### The Honorab le 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 thi s diversity action, Metropolitan Express Services, Inc
. (Metropoli tan) 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 Met ropolitan's competitor and Kansas City. We affirm.
I. Facts and Procedural History
Begi nning in 1982, Metropolitan provided scheduled and unschedule d ground transportation services at the Kansas City Airport. The controvers y arose when the Kansas City Area Transportation Authority, the provider tha t subcontracted transportation business to Metropolitan, cancelled it s exclus ive concession agreement with the airport. Kansas City publishe d notice th at it would open bids to qualified bidders for a new schedule d gr ound transportation concession agreement. The city distributed t o potential bidders a bid form that provided, among other things, that the successful bidder(s) would be allowed to sell ti ckets only from stationary
co unters. Mobile ticket counters would not be allowed. Becaus e Metropolitanbelieved that putting a stationary counter in each of th e airport 's three terminals was prohibitively expensive and that mobil e ticket counters were necessary to make a profit, it did not bid.

After receiving only two bids, Kansas City awarded the concessio n agreement to KCI Shuttle. KCI Shuttle's bid did not contemplate mobil e ticket counters; however, once the bid was accepted, KCI Shuttle negotiate d with Kans as City to allow the use of mobile ticket counters inside eac h terminal. The arrangement between Kansas City a nd KCI Shuttle included an excl usivityagreement that prohibited Metropolitan or anyone else fro m compet ing with KCI Shuttle for passengers within the airport termina l buildings. On February 17, 1992, Kansas City banned Metropolitan fro m entering the airport to continue its services. Metropolitanand four other plaintiffs filed a complaint seeking a declaratory judgment, injunctive relief, and a t emporary 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 challe nge the contract even though it did not bid. On remand, th e distri ct court voided the concession agreement between KCI Shuttle an d Kansas City, finding that the agreement violatedthe Missouri Constitution and that the bidding procedures were illegal under the Kansas Cit y 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 reques t and awarded neither damages nor attorney fees.
II. Damages Metropoli tan claims as damages lost potential profits caused by the illegal concession agreement between KCI Shuttle and Kansas City. Th e distric t court denied Metropolitan recovery for these damages becaus e 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 la w requires a plaintiff to offer only the best evidence available to establis h 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. Se e Salve Regina College v. Russell , 499 U.S. 225, 231 (1991).
The Misso uri Supreme Court has held that lost profits are generally too remote and speculative to be recoverable. Coonis v. Rogers , 429 S.W.2 d 709, 714 (Mo. 1968) Under Coonis , to recover

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lost profits a plaintiff must establish with reasonable certainty both tha t 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. War d Park wayShops, Inc. , 471 S.W.2d 464, 472-73 (Mo. 1971), the Missour i Suprem e Court established an exception to the general rule requirin g reaso nable certainty to prove both the fact and the amount of damages
. Coach H ouse holds that in some cases where the fact of lost profits ha s been proved with reas onable 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. Metropolita n argues that the district court should have applied this less restrictive CoachHouse standard, rather than requiring proof of the amount of los t profits with reasonable certainty.
We need not determine whether this c ase falls within the Coach House exception. At the very least, Metropolitan must prove with reasonabl e certaintythe 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 evidenc e available.

Alth oughthe district court found that Kansas City's biddin g proced ures were illegal, Metropolitan has not proved that absent th e illegal bidding proce dures it would have been the successful bidder; thus it has not established with reasonable certainty that it suffered an y damages as a result of the illegal procedures. The district court found that the exclusivity clause of the agr eement violated the Missouri Constitution. Because of this clause Metropolitan
was ban ned from meeting customers in the airport. As a result , Metropolitan claims that it lost customers

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and w as eventually compelled to close down its business. To establis h damages in the form of lost profits caused by th is 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. Metropolitanmust demonstrate those lost net profits by offerin g "proof of the income and expenses of the business for a reasonable tim e anterior to its interruption with a consequent establishing of the ne t pro fits during the previous period." Coonis , 429 S.W.2d at 714. Pu t simply, to show that it lost profits, Metropolit an 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 Metropolita n netted approximately $60,000 per year. On cross-examination, however, Bal e admitted that in the two years prior to Metropolitan's ban from th e airpor t, the company lost $30,000 and $18,000 respectively. Althoug h Metrop olitan argues that the loss figures are deceptive because the y represent the company's overall loss for tax purposes and ignore individua l gains within segments of the company, Metropolitan offered no documentary evidence to explain the contradiction. In light of this contradictory liv e testim ony, and in the absence of any documentary evidence, Metropolita n fell s hort 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 it s discret ion in denying this request. See White v. Nix , 43 F.3d 374, 37 7 (8th Cir. 1994). Metropolitan was banned from t he airport on February 17, 1992, almost nine months before the trial began. If Metropolitan los t profits from the

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exclusivityagreement, that loss began at the time of the ban. Assuming such a loss occurred, it would have continued th roughout the trial so long as Kansas City continued to prohibit Metropolita n from conducting business in the airport. Because Metropolitan did not introduce persuasive evidenc e to show that a pre-trial loss occurred, however, the question of continued los s is moot. The district court acted well within its discretion i n de nying Metropolitan's request for additional discovery and leave t o introduce new evidence.
III. Attorney Fees Metropolitancontends that the district court erred in denying it s moti on for attorney fees. Metropolitan contends that its success i n obtain ing relief that benefits others similarly situated entitles it t o attorney fees under the "special circumstances" or "common fund" exception s recognized by the Missouri courts. The district court found that an award of a ttorney fees was not warranted under either of those exceptions
. Having reviewed the d istrict 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 dis sent in the refusal to direct the district court to awar d something in the way of attorney's fees to Metropolitan. I recogni ze 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 followin g benefits flowing from the judgment:

### -7- 1. inval idating the concession agreement and the manner of it s adoption;

2. be nefitting other transportation providers for the airpor t 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 b idding procedures.

Thus the litigation, in part, conferred a common benefit to others,
as wel l as Metropolitan. Several Missouri cases suggest th e appropriateness of an award of attorney's fees t o 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 incu rred attorney's fees in invalidating ordinance which affected cit y gover nment and other contiguous property owners and court's opinio n clarif ied notice obligations contained in city ordinances to benefit o f present and future pr operty owners in city); Von Seggern v. 310 West 49th St., Inc. , 631 S.W.2d 877, 883 (Mo.App. 1982) (attorney's fees particularl y 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 requ ire Kansas City to pay, at lea st in part, Metropolitan's legal fees and other related expenses no t otherwise taxed as costs of the action.
A true copy.

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