the nd is an order awarding transverse fees based on the texas civil practice and remedies code our arguments are fully briefed and in my limited time today i'd like to just highlight the points on each of the main issues starting with what will refer to as transverse to this court held that i wireless is entitled to a mandatory award of attorney's fees as the prevailing party on the t t l a claim but on re manned the district court ordered i wireless no fees and that really raises the three points i'd like to address the st is that the district court got the standard for segregating attorneys fees completely backwards the nd is  segregated its fees in accordance with the standard imposed by state texas law inferred even if there was some issue about the manner in which i wireless segregated its keep its fees the district court had no authority to order a complete forfeiture of fees under the circumstances of this case so starting out with the segregation standard the laws clear when as in this case there are multiple claims and fees are recoverable on all of them it's undisputed that texas law requires the fees claimant to segregate fees that quote relate solely to a claim for which fees are on recoverable unquote no the district over the state segregation standard now one level this may sound like it issue of semantics but it is not the district courts approach has a significant impact on the amount of these that can be recovered because under the district court's view any fees that do double duty in other words that advance both the t t l a claim and other claims under the district court's review are under the district court's view those fees are not recover texas supreme court in twenty dollars motors said exactly the opposite it said in cases with multiple claims arising from common facts quote many if not most legal fees cannot and need not be have been incurred on the recoverable claim only they are not disallowed simply because they do double duty now notwithstanding these principles some of which were actually cited in the magistrate's own report and recommendation the district court insisted that i wireless segregate its discrete fees related to the t t l claim only and because that is the exact opposite of what texas law requires the order denying i have wireless any fees on the t a claim has to be reversed the nd point has to do with wireless is segregation in this is just simply shown on the record i wear the submitted a fee application that is supported by evidence is counsel reviewed more than three hundred dollars pages of invoices all of which are included in the record invoices from over an eight year period then identified services that would have been necessary to defend the t t l a claim only of course this can include things like filing an answer showing up at hearings doing some discovery there are lots of things that you do in a lawsuit that advance more than one claim council then went through on an item by item basis and segregated out discrete fees are laid in solely to non t t l a claims and then finally counsel went through and made some further reductions just based on principles of reasonable ness so i our position that as a matter of texas law the evidence submitted in support of our application is sufficient to establish the amount of fees recoverable on the t t l of a claim and that no additional segregation was required so yes teaching the texas law does apply to the t t l a claim rd point has to do with forfeiture and this is just simply the point that the district court adopted the magistrate's recommendation that quote i wireless is not entitle to recover attorney's fees due to its failure to segregate recoverable from unrecoverable fees unquote but as i just explained i wireless painstakingly went through and did attempt to segregate fees and under these circumstances this isn't a failure to segregate case and because it's not the district court had no discretion to deny fees altogether and i think this is especially true when there's an award if when an award is mandatory under the t and when this court specifically remanded for an award of fees under the teacher l a so unless there are any questions on my wireless fees i'd like to spend the rest of my time on the issue of trends versus fees the background on this is pretty straightforward there were five claims in this case and transverse only prevailed on one of them its claim for breach of the supply contract now the district court awarded transversed more than two million dollars in attorney fees on that claim based on the texas civil practice and remedies code again i've got three dollars points the st is that transversed can't recover fees under texas law because the supply contract is express governed by iowa law and in judge smith this sort of gets back to the question you previously raised twiss of law issues are done on an issue by issue basis so the choice of texas law for the t t l a claim doesn't mean that texas law applies to  of our live pleadings we made it in our pre trial motions for partial summary judgment there were a couple of those we made it in our will fifty motions we submitted proposed jury instructions and a verdict based on iowa law and based on the iowa civil jury instructions and then we opposed each of transverse as motions for attorney's fees based on an argument that says the supply contract is governed by iowa law and that i will  doesn't permit an award of the so with respect to the breach of supply contract claim we were crystal clear early and at every juncture we reiterated our position that iowa law governs the supply contract claim and reflect that the supply contract is governed by iowa law district court declined to do that so in transverse to we took that issue up and we actually asked this court to rule on that issue and there's a footnote in transfers to that really sort of addresses it but the bottom line is the supply contract you don't get to a conflict of laws and till you get to the issue of attorney's fees so with respect to all of the issues that came up in the st appeal and the  nd appeal you know what are the elements of a breach of contract claim what are the measures of damages what's the standard for sufficiency of the evidence on review all of those issues it's the same analysis under texas law or iowa law so it there was no conflict there was no sort of basis for any court to reach the issue and in fact in that nd footnote this court said you know there's no conflict right now we did we can't reach the issue we were actually just arguing look this is going to be a conflict when we get to the issue of attorneys fees th circuit you know please make a ruling to kind of facilitate matters on remand and avoid a rd appeal but the i think the court you know in you know properly declined to reach the issue because that hadn't really been raised below yet there have been been able to be reached below so we get back on remand and that was the st opportunity for the district court to grapple with the choice of law issue and it just simply said texas law applies to the supply contract now that actually sort of takes me back to the sort of substance of our argument i mean i think the issue is clearly preserved and in addition to all the places i've just mentioned in the record where we raised the issue i will tell you that transverse is not going to be able to cite to a single place in the record in this court won't find one where we ever said that the supply contract is governed by texas law we never took that position with respect to the merits of this issue again the only choice of law issue that's before this court right not now is what law governs transverse his claim for attorneys fees based on the supply contract the contract itself expressly states quote this contract shall be governed in construed by the laws of the state of iowa period that's an unambiguous choice of law provision that requires the application of iowa substantive law  that includes not just the breach of contract claim itself but also that the issue of the tourney's fee is under rated now i wireless brought this specific issue to the district court's attention when we got to the  issue of attorney's fees where the st real conflict of law issue arose and i would really urge the court to look at page eighty seven dollars or three of the record because this is the magistrate's discussion of the choice of law issue and i think it shows where the analysis really got off of its tracks the magistrate starts out and it says in transverse to the th circuit didn't rule on the choice of law issue because there was no conflict you know in with respect to any of the issues before this circuit and that's correct court then said texas and i will contract law don't conflict except as to the issue of attorneys fees that's also correct but then the court said since the th circuit didn't rule the was quote left with judge equals consistent ruling that texas law applies to the supply contract and that's completely wrong that's where things got off track there was only one prior ruling on a choice of law issue relating to the supply contract and that was this the statement made after transverse one in the st three man and that was the statement that i wireless tried to challenge in transverse two so then when we finally get back at the nd remain and end that district court finally takes up the issue of attorney's fees because all the issues on the merits had been resolved we've got this conflict in law a conflict of laws issue clearly presented in under the court's own analysis and transverse to if there's a conflict you actually do need to reach the choice of law issue but instead of conducting any kind of analysis the district court just awarded fees based on texas law just circled back and said well the contracts governed by texas law well it's clearly not so you know that's that's the merits of the case of the choice of law issue i'd like to point out just two or clarify two potential points of confusion just so that the court doesn't get confused st transverse refers to a concession that i wireless supposedly made that texas law applies and that concession which is on page twenty seven of the record that actually is an emotion for partial summary judgment that relates to entirely different claims again choice of law is issue by issue the fact that texas law governs some of the claims does not mean that we've ever conceded that texas law applies to the supply contract we never did we consistently said iowa law and nd i would just point out at the very start of the court's footnote in transverse to the one talking about the choice of law issue the court actually wrote quote i wireless contends that texas law should govern issues including attorneys fees arising out of the supply contract that statement is actually in correct the record and the appellate briefing from dollars which is also included in this record they clearly show that transverse was the one arguing for texas law and i wireless was the one arguing for iowa law so i just don't want this panel to go back and look at that footnote and say well wait a minute i wireless said that they you know we're arguing for iowa law on this but says the opposite the footnotes actually incorrect and we brought that up on the hearing my final point on this was just going to be that love the case doctrine doesn't apply legally to meet its burden of proof of the three points that ms kidwell re cited we have we disagree with each one of those and i will explain why the standard of review as abuse of discretion of the trial court used the correct legal standard the trial court quoted in its opinion in adopting the magistrate's recommendation the texas supreme court's standard  case it quoting claim it must segregate repub or bolt from unrecoverable fees and if these are sufficiently enter twined they need not be segregated that's the absolute proper legal standard under texas law in denying the our wireless fees the trial court said and i'm quoting segregation by our warless of the legal work performed when each claim is required if it is not an impossible task factually and then that's absolutely the tony good standard regarding the lack of need to after the nd appeal and gave them another chance to get it right and what the court said in the alternately denying it this is a quote quote several avenues to segregate were try to carry its burden and then the court stated segregation was not an impossible task factually as there were many approaches our war has could have taken to meet its burden this is factual determination well within the trial court's abunda discretion on the social and what the trial court was referring to was the many evidentiary defects in our evidence whatsoever to the trial court explaining these and other defects and for the st time on this appeal they present arguments not not evidence but arguments on some of the defects and what there are there are or given show they highlight that this was a factual dispute within the trial court's discretion to resolve public examples that we that we pointed to the trial court and there are many examples ac three hundred and sixty seven thousand theories allegedly on t t l a claim that they incurred over eighteen months while reviewing three million dollars pages of breach of contract arguments that both parties produced there were no disclosure documents in those documents and all that to the to sum total of disclosure documents in this case was about two hundred and forty dollars pages all within our wireless possession and during those eighteen months there trying to tag us with t t l a few days our wireless withheld those documents it didn't produce them to us and they also and one of our iraq the tories falsely stated they didn't disclose any any of our any of the material that we provided to them to  diyar competitor they basically lard in discovering and withheld the documents but their fee application is trying to get three one hundred and sixty seven thousand dollars supposedly relating to the t t l were the standard there would never be any segregation and a case because of the mere pendency of a claim what allow the other party to claim fees for anything it does what the test is to what what was the actual work they did not what claims are pending they also seek sixty thousand dollars in fees to depose transfers is clear but how  employee even though it had deposition they asked only two questions of mr hallowing about the disclosure claims and then trial they asked him no questions about the disclosure claims for how it was a contract witness primarily they argue in this in their brief to this court well this is justified because we have transferred to designated mr howard not only is it a witness on the contract but that he might also testify regarding the disclosure claims well they don't challenge our point that there are only two questions in that deposition relating to the disclosure claims and i can assure the core neither of those questions were not sixty thousand dollars questions they also include in their fianna fil occasion almost ten thousand dollars in fees for a countersuit they filed up in iowa federal court after we filed our suit where they sued us for breach of contract there was no claim about disclosure whatsoever but they include that in the t t l a call they also claim full feeds this is in a way they claim full fees for analyzing transfers as technical and damage expert reports that have only  placeholders in them because they say they had withheld these this discovery from us we had no discovery on the disclosure claims t t l a or anything during this time our experts had to leave place holders hoping we would get evidence we didn't get it for about three months later about eighteen months after our discovery requests asking them for this information and of the technical record ninety one percent of it based on the page content and concerned only the breach of contract claim and of the damage expert report ninety six percent of that response on the fall fees for reviewing these expert reports of their trial exhibits your honour's of their six hundred and twenty eight dollars trial exhibits was an awful lot six hundred and twenty four  ninety six percent related soley to the contract claim and only twenty two dollars of those exhibits or four percent related to the disclosure claims global ye attorney's fees for all the disclosure claims there for their amended fee application allegedly did not include that they spoke only took out the non t t l a disclosure work but a claims their claim evidence they clearly is trying to recover the large part of this case most of this case involves the breach of contract absolutely and my controver the four or so disclosure claims together and determined at most at most only twenty one percent of their work involved the fly of the disclosure claims and that analysis and need to emphasize us to the court that ignores their lack of segregation and it ignores the excessiveness of their fees which would probably if you we submitted are evidence under the lodestar analysis that involves a proof showing how their fees are excessive how they had too many lawyers on this case even after writing off about six lawyers they still had too many lawyers on this case they disproportionately used partners and counsel on the case and the partners and counsel that they did have hoarded about ninety percent of the work on this case all of those are excessiveness the contrary to the lodestar nel says they had they've had four tries in this case to meet their burden of proof on their fees they've submitted to early in the case back when they were trying to get about sixty percent of their fees and then more recently the two that the judge yankel allowed them to  trial let him get it right each time transverse objected to their application on the same grounds that there including breach of contract work that should be segregated out there including other claims that can be that don't have common elements with the t t l a play and each time they didn't correct it even to the last one they did they still have a corrected the problem we submit is that the affidavit which is what they did and get what it whatever they submit we met our burden to show that they failed to segregate once and they were they were it was their burden to  prove that their so called segregation was sufficient the trial court had ample discretion to deny their fees particularly after giving them a nd chance over our b caesar's case and other court decisions by the score justify the denial the at the total denial of their feet application because they had multiple opportunities  segregate and refused to do so and i might point out your honor that the texas supreme court recently in the roar roar moves case clarify the procedure for texas proving up  show that the the court's a two step process you determine the reasonable hours spent times a reasonable rate and then adjusted up or down for other relevant factors well the trial court here could even get past the st step be terminating a reasonable hours spent because they didn't prove the proper segregation they didn't segregate they said they did but they didn't in the these example these late examples we've pointed governs all substantive issues all substantive claims in this case that necessarily includes attorneys fees but the trial court rule pretrial in the in the order and cross a motion to amend our complaint because of the change of law the the trend of law change in texas so some chords since about two thousand  not ruled on that issue as not change the law and they can't that's an issue that we raise in the motion to all men they remain completely silent in the trial court on that issue amend they did not raise it is there they didn't brief make the argument they made to this court what they stand was it was irrelevant and a red herring no words trial or there's nothing for you to decide here because the law back then was not with was you know the supreme court takes supreme court already held you could get attorney's fees under the statute against a partnership which is neither a individual nor corporation reach of contract claim and then they as we pointed out they waived twice on the st appeal in a nd appeal this is you they never raised they didn't explain that any difference between the two state we are challenging the unveil ability of legal fees and the segregation standard those are both questions of law that are reviewed in novo under this court's precedent that we've cited in the brief if we were quibbling about the amount of the field that had been awarded to us that would be an abuse of discretion review but when you're at threshold legal issues as to whether we can recover fees at all and if so what's the proper legal standard for segregation those are the eagle issues the standard is with respect to the legal standard tony go unloaders is clear and i would just ask the court to match up what we did what tony go says and what the the district court did you know as a matter of law fees that are arising from common backs cannot and need not be precisely allocated ok services that would have been incurred on a recoverable claim alone are not disallowed simply because they do double service ok segregation is only required that relates soley to a claim for which fees are unrecoverable ok attorneys are not required to keep separate records in opinion stating that some percentage of fees would have been necessary even if no recoverable claims  had been brought that would suffice the court is clear rough percentages are ok now sidney powell went on a line by line item by item basis and tried to actually follow a much more exacting methodology but it would have been enough to just simply have an affidavit saying you know in my opinion about fifty percent of these fees would have been necessary you know if you get to the point where we're so i guess i would also just say have a look at the and it shows that she also matched up exactly with the standard she went through identified what fees would have been necessary to defend only the t t l a claim and she made it clear that she was pulling out the fees that are unrecoverable so there is truly a disagreement as far as what you're supposed to be segregating from what the district court kept saying you've got to pull out the t t l a claims only we were explaining will know we've pulled out the unrecoverable claims we think that the rests in sydney but we've got statement in the record saying that the rest advance both claims those are recoverable so that's truly the segregation standard issue transversed spent most of its argument quibbling about various on the factual amounts as to whether we should get to recover this line item or that i would just remind the court of two things st transverse asserted multiple claims in this lawsuit one of them was the t t l a claim and that's been the case from the very beginning so for them to come in after the fact and say oh well we didn't need to review all of these documents because none of them had anything to do with the t t l a claim how do we know that they're the ones that brought the claim so they need to now pay for it the nd point that i was going to measure on that is we are not asking this court to go line by line and consider all of transverse as quibbling about individual amounts we think that because of the flipping of the legal standard the orders got to be reversed to me the hardest question for you is whether to render judgment in our favor based on the amount proven up by the powell affidavit or whether to remand and let the district court for the  time consider some of these complaints about the amount remember the district court never got that far because it kept insisting that we applied texas law in a manner that we thought was the opposite of what texas law  so that's some just quick comments on i wired this fee is with respect to transverse fees the pretrial ruling on texas law governing substantive issues that was made with respect to a quantum arrow  claim that claim has been out of the case for a while again there are multiple claims choice of law determinations are made on an issue by issue basis so the fact that there was a ruling early on that texas law governs  overcome the plain language in the contract the supply contract saying that that contract is governed by texas law and judge smith i don't think the court needs to get this far but you know at the end of the day the texas civil practice and remedies code has had the also seeking peace under the end yea the n d a allows fees to be recovered by the contract so that's you know really sort of neither here nor there and just the final point the the law of the case ruling that they're pointing to on the remained that's exactly what i was talking about in my argument page six thousand six hundred and eighty two of the record or whatever that was the one that we asked you to look at in transfers to and you didn't because this court didn't make a r