UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-50208
ZYZY, INC.; ZYZY, INC., doing business as
Guide Publishing Co; REX S. MCBEATH, Individually,
Plaintiffs - Appellants-Cross-Appellees,
VERSUS
CITY OF EAGLE PASS; RAUL TREVINO,
Individually and in Official Capacity; JOSE MORA,
Individually and in Official Capacity; JOSE FRANCISCO
FARIAS, Individually and in Official Capacity,
Defendants - Appellees-Cross-Appellants.
***********************************************
No. 96-50358
ZYZY, INC.; ZYZY, INC., doing business as
Guide Publishing Co; REX S. MCBEATH,
Plaintiffs - Appellees-Cross-Appellants,
VERSUS
CITY OF EAGLE PASS; RAUL TREVINO, Individually
and in Official Capacity; JOSE MORA, Individually
and in Official Capacity; JOSE FRANCISCO FARIAS,
Individually and in Official Capacity,
Defendants - Appellants-Cross-Appellees.
Appeal from the United States District Court
For the Western District of Texas
(DR-94-CV-70)
June 27, 1997
Before KING, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
Plaintiffs ZYZY, Inc., ZYZY, Inc. d/b/a Guide Publishing Co.,
and Rex S. McBeath, individually, brought this suit alleging that
defendants City of Eagle Pass, Raul Trevino, Jose Mora and Joe
Francisco Farias violated their constitutional rights of freedom of
speech and freedom of the press under the First and Fourteenth
Amendments and 18 U.S.C. § 1983. ZYZY, Inc. owns The Eagle Pass
News Guide (“The Guide”), a local newspaper in Eagle Pass, Texas.
Rex S. McBeath is the publisher and editor of The Guide. For over
30 years The Guide had published all city advertisements and public
notices and, in the 1960's, The Guide was designated, by city
ordinance, as the “official newspaper” of Eagle Pass.
Beginning in April 1993, The Guide published a series of
articles reporting that Farias and Mora had improperly used city
property for personal benefit and that Farias created a city job
for Mora as a personal favor. In the spring of 1994, Mora and
Farias ran for city council and Trevino sought election as mayor.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2
The Guide published a series of editorials opposing the candidacy
of all three defendants.
None of the defendants were particularly pleased by these
articles and editorials. Despite the “bad press,” all three
defendants were eventually elected. Upon their election, Mayor
Trevino and Council Members Mora and Farias constituted a majority
of the five-member city council.
At their first meeting on June 17, 1994, the city council
fired Susana Gomez as city manager. During the election, Gomez had
adopted an “open information” policy with The Guide and had been
sharing public information with the press about the governmental
affairs of Eagle Pass. Two months later, Mayor Trevino raised the
issue of designating a new “official” city newspaper. Bid requests
were sent out and The News Gram (“The Gram”) submitted the lowest
bid. In October 1994, The Gram was designated as the new “official
newspaper” of Eagle Pass. Immediately thereafter, all advertising
and public notices were switched from The Guide to The Gram.
In December 1994, plaintiffs brought this suit in federal
court alleging that the City had retaliated against The Guide for
publishing a series of critical news articles and editorials during
the City’s mayoral and council elections. The plaintiffs allege
that the defendants retaliated against The Guide by withdrawing all
advertising and public notices, and the revenue associated
therewith, and by designating The Gram as the City’s new official
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newspaper.
After a jury trial, a verdict was returned in favor of the
defendants. The plaintiffs filed a timely notice of appeal. On
appeal, the plaintiffs contend that the jury charge was prejudicial
because questions 1, 1A, and 2 misstate the Mt. Healthy1 burden
shifting test. Further, plaintiffs argue that the jury’s verdict
was against the great weight of the evidence.
In a companion case, the City, Mayor Trevino, Mora and Farias
appealed from the district court’s decision sustaining The Guide’s
objections to certain costs for exemplification and copies of
papers obtained for use in this case. The defendants also appealed
from the district court’s order sustaining The Guide’s objections
to fees for witnesses relating to subpoenas, attendance,
subsistence, and mileage.
ANALYSIS
The plaintiffs first contend that the district court submitted
erroneous and prejudicial instructions to the jury. The standard
of review for challenges to the district court’s jury instructions
is set forth in F.D.I.C. v. Mijalis, 15 F.3d 1314, 1318 (5th Cir.
1994). In Mijalis, we held that the challenges must show that the
charge as a whole creates "substantial and ineradicable doubt
whether the jury has been properly guided in its deliberations."
1
Mt. Healthy v. Doyle, 429 U.S. 274 (1977).
4
See id. Second, even if the jury instructions were erroneous, we
will not reverse if we determine, based upon the entire record,
that the challenged instruction could not have affected the outcome
of the case. Id. at 1318.
Both parties agree that the Mt. Healthy v. Doyle, 429 U.S. 274
(1977), burden shifting test governs the propriety of these
instructions. Under Mt. Healthy, the burden rests first on the
plaintiff to show that the conduct was constitutionally protected
and that the conduct was a substantial or motivating factor in the
adverse action taken by the defendant. Id. at 287. Once
established, the burden shifts to the defendants to show that they
would have taken the same action against the plaintiffs anyway,
even in the absence of the protected speech.
Plaintiffs contend that the jury questions 1, 1A, and 2, on
the verdict form misstate the applicable law because these
questions required the plaintiffs to show that their protected
speech about the defendants was the sole factor, instead of a
substantial or motivating factor, in the defendants’ actions taken
against them. Plaintiffs also argue that the jury questions did
not shift the burden to the defendants and require them to show
that they would have taken the same action even in the absence of
the plaintiffs’ protected activity.
After reviewing the jury instructions submitted in this case,
we cannot say that the charge as a whole created "substantial and
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ineradicable doubt” as to whether the jury was properly guided in
its deliberations. The jury was instructed to “keep in mind” the
jury instructions while answering those questions. The jury
instructions properly set forth the Mt. Healthy test. While we
agree with the plaintiffs that the jury questions themselves do not
accurately state the law, the jury instructions properly set forth
the applicable test and, when read together, correctly convey the
law. Therefore, we cannot say that the challenged instructions as
a whole created "substantial and ineradicable doubt whether the
jury has been properly guided in its deliberations.” Mijalis, 15
F.3d at 1318. As such, we affirm the district court’s proffered
instructions to the jury.2
The plaintiffs also contend that insufficient evidence exists
to support the jury’s verdict. In reviewing the propriety of a
jury verdict, we must uphold the verdict “[u]nless the evidence is
of such quality and weight that reasonable and impartial jurors
could not arrive at such a verdict.” Ham Marine, Inc. v. Dresser
Indus., Inc., 72 F.3d 454, 459 (5th Cir. 1995). We look to
determine whether there is no legally sufficient evidentiary basis
for a reasonable jury to find as the jury did. See Hiltgen v.
Sumrall, 47 F.3d 695, 699-700 (5th Cir. 1995). Having reviewed the
transcript, briefs, and other relevant portions of the record, we
2
Plaintiffs also contend that the district court’s instruction
as to the First Amendment rights of public officials was erroneous.
Finding no error in the instruction, we affirm.
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hold that adequate and sufficient evidence exists to support the
jury’s verdict in this case. As such, we affirm the district
court’s entry of judgment on the verdict.
Finally, in a companion case, the defendants appeal from the
district court’s refusal to assess certain costs against the
plaintiffs. The defendants contend that the district court erred
in refusing to assess the Bexar County Law Library copying charge
of $8.80, the $59.00 certified copying expense incurred during
trial, and the $1,315.78 outside vendor copying costs. Defendants
also argue that the district court abused its discretion by denying
defendants’ subpoena service fees, witness attendance fees, mileage
costs and sustenance payments for Ricardo Calderon, Guadalupe
Cardona, Romelia Cardona, Ruth Cedillo, Arturo Garcia, Roberto
Gonzalez, Celestino Hermandez, Graciela Carrillo Mazuka, Margaret
McBeath, Leo Perez, Eduardo Trevino, Francisco Villa, Don Williams,
and Lyndell Williams. Further, the defendants seek to recover
costs for the individually named defendants who testified at trial.
We review the district court’s award of attorney’s fees and
costs for abuse of discretion and the supporting fact findings for
clear error. See Riley v. City of Jackson, Mississippi, 99 F.3d
757, 831 (5th Cir. 1996). Plaintiffs argue that these costs were
not shown to be necessary under 28 U.S.C. § 1920. And see Holmes
v. Cessna Aircraft Co., 11 F.3d 63, 64 (5th Cir. 1994) (the party
seeking copying costs must offer some proof of necessity).
7
Plaintiffs also contend that, because these witnesses did not
testify at trial, the defendants were required to show that the
witnesses were prepared to testify but extrinsic circumstances
rendered their testimony unnecessary. Plaintiffs maintain the
district court properly found that the defendants failed to show
that their testimony was necessary. Further, plaintiffs assert
that the named parties’ costs are not recoverable under 28 U.S.C.
§ 1920 and the district court did not err by refusing to assess
their costs to the plaintiffs.
With respect to the defendants’ copying costs, the district
court found that the defendants failed to explain the necessity of
these costs, the number of pages copied, or the rate charged per
page. The only explanation offered by the defendants for the
$1,315.78 in outside vendor costs was that “the rate per copy
charged by outside copying firms is typically less than $.15 per
page.” The district court found this explanation to be
insufficient to establish necessity in this case. The district
court also found that the defendants failed to show why each of the
above witnesses’ testimony was necessary or what circumstances made
their testimony at trial unnecessary.3
After reviewing the record, testimony, and the parties’ briefs
on appeal, we find no clear error with the district court’s factual
3
On cross-appeal, the plaintiffs contend that the district
court erred in awarding defendants the costs of copying depositions
and condensed versions of depositions.
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findings concerning costs and we cannot say that the district court
abused its discretion in refusing to assess the costs sought by the
defendants on appeal. We further find that the district court did
not err in awarding other costs associated with this case including
the costs of copying depositions and of condensing certain versions
of depositions. As such, we affirm the district court’s assessment
of costs in this case.
CONCLUSION
For the foregoing reasons, the judgment of the district court
should, in all things, be AFFIRMED.
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