Mformation Technologies, Inc. v. Research in Motion Ltd. , 764 F.3d 1392 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
MFORMATION TECHNOLOGIES, INC., AND
MFORMATION SOFTWARE TECHNOLOGIES, INC.,
Plaintiffs-Appellants,
v.
RESEARCH IN MOTION LIMITED AND
RESEARCH IN MOTION CORPORATION,
Defendants-Appellees.
______________________
2012-1679, 2013-1123
______________________
Appeals from the United States District Court for the
Northern District of California in No. 08-CV-4990, Judge
Edward M. Chen.
______________________
Decided: August 22, 2014
______________________
EDWARD R. REINES, Weil, Gotshal & Manges LLP, of
Redwood Shores, California, argued for plaintiffs-
appellants. With him on the brief were TIMOTHY C.
SAULSBURY and DEREK C. WALTER. Of counsel was
THOMAS J. FRIEL, JR., Cooley LLP, of San Francisco,
California.
PATRICK F. PHILBIN, Kirkland & Ellis LLP, of Wash-
ington, DC, argued for defendants-appellees. With him on
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the brief were LINDA S. DEBRUIN and MEREDITH ZINANNI,
of Chicago, Illinois.
______________________
Before PROST, Chief Judge, SCHALL and HUGHES, Circuit
Judges.
PROST, Chief Judge.
Plaintiffs-Appellants Mformation Technologies, Inc.
and mFormation Software Technologies, Inc. (collectively,
“Mformation”) appeal the grant of judgment as a matter
of law (“JMOL”) by the United States District Court for
the Northern District of California that Defendants-
Appellees Research In Motion Limited and Research In
Motion Corporation (collectively, “BlackBerry 1”) do not
infringe U.S. Patent No. 6,970,917 (“’917 patent”). See
Mformation Techs., Inc. v. Research in Motion Ltd., No.
C08-04990, 2012 WL 3222237 (N.D. Cal. Aug. 8, 2012).
Because the district court correctly found that there was
no legally sufficient evidentiary basis on which a reasona-
ble jury could have found that BlackBerry infringes the
asserted claims of the ’917 patent, we affirm.
I. BACKGROUND
mFormation Software Technologies, Inc. (“MST”) cur-
rently owns the rights to the ’917 patent, which discloses
the wireless activation and management of an electronic
device without the need to have physical access to the
device. ’917 patent col. 1 ll. 54-57. Such a feature is
useful because many businesses request that their em-
ployees use smartphones to store and transmit sensitive
1 Research In Motion Limited and Research In Mo-
tion Corporation have changed their names to BlackBerry
Limited and BlackBerry Corporation, respectively. See
Appellees’ Mot. for Recons. of Ct.’s Nov. 21, 2013 Order 1,
ECF No. 57.
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information. Should an employee lose his or her
smartphone, the ’917 patent discloses a way to remotely
delete the sensitive data. The ’917 patent also discloses
methods to remotely deploy software updates and trouble-
shoot. Id. at col. 2 ll. 37-44. And it provides for the
completion of these tasks without the need for a constant
connection or an initial activation. Id. at col. 2 ll. 52-56.
Representative claim 1 reads as follows:
1. A method for remotely managing a wireless
device over a wireless network comprising a serv-
er and the wireless device, the wireless network
operable to communicatively connect the server
and the wireless device, the method comprising
the steps of:
transmitting registration information relating
to the wireless device from the wireless
device to the server;
verifying the registration information at the
server; and
without a request from the wireless device,
performing the steps of:
establishing a mailbox for the wireless device
at the server,
placing a command for the wireless device in
the mailbox at the server,
delivering the command from the mailbox at
the server to the wireless device by estab-
lishing a connection between the wireless
device and the server, transmitting the
contents of the mailbox from the server to
the wireless device, and accepting the con-
tents of the mailbox at the wireless device,
and
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executing the command at the wireless device;
wherein the connection is established based on
a threshold condition.
’917 patent col. 7 ll. 21-44 (emphases added).
BlackBerry makes and sells BlackBerry handheld
wireless devices. BlackBerry also markets its Blackberry
Enterprise Server (“BES”) software that allows its corpo-
rate customers to deliver e-mail and other data to their
employees’ BlackBerry devices. Additionally, the BES
software allows companies to remotely manage their
employees’ devices. The BES software is installed on a
company server and communicates with a BlackBerry
device by sending data in packets over the cheapest
available network. If the BlackBerry device is connected
via Wi-Fi, the command is sent over that channel; other-
wise, the command is sent (at a greater cost) over a cellu-
lar network. Regardless of which network is selected, all
communications between the BES software on the server
and a BlackBerry device are sent using an additional
proprietary Gateway Message Envelope (“GME”) protocol.
II. PROCEDURAL HISTORY
On October 31, 2008, Mformation Technologies, Inc.
(“MT”) filed this patent infringement suit against Black-
Berry. At the time, MT owned all rights to the ’917
patent. Appellants’ Mot. to Substitute Parties 2, ECF No.
22. Following a claim construction hearing, the district
court (Judge James Ware, presiding) construed the “es-
tablishing a connection between the wireless device and
the server” sub-step to mean “initiating wireless commu-
nication between a wireless device and the server.” J.A.
88. All parties agreed that the “wherein the connection is
established based on a threshold condition” limitation
applies to this sub-step.
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On July 13, 2012, a jury found that there was in-
fringement of all asserted claims of the ’917 patent and
returned a verdict of $147.2 million in favor of MT.
On July 17, 2012, the district court issued an order
requesting further briefing in support of the parties’ post-
trial motions. In its order, the district court explained
that the “establishing a connection” sub-step must be
completed before the “transmitting the contents of the
mailbox” sub-step can commence. In view of that state-
ment, BlackBerry renewed its JMOL motion, arguing that
MT did not present evidence that a connection is com-
pletely established before the start of the “transmitting”
sub-step. The district court granted BlackBerry’s motion,
overturning the verdict, and granted BlackBerry’s condi-
tional motion for a new trial.
MT also moved for a new trial, alleging that the dis-
trict court had changed the claim construction of the
“establishing a connection” sub-step post-verdict to re-
quire an order-of-steps, i.e., that the connection be com-
pletely established before transmission. MT argued that
such a requirement is both missing from the claims and
was not presented to the jury.
A few days after granting JMOL, Judge Ware retired.
The case was reassigned to Judge Edward M. Chen. In
denying MT’s motion for a new trial, Judge Chen
acknowledged that Judge Ware had issued refinements to
the claim construction after trial but declined to find that
Judge Ware had altered the claim construction. Judge
Chen also awarded BlackBerry costs in the amount of
$206,363.28. MT filed an appeal to this court on Septem-
ber 6, 2012.
On September 21, 2012, MT assigned all rights to
the ’917 patent to MST, including the claims and causes
of action at issue in this appeal. However, MST “express-
ly [did] not assum[e] or in any manner whatsoever be-
com[e] liable or responsible for any liabilities or
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obligations of or related to Mformation Technologies, Inc.”
Appellants’ Mot. to Substitute Parties 2, ECF No. 22.
MST then filed a separate appeal to this court, Appeal No.
13-1123.
We consolidated both appeals, and the parties each
filed motions: BlackBerry requested dismissal of the
consolidated appeal, arguing that MST lacked standing,
while MST requested to be substituted as the sole Appel-
lant. We granted a limited remand so that the district
court could rule on the motions. See Order 3, ECF No. 47.
The district court then granted MST’s “Motion to Join as
a Co-Plaintiff,” which was MST’s alternative request if it
could not be substituted. The district court explained that
it joined MST rather than making a substitution because
MT still owes costs in the amount of $206,363.28, and the
agreement between MT and MST may not transfer that
liability to MST. See Order Granting MST’s Mot. to Join
as Co-Pl. at 6, Mformation Techs., Inc. v. Research in
Motion Ltd., No. C08-04990 (N.D. Cal. Aug. 29, 2013),
ECF No. 1162. 2
2 Following the district court’s order, BlackBerry
again requested that we terminate Mformation’s appeal
due to lack of standing. See Appellees’ Mot. for Recons. of
Ct.’s Nov. 21, 2013 Order, ECF No. 57. But as we have
previously stated, “[a]ppellate joinder under Fed. R. Civ.
P. 21 is sanctioned by both the Supreme Court and the
Ninth Circuit, which is the source of the procedural law
that governs this non-patent issue.” Mentor H/S, Inc. v.
Med. Device Alliance, Inc., 244 F.3d 1365, 1373 (Fed. Cir.
2001). And the Ninth Circuit has permitted appellate
joinder of a plaintiff to retroactively cure a jurisdictional
defect. See Cal. Credit Union League v. City of Anaheim,
190 F.3d 997, 1001 (9th Cir. 1999). Therefore, we deny
BlackBerry’s motion.
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We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(1).
III. STANDARDS OF REVIEW
We review JMOL decisions from the Northern District
of California under the Ninth Circuit’s de novo standard.
See Hewlett-Packard Co. v. Mustek Sys., Inc., 340 F.3d
1314, 1318 (Fed. Cir. 2003). JMOL is proper only where
“the evidence, construed in the light most favorable to the
nonmoving party, permits only one reasonable conclusion,
and that conclusion is contrary to the jury’s verdict.”
Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002) (citation
omitted).
Claim construction is a question of law that we review
de novo. Lighting Ballast Control LLC v. Philips Elecs. N.
Am. Corp., 744 F.3d 1272, 1276-77 (Fed. Cir. 2014) (en
banc).
IV. DISCUSSION
This appeal concerns Mformation’s challenges to the
district court’s grant of JMOL of no infringement. First,
Mformation argues that the district court improperly
introduced a new post-verdict claim construction which
added an order-of-steps claim requirement. Second,
Mformation argues that even if the district court did not
alter the claim construction post-verdict, its construction
was incorrect. Third, Mformation argues that JMOL is
improper even when relying on the district court’s order-
of-steps requirement in the claim construction. We ad-
dress each of Mformation’s challenges in turn.
A. The “Post-Verdict” Claim Construction
1. Waiver
As a preliminary matter, BlackBerry claims that
Mformation waived its right to argue that the district
court changed its claim construction post-verdict to re-
quire a connection to be completely established before
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beginning transmission. To support its waiver argument,
BlackBerry points to several statements that Mfor-
mation’s counsel made on the record during and after
trial.
For example, BlackBerry argues that when the dis-
trict court pressed Mformation’s counsel on whether
Mformation had presented evidence that BlackBerry’s
products practice the “establishing a connection” sub-step,
including “the ‘wherein’ clause, which requires that a
connection be established, in the past tense,” Mfor-
mation’s counsel responded affirmatively. J.A. 15638.
The district court then asked whether Mformation had
presented evidence showing that the “wherein” clause “is
done before the transmission of the command,” and
Mformation responded: “Absolutely, your Honor.” Id.Mformation responds by noting that “to be binding,
judicial admissions must be unequivocal.” 3 Glick v. White
Motor Co., 458 F.2d 1287, 1291 (3d Cir. 1972) (citations
omitted). And when Judge Chen asked Mformation to
clarify this statement, Mformation’s counsel explained
that it did not intend to concede such a point. See J.A.
17291 (“Your Honor, I -- what we conceded, at that point,
was that there has to be a connection established before
there is transmission, not before transmission can
begin.”). Therefore, Mformation maintains that this
3 BlackBerry has filed a motion to strike the por-
tions of Mformation’s reply brief that respond to Black-
Berry’s challenges of waiver. See Appellees’ Mot. to Strike
4, ECF No. 74. After reviewing Mformation’s opening
brief, we conclude that Mformation does argue the district
court erred in finding that Mformation made concessions
below. See Appellants’ Br. 61-62, ECF No. 38. We, there-
fore, deny BlackBerry’s motion to strike portions of Mfor-
mation’s reply brief.
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statement, when considered in light of the further expla-
nation provided to Judge Chen, was far from unequivocal.
We agree with Mformation. Since we conclude that
Mformation did not waive its right to challenge whether
the district court altered its claim construct post-verdict,
we now address this argument on the merits. 4
2. Whether the District Court Altered the
Claim Construction
Mformation argues that the district court impermissi-
bly added an order-of-steps claim requirement post-
verdict in its JMOL opinion—i.e., a requirement that a
connection must be completely established before the
transmitting step begins. See J.A. 16783 (“[U]nder the
Court’s construction, a connection between the server and
the wireless device must be established before transmis-
sion of a command is commenced.”). However, according
to Mformation, with respect to the “wherein the connec-
tion is established . . .” limitation, the district court only
informed the jury that this limitation requires that the
connection be initiated before transmitting. Thus, Mfor-
mation argues that the jury was told that transmitting
could begin before the connection is fully established, as
long as the connection is later completed. The record
indicates that such a sequence is not only possible but
also what indeed occurs with BES software.
Mformation also compares this case to Hewlett-
Packard, where we concluded that the district court
improperly broadened a claim construction post-verdict.
340 F.3d at 1320-21. In granting a new trial, we ex-
plained that “[w]hen issues of claim construction have not
been properly raised in connection with the jury instruc-
tions, it is improper for the district court to adopt a new or
4 We have carefully considered BlackBerry’s other
waiver arguments, but we do not find them persuasive.
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more detailed claim construction in connection with the
JMOL motion.” Id.In response, BlackBerry argues that there was no
change in the claim construction. It notes that the dis-
trict court directed the jury in its instructions that the
“‘establishing a connection’ sub-step must be completed
before the ‘transmitting the contents of the mailbox’ sub-
step can commence.” J.A. 117-18. Further, BlackBerry
argues that the district court’s claim construction order
construed the phrase “establishing a connection” in part
to mean “initiating wireless communication between a
wireless device and the server.” J.A. 88. The district
court also required in its claim construction order that
“the ‘establishing a connection’ sub-step must be complet-
ed before the ‘transmitting the content of the mailbox’
sub-step can commence.” J.A. 90.
To the extent the district court did clarify its earlier
claim construction, BlackBerry claims that was not erro-
neous, as we have allowed district courts in the past to
adjust constructions post-trial if the court merely elabo-
rates on a meaning inherent in the previous construction.
See, e.g., Cordis Corp. v. Boston Scientific Corp., 658 F.3d
1347, 1356 (Fed. Cir. 2011). Indeed, in Cordis, the district
court construed the term “undulating” to mean “rising
and falling in waves, thus having at least a crest and a
trough.” Id. at 1355. After a jury verdict for the plaintiff,
the district court granted JMOL of non-infringement,
clarifying that the “use of the plural ‘waves’ implies a
change in direction,” and thus that the construction could
not be met by a single “U” shape. Id. We found no error
in the district court’s clarification of its construction of the
term “undulating.” Id. at 1357. Here, just as in Cordis,
BlackBerry argues that the district court’s JMOL order
clarified a construction that was inherent in the jury
instructions and claim construction order.
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Finally, BlackBerry notes that even if there was a
change in the claim construction, the district court cor-
rectly held it to be harmless. 5
We agree with BlackBerry and, therefore, conclude
that the district court did not change its claim construc-
tion post-verdict. Rather, the district court at most clari-
fied its previous construction that was already present in
the jury instructions. In the section of the jury instruc-
tions where the district court describes the “establishing a
connection” sub-step, the district court explains that the
use of the phrase “connection is established” found in the
“wherein” clause means that a connection must not only
be initiated, but must be “made by the server with the
wireless device.” J.A. 118. Then, in the next section, the
instructions discuss the transmitting sub-step. Id. A
logical reading of these instructions would be that the
sub-step discussed in the first section of the jury instruc-
tions must be completed before moving on to the next
section discussing a separate sub-step.
Further, we note that this case is very similar to
Cordis. In Cordis, we stated that “[t]he district court’s
post-verdict elaboration on this point only clarified what
was inherent in the construction. Doing so was not error;
it merely made plain what . . . should have been obvious
5 BlackBerry has also moved to strike the portions
of Mformation’s reply brief that challenge the district
court’s holding that any purported change in the claim
construction was harmless because Mformation allegedly
failed to preserve that argument in its opening brief.
Appellees’ Mot. to Strike 4, ECF No. 74. However, after
reviewing its opening brief, we conclude that Mformation
did challenge this holding. See Appellants’ Br. 61-62,
ECF No. 38 (stating it was highly prejudicial for the
district court to change its claim construction post-trial).
Therefore, we deny BlackBerry’s motion.
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to the jury.” 658 F.3d at 1356. This is also the case here,
as the jury instructions explained that (1) the “wherein”
clause was “a further limitation” on the “establishing a
connection” sub-step; and (2) the phrase “is established”
in that clause means that a “connection must not only be
initiated, but must be made.” J.A. 118. The jury instruc-
tions also explained that “[t]he ‘establishing a connection’
sub-step must be completed before the ‘transmitting’ . . .
sub-step can commence.” Id. It is inherent in those
instructions that, to complete the “establishing a connec-
tion” sub-step, the connection must be “established,” and
that must happen before the transmitting sub-step be-
gins.
Therefore, we conclude that the district court did not
alter its claim construction.
B. The Order-of-Steps Requirement in the
Claim Construction
We now turn to the issue of whether claim 1 of
the ’917 patent requires that a connection be completely
established before transmission. As a general rule,
“[u]nless the steps of a method [claim] actually recite an
order, the steps are not ordinarily construed to require
one.” Interactive Gift Express, Inc. v. Compuserve Inc.,
256 F.3d 1323, 1342 (Fed. Cir. 2001) (citation omitted).
However, a claim “requires an ordering of steps when the
claim language, as a matter of logic or grammar, requires
that the steps be performed in the order written, or the
specification directly or implicitly requires” an order of
steps. TALtech Ltd. v. Esquel Apparel, Inc., 279 F. App’x
974, 978 (Fed. Cir. 2008); see also Function Media, LLC v.
Google, Inc., 708 F.3d 1310, 1320 (Fed. Cir. 2013) (con-
cluding that a claim that recites “processing” an “electron-
ic advertisement” necessarily indicates that “the creation
of the ad must happen before the processing begins”).
Below, the district court read an order-of-steps re-
quirement into the claim, concluding that “before the
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server can ‘transmit’ the command, it must first ‘establish
a connection’” that is used for transmitting. J.A. 89. The
district court explained that, “[i]n the context of a network
communication, the ordinary meaning of the phrase ‘a
connection’ is ‘a means of communication or transport.’”
J.A. 87 (citing Webster’s Ninth New Collegiate Dictionary
278 (1983)).
On appeal, Mformation challenges the district court’s
construction. It argues that the patentee’s use of “ing” in
“establishing a connection between the wireless device
and the server” conveys that formation of the connection
is in progress, rather than completed. And Mformation
adds that the wherein clause does not specifically dictate
when the connection must be established; it only requires
that a connection eventually be established.
Further, the word “established” is distant from the
“establishing a connection” sub-step. According to Mfor-
mation, this serves as evidence that completely establish-
ing a connection is not required before transmission. See
Credle v. Bond, 25 F.3d 1566, 1571 (Fed. Cir. 1994) (stat-
ing that “grammatical structure and syntax” of the claim
can be important evidence for claim construction). Thus,
Mformation claims that the point of the “wherein” limita-
tion was to define the subset of factors that could trigger
the establishment of the connection—not to create rigid
step-ordering requirements.
BlackBerry responds that the result of performing the
“establishing a connection” sub-step is necessarily that a
connection is “established.” And BlackBerry claims the
presence of the “wherein” clause strongly reinforces that
conclusion. According to BlackBerry, if the “establishing
a connection” sub-step were not temporally distinct from
the transmitting sub-step (and prior to it), there would be
no reason to specify a separate sub-step for establishing a
connection at all, as it is inherently part of transmitting a
command.
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BlackBerry also points to a passage in the specifica-
tion that contains the only description of the “establishing
a connection” sub-step:
In particular, in step 408, a connection 516 is es-
tablished between management agent 504, run-
ning on remotely managed device 502, and
management server 508. Upon connection 516 be-
ing established, the commands that were stored in
the mailbox 512 in step 406 are transmitted 518
to device 502.
’917 patent col. 6 ll. 32-38 (emphasis added).
We agree with the district court and BlackBerry that
claim 1 requires that a connection be established before
transmission. We are persuaded by BlackBerry’s argu-
ment that the separate sub-step for establishing a connec-
tion would become “superfluous” if we concluded that a
connection did not have to be established (completed)
before transmission. That is because, under such con-
struction of the claim, establishing a connection is neces-
sarily encompassed in transmitting a command. See
Aristocrat Techs. Australia Pty Ltd. v. Int’l Game Tech.,
709 F.3d 1348, 1356-57 (Fed. Cir. 2013) (declining to
adopt the appellants’ proposed construction because it
would render another limitation “superfluous”). Further,
we note that other sub-steps in claim 1 inherently require
an order-of-steps. As a matter of logic, a mailbox must be
established before the contents of said mailbox can be
transmitted. See Oral Arg. 12:52-14:30 available at
http://www.cafc.uscourts.gov/oral-argument-
recordings/12-1679/all (“You can’t accept something before
it’s transmitted . . . this claim has at least some temporal
limitations . . . .”). And while it is true that “we have
expressly rejected the contention that if a patent describes
only a single embodiment, the claims of the patent must
be construed as being limited to that embodiment,” Phil-
lips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005)
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(en banc) (citation omitted), we do note that our conclu-
sion is consistent with the sole embodiment in the specifi-
cation. See ’917 patent col. 6 ll. 32-38.
C. The Grant of JMOL of No Infringement
Finally, Mformation argues that BlackBerry is not en-
titled to JMOL even if an order-of-steps requirement is
read into the claims. Mformation argues that there is still
substantial evidence of infringement because BlackBer-
ry’s BES software need not create the communication
channel itself but, rather, could use an existing wireless
communication channel. And Mformation claims to have
presented ample evidence at trial that, before the start of
the “transmitting” sub-step, the BES software selects an
existing wireless communication channel that allows a
server to communicate with a remote device. Consequent-
ly, Mformation claims that a reasonable juror could find
that the accused products establish a connection between
the BES software and the wireless device before com-
mencement of the “transmitting” sub-step.
We disagree. As the district court noted, Mfor-
mation’s expert based his infringement opinion on his
understanding that the claims do not require a connection
to be established between the server and the wireless
device before transmission. Based on his mistaken view,
Mformation’s expert testified that the “establishing a
connection” sub-step is satisfied by: (1) the BES software
“packaging the command in the GME protocol”; and (2) a
component of the BES software determining whether to
transmit that GME message via cellular or Wi-Fi. J.A.
15463-64; see also J.A. 15011-13; J.A. 15226. However,
both of these actions occur entirely within the BES soft-
ware installed on a company server. See, e.g., J.A. 15884-
86; J.A. 16724. Neither preparing a GME message nor
determining how to transmit that message results in
establishing a connection between the BES software and
a BlackBerry device, as the claim requires. In other
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words, selecting a path for a wireless connection is not the
equivalent of establishing a wireless connection.
We therefore conclude that substantial evidence does
not support a jury verdict of infringement under the
proper claim construction of the “establishing” sub-step.
Because we affirm the district court’s grant of JMOL of no
infringement, we need not address its conditional grant of
a new trial.
V. CONCLUSION
For the foregoing reasons, we affirm the district
court’s grant of JMOL of no infringement. MT and MST
remain jointly and severally liable for the $206,363.28 in
costs awarded below.
AFFIRMED