good morning ladies and gentlemen or first case for argument use the word creek apartments against m ten years of litigation and never being before the appellate court on any issues i've managed to identify only two issues for appeal here today i technically identified three but technically the first two are one and i want to talk about the first issue which was judge fireman's ward a pre judgment interest it's kind of an interesting issue because there isn't much case law if any in the circuit where pre judgment interest is  fourteen plaintiffs identified a damages expert witness named thomas frizzy who offered testimony regarding the damages sustained by each of the three four people and cities those entities are known as areas f the only entity that received prejudgment and interest was area g so i'd like us to focus on that only mr frazee testified they at these parties sustain images in the form of improvement costs in other words the village forced them to improve the properties which they considered the damage operating expenses what they called them as well as  lost sale opportunity and other capital expenses but one of the line items that was proposed and which was submitted to the jury was prejudgment interest and each entity had a and at the end of mr prizzi's testimony he counsel for foreign creek offered into evidence these three three bills for areas in each to which there was no objection so these three tables were not only testified to by mr frizzy but they were offered into evidence so the jury took those tables back with them to deliberate and so on we were then faced with a push trial motion filed by four creek requesting prejudgment interest so we naturally said well wait a minute us to that from the jury now you're asking that from the judge so we obviously vigorously oppose their quest which obviously was denied judge feinerman warded five hundred  one thousand and thirty two dollars and eighty eight cents in prejudgment interest against the only area based upon calculations from early two thousand and eight to the date of judgment which was able twenty fourteen so we cited in our you know opposition to that request the case of a vest this versus younger which we believe is very instructive here in which we also respectfully believe judge simon didn't give enough attention to best this the motion requesting among other things pre judgment interest and they were similarly successful and they were awarded four hundred ninety five thousand dollars so very similar amounts very similar facts in an appeal the defendants argued that  prejudgment interest should not have been awarded because the general verdict which was proffered by the plate those same thing that happen here could have included prejudged an interesting if there's any confusion in this regard that confusion must be borne by the party request it so they argued that the interest award was an abuse of this question which is the standard that applies here week knowledge that this court agreed with the defense position and held and i quote fairness dictates here we certainly are of the mind that a half million dollar reward in prejudgment interest is a penalty and moreover this court held in the side believe is most important plaintiff cannot recover pre judgment interest twice because reed best has provided the jury with damages figures our expert michael pachter was of the position that the increase sustained no dampers a risky position to take as we fully acknowledge but that was our position and evidently the jury believed him at least with respect to area and each each of which received one dollar nominal damages warts but to suggest that the jury completely disregarded mr furze these calculations his bill had by the verdict itself they must have been braced at least some of it because if they hadn't they would have awarded one dollar to ricci at least that's our logic so the district court and claims council are of the mind that what the jury simply did is a binary choice to use a phrase it's very common these days they don't have to pick the plaintiffs version of the damages estimate or the defendant's version of the damages that's what they can come up with their own calculus and what they did is a very common sense measure here or at least this is what i read judge feinerman order to conclude they took the value of the property and subtracted the mortgage debt said that's the damage it's once a councillor ability on that area g part of the package it doesn't come to that amount the judge believe me we if the numbers added up to two million fourteen thousand dollars but that would have been identified the appraisal of two million one through well less the mortgage of nine million it comes out to about eight hundred fifty thousand or there's another number in the richard sharp he never actually testified mark it was our position he was just a strong man who was put up to say he was interested in buying the property but there was a purchase agreement where he agreed where he was going to pay all of the document three eighty three and fifteen and document four and six at fourteen for this understanding of the jury's verdict what are the i didn't go back and look at what those documents are what are those documents i believe  can't speak to that right now judge i don't have it in front of me but what he says what he actually i can't speak to that we said that is one possibility as to how the jury arrived at their verdict which was t mortgage debt from the appraisal but again that doesn't come to two million dollars two million fourteen thousand dollars so we said that's certainly one possibility but it's not that number and so there must in some calculations performed in the jury box and really just i think we're getting in the weeds because prejudgment interest was requested from the jury it could have been requested only from the judge has requested from boulder and i frankly don't think that request this is any different than this case where for creek acknowledged that there was indeed confusion generated by the verdict form but that verdict form was proffered by the district court after it received a sixty page verdict form from foreign creep which the court rejected immediately saying that's complete it's confusing not only to a court but it will be confusing to the jury so the court did what i thought was a commendable job in calling down the verdict form to what it was and now for corker to say well yeah there was confusion but it's not our fault the district court's fault i just don't think that's good for fell so there's an acknowledgment that that prejudgment interest was requested twice there's an acknowledgement that confusion was generated by the verdict form and there was no objection to the verdict form so again this is spot on with three best this i i think it's actually the best case we could have possibly had in support of this argument that the judge abused his discretion in awarding over a half million dollars to area g in this matter and you know we may never will never know whether or not the judgment interest was included in that number because we were properly instructed not to force question jury on that so the fact that we're still debating how they write that that number to this very day suggests that that amount should be vacated as it very well written big may very well have included pre judgment interest so our second issue on appeal let's try to get through this quickly i want to reserve the rest of my time ignore nine hundred eighty five three nine hundred eighty three remains when the jury did return its verdict judge i think you offered the opinions of those already make those smallest difference i think you doesn't make any difference who signed the opinion of course and to have you then make an ad hominem argument after having been so reminded is well troubl predicate was either race based or a class case i wish you'd address my question what difference does it make the jury returned verdicts under both nine hundred eighty three and nine hundred eighty five three they come to the very same thing when there are public officials involved so why should it make any difference in this case the plaintiffs submitted in one nine hundred eighty five three claim we attempted to it's not miss that the you were thinking of claims as particular statute under the federal rules a claim is a grievance one doesn't plead law the verdict form should not have separated different legal theories the judge should tell the jury about the claims and ask for the jury's decision about those claims under the legal standards provided by the court the idea of telling juries about which statute supports which theory is wrong but in any event my question is what difference does it make because when public officials are the defendants both statutes cover the same ground maybe i can answer it as as you'd like judge but that's how the record played out those were the claims that were a deuce by the plaintiffs in which we were attacked they are claims they are legal theories legal theories and claims are different that's  supreme court has held that one doesn't plead law and there shouldn't be durian struction so the talk about law now maybe you would say the plaintiffs of waved this problem or forfeited it but i don't understand why jury would ever be told that there are particular legal cubbyholes rather than claims and i don't understand why when two legal when two statutes cover the very same ground need to think of claims the way the supreme court and the federal rules think of claims that's the problem here well respectfully requesting that this court do the same that judge firing did which was to damage award would would have been far more and so it's our position is that certainly was awarded in conjunction with the conspiracy finding which i understand is not as of the separate claim but that's the way it was brought to the jury and that's the way we're proceeding thank you citation we did not arrive did you object to what the court we presented the court asked us no that's a simple question did you object to it we objected that there was a that they weren't the forms that we had presented no that's not the question i asked did you object tell the district court that the jury heard it should not have separate verdicts or statutory subsection i don't recall ok we specifically objected to it with respect to the pre judgment interest i believe that the court recognized i believe the jury recognized that  the calculations that were presented by our expert mr purcey were not adopted instead the alternative calculations that were presented by the mortgage servicers foreclosure were a fact also the mortgage amount and the jury at least with respect to the area g in fact subtracted one from the other and i believe that the court recognized that i believe the court also recognized that that was one of the theories assuming that's what it did subtracts from the appraised value of an outstanding mortgage not as it conforms to the evidence it does and in fact the specific documents are stuck to the evidence and in effect jumping ahead that in fact forms the basis for argument your respect to that verdict with respect to areas and age particularly age where against the great weight of the evidence the evidence that was presented with respect to those government sponsored own project that was built to prepare housing for servicemen returning from world war two and so what you have this multiple apartment townhomes that are identical in size the same architecture the that were prepared around a small city center and they're all built the same time they are divided into different areas and after a period of time the same time by the government in terms of preparing housing the is as a backdrop and in presenting damages i think it's important to note that the properties are identical they are situated in identical fashion they're simply matic differences but the diff differences are are explained in the appraisal form  in the foreclosure notice that was presented by the service or a third party and we believe that it was against a great way of evidence that where the jury term ends and the court recognized determine that the damages with respect to g were proven to be the difference between the praise amount for clause in the mortgage i'm out at the time of foreclosure which was the damage of two million dollars that the exact same form the exact same damages that was presented with respect to age should have been dropped the adopted as well the case law that i've reviewed with respect to nominal verdicts this is where there is finding of liability but there's no damages proven here we have the adenike a set of damages proven in an identical fashion no the district judge did write quite a long opinion explaining why he thought that but i have a procedural question comes ahead of that i think did you ask that the jury be told that it's a verdict are inconsistent and be told to true deliberate some more that we did not that's what's supposed to happen in civil case and if you don't ask why should we bail you out on appeal i believe and whether whether there was an opportunity to present that for the court we did there has to be an opportunity there is an opportunity to poll the jury there's an opportunity to make any requests to the judge before the jury is disbanded i understand i didn't see in your brief the contention that you wanted to make such a request but the district judge wouldn't let you i  received the required updates the difficulty we had with that the judge's reasoning on that point was that the liability that's an issue like bill is if she had been the only one because of the difference in electric ordinance that had been denied a business license then based on that factor there would have been no finding of liability on a church but in fact there was a finding of liability there is a fineman separated and had the parties agree that certain actors on behalf of the village would be designated as for purposes of the trial and in and to inform the jury as policy makers for particular  s larry chrestus was the building department supervisor and responsible for a lecture the jury was told that he was responsible for building a lect tomic was designated as the policy maker for the business license the fact that the jury returned a verdict against tomic for a violation of equal protection could only because he was the policy maker it only ma sense that it was related to the issuance of the business license because that's what he was a policy maker for if in fact it was the business license and not the electric which the court reasons it was it doesn't not sending the fact that the proofs were the same it's important in context and again in preparing for argument i wondered whether whether it was close to me because i participated in the trial as somebody else reading this from afar but there were two different motions in limine two different evidentiary issues that were in conflict and essentially fighting each other during this trial a matter of weeks even though the discovery of been close for three years a matter of weeks before the trial the judge changed the rules on us he said that you were what he was going to allow the defendants to supplement their  evidence and introduce documents from pre print two thousand and five and their argument was that they wanted to introduce a full funds argument that the properties had not been maintained and that was the breeze for the for and the court denied that motion we raise it again of the motion and limiting the court said no they're going to be allowed to bring in the flowing funds argument what they wanted to do was to bring in documentation showing that in two thousand  four that the properties were refinance and sixteen million dollars proceeds was received at the time of that refinancing they then use that to circumvent the court's ruling with respect to  was that this flow of funds argument which the court allowed in denied a motion in limine e that that flow of funds argument was then used to not show that capital improvements were not made there was no testimony at and it in context the flow of funds argument with two causation the reason why mr pachter the defendant's expert testified that there was no damage when to the full funds argument he was arguing liability the cost was the lack of capital investment that caused this foreclosure but the jury didn't find that the jury found liability the jury found th lack of the business licenses and the issuance of a business license is what caused this foreclosure which caused this damage and as a result the flow of funds argument which the only thing they pulled out was the refinance and the sixty million dollars and there's millionaires and he's referring mr clapper's a financial genius and and things that permeated the trial it wasn't just the single of that it just permeated the trial and when we tried to address it we were rebuffed based on the court's prior definitive ruling that this was part of the flow funds argument and it would be a lot backtracking just a little bet one of the things that concerned us when the full funds once less than ninety days before the trial it's way too late and judges are trying to introduce wealth through the full funds argument because that's what they want to get and defense counsel represented and i was i put just baited by telephone at this  conference a motion here that we had that they had requested it and discovery we never presented it prior when we arrived for the final pretrial before the court arguing the motion in limine we presented to the court that in fact the instructions with respect to our of sight of the representation that we had responded we gave the actual and the document was in fact we had responded the court however then dismissed that and said no that's a harmless error i'm going to allow this to happen so you have this tension between wealth and the courts definitive ruling that wealth was not supposed to be introduced in defense counsel's ability to circumvent that ruling through this so called full funds argument but the jury didn't buy the full funds argument even if it was appropriate it went to live bill it was the cause for the foreclosure was the lack of investment that was the argument they found liability so if you look at the for me if you look at the verdict form it's inconsistent particularly where there was a ward of g in the adopted the foreclosure letter the foreclosure statement from  polio through their own appraisal of what the dollar amounts work as the area g but then gave nominal damages as to after and each when in fact there was these not only proof submitted making nominal damages we have worked on and worked on to get him to convince the village to issue a business license with respect off and we struggled over a period of years where f was the night a business license and finally they issued a business license and but they wouldn't issue it with respect to the remaining properties we had lost opportunities with respect to this business license are not only will no sell or purchased property but no finance company will look at you if you don't have a so called business license from the village the rolling of hostage once that license was issued as to f we were within a fairly short time period of time able to sell the property and while it was for sixt was too low and another the defense expert said it was accurate and just exactly the right price and the jury was entitled to accept the defense expert on that while adopting a different measure of damages well i think that it's rational to proceed with respect off ok that there could have been but jeep and h were in the identical position that the reason the court sided with respect to the electric ordinance made no sense it mate it's not consistent with the jury's a third area without calling into question the factual basis for that because there was evidence on both sides and they could if one measure from one area another measure for the other if if in that's cost but no damages have been proved and and the district court has to look to see whether damages were proven here the a democrat's type of proof of submitted particularly  proven so as i read this verdict the jury said no nothing more than nominal damages were proven in terms of the degree of harm to area each so all you get is a dollar well i think that the the floor funds argument the introduction of wealth the extraneous comments permeated the trial about wealth when the court in fact found and granted the motion in limine with respect above that they were able to get around  inappropriately admitted we believe that that that could damage is with respect to each if you look at the verdict as whole and if you look at that  warning punitive damages against mr beck based on liability and then also say well they thought there were no damages in fact we think that the evidence presented that the nominal damage award was inappropriate in this circumstance given the proofs they've been submitted and the reasoning provided by the court that it did the only plausible argument was that it was because there was different electric doesn't make any sense because not only mr mc was found individually and he was a policy maker expect a business license but also that the awful that the  liability in the jury found liability of the difference in electric license or go electric license doesn't have anything to do with damages damages in fact were presented and then presented to them they gonna call fashion from the same parties not like they i wanted to turn to the issue of attorney's fees the court went through a low start are determined that we are properly determined that all three  purposes of this government three cases that were consolidated for purposes of trial the facts that had to be sent to counsel th it may be true from the outside but that's like saying two houses on the same block two bungalows for example are identical in nature they may differ very much when you go inside and that is what the testimony show that area g was was neglected but they claimed it was because we stopped performing inspections they couldn't get the money to improve the properties they couldn't put people in the units and as such they walked away from the property because it was a non recourse loan and there was no adverse consequences it's all the villages fall so to say that area g n h r e done a close as nor all the differences that were presented and up eleven day time to trial were thirty some odd witnesses testif before a jury that had to listen to it all and identified the differences between areas because judge feinerman admittedly didn't put a whole lot of thought into it but he did say the evidence was received differently for each property and he had agreed with our position that it wasn't the different so the jury heard that all this litigation like i said began when we filed the first case in state court that state court action was then remained by judge normal back to prosecutor webster area which we had no problem with the the village or the jury heard all about this electoral ordinance and they heard probably well more than they should have about the select ward it's which simply called for an upgrade from sixty to one hundred amp  service on a change of occupancy that was talked about at length as if that ordinance was inactive specifically to target dawran creek to drive them out of business that didn't apply to area so the jury heard countless  testimony about that brother mundine issue that turned out to be perhaps the reason why the jury awarded the way they did and there is some evidence that the village gave an extension of time to a competitor andrew brown to bring his properties up to the electric ordinance when george creek was not given that type of extension they didn't ask for it they just said we're not going to do it again there was no interested buyer identified for area age no one said he you know when i want to buy areas she engaged she was only g and so the jury heard testimony from mr clapper that he had a friend in michigan who was ready to buy this property and he was scared off because the village you know was so mean to him and he didn't want to do business with them i mean that's really what it was so there was all types of reasons why the jury may have awarded for only g again we don't know how to write that that number which dovetails into my argument that that number may have very well included prejudgment interest in any confusion in that regard should be held against the party requesting pre judgment interest i want to talk about the pre two thousand and five documents only because i was involved in that back in two thousand and eight with measure judge shanker when i said wait a minute these requests are too broad let's limit it from two thousand and five to the president measure your set find requests for documents that predate two thousand and five are out you can request anything from zero five to the present there's nothing that said that the parties can't disclose documents that predate two thousand and five and that's what we did and  did as well i was given a ten thousand dollar docket ten thousand page document dump in two thousand and eight saying you know here's everything and included documents that went back to one thousand nine hundred nine so what put this is really about is that we had to present a flow of funds i mean that's how we attack damages this isn't a personal injury suit or a weight loss claim i mean this was where the money go and that was what we had to do to defend ourselves so liability aside if the jury which they did we need to attach damages and that's what we did with my character who provided opinions that after he reviewed all the documents that were put before him he saw no evidence of damages and this is where the money went so to suggest that also we didn't dispute that there prevailing parties that was obviously admitted in our briefs there's no dispute regarding number of hours the attorney really fee and we didn't argue that every g s award was nominal there's all kinds of arguing the brief that we said that we didn't argue that we should be reduced more than what judge finally did but in this case he appropriately reduced based on the overall degree of success which in this case was seven point six percent of their claims look at page twenty four of my cross appeal where i create a table which outlines how they did what they received in comparison what they requested twenty point five million they got two million change they requested hundreds of thousands of dollars in punitive damages and got six thousand dollars and there's two nominal damage reports so all those factors came into play and just kind of an also considered three for are factors which i won't get into but he found that those three factors military to strong against the word of attorney so as much as the pains me to say this i respectfully request that the court affirm the word of attorneys fees one more minute as far as the wealth of data clever if you look at the motion women he wanted to keep out things such as where he vacations who his girlfriends are in his personal tax returns all those things were not in two thousand and seven create one was a pass through three schedule e and that was permitted into evidence in fact that motion lemonade was granted in part and denied in part we were allowed to talk about the two thousand and seven tax returns and to say flow of funds mr clever is create there's no question about he's the only one that testif