reports simply do not apply e o d when there are no contract or warranty claims to assert and the missouri supreme court has never extended yelled e to either another negligent or intentional misrepresentation claim yet that's what the district court did here affective denying the victim a fraud any avenue to recover don had no contract claim to assert because r c i did not breach the licenses which merely license done the right to use technology in a certain geographical area if you later purchased the system from defend question can you hear me i can yes or if i have just a question in them in some states mostly states that operate under the field code they drop distinction between a fraud action with sh lies in contract and a deceit action which lies in tort now many of the common law jurisdictions merge the two concepts now in at least one field code state they've gone down the path where they've said they will fraud being a contract claimant being an offense in contract and basically an action to set aside the contract that the economic was doctored might apply but no one's ever actually applied the economic laws doctors i can see they've also not the missouri supreme court has ever extended to the negligent as rep either but i think there is a distinction in those other jurisdictions of how they recognize that frogs claim if it only goes to the to the performance of the contract that's as a distinction between those that are simply to induce the contract in the st place duns claim is different because he's not claiming that that r c i failed to perform on their license agreements not at all you can't say that they so as i was saying that dunn doesn't have a contract claim for damages he doesn't it can't bring a contract claim for specific performance or breach of warranty as his only remedy is an tort as this court recently held and vote st are missouri courts ha never extended the economic loss doctrine beyond the doctrines traditional moorings is policing the boundaries between warranty and negligence and folks the court this court upheld the decision by the district court to not extend the l t to an intentional to contract protect themselves a federal court's role in diversity cases and suing this one terp a straight state law not passionate and hear the district court erred by extending the l d n ways missouri courts have never done or likely are would never do and here are just in despite the district court referring to this as a contract dispute mr dunn never has brought a contract claim either here in missouri or in iowa is there a formation dispute here that would rip would lloyd contract or is it is is it all l  that and none of those representations which are listed on page forty nine dollars fifty cents of our briefing was even referenced in the contract so could have been incorporated into the contract and also mr dunn asserts damages outside of the contract and not just the way of last time but if you look at compass bank which the defendants claim as in this case and footnote three of that case they recognize that punitive damages can be considered a claim for damages outside the contract thomas bank didn't apply it say you know you can't disclaim fraud in the inducement of a contract that's that's not something you can do and so the extent that disclaimed all warranties was an attempt to just claim fraud that that can't be cognisant here let me an action where he brought the iowa claims and then only asserted against some parties and some claims against one party he was brought in as a defendant and under iowa law there are no compulsory counter claims against a nonparty and the same thing with rule thirty  also the standard proofs are lower in missouri than in iowa and so damages can't be precluded either because the standard for proving damages less in missouri than iowa and finally a point that neither the district neither my opponents addressed conspiracy claim should be able to go for the missouri because that was not considered a compulsory claim in iowa because the court did not have jurisdiction over other parties that dunn was not required to join and those parties were necessary to resolve mr dunn's claim it's a little bit speak again jury is that of your honor yes ok thank you one of the instructions that the jury one of the elements of the jury was instructed they had to find for a negligent misrepresentation claim either as affirmative defense or as in a permanent claim was that the representation the misrepresentation the r c i made was the cause of mr dunn damage and that is jury instruction number five at a didn't eighty five indeed when you look at the verdict form the jury in response to question number two affirmatively said that mr dunn prove his claim a fraudulent misrepresentation by clear and convincing evidence so we must assume in fact the court is required to presume that the jury found damage the jury finding on punitive damages also supports the jury's finding that there was damage of some type in this case the punitive damages instruction require the jury to find that r t i caused quote actual damage to thomas done in awarding essentially negate the jury findings and to act as if they don't as the court's not that's not a permissible action for the court and it shouldn't take that opportunity  she should and shouldn't follow r c i direction which would be error in fact the evidence in the case also supports a finding of damages there was evidence not only that mr dunn paid four hundred thousand dollars which was uncontested and did not receive four hundred thousand dollars back but there was also evidence that mr dunne engaged his time and energy and unfortunately his business contacts which were damaged because of the fraud that r t i perpetrated on him and that mr dunn was those types of damage while out potentially unable to be quantified in an easy and accurate manner certainly qualify as the image that the jury could have and likely did  ultimately mr dunn had a jury finding that r c i acted fraudulently willful and wanton manner but he was not awarded the uncontested four hundred thousand dollars that that he had paid brief opinions from the nd th and th circuit which all analyzed that issue of an increase in the damages award in the context of a case like this where there was no question about the amount of damage interpretation of the jury instruction is that the court told the jury to if you fund damages it must be four hundred thousand dollars i think that if you look at the jury instructions the fact that the jury instruction next to the amount of compensatory damages noted four hundred thousand dollars but the amount mr dunn had paid in was never returned that that that could be interpretation that that is the amount they should be considering says the amount they can consider but it also gives them seems to give them the discretion to determine what amount he's in time to yes your honor i think the general law is that often juries have discretion in the amount that they may award depending on the factual circumstances of the case most often there are contests contests to the amount of damages here that happens not to be the case so the jury instructions themselves tell the jury what the law is not what the facts are with regard to what they heard it's up to the jury to look at the facts and apply it to the law and here there's no evidence that there was any contest about the four hundred thousand dollars r c i hasn't put forth any evidence that that money was returned or that mr dunn received any benefit from the licenses in fact he was damaged in his business in his business relationship overall couldn't the jury have to have found those sort of an indefinable damages but not the four hundred thousand dollars in other words if if it's true that there are other damages he suffered then doesn't that counter your argument that he automatically should get to four hundred thousand just because the jury found in his favor on the claim yes your honor we we do believe that the four hundred thousand was uncontested and therefore that but it seems to me that wouldn't still be it seems that given the jury instructions that you have kind of gone through it with chief judge smith that while the dollar amounts that he paid out may be contested still trying to figure out based on your overall argument how damages are automatically four one hundred thousand yes your honor i think there's two answers to that the st is that for this type of claim which is a claim of fraud in the inducement the damages that were paid for the fraudulent inducement into the to enter the contract are necessarily the type of damages that are would be awarded if the jury finds liability which they did here but secondly even if there is some question about whether those particular damages were found or whether the jury based its finding of damage on other types of damages that simply mean that the case should be remanded for the district court to determine mr dunn's equitable claims which it declined to do and the real hunger you know when there's an argument that's presented that says that there are you know the four hundred thousand dollars was obviously contended it contested in closing argument that's just just a fact ray it's all there's a question that's presented to the jury the jury reaches a decision and no point when this jury comes in is there any discussion that we have an internally inconsistent verdict there's no discussion about judgment and it will be there is no question about correcting the verdict to reflect the actual damages that have been proven in the verdicts against the great way to the evidence all this happens in a motion that takes place days later when you're sitting in front of a jury and that jury still had the ability to go out and deliberate right and if you look at these instructions and you look at this verdict form the jury followed precisely each of the jury directives right if we end up in a place where you don't like it the other side doesn't like it you've got a problem with the verdict and it looks to me like you're arguing really plain old fashioned you're arguing that this thing is internally inconsistent and we're going to have all kind of constitutional problems on at a drip piece i think so we're left with the jury verdicts inconsistent and nobody's really ever made that argument honor i think that's because our alternative argument is that we have two arguments st that we believe that the not only the amount of the four hundred dollars but the fact of the four hundred and one dollars contested but to the extent that the court does not agree with us there then there is a way to read the jury verdict as consistent and that would be that the jury found as judge telling mentioned other types of damages that were not either  modified or that the jury could not allocate the damages whether they be four hundred thousand dollars or some other damage appropriately because there were other entities and individuals involved which is part of the reason that mr dunn initially tried to bring this case in missouri with all of the appropriate entities involved and in that case then the this case would require remain to the district court so that it consider can consider mr dunn equitable claim because iowa law is very clear that if there are damages under a legal claim that are not either quantifiable or appropriately able to be awarded then equity is able to take care of those claims and that the legal claim is not does not preclude a claim and equity in fact iowa law goes so far as to say that even where an individual recovers one hundred percent of the damages that they seek under the legal claim that they can still see precision under iowa law because that is a different type of remedy so to the if the court disagreed with the argument about increasing the damages that necessarily means that the case has to be remanded for consideration say that but on the back of the matter here is that we have a case where zero dollars but that's the five or damages compensatory damages on a fraud claim punitive damages under iowa law and the u s constitution cannot follow with that be the idea being compensatory damages or at least injury is an element of the claim of fraud i have not seen any case that was raised by mr constitutionally speaking this should not stand i understand your your argument through what you're calling the guidepost but somehow i can't shake the idea that this is really have of what the compensatory was requested if we started a baseline of the four hundred thousand dollars that was the amount paid out it's half of that sewer we're not talking  multiple multiple i wrote that and i realize that that's not one of the guidepost but that's something sort of tick to consider in this kind of i think you're right i think the jury looked at it and they may have thought two hundred thousand and it would have made our it from my visual but the damages they had compensatory punitive sort of you need to find some damages and started didn't make it into a stepping stone for the jury in other words find compensatory and then if that then punitive that was it sort of long damages to in together and i remembering that accurately you're remembering a pretty accurately just kelly that said that you can consider punitive damages and then it facts and i believe that the jury followed what was given to them and when you find zero dollars in compensatory that law by operation of law means no matter what the jury wants to do you want to get it is it should be thrown out and so that's to your question  that harm was shown compensable harm but it didn't have to be put it didn't have to have a darpa dollar figure on it in order to be a finding of here did not make that finding of actual harm necessarily by the euro and we cannot substitute that is getting a little bit better we cannot substitute our thoughts on what can be done in addition to zero or they made no finding of actual damages they had to make a finding of any dollar now and again there's a case in iowa that there's a nominal damage award that would be ok we don't even have a dollar here so i go since a year which i'll distinguish very quickly  presume that they followed the instructions right because if you look at what the elements are there's an element that requires the proving of a financial damage ray and sold the debate really is about well is there a number that you can put on it or not in the street was never fully instructed in my view in the sense that nobody ever instructed them that if you find the elements have been proven but cannot determine actual was that you can award nominal damages w are usually one dollar i mean which is kind of the way i see injuries instructive well it's a way out he's instructed them and that's the way they've been instructed in the board's read work forever i mean i'm i'm just having a hard time reconciling what that we're told but it does appear to me that you can logically conclude that had they been aware of the ability to award a nominal damage they would have because i can't explain two hundred thousand any other way and i see my time is up may i respond to that point judge so the that there is there's a this idea nominal damages there was no request after to amend to make it a dollar there was none of these requests to actually get that before the court below so we don't have that you're on our and i think that it's important to note that you know mr waldron didn't address the federal common law on the receipt of cotton i think that when you look at the briefing it's clear that ephedra common law applies in held well your honor i would say two things to that number one i would start by saying that if iowa law were to apply the result in this case isn't going to change iowa law  situation here there are mix questions and that somebody has got to look at the record of the iowa courts in order to make this decision it shouldn't that be a trial judge not your honor i would say that number one just central factional nexus and this and between these two cases both of these cases clearly are alleging that our you know both of these cast pieces deal with the issue of the you know sales of this p system and the license agreements that came out of that sales pitch to the two done with well i have a question about that you've got r c i and i think it's danley and kersey who are they always travel to damages and so even there you have different parties that you know john is going after here and you have these other companies that as you say you know are sort of nd hand parties to the  agreements that were reached that damages that plaintiff seeks are the same damages across the board as you know your so your view is that because the damages are the same that that collapses with  damages are exactly the same damages that would be sought in missouri and so we're trying to apply race to cottage to prevent plaintiff from having gone forward through a trial in iowa on the claims for the same damages  receiving zero dollars in compensatory damages and then suing additional defendants in missouri for those same damages and so you know what our argument is is that there is pretty much we in these parties because again when you link that when you so without further questions on their race your car question i would like to turn to the economic loss doctor and briefly since my time is running a little bit short and i want to give everybody a chance to ask me questions on that as well at losses that sounding contract and this is a principle that we have seen developing in missouri law and is consistently been developing to apply the economic laws doctrine outside of  and and read you admit that this circumstance is new don't bet there is not a direct missouri supreme court case that we can point to and say that you know the missouri supreme court has said that the economic loss doctor and will apply in this opinion on how do you since you are running a little short on time only interrupt you with a couple questions about when you're talking about in and you're talking about some of the statements that were alleged to have been made to induce mr dunne to enter this license agreement which is which is a slightly different type of contract i think of putting that aside you know things like oh there's there's you know a line of people behind you who want to purchase these if you don't do it now you're out of luck or this is been a successful system in these different areas those kinds of misrepresentations right and your honor i understand where you're saying that it's you know sort of a critique contract versus a contract i read say two things number one is are courts that found that where you take those  at least the example of there's other people who line to sign up if you don't do this today or tomorrow you're going to be out of luck i don't think that's anywhere in the license a great missile let's talk about something like that standing alone is that separate and apart from the contract such that it would not fall within the economic loss doctrine well again that what that promise is talking about is introducing them into the contract based on their in a  market you know for these services again there is a warranty in the contract that i think addresses that and so that the damages are going to be the same it always again goes back to the fact that what they're the saying is that you know they're not happy with this acknowledges that the supreme court in missouri has not ruled on that yet but i don't think that it does anything to explain away or or eliminate the line of cases that we've pointed to in missouri that we think support something that the court should have considered because them at the amount of damages that forty thousand dollars a different measure of damages when it's to rescind the contract which iowa law and federal law says you have a right to do whenever you've been fraud and that's been found and so can we will take the kids who you guys might consider the arguments that we've heard this morning in conjunction with the briefing and read your decision in due course come to be excused