South Carolina Department of Transportation v. Revels

THE STATE OF SOUTH CAROLINA
In The Supreme Court
South Carolina Department of Transportation,
Respondent,
v.
Janell P. Revels and R.J. Poston, Jr., Landowners, and
John Doe and Mary Roe, representing all unknown
persons having or claiming to have any right, title or
interest in or to, or lien on the lands described herein,
including all unknown heirs of Reamer J. Poston, Sr.
a/k/a/ R.J. Poston Sr., deceased, Unknown Claimants,
Of whom Janell P. Revels and R.J. Poston are,
Petitioners.
Appellate Case No. 2012-213378
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Marion County
The Honorable Michael G. Nettles, Circuit Court Judge
Opinion No. 27469
Heard October 9, 2014 – Filed December 10, 2014
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED
Gene McCain Connell, Jr., of Kelaher Connell &
Connor, PC, of Surfside Beach, for Petitioners.
Beacham O. Brooker, Jr., of Columbia, for Respondent.
JUSTICE BEATTY: After prevailing in a condemnation action,
landowners ("Petitioners") moved for an award of attorneys' fees pursuant to
section 28-2-510(B)(1) of the Eminent Domain Procedure Act (the "Act").1
1
The Act is codified at S.C. Code Ann. §§ 28-2-10 to -510 (2007). Section 28-2-
510(B)(1) states:
A landowner who prevails in the trial of a condemnation action, in
addition to his compensation for the property, may recover his
reasonable litigation expenses by serving on the condemnor and filing
with the clerk of court an application therefor within fifteen days after
the entry of the judgment. The application shall show that the
landowner has prevailed, state the amount sought, and include an
itemized statement from an attorney or expert witness representing or
appearing at trial in behalf of the landowner stating the fee charged,
the basis therefor, the actual time expended, and all actual expenses
for which recovery is sought. If requested by any party or on its own
motion, the court shall hear the parties with respect to the matters
raised by the application and shall determine the amount of litigation
expenses to be awarded, which must be set forth in a written order to
be filed with the clerk of court which becomes part of the judgment.
The court, in its discretion, may reduce the amount to be awarded
pursuant to this section, or deny an award, to the extent that the
landowner, during the course of the action, engaged in conduct which
unduly and unreasonably protracted the final resolution of the action
or to the extent the court finds that the position of the condemnor was
substantially justified or that special circumstances make an award
unjust.
S.C. Code Ann. § 28-2-510(B)(1) (2007) (emphasis added). "Litigation expenses"
are defined as "the reasonable fees, charges, disbursements, and expenses
necessarily incurred from and after service of the Condemnation Notice, including,
but not limited to, reasonable attorney's fees, appraisal fees, engineering fees,
deposition costs, and other expert witness fees necessary for preparation or
Contrary to Petitioners' view, the circuit court determined attorneys' fees should be
awarded based on an hourly rate via a lodestar calculation2 rather than the
contingency fee agreement between Petitioners and their attorney. The Court of
Appeals affirmed. S.C. Dep't of Transp. v. Revels, 399 S.C. 423, 731 S.E.2d 897(Ct. App. 2012). This Court granted Petitioners' request for a writ of certiorari to
review the decision of the Court of Appeals. We affirm in part, reverse in part, and
remand this matter to the circuit court for further proceedings consistent with this
opinion.
I. Factual / Procedural History
On August 6, 2007, the South Carolina Department of Transportation (the
"SCDOT") filed a Notice of Condemnation against Petitioners in which it sought to
acquire .314 acres of Petitioners' Marion County property for the construction of
the U.S. Highway 378 relocation. Following a two-day trial, a jury returned a
verdict in favor of Petitioners in the amount of $125,000.
Subsequently, Petitioners timely filed an application for attorneys' fees and
costs pursuant to section 28-2-510(B)(1) in which they sought $28,233.33 in
attorneys' fees based on a contingency fee agreement with their counsel. The
agreement provided that counsel would represent Petitioners on a contingency fee
basis of one-third of the gross amount recovered, less the original $40,300 offered
by SCDOT.3 In order to determine a reasonable attorney's fee, the circuit court
requested that Petitioners provide an affidavit outlining the factors identified in
Jackson v. Speed, 326 S.C. 289, 486 S.E.2d 750 (1997).4
participation in condemnation actions and the actual cost of transporting the court
and the jury to view the premises." S.C. Code Ann. § 28-2-30(14) (2007)
(emphasis added).
2
The lodestar figure "is designed to reflect the reasonable time and effort involved
in litigating a case, and is calculated by multiplying a reasonable hourly rate by the
reasonable time expended." Layman v. State, 376 S.C. 434, 457, 658 S.E.2d 320,
332 (2008).
3
The request for attorneys' fees is based on the following calculation: $125,000 -
$40,300 = $84,700/3 = $ 28,233.33.
4
In Jackson, this Court identified the following factors a court should consider
when determining a reasonable attorney's fee: "(1) the nature, extent, and
During a hearing before the circuit court, Petitioners asserted the attorney's
fee set by their contingency fee agreement was a reasonable award as it complied
with the Act and Jackson. Therefore, Petitioners claimed the court must first
determine whether or not the contingency fee agreement was reasonable before
requiring them to provide anything more. In response, SCDOT maintained that
attorneys' fees should not be calculated based on a percentage of the jury verdict
but, rather, a lodestar analysis as required by Layman v. State, 376 S.C. 434, 658
S.E.2d 320 (2008), wherein this Court analyzed an award of attorneys' fees under
the state action statute as codified in section 15-77-3005 of the South Carolina
Code.6 Based on the lodestar doctrine, SCDOT moved for Petitioners' counsel to
difficulty of the case; (2) the time necessarily devoted to the case; (3) professional
standing of counsel; (4) contingency of compensation; (5) beneficial results
obtained; and (6) customary legal fees for similar services." Jackson, 326 S.C. at
308, 486 S.E.2d at 760.
5
At the time Layman was decided, section 15-77-300 provided in relevant part:
In any civil action brought by the State, any political
subdivision of the State or any party who is contesting state action,
unless the prevailing party is the State or any political subdivision of
the State, the court may allow the prevailing party to recover
reasonable attorney's fees to be taxed as court costs against the
appropriate agency if:
(1) The court finds that the agency acted without substantial
justification in pressing its claim against the party; and
(2) The court finds that there are no special circumstances that
would make the award of attorney's fees unjust.
S.C. Code Ann. § 15-77-300 (2005).
6
In Layman, working retirees and participants in the Teachers and Employee
Retention Incentive Program (TERI) brought a class action suit against the State
and the South Carolina Retirement System for breach of contract. Layman, 376
S.C. at 441, 658 S.E.2d at 324. The suit arose as a result of the State requiring the
TERI participants to make pay-period contributions of their salaries into the
Retirement System when the statutes codifying these programs did not previously
require them to do so. Id. On appeal, this Court found in favor of the TERI
provide the court with an itemized statement that identified an hourly rate and the
actual number of hours counsel worked on the case.
Citing Layman, the circuit court found Petitioners were entitled to an award
of attorneys' fees based on an hourly rate rather than the contingency fee
agreement. The court awarded Petitioners attorneys' fees in the amount of $16,290,
which was based on an hourly rate of $300 per hour for 54.3 hours.7
In their motion for reconsideration, Petitioners asserted the court failed to:
(1) rule on whether the requested attorneys' fees were reasonable under section 28-
2-510(B); (2) consider the case of Vick v. South Carolina Department of
Transportation, 347 S.C. 470, 556 S.E.2d 693 (Ct. App. 2001), wherein the Court
of Appeals approved the use of a contingency fee agreement in a condemnation
action; (3) address any of the factors identified in Jackson; and (4) apply a lodestar
analysis as it "simply ordered a flat rate of $300.00 per hour." The court denied the
motion, ruling that: (1) Petitioners' request for a reasonableness determination
regarding contingency fees was not applicable in light of Layman; (2) Vick was not
applicable based on Layman; (3) the factors identified in Jackson were not
participants, ordered the return of their contributions, and held that they were no
longer required to contribute to the Retirement System. Id. at 442, 658 S.E.2d at
324. Additionally, we remanded to the circuit court to decide whether counsel for
the TERI participants was entitled to attorneys' fees under the state action statute.
Id.On remand, the circuit court determined that counsel was entitled to attorneys'
fees based on a "percentage of the benefits obtained in conjunction with the
amount of work performed in obtaining such results." Id. at 442-43, 658 S.E.2d at
324. Both parties appealed the circuit court's decision. Id. at 443, 658 S.E.2d at
325. Because the state action statute provides that "attorneys' fees assessed to the
state agency may only be paid 'upon presentation of an itemized accounting of the
attorney's fees,'" this Court rejected the utilization of the percentage-of-the-
recovery method in awarding attorneys' fees under the statute. Id. at 454, 658
S.E.2d at 330-31 (quoting S.C. Code Ann. § 15-77-330 (2005)). Instead, we found
the lodestar method appropriate "because it equally embraces the theory of fee-
shifting embodied in the state action statute, as well as the notion of efficiency
established by the Court." Id. at 458, 658 S.E.2d at 332.
7
The court also awarded Petitioners their requested costs of $6,643.91. These
costs, however, are not challenged on appeal.
applicable; and (4) the court properly applied a lodestar analysis in awarding
attorneys' fees of $300 per hour.
On appeal, the Court of Appeals affirmed. S.C. Dep't of Transp. v. Revels,
399 S.C. 423, 731 S.E.2d 897 (Ct. App. 2012). In so ruling, the court found
Layman controlled as "section 28-2-510, like section 15-77-300, shifts the source
of the prevailing party's attorney's fees to the losing party, the State." Id. at 430,
731 S.E.2d at 900. Based on Layman, the court found "it is improper to award a
percentage-of-the-recovery under a statute that explicitly requires an attorney to
state his hours." Id. Additionally, contrary to Petitioners' view, the court found
"the circuit court was not required to first make a determination regarding the
reasonableness of the contingency fee agreement" pursuant to Jackson. Id. at 433,
731 S.E.2d at 902. The court emphasized that "South Carolina law specifically
rejects the notion that a contingency fee contract controls a court's determination of
reasonable attorneys' fees due to a plaintiff pursuant to a statute mandating the
award of attorney's fees." Id. (quoting Sauders v. S.C. Pub. Serv. Auth., C.A. Nos.
2:93-3077-23, 2011 WL 1236163, at *5 (D.S.C. 2011)).
Following the denial of Petitioners' petition for rehearing, this Court granted
a writ of certiorari to review the decision of the Court of Appeals.
II. Standard of Review
"The decision to award or deny attorneys' fees under a state statute will not
be disturbed on appeal absent an abuse of discretion." Kiriakides v. Sch. Dist. of
Greenville Cnty., 382 S.C. 8, 20, 675 S.E.2d 439, 445 (2009). "An abuse of
discretion occurs when the conclusions of the trial court are either controlled by an
error of law or are based on unsupported factual conclusions." Id. (citation
omitted). "Similarly, the specific amount of attorneys' fees awarded pursuant to a
statute authorizing reasonable attorneys' fees is left to the discretion of the trial
judge and will not be disturbed absent an abuse of discretion." Id. However,
where the issue of the amount of attorneys' fees awarded depends on the Court's
interpretation of "reasonable" attorneys' fees as contained in the Act, the
interpretation of the statute is a question of law that the Court reviews de novo.
See Layman v. State, 376 S.C 434, 444, 658 S.E.2d 320, 325 (2008) (recognizing
that where the issue of the amount of the attorneys' fees awarded hinged on the
Court's interpretation of "reasonable" attorneys' fees as contained in the state action
statute, the Court would review the interpretation of the statute de novo as it
presented a question of law).
III. Discussion
A. Arguments
Petitioners raise seven arguments to support their sole contention that the
Court of Appeals erred in affirming an award of attorneys' fees that was calculated
based on a lodestar method rather than their contingency fee agreement. We
consolidated these arguments since Petitioners essentially assert the Court of
Appeals erred in: (1) finding Layman controlled as section 28-2-510 rather than
section 15-77-300 is the exclusive remedy in awarding attorneys' fees to
landowners who prevail in an eminent domain proceeding; and (2) declining to
find that Jackson requires a court to initially determine whether a contingency fee
agreement is reasonable.
B. Analysis
1. Entitlement to Reasonable Attorneys' Fees
"Under the 'American Rule,' the parties to a lawsuit generally bear the
responsibility of paying their own attorneys' fees." Layman, 376 S.C. at 451-52,
658 S.E.2d at 329 (citing Pennsylvania v. Del. Valley Citizens' Council for Clean
Air, 478 U.S. 546, 561 (1986)). "This Court and others recognize numerous
exceptions to this rule, including the award of attorneys' fees pursuant to a statute."
Id. (citing Jackson, 326 S.C. at 307, 486 S.E.2d at 759).
"At common law, neither party to an eminent domain proceeding can
recover costs and attorney's fees; costs and attorney's fees in such proceedings are
generally deemed to be matters for statutory regulation." 2 Robert L. Rossi,
Attorneys' Fees § 11:35 (3d ed. 2001). Accordingly, because the "[a]llowance of
attorney's fees is a matter of policy to be determined by the legislature, . . . the
legislature may enact reasonable provisions to govern an award of attorney's fees
in condemnation actions." 29A C.J.S. Eminent Domain § 551 (Supp. 2014); see
11A Eugene McQuillin, The Law of Municipal Corporations § 32:116 (3d ed.
2000 & Supp. 2014) ("Although noting that it would perhaps be fair or efficient to
compensate a landowner for all the costs incurred as a result of a condemnation
action, the United States Supreme Court has nevertheless declared that such
compensation is a matter of legislative grace rather than constitutional
command."). "A statutory award of attorneys' fees is typically authorized under
what is known as a fee-shifting statute, which permits a prevailing party to recover
attorneys' fees from the losing party." Layman, 376 S.C. at 452, 658 S.E.2d at 329
(citing Blum v. Stenson, 465 U.S. 886, 893 (1984)).
2. Fee-Shifting Statute
Here, the General Assembly enacted section 28-2-510, a fee-shifting statute,
as part of the Act to authorize landowners who prevail in an eminent domain action
to recover reasonable litigation expenses. S.C. Code Ann. § 28-2-510 (2007).
Without question section 28-2-510 governs the procedure at issue and not the
general state action statute codified in section 15-77-300 as the General Assembly
explicitly stated, "[i]n the event of conflict between this act and any other law with
respect to any subject governed by this act, this act shall prevail." Id. § 28-2-20
(emphasis added); see I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 412-13,
526 S.E.2d 716, 719 (2000) ("Generally, specific laws prevail over general laws,
and later legislation takes precedence over earlier legislation.").
Thus, although the discussion in Layman provides general guidance
regarding the interpretation of fee-shifting statutes, the decision is not dispositive
as the Court's analysis must focus on the express terms of section 28-2-510. See
State ex rel. Dep't of Transp. v. Norman Indus. Dev. Corp., 41 P.3d 960, 965-66
(Okla. 2001) ("[F]ee-shifting statutes are interpreted according to their own terms."
(footnote omitted)); cf. Frampton v. S.C. Dep't of Transp., 406 S.C. 377, 394, 752
S.E.2d 269, 278 (Ct. App. 2013), cert. denied (Aug. 25, 2014) (holding that section
28-11-30, the more specific statute that authorized prevailing landowner's ability to
receive attorneys' fees in an inverse condemnation action, applied to property
owner's claim rather than section 28-2-510, which governs the "typical
condemnation case"). As a result, we find the Court of Appeals erred in holding
that Layman controlled the disposition of the instant case.
Having found that Layman is not controlling, we direct our attention to the
express terms of section 28-2-510. As we interpret section 28-2-510, we conclude
the General Assembly intended for attorneys' fees to be awarded based on a
constellation of factors. Specifically, section 28-2-510(B)(1) mandates that in
order for a prevailing landowner to recover reasonable attorneys' fees he or she
must submit an application for fees "necessarily incurred." S.C. Code Ann. § 28-2-
30(14) (2007) (defining "litigation expenses" for prevailing landowner). This
application must contain an "itemized statement" from the landowner's attorney,
which includes: (1) "the fee charged;" (2) the basis for the fee charged; (3) "the
actual time expended;" and (4) "all actual expenses for which recovery is sought."
Id. § 28-2-510(B)(1). Because the General Assembly used the word "actual" to
modify the time expended and expenses, the award of attorneys' fees must be
reflective of a consideration of the amount of time a landowner's counsel expended
on the case. See S.C. Dep't of Transp. v. First Carolina Corp. of S.C., 369 S.C.
150, 153, 631 S.E.2d 533, 535 (2006) ("The cardinal rule of statutory construction
is to ascertain and effectuate the intent of the legislature."). Therefore, by
implication, the General Assembly precluded a landowner from recovering
attorneys' fees based solely on a contingency fee agreement without regards for
section 28-2-510. However, even though the contingency fee agreement is not the
sole element in the calculation, it is still a significant component as it may be used
to explain the basis for the fee charged by the landowner's counsel.
Our decision should not be construed as somehow condemning or
eliminating an attorney's use of a contingency fee agreement. To the contrary, we
recognize that the use of these agreements is a legitimate and well-established
practice for attorneys throughout our state. This practice may still be pursued.
Yet, it is with the caveat that the terms of the agreement are not controlling.
Rather, they constitute one factor in a constellation of factors for the court's
consideration in determining an award of reasonable litigation expenses to a
prevailing landowner under section 28-2-510(B)(1). The court may, in fact,
conclude that the contingency fee agreement yields a reasonable fee. However, the
court is not bound by the terms of the agreement. See Silver Creek Invs., Inc. v.
Whitten Constr. Mgmt., Inc., 307 P.3d 360, 368 (Okla. Civ. App. 2013) (stating, "A
fee contract is a matter between the client and the attorney. The amount due under
that contract may not serve as a basis for computing an attorney's fee award against
the unsuccessful party. It merely reflects the value of those services to the parties
bound by that agreement inter se. It is not binding on the court in awarding an
appropriate attorney's fee." (citation omitted)).
In light of our ruling, we now turn to Petitioners' assertion that the Court of
Appeals erred in declining to find that Jackson requires a court to initially
determine whether a contingency fee agreement is reasonable.
3. Jackson Evaluation
We find that Petitioners misconstrue the import of Jackson as they fail to
focus on the express terms of section 28-2-510. As previously stated, section 28-
2-510(B)(1) authorizes the court to award "reasonable litigation expenses" to a
prevailing landowner. Significantly, the statute also states:
The court, in its discretion, may reduce the amount to be awarded
pursuant to this section, or deny an award, to the extent that the
landowner, during the course of the action, engaged in conduct which
unduly and unreasonably protracted the final resolution of the action
or to the extent the court finds that the position of the condemnor was
substantially justified or that special circumstances make an award
unjust.
S.C. Code Ann. § 28-2-510(B)(1) (2007) (emphasis added). Thus, although the
court is authorized to award attorneys' fees, it is not required to do so as it may
deny an award in its entirety if the circumstances surrounding the litigation do not
support an award.
If the court finds that an award is warranted, the court must then consider the
"itemized statement" of the landowner's attorney that includes: (1) "the fee
charged;" (2) the basis for the fee charged; (3) "the actual time expended;" and (4)
"all actual expenses for which recovery is sought." S.C. Code Ann. § 28-2-
510(B)(1) (2007). Additionally, as noted above, the court must evaluate the
circumstances surrounding the litigation to determine whether the amount of the
attorneys' fee award should be reduced. Therefore, the court's determination for an
award of reasonable attorneys' fees is not relegated to a threshold determination of
the reasonableness of an agreement between the landowner and his attorney.
While we recognize that contingency fee agreements are common in condemnation
actions and are binding on the parties, they are not binding on the court.
After the court reviews the itemized statement, the court may then evaluate
the amount of an award pursuant to Jackson. Although the Jackson factors are
instructive in determining an award of reasonable attorneys' fees, the court is not
statutorily required to conduct this evaluation as section 28-2-510 makes no
reference to these factors. Given the statute's silence, we emphasize that a Jackson
evaluation is neither required nor forbidden under section 28-2-510.8
8
We note that, in response to Layman, the General Assembly amended the state
action statute to include a Jackson type evaluation. Act No. 125, 2010 S.C. Acts
1104. Specifically, subsection (B) was added to provide that:
Attorney's fees allowed pursuant to subsection (A) must be limited to
a reasonable time expended at a reasonable rate. Factors to be applied
in determining a reasonable rate include:
If the court chooses to conduct a Jackson evaluation, this Court has
instructed a court to consider the following six factors: "(1) the nature, extent, and
difficulty of the case; (2) the time necessarily devoted to the case; (3) professional
standing of counsel; (4) contingency of compensation; (5) beneficial results
obtained; and (6) customary legal fees for similar services." Jackson, 326 S.C. at
308, 486 S.E.2d at 760. As part of this evaluation, the court must make specific
findings of fact on the record for each of the factors. Blumberg v. Nealco, Inc., 310
S.C. 492, 494, 427 S.E.2d 659, 661 (1993) ("When an award of attorney's fees is
requested and authorized by contract or statute, the court should make specific
findings of fact on the record for each factor. . . . On appeal, absent sufficient
evidentiary support on the record for each factor, the award should be reversed and
the issue remanded for the trial court to make specific findings of fact.").
Thus, contrary to Petitioners' claim, a contingency fee agreement is part of
the determination of reasonableness as it reflects the "basis" for the fee charged;
however, it is neither the sole basis for the award nor the controlling factor in the
determination. See 11A Eugene McQuillin, The Law of Municipal Corporations
§ 32:116 (3d ed. 2000 & Supp. 2014) ("In awarding attorney's fees in eminent
domain proceedings, it is the reasonableness of the fee, and not the arrangement
the attorney and his or her client may have agreed upon, which is controlling."
(footnote omitted)); Jackson, 326 S.C. at 308, 486 S.E.2d at 759 ("When
determining the reasonableness of attorney's fees under a statute mandating the
(1) the nature, extent, and difficulty of the case;
(2) the time devoted;
(3) the professional standing of counsel;
(4) the beneficial results obtained; and
(5) the customary legal fees for similar services.
The judge must make specific written findings regarding each factor
listed above in making the award of attorney's fees. However, in no
event shall a prevailing party be allowed to shift attorney's fees
pursuant to this section that exceed the fees the party has contracted to
pay counsel personally for work on the litigation.
S.C. Code Ann. § 15-77-300(B) (Supp. 2013). The factors identified in section 15-
77-300(B) are identical to those in Jackson with the exception of the fourth factor,
which involves the "contingency of compensation." Notably, the General
Assembly did not amend the Act to include the Jackson factors.
award of attorney fees, the contract between the client and his counsel does not
control the determination of a reasonable hourly rate."). Accordingly, the Court of
Appeals properly rejected Petitioners' claim that Jackson required the circuit court
to make a threshold determination regarding the reasonableness of the contingency
fee agreement.
Applying our ruling to the facts of the instant case, we find the circuit court
failed to conduct the proper statutory analysis. Consequently, we remand this
matter for further proceedings consistent with this opinion. Additionally, given
Petitioners' counsel failed to submit an "itemized statement" that identified the "fee
charged" and the actual number of hours expended, we instruct Petitioners' counsel
to submit this statement in compliance with section 28-2-510(B)(1).
IV. Conclusion
In conclusion, we hold the Court of Appeals erred in finding that Layman
controlled the outcome of the instant case. Because the Court in Layman analyzed
the state action statute rather than the Act's specific fee-shifting statute, the analysis
was persuasive but not dispositive. However, despite this error, we conclude the
Court of Appeals correctly rejected Petitioners' claim that the contingency fee
agreement formed the sole basis for awarding attorneys' fees under the Act.
Pursuant to the express terms of section 28-2-510, a court is authorized to
either award reasonable attorneys' fees to a prevailing landowner or deny the award
in its entirety depending on the circumstances surrounding the litigation. If the
court determines that an award is warranted, it must then consider a constellation
of factors in calculating the amount of the award. Initially, the court must consider
the itemized statement submitted by the landowner's attorney in support of the
requested amount of litigation expenses. Once the court reviews this statement in
conjunction with the circumstances surrounding the litigation, it may then
determine a reasonable award of attorneys' fees.
Given the circuit court failed to conduct the correct statutory analysis, we
remand this matter to the circuit court. As part of our remand directive, we instruct
Petitioners' counsel to submit an itemized statement in compliance with section 28-
2-510(B)(1) as counsel's original affidavit failed to identify the "fee charged" and
the actual number of hours expended.
Based on the foregoing, we affirm in part and reverse in part the decision of
the Court of Appeals. In addition, we remand the matter to the circuit court for
proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
TOAL, C.J., KITTREDGE and HEARN, JJ., concur. PLEICONES, J.,
concurring in result only.