ape after trying the case in front of his honor judge hit near the district court and houston we have appeared asking for affirmative relief or re man with instructions to either grant or articulate reasons for denial on interest and costs and i'm going to defer to the briefing on those issues primarily because i think we're here for some of the reasons for and then asking the district court to elect realty s on the jury's findings we disagree we do not believe there good valid reasons for new trial that jury was properly instructed and we believe that joy pipe is entitle to all of its damages awarded against i assumed  because the election of remedies doctrine does not apply under the facts of this case the election of remedies doctrine was developed for the sole purpose of preventing a double recovery for a single wrong that is not the case in this piece of litigation there was no double recovery by joy pike in this case instead the jury awarded then their full measure of damages for to do state and separate wrongs but help me out in the  procedure beginning ordinarily you know the pretrial order is a pretty good blueprint map if you will to clean a complex case like this but in any case where you know there everybody on notice that we were looking for damages for both breach of the implied warranty for merchantability and breach of implied warranty for a particular purpose that soft steel was provided in sun those breaches we were seeking damages so everybody was on notice that both series were in pla made for each breach that's another point i need to stress for the court now with the way the case was presented to the jury now some argued to the jury yes sir it was and i'm happy to answer those questions now or get into it first in a second and i will go ahead  trying to derail you know that's fine but those causes of action are permitted under texas law they are not mutually exclusive and alternative theories there is no texas case that says you can't recover under both theories there is no texas case admittedly however that says you can either the texas legislature though in  transaction they say this they said as much in common to the of the texas business and commerce code and section two point three one five and further said that those  we would you'll hear me say over and over under the facts of this case we believe one of the facts of this case we were entitled to submit both and we're entitled to recover awards for damages under texas law does not prohibit recovery under these two different theories and breaches of imply warranty here the jury clearly contemplated that both breach of implied warranty for merchantability and for particular purpose were in play they sent a note back to the court specifically asking for clarification on the differences they were clearly thinking about warranty for a particular purpose and awarded a different measure of damages under each both theories were compatible in co existing and in the jury's mind as well we had evidence and presented evidence to support both breaches in the case in this case joy pipe ordered a p i american petroleum institute certified s for going out and inspecting a couple in stock and couplings the award made for the breach of implied warranty for particular  one point eight approximately one point eight million dollars and those injuries flowed from expenses and from from well the tip of canada withholding that amount of money from joy pipe for expenses they incurred in trying to clear up this mess all the separate theories were assigned to separate claim the separate theories had separate awards flowing from the different claims by texas couplings and well that there was no crossover there was no crossover it matched to the penny of the evidence presented to the jury what we got was not an ai p product although it was labeled so it was an ai s i product american iron and ste institute product it was a grade of steel ten twelve which is used for boiler tubes and the evidence the jury heard was that it is not suitable for any standard operation in the on gas field what the jury found was that because of that the breach there was a breach of implied warranty of merchantability in this case we also besides it were an a p i certified product ordered p one ten p one ten is a particular grade of steel with a particular hardness and a particular tensile and yield strength to be used in particular wells that are designed to have p one ten pipe run down whole we met with i assume to representatives we discussed the importance of making sure that we got what we were ordering and they assured us that they could furnish us that also found in addition to breach of implied warranty of merchantability that there was a breach of implied warranty for particular purpose the point here is that upon the evidence presented in this case the jury clearly contemplated two different breaches of the implied warranty and response which was agreed to is that eight in ten both reference the physical product number eight being breach of implied warranty of merchantability references the description of the couple in stock in the not only did the jury make two distinctly different determinations on two different distinctly breaches of warranty they  different awards for two different injuries two different losses for the dollar amount awarded exactly to the one satisfaction rule does not apply here there is more was more than one injury involved in this case for purposes there were actually three distinct awards made but one of them was soley for a free man who is no longer a party so if the court will allow me to to not address that one which was again to the penny what our expert testified to in the in the jury heard if it yeah the verdict form will it up in different amounts or double just one total amount and we're speculating how they got to that total amount  they're they're split up in different amounts one point eight one million eight hundred eighty three thousand and eighty four dollars was awarded under the issues of breach of implied warranty for a particular  purpose five hundred twenty thousand and fifty eight dollars was awarded under the issue breach of implied warranty of merchantability and then the non conforming there was another finding eighty three thousand nine hundred fifteen dollars and ninety four three prejudgment interest in texas is offered it is required unless the court articulate some reason in exceptional circumstances why it's not granted judge tenure in this case  did not and to articulate any reason why it was not a morning post judgment interest is based on twenty eight u s c section one nine hundred sixty one i believe that i assume p t agrees that it's required and our cost again unless the court can articulate a reason in texas articulate a reason for not awarded them is typically awarded so we're asking in the in the court as he three items are do we have to remain for that to be determined if we go with you a i believe that they are stated expressly in our briefs and there is the numbers are expressed only mentioned in our grief but not you're not sure whether they were given to the district i believe they were in our motion to enter judgment yes  might be the only woman arguing so i'm honored to be here looking try the case we did together yes this is always good to have the people who were there when organ he's gonna matter so we've not only reliant on the coal record but your having been there that's a good thing all right so what i would like to do is very briefly address the pre judgment interest issue and joy  pipes appeal would like to start by stating that we will concede that the matter should be remanded to the district court in order for it to articulate the exceptional circumstances that existed in this case that caused the court to deny recovery of prejudgment interest and now i'd like to move on to the actual appeal we're here to argue and refocus the court on what the test is for an election of remedies i mean if your bill would just say ordinarily prejudgment interests here would be entered so translated does that mean you have an objection when it gets down back down below to the award of prejudgment interest or that you standpoint well we do believe that there are extraordinary circumstances here and those were briefed before the district court below we believe that he took that into consideration and that's why i'm asking you what betty and i will i'm we coupling the reason being texas coupling has not been paid we also believe that well the tubes images have not actually been paid the purpose of providing prejudgment interest is to pay for the money or that the time that that money is not available for the plaintiff to use in this case join pipe wasn't out any money out of pocket there were end you say if that's true that is tantamount to extraordinary circumstances for not award that's what you're saying that's correct ok i just want to make sure i'm clear on what the view here he is on it matter  so i could see why you wouldn't well what we have here are two warranty claims the warranty for merchantability and the more in tune for a particular purpose the warranty for a particular once it's it's ordered for a specific purpose it is no longer use for general purpose that warranty falls away and the u c c supports that statement the under chewed us three foot three one the two warranties and it refers parties to two does three one seven the cumulation conflict of warranties and what happens when there are inconsistent warranties or conflict between warranties that are that are contained in a agreement and what comment to enfold says to two does three one five is that if there is a conflict between the two remedies or the between the two warranties the bre the warranty for a particular purpose is always going to trump any other warranty provided so far it's our position and we believe that that it will texas law supports that and i'll give you the case  the national seating immobility inc that's it's in our brief there's also coghlan the office court marine corps and conflict the court act and specifically stated speaking of the the item that was in in in dispute a tilt level that mechanism the allegedly destructive to level mechanism cannot i'm out to both a breach of warranty of fitness for a particular purpose and breach of the warranty of fitness for ordinary purpose if in fact talking about a single item subject to two different warranties one trumping the other but here and that's why it's a question you have your pipe having one of its customers been one amount oh no your honor i don't believe that they're different from what we had here was joy plight the plaintiff seeking damages for a single loss they broke down those damages by who they had to pay back and that's different than what the what the injury is and that's the question that he had answered and why and how much and then he was different a different a different warranty in a different amount your honor at seeing what what's missing from julie pipes argument is that the test for election of remedies is not a tricky lated once either in his briefing or in his argument here what those separate and distinct injuries were they have always maintained that joy pipes injury was its quote losses that's how the jury instruction read there are there are two separate injuries here there may have been damages broken up by different buckets but those also those damages were exactly the same under each say the same thing what sum of money if any if paid now in cash which fairly unreasonably compensate joy joy pipe for its damages if any that resulted from a breach of each warranty consider the following elements of damages if any and e for medication costs that's how they broke up their damages but the request for damages under each morning she was exactly the same the jury did not specify in their response what the what the jury was thinking and it's not part of the test for election of remedies to consider that if there's a if there has to be a separate possible that the jury w all of these mitigation damages were incurred doing the same thing following the same well failures these warrants and this these that none of neither of these requests or the case was broken up by what stemmed from one well failure and what stem from another well failure like if you if you look at what will the tubes damages were as as shown to the jury it included the cost of repairing the vermillion well it also included mitigation costs for testing and inspection by for millet up by well the tube after the vermillion failure and after the new vista failure so these aren't broken up as separate and distinct injuries or separate and distinct damages they're all lumped in as one injury and one type of damage when we look at the jury award b many it is but the issue here is the court isn't suppose it's not allowed to to look into what the jury decided the court isn't supposed to do you assume that that's what the jury was was thinking when they when they put down those numbers and in both of those in iraq the tories the test is very simple it's very clear there has to be a separate and distinct injury there was not one here and there has to be a separate and distinct damage award they have to there have to be separate under each one if they're not joy pipe was required to elect this remedy and regardless of the numbers that they that the jury put down the the court should have before i move on to the jury instructions i'm getting low on time i want to just it was it was manufactured for and one says it was a particular purpose i think their confusion was are we supposed to what are we supposed to do can are both warranties in play here and i think that's where it comes down to the issue that happened here the problem that happened here find that i assume she breached one of both of them they only had to breach one or the other you know pretrial order you got on stand in trial federal trial judge been on the bench for years got good lawyers on both sides tedious preach our is to you know the map for the costs appeals here with all this seeming confusion over what was really tried you know what was really asked for you know the jury says of no there's an agreed response to the jury's question and yet at the end here you are you know with us when say you say well no there was one injury there forty two damages no election or anybody's applies no it doesn't apply  in a typical fully tried case we get up here is that tell you would be fraught with all that lack of clarity as saying you lose on it but it's not typically when we get a fully tried case here you know kind of easy to see how it was laid out what it was to this almost sounds like yaba back at square one you know arguing over you know what i mean the claims even to get out the gate is that one injury is  jury can understand you know what the claims are and in tried to answer you say well it's not our job to discern or divine what the jury was thinking well you're right we shouldn't have to do  you know what the trial is case again i'm not casting aspersion but i'm just trying to say this is a veil lot of confusion a fully dried case with good lawyers on both sides jury did the best is game where the supposed to send it back down and say we can't figure it out you sort of say i absolutely see what you're saying you're on your own and i think that you know is this what leads to the other issue or appeal i mean we spent a lot of time arguing over jury instructions we asked for separate instructions based on each well failure we we believe that the jury was supposed should have considered each well failure separately they should have considered proximate cause in a different way those jury instructions were all denied of to us by the district court and the entire case was tried by julie piped as if this was one single specific injury and to that point in your and i'll give you a couple of minutes but to me is important thank you so in your side of the case for example i mean addition to whatever cross examination you did over there people i'm taking it to you what you your theory offense in the trial is that our proof that there was one injury or no our theory was that there were two separate injured two separate well failures ok those had to have been had to be proven because they're there what caused by pipes damages and that the jury should have been instructed to determine both causation and damages by well failure so as part of your cross appeal the failure of the just to judge to give the charge that you wanted which would have not led to this confusion correct ok gotcha and there are actually three different inclusions essentially t briefly joy pipe was actually not required to prove causation in this case but it's there they're sort of in three intertwining requests that we had our jury instructions were inclusions in the me inclusion the causation jury instruction that we had requested and they all sort of intertwined and i think would have clarified all of these issues the way that the jury instruction was written joy pipe did not have to prove causation there was should have been put in front of the jury was the fact that proximate cause can be under the u c c broken by a new and independent cause  bought corp corp case that we saw we cited in our brief that says that in a breach of warranty action an affirmative showing by the seller that the loss resulted from some action or event following his own delivery of the goods can operate as a defense this this comment doesn't limit it to just say the negligence or fault of the buyer as the signal oil case does but also that the third parties should also be considered what joy pipe did here was got together with well the tubes in texas couplings and they went out inspected and tested everything after the million failure the vermillion failure gave them notification that all those couplings that they tested and one of them then ended up in the new vista well and failed that should have cut off i assume to use liability that should have cut off proximate cause none of that was given to the jury in the instructions are a question is was there a breach of those name below and if so was such a breach proximate cause of joint pipes losses if they want to take issue with the amount of damages that were claiming they have the opportunity to argue that to the jury the jury has the opportunity to parse things out that i think were proximately caused by a breach we did prove proximate cause and we are entitled to the damages that were  case are you saying that generally there cannot be recovery under both theories but in this particular case there were two incidences two different sets of damages so that in this case there can be recovery on under both theories what i'm saying your honor is that based on the sax of the case in the pleadings depending on the case yes you may recover for both series  and the total amount of the of the verdict is consistent with your presentation of the cases pending to the pending what do i want to  the warranty concept there was no abuse of discretion by judge hitler who flatly entertained argument and consider the issues presented by council in abuse of discretion is the standard  we weren't seeking damages for well say or never mention we had anything from this to the damages that we were claiming related to the vermillion failure had to do with of canada withholding payments that they made to repair that whales were a customer and it was money being withheld from a us as a consequence of non conforming pipe that day thus it was recovered as a consequence of damage to breaching the warranty i assume t has refused to take on you yes