                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                 UNITED STATES COURT OF APPEALS               May 6, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                      For the Fifth Circuit

                          No. 01-41094



                  INTERNATIONAL PAPER COMPANY,

                                    Plaintiff - Counter Defendant -

                                Third Party Defendant - Appellee,



                             VERSUS


                    RICHARD N. FRAME, ET AL.,

                                                         Defendants,



  RICHARD N. FRAME; B. A. KENNEDY, individually, doing business

  as Kennedy Specialty Lumber; JULIE ANN KENNEDY, individually,

           doing business as Kennedy Specialty Lumber,

                                Defendants - Counter Claimants -

                            Third Party Plaintiffs - Appellants.


          Appeals from the United States District Court
                for the Eastern District of Texas
                           (2:98-CV-36)



Before DEMOSS, STEWART, and DENNIS, Circuit Judges.



                                1
DENNIS, Circuit Judge:*

     The appellants’ petition for panel rehearing is DENIED.    The

opinion of the court issued on April 8, 2003 is withdrawn, and the

following is substituted:

     In this appeal, defendants-appellants Richard N. Frame, B.A.

Kennedy, and Julie Ann Kennedy appeal both the jury verdict holding

them liable for conspiring to commit fraud, theft, breach of

fiduciary duty, and breach of contract, and the district court’s

finding of joint and several liability and award of attorneys’ fees

and costs to plaintiff-appellee International Paper Company (“IP”).

Because we do not have jurisdiction to consider Frame’s untimely

appeal of the final judgment, we DISMISS this portion of his

appeal.   But after considering the Kennedys’ appeal of the final

judgment, we AFFIRM the jury verdict and the district court’s

imposition of joint and several liability.    In addition, we VACATE

the district court’s order awarding attorneys’ fees and costs, and

REMAND for re-entry of an attorneys’ fees and costs award that

excludes recovery for litigation expenses.

                            I.   Background

     IP brought suit in the Eastern District of Texas based on

diversity jurisdiction, asserting claims against Frame and the


     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.



                                   2
Kennedys for fraud, theft, and civil conspiracy.          IP also sued

Frame for breach of fiduciary duty and the Kennedys for breach of

contract.     The defendants counterclaimed for damages based on

defamation,    malicious   prosecution,    intentional   infliction   of

emotional distress, civil conspiracy, breach of contract, and

tortious interference with contract.         These counterclaims were

dismissed on summary judgment and have not been appealed.

     Frame worked as a scaler at IP’s Domino, Texas paper mill.

Scalers are responsible for weighing trucks as they enter and exit

the mill.     As a truck enters the mill, the truck driver presents

the scaler with a driver’s ticket.        The driver’s ticket contains

information about the type of wood delivered, the hauling company,

the truck license tag, and the date of delivery.     The truck driver,

not the scaler, is the person responsible for completing and

signing the driver’s ticket.    IP alleged that Frame had forged over

1,500 of these tickets between 1995 and 1997, which allowed the

Kennedys, whose names were on the tickets, to receive payment for

nonexistent loads of wood.     After receiving an anonymous tip, IP

set up surveillance at the mill.   As a result of the investigation,

IP pursued criminal charges against Frame and brought a civil suit

against all three defendants.    The criminal charges resulted in a

mistrial and, ultimately, an acquittal, and the civil suit forms

the basis of this appeal.




                                   3
     In July 2001, after a ten-day trial, the jury found for IP,

holding the defendants liable on all claims.      As a result, the jury

awarded IP $500,000 in compensatory damages from Frame, $250,000

from B.A. Kennedy, and $250,000 from Julie Ann Kennedy.        The jury

also awarded IP $1 from each defendant as punitive damages.

     On August 15, 2001, the district court entered a judgment on

the merits, finding the defendants jointly and severally liable as

co-conspirators.    On August 29, 2001, Frame filed a motion to set

aside the verdict or for a new trial.     On the same day, IP filed a

motion for attorneys’ fees and costs.         The court denied Frame’s

motion on October 1, 2001, but granted IP’s motion for attorneys’

fees and costs on October 16, 2001.       Although the Kennedys filed

their notice of appeal on September 13, 2001, Frame did not file

his notice of appeal until November 13, 2001.

     On   appeal,    the   defendants   jointly   challenge:   (1)   the

sufficiency of the evidence supporting the jury verdict, (2) the

district court’s finding that the defendants were jointly and

severally liable, and (3) the district court’s award of litigation

expenses to IP.     IP counters that (1) Frame’s appeal of the first

two issues must be dismissed because this court does not have

jurisdiction, (2) the jury verdict was supported with sufficient

evidence, and (3) the district court’s holdings on joint and

several liability and litigation expenses were proper.

                             II.   Analysis



                                    4
A.     Frame’s Notice of Appeal

       We must first determine whether Frame timely filed his notice

of appeal.1          If an appeal is untimely, we lack jurisdiction to

consider it, and the appeal will be dismissed.                  First Nationwide

Bank v. Summer House Joint Venture, 902 F.2d 1197, 1199 (5th Cir.

1990)(“Time limits for filing a notice of appeal are ‘mandatory and

jurisdictional.’”).         IP contends that Frame’s appeal of the final

judgment was untimely because it was not filed within thirty days

after the district court denied his motion to set aside the verdict

or for a new trial.          Frame counters that his appeal was timely

because it was filed within thirty days after the district court

granted IP’s motion for attorneys’ fees and costs.

       Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure

provides that “the notice of appeal must be filed within 30 days

after the judgment appealed from or ordered is entered.”                 However,

Rule       4(a)(4)   outlines   several       exceptions   to   this   rule.   In

particular, Rule 4(a)(4)(A)(iv) provides that if the party timely

files a motion to alter or amend the judgment under Rule 59 of the

Federal Rules of Civil Procedure (“FRCP”), then the time for appeal

runs from the date the district court disposes of that motion.


       1
          Although the defendants jointly filed their briefs, the
Kennedys and Frame filed separate notices of appeal. The Kennedys
filed a joint notice of appeal on September 13, 2001, which is
within thirty days of the final judgment entered on August 15,
2001. Therefore, their appeal of the final judgment was timely.



                                          5
Similarly,     Rule   4(a)(4)(A)(iii)     provides    that   a   motion   for

attorneys’ fees under Rule 54 of the FRCP will have the same effect

“if the district court extends the time to appeal under [FRCP] Rule

58.”   But Rule 4(a)(4)(A)(iii) does not require the district court

to order such an extension under FRCP Rule 58(c)(2).

       In   this   case,   there   were   two   post-trial    motions     that

potentially could have affected the timeliness of Frame’s notice of

appeal: his Rule 59 motion and IP’s Rule 54 motion.              But because

the district court did not order pursuant to Rule 58(c)(2) that

IP’s motion alter the defendant’s time to appeal, that motion did

not have the effect of a Rule 59 motion.              See    FED. R. APP. P.

4(a)(4)(A)(iii);      FED. R. CIV. P.     58(c)(2);   Budinich    v.   Becton

Dickinson & Co., 486 U.S. 196, 201-03 (1988); Echols v. Parker, 909

F.2d 795, 798 (5th Cir. 1990).        Hence, the only relevant date in

calculating the timeliness of Frame’s notice of appeal is October

1, 2001, the date on which the district court denied his Rule 59

motion.     His notice of appeal was therefore untimely when it was

filed on November 13, 2001, which was fourteen days after the

deadline passed.

       Frame further contends that our decision in Ramsey v. Colonial

Life Insurance Co., 12 F.3d 472 (5th Cir. 1994), requires us to

extend the time period for appeal.         In Ramsey, the final judgment

included a denial of an attorneys’ fees award, and the plaintiffs




                                      6
filed   a   motion     for    reconsideration      solely    on     the    issue    of

attorneys’ fees.       Id. at 476.      The plaintiffs then appealed within

thirty days after the motion for reconsideration was denied.                       Id.

at 474.     The Ramsey court held that the appeal was timely because

the final judgment expressly decided the issue of attorneys’ fees.

Id. at 477-78.       Therefore, the motion in Ramsey was not a request

for   attorneys’      fees,     but   rather   a   Rule     59    motion    seeking

reconsideration of the final judgment.              Id.     Here, the district

court’s entry of judgment on the merits did not discuss or even

mention     the    attorneys’    fees    issue.     Thus,        IP’s   motion     for

attorneys’ fees cannot be considered a Rule 59 motion because IP’s

motion did not request either a new trial or alteration of the

judgment.     Therefore, the Ramsey decision is inapplicable.

      Because Frame did not appeal the final judgment in a timely

fashion, we are without jurisdiction to consider his appeal of this

judgment.         Therefore, we dismiss this portion of his appeal.

Although we dismiss Frame’s appeal of the final judgment, we will

consider the Kennedys’ challenge to both the sufficiency of the

evidence supporting the jury verdict and the district court’s

decision to impose joint and several liability.

B.    Sufficiency of the Evidence

      The Kennedys request that we reverse the jury’s verdict and

enter judgment as a matter of law (“JMOL”) pursuant to FRCP Rule




                                         7
50, holding that IP take nothing in this suit because it has not

introduced sufficient evidence to support the jury verdict.                  When

considering a Rule 50 motion for JMOL following a jury verdict, we

must be “especially deferential” to the jury’s findings.               Brown v.

Bryan County, Okla., 219 F.3d 450, 456 (5th Cir. 2000).                    We may

grant a JMOL only where upon reviewing the entire record, we find

that there     is    no   legally   sufficient   evidentiary      basis    for a

reasonable jury to find for the non-moving party on an issue.                 FED

R. CIV. P. 50(a).         In evaluating the record, we must make all

reasonable inferences for the non-moving party, and disregard all

evidence from the moving party that a jury is not required to

credit.   Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

150-51 (2000). And of course, we must remember that "[c]redibility

determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those

of a judge."        Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986).

     IP has brought four different claims against the Kennedys:

fraud2,   theft3,     breach   of   contract4,   and   engaging   in   a    civil

     2
          To prove fraud under Texas law, a plaintiff must show:
(1) the defendant made a material representation; (2) the
misrepresentation was made with knowledge of its falsity or made
recklessly without any knowledge of the truth and as a positive
assertion; (3) the misrepresentation was made with the intention
that it should be acted on by the other party; and (4) the other
party acted in reliance on the misrepresentation and thereby
suffered injury. T.O. Stanley Boot Co. v. Bank of El Paso, 847



                                        8
conspiracy with Frame to commit these acts.5      The Kennedys contend

that IP failed to provide sufficient evidence to prove that they

were liable for these claims.    We disagree.

     During   the   ten-day   trial,   IP   introduced   the   following

evidence: (1) two anonymous letters, which alerted IP that the

defendants were defrauding the company; (2) 1,589 drivers’ tickets,

which resulted in over $1 million in payments to the Kennedys; (3)



S.W.2d 218, 222 (Tex.1992); Johnson & Higgins v. Kenneco Energy,
Inc., 962 S.W.2d 507, 524 (Tex.1998).
     3
          Under the Texas Theft Liability Statute, a person is
liable for the damages resulting from his or her theft. TEX. CIV.
PRAC. & REM. CODE § 134.003(a).     A person commits theft “if he
unlawfully appropriates property with intent to deprive the owner
of property.”    TEX. PENAL CODE § 31.03(a).  The appropriation of
property is unlawful if: “(1) it is without the owner's effective
consent” or “(2) the property is stolen and the actor appropriates
the property knowing it was stolen by another.” Id. 31.03(b).
     4
          To prevail on a breach of contract claim under Texas law,
a plaintiff must prove (1) the existence of a valid contract
between plaintiff and defendant, (2) the plaintiff's performance or
tender of performance, (3) the defendant's breach of the contract,
and (4) the plaintiff's damage as a result of the breach. Prime
Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 637 (Tex.
App. 2002); Frost Nat'l Bank v. Burge, 29 S.W.3d 580, 593 (Tex.
App. 2000).
     5
          A civil conspiracy is, "a combination of two or more
persons to accomplish an unlawful purpose, or to accomplish a
lawful purpose by unlawful means." Carroll v. Timmers Chevrolet,
Inc., 592 S.W.2d 922, 925 (Tex.1979). The essential elements for
proving a civil conspiracy claim are: (1) two or more persons; (2)
an object to be accomplished; (3) a meeting of minds on the object
or course of action; (4) one or more unlawful, overt acts; and (5)
damages as the proximate result. Massey v. Armco Steel Co., 652
S.W.2d 932, 934 (Tex.1983).


                                   9
a handwriting expert’s testimony, which certified that Frame’s

handwriting was on all but two of these tickets; (4) videotape

surveillance and scaler timecards, which established that during

Frame’s shift the number of trucks entering the mill and scale

house was significantly less than the number of tickets issued; (5)

raw scale ticket data, which showed that IP paid for more wood than

it received; (6) a certified fraud examiner’s testimony, which

demonstrated that the license plates listed on the driver’s tickets

were either nonexistent or corresponded to vehicles that were not

able to carry large amounts of wood, such as boats and motorcycles;

(7)     the   defendants’   income    tax   returns   and    bank     account

information, which proved that the Kennedys had over $1 million and

Frame    $450,000   in   unreported   income;   (8)   a   certified    public

accountant’s testimony, which established that the cash withdrawals

made by the Kennedys approximated Frame’s unreported income; and

(9) Frame’s salary information, which showed that he earned only

$25,000 a year as a scaler.

      The above evidence is sufficient to prove IP’s theory that the

Kennedys conspired to steal from IP for purposes of financial gain.

From this evidence, the jury could have inferred the following: (1)

Frame filled out over 1,500 tickets, which resulted in the Kennedys

receiving over $1 million; (2) IP did not receive any wood for

these tickets; and (3) the Kennedys and Frame split the proceeds

from this scheme.



                                      10
     This evidence supported the jury’s finding that the Kennedys

were liable to IP for fraud, theft, breach of contract, and

engaging in a civil conspiracy with Frame to commit the same.

First, there is sufficient evidence to establish the fraud claim.

The evidence shows that the Kennedys, by requesting payment for the

drivers’ tickets, intentionally made a material representation to

IP that IP owed them payment for wood with the purpose of inducing

IP to rely on this representation to pay the Kennedys for non-

existent materials.     Second, IP provided sufficient evidence to

prove theft.   The evidence proves that the Kennedys unlawfully

appropriated the money received for the false drivers’ tickets

without IP’s effective consent with the intent to permanently

deprive IP of these funds.     Third, IP had sufficient evidence to

establish a valid breach of contract claim.         The Kennedys had a

contract with IP that required IP to pay the Kennedys for the wood

that they provided.    IP rendered performance by providing payment,

but the Kennedys breached this agreement by failed to provide the

wood.   Fourth, IP sufficiently proved a civil conspiracy between

the Kennedys   and    Frame.   The    evidence   demonstrates    that   the

defendants devised a scheme to unlawfully defraud and steal money

from IP, resulting in at least a $1 million loss to IP.         Therefore,

IP has provided sufficient evidence to establish the elements of




                                     11
all its claims.6

     The Kennedys’ argue that there were a number of specific items

that IP did not prove at trial.7    But none of these items, with the

exception of damages, are elements of any claim brought by IP.

Therefore, because IP is not required to prove these items in order

to prevail, this argument is without merit.

     As for damages, the Kennedys contend that IP failed to prove

its losses because the jury awarded an even amount of $1 million.

They argue that the jury’s failure to award damages equal to the

value of the disputed drivers’ tickets proves that IP failed to

offer evidence of damages with sufficient accuracy. See Coursey v.

Broadhurst, 888 F.2d 338, 345 (5th Cir. 1989)(requiring “such proof

of damages as the nature of his case permitted, with as much

accuracy as was reasonably possible”).



     6
          The Kennedys’ only rebuttal to this evidence is Frame’s
self-serving testimony that his unreported income was from gold
coins and family money. But this was not supported by any other
evidence.   In addition, IP contradicted Frame’s testimony by
introducing a 1994 financial statement by Frame to Marine Military
Academy, which failed to list the family money and gold coins as
assets.    Therefore, under Reeves, we can disregard Frame’s
testimony because the jury is not required to credit this evidence.
More significantly, the Kennedys introduced no evidence to show
that IP received any wood in exchange for the payments that they
received.
     7
          The Kennedys argue that IP failed to prove: (1) whether
the Kennedys owned the trucks shown on the videotape surveillance,
(2) whether Frame forged the tickets or had permission from the
drivers,(3) whether Frame and the Kennedys ever met outside of the
mill’s scale house, and (4) the specific amount of IP’s losses.


                                   12
     However, IP did provide accurate evidence of its losses.   The

drivers’ tickets themselves are sufficient to establish that IP

lost at least $1 million.     The jury’s award was not more precise

because IP could not definitively prove that IP paid the Kennedys

for all of the drivers’ tickets.       Therefore, the jury had some

discretion in awarding IP less in damages than the face value of

the tickets.   In addition, even if IP could not prove the exact

amount of damages, “[a] defendant whose wrongful act creates the

difficulty is not entitled to complain that the amount of the

damages cannot be accurately fixed.”     Austin v. Parker, 672 F.2d

508, 522 (5th Cir. 1982).      Damages are difficult to prove here

because the defendants engaged in a clandestine operation to

defraud IP utilizing fraudulent materials and cash transactions.

That they did not keep accurate records of their activities should

not be held against the plaintiff.        Therefore, the Kennedys’

argument is not persuasive.

     Despite the Kennedys’ arguments, IP has provided a legally

sufficient evidentiary basis for a reasonable jury to find in its

favor.   Therefore, we affirm the jury’s verdict in favor of IP on

its claims against the Kennedys.

C.   Joint and Several Liability

     The Kennedys next contest the district court’s decision to

impose joint and several liability.    They contend that under Texas

law, the court could only have imposed joint and several liability



                                  13
for the theft claim.    TEX. CIV. PRAC. & REM. CODE § 134.005; Id. §

33.002(b). Therefore, they argue that because the damage award was

not divided into individual awards for fraud, theft, and breach of

contract, the amount of damages subject to joint and several

liability is not determinable and thus joint and several liability

is not proper for any of the award.

     However, this argument is incorrect.        The final judgment

states that the defendants are jointly and severally liable because

the jury found that the defendants were co-conspirators.          Under

Texas law, proof of civil conspiracy “imposes joint and several

liability on all co-conspirators for any actual damages resulting

from acts in furtherance of the conspiracy.”         Hart v. Moore, 952

S.W.2d 90, 98 (Tex. App. 1997); see also Akin v. Dahl, 661 S.W.2d

917, 921 (Tex. 1983); Tompkins v. Cyr, 202 F.3d 770, 783 (5th Cir.

2000).   As co-conspirators, the defendants are joint and severally

liable for all damages because the acts of fraud, theft, and breach

of   contract   were   all   in   furtherance   of    the   conspiracy.

Consequently, the district court properly found the defendants

jointly and severally liable for the entire amount of damages.

D.   Litigation Expenses

     Frame’s failure to timely file an appeal of the merits does

not dismiss his entire appeal. Frame, along with the Kennedys, can

still challenge the district court’s award of litigation expenses




                                  14
to IP.    Because Frame filed a notice of appeal within thirty days

of entry of the district court’s order awarding these expenses,

this part of his appeal is timely.

       On August 29, 2001, IP filed a motion for an award of

attorneys’ fees and costs pursuant to the Texas Theft Liability

Act.     See TEX. CIV. PRAC. & REM. CODE § 134.005.   In its motion, IP

requested     $1,453,452.00   in   attorneys’    fees,   $431,978.23   in

litigation expenses, and $137,919.90 in costs for a total of

$2,023,350.10.     On October 15, 2001, the district court awarded IP

$982,813.00 in attorneys’ fees and $414,875.20 in costs for a total

of $1,397,688.20.      In awarding this amount, the district court

discounted the total requested by IP because of insufficient

documentation and because some fees and costs were attributable to

IP’s role in Frame’s bankruptcy and criminal prosecution, not the

civil litigation.

       The defendants have not challenged either the $982,813.00

awarded in attorneys’ fees or $137,919.90 in costs.         Instead, they

challenge the award of litigation expenses, which they argue cannot

be awarded under § 134.005 of the Act.          They seek to reduce the

award of costs by $276,955.30, which is the difference between the

$414,875.20 awarded by the court as costs and the $137,919.90 in

costs requested by IP.        This would reduce the IP’s award of

attorneys’ fees and costs to $1,120,732.90.              In response, IP

counters that litigation expenses customarily billed to clients may



                                    15
be properly awarded as part of an attorneys’ fees award, not as

court    costs.     Therefore,    it   argues    that   the   district   court

mischaracterization of the litigation expense award as costs is

insufficient to prove that the court improperly awarded IP these

expenses.

     State law controls both the award of and the reasonableness of

fees awarded where state law supplies the rule of decision.              Mathis

v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002).               Because the

trial court has discretion to award attorneys’ fees and costs, we

will review their decision for abuse of discretion, although

factual determinations will only be reviewed for clear error.              Id.

at 461-62.

     As a successful plaintiff in a suit under the Texas Theft

Liability Act, IP has the right to recover “court costs and

reasonable and necessary attorneys’ fees.”              TEX. CIV. PRAC. & REM.

CODE § 134.005.     Recoverable court costs include: deposition costs,

filing      fees,     court      reporter       fees,    transcripts,      and

subpoena/citation fees.       Id. § 31.007(b); Crescendo Investments,

Inc. v. Brice, 61 S.W.3d 465, 480-81 (Tex. App. 2001).               However,

the following items are not recoverable as court costs:             “delivery

services, such as Federal Express; travel; long-distance phone

calls; bond premiums; postage; reproduction expense; binding of

brief[s] ... office air conditioning, and secretarial overtime.”




                                       16
Shenandoah Assoc. v. J&K Prop., Inc.,741 S.W.2d 470, 487 (Tex.

App. 1987).

     In submitting its request for attorneys’ fees and costs, IP

separated its non-attorneys’ fees expenses into two categories:

court costs and litigation expenses.            The court costs category

included items that were properly recoverable as court costs,

including deposition costs, filing fees, and subpoena/citation

fees.   In contrast, the litigation expenses category consisted

solely of items that are not recoverable as court costs, including

telephone   and   fax    charges,   travel    expenses,   Federal    Express

charges, and photocopying fees.

     In seeking recovery for these expenses, IP does not contend

that the litigation expenses are recoverable as court costs.

Rather, it argues that these expenses are recoverable as part of a

reasonable attorneys’ fees award.          In support of this argument, IP

notes   that   federal    courts    have    allowed   parties   to    recover

litigation expenses that “are normally charged to a fee paying

client, in the course of providing legal services” as part of an

attorneys’ fee award.      See Chemical Mfrs. Assoc. v. EPA, 885 F.2d

1276, 1283 (5th Cir. 1989); see also Spell v. McDaniel, 852 F.2d

762, 771 (4th Cir. 1988); Laffey v. Northwest Airlines, Inc., 746

F.2d 4, 37 (D.C. Cir. 1984); Northcross v. Board of Educ. of the

Memphis City Schools, 611 F.2d 624, 639 (6th Cir. 1979).             However,




                                     17
these decisions concerned awards of attorneys’ fees under federal

law.    Here, because the attorneys’ fees award is based on a Texas

statute, what the statute allows is determined by Texas law.     See

Lasalle Bank Nat’l Ass’n v. Sleutel, 289 F.3d 837, 839 (5th Cir.

2002); Vielma v. Eureka Co., 218 F.3d 458, 462 (5th Cir. 2000). IP

has not provided any authority under Texas law for including these

litigation expenses as part of its attorneys’ fees award, and we

have found none. Therefore, we find that the district court abused

its discretion in awarding IP $276,955.30 in litigation expenses.

Consequently, the award of attorneys’ fees and costs is vacated.

On remand, the district court shall award attorneys’ fees and costs

to IP that exclude recovery for these litigation expenses.

                           III.   Conclusion

       Because we lack jurisdiction to consider Frame’s appeal of the

final judgment, we DISMISS this portion of his appeal.     But after

considering the Kennedys’ appeal of the final judgment, we AFFIRM

the jury verdict and the imposition of joint and several liability

on the defendants.    In addition, because Texas law does not allow

litigation expenses to be recovered as attorneys’ fees or court

costs, we VACATE the district court’s award of attorneys’ fees and

costs, and REMAND for re-entry of an award totaling $1,120,732.90.




                                   18
