UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-20497

_____________________

HC GUN & KNIFE SHOWS, INC.,

d/b/a High Caliber Gun & Knife Shows, Inc.,

TODD BEAN, individually and d/b/a High

Caliber Gun & Knife Shows, d/b/a

High Caliber Gun & Knife Shows, Inc.,

Plaintiffs-Appellees,

versus

CITY OF HOUSTON,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________ January 20, 2000

Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Primarily at issue is whether Texas law preempts a City of

Houston ordinance regulating gun shows conducted on city property.

The City contests the partial summary judgment granting declaratory

and injunctive relief to HC Gun & Knife Shows, Inc., and Todd Bean,

individually and d/b/a High Caliber Gun & Knife Shows; the judgment

on a jury verdict awarding lost profits to Appellees; and

attorney’s fees awarded Appellees. We AFFIRM

.

I.

Bean and his successor corporation (Appellees) have held gun

and knife shows since 1 988. From 1990 until late 1993, they

conducted ten at the City’s George R. Brown Convention Center (the

center).2

In June 1993, the Houston City Council passed an ordinance

requiring all persons attending gun shows at city-owned facilities,

inter alia : (1) to sign a form declaring the firearms in their

possession (registration requirement); and (2) for all firearms

brought to such shows, to either remove the firing pins or install

key-operate d trigger locks (disabling requirement). H O USTON

, T EX

.

C ODE OF O RDINANCES § 12-24.

Bean conducted three shows at the center in 1993, but canceled

the fourth, scheduled for that December, because of the ordinance’s

registration and disabling requirements. No shows were held at the

center between December 1993 and March 1997.

In January 1996, Appellees filed this action in state court,

alleging that the ordinance’s registration and disabling

requirements effectively prevented them from holding shows on cityowned property: the registration requirements would cause delay,

expense, and impositi ons that would deter attendance; removal of

the firing pins would damage many of the guns shown and traded at

the shows; an d installation of trigger locks would be cost

prohibitive and result in delays that would greatly red uce

attendance. The City removed this action to federal court.

In early 1997, the district court denied summary judgment for

the City and granted partial summ ary judgment for Appellees.

Declaratory relief was premised on the ordinance being preempted by

T EX

. L OCAL G OV ’ T C ODE § 215.001, which prohibits, inter alia

,

municipal regulation of the “transfer, private ownership, keeping,

transportatio n, ... or registration of firearms”; and on the3

ordinance bei ng violative of the commercial speech protections

guaranteed by the United States and Texas Constitutions. The City

was permanently enjoined from enforcing the ordinance.

Following a trial on damages that May, the jury awarded

$329,000 for lost profits. In addition, the court awarded

Appellees $54,442 (stipulated amoun t ) for attorney’s fees and

expenses.

II.

The City contends that the preemption and commercial speech

holdings are erroneou s; that the court abused its discretion by

refusing to order production of documents relat ing to, and by

excluding evidence of, Appellees’ gross revenues and expenses,

including with respect to shows conducted outside the Houston area;

that the evidence is insufficient to support the verdict; and that,

because the judgment must be reversed, so must the fees award.

A.

The summary judgment is reviewed de novo

, pursuant to the same

standard applied by the district court. E .g.

, Drake v. Advance

Const. Service, Inc.

, 117 F.3d 203, 204 (5th Cir. 1997). It is

proper when the summary judgment record, viewed in the light most

favorable to the non-movant, establishes that “there is no genuine

issue as to any material fact and

... the moving party is entitled

to a judgment as a matter of law”. F E D

. R. C IV

. P. 56(c); Drake

,

117 F.3d at 204.

The ordinance requires a pplicants seeking to use the center

for gun shows to execute an agreement which includes, inter alia

,1 The ordinance states, in pertinent part:

(a) Each approved applicant for the use

of a facility to conduct a gun show shall be

required to execute a special form of

occupancy agreement that incorporates the

req uirements generally applicable to the

rental of facilities and the additional

requirements established in this section. The

agreement shall include:

(1) A covenant to provide a specified

minimum number of off-duty city

police office rs who shall be

compensated solely at the occupant’s

expense and shall provide

security for the gun show; the number shall be approved by the

director and shall at least be based upon the number of expected

exhibitors, the expected number of patrons and the size of the area

to be leased;

....

(3) A covenant that all persons who

attend the gun show will be required

to sign a form approved by the city

attorney setting forth a declaration

of weapons in their possession, if

any, and expressing their

understanding of their

responsibilities relating to

possession, use and access to any

firearms and ammunition at the gun

show;

(4) A covenant to comply with and

enforce the public gun show

regulations of the city, which shall

include, without limitation, a

4 covenants (1) to provide and comp ensate off-duty City police

officers to provide security for the show; (2) that all persons in

attendance will be required to sign a form declaring all weapons in

their possession; and (3) to comply w ith the city’s regulations,

which require either the removal of firing pins or the installation

of trigger locks on all firearms brought into the facility. 1requirement that no firearm may be

brought into any exhibit area of any facility without first being

inspected by a city police officer

... who shall verify that each

firing pin has been removed from the

firearm, or alternatively, the city

police officer may install a trigger

lock upon the firearm if it is of

such a design that the firing pin(s)

may not be removed by any procedure

that will not cause permanent damage

to the firearm, provided that the

city police officer shall retain the

k ey to the lock and the lock shall

not be removed from the firearm

until the firearm is checked out of

the exhibit area....

H OUSTON

, T EX

. C ODE OF O RDINANCES § 12-24.

2 The statute provides, in pertinent part:

(a) A municip ality may not adopt

regulations relating to the transfer, private

ownership, keeping, transportation, licensing,

or registration of firearms, ammunition, or firearm supplies.

(b) Subsection (a) does not affect the

authority a municipality has under another law

to:

....

(2) regulate the discharge of

firearms within the limits of the

municipality;

....

(6) regulate the carrying of a

5 The Texas statute, T EX

. L OC

. G OV ’ T C ODE A NN

. § 215.001, held by

the district court to preempt t h e ordinance, prohibits

municipalities from regulating, inter alia

, “the transfer, private

ownership, keeping, transportation,

... or registration of

firearms”. 2firearm by a pe rson other than a person

licensed to carry a concealed handgun

under Subchapter H, Chapter 411,

Government Code, at a:

(A) public park;

(B) public meeting of a municipality, county, or other

governmental body;

(C) political rally, parade,

or official political meeting; or

(D) nonfirearms-related

school, college, or professional

athletic event.

(c) The exception provided by Subsection

(b)(6) does not apply if the firearm is in or is carried to or from

an area designated for use in a lawful hunting, fishing, or other

sporting event and the firearm is of the type commonly used in the

activity.

T EX

. L OC

. G OV ’ T C ODE A NN . § 215.001.

6 The City’s brief devotes less than four pages (one of which is

devoted to quoting § 215.001) to preemption. Essentially, the City

contends that the ordinance is not preem pted by § 215.001(a),

because, rather than restricting the transfer, private ownership,

keeping, transportation, licensing, or registration of firearms,

the ordinance is instead a valid exercise of the City’s authority,

under § 215.001(b)(2), to regulate the discharge of firearms within

the city limits.

The district court rejected this contention, reasoning that,

although the ordinance’s disabling requirement (removal of firing

pins or installation of trigger l ocks) prevents the discharge of

firearms, the ordinance also seeks to regulate the tr ansfer,

private ownership, or keeping of firearms, which is prohibited by7

§ 215.001(a). It concluded that, through the ordinance, the City

“attempts to occupy all but a hair’s width of the entire field of

the regulation of gun shows”; and that, if the City’s

interpretation of § 215.001(b)(2) (discharge-exception) were

accepted, it would “swallow[] the general rule preempting municipal

regulation of firearms”. We agree.

The City does not address the ordinance’s reg istration

requirement; nor does it make any attempt to defend that

requirement as a regulation relating to firearms-discharge. In any

e vent, pursuant to our review of whether the ordina nce is

preempted, it is obvious that the registration requirement is not

related to preventing such discharge. Therefore, the ordinance is

not authorized by § 215.001(b)(2). Moreover, the registration

requirement is expressly preempted by § 215.001(a).

In district court, the City maintained that the disabling

requirement was authorized by § 2 15.001(b)(6), which permits

municipal regulation of the conduct of persons in certain public

places; and that the ordinance is an exception to the City’s more

restrictive ban on possession of all fi rearms on city premises.

But, the City does not make those contentions here and, therefore,

has abandoned them. S ee Yohey v. Collins

, 985 F.2 d 222, 224-25

(5th Cir. 1993).

Instead, the City relies on a Texas Attorney General opinion

that a different ordinance, H OUSTON

, T EX

. C ODE OF O RDINANCES § 28-47,

which makes it unlawful for a child to discharge a firearm within

the City limits, is not preempted by § 215.001(a). O p. Tex. Att’y8

Gen. No. 94-5 6 (1994). Unlike the ordinance now at issue, the

ordinance addressed by th e Attorney General prohibited o nly

firearms-disch arge; it did n ot impose registration or disabling

requirements such as those now at issue.

In sum, based on our review of the summary judgment record,

the ordinance is preempted by T EX

. L OC

. G OV ’ T C ODE A NN

. § 215.001(a);

it is not authorized by the discharge-exception in subpart(b)(2).

Because we so hold, we need not rea ch the federal and state

commercial speech constitutional issues. S ee County Court of

Ulster County, N.Y. v. Allen , 442 U.S. 140, 154 (1979) (court has

“strong duty to avoid constitutional issues that need not be

resolved in order to determine t he rights of the parties to the

case under consideration”).

B.

The City moved for summary judgment in April 1996; Appellees,

that May. By a May scheduling order, the discovery deadline was

early January 1997, with tri al in late March. In late November

1996, the parties moved joint ly to extend the discovery deadline

until the end of February 1997; the mot ion was granted in early

December.

In mid-January 1997, the City requested documents related to

all gun shows conducted by Appellees. But, one week later, they

were awarded partial summary judgment. Accordingly, in midFebruary, the parties’ joint motion to limit discovery to

Appellees’ damages was granted.9

In early March, one week after the discovery deadline, the

p arties moved jointly to continue trial. On 13 March, it was

continued until mid-May.

That same day (13 March), Appellees moved for a protective

order, contesting the relevancy of the requested documents

pertaining to non-Houston shows. On 31 March, the City moved to

compel document p roduction and to amend the scheduling order; it

maintained that, in order to determine Appellees’ profit margins,

it was necessary to review documents related to all of their shows.

On 29 April, the court granted the protective order and denied

the motion to compel. Noting that the case was no longer at an

early stage of pre-trial discovery, and that the partial summary

judgment had narrowed discovery to damages for Appellees’ inability

to conduct sh ows at the center, the court held that the document

requests were overly broad, unreasonable, and und uly burdensome.

On Thursday, 15 May 1997, only four days before trial set for

Monday, 19 May, the City moved to con tinue trial for 45 days,

claiming that it had received incomplete information to allocate

Appellees’ overhead expenses and income in order to calculate their

profit margin. The continuance was denied at a hearing conducted

the following day. At trial, the City repeatedly, but

unsuccessfully, re-urged the relevance of the non-Houston evidence.

I n contending that it was prohibited from defending against

Appellees’ damages claims, the City presses its need for documents,

including income tax returns, relating to Appellees’ gross revenues

and expenses for non-Houston shows. Therefore, it contests the10

adverse rulings on its motions to compel, for continuance, and for

judgment as a matter of law, as well as the non-Houston evidence

being excluded, and the protective order being granted.

In sum, the damages issue is extremely limited. For example,

the City does n ot contest the methodology employed by Appellees,

nor assert, as it did in district court, that, as a matter of Texas

law, lost profits could n ot be recovered under the circumstances

existing in this case. Distilled, the issue relates o nly to

denied-evidence wanted for challenging lost profits.

Concomitantly, as hereinafter discussed, the scope of our review is

narrow.

The discovery, evidentiary, and no -continuance rulings are

reviewed for abuse of discretion. E .g., Coughlin v. Lee

, 946 F.2d

1152, 1158 (5th Cir. 1991) (discovery); Polanco v. City of Austin,

Tex.

, 78 F.3d 968, 9 82 (5th Cir. 1996) (evidentiary rulings);

Dorsey v. Scott Wetzel Servs., Inc.

, 84 F.3d 170, 171 (5th Cir.

1996) (continuance). “A trial judge’s control of discovery is

granted great deference.” Meadowbriar Home for Children, Inc. v.

Gunn

, 81 F.3d 521, 534 n.12 (5th Cir. 1 996). We will reverse a

discovery ruling only if it is “arbitrary or clearly unreasonable”,

Mayo v. Tri-Bell Industries, Inc.

, 787 F.2d 1007, 1012 (5th Cir.

1986), and the complaining party demonstrates that it was

prejudiced by the ruling. S ee Hastings v. North East Indep. School

Dist.

, 615 F.2d 628, 631 (5th Cir. 1980). Similarly, unless an

erroneous evidentiary rul ing substantially affects the rights of

the complaining party, the error is harmless. F E D

. R. E VID

. 103(a).11

“When the question for the trial court is a scheduling

decision, such as whether a continuance should be granted, the

judgment range is exceedingly wide, for, in handling its calendar

and determining when matters should be considered, the district

court must consider not only the facts of the particular case but

also all of the demands on counsel’s time and the court’s.”

Fontenot v. Upjoh n Co. , 780 F.2d 1190, 1193 (5th Cir. 1986). We

will not “ substitute our judgment concerning the necessity of a

continuance for that of the district court”, unless the complaining

party demonstrates that it was prejudiced by the denial. I d

. at

1194.

The denial of judgment as a matter of law is reviewed de novo ;

in so doing, we apply the same standard as did the district court;

and “[s]uch judgment is appropriate if, aft er viewing the trial

record in the light most favorable to the non-movant, there is no

‘legally sufficient evidentiary basis’ for a reasonabl e jury to

have found for the prevailing party”. H ill v. International Paper

Co. , 121 F.3d 168, 170 (5th Cir. 1997).

Obviously, eac h of the challenged rulings turns, to a great

extent, on the relevance of Appe l lees’ non-Houston documents.

Discovery and evidence being limited to Houston reven ues and

expenses was premised, inter alia , on the court’s conclusion that

the other data was n ot relevant to Appellees’ damages resulti n g

from inability to conduct shows at the center. (As discussed, in

denying the motion to compel and granting the protective order, the

court also noted that the case was “no longer at an early stage of12

pretrial disc overy”, and held that the discovery requests were

“overly broad, unreasonable, and unduly burdensome”.)

Consistent with this limitation-basis, the court, in denying

judgment as a matter of law, rejected the City’s contention that

Appellees could not recover lost profits without evidence of their

total revenues and expenses.

The City maintains that the desired evidence was relevant to

the profitability of Appellees’ business, alternate methods of

calculating lost profits, and mitigation of damages; and that the

evidence does not support the verdict because the lack of evidence

relating to total gross revenues and e xpenses precluded

establishing entitlement to lost profits. We conclude that the

evidentiary, discovery, and no -cont inuance rulings were n ot an

abuse of discretion; and that the damages award is supported by

sufficient evidence.

Before 1996, Bean, who lives approximately 30 minutes away

from the center, did business as a sole proprietorship; his

business was incorporated in 1996. In essence, the business was a

three-person operation, headed by Bean. Other personnel, such as

security, were hired as necessary for a show. During the period

1992-97, Bean conducted approximately 35 non-Houston shows

annually. He testified that, because of the ordinance, he was

precluded from presenting 13 shows at the center; and that

presenting a show there was not precluded by his presenting a nonHouston show on the same day.13

Appellees sought damages only for lost profits resulting from

their inability, because of the ordinance, to conduct center-shows.

As noted, they did not clai m that it affected their ability to

conduct shows in other markets, and did not seek to recover other

possible damages, such as for injury to business reputation, loss

of good will, or other potential harm related to non-Houston shows.

In its brief, the City has failed totally to demonstrate how the

evidence at issue is relevant to the awarded lost profits.

In any event, the record reflects that the challenged

discovery, evidentiary, and no-continuance rulings did not preclude

the City from defending against the damages claim. In short, the

requisite prejudice is la c king. Appellees presented evidence

pertaining to each of their Houston shows (both at the center and

at a private facility) before and after the ordinance was enacted.

The City cross-examined Bean about his calculation of profits and

expenses for each of those shows, and about his method of

allocating fixed expenses. Concerning mitigation, the City’s

cross-examination of Bean established, for example, that he did not

seek to conduct shows at several other facilities in the Houston

area while th e ordinance was in effect. In addition, the court

allowed t he City, over Appellees’ objection, to elicit from Bean

the above-described number of non-Houston shows held annually, and

ruled that it could question him about those in Biloxi,

Mississippi.

The City’s assertion tha t the evidence does not support the

award is belied by the record, which includes not only Bean’s14

testimony, but extensive documentary evidence corroborating it. In

the light of the framing of this issue on appeal, the exclusion of

the non-Housto n data does n ot undermine the sufficiency of that

evi dence. Restated, there is a legally sufficient evidentiary

basis for the awarded lost profits.

C.

Because we affirm, the City’s only challenge to the fees award

(stipulated a mount of $54,442) — that a reversal compels its

abrogation — fails.

III.

For the foregoing reasons, the judgment is

AFFIRMED.