this case is really a commercial dispute between two sophisticated parties about the interpretation of a contractual agreement between them our position is that it isn't a case that's appropriate for federal damages and certainly not on s land rover dealer among other brands my client jaguar land rover is the u s distributor of jaguar land rover vehicles in the united states they have a contractual relationship between them they had a dispute about an incentive program called business builder audubon found a complaint with the texas department of motor vehicles we do have all that background this case came through to the district court ultimately on a d t p a claim a deck the texas deceptive trade practices claim really the question on appeal really focuses largely around the trouble damages issue our position is that under the law in texas there is a very high standard to demonstrate an entitlement to treble damages and that is knowingly that the here that jaguar land rover had to have an actual awareness that what it was doing was unfair or deceptive at the time it took the action is that the only issue on appeal from your view is autobahn it is still our position that number one autobahn hadn't exhausted at the time summary judgment was filed and two the reason of the exhaustion issue is still of relevance to us in the case is that the district court one of the reasons the supporting the finding of trouble damages was that jaguar land rover continued to hold these fines after the texas board had ruled our point was the texas border ruling was not final because audubon hadn't district court for really a finding about whether treble damages are appropriate because we have given back to the principal the three hundred seventy thousand dollars we've given back the texas court of appeals has affirmed the board ruling we don't claim any entitled them and three hundred seventeen thousand so the texas from court has said that jaguar land rover has to have said to itself at some point i know what i'm doing is wrong and i'm going to proceed anyway that's what the texas for important st paul case says is the standard for knowingly violating the d they were there have been other audits with the same deal or yes on the same program or different problem same program yes you are getting back to the to the exhaustion issue  the fact that that's been cured can't retroactively work here can it i mean you've got to you've got to hear a subaru case and an exhaustion under texas law as jurisdictional so even if both sides agree i'm asking you this and you can answer either way you want but even though both sides may agree i'm not sure that we're in the caution that we can issue a marriage ruling rather than sending it back to to to judge mcbride to deal with with exhaustion your honor i agree with you i believe that while the facts have caught up with us a little  workers know you are because there was no in our our position is that there was no record so there was no evidence put it on the knowingly standard the only evidence put in on summary judgment was a board decision remain with me for the purposes of meeting the was completely invalid and that our conduct after the board proceeding was a basis for awarding couple damages so that's what he found was one of his the bases if he was incorrect about exhaustion and in fact we were correct only thing that really is of consequence in the case we've given back the three hundred seventeen thousand dollars we don't claim in a title to make we've lost we've lost before the texas board it went up on appeal that was affirmed and that's the end of that really our issue is the three hundred honour's to it starts at page forty five of the record which are the findings of fact in conclusions of law of the board in that underlying case there is not a single one of them that could be read to say that we knowingly did anything the board simply didn't address the issue of whether we knowingly did or didn't do anything the only thing that even comes close to touching on fairness is the board did find that we violated section two three zero one point four six eight of the texas code  by through the charge back in that it was unfair in an equitable so the board did find that was unfair inequitable i think is a very key point here and really tie spec into our exhaustion argument autobahn abandoned that for sixty eight arguments on appeal to the texas court of appeals so the only thing in the record from the board proceeding that said anything about our conduct being unfair was abandoned by audubon appeal so if we look back at the record and you can scour the administrative decision for any evidence that our conduct was knowing the only thing that said unfair was the four sixty eight violation audubon conceded on appeal as did the state of texas that the board was incorrect to find that we violated for sixty eight so that up on  we argue as you know from our briefs and i don't want to repeat myself the judge brought apply the in an incorrect summary judgment standard so he looked at the evidence and what he said is that quote the most reasonable inference to be drawn from the summary judgment record is that jaguar knew that its conduct was false except so arguments is that is not an appropriate standard for summary judgment any inference in the case should be drawn in favor of the nonmoving part so the fact that there could be inferences drawn really judgement bride is acknowledg here that based on the evidence before him really which was just the board decision there really isn't any other substantive evidence other than jaguar land rover had put in at the board a decoration from a michael stern that talks about the contract but the board decision really is the evidence before the judge he says i've looked at it and the most reasonable inference i draw from that favors autobahn a number of summary judgment are humans is that is not an appropriate standard for summary judgment that any inference should be drawn if there is some doubt in his mind  drawn in favor of jaguar land run summary judgment and then the case should be tried now that i think about it more you are there if there is not a jury demand this case it will go back before a mcbride and it would be tried before mcbride on the merits with witness testimony is our point that the case is just not one that is appropriate for summary judgment very briefly there are there is a breach of contract claim in the case is largely moot the damages on the breach of contract was three hundred seventeen thousand dollars we've paid the three hundred  seventeen thousand dollars i would say that about three weeks ago the fifth circuit in a related case between the parties issued a decision finding that the board we had brought in a bit of breach of contract counterclaim  exhaustion is really a misnomer audubon exhausted its administrative remedies filed a complaint for the board you got a determination from their j and a got a final order from the board the argument really is that we should have awaited the conclusion of the of their appeal to the austin court of appeals that appeal is now over it's done and i submit that exhaustion argument is moot it's not a question of subject matter jurisdiction it at best it's a question of abatement whether the pending the conclusion of their appeal to the austin court of appeals well the question is whether the district court at the time it entered summary judgment was empowered to do that and i don't see that it was at that time address addressed the situation on the day the summary judgment was entered well first of all your honor i submit that the question of whether we had to await the conclusion of their appeal was more a question of abatement and they did move to abate they they are you're you're you're playing the blame game and i'm not i'm not interested in that at least right right now the question is on the day when judgment right entered summary judgment was he entitled to was he empowered to do that as of that moment given the fact that in texas exhaustion jurisdiction well yes he was because under twenty three zero one seven fifty five  as well as government code two thousand one hundred seventy six it provides that a substantial evidence appeal which is what they have taken does not affect the ability to enforce a final border and that's precisely what we were doing reusing twenty three order so twenty three zero one seven fifty five applies on its face and it says that there and they found order had had already been entered at that time yes and yes and the in fact that's what they were appealing from the final border were appealing to the austin court of appeals so was it still final even though there was an appeal yes and that's what the government code two thousand one one forty four says and that's what the government co two thousand wants one seventy six says and even more specifically that's what occupations go twenty three a one seven fifty five says says the pendency of an appeal of judicial review appeal does not affect the ability to enforce border and that's precisely what we were doing when we brought the action under twenty three zero one eight zero five so yes judgment right good have jurisdiction although i'm not even sure if question that particular issue is a question of such because trouble damages against a threshold i would point out that under this particular statute twenty three zero one eight zero five there's no requirement of even proving knowingly this suit was brought under twenty entitle to recover any remedy any remedy under the d t p s a and it requires a showing of only two things a violation under subchapter j which is what we proved twenty three zero one four sixty seven the violation found by the board is subchapter j violation and damages and once you prove those things under twenty three zero one eight zero five you're entitled to treble damages notwithstanding any other law you're entitled to any remedy  other cases like this throughout the country i don't believe so you're another dealership i don't i don't believe so we've we've tangled quite a bit with jaguar in this particular case but the records very unclear about about any other cases of this nature i'd also point out they can see that we don't have to prove that we're consumer we don't approve the work consumer we don't have to prove any sort of notice in the d t p a and likewise i think it follows we don't have to prove the knowingly element as i mentioned there thirty four other did time statutes none have this particular provision about notwithstanding any  other was an entitlement to any remedy and the reason i think reflects the legislature's view that that there's a disparate bargaining position between automotive automobile automotive dealers in the state  and and manufacturers and distributors that if you look at twenty three or one point of a one it says the person says this statute referring to the tire occupations code should be liberally construed to effectuate its purpose in the purpose is to protect automotive dealers and their consumers from potentially abusive and unfair practices by the new facts so in short we don't we don't have to prove knowingly but if we did i submit to you that that the evidence conclusively establishes that the question is not as they say in their brief from time to time whether or not they knew that they were violating the code it's not whether they knew that they were violating the d t p a the question is whether they had actual where in this which the statute says can be inferred from objective manifestations that the act or practice which here it is to charge backs constituted a false or deceptive or unfair practice and here i think unfair is the most viable prong and what what authority would they have looked to at that time to determine that the answer was yes that it was unfair practice well i think they would look to the manual and to the bulletin which combined represent the business builder contract and i think importantly judge mcbride stated and i think it's correct he said they all but acknowledged that if their exhaustion argument fails which it fail that the finest inclusions of the board support the relief that audubon osieck there would not have been ten years my question and case law that they would or could have ever looked at no your honor no no nothing like that i mean the business business bill or contract was a unique contract consisting of the of the manual and the bulletin importantly though here's judgment response said really no evidence whatsoever had nothing really responds to the board's finding of a violation in unreasonable practices they tendered papers showing that they'd appeal to the austin court of appeals or whenever any dispute about that  they tendered a declaration saying well we've now paid credited back the charge back i point out that was after three years not one year but three years and they also did so conditionally it was a conditional charge but  the summary judgment evidence summary judgment was also warranted by the evidence of their conduct three separate times at the time they took the chargeback their position before the board and their position after the board issued its final ruling all of those things i think demonstrate that had an actual awareness that the act of practice of taking and retaining the chargeback was it was unfair to charge backs of course involved there in their their complaint about our sales to leasing companies documents and they they relied upon at least in their audit they relied upon the lease contract and they said weatherly's contract show that it's leasing company that's making the delivery to the to the end user well that's just not true there supporting that contention at all and they backed off it before the board didn't rely on the lease contract at all instead they wrote they made different arguments which i'll talk about in a moment but i think the fact that they changed positions the way they did is evidence of an actual awareness that the act or practice was unfair and this this court i think reached that conclusion in the one beacon case where the insurer made some explanation at the time refused payment later change positions and said well we withheld payment because we had a we have a defensive coverage and this court held well let's take change in position that inconsistency provide some evidence of falsity or knowing knowing unfairness their argument before the board i think show a further demonstration of actual where it is because frankly those arguments were specious all the arguments to made from the board were specious both the board and the austin court of appeals held deliberate so called personal delight delivery criteria as it applied to our sales to leasing companies was unreasonable that's the word used by the often court of appeals and the board it was unreasonable unfair in other words and i think their their conduct shows that they knew that they first of all they ignored the plain language of their own contract strong contract says an approved leasing company purchasing to lease is and user could not be manager where he said well approve leasing companies means fleet leasing companies and the board found no support what for that whatsoever there wasn't anything he referred to the support of that that interpretation it was made up after the fact  an effort to support a chargeback that never should have been taken in the first place and i think that is additional evidence of awareness that there after practice was false then to top it off they relied upon a two thousand and one settlement agreement between the same two parties that settlement agreement had nothing whatsoever to do with either leasing companies and nothing whatsoever to do with end users it had to do with something entirely different involving what they called a handover policy where we hand over vehicle to a retail purchaser it had nothing to do with leasing companies had nothing to do with with anything that issue this particular case in the board noted that and i think that yet further evidence that they knew that their conduct was was unfair finally i think their conduct after the board you should it's final ruling is even additional awareness of unfairness they say that they make a big point about paying back the money well that it was three years after the fact and it was paid back with conditions but worse than that is the fact not only did they did they keep our money for that period of time but they did then brought a counter claim a counter claim see seeking still more charge backs for additional years future years based on the very same arguments that the board had already rejected and that's the that's the case the judge brought dismissed and that's the one his court affirmed about a month ago with the dismissal of those counterclaims but i think they show additional evidence of awareness practices were were unfair so assuming even assuming this court holds that we are required to prove knowingly which i don't think we were under the plain language of twenty three zero one eight zero five i submit that the evidence based on the i guess that he gave deference to him and i think that's exactly what he did he gave deference to them they found a violation of twenty three a one for sixty seven required here and stood on reasonable sale standards they to some extent their summary judgment spawns quibbled without although most of their summary judgment response was really devoted to the exhausting argument they said judge at appropriate time you can get deference to these finding them and their response coupled with the fact that we have a board findings now affirmed the get deference and all of those point to the fact that their taking and retaining the charge backs was unfair false deceptive or unfair and i think unfair is to use the applicable prong here particularly when you consider that the court of appeals found that the very same act was was unreasonable this per plying their personal deliberate criteria as applied to our sales to leasing companies the board in the court of appeal said it's it's unreasonable and i submit that that they knew that by virtue of the specious arguments they were making before the board finally bridge contract i don't think the court even needs to address that because it was just a mechanism of awarding us economic damages and i think mr moran agrees with you on that if i heard him right i thought he was saying that but then again he was so i thought i heard him say that by virtue of the court of appeals opinion a month ago that we won somehow that that meant that we don't win under each contract i thought of what i heard him say but i could have misinterpreted i heard something about exhausted and there but i think the point i want to make is that economic damages are recoverable under the d a claim and they do not challenge on appeal the d t p a claim at all so the court doesn't even need to reach breach of contract you can just affirm economic damages which they admit they've now paid although although they've not obeyed judgment rides command to deal with the conditions so far as i know those conditions are still still in existence but that said i think i think the evidence supports summary judgment rich contract anyway we conclusively prove the element of performance the only element performance at issue was whether we delivered the vehicles to the leasing companies which were determined to be end users and that was conclusively proven yes we did deliver the vehicles to the leasing companies the evidence conclusively established breach because again sales to leasing companies are eligible for the incentive payment that's stablished by the board and they took the charge that in honor their own agreement that sales to leasing companies would be eligible for the for the incentive payments so the evidence conclusively established performance and breach and therefore breach breach of contract although i submitted court not even reached exhausted administrative remedies closed for the purposes of the parties pursuing damages in a trial court for code base claims that is the d t p a claim number one after the time to seek substantial evidence review of the board expires if no effect person seeks such review or two after an affected person seeks judicial review who seeks a just role review exhaust the substantial evidence review avenues so far which means going to stay car which means go it which means taking the court up to the third  of a judge of a final order of the board is not stated by appeal etc i would point out two things we said in our papers that i really seeking to enforce order of the board in order any damages or anything like that the other thing i would point out is even though it has been  very quickly on the treble damages issue i wanted to raise two points in response number one to the issue of whether or not all a bond needs to show knowingly at all this would really be a sea change in  the manufacture of dealer relationships and in texas that would mean that for as the fifth circuit rule just a few weeks ago in our related case all claims between manufacturers and dealers are within the exclusive jurisdiction of the texas motor vehicle and that may be exactly what of nature intended my point is that as we say our papers they have not introduced any legislative history to demonstrate that that was the intent there is in any case that says that there isn't you know just reading the clause that notwithstanding the provisions of the law that you're entitled to the remedy so the remedy is trouble damages i don't dispute that they are entitled to seek trouble damages they still have to meet the standard in the d t p a to get them it's our point that is that the conduct has to be knowingly so our point is is just that leading clause just means they yes they can see trouble damages and if they meet the d t p standard for trouble damages they can get them it really is not a reasonable reading for anything out of set aside whether in this case we had a good faith basis they say we don't take take the future case there is some legitimate and good faith dispute between a dealer in the manufacture manufacturer loses under their interpretation automatic triple damages based on a lead in explained to you i would say two things about it number one much of that narrative the stern affidavit was found to be unreasonable are not in the findings of fact or conclusions of law of the board the only thing that is entitle to deference or those things under the section of the board decision and starting in the record at page forty five starting with the findings of fact in our point is that if you scour these findings of fact in the following conclusions of law there is no evidence the board didn't address one way or the other were of our conduct was knowing whether we our position was that we knew what we were doing was wrong to meet the standard of st paul that at some point we said to ourselves we know what we're doing is wrong and we're going to proceed anyway with respect to the post board process we continued to hold the money for a period of time then we gave it back that's why to me it all ties into exhaustion how can you say that our conduct was as a matter of law in summary judgment