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Garrison v. Dixon (3/30/01) sp-5378
Garrison v. Dixon (3/30/01) sp-5378
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
LINDA S. and DAVID A. )
GARRISON, and ALL ALASKA )
REALESTATE INVESTMENTS, INC., )
) Supreme Court No. S-8916
Appellants and ) /8975/9075
Cross-Appellees, )
) Superior Court No.
v. ) 3AN-96-1393 CI
)
DIXIE DIXON, MARK KORTING and )
RE/MAX PROPERTIES, ) O P I N I O N
)
Appellees and ) [No. 5378 - March 30, 2001]
Cross-Appellants. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: Julia B. Bockmon, Robertson,
Monagle & Eastaugh, Anchorage, for Appellants/
Cross-Appellees. Jon T. Givens, Bankston & McCollum, Anchorage for
Appellees/Cross-Appellants.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Advertising placed by real estate agent Dixie Dixon led
Linda and David Garrison and their corporation to file suit against
Dixon and her employer, Re/Max. [Fn. 1] [Exc. 1-24] Dixon and
Re/Max ultimately prevailed in all respects, and the superior court
awarded full attorney's fees and costs to them because it found
that the Garrisons and their firm prosecuted the case in bad faith
and to gain an advantage over a business competitor. Because we
conclude that certain of the Garrisons' claims are moot and the
superior court did not abuse its discretion with regard to the
others, we affirm the decisions of the superior court.
II. FACTS AND PROCEEDINGS
Dixie Dixon, a Re/Max real estate agent in Anchorage, ran
two advertisements in 1995 in which she held herself out as a
"buyer's agent." David and Linda Garrison, shareholders and
officers of All Alaska Realestate Investments (AARI), a business
competitor of Re/Max, took issue with those ads.
AARI was the only exclusive real estate buyer's agency in
Alaska. Re/Max, by contrast, represented both buyers and sellers
of real estate in its real estate brokerage business. Re/Max was
the seller's agent for approximately twenty-two percent of the real
estate listed in Anchorage in 1995. However, since Re/Max agents
like Dixon also routinely represented real estate buyers, the two
corporations were business competitors.
Shortly after Dixon ran the October 1995 ad that the
Garrisons thought was improper, Linda Garrison sent a memorandum to
Dixon claiming that Dixon's ads were misleading and in violation of
the ethical standards of a professional real estate agent. Several
days later the Garrisons' attorney sent a follow-up letter to Dixon
advising her that her ad might be a violation of the Alaska Unfair
Trade Practices and Consumer Protection Act. [Fn. 2] Specifically,
the Garrisons objected to Dixon's ads referring to herself as a
"buyer's agent" because they contended she could not be a buyer's
agent in transactions in which Re/Max also represented the seller.
The Garrisons noted that when they contacted other real estate
agents with the same concern, those agents had changed their ads as
the Garrisons requested or placed small disclaimers regarding in-
house listings in the ads. Dixon did not.
Dixon changed her advertisements, but not in the way the
Garrisons wanted. Her next ad, entitled "Beware of Buyers Agency,"
warned readers of the "difference between a buyers agent and a
buyers agency," and criticized the latter. The following ad run by
Dixon was titled "Be Aware of Buyers Agency" and again contained
language favorably comparing buyer's agents to buyer's agencies.
These ads prompted the Garrisons to file suit against
Dixon, Re/Max, and several other Re/Max agents and supervisors
under the Alaska Unfair Trade Practices and Consumer Protection
Act. [Fn. 3]
After more than two and one-half years of pretrial motion
practice, the Garrisons moved to dismiss with prejudice their
claims as individuals because AARI was the real party in interest.
In their motion to dismiss, the Garrisons admitted that they "were
never real parties in interest." The trial court dismissed the
Garrisons' individual claims, and then granted Dixon's motion for
a Civil Rule 54(b) entry of final judgment against the Garrisons.
The court awarded attorney's fees against the Garrisons in the
amount of $17,625.00 -- fifty percent of the actual attorney's fees
incurred by Dixon to that point.
About three months later, the court granted summary
judgment to Dixon and against AARI on the remaining issues in the
case. Then, finding that the case was litigated in bad faith for
the purpose of harassing a business competitor, the court awarded
full, actual attorney's fees against AARI.
The Garrisons and AARI now appeal.
III. STANDARDS OF REVIEW
We review for abuse of discretion both a grant of final
judgment under Rule 54(b) [Fn. 4] and an award of attorney's fees
and costs. [Fn. 5] We will find an abuse of discretion upon a
showing that an award is "arbitrary, capricious, or manifestly
unreasonable, or that it stemmed from an improper motive." [Fn. 6]
We review factual findings under the clearly erroneous standard.
[Fn. 7]
IV. DISCUSSION
A. Whether the Superior Court Erred in Entering Civil Rule
54(b) Final Judgment Against the Garrisons Is Moot.
The Garrisons argue that the superior court abused its
discretion by entering final judgment against them under Civil Rule
54(b) [Fn. 8] about three months before the final resolution of the
claims brought by AARI. In particular, the Garrisons note that the
trial court did not follow Rule 54(b)'s explicit requirement that
it make "an express determination that there is no just reason for
delay" before it directed entry of final judgment and awarded
attorney's fees.
The Garrisons' argument is moot because the superior
court entered a true final judgment in the case long before the
Garrisons filed their brief in this court. A claim is moot "if the
party bringing the action would not be entitled to any relief even
if [it] prevail[s]." [Fn. 9] Even if we were to agree that the
form of the certification lacked the required factual finding,
remanding for a correction of the order would be pointless because
the superior court has already ruled on all of the issues and
entered what is indisputably a final judgment.
In addition, the Garrisons have not even argued, nor do
we perceive, that they have been prejudiced by this possible error.
The superior court entered the true final judgment only about three
months after the Rule 54(b) judgment against the Garrisons and, as
noted, long before they filed their appellate brief. No issue
bearing on the underlying merits of the original controversy is
before us on appeal; the Garrisons voluntarily sought and obtained
dismissal of their individual claims with prejudice, and no appeal
has been taken from the superior court's grant of summary judgment
on the claims brought by AARI.
Given the lack of substantive issues on appeal, the only
consequence of a possibly erroneous Rule 54(b) final judgment is a
premature appeal. But even this is not prejudicial because "if a
notice of appeal is filed after the announcement of a decision but
before the date shown in the clerk's certificate of distribution on
the judgment, the notice of appeal shall be treated as filed on the
date shown in the clerk's certificate of distribution on the
judgment." [Fn. 10] A premature appeal "should be held in abeyance
until it is timely, or it should be dismissed with notice that it
may be refiled when it becomes timely." [Fn. 11] Because the
superior court entered the true final judgment just three months
after it entered the Rule 54(b) final judgment, the Garrisons'
appeal was completely unaffected.
Accordingly, even if the trial court's entry of judgment
pursuant to Rule 54(b) was procedurally flawed, there is no harm to
be undone. The matter is moot, and we decline to reach it for that
reason.
B. The Superior Court Did Not Err in Awarding Full
Attorney's Fees.
The trial court awarded attorney's fees against the
Garrisons, when their individual claims were dismissed, and against
AARI, when its case was finally dismissed. Although we conclude
that the theory advanced by Dixon for the first award, a theory
apparently adopted by the court, was flawed, we nonetheless affirm
because any error was harmless. We also conclude that the superior
court did not err in awarding fees against AARI.
1. Although Civil Rule 82 does not allow for awards of
"several" attorney's fees against multiple non-prevailing parties,
as Dixon suggested, the award itself was not an abuse of
discretion.
When the Garrisons successfully moved for dismissal of
their individual claims after two and one-half years of litigation,
Dixon sought an award of enhanced attorney's fees based on several
factors: the complexity of the case, the fact that it had been
prepared for trial, and the claim that the Garrisons' case was not
reasonable and was brought in bad faith. Dixon also reasoned that
because two of the plaintiffs were severally liable for twenty
percent of her fees each, an award of fifty percent of the fees
incurred to that point was only a slight enhancement. Dixon asked
for $17,625 -- half of the total fees she had incurred. By signing
Dixon's proposed order, which cross-referenced Dixon's memorandum
supporting the Motion for Attorney's Fees, the court adopted all of
the arguments put forth by Dixon. But some of those arguments are
flawed.
At one point in the memorandum, Dixon argued:
Pursuant to Rule 82(b)(2), defendants would be
entitled to an award of 20 percent of actual attorneys' fees
necessarily incurred against David Garrison and 20 percent of its
fees from Linda Garrison. Thus, under Rule 82(b)(2), defendants
would be entitled to a, several, total judgment of 40 percent of
its fees.
This argument is wrong. The text of Rule 82(b)(2) makes
no mention of a "several" liability scheme that is dependent upon
the number of non-prevailing parties. [Fn. 12] Instead, a Rule
82(b)(2) award is based on the amount of the prevailing party's (or
parties') actual reasonable attorney's fees. [Fn. 13] Under the
rule, the number of non-prevailing parties is inconsequential. Yet
under Dixon's approach, a defendant who before trial defeated a
claim brought by five plaintiffs would be entitled to recover 100
percent of its attorney's fees under Rule 82(b)(2). Accordingly,
we reject this interpretation of Rule 82(b)(2) as a basis for the
enhancement of attorney's fees.
Our rejection of Dixon's theory of "several" liability
for attorney's fees is not determinative of this matter, however,
for Dixon sought and the court awarded enhanced fees under the
separate rationales of Civil Rule 82(b)(3) [Fn. 14] and the Unfair
Trade Practices Act. [Fn. 15] While Dixon made several arguments
to justify the award of enhanced fees, which were explicitly
adopted by the trial court, we find sufficient the arguments (1)
that the Garrisons had no individual claims but nonetheless filed
in bad faith; (2) that the Garrisons persevered for over two and
one-half years before seeking dismissal as plaintiffs, causing
Dixon to undertake the additional expense of preparing for a trial
set for January 1998, before the Garrisons filed their motion to
dismiss; and (3) that an award of full reasonable fees to Dixon was
appropriate under the Unfair Trade Practices Act. [Fn. 16] These
factors are sufficient to justify the trial court's decision to
enhance the attorney's fees awarded against the Garrisons.
2. The Superior Court Did Not Err in Awarding
Attorney's Fees Against AARI.
The superior court ordered AARI to fully compensate Dixon
for the portion of the attorney's fees that remained after the
partial award against the Garrisons, and for those fees and costs
incurred after the Garrisons were dismissed as plaintiffs. The
court relied on both the Alaska Unfair Trade Practices Act and
Civil Rule 82(b), noting that part of the action was brought under
the former and part was brought through "counts for which attorney
fees would be determined pursuant to Civil Rule 82(b)." AARI now
argues that this award of full fees and costs was an abuse of
discretion because it was excessive and unjustified. AARI's
primary argument, based on Civil Rule 82, is that full, actual
attorney's fees may not be properly awarded absent an explicit and
record-supported finding of bad faith or vexatious conduct.
The Garrisons and AARI based four of their claims on the
common law and eleven on the Unfair Trade Practices Act. In cases
involving mixed causes of action like these, the superior court has
discretion to look to both Rule 82(b) and the Unfair Trade
Practices Act in deciding attorney's fees. [Fn. 17]
a. Attorney's fees under Civil Rule 82
We will affirm an award of full, actual attorney's fees
under Rule 82 where the superior court finds that the losing party
has engaged in vexatious or bad faith litigation. [Fn. 18] The
superior court here made such a finding when it stated that
"vexatious bad conduct has been found." Indeed, the trial court
concluded that "[o]ne cannot look at the record before the court
and conclude that this action was brought for any purpose but to
harass the defendants." Accordingly, we must affirm the award of
full attorney's fees unless the trial court's finding of bad faith
is clearly erroneous.
We consider this issue both as to the filing of the case
and the prosecution of it. Looking first to the filing of the
case, we consider both the form of the action and the support for
it. As to the form of the action, the claims themselves -- as
distinguished from the evidence ultimately adduced in support of
them -- met the minimum standards of the statute under which they
were brought. Alaska Statute 45.50.471(b) defines practices that
constitute unfair methods of competition and unfair or deceptive
trade practices; the Garrisons relied upon five provisions of
subsection .471(b) in their complaint. [Fn. 19]
The Garrisons' allegations met the minimum standard for
stating a claim that we recently set out in Odom v. Fairbanks
Memorial Hospital. [Fn. 20] In Odom, we held that "[a]n act or
practice is deceptive or unfair if it has the capacity or tendency
to deceive." [Fn. 21] The Garrisons' allegations theoretically met
this threshold. For example, the Garrisons alleged that Dixon had
engaged in misleading and deceptive advertising as prohibited by AS
45.50.471(b)(11), that Dixon's "conduct has created a likelihood of
confusion and misunderstanding, and has mislead, deceived and
damaged prospective buyers and the plaintiffs, in connection with
the advertisement of defendants' services," and that Dixon's "ads
were . . . misleading and deceptive . . . because the exact
opposite of what was claimed in the ads was true." In alleging
that Dixon's ads had the capacity to deceive or confuse a buyer in
connection with the advertisement of services, as prohibited by AS
45.50.471(b)(11), the complaint was sufficient to defeat a motion
to dismiss for failure to state a claim.
But a review of the factual support for these claims
provides a strong basis for the superior court's finding that the
action was "frivolous and brought to harass the defendants." The
Garrisons and AARI never produced credible evidence that the
central theme of the ads -- that dual agency brokers were superior
to buyer's agency brokers -- was unfair or deceptive. They did not
produce even one person who had read the ads and could testify to
any confusion. They did not show that the ads -- which did not
mention either the Garrisons or AARI -- would be read by anyone as
referring to them. They produced no evidence that they had
suffered any monetary damage.
Moreover, consideration of the second issue -- how the
Garrisons and AARI prosecuted their action -- strongly supports the
trial court's factual findings that the case was litigated in bad
faith. The Garrisons litigated vigorously for two and one-half
years before attempting to leave the lawsuit as individual
plaintiffs, ultimately conceding that they had no individual
claims. Then AARI's remaining claims were all dismissed, on
summary judgment, because plaintiffs could not even show that
material facts were in dispute. [Fn. 22] We have previously upheld
an award of full attorney's fees against plaintiffs whose claim was
found to be brought "merely to harass and delay," [Fn. 23] and the
record supports a similar conclusion here. Moreover, as we found
above, the superior court noted correctly that the parties were
business competitors, found that "the purpose of the action was to
harass a competitor," and concluded that "less than full attorney's
fees would encourage the use of civil prosecution to chill active
competition in various industries." We cannot say that these
findings are clearly erroneous. Accordingly, the superior court
did not abuse its discretion in awarding full, actual attorney's
fees under Rule 82.
b. Attorney's fees under AS 45.50.531(g).
At the time of trial, AS 45.50.531(g) provided, in
relevant part, that "the court may award the prevailing party all
or a portion of the actual costs and attorney fees incurred by the
party." "[T]he term 'may' generally denotes permissive or
discretionary authority . . . ." [Fn. 24] Thus, under AS
45.50.531(g), the superior court had discretion to award full costs
and attorney's fees.
Looking at the same facts analyzed above under Rule 82,
we conclude that the superior court did not abuse its discretion in
awarding full, actual attorney's fees under the Unfair Trade
Practices Act. Accordingly, we affirm the trial court's award of
attorney's fees against AARI.
C. The Superior Court Did Not Abuse Its Discretion in
Awarding Actual Costs.
The superior court issued several orders with regard to
the taxation of costs at the end of the proceedings of this case.
The Garrisons and AARI now argue that these orders are inconsistent
and arbitrary and that the amount of costs is at times
duplicatively assessed. We address each of these arguments in
turn.
First, AARI argues that it was improper to assess joint
and several liability against it for costs that were previously
taxed against, and fully satisfied by, the Garrisons. This was
apparently done in anticipation that the costs assessed against the
Garrisons might be overturned on appeal. We need not address this
matter further, beyond a direction to the superior court to strike
that portion of the judgment holding AARI liable for costs
previously taxed against the Garrisons, because the costs have been
paid in full by the Garrisons and have not been appealed.
Second, the Garrisons and AARI argue that the trial
court's order that added AARI to the order of final judgment
entered against the Garrisons under Rule 54(b) was improper. They
argue that this is inconsistent with the entry of a Rule 54(b)
judgment. Also, they note that it would make AARI jointly and
severally liable for the attorney's fees award against the
Garrisons. Again, apart from a direction that AARI be stricken
from the judgment against the Garrisons, we need not address the
matter because the Garrisons satisfied the Rule 54(b) judgment and
the Garrisons have not challenged the propriety of the trial court
dismissing their voluntarily dismissed claims.
Finally, the parties dispute whether under former AS
45.50.531(g), in effect at the time of trial, full costs could be
assessed for expert witnesses who did not testify at trial. [Fn.
25] As noted previously, the trial court had discretion to award
"the prevailing party all or a portion of the actual costs." [Fn.
26] Given our acceptance of the superior court's finding that this
action was frivolous, the trial court did not abuse its discretion
by awarding actual costs.
V. CONCLUSION
The form of the Civil Rule 54(b) judgment is moot because
the superior court entered the true final judgment only three
months later and the Garrisons were not prejudiced by any possible
error. The superior court did not abuse its discretion in awarding
full, actual attorney's fees and actual costs given its well-
supported finding that the action was frivolous. Accordingly, we
AFFIRM. [Fn. 27]
FOOTNOTES
Footnote 1:
For simplicity, we will at times refer to the defendants
collectively as "Dixon" throughout this opinion.
Footnote 2:
AS 45.50.471-.561.
Footnote 3:
Id.
Footnote 4:
See Dinsmore-Poff v. Alford, 972 P.2d 978, 980 (Alaska 1999);
see also Adkinson v. Rossi Arms Co., 659 P.2d 1236, 1238 n.6
(Alaska 1983).
Footnote 5:
See Aloha Lumber Corp. v. University of Alaska, 994 P.2d 991,
1003 (Alaska 1999).
Footnote 6:
Id. (quoting Alyeska Pipeline Serv. Co. v. Beadles, 731 P.2d
572, 575 (Alaska 1987)).
Footnote 7:
See Fairbanks Fire Fighters Ass'n, Local 1324, Int'l Ass'n of
Fire Fighters v. City of Fairbanks, 934 P.2d 759, 761 (Alaska
1997).
Footnote 8:
Civil Rule 54(b) provides:
(b) Judgment Upon Multiple Claims or Involving
Multiple Parties. When more than one claim for relief is presented
in an action, . . . or when multiple parties are involved, the
court may direct the entry of a final judgment as to one or more
but fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon an
express direction for the entry of judgment. In the absence of
such determination and direction, any order or other form of
decision, however designated, which adjudicates fewer than all of
the claims or the rights and liabilities of fewer than all the
parties shall not terminate the action as to any of the claims or
parties, and the order or other form of decision is subject to
revision at any time before the entry of judgment adjudicating all
the claims and the rights and liabilities of all the parties.
(Emphasis added.)
Footnote 9:
Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998) (quoting
O'Callaghan v. State, 920 P.2d 1387, 1388 (Alaska 1996)).
Footnote 10:
Alaska R. App. P. 204(a)(6).
Footnote 11:
Egemo v. Egemo Constr. Co., 998 P.2d 434, 441 (Alaska 2000).
Footnote 12:
Alaska R. Civ. P. 82(b)(2) provides:
(2) In cases in which the prevailing party
recovers no money judgment, the court shall award the prevailing
party in a case which goes to trial 30 percent of the prevailing
party's reasonable actual attorney's fees which were necessarily
incurred, and shall award the prevailing party in a case resolved
without trial 20 percent of its actual attorney's fees which were
necessarily incurred. The actual fees shall include fees for legal
work customarily performed by an attorney but which was delegated
to and performed by an investigator, paralegal or law clerk.
(Emphasis added.)
Footnote 13:
See id.
Footnote 14:
Alaska R. Civ. P. 82(b)(3) provides:
The court may vary an attorney's fee
award calculated under subparagraph (b)(1) or (2) of this rule if,
upon consideration of the factors listed below, the court
determines a variation is warranted:
(A) the complexity of the litigation;
(B) the length of trial;
(C) the reasonableness of the attorneys'
hourly rates and the number of hours expended;
(D) the reasonableness of the number of
attorneys used;
(E) the attorneys' efforts to minimize
fees;
(F) the reasonableness of the claims and
defenses pursued by each side;
(G) vexatious or bad faith conduct;
(H) the relationship between the amount
of work performed and the significance of the matters at stake;
(I) the extent to which a given fee award
may be so onerous to the non-prevailing party that it would deter
similarly situated litigants from the voluntary use of the courts;
(J) the extent to which the fees incurred
by the prevailing party suggest that they had been influenced by
considerations apart from the case at bar, such as a desire to
discourage claims by others against the prevailing party or its
insurer; and
(K) other equitable factors deemed
relevant.
If the court varies an award, the court shall
explain the reasons for the variation.
Footnote 15:
Dixon actually argued that she was entitled to fees under the
1996 version of the statute, which allowed for "all or a portion of
actual . . . attorney fees." Former AS 45.50.531(g).
Footnote 16:
See infra Part IV.B.2.b.
Footnote 17:
Cf. Bliss v. Bobich, 971 P.2d 141, 148 (Alaska 1998) (holding
that "cases involving mixed causes of action, some governed by Rule
82's attorney's fees provisions and some by [statute]" fall under
trial court's discretion for purposes of determining prevailing
party).
Footnote 18:
See Marathon Oil Co. v. ARCO Alaska, Inc., 972 P.2d 595, 605
(Alaska 1999) (holding that award of "substantially 'full
attorney's fees is manifestly unreasonable in the absence of bad
faith or vexatious conduct by the non-prevailing party.'" (quoting
Alaska R. Civ. P. 82, note to Supreme Court Order 1118am)); Keen v.
Ruddy, 784 P.2d 653, 657 (Alaska 1989) (holding that full
attorney's fees were properly awarded when losing party acted in
bad faith by filing meritless claims to harass defendant).
Footnote 19:
AS 45.50.471(b) provides, in relevant part, that
[t]he terms "unfair methods of competition"
and "unfair or deceptive acts or practices" include, but are not
limited to, the following acts:
. . . .
(4) representing that goods or services
have sponsorship, approval, characteristics, ingredients, uses,
benefits, or quantities that they do not have or that a person has
a sponsorship, approval, status, affiliation, or connection that
the person does not have;
. . .
(6) representing that goods or services
are of a particular standard, quality, or grade, or that goods are
of a particular style or model, if they are of another;
(7) disparaging the goods, services, or
business of another by false or misleading representation of fact;
(8) advertising goods or services with
intent not to sell them as advertised;
. . . .
(11) engaging in any other conduct
creating a likelihood of confusion or of misunderstanding and which
misleads, deceives or damages a buyer or a competitor in connection
with the sale or advertisement of goods or services.
Footnote 20:
999 P.2d 123 (Alaska 2000).
Footnote 21:
Id. at 132 (internal quotation marks omitted) (quoting State
v. O'Neill Investigations, Inc., 609 P.2d 520, 534-35 (Alaska
1980)).
Footnote 22:
Specifically, the claims ultimately failed on summary judgment
because plaintiffs could show no monetary losses, as required for
a private action under AS 45.50.531(a). That statute provides, in
relevant part:
A person who suffers an ascertainable loss of
money or property as a result of another person's act or practice
declared unlawful by AS 45.50.471 may bring a civil action.
Footnote 23:
See Keen, 784 P.2d at 657.
Footnote 24:
Gerber v. Juneau Bartlett Memorial Hosp., 2 P.3d 74, 76
(Alaska 2000); see also Rutter v. State, 963 P.2d 1007, 1008
(Alaska 1998); State, Dep't of Transp. & Pub. Facilities v.
Sanders, 944 P.2d 453, 457-58 (Alaska 1997).
Footnote 25:
In 1998 the legislature superceded former AS 45.50.531(g) with
AS 45.50.537. Neither party argues that the new section .537 might
apply retroactively in this case.
Footnote 26:
Former AS 45.50.531(g).
Footnote 27:
As noted in Part IV.C., the superior court is directed to
strike AARI from the Rule 54(b) judgment against the Garrisons, for
both costs and attorney's fees.
