Travis County, Texas v. Rylander Investment

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 98-50464 _______________________

TRAVIS COUNTY, TEXAS,

Plaintiff-Counter Defendant-Appellee-Cross-Appellant,

versus

RYLANDER INVESTMENT COMPANY, INC.,

Defendant-Counter Plaintiff-Appellant-Cross-Appellee.

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Appeal from the United States District Court for the Western District of Texas (A-94-CV-561) _________________________________________________________________

June 10, 1999

Before JONES, DUHÉ, and BARKSDALE, Circuit Judges.*

PER CURIAM:

The court has carefully considered the briefs, oral

arguments of the parties and pertinent portions of the record

concerning this appeal. We reach the following conclusions.

First, Travis County did not clearly breach the agreement

with Rylander Investment Co. (Rylander) by rejecting the Fuccello

Lease. The County had broad authority to approve leases for the

Farmers Market and acted within its discretion.

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Second, the district court did not clearly err in its

award of damages to Rylander. The court made difficult assessments

based on substantial conflicting evidence as to the profitability

of the Farmers Market leases, the impact of the County’s failure to

approve leases from 1993-96, overall market conditions and the

effect of competition on the market. There is no demonstration

that the magistrate judge applied an incorrect legal measure of

damages, nor has Rylander shown that the court clearly erred in

assessing the amount of damages. While this court might have

awarded a different amount, it is not our role to assess damages de

novo.

Similarly as to attorneys fees, the lower court correctly

found that Rylander prevailed principally on the RELA issue, and

there remained ample room for judgment on the allocation of fees

between that issue and others. The RELA issue was not so

inseparable from Rylander’s other issues as to preclude an

allocation of fees. Given Rylander’s imperfect cooperation in this

endeavor, the court’s conclusion was not an abuse of discretion.

Finally, the magistrate judge did err in failing to award

prejudgment interest from the date of accrual of the claim and

costs to Rylander, making remand necessary on these issues alone.

It is assumed that the judgment did include post-judgment interest.

The County’s issues on cross-appeal are meritless.

2 The judgment of the magistrate judge is therefore

affirmed in part but vacated and remanded for an award of

prejudgment interest and costs to Rylander.

AFFIRMED in Part; VACATED/REMANDED in Part.