Ken Leahy Construction Inc. v. City of Gladstone

36 F. App'x 311

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 4, 2002
• Docket: Nos. 00-35473, 00-35752; D.C. No. CV-98-01247-JE
• Status: Published

Opinion

ORDER

We REMAND for clarification and identification of the precise ground or grounds on which the district court granted summary judgment. We note that Leahy’s lawsuit invoked both state and federal law bases for recovery and articulated different theories under each. We note also that the district court’s order of May 22, 2000 does not provide this Court with adequate information about the legal basis for its decision assessing liability to decide this appeal. Moreover, if the district court granted summary judgment on federal takings grounds, the court shall reconsider its decision in light of Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, — U.S. —, 122 S.Ct. 1465, — L.Ed.2d — (2002).

The sua sponte award of damages on summary judgment is ordered VACATED. On remand, the district court shall permit the parties to brief the issue of damages before holding a hearing to determine the proper award.

*** After making that determination, the district court shall reconsider whether attorney’s fees are appropriate under 42 U.S.C. § 1988(b).

The parties shall bear their own costs of this appeal, and the panel shall retain jurisdiction over any subsequent appeals of this matter.

VACATED in part and REMANDED.

We offer no opinion on the appropriate measure or amount of damages.