thank you are your honor my name is brian campbell and i represent the plaintiff in this case still dynamics columbus l l c from still dynamics perspective the most important issue in the case is whether the district court erred by refusing to allow still dynamics to recover the full of purchase price four hundred forty seven thousand dollars of equipment known as continuous emissions monitoring systems and i refer to those assam's throughout the argument these were ordered from altec they were specially designed to meet the needs of skilled an unmixed to comply with still dynamics title five hermia which required these units to monitor for different types of pollutants that are generated as part of the steel production manufacturing process at steeles plant in northern mississippi your honor after the the court had heard the facts of the case this was a bench trial heard about the years of attempted repairs to three years of attempted repairs of the same genius and unsuccessful repairs the courts ultimate factual finding with respect to the sams that we spent four hundred forty seven thousand dollars on was this and i quote the court concludes that the sounds as delivered were unsuitable and insufficient for their specified purpose monitoring pollutants in compliance with steele's title five harm and so i believe a fair understanding of the court's ultimate factual finding with respect to this equipment that for the purposes it was these s were purchased for the purpose they were purchased monitoring these for pollutants they provided no value to steal dynamics when stepped on a mix when we began trial and were doing research on this case and our requirements for damages we were lied to primarily on a case from the mississippi supreme court from one thousand nine hundred six called fetters the boat ride it bears a striking resemblance to the facts that if the heat pump and i'm quoting now if the heat pump could not be repaired and was worthless the boat rides under seventy five to seven one four would have been entitle to a refined of the purchase price but is worthless the same as i believe worthless your honor is the same as on repairable in the context of worthless for the purpose for which it was parked just is isn't that clear that the federal court distinguish between unrepairable and worth the court issued food made to the first time i read it your honor a consideration i don't think those two are the same thing honor and i know the passage that you're discussing counts as presented in the briefing and if i may distinguish that passage just a bit in that passage from fetters where the court is pointing out that there were components of the heat pump that didn't need to be replaced and components that could be replaced in that section of fetters if if your honour's well will view that section carefully that section of fetters the cord is discussing the repair and replace obligation if the seller had chosen to repair or replace the heat pump in other words what the court said it was absolutely reasonable that the heat pump had a bunch of parts if you were going to repair it as the seller you didn't have to replace the whole thing that is not what you're obligated to do you only had to replace the parts that were defective and i ring a fetters that was once the seller breach that repair and replace morning and did not identify as here they couldn't adin a file what parts were defective then the purchaser had the opportunity to recover the entire purchase price of the equipment now isn't there evidence in this case that some of the area that was a show by steal your plan was you subsequently that is absolutely correct your honor and if i may discuss than i am i'm  that every other authority that that we've seen that cited that senate from fetters which are two authorities have interpreted it the same way that we have interpreted fetters and they're not you know binding authority but they've interpreted that sentence and and it's interpret it the same way that we've interpreted now in terms of your honor addressing their twenty three thousand dollars of parts from the salmon's that provided no use to us that we did use and subsequent in a subsequent s that they would your honor the seventy five to seventy one four which is what fetters was interpreted is the initial calculation of the laws but if you could use things if there was other values other things you could use with pieces and parts of machinery your honor w view that as more of a mitigation of damages sort of an issue and mitigation of damages is going to be robust seventy five to seven one five to say which you have an obligation to to mitigate damages but that is not our burden of proof your honor burden of proof or mitigation of damages is the defendant and if i may if the court will indulge me i have a an illustration that for me frames the issue in terms of mitigation versus what's happening with seventy five to seventy one for the initial damage calculation if we had ordered from altec the the rolls royce of sam's units it was easier to operate easier to maintain it was more elegantly design if we had order that in most importantly it monitored those for pollutants that was why we were ordering it if we don't order the rolls royce of sam's and paid for it but i'll take instead of livered the toyota s a fine car to get you down the road maybe not have all the bells and whistles but it still does what it's supposed to do monitor those for pollutants so there was a value there for the purpose we purchased it the difference between a rolls royce and says this is a seventy five to seven would work here we would get the disk the difference back between the rows royce price we paid in the toyota we purchased because that toyota could still do the job what happened here is something different and this is where the mitigation comes in what happens here is we didn't get a toyota we got a car that from the junkyard the wheels didn't turn the engine wouldn't come on there was no utility to us at all for the purpose for which we purchased it and in that instance if someone had come along and said  dynamics i know this car won't go won't get you down the road but those are good looking tires on it when you sell it to me for one hundred bucks and if we had said not all to it's going to eat all of this i'm not selling you that hundred bucks even son you the tires for a hundred bucks even though it was easy to do then i would as that would have been a failure to mitigate and i also would say we sided probably six different cases from other jurisdictions applying seventy five to seven one four in the same manner as we interpret fetters to advocate applying that when a purchaser purchased something and it had no value for the purpose it was purchased but arguably had some value as scrap or or some other purpose these cour research and our point of view we have not discovered such a case and from my reading of of counsel opposite authorities sided in i did not see where they had found a case in any jurisdiction that interpreted i would like to just point out this sort of difficult position if you interpret it the way we believe all techniques this statute interpreted interpreted the different code position that the buyer who has suffered a breach is in based on their interpretation they would expect us to deconstruct in essence these are very complicated same genus and have an expert to say well part i is not defective and it has despite you part b is defective so it's worthless part c is not defective so it has this value for three years in this is outlined in the district court's opinion for three years the manufacturer all take couldn't distinguish between which parts were working in which parts were not working if they had been able to do that if they had been able to identify the defective part then we would have gotten it replaced and have never been here so we think that the requirement to deconstruct the machine and somehow on the us to place a value on each of these parts and explain how it could be used in the future is not where the burden should lie the way where the burden should live should be with to the extent al view that some of these parts as re usable as having utility in the future that should have met the burden of proof on mitigation of damages instead of the value and stated what could have been used in the future now they did a start mitigation of damages as an affirmative the only other thing i want to say in closing is is that that we did find authorities it targeting fetters the way that is not in the disjunctive the the if it cannot be repaired it the value should look at should value analysis should be viewed from the perspective of whether the goods were defective quote for the purpose for which they were implied lee warranted as being f this was mitigation was never raised until today it's not in the briefs the idea that the burden was on us to prove the value was never raised before and in good morning honors a mike myers no your honor that was not that was not an issue it was never questioned that the plaintiff had the burden of proof in the case the issue that the plaintiff is raised in as well i know the statute says i've got the burden of proof and i know the statute says ordinarily the way you prove damages in a case like this is to prove the difference between the goods as delivered in the goods as contracted but we don't have to prove that keep in mind that the courts determination that the plan to fail to meet its burden of proof under the standards set forth in two three fourteen that issue is not before the court they have an appeal that they haven't contested that the court's factual determination that they failed to meet the burden of the statute that's not an issue but to say we don't have to do it and i think it's interesting that they argue this would have been too much trouble in their briefs they say we would be overly burdensome for us to have to prove this but an expert sitting in the courtroom they had designated the representative for man cherokee who sold in the system they put in later e well the same some of the same things that he put in his report that there's a quick mint that is serviceable that we can use so you don't have to buy new equipment they saved twenty three thousand dollars of the purchase price the testimony was they could have saved up to ninety thousand if they'd used more and that's just the equipment that an cherokee was willing to use with it with this equipment these people deal and equipment they know what the stuff is worth and nick who has a limit automobile has the same burden under the u c c that it has under the common law prove the difference between what you bargained for and what you got and what we're asking the plaintiff to be hill to is what the statute well your honor we're not talking really here about there's two issues there's a question of what is the standard and then the question is did you meet the standard and the problem the point pass is that they didn't meet the standard that the statute sets forth they took the position that we don't have to prove what the value of the goods were is delivered that's contrary to the statute the judge said this is the the statute that applies the reason we are here is because they didn't put on any proof not because of improper legal rule they chose to interpret fetters in a way that frankly it just doesn't study and is judge really pointed out it doesn't say that something that can't be repaired is automatically worthless if it if that were the case and then these repair in place weren't these would meant anything so i just i don't understand how up the plaintiffs can say that under fetters we don't have the burden to prove anything and that's that's not what better says these cases that they cited in their reply brief we never had an opportunity to respond to them but there were six cases that they cited with regard to issues where people were entitled to recover purchase price but in each one of those cases it was a question of fact it was a question of fact for the fact that the jury were the judge as to whether the property had any residual value and in  they were factual determinations that they were worthless well there's a factual determination in this case that is uncontested that system components of this system were not worthless and the plaintiff is asking the court to say that the law presumes something that's not true he's asking this court to say as a matter of law that that this entire system of components was worthless when as a matter of fact undisputed fact it wasn't in the law doesn't recognize absurdities  i would also point out that with regard to fetters bettors was not really a case about the u c c was a case about enforcing a settlement agreement and much of this discussion investors really was dicta it was kind of leading up to what the real dispute was in the case so i think it's done it's asking too much to say that fedor says what they claim it says i really think that's all that needs to be said on that issue still has not raised its question about attorney quality but they claim they were entitled the whole thing even though eleven of the thirteen things that they were cited for in the agreed order work that's under speed but they took the position they were entitled to get the entire hundred thirty thousand dollars back they are not disputing the court's decision now that they can't and in fact in their brief they concede that their proof on them on trying to recover the penalty was insufficient they now conce but keep in mind that when they were climbing one hundred thirty thousand dollars at trial they were claiming that in conjunction with one hundred seventy two thousand dollars in attorney's fees and saying these hundred seventy two thousand dollars in attorney's fees were incurred in fighting this hundred thirty thousand dollars penalty will now that the penalties been thrown out because they didn't prove how much of it was attributable to us they're still saying that the hundred seventy two thousand attorneys faces just for stuff related to the sims true they demonstrated it in the documents that they submitted in evidence to the court to set forth what their attorneys speak lines were and there are detailed billing records and they are in our  holla jobs that's the district court did not get into that much detail the district court basically said you lose on the penalty and therefore you lose on the attorneys fees that are tied to the penalty because you didn't prove how these fees are and have a penalt with the court's idea that these are quibbles these are substantial portions of the bills and i would ask the court to look back at what it was that was being responded to because if you look at the response letter that still dynamics severstal submitted in august of two thousand and thirteen where they self reported eleven additional violations but they tried to characterize those as mana reporting violations but in fact one of them they said that they submitted incomplete because they called it simul certifications of compliance report or those incomplete reports actually said we have functioning systems and there's no deviations with them to two times  saying that they did they submitted a false report saying that they conducted the stack to yes there were some serious stuff going on here and their attorneys to their credit were doing their best to try to mitigate the damage from what their client had done  before the trial court and the documents that the plaintiffs admitted into evidence don't support that they did that and it's not just a few injuries and it's not just a little bit of time you can look and see where they were talking about dealing with other potential but they spent like twenty hours working on the response the response the initial violation was you don't have functioning sans but the time that they were spending and all these discussions they were having with all the other things that they had turned up that they were having to sell for court and you can look through here there's multiple injuries we cite some of them in our brief there's others that we haven't cited but we're talking you know substantial amounts of money and it's not the district court's job to go through and figure out based on these confusing billing records well in your honor that the the district court we cross examine them about the the penalty and they admitted at the penalty that they couldn't break it out and the phase one along with the penalty that was the position they were taken throughout the tr that these are fees that we incurred in in fighting this penalty and now they've admitted that they didn't prove the penalty but they're still trying to collect phase in your honor i don't understand how the district court can be an error for saying that they didn't prove what was related and what wasn't when the evidence that the documents are just as much evidence as the testimony and the documents do not support what the planes are claiming it simply does not i've got include among those fees that resulted from their own breach for example their own failure to report that the sams wasn't working well are they had to they had some fees related to responding to those one is the proof and the proof is shown that they didn't submit phase the expenses that were only related to the sam's issue but there's a legal issue and that brings up our cross appeal that i want to talk about briefly and that is the provision that was negotiated in the contract to limit consequential damages or exclude grants consequence of damages which would include the attorney's fees second paragraph twenty seven of the agreement between the parties specifically excluded any consequential damages and keep in mind these are large commercial parties they were both represented by counsel in the contract negotiations we've got i think on tab six or seven of the record excerpts of the e mail chain and the documents going back and forth between the attorneys where they're negotiating the terms and still is in house attorney sent an e mail and see if we accept paragraph twenty seven that was added exactly the last thing in there and if you look in the record online it read we accept twenty seven that excludes any consequential damages so we've got a freely negotiated contract between large commercial parties and unless they can come up with some legal reason why the contract shouldn't be enforced under the terms of the contract we don't know any consequential damages including these journeys their argument is that under mississippi law if the warranty fails it's essential purpose then you also look i don't think it does and in up i would ask the court to back up just briefly because what we're talking about here is seventy five to seven nineteen and there's two provisions subsection two says where circumstances cause an exclusive or limited to fail of its essential purpose remedy may be had as provided in this code then there's a second section number three consequential damages may be limited or excluded unless the limitation were exclusion is unconscionable and then there  an exclusive warranty provision and if you look at the warranty that was attached to the opinion it says you're you know the company or pair or place at it's option and then it says the remedies of the owner set forth are in o exclusive and then it's got a consequential damages exclusion in addition to that but if you look at the language of the case it says the appellant strongly argued that massey fergusons of damages was limited by the written warranty to either repair one it doesn't discuss and we don't think riley has any application here anyway we cited a couple of district court opinions where this precise issue was discussed and one of an interesting leap was this is the eastman chemical vs neuro case it was addressed in tennessee law in tennessee had the same situation mississippi does there was never a case in tennessee where the court had had to address what happens to subsection three if a warranty fails it's essential purpose und subsection to in the district court making your d s s this court basically is going to do it so that these these provisions stand alone and we found that two doesn't cancel out three and if you look at the statute there's nothing in the statute that says if the warranty fails its essential purpose under subsection two then you can't exclude consequential damages under subsection three for your time  on proof what we paid and under our interpretation once we put on proof that these items could not be repaired we prove that they were worth is the record now i'm going to give a quick absurd example to prove that the way to try to demonstrate the way i'll take once fedders to work just can't work under all takes theory they could have backed the dump truck up to still dynamics and just dumped hunt's a junk there to fulfill their stems order and we would have had the obligation of rolling a partially yes and digging through it and finding out what had value and what did not is still position or that is just an unreasonable burden to put on the buyer in terms of the attorney the the attorney's fees that the court did not allow us to recover it is true and we will stipulate that that the penalty one hundred thirty five thousand dollars penalty which related both to sam's violations and other violations did not parse out the amount between the different violations and so we'll absolutely stipulate that it was very brazen for the court decided i don't know it was related to the same so i can't award anything but only attorneys fees we put on attorneys and the client under oath stated hey look we went through every single line of the us and if a line and a mention the work was both for sam's and for another violation we pulled it out if only ones we left b n were the ones that said soley that they related to sam's work now council has as is it in a fine injury after injury after entrance and is now saying well what about this what about yes and what about this that was what they could have done at trial so that the attorney who was under oath could have said yeah you know you're right about that or now i can tell from that interview i know what it's about that's one hundred percent central lighted there was no cross and your honor i think what you're stating i think there is if there were particular entries that put forth things like that they could have questioned the attorneys at trial and say was this really just for the sangean or is this for something else but that wasn't done and in terms of and i think it's important in terms of what the district court looked at to make this determination that there was no way to parse the attorney's phase between sims related activity and nonsense related issues if she states and this is this is and i quote she states unable to attribute the mt e q fine to all tax breaks steel is like was unable to attribute its attorneys fees in dealing with least we can partial to a reasonable degree one last thing on the consequential damages issue your honor i agree with you that you read massey carefully enough at him as he seems to be very clear that there were limitations in place in that case damage consequential damage limitations and that the repair replace warranty fair failed essential purpose and the core then on the heels of it failing its essential purpose cases that they cited that were to the contrary were from texas new york in tennessee those states clearly state that failure of the repair replace monty doesn't necessarily make the other