the briefing but i'd like to i'm glad about that because i actually usually we say don't tell us the facts or no facts and i know the facts as you hove explain them but what i don't understand is what was the point of all of this i mean you you entered into a contract to buy these akashic cattle but you can't sell them as a kashi cattle except back to harbor and i guess so has this gone well this relationship what was supposed to happen year on or from their ranches perspective they were going to have beef that they could consume for their own benefit but also a high end niche beef program where they would sell before not marketed as she but simply marketed as you know what they call seven x beef today or read wag you but they were prohibited from using the term but they were not prohibited who would say what really happened here when we would read these facts it didn't make any sense and and i have a question here because it seems like a lot of money a lot of time and all of that has been spent to end up with a result that i guess your opponent doesn't like at least the non monetary part of it then you don't like the monetary part of it and i don't understand why it hasn't been resolved and why we have this situation where you couldn't mark you mark at this cattle as you shear have you pronounce it anyway regardless of who you bought it from and you agree to that in the court so found you not appealing that i don't know i just find it hard i know the legal issues are all over it's another briefing points you've made on that i'm just having trouble really understanding the of this i think your honor i think that where we've ended up you have to be described as we don't like the monetary parts of it and they don't like the non monetary parts of it i think we've ended up a centrally where we thought we should end up and that is we have the beam in herd as an unrestricted heard that we can sell into the market or slaughter and sell as  spears heard subsequent to that and all three herds are made up of full blooded japanese cattle the two that's correct john i mean no restrictive  their argument and yes so so the court found as a matter of law that there was no contract that governed the sale from mr beeman to my client bear ranch so once the court made that finding summary judgment heartland changed its argument to an extent and claimed well there was fraudulent inducement there was fraud in that bear ranch represented that it would abide by  rending mr beeman their contention was that the contract the two thousand and ten contract applied to that purchase from mr beaman and that's what the trial court found on summary judgment that that contract did not everybody seems to agree that they don't like the injunction although of course i'll give them a chance to answer that so what is happening now so today heart brand has disclaimed all the relief it obtained in the court  that what can you do with the beam in cattle today if this judgment were farmed as is what could you do with the beam and cattle we are free to sell the cattle sell the genetics on the open market but not as active but just as special do believe do we still cannot market them as she but but we would be able to sell them without contract restrictions so that the subsequent purchaser presumably could and i think you would market it is red wagon thank you and sell it to someone else or you could have a hamburger party at your ranch and all of that would be ok consistent with the injunction because they don't want to sale the only qualification is that if we sold the cattle into the open market without restriction any price of three thousand nine hundred dollar constructive trust exemplary damages based on equitable remedies that were the equable remedy has value if we say here the equable remedy prevented the harm so that there wasn't a damage i could see the argument being you know the damages you took my car and when you have to give the car back that does have value even if you didn't hand me dollars you handed me a car and therefore that is damages because the car is has value but if here you're saying the anticipatory harm never happened because of the injunction and therefore there isn't really a return of a car so to speak then there is no do damage equivalent to latch onto with the chapter forty one i think that's right your hon r is that the argument that that's that's one aspect of the argument i think the initial aspect is that chapter forty one requires a finding of economic damages you have got the problem that you have there first of all you district judge doing jury charges but i doubt a lot of state jury charges but either way i mean this this notion that there should have had to be a dollar that seems like an objection you should have made to the charge so  i think it's important to put that charge in context at the outset of the trial before the trial began heart brand submitted a proposed jury charge that included questions for damages related to  the fraud claim with respect to the beam and heard during the course and and going into the trial their expert had offered an opinion calculating lost profits due to this alleged fraud regarding the beam and heard so they went into the case proposing to ask a question for damages and they went in with a damage calculation granted it was about four hundred forty thousand dollars during the course of the trial they elected not to put that evidence before the jury so their expert never testified to it the morning before their expert testified they confirmed to the trial court that they were seeking an equitable remedy enrichment of ninety million dollars then before the jury charge the judge again confirmed with them that they were seeking an unjust enrichment purely equitable remedy at that point so then the question is do we an obligation to object and insist that one they put evidence into the record of damages or to that the effect of their strategic decision not to put that evidence before the jury and not to put that question to the jury do we have an obligation to object to that and explain to them the strip implications of that strategy we don't think we do we think that is a choice they had to make and we think that if they had wanted to put that question to the jury at that point they wouldn't have been able to because they had not listed the testimony from their expert that they were lost damages but you're in i understand the argument i guess what i'm saying is do we even have to this sounds like a fairly you know involved question of texas law which we as a federal court certainly are competent to do but we try not to run around making new law for texas if we can help it as exciting as that may be and so aren't we able to if we embrace your other argument get to the same place which is where we're going to unjustly enriched because we were prevented from being unjustly enriched by the injunction know i think that's correct that the exercise that the trial court undertook in crafting the equitable remedy with respect to the beam and heard was to prevent injury and so he did that by giving harper and the opportunity to buy back those cattle and they disclaimed that opportunity so today we hold those cattle without restriction but that's due to the  instead the district judge ordered ninety million dollars in unjust enrichment then there would have been at least an argument that there's damages to tack onto i know you still would have said that could relate but then we would have to decide just the phrase equitable relief knock out chapter forty one altogether even if there's a ninety million dollars judgment which i think is a higher hurdle to me to say well ninety million dollars isn't really money you know kind of equitable and then you know i do think it's significant that that ninety million section forty one point zero zero eight says the greater of economic damages twice economic damages or two hundred thousand dollars and that economic damages is defined in chapter forty one as compensatory damages intended to compensate the claimant for peculiar loss so even the twenty three million is not an evidence of their peculiar that it would be the two hundred thousand cat i think what i'd like to leave here at the of my time is to point the court to wal mart verse for today and obviously that's where the texas supreme court answered the two certified questions from this court regarding application of chapter forty one and significantly i think those are the same two questions that are at issue here does chapter forty one apply or is there an exception there was an exception for the texas up thomas react in civil penalties here it's an exception for the common law and what the court the texas supreme court held was that chapter forty one is the public policy of texas and in applies to any action for damages even if it's an action just for exemplary damages so i think there's no doubt that it applies in this instance then the question is is there an exception to section forty one zero zero four is legal bar to recovering exemplary damages without a finding of damages other than nominal damages an exception i think that's what the court in walmart versus forte looked to and it said the purpose of the statue is to restrict and structure recovery of exemplary damages in texas and so we're not going to read an exception that isn't already in the text and i think the texas supreme court would reach the same conclusion here i want to ask you very quickly about attorney's fees if we assume argue endo that we would have from the determination on the breach of contract which would give rise to the attorney's fees and that attorney's fees is a matter of discretion for the court given these various factors what is the problem is the because they did require segregation so is the problem that they lost on a bunch of contract claims too and so you shouldn't give them this much on this one one that this one little one that they want or what is the real problem with a three point two i'm sure they spent it so that in the problem what's the problem this year on or is that the relief they were cover or received as a result of that doesn't warrant a three point two million dollar award of attorney's fees because the results of the results obtained they obtained the return of the cattle which they then disclaimed and said we don't want the cattle back and so at the end of the day they really got nothing they didn't even see the hundred dollars annual fee that they said we were supposed to pay but didn't and so having received no benefit of this suit we think an award of three point two million dollars  good morning your honour's may please the court jason powers here for the defendants our grand beef mr ronald beeman and the american association i'd like to begin on the last point that mr zucker addressed the attorneys fees i think mister zucker's description doesn't capture everything that happened here judge costa obviously gave a lot of attention to the attorneys fees issue there was extensive briefing on it literally hundreds of pages of support  record with respect to it we had cut back our fees to segregate the initial step he ordered us to go back and resegregate in a different fashion we reduced our request by about twenty five percent at that point with one additional round of briefing what was your actual total bill if you will if i recall it was on the order of five million dollars your honor ok this is still a pretty high percentage of it for losing a good bit of the contract claims your honor i think the issue was that all of the cases that bear ranch describes here on what is the measure of success all these cases are cases in which the plaintiff in a civil rights act case primarily is held to the standard of have they changed the relationship between the parties  have they gotten some of the benefit that was sought so what benefit was stopped on the contractual claims the important thing to remember and below is that we were the defendants we did not bring this action and we've got a contractual remedy that says that if we are to enforce the contract that we are to get all of our attorney's fees incurred in forcing the contract when bear ranch started this fight their purpose was to destroy the contract they had a variety of different theories to get there they claim that the contract violated antitrust law they claimed it was procured by fraud they claimed that we reached it they claim that it didn't apply to offspring so however they slice it there were a lot of different ways in which they were trying to do the contract the goal set out by the attorneys f contract and no matter how baryons thinks we did on the fraud claims there is no question that on the issue of preserving the contract we pitched a shutout we defeated the antitrust claim it was abandoned we defeated the fraud allegations with the jury the breach allegations never went anywhere so the contract was preserved and our rights to keep the herd under control was preserved the only thank you i just claim the only relief you got i disagree with that your honor in fact part of what i think the goal here that mr zucker describes is not just a matter of getting the cattle our goal was to keep the cattle under our control the goal of this contract your honor it asked mr zucker about that the goal of this contract from our perspective was to get a supply of beef that would be available for our system to involve producers in our program to accelerate the amount of acreage to feed the ability to produce cattle and to get them available for us to generate pace so it had everything gone smoothly and you all stayed friends and all that what was your client's vision of what would happen was it that berry and she would develop these cattle and then sell them back to you all and then you would sell them to restaurants to be listed on the menu as aca that's correct so that's where the name would come up that's right you're ok our goal was to get to a point where we would have more supply of  we have a special kind of cattle it's got a special kind of genetic background it has a wonderful flavor profile and because we are the ones who have that we are in a position to to make you know to exploit that value because the contract was preserved and because the cattle that are under the two thousand and ten contract remain under that contract today we hope the bear ranch at some point will begin to start selling us cattle the way they're supposed to the way they agreed to in the original code why can't they do it under the injunction of the court or is that only on the beam and on the beam and they have a different set of rules but on the harper and the high plains still under the contract to turn contract they are exactly as we have a rich but nothing's happening under that at this point beringia is continuing to withhold cattle from us but at this point if they if they just to continue i mean well despite the legal issues presented to us but to me this just really defies logic that this much effort and and the business relationship has been zero for anybody i don't get that i mean i was a litigator for many years and i know you had to also look at in addition to you know fulfilling your legal obligations just the overall the client and i'm dismissing that hearing from both sides but again that's if i were the trip if i were trying to judge in this and i'm sure the trial judge did i would push that a little harder but we'll decide the legal questions but i just throw that out there and that your hon r i will say that we have shared that frustration from the beginning the notion that they are ranch where these cattle for some purpose for them what our program was designed to accomplish that their witnesses agreed in testimony they understood what the program was designed to accomplish we have been trying to get them to get on board why they continue to fight it i just don't know the court asked about whether the equitable remedy is preventing harm and let me  address that question the constructive trust that judge cost ordered ordered reconvince of those cattle would be available if we wanted to go get all those cattle we were entitled to do so the value of the cattle the time that conventions ordered is established it's set whether brand chooses to take them or chooses not to take them is something like whether we collect a money judgment or not the exemplary damages don't depend on whether after the judgment is established we choose to exercise the remedy or take advantage of the remedy but here's the important part that injunction did not prevent the unjust enrichment the unjust enrichment was mr coke and getting those cattle away from mr beeman and getting them out of the harbor in system he has the asset on his ranch he has unjustly enriched by the fact that he has that valuable asset on his ranch why don't know they're valuable assets eating a lot of you know pay whatever and there were you know grass and there happened to care for them and i mean it's kind of sting them a lot it's not like they're sitting around with a nice gold statue they can statue they can look at so i don't know that this is quite accurate and again it seems to me though that the court could have a great with you and i wanted some amount of money and jester in richmond but instead did not find that to be the case didn't award twenty three million nineteen million or even five cents instead said great you want the cattle back here they are but you do have to pay something for the fact that and even the jury which didn't seem to like their ranch found that they had in fact spent money raising this cattle which is obvious so i'm still struggling with how they were unjustly enriched by having a bunch of cows eating grass that they can't sell a sack and they you won't take back that you're so mad that they grab it you won't take back and you're out of the actually zucker said they have the right to sell them they can sell them at this point assuming i don't know why they haven't sold them to be honest i've been waiting to hear they've done so but they have chosen not to at this point for whatever reason they have cattle that no one disagrees are valuable cows and let me just address that point because you may be wondering why it is that we didn't go and take these cattle when they were offered to us by the court when we were at trial our brand was seeking findings that would have allowed us to reacquire all of the aka cattle that bear ranch possessed and we had sought to refining on different segments of the cattle depending on the different remedies that were available to us but because the court had decided that the two thousand and ten contract was not a framework contract that governs the entire herd as we believed we had to do it by way of the fraud allegations the jury found fraud as to the beam and cattle which was the largest segment of them but did not find it asked of the twin wood and spears purchases and that has a really important impact because when we are trying to get the cattle back we have no remedy that allows us to retain the twin wood and spears cattle so once that's happened buying the two large segments the harbor and cattle and the beam and cattle back at a cost of about twelve million dollars would have been frankly a disastrous move it would have depleted hard bran's capital it would not have allowed us to preserve control over our genetics the way with originally intended because the twin would spears cattle would remain out there those twin would spears cattle were enough they were enough in number to give  ranch a breeding nucleus of cattle with which they could duplicate our offering and with which they could compete against us and if we paid them twelve million dollars to get all those cattle that frankly we didn't need because we could produce more we've already got so we don't need those extra cattle we pay them twelve million dollars deplete our capital increase theirs and sadly for from our perspective we would not even be able to use those cattle in our meat program there's a reason for that has a different philosophy about how they'd like to produce these cattle they do not intend for them to be something that would be more palatable to an american consumer they feed the longer because they feed the longer they become more fatty and they are something that would be usable in our market focus as a result we can't use them in our certified program our certified program is a u s d a defined program it's got a very specific age of the cattle that you have to slaughter by so we can't use their cattle for meat we can't use their cattle for genetics live already got the genetics and we can't eat jack them from competing against us using our own genetic store so as a result of that we chose not to buy the cattle at that point and just line their pockets the reality is that as the remedies that have been available to us have shifted over time sometimes at the summary judgment stage at the verdict stage at the court's equitable remedies decisions after a verdict we have tried to take whatever option was available to us and make the best choice that would allow us to preserve as much of our business model as we can within the capital constraints the business faces and no question the capital constraints have been aggravated by mr coke litigation campaign against us we have tried consistently to preserve as much of the value of this business and this asset as we can that's the reason why we approached that issue that way the the hope from our perspective is that a remained on the constructive trust issue will allow us to make this remedy more effective by bringing that price down to a point where harper and stands a better chance of recovering and explain a little neither side wants us to affirm and fall i mean that would be accurate if we simply our opinion was we affirm period both sides would be upset that's right run and i'm going to support case you don't like the way the court approach the what you perceive is unjust enrichment that's right you're on and instead you want the money yes well money we certainly would be happy to take money your honor in fact if the court decided that were an easier way to handle it below we think that would be perfectly fine how would you if you're not getting money how would you rewrite that construct of trust  and a different way the alternative unconstructive trust is simply to reduce the number to accord with the evidence so what happened was judge cost to set a constructive trust threshold we've been referring to it as of three thousand seven hundred ninety six dollars per head the price bear ranch realizes from selling an animal below that price variance keeps everything above that figure we would take anything that goes above the threshold but i don't think it's disputed in any material way that that number is well by dividing the jury's award on the cost to acquire produce and maintain the cattle that were alive in two thousand and fourteen it took that he divided up by the number of cattle there were in two thousand and fourteen and said that number  will just apply going forward the problem with that is that the cattle that were alive in two thousand and fourteen included some very expensive breeding cattle that had been purchased for mr beeman and producing cattle is kind of like writing a book you know the first copy of the book takes a year of sweat and tears the second copy takes two dollars a paper in ink that's what's going on with bear ranch they had five thousand dollar cows and ten thousand dollars bulls that used to produce these cattle the calves that hit the ground cost about six hundred or seven hundred dollars to produce so if baryons gets to continue producing calves ad infinitum at about seven hundred dollars and keep the next three thousand dollars in profit they can have a very healthy business they can make lots and lots of money and we won't ever see a dime if that number was dropped down to a more realistic number that accorded with the evidence on what production costs actually are harper and would be in a much better position and would have a chance to participate in whatever revenues ranch gets by exploiting our genetics but that is you're saying they're not really exploiting the genetics because you're saying you don't like the way they're raising them they're not allowed to call matthew she and so i'm back to i still find this relationship from the start very very puzzling which may explain why you are all your clients are paying lawyers instead of working with each other to figure out a business solution because from the start i guess  just passing in and i do some i sound the same contract because it's just common sense and i think that's an excellent description of your honor because we had a very specific vision of the program that was communicated to bear ranch and as we learned in discovery  and prove at trial they had an entirely different vision of what they were going to do it makes it very difficult for us to negotiate a business aleutian because we're running two different kinds of businesses but i think that if you know if we can get to a point where our are attorneys fees or old place perhaps perhaps the opportunity for it i mean there you go my concern is sending it back to the district court on the constructive trust when the district court is clearly this wasn't something that like the judge walked in and said i don't know any about this case tell me about it made a decision on two minutes and and walk down this judge was immersed in this case forever stayed on it after he got on the record cetera and so i think he's done the best satisfied as a former trial judge or in this case where it's clear that the trial judge has given his best effort and certainly not blowing her ignore the facts or whatever i understand that completely your honor in fact in decision on this question he mentioned that he thought that he could have had another hearing to take more evidence on the cost issues but he was concerned that the ever changing nature of a live asset meant that he couldn't do any better as we proposed the judge cost and i think this is something that if we go back we would be working again a simple alternative can be advanced we can maintain the virtues of averaging that baronage advocates in their papers we could have one average that applies to those cattle that were alive in two thousand and fourteen which that advisory verdict apply and a separate average that applied to cattle that were born since then i think we can do this just based on the evidence that is already in the record we would need to have more evidence that the judge a happy to give it to him but i think that can be done quickly and easily and without about the cost of caring for the cattle she said producing which i assume is the cattle the calf is born but then the calf starts eating an eating vet's and needing a place to i know one thing about raising cattle i'm just assuming all of this living entity just is expensive and so why are you not getting credit for that you're saying six hundred dollars for the calf to be born but then the ca to eat and do other things absolutely your honor and that's why the range of those that was presented at trial included cattle were sold at the weaning stage after they leave their mother or at the fed stage after their federative slaughter those figures rose to notion is that the money you're making is unjust but there's some degree in the beeman sale as reimagined by you all and found by the jury there's some notion that they were taught to enrichment so you're kind of saying well if they get anything that's unjust but i'm thinking the end just is that different and not just that they may have benefited from raising these counts because they have the time and effort and all of that but that they did so unjustly and that's on that spirit of not agreeing to follow the aca you she rules and all that it's not just benefiting at all if the fraud  not happened they would not have these cattle at all so although we don't have a problem with them recovering the cost they have incurred to raise those cattle and keep them any profit whatsoever frankly is allowing them to benefit from their fraud but that's a benefit the bargain damages remedy that's a little bit different from and just because to me you're just taking out the word unjust and you're saying enrichment i disagree with that your honor because he the transaction would not have occurred but for the fraud and so holding the cattle at all i think is something that is unjust and violates the law and is remediable as the restatement provides but the the the notion that they would be entitled to some profit while they're getting far more than some possessing is so here you go it's back and now where does that leave us that's why we are not in a position to pay for their cattle but if they are going to continue to develop them and keep them that's something they shouldn't be making any profit on and if the result of this is that they don't keep profit and they let those cattle age out and get used in their program and they don't develop them and they don't sell them in competition with us that's fine with us that gives us the best remedy that we can get and  your honor i think we're equally as puzzled as to why we're still here because the remedies offered are crafted by the trial court gave heart brand what they sought at trial they wanted  the herd of cattle they age but each spring we have a new crop of calves so for mr powers to say we have no cattle that they could use in their program i think overlooks the fact that there are hundreds of calves born each spring that they could have bought back or you know heifers who would have borne the cattle that they then could have used in their program so the short answer is that they rejected the one thing they asked for as soon as inches able to retain the twin would spears cattle then that would undermine their buyback of the beam and cattle and so i'm going to keep him under an injunction and we could he impose the very contractor strict on those cattle but once they disclaimed the fraud remedy and refused to buy back those cattle now we have thousands of unrestricted beeman cattle that we can sell into the market but had they paid in acquired the are those cattle back we would have been left with several hundred twin with spears heard under the very contract restrictions that they wanted instead they disclaimed the remedy for the fraud and the beam cattle and so now we have thousands of unrestricted with a few hundred that are under this injunction which is why we've asked that the injunction be vacated but to address the point about the buyback price  i think that judge cost just said he did the very best he could and what he did was he looked to the jury's number and the jury's number was a compromise between the two parties numbers at trial th brands expert gave a number of ten to eleven million dollars to buy back all the cattle that was the cost to acquire the cattle raise the cattle maintain the cattle bear ranch is expert had a number on the order of fifteen or sixteen million and the jury picked a number in between those with respect to the beam and cattle so we think sending it back after the trial court has said it's done the very best it can and it split the difference on the evidence before it we don't think that makes any sense and it's not necessary if we were to infirm and pull what happens going forward you know other than writing a check for whatever the number is well what else happens so  with respect to any heart brand cattle bear ranch has to register those cattle with the aku she association and pay i think it's a twenty one dollar annual fee with respect to each cow a hundred dollars membership fee each year with respect to the beam in cattle we can slaughter them and use them in our beef business or we could sell them on the open market and then we just return whatever is  the other thirty thirty nine hundred and then with the twin would spears cattle they would i guess fall under the same bucket as the harper and cattle they would be under the contractor's restrictions because of the court's injunction the in my last few seconds i guess i would return to this idea that the unjust enrichment that the remedy the court crafted prevented the injury it said you can have the asset back the asset is a living asset a breeding asset it's not wrecked you can have some of the assets back they disclaimed that but regardless the there is no evidence before in the record of any actual economic damages as defined in chapter forty one and we think that wal mart vs forte says chapter forty one would absolutely apply in this case and there is no exception but even if there is an exception