Denton v. Morgan

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-11304
JOHN G. DENTON and PAULA J. SAVAGE,
Plaintiffs-Appellees-Cross-Appellants,
VERSUS
JAMES MORGAN, Commissioner, Juvenile Board of Comanche County, Et
Al.
Defendants
JOHN WEAVER, Commissioner, Juvenile Board of Comanche County,
Texas; ERNIE REINKE, Commissioner, Juvenile Board of Bosque County,
Texas; CHARLES GARRETT, Commissioner, Juvenile Board of Hamilton,
County, Texas; JUVENILE PROBATION BOARD OF COMANCHE COUNTY;
JUVENILE PROBATION BOARD OF BOSQUE COUNTY; JUVENILE PROBATION BOARD
OF HAMILTON COUNTY,
Defendants-Appellants-Cross-Appellees.
Appeals from the United States District Court
for the Northern District of Texas
March 23, 1998
Before JOLLY, DUHÉ, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
The Plaintiffs, John G. Denton and Paula J. Savage, sued the
Defendants, Judges Weaver, Reinke, and Garrett, Commissioners of
the Juvenile Probation Boards of Bosque, Comanche, and Hamilton
Counties, Texas, alleging violations of the First Amendment to the
United States Constitution, enforceable under 42 U.S.C. § 1983, and
the Texas Whistleblower Act, Tex. Rev. Civ. Stat. Ann. art. 6252-
16A § 2(Vernon Supp. 1992)(repealed)(current version at Tex. Govt.
Code. § 544.002 (Vernon Supp. 1996)). The Defendants appeal from
an order of the district court denying Defendants’ Motion for
Judgment as a Matter of Law on the Plaintiffs’ First Amendment
claims. The Plaintiffs, as Cross-Appellants, appeal from an order
of the district court ordering remittitur and granting Defendants’
Motion for Judgment as a Matter of Law on Denton’s Texas
Whistleblower claim. After consideration of the briefs and the
record on appeal, we affirm the district court.
I.
Plaintiff, John G. Denton, served as Chief Probation Officer
for the Juvenile Probation Boards of Bosque, Comanche, and Hamilton
counties from May 1983 until his discharge in January 1992.
Plaintiff, Paula J. Savage, served as a juvenile probation officer
for the three counties from January 1990 until she was discharged
in September 1991.
In January 1991, the Plaintiffs were assigned the case of
“W.D.A.,” a juvenile recently released from Belton Detention
Center. Although W.D.A. had been released from the detention
center because the center had closed, the juvenile was still
subject to a continuing detention order. As W.D.A.’s juvenile
probation officers, the plaintiffs attempted to secure educational
services for W.D.A. in the Clifton Independent School District
2
(“Clifton I.S.D.”), located in Bosque County. After a meeting
attended by the plaintiffs, Clifton I.S.D. officials, a
representative from the Texas Department of Mental Health and
Mental Retardation, the Clifton police chief, Judge Reinke, and a
county attorney, the juvenile was denied admission to Clifton
I.S.D. because of the continuing detention order. Following the
meeting, the county attorney issued an order to take W.D.A. into
custody and detain him for not completing his stay at his previous
placement. W.D.A. was later released to his father, but remained
under a detention order that prohibited him from attending school.
Judge Reinke, Commissioner of the Juvenile Board of Bosque County
subsequently committed W.D.A. to the Texas Youth Commission.
Believing that the actions taken by Clifton I.S.D. were illegal,
the plaintiffs wrote a letter to the Texas Education Agency (“TEA”)
complaining that W.D.A.’s rights under the Texas Education Code and
the Federal Individuals with Disabilities Education Act had been
violated.
According to Denton and Savage, the Defendants were angered
and embarrassed that the Plaintiffs had gone “over their heads” by
writing the letter to the TEA. Following disclosure of the TEA
letter, the judges unanimously voted in September 1991 to discharge
Savage and demote Denton from chief probation officer. In January
1992, the judges voted to terminate Denton. According to the
Defendants, however, the Plaintiffs were fired due to inappropriate
travel expense reports and continuing budget problems. Denton sued
Judge James Morgan, Commissioner, Juvenile Board of Comanche
3
County, Texas,1 and Judges Ernie Reinke, John Weaver, and Charles
Garrett, Commissioners of the Juvenile Boards of Bosque, Comanche
and Hamilton Counties, Texas, respectively (collectively
“Defendants”), alleging violations of the First Amendment under 42
U.S.C. § 1983, and the Texas Whistleblower Act. Plaintiff Savage
joined in the First Amendment claim against Defendants. The
Plaintiffs alleged that they were unlawfully discharged by
Defendants in retaliation for writing the letter to the TEA
complaining about the failure of the Clifton I.S.D. to provide
educational services to W.D.A.
After a trial on the merits, the jury found that the
Defendants terminated the Plaintiffs in retaliation for reporting
an alleged illegality and speaking out on a matter of public
concern. Thus, the jury found liability on the Plaintiffs’ First
Amendment claims and Denton’s Whistleblower claim against the
Juvenile Probation Boards of Bosque, Comanche, and Hamilton
counties. The jury awarded Denton $117,876 in past lost wages and
$111,000 for lost pension. The jury awarded Savage past lost wages
of $19,600. At trial, however, the Plaintiffs’ expert economist
had only testified that Savage’s lost wages totaled $8,640 and
Denton’s past lost wages totaled $24,376 and lost pension totaled
$82,620.
Following trial, the Defendants moved for judgment as a matter
of law on the Plaintiffs’ First Amendment and Whistleblower claims.
1
Defendant Morgan, Commissioner, Juvenile Board of Comanche
County did not appeal the judgment.
4
The trial court granted the Defendants’ Rule 50(b) renewed motion
for judgment as a matter of law on Denton’s Whistleblower claim,
denied the Defendants’ motion for judgment as a matter of law on
the Plaintiffs’ First Amendment claim, and ordered remittitur of
the damages to the amount for which the Plaintiffs’ expert
testified.
II.
The Defendants contend that the district court erred by
submitting to the jury liability issues regarding the individual
county juvenile boards because the Plaintiffs were actually
employed by the 220th Judicial District Juvenile Board, composed of
the juvenile boards of Bosque, Comanche, and Hamilton counties.
The Defendants contend that the individual juvenile boards of
Bosque, Comanche, and Hamilton have not functioned since 1988, when
they ceased to function and were replaced by the 220th Judicial
District Juvenile Board created by statute. The Defendants assert
that the membership of the 220th Judicial District Juvenile Board
consists of Judges Weaver, Reinke, and Garrett, with Judge Morgan
serving as chairman. The district court, however, found that the
220th Judicial District Juvenile Board was not a legal entity.
Although the three county juvenile boards may have operated as
a single unit, there is no statutory authority for such joint
operation. See Tex. Hum. Res. Code Ann. § 152.0031. While Texas
law allows some county juvenile boards to operate jointly, the
counties of Bosque, Comanche, and Hamilton are specifically
5
excluded from such joint operation. See id. §§ 152.0031; 152.0036;
152.0241; 152.0531; and, 152.1031. In any event, the name used to
describe the Plaintiffs’ employer would not alter the Defendants’
liability because the membership of the hypothetical 220th Judicial
District Juvenile Board consists of the three individual county
boards. The judges, who represent the county juvenile boards,
voted unanimously to terminate the Plaintiffs. Thus, liability of
the 220th Judicial District would be imputed to each of the
individual county boards.
III.
The Defendants contend that the district court erred by
denying their Rule 50(b) renewed Motion for Judgment as a Matter of
Law and Motion for New Trial on the Plaintiffs’ First Amendment
claims. In support of this contention, the Defendants argue, inter
alia, the district court erred by finding as a matter of law that
the Plaintiffs’ speech involved a matter of public concern; the
Plaintiffs failed to establish that the First Amendment
deprivations were the result of a policy, practice, or custom of
the Juvenile Boards; and there was no evidence, or alternatively
insufficient evidence, to support the jury’s verdict. We review de
novo the question of whether a plaintiff’s allegations state a
valid claim of retaliation for the exercise of free speech
protected by the First Amendment. See Caine v. Hardy, 943 F.2d
1406, 1415 (5th Cir. 1991)(en banc).
First, the Defendants assert the district court erred by
6
finding, as a matter of law, that the speech involved a matter of
public concern. In order for speech by a public employee to enjoy
constitutional protection from retaliation by the public employer,
the speech must involve a matter of public concern.2 See Connick
v. Myers, 461 U.S. 138, 147 (1983); Wallace v. Texas Tech Univ., 80
F.3d 1042, 1050 (5th Cir. 1996). To rise to the level of public
concern, the speech at issue must have been made primarily as a
citizen rather than as an employee addressing matters only of
personal concern. See Thompson v. City of Starkville, Miss., 901
F.2d 456, 465 (5th Cir. 1990). As the Court in Connick recognized,
“When employee expression cannot be fairly considered as relating
to any matter of political, social, or other concern to the
community, government officials should enjoy wide latitude in
managing their offices, without intrusive oversight by the
judiciary in the name of the First Amendment.” Connick, 461 U.S. at
146. Whether an employee’s speech addresses a matter of public
concern, rather than a matter of personal concern, must be
determined by the content, form, and context of a given statement,
as revealed by the entire record. See id. at 147-48.
The Defendants argue that the letter to the TEA did not
involve a matter of public concern because the Plaintiffs failed to
2
This court has established a three part test to determine
whether speech by a public employee is constitutionally protected
from retaliation by a public employer. First, the speech must
involve a matter of public concern. Second, the public employee’s
interest in commenting on matters of public concern must outweigh
the public employer’s interest in promoting efficiency. Third, the
employee’s speech must have motivated the decision to discharge the
employee. See Thompson v. City of Starkville, Miss., 901 F.2d 456,
460 (5th Cir. 1990).
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disclose W.D.A.’s continuing detention order, which made the
juvenile ineligible to attend Clifton I.S.D. schools, and the
Plaintiffs had hidden allegedly self-serving motives in writing the
letter. The Defendants’ argument presumes that the speech in
question must be completely accurate and the speaker must not have
any self-interest in the speech, before such speech receives
constitutional protection. Neither the accuracy of the speech, nor
the motivation of the speaker, plays a role in determining whether
the expression involves a matter of public concern. See Gonzalez
v. Benavides, 774 F.2d 1295, 1300-01 (5th Cir. 1985)(“We do not
read Connick, however, to exclude the possibility that an issue of
private concern to an employee may also be an issue of public
concern.”). See also Rode v. Dellarciprete, 845 F.2d 1195, 1202 (3d
Cir. 1988) (“Dismissing [the plaintiff’s] speech as unprotected
merely because she had a personal stake in the controversy fetters
public debate on an important issue because it muzzles an affected
public employee from speaking out.”). Therefore, the only relevant
inquiry is whether the Plaintiffs’ letter to the TEA reporting
perceived wrongdoing on the part of Clifton I.S.D. addresses a
matter of concern to the community.
The Plaintiffs’ letter complains to the TEA about perceived
illegal action on the part of Clifton I.S.D. officials in denying
educational services to a disabled juvenile. The Plaintiffs
believed that the school district’s refusal to offer W.D.A.
admission to the public school system violated the Texas Education
Code and the Federal Individuals with Disabilities Education Act.
8
This court has held that speech reporting official misconduct,
wrongdoing, or malfeasance on the part of public officials involves
matters of public concern. See Wilson v. UT Health Center, 973
F.2d 1263, 1269 (5th Cir. 1992)(reporting sexual harassment of
superiors); Schultea v. Wood, 27 F.3d 1112, 1120 (5th Cir. 1994),
superseded on other grounds, 47 F.3d 1427 (1995)(en banc)(reporting
suspected criminal activity of city council member); Brawner v.
City of Richardson, Texas, 855 F.2d 187, 192 (5th Cir. 1988)
(reporting possible police misconduct). As the letter to the TEA
reported perceived wrongdoing on the part of public officials, we
hold that letter clearly addressed a matter of public concern.
Thus, the district court did not err by finding the letter involved
a matter of public concern as a matter of law.
Second, the Defendants contend that the district court erred
by submitting the First Amendment claim to the jury because the
Plaintiffs failed to establish the First Amendment deprivation
resulted from a policy, practice or custom of the juvenile boards.
The defendants assert that in order to establish liability under 42
U.S.C. § 1983, a plaintiff must establish the alleged
constitutional violation occurred pursuant to a policy, practice or
custom of a government entity. See Monell v. New York City Dept.
of Social Services, 436 U.S. 658, 690 (1978); Jett v. Dallas
Independent School Dist., 7 F.3d 1241, 1244-45 (5th Cir. 1993). By
making this argument, the Defendants fail to acknowledge a second
recognized avenue for establishing § 1983 liability, namely, that
decisions by final policy-making bodies or officials constitute
9
official government policy. See Pembaur v. Cincinnati, 475 U.S.
469, 481 (1986). In this regard, the Court in Pembaur noted that
for purposes of § 1983 liability, “[L]iability attaches only where
the decision maker possesses final authority to establish
[government] policy with respect to the action ordered.” Pembaur,
475 U.S. at 481. Whether the government decision maker has final
policy-making authority is a question of state law to be resolved
by the court. See City of St. Louis v. Praprotnik, 485 U.S. 112,
123 (1988); Pembaur, 475 U.S. at 483; Jett, 7 F.3d at 1244.
The Defendants claim the individual judges could not be final
policy makers because their respective counties did not employ
Denton and Savage, but that the 220th Judicial District Juvenile
Board was the Plaintiffs’ actual employer. As we have already
held, the “220th Juvenile Board” has no basis in Texas law.
Consequently, any action by the alleged “220th Juvenile Board” must
be imputed to the individual county juvenile boards. In any event,
each county took official action against the Plaintiffs because the
judges, in their capacity as representatives of the individual
county juvenile boards, unanimously voted to terminate Denton and
Savage. Therefore, the individual juvenile boards of Bosque,
Comanche and Hamilton counties are liable for any illegal
employment action which results from their official acts. It
appears from the record that the individual county juvenile boards
have final policy-making authority regarding the hiring and firing
of juvenile probation officers. See, e.g., Tex. Hum. Res. Code
Ann. § 152.0008 (Vernon 1990) (providing that juvenile probation
10
officers serve at the pleasure of the appointing authority). No
other governmental body has any authority over the employment
decisions made by the county juvenile boards. Thus, as the
ultimate authority in the decision to terminate the Plaintiffs, the
individual county juvenile boards of Bosque, Comanche and Hamilton
must bear the consequences for any violation of the Plaintiffs’
constitutional rights.
Third, the Defendants claim the district court erred by
denying their rule 50(b) motion for judgment as a matter of law
because there is no evidence, or alternatively insufficient
evidence, to support the jury’s verdict regarding retaliation in
violation of the Plaintiff’s First Amendment rights. The
Defendants argue that the evidence proves the judges’ decision to
terminate was based on the Plaintiffs’ improper travel vouchers and
insubordination, and not the TEA letter. The jury, however, found
that the TEA letter was the reason for the Plaintiffs’ termination
and imposed liability on the Defendants for violations of the First
Amendment.
When reviewing the district court’s denial of a motion for
judgment as a matter of law challenging the legal sufficiency of
the evidence, the appellate court applies the same standard to
review the verdict that the district court used in first passing on
the motion. See Hiltgen v. Sumrall, 47 F.3d 695, 700 (5th Cir.
1995)(citing Bridges v. Groendyke Transport, Inc., 553 F.2d 877(5th Cir. 1977)). Therefore, in due deference to the jury’s
determination, a verdict must be upheld unless "there is no legally
11
sufficient evidentiary basis for a reasonable jury to find" as the
jury did. See id. (citing Fed.R. Civ. P. 50(a)(1)). In this
regard, the court has stated:
A jury may draw reasonable inferences from the evidence,
and those inferences may constitute sufficient proof to
support a verdict. On appeal, we are bound to view the
evidence and all reasonable inferences in the light most
favorable to the jury’s determination. Even though we
might have reached a different conclusion if we had been
the trier of fact, we are not free to reweigh the
evidence or to reevaluate credibility of witnesses. We
must not substitute for the jury’s reasonable factual
inferences other inferences that we may regard as more
reasonable.
Rideau v. Parkem Indus. Services, Inc., 917 F.2d 892, 897 (5th Cir.
1990).
After reviewing the record and viewing the evidence and
reasonable inferences in the light most favorable to the jury’s
determination, we hold that the Plaintiffs established a legally
sufficient evidentiary basis for a reasonable jury to find that the
TEA letter motivated the decision to discharge the Plaintiffs.
Specifically, Judge Morgan testified that he was upset and
distressed by the TEA letter. Judge Morgan further testified that
the letter was a factor in the Plaintiffs’ termination because he
was concerned that it showed a lack of cooperation with the board.
Additionally, Judge Reinke testified that he was very upset and
concerned by the TEA letter. From this testimony, the jury could
infer that the TEA letter motivated the decision to terminate the
Plaintiffs. While each of the judges testified that the
Plaintiffs’ violation of the travel policy was the actual reason
for the termination, the jury was free to disregard this testimony
12
as a mere pretext for the real reason behind the Plaintiffs’
termination. Consequently, the district court did not err by
denying the Defendants’ motion for judgment as a matter of law.
IV.
The Plaintiffs claim the district court erred by granting the
Defendants’ motion for judgment as a matter of law on Denton’s
Texas Whistleblower Act claim. Specifically, Denton disputes the
district court’s interpretation of the statute as precluding a
claim by a public employee when the protected speech concerns a
violation of the law by a third party, not the Plaintiff’s
employer. Because Denton reported a perceived violation by Clifton
I.S.D. and not the three defendant juvenile boards, the court
granted the Defendants’ motion for judgment as a matter of law. We
review de novo the district court’s determination of state law.
See Salve Regina College v. Russell, 499 U.S. 225, 231 (1991).
At the time of Denton’s termination, the Texas Whistleblower
Act provided, “A state agency or local governmental body may not
suspend or terminate the employment of, or otherwise discriminate
against, a public employee who reports a violation of law to an
appropriate law enforcement authority if the employee report is
made in good faith.” Tex. Civ. Stat. Ann. art. 6252-16A § 2 (Vernon
Supp. 1992)(repealed 1993)(current version at Tex. Govt. Code. §
544.002 (Vernon Supp. 1996)). The Plaintiffs argue that the plain
language of the former version of the Whistleblower Act supports
the jury’s verdict because there was no express requirement in the
13
statute that the reported violation of the law must have been
committed by the whistleblower’s employer. Although not expressly
required, the statute has been universally interpreted to require
the whistleblower’s employer to have committed the reported
violation. See Davis v. Ector Cty., Texas, 40 F.3d 777, 786 (5th
Cir. 1994); Harris Cty. Precinct Four Constable Dept. v. Grabowski,
922 S.W.2d 954, 955 (Tex. 1996)(stating that the Whistleblower Act
protects employees who report violations by their employer);
Stinnett v. Williamson Cty. Sheriff’s Dept., 858 S.W.2d 573, 575
(Tex.App.--Austin 1993, writ denied) (“Traditionally, the
Whistleblower Act has been applied to public employees who are
fired in retaliation for reporting their employer’s violations of
law that are detrimental to the public good or society in
general.”); Castañeda v. Texas Dept. of Agriculture, 831 S.W.2d
501, 503-504 (Tex.App.--Corpus Christi 1992, writ
denied)(interpreting the phrase “reports a violation of the law” to
include any disclosure of information regarding a public servant’s
employer tending to directly or circumstantially prove a violation
of the law). Thus, it appears that in 1992, Texas law did not
recognize a cause of action where the reported violation of law did
not concern the whistleblower’s employer. Denton fails to cite any
authority where the statute is applied to protect whistleblowers
who report violations of the law by third parties. Although the
plain language of the statute does not expressly require the
whistleblower’s employer to have committed the reported violation,
we cannot disregard the overwhelming authority to the contrary.
14
Additionally, Denton points to the recent amendments to the
Whistleblower Act, which add the requirement that the government
employer commit the violation, as proof that the earlier version of
the Act permitted claims by a whistleblower who reported any
violation of the law, including violations by third parties.3 By
amending the statute, Denton insists that the Texas Legislature
intended to narrow the scope of the law to permit only claims by
public employees who report violations of the law by their
employers. Although the Plaintiff presents a plausible
interpretation, the more likely reason for the amendment is that
the Texas Legislature intended to clarify the law to accord with
current interpretations. Consequently, we hold that the district
court did not err by granting the Defendants’ Motion for Judgment
as a Matter of Law on Denton’s Texas Whistleblower Act claim.
V.
The Plaintiffs contend that the district court erred by
improperly granting the Defendants’ Motion for Remittitur. The
jury awarded Savage past lost wages of $19,600 and Denton $117,876
in past lost wages, $110,000 for lost future wages, and $110,000
3
In 1995, the Texas Whistleblower Act was amended to provide:
A state or local governmental entity may not suspend or
terminate the employment of, or take adverse personnel
action against, a public employee who in good faith
reports a violation of law by the employing governmental
entity or another public employee to an appropriate law
enforcement authority.
Tex. Govt. Code § 554.002(a) (Vernon Supp. 1996)(emphasis added).
15
for lost pension. After finding that the jury awards were
insufficiently supported by the evidence, the district court
remitted the damages to the amount which the Plaintiffs’ expert had
testified at trial. We review the district court’s order of
remittitur for abuse of discretion. See Eiland v. Westinghouse
Electric Corp., 58 F.3d 176, 183 (5th Cir. 1995). We determine the
size of the remittitur in accordance with the “maximum recovery
rule” by reducing the verdict to the maximum amount the jury could
have properly awarded. Id. (citing Dixon v. International
Harvester Co., 754 F.2d 573, 590 (5th Cir. 1985)). Under Texas
law, remittitur orders should be upheld only when the reviewing
court determines that the evidence was factually insufficient to
support the jury verdict. See Larson v. Cactus Utility Co., 730
S.W.2d 640 (Tex. 1987).
At trial, the Plaintiffs’ economic expert, Dr. Berkman,
testified that Denton’s damages were as follows: lost income from
January 1992 until April 1993, $24,376.00; loss of future income,
$112,260.00; and lost pension, $82,620.00. Dr. Berkman testified
that Savage’s actual lost income totaled $8,640.00, and lost
pension in the amount of $42,294.4 Following deliberations, the
jury awarded Denton $117,876 in past lost wages, $110,000 for lost
pension, and $110,000 in lost future wages. The jury awarded
Savage $19,600 in lost wages. The Plaintiffs argue that the
4
On cross-examination, however, Dr. Berkman testified that
the amount of Savage’s lost pension was no longer valid because her
new employment provided better pension benefits than her former
job.
16
difference between the expert testimony and the jury verdict merely
reflects the amount of economic loss suffered by the Plaintiffs
from the time Dr. Berkman prepared his report in 1993 and the time
of trial in 1996. Therefore, the Plaintiffs contend that the jury
merely updated the amounts. The jury, however, was not given
enough information to update the amount of economic loss because
Dr. Berkman did not provide the jury with an adequate basis for
updating the numbers. When asked how he arrived at the amount of
damages for Denton, Dr. Berkman testified that he looked at the
Plaintiff’s employment history, income documents, and “where he
could have been had he remained employed.” Furthermore, when asked
whether the numbers had changed much from 1993 until 1996, Dr.
Berkman testified in the affirmative, but did not wish to speculate
to a current amount of damages. Any attempt to update the amount
of damages would have been purely speculative because the jury was
not provided with enough information to engage in the type of
economic forecasting utilized by Dr. Berkman. See Haley v. Pan
American World Airways, Inc., 746 F.2d 311, 316 (5th Cir. 1984) (“A
damage award cannot stand when the only evidence to support it is
speculative or purely conjectural.”).
In any event, the amount of damages awarded by the jury does
not correlate to the three year difference between the expert
report and trial. The evidence produced at trial indicates that
Savage immediately located substitute employment. Therefore, there
is no evidentiary basis for awarding $19,600 in past lost wages,
when Savage only accrued $8,640 in actual past lost wages. As for
17
Denton, although he remained unemployed at the time of trial, any
amount awarded for future lost wages included the three years not
covered by the report because Dr. Berkman calculated the future
lost wages from 1993 forward. Consequently, the district court did
not abuse it discretion when it found that the evidence was
insufficient to support the amount of the jury verdict.
Furthermore, the district court remitted the amount of damages to
the “maximum amount the jury could have properly awarded” because
the verdict was only reduced to the amount established by the
evidence.
V.
For the foregoing reasons, the order of the district court
denying the Defendants’ Motion for Judgment as a Matter of Law on
the Plaintiffs’ First Amendment claims; granting the Defendants’
Motion for Judgment as a Matter of Law on Plaintiff Denton’s Texas
Whistleblower Act claim; and granting the Defendants’ Motion for
remittitur is
AFFIRMED.
18