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.* Pursuant to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4.

2 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 T he 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 ser ies of

article s 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.3

The Guide published a series of editorials opposing the candidacy

of all three defendants.

No ne of the defendants were particularly pleased by these

art icles 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, T he 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, pl aintiffs 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 official1 Mt. Healthy v. Doyle , 429 U.S. 274 (1977).

4 newspaper.

After a jury trial, a verdict was returned in fav or 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. Healthy 1 b urden

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 rel ating 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 M

ijalis

, 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."5

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), burde n shifting test governs the propriety of these

instructions. Under M t. 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. I d

. at 287. Once

established, the burden shifts to the defendants to show that they

would have taken t he 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 formmisstate 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 requ ire 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 and2 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.

6 ineradicable doubt” as to whether the jury was properly guided in

its deliberations. The jury was instructed to “keep in mind” the

jury instru ctions 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 ju ry’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 reasonab le 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 H iltgen v.

Sumrall

, 47 F.3d 695, 699-700 (5th Cir. 1995). Having reviewed the

transcript, briefs, and other relevant portions of the record, we7

hold that adequate and sufficient evidence exists to support the

jury’s verdic t 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 Ri c ardo Calderon, Guadalupe

Cardona, Romelia Cardona, Ruth Cedillo, Arturo Garc ia, 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. S ee 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).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.

8 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 extrin sic circumstances

rendered their testimony un necessary. 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

insu fficient 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 factual9

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

.