s motion to strike portions of Busson-Sokolik’s
reply brief, we now turn to Busson-Sokolik’s arguments
that the district court erred (1) in denying his request for
sanctions against MSOE under Fed. R. Bankr. P. 9011, and
(2) in entering sanctions against him and his attorney,
Chomi Prag, under Fed. R. Bankr. P. 8020. We review
both determinations for abuse of discretion.2 Such abuse
occurs only when a court has acted contrary to the law
or reached an unreasonable result. In re Rimsat, Ltd., 212
F.3d 1039, 1046 (7th Cir. 2000).
2
“Abuse of discretion” is the clear standard for evaluating
a judge’s decision to impose sanctions in a bankruptcy case.
See In re Rimsat, Ltd., 212 F.3d 1039, 1046 (7th Cir. 2000). While
the standard for evaluating a judge’s decision not to impose
sanctions in a bankruptcy case is somewhat less clear, we
adopt the Sixth Circuit’s approach of using the “abuse of
discretion” standard. See In re Downs, 103 F.3d 472, 480 (6th
Cir. 1996) (holding that the applicable standard of review for
evaluating a bankruptcy court’s denial of Fed. R. Bankr.
P. 9011 sanctions is “abuse of discretion” and noting
similar approaches taken by the Ninth and Tenth Circuits).
Nos. 08-4317, 09-4009 & 10-1456 13
1. Denial of Motion for Sanctions Against MSOE
An attorney is subject to sanctions under Fed. R. Bankr.
P. 9011 when he submits a petition, pleading, written
motion or other paper to the court that falls into one of
four categories: (1) the document was submitted for an
improper purpose (i.e., to harass one’s adversary or to
delay or drive up the costs of litigation); (2) the claims
contained in the document are frivolous because they
lack support under existing law; (3) the allegations con-
tained in the document lack evidentiary support or
are unlikely to have evidentiary support upon further
investigation; or (4) the denials in the document are
unwarranted based on the evidence. Fed. R. Bankr. P.
9011(b)(1)-(4). A motion for sanctions may be made
under Fed. R. Bankr. P. 9011(c)(1)(A), as Busson-Sokolik
did in this case, but any such motion is subject to a 21-
day safe harbor provision.
Busson-Sokolik alleges sanctionable behavior on the
part of MSOE based largely on statements contained in
MSOE’s brief before the district court. However, we
need not reach the merits of any alleged violation on the
part of MSOE because Busson-Sokolik undisputedly
violated the safe harbor provision. On his own admission
in the district court on October 31, 2008 and in his brief
before this court, Busson-Sokolik concedes that he
and his attorney did not provide MSOE with an adequate
opportunity to withdraw the contested portions of its
brief as required by the safe harbor provision of Fed. R.
Bankr. P. 9011(c)(1)(A).
While we appreciate the candor with which Busson-
Sokolik and his counsel have acknowledged their error
14 Nos. 08-4317, 09-4009 & 10-1456
in failing to abide by the 21-day window, their forth-
comingness is not sufficient to persuade us to revive
an inquiry into the allegations raised. Though Busson-
Sokolik correctly points out that courts are able to enter
an order for sanctions on their own initiative, there is
no requirement under Fed. R. Bankr. P. 9011(c)(1)(B) that
a court act sua sponte to impose sanctions. Chief Judge
Clevert denied Busson-Sokolik’s motion for sanctions
based on the safe harbor provision, a decision which
we find comports with the law. To the extent that he
was nevertheless empowered to impose sanctions under
Fed. R. Bankr. P. 9011(c)(1)(B) and declined to do so,
we choose not to disturb that judgment.
2. Sanctions Imposed Against Busson-Sokolik and
Chomi Prag
We now turn to the final issue for our review, namely
whether the district court abused its discretion when it
awarded sanctions for filing a frivolous appeal against
Busson-Sokolik and his attorney, Chomi Prag.
The district court’s imposition of sanctions was based
on Fed. R. Bankr. P. 8020, which reads as follows:
If a district court or bankruptcy appellate panel deter-
mines that an appeal from an order, judgment, or
decree of a bankruptcy judge is frivolous, it may,
after a separately filed motion or notice from the
district court or bankruptcy appellate panel and
reasonable opportunity to respond, award just dam-
ages and single or double costs to the appellee.
Nos. 08-4317, 09-4009 & 10-1456 15
Chief Judge Clevert made several determinations in
support of his finding that Busson-Sokolik’s “appeal, as
litigated, was frivolous.” He summarized Busson-
Sokolik and Prag’s behavior throughout the course of
the proceedings as follows:
Motions were filed by appellant without any basis
in the rules, deadlines were ignored, procedural
requirements were dismissed as unnecessary, and
duplicative filings and objections were made thereby
making it impossible for appellee to minimize its
costs in this action.
In his decision, Chief Judge Clevert referenced appel-
lants’ reliance on the merger doctrine despite having
waived it, several misstatements in the record made by
Prag, the Fed. R. Bankr. P. 9011 motion filed against
MSOE, which he called “baseless,” and the improper
filing of an appeal to this court while district court pro-
ceedings were still pending.
We do not find that Chief Judge Clevert erred in im-
posing sanctions based on Fed. R. Bankr. P. 8020. Busson-
Sokolik and his attorney were free to appeal their case to
the district court, but ample evidence suggests that the
manner in which the appeal was litigated bordered on
the frivolous. 3 Courts consider a variety of factors in
3
An appeal is frivolous “when the result is obvious or when
the appellant’s arguments are wholly without merit.” Flaherty
v. Gas Research Inst., 31 F.3d 451, 459 (7th Cir. 1994). Even
when genuinely appealable issues may exist, appellant’s
(continued...)
16 Nos. 08-4317, 09-4009 & 10-1456
deciding whether to impose sanctions under Fed. R.
Bankr. P. 8020.4 We are not convinced that Busson-
Sokolik and his attorney appealed in bad faith. How-
ever, bad faith is only one of the many factors to be con-
sidered in determining whether sanctions are appro-
priate in any given case. We are also not convinced
that the appeal itself (as contrasted with the manner in
which the appeal was litigated) was frivolous. Because
of appellants’ procedural error in failing to abide by the
safe harbor provision of Fed. R. Bankr. P. 9011, the
courts have never reached the merits of that claim. And
because courts are able to find an exception to waiver,
the merger argument, though unsuccessful, did have
some basis in law. Appellants’ most egregious errors in
this litigation appear to have been procedural ones.
3
(...continued)
misconduct in arguing the appeal may render the appeal
“frivolous as argued.” Dungaree Realty, Inc. v. United States,
30 F.3d 122, 124 (Fed. Cir. 1994).
4
For a comprehensive list of factors to be considered in
evaluating a Fed. R. Bankr. P. 8020 motion, see In re Maloni,
282 B.R. 727, 734 (1st Cir. BAP 2002) (“Some of these factors
are: bad faith on the part of the appellant; that the argument
presented on appeal is meritless in toto; and, whether only
part of the argument is frivolous. In addition, the court will
consider whether appellant’s argument: addresses the issues
on appeal properly; fails to support the issues on appeal; fails
to cite any authority; cites inapplicable authority; makes
unsubstantiated factual assertions; makes bare legal conclu-
sions; or, misrepresents the record.”).
Nos. 08-4317, 09-4009 & 10-1456 17
These errors were numerous and well documented.
Therefore, given the stringent standard of abuse of dis-
cretion by which we are bound, we find that the act
of awarding sanctions under Fed. R. Bankr. P. 8020 was
a reasonable exercise of Chief Judge Clevert’s discretion.
Notwithstanding the reasonableness of the decision
to award sanctions and the reasonableness of MSOE’s
fees 5 , we do not find that the full amount awarded in
the district court was necessary to achieve the deterrent
purposes of Fed. R. Bankr. P. 8020. As such, we exercise
this court’s own discretion to reduce the sanctions
imposed by half. In so doing, we acknowledge that
“[w]hile an award of attorney’s fees may be necessary to
fulfill the deterrent purposes of Rule 8020, the award
should not subject Appellant to financial ruin.” In re
Bonfield, 2005 WL 2810702 at *1 (W.D. Wash.). The fees
accrued in this case are sizeable and would be difficult
for many litigants to pay. Recognizing that Busson-
Sokolik is a student who has filed for bankruptcy and
finding no evidence of bad faith on the part of Busson-
Sokolik or his attorney, we conclude that a reduction
in sanctions is warranted in this case.
5
Of the district court award, $61,942.50 represents attorney’s
fees in connection with the appeal, which MSOE documented
and submitted to Chief Judge Clevert on May 14, 2009. The
statement includes work done from June 16, 2007 to May 14,
2009 billed at a rate of $225 per hour.
18 Nos. 08-4317, 09-4009 & 10-1456
III. CONCLUSION
Busson-Sokolik and his attorney, Chomi Prag, are jointly
and severally liable to MSOE for $30,971.25, an amount
which we find represents “just damages” under Fed. R.
Bankr. P. 8020. Busson-Sokolik remains solely liable for
$18,347.65, an amount which represents the July 11, 2007
judgment on decision in the bankruptcy court, coupled
with $2,098.87 in judgment interest. The remaining
$30,971.25 of the fee award is V ACATED . On all other
grounds, we A FFIRM .
2-10-11