IN THE SUPREME COURT OF IOWA
No. 22 / 04-0706
Filed August 25, 2006
CAROL MILLER, DOROTHY MILLER, ROBERT DWYER, HOLLY DWYER, LINDA FRANCK, and DEBRA LITTS,
Appellees,
vs.
KENNETH ROHLING, TODD ROHLING and JANA ROHLING,
Appellants.
Appeal from the Iowa District Court for Clinton County, Nancy S.
Tabor, Judge.
Defendants appeal judgment for damages based on temporary
nuisance. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
WITH DIRECTIONS.
Rand S. Wonio of Lane & Waterman LLP, Davenport, for appellants.
Steven J. Kahler of Schoenthaler, Roberg, Bartelt & Kahler,
Maquoketa, for appellees.
Paul S. Swinton of Morain, Burlingame & Pugh, P.L.C., West Des
Moines, for amici curiae Iowa Farm Bureau Federation, Iowa Institute for
Cooperatives, Agribusiness Association of Iowa, and Iowa Corn Growers
Association. 2
Christina L. Gruenhagen, West Des Moines, for amicus curiae Iowa
Farm Bureau Federation. 3
TERNUS, Justice.
The appellants, Kenneth Rohling, Todd Rohling, and Jana Rohling,
appeal an adverse judgment for nuisance damages entered after a bench
trial on claims asserted by the appellees, Carol Miller, Dorothy Miller,
Robert Dwyer, Holly Dwyer, Linda Franck, and Debra Litts. The defendants
contend the trial court erroneously found their grain drying and storage
activities constituted a nuisance. They also challenge the court’s
calculation of damages and award of attorney fees, which together totaled
over $190,000. Although we find the evidence sufficient to support the trial
court’s finding of a nuisance, we do not think the record fully sustains the
trial court’s damage awards or the recovery of attorney fees. Accordingly,
we affirm in part, reverse in part, and remand for entry of a new judgment
consistent with this opinion.
I. Background Facts and Proceedings.
The parties own various parcels of land in a commercial area of
Wheatland, Iowa. Prior to the defendants’ purchase of their property in
1992, the site had been used for a commercial grain storage and drying
facility. The defendants also used the property for the storage and drying of
grain, but only for their own crops. When the defendants bought the land, there were three grain bins, a grain dryer, and associated equipment on the
property. The defendants added two additional bins, one in 1996 and one
in 1999. After this lawsuit was filed in 2003, they erected two more, for a
total of seven grain bins at the site.
The plaintiffs live on residential lots in the vicinity of the defendants’
property. In addition, the Dwyers own a rental property adjacent to the lot
on which they reside. According to the plaintiffs, grain dust, corn chaff, and
beeswings 1 are released, primarily during the harvest season, when grain is
1 “Beeswings” are “very thin filmy pieces of bran.” Webster’s Third New International 4
transferred to and from the defendants’ bins. The plaintiffs testified these
emissions have increased since 1998 and physically accumulate on their
properties to the extent the fugitive dust interferes with the plaintiffs’ use
and enjoyment of their land. The plaintiffs further assert noise from the
grain dryer and truck traffic is annoying and makes it difficult for them to
sleep and converse in their homes.
The plaintiffs brought this nuisance suit to recover damages and
obtain injunctive relief in 2003 after the Wheatland city council issued a
building permit allowing the defendants to erect two additional grain bins.
Following the district court’s refusal to order a temporary injunction, the
defendants built two new bins and made improvements to the conveying
system in all but one bin. These improvements were intended to enclose
the system for filling the bins, thereby eliminating the open transfer system
that allowed debris to escape into the air.
The plaintiffs’ claims proceeded to a bench trial in March 2005. In
addition to testifying to the complaints outlined above, the plaintiffs
introduced into evidence a videotape that showed corn chaff, beeswings and
dust on outdoor furniture, on a grill, on a fence, and floating in one of the
plaintiffs’ swimming pools. The plaintiffs asked for damages for the annoyance, discomfort, and inconvenience caused by the emissions and
noise emanating from the defendants’ land, as well as for the cost of
additional cleaning necessitated by the particulate matter settling on the
plaintiffs’ property and personal belongings. No bills or receipts were
presented at trial to document any out-of-pocket expenses.
Based on this evidence, the trial court found the use of the
defendants’ bins in 2001, 2002, and 2003 constituted a temporary
nuisance. The court determined plaintiff Dorothy Miller had testified to the ________________________ Dictionary 197 (unabr. ed. 2002). 5
most credible list of cleanup expenses, with the exception of the cost of
rodent control. Using Miller’s testimony as a basis, the court awarded each
plaintiff $1670 for cleanup in each of the three years in which the
defendants operated a nuisance. On the plaintiffs’ claims for loss of use
and enjoyment of their property, the court determined a reasonable figure
for such loss was $6 per hour for sixteen hours per day for a period of
ninety days, totaling $8640 per year per plaintiff. In addition, the court
awarded plaintiff Holly Dwyer $1900 in lost rental value based on evidence
Dwyer reduced the rent charged to a tenant due to the grain residue falling
onto the rental property. In summary, each plaintiff was awarded $30,930
in compensatory damages, with the exception of Holly Dwyer, who was
awarded $32,830. In addition to the compensatory damage awards, the
court ordered the defendants to pay $4000 towards the plaintiffs’ attorney
fees, notwithstanding the absence of any demand for such fees.
II. Scope of Review.
The plaintiffs brought this action at law. See Weinhold v. Wolff, 555
N.W.2d 454, 459 (Iowa 1996) (indicating action to recover nuisance
damages may be brought at law or in equity). Our review of the trial
transcript confirms that the case was tried as a law action. Therefore, our review is for correction of errors of law. See In re Estate of Boyd, 634
N.W.2d 630, 635 (Iowa 2001) (“The scope of review depends on how the case
was tried in the district court.”); Iowa R. App. P. 6.4. Under this scope of
review, “[t]he trial court’s findings of fact are binding on us if supported by
substantial evidence.” Bates v. Quality Ready-Mix Co., 261 Iowa 696, 699,
154 N.W.2d 852, 854 (1967). We view the evidence “in the light most
favorable to the trial court’s judgment.” Id. 6
III. Existence of a Nuisance.
Iowa has statutory nuisance provisions that are supplemented by the
common law of nuisance. See Perkins v. Madison County Livestock & Fair
Ass’n, 613 N.W.2d 264, 271 (Iowa 2000). Under the Iowa Code and under
common law, the use of property or structures in such a manner as to
unreasonably interfere with another’s reasonable use and enjoyment of his
property or in such a manner as to injure another’s health is a nuisance.
See id.; Iowa Code §§ 657.1, .2 (2003). We apply the following rules and
analysis in determining whether one’s use of his property constitutes a
nuisance:
Whether a lawful business is a nuisance depends on the reasonableness of conducting the business in the manner, at the place, and under the circumstances in question. Thus the existence of a nuisance does not depend on the intention of the party who created it. Rather, it depends on the following three factors: priority of location, the nature of the neighborhood, and the wrong complained of. . . .
A fact finder uses the normal person standard to determine whether a nuisance involving personal discomfort or annoyance is significant enough to constitute a nuisance. The normal-person standard is an objective standard. . . .
“. . . If normal persons living in the community would regard the invasion in question as definitely offensive, seriously annoying or intolerable, then the invasion is significant.”
Weinhold, 555 N.W.2d at 459 (citation omitted).
The defendants argue that although the trial court found the
defendants had priority of location, it gave insufficient consideration to that
fact. After reviewing the record, we disagree that the defendants had
priority of location as that term is used in a nuisance analysis. It is true the
defendants’ property was being used for grain drying and storage prior to
any of the plaintiffs acquiring an interest in their property with the
exception of Dorothy Miller. But priority of location refers not to who lived 7
on or owned their property first, but “whether the complaining party moved
to the nuisance.” Perkins, 613 N.W.2d at 271. Thus, the relevant point in
time at which to examine priority of location is just prior to the
commencement of the nuisance-producing activities. See id. at 271-72
(examining whether plaintiffs acquired their property before defendant
began using fairgrounds for races, not whether plaintiffs owned their
property before defendant established fairgrounds).
Here, the plaintiffs claimed the grain debris from the defendants’
property did not interfere with the use and enjoyment of their property until
the emissions began to increase after 1998. The trial court found there was
no unreasonable interference until 2001. The evidence showed these dates
coincided with increased storage capacity at the site and a corresponding
increase in the amounts of grain being loaded and unloaded at that
location. There was no evidence the grain storage and drying activities
bothered neighboring properties prior to the late 1990s. By that time, all of
the plaintiffs had moved into their homes. Therefore, the plaintiffs, not the
defendants, had priority of location. Id. at 272 (holding “use of the
fairgrounds that is claimed to constitute a nuisance did not begin until after
the plaintiffs were already on their properties,” so “plaintiffs have priority of
location”); see Higgins v. Decorah Produce Co., 214 Iowa 276, 282, 242 N.W.
109, 112 (1932) (holding complainant, who acquired property adjacent to
poultry plant that was subsequently enlarged to an extent that the
increased odors and noise constituted a nuisance, was not estopped from
maintaining nuisance action).
Even though the trial court erred in deciding the defendants had
priority of location, that error does not help the defendants. The plaintiffs’
priority of location is a circumstance that weighs heavily in the plaintiffs’
favor. Wienhold, 555 N.W.2d at 459-60; Bates, 261 Iowa at 704, 154 8
N.W.2d at 858. Thus, contrary to the defendants’ contention that the
priority-of-location factor precludes the existence of an actionable nuisance,
this factor supports the trial court’s decision.
The defendants also contend the trial court’s nuisance finding cannot
stand in view of the court’s determination that the area in question was
commercial in nature. But that determination does not preclude the finding
of a nuisance. See Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 180 (Iowa
2004) (finding evidence sufficient to support finding of nuisance even
though defendant’s “confinement operation was a customary enterprise in
the neighborhood”); Bates, 261 Iowa at 704, 154 N.W.2d at 858 (affirming
finding of nuisance notwithstanding commercial character of neighborhood).
It is only one factor for the court to consider. See Weinhold, 555 N.W.2d at
459. Nor does the existence of similar businesses in the area preclude a
finding that the defendants’ establishment was a nuisance given the
differing testimony on whether the other grain operations in town created
the complained of emissions. See Bates, 261 Iowa at 704, 154 N.W.2d at
858 (stating evidence showed “other commercial enterprises in the area
created no excessive noise or dust” and “the noise and dust complained of
by plaintiffs . . . came from defendant’s plant”).
Although the testimony was conflicting, there was evidence the
material coming from the defendants’ property significantly increased when
the defendants enlarged their grain-storing capacity and increased their
grain activities on the property. There was also credible testimony that the
emissions during harvest season were so pervasive that they blanketed not
only the plaintiffs’ vehicles and personal property located outside their
residences, but also filtered into the interior of the plaintiffs’ homes. These
deposits, according to the plaintiffs, required constant house cleaning and
were so significant that the plaintiffs used brooms and shovels to remove 9
the material from their yards and driveways. The plaintiffs also testified
they could not work outside at times because there was so much particulate
matter in the air that they could not breathe. Although the defendants
introduced the testimony of witnesses who said the emissions from the
defendants’ grain site were not that bothersome, it was for the trial court to
determine which testimony was most credible. See Riter v. Keokuk Electro-
Metals Co., 248 Iowa 710, 722, 82 N.W.2d 151, 158 (1957). Based upon our
review of the record, we cannot say the trial court erred in determining a
person of normal sensibilities would be disturbed and substantially
annoyed by the invasion of dust, corn chaff and beeswings from the
defendants’ operations during harvest season. In addition, evidence of the
noise caused by vehicles hauling grain and by the grain dryer and of the
effect of this noise on the plaintiffs provides further record support for the
trial court’s determination the defendants’ activities caused significant
personal annoyance to the plaintiffs. Because substantial evidence
supports the trial court’s finding of a nuisance, we are bound by that
finding on appeal.
IV. Compensatory Damages.
The defendants challenge the trial court’s award of compensatory damages on four bases: (1) the court erred in using a mathematical formula
to calculate the damages for interference with use and enjoyment of
property; (2) there was no factual basis for the court’s determination that
the defendants’ activities interfered with the plaintiffs’ use and enjoyment of
their property on ninety days each year; (3) there was no factual basis for
the court’s determination that each plaintiff suffered equally from the
defendants’ activities; and (4) there is insufficient evidence to support the
award of cleanup expenses. 10
We start with the general measure of damages for a temporary
nuisance: “the diminution in the rental value of the property caused by the
nuisance, plus any special damages.” Schlotfelt v. Vinton Farmers’ Supply
Co., 252 Iowa 1102, 1115, 109 N.W.2d 695, 702 (1961). Special damages
include the “ ‘personal inconvenience, annoyance, and discomfort caused by
the existence of a nuisance.’ ” Weinhold, 555 N.W.2d at 465 (citation
omitted). It also includes the reasonable cost of removing offensive
nuisance deposits. See Earl v. Clark, 219 N.W.2d 487, 490 (Iowa 1974).
There is no “precise rule for ascertaining [special] damages”; the amount
must be based upon the sound judgment of the fact finder giving impartial
consideration to the evidence. Weinhold, 555 N.W.2d at 465. This court
will not disturb a damage award if “there is any reasonable basis in the
record” to support it. Id. We now address the specific complaints made by
the defendants.
A. Use of formula. Plaintiff Holly Dwyer testified the plaintiffs felt
they were entitled to compensation for 16 hours a day for the 140 days a
year that they were unreasonably bothered by the defendants’ activities.
She explained the 16-hour figure was based on the fact that “most normal
people would be out of their home a period of eight hours a day.” The 140- day figure was based on the days of peak emissions during harvest season.
She also testified they believed a rate of $10 per hour for this annoyance
and inconvenience was fair. The other plaintiffs adopted this formula
without further elaboration. The court calculated the plaintiffs’ damages for
loss of use and enjoyment using a rate of $6 per hour for 16 hours a day for
90 days a year.
The defendants claim this reasoning was erroneous, citing our cases
stating that damages for pain and suffering cannot be measured by any
exact or mathematical standard. It is true no precise formula exists for 11
determining damages for physical or mental pain and suffering. See Oldsen
v. Jarvis, 159 N.W.2d 431, 434 (Iowa 1968) (“It is of course true, as the jury
was instructed, that damages for pain and suffering cannot be measured by
any exact or mathematical standard and rest in the sound discretion of the
jury based upon a fair and impartial consideration of the evidence.”).
Nonetheless, the use of a mathematical formula, while not required, is not
forbidden.
This court has refused to find any error in counsel’s use of a per diem
formula to support the amount requested by a plaintiff for intangible
damages in personal injury cases. See Cardamon v. Iowa Lutheran Hosp.,
256 Iowa 506, 512, 128 N.W.2d 226, 230 (1964) (finding no prejudicial error
in counsel’s argument that plaintiffs’ pain and suffering was worth $2 per
hour); Corkery v. Greenberg, 253 Iowa 846, 854-55, 114 N.W.2d 327, 332
(1962) (holding per diem argument by plaintiff’s attorney not improper). We
noted in Corkery that it was possible the jury used “some modification” of
the formula suggested by plaintiff’s counsel in setting plaintiff’s recovery.
253 Iowa at 855, 114 N.W.2d at 332. Even so, we found no reversible error.
Id.
We see no distinction here where a per diem calculation was used by the court in determining reasonable compensation for loss of use and
enjoyment of property. See generally Weinhold, 555 N.W.2d at 465
(analogizing special damages in nuisance case to intangible damages in
personal injury cases). The court did not commit reversible error in relying
on a mathematical formula to compute the plaintiffs’ damages.
B. Awarding damages for ninety days of interference. The defendants
contend there was no factual basis for the court’s determination that the
defendants’ activities interfered with the plaintiffs’ use and enjoyment of
their property on ninety days each year. The plaintiffs claimed the 12
defendants’ activities constituted a nuisance during harvest season. The
parties disputed how long harvest season lasted. The plaintiffs argued it
was 140 days long, from August through December. The defendants
testified it was between seven and eight weeks, beginning in mid-September
and ending by December. In its ruling, the trial court resolved the
conflicting testimony, concluding there was increased usage of the property
from September through December but awarding damages only for ninety
days in view of the fact that on some days during this time period activities
on the property would be limited due to weather conditions and equipment
breakdowns. We think the trial court’s finding that the defendants
interfered with the plaintiffs’ use and enjoyment of their property ninety
days a year is supported by substantial evidence.
C. Identical loss-of-use-and-enjoyment damages. The trial court
awarded each plaintiff $8640 per year for loss of use and enjoyment. The
defendants claim the damages sustained by each plaintiff cannot be equal
as each plaintiff lived in different proximity to the defendants’ property and
was impacted differently by the defendants’ grain storage activities. Cf.
Wambsgans v. Price, 274 N.W.2d 362, 366 (Iowa 1979) (“Mental anguish is
suffered individually, not jointly, and differs greatly from person to person.”).
Our review of the record supports the trial court’s implicit finding that
the impact of the emissions and noise on the plaintiffs’ properties was
largely the same, notwithstanding some minor variances in the proximity of
each residence to the nuisance. On the other hand, the record also
demonstrates that plaintiff Carol Miller was clearly not affected by the
emissions to the same extent as the other plaintiffs.
Carol Miller did not reside in her Wheatland home full-time. She
testified she is a joint owner of the home occupied by her mother, plaintiff 13
Dorothy Miller. Carol said she principally resides in Illinois, but stays with
her mother in Wheatland one or two weeks each month. There was no
evidence that Carol suffered any magnified inconvenience or annoyance not
encountered by the other plaintiffs. Under this state of the record, we agree
with the defendants that the trial court’s decision to award the same
compensatory damages to Carol Miller as the court gave to the other
plaintiffs is not supported by the evidence. Based on Carol’s testimony that
she resided in Iowa approximately one-third of the time, the record only
supports loss-of-use-and-enjoyment damages equal to one-third the sum
awarded by the trial court. Therefore, we reverse the judgment in favor of
Carol Miller and remand this case for entry of a judgment in her favor that
includes reduced loss-of-use-and-enjoyment damages in the total amount of
$8640.
D. Identical cleanup expenses. The trial court awarded each plaintiff
$1670 per year for cleanup expenses. We conclude the record does not
support separate awards of $1670 per year in cleanup expenses to both
Dorothy Miller and Carol Miller, who were joint owners of the same
property. The trial court’s judgment resulted in double recovery of these
damages. We have already reversed the judgment in favor of Carol Miller due to insufficient evidentiary support for the award of loss-of-use-and-
enjoyment damages. Upon remand, the new judgment entered for Carol
Miller shall not include cleanup expenses.
We think the evidence is also insufficient to support an award of three
years of cleanup expenses to Holly Dwyer for the rental property. Debra
Flynn leased the rental property from the Dwyers for approximately two
years during the period in which defendants operated a nuisance. Flynn’s
testimony established that she was responsible for cleanup of the premises
during her tenancy. She testified she paid no rent for the first three months 14
she occupied the rental house in compensation for her cleanup of the
property, installation of some flooring, and inside painting. Thereafter, she
negotiated a reduction in her rental payments to compensate her for the
ongoing necessity of cleaning up the chaff and other debris emanating from
the defendants’ facilities. In assessing the damages sustained by Holly
Dwyer, the trial court awarded Holly $5010 for three years of cleanup
expenses. The record supports recovery of such expenses for only one year
because for two years the tenant was responsible for cleaning up the
premises. Accordingly, upon remand, the judgment for Holly Dwyer should
include only one year of cleanup expenses.
E. Proof of cleanup expenses. The defendants claim error regarding
the trial court’s computation of cleanup expenses due to the absence of any
documentary evidence of the costs of cleaning up the particulate matter
deposited on the plaintiffs’ properties. With some exceptions, the plaintiffs
testified they personally cleaned their homes, yards, vehicles and other
items of personal property, so there were no bills to document this work.
Those plaintiffs who hired persons to clean did not produce any
documentation of this expense. Nonetheless, the trial court concluded
based upon the testimony of the plaintiffs concerning the deposits on their property and the effort required to clean up such deposits that “the
expenses as outlined by Dorothy Miller for the extra cleanup required” were
“the most reasonable” and the “list best supported by the evidence.”
The trial court’s action was appropriate under the following
principles:
If the record is uncertain and speculative whether a party has sustained damages, the fact finder must deny recovery. But if the uncertainty is only in the amount of damages, a fact finder may allow recovery provided there is a reasonable basis in the evidence from which the fact finder can infer or approximate the damages. 15
Sun Valley Iowa Lake Ass'n v. Anderson, 551 N.W.2d 621, 641 (Iowa 1996)
(citations omitted). Applying this rule, we have held that a plaintiff’s
testimony as to the reasonable value of extra labor necessitated by the
defendant’s conduct is sufficient to support an award of damages. See
Doden v. Housh, 251 Iowa 1271, 1277-78, 105 N.W.2d 78, 82 (1960); Jaeger
v. Hackert, 241 Iowa 379, 390-91, 41 N.W.2d 42, 49 (1950). In Doden, we
stated the fact the plaintiffs testified “ ‘about’ so many hours of extra work
were performed rather than to an exact number from a memorandum [did]
not defeat recovery.” 251 Iowa at 1278, 105 N.W.2d at 82. We also found
no error in the allowance of the cost of telephone calls based on testimony
that the calls cost “[m]aybe $5.00 at the most.” Id.
Similarly, the plaintiffs’ testimony in this case established a
reasonable basis from which the court could approximate the damages
sustained by the plaintiffs. Each plaintiff testified to the approximate time
he or she spent cleaning fugitive debris from his or her property and
personal belongings. Each plaintiff also testified to the reasonable value of
his or her time. When a plaintiff had an out-of-pocket expense resulting
from the defendants’ nuisance, the witness testified to the approximate
amount of the expense and the witness’s payment of the charge. Cf. Pexa v. Auto Owners Ins. Co., 686 N.W.2d 150, 156 (Iowa 2004) (holding “reasonable
value of medical services can be shown by evidence of the amount paid for
such services”). This testimony, found credible by the trial court, is
sufficient to support the court’s award of damages for cleanup expenses,
with one exception we now address.
Our review of the evidence revealed one particular in which the trial
court’s award of cleanup damages is not supported by the record. Miller
included in her list of expenses a $500 cost for replanting flower beds. She
testified this sum represented the replacement cost of flowers for a six-year 16
period. Consequently, the annual expense was only $84. Because the trial
court included the full $500 amount in its $1670 per-year damage figure,
$416 of the annual cleanup expenses awarded by the court are not
supported by the evidence. Upon remand, the amount awarded to each
plaintiff for cleanup expenses must be reduced by $1248 ($416 per year for
three years).
V. Attorney Fees.
The trial court ordered the defendants to pay $4000 toward the
plaintiffs’ attorney fees, a ruling the defendants assign as error on appeal.
“Generally, attorney fees are recoverable only by statute or under a
contract.” Costello v. McFadden, 553 N.W.2d 607, 613 (Iowa 1996). Iowa’s
statutory nuisance law—Iowa Code chapter 657—makes no provision for
the recovery of attorney fees. See Iowa Code ch. 657. Nor is there any
contract between the parties authorizing an award of attorney fees.
There is “a rare exception” to the general rule against the recovery of
attorney fees when the defendant “ ‘has acted in bad faith, vexatiously,
wantonly, or for oppressive reasons.’ ” Hockenberg Equip. Co. v.
Hockenberg’s Equip. & Supply Co., 510 N.W.2d 153, 158 (Iowa 1993)
(citation omitted). There is no allegation of such conduct on the part of the defendants in this case, the trial court made no finding of such conduct,
and there is no evidence to support such a finding.
The award of attorney fees was error. The judgment for these fees is,
therefore, reversed.
VI. Summary and Disposition.
The trial court did not err in finding the defendants’ grain drying and
storage activities constituted a nuisance. The evidence supports the trial
court’s award of damages for loss of use and enjoyment of property in the
sum of $8640 per year to each plaintiff with the exception of plaintiff Carol 17
Miller. Because Carol Miller resided at the affected property only one-third
of the time and there was no evidence of any loss peculiar to her, her
damages for loss of use and enjoyment were necessarily one-third of the
damages sustained by the other plaintiffs.
With the exception of $416 of the $500 annual allowance for
replanting flower beds, the evidence supports the trial court’s determination
of the cleanup costs for the affected properties. The record does not,
however, support an award of cleanup expenses on the Dwyer rental
property for more than one year. Finally, the trial court erred in awarding
attorney fees to the plaintiffs.
Based on the errors in the trial court’s calculation of damages, we
reverse the judgment and remand for entry of new judgments in favor of the
plaintiffs in the following amounts: Carol Miller, $8640; Dorothy Miller,
$29,682; Robert Dwyer, $29,682; Holly Dwyer, $29,074; Linda Franck,
$29,682; and Debra Litts, $29,682. The recovery of attorney fees shall be
eliminated entirely from the judgment.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
DIRECTIONS.