by including in the lease based stipulated damages clause that is predicated on future rent the lower court held that that clause was not enforceable and so the next issue with the lower court's ruling is made the lower court then focus on a transaction between the original less  me in order to come up with stipulated damages under a lease the lease itself does not give of the assignee that right to past due around that's the issue the lower court said the stipulated damages provision is not enforceable but then it turned to the transaction between  assignee and the original lesser work which was nothing more your honor when you strip it down to its essence other than a sale of the lease itself pursuant to a non  everybody agrees in this case that the lease is a true lease under louisiana law that the louisiana lease moveables act applies because regardless of whether the lease was consummated the property was in louisiana when it was recovered by the less  lease and it gives you the major component of that those stipulated damages which is thirty for future rent payments at night team one thousand eight hundred and nineteen dollars and some odd cents per month discounted by two percent so again i think the lower court's ruling on holding that that provision was an unforced goal was correct but then we turn to the loss on the note which is what they paid for the lease they had no recourse against the original less so for and then they deduct the same amount the cost of the equipment that they sold which they own by the way and have the right to sell but it has no bearing on the damages under the lease in fact i would submit to you your honour's that by selling the lease equipment that they own and under louisiana law and had title to they foreclose the opportunity to argue that they were entitled to stipulated damages for a lost opportunity cos namely the amount of rent that they were saving from the less see gladiator compared to what they could have the least of the work to someone else at that time they elected the r and treated it like a financial transaction a retail installment contract soldi a lease equipment in there or centrally asking this court and the lower court for the deficiency amount and just so your honour's understand i but i do this not just in the context of defending mr prince i'm typically on the side of mr larsen as clients i do extensive one or the other but you can't do both the remedies are mutually exclusive and you can't dodge the future written prohibition if you recover the lease equipment  mass future when i just don't follow that logic up from the bank of the west so for that reason your honor i would submit that the lower court's decision on holding the stipulated damages clause or an enforceable is correct and i would submit that the lower court's decision then turning out sod the least document and focusing on the acquisition documents that bank of the west acquired the lease to come up with the stipulated damages number is totally inappropriate it's not consistent with this court's decision in g e capital which is squarely based on the language of three thousand three hundred and eighteen that says you can get past due amounts and other amounts provided by the lease but the last on an investment or the purchase of a lease under a promissory note they do not constitute stipulated damages or damages it all under a lease we were to agree with you i don't know what you which way it will go but if we were to agree with you to to reverse this judgement and remain and what would the final paragraph of our opinion say in terms of telling the judge food what to do w honor i think under the facts of this case they were cross motions for summary judgment so they put into evidence all of the stipulated damages that they felt they were entitled to i think in this case that they could have put in the recovery case back well i think st of all i don't think you ought to send it back i think you ought to read st reverse and render because there is no evidence before the court of stipulated damages recoverable by the lease there's no evidence that the cost of recovery of the lease equipment to transport it to store to repair it we should render it take nothing judgement is that what you're saying i don't i'm just trying to understand what your honor i think rest based on that they were submitted for cross motions for summary judgment i do think that is the correct decision there's no evidence in the record of stipulated damages to which the bank of the west is intitled so in that case i think the judgment ought to be you get or the bank of the west gets which we do not dispute the amount of the past due rant which is one hundred and eighteen thousand dollars and some change you get that amount plus interest i do believe that is correct but i think the attorney's fees ought to be less because i don't think you ought to get attorney's fees pursue for pursuing something you're not and the other thing to keep in mind right of that object that this roommate is available if they had wanted to get the accelerated rent that rim of the was available they could have sued my client and the less the for the the less these wide of documents the in the least equipment and then we would be talking about a deficiency cloying under the judgment after that seizure or they could have elected to recover the entire amount from my client but they did not do that your honor they they were still entitled and some principle to additional damages and if so what is that principle that she at least was see there are what i think she did based on her came in as i think she took such and decided that we were correct about the stipulated damage provision and you will remember the history of this case we got one for mr prince after this as the the suit was originally filed this was pending the for her on a motion for summary judgment michael west the louisiana l your question to me is what did she do i think after she agreed with us that you could not get future of rent under the lease despite the how it's characterized if it's if it amounts to accelerate a rift i think she looked for make his own calculations of it finds a stipulated damages amount to be unreasonable so she's saying on the one hand prince argues she has vast discretion on the other hand the banks who argues should only make its own calculation of the stipulated sides are saying at some level i have the right to make a decision on appropriate damages your honor i would agree with that but i also would would limit that to what the lease provide so that's not what she said was that in some memorandum that you gave her and  i do believe in so i don't want to misstate what my priest says because i can't remember every single argument i made in my local court brief because there was a series of lower court briefs because we brought them the beliefs of moveables out to the court's attention but the important thing is that we sided three thousand three hundred and eighteen and we cited the least provision neither of which allow hard to step outside of the least got an award damages based on the transaction between the the morning your honor is tom arsenal half of bank of the west i want to start with southwards question because the statute itself answers your question  remedies under the always in our lease remedies act he may cancel the lease recover possession of the lease property and recover such additional amounts and liquidated damages as may be contractually provided under the lease and growing not you saying is modified by years may be contractually provided one way to reduce is the additional amounts and the liquidated damages must both be contractually provided that's that all the damages you agreeing to that extent with your friend on the other side that the that the lease would have the relevant contract is must provide for the different damages and must provide for liquidated damages if you are to recover them the court shall award liquidated damages to the less or only if it finds the amount there of to be reasonable if the court finds the amount of liquidated damages to be unreasonable or if there is no such stipulation then the court may end its discretion award liquidated damages to the lesser my interpretation of what judge put did and i'm going to suggest to the court that i think she was wrong in doing this but what judge foot did was to exercise discretion given her in section three thousand three hundred and twenty five b the liquidated damages provision that you put in the lease i'm going to find is unreasonable cause you can't use the rent but i'm going to find another basis and here's what fish he said we know she said we know what you pay eight hundred and thirty two thousand dollars we know that you received a couple of one hundred thousand dollars in lease payments while there were payments we know that you recover a net recovery of several one hundred thousand dollars on the equipment and if you subtract all those things it leaves you one hundred and fifty four thousand dollars short thousand dollars that was what the investment was in the equipment by the bank of the west and that leaves you short bank of the west one hundred and fifty four thousand dollars so i'm going towards you the unpaid damages are to be rican putin after the it's still a prospective estimate of damages that at the time that the lease was entered what would be a reasonable way to have liquidated damages as opposed to retrospectively to say what the actual damages are is that would liquidated damages means you couldn't get any meaning out what i do said that it is a prospective estimate of reasonable damages put in some sort of contract lease here the amount is unreasonable according to a court so you make a new effort to get a precise what a reasonable perspective was maybe some standard in the industry for these leases of what set of a technical finance least sagal i don't want to i don't want to get into that except it's still a financing vehicle the bank is not in the business let's let the bank is that in the business person has is an expectation of cash flow over time therefore if you have a brick and you recover the property then you don't get to accelerate the rint this does not cause call for an acceleration or rent it says we're going to discount the cash flow to present value and we're going to use a two percent you have liquidated damages calculated from the time of the breach ok so that includes the unpaid rent right the one hundred and eighteen thousand dollars until the end of the any discount that cash flow two percent so in our calculation we are discounting the one hundred and eighteen thousand dollars that they acknowledge that exist because we're saying we're going to discount that we're going to capitalize that to approximate the loss of profit they were going to have and what does that amount to in this case sixty thousand two hundred and forty seven dollars seventy seven cents that's the last profit based on the stipulated him to his formula in the lease and why is that reasonable because sixty thousand dollars is about seven percent of eight hundred and thirty two thousand one hundred and forty seven dollars ninety one cents incident so what we're asking you to do is to reverse judge foot to say it's fine to get them to zero but they were also intitled to recover as article nine hundred and ninety five of the civil code says cited by the appellant they're also entitle to recover the lost profit because judge foots calculation just gets them to zero it doesn't get them to last any return on investment and so what we're asking the we ask you if the amount was reasonable as liquidated damages the say this whole question of foregone exhilarated rent was not in here it's some of the calculation would you have the argument that is additional mousa liquidated damages as set out in the contract the are the only liquidated the only formula for a liver for liquidated damages set forth in the contract is the to the discount to two percent of what i'm saying is if that were valid if if if she it up held that are you saying you still would be entitled to this was profit calculation now i think i'd be entitled to what what i would be entitled to what the leas provides with says that three hundred and thirty three thousand six hundred and twenty eight dollars seventy six cents but that would include the want the discount of one hundred and eighteen dollars so it's not in addition to that when you're saying that her effort to calculate  damage amount wasn't properly done because it did not include your or your calculation of lost profit could the judge have come up could judge foote have come up with a different sacked or and placed in another number there yet i believe that she could have i do not know what it would have been based on the south which is what case law is there of a scenario like this where liquidated damages are being calculated under whatever this other section is thirty three twenty eight if i wrote it right b r is or case well and i didn't looking at coming up as i was saying earlier with what i would call a liquidated damage what that really means what would a fairly good it damage at the time of the execution of lisa been or are they looking at something you know i didn't i did not find any cases that said a judge made this probably more often call them stipulated damages as opposed to liquidated damages but the concept is the same as it would still be in the original document which deflate what your damages would be it might be an amount but it also might be a formula your honor it might be a method of determining that because the reason that you put stipulated damages in is the idea is it's not a penalty i may well not but she certainly has a valid point that it looks to be that this was an end run around of the prohibition on getting both the right to counsel and recover possession and under s decide whether what she did was appropriate i agree on let me let me let me disagree on the st point and i'd already on the nd point i disagree that and there are at least three louisiana reinterpreting strategery gama i'm a dedicated civilian and so i certainly certainly agree that that's what louisiana courts ought to do when you look at the statute however it says you award the stipulated damages that the parties have agreed to if you find them and if you find them reasonable ok so that's where that's where the judicial interpretation comes in as judge foote found given the circumstances that they were unreasonable but she that's a question of law and she was wrong on that question of law because one can use the future rant because of the circumstances of this case it is a discounted cash value if you're trying to value what you lost in an investment you would use a discount to present  the total amount of the rat it was the discounted value it was the capitalization of the risk that is a very standard way of coming up with these numbers and when you look at the actual numbers judge south it comes out to the way it works out in this case it comes out to what is a reasonable return on the investment if you apply the stipulated damages as provided in the lease and that's what we think was supposed to occur because like i say the three hundred and thirty three includes the other numbers ok i'm back i think we're not asking for three  you get a difference the only difference we're seeking in our cross appeal is sixty thousand two hundred and forty seven dollars seventy seven cents and that would be a return and when you take that number and divide it by the investment it's a very reasonable return over several years and so that's why the stipulated damages is based on what that stream of income was going to be because when you buy the lease you're expecting i'm going to get this amount of payment over the course of time and when i don't get that the measure of my damages is that stream of income my return on my investment discounted to present value and it is the discount to present value does not excel redbridge is simply a means of calculating the loss of profit to the less or all the less ores assignee and there is nothing unreasonable about that it's piece of equipment when i met he had to worry about oit is not how much money we made the point is whether what you're trying to do under b is what would have been appropriate under a and that is ultimately you were gone you quitman through the kind of fair way to deal with it is to determine what the actual loss was going to be to take the piece of equipment back which they were selling to sell it to someone else because we're not in the business of renting these widgets out  other people and as a result we did this ng the exposure of the debtor whereas i could've gotten box on it could have gotten a judgment for the eight hundred thousand dollars or nine hundred thousand dollars and that's about the election of remedies i think it's clear that it doesn't matter whether the judgment would be more or less it's you you exercise one of your exclusive remedies and that was to recover possession and least equipment my client lease cancellation with recovery of possession of the lease property and such additional amounts and liquidated damages and they could try actually provided for under the lease agreement and then the court also went on to say and this was an opinion by judge winner who is  billions and because i was fortunate enough to practice with him for a few years before he was appointed to this court indeed provision of a lease agreement to the contrary notwithstanding the lesser war is allowed to select one remedy or the other was going through the history of the entire statute and i think he would have said something if you're reading three thousand three hundred and twenty five out of the statute are you saying it's apply akobo applicable only in certain unrelated situation i don't think you can just jump from the lease transaction in awarded damages based on that that's not what the statute says this statute says what are the liquidated damages provided by the lease in typically their recovery at cost of recover the least equipment cost to restore it cost to get it ready to repair those are standard provisions that that's in your expressed lower case when they went through that list of additional damages but it's not the loss of your original less so all i mean if you look at the least document non issue and if we had kept the equipment and you look at the amount of money they won't based on casualty value compared to what they sell the equipment before it's not even close i mean the numbers are startling if we had kept the equipment even through the lease time and wanted to buy it we'd have to pay i think the numbers are at the end of the lease term something like sixty percent of the original value of the equipment i mean they sold it and deprived us the opportunity to keep using it or to to participate in the sale they took it judge we're talks about this is a unique statute on white other areas of louisiana law it gives the less seat of the lesser work the white to terminate the lease on notice by sending a default notice and if you don't turn in the equipment within bob days of receipt of that notice they can go to court in a summary proceeding and get a judgment that compels the delivery of the equipment in twenty four hours you can't do that with a piece of real estate you have to go get the the lease judicially terminated here it's an exceptional limited they exercise that you statute itself even to step outside of the lease document and award stipulated damages based on the lease document when you look at the numbers it's nothing more than a portion of the future when doing the lease it's not anything other than that it's