The Honorable Dean Whipple, United States District Judge for 1

the Western District of Missouri.

___________

No. 95-1248

___________

Metropolitan Express Services, *

Inc., a Kansas Corporation, *

*

Plaintiff/Appellant, *

*

Sylvia B. Krieger, doing *

business as Overland Limousine; * Appeal from the United States

Furney Charters, Inc., doing * District Court for the

business as Travelers Express, * Western District of Missouri.

a Kansas Corporation; G & B *

Enterprises, Inc., doing *

business as KCI Roadrunner, a *

Kansas Corporation; A-1 City *

Cab Shuttle Corporation, a *

Kansas Corporation, *

*

Plaintiffs, *

*

v. *

*

City of Kansas City, Missouri, *

a Municipal Corporation of *

Missouri, *

*

Defendant/Appellee. *

___________

 Submitted: September 13, 1995

 Filed: November 30, 1995

___________

Before BOWMAN, BRIGHT, and WOLLMAN, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

In this diversity action, Metropolitan Express Services, Inc.

(Metropolitan) appeals the district court's refusal to award damages and 1

attorney fees after finding in favor of Metropolitan
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and voiding the concession agreement between Metropolitan's competitor and

Kansas City. We affirm.

I. Facts and Procedural History

Beginning in 1982, Metropolitan provided scheduled and unscheduled

ground transportation services at the Kansas City Airport. The controversy

arose when the Kansas City Area Transportation Authority, the provider that

subcontracted transportation business to Metropolitan, cancelled its

exclusive concession agreement with the airport. Kansas City published

notice that it would open bids to qualified bidders for a new scheduled

ground transportation concession agreement. The city distributed to

potential bidders a bid form that provided, among other things, that the

successful bidder(s) would be allowed to sell tickets only from stationary

counters. Mobile ticket counters would not be allowed. Because

Metropolitan believed that putting a stationary counter in each of the

airport's three terminals was prohibitively expensive and that mobile

ticket counters were necessary to make a profit, it did not bid. 

After receiving only two bids, Kansas City awarded the concession

agreement to KCI Shuttle. KCI Shuttle's bid did not contemplate mobile

ticket counters; however, once the bid was accepted, KCI Shuttle negotiated

with Kansas City to allow the use of mobile ticket counters inside each

terminal. The arrangement between Kansas City and KCI Shuttle included an

exclusivity agreement that prohibited Metropolitan or anyone else from

competing with KCI Shuttle for passengers within the airport terminal

buildings. On February 17, 1992, Kansas City banned Metropolitan from

entering the airport to continue its services. 

Metropolitan and four other plaintiffs filed a complaint seeking a

declaratory judgment, injunctive relief, and a temporary restraining order

to prevent Kansas City from implementing the new
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concession agreement. Following a two-day evidentiary hearing on all the

issues, including damages, the court dismissed the complaint for lack of

standing. On appeal, we reversed, finding that Metropolitan had standing

to challenge the contract even though it did not bid. On remand, the

district court voided the concession agreement between KCI Shuttle and

Kansas City, finding that the agreement violated the Missouri Constitution

and that the bidding procedures were illegal under the Kansas City

Administrative Code. The court ordered Metropolitan to brief the issues

of compensatory damages and attorney fees. Metropolitan requested leave

to introduce additional evidence on damages. The court denied this request

and awarded neither damages nor attorney fees.

II. Damages

Metropolitan claims as damages lost potential profits caused by the

illegal concession agreement between KCI Shuttle and Kansas City. The

district court denied Metropolitan recovery for these damages because

Metropolitan failed to offer evidence sufficient to establish a reasonably

certain estimate of lost profits. Metropolitan claims that the district

court misapplied Missouri law. According to Metropolitan, Missouri law

requires a plaintiff to offer only the best evidence available to establish

lost profits. They need not be established with reasonable certainty. 

Missouri law governs this diversity case. See Erie R.R. Co. v.

Tompkins, 304 U.S. 64 (1938). We review this question of law de novo. See

Salve Regina College v. Russell, 499 U.S. 225, 231 (1991).

The Missouri Supreme Court has held that lost profits are generally

too remote and speculative to be recoverable. Coonis v. Rogers, 429 S.W.2d

709, 714 (Mo. 1968) Under Coonis, to recover
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lost profits a plaintiff must establish with reasonable certainty both that

the defendant's actions caused the plaintiff to lose profit and the amount

of those damages. Id. In Coach House of Ward Parkway, Inc. v. Ward

Parkway Shops, Inc., 471 S.W.2d 464, 472-73 (Mo. 1971), the Missouri

Supreme Court established an exception to the general rule requiring

reasonable certainty to prove both the fact and the amount of damages.

Coach House holds that in some cases where the fact of lost profits has

been proved with reasonable certainty but the loss is of a character that

renders the amount incapable of proof, the plaintiff need offer only the

best evidence available to establish the amount. Id. at 471. Metropolitan

argues that the district court should have applied this less restrictive

Coach House standard, rather than requiring proof of the amount of lost

profits with reasonable certainty.

We need not determine whether this case falls within the Coach House

exception. At the very least, Metropolitan must prove with reasonable

certainty the fact of damages. That is, Metropolitan must prove that it

suffered some loss of net profits that it would have realized in the usual

course of business absent the defendant's unlawful actions. We conclude

that Metropolitan has failed to do so. Moreover, Metropolitan has failed

to meet even the less restrictive requirement of the best evidence

available. 

Although the district court found that Kansas City's bidding

procedures were illegal, Metropolitan has not proved that absent the

illegal bidding procedures it would have been the successful bidder; thus

it has not established with reasonable certainty that it suffered any

damages as a result of the illegal procedures.

The district court found that the exclusivity clause of the agreement

violated the Missouri Constitution. Because of this clause Metropolitan

was banned from meeting customers in the airport. As a result,

Metropolitan claims that it lost customers
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and was eventually compelled to close down its business. To establish

damages in the form of lost profits caused by this exclusion, Metropolitan

must show with reasonable certainty that had it been allowed to continue

meeting customers in the airport, it would have realized net profits. 

Metropolitan must demonstrate those lost net profits by offering

"proof of the income and expenses of the business for a reasonable time

anterior to its interruption with a consequent establishing of the net

profits during the previous period." Coonis, 429 S.W.2d at 714. Put

simply, to show that it lost profits, Metropolitan must first show that it

was previously earning profits. Metropolitan has not done so. The only

lost profit evidence Metropolitan offered was the contradictory testimony

of its president, Charles Bale. Bale first testified that Metropolitan

netted approximately $60,000 per year. On cross-examination, however, Bale

admitted that in the two years prior to Metropolitan's ban from the

airport, the company lost $30,000 and $18,000 respectively. Although

Metropolitan argues that the loss figures are deceptive because they

represent the company's overall loss for tax purposes and ignore individual

gains within segments of the company, Metropolitan offered no documentary

evidence to explain the contradiction. In light of this contradictory live

testimony, and in the absence of any documentary evidence, Metropolitan

fell short of meeting even the best evidence available standard.

Accordingly, the district court's denial of damages was appropriate.

 Finally, Metropolitan argues that it needs to conduct discovery and

introduce new evidence to prove its lost profits during the time period of

the trial. We conclude that the district court did not abuse its

discretion in denying this request. See White v. Nix, 43 F.3d 374, 377

(8th Cir. 1994). Metropolitan was banned from the airport on February 17,

1992, almost nine months before the trial began. If Metropolitan lost

profits from the
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exclusivity agreement, that loss began at the time of the ban. Assuming

such a loss occurred, it would have continued throughout the trial so long

as Kansas City continued to prohibit Metropolitan from conducting business

in the airport. Because Metropolitan did not introduce persuasive evidence

to show that a pre-trial loss occurred, however, the question of continued

loss is moot. The district court acted well within its discretion in

denying Metropolitan's request for additional discovery and leave to

introduce new evidence. 

III. Attorney Fees

Metropolitan contends that the district court erred in denying its

motion for attorney fees. Metropolitan contends that its success in

obtaining relief that benefits others similarly situated entitles it to

attorney fees under the "special circumstances" or "common fund" exceptions

recognized by the Missouri courts. The district court found that an award

of attorney fees was not warranted under either of those exceptions.

Having reviewed the district court's analysis of Missouri case law on the

subject, we are satisfied that the district court did not err in so ruling.

The judgment is affirmed.

BRIGHT, Circuit Judge, concurring and dissenting.

I concur in the majority's denial of damages to Metropolitan.

I dissent in the refusal to direct the district court to award

something in the way of attorney's fees to Metropolitan.

I recognize that under Missouri case law special circumstances must

exist to justify any fee shifting. By virtue of this action, Metropolitan

has provided the community, the state and the public with the following

benefits flowing from the judgment:
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1. invalidating the concession agreement and the manner of its

adoption;

2. benefitting other transportation providers for the airport

terminals;

3. benefitting the public by requiring competitive bidding; and

4. other tangential benefits to the public and to state and public

entities arising from clarification of law relating to public bidding

procedures.

Thus the litigation, in part, conferred a common benefit to others,

as well as Metropolitan. Several Missouri cases suggest the

appropriateness of an award of attorney's fees to the successful plaintiff

in this case. See Temple Stephens Co. v. Westenhaver, 776 S.W.2d 438, 442

(Mo.App. 1989) (special circumstances existed where contiguous landowner

incurred attorney's fees in invalidating ordinance which affected city

government and other contiguous property owners and court's opinion

clarified notice obligations contained in city ordinances to benefit of

present and future property owners in city); Von Seggern v. 310 West 49th

St., Inc., 631 S.W.2d 877, 883 (Mo.App. 1982) (attorney's fees particularly

appropriate where question litigated was of general application).

I believe the Missouri courts in similar or analogous circumstances

would allow attorney's fees. Thus, I would require Kansas City to pay, at

least in part, Metropolitan's legal fees and other related expenses not

otherwise taxed as costs of the action.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.