and eleven through july twenty sixth jane this is prejudgment interest on unpaid and voices that went back to two thousand and five so what happened is in the two thousand and ten trial the district court found the city had to pay those invoices and  gave us prejudgment interest through that august two thousand and eleven judgment you remain and we went back down and we said you had to update our prejudgment interest through may twenty sixth seen otherwise were uncompensated for five years of interest under the contract which says we get interest  the sums are paid without explanation the district court didn't give us that interest this issue is controlled by sunbeam the two thousand and seven published decision and what happened in sunbeam is you got that case in two thousand and seven you had had it in two thousand and five and you had remained and you'd said yeah this jury awarded damages of six point six million is just fine but you'd remained it because the district court didn't correctly calculate the pre judgment interest and two thousand and seven you had to correct the district judge again because the district judge hadn't updated the pre judgment interest through the remaining judgement just what happened here you said that's error you said unless we tell you to do otherwise you start post judgement interest with the new you remain  judgement and you run pre judgment interest up to that that cost us about two point two million dollars the city says that there is a subsequent unpublished sunbeam opinion that somehow justifies the result and respectfully my colleague is misreading that unpublished opinion what happened in that unpublished opinion by now you had the case for the third time the other party finally wakes up and says wait a second now if they get more pre judgment interest the district judge should have updated our award and you quite rightly said no you had to tell us that last time because our mandate was really clear in the two thousand and seven decision and it applied only to updating the centrist so that two thousand and eight opinion but i think my colleague will tell you about is driven solely by the mandate rule perhaps i'll also tell you about a fifth circuit decision from two thousand and fifteen obviously not binding that's the art midwest decision in the art with west midwest decision the fifth circuit said the district court shouldn't have updated entrance to the remain on judgment the opposite of what we say should have happened here but here is the explanation the fifth circuit gave it said because on and the district court calculated damages by choosing one of two pre determined amounts without reopening the eviden it should have run pre judgment interest only through the prior judgment that's different the district judge didn't award any pre determined amount that you did reopen the evidence for the record we had a two day evidentiary hearing this case is controlled by sunday name i also think by the way art rest is just the wrong rule and into system with sunbeam you don't have to reach that issue because it's so clearly distinguishable here's the second pre judgment interest award error this one cost us another about two point two million dollars the district court this time awarded the city pre judgment interest through may twenty sixteen on the nine million dollars that it spent on these bell prices now what's wrong with that here's what's wrong with that in july two thousand and six when they terminated this agreement they seized nine point five million dollars of our money under a letter of credit they were entitled to do that and that letter of credit was set up exactly so the city would have the money in hand to repair any damages we caused at the plant after the contract was terminated then over the next two years they spent nine million dollars on best belt presses nine million dollars we had already given them before they spent the first penny now pre judgment interest compensates for a delay in payment wri and a letter of credit you know it specifically avoids by design the delay in payment that would otherwise justify pre judgment interest and the cot the pre judgment interest and time limit by the way than scase comes from section twenty point twenty of join exhibit twenty which is the contract and it says you get pre judgment interest on psalms that are quote not paid when due close quote we paid before anything was due we don't get tagged with prejudgment interest and notably the city doesn't try to justify on the merits why it should be getting prejudgment interest on money we paid them ten years ago they have a lot of the case argument they said wait a second last time we got some interest on these damages so it's a lot of the case that we get the centrist but w ignores is what you did in the two thousand and thirteen appeal and this is set out in the reply brief it's a little complicated orally but that here is the gist of it last time the district judge had given us full prejudgment interest on the whole nine point five million of the letter of credit we got the time value of that money back from the city and you guys said no that's wrong the city was entitled to take that money was little to keep the time value of that letter of credit money but in doing that in your mandate the fourth prong of your mandate said by the way you've got to fix anything else that's affected by the things we've corrected including specifically the city's pre judgment interest offset so your mandate not only gave the district judge permission to get this right but you told him to take a look at this and get it right this time and he didn't and it cost us another two point five two point three million so think about the combined effects of the house we get no prejudgment interest on money we hadn't been paid since two thousand and five that if we lose five years of that prejudgment interest they get pre judgment interest through two thousand and sixteen on money we paid him ten years ago it can't be right you got to reverse those things now let's talk about the support it cost issue this is a factually complex issue but i don't want you to mistake factual complexity for a factual dispute this record cannot sustain the district court's finding that the city avoided only eighty four thousand dollars in costs in running forty percent of the sludge through this massive plant through alternative equipment for twenty five months in other words the city's claim is they spent nine million dollars to pay a contractor to do something the city's says they could do for eighty four thousand dollars under normal conditions i've got some thoughts on this but before i do are there particular questions you all have honor number one it looks to me like in europe or if you do not challenge the legitimacy of the district co its method namely the method of comparing the operating co during period three with the operating cost doing period full you do not challenge that as a legitimate method rather you only point to  the application of that correct in that regard this is the best answer i can give you at a completely high level of abstraction we do not dispute that you can prove damages with a before and after method but as many courts have held you gotta do it right otherwise it does not provide a rational basis for judgment ok well if you give three reasons why this was not applied correctly one  plant you're out of that can change their burden of proof speculation doesn't become reasonable certainty based on how a party maintains its records outside the ordinary course of business here's maybe even a better answer when they wanted to break out the costs they did they brought online a new facility at this plant in the comparison period if they had left those numbers in it would have greatly distorted the analysis in our favor and against them when they wanted to reasonably estimate out part of the expenses a particular month which tends to mitigate that problem and secondly the major of the two major electricity and gas do seem to be consistent and both cost and consumption volume used throughout it's the order and let me answer you starting with power the district judges analysis by which he concludes what you just said is flawed for two reasons it analyzes full calendar years of utility consumption but well but if you do understand that what you also should understand as we set forth in our brief is if you actually break it out by the relevant periods which run which cut across calendar years power consumption does go up in the comparison period twenty five percent more natural gas and some percentage more electricity that i can't remember as i stand here so if you do the analysis and actually just match it up to the months where they didn't didn't have belt presses and this is set forth in our main brief your honor i've got a separate section on utility costs but going back to the averaging you're right the city says averaging negates the effect of these variations that is nonsense and we proved it with math math is math it can't be disputed it isn't  d by the city a one month timing difference makes a three million dollar difference and the bottom line if they were really measuring of what it costs as opposed to sewage flow the timing of large payments the time the payment of large invoices and purchasing if they were really measuring of what it cost i shouldn't be able to show you that a one month timing difference changes the result from eighty four thousand to three point four million if i can show you that and i have and they don't dispute to show that i believe it is seems like i should know that doesn't i think it's page thirty i think it's page thirty three of the brief the main brief we discussed this and i discussed it again in the reply brief so i think you're looking thirty seven to thirty eight of the main brief and there's a clear separate section in the reply brief on this thirty seven thirty seven thirty eight in that range of the main brief and by the time i stand back up here i'll have the right pages and thank you good morning they have please the court i'm bill shepherd on behalf of the city of atlanta i'm going to take it in reverse order from mr lowry the law in georgia and the only it doesn't argue they didn't breach the contract they can't argue that they cannot argue and they do not argue that in fact the city was severely damaged as a result of that breach and so faced with that what they say is that the city's damages are uncertain and therefore we're precluded but the law in georgia is not that if there are uncertain where precluded where the breach is clear and where the damages are clear the issue that a plaintiff cannot prove with absolute precision the precise amount of its damages is not a bar to recovery all that the plaintiff is required to do is to demonstrate reasonable basis on which the finder of fact can base its decision on the amount of the damages and we've done that it's particularly more difficult because of the old has breach and when the breaching party is the cause of the uncertainty why is that so they don't but they don't get the benefit of their own malfeasance it's clear that they breached the contract because this is a very complicated system and i'm sure that the court is familiar with it it's a massive plant and there are multiple multiple thousands multiple hundreds of thousands of interrelated parts all dealing with one goal and that is to take the sewage that flows in from the city of atlanta and surrounding municipalities process it remove all of the hazardous waste take those solids out and release clean water back to the environment in order to do that you have to operate multiple pieces of equipment hopefully perfectly but most of the time you have to operate with what for example the major cost the gas the natural gas the electricity and the personnel those costs the personnel salaries and benefits all of those costs are tracked plant wide one man does or one employee of the city doesn't just sit at a desk all day in one portion of the facility they operate across the facility one mechanic operates on a machine on one day or one hour on the dry side he operates the next hour  there not separately metered there are no interior meters to the plant once the electricity comes to the main meter you can't tell where it goes there was a discussion and they made a point of this and you your honor said that you are familiar with the west c s that was change it would be three million change it well i agree that's a cute accounting trick the problem is that the city is not like you and i they don't pay their bills for electricity on a monthly basis they get a bill in december it may be february or  clearly erroneous but with respect to the capital improvements and the efficiencies that seems to me to make a lot of sense that the comparison was distorted but were clean and all of your centrifuge were either replay it over a place where there is no evidence about when all four were cleaned the two that were repaired one of them had been cleaned by veolia before they collapsed the lid that was the digest one fifty you still get three we still had three we had one that was clean the two fifty when we put it back in service after repairing the two lives there is no evidence and if the oleo had wanted to introduce it they could have but they didn't rebut this issue they didn't present evidence on the issue there was no evidence about the cleaning of those other two jot digesters or when they were cleaned all that was was that we had four operational digesters which is how the plant is supposed to operate and  seems like me one possible answer to the point they make is that it would be almost impossible to calculate what the were and the extent of the efficiency did you make that argument in addition we did not again they didn't they didn't bring the evidence in that would require us to respond to it but there is a good friend evidence and i agree with that but they did make the argument about the capital improvements and the district code did not address it and you know briefs to us don't address in the absence of evidence there's nothing for the district court or this court to they're to decide in the absence of evidence there's nothing that argument it while it may be created on mr lowry and you know point i guess is that you presume even though you have the burden of proof you presented a nuff of a promise facie case that if they they that have to take the risk that the district will accept it all they have to point specifically to flaws in it and in fact your honor i think it's important for the court to remember that they did attempt to present evidence to rebut the cit presentation it was by mr muirhead they presented a single witness tim your head and the court found his his presentation was in the court's words fatally flawed and it was rejected that meant that they had no rebuttal evidence and in the absence of rebuttal evidence there can be no clear error why did you use the full of period only up to june of two thousand reason that we stopped at the end of june was because it was the end of a fiscal year the jet the city generally would he have made a difference if you had gone through this i'm not sure that we analyzed that there certainly was no evidence of that did particularly relating to those those issues the reason to answer the court is that was the end of our fiscal year there are accounting adjustments that are made at the end of a fiscal year that make that accounting more reliable than if we had gone on into that stub period of well on the side of comparison you were able to use a twenty five month period which i don't did that line up with fiscal year it almost lined up with or so i started almost lined up with the fiscal year on the other side well there was a let there was less variation i'll say that that twenty five month period though was clearly delineate both because that's when the bell presses were in effect that's when they were in use if we're going to approve the avoid a cost as a result of the alleged of what it cost that's the period we had to analyze well i mean so what i mean you could have analyzed it in a period that didn't sync up to the fiscal year you could have not we could have i believe it would have been unreliable because of the accounting procedures that the city follows but but the old they also had the evidence that they could have if they felt that was useful to their defense raise that issue and they chose not to i want i'm going to switch with the original district court judgment you'd have a five year gap jodelle of control of this not a federal law like federal law controls the post judgement interest it seems to that the remaining judgment was modified in this case and the whole ball of wax was up for grabs that was the controlling issue in the post judgement but the same kind of reasoning it seems to me should apply with the prejudgment so as that first issue seems to maybe only is right what's wrong with my thinking your honor i think that as mr  i believe that the issue is controlled by the courts earlier mandate and what the court said was well i don't agree with that part me and tell me what will the court said recalculate other damages calculations affectation by these changes such as the city's pre judgment interest so when the court mandates a de to the trial court this is what you do recalculate other damages calculations affectation by these changes the first damages that mr lowry was talking about were not affected they were an amount they were not an issue in the first appeal they were affirmed exactly as the trial court under them in the first appeal those damages were not an issue now wait a minute the very fact that the cit damages are not fixed as of the first judgment in august of two thousand of the leverage judgment interest is really calculated on that net they had damages less your damages no your honor that's not how the trial court did it the trial court measured the interest individually we got an interest award they got an interest a ward and the reason for that is is serendipitous i won't it wasn't good but it has to do with the contract interest rate the contract says that interest accrues on the breach at the prime rate at the time the money comes due if you only as damages came to add or before the day that we terminated in june of two thousand and six and the court heard an earlier case today about the meltdown that occurred in two thousand and seven two thousand and eight that materially lowered the prime rate so the city's damages which occurred later especially as bill press damages they were not fixed until two thousand and eight by the time our damages were fixed the prime rate was three and a quarter their prejudgment interest rate is eight and a half just a timing issue and so in order for the court to say here's your principal amount and here's your interest the court had to make an individual calculation for each side it to court lay that out and lay out the reasoning of never heard this before oh yes your honor it's actually in the calculations that we submitted to the court in our post judgment briefing both the first time and the second time the entry of interest issue did not come up until after a judgment was entered after the trial and then veolia and the city asked the court to reconsider certain aspects including granting prejudgment interest it was at that point that the parties brief that ok turn into the second prejudgment interest it seems to me that the district code just made a mistake on that a cozy in effect  damages the city i'm sorry the only at the trial court did actually give veolia prejudgment interest the pre judgment interest is two million two hundred eight thousand dollars on their five and a half million dollars of damages the other aspect of their damages was a return of this letter of credit nine and a half million dollars and what this course told the trial court is they only get interest on that if the city's damages do not exceed nine and a half million because our damages are in excess of ten million as the trial court found they get no interest on the letter of credit and your honor i will say you had that letter the way it is on stand the first  took it away that the trial court said we had to pay them back a letter of credit plus interest right and then it came up on appeal and this court said they'd veolia does not get interest unless the city's damages are less than the letter of credit so the result was you had the letter of credit from the very beginning we did which made you should not get any prejudgment interest to the full extent of that letter of credit only on the excess right well that might have been the case if only had raised that issue but they didn't and that this is now the city's entitlement to interest is in fact already decided in this case if they if they had some question about what the mandate meant the time was for them to make a that's just so on player we wouldn't apply the case even if that even if the coach said that your honor you talked about a five year gap and that might be the source of your concern about unfairness there is no five year gap from the time pre judgment interest runs the law is they get to this judgment of the pre judgment interest it has to do with all prejudgment interest from the time the judgment is entered they get post judgment interest and so there is no there is no gap so on the on the other damages the five million dollars that was not at issue on appeal there is no gap they are getting post judgment interest couple things on the interest to shoot a judge anderson raised the two thousand and five sun being mandate hadn't said anything to the district court about dating prejudgment interest through the new judgment either i mean the thing that mr sheppard says is missing from your tw thirteen mandate also wasn't in the two thousand and five sunbeam mandate nonetheless it was error for the district court not to update and trysts through the remaining judgment the twenty eleven judgment was one that number comprising the offsetting claims and defenses once you vacate that and for more work on the city is offset there is no judgment left we're not getting post judgment interest do you add to his you might just made to me that the what the district the district judge assessed interest separately on each of our awards in finding out who was entitled to what in in reaching a judgment it's a one net number in favor of the  none of that has anything to do with the sunbeam issue which is how much longer should our prejudgment and tryst have continued sunbeam does not look to you know the level of alteration you made in the prior judgment in sunbeam you affirmed the six point six million dollar underlying were without qualification and you remained it soley for recalculation of pre judgement interest and that was enough of an alteration to require an update of the interest through the remaining judgement sunbeam is a more extreme example of what i'm talking about than our case i want to be sure you don't confuse one thing the pre judgment interest i'm asking you for is not on the letter of credit the pre judgment interest i'm asking for are on our unpaid and voices from two thousand and four and two thousand and five issue as to the second issue i think you understand why the mandate a doesn't dictate what mr shepard and b if it did would be unjust and you wouldn't follow the mandate rule let me talk about the underlying avoided cost issue first of all in the briefing on monthly variation you want to look at pages thirty four to thirty nine of my lead brief and nine to twelve of the reply brief but i heard mr sheppard concede that the lumps the huge lumps  differences in payments are timing issues if that's the case look at our brief and look at the math it is timing issues that produce an eighty four thousand dollar result his way and a three point four million dollar result if the timing had simply been different this whole model is driven by timing issues that no one says has anything to do with belt prices everybody district court their witness included says these timing issues are rainfall timing of payments and timing a big purchases that's what the city's model should don't give up on that we are absolutely right about that this is a clearly erroneous finding now on the ute on the capital improvements issue that your honor we got to the evidence that we cite that show a that there were capital improvements comes from the mouth of their own witness the evidence that we cite about the efficiencies introduced to them come from the judge's prior findings and the evidence at the prior hearing all of which are part of this record he didn't strike a clean can say none of the prior evidence matters this was a supplemental hearing to add on to the prior trial record so look at pages thirty nine to forty three of our lead brief where we collect evidence talking about the significance of these improvements now there is t but you know we could go on forever he is sending it back and say and try again i mean that's why we have the clear error standard i mean they're going to be problems with any system th avoided call and i'm not asking for perfection your honor george's all says reasonable certainty no speculation no conjecture this doesn't get you to that hurdle and clear error do look at how the courts of interpret that in the context of a bench trial where there is no amendment clear error means although there is some ports some evidence to support the finding when you look at all the evidence you are left with a definite and firm conviction that a mistake has been made you should have that conviction these three errors were even addressed by the district court if there were answers to them they would be in the order they said so you have us send them back and say you have to do it no and so the city said two bites at this apple i don't even understand why they got a second bite i know what happens when i show up here and i didn't prove my case the first time you guys sent me home without my stuff or they've gotten a second suffer they blew it let the evidence is not sufficient it must sentiment is much like judge martin's here i think a face illegitimate it seems to me at that point although the city has the burden of proof you have to not only make an objection about capital improvements for example but you have to be specific it makes this much difference i don't agree that we've got to quantify the difference it makes what i believe we have to do is show that there is a material variable that they don't account for and so i don't find the really th very significant difference in the result certainly and let me just give you a quick hypothetical if you want to analyze the efficiency of a driver driving a car and i told you here's my data and you said wait a second lowry this second pull of data comes after you rebuilt the engine and replaced the transmission you wouldn't say hey and you've got to quantify the difference you would throw that out as john that's what they did they replaced the engine they rebuilt the transmission and they want you to assume that the same cost efficiencies apply one last indulgence tiny mistakes in the calculation of operating cost in the comparison period make a huge difference and we showed this mathematically even a small hole in the monthly calculation for this model by millions of dollars