### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk November 25, 1997

TO: All recipients of the captioned opinion RE: 96-5150 & 96-5167, Strickland v. AT&T Filed November 4, 1997
Please be advised of the following correction to the captioned decision: In the attorney designation section on the first page of the opinion, counsel are reversed. In fact, Mr. Neff and Mr. Brune appeared for Defendant-Appellant; Mr. Hoster and Ms. Eden appeared for Plaintiff-Appellee. Please make the appropriate correction. Very truly yours, Patrick Fisher, Clerk

Susie Tidwell Deputy Clerk

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 4 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STRICKLAND TOWER MAINTENANCE, INC., an Oklahoma Corporation,Plaintiff-Appelle, CrossAppellant, v. AT&T COMMUNICATIONS, INC., a Delaware Corporation,Defendant-Appellant, CrossAppellee. No. 96-5150 & 96-5167

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D. Ct. No. 94-CV-1015)
Craig W. Hoster (Barbara J. Eden with him on the br iefs), Baker & Hoster, Tulsa, Oklahoma, appearing for Plaintiff-Appellee. Jonathan C. Neff (Kenneth L. Brune with him on the briefs), Brune & Neff, P.C., Tulsa, Oklahoma, appearing for Defendant-Appellant.
Before PORFILIO, ANDERSON, and TACHA, Circuit Judge s.
TACHA, Circuit Judge.
Defendant AT&T Communications, Inc. appeals from anadverse jury- 2 -

verdict and award of attorney’s fees in this contra ct action. Plaintiff Strickland Tower Management (“STM”) cross appeals for, among o ther things, prejudgment interest on its damages. We take jurisdiction of t his matter pursuant to 28 U.S.C. § 1291. We now affirm in part and reverse in part. Background For 25 years preceding this dispute, STM performed services for AT&T on a number of different contracts. These contracts w ere STM’s largest source of revenue. From 1988-91, payments from AT&T constituted 90 percent of STM’s total income. In the summer or fall of 1990, STM and AT&T discuss ed the possibility of STM’s overseeing the burying of a 46-mile-long fibe r-optic cable in the St. Louis, Missouri area. As part of its work on the project- -known as the FlorissantHillsboro Lightguide Project--STM would be requiredto provide many services, including oversight of the project’s construction c rews. During the preliminary discussions, an AT&T representative informed STM th at STM could use “recorders” instead of “inspectors” to supervise th e crews. Recorders are a less skilled, and consequently less expensive, class of laborers than inspectors. STM relied on AT&T’s comment about recorders in submitt ing its proposal for the project. In December of 1990, the parties signed a contract for STM’s services on1 An AT&T representative, Mr. David Seals, denied that he ever made such an

offer to Strickland and STM. We find this factual dispute irrelevant to AT&T’s appeal; thus, we assume that AT&T made the statement. - 3 - the Lightguide Project. The contract set STM’s compensation at 23.5 percent of the “total project cost.” The contract did not def ine “total project cost” but did place responsibility for calculating the total costwith AT&T. The contract also contained an incentive; STM would receive an additi onal 1 percent of the total project cost if STM kept that cost at less than 2 p ercent above the “bid price.” In 1991, after the project had begun, AT&T represen tatives met with STM authorities. At that meeting, AT&T declared that t hey wanted inspectors to be used on the job, not recorders. AT&T also demanded that an AT&T representative manage the project from that time fo rward. This demand conflicted with the terms of the contract, which gave STM management responsibility over the project. According to Clyd e Strickland, owner of STM, AT&T assured STM at the meeting that STM would rece ive future work to cover any losses resulting from the proposed changes. 1 STM officials interpreted this comment as a threat that if STM did not make the ch anges, AT&T would not give them future work. STM then agreed to the changes. The parties met in Tulsa in August 1992 after STM h ad completed the project. There, AT&T informed STM that the total p roject cost was $6,514,891. AT&T subsequently compensated STM based on that fig ure. Later, STM- 4 -

discovered an internal AT&T accounting record, know n as the “FD-10,” which indicated that the total cost of the Lightguide Pro ject was actually $7,229,874. AT&T accounts for the difference between the figure it gave at the Tulsa meeting and the higher one in the FD-10 by noting that the FD-10 includes many of AT&T’s internal expenses that the parties did not i ntend to include in the contract’s “total project costs.” STM filed suit against AT&T based on a variety of c ontract, fraud, and tort claims. The district court granted AT&T summary ju dgment on all but three of STM’s claims, which went to trial. First, STM asse rted that AT&T committed actual fraud by misrepresenting the “total project cost.” Second, STM asserted that AT&T breached the written contract by paying S TM 23.5 percent of $6,514,891 rather than 23.5 percent of $7,229,874, the real “total project cost.” Finally, STM asserted that AT&T used economic dures s to force STM to agree to use inspectors and hand control over the project to AT&T. The jury found against STM on actual fraud but awar ded it $470,601 in restitutionary damages on the economic duress claimand $172,973 for AT&T’s breach of the written contract. The district courtthen denied AT&T’s motion for judgment as a matter of law on economic duress and breach of contract. The district court also granted STM $118,690 in attorne y’s fees relating to the breach of contract claim but denied STM’s request for prej udgment interest.- 5 -

AT&T presents three major issues on appeal and STM raises one major issue on cross appeal. AT&T appeals the district c ourt’s refusal to grant it judgment as a matter of law on STM’s claims of econ omic duress and breach of written contract. Also, if we do not grant AT&T j udgment as a matter of law for breach of contract, AT&T urges this court to revers e the award of attorney’s fees related to that claim. In its cross appeal, STM as ks us to award it prejudgment interest on the jury verdicts for economic duress and breach of contract. The parties presented several additional arguments in t heir appeals. We address those arguments after discussing the four issues noted ab ove. Discussion The district court applied Oklahoma law to this cas e and neither party challenges that finding on appeal. Therefore, we a ccept the view of the district court that Oklahoma law applies. See Jordan v. Bowen , 808 F.2d 733, 736 (10th Cir. 1987) (“Appellants who fail to argue [an] issu e in their brief are deemed to have waived [it] on appeal.”). I. AT&T’s Appeals for Judgment as a Matter of Law A. Standard of Review First, we address AT&T’s appeal of the district cou rt’s denial of judgment as a matter of law on both the economic duress clai m and the breach of written contract claim. “We review de novo the district co urt’s determination of a motion- 6 -

for judgment as a matter of law, applying the same standard as the district court.” Mason v. Oklahoma Turnpike Authority , 115 F.3d 1442, 1450 (10th Cir. 1997). A party can obtain judgment as a matter of law in i ts favor “only if the proof is all one way or so overwhelmingly preponderant in favor of the movant as to permit no other rational conclusion.” Conoco Inc. v. Oneo k, Inc. , 91 F.3d 1405, 1407 (10th Cir. 1997) (quotations omitted). Using this standard, a court will not substitute its conclusions for that of a jury but m ust enter judgment as a matter of law “if ‘there is no legally sufficient evidentiary basis . . . with respect to a claim or defense . . . under the controlling law.’” Mason , 115 F.3d at 1450 (quoting Harolds Stores, Inc. v. Dillard Dep’t Stores, Inc. , 82 F.3d 1533, 1546-47 (10th Cir. 1996)). B. Economic Duress We hold that under the controlling Oklahoma law, ST M failed to provide legally sufficient evidence of economic duress. Th e doctrine of economic duress grew from a narrow band of cases that provided reli ef from contracts secured through actual imprisonment or threats to the reluc tant contracting party’s life or limb. See John D. Calamari & Joseph M. Perillo, C ONTRACTS § 9-2 (3d ed. 1987). The doctrine has evolved into one that seek s to “impos[e] . . . certain minimal standards of business ethics in the market place.” Centric Corp. v. Morrison-Knudsen Co. , 731 P.2d 411, 413 (Okla. 1986). One must read th is- 7 -

statement in light of the doctrine’s historically l imited scope and the fact that ordinary “[h]ard bargaining . . . [is] acceptable, even desirable, in our economic system” and should not be discouraged by the courts . Id. at 413-14. In Oklahoma, economic duress allows a party to avoi d a contract that it has entered if a “wrongful act [of the other party was] sufficiently coercive to cause a reasonably prudent person faced with no reasonable alternative to succumb to the perpetrator’s pressure.” Id. at 416. As that rule suggests, a party seeking to prove economic duress must prove that the defendantcommitted a wrongful act. More importantly, however, the plaintiff must also show a causal relationship between the bad act and the contract at issue. The defendant’s bad act, not something else, must have forced the plaintiff to s ign the burdensome contract. As the Centric court stated, “the coercing party has been subject ed to legal sanctions if . . . its actions or threats causedimpaired bargaining power. . . .” Id . (emphasis added). A litigant cannot, therefore, make out a claim of e conomic duress by alleging merely that the opposing party took advant age of her weak negotiating position or because of “business necessities.” Id. at 417; accordBell v. United States , 380 F.2d 682, 686 (10th Cir. 1967) (“‘The asserti on of duress must be proven by evidence that the duress resulted from de fendant’s wrongful and oppressive conduct and not by plaintiff’s necessiti es.’” (quoting W.R. Grimshaw- 8 -

Co. v. Nevil C. Withrow Co. , 248 F.2d 896, 904 (8th Cir. 1957))). An independent contractor’s dependence on one particul ar source of employment is just such a business necessity. That dependence may allow the employer to squeeze uncomfortable concessions out of the contra ctor during business negotiations. It does not, however, result from any wrongful act of the employer. Therefore, it is not the basis for avoiding any res ulting contracts. In Sinclair Refining Co. v. Roberts , 206 P.2d 193 (Okla. 1949), cited by the Centric court, 731 P.2d at 416 n.16, a distributor had con tinually agreed to decrease its contract prices for one wholesaler whe never the wholesaler threatened to remove its business. The court foundthat the distributor’s weak bargaining position did not justify recision of the modified contracts. See Sinclair Refining , 206 P.2d at 198. This case is very similar to Sinclair Refining . Here, STM alleges that AT&T threatened to remove its business if STM did n ot hire inspectors and allow AT&T to take control. STM agreed to those changes because of its financial dependence on AT&T. STM agreed to the modification s “because of the volume of work that [it was] doing for [AT&T].” Pretrial Conf. at 12. STM “had no reasonable economic choice” and made concessions be cause of “the preponderance of the work, over 90 percent, that [i t was] doing for AT&T and had done for such a time period.” Id. at 12-13.- 9 -

Even if AT&T engaged in wrongful conduct by misrepr esenting the quality (and hence, the cost) of labor that it would reques t from STM, that misrepresentation was not a bad act that led to the contract modification. If AT&T had been a small company with whom STM did notplan to work with again, STM may have denied AT&T’s request for more expensive labor, finished the job, and been on its way. On this project, the situation was different. STM’ s business dependence on AT&T drove STM’s decisions. STM readily admits that point, and there is no evidence to the contrary. We hold, therefore, thatbecause duress imposed by one’s own business necessities cannot support a cla im of economic duress in Oklahoma, there is no legally sufficient evidentiary basis with respect to this claim under the controlling law. See Mason , 115 F.3d at 1450. We therefore reverse the district court and grant AT&T judgment as a matter of law on the claim of economic duress. C. Breach of Written Contract We next address the district court’s denial of AT&T ’s motion for judgment as a matter of law on STM’s claim of breach of written contract. We review the district court’s decision de novo, using the standard of review set forth above. Here, we affirm the district court’s decision, as S TM provided evidence upon which a juror could make reasonable inferences in S TM’s favor.- 10 -

The parties’ contract required AT&T to pay STM a pe rcentage of the “total project costs.” In its breach of contract claim, S TM sought 23.5 percent of the difference between the $7,229,874 total cost figure contained in the FD-10 and the $6,514,891 cost that AT&T used in setting STM’s compensation. To assess whether AT&T is entitled to judgment as a matter of law, we must examine STM’s evidence that the “total project cost,” as us ed in the contract, was $7,229,874. The contract did not define “total project cost.” The district court appropriately ruled that because of the term’s ambi guity, parol evidence could be admitted to illuminate what the parties meant by it . Tr. at 67; see , e.g. , United States v. Federal Ins. Co. , 634 F.2d 1050, 1051 n.1 (10th Cir. 1980). STM’s most persuasive evidence on this point was the FD-10 its elf, an AT&T accounting record of the Lightguide Project. The FD-10 is a “ Financial Project Completion Report.” It shows a final cost of $7,229,874.74 fo r the Lightguide Project. The FD-10 included AT&T’s “internal costs,” including m ore than $500,000 attributable to AT&T’s internal allocation of inter est on capital. On appeal, AT&T argues that we should grant it judg ment as a matter of law because there is no evidence from which a jurorcould infer that the FD-10, particularly the “internal costs” tabulated in it, reflected what the parties meant by “total project cost.” The FD-10 itself is evidence , however, and some pieces of- 11 -

evidence draw their own inferences. The mere fact that AT&T produced such a document and titled it a “Financial Project Complet ion Report” could indicate to a reasonable person that the document reflected AT&T’ s view of the total project costs. Other factors bolster that conclusion. Mos t importantly, the contract gives AT&T responsibility for tracking the total project costs. Because AT&T produced no other accounting record of the Lightgui de Project, a juror could reasonably conclude that the FD-10 was AT&T’s track ing of the costs under the contract. Furthermore, Dick Lowe, an employee of S TM, testified that the parties considered both AT&T’s internal and external costs to be part of the total project costs. Tr. at 485-86. Mr. Lowe did not mention al location of interest on capital specifically, but he did state that the parties con sidered all of AT&T’s internal costs to be included in the total project cost. Se e id . at 490-91. This evidence on the record, and the reasonable inferences that a ju ror could draw from it, suffice to prevent judgment as a matter of law for AT&T. AT&T alternatively argues that it is entitled to ju dgment as a matter of law in spite of the apparent sufficiency of the above e vidence. According to AT&T, STM released AT&T from its contractual obligation t o pay STM a percentage of the total project costs by agreeing to an accord an d satisfaction at the Tulsa meeting. Revisiting the standard for judgment as amatter of law, we note that AT&T’s accord and satisfaction defense will not be dispositive unless “the- 12 -

evidence points but one way” and no reasonable juro r could find that the accord and satisfaction did not take place. Mason , 115 F.3d at 1450. Under Oklahoma law, an accord and satisfaction occu rs when parties agree to discharge each other’s obligations under an old contract and perform under a new contract. See FDIC v. Inhof , 16 F.3d 371, 374-75 (10th Cir. 1994). There must be “‘a substitution by agreement of the partie s of something else in place of the original claim.’” Id . at 374 (citation omitted). AT&T contends it is e ntitled to judgment as a matter of law because the parties settled on a dollar amount for a final payment at the Tulsa meeting. This argument is unavailing. For an accord and satisfaction to have taken place, the parties m ust have agreed that AT&T would give STM something different from the origina l contract obligation. Id

. There is significant evidence in the record that th e parties did not make a substitute agreement in Tulsa, and that they believ ed the original contract was still in force. STM’s final invoice to AT&T is den ominated the “[f]inal invoice for project management on the Florissant-Hillsboro Fiber Cable, per exhibit B in our contract, dated Dec. 3, 1990 .” Appellant’s. App. Tab 17 at 2 (emphasis added). Further, when asked on direct examination whether the parties had “settled” on STM’s compensation at the Tulsa meetin g, Philip Gustin, a STM employee, responded, “According to the contract, ye s.” Tr. at 1322. A juror could reasonably infer from this evidence that the parties did not agree to release- 13 -

each other from the original contract terms at the Tulsa meeting. We therefore affirm the district court’s denial of judgment as amatter of law. III. Attorney’s Fees Under Section 936 We have vacated the verdict in favor of STM on econ omic duress, and therefore, we do not need to consider STM’s argument on cross appeal that the district court should have granted attorney’s fees for STM’s counsel’s work on that claim. Cf. Thompson v. Independent Sch. Dist. , 886 P.2d 996, 998 (Okla. 1994) (holding that an award of attorney’s fees is “automatically vacated once the underlying judgment upon which it had been based wa s reversed.”). STM’s breach of contract verdict, however, remains. On that claim, the district court awarded STM $118,690 in attorney’s f ees as a “prevailing party” under Okla. Stat. Ann. tit. 12, § 936. We review d e novo any legal conclusions that provide a basis for an award under § 936. Tul sa Litho Co. v. Tile & Decorative Surfaces Magazine Publ’g, Inc. , 69 F.3d 1041, 1043 (10th Cir. 1995). The determinations of which party prevailed in the litigation and the reasonableness of the attorney's fees award, howeve r, fall within the discretion of the trial judge and are reviewed under an abuse of discretion standard. Arkla Energy Resources v. Roye Realty & Developing, Inc. , 9 F.3d 855, 865-66 (10th Cir. 1993) (construing § 936 and citing, among othe rs, Wilkerson Motor Co. v. Johnson , 580 P.2d 505, 509 (Okla. 1978)).- 14 -

AT&T does not argue that STM does not qualify as a “prevailing party” for purposes of § 936. Nor does AT&T question the reas onableness of the district court’s attorney’s fee award to STM. Consequently, the only issue we address on appeal is the district court’s conclusion that § 93 6 applies to STM’s breach of contract claim, a determination that we review de n ovo. Section 936 provides: “In any civil action to recov er on an open account, a statement of account, account stated, note, bill, n egotiable instrument, or contract relating to the purchase or sale of goods, wares, o r merchandise, or for labor or services . . . , the prevailing party shall be allo wed a reasonable attorney fee.” O KLA
. S TAT
. ANN . tit. 12, § 936 (West 1988). In Russel v. Flanaga n , 544 P.2d 510, 512 (Okla. 1975), the Oklahoma Supreme Court i nterpreted § 936 narrowly, finding that the phrase “contract relating to” did not modify “labor or services.” “As a result, to recover under section 936, a preva iling party on a labor or services contract claim must demonstrate that the c laim is for labor or services rendered, not just that the claim relates to the pe rformance of services rendered.” Merrick v. Northern Natural Gas Co. , 911 F.2d 426, 434 (10th Cir. 1990). Even with this limitation, however, it is undisputed that the statute applies if recovery is sought for labor and services where there has be en a failure to pay for labor or services rendered. Id. (quoting Burrows Constr. Co. v. Independent Sch. D ist. , 704 P.2d 1136, 1138 (Okla. 1985)).- 15 -

STM complains that AT&T paid less than the contractrequired for its management of the Lightguide Project. It alleges, in the plainest terms, a failure to pay for services rendered. Thus, the attorney’s fees statute applies to the breach of contract claim. We therefore affirm the district court’s award of attorney’s fees on this claim. IV. Prejudgment Interest In its cross-appeal, STM challenges the district co urt’s denial of prejudgment interest on the jury verdicts for econo mic duress and breach of contract. Having reversed the economic duress awar d, we consider here prejudgment interest only on the breach of contractverdict. A federal court sitting in diversity applies state law, not federal law, regarding the issue of prejudgment interest. See McNickle v. Bankers Life and Cas. Co. , 888 F.2d 678, 680 (10th Cir. 1989). The relevantOklahoma statute permits the recovery of prejudgment interest on “da mages certain, or capable of being made certain by calculation.” O KLA
. S TAT
. ANN . tit. 23 § 6 (West 1987). This court has stated that it will reverse a distri ct court’s finding that damages were not certain only if that finding is clearly er roneous. See Transpower Constructors v. Grand River Dam Auth. , 905 F.2d 1413, 1422 (10th Cir. 1990) (construing § 6). It is well established that a damage award is not c ertain for purposes of the- 16 -

Oklahoma statute “unless the amount of recovery is liquidated or capable of ascertainment by calculation or resort to well-esta blished market values.” Sandpiper North Apartments, Ltd. v. American Nat’l Bank and Trust Co. , 680 P.2d 983, 993 (Okla. 1984). Therefore, if the fact -finder must weigh conflicting evidence in order to determine the precise amount o f damages due to the plaintiff, then a court cannot grant prejudgment interest. Wi throw v. Red Eagle Oil Co. , 755 P.2d 622, 625 (Okla. 1988); Liberty Nat’l Bank and Trust Co. v. Acme Tool Div. , 540 F.2d 1375, 1383 (10th Cir. 1976) (noting thatOklahoma courts do not award interest when a trial is necessary to determi ne the amount due). This case presented the jury with at least two sign ificant factual questions regarding the amount of damages. The contract set STM’s compensation at 23.5 percent of the total cost of the project; if STM ke pt costs below a certain level, however, the contract obliged AT&T to pay STM 24.5 percent of the costs. At trial, STM argued that if AT&T had not interfered i n the project, STM could have contained costs enough to earn the bonus percentage point. The damage calculation turned, in part, on this factual determ ination by the jury. Also, as noted above, the definition of “total project costs ” was a significant issue at trial. In this suit, therefore, the damage award turned on the jury’s factual determination of what the parties meant by “total p roject costs.” In light of these facts, the district court did not commit clear erro r in finding the damages- 17 -

uncertain. We therefore affirm the district court’ s denial of prejudgment interest. V. Other Issues on Appeal AT&T offers three reasons why we should grant AT&T a new trial. First, it contends that the trial court set unfair time li mits on the presentation of AT&T’s case-in-chief and on AT&T’s cross-examinatio n of STM’s witnesses. We review this decision under an abuse of discretio n standard. See Gracia v. Lee , 976 F.2d 1344, 1345 (10th Cir. 1992). That standar d is particularly deferential where, as here, the decision implicates the distric t court’s fundamental control over the trial process. Id . A district court’s decision to limit evidence in the interest of judicial administration will not be ove rturned on appeal absent a manifest injustice to the parties. Id . (quoting Thweatt v. Ontko , 814 F.2d 1466, 1470 (10th Cir. 1987)). Here, in limiting the time for cross examination to that used on direct, the district court showed a willing ness to accommodate when necessary. See , e.g. , Tr. at 765 (allowing extra time for AT&T’s cross examination of an accountant called by STM). Furth ermore, AT&T offers no explanation of how it would have been aided by havi ng more time on cross examination, or in the presentation of its case in chief. No injustice is manifest on this record; the district court did not abuse it s discretion in limiting the length of the trial. Second, AT&T contends that the district court impro perly precluded one of- 18 -

its expert witnesses from using a particular docume nt to refresh his memory. We review this decision as well for abuse of discretio n. See United States v. Johnson , 4 F.3d 904, 915 (10th Cir. 1993). A court may wi thhold a writing from a witness if the court believes that the witness is testifying directly from it rather than using it with the legitimate intent of refresh ing his own, independent recollection. Cf. Hall v. American Bakeries Co. , 873 F.2d 1133, 1136 (8th Cir. 1989) (stating that “[i]t is error to allow a witne ss to testify at trial from prepared notes under the guise of refreshing recollection”). In this case, the witness was only vaguely familiar with the document that he was looking at, and the record suggests that the district court feared he simply w ould read its contents into evidence. Tr. at 1423 (“I’m not going to have him read [the document] into evidence.”). The district court did not abuse its discretion in keeping the writing from the witness. Third, AT&T argues that the district court erred in sending the issue of actual fraud to the jury. Although the jury did no t find against AT&T on the actual fraud claim, AT&T contends that the presence of that issue “tainted” the jury by creating an inference that AT&T had acted w rongly. Even if the actual fraud claim should not have gone to the jury, AT&T still fails to cite any authority for its position that one claim can “tain t” others in the jury room and require a new trial on those tainted issues. Rathe r, we have said that when a- 19 -

district court mistakenly submits a claim to a jury that results in no damages, the mistake should be disregarded. See First Security Bank v. Taylor , 964 F.2d 1053, 1057 (10th Cir. 1992); Fed.R.Civ.P. 61 (stating that a “court at every stage of the proceeding must disregard any error . . . which doe s not affect the substantial rights of the parties.”)). Finally, in its cross appeal, STM asks this court t o reverse the district court’s decision to exclude evidence of two differe nt items of damages predicated on STM’s economic duress claim. Having granted jud gment as a matter of law to AT&T on the economic duress claim, we need not addr ess this last issue. CONCLUSION We find that AT&T is entitled to judgment as a matt er of law on STM’s claim of economic duress. The district court prope rly denied, however, judgment as a matter of law on STM’s breach of contract clai m. Because that claim is one for payment of services rendered, the district court was also correct to award STM attorney’s fees. Finally, we uphold the district c ourt’s finding that prejudgment interest should not be granted in this case. In ac cordance with the above, we affirm in part and reverse in part.