UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RED CARDINAL FIFTEEN,
INCORPORATED, a Delaware
Corporation; RED CARDINAL SIXTEEN,
INCORPORATED, a Delaware
Corporation; RED CARDINAL
SEVENTEEN, INCORPORATED, a
Delaware Corporation,
Plaintiffs-Appellees,

v.
                                     No. 96-1066
WILLIAM W. LANGE; LFC REAL
ESTATE MARKETING SERVICES,
INCORPORATED, a California
Corporation,
Defendants-Appellants,

and

RICHARD CHANG,
Defendant.
RED CARDINAL FIFTEEN,
INCORPORATED, a Delaware
Corporation; RED CARDINAL SIXTEEN,
INCORPORATED, a Delaware
Corporation; RED CARDINAL
SEVENTEEN, INCORPORATED, a
Delaware Corporation,
Plaintiffs-Appellants,

v.
                                                                     No. 96-1115
WILLIAM W. LANGE; LFC REAL
ESTATE MARKETING SERVICES,
INCORPORATED, a California
Corporation,
Defendants-Appellees,

and

RICHARD CHANG,
Defendant.

Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CA-93-906-3-17)

Argued: October 29, 1996

Decided: January 28, 1997

Before RUSSELL and ERVIN, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

                    2
COUNSEL

ARGUED: Michael Stephen Church, TURNER, PADGET, GRA-
HAM & LANEY, P.A., Columbia, South Carolina, for Appellants.
Edward A. Frazier, FINKEL, GOLDBERG, SHEFTMAN & ALT-
MAN, P.A., Columbia, South Carolina, for Appellees. ON BRIEF:
Curtis L. Ott, TURNER, PADGET, GRAHAM & LANEY, P.A.,
Columbia, South Carolina, for Appellants. Ronald A. Hightower,
Lexington, South Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The critical issue on this appeal is whether a real estate marketing
company's act of contriving a bogus bidding by a bogus bidder at an
auction sale caused compensable legal harm to its property-owner cli-
ent when the bogus bidder defaulted and the auction sale aborted. A
jury awarded damages to the property owner on alternative breach of
contract and breach of fiduciary duty claims. After the property owner
elected recovery under the breach of fiduciary award, the district
court, after granting a remittitur which reduced the jury award by the
amount of the marketing company's contractual commission, refused
to disturb the verdict further or to award prejudgment interest. On the
marketing company's appeal, we affirm. On the property owner's
cross-appeal, we vacate the remittitur and affirm the district court's
refusal to award prejudgment interest.

I.

In early 1991, Red Cardinal Fifteen, Inc., Red Cardinal Sixteen,
Inc., and Red Cardinal Seventeen, Inc. ("Red Cardinal") entered into
an agreement with LFC Real Estate Marketing Services, Inc. ("LFC")

                    3
under which LFC agreed to auction three beach-front lots and a house
owned by Red Cardinal in Hilton Head, South Carolina. LFC and Red
Cardinal together established the minimum bid prices for the lots:
$2.4 million for the house and lot and $1 million each for the two
adjacent undeveloped lots. Under the agreement, only registered bid-
ders could bid at the auction. To become registered, a potential bidder
had to complete a bidder registration form and present to LFC a cash-
ier's check for $100,000 payable to herself or himself.

Having paid LFC $140,000 for expenses related to the auction, Red
Cardinal became concerned when, as the scheduled auction date
approached, LFC had not obtained any registered bidders. Approxi-
mately two weeks before the auction, Patrick Stanton, an employee
of LFC, informed Red Cardinal that they had their first registered
bidder--one Richard Chang. Stanton informed Red Cardinal that
Chang was a wealthy resident of Hong Kong believed to be in the
garment industry and that Chang had presented his cashier's check for
$100,000 to Stanton. LFC advised Red Cardinal that this was the only
information they had about Chang.

Four persons registered to bid at the auction, including Chang. The
auctioneer started the bidding at prices above the agreed minimums,
but lowered the minimum bid prices when bids were not forthcoming.
Within a minute after the auctioneer lowered the minimum bid to the
minimum amount agreed upon by the parties, Chang bid the mini-
mum of $4.4 million total on the three lots. No one else bid higher
on any of the lots. Chang therefore appeared to be the successful bid-
der on all three lots for the minimum bid of $4.4 million. At the con-
clusion of the auction, Chang refused to execute the sales documents
or tender his deposit.

On April 23, 1991, the Tuesday after the auction, in a recorded
telephone conference, William W. Lange, LFC's President, advised
Red Cardinal and its former counsel that Chang and his attorney had
contacted Lange and informed him that Chang "says he thinks he
overpaid for the property and he has no further interest in it. And he
tried to [inaudible] and the bottom line is he just would not--he just
said I think I've overpaid for the property. I don't think it's worth
what I paid for it and I have no further interest." Lange continued:

                    4
          I think this is Chinese mentality and that is, okay guys, it's
          your turn; although, I'm not sure where we are supposed to
          go now. We've been chasing this damn guy all over the
          country. He started out in Hilton Head, and we dealt with
          him yesterday in Miami, or he said he was in Miami. I pre-
          sume that he was, although, he said Sunday he was going--
          Saturday night he was going to Miami, and then he ended
          up spending the day in Hilton Head. So presumably, he was
          in Los Angeles today, but we don't even know that for sure.

In the telephone conference, Lange reiterated that Chang was a
wealthy buyer:

          The bottom line is . . . I think he is absolutely capable. . . .
          He showed up with the prerequisite amount of money. . . .
          I think he was certainly capable. And no one spends three
          days, especially a big hitter, screwing around with some
          property unless he had a genuine interest. . . . And I think
          if we had it to do again, I would set Patrick in the audience
          and had him bid $2.5 million; Chang would have gone to
          $2.6, and we probably would have had a deal and signed it
          that night.

Lange and LFC tried to reassure Red Cardinal that they would do
anything to get the sale to go through. Lange even said, "I mean, if
we've got a substantial commission on the line, I'd be on a plane to
Hong Kong tonight if I thought I could bring Mr. Chang back into this
deal."

Lange and LFC recommended that Red Cardinal now attempt to
sell the property by soliciting sealed bids. To prevent potential bid-
ders from questioning the value of the property which was now poten-
tially damaged, LFC concocted and put out a cover story that the first
sale fell through only because Chang injected a contingency unac-
ceptable to Red Cardinal. LFC ultimately procured a sealed-bid sale
of the three lots for $3 million.

When Red Cardinal attempted to locate Chang, LFC and Lange
said they could not provide Red Cardinal with any information, and
only reluctantly provided the bidder registration card ostensibly filed

                     5
by Chang. The bidder registration form provided only minimum
information about Chang: it represented that he lived in Hong Kong,
that his banks were in Hong Kong, and that he had no social security
number, driver's license, or telephone in the United States.

Red Cardinal eventually brought an action against LFC for breach
of contract. (LFC I) As that action proceeded, LFC and Lange at all
times denied having any knowledge of Chang other than the informa-
tion provided in the registration form. LFC did not make any allega-
tion in any pleading or discovery response that Chang had made a
conditional bid or that he was not otherwise bound to the contract.
Lange filed an affidavit in the action in which he swore that Chang
was a resident of Hong Kong and that he was the successful bidder
on each of the three parcels. The parties ultimately settled that action
and exchanged releases, based upon LFC's representation that it did
not have any relationship with Chang.

Red Cardinal finally located Chang where he was living in El
Torito, California, brought the instant action against him claiming
breach of contract, and moved for summary judgment. In support of
a cross-motion for summary judgment, Chang submitted a new affida-
vit from Lange which contradicted Lange's prior sworn statements.
Lange now swore, for the first time, that he "told Chang that if he
would bid on the property his bid would be conditioned upon review
and approval of the sales documentation."

This was not the only surprise. During discovery, Red Cardinal
acquired information which disclosed that, if Lange's now-
contradictory affidavit were believed, Chang had made only a condi-
tional bid on the properties; that Lange had instructed his employees
to avoid service of process; that Lange and LFC had falsely informed
the district court and Red Cardinal that Chang was a wealthy busi-
nessman from Hong Kong when they knew he was a retired tailor liv-
ing in El Torito, California; that Lange had concealed that he had
known Chang personally since 1979; that Chang had worked for
Lange as a translator; that Chang had known Lange's father, Clifford
Lange, for 25 years or more; that Lange had financed Chang's trip to
Hilton Head to bid on the property by paying for Chang's airplane
tickets, hotel room, and rental car; that Lange and LFC had concealed
that they knew Chang did not have the money to purchase the proper-

                    6
ties; that Chang did not complete the bidder registration form; that--
through two companies Lange controlled--Lange had been making
periodic and consistent payments totalling at least $40,000 to Chang
at Chang's California address for several years; and that Lange and
LFC had provided Red Cardinal with a fake bidder registration form
for Chang.

Based on this information, Red Cardinal amended its complaint to
add LFC and Lange as defendants. When the district court subse-
quently sanctioned Lange and LFC for taking inconsistent positions
in the two cases by voiding the release and settlement agreement in
the first action, Lange and LFC were required to withdraw the release
as an affirmative defense to the instant action. J.A. 796-98.

The case proceeded to trial in September of 1995. As now struc-
tured, it contained claims, inter alia, against Chang for breach of con-
tract and breach of contract accompanied by a fraudulent act, and
claims against LFC and Lange for breach of contract, breach of con-
tract accompanied by fraudulent act, and breach of fiduciary duty.
The district court denied LFC and Lange's motion to require Red Car-
dinal at the outset of trial to elect between its various claims because
of their inconsistencies. Following disclosure during the trial that
Chang would not appear to defend and that LFC had obligated itself
to indemnify Chang, the court did, however, require Red Cardinal to
elect before submission of the case to the jury whether it would pro-
ceed only on its claims against Chang or only on those against LFC
and Lange. Red Cardinal elected to drop its claims against Chang and
proceed only on those against LFC and Lange. At the conclusion of
the evidence, and following the abandonment by Red Cardinal of
some of its remaining claims, the district court therefore submitted to
the jury only Red Cardinal's claims against LFC for breach of con-
tract and against LFC and Lange jointly for breach of fiduciary duty.
The jury returned verdicts against LFC for $140,000 for breach of
contract and against LFC and Lange jointly for $1.4 million for
breach of fiduciary duty. Upon order of the court to elect, Red Cardi-
nal chose to accept the award for breach of fiduciary duty.

The court then denied Lange and LFC's post-verdict motions for
judgment as a matter of law and, alternatively, for a new trial; directly
remitted the $1.4 million jury verdict by the net amount owed on

                     7
LFC's agreed real estate commission; and denied Red Cardinal's
motion to amend the judgment to award pre-judgment interest.

LFC and Lange appealed the entry of judgment against them and
Red Cardinal cross-appealed the district court's grant of remittitur and
refusal to award pre-judgment interest.

II.

Lange and LFC assign three errors in challenging the judgment
against them: (1) the district court's denial of their post-verdict
motion for judgment as a matter of law; (2) the court's denial of their
alternative motion for a new trial on the ground of error in admitting
into evidence discovery materials from LFC I ; and (3) the court's
refusal, on their motion, to require a pre-trial election by Red Cardinal
between its several claims. We will take these in order.

A.

Lange and LFC contend that they were entitled to judgment as a
matter of law because, rightly assessed, the evidence was insufficient
to support a jury finding that their conduct caused any monetary loss
to Red Cardinal. As they rightly point out, it is elementary that an
essential element of this claim, as any, is that there be "some reason-
able connection between the act or omission of the defendant and the
damage which the plaintiff has suffered." Appellants' Br. 1 (citing
Keeton et al, Prosser and Keeton on Torts§ 41, at 263 (5th ed.
1984)). And, as they also rightly point out, this means that proximate
causation must be proved, which requires proof first of causation-in-
fact: that "but for" the act or omission charged, the injury claimed
would not have occurred. Keeton, supra,§ 41, at 265; Bramlette v.
Charter-Medical-Columbia, 393 S.E.2d 914, 916 (S.C. 1990). Under
that test, they say, the evidence did not suffice to prove causation-in-
fact but instead showed the exact opposite: that what ultimately hap-
pened is exactly what would have happened had Lange and LFC not
breached their fiduciary duty. This argument is based on their charac-
terization of the fiduciary duty they breached as being narrowly only
the duty to have timely disclosed to Red Cardinal their proposed use
of the sham Chang bid.1 So characterizing it, they point to testimony
_________________________________________________________________
1 Based on Lange's flat concession in trial testimony, the district court
properly ruled as a matter of law that Lange and, through him, LFC,

                    8
by a Red Cardinal official that had this been disclosed to Red Cardi-
nal before the auction, the property would have pulled from the auc-
tion. The argument then concludes that from this concession it is clear
that had their fiduciary duty not been breached--that is, had they
disclosed--the auction sale would not have taken place and Red Car-
dinal would have been in the same position, no better, no worse, than
it was when the auction that was held was effectively aborted--made
into a non-sale.

This argument might have at least some surface appeal if the fidu-
ciary duty that is its premise had only been to disclose to Red Cardi-
nal any questionable practices proposed for the auction sale in time
for Red Cardinal to forbid them or to call off the sale. Certainly the
duty included that of making timely disclosure of any such proposed
scheme but, just as certainly, it was not limited to that obligation. The
more fundamental duty deriving from the relationship was to conduct
the sale, with or without prior disclosure, in a way not posing obvious
risks to the business reputation of the owner and to the property's
value. See Landvest Assocs. v. Owens, 274 S.E.2d 433 (S.C. 1981).
The district court properly identified this as the fundamental duty
owed and breached and on that basis properly concluded that the evi-
dence was sufficient to prove that the breach of that broader duty
caused a diminution of the property's market value in the tainted and
limited buyer's market that resulted from the aborted auction. Red
Cardinal, slip op. at 9, 10. As the district court put it in denying the
post-verdict motion by LFC and Lange for judgment as a matter of
law:

          Viewed in the light most favorable to the non-moving party,
          the evidence clearly supports the jury award in this case. . . .
          There are a number of ways the jury could have structured
          its fiduciary duty award. The most likely scenario, however,
          is as follows. The extensive prior dealings between Chang
          and LFC, coupled with the fact that LFC brought Chang to
_________________________________________________________________
owed fiduciary duties to Red Cardinal. Red Cardinal Fifteen, Inc., et al.
v. Chang, et al., C/A No. 3:93-906-17, slip op. at 8, 9 (D.S.C. Dec. 6,
1995). The jury was submitted the issues of breach, loss, and amount of
any resulting damages.

                     9
          the sale could lead the jury to conclude that Chang was
          brought in as a "straw man" to pump up the bidding. The
          terms of the auction provided that the minimum sale price
          for all three lots was $4.4 million. Chang and three other
          bidders registered for the sale, fully aware of the minimum
          bid price. Chang, the straw man, then bid the minimum bid
          price once the bidding was open, thus scaring away the
          other three potential bidders. When none of the other three
          bidders topped Chang's minimum bid price, the auctioneer
          had no other choice but to strike the property down to
          Chang. Because Chang was LFC's straw man, LFC did not
          attempt to force him to go through with the sale but rather
          encouraged Red Cardinal to again market the property, this
          time on a sealed bid basis. In making this suggestion, Lange,
          on behalf of LFC, admitted that the aborted auction sale
          property probably damaged, or at least capped, the market
          value of the property. This led to Red Cardinal's reluctant
          decision to accept the $3 million that was offered at the sub-
          sequent sealed bid sale.

Id. at 10, 11.

We agree with that assessment and therefore find no error in the
district court's denial of the post-verdict motion of LFC and Lange
for judgment as a matter of law on Red Cardinal's breach of fiduciary
claim.

B.

The second error assigned by LFC and Lange is put as follows:
"The trial court erred in allowing [Red Cardinal] to present evidence
of discovery responses served in a prior case over appellants'
objection."2
_________________________________________________________________
2 We quote the issue verbatim as stated in appellants' brief to empha-
size the limited basis upon which it challenges the district court's denial
of their motion under Fed. R. Civ. P. 50(b) and 59(a) for a new trial in
the alternative. That motion was broader in scope, including as another
ground that the verdict was against the weight of the evidence on causa-

                    10
Appellants' argument, kept within the bounds established by the
issue as framed in their brief, see Fed. R. App. P. 28(a)(3), apparently
runs as follows. The court erred in allowing Red Cardinal to introduce
into evidence various discovery responses made by Lange and LFC
in LFC I that revealed the various misrepresentations that these par-
ties had made to Red Cardinal respecting Chang's identity, economic
status, and role as bidder in the auction sale. This evidence, they say,
was not admissible as "impeachment or reply evidence" because it
came in Red Cardinal's case-in-chief, nor was it admissible as sub-
stantive evidence because, if offered to prove misrepresentations, they
were made after the ultimate sale of the property, hence after termina-
tion of any fiduciary relationship. Appellants' Br. 11-13. And, the
argument runs, prejudice from this erroneously admitted evidence is
demonstrated by the evident jury confusion in giving a jury award of
$140,000 against LFC for breach of the marketing contract and an
award of ten times that much against LFC and Lange for breach of
fiduciary duty arising from that same contract. Id. at 8-11.

We need not reach the question whether any such prejudice as is
posited did result from admission of this evidence, for there was no
error in its admission.3 As the record plainly indicates, it was not
offered or admitted as impeachment or rebuttal evidence, but as sub-
stantive evidence. And, as such, it was clearly relevant, not to prove
post hoc misrepresentations as appellants suggest, but to prove breach
of the fiduciary duty of fair dealing with Red Cardinal. There is no
question that statements made in a prior judicial proceeding are
admissible as substantive evidence, assuming they are relevant and
otherwise admissible. Fed. R. Evid. 801(d)(1); see also Fed. R. Evid.
801(d)(2) (admissions of a party opponent).
_________________________________________________________________

tion and damages. That ground is not raised in the issue as presented on
this appeal. See Fed. R. App. P. 28(a)(3). We observe, however, that the
district court's assessment of the evidence on the causation and damages
issues demonstrates that had this ground also been properly assigned as
the basis of error, the assignment would have been without merit.
3 Though not critical to our decision that the evidence was properly
admitted, we note that to the extent there was any duplication in the
breach of contract and breach of fiduciary duty awards, it was removed
by the district court's requirement of an election.

                    11
C.

Lange and LFC's final claim of error is that the district court erred
by not requiring Red Cardinal to elect between inconsistent causes of
action and remedies prior to the presentation of evidence at trial. This
was not error. As the district court explained:

          The court did not require this election until all of the evi-
          dence was in. Defendants contend that these "contradictory
          legal theories" were confusing to the jury and the court
          should have required the election prior to the start of trial.

           In the normal case, the court would have required an elec-
          tion prior to the commencement of the trial. This case, how-
          ever, was far from the normal case. It was the defendants
          themselves who injected "contradictory legal theories" into
          this case by taking inconsistent positions during the history
          of this litigation. Moreover, Chang was somewhat equivocal
          regarding his relationship with LFC and Lange. As noted
          previously, Chang did not appear at trial. Chang's decision
          not to appear and LFC's agreement to indemnify Chang
          both came as a surprise to the court and, no doubt, to plain-
          tiffs. Plaintiff, therefore, could not be certain what evidence
          at trial would show. LFC and Lange had taken contradictory
          positions; Chang was not at trial; and LFC and Lange were
          calling the shots.

           In view of the inconsistent positions the defendants had
          taken in the past and the surprise indemnification, plaintiff
          could not be faulted for continuing to advance alternative
          theories and presenting all evidence available to the jury.
          Plaintiffs elected their remedy prior to going to the jury and
          the court instructed the jury only on the causes of action
          relating to LFC and Lange.

Red Cardinal, slip op. at 7, 8. And, following the return of verdicts
awarding damages on both of the alternative theories that were sub-
mitted to the jury, the district court avoided any duplication in the
awards by requiring a final election between them.

                    12
All this was perfectly proper under the Federal Rules of Civil Pro-
cedure, which allow inconsistent claims to be pleaded, see Fed. R.
Civ. P. 8(a), and under the general rule in the federal courts that elec-
tion between inconsistent claims and duplicative remedies may, in the
trial court's discretion, be deferred to and past submission to the jury
and return of verdicts as circumstances warrant. See United Roasters,
Inc. v. Colgate-Palmolive Co., 649 F.2d 985, 991 (4th Cir. 1981); see
generally 2A Moore's Federal Practice ¶ 8.32 (1992). South Carolina
law, were the matter considered substantive, is to the same effect.
Harper v. Etheridge, 348 S.E.2d 374, 379-80 (S.C. Ct. App. 1986).

Reviewing the district court's refusal to require pre-trial election
here for abuse of discretion, we find none.

III.

We next consider Red Cardinal's cross-appeal in No. 96-1115 chal-
lenging the district court's remittitur of its verdict and refusal to
award pre-judgment interest on its award. We take these in order.

A.

With their post-verdict motion for judgment as a matter of law,
Lange and LFC also sought in the alternative a remittitur of the $1.4
million award to $110,000, the amount retained by them under the
LFC I settlement agreement as real estate commission on the $3 mil-
lion sealed-bid sale. Red Cardinal, slip op. at 9. This was based on
their position that while they were entitled to judgment as a matter of
law on the breach of fiduciary claim because no loss had been proved,
the most, as a matter of law, that could be awarded for the breach was
the commission they had received. They therefore did not seek remit-
titur on the basis of claimed excessiveness of the verdict by the usual
device of a new trial on damages alone conditioned upon the plain-
tiff's refusal to remit to a specified amount, but for reduction by the
court because of manifest error of law in the inclusion of specific
items in the damage award. See generally Wright, Miller & Kane,
Federal Practice and Procedure 2d: Civil § 2815, at 159 (1995). The
district court granted a direct remittitur on this basis, but not on the
theory or in the specific amount sought by LFC and Lange. The court
reasoned instead that because the jury award of $1.4 million reflected

                     13
a proper finding that the breach of fiduciary duty had caused Red Car-
dinal to lose a $4.4 millioin sale at the auction ($4.4 million less the
$3 million received on the sealed bid sale), the award was overvalued
by the amount of commission ($264,000) that Red Cardinal would
have owed on a consummated auction sale. On this basis, the court
directly remitted the $1.4 million award by that commission amount
less the amount ($110,000) of the $180,000 commission earlier paid
to LFC for the sealed bid sale and retained by it under the LFC settle-
ment, resulting in a reduced judgment for $1,246,000.

Red Cardinal says simply that because LFC and Lange were found
to have breached their fiduciary duty in relation to the auction sale,
they should not be allowed to profit, as this remittitur effectively
allows them to profit, from their wrongdoing. We agree with that
position. The appropriate monetary remedy for a breach of fiduciary
duty may include both compensatory damages reflecting the value of
any resulting loss to the plaintiff, see Designer Showrooms, Inc. v.
Kelley, 405 S.E.2d 417, 419 (S.C. Ct. App. 1991), and, in addition,
a restitutionary award of any financial benefits realized by the wrong-
doer. See generally 2 Dobbs, Law of Remedies§ 10.4, at 668 (2d ed.
1993). Here, though LFC was not actually paid a commission for con-
ducting the aborted auction, the district court's remittitur has the
effect of allowing it. Because this is directly at odds with the restitu-
tionary principle that should apply in fixing monetary relief for this
breach, we conclude that the remittitur should not have been ordered
and must be vacated.4

B.

In South Carolina, as generally, pre-judgment interest may be
awarded on amounts found payable from the time when, either by
agreement or operation of law, payment was subject to demand, if the
sum is certain or capable of being reduced to certainty, even if the
amount is disputed by the parties. Brooklyn Bridge, Inc. v. South Car-
olina Ins. Co., 420 S.E.2d 511, 513 (S.C. Ct. App. 1992). In denying
such an award here, the district court concluded that because of the
_________________________________________________________________
4 The ultimate result is to leave LFC with the $110,000 which, under
the LFC I settlement, they were allowed to retain out of the $180,000
commission paid for negotiating the $3 million sealed-bid sale.

                     14
various legal theories and uncertainties present in this case, the
amount in dispute could not be thought either certain or capable of
being reduced to certainty. Red Cardinal, slip op. at 13, 14. Review-
ing that ruling de novo, as one of law, we find no error.

IV.

In No. 96-1066, we affirm the district court's denial of Appellees'
motion for judgment as a matter of law and, in the alternative, for a
new trial. In No. 96-1115, we affirm the district court's refusal to
award pre-judgment interest, but we vacate the court's remittitur and
remand for entry of a judgment modified to reflect the vacatur.

SO ORDERED

                    15
