STATE OF WISCONSIN IN COURT OF APPEALS
Robert
A. Benkoski,
Plaintiff-Respondent,
v.
Mark A. Flood,
Defendant-Appellant,
Kathleen M. Flood,
Defendant.
APPEAL from a judgment of the circuit court for Fond du Lac County: Robert J. Wirtz, Judge. Affirmed and cause remanded with directions.
Before Brown, P.J., Nettesheim and Snyder, JJ.
¶1 NETTESHEIM, J. This case makes its second appearance in the
court of appeals. This court previously
determined that Wis. Stat. §
710.15 (1999-2000)[1] and Wis. Admin. Code ch. ATCP 125 applied
to the contractual relationship between Mark A. Flood, the owner of a mobile
home park, and Robert A. Benkoski, the owner of certain mobile homes located in
the park. See Benkoski v. Flood,
229 Wis. 2d 377, 387-92, 599 N.W.2d 885 (Ct. App. 1999) (Benkoski I). We further held that Flood had violated Wis. Stat. § 750.15(4) and Wis. Admin. Code
§§ ATCP 125.06 and 125.09 by requiring Benkoski to remove his mobile homes
when sold. Benkoski I,
229 Wis. 2d at 393. We remanded for a
trial to determine Benkoski’s damages pursuant to Wis. Stat. § 100.20(5). Benkoski
I, 229 Wis. 2d at 393.
¶2 Following
the bench trial on remand, the trial court awarded pecuniary damages, attorney
fees and costs to Benkoski. Flood
appeals, raising the following issues:
(1) the trial court erroneously applied the ordinary civil burden of
proof; (2) under any burden of proof standard, the evidence is insufficient to
support the finding that Benkoski had entered into an agreement to sell his
mobile home; (3) the trial court erroneously calculated Benkoski’s damages; and
(4) the trial court erroneously awarded Benkoski attorney fees for his defense
of Flood’s counterclaim. We reject all
of Flood’s arguments. We affirm the
judgment.
FACTS
¶3 A
complete recitation of the underlying facts to this dispute has already been
set forth in our prior decision. See
id. at 380-83. For purposes
of this decision, we need only restate that Flood leased lots in his mobile
home park to Benkoski, who in turn rented his mobile homes on the lots to third
parties. The lease between Flood and
Benkoski provided that Benkoski could not sublet the sites unless prior
approval had been granted by Flood.
Later, Flood imposed an additional condition requiring that any
purchaser of a mobile home owned by Benkoski would have to remove the home at
the end of the lease. When Benkoski
attempted to sell one of the mobile homes, Flood refused to approve the
application for tenancy because Benkoski would not agree to the removal
condition. Id. at
380. As noted, we previously held that
Flood’s actions violated the administrative code which forbids a mobile home
operator from placing unreasonable restrictions on the sale of a mobile home
located in the park. Id.
at 391-92.
¶4 In
keeping with our remand, the trial court conducted a trial on damages. The court found that Flood’s actions
thwarted a potential sale by Benkoski of one of his mobile homes to Kenneth and
Linda Longsine for $6500. After
invoking the double damages provision of Wis.
Stat. § 100.20(5),
the court fixed Benkoski’s pecuniary loss
arising out of the lost sale at $10,240. Following a later hearing on attorney fees,
the court awarded Benkoski $51,262.51 in attorney fees and $1329.60 in costs.
¶5 Flood moved for reconsideration. He challenged (1) the trial court’s application of the ordinary burden of proof in this case versus the middle burden for which he had argued; (2) the trial court’s doubling of the lost sale price prior to deducting the fair market value of the mobile home; and (3) the trial court’s failure to offset the stream of rental income produced by the mobile home after the lost sale.
¶6 Following
a hearing, the trial court denied the reconsideration motion. The court held that the supreme court’s
decision in Carlson & Erickson Builders, Inc. v. Lampert Yards, Inc.,
190 Wis. 2d 650, 529 N.W.2d 905 (1995), supported its determination that the
ordinary civil burden of proof applied to this case. The court further held that doubling of the lost sale price was
appropriate in light of similarities between this type of case and Lemon Law
and landlord/tenant cases. In addition,
the court held that the rental income after the lost sale was not relevant to
the issue of Benkoski’s pecuniary loss.
DISCUSSION
¶7 While
Flood’s appellate brief breaks out into many issues and subissues, we see four
issues: (1) the proper burden of proof,
(2) whether the evidence showed an agreement
between Benkoski and the Longsines for the sale of the mobile home, (3) the
proper calculation of damages, and (4) the proper award of attorney fees.
¶8 We
begin with a discussion of our standards of review. The determination of the appropriate burden of proof required by
Wis. Stat. § 100.20(5) presents a question of statutory
interpretation. Carlson,
190 Wis. 2d at 658. The same standard
applies to Flood’s challenge to the trial court’s calculation of damages since
that argument rests on the meaning of “pecuniary loss” as that term is used in
the statute.[2] We
interpret the statute independent of the trial court’s interpretation. Id. Nonetheless, we benefit from the analysis performed by the trial
court. Id. “The principal objective of statutory
interpretation is to ascertain and give effect to the intent of the
legislature.” Id. We ascertain that intent by examining the
language of the statute and the scope, history, context, subject matter and
purpose of the statute. Hughes v.
Chrysler Motors Corp., 197 Wis. 2d 973, 978, 542 N.W.2d 148
(1996). We are also aware that remedial
statutes should be liberally construed to suppress the mischief and advance the
remedy that the statute intended to afford.
Id.
¶9 Flood’s
challenge to the trial court’s finding that Benkoski and the Longsines reached
an agreement for the sale of the mobile home requires that we apply the clearly
erroneous standard of review. See
Wis. Stat. § 805.17(2).
¶10 Finally,
appellate review of an award of attorney fees is limited to whether the trial
court properly exercised its discretion.
Hughes, 197 Wis. 2d at 987. Such discretion is properly exercised if the court “employs a
logical rationale based on the appropriate legal principles and facts of
record.” Id. (citation
omitted).
1. Burden of Proof
¶11 Flood
contends that the appropriate burden of proof to apply in calculating damages
under Wis. Stat. § 100.20(5) is
the middle burden—the clear and convincing evidence standard. See Wis
JI—Civil 205. Benkoski, on the other hand, argues that the
trial court was correct in applying the ordinary civil burden—the reasonable
certainty by the greater weight of the credible evidence standard. See Wis
JI—Civil 200.
¶12 Flood
offers two arguments in support of the middle burden of proof. First, he argues that his conduct is subject
to criminal penalties and, as such, State v. Fonk’s Mobile Home Park and
Sales, Inc., 133 Wis. 2d 287, 395 N.W.2d 786 (Ct. App. 1986), holds
that the middle burden of proof applies.
¶13 We
disagree that Fonk’s controls this issue. There, the State brought a civil action
against a mobile home park operator for violating Wis. Admin. Code § ATCP 125.07 by unreasonably restricting
its tenants’ resale of mobile homes. See
Fonk’s, 133 Wis. 2d at 290-91.
The trial court found that Fonk’s had violated the administrative code
and issued an injunction. See id.
at 291. One of the issues on appeal was
whether the State had satisfied its burden of proof. Both the State and Fonk’s agreed that the middle burden of proof
applied because the conduct involved was subject to criminal penalties. We also agreed. Id. at 301 & n.7.
¶14 However,
in Carlson, our supreme court distanced itself from our burden of
proof statement in Fonk’s.
The Carlson court stated, “The question of the appropriate
standard of proof was not, however, at issue in Fonk’s; the
parties in Fonk’s had agreed that the middle burden
applied.” Carlson, 190
Wis. 2d at 659 n.7. Thus, Carlson
observed that there were no published Wisconsin cases that addressed the
applicability of the middle burden of proof to a private, civil cause of action. Id.
at 658 n.7. Carlson went
on to hold that the ordinary burden of proof applies to cases under Wis. Stat. ch. 133—the “Little Sherman”
Antitrust Act—notwithstanding its provision for treble damages and possible
criminal penalties. See Carlson,
190 Wis. 2d at 667-68.
¶15 Although
Carlson was an antitrust case and this is an unfair trade
practices case, we conclude that Carlson represents the
appropriate framework for our burden of proof analysis. In deciding that the ordinary burden of
proof applied, the Carlson court noted the remedial aspects of
the antitrust law. The court held that
application of the lower burden advanced the legislative purpose of the
Wisconsin antitrust law and comported with the Wisconsin tradition of adhering
to interpretations of the federal antitrust law on which our state antitrust
law is based.[3] Id. at 662. The court noted
that the purpose of the antitrust statute was to prevent restraint of free
competition that harms the public, to prevent monopolies, and to generally
encourage free competition. Id. Toward that end, the legislature determined
that private, civil suits are an important method of enforcing the antitrust
statute because it was filled with incentives for private litigants: tolling of the statute of limitations, as well
as the awarding of costs and attorney fees.
Id. at 663. With
such incentives in place, private parties serve as “private attorney generals”
that supplement the limited resources of the state in enforcing the law. Id. at 663-64.
¶16 Wisconsin
Stat. § 100.20 is similarly
remedial. The statute addresses methods
of competition and trade practices.
Subsection (5), which provides for double damages together with attorney
fees and costs, supplies the teeth to the unfair trade practice regulations
promulgated under subsec. (2) of the statute.
Wisconsin Admin. Code ch.
ATCP 125, which governs mobile home parks, was created pursuant to this
authority. In our earlier decision, we
held that Flood’s policy mandating the removal of Benkoski’s mobile homes upon
resale violated §§ ATCP 125.06 and 125.09. See Benkoski I, 229 Wis. 2d at 393. This violation of ch. ATCP 125 entitled
Benkoski to damages under § 100.20(5).
¶17 The
purposes and policies underlying Wis.
Stat. § 100.20(5) are very much like those underlying the Wisconsin
antitrust law as discussed in Carlson. In Shands v. Castrovinci, 115 Wis. 2d 352, 340
N.W.2d 506 (1983), our supreme court laid out these policies. First, the awarding of double damages and
attorney fees encourages those injured by unfair trade practices in violation
of the administrative regulations to bring forward their causes of action. Id. at 358. Second, the statutory remedies encourage
individuals to act as “private attorney generals” in enforcing their rights,
with the aggregate effect of these individual actions operating to enforce the
public’s rights. Id. Third, the statutory remedies deter
impermissible conduct that violates administrative regulations because they
subject the violator to double damages, attorney fees and costs. Id. Fourth, private actions augment enforcement of the administrative
regulations by the department of justice, which has insufficient resources to
prosecute all violations. Id.
at 358-59. The application of the
ordinary civil burden of proof fosters these policies and factors.
¶18 As his
second argument in support of the middle burden of proof, Flood relies on the
law of punitive damages, likening those damages to the multiple damages authorized
by Wis. Stat. § 100.20(5). Flood
argues, “[T]here is indeed a long line of Wisconsin cases which strongly
suggest that the middle burden of proof is to be applied in multiple damages
cases regardless of whether conduct that is subject to criminal penalties is
involved.” Flood claims that Carlson
recognizes as much. We disagree. In fact, Carlson is to the
contrary because it explicitly recognizes that there are important distinctions
between common law punitive damages—which traditionally call for the higher,
middle burden of proof, see Carlson, 190 Wis. 2d at 659—and
statutory multiple damages. Id.
at 660 n.9. Thus, Flood’s reliance on
the punitive damages cases is misplaced.
We agree with the trial court that the ordinary burden of proof is the
proper standard to apply as it best advances the remedial purposes of the
statute.
2.
Sufficiency of the Evidence
¶19 Next,
Flood argues that Benkoski failed to meet the burden of proof under any
standard. Specifically, Flood argues
that the evidence does not establish an agreement between Benkoski and the
Longsines for the sale of Benkoski’s mobile home. On this point, each party is able to point to certain evidence
supporting their competing positions.
This necessitated that the trial court engage in fact-finding. As such, we will affirm the trial court’s
findings unless clearly erroneous. See
Wis. Stat. § 805.17(2).
¶20 The
key pieces of evidence on this issue are the various documents memorializing
the agreement between Benkoski and the Longsines and the testimony of Linda
Longsine. At trial, Benkoski submitted
a copy of the application for tenancy signed by him and the Longsines, which
was submitted to Flood for his approval.
In addition to personal information about the prospective tenants, the
document lists an agreed upon sale price of $6500 for the mobile home, which
was to be financed by Benkoski. The
record also contains copies of two receipts issued by Benkoski to the
Longsines. The first one is in the
amount of $50 and indicates that the payment was a partial down payment on the
purchase of the mobile home. The second
one is for $950 and indicates that the payment was in part for rent, in part a
security deposit and in part for a credit report, with the balance to be
applied toward the purchase price. A
cover letter was also submitted to Flood with the application for tenancy that
states that the Longsines were purchasing the mobile home in question, and that
they were “interested in completing this deal as soon as they receive
confirmation from [Flood].” Flood’s
response was to reject the Longsines’ application for tenancy and reiterate his
policy that Benkoski’s mobile homes would have to be removed from his park upon
their next sale.
¶21 The
nature of the agreement between the Longsines and Benkoski became a little more
uncertain following Linda Longsine’s testimony at trial. Flood argues that in order for Benkoski to
satisfy his burden of proof, he had to show that “but for the Floods’ refusal
to process the Longsines’ Application for Tenancy, the Longsines would have
purchased the mobile home.” Flood
believes that Linda’s testimony concerning “her readiness and willingness to
purchase the mobile home was equivocal at best.” Flood supports this with portions of Linda’s testimony on
cross-examination where she said that Benkoski offered several occupancy
options and that she chose the “rent-to-own” option. However, she also said that she did not think this arrangement
obligated her to purchase the mobile home.
Flood further cites to portions of Linda’s testimony stating that she
and her family continued to rent Benkoski’s mobile home for a period of nine
months, but moved out to purchase a different mobile home because Benkoski was
slow to respond to complaints about the home and it was too small for her
family.
¶22 The
trial court also questioned Linda about her understanding of the agreement,
which elicited the following testimony:
Q In your mind, on the 3rd of
January of ’95 when you signed the [application for tenancy], did you have an
understanding of what you would have been purchasing and for how much
A Yes.
Q —if anything? What?
A We would have been purchasing—we would have
purchased this mobile home for the price that he has, $6,500.
Q And what was that contingent upon, if
anything?
A Can you rephrase that?
Q Okay.
You were going to do that if what happened?
A If he could get Flood to
approve us, but Flood had told us—or had said that we would have to move the
mobile home out.
¶23 Ultimately,
the trial court concluded that an agreement to purchase the mobile home
existed, that the agreement was subject to Flood’s approval of the application
for tenancy, and that but for Flood’s denial of the application, the Longsines
would have purchased Benkoski’s mobile home for $6500. The court also viewed the money paid by the
Longsines to Benkoski as part performance on the deal. It is for these reasons that the court
believed the Longsines were “ready, willing and able buyer[s] to purchase the
home at that time … prior to Flood’s … refusal to accept the application.” While it is true that the Longsines later
changed their minds about purchasing the mobile home because they became
unhappy with the size and condition of the home, the evidence supports the
trial court’s implicit determination that had Flood approved the application
for tenancy, the deal would have closed.
The trial court’s finding that Benkoski and the Longsines reached an
agreement for the sale of the mobile home was not clearly erroneous.
3. Calculation of
Damages
¶24 Flood challenges the trial court’s calculation of damages. Flood’s
first argument focuses on the meaning of “pecuniary loss” as used in Wis. Stat. § 100.20(5), and how
that term bears upon the methodology intended by the legislature in calculating
damages under that section. As stated
earlier, this issue presents a question of statutory interpretation that we
review de novo.
¶25 Flood
argues that the trial court erred in doubling Benkoski’s loss from the lost
mobile home sale prior to subtracting the fair market value of the mobile
home. Borrowing from Lemon Law and
landlord/tenant law, the court determined that Benkoski’s initial damages were
$6500 for the purchase price he was to receive and $120 in advertising
costs. The court then doubled that
amount to $13,240. Thereafter, the
court deducted the fair market value of the mobile home—$3000—to produce a net
recovery to Benkoski of $10,240.
¶26 Flood
contends that the trial court should have subtracted the fair market value of
the mobile home from the sum of the purchase price and advertising expenses
prior to applying the damage multiplier in Wis.
Stat. § 100.20(5). Instead
of the trial court’s analogy to Lemon Law and landlord/tenant law, Flood argues
for a contract law “benefit-of-the-bargain” approach.[4]
¶27 But
the supreme court rejected an argument similar to Flood’s in Hughes,
a Lemon Law case. There, Chrysler
argued that pecuniary loss should be limited to out-of-pocket expenses rather than
the full purchase price of the car. See
Hughes, 197 Wis. 2d at 978.
Instead, the supreme court concluded that the legislature intended to
include the purchase price in pecuniary damages under the Lemon Law. Id. at 982. The court based its holding on the following
factors: (1) it would provide consumers
with remedies that are meaningfully better than those afforded by statute prior
to enactment of the Lemon Law; (2) doubling the purchase price as damages would
provide more incentive for manufacturers to resolve disputes more quickly,
without litigation; and (3) recovery would be large enough to give vehicle
owners incentive to bring suit. Id.
at 983.
¶28 The
court of appeals has also rejected a similar argument in Moonlight v. Boyce,
125 Wis. 2d 298, 372 N.W.2d 479 (Ct. App. 1985). Moonlight is particularly instructive because it
involves landlord/tenant regulations with violations subject to the penalties
set out in Wis. Stat.
§ 100.20(5)—the same remedies afforded in this case. In Moonlight, the landlord
argued that there were no pecuniary damages arising out of the tenant’s
improperly withheld security deposit because the landlord’s counterclaim award
for damage to the property exceeded the amount of the security deposit. See Moonlight, 125 Wis. 2d at
303. This court concluded, however,
that once an administrative code violation was found, the tenant suffers a
pecuniary loss under § 100.20(5) in the amount of the security deposit,
regardless of the amount of damages the landlord may recover on a
counterclaim. Moonlight,
125 Wis. 2d at 305-06. We based this
holding on the purposes of the administrative code provisions, § 100.20(5) and
the policy interests discussed in Shands. See Moonlight, 125 Wis. 2d at
306. As such, we held that the tenant
was entitled to the remedies of § 100.20(5), including double the amount
of the pecuniary loss. Moonlight,
125 Wis. 2d at 306.
¶29 Moreover,
Flood’s proposed methodology would create a scenario counter to that envisioned
by the legislature when it created this remedial statute. As Benkoski points out, in the average case,
an injured party would rarely be able to negotiate a price greater than market
value for his or her property. In such
a case, an injured party would be remediless because he or she would still have
his or her property—thus zeroing out the amount of pecuniary loss prior to
applying the damage multiplier. Flood’s
approach does not promote the purposes and objectives that lie behind
the legislature’s creation of the damage multiplier provision in Wis. Stat. § 100.20(5). Thus, we agree with the trial court’s method
of calculating damages because it furthers the statutory objectives behind § 100.20(5). We hold that the
trial court properly doubled Benkoski’s lost sale price and advertising expense
prior to subtracting the fair market value of the mobile home that Benkoski
retained.
¶30 Flood’s final argument regarding calculation of damages is that the evidence does not support any claim for damages because Benkoski continued to derive financial benefit from the stream of rental income that the mobile home produced after the lost sale. Flood develops this argument by piecing together Benkoski’s rents and expenses, and comparing them to what Benkoski would have made through the sale of the mobile home. But Flood offers no authority for this novel method of calculating pecuniary loss under Wis. Stat. § 100.20(5). Instead, we agree with the trial court’s analysis:
[Benkoski] attempted to sell the mobile home … he had an offer and it was
frustrated, so, therefore, I felt that was the truest measure of damages at
that snapshot in time as to say when … the violation of law occurred according
to the Court of Appeals. He attempted
to sell a mobile home and he couldn’t and that was the best measure of what his
loss was at that particular time. What
might have happened in the future, I think, would be speculation on my part
from either the income approach or from any other approach of how he might have
invested that money from the sale of the mobile home.[5]
¶31 Harkening
back to our repeated emphasis on the statutory objectives behind Wis. Stat. § 100.20(5), we hold that
the trial court’s answer to this argument was the proper one. Adoption of Flood’s proposal would only
serve to penalize mobile home owners who are able to turn a profit through
rental activities despite a park owner’s violation of the statutes and
administrative regulations. Such a result
would not further the statutory objectives we have recited.
¶32 Although
this is not a contract case, we find additional support for our holding in the
law of contracts. Flood’s unfair trade
practices thwarting Benkoski’s potential sale caused damages akin to those
caused by a breach of contract. Wisconsin JI—Civil 3735, entitled
“Damages: Loss of Expectation” states,
[t]he measure of
damages for a breach of contract is the amount which will compensate the
plaintiff for the loss suffered because of the breach. A party who is injured should, as far as it
is possible to do by monetary award, be placed in the position in which he or
she would have been had the contract been performed.
We conclude that the
“pecuniary loss” concept set out in Wis.
Stat. § 100.20(5)
is similar to this concept of damages set out in the law of contracts. We hold
that the trial court was correct in limiting its consideration of damages to
those existing at the time of the rejected application for tenancy.
4. Attorney Fees
¶33 Flood
argues that the trial court erred in awarding Benkoski attorney fees incurred
in defense of his counterclaim. As
stated earlier, our review of this question is limited to whether the circuit
court properly exercised its discretion.
Hughes, 197 Wis. 2d at 987. Flood bases his argument upon this court’s decision in Paulik
v. Coombs, 120 Wis. 2d 431, 355 N.W.2d 357 (Ct. App. 1984), which the
trial court found inapposite. Flood
contends that the trial court erroneously distinguished Paulik.
¶34 
Paulik
involved a landlord/tenant dispute where the landlord was guilty of violations
of the administrative code, but was successful on a counterclaim producing
damages that exceeded the tenants’ statutory damages under Wis. Stat. § 100.20(5). See Paulik, 120 Wis. 2d
at 435. In keeping with
§ 100.20(5), we held that the tenants were entitled to double damages and
reasonable attorney fees even though they were unsuccessful in defending
against the landlord’s counterclaim. Paulik,
120 Wis. 2d at 438. We remanded the
matter to the trial court for a determination of the tenants’ reasonable
attorney fees. Id. at
438-39. We held that “[t]he
determination of attorneys fees under sec. 110.20(5), Stats., however, should
not include those incurred in defending against Coombs’ counterclaim.” Paulik, 120 Wis. 2d at 439
n.5. Flood seizes on this language in support
of his argument that Benkoski’s attorney fees award should not have included
fees expended in defending on Flood’s counterclaim.
¶35 
Flood
places too general a reading on Paulik. There, the tenant’s claim was based on the landlord’s failure to
provide the requisite written statement accounting for the retention of a
security deposit. Id. at
434 n.3. None of those facts was directly
related to the landlord’s counterclaim for rents and damages. In our case, however, Flood’s counterclaim
was premised on Benkoski’s alleged failure to remove the mobile home units when
they became vacant. This, of course,
was also the very crux of Benkoski’s claims that Flood had committed an unfair
trade practice under Wis. Stat. § 710.15(3)(b) and
(4) and Wis. Admin. Code § ATCP 125.06(1)(a). See Benkoski I, 229 Wis. 2d at
381. As such, these competing claims
were inextricably caught up with each other.
¶36 
In its
thorough and well-reasoned decision, the trial court made the same observation:
In order for the plaintiff to prosecute this claim effectively and prevail on his own original complaint, he needed to defeat both the seventh affirmative defense as well as the defendant’s counterclaim. Both claims were inextricably intertwined with the prosecution of the plaintiff’s claim and for those reasons I will deny no attorney’s fees to the plaintiff for defense of the counterclaim.
¶37 We
conclude that the trial court did not erroneously exercise its discretion in
awarding Benkoski his attorney fees incurred in defense of Flood’s
counterclaim.
¶38 As a
final matter, we address Benkoski’s request for attorney fees incurred on
appeal. This question was answered by
our supreme court in Shands when it held that a plaintiff who recovers
attorney fees at the trial court level shall recover further attorney fees
incurred on a successful defense of the award on appeal. See Shands, 115 Wis. 2d at
359. Therefore, we hold that Benkoski
is entitled to his appellate attorney fees and remand this case to the trial
court for such a determination.
CONCLUSION
¶39 We
hold that the ordinary, civil burden of proof applies to actions for damages
occasioned by violations of Wis. Admin.
Code ch. ATCP 125 and that the trial court was not clearly erroneous in
concluding that Benkoski had satisfied this burden. We hold that the trial court properly doubled Benkoski’s
pecuniary losses prior to offsetting this amount by the fair market value of
the mobile home still in his possession.
We hold that the evidence supports the damage award. We hold that the trial court properly
exercised its discretion in awarding Benkoski attorney fees incurred in defense
of Flood’s counterclaim because the claims were inextricably intertwined. Finally, we hold that Benkoski is entitled
to his attorney fees incurred on this appeal and we remand to the trial court
for a determination on that matter.
By the Court.—Judgment
affirmed and cause remanded with directions.