
USCA1 Opinion

	




          September 27, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT          No. 92-2293                              WHITNEY BROS. CO., ET AL.,                                Plaintiffs, Appellees,                                          v.                        DAVID C. SPRAFKIN AND JOAN BARENHOLTZ,                 TRUSTEES OF THE BERNARD M. BARENHOLTZ TRUST, ET AL.,                               Defendants, Appellants.                                 ____________________                                     ERRATA SHEET               The  opinion of this Court  issued on September  9, 1993, is          amended as follows:               Page   3,   second  complete   paragraph,  line   1,  delete          "defendant"  and insert  "Bernard Barenholtz's  (and defendants')          attorney, Samuel M."               Page 3, second complete  paragraph, line 2, delete "Bernard"          and insert "Mr."               Page 3, last line, substitute "first" for "third."               Page 13,  line 1-2, delete ", one of whom, ironically, was a          director of Whitney Brothers,".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-2293                              WHITNEY BROS. CO., ET AL.,                                Plaintiffs, Appellees,                                          v.                        DAVID C. SPRAFKIN AND JOAN BARENHOLTZ,                 TRUSTEES OF THE BERNARD M. BARENHOLTZ TRUST, ET AL.                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                     [Hon. Norman H. Stahl, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                    Circuit Judges.                                    ______________                                _____________________               Richard B.  Couser, with whom  James P. Bassett,  Cordell A.               __________________             ________________   __________          Johnston, Orr and  Reno, P.A.,  and Samuel M.  Sprafkin, were  on          ________  ___________________       ___________________          brief for appellants.               James R. Muirhead, with whom Peter D. Anderson,  and McLane,               _________________            _________________       _______          Graf,  Raulerson & Middleton,  Professional Association,  were on          _______________________________________________________          brief for appellees.                                 ____________________                                  September 9, 1993                                 ____________________                    TORRUELLA,  Circuit  Judge.   Plaintiffs/appellees  are                                ______________          Whitney  Brothers Company  ("Whitney  Brothers")  and Griffin  M.          Stabler, Whitney Brothers' president, chief executive officer and          director.   Defendants/appellants,  David C.  Sprafkin  and  Joan          Barenholtz, are the trustees of the Bernard  M. Barenholtz Trust,          Whitney Brothers'  majority  shareholder.    Plaintiffs  sued  to          compel  defendants  to  sell  their  stock  in  Whitney  Brothers          pursuant to a written buy/sell contract.                    After  two  years  of litigation,  the  district  court          ordered the sale  at defendants' asking price.  In the order, the          district court also held  that:  (1) plaintiffs were  entitled to          prepay  the promissory note bearing the  sale price; (2) interest          would begin to accrue  when plaintiffs execute the note;  and (3)          plaintiffs were entitled to attorneys' fees.  Defendants appealed          only  on  the  issues of  prepayment  and  interest.   Plaintiffs          subsequently moved for attorneys' fees for this appeal.  W      e          reverse the district court's judgment with respect to prepayment,          affirm  with  respect  to  the  accrual  of  interest,  and  deny          plaintiffs' motion for attorneys' fees on this appeal.                                      BACKGROUND                                      BACKGROUND                                      __________                    Whitney Brothers  is a  New Hampshire corporation  that          produces wooden learning materials.   Bernard Barenholtz acquired          62.6% of the  company's outstanding  shares in 1969.   Ten  years          later, he transferred these  shares to the Bernard M.  Barenholtz          Trust  (the  "Trust")  and  named  himself  and  defendant  David          Sprafkin trustees.   Plaintiff Griffin Stabler owns 32.7%  of the                                         -2-          shares, and his son, David Stabler, owns the remaining 4.7%.                    On January  27, 1987,  Whitney Brothers,  the trustees,          and Griffin Stabler executed a written buy/sell agreement.  Under          the  agreement, Whitney  Brothers  would buy  the Trust's  shares          within ninety days  of the  death of Bernard  Barenholtz and  buy          Griffin Stabler's  shares within ninety days  of Stabler's death.          To  determine  the  purchase price,  the  parties  would plug  an          agreed-upon appraisal  into a  formula to determine  the purchase          price.   If  the parties could  not agree  on an  appraisal, they          would each get their own and  plug the average into the  formula.          The contract also provided for payment by a promissory note, with          monthly installments  over ten years  at 10% interest  per annum.          The  agreement did not mention whether prepayment of the note was          permissible.                    On   February  3,   1987,  Bernard   Barenholtz's  (and          defendants')  attorney, Samuel  M. Sprafkin  wrote a  letter (the          "February 3  letter") advising  Mr. Barenholtz that:   (1)  David          Stabler, as  a shareholder, should  consent to the  contract; (2)          the promissory note should be prepayable without penalty; and (3)          Article 4 of the contract should have an additional provision not          relevant to  this appeal.   Plaintiffs contend, and  the district          court found,  that after Bernard Barenholtz  received the letter,          the   parties  orally   agreed  to   the  prepayment   provision.          Barenholtz  then placed  the letter  in a  file with  the written          contract and David  Stabler signed  an addendum  to the  contract          pursuant to Sprafkin's first suggestion.                                         -3-                    When Bernard  Barenholtz died,  on August 5,  1989, his          daughter,   defendant  Joan   Barenholtz,  assumed   his  trustee          position.  Whitney Bros. Co. v. Sprafkin, No. 90-054-S, at  4 (D.                     _________________    ________          N.H.  filed Sept. 30, 1992).  A few days later, plaintiff Stabler          and defendant  Sprafkin discussed the  contract's required  stock          sale.  Id.  One of the parties asked E.F. Greene to update a past                 ___          appraisal of Whitney Brothers.1  Id.   Sprafkin rejected Greene's                                           ___          appraisal; Whitney  Brothers  accepted  it.    Id.    Relying  on                                                         ___          Greene's  appraisal, Whitney  Brothers tendered  to defendants  a          prepayable  promissory note  for  $1,178,000 for  the stock  (the          "September 1989 Tender").2  Id. at 4-5.                                      ___                    Instead of responding immediately, defendants secured a          significantly  higher appraisal from Alfred  Schimmel.  Id.  They                                                                  ___          then  rejected   Whitney  Brothers'  tender  by  letter,  without          mentioning the note's prepayment clause.  When Stabler learned of          defendants' appraisal, he rejected it as too high.                    Ultimately, plaintiffs sued  to compel the transfer  of          the stock.   Ten months later,  on December 13, 1990,  as part of          their cross-motion  for summary judgment,  plaintiffs offered  to          tender  either $1,349,3433  immediately  or, if  the court  found          that the  agreement did not  permit prepayment, that  amount over                                        ____________________          1  The parties disagree over who requested the update.          2  Defendants contend  that Stabler made the tender  knowing that          they  did not accept Greene's appraisal and planned to obtain one          of their own.          3  This was  the price calculated under the  contract by plugging          the average of the two appraisals into the formula.                                         -4-          ten  years   at  10%  interest  (the   "December  1990  Tender").          Defendants again rejected the tender.  They now contend that they          rejected it because:   (1) it omitted $145,000 worth  of interest          that  had accrued since November 3, 1989, 90 days after the death          of Bernard Barenholtz; and  (2) it was invalid because  the first          option  permitted   prepayment,  and   the   second  option   was          conditioned upon a court judgment that prepayment was prohibited.                    In response to the  cross-motions for summary judgment,          the  district court:  (1) ordered defendants to sell their stock;          (2) found that plaintiffs  were not entitled to prepay  the note;          and  (3) decided  to hold  a trial  on the  issue of  the stock's          price.   See Whitney Bros.  Co. v. Sprafkin,  No. 90-54-S (D.N.H.                   ______________________    ________          filed June 5, 1991).                    After the trial, the court issued an order in which it:          (1) required  plaintiffs to  pay $1,349,343  for  the stock;  (2)          reconsidered  and reversed,  sua sponte,  its previous  order and                                       __________          ruled that plaintiffs could  pay for the stock with  a prepayable          promissory  note; (3) ruled that interest on the note would begin          to accrue when  it was executed, and not before;  and (4) awarded          attorneys'  fees to  plaintiffs  based on  defendants' bad  faith          conduct  of the litigation.   See Whitney Bros.  Co. v. Sprafkin,                                        ___ __________________    ________          No. 90-054-S  (D. N.H.  filed Sept.  30, 1992).   When  the court          entered judgment on the  order the following day, the  court also          awarded  prejudgment interest  pursuant to  N.H. Rev.  Stat. Ann.            524:1-b,  "if appropriate."    Whitney Bros.  Co. v.  Sprafkin,                       ______________      __________________     ________          No. 1:90-cv-0054-S (D.N.H. filed Oct. 1, 1992) (emphasis added).                                         -5-                    Defendants  appeal  on  only   two  issues:    (1)  the          prepayability of the note;  and (2) the date from  which interest          accrues.   In  addition, plaintiffs  request attorneys'  fees for          this appeal.                                      DISCUSSION                                      DISCUSSION                                      __________          I.  PREPAYABILITY          I.  PREPAYABILITY                    Article 4 of the buy/sell contract provides:                      The purchase  price .  . . shall  be paid                                                 ______________                      with a negotiable  promissory note  which                                                          _____                      shall  provide  for  the payment  of  the                      ___________________                      purchase price in 10 years  with interest                      at the rate  of 10% per annum,  principal                      and  interest  payable   in  120   equal,                      consecutive monthly payments.          (emphasis added).   The agreement nowhere  mentions prepayment of          the proposed promissory note.                    At  trial,  the  district  court  conditionally allowed          evidence of a subsequent  oral agreement permitting prepayment of          the note.  Ultimately,  the court admitted the  evidence, finding          that  it was not  precluded by the  parol evidence rule.   In the          same  ruling, the court found that the parties indeed entered the          alleged oral agreement.                    The court erred in  finding the asserted oral agreement          binding  on the  parties.   Article  5  of the  written  buy/sell          contract prohibits  the parties from orally  altering or amending          the written contract.4   Under  N.H. Rev. Stat.  Ann.    382-A:2-                                        ____________________          4  Article 5 provides:                      This agreement may be altered, amended or                      terminated by a writing signed by all  of                      the shareholders except David G. Stabler,                                         -6-          209(2),  "[a] signed  agreement  which  excludes modification  or          rescission  except  by  a  signed  writing  cannot  be  otherwise          modified or  rescinded. . . ."   While an  attempted modification          can constitute a waiver,  that waiver can be retracted  absent "a          material  change of position in  reliance on that  waiver."  N.H.          Rev.  Stat. Ann.    382-A:  2-209(4) and  (5).   Here, plaintiffs          allege  no  alteration  of  their  position   in  reliance  on  a          prepayment provision.   Thus, we  can find no  binding waiver  of                                        ____________________                      and the Corporation.             Although the  Article does not  state in mandatory  terms that          alterations  must  be in  writing,  defendants  argue that  since                       ____          agreements  may  always be  altered by  a  writing signed  by the          parties,  the Article  must have  been  intended to  exclude oral          modifications.   While we do not foreclose other purposes of this          clause, we agree that the purport  of the provision is to require          that alterations be in writing.             In addition,  plaintiffs never countered  defendants' argument          that the Article precludes oral alterations and amendments to the          contract.   In response to this  argument, plaintiffs, apparently          characterizing the clause as  an integration clause, argued that:          (1) such a clause did not mandate a finding that the contract was          totally integrated; (2) the contract was not a total integration;          (3) the  February  3 letter  "contemplated  an  extra-contractual          understanding about  a  term of  the  agreement," rather  than  a          variation;  and   (4)  therefore,   since  the  court   found  an          independent  agreement,  the  court   could  find  the  note  was          prepayable.  This argument ignores defendants' assertion that the          clause prohibits oral alterations of the contract.             At  oral  argument,  when  questioned  about the  prohibition,          plaintiffs' counsel simply argued that the oral agreement was not          a modification  because the contract did  not mention prepayment.          Counsel  did state  that  Article 5  "supposedly" precludes  oral                                                __________          modification,   suggesting  a   possible  disagreement   on  that          interpretation.   However, since  defendants raised Article  5 at          the trial level, see Defendants' Objections to Plaintiffs' Cross-                           ___ ____________________________________________          Motion for Summary Judgment  at 11; Defendants' Post  Trial Brief          ___________________________         _____________________________          at 44-45,  and on appeal, Appellants' Brief  at 17-19, 21 n.7, we                                    _________________          construe plaintiffs' failure  to argue that the Article  does not          prohibit oral alteration as a concession that it does.                                         -7-          Article 5 by defendants.5  Plaintiffs  contend   that  since  the          written  contract says  nothing  about  prepayment, a  subsequent          agreement to  allow prepayment does not  constitute an alteration          or  amendment under  Article  5.   Rather,  they argue  that  the          agreement was  independent of the written  contract.  Apparently,          the district court agreed.  Although the court did not explicitly          address Article 5,  it did conclude  that a prepayment  provision          "does not,  by its  terms, vary  or contradict  the terms  of the          Agreement. . . ."   Whitney  Bros. Co.,  No. 90-054-S  (Sept. 30,                              __________________          1992), at 13.6                    We  review this  determination  de novo  as it  centers                                                    _______          around  the  interpretation  of   the  language  of  the  written          contract.  See  In Re SPM  Mfg. Corp., 984  F.2d 1305, 1311  (1st                     ___  _____________________          Cir. 1993)  (de novo review of  bankruptcy court's interpretation                       _______          of unambiguous  contract); Hermes Automation Technology,  Inc. v.                                     ___________________________________          Hyundai  Elec.  Ind.,   915  F.2d  739,   745  (1st  Cir.   1990)          ____________________          (interpretation  of  plain  language  of  release  agreement  was          question of law warranting de novo review).                                     _______                    On review, we find that the district court erred in its                                        ____________________          5  We apply    2-209 by analogy.  Although  that section does not          apply  to the sale of securities,  the purpose behind the rule --          "to protect  against false allegations of  oral modifications" --          equally applies to these contracts.  See   2-209, comment 3.                                               ___          6  This finding  reversed the district court's first  order which          found that "[t]he prepayment term is  inconsistent with the plain          meaning of the Agreement, which clearly provides for payment over          a  period of  years."   Whitney Bros. Co,,  No. 90-54-S  (June 5,                                  _________________          1991), at 16-17.                                         -8-          determination.7     The   written  buy/sell   contract  provision          regarding payment  expressly contemplates payment over  ten years          at 10% interest.  If plaintiffs prepay the  note, they will avoid          paying  the  10% interest  and  thereby deviate  from  an express          provision of the contract.  Moreover, 10% interest over ten years          amounts to a significant percentage of the contract price.  Since          prepayment  would  substantially  alter  the  parties'  financial          positions under  the contract, an agreement  to permit prepayment          constitutes an alteration under Article 5.                      Furthermore, although the  New Hampshire Supreme  Court          has never  encountered this  precise issue, recent  holdings from          that court support our  conclusion.  In DeCato Brothers,  Inc. v.                                                  ______________________          Westinghouse Credit  Corp., 529  A.2d 952,  956 (N.H. 1987),  the          __________________________          court  stated,   "generally,   absent  manifest   injustice,   an          instrument is payable  in full  according to its  tenor, and  the          maker  has no  right  to  prepay in  the  absence  of an  express          provision  providing for  prepayment."   Later,  in Patterson  v.                                                              _________          Tirollo,  133  581  A.2d  74,  77  (N.H.  1990)  (quoting  Fuller          _______                                                    ______          Enterprises v.  Manchester Sav.  Bank,  152 A.2d  179, 181  (N.H.          ___________     _____________________          1959)),  the court  reaffirmed  that "the  law  is clear  in  New          Hampshire that  negotiable instruments  are 'payable at  the time          fixed therein,' and in the absence of an express provision that a          mortgagor  is entitled to prepay  his or her  note, the mortgagor          has no legal rightto pay the debt inadvance of the maturitydate."                                        ____________________          7   We  note that  our  analysis would  not change  under a  more          deferential  standard of review as we find that the court clearly          erred in this determination.                                         -9-                    Although these cases  involve actual promissory  notes,          rather  than  agreements to  make  promissory  notes, by  finding          prepayment  precluded  in the  absence  of  a specific  provision          authorizing it,  the New  Hampshire Supreme Court  demonstrated a          belief  that prepayment  significantly alters  the rights  of the          parties involved.                    Finally,   plaintiffs'    last-ditch   argument,   that          Sprafkin's February  3 letter  constitutes a  sufficient writing,          needs  little  deliberation.8    Sprafkin  wrote  the  letter  to          Barenholtz.  Thus, it cannot be construed, as plaintiffs propose,          as  a written  offer  which plaintiffs  were  entitled to  accept          orally.                    Because Article 5 of the contract precludes plaintiffs'          asserted oral agreement, the district court erred  in finding the          note prepayable.9          II.  INTEREST          II.  INTEREST                    Defendants next assign  error to  the district  court's                                        ____________________          8    Plaintiffs  did  not  make  this  argument  in  response  to          defendants'  Article 5  argument.   They made  the argument  as a          response  to defendants'  invocation  of the  statute of  frauds.          However,  we address the issue  to alleviate any  doubts that the          argument  might   have  assisted  them  against   the  Article  5          prohibition.          9   Plaintiffs stress on appeal the district court's finding that          the parties formed the oral agreement after executing the written                                                _____          contract,  and   they   have   not   challenged   this   finding.          Additionally, they  specifically argued  to this court  that "the          evidence Plaintiffs offered was to prove a subsequent agreement .                                                     __________          .  ." (Plaintiffs-Appellees'  Brief at  29).   Thus, we  need not          address defendants' alternative arguments that the oral agreement          could not bind them  if it had been formed before  or at the time          of the written contract.                                         -10-          determination  that interest  will  not  accrue until  plaintiffs          execute the promissory note.   They offer two principal arguments          to support this proposition.                    First, defendants find their entitlement to prejudgment          interest in  N.H. Rev. Stat. Ann.    524:1-b (1992).   Under that          section, when a party  wins pecuniary damages, he is  entitled to          prejudgment  interest  on the  award.   Defendants argue  that by          finding  the  stock's purchase  price  to  be  that advocated  by          defendants, the court granted them pecuniary damages.  Defendants          were not awarded pecuniary  damages, however.  Rather, plaintiffs          were awarded  specific performance of  the contract at  the price          that the court found stipulated in their cross-motion for summary          judgment.   In its second  order, the district court reconsidered          its summary judgment ruling  and determined that since plaintiffs          offered to pay defendants' advocated price at the time, the court          should have  ordered the  sale at  that price.   Thus,  the court          granted  plaintiffs'  cross-motion for  summary  judgment  to the          extent that it sought to  compel defendants to sell the  stock at          defendants' price.   See Whitney Bros.  Co., No. 90-054-S  (Sept.                               ___ __________________          30,  1992), at 10-11.  Indeed, the court specifically referred to          plaintiffs  as "prevailing  parties."   Id.  at  19.10   Thus,                                                     ___          524:1-b  provides no  basis for  awarding defendants  prejudgment                                        ____________________          10  In light of the court's conclusion that the appraisal used to          calculate defendants' advocated price lacked  factual foundation,          see Whitney Bros. Co., No. 90-054-S (Sept. 30,  1992), at 21, the          ___ _________________          court's  statement that  "the price of  the securities  . .  . is          $1,349,343"  does not convince us that the court believed that to          be the price contemplated by the contract.                                         -11-          interest.11                    Second,  defendants  argue  that  plaintiffs  owe  them          interest under the written  contract, beginning November 3, 1989,          90 days  after the death  of Bernard Barenholtz.   The theory  is          that  plaintiffs never made a valid tender within the required 90          days, and therefore defendants  deserve the interest that accrued          from that date.   See Lancaster Development Corp. v.  Kattar, 262                            ___ ___________________________     ______          A.2d  278, 280-81 (N.H. 1970) (where plaintiff was ready, willing          and able to perform, and  defendant made faulty tender, plaintiff          was  not responsible  for interest  accruing from  the contracted          date of  sale).  Specifically, defendants  claim that plaintiffs'          September  1989 tender  was invalid  because:   (1) the  note was          $170,000 less than the  defendants' advocated purchase price; and          (2) the note contained a prepayment provision.                    We  cannot conclude  that  defendants  are entitled  to          interest under the agreement based on  the September 1989 tender.          With respect  to the  purchase price, defendants  failed to  tell          plaintiffs their  requested  price within  the prescribed  ninety          days.  Moreover, the  district court specifically determined that          the appraisal on  which their price  was based was so  lacking in                                        ____________________          11  Defendants' assertion that the court's judgment which ordered          "prejudgment interest pursuant to  NH RSA 524:1-b, if appropriate                                                             ______________          . . . " (emphasis  added) was  a judgment for  interest in  their          favor that  had to be appealed by plaintiff, lacks merit.  As the          court's  opinion did not indicate  a belief that  it was awarding          defendants  damages  by  granting  plaintiffs'  cross-motion  for          summary judgment, we cannot construe the court's reference to the          statute  as an award of  interest for defendants.   Moreover, the          award   specifically  ordered   prejudgment   interest  only   if          appropriate.   As  we explained  above,  such interest  would  be          inappropriate here.                                         -12-          factual  foundation that it should not have even been admitted at          trial.  That plaintiffs later  acquiesced to defendants' price in          order to  end  this  disturbing  litigation does  not  require  a          finding that they were  wrong to make their initial  offer at the          time they made it.                    Similarly, although we  found that plaintiffs  were not          entitled  to prepay  the  note, we  are  not convinced  that  the          prepayment provision  of the  September 1989 tender  rendered the          tender faulty  at the time  it was made.   The record  reveals no          evidence  that  defendants complained  of  the  prepayment clause          before June 29, 1990, nine months after  the tender.  They cannot          now claim  that the prepayment  provision in  the September  1989          tender stalled  the sale.   Cf.  Elliott v.  Dew, 212 S.E.2d  421                                      ___  _______     ___          (S.C. 1975) (if defect in  tender not objected to when tender  is          made, cannot use defect to prevent performance of contract).                    Moreover,  defendants,   consistently  complained  that          Whitney  Brothers could not  afford the purchase.   (The district          court  later found that the evidence amply supported a finding to          the contrary).  Yet,  at the same time, defendants  demanded what          the district court found to be a trumped-up price.  This suggests          that  defendants were  attempting  to hamper  the  sale that  the          contract required.   Thus,  even assuming plaintiffs'  tender was          somehow  faulty, as defendants were not willing to perform at the          time,  they are  not  entitled  to  interest.    Cf.  Platsis  v.                                                           ___  _______          Diafokeris,  511 A.2d 535 (Md. App. 1986) (faulty tender does not          __________          trigger accrual of  interest if clear that only  excessive amount                                         -13-          would be accepted).                    Finally, as  defendants were  not entitled  to interest          beginning  November 3, their refusal to  accept the December 1990          tender  because it failed to  include such interest precludes the          accrual  of interest from  that time.   In  addition, defendants'          parenthetical argument  that the December 1990  tender was faulty          because it was conditional  also fails.  When the  district court          determined  that prepayment  was  prohibited,  the tender  became          unconditional.    Yet,  defendants  still refused  to  accept  it          without interest running from November 3.  Again, defendants were          at  no time  willing  to perform.    Accordingly, we  affirm  the          district court's  decision that  interest should begin  to accrue          when the note is executed.          III.  ATTORNEYS' FEES          III.  ATTORNEYS' FEES                    As  defendants   won  their  appeal  with   respect  to          prepayment, plaintiffs  are not  entitled to attorneys'  fees for          that  issue.   In addition,  although defendants'  arguments with          respect to interest were  unconvincing, we do not find  that they          went  "against  the  overwhelming  weight  of  precedent,"   that          defendants  "could   set  forth  no  facts   to  support  [their]          position,"  or that  "there  simply was  no legitimate  basis for          pursuing an appeal."   See Kowalski v.  Gagne, 914 F.2d 299,  309                                 ___ ________     _____          (1st  Cir. 1990).   Accordingly, we  deny plaintiffs'  motion for          attorneys' fees.                    Finally, plaintiffs request a finding that if we affirm          the district  court's judgment,  defendants may not  appeal their                                         -14-          motion  under Fed. R.  Civ. P. 59(e)  to alter the  judgment with          respect to fees.   Plaintiffs  cite no cases  that would  justify          such  a finding.   Thus,  we decline  to make  such a  finding or          otherwise consider the issue  of the award of attorneys'  fees by          the district court.                    Affirmed  in  part;  reversed  in  part.    Motion  for                    _______________________________________________________          attorneys' fees in this court denied.          ____________________________________                                         -15-
