ORDER

In this matter the court reviewed extensive administrative as well as judicial proceedings relating to the termination of medical privileges of appellant Gumersindo A. Alvero, M.D., by respondent Jackson Medical Center. The court of appeals affirmed the district court’s grant of summary judgment for respondents on the issue of immunity from damages under the Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101-52 (1994) and immunity from equitable relief under:Minn.Stat. § 145.63 (1996) and awarded respondents $25,000 in attorney fees on the basis that they were substantially prevailing parties and thus entitled to attorney fees under 42 U.S.C. § 11113.

Because the court is evenly divided with respect to the issue of immunity, the decision of the court of appeals dated September 30,1997 is affirmed. With respect to the award of attorney fees, however, after a careful review of the record, we believe that appellants’ claims were not frivolous, unreasonable, \yithout foundation, or in bad faith as 42 U.S.C. § 11113 requires as a condition for awarding attorney fees and therefore we reverse the court of appeals’ affirmance of the district court in this respect.

IT IS HEREBY ORDERED that the decision of the court of appeals dated September 30, 1997 is affirmed in part and reversed in part.

BY THE COURT: