                    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.
