at all all right i think we'll ask the lawyer who's not arguing do go ahead mute the microphone just to eliminate any risk of feedback and mr bennett will hear from you st do you want me to go up screen to know ok thank you good afternoon your honor is and may it please the court this is the nd appeal of this case by c over the conduct of the legion bank legion was the local st louis bank acquired by national city in two thousand and four and p m c is here because it acquired national city in two thousand and eight in the midst of the financial crisis at the request regulators in the prior appeal the court remanded this case for a trial primarily for a determination in equity of the amount of loss to the missouri trust caused by any breaches of duty during  at the outset it's important to note the p m c is not appealing forty six million dollars in damages and a lot of the standard of review and other issues fiancee is appealing what it describes a several add ons that the district court made for that amount that we believe are not called for under missouri supreme court precedent or missouri law in this diversity case as the court is aware it is bound by the missouri supreme court statements and looks for as it has said previously in this case foreshadowing from the missouri supreme court i would like to start with interest the court assessed twelve million two hundred thousand dollars in interest in this case and it is the case that no case in missouri from the supreme court or the court of appeals has ever affirmed an interest to war or damages or not ascertainable here the trial court correctly found the plaintiffs the reason claims for category of damages vacillated over the litigation and as the court is aware and two members of the panel are certainly aware from being on the decision the case was pursu under tort theories at st with lots of different damages model and it was unascertained of all where the trial court error on remained is that these damages did not suddenly become ascertainable after the circuit holding which is what the court held at a dent in three of four in fact the missouri supreme court has a case where it declared what the proper measure of damages was in remained it and actually held no interest would be permitted and there is an unbroken line of equity cases as well that whole that you can't do interest for an liquidated damages are the cases hope care foundation where had very similar situation with one hundred and forty page judgment special masters experts moving damages in the court held no interest could happen there even though the trial court had awarded it and even though it was an equity in two thousand and twenty the supreme court in robinson quoted healthcare foundation with approval and its current the denial of interest in a case where damages were disputed and here post remained damages were equally not ascertainable to before claims presented i believe six separate experts on damages after the re manned our st rule twenty six dollars disclosure on damages we received by added up to one billion two hundred million dollars of damages sought and there were statements throughout from counsel in the district court that damages were moving target a major issue was which was right and they presented to alternative damages theories even under one component the breach of trust damages where they had a man mr brown who said it was one hundred and eight million and he said it  ascertainable and then a mr dalton who did actuary calculations where he said that in light of all of the assumptions that he had made that you had to be an expert to even understand them and so we would ask in that setting aside the two  be damages that were in the hundreds of millions of dollars and so we would ask that this court follow unbroken guidelines of courts in equity into law in missouri and hold that you can't have interest under these circumstances and that's our st point but it is the case the plaintiff cited no case and the district court cited no case that permitted interest or damages were not ascertainable the ne nt on the bank's expert's testimony as opposed to the other experts that you just cited who said that the amount was hard to figure out yet yes we started as a framework for the single damages the damages of mr long who was an actuary but mr long importantly there's i think fifteen findings of fact regarding his damages as well his damages also were not esther pinnacle because he had to make assumptions about interest rates he had to make assumptions about mortality tables he had to in fact he still thought that three different deductions needed to be made in the case including reductions for the timing of certain policies in his images report was not an invoice for example d i mean the classic cases you see were missouri courts award interest is in quantum arrow it for example which was the vocal case they you submitted invoice and that you don't pay it and then you get in  interest on that and so mr long was equally not ascertained of all and certainly didn't come up with the damages but that's also one of the two hundred and five b damages are really important even in equity the purposes can you settle the case for example can you know how much you owe throughout this whole remain proceeding the plaintiffs were seeking hundreds of millions of more dollars than mr longstanding has and so not only was the amount in question not only do the court reject mr long's actual number but we had no way of knowing there was a cross appeal of the damages rulings against the plaintiffs that was pending until march of two thousand and twenty and so none of the factors that would lead to interest are present here but you are correct that the starting block was one finding of our experts calculations but the judge rejected other aspects of it well even if the plaintiffs ask for larger amounts that you resist and think did if the bank and say our guys it was only x in you offer x as offer of judgment or something wouldn't that be sufficient to show ascertain ability if you had  opportunity well you know you might if he said that now of course our person said that that the damages were forty million dollars which is exactly what we're not appealing and what happened was judge webber rejected various aspects of our expert's opinion and he came in and said it's twenty six without policy loans it's forty with policy loans judge webber said i'm going to take one portion of your calculation and go with it but our our person had a actuarial damages of twenty six million dollars without policy loans and forty million dollars if you counted them so even our guy didn't say it was seventy two foundation case or are we going to have to sort out whether the missouri law on the restatement allow pre judgment interest in equity without ascertaining ability i believe that the law is that clear your honor and in fact you can go back to we've been decided equity cases in missouri courts you know probably since the last constitution there hasn't been interest in order to equity on a non ascertainable amount and health care foundation is definitely equity robinson which is the new cases definitely equity and they affirm the denial of interest because it was on liquidated and because no demand was made carpenter which is a missouri supreme court case from two thousand and eight allowed interest in equity because it had a certain date that the charges were made and everybody knew the amount bogle missouri court next week based demand was made for three thousand eight hundred dollars and some change dollars and it had a specific date that it wanted it and so your honor i think you could say that in equity they often recite it's equitable on it's it within the court's equity discretion to do it which is what judge webber even said judge webber never said in this decision there's some bright line rule and you don't see any cases in one hundred years of working interest under those circumstances and so i think that once the judge it needs to be ascertainable and it was not ascertainable i think that that should in the matter under robinson and other health care foundation under carpenter under vogel and under all the cases would that be a departure from the restatement which seems to say the rule is different at equity than at law i don't think that it would be a departure because what are you it as is an equity equity the court takes into account various factors all of which become subsumed in the ascertain ability issue which is something along the lines do the party know how much they owed so they could pay it to the party you know have a set amount of money that it had to use for a long time and it didn't do it was the plaintiff out a certain use of the money all of those things get the wrapped up in missouri at least under the idea of ascertain ability so i guess it would depend on how you interpret the restatement because i do think missouri and judge weber recite the general equitable rules and then when you look at how it's applied they say that  unbroken string of cases requiring to ascertain ability and i don't believe robinson healthcare foundation and carpenter are to the contrary on that at all all right i know you want to talk about other issues but grossing most questions thank you your honor of course punitive damages is a fifteen million dollar add on we have two extremely basic points to make here the st is that there is no missouri punitive damages in the absence of self dealing by the trustee here we got paid a fee and it was a small fee and the judge found that we mismanaged or not appealing that finding but were there is no self dealing and in fact the judge in his last opinion page of his opinion page three o five talks about the idea of there being no self the on there is an no producer jerry case approving punitive damages in the absence of self healing and this court has adopted that two different times st and ball but most importantly in custer was judge womyn was on the panel of because there is an extremely important case here because it's in our view is directly on point and what custer had was a fiduciary who had been arrested who had been convicted who took the th who was accused of harming the beneficiaries by millions of dollars but there was no so feeling and it hester this court reversed punitive award also several one million dollars and noted quote there was no such feeling or misappropriation of funds in connection with the transactions and so kester is right on point and the plaintiffs if you look at the the same as saying self dealing is a mandatory factor i think we would then go to what custer looked to in what the missouri cases looked to if you say one of the big fiduciary punitive cases in the history of missouri  that the partner who was liable for punitive wrongfully transferred funds to his personal account and in google which is the rd missouri case that decides that they specifically had a finding that the trustees acted so acted and engaged in self healing and so wh think you could safely say is even if we have an argument about whether missouri supreme court has ever come out and say there must be self dealing we have an unbroken body a fiduciary law about punitive damages that recognize that so dealing is a critical factor and then combine it with the next issue on appeal which is that in assessing punitive damages the missouri law requires a finding for recklessness that you must infer an evil motive and it must be agreed just as a corner where a man and so on when you read judge weber's decision he made to findings of evil motive both of them were about this world services policy that our trustee transferred to the successor bank that he found was without  value and that he thought that the trustee who who was testified in two thousand and twenty was was not telling the truth when he testified about it and he made also two findings of egregiousness which were about the same fact and what we have in missouri is a well developed actor which is vonn from the missouri supreme court which says very clearly that in missouri the law has always required that a plaintiff damages be the direct result of the wrongful acts alleged otherwise a planet could rove through all the conduct and get and hold them liable for punitive even if there was no damage and here it is unquestionably the case that there was no damage associated with either the testimony or with world services and i just point the court to a done them to ninety one where the court flat out found that road services in this transfer cause no damage as to this testimonial issue auster which is the missouri case we rely on also says  it's only the thin it's a test at the time the wrongful act was committed this determinant of whether the defendant can be found liable for punitive and so we really have two mistakes on punitive one is there was no self dealing to i that he clearly relied on for his critical findings required under the law of evil motive an egregious mess the only findings you can do a control f search for evil and you can do it for egregious because when we findings were about things that didn't cause damage now your honor on compensatory damages we would know just that this case involved one claim a breach of trust and two hundred and thirteen dollars which is the restatement provision the court committed legal  not quoting the nd part of that which says you look to whether the breaches are just distinct here the breaches are not distinct it's put in a single count rule ten would say you have to plead these separately there's a single judgement here as well and there's even th only one trust instrument in evidence and so we would ask that the court look hard at the eleven million dollars under two hundred and thirteen dollars for separate trus in addition your honor we challenge the seven one million dollars of attorney's fees and this is again the rd way in which the court strayed from the teachings of the missouri supreme court clayton terrace in two thousand and nineteen was the rd case in since two thousand and nineteen where they had reversed fees under this national circumstances exception the missouri supreme court has never allowed fees under special circumstances outside declaratory judgments and declaratory judgments is important because it has a cost shifting provision that the court had interpreted so i would just causing conduct and there's no missouri supreme court saying that you can use special circumstances like the judge did here but to reserve the remainder of my time as there are no further questions for r where they are to where they are talking about it being in the context of d j well i know that's the history of it i'm just questioning whether there's any basis in the text of the statute about costs to award effects i mean i thought some of the earlier th ok and that's the key language there it's a paragraph that begins to declare three judgments make no reference to feet but they have interpreted them to be awarded as costs under the specific statute where unusual circumstances are shown i just don't think it is a matter of missouri law that there's much doubt that the supreme court at least as i that's a quote from some other case the part you just read maybe from beard it's a it's actually a loss and that failure is based upon allegiance failure to have systems to check the dollars in and out of the trust the fact that they created this trust department for marketing purposes not to provide high level that you sh throughout the trust and that misconduct constituted reckless indifference to the rights of the beneficiaries and the funeral homes that condo resulted in losses that were are the judge were made clear that he viewed the conduct allegiant being self interested and intentional throughout the entire trust era he he was critical of the purposes by which legion started its trust partment it was conceded they did not do so to provide trust services they did so to make it look like they were full service back judge workers found  there was a systematic creation of processes by which a leader would never review the dollars coming in and coming out would do what ever and p s asked to do and that as a consequence of that the trusteeship the acquiring back national city bank directed allegiant to get rid of the trusts they did so at the direction of their new owner they do so the players were trying to put into evidence and the court said no that bet didn't cause any harm and it's unrelated conduct allegiance conduct in dumping the trust was consistent with and the final war interest or not and when you look at the cases and that includes the robinson case which is the missouri supreme court case and in may of last year the language always has interest should be read only as accept in pieces of equity when the court has discretion to do so then that language is repeated multiple times and in fact it was  confused about what they thought it was notice of the their expert came in and said it's seventy seven million dollars and the core are seventy two million dollars and the court accepted their experts number just where her properly rejected the even offset d wasin one trust from gains and one trust it was different property within those trust there were completely separate trust with different better this year east and different propert trial court has tremendous discretion in equity to award attorney's fees and missouri recognizes that the special circumstances exception applies to the american rule applies in colorado whether there is an intentional misconduct this circuit in cali vs golda d in two thousand and three found recognized the special circumstances exception for intentional misconduct there is no intervening missouri supreme court decision contradicting that holding of kelly versus school and councils efforts to say that intentional misconduct outside the d j context to the contrary ranken which is the case that the blockquote came from listed a series of nandita actions in which it noted that fisa been denied the missouri supreme court in addition has really special circumstances applies outside the declaratory judgment well i think if you're looking at foreshadowing i agree that they don't say in this case it doesn't apply ever when we're holding it here but they do a couple of things that i think are really important the statement of law from the missouri supreme court which the court is this court's in diversity would follow i think kelly verses golden doesn't even talk about the d j context and so there's no question the clean terrace undermines any of the reasoning behind final diminution in trust value as a negative forty million dollars mr long could not say it was seventy two million dollars worth of damages if we go to punitive damages in response to your question judge called in about no harm there was a large discussion of facts but no case law mention vaughn is clear that you're not permitted to roam around in misconduct and hold someone liable for future damages the whole discussion of world services the judge found there are no trust losses associated with that in his findings and that is enough to make that improper especially when you compare self healing and so you was where did the judge get the idea that long had given a number of seventy two million you keep saying that you only offered for it yes so the way that i would see him is having these two numbers in the seventy's yes what happened was long had opinions about the remaining decision as you're well aware of says you have to find out what the trust losses are different legions ten year it was long view that in order to do that you had to take out interest rates that had affected the number and that you had to also in addition not count some policies that were issued right at the end of our ten year because by virtue of the actuarial now it's always it always is aerial analysis he does come up with a seventy two million dollars number in the interim analysis but his number is not seventy two million dollars and we never agreed that that was the damage number in fact long presented forty five for some plot of the reasons we've talked about