DCR Fund I, LLC v. TS Family Ltd. Partnership

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
January 24, 2008
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
DCR FUND I, LLC, a Florida limited
liability company,
Plaintiff-Appellee,
No. 05-6232
v. (D.C. No. 03-CV-772-L)
(W.D. Okla.)
TS FAMILY LIMITED
PARTNERSHIP, an Oklahoma limited
partnership; MOSHE TAL, an
individual; TAL TECHNOLOGIES,
INC., an Oklahoma corporation,
Defendants-Appellants,
and
JIM ROTH; STAN INMAN; JACK
CORNETT, as Board of County
Commissioners; FORREST BUTCH
FREEMAN, as Treasurer of Oklahoma
County, Oklahoma; OKLAHOMA
EMPLOYMENT SECURITY
COMMISSION; L.D. RHODES OIL
CO., an Oklahoma corporation; L. D.
RHODES; THE CITY OF
OKLAHOMA CITY, a municipal
corporation,
Defendants,
v.
BANK ONE, N.A.; T. VAN
ROBERTS; C. E. RENFRO; KEVIN
BLANEY, BRIDGEVIEW BANK,
N.A.,
Third-Party-
Defendants-Appellees,
SUCCESSOR METROBANK, N.A.,
Cross-Claimant-
Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN, PORFILIO, and ANDERSON, Circuit Judges.
In 2001 appellant Tal Technologies Inc. (“TTI”) defaulted under the terms
of a November 8, 1996, promissory note (“Note”) in favor of appellee Bank One,
N.A. (“Bank One”). Bank One subsequently sold the Note to appellee DCR Fund
I, LLC (“DCR”). When TTI failed to comply with DCR’s demands for payment,
DCR filed this action seeking foreclosure of an associated mortgage and the
enforcement of guaranty agreements provided to secure the loan. The
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
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defendants 1, led by TTI’s president, appellant Moshe Tal, asserted a defense and
numerous counterclaims based on the contention that Bank One had orally agreed
to defer payments under the Note until the completion of a condemnation
proceeding involving property owned by Mr. Tal in downtown Oklahoma City.
The defendants also asserted third-party claims against Bank One based on its
sale of the Note to DCR without disclosing the alleged oral agreement. DCR and
Bank One denied the existence of any such agreement and moved for summary
judgment. On December 6, 2004, the district court granted the motion based
primarily on its determination that any oral deferral agreement between Bank One
and TTI was barred by Oklahoma’s credit agreement statute of frauds, Okla. Stat.
tit. 15, § 140. The court also awarded summary judgment to appellee Bridgeview
Bank, N.A. (“Bridgeview”), which had been brought into the action because of its
interest in the mortgaged property. Defendants appeal, and we affirm.
I. Background and Procedural History
A. DCR Note
The Note is a boiler-plate, one-page document executed by Mr. Tal on
behalf of TTI in the principal amount of $250,000. It provided for 59 monthly
1
Our use of the generic term “defendants” throughout this order and
judgment refers only to the defendants who filed the instant appeal, TTI, Moshe
Tal, and TS Family Limited Partnership. DCR named several other entities and
individuals because of their possible interests in the property at issue, but the
claims against those parties are not relevant to this appeal.
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payments plus one additional payment, with accrued interest, due on the maturity
date of November 8, 2001. The Note was secured by a first mortgage on TTI’s
property located at 200 S.E. 3rd Street in Oklahoma City (the “TTI property”) and
two guaranty agreements, one provided by Mr. Tal personally and the other by
appellant TS Family Limited Partnership (“TSFLP”). Two provisions of the Note
are relevant here. The “ACCELERATION” clause provided that,
[a]t option of holder, the unpaid balance of this Note . . . shall
become immediately due and payable without notice or demand upon
the occurrence or existence of any of the following events or
conditions: (a) Any payment required by this Note . . . is not made
when due . . . .
Aplt. App. Vol. 7 at 2522. The second relevant clause, entitled “ENTIRE
AGREEMENT,” specifically required any future modifications to the Note to be
in writing.
All parties acknowledge receipt of a copy of this Note and that this
Note and related documents contain the complete and entire
agreement between Debtor and Lender and no variation,
modification, changes or amendments to this Note or related
documents shall be binding unless in writing and signed by all
parties.
Id.In 1998 TTI stopped making payments under the Note, and Bank One filed
a foreclosure action concerning the TTI property. To avoid the foreclosure, in
March 1999 TTI borrowed enough money to bring the Bank One loan current
from Bridgeview’s predecessor, MetroBank, N.A. To secure this loan, TTI
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granted MetroBank a second mortgage on the TTI property. In exchange for
payment totaling approximately $60,000, Bank One dismissed the foreclosure
action. TTI continued to make payments under the Note until March 2001, when
it again defaulted. It also failed to pay the Note in full upon maturity in
November 2001.
In July 2002, Bank One sold the Note and assigned its interest in the
mortgage and guaranty agreements to DCR. Shortly thereafter, DCR began its
attempts to collect under the Note by sending demand letters to Mr. Tal in his
capacity as president of TTI. Mr. Tal responded to one such letter on February 2,
2003, by explaining his plan to consolidate DCR’s loan with the Bridgeview loan.
He assured DCR that he was “only a few weeks away from getting everything
line[d]-up.” Id. at 2537. He also “remind[ed]” DCR of Bank One’s alleged
agreement to defer payment under the Note pending the outcome of the
condemnation litigation, which, he explained, was not proceeding as quickly as
anticipated. Id. When DCR requested documentation as to the alleged oral
deferral agreement, however, none was forthcoming. On April 21, 2003, DCR
sent a formal notice of default to TTI, Mr. Tal, and TSFLP, demanding full
payment under the Note in the amount of $233,076.97 plus future interest. When
the defendants failed to meet this demand, DCR filed this action against them and
named Bridgeview as a defendant because of its security interest in the TTI
property.
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B. Bridgeview Loans and the BGE Property
In addition to the funds it loaned to TTI in March 1999 to stop Bank One’s
foreclosure action, Bridgeview made several other loans to TTI, which it secured
with property owned by Bricktown Grain Elevator Company (“BGE”), another of
Mr. Tal’s related entities. BGE had borrowed money from Bridgeview in January
1999, securing the loan with a first mortgage on property that it owned at 300
S.E. 4th Street in Oklahoma City (“BGE property”). TTI’s March 1999 loan was
secured by a second mortgage on the BGE property in addition to the second
mortgage on the TTI property. In June 1999, TTI borrowed more money from
Bridgeview to fund the ongoing condemnation litigation. This so-called litigation
loan was renewed in October 2000. On May 15, 2001, TTI consolidated the
March 1999 and October 2000 loans by executing a promissory note in favor of
Bridgeview in excess of $200,000. This May 2001 loan was secured by interests
in both the TTI and BGE properties.
Shortly after DCR filed this action, Bridgeview filed a cross-complaint
against TTI for defaulting on the May 2001 loan. The cross-complaint sought
foreclosure of Bridgeview’s second mortgage on the TTI property, but
specifically reserved Bridgeview’s “right to foreclose other mortgages which
secure the [May 2001] Note against real property other than the [TTI property].”
Id. Vol. 1 at 72. Concurrently, Bridgeview was pursuing a non-judicial
foreclosure of its mortgage on the BGE property. On July 3, 2003, it sent a
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“Notice of Intent to Foreclose by Power of Sale” to BGE and Mr. Tal, advising of
its intent to foreclose the BGE mortgage pursuant to its rights under the January
1999 and May 2001 loan documents. Id. Vol. 4 at 1569-71. On October 20,
2003, Mr. Tal attempted to stop the foreclosure sale by requesting injunctive
relief in this action. The district court denied the application on October 27
because it found that BGE was not a party to, and its property not subject to, this
action. A state court judge also refused to enjoin the sale, and the BGE property
was sold on October 28. Nonetheless, on November 26, Mr. Tal filed a Rule
60(b) motion in this action asking the district court to reconsider or vacate its
denial of injunctive relief. The district court denied that motion on May 17, 2004,
explaining that it had no power to enjoin a sale of land that had already occurred
and that, in any event, it lacked jurisdiction to invalidate the sale of property that
was not part of this action. The court further held that it lacked subject-matter
jurisdiction over the claims that Mr. Tal was attempting to assert concerning the
BGE property because those claims raised no questions of federal law and were
asserted against Oklahoma citizens. 2 The court went on to reject Mr. Tal’s
attempt to invoke the supplemental jurisdiction statute, stating:
In this case, the court has original jurisdiction – based on diversity
jurisdiction – over DCR’s claim regarding the TTI note and
2
Mr. Tal had previously filed a motion seeking to consolidate this action
with one he filed in state court against Bridgeview, its officers, and others for
their involvement in the non-judicial foreclosure sale of the BGE property.
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mortgage. Tal seeks to interpose state law claims against non-
diverse defendants regarding a different loan, made by a different
bank, at a different time, and secured by different real property. The
claims that Tal seeks to raise are simply not so related to the DCR
case that they are part of the same case or controversy. Furthermore,
the values of judicial economy, convenience, fairness, and comity do
not compel the court’s exercise of supplemental jurisdiction over
these claims as they are currently being litigated in state court.
Id. Vol. 5 at 1978-79 (quotation omitted).
C. Award of Summary Judgment to DCR, Bridgeview, and Bank One
Both DCR and Bridgeview moved for summary judgment on their claims
under their respective loan documents relating to the TTI property. Bank One
joined DCR’s motion, seeking dismissal of the third-party claim. Each motion
was accompanied by the relevant promissory notes, mortgage, and guaranty
documents as well as evidence of TTI’s default. Mr. Tal responded on behalf of
the defendants. He conceded executing the relevant loan documents, but argued
that other disputed facts excused TTI’s failure to pay.
With respect to DCR’s claim, he asserted that his agreement with Bank One
to defer payments under the Note until the conclusion of the condemnation
litigation constituted an executed oral agreement under Oklahoma law that
changed the terms set forth in the Note. He claimed that not only was TTI not in
default, but that DCR should be held liable for breaching the executed oral
agreement. He made similar arguments in response to Bridgeview’s motion,
claiming that MetroBank had orally agreed to extend the line of credit secured by
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the TTI property, but that Bridgeview’s management reneged on the agreement
after assuming control of the bank. He further claimed that Bridgeview’s new
management then coerced him into consolidating the March 1999 and October
2000 loans under extremely unfavorable terms that he agreed to solely because he
had been under intense stress both personally and professionally. He also argued
TTI did not default on the May 2001 loan because Bridgeview, through a pattern
of practice, had agreed to accept irregular payments with the understanding that
TTI’s largest client was usually late in paying TTI’s invoices. Finally, Mr. Tal
argued Bridgeview’s cross-claim was simply an attempt to gain court approval of
its unlawful non-judicial foreclosure sale of the BGE property.
On December 6, 2004, the district court granted the creditors’ motions,
rejecting as a matter of law all affirmative defenses based on alleged oral
agreements. Specifically, the court concluded the alleged oral agreements, which
contradicted the express terms of the loan documents, ran afoul of the parol
evidence rule, the notes’ integration clauses, and Oklahoma’s statute of frauds.
Given the legal insufficiency of the defense, the court declined to decide whether
the defendants had presented enough evidence to establish the existence of the
oral agreements. The court went on to dismiss the defendants’ counterclaims as
well as the third-party claim against Bank One.
With respect to Bridgeview’s claim, the court rejected Mr. Tal’s duress
defense as a matter of law because it was not caused by any actions of
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Bridgeview; his stress in May 2001 was caused by a combination of his wife’s
illness and the failure of TTI’s clients to timely pay their bills. Like DCR, the
court concluded that Bridgeview was entitled to foreclose its lien on the TTI
property because the defendants admitted to executing the May 2001 note and
mortgage documents and failed to establish a defense to non-payment. Since the
principal and interest due under that loan was satisfied by the proceeds from the
sale of the BGE property, the court declared Bridgeview’s mortgage a junior lien
on the TTI property, which secured payment of its attorneys fees, as provided
under the loan documents.
Defendants appeal the district court’s summary judgment ruling as well as
several other orders, as discussed below.
II. Discussion
Defendants have identified no less than twenty issues for review and
attached to their briefs an appendix consisting of seventeen district court orders
that allegedly contain factual and/or legal errors. Their briefs, however, fail to
substantively address most of the issues raised, and to a large degree, do not
identify which specific orders contain the complained-of errors. While we have
done our best to match the challenged orders with the legal issues substantively
discussed in the briefs, this court will not comb through a voluminous record
searching for legal and factual findings to support vague allusions in the briefs.
See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998). After
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carefully considering defendants’ arguments, we conclude they have sufficiently
raised, such that we may adequately address, the following four issues: (a)
whether the district court’s December 6, 2004, order granting summary judgment
in favor of DCR, Bridgeview, and Bank One was correct; (b) whether the court
erred in denying Mr. Tal’s request for injunctive relief with respect to
Bridgeview’s sale of the BGE property and denying his request to assert claims
arising out of the sale; (c) whether the court erred in barring Mr. Tal’s pro se
representation of TTI and TSFLP; and (d) whether it abused its discretion in
denying the defendants’ motion to extend the discovery period.
A. Summary Judgment Ruling
We review a district court’s grant of summary judgment de novo,
construing all facts and reasonable inferences in the light most favorable to the
non-moving party. Henrie v. Northrop Grumman Corp., 502 F.3d 1228, 1231
(10th Cir. 2007). We must affirm the award of summary judgment if the record
shows “that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In
diversity cases our role is to ascertain and apply the proper state law . . . with the
goal of insuring that the result obtained is the one that would have been reached
in the state courts. We review de novo the district court’s rulings with respect to
state law.” Henrie, 502 F.3d at 1231 (quotation omitted).
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The district court relied on several legal principles in concluding DCR and
Bridgeview were entitled to summary judgment on their foreclosure claims.
However, the application of Oklahoma’s statute of frauds was dispositive and we
can affirm on that basis alone. See Champagne Metals v. Ken-Mac Metals, Inc.,
458 F.3d 1073, 1088 (10th Cir. 2006) (noting this court’s discretion to affirm on
any ground adequately supported by the record). Even if the defendants could
prove the existence of oral agreements that contradicted the terms of the relevant
loan documents and could further establish exceptions to the parol evidence rule
and the notes’ integration clauses, their asserted defenses based on the oral
agreements were conclusively barred by Oklahoma statute.
Under Oklahoma law, a borrower may not
maintain an action to enforce or seek damages for the breach of any
term or condition of [a] credit agreement having a principal amount
greater than Fifteen Thousand Dollars . . . unless such term or
condition has been agreed to in writing and signed by the party
against whom it is sought to be enforced.
Okla. Stat. tit. 15, § 140(B). Credit agreement is defined as
an agreement by a financial institution to lend money, extend credit
or otherwise make any other financial accommodation, or to renew,
extend, modify, rearrange or forebear the repayment of any such
loan, extension of credit or financial accommodation, but does not
include any promissory note, real estate mortgage, or security
agreement.
Id., § 140 (A)(1). This law is “intended to discourage lender liability litigation
and to promote certainty into credit agreements,” Brown v. Founders Bank and
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Trust Co., 890 P.2d 855, 862 (Okla. 1994), and clearly applies to the facts of this
case. There is no dispute that any agreement by Bank One or Bridgeview to
accept deferred payments under the relevant promissory notes would constitute a
credit agreement under § 140, as found by the district court. It is also beyond
dispute that if the parties reached such agreements, they were not reduced to
writing. The assertion of this defense, therefore, raised no disputed material fact
for the jury’s consideration, and summary judgment in favor of DCR and
Bridgeview was therefore proper. See Big John’s Lumber Co. of Muskogee v.
City Bank of Muskogee, 901 P.2d 832, 833-34 (Okla. Civ. App. 1995) (affirming
grant of summary judgment to bank under § 140 because borrower’s conversion
claim was based on alleged oral agreement to lend money in excess of $15,000).
Defendants contend that the banks’ agreement to accept deferred payments
constituted “executed oral agreements” under Okla. Stat. tit. 15, § 237, sufficient
to modify the terms of the written loan documents notwithstanding the statute of
frauds. 3 We reject this argument because section 237 is inapplicable to the facts
of this case. It has long been established that “the subsequent executed oral
agreement referred to in § 237 . . . must be established by positive, clear and
convincing proof.” Dewberry v. Universal C.I.T. Credit Corp., 415 P.2d 978, 979
3
Section 237 provides that “[a] contract in writing may be altered by a
contract in writing, or by an executed oral agreement, and not otherwise.”
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(Okla. 1966) (quotations omitted). Furthermore, even once established, an oral
agreement is “ineffective to alter the terms of the written contract until its terms
have been fully executed.” Id. The district court in this case held that “[g]iven
[the] lack of evidence, it [was] not at all apparent that the Tal defendants could
prove by clear and convincing evidence the existence of an executed oral
agreement to defer payment.” Aplt. App. Vol. 9 at 3188 n.9. Our own review of
the parties’ summary judgment papers revealed nothing that would cause us to
disagree with this assessment. Moreover, it is undisputed that even if the parties
took some actions consistent with the alleged oral agreements, such agreements
were never fully executed. Under these circumstances, they could not operate to
alter the terms of the written loan documents, and DCR and Bridgeview were
therefore entitled to summary judgment. See Walker v. Johnson, 227 P. 113, 114
(Okla. 1924) (holding that extinguishment of written contract could not be proved
by unexecuted parol agreement). 4 It follows that the defendants’ third-party claim
4
Defendants also assert error with respect to the district court’s dismissal of
their conspiracy counter-claim against DCR. Although their argument is
accompanied by citations to a handful of documents in the record, defendants fail
to explain how these documents support a claim for conspiracy, something that is
not obvious to this court. Given their failure to present a cogent argument as to
how the district court erred with respect to these defendants on this issue, we
affirm the dismissal of the conspiracy claim without further discussion. See Scott
v. Hern, 216 F.3d 897, 910 n.7 (10th Cir. 2000) (declining to manufacture a
party’s argument on appeal).
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against Bank One based on its failure to disclose the alleged oral agreement failed
as a matter of law.
B. Bridgeview’s Sale of the BGE Property
Defendants’ second assertion of error concerns the district court’s rulings
with respect to Bridgeview’s sale of the BGE property. In addition to requesting
injunctive relief to halt the sale, the defendants asserted numerous cross-claims
against Bridgeview after the sale, including claims for conspiracy, abuse of
process, and conversion. In its December 6, 2004, order, the district court
dismissed those claims for the same reasons it denied Mr. Tal’s request for
injunctive relief, concluding that it had no jurisdiction over claims relating to the
BGE property. Defendants appeal both the denial of injunctive relief and the
dismissal of their cross-claims. Instead of addressing the district court’s
jurisdictional analysis, however, they primarily challenge the court’s evidentiary
rulings and focus on reasons why they believe the BGE sale was unlawful. We
need not address those arguments because the district court was correct with
respect to its jurisdiction. We also fail to see how any claims challenging a
foreclosure sale that the state court allowed to proceed could pass muster under
either the Younger abstention or Rooker-Feldman doctrines. 5 We therefore affirm
5
“The Rooker-Feldman doctrine prevents the lower federal courts from
exercising jurisdiction over cases brought by state-court losers challenging
state-court judgments rendered before the district court proceedings commenced.”
(continued...)
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both the district court’s denial of injunctive relief and its dismissal of claims
arising out of Bridgeview’s sale of the BGE property.
C. Mr. Tal’s Pro Se Representation of Corporate Defendants
Mr. Tal, proceeding pro se, filed a separate brief on appeal challenging
multiple orders denying his requests to personally represent TTI and TSFLP in
this action. His arguments concerning this issue are rambling and confusing, but
generally, he contends that although he is not a lawyer, he is entitled to legally
represent the corporate defendants pursuant to various assignments and his rights
as a corporate officer and lien holder. Additionally, he argues that the rule
requiring a corporation to appear in federal court only through an attorney at law
is unconstitutional. 6 Mr. Tal concedes that he argued this identical issue in Tal v.
Hogan, 453 F.3d 1244 (10th Cir. 2006), which was still pending before this court
when the instant appeal was briefed. We have since rendered a decision in that
5
(...continued)
Lance v. Dennis, 546 U.S. 459, 460 (2006) (quotations omitted) (per curiam); see
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983);
Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923). Younger abstention
applies even if the state proceedings are on-going when the federal action is filed
so long as the state action implicates important state interests with which a
federal judgment would interfere. See D.L. v. Unified Sch. Dist. No. 497, 392
F.3d 1223, 1227-28 (10th Cir. 2004) (citing Younger v. Harris, 401 U.S. 37, 54
(1971)).
6
See, e.g., Harrison v. Wahatoyas, LLC, 253 F.3d 552, 556 (10th Cir. 2001)
(“As a general matter, a corporation or other business entity can only appear in
court through an attorney and not through a non-attorney corporate officer
appearing pro se.”); see also W.D. Okla. L. Civ. R. 17.1 (“Parties who are not
natural persons may not appear pro se”).
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case, however, in which we rejected Mr. Tal’s arguments, holding squarely that
“the district court did not err in denying Tal the right to represent Tal, Inc. and
Bricktown, Inc. pro se and requiring the corporations to secure counsel.” Id. at
1254. For the same reasons discussed in that opinion, see id. at 1254-55, we
reject Mr. Tal’s arguments here. We also agree with the district court that
Mr. Tal’s arguments based on the assignment documents are without merit.
D. Motion to Extend Discovery Period
On May 4, 2004, the district court entered a scheduling order setting a
discovery cut-off date of September 1, 2004. A week before the cut-off date, the
defendants filed a motion to extend the discovery period, arguing that the case
was too complex to complete discovery within the time allotted, particularly since
counsel for the corporate defendants had only recently entered an appearance.
DCR, Bridgeview, and Bank One countered that an extension of the discovery
period would only reward the defendants’ dilatory conduct. They pointed out that
the court had ordered Mr. Tal to secure counsel for the corporate defendants in
August 2003, but that he had delayed doing so by filing one motion after another
until May 2004. Even so, they argued there was sufficient time between the
corporate counsel’s entry of appearance and the discovery cut-off, and that the
only reason the defendants had not been able to complete discovery was because
they had squandered that time. On September 7, 2004, the district court denied
the motion based on the parties’ responses, without further discussion.
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The defendants appeal the district court’s order, renewing their argument
that the case was too complex to complete discovery in the time allotted. This
argument erroneously assumes that Mr. Tal was justified in failing to secure
counsel for the corporate defendants for nearly a year after he was ordered to do
so. In short, the defendants have “offered no colorable reason why the discovery
deadline should have been extended.” Bolden v. City of Topeka, Kan., 441 F.3d
1129, 1151 (10th Cir. 2006). Therefore, the district court did not abuse its
discretion in denying the extension.
III. DCR’s Request For Attorneys’ Fees
Finally, we address DCR’s request for appellate attorneys’ fees under both
the express provisions of the Note and Okla. Stat. tit. 12, § 936. Section 936
provides:
In any civil action to recover . . . on [a] . . . note, bill, negotiable
instrument . . . , unless otherwise provided by law or the contract
which is the subject of the action, the prevailing party shall be
allowed a reasonable attorney fee to be set by the court, to be taxed
and collected as costs.
The district court granted DCR’s request with respect to fees incurred below, and
we see no reason to deny its request on appeal. See Cadle Co. v. Bianco, 849
P.2d 437, 440 (Okla. Civ. App. 1992) (upholding award of attorneys’ fees under
section 936). Moreover, the Note expressly provided that “[a]ll parties liable for
payment . . . agree to pay reasonable costs of collection, including an attorney’s
fee.” Aplt. App. Vol. 7 at 2522. Since we affirmed the district court’s award of
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summary judgment to DCR on its claims under the Note and guaranty documents,
an award of appellate attorneys’ fees is warranted.
IV. Conclusion
For the reasons discussed above, we AFFIRM the judgment of the district
court in all respects. We grant DCR’s request for attorneys’ fees on appeal and
REMAND to the district court for the limited purpose of determining the proper
amount.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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