*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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 98-20150

Summary Calendar

____________________

ASTRODOME USA, a Division of Houston McLane Company Inc,

Plaintiff - Appellee,

v.

DUR UNITED ENTERTAINMENT INC,

Defendants,

DUR UNITED ENTERTAINMENT INC,

Defendant - Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-97-CV-2677)

_________________________________________________________________

March 23, 1999

Before KING, Chief Judge, JOLLY and DUHE’, Circuit Judges.

PER CURIAM:*

Plaintiff-appellee Astrodome U.S.A. brought a breach of

contract claim against defendant-appellant Dur United

Entertainment, Inc. The district judge granted Astrodome

U.S.A.’s motion for summary judgment and awarded damages. Dur
2

United Entertainment, Inc. appeals, arguing that a genuine issue

of material fact exists as to whether Astrodome USA committed a

material breach, thus excusing its nonperformance. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Dur United Entertainment, Inc. (Dur United) contracted with

Astrodome U.S.A. (Astrodome) to lease the Astrodome for the

“Three Tenors 1996/97 World Tour Grand Finale,” to take place on

March 16, 1997. 

The contract between Dur United and Astrodome contained

three provisions relevant to this appeal. First, the parties

agreed that “all alterations or additions to the Leased Premises

that may be required to stage the [concert], including . . . the

addition of lighting and/or sound facilities in addition to those

already existing . . . shall be done only with the prior written

consent of [Astrodome] which shall not be unreasonably withheld.” 

Second, Dur United and Astrodome contracted that Dur United would

“not make any alterations to the Leased Premises without prior

written consent of [Astrodome] except for those set forth in the

Technical Rider for the Astrodome, which has been approved by

[the parties].” The Technical Rider provided that the sound

system for the Three Tenors concert would be hung from a grid.

Lastly, the parties agreed that if the Three Tenors concert

“is canceled and/or rescheduled and does not take place on March

16, 1997, and provided the Leased Premises is vacant on March 16,

1997, due to the sole reservation of same by Dur [United], . . .

in lieu of the rental fee . . . [Dur United] shall pay
3

[Astrodome] a guaranteed vacancy fee in the [amount of] $350,000

if [Dur United] notifies [Astrodome] of a cancellation or

rescheduling of the [concert] after March 3, 1997.”

Dur United canceled the event after March 3, 1997, and 

Astrodome subsequently filed suit against Dur United for breach

of contract in state court. Dur United removed the suit to the

United States District Court for the Southern District of Texas

on the basis of diversity jurisdiction. Astrodome filed a motion

for summary judgment, arguing that Dur United owed Astrodome the

agreed-upon vacancy fee and reasonable attorneys’ fees due to Dur

United’s cancellation of the Three Tenors concert. Astrodome

attached two affidavits to its motion. The first affidavit

concerned the reasonableness of the attorneys’ fee request, and

the other was by Teresa Herbert, Astrodome’s Legal Manager. 

Herbert stated in her affidavit that she was the custodian of the

lease between Astrodome and Dur United, that Dur United canceled

the Three Tenors concert after March 3, 1997, and that the

Astrodome was vacant on March 16, 1997. A copy of the lease

contract (without the Technical Rider) was attached to Herbert’s

affidavit. 

Dur United filed a motion in response to Astrodome’s summary

judgment motion, in which it argued that Astrodome had materially

breached the contract by unreasonably withholding permission to

hang speakers from the Astrodome ceiling, thus discharging Dur

United’s duty to perform the contract. Dur United attached

several affidavits and the Technical Rider to the contract to its
4

response. The district court granted Astrodome’s summary

judgment motion on February 6, 1998, and awarded Astrodome

$390,000 (the $350,000 vacancy fee plus $40,000 in attorneys’

fees) and pre- and post-judgment interest. Dur United timely

appealed. 

Dur United advances two arguments on appeal in support of

its assertion that summary judgment was inappropriate. First,

Dur United argues that a genuine issue of material fact exists as

to whether Astrodome materially breached the contract by

unreasonably withholding permission to hang a speaker system from

the Astrodome ceiling. Second, Dur United maintains that

Astrodome was not entitled to summary judgment because Astrodome

failed to establish that it tendered performance. We consider

these arguments in turn.

II. DISCUSSION

We review the district court’s grant of summary judgment de

novo. See Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.

1994). Summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” FED. R. CIV. P.

56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). 

We must view all evidence in the light most favorable to the

party opposing the motion and draw all reasonable inferences in

that party’s favor. See Anderson v. Liberty Lobby, Inc., 477
5

U.S. 242, 255 (1986).

Dur United first argues that it presented summary judgment

evidence that Astrodome breached the lease agreement and

therefore that its nonperformance was excused. Dur United

maintains that Astrodome materially breached the contract by

unreasonably refusing to permit its agents to hang speakers from

the roof of the Astrodome, which it claims was the only speaker

configuration that would provide for adequate sound quality

during the Three Tenors concert.

 In support of this contention on appeal, Dur United relies

solely on an affidavit of Alexander Yuill-Thornton II (Thornton),

a professional sound designer and engineer who implemented the

sound system for the Three Tenors concerts. Thornton stated in

his affidavit that he initially proposed a plan to hang speakers

from the roof of the Astrodome, but that he was told by Dur

United that Astrodome informed it that the plan would have to be

modified to reduce the aerial load. Thornton testified that he

then devised a second, and later a third, sound plan that

“addressed all of [Astrodome’s] concerns,” but that he was

informed by Dur United that Astrodome rejected these plans. 

Thornton stated in his affidavit that the difference in sound

quality between his first and third plans was “significant,” and

that, after Astrodome rejected his third proposal, he advised his

employer, apparently the organization in charge of coordinating

the sound system for the Three Tenors concert, that “the sound

for this concert would not be up to our usual standards.” 
6

Thornton concluded his affidavit with a statement that he had

personal knowledge, through his discussions with Dur United, that

Astrodome representatives “significantly altered the weight

limits which they would allow us to employ, [and] therefore

significantly reduced the aerial load which would be allowed any

of the systems required for this concert, including the sound

system -- to the significant detriment of any operatic

production.”

Dur United argues that these portions of the Thornton

affidavit support its assertion that it has raised a genuine

issue of material fact that Astrodome unreasonably withheld

permission to hang speakers from the Astrodome ceiling. We

disagree. First, the contract between Astrodome and Dur United

does not in any way indicate that any speakers were to be hung

from the ceiling of the Astrodome. To the contrary, the

Technical Rider makes clear that the sound system was to be

installed on the sides of a grid, and Dur United does not argue

that the grid is, or is part of, the Astrodome ceiling. Dur

United has presented no summary judgment evidence suggesting the

existence of any writing altering the contract to allow Dur

United to hang speakers from the Astrodome ceiling, as required

by the contract.

Second, the Thornton affidavit is insufficient to raise a

genuine issue of material fact that Astrodome unreasonably

refused Dur United’s request to hang the speakers from the

ceiling. Thornton’s affidavit states only that he learned from
 

1 Thornton’s affidavit does state that “the Dome, when

loaded evenly and with professional care, could support the

significant, even enormous, weight of lighting and sound

systems.” However, Thornton makes clear that this statement is

based on “information and belief, and not of [his] personal

knowledge.” Statements made on “belief or ‘on information and

belief’ cannot be utilized on a summary-judgment motion.” 10B

Charles Alan Wright et al., FEDERAL PRACTICE AND PROCEDURE § 2738

(1998) (footnote omitted).

7

his client, presumably Dur United, that Astrodome rejected three

sound plans for the Three Tenors concert; he lacks any personal

knowledge that Astrodome actually rejected the plans or that

Astrodome was unreasonable in rejecting the plans.1 See BMG

Music v. Martinez, 74 F.3d 87, 90 n.18 (5th Cir. 1996) (refusing

to consider affidavit based on third party affiant’s lack of

personal knowledge concerning transaction). Dur United points to

no summary judgment evidence on appeal that indicates that

Astrodome was presented with alternative plans, or, more

importantly, that even if it was presented with plans, that

Astrodome acted unreasonably in withholding its permission on the

plans. 

Thus, even viewing Thornton’s affidavit in the light most

favorable to Dur United, we conclude that the district court did

not err in finding that Dur United failed to raise a genuine

issue of material fact on this issue. The contract did not call

for hanging speakers from the ceiling, and Dur United points to

no summary judgment evidence in its brief that raises a genuine

issue of material fact that Astrodome acted unreasonably in

withholding permission to hang speakers.

Dur United next argues that the district court erred in
8

granting summary judgment to Astrodome because Astrodome failed

to present any evidence concerning each of the essential elements

of its breach of contract claim. In order to prevail on a breach

of contract claim under Texas law, a party must prove: (1) the

existence of a valid contract, (2) that the plaintiff performed

or tendered performance, (3) that the defendant breached the

contract, and (4) that the plaintiff was damaged as a result of

the breach. See Prudential Sec., Inc. v. Haugland, 973 S.W.2d

394, 396 (Tex. App.--El Paso 1998, writ denied); Garner v. Corpus

Christi Nat’l Bank, 944 S.W.2d 469, 476 (Tex. App.--Corpus

Christi 1997, writ denied), cert. denied, 119 S. Ct. 410 (1998). 

Dur United argues specifically that Astrodome failed to present

any evidence that Astrodome performed or tendered performance.

We find no merit to this argument. The affidavit of Teresa

Herbert, Astrodome’s Legal Manager, states that the Astrodome was

vacant and was not rented to any other party on the date of the

proposed Three Tenors contract, March 16, 1997. Astrodome

therefore presented summary judgment evidence that it performed

its obligations under the contract. In addition, “a denial that

a condition precedent occurred must be specifically and

particularly pleaded and such matters may not be raised by a

general denial.” Trinity Carton Co., Inc. v. Falstaff Brewing

Corp., 767 F. 2d 184, 192 (5th Cir. 1985) (citations omitted). 

Dur United provided only a general denial of Astrodome’s claim in

its original petition that “all conditions precedent to

performance of these terms of the Lease have been performed by
9

[Astrodome] or have occurred.” We are therefore unpersuaded by

Dur United’s argument that summary judgment was inappropriate on

this ground.

Lastly, Dur United argues that the district court improperly

relied on the two affidavits attached to Astrodome’s motion for

summary judgment. Dur United objects to Teresa Hebert’s

affidavit on the ground that the attached copy of the contract

between Dur United and Astrodome did not include the Technical

Rider. At the hearing, the district court considered the

relevant portions of the Technical Rider, which were introduced

into the record by Dur United, and neither party objected to the

district court’s intention to rule on the summary judgment motion

based on the record at that time. 

Dur United also objects to the Astrodome’s affidavit by its

attorney in which the attorney stated that a $70,000 attorneys’

fee was reasonable, claiming that it is deficient because it

fails to attach an actual copy of the attorney’s contract with

Astrodome. This argument lacks merit; Dur United failed to

object at the district court’s hearing that a $40,000 award for

attorneys’ fees was unreasonable, and, in any event, we conclude

that the district judge did not abuse his discretion in finding a

$40,000 award reasonable.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.