defend the los sterling argued for unified series of damages and said all three awards were identical but now it's forced to concede the difference between benefit of bargain and reliance damages sterling bears the burden of establishing duplication here but it offers the court nothing beyond speculation to satisfy that burden court's just such merit your job in this case is to interpret what the jury me jury questions that the rogers put to the jury and what i don't want to stand is why would the jury on three separate questions if they were the same amount each time it doesn't make sense to me that it could be that could be the with the jury at my it makes more sense to think they just wrote the same thing because they were under the impression from the instructions that that's would the court intended oh your honor i don't think that that's actually the case because they submitted a note in they said do we add it all together or do we put the same amount on each line so it showed that that's what they were intending to do is put the same separate amount each line into your question about what how do they get thirteen million for each one also only it does not matter because  contest the fact that there was sufficient evidence for each cause of action this is to support at least thirteen million dollars in damages and what the cases have held in this context the duplications damages context is just the fact that there happened to be the same amount doesn't satisfy the burden they have to show something beyond speculation the exact same speculation that you're talking about which is one of the jury arrived at this and when we go and we look at what happened below st to be awarded and and that's with the jury's verdict in the different putting it down three times that's what was intended and that's the way  interpret it with the jury did right that's correct your honor and that's that's wrong under the basic premise that we have to interpret the jury verdict in a light most favorable to the prevailing party which is the plaintiff the district court affectively theories but the damages were different yes you how it seems ironic then that it would be thirteen thirteen thirteen in one year i'm not going to quibble with the irony there but but my point there were two separate causes of action and what we don't hear from  the difference between the fraud and the next was a misrepresentation how can we say there's thirteen on the pride and thirteen on the negligent misrepresentation what what are the different amounts that caused were they that makes sure your honor so what  expert presented a number of different categories of damages including sixteen million dollars related to the loss functionality and about twenty seven million dollars related to delayed damages based on sterling promising something and then not being able to  and so what the jury could well have done is awarded the thirteen million for the frog because the fraud was limited to inducement to enter into the contract based on the last functionality which we did not get what we were promised that we were supposed to get but for the negligent as a matter of logic how do you go about with there's nothing to support yeah the day of that the jury decided the means at their disposal to answer exactly this question in they could have done it by requesting that the jury be polled or clarified their verdict if they had any doubt about it while the jury was in panel and that's what the number of circuit cases we cited number you've established and show that the reason that we have this process is so that you as the appellate court have the means at your disposal to evaluate what the jury did and make the the twenty seven million dollars related to that the way the destruction so the negligent misrepresentation is broader than the fraud it covers anything in the business relationship so part of the harm here was not only the loss functionality but was sterling stringing us along the same don't worry don't worry it's all going to be fine in keeping us in case with them as they dug the hole deeper and deeper and instead then there's the thirteen million and the breach of contract so what does that break from the  so that is that is finally different and what the thirteen million there in sterling explains in its briefs below how it calculated that it says these are the reliance damages for that there's an aspect to that and i want to be clear on the difference between the amount we paid to them that would be inconsistent with the bin for the bargain damages on the tour however there was also an aspect a six point seven million dollars and we explained this in our brief and they don't respond to it that is not inconsistent in here's why because in a normal benefit in a normal breach of contract you say we're at this point and we're going to go to this point and you breach and you don't get there and so you got you get made whole but what happened here was what our witnesses called net negative we went backwards rather than forwards and so these damages the six point seven or to bring us back to the starting point it's not it's not expenditures of the contractual relationship and so because of the contractual damage cap of five point five million and all we have to do to sustain the contract award is to come up with something above five point five million  not being inconsistent because you agreed that it was wrong for the jury to award you thirteen on the breach of contract should have only been five point five what will it was it was not wrong for the jury because the jury was not instructed on the five point five so the jury didn't was not aware of it as there was nothing wrong about it but what i'm saying is we can only sustain five point five and that's all we're trying to attain on the breach of contract but the district court never analyzed the repugnance question indeed it conflated the issue between duplication damages and election of remedies and by saying they're all the same obviously the jury verdict where the jury came back in a word reliance damages not going into the bargain damages is finally and consistent with what the what the jury held in your honor with respect to the question of pre judgement interest of the district court did not apply that to the the standard for prejudgment interest you know warded reflects of only the federal standard of one point two percent and that is exactly what this court has held you cannot do you in shoemaker and i think to further illustrate the point sterling below presented in this is a page three zero two four three and four four and page i it's expert affidavit detailing the potential interest rates and with every incentive to lowball it they came up with twenty six different interest rates all of those were above what the just record award and indeed if you average them you would get over three times with a district court awarded the district court simply mean no finding that the actual interest being awarded as tennessee law requires will actually fully compensate the plaintiff remember we have been victimized here by a wide reaching longstanding fraud in fact it includes at least a dozen contractual breaches in thirty two different misrepresentations and judge more getting back to your point some of those misrepresentations could have been from an inducement and some could have been negligent misrepresentation so in the pre judgment interest if the district court didn't explain his reasoning the remedy would be to send it back for him to explain that's correct your honor i mean obviously this court in his privative could enter an interest rate but we believe that probably the more prudent course on that would be to remain with instructions i wouldn't given that there is a lot of new trial for the reason this is been going on ten years and we all want to move on with their life but the reason that we don't think there needs to be a new trial is because the jury spelled out its answers and they bear the burden of showing those answers are not right or not defensible and they have to do something to substantiate that burden and that's where we get back to the whole debate about speculation and why wouldn't the jury the jury have come up with twelve eleven and ten instead of thirteen thirteen that the jury thought thirteen is a good number we're going to put it down for each one will know it and then that's it thirty no no because this is where the jury's note the question comes into play because the jury said there mutually exclusive options do we add everything together or do we put the same amount down on each line so that's what the judge that look at my look at my instruction but my interactions right right so you and we were just you don't want a new drop in we've got to interpret what it means to put the same number down three down if you do and i think you've got the guidance in the in the cases that we've provided that show what you do in this era that the trial judge thought the way you interpreted the case that the jury intended one thirty right that's t or contract sure and what troubled me wake which isn't discussed all that much in the grease and whatnot is jury instruction twenty thicks and that's in title tort damages and i looked at the instructions and whatnot and this is the instruction that applies to tort damages across the board and it says if you find that jake tedious entitled to a verdict against early on a claim of  promissary fraud or negligent misrepresentation you must then award damages and i'm out the reason they compensate j t v for losses suffered by j t v that really really costs are the result you will or j t v the benefit of the bargain the benefit of the bargain is the difference between the value of what j t v would have received received if the misrepresentation had been true in the actual value of j t v determining the benefit of the bargain you may consider so forth and so on but to me that suggests and the use of misrepresentation as a theory and then in definition the benefit of it is confusing but apart from that to me right it says what was proximately caused by the fraud and what was proximate cause by the negligent misrepresentation and this is where the difference between those two claims for being limited to just entering into the contract and negligent mr perception being far broader there is a difference there and part of this comes down to are we going to give the benefit of the doubt to the jury into the factual the jury's verdict or are we going to second guess that with with something beyond speculation jury's damage awards for duplicative in overlapping damages the trial court followed hickson to the letter and examined the evidence and the awards and the limited j t v to only one recovery for the sterling project failure today the question for this court is whether the trial court's finding that the damages were overlapping into play could have was clearly erroneous j t v has not come close to proving clear air instead j t v is complaining about the results of its own calculated strategy that failed to achieve its desired result four points today on why this court should affirm and the first is the standard of review  that this court defers to a trial court's finding the duplicative that damages are duplicative unless that finding is clearly erroneous the clear error standard gives significant deference to the trial court as the supreme court has explain it puts a serious on the scales in favor of the trial court's ruling when this court looks to whether a clear air exists the only question that this court is asking is whether the district court adopted a reasonable view of the evidence here the most the j t v has proffered is that it is plausible or possible that the jury awards were not duplicate if this does not come close to approaching the clear air standard so the very day or so that the judgment here should be a know how you can say that the jury didn't say it was a total of thirty and that brings me to my second answer your honor and here that's because whenever a court looks at whether damages are duplicative and overlapping it always always has to start with the jury instructions and the jury verdict and here the dispositive point in this case is instruction twenty eight instruction twenty eight was specifically requested by g t v and i'll read that instruction to you it says do not increase or reduce the amount in one answer because of your answer to any other question about damages do not speculate about what any party's ultimate recovery may or may not be any recovery will be determined by the court when it applies the law to your answers at the time of judgment in this instruction just two very important things the first thing it does is it makes the trial court the sole fact finder on two very important questions now the first question is why g t v's total recovery should be the second question is whether the jury's damages are duplicative or overlapping but instruction twenty eight also does something else that is just as important it prohibits the jury from attempting to answer these questions or from even thinking about the when it goes to find the benefit of the bargain on tort and when it goes to find evidence that has come in a trial he's listened to j t v's arguments he's listened to five weeks of evidence and the judge not the jury is the one that's making the determination of whether damages are duplicative and he got that answer right v can't show any clear error in the trial court's finding the damages are typical of an overlapping because no other result was even possible given how j t v trying to its case here once again we have to who i'm sorry to be getting back to this but you're saying then that the argument that your opponent made that there were different things that comprised the damages on the one tort versus the other toward the fraud versus misrepresentation that that all that they transport found was whether the damages were duplicative and the court found unquestionably that they were deeply and overlapping and that decision was correct based on how j t tried its case and also brings up this jury question and you have to listen to what j t tells the trial court as soon as the jury comes back with the jury question the very first words out of j t v's mouth are have the jury read what's instruction twenty eight so it wants the jury to make full damage findings on each and every question without trying to discount for duplication njt has a very good reason for that and that's because with an instruction like this if you were to lose its frog claim on appeal the j t v would still ha recovery intact and that also brings me to another point on how we know that the days that the court didn't intend to award thirty nine if you look at the contract findings the jury would have liked to have been doing if the sterling project wasn't taking up its time these were speculative damages from the beginning they have nothing to do with software and that we know that the jury ultimately did not award any of those damages we had  yes they're limited to only one period but that brings me to why why the decision here in this case is correct and we know that that decision is correct because of how j t v tried its case  so asking this court to stack both findings and the contact finding i'll take those in two parts we know that the tort damages are duplicative for two reasons and the most obvious reason is because j t v told the jury that they were when it's going through its closing argument and it's telling the jury to put in fifty four fifty four fifty four fifty four in every damaged blank to be says that these are the same benefit of the bargain and that is fully fully consistent with t v tried its case the beginning you can look it said docket seven fifty which is the pretrial order d t v stary is that sterling committed various misconduct consisting of negligence misrepresentations fraudulent misrepresentations and contract breaches but that's all combined to cause the project failure and then j to be asked for damages for this unitary project failure again a trial date to be employed the same and strategy it never wants in front of the jury identified a single representation as fraudulent but not negligent or negligent but not project isn't it never identified so much as one item of damage as attributable to a misrepresentation that was negligent but not fraudulent or vice versa and then came the jury charge discussions and here sterling did everything in its power to try to get more specificity from j t v sterling requested that the jury find liability as to individual misrepresentations and identify whether these were fraudulent or negligent or both and to be refused totally refused and that the trial court overruled sterling's objection and so at the end of the day all th t has is the project failure and it has two categories of damages from that project failure which are benefit of the bargain damages and out of pocket damages and this is the way the j t v decided to try it case and that has consequences in tompkins vs syria this is an opinion out of the fifth circuit the fifth circuit found to put it in damages where just as in this case plaintiffs counsel made no attempt whatsoever to distinguish between the harm resulting from the two towards and given the presentation of the evidence it is extremely unlikely that the trial could could have separated harm arising from the negligent misrepresentation and the fraudulent inducement again when it came to the jury charge sterling even requested that the jury find which contracts which of these eight contracts were fractionally induced so that you could possibly know which damages go with what and what and what j t v said is very telling this is on record seven ninety three page twenty six one fifty three j t v says because of the nature of the sterling implementation project the jury should be allowed to consider all the agreements and sterling's actions throughout the project together this was that there was fifty four million in damages why couldn't this be the jury's effort to come up with a grand total of thirty nine million thirteen plus thirteen plus thirteen as opposed to simply thirteen so that at least we should rem a new trial damages well here you would have to to do that you would have to assume that the jury disregarded its instructions and hear the first senate student increase or reduce the amount of one answer because of your answer to any other question that prohibits the jury from allocating one total and attempting to split it between three theories this is what this instruction twenty eight is what sets this case apart from all of these cases there never an instruction like this in any of these cases  but beyond that one reason that we camera man just for trial and damages is because we don't know what it is that sterling actually did wrong here in the pretrial order there were thirty two misrepresentations j t v never identifies which one is negligent which one is praja lent never lets the jury find white provision of what contract was actually breached so we don't know what the jury found at the end of the day all that we know is the jury awarded damages for the project failure and so you would have to send it back on a new trial on everything just to be able to find out what the damages are if we assume that there's something other than unitary here and now the tour contract the court one thing it's telling this court something else it points to the six point seven million figure but that is still spent to try to get the benefits of the bargain we know that this is a rescission measure of damages you can't get both contract negating the same these are all services contracts whenever you're engaging in a contract for services what you spend is often what you expect to get someone for thirty dollars an hour to paint my fence for two hours v i'm sorry sterling says it did everything in its power to avoid this type scenario well there are two things that are most obvious that it did not one is it did not request an instruction to say don't duplicate damages that's what the case will recognize is that a party in their position should do if they're concerned about the us and second we did not take any steps to ask the jury about what it meant to see clarification and i think ramifications here if this court  firms for we have a jury verdict there are multiple causes of action the incentive it gives to the defendants is to sit back not do either of those things and say well we don't really know what the jury did so let's have satellite litigation to figure this out and we get to chip away at that jury verdict and we might get a windfall that's not how the system is designed to work they bear the burden of this and that's what this court said and black they bear the burden of showing duplication and they have to come for was something be on speculation in there is the amount i grant you that but that's what the courts have said including this court in johnson of said just because the amounts the same that doesn't sustain their burden of showing duplication as long as the evidence can support an award of that amount and that's the key distinction here the evidence here can support the awards that the jury entered but that's the whole purpose of why you would ask the jury for clarification if you is the defendant say we think there's duplication then you provide a record on which you can evaluate rather than this metaphysical debate we've all been having about what was in the jury's mind there's a reason why they have to ask that question at that point in time rather than after the fact you know call the question and i think the other real difference here especially with this is this is not a single unitary harm as i said there were a dozen contractual breaches thirty two misrepresentations over a multi year period in every misrepresentation that sterling made dug us deeper and deeper in the hole and caused more and more damages along the path and that's why this is not the single unitary harmed was a multitude of harms you know which takes it out of the realm of your typical duplication of damages in finally with respect not awarding benefit of the bargain damages in their contractual word they said their wording reliance the images so we know from the jury's verdict if we know anything it's that the jury would have been for the bargain on the tort reliance damages for breach of contract those are