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FILED

DEC 02 2016

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

 

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-16-1067-TaKuKi

)

STEPHANIE WHITE, ) Bk. No. 2:14-bk-30940-NB

)

Debtor. )

______________________________)

)

STEPHANIE WHITE, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

MAS FINANCIAL, )

)

Appellee. )

______________________________)

Argued and Submitted on September 22, 2016

at Pasadena, California

Filed – December 2, 2016

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Neil W. Bason, Bankruptcy Judge, Presiding

 

Appearances: Steven L. Bryson argued for Appellant; Paul V.

Reza argued for Appellee.

 

Before: TAYLOR, KURTZ, and KIRSCHER, Bankruptcy Judges.

* This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have (see Fed. R. App. P. 32.1), it has no precedential value. 

See 9th Cir. BAP Rule 8024-1(c)(2).
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INTRODUCTION

Debtor Stephanie White financed acquisition of a vehicle

through an installment sales contract; Appellee MAS Financial

(“MAS”) asserts a claim based on this contract. The record is

unclear as to what happened, but there is no question that MAS

was never able to realize upon its collateral and that MAS, as a

result, suffered a loss. After the Debtor commenced a

chapter 71 case, MAS commenced an adversary proceeding alleging

conversion of its collateral and seeking a nondischargeable

judgment under § 523(a)(6). It later conceded that it could not

prove the willful and malicious injury requirements of

§ 523(a)(6) given the Debtor’s explanations as set forth in a

proposed pretrial order. Thus, the parties stipulated to

dismiss the case before trial, and the bankruptcy court entered

an order approving the stipulation.

Thereafter, the Debtor sought to recover her attorney’s

fees. She asserted that her fees were collectible under

California’s Rees-Levering Automobile Sales Finance Act,

California Civil Code (“CC”) § 2981, et seq.

The bankruptcy court assumed, without deciding, that

contractual attorney’s fees were available and then determined

that the Debtor was not a prevailing party and denied the fee

request. If Rees-Levering governs the fee award here, however,

unresolved questions exist. Under Rees-Levering, a stipulated

1 Unless otherwise indicated, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532. 

All “Rule” references are to the Federal Rules of Bankruptcy

Procedure. All “Civil Rule” references are to the Federal Rules

of Civil Procedure.

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dismissal can be the basis for a fee award. In such a case, the

court must determine which party, as a pragmatic matter,

achieved success in the litigation. Here, MAS acquired nothing

while the Debtor completely achieved her litigation goal as she

avoided a nondischargeable judgment.

As a result, on remand the bankruptcy court must determine

whether Rees-Levering governs the fee award. We are unable to

do so on the record currently before us given discord in

California Court of Appeal decisions about when Rees-Levering

allows fee recovery and given language in the stipulated

dismissal specifically reserving the Debtor’s right to seek

reasonable fees and costs after dismissal of the

nondischargeability action and further stating: “attorneys fees

and costs are governed under CA Civil Code Section 2983.4 of the

Motor Vehicle Sales and Finance Act.” The bankruptcy court, in

the first instance, should interpret its own order. If the

Rees-Levering Act is applicable here, additional findings are

then necessary to support the bankruptcy court’s decision that

the Debtor was not the prevailing party in the

nondischargeability action.

Therefore, we VACATE the order denying fees and REMAND to

the bankruptcy court for further proceedings consistent with

this decision.

FACTS

In 2011, the Debtor executed an installment sales contract

for the purchase of a Lexus. The contract provided for a

security interest in the Lexus and was assigned to MAS after

execution. The Debtor eventually defaulted under the contract. 

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As a result, MAS obtained a state court default judgment for

money due on the contract and unsuccessfully attempted to

repossess its collateral. The record does not make the problem

clear, but an accident or nefarious conduct left the Lexus

extensively damaged.

Eventually, the Debtor filed a bankruptcy. MAS responded

with an adversary proceeding, seeking to except $14,242.62 from

discharge under § 523(a)(6). MAS did not argue that the entire

state court judgment was nondischargeable. Instead, it argued

that the Debtor willfully and maliciously converted the Lexus. 

Thus, it sought a nondischargeable judgment equal to the value

of its allegedly converted collateral. The complaint alleged

that the vehicle: “ha[d] been stripped and taken apart by the

Debtor or persons acting at the direction of the [D]ebtor and

that the [Debtor] herein exercised such custody and control as

to cause the loss of the collateral.”

Two weeks before trial, however, MAS agreed to dismiss the

adversary proceeding. Its counsel later attested in a

declaration that MAS could not prove the willful and malicious

injury requirements as required by § 523(a)(6) based on the

Debtor’s explanations in a proposed pretrial order. The

parties, thus, submitted a proposed joint stipulation to dismiss

the case; the bankruptcy court entered an order approving it.

In relevant part, the parties agreed to the following in

the stipulation:

C The sales contract was subject to the Rees-Levering Act;

C Attorney’s fees and costs were governed by CC § 2983.4 of

the Rees-Levering Act; and 

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C The Debtor reserved her right to seek reasonable fees and

costs incurred in connection with her defense of MAS’s

nondischargeability claim.

Given these provisions, it is not surprising that the

Debtor promptly sought to recover her attorney’s fees and costs

under CC § 2983.4. She asserted that she was the prevailing

party in the adversary proceeding and that the parties agreed in

the stipulation that the sales contract was subject to the ReesLevering Act. As a result, the Debtor argued, she was entitled

to fees under CC § 2983.4, and she sought fees in the amount of

$22,300.92.

MAS opposed and argued that the nondischargeability action

was based solely on a § 523(a)(6) claim for conversion, not the

sales contract. The recovery, it pointed out, “was limited to

the value of the vehicle at the time of the alleged conversion

of $14,000.00.” MAS never argued that the Debtor was not a

prevailing party or that it was confident of victory. Instead,

in an acknowledgment that occurred after the discovery cut-off

date, it conceded that its “ability to prove the ‘wilfull’ [sic]

and ‘intentional’ actions of the Debtor could not be met” based

on the Debtor’s representations in a proposed pretrial order. 

Bk. Dkt. No. 30 at p. 9 ¶ 8.

The bankruptcy court denied the fee motion. It stated

that, “assuming without deciding that attorney fees could be

awarded under the applicable contract (an issue that the Court

does not reach),” there was no prevailing party. Bk. Dkt.

No. 31 at p. 1. Even if there was a prevailing party, the

bankruptcy court found that “no dollar amount of attorney fees

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would be reasonable given the tasks performed.” And it found

that MAS agreed to dismiss the case

[N]ot because of any lack of certainty about

misconduct of the debtor, or about its ability to

prove such misconduct if it had enough time and

resources, but instead out of an unwillingness to

throw good money after bad in pursuing a debtor that

it had every reason to believe was dishonest,

obstreperous, and unrepentant.

Id. at p. 2. Finally, to avoid further expense and delay, it

concluded that a hearing on the matter was neither necessary nor

appropriate given the clarity of issues; it, thus, vacated the

hearing set forth on the matter.

The Debtor moved for reconsideration. She did not,

however, frame her request within the context of Civil Rule 59,

and she did not discuss any legal standards. Among other

things, the Debtor argued that MAS had misrepresented the facts

culminating in the disappearance of the Lexus and that the

misrepresentation prejudiced the bankruptcy court in determining

that there was no prevailing party in the adversary proceeding. 

She contended that she was the prevailing party given that MAS

had dismissed its complaint and “took nothing.” 

The next day,2 the bankruptcy court entered an order

denying the motion for reconsideration. It clarified that it

had not made any findings as to the underlying merits of the

adversary proceeding and, instead, that in its initial ruling it

solely found that the Debtor was not the prevailing party at the

pretrial stage. 

2 Apparently, the Debtor did not set the motion for

reconsideration for hearing.

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The Debtor timely appealed.

JURISDICTION

The bankruptcy court had jurisdiction pursuant to 28 U.S.C.

§§ 1334 and 157(b)(1). We have jurisdiction under 28 U.S.C.

§ 158.

ISSUE

Whether the bankruptcy court abused its discretion when it

denied the fee motion.

STANDARD OF REVIEW

We review a bankruptcy court’s decision regarding an award

of attorney’s fees for an abuse of discretion. See Renwick v.

Bennett (In re Bennett), 298 F.3d 1059, 1063 (9th Cir. 2002). 

A bankruptcy court abuses its discretion if it applies the

wrong legal standard, misapplies the correct legal standard, or

if its factual findings are illogical, implausible, or without

support in inferences that may be drawn from the facts in the

record. See TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d

820, 832 (9th Cir. 2011) (citing United States v. Hinkson,

585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)).

DISCUSSION

A. Procedural Issues

1. Appealability of the Orders and Timeliness

MAS, citing many California cases, argues that an order

denying a motion to reconsider is not a final and appealable

order. It also argues that the appeal was untimely, given that

the Debtor filed her notice of appeal outside the 14-day time

period established by Rule 8002. MAS is incorrect in both

respects.

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First, to the extent a denial of a motion to reconsider is

considered interlocutory under California law (something that we

do not determine), the same is not true under federal law. Such

an order is a final and appealable order. 

Second, the Debtor’s timely-filed motion to reconsider

appropriately tolled the time to appeal from the fee motion

order. See Fed. R. Bankr. P. 8002(b)(1). Thus, the Debtor’s

appeal was timely as to either order.

2. Scope of Appeal

Timeliness, however, is only one of the relevant questions

here. The only order described in and attached to the Debtor’s

notice of appeal is the order denying reconsideration; she did

not attach the order denying the fee motion. And she did not

file an amended notice of appeal. Her statement of issues on

appeal, however, refers both to statements made by the

bankruptcy court in its order denying reconsideration and the

basis for its underlying decision to deny fees. The Debtor

further discusses the bankruptcy court’s prevailing party

determination in her opening brief. Thus, we infer that the

Debtor also intended to appeal from the order denying the fee

motion. See United States v. Arkison (In re Cascade Roads,

Inc.), 34 F.3d 756, 761-62 & n.5 (9th Cir. 1994).

Here, Civil Rule 59, made applicable in bankruptcy

proceedings by Rule 9023, applied. See, e.g., Alexander v.

Bleau (In re Negrete), 183 B.R. 195, 197 (9th Cir. BAP 1995) (if

a motion for reconsideration is brought within 14 days of entry

of an order, the motion is governed by Civil Rule 59). 

Civil Rule 59(e) allows for reconsideration only if the

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bankruptcy court: “(1) is presented with newly discovered

evidence that was not available at the time of the original

hearing, (2) committed clear error or made an initial decision

that was manifestly unjust, or (3) there is an intervening

change in controlling law.” Fadel v. DCB United LLC

(In re Fadel), 492 B.R. 1, 18 (9th Cir. BAP 2013). “There may

also be other, highly unusual, circumstances warranting

reconsideration.” Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d

1255, 1263 (9th Cir. 1993). 

A party, however, may not use a motion for reconsideration

“to present a new legal theory for the first time or to raise

legal arguments which could have been raised in connection with

the original motion. Also, a motion to reconsider may not be

used to rehash the same arguments presented the first time or

simply to express the opinion that the court was wrong.” Wall

St. Plaza, LLC v. JSJF Corp. (In re JSJF Corp.), 344 B.R. 94,

103 (9th Cir. BAP 2006) (emphasis in original), aff’d and

remanded, 277 F. App’x 718 (9th Cir. 2008).

Unfortunately for the Debtor, her motion to reconsider was

not framed within the legal standards of Civil Rule 59. Nor

does the Debtor distinctly and specifically address

reconsideration in her opening brief on appeal. As a result,

the Debtor effectively waived issues related to reconsideration

on appeal. See Padgett v. Wright, 587 F.3d 983, 986 n.2 (9th

Cir. 2009) (per curiam) (appellate courts “will not ordinarily

consider matters on appeal that are not specifically and

distinctly raised and argued in appellant’s opening brief”). 

Turning to the merits related to the bankruptcy court’s

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denial of the fee motion, we conclude that remand to the

bankruptcy court is necessary given several ambiguities in the

law and record.

B. To the extent that the Debtor was entitled to fees under 

the Rees-Levering Act, additional findings are necessary to

support the bankruptcy court’s determination that the 

Debtor did not prevail in the adversary proceeding.

The Debtor contends that she was the prevailing party in

the adversary proceeding and, thus, that she was entitled to

attorney’s fees under the Rees-Levering Act. We agree with the

Debtor that under the Rees-Levering Act it is likely that she

prevailed in the adversary proceeding. On this record, however,

we cannot tell because the bankruptcy court determined, in a

conclusory manner, that there was no prevailing party and, on

reconsideration, that the Debtor did not satisfy her burden of

showing that she was the prevailing party. It did so based on a

superficial evaluation of the motion and papers; there was no

hearing or evidence taken on the matter. 

The Rees-Levering Act governs the sales of motor vehicles

based on “conditional sale contracts.” Enacted as a protective

measure for consumers, the Act requires certain disclosures on a

sales contract relating to costs, limits the amount and types of

permitted charges, and establishes processes in the event of

contract default. The consumer-focused policy extends to

litigation under the Act. Civil Code § 2983.4 provides, in

particular, that “[r]easonable attorney’s fees and costs shall

be awarded to the prevailing party in any action on a contract

. . . subject to the provisions of [the Rees-Levering Act]

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regardless of whether the action is instituted by the seller,

holder or buyer.”

The Rees-Levering Act does not define “prevailing party.” 

As a result, the courts are directed to “adopt a pragmatic

approach” in making this determination, “based on which party

succeeded on a practical level.” Graciano v. Robinson Ford

Sales, Inc., 144 Cal. App. 4th 140, 150 (2006); see also Heather

Farms Homeowners Ass’n v. Robinson, 21 Cal. App. 4th 1568, 1574

(1994) (in the context of CC § 1354, the test for a prevailing

party is a pragmatic one, namely whether a party prevailed on a

practical level by achieving its main litigation objectives). 

This inquiry is based on “the extent to which each party has

realized its litigation objectives, whether by judgment,

settlement or otherwise.” Graciano, 144 Cal. App. 4th at

150-51. Instructed to reject form over substance, the courts,

instead, should be guided by equitable considerations. Id. at

151.

Further, in a Rees-Levering situation fees may be awarded

where the parties enter into a stipulated judgment. See Damian

v. Tamondong, 65 Cal. App. 4th 1115, 1119 (1998) (voluntary

dismissal does not preclude a CC § 2983.4 fee award); see also

Kim v. Euromotors W./The Auto Gallery, 149 Cal. App. 4th 170,

178-80 (2007) (California Code of Civil Procedure § 1032 defines

prevailing party as including a “defendant in whose favor a

dismissal is entered” when evaluating fee recovery under

California’s fee shifting consumer statutes). In this respect,

a Rees-Levering fee award is different from an award under nonremedial California statutes such as CC § 1717, which

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specifically states that there is no prevailing party when an

action on a contract is voluntarily dismissed or dismissed

pursuant to a settlement. See Cal. Civil Code § 1717(b)(2).

Here, the bankruptcy court summarily concluded that there

was no prevailing party in the adversary proceeding and, on

reconsideration, that the Debtor failed to meet her burden in

showing that she prevailed. On this record and without first

determining whether the adversary proceeding was an action on

the sales contract and, thus, subject to the Rees-Levering Act,

this was error. The relevant inquiry under California law is

not focused on the victor after a trial; instead, it focuses on

whether a litigant achieved their litigation goals. 

Notwithstanding that the case was dismissed before trial, it

appears that the Debtor prevailed in the nondischargeability

action under the required pragmatic approach; she got all of the

relief she would have obtained if successful at trial. This is

particularly true where counsel for MAS conceded in a

declaration that MAS could not establish the § 523(a)(6)

requirements at trial. See Bk. Dkt. No. 30 at p. 9 ¶ 8. 

Heather Farms does not change the calculus here. There, a

homeowners association filed an action against a homeowner based

on allegations of unauthorized modifications to the homeowner’s

units. That lawsuit spawned several related actions. 

Eventually and following a settlement conference with a

settlement judge, numerous parties entered into a settlement

resolving the litigation and the association dismissed its

action against the homeowner pursuant to the settlement. The

settlement judge expressly found, however, that there were no

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prevailing parties with respect to case dismissal given that the

“dismissal [was] part of an overall complex piece of litigation

. . . resolved by negotiated settlement. There [were] no

winners. There [were] no favorable parties in [the] case.” 

21 Cal. App. 4th at 1571. 

The trial court denied the defendant’s subsequent motion

for fees under CC § 13543 based on his assertion that he was the

prevailing party. On appeal, the California Court of Appeal

affirmed. Adopting the pragmatic standard for determining

prevailing party, it concluded that there was no reason to doubt

the prevailing party determination of either the settlement

judge or the trial court. It noted that the association

voluntarily dismissed its action against the homeowner “as part

of a global settlement agreement, not because [the defendant]

succeeded on some procedural issue or otherwise received what he

wanted. That dismissal apparently was more the result of the

[defendant’s] obdurate behavior rather than any successful legal

strategy.” Id. at 1574. 

Here, once again, it would appear that the Debtor prevailed

on a practical level in the adversary proceeding. As stated,

she avoided a nondischargeable judgment while MAS took nothing. 

And it appears that she did so not just because of her

settlement with MAS but also because MAS conceded that it could

3 CC § 1354 related to covenants and restrictions

governing a residential planned unit development; it also

provided for reasonable fees and costs to a prevailing party in

an action to enforce the governing documents. The statute was

repealed by Stats. 2012, c. 180 (A.B. 805), § 1, operative

Jan. 1, 2014.

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not establish its only claim against the Debtor. Thus, Heather

Farms appears to be distinguishable on the facts. 

C. The bankruptcy court must determine if the Rees-Levering 

Act applied here.

Three issues arise, however, that lead us to conclude that

the bankruptcy court must determine in the first instance

whether the nondischargeability action was an action on the

underlying sales contract between the parties, such that the

Debtor was entitled to fees under the Rees-Levering Act.4

First, the California case law points in various

directions. On the one hand, it limits fee recovery such that

this case would fall well outside Rees-Levering’s fee recovery

statute. On the other, it broadly allows fee recovery when a

contract governed by Rees-Levering is involved.

In Davis v. Ford Motor Credit Co., 179 Cal. App. 4th 581

(2009), a panel of the California Court of Appeal held that for

a prevailing party to avail themselves of the Act’s reciprocal

fee provision, the underlying complaint must allege a violation

under the Rees-Levering Act. In Davis, the prevailing defendant

moved for attorney’s fees under CC § 2983.4. The complaint had

alleged several violations of California law, including

4 Whether a debtor can recover fees and costs under

CC § 2983.4 in a nondischargeability action appears to be a

matter of first impression in this circuit. Thus, we are not

assisted by Ninth Circuit authority. Indeed, there are only two

unreported federal cases citing to CC § 2983.4. See Wright v.

Gen. Motors Acceptance Corp., 2012 WL 1416146 (S.D. Cal. Apr.

23, 2012); Wright v. Gen. Motors Acceptance Corp., 2012 WL

253157 (S.D. Cal. Jan. 25, 2012), aff’d, 545 F. App’x 686 (9th

Cir. 2013).

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violations under the Rees-Levering Act, which it asserted

constituted unlawful business practices under California unfair

competition law. The trial court denied the motion for fees. 

On appeal, the California Court of Appeal determined that

“although the underlying transaction was subject to the

provisions of Rees-Levering, the action was not prosecuted under

Rees-Levering.” 179 Cal. App. 4th at 601. Instead, “the

alleged Rees-Levering violation was merely a predicate to the

complaint’s UCL claims.” Id. The court of appeal, thus,

concluded that “Rees-Levering’s reciprocal fee provision [was]

inapplicable” where the “alleged Rees-Levering violation [was]

merely a predicate to the UCL claim . . . .” Id.

Here, the adversary complaint made absolutely no reference

to the Rees-Levering Act and did not allege a violation

thereunder. Instead, it alleged solely that the Debtor

willfully and maliciously injured MAS by causing damage to her

vehicle (MAS’s collateral). Nor did the Debtor plead an

affirmative defense relating to the Rees-Levering Act in her

answer to the adversary complaint. 

Thus, under Davis, the failure to allege a violation under

the Rees-Levering Act would be fatal to a claim for attorney’s

fees pursuant to CC § 2983.4.

At oral argument, the Debtor argued that Cobian v. Ordonez,

103 Cal. App. 3d Supp. 22 (1980), supported her position that

she was entitled to attorney’s fees under CC § 2983.4. In

Cobian, a California Superior Court stated that “[u]nder

[CC §] 2983.4 the action need only be on a contract subject to

the Re-Levering Act [sic], not an action to enforce such a

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contract.” 103 Cal. App. 3d Supp. at 31 (emphasis in original). 

We give little weight to Cobian, however, as it is a decision

from the Appellate Department of a California Superior Court; as

a result, it does not supersede or equal the precedential or

persuasive value of the California Court of Appeal decision in

Davis.

Another court of appeal case, however, is consistent with

the Debtor’s position. In Leaf v. Phil Rauch, Inc., 47 Cal.

App. 3d 371 (1975), a panel of the California Court of Appeal

held that the prevailing plaintiffs were entitled to attorney’s

fees under CC § 2983.4 in an action for restitution where the

plaintiffs previously obtained rescission of the underlying

sales contract based on breach of warranty. In doing so, the

panel determined that the restitution action involved the

underlying sales contract subject to the Rees-Levering Act and,

thus, fell within the scope of CC § 2983.4 for the purposes of

awarding fees.

Here, MAS’s claims of waste and conversion could involve

the underlying sales contract as the contract provided for MAS’s

rights to the vehicle as collateral and required the Debtor to

maintain the vehicle during the finance period. Under Leaf,

this could be sufficient to assert a claim for attorney’s fees

under CC § 2983.4. We note that where one or more decisions of

the California courts of appeal are in conflict, a trial court

is instructed to “make a choice between the conflicting

decisions.” Auto Equity Sales, Inc. v. Super. Ct. of Santa

Clara Cty., 57 Cal. 2d 450, 456 (1962). Were the discord in

California case law the only issue, we might undertake this

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analysis, but other ambiguities exist.

Second, MAS argues that the nondischargeability action was

not an action on the sales contract because the § 523(a)(6)

action arose under the Bankruptcy Code. At first blush, this

argument is compelling. The sales contract was in the

background of the facts alleged in MAS’s tort claim against the

Debtor. There was no dispute with regard to improper charges or

disclosures or MAS’s rights to the collateral. Given that MAS’s

rights to the collateral arose under the sales contract,

however, it is possible that the sales contract was more than a

penumbral aspect of the nondischargeability action. To

determine whether conversion existed for the purposes of

§ 523(a)(6), the bankruptcy court would have to determine MAS’s

rights to the collateral; the latter is strictly a contractual

issue. Our unwillingness to affirm on this basis is supported

by the stipulation between the parties that expressly provides

that the sales contract was subject to the Rees-Levering Act and

the fees were governed by Rees-Levering.

Third, and most importantly, an ambiguity exists in the

stipulation itself. Again, in relevant part, it provided that

the sales contract was subject to the Rees-Levering Act and that

attorney’s fees were governed by Rees-Levering. Although the

parties could not stipulate to an improper application of the

law, it was possible that they could agree as to how an

ambiguous statute would be interpreted. At oral argument, the

parties disagreed vociferously on their intent in including this

provision in the stipulation. Given that the bankruptcy court

approved the stipulation in the face of this ambiguity, it is

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appropriate that it determine in the first instance the meaning

of this provision.

For the reasons stated, remand is required. On remand, the

bankruptcy court should determine whether the adversary

proceeding was an action on the sales contract within the

meaning of CC § 2983.4 and the impact, if any, of the fee

provision in the stipulation between the parties on the

determination of the appropriateness of a fee award.

The bankruptcy court also determined that no amount of fees

would be appropriate. It made this determination, however,

after making its prevailing party determination and did not

support it with any findings. It arguably does not reflect a

conclusion regarding the quality of the lawyering in the case. 

Nor does the determination appear logical; given the case

dismissal result, the Debtor, at a minimum, would be entitled to

recover reasonable fees related to answering the adversary

complaint and preparing the proposed pretrial order. If the

bankruptcy court concludes that the Debtor is a prevailing

party, it can and should evaluate the reasonableness of the

requested fees. 

CONCLUSION

Based on the foregoing, we VACATE the order denying the fee

motion and REMAND for further proceedings consistent with this

decision.

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