the briefs in this case address a number of issues but i'd like to focus today on two key points first the pretrial and the trial rulings on damages by the trial court effectively allowed the landlords to recover windfall contrary to principles of washington law and second the trial court erred in dismissing all claims brought against sportsman's warehouse the architect of the m t a transaction they gave rise to this dispute with respect to the landlords the trial court erred in at least two respects first the trial court failed to recognise then an action brought for breach of contract which this case was the non breaching party  covers its expectation damages the benefit of the bargain and that means that it gets what it would have received had the contract not been breached even the case of the lease agreement exactly your honor if the lease agreement contains a term that is suit upon which is the case here the argument brought by the landlords was that the tenant was required to obtain their consent to engage in the master transaction agreement and it failed to do so that was the bas upon which the case was tried it was the basis for the jury's verdict i guess of the plaintiffs theory was that the transaction was structured in such a way to evade getting signed off from the landlords leaving in place what looked to me to be an empty shell that defaulted on the lease and there were no assets to pay that's exactly right your honor so the issue in such a case is what would the landlords have received had the tenant who defaulted remained on the premises and if they lost money or we on the set off claim is that we're going with this argument well in a my understanding was that the landlord  made some tenant improvements that the space in both malls were empty for some period of time and then the real lead to new tenants who paid more in monthly rent and then wholesale  that's correct your honor and then the landlords sued just for the unpaid rent during that period of time the space was vacant and for the cost of the improved that's exactly right your honor ok and so the land the the trial court decided that notwithstanding clear and undisputed evidence throughout the time leading up to the trial including on summary judgment the landlord's never terminated leases it was this specific issue raised in front of the district court oh it certainly was your honor the dispute about whether or not the court should have awarded damages for the benefit the bargain was the basis for the argument on summary judgment it was raised again in motions in limine a before trial and the trial court made a ruling mid trial that excluded evidence of surplus rents for the period of time after the premises were released the court in essence rewrote history to say that the landlords were suing on their own behalf because they were not seeking damages for the period of time that the damages would have been negative when this issue came up mid trial though did it not because it looked to me like this  robert had call for letter briefs on the question of the question of surplus rents that's correct your honor so going back to judge was callous question was that issue preserved in the pretrial order or did it arise in the middle of trial it was preserve your honor when the trial court entered summary judgment on damages and the let the my client raise the issue and not just of the propriety of looking at the property value before and after the breach but also the offset of surplus rents the trial court refused to reach that question because they said it was not properly before it and the reason for that is let me quote the question different w what's an equitable or unfair about allowing the landlords to recover the amount of lease that the prior tenant defaulted on and the cost of tenant improvements incurred in order to really let the premises your honor so far as that goes that's not an equitable but if the landlord chooses to let on the tenants account which is what happened here because there was no trauma nation of the leases well but then if that's a legal conclusion is that not on the tenants account i mean my question basically is one of sort of basic fairness and putting the landlord in the position that the landlord would otherwise have been in and it seems to me that the landlord acted in a perfectly commercially reasonable fashion in relating the premises although it had to make some improvements to the premises in order to get the tenants in one of the space we're not arguing that the court in the jury awarded the landlords their last lease payments and the cost of the improvements and what's unfair about that result and what's unfair about your honor is that the landlord is put to a choice and awash in law after a breach in the lease payments and that is to either terminate the lease and really let for the landlords on account or to sustain the lease and relate that in essence on the tenants account and that is what the latter is what happened here then the landlord decided after summary judgment that it would have to pay back some of the rent because it would me better deal for the new tenants than for the old ones and persuaded the trial court that it was proper to exclude evidence of the increase in value and of the surplus rents but i don't think that the landlords were seeking damages or any period of time after the premises were real lat that was a trial your honor at summary judgment they said that the major advantages is the diff is the deficiency in rent throughout the term of the lease then they figured out that was a negative deficiency i mean the problem i'm having with your argument and maybe maybe it's an unclean hands equitable issue is on the assumption that the jury found that your client acted wrongfully in the manner in which it structured this deal and awarded the landlord the damages that the landlords suffered as a result of it it seems to me that the jury reached a pretty commonsense conclusion to otherwise pretty complicated commercial transaction the jury followed the instruction that it received in the court and the evidence of surplus rent was not presented to the jury because it was excluded by the trial court under washington law if you don't terminate the lease you have to credit the defaulting tenant for surplus rents just as you would hold it liable for deficiency in the right tenant didn't suffer excuse me the your client didn't suffer from anything that the landlords did after the space was let your honor the landlords received the windfall because they received not only the amounts that would have been paid through the time that they realize that in every dollar of pretending expenses including we believe improperly calculated ones but the jury the jury decided that issue did it not in accepting the reasonableness of the amounts of the landlord's claim for the improvement it did your honor the jury received no evidence of the surplus rents which is the question that the trial court i mean not only going round and round on this issue but i'm  really having a hard time understanding what's unfair to you have a when the landlords were seeking damages in the form of unpaid lease payments for the full term of the original lease when they claim stopped at the point at which the new tenant occupied the premises and started paying ran well your honor if if there had been a deficiency in the at least payments under the new there's no question they would have sought that it's the fact that they would have had pay back a certain portion of the benefit that they got from the letting that caused them to make a tactical decision it just seems to me mr mitchell that if anybody is looking for a windfall here on the contrary your honor because the landlords held these leases did not have been terminated they were required to receive the benefit of their bargain not more than the benefit of their bargain and that was the error of law that the trial court case which is the landlords put to an election about whether to terminate the lease or to really let for the tenants own purposes and harvest was a case in which the court said that the if you terminate the lease then the landlord doesn't have to account for gains paid was the converse of that and the trial court erred in misapplying hargus to these facts in circumstances where there was clear evidence that the leas were never terminated wouldn't the evidence that the lease were terminated lisa's work terminated be that the landlord isn't seeking damages for any period of time after the space was relaxed no your honor the decision about whether you're going to terminate the lease or not is made ex ante it's in the communications were made by the landlord to the to tenet just hard to say that the landlord can't change its election once it makes that i didn't read the case that way it doesn't say whether it can or cannot change your honor what it says is that if you choose a then certain things if you choose be certain other things follow and what the landlords did here is it is a heads i win tails you lose kind of choice by electing not to pursue damages during a time when the damages would have been negative would have offset the damage s they would otherwise have recovered they get they got more than the benefit of their parking is the point with they got more and rent from the second set of tenants because obviously market conditions are changed and they were able to charge more rants but i'm still i'm still having a difficult time understanding why it's unfair when the landlords were seeking any last lease payments for that same period of would have a very different situation of the landlords were saying they're liable for the lease payments for the entire term of the lease and just because we were able to find new tenants to occupy the space we get to keep both what the new tenants paid as and damages from the old tenants for the unpaid term of the lease i could be a very different situation than what we're facing here on or if the landlords choose not to trim and had to lease it which is the case here they get the benefit of the bargain for the entire lease term the fact that the damages turned negative that at one point doesn't change the rule you don't get to make a tactical decision about whether you going to seek damages for the entire term or not to address that all in the pretrial or i don't know about the pretrial order it certainly was in the summary judgment briefing and then at the mid trial isn't the rule that that once the pretrial order is sign that all of the pleadings prior to that time fall out of the case and then the case goes to trial on the allegations in the pretrial order well your honor we believe that the trial court erred in granting summary judgment on the measure of damages that's what took it out it would have been that that those rulings would have occurred prior to the  a not in the ordinary course they would have though i guess my question remains can you tell me was there any listing of this issue in the pretrial order it sounds to me like there was not but i'm not sure you all included the pretrial with respect to sportsman's the trial court erred in granting a summary judgment on the landlord's tortious interference claim the evidence in the summary judgment record showed both improper purpose and improper means the evidence is summarized at the third supplemental excerpts of the record pages ninety nine to one to one counsel i guess the same concern about whether this argument has been waived as well did you oppose portsmouth's motion for summary judgment i know you're on the landlord supposed it if you object to the trial court's grant of summary judgment not contemporaneously your honor well isn't that a waiver no your honor under this court's precedent in the sw and its aggrieved in the sense of either collateral estoppel consequences or being left holding the bag both of which are true here i find mr mitchell on the facts of this case i'm having a really difficult time if anybody got left holding the bag it was the landlords based on this deal to transfer all but the shell of wholesale spores which was the signatory on the original lease leaving it completely judgment proof as far as the landlords were concerned be the tenant i would i would grant you your honor that that's a fair characterization of the circumstances as they existed at the time that the leases if you know it was brilliantly structured i will give the lawyers credit some of the best lawyers in the country you know writing the terms of this complicated transaction but at the end of the day the landlords got the shaft that that's all i think the jury saw i believe that you're right your honor my point is that after the jury rendered its verdict and held sportsman's responsible for the consequences just as my client was held responsible the jury sorry the judge overturned the jury's verdict by granting judgment as a matter of law and we believe that it erred in doing so it aired because the not only was there factual dispute that for the jury to to consider on where the money went the more important factor is that these steps in this transaction have to be considered together substance matters more than form with respect to the money  my numbers indicate that one point eighteen million in closing funds went to  to pay rentals a judge will scan and i'd just like to correct a one point one point one eight million came from my client you have and went to alamo slash galbi and about five hundred thousand from sportsman's that was money that would lead to the closing of this transaction after galbi baulked the funds were calculated the amount of funds were calculated based upon upcoming lease payments and it was my client's understanding that they would be so  sportsman's and gobby concluded that there wouldn't be would be no restrictions on the use of the funds and they were in fact used to buy sportsman's inventory in other stores and i ask you a quick question if we were to reinstate the jury's verdict against sportsm so i don't know that it it lies within the power of this court to reinstate the jury's verdict without remanded for trial and if the case is reminded for trial the issues properly before the new new jury would be tortious interference as well  the proximate transfer act i'd like to save my time so if you let me let me wrap up this portion of my argument by saying that we are asking the court to reverse the trial court's orders granting summary judgment to the landlords on the measure of damages and granting summary judgment to sportsmen's on tortious interference we ask ask also for reversal of the trial court's grant of judgment as a matter of law to sportsmen's on correcting these errors of law is both necessar and appropriate to address the women for all the landlords received and to ensure that the architect of this transaction sportsman's does not escape responsibility thank you thank you m basis as your owners recognize that you have phase admitted liability for tortious interference and for us that's the baseline where we start and as they said in the brief we need to avoid the temptation to label everything legal and usurp the province of the fact finder to page thirty five of us phase opening brief let's not lose sight of what happened here it was a very simple dynamic it's an unbroken sequence of causation for the tortious interference wholesaled been paying rent wholesale gets cleaned out its stock sold u f a wholesale quits paying rent landlords need to find new tenants the new tenants required tenant improvements they pay for the tenant improvements to secure the tenets the judgement here can be affirmed solely on the tortious interference claim there's no judgement for breach of contract against you a phase for tortious interference there are separate instructions on that the damages against you if they fit squarely within jury instruction number twenty five which is that supplemental excerpts record one sixty three and it reads tortious interference or damages proximate cause by the tortfeasor conduct and per the instruction there's no duty to minimize losses incurred due to tortious breach of interference and that instruction doesn't exclude that sentence minimizing losses doesn't exclude breach of contract damages and they do to minimize their they didn't object to the instruction they didn't suggest additional language that would clarify any any anything they want to clarify with regard to that instruction so that alone is justification nuff to affirm address in us face contract arguments that they put in the brief in the mention this morning the prime focus is a set off for future rents in a market value set off the surplus rent argument yes your honor surplus for an argument in a market value property value argument those are the set up so they argue they all depend on whether the lease was terminated what we have here is a situation where if you look at the hardest case and i can read it at page eighty one so seven thirty p second eighty one says men now would be entitled to a set off of the excess rent if it treated lisa's continuing then in a goes down below however that rules in a political where the lease is treated as surrender forfeited harbor hargus was were not awarded damages based on rental values from september one thousand nine hundred four onward as obviously it suffered no loss after that rather it recover damages based on the payments not made by now the tenant for the fourteen month period until the four so that's what we have here in this case as well as your so your position is that you all did terminate yes and when did that happen here here's the situation what we did is we treated th surrendered and forfeited and that is from the beginning your honor unlike what mr mitchell said if you look at the record and it begins with the declaration of rob andrews who is from lacy marketplace this is your seven twenty nine it's dated june eleventh two thousand and thirteen it was mr andrews declaration in a sport of the motion for default and this is two years before trial and it is seven months before we had a claim against both u f a and sportsman's and what mr andrews says is lacey's damages are the amount of rent due under the lease for the eighteen month period between the reentry and the date a new tenant begins operating the space and paying rent along with other damages so so it's been consistent throughout the litigation your honor ok but this is this is during the litigation but right after well i'm just remembering the letters that guys wrote that said we are not just to be clear that leases are not terminated so that's before this thing that you just referred us to no your honor june eleventh is i don't have the exact date but it's within the same week we could two of those of those letters and judge robert in his order on summary judgment found that he had looked at those letters and he looked at the case and felt that it could move forward because the tenets were relating on their own account and he did use that based on the fact we weren't seeking future rents and we've been consistent throughout the litigation both with mr andrews declaration at that point a year and a half prior our experts declaration learning beric also kept the rents at the time that the new tenant comes in and starts pain and even in our closing so this wasn't an ad hoc after the fact situation this was the position we had taken throughout the references that mr mitchell makes to agreement on standard of damages was related to the summary judg motion which was specific to the market value deduction not a surplus rent issue at that point none of this is in the pretrial order well you can help me with your four fifty seven which is the burlington paragraph of the letter if the transaction does somehow proceed sportsman's and its predecessors will not be released from liability under the lease i mean that looks to me like the landlord is taking the position that the leases is not terminated we're going to look to you for for remedies under the lease which would include liability for the entire term to things when your honor in the hardest case the landlord sent a very similar letter but then took but the damages that they saw were consistent with a lease being terminated the court said they're treating the lease has forfeited surrendered the damages show that and that's and it's in a place called that rules political with a lease is treated that way too so is your position that the election is not irrevocable in the sense that even if i were to read this letter as a statement of the legal position that we will take if you are in breach of the lease that by the time you get to trial the landlord can elect not to enforce the full provisions of the lease and look just to the unpaid lease up until the point that it released the promise hargus allows the landlord to make an election hargus also says you need to look at the conduct of the parties and the conduct of the parties here consistently within the same week that these letters were sent which judge or bart found as the landlord's relating on their own account it was consistent with the damages saw were consistent with a lease being terminated counsel the district court found that you have waived this argument are you pursuing that issue here i think the argument has been waived your honor and the reason it's been waived well you've gotten to the merits obviously and in your presentation here but are you waiving your your waiver argument we're not we're no no your honor we're not waiving any waiver argument as the court actually noted none of this appeared in the pretrial order to the summary judgment motion that your fate stands on with regard to the surplus rinse issue didn't address that what that address was the market value deduction and that was specific to what the experts were testifying as to and that was and the basis of your face argument with relates into terminations also implicates the speculative nature of rents because they admit hey if the lease was treated as terminated or forfeited or surrendered maybe it could be killed counsel but just as long as i can i can address some of that your honor the  and so interest is going to stop and to the extent we want additional monies we're going to have to go to canada to get those i know there was a question from the court whether the the court could affirm of the the judgment for u f a on the  interference and i find nothing in the case law that i was brief that prevents the court from doing that what do we do know about the grant of a new trial that is tricky little issue conditional grant conditional grant different the elements are different they're not the same claims with regard to sportsman's i guess your honors are asking if you reverse the jayma well what's left to to remand to the to the courts  now there's going to be a new trial there's a conditional right of a new trial a conditional drone a trial whether we as an appellate court have the authority to tell the district court your conditional grant is here by vacated as well i'm not sure we can do that we're on or we we didn't address that in our briefing be happy to do it some supplemental briefing get it to you we will talk of him if the side whether or not we need some more briefing on that but it is a tricky question it is your honor and to address interpretations of the facts that were appropriate that's a very good question your honor and the two things to remember with regard to the summary judgment judgment order that the record judge robert found that there are issues of fact that could be sent to in the order of motion for entry of judgment at year one sixty he also recognized the factual dispute and at trial we presented first on the can construct a fraud claim both evidence that wholesale didn't receive the value in document form of the funds flow schedule along with testimony which was from mr mellon check which was a thirty six corporate witness and his quote it during his testimony and this is that year seven hundred eighteen and that supplemental exercise record forty one and i'm leaving out the first part but the final sentence is the funds didn't go through wholesale sports us those funds went to usa because you have failed was the one that is still in the business and he he took the stand as a as an individual witness and we used this language with mr who is one of his employees and read it to him and he disagreed with it so wholesale sports was a wholly owned subsidiary was it not of u f a your honor yes but i not sure if that well i guess the question i'm asking and i don't know the answer is if you have a maintain some sort of a bank account in its name into which profits from whole sales boards were deposited as a wholly owned subsidiary so what if they were really the so what you are  and it made it matters like sixteen million or something it was about sixty million but it matters for purposes of the uniform fraudulent transfer act where that money went because it would never if it never was in a hole sell you is the whole thing was just a path right i think first the theory was that they didn't even bother with a pass through because they sent the money directly to u f a second it's a pass through under the m t a as it was structured right and everybody knew that right and so that's the issue with regard to the construct of fraud but there's also the actual intent the actual fraud claim as well that we believe the court erred in granting the damage well that's the part of the uniform fraudulent transfer act that has eleven badges they you look at the court found that we satisfy three of those badges and then said oh well but these others aren't as important but they actually are and what it was was the standard is an actual intent to hinder delay or to fraud hinder is not as strong as to fraud the  relevant question was intent the three they said we established which we've talked about here is that wholesale became insolvent shortly after the transfer was all of wholesales assets and the transfer occurred shortly or after a interference claim against u f a in tact and that's what we mentioned earlier about supplemental briefing if your honour's would like because i recognize your concerns ok ok thank you thank you i think we need to flesh out a little bit may it please the court john nelson on behalf of sportsman's i'd like to address the court's questions to opposing counsel if i could very briefly judge a scam when you asked counsel for us faith whether they waived the tortious interference argument by not opposing the trial court they did the the record is clear that u f a could have opposed the sportsman's motion for summary judgment they did not they did not object to the order granting summary judgment afterwards but there's more than that because not only did they not oppose it in this case u f a took the exact opposite position from that which they are advocating now now they're saying well it's tortious interference because they exercised improper moves by participating in a project transfer we have cited in our brief in the record is clear at the third supplemental excerpts of record oh seven eight us face trial brief argued point blank this was an exchange of reasonable equivalent value among all participants whether by way of an asset sale stock sale or a combination of both because wholesale received reasonable equivalent value the landlord's fraudulent transfer claim should be fail they also argued in closing to the jury that wholesale received reasonable equivalent value from sportsman's they're not just not only did they waive the argument they're now trying to advance an exact opposite argument in appeal and they shouldn't be allowed to a please address to jim a well and my question to try and answer the court's question is which argument is the court concerned about the case was tried with respect to store some second maybe i'm confused are there more than well issues here no just more than one argument ok there was the argument that was raised before the trial court and that argument focused on the only issue ever tried by a judge or issue whether sportsman's paid wholesale directly or paid u f a we're going to try that and that was the issue that we tried that was the issue that was presented to the district court in which it decided  district court set it aside and so let me see if i can polish eyes that this is breaking up your argument but are you saying then that the jury saw this thing as one unified transaction therefore it rendered the judgment that it ran the verdict that it rendered but the court tried to break it into two separate transactions no your no your honor this the court had held that it needs to be evaluated as two separate transactions and in fact the jury instructions said you should evaluate each transfer separately so there are questions of fact to be resolved is what your side but in closing the landlord's lawyer made the beneficiary argument said look we we know the money went there but you can hold the beneficiary liable and that's when i interjected and asked the judge that's not that's not the case we've been trying and he addresses that in his jama well and in fact part of the reason he grants a new trial is because he determines that the jury instructions did not adequately instruct the jury as to that issue the beneficiary issue which was raised in kind of a sneak attack but that was the only issue the jamma well should be affirmed because what the landlords argue is well there is evidence that the jury could believe that would indicate that sportsman's paid u f a directly that is this snippet of deposition testimony that was not presented to the witness and frankly is fairly united farmers with the death six one of the think three but then the reference is wholesale sports of america and what the judge said is look the the evidence at trial included mr mehlman chocks testimony under rigorous cross examination for ten minutes saying no it went to wholesale and mr book doing the same i know this stuff and it went to wholesale there's no question six one zero six was a wholesale u account and the record ever since contemporaneous documents from u f a this is in the record at s s the second supplemental excerpts of record two ninety eight through three hundred those are s contemporaneous documents that identify the wholesale accounts and identify six one zero six as a wholesale account and what the court says is the standard here is what could a reasonable jury conclude not what sometimes snippets make a difference i understand your honor all i can say is that the trial court was confronted with this evidence and with this precise argument saying is that the jury could only have made one conclusion given the record presented to a given the presentation made to what the court held and what we believe should be affirmed is that a reasonable jury could reach only one decision he was confronted with exactly this issue he was there at trial he looked at all of the evidence he addressed the fact that the landlords didn't confront mr mehlman check with his own testimony they came in through another witness i mean it was a strategic decision and it was clever but the judge said no a reasonable jury this is a binary issue it's one or the other that's the issue we tried that should be affirmed now i dressed doctrine argument should be wrecked and rejected for both substantive and procedural grounds judge tom when you mention kind of basic fairness and whether u f a is looking for a windfall and i think the issue that needs to be highlighted here is the fact that an h p these are very good case for us it realize you have a relies on it but the class in document doctrine is fraudulent it was the sixteen million dollars in net cash proceeds that u f a took for itself to pay its own debt because the thirty million dollars remember the inventory was valued at thirty seven sportsman's paid forty seven thirty million went to pay off wholesales debt and then u f a pocketed the extra sixteen u f a is now if so if there's anything fraudulent it was u f a s conduct what u f a is now saying is will apply an equitable doctrine to make a party a third party not an insider pay again because we pocketed the money and there's no victim here because you f a is solvent and in court and has admitted liability and that would be an a application of the collapsing document to make him innocent or a third party i said innocent i just want to point out at trial and in a briefing there's a lot of discussion of the fact that sportsm that the money was going to be transferred to u f a and that sportsman's knew that it was likely going to leave wholesale without assets what the record does not explain there is not a shred of evidence to suggest the sportsman's knew anything about wholesales affairs or the amount of its debt or that sixteen million dollars would ultimately be pocketed by u f a that's the aspect that wrongful and h b e makes clear that the innocent transferee has to have knowledge of the facts that make the scheme fraudulent the mere fact that a debtor may be left without assets doesn't make it wrongful if the debt or if the proceeds the sale proceeds are applied to pay legitimate debt in essence there's an argument by u f a well you should penalize sportsman's because they didn't police us to make sure that we weren't ripping off the landlords and amounts not inapt application of the claps in doctrine finally i just want to say because we've heard it twice an argument the assertion is that sportsman structured the transaction and that assertion is just factually false it's contrary to the record evidence mr milner check us phase president said well our lawyers were involved and u f a had capital partners representing it and at at the second supplemental excerpts of record one eighty through one ninety five we've included the evidence that the initial l o i the letter of intent came from capital to  him the capital that is you have phase representative sent mr gabi a letter of intent and said here's the letter of intent we want you to send us and then that formed the basis for the transaction it also includes the where suman seventy million dollars in rent liability so to suggest that there was testimony that sportsman's lawyers all melvin you myers held the pen histories and said yeah i mean our names on it doesn't mean they were giving the dictation ok thank you very much t they please the court roger ken they representing burlington retail i want to risk can you hear me ok i want to respond to some of the points the first point judge of scanlon raised about whether this was preserved the issue of the surplus right and the termination claim was preserved at the district court we refer the court to our brief pages eighteen nineteen and twenty that quote because it was so well stated and worded by  quote judge row bar there as pointing out that the issue of whether there was terminations was never raised at any time and in fact he goes into great detail about that in his quote which is in the order phase motion for judgment as a matter of law so it wasn't included in the pretrial it were there was and that's why when it came up in the middle of file he called for supplemental letter briefs from both sides that's correct i was there  through there mr nelson is there we have different counsel on it on appeal so in fairness to u f a they have new counsel on appeal but for those of us there we vividly remember how it came up and what came up in the briefing in this court what new counsel for u f a has done is to conflate the argument between whether the excess rant that is the rant for the period of time after the new tenants came in and after the landlord's release they have conflated that issue with whether the release was terminated going back to judge white for his question was it terminated the letter that you mentioned judge tolman was right before it was actually before the lawsuit was filed it was before the m t a was close it was before all these guys got together disturber the family that was basically saying hey wait a second you guys you can't do this with other correct and when you when you i guess i step back and i think about this from a pragmatic standpoint when you ask a lay person has a lease terminated and the lay person says you know we're going to make sure that we're holding you liable for everything and i think you have the right under the hardest case to decide hard just talks about three things and offset the future rance where is treated as surrendered or forfeited or terminated so if you have the ten it has abandoned has here both tenants abandoned wholesale abene both locations landlords go in they take a back to relax the they can say we have it we've surrendered or forfeited the lease under those circumstances the terminations language is seized upon by usa and they want to read this as terminations and then go back to testimony where they lay witnesses asked did you turn it i didn't terminate because we're in their reality for the purposes of mitigating our damages so we believe and our hardest to the extent that you look at contract damages in a situation like this under her just the court found the exact right result with u f a and that's what the jury was instructed and that's what was found and again going back to the court of judge robert that we have in our brief he analyzes this very carefully and very clearly so to back following up on your question judge will scanlon while the question of surplus ran or excess rent was addressed the question of was it terminated it was not and that was first raised and we are not waiving that position on this appeal that that was not raised at trial and was therefore waived by usa i also want to talk quickly about this windfall question as we have in our brief and it's uncontroverted the one of the things hardest test hardest talks about three reasons why you don't give the benefit of the future one is because the tenant already gets the benefit of being released to future liability by that the second reason is speculative damages to go into the future and the third reason under purchase as they say here is that it is u nfair to the landlord to have to pay out of pocket expenses while waiting for new rent which is exactly what went on here's two hundred thousand per month per locations that the landlords were pain while this was going on were almost five years away we're getting interest on this judgement at point zero zero two five with a bond that's about to expire it's unfair to the landlords and it's unfair to go forward with that in terms of under the especially where the replacement tenet has already filed bankruptcy no rant has been received from the replacement tenant so to the extent there is talk about windfall which we dispute anyway there is no windfall because the replacement tenet has gone bankrupt just like sportsman 's warehouse went bankrupt originally put a u f a in u f a then has wholesale sports go bankrupt so back here we are again second verse same as the first let me talk quickly about one point that mr nelson raised he quoted some of the east side we didn't know what was going on that a sportsman's did not know what was going on with regard to wholesale and yet he quoted at the end an email that he put in his brief in which mr gabi who was involved in this and who also got paid that extra money at closing in order to go forward with his transaction gobby says thirty were swimming thirty million in liabilities there's no question sportsman knew exactly what was going on what judge rober did was to say even though when judge or robert issued his order on may twenty first of two thousand and fifteen and denied the by sportsman's four on the order on entry of judgment judge robert found on one sixty there are all these disputed questions of fact all these issues that the jury had to decide as you said a snippet may be very important the jury heard all this we have the right  categorically under federal civil procedure thirty two to use the deposition of a party in a way we want we chose to use it that way whether that's tactical or not doesn't matter the jury could decide all of this and in this order judge rober looked at all that denied sportsman's motion at that point but then later decides that he's going to substitute his decision for that of the jury which we think is improper me address quickly the last point and of course any questions the court has the question about well what about going back to we care if we get the judgment against you have faith i think our client's best landlords only want to be paid what they've been owed for now almost five years if we get paid that the our clients they've got paid what they deserve and what they're owed and that's that that's fine the problem we have is that the bond is about to expire the interest additional interest was paid because of the delay in getting to this oral argument additional interest was paid by us a but they refused to pay any beyond december thirty first on another twenty six days that interest miniscule as it is point zero zero two five well expire and then any amounts that were owed in addition we would have to go to canada to collect that's why we care about sports months and that's why we think it should be in with regard to judge roberts decision to also order a new trial i think this court has the authority it's the court of review nobody challenge the granting of the new trial as i read the briefs so i don't see how we could possibly it's already an impossible standard to do that anyway but none of you all have challenge the conditional grant of a new trial so i don't think that's on the table for us peeling the order of judge roberts and we didn't sparse we didn't parse that out but i would think that's before the court but ok i understand that wasn't briefed and i understand we didn't spend a lot of of time on that so i understand that point only address pre judgment interest i do think judge robert made a mistake there he found that it was a some certain no question about that under washington law the prior case as well as the weyerhaeuser case and her washington law prejudgment interest is appropriate if it's a some sort even if there is a dispute as to some or all of the payment judge rope art analyzed this with regard to whether the amounts the landlords had to pay were for construction or for capital improvements versus tenet expenses and judge rober in looking at that contract analysis said well the jury might have decided they had to make a decision whether these were appropriate in this b that bucket in the they clearly found for the landlords with regard to that but because there was an issue about that liability then therefore i'll deny prejudgment interest even though it's a some certain interestingly u wasn't some certain if there was a challenge to the reasonableness of the tenant improvement judge home and it wasn't a challenge to the reason there is no evidence in the record nor at trial i was i tried there's no evidence at trial or nobody challenge the amounts that were expended that's correct but the jury instructions explicitly asked the jury to make a reasonable distance terminations both on the amount of the rent for the time that the premises were vacant and for these improvements that you're talking about project transfer act liability there's no contract claim against u f a and none of this should be analyzed on contract with u f a under torture law when you have a proximate cause and these are the damages that occurred the jury has to decide if these damages are appropriate but that's what prior says it's not a question of liability it's a question of is it a some certain and we think it was here in judge prejudgment or should have been awarded ok thank you very much thank  declaration in which mr andrews said pursuant to the terms of the lease lacey marketplace has without terminating the lease begun the process to reenter the premises in real let the space to another ten landlords took the position consistently until they got to trial that the leases were never terminated as to whether that issue was properly raised and preserved page ten of our reply brief sets forth all of the excerpts of record showing that we raise it three different times and the trial court rejected our position each time with respect to our potential opposition to sportsman's motion for summary judgment the m t a itself set up an alternative dispute resolution process between the parties to at the precluded cross claims between us a and sportsman's the issues that we raise here and that under swift like we are entitled to raise the same issues that presented to the trial court on the landlord's opposition with respect to sportsman's as judge and scanlon said steps of testimony matter and it's clear from the jury's verdict that the jury saw substance over form as a guiding principle here this court should as well especially where the trial court not once but twice rejected explicitly sportsman's claim of good faith the idea that the by sportsman's sportsman's told god that once the stores went dark they would have more leverage with the landlords sportsmen's knew exactly what was going on they were trying to assist the  new owners of the wholesale to avoid their obligations not just to these less onerous but others as well with respect to whose responsibility the transaction was if you look at the master transaction agreement sportsm logo adorns the cover the codes in the name of all melburnian myers sportsman's attorneys appear on the footer of every page this was sportsman's deal burlington council told you that it's not too bad that they didn't consider replacement tenants because one of the replacement tenets has gone bankrupt that's not true for both linked and it's only true for lacey and if there drawn from that but i think the only inference they're asking us to draw is that just because they found a replacement tenant doesn't necessarily mean that the tenant is going to be in there for the remainder of the original tenants that is correct your honor but with  you just use that as a matter of general knowledge your honor the first of all this has nothing to do with burlington which is the larger share of the of the verdict in this case second of all the if there's an issue with respect to the recovery of rant by lacy that's something that should be decided after this court remains for a retrial on damages and last last point i'd like to make has to do with prejudgment interest as you observe judge holman watford if reasonableness is an issue for the jury then by definition a claim is not liquidated to be liquidated the just the dispute has to be whether it's in or out classic case is recovery from insurer for a loss where is here the amounts of the individual mounts invested by these landlords intended improvements were or were not recover were capital improvements or whether they were reasonable those were disputed there was evidence on both sides the jury decided in favor of the landlords but until the jury ruled no one could know what the judgment would be that's a classic on liquidated claim