
USCA1 Opinion

	




          January 22, 1997                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1143                                  JAMES LOGUE, SR.,                                Plaintiff, Appellant,                                          v.                                     RONALD DORE,                                 Defendant, Appellee.                              _________________________                                     ERRATA SHEET                                     ERRATA SHEET               The  opinion of  this court  issued on  January 8,  1997, is          corrected as follows:               On page 10, line 19   change "U.S." to "F.2d"               On page 12, line 16   add a further sentence:  "This case is          no exception."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1143                                  JAMES LOGUE, SR.,                                Plaintiff, Appellant,                                          v.                                     RONALD DORE,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                              _________________________                                        Before                           Selya and Stahl, Circuit Judges,                                            ______________                            and Woodlock,* District Judge.                                           ______________                              _________________________               William H. Rowerdink III for appellant.               ________________________               Leonard  H.  Kesten, with  whom  Brody,  Hardoon, Perkins  &               ___________________              ___________________________          Kesten was on brief, for appellee.          ______                              _________________________                                   January 8, 1997                              _________________________          __________          *Of the District of Massachusetts, sitting by designation.                    SELYA, Circuit  Judge.  Asserting that  the proceedings                    SELYA, Circuit  Judge.                           ______________          below  were tainted both by the district judge's mistaken view of          the  law and  by his  personal animus,  plaintiff-appellant James          Logue invites us to  order a new trial before  a different trier.          We decline the invitation.          I.  BACKGROUND          I.  BACKGROUND                    Since one  of Logue's principal complaints  is that the          district  court  took his  false  arrest  and false  imprisonment          claims from the jury at the close  of his case in chief, we assay          the  facts  in  the  perspective  most  advantageous  to  Logue's          position.   See,  e.g., Veranda  Beach Club  Ltd. Partnership  v.                      ___   ____  _____________________________________          Western Sur. Co., 936 F.2d 1364, 1375 (1st Cir. 1991).          ________________                    In 1990, Logue and his wife became embroiled in divorce          proceedings.   Despite this  discord, the couple  continued for a          time to share the marital domicile at 411 School St., Marshfield,          Massachusetts.  The situation changed on  November 13, 1992, when          Mrs.  Logue secured  an ex  parte  restraining order  barring her          estranged husband  from the  School St.  premises.1   Pursuant to          that order the  Marshfield police asked  Logue to remove  himself          from the property, and he complied.                                        ____________________               1Mrs. Logue obtained the restraining order under a state law          which provides that, in various situations (including matrimonial          disputes), a court "may  enter such temporary orders as  it deems          necessary to protect  a plaintiff from abuse . . . ."  Mass. Gen.          L. ch. 209A,   4 (West 1996).  The statute  further provides that          "[i]f  the  plaintiff demonstrates  a  substantial  likelihood of          immediate danger  of abuse,  the court  may enter  such temporary          relief  orders  without  notice  .  .  .  and  shall  immediately          thereafter notify  the defendant  that the temporary  orders have          been issued."  Id.  In that event, "[n]otice shall be made by the                         ___          appropriate law enforcement agency."  Id.                                                ___                                          3                    Three days  later Logue prevailed upon  the state court          to amend its November  13 order.  The amendment gave Logue access          to the premises  between the hours of 8:00 a.m.  and 6:00 p.m. so          that he could  continue to operate  his painting business  (which          was based in a garage on the property).                    By its  terms, the amended order expired on December 2,          1992.   On that  date,  the state  court  convened a  hearing  to          determine inter alia whether  the restraining order should remain                    _____ ____          in  effect,  and if  so, whether  Logue  should still  be allowed          limited  access to the marital  premises.  The  parties and their          counsel appeared but, when the judge reserved decision, Logue and          his  lawyer departed without awaiting the ruling.  Late that same          morning the judge renewed the original restraining order, thereby          effectively rescinding Logue's daytime privileges and banning him          from the premises in toto.                            __ ____                    Unaware that a completely prohibitory order had issued,          Logue repaired  to School St.  on December 2.   His wife returned          that  afternoon, told him of the judge's decision, and asked that          he  leave.   Logue  continued  working.   Disquieted,  Mrs. Logue          called  the  Marshfield police  to report  what  she viewed  as a          blatant  violation of the new restraining  order.  Officer Ronald          Dore responded to the call.  When Dore arrived, Mrs. Logue showed          him  a copy  of the  current  restraining order.   By  that time,          however, Logue had evacuated the premises.                    After leaving the scene Logue contacted his attorney in          an effort  to ascertain  the terms  of  the new  restrainer.   He                                          4          received no definitive guidance.   Instead, his lawyer instructed          him  to stop by  his office the  next morning so  that they could          straighten out the situation.                    As a matter of  form, a restraining order of  this sort          is  composed  of a  series of  multicolored  carbon copies  to be          distributed to various parties.   Typically, there is a  copy for          the  court's use, one for the probation department's use, one for          the  plaintiff, one for the  defendant, one for  the local police          department, and a final copy on which the return of service is to          be inscribed.   Early on the morning of December 3, Dore reviewed          the police copy of  the newly minted restraining order.   He then          proceeded  on routine patrol.  In the meantime Logue bypassed his          lawyer's office,  returned to the marital  residence, and resumed          work.  Dore observed Logue's vehicle in  the driveway, confronted          him in  the garage, and    turning a deaf ear  to Logue's protest          that  he had the right to be on  the property during the day, and          that he  could verify his status by a telephone call   placed him          under  arrest   for  violating  the  restraining   order.    Dore          transported Logue  to police headquarters and booked  him.  Logue          was then taken to the state court and arraigned.  Eventually, the          charges against him were dropped.                    Logue mounted  a counterattack, suing Dore  for damages          under 42  U.S.C.    1983  in  the federal  district  court.   His          complaint  contained  three  counts  that  are  germane  to  this                                          5          appeal.2  In those  counts Logue contended that Dore  had falsely          arrested and  imprisoned him,  and had employed  excessive force,          all  in derogation of section  1983.  During  trial, the district          court  directed a verdict in  the defendant's favor  on the false          arrest  and false  imprisonment  counts.   The jury  subsequently          found  for the defendant on the excessive force claim.  Following          a peculiar colloquy  related to fees  and costs (described  infra                                                                      _____          Part IV), Logue filed this appeal.          II.  THE DIRECTED VERDICT          II.  THE DIRECTED VERDICT                    Logue  assigns  error to  the  entry of  judgment  as a          matter  of law on the false arrest and false imprisonment claims,          asserting that  he  adduced  enough  evidence to  create  a  jury          question as to  whether Dore  had probable cause  to arrest  him.          The  standard  under  which  we review  Logue's  challenge  is so          familiar  that it  verges  on the  banal:   without  taking  into          consideration the credibility  of witnesses, resolving  conflicts          in testimony, or evaluating  the weight of the evidence,  could a          reasonable jury  find for the  plaintiff on the  proof presented?          See Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir. 1994).          ___ ______    ________________          We will affirm the judgment only if, after surveying the evidence          and  the  inferences  derivable   therefrom  in  the  light  most          flattering  to  the  plaintiff,  we  determine  that  a  rational          factfinder  could  have reached  no  conclusion  except that  the                                        ____________________               2Originally,  Logue  asserted  other  claims  against  Dore,          various  unnamed  Marshfield police  officers,  and  the Town  of          Marshfield.   Because  the case  proceeded to  trial only  on the          federal claims against Dore, we limit our discussion accordingly.                                          6          plaintiff take nothing.   See  Veranda Beach, 936  F.2d at  1375;                                    ___  _____________          Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987).          _________    _____                    In  trying  the  false  arrest and  false  imprisonment          counts,  Logue's  theory  was   that  Dore  violated  his  Fourth          Amendment  rights  by  arresting  him  without  probable   cause.          According to  Logue, there  was no  probable  cause because  Dore          lacked  any reason  to believe that  Logue knew the  terms of the          December  2 restraining order and intentionally violated it.  The          lower court rejected this premise.  So do we.                    The  constitutionality of a warrantless arrest "depends          .  .  . upon  whether, at  the moment  the  arrest was  made, the          officer[] had probable cause to make it."  Beck v. Ohio, 379 U.S.                                                     ____    ____          89, 91 (1964).  In turn, probable cause to make  an arrest exists          if    and  only if    the  facts and  circumstances of  which the          arresting  officer  has  knowledge  are  sufficient  to  lead  an          ordinarily prudent officer to conclude that  an offense has been,          is being,  or is about  to be  committed, and  that the  putative          arrestee  is involved in the  crime's commission.   See Rivera v.                                                              ___ ______          Murphy, 979 F.2d 259, 263 (1st  Cir. 1992); Hoffman v. Reali, 973          ______                                      _______    _____          F.2d 980, 985 (1st Cir. 1992).  In sum, the existence of probable          cause (and, in turn, the validity of an ensuing arrest) is gauged          by  an   objective  standard;   as  long  as   the  circumstances          surrounding  the event  warrant the  officer's reasonable  belief          that the  action taken is  appropriate, the arrest  is justified.          See Scott v. United  States, 436 U.S. 128, 137-38  (1978); United          ___ _____    ______________                                ______          States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir. 1987); see also          ______    ________                                       ___ ____                                          7          Whren v. United  States, 116  S. Ct. 1769,  1774 (1996)  (holding          _____    ______________          that "[s]ubjective intentions play no role in ordinary, probable-          cause  Fourth  Amendment  analysis").     And,  moreover,  though          probable cause  requires more  than mere  suspicion, it does  not          require the same quantum of  proof as is needed to convict.   See                                                                        ___          United States v. Aguirre, 839 F.2d 854, 857-58 (1st Cir. 1988).          _____________    _______                    At  first blush  it  appears that  Dore surpassed  this          minimum.   After  all, the  evidence  is straightforward  that an          unqualified chapter 209A restraining  order issued on December 2,          and that order,  by its terms, barred  Logue from the  School St.          property.  The record  is equally pellucid that Dore  learned the          terms  of that  order  on two  separate  occasions before  taking          action.   Thus, Dore knew  prior to arresting  Logue that Logue's          mere  presence  on  the  School  St.  premises  transgressed  the          restraining order and thereby constituted a criminal act.  In the          lower court's view, no more was exigible.                    Logue seeks  to blunt  the force of  this reasoning  by          elevating  the probable cause threshold.   He would  have us rule          that, in  addition to  the arresting officer's  reasonable belief          that the restraining order was  being violated, probable cause in          this  case could only be established if the officer also believed          that the violator himself knew the terms of the order.   But this          embellishment has no  basis in the law.   What the arrestee knows          or does not know at the time of his apprehension is irrelevant to          the question of whether the arresting officer has probable cause.                    To be  frank, we  find it difficult  to understand  the                                          8          nexus  that  Logue  strives  to fashion  between  the  arrestee's          knowledge and  the probable cause  determination.  It  seems most          likely  that  Logue  has   confused  the  elements  necessary  to          establish probable cause with the elements necessary to determine          guilt or  innocence.   The  arrestee's knowledge  is, of  course,          relevant to  the latter  determination, for the  Commonwealth, in          order to convict Logue of violating  the chapter 209A restraining          order,  would be  required to  show scienter,  that is,  to prove          beyond  a reasonable doubt that  he had knowledge  or notice that          such an order had been issued against him.  See Mass. Gen. L. ch.                                                      ___          209A,    7 (West 1996);  Commonwealth v. Gordon,  553 N.E.2d 915,                                   ____________    ______          918-19 & n.3 (Mass. 1990).  Nevertheless, this requirement has no          bearing on the reasonableness  of Dore's belief that a  crime was          being  committed (especially  since he,  himself, had  told Logue          what the order provided),  and it therefore fails to  address the          existence vel non of probable cause.3                    ___ ___                    We will  not paint the lily.  In light of the facts and          circumstances unquestionably  known to  Dore at  the time  of the          arrest,  no reasonable  jury could find  that he  lacked probable          cause to take Logue into custody.  It follows inexorably that the                                        ____________________               3Logue  implies that Dore's refusal  to allow him  to make a          telephone  call to verify the terms  of the December 2 order made          the  arrest unreasonable.  To be sure, there are circumstances in          which "an arresting  officer may  have a duty  to pursue  further          information  if it  is available  and likely to  be trustworthy."          Palhava de Varella-Cid v.  Boston Five Cents Sav. Bank,  787 F.2d          ______________________     ___________________________          676,  680 (1st Cir. 1986).   In this  situation, however, further          investigation merely  would have buttressed the  officer's belief          and confirmed  Logue's violation of the  chapter 209A restraining          order.  Thus, Logue's argument is not advanced by Dore's rebuff.                                          9          district court appropriately granted judgment as a matter of  law          in  favor  of  the  defendant  on  the  false  arrest  and  false          imprisonment counts.          III.  THE JUDGE'S ATTITUDE          III.  THE JUDGE'S ATTITUDE                    Logue's next  assignment of error  sweeps more broadly.          He contends  that the district judge's biased attitude and heavy-          handed  manner  deprived  him of  an  impartial  trial, and  that          fundamental fairness demands that we wipe the slate clean.  These          are serious charges, and we treat them as such.                    We  start  with  an   overview  of  the  settled  legal          principles that pertain  to claims of  this genre.   It is  well-          established  that  a  judge is  not  a mere  umpire;  he  is "the          governor  of the  trial for  the purpose  of assuring  its proper          conduct," and has a perfect right   albeit a right that should be          exercised  with  care    to  participate  actively  in  the trial          proper.  Quercia v. United States, 289 U.S. 466, 469  (1933).  It                   _______    _____________          is,  moreover, beyond  cavil that  a trial  judge in  the federal          system  retains the common law power to question witnesses and to          analyze,  dissect,   explain,  summarize,  and   comment  on  the          evidence.  See  id.; see also  United States v.  Paiva, 892  F.2d                     ___  ___  ___ ____  _____________     _____          148, 159 (1st  Cir. 1989);  see generally Fed.  R. Evid.  614(b).                                      ___ _________          Still, there are lines which a trial judge should not cross.  For          example, the  judge's participation  must be balanced;  he cannot          become  an  advocate  or otherwise  use  his  judicial  powers to          advantage or disadvantage  a party  unfairly.   See Quercia,  289                                                          ___ _______          U.S.  at 470;  Paiva, 892  F.2d at  159; see  also Fed.  R. Evid.                         _____                     ___  ____                                          10          614(b) advisory committee's note.                    An  inquiry  into  the  judge's conduct  of  the  trial          necessarily  turns on  the  question of  whether the  complaining          party  can show serious prejudice.  See Aggarwal v. Ponce Sch. of                                              ___ ________    _____________          Med.,  837 F.2d  17,  22  (1st Cir.  1988).    In answering  this          ____          question  a reviewing  court  must evaluate  the judge's  actions          "according   to  a   standard  of   fairness   and  impartiality,          recognizing  that each case  tends to be  fact-specific."  United                                                                     ______          States  v. Polito, 856 F.2d  414, 418 (1st  Cir. 1988) (citations          ______     ______          and internal quotation marks omitted).  This process requires the          reviewing  court   to   differentiate  between   expressions   of          impatience,  annoyance or  ire,  on the  one  hand, and  bias  or          partiality, on the other  hand.  See Liteky v. United States, 510                                           ___ ______    _____________          U.S.  540,  555-56  (1994).   While  the  former  are  not  to be          encouraged, the latter are flatly prohibited.                    In this case, Logue contends that the judge's comments,          questioning of  witnesses, and chastisement of  his trial counsel          (Attorney  Stockwell-Alpert)  skewed  the  proceedings.    Having          painstakingly reviewed the transcript  of this five-day trial, we          are satisfied  that the incidents  of which Logue  complains show          little  more  than  the  judge's efforts  to  clarify  testimony,          expedite the trial, and maintain courtroom decorum.  In short, we          find that Logue received a fair trial, albeit not a perfect or an          unblemished one.   He was not entitled to more.   See Polito, 856                                                            ___ ______          U.S. at 418.                    We  see no need to  cite book and  verse in response to                                          11          each of Logue's criticisms.  A summary should suffice.                    1.  Logue asserts that the judge exhibited bias both by                    1.          interjecting  hostile  questions  during  his  testimony  and  by          treating the  defendant's  testimony solicitously.    However,  a          close  reading of  the transcript  reveals no  such contrast.   A          judge has  wide discretion  to interject  questions  in order  to          throw light upon testimony or expedite the pace of a  trial.  See                                                                        ___          Deary v. City of Gloucester, 9  F.3d 191, 194-95 (1st Cir. 1993);          _____    __________________          United States v.  Olmstead, 832  F.2d 642, 648  (1st Cir.  1987),          _____________     ________          cert.  denied, 486 U.S. 1009 (1988).  Here, the judge's questions          _____  ______          strike  us as  designed  to simplify  the  jury's task,  and,  in          respect to Logue's testimony, to clarify his frequently vague and          confusing answers.  Many  of the judge's queries did no more than          restate the examiner's questions,  and his oft-uttered  responses          (e.g.,  "all  right" or  "I see")  to  Logue's answers  were well          within the realm of impartiality.                    2.  Logue's claim that the judge displayed bias against                    2.          him rests  heavily on two comments.  First, the judge referred to          Logue in  the jury's presence  as "the  accuser."  We  regard the          comment  as innocuous,  particularly  when its  likely impact  is          evaluated on the entire record.  This case is no exception.  More          troubling is that, after Logue completed his testimony, the judge          excused the jury and made the following statement:                    I just  want to  put it  on the  record that I  totally                    disbelieve the plaintiff in this case.  I think he's an                    absolute and incorrigible liar.   And it's my intention                    at the  conclusion of this  case to request  the United                    States Attorney to conduct an investigation into  these                    matters relative to seeking an indictment for perjury.                                          12                    To be sure,  it was unnecessary for the  judge to go on          record at that stage, but his comments indicate no more than that          he  had grave doubts anent  Logue's credibility.   Judges are not          expected  to  refrain  from  forming  opinions  about  witnesses'          credibility   how else would  a judge be able to decide a case or          pass on  a motion for a new  trial?   and the  mere fact that the          judge voices his opinion out of the presence of the jury does not          irretrievably taint the trial.  Cf. Liteky, 510 U.S. 550-51 ("The                                          ___ ______          judge  who  presides  at a  trial  may,  upon  completion of  the          evidence, be exceedingly ill  disposed towards the defendant, who          has been shown to be a thoroughly  reprehensible person.  But the          judge is not thereby  recusable for bias or prejudice,  since his          knowledge  and   the  opinion  it  produced   were  properly  and          necessarily acquired in the course of the proceedings  . . . .").          Since there is no evidence that the judge allowed his low opinion          of Logue's veracity to mar his conduct of the trial,  we will not          disturb  the judgment.  Logue was entitled to an impartial judge;          he was not entitled to an ingenuous one.                    3.     Logue   further   contends  that   the   judge's                    3.          disparagement of  Stockwell-Alpert deprived him of  a fair trial.          As a  general  rule,  a  judge's mid-trial  remarks  critical  of          counsel are insufficient to  sustain a claim of judicial  bias or          partiality against the client.  See Liteky, 510 U.S. at 555.                                          ___ ______                    Here,  the  challenged  comments  occurred  at  various          times, some at sidebar and some in the presence of the jury.  The          comments at sidebar need  not detain us; it suffices  to say that                                          13          none were beyond the pale.  In the most ill-advised such  remark,          the judge  referred to the lawyer  as a "smart little  guy."  The          description  would have been better left  unsaid, but it scarcely          amounts to reversible error.                    Statements that  are  made by  a  judge in  the  jury's          presence are, of course, subjected to stricter scrutiny.  In this          case,  the judge  was  sharply critical     for example  he  made          remarks to  the effect that Stockwell-Alpert  was hurting himself          by making unnecessary comments after rulings, talking back to the          court, leading witnesses on  direct examination, and hollering at          an adverse witness    but the criticisms were largely  invited by          counsel's antics and were fairly calculated to maintain courtroom          decorum.4   While the judge could perhaps have been more delicate          in  his choice of phrase,  appellate courts cannot  expect that a          trial judge, under siege, will function as a bloodless automaton.          See Polito, 854  F.2d at 418.   Granting the  judge a "margin  of          ___ ______          humanity," id.,  we do not  think that his comments  in this case                     ___          evinced  bias.   See Mitchell v.  Kirk, 20 F.3d  936, 937-38 (8th                           ___ ________     ____          Cir.  1994); see also Liteky, 510 U.S. at 555-56 (explaining that                       ___ ____ ______          routine  efforts at court administration by a judge do not evince          bias or partiality).   In any event, gauging the likely impact of          the judge's statements on the record as a whole, we conclude that                                        ____________________               4On one occasion, the  judge imposed a monetary sanction  on          Stockwell-Alpert for making a wholly gratuitous comment after the          judge had  instructed the jury on  a point of law.   This comment          was preceded  by several similar comments  which could reasonably          be viewed as  tending to  disparage the judge  and undermine  his          authority.  The sanction was imposed outside the jury's presence.                                          14          they  did   not  compromise  the  fundamental   fairness  of  the          proceedings.  See Deary, 9 F.3d at 195-96.                        ___ _____                    We  add a coda.   In assessing the  impact of a judge's          actions,  jury instructions can be  a means of allaying potential          prejudice.   See id. at 196; Polito, 856  F.2d at 419.  Here, the                       ___ ___         ______          judge told the  jurors in his charge that he  had not intended to          comment on the evidence or  to suggest "what verdict I  think you          should  find."  He  also told them  that, if they  thought he had          commented,  they  should disregard  the  comments.   Finally,  he          warned the  jurors "not  [to] be swayed  by bias or  prejudice or          favor as to any  party," and stressed their prerogatives  as "the          sole and exclusive judges of the facts."  These instructions were          sufficient to palliate any untoward effects.          IV.  THE EVANESCENT FEE DISPUTE          IV.  THE EVANESCENT FEE DISPUTE                    After the jury returned  its verdict, a curious episode          occurred.    The  judge  made an  extemporaneous  (and  extremely          unflattering)  assessment  of  Logue's  case,5  and spontaneously          directed Dore's  counsel to  "charge all expenses  and reasonable          attorneys'  fees to th[e] plaintiff."  The judge then granted the          defendant's oral motion to attach  the plaintiff's real estate in          the amount of $50,000  as security for those fees  and expenses.6                                        ____________________               5The  judge  volunteered  his  opinion that  the  case  "was          bottomed on perjury" and  that it represented "an attempt  on the          part  of  this plaintiff  .  . .  to  perpetrate a  fraud  on the          system."               6Despite his  scathing critique  of Logue's case,  the judge          never indicated the legal basis on which the anticipated shifting          of fees  rested.   In    a "best  case"  scenario, this  lack  of          specificity  creates potential  problems for  a reviewing  court.                                          15          Dore recorded  the attachment but never filed  an application for          attorneys' fees.                    Although the  parties argue  in their briefs  about the          "fee  award,"  it is  apparent that  none  exists.   The district          court's  announcement of a  willingness to tax  fees and expenses          against a losing party does not constitute an award,  and, in the          absence of an  order or  judgment susceptible  of execution,  the          court's free-floating announcement of its views provides no basis          for appellate  intervention.  After all,  appellate courts review          orders  and  judgments,  not  judge's  statements.    See  In  re                                                                ___  ______          Administrative  Warrant, 585  F.2d  1152, 1153  (1st Cir.  1978).          _______________________          Moreover,  the   defendant  effectively  waived   the  right   to          attorneys'  fees  by his  conceded failure  to  file and  serve a          properly supported application within  fourteen days of the entry          of   judgment.    See  Fed.   R.  Civ.  P.   54(d).    Under  the                            ___          circumstances, an  attachment, designed to secure  an anticipated          award  of fees which was never  reduced to judgment and for which          the prevailing party never applied, cannot stand.                    In  the  interest of  completeness,  we  note that,  in          response  to  vigorous  questioning  on this  point  during  oral          argument,  defense counsel  conceded the  untenability  of Dore's                                        ____________________          See,  e.g., Foster v. Mydas  Assocs., Inc., 943  F.2d 139, 141-42          ___   ____  ______    ____________________          (1st Cir.  1991) (holding that a  district court must,  at a bare          minimum,   identify   the  source   of  the   presumed  authority          undergirding  a fee  award, for  "different sources  of authority          impose    varying    criteria   for    judging    the   [award's]          appropriateness").  Here, however, the judge never made an actual          fee  award, see infra, and  we are thus  spared the necessity for                      ___ _____          grappling with these problems today.                                          16          position and agreed to move promptly to dissolve the  attachment.          We have  received a copy of  a letter reporting that  he has kept          his promise.  Nothing remains of this issue.          V.  CONCLUSION          V.  CONCLUSION                    We need go  no further.7  The judgment in  favor of the          defendant is  not infected  by reversible  error.   The  district          court's impromptu direction for  the shifting of fees  is without          independent force as a judgment or order; and, because steps have          been  taken  to dissolve  the  ensuing  attachment, the  parties'          dispute  over  attorneys' fees  presents  no  issue suitable  for          appellate review.                    The judgment  is affirmed  on the  merits.  Each  party                    The judgment  is affirmed  on the  merits.  Each  party                    _________________________________________   ___________          shall bear his own costs.          shall bear his own costs.          ________________________                                        ____________________               7In his brief, Dore  requests that we invoke Fed. R. App. P.          38  and  impose sanctions  on  the  plaintiff for  prosecuting  a          frivolous appeal.  We are not inclined to do so.  The plaintiff's          arguments concerning the conduct of the trial are colorable, even          though  not persuasive, and his assignment of error vis- -vis the          improvidently issued attachment possesses obvious merit.                                          17
