this court should reverse with this court's permission i would like to address three points today and the st is the grounds for reversal this court's reversed for two simple reasons the trial court does not have discretion to make an  law and it also does not have discretion to make a clear error of fact but both of those occurred here to begin the court committed legal error when it found that tennessee law prohibited the court from discounting a pre judgment interest award due to its own delays the simple fact is that no tennessee supreme court case prohibits a trial court from considering any such thing in fact we've cited many tennessee intermediate court cases in our brief which did consider court cause delays in alternately reducing the award of prejudgment interest that was paid to the plaintiff but here we know that this era of law prejudice sterling this is not what the court would have done but for thinking that tennessee law had tied its hands and we know that because of the many statements in the court's order to this effect the court said that because the court does not have the flexibility to discount a pre judgment interest award due to its own delays the court awards j t v pre judgment interest at a rate of five point four percent the court went on to lament that it is unfortunate that it cannot produce a pre judgment interest award based on the court's delay and it also said that requiring sterling to pay p thought it didn't even have the discretion to consider how to treat the course the court caused delay here in the court was clearly very concerned about it it spent four pages of the ten page order just recounting the many court delays that occurred in this case and that it also said that the court's delay accounted for most of the elapsed time and this long litigation so there's every reason to believe that but for this error of law that the court would have reduced the amount of pre judgment so returning to the reasons for reversal that brings us to the nd round which is the court awarded a rate of forty five four percent based on uncontroverted evidence that j t v's average cost of capital was five four percent the record is clear here that there was no such uncontroverted evidence to begin that evidence was controverted sterling put into declarations from a c p a with more than forty years of experience explaining why this was wrong sterling put in evidence of what j t v was actually paying on it during this period and then also put in evidence that when you consider average cost of debt capital which is an industry term you don't consider things like periods where the kates wasn't actually going at you don't consider things like fees and warrants and so for that reason did you provide a specific alternative number on cost of debt capital what we provide what we provided was what we had actually been paying during this period and the reason that we couldn't do it separate cost of debt capital analysis as this was all submitted after the fact this was that evidence to be untimely it rejected the rule fifty nine motion it said that this wasn't newly discovered evidence there's no reason you could have right so that so did that in effect asked for even more than five dollars that was the st time the five rejected as untimely in the initial order denying the world fifty nine motion the court said that this evidence could if there's no reason it couldn't have come in earlier and the only reason it didn't come in earlier was because that one twenty two percent comes from and this this is a compromise number the court is looking at different factors under tennessee law particularly the role of court cost allays and delays not acceptable in this is quote this adequately compensates the plaintiffs for the loss of the used of its funds during the pendency of the litigation so what we have is a prior award that the court found equitable that the court found adequate and we have a new board that the court has expressly found to be in equitable to j t v for reasons that are just frankly incorrect both on the law and on the record so with that i'd like to turn to what this court should do this court has discretion to enter its own award of pre judgment interest if it chooses to do so or it can remand if it were man's this court should instruct the court to consider the factors that are held up time and time again in cases like my aunt in cases like hunter in cases like baptist physician hospital and the two mandatory factors that the court considers are the certainty whether damages are certain and whether liability is certain  cases in tennessee courts of appeals where the court simply shaves off interest if it thinks it's too high in one of those cases yes that would be a case there the court reduced the judgement award by of this use of money during the period of time when j t p v was deprived of it it's not like this money was in escrow strolling was able to use this money for its benefit this thirteen million dollars that it is a consequence of its wrong doing tennessee pre judgment interest law recognizes that that last time value of money is a compensable harm and that fairness in almost all cases requires the plaintiff to be fully compensated for the last her and the district court selection of her pre judging interest rate in this case was perfectly reasonable well within its discretion to choose the five point four percent that's well grounded in the evidence presented to it and it is the amount that correct under tennessee law when the it's inappropriate to deprive the plaintiff of money that it is entitle to to make at hold solely because of court caused delays the case is the binding tennessee law the cases that sterling relied on involved in situations where the parties contributed to the delays that's not the case that was not a finding made by the court in this case despite having these arguments made to it over and over again by sterling in the court really be to create a windfall to the defendant who had the use of this money during that same period of time and if anything your honor we submitted evidence to the court that five point four percent is the minimum that would be adequate to compensate the defend in this case because there were three years during this period interest period during the recession when j t v couldn't even get additional borrowing for less than ten percent the only issue is not the deprivation  factors so it's not all about you and your loss of that's correct your honor and i would submit that the court considered a number of different factors in this case and there's no requirement that it explicitly addressed specifically uncertain the claim i would point the courts the tennessee supreme court's decision in my aunt which recognized with approval that typically courts do not discussed the tennessee courts do not discuss that specific those two specific factors because more often than not it's not a thumb on the scale otherwise you would really be limited to wording prejudgment interest in the liquidated damages context so the those particular factors just because they're not explicitly in the opinion doesn't mean they're not considered and there is no requirement under tennessee law that they be explicitly considered an addition to the mayan case they point the court to the general construction case in the christmas the lumber case we cite in our briefs those cases are relatively recent tennessee court of appeals cases they do not discuss those specific factors there are any number of many not dispositive factors that the court can consider it doesn't have to go through each one of them to  basically says this may seem unfair to specifically to the defendant but at the end of the day we have to decide what is fair overall and in reading it is more like a  on the district courts believe that it was able to consider the delay in the award and he said therefore the result is on is unfair inequitable and i don't see any other way to read just agree i think the really need it the court goes into detail about the remedial call and how in order to be fair to d t v and has to be to put it back into the position it would have been and pay the just compensation for the thirteen dollars that it was deprived of during the eight years it took to get the case trial where you're concerned about the equities to your client but the court made a krabby it that indicated that the award could not be equitable to sterling because of reset the entire legal framework for analyzing prejudgment interest and explain that the focus the starting point is what is going to fully compensate the plaintiff and fairness in almost all cases will require that full compensation that the  aunt and in my actually cites that case in notes that the abuse of discretion that was being corrected in that decision was more narrow it was specifically running the pre judgment interest period from an earlier date the date of last that that was the abuse of discretion it effectively narrowed while there and didn't acknowledge the court caused component that there are other cases varner is an unpublished case and it involved a six year period where the plaintiffs failed to prosecute the case itself all the other cases they talk about foster henderson harris and they all involve part findings that the party and reason to believe delayed the proceedings themselves the one hundred case they rely on there's no finding in that case that the court caused the delays if you cut through to the actual cases that they don't have a story it would have been an abuse of discretion for the district court in this case to look at these facts and circumstances and concluded did have the flexibility to discount the award  about the five point four percent and where it comes from and whether it was uncontroverted can you give me your take on that because i didn't quite get the business with your evidence being rejected as untimely and their attack on it so i sort of understood it but i want to see what your take on it was and you're might roll into that that if hypothetically we were to say this is all a mess we're going to remain in we're going to tell the court what the right law is and take another on the rule fifty nine posher it wasn't newly discovered the disc or entered it remain and exclude the result was excluding the evidence the result was that under rule fifty nine it wasn't really discovered that this this court entered  to generally reconsider the preterm interest issue the court could have taken new evidence if it wanted there was no reason why it couldn't look at the evidence in the record which is what we had argued to the court of appeals and i write it nevertheless came out with a five four percent discretion in the district court adopting it figure but i don't think it's proper to say that that was record evidence when it was excluded on the basis it was not merely discovery your motion was  right a motion to ultraman was denied the court did did not say that it wasn't part of the record and resetting and remain and the court was asked to do a more thorough analysis i think that it would have been an of discretion not to consider all the evidence front of it and the court there was no finding that that on appeal that that that evidence was somehow out of the case your honor if you all thought about  well there is a there's an incentive to be aware of your honor which is that delay works to the benefit of the defendant in the three years since the verdict there has been there's only a time period during which behind and so would you but to me and make the point the post judgment interest rate regardless of how pre judgment interest is resolved is one point two two percent or so in the three year period that this sits here and you know when there's another remain and there's more proceedings in there's there's an incentive for sterling not to make a reasonable settlement offer because they are able to use this money and generate a rate of return that is much greater than the one two to push as an interest rate that will apply regardless of what this or the district court says about the precision interest rate so my point is i totally understand your sentiment your honor i would submit that the best and fastest way to resolution is through this court to firm and the nothing new for that as we don't agree with you suppose we read mandy then what would be the best cars your honor the court would need specific specific instruction and that it again the purpose of to fully compensate would it be that would it remain be better for you than a possible settlement i think that's a difficult it's difficult for me to answer that because as i said the incentives are on the side of sterling not agreeing to a reasonable settlement and to continue to delay and i would also submit that the that sterling hasn't given us anything new that would would be that would want to remain in this case they're still arguing one  r which is completely and work from the record i think it's useful to point out that the the decision that was reversed for is a mechanical application and the seven page cision we have here the couldn't be more different we have a nuanced reasoned opinion that litigation the rule of the court versus the parties i think to reverse as an abuse of discretion that decision under these facts and under it the correct who just ation of tennessee law would be to invite excessive litigation over pre judgment interest which is not something that this court is typically interested in writing given the abuse of discretion standard i'd like to briefly address the point that the evidence was not  case for more than five point four absolutely secondly isn't it correct that they controvert in the sense i mean in terms of what papers that you know you waste you wasted money you could have done better et facts supporting that number or the fact that what g t paid in interest what the costs were they did attack saying well maybe you shouldn't have paid that much because you had different factor awfully good and so on that's all i'm saying is that that if this went back over the whole b game would be up in the air they could that they could they could bring that in you could ask for more you know they would presumably follow the correct standard that we told them but the game would be afoot but the language in the district's opinion is uncontroverted abbott and it's not of capital to satisfy principles of equity that is simply not true and we know that because tennessee law does not even require an award of pre judgment interest at all it makes the award discretionary and in fact even since there have been a number of cases in which the tennessee court the tennessee supreme court and this court have affirmed zero interest at all you have the hunter decision from the tennessee supreme court two thousand and five you have the statute itself to say that a court must always award prejudgment interest that's simply not true also j t v has misstated a few cases that i'd encourage this court to read closely and so when the trial court ultimately carved duff seven years off of the pre judgment interest period it did that under principles of equity because equity is a two way street it's not just about what is fair to the plaintiff it's also about what is fair t pendant but for the court's error of law there's every reason to think that the court would have made a lower award if this court does back to remain and this court should instruct that the trial court should follow the framework laid out and my aunt laid out in should consider that the goal of pre judgment interest is to do equity this court has to consider the two mandatory factors whether the obligation and the legal and the damages themselves were certain here j t v has been all over the map even as recent as it's brief in this case it's still insists that it has fifty million dollars in damages when this court confirmed that it only has thirteen had been reasonable from the beginning and said this is a thirteen million dollars case we probably wouldn't be here and that is exactly the type of thing that the court is supposed to consider it when it talks about equity and what should be done with prejudgment interest the purpose is to compensate not too much not too little but never to punish thank you very much we would request this court reverse