USCA1 Opinion

January 22, 1997

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 96-1143

JAMES LOGUE, SR.,

Plaintiff, Appellant,

v.

RONALD DORE,
Defendant, Appellee.

_________________________

ERRATA SHEET
ERRATA SHEET

The

opinion of

this court

issued on

January 8,

1997, is

corrected as follows:

On page 10, line 19

change "U.S." to "F.2d"

On page 12, line 16

add a further sentence:

no exception."

"This case is

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________

No. 96-1143

JAMES LOGUE, SR.,

Plaintiff, Appellant,

v.

RONALD DORE,

Defendant, Appellee.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

___________________

_________________________

Before

Selya and Stahl, Circuit Judges,

______________

and Woodlock,* District Judge.

______________

_________________________

William H. Rowerdink III for appellant.

________________________
Leonard H. Kesten, with
___________________

whom

Brody, Hardoon, Perkins &

___________________________

Kesten was on brief, for appellee.

______

_________________________

January 8, 1997
_________________________

__________

*Of the District of Massachusetts, sitting by designation.

SELYA, Circuit Judge.

SELYA, Circuit Judge.
______________

below

the

Asserting that

the proceedings

were tainted both by the district judge's mistaken view of

law and

by his

Logue invites us to

personal animus,

plaintiff-appellant James

order a new trial before

a different trier.

We decline the invitation.

I.
I.

BACKGROUND
BACKGROUND

Since one

of Logue's principal complaints

is that the

district

court

took his

false

arrest

claims from the jury at the close

the

facts

in

position.

the

See,
___

perspective

and false

imprisonment

of his case in chief, we assay

most

advantageous

to

Logue's

e.g., Veranda Beach Club Ltd. Partnership

____ _____________________________________

v.

Western Sur. Co., 936 F.2d 1364, 1375 (1st Cir. 1991).
________________

In 1990, Logue and his wife became embroiled in divorce

proceedings.

Despite this

discord, the couple

continued for a

time to share the marital domicile at 411 School St., Marshfield,

Massachusetts.

Mrs.

The situation changed on

Logue secured

estranged husband

that order the

an ex

from the

parte

restraining order

School St.

Marshfield police asked

from the property, and he complied.

____________________

November 13, 1992, when

premises.1

barring her

Pursuant to

Logue to remove

himself

1Mrs. Logue obtained the restraining order under a state law

which provides that, in various situations (including matrimonial

disputes), a court "may
necessary to protect
L. ch. 209A,
"[i]f

the

a plaintiff from abuse . . . ."

4 (West 1996).

The statute

plaintiff demonstrates

immediate danger
relief

enter such temporary orders as

orders

of abuse,
without

thereafter notify
been issued."

Id.
___

the defendant

Mass. Gen.

further provides that

substantial

likelihood of

may enter

such temporary

the court

notice

it deems

and

shall

immediately

that the temporary

orders have

In that event, "[n]otice shall be made by the

appropriate law enforcement agency."

Id.
___

Three days

later Logue prevailed upon

to amend its November

to the premises

that he could

13 order.

the state court

The amendment gave Logue access

between the hours of 8:00 a.m.

continue to operate

and 6:00 p.m. so

his painting business

(which

was based in a garage on the property).

By its

1992.

On that

terms, the amended order expired on December 2,

date,

the state

determine inter alia whether

_____ ____

in

effect,

limited

and if

convened a

hearing

to

the restraining order should remain

so, whether

access to the marital

court

Logue

premises.

should still

The

be allowed

parties and their

counsel appeared but, when the judge reserved decision, Logue and

his

lawyer departed without awaiting the ruling.

Late that same

morning the judge renewed the original restraining order, thereby

effectively rescinding Logue's daytime privileges and banning him

from the premises in toto.

__ ____

Unaware that a completely prohibitory order had issued,

Logue repaired

that

he

to School St.

His wife returned

afternoon, told him of the judge's decision, and asked that

leave.

called

Logue

the

blatant

continued

working.

Marshfield police

Disquieted,

to report

violation of the new restraining

Dore responded to the call.

him

on December 2.

a copy

of the

current

what

order.

Mrs. Logue

she viewed

as a

Officer Ronald

When Dore arrived, Mrs. Logue showed

restraining order.

By

that time,

however, Logue had evacuated the premises.

After leaving the scene Logue contacted his attorney in

an effort

to ascertain

the terms

of

the new

restrainer.

He

received no definitive guidance.

him

to stop by

his office the

Instead, his lawyer instructed

next morning so

that they could

straighten out the situation.

As a matter of

is

composed

of a

form, a restraining order of

series of

distributed to various parties.

multicolored

this sort

carbon copies

Typically, there is a

to be

copy for

the

court's use, one for the probation department's use, one for

the

plaintiff, one for the

defendant, one for

the local police

department, and a final copy on which the return of service is to

be inscribed.

Early on the morning of December 3, Dore reviewed

the police copy of

proceeded

on routine patrol.

lawyer's office,

work.

residence, and resumed

the driveway, confronted

turning a deaf ear

he had the right to be on

that he

under

returned to the marital

the garage, and

to Logue's protest

the property during the day, and

could verify his status by a telephone call

arrest

for

transported Logue

violating

He then

In the meantime Logue bypassed his

Dore observed Logue's vehicle in

him in

that

the newly minted restraining order.

the

restraining

order.

to police headquarters and booked

was then taken to the state court and arraigned.

placed him

him.

Dore

Logue

Eventually, the

charges against him were dropped.

Logue mounted

under 42

complaint

U.S.C.

contained

1983

a counterattack, suing Dore

in

three

the federal

counts

that

district

are

for damages

court.

germane

to

His

this

appeal.2

In those

arrested and

all

counts Logue contended that Dore

imprisoned him,

and had employed

in derogation of section

court

directed a verdict in

arrest

found

and false

1983.

During

excessive force,

trial, the district

the defendant's favor

imprisonment

counts.

had falsely

The jury

on the false

subsequently

for the defendant on the excessive force claim.

a peculiar colloquy

related to fees

Following

and costs (described

infra
_____

Part IV), Logue filed this appeal.

II.
II.

THE DIRECTED VERDICT

THE DIRECTED VERDICT

Logue

matter

assigns

error to

the

entry of

judgment

as a

of law on the false arrest and false imprisonment claims,

asserting that

he

adduced

question as to

whether Dore

enough

evidence to

had probable cause

create

jury

to arrest

him.

The

standard

familiar

under

that it

which

verges

we review

on the

consideration the credibility

in testimony, or evaluating

reasonable jury

Logue's

banal:

challenge

without

taking

of witnesses, resolving

plaintiff on the

into

conflicts

the weight of the evidence,

find for the

is so

could a

proof presented?

See Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir. 1994).
___ ______
________________

We will affirm the judgment only if, after surveying the evidence

and

the

inferences

flattering

to

the

factfinder

could

derivable

therefrom

in

plaintiff,

we

determine

have reached

no

conclusion

the

that

light

most

rational

except that

the

____________________

2Originally,
various

unnamed

Marshfield.

Logue

asserted

Marshfield police

Because

the case

other

claims

officers,

proceeded to

and

against

Dore,

the Town

trial only

of

on the

federal claims against Dore, we limit our discussion accordingly.

plaintiff take nothing.

See
___

Veranda Beach, 936

_____________

F.2d at

1375;

Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir. 1987).

_________
_____

In

counts,

Amendment

trying

Logue's

rights

the

theory

by

false

was

arresting

arrest and

that

him

Dore

false

violated

without

imprisonment

his

probable

Fourth

cause.

According to

lacked

Logue, there

any reason

December

was no

to believe that

The

Logue knew the

. upon

89, 91 (1964).

whether, at

the moment

the

arrest was

The

arresting

officer

the

has

facts and

knowledge

sufficient

ordinarily prudent officer to conclude that

or is about

to be

is involved in the

an arrest exists

circumstances of

are

made, the

Beck v. Ohio, 379 U.S.

____
____

In turn, probable cause to make

only if

arrestee

terms of the

constitutionality of a warrantless arrest "depends

and

is being,

Dore

So do we.

officer[] had probable cause to make it."

if

cause because

2 restraining order and intentionally violated it.

lower court rejected this premise.

probable

committed, and

to

which the

lead

an

an offense has been,

that the

crime's commission.

putative

See Rivera v.
___ ______

Murphy, 979 F.2d 259, 263 (1st

______

Cir. 1992); Hoffman v. Reali, 973

_______
_____

F.2d 980, 985 (1st Cir. 1992).

In sum, the existence of probable

cause (and, in turn, the validity of an ensuing arrest) is gauged

by

an

objective

surrounding

that the

standard;

the event

as

warrant the

action taken is

long

as

the

circumstances

officer's reasonable

appropriate, the arrest

See Scott v. United States, 436 U.S. 128, 137-38

___ _____
______________

belief

is justified.

(1978); United
______

States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir. 1987); see also
______
________
___ ____

Whren v. United States, 116

_____
______________

S. Ct. 1769,

1774 (1996)

(holding

that "[s]ubjective intentions play no role in ordinary, probable-

cause

Fourth

Amendment

probable cause

analysis").

requires more

require the same quantum of

And,

than mere

moreover,

though

suspicion, it does

proof as is needed to convict.

not

See
___

United States v. Aguirre, 839 F.2d 854, 857-58 (1st Cir. 1988).
_____________
_______

At

minimum.

first blush

After

all, the

it

appears that

evidence

unqualified chapter 209A restraining

and that order,

by its terms, barred

Dore surpassed

is straightforward

this

that an

order issued on December 2,

Logue from the

School St.

property.

terms

of that

action.

mere

The record

is equally pellucid that Dore

order

on two

Thus, Dore knew

presence

on

the

separate

occasions before

prior to arresting

School

St.

learned the

premises

taking

Logue that Logue's

transgressed

restraining order and thereby constituted a criminal act.

the

In the

lower court's view, no more was exigible.

Logue seeks

elevating

that, in

to blunt

the probable cause threshold.

addition to

this reasoning

He would

the arresting officer's

that the restraining order was

this

the force of

by

have us rule

reasonable belief

being violated, probable cause in

case could only be established if the officer also believed

that the violator himself knew the terms of the order.

embellishment has no

basis in the law.

But this

What the arrestee knows

or does not know at the time of his apprehension is irrelevant to

the question of whether the arresting officer has probable cause.

To be

frank, we

find it difficult

to understand

the

nexus

that

knowledge and

likely

that

Logue

strives

to fashion

the probable cause

Logue

has

confused

between

determination.

the

elements

the

arrestee's

It

seems most

necessary

to

establish probable cause with the elements necessary to determine

guilt or

innocence.

relevant to

The

the latter

arrestee's knowledge

determination, for the

order to convict Logue of violating

order,

would be

required to

beyond

a reasonable doubt that

7 (West 1996);

show scienter,

committed (especially

what the order provided),

that is,

he had knowledge

to prove

or notice that

See Mass. Gen. L. ch.

___

553 N.E.2d 915,

Nevertheless, this requirement has no

bearing on the reasonableness

being

Commonwealth, in

Commonwealth v. Gordon,
____________
______

918-19 & n.3 (Mass. 1990).

course,

the chapter 209A restraining

such an order had been issued against him.

209A,

is, of

of Dore's belief that a

since he,

himself, had

and it therefore fails to

existence vel non of probable cause.3

___ ___

crime was

told Logue

address the

We will

not paint the lily.

circumstances unquestionably

arrest,

no reasonable

In light of the facts and

known to

Dore at

jury could find

cause to take Logue into custody.

the time

that he

of the

lacked probable

It follows inexorably that the

____________________

3Logue
telephone
the

implies that Dore's refusal

call to verify the terms

arrest unreasonable.

which "an arresting

information

if it

676,

investigation merely
and confirmed
order.

of the December 2 order made

have a duty

is available

680 (1st Cir. 1986).

to make a

To be sure, there are circumstances in

officer may

Palhava de Varella-Cid v.
______________________

to allow him

and likely to

to pursue

be trustworthy."

Boston Five Cents Sav. Bank,

___________________________
In this

further

787 F.2d

situation, however, further

would have buttressed the

Logue's violation of the

officer's belief

chapter 209A restraining

Thus, Logue's argument is not advanced by Dore's rebuff.

district court appropriately granted judgment as a matter of

in

favor

of

the

defendant

on

the

false

arrest

and

law

false

imprisonment counts.

III.
III.

THE JUDGE'S ATTITUDE

THE JUDGE'S ATTITUDE

Logue's next

He contends

handed

assignment of error

sweeps more broadly.

that the district judge's biased attitude and heavy-

manner

deprived

him of

an

impartial

trial, and

fundamental fairness demands that we wipe the slate clean.

are serious charges, and we treat them as such.

that

These

We

start

with

principles that pertain

established

governor

that

of the

an

overview

to claims of

judge is

trial for

not

exercised

proper.

is,

with

care

settled

legal

It is

well-

a mere

umpire;

is "the

its proper

albeit a right that should be

participate

cavil that

he

of assuring

actively

Quercia v. United States, 289 U.S. 466, 469

_______
_____________

moreover, beyond

system

to

the

this genre.

the purpose

conduct," and has a perfect right

of

a trial

judge in

in

the trial

(1933).

It

the federal

retains the common law power to question witnesses and to

analyze,

evidence.

dissect,

See
___

148, 159 (1st

explain,

id.; see also

___ ___ ____

Cir. 1989);

summarize,

and

United States v.
_____________

see generally Fed.

___ _________

comment

on

Paiva, 892
_____

R. Evid.

the

F.2d

614(b).

Still, there are lines which a trial judge should not cross.

For

example, the

become

an

judge's participation

advocate

or otherwise

must be balanced;

use

his

advantage or disadvantage

a party

unfairly.

U.S.

F.2d at

159; see
___

at 470;

Paiva, 892
_____

10

614(b) advisory committee's note.

judicial

he cannot

powers to

See Quercia,
___ _______

also Fed.
____

289

R. Evid.

An

necessarily

inquiry

into

turns on

the

the

judge's conduct

question of

party

can show serious prejudice.

Med.,
____

837 F.2d

question

17,

22

a reviewing

"according

to

recognizing

that each case

States
______

1988).

must evaluate

standard

v. Polito, 856 F.2d

______

whether the

of

impatience,

court

to

tends to be

partiality, on the other

U.S.

540,

555-56

ire,

hand.

(1994).

complaining

the judge's

and

this

actions

impartiality,

fact-specific."

414, 418 (1st

differentiate

annoyance or

trial

In answering

fairness

and internal quotation marks omitted).

reviewing

the

See Aggarwal v. Ponce Sch. of

___ ________
_____________

(1st Cir.

court

of

United
______

Cir. 1988) (citations

This process requires the

between

on the

one

expressions

hand, and

of

bias

or

See Liteky v. United States, 510

___ ______
_____________

While

the

former

are

not

to be

encouraged, the latter are flatly prohibited.

In this case, Logue contends that the judge's comments,

questioning of

(Attorney

witnesses, and chastisement of

Stockwell-Alpert)

skewed

painstakingly reviewed the transcript

are satisfied

little

more

that the incidents

than

the

the

his trial counsel

proceedings.

Having

of this five-day trial, we

of which Logue

judge's efforts

to

complains show

clarify

expedite the trial, and maintain courtroom decorum.

testimony,

In short, we

find that Logue received a fair trial, albeit not a perfect or an

unblemished one.

He was not entitled to more.

See Polito, 856

___ ______

U.S. at 418.

We

see no need to

cite book and

verse in response to

11

each of Logue's criticisms.

1.
1.

Logue asserts that the judge exhibited bias both by

interjecting

hostile

treating the

defendant's

close

reading of

judge has

A summary should suffice.

questions

his

testimony

testimony solicitously.

the transcript

wide discretion

during

reveals no

to interject

and

However,

such contrast.

questions

throw light upon testimony or expedite the pace of a

by

in order

to

trial.

See

___

Deary v. City of Gloucester, 9

_____
__________________

United States v.
_____________

cert.
_____

F.3d 191, 194-95 (1st Cir. 1993);

Olmstead, 832
________

F.2d 642, 648

denied, 486 U.S. 1009 (1988).

______

strike

us as

designed

(1st Cir.

1987),

Here, the judge's questions

to simplify

the

jury's task,

and,

in

respect to Logue's testimony, to clarify his frequently vague and

confusing answers.

Many

of the judge's queries did no more than

restate the examiner's questions,

and his oft-uttered

responses

(e.g.,

to

were well

"all

right" or

"I see")

Logue's answers

within the realm of impartiality.

2.
2.

him rests

Logue in

Logue's claim that the judge displayed bias against

heavily on two comments.

the jury's presence

First, the judge referred to

as "the

accuser."

We

regard the

comment

as innocuous,

particularly

evaluated on the entire record.

when its

likely impact

This case is no exception.

is

More

troubling is that, after Logue completed his testimony, the judge

excused the jury and made the following statement:

I just

want to

put it

on the

record that I

disbelieve the plaintiff in this case.

absolute and incorrigible liar.
at the

conclusion of this

totally

I think he's an

And it's my intention

case to request

the United

States Attorney to conduct an investigation into

these

matters relative to seeking an indictment for perjury.

12

To be sure,

it was unnecessary for the

judge to go on

record at that stage, but his comments indicate no more than that

he

had grave doubts anent

expected

to

credibility

pass on

refrain

from

Logue's credibility.

forming

how else would

a motion for a new

opinions

Judges are not

about

witnesses'

a judge be able to decide a case or

trial?

and the

mere fact that the

judge voices his opinion out of the presence of the jury does not

irretrievably taint the trial.

judge

who

presides

at a

evidence, be exceedingly ill

Cf. Liteky, 510 U.S. 550-51 ("The

___ ______

trial

upon

completion of

the

disposed towards the defendant, who

has been shown to be a thoroughly

judge is not thereby

may,

reprehensible person.

recusable for bias or prejudice,

But the

since his

knowledge

and

the

opinion

it

produced

were

properly

necessarily acquired in the course of the proceedings

and

. . . .").

Since there is no evidence that the judge allowed his low opinion

of Logue's veracity to mar his conduct of the trial,

disturb

the judgment.

we will not

Logue was entitled to an impartial judge;

he was not entitled to an ingenuous one.

3.
3.

Logue

disparagement of

As a

general

further

that

Stockwell-Alpert deprived him of

rule,

judge's mid-trial

counsel are insufficient to

the

remarks

the

challenged

judge's

a fair trial.

critical

sustain a claim of judicial

partiality against the client.

Here,

contends

of

bias or

See Liteky, 510 U.S. at 555.

___ ______

comments

occurred

at

various

times, some at sidebar and some in the presence of the jury.

The

comments at sidebar need

not detain us; it suffices

to say that

13

none were beyond the pale.

the judge

In the most ill-advised such

referred to the lawyer

description

as a "smart little

would have been better left

remark,

guy."

The

unsaid, but it scarcely

amounts to reversible error.

Statements that

are

made by

judge in

the

jury's

presence are, of course, subjected to stricter scrutiny.

case,

the judge

remarks to

was

sharply critical

the effect that Stockwell-Alpert

for example

In this

he

made

was hurting himself

by making unnecessary comments after rulings, talking back to the

court, leading witnesses on

an adverse witness

direct examination, and hollering at

but the criticisms were largely

invited by

counsel's antics and were fairly calculated to maintain courtroom

decorum.4

in

While the judge could perhaps have been more delicate

his choice of phrase,

appellate courts cannot

expect that a

trial judge, under siege, will function as a bloodless automaton.

See Polito, 854

___ ______

F.2d at 418.

humanity," id.,
___

we do not

evinced

See Mitchell v.
___ ________

bias.

Granting the

judge a "margin

think that his comments

Kirk, 20 F.3d
____

of

in this case

936, 937-38 (8th

Cir.

1994); see also Liteky, 510 U.S. at 555-56 (explaining that

___ ____ ______

routine

efforts at court administration by a judge do not evince

bias or partiality).

In any event, gauging the likely impact of

the judge's statements on the record as a whole, we conclude that

____________________

4On one occasion, the

judge imposed a monetary sanction

on

Stockwell-Alpert for making a wholly gratuitous comment after the

judge had

instructed the jury on

a point of law.

was preceded

by several similar comments

be viewed as

tending to

authority.

This comment

which could reasonably

disparage the judge

and undermine

his

The sanction was imposed outside the jury's presence.

14

they

did

not

proceedings.

add a coda.

fundamental

In assessing the

jury instructions can be

prejudice.

fairness

of

the

find."

F.2d at 419.

jurors in his charge that he

comment on the evidence or

He

they

should disregard

warned the

jurors "not

that, if they

the

[to] be swayed

Here, the

had not intended to

to suggest "what verdict I

also told them

commented,

impact of a judge's

a means of allaying potential

See id. at 196; Polito, 856

___ ___
______

judge told the

should

the

See Deary, 9 F.3d at 195-96.

___ _____

We

actions,

compromise

think you

thought he had

comments.

Finally,

he

by bias or

prejudice or

favor as to any

party," and stressed their prerogatives

sole and exclusive judges of the facts."

as "the

These instructions were

sufficient to palliate any untoward effects.

IV.
IV.

THE EVANESCENT FEE DISPUTE

THE EVANESCENT FEE DISPUTE

After the jury returned

occurred.

The

unflattering)

judge

made an

assessment

of

directed Dore's

attorneys'

counsel to

its verdict, a curious episode

extemporaneous

Logue's

defendant's oral motion to attach

extremely

and spontaneously

"charge all expenses

fees to th[e] plaintiff."

the amount of $50,000

case,5

(and

and reasonable

The judge then granted the

the plaintiff's real estate in

as security for those fees

and expenses.6

____________________

5The

judge

volunteered

his

opinion that

the

case

"was

bottomed on perjury" and

that it represented "an attempt

on the

part

on the

of

this plaintiff

. .

to

perpetrate a

fraud

system."

6Despite his

scathing critique

of Logue's case,

the judge

never indicated the legal basis on which the anticipated shifting

of fees

rested.

specificity

In

a "best

creates potential

case"

scenario, this

problems for

lack

a reviewing

of

court.

15

Dore recorded

the attachment but never filed

an application for

attorneys' fees.

Although the

parties argue

in their briefs

about the

"fee

award,"

court's

it is

apparent that

announcement of a

none

exists.

willingness to tax

The district

fees and expenses

against a losing party does not constitute an award,

absence of an

order or

judgment susceptible

and, in the

of execution,

the

court's free-floating announcement of its views provides no basis

for appellate

orders

and

intervention.

judgments,

not

Administrative Warrant, 585

_______________________

Moreover,

attorneys'

the

fees

After all,

judge's

F.2d

judgment.

circumstances, an

statements.

1152, 1153

defendant

effectively

by his

conceded failure

properly supported application within

of

appellate courts review

See
___

Fed.

R.

Civ.

See
___

In re
______

(1st Cir.

1978).

waived

to

the

right

file and

to

serve a

fourteen days of the entry

P.

54(d).

attachment, designed to secure

Under

the

an anticipated

award

of fees which was never

reduced to judgment and for which

the prevailing party never applied, cannot stand.

response

argument,

In

the

interest of

to

vigorous

completeness,

questioning

defense counsel

on this

conceded the

we

note that,

point

during

untenability

in

oral

of Dore's

____________________

See,
___

e.g., Foster v. Mydas Assocs., Inc., 943

____ ______
____________________

(1st Cir.

1991) (holding that a

minimum,

identify

undergirding
impose

a fee

varying

appropriateness").
fee

the

district court must,

source

award, for
criteria

F.2d 139, 141-42

of

the

presumed

"different sources
for

judging

the

at a bare

authority

of authority

[award's]

Here, however, the judge never made an actual

award, see infra, and

___ _____

we are thus

grappling with these problems today.

16

spared the necessity for

position and agreed to move promptly to dissolve the

attachment.

We have

he has kept

received a copy of

his promise.

V.
V.

a letter reporting that

Nothing remains of this issue.

CONCLUSION
CONCLUSION

We need go

defendant is

no further.7

not infected

The judgment in

by reversible

court's impromptu direction for

error.

favor of the

The

the shifting of fees

district

is without

independent force as a judgment or order; and, because steps have

been

taken

to dissolve

the

ensuing

attachment, the

parties'

dispute

over

attorneys' fees

presents

no

issue suitable

for

appellate review.

The judgment is affirmed on the merits.

The judgment is affirmed on the merits.
_________________________________________

shall bear his own costs.

shall bear his own costs.
________________________

Each party
Each party
___________

____________________

7In his brief, Dore

38

and

impose sanctions

frivolous appeal.

requests that we invoke Fed. R. App. P.

on

the

plaintiff for

We are not inclined to do so.

prosecuting

The plaintiff's

arguments concerning the conduct of the trial are colorable, even

though

not persuasive, and his assignment of error vis- -vis the

improvidently issued attachment possesses obvious merit.

17