and thank you as well for accepting an appointment we appreciated very much thanks to the government of course take the word identical evidence to a highly literal degree that of the more recent indiana case and it seems that the just record at least looked at this as just two different ways different ways you can turn that box and maybe it looks a little different but it's all actually about the eggs cargo system it's use in this particular contractual arrangement and does anybody own money to anybody else that sounds to me like something that you knew since you have been to demands already before the st forex one is filed you know about that you came up with another theory we were waiting for the return of the cargo system before we made it the situation as to whether we were going to file suit on that we didn't know if if graham brandt intended to return the entire system after the term of the contract ended and we continued to want rembrandt to return the system it was not until after now would you agree that there was nothing in the contract that said anything one way or the other about whether rembrandt had to give it back to you or the contract i agree that the the supply agreement is silent section the section do requires us to provide these these materials and that they're basically just packing and shipping majority all suitable for eggs right and it's a cost they basically basically if we have to provide these it's going to cost you a warranty provision and that only applies to shell aids so as far as how we get these items back at silent in the contract but i believe  the only proper inference from the contract is that we supply these these or are our property and it was not until we got not until they returned everything december of two thousand and eighteen that new items were missing items were unusable and it was at that time that we instigated the losses so that and i i understand that to be kind of descriptive of your strategic process or descriptive of the way that you litigated you know it why you litigated it when you did but the plastic what are the packaging was on your mind in a big way in rec scene one you if i'm not mistaken you asked for fourteen million seven hundred and forty eight thousand dollars of your damages to recover what you were classified as a preparation expense which is the plastic right yes ok so you you injected it at least for the image purposes into that st suit so so this is apples and oranges ok why in in rec seeing one under iowa law we were bringing a breach  warranty claim and the breach a warranty claim was a claim that the quality of the eggs was below the grade a requirement of the contract now we've lost on that one summary judgment because judge stinson held at that there was a kind of a built in remedy provision and that and that we could go outside of that built in remedy for that but under iowa law breach a warranty claim one of the aspects of damages can be start up costs so everything that we did in preparation everything that re thing did in preparation for for for for executing under the supply agreement we included that in or damages including purchase or greater so that was the acquisition now the damages in rock seem to have nothing to do with the acquisition the damages in wrecks into our are so so those are warranty damages which would paid the cost of acquiring these plastics you money as your start up expect you have to go out and buy a bunch of stuff you went out and bought a bunch of stuff they pay you for it in wrecks in one i don't see why they have apple it it's actually not the nd part of the one is the good theoretical as far as part of a breach of contract case that's allowed and in iowa but it but this is a a a tort claims based on based on the same system is that exactly what claim splitting is about that is i have my contract claim i claim i want to bring those into different lawsuits the whole point of the doctrine is to say no bring them all at once not in indiana your honor in indiana you can bring separate cla the court tempered b n p an identical evidence test to a practical and practical interpretation of identical evidence t it it did not go as far as the same transaction of it and the currents which with all due respect to the court i believe what the court was just saying and to judge would as well if if there if it if they can fit in there is anywhere then its claim split in the language until your dough is not and is not on your it's not all that favorable to you on the point you just made i mean act it says therefore hilliard i'm looking at page one thousand and forty eight dollars the court says therefore hill your would have been required to assert all the claims involved in her nd complaint at the time of her st lawsuit as they arose out of the same transaction but  at but but if they were available when the st complaint was filed i mean it it seemed a right into the opinion you know the test that you're advocating against as is the indiana supreme court in theory where it says multiple legal theory supporting we believe my count of one transaction must be litigated in one go but but your honor their cost to be an aspect of the identical evidence test or not of understand that judges are applying these tests and they apply and how they see fit but the reality of it is if you look at what actually happened here the evidence that is important to correct seeing to is is not related to the supply agreement the supply agreement is under iowa law it's a contractual claim you have a warranty mr johnson gets why should we not treat your approach on appeal to claim splitting as you know since accusing the district court of invited error i look at your brief submitted on summary judgment and you said claim splitting therefore applies if the nd claim is based on the same transaction or occurrence as the st claim and there is an identity of parties or their privileges citing joe johns opinion in the district court evidence i don't know i mean those are two totally different sections of your brief i agree they're trying to mention page fourteen that judge hamilton's pointed to is under a claim splitting matter i understand thank you all right thank you mr johnson sudden the telamon case that's what they are now arguing was legal or there's no doubt if the same transaction or occurrence test were to be the applicable test that this isn't a very hard case well that's i actually i don't i think that the difference between this practical interpretation of the the indiana test and the federal test this is so highly theoretical to be actually metaphysical it certainly wouldn't here any way of course illinois did kind of a cleaner thing around one thousand nine hundred and eight they had been following something more like the same evidence test and they just said you know in riverside or whatever it was we are changing to same transaction  your surveys from before you do that can i just ask you a kind of a background question yes it looks to me from the docket in southern indiana are that the final judgment was entered a verdict came in on that other on the litigation on damages correct yes you're ok did the issue of the plastic all this packaging did it in any way shape or form come up in that damages at the trial you are yeah no because we won summer juggling all of the rocks in school no i know that but did it come up in the sense of you know you asking for x amount in them saying well that should be set off by the one hundred and fifty thousand though your honor is straightforward trial and damages what with no argument about mitigation or set off because a plastic correct you ok so i would like to talk with the application of the identical evidence tester st i want to note that in fact the district court apply the correct standard it discuss the tillman decision to the judge young  ten judge magnus this and conclude reviewing the pleadings purchase agreement arguments and evidence invest in the cases compels the conclusion that the two cases now she quoted center around the same controversy you are that's a quote from the hillier decision so in fact your honor she discussed those cases she discussed this court's decision which discussed the state court cases and then applied the state courts so there is it's a little bit different here here's how the best i can do for them if i go out and buy something let's make it really simple i go out and buy a fancy vacuum cleaner and it cost me some money to buy dad because you're going to clean my house and so i give the vacuum cleaner to you to use for cleaning my house i'm out the money for the vacuum and then at the end of our contract you decide well i'm not going to give it back to you and i either have to go buy vacuum cleaner i have to rent one arrived to find a maid service or i have to do something so i'm actually suffering the initial damage of having bought the vacuum cleaner that you're now retaining and i also have this all just called the rental value claim and so your refusal to give it back to me is in some ways a whole separate act from whether i need to buy it for you to begin with well your honor if you want to make the decision to invest in a vacuum cleaner i presume that you have decided that your expectation your profit is going to make up for the investment well i'm going to get i'm trying to control the cost of your service so i don't want you have to go and buy t did eventually after multiple demands well that they were never without all the use of it during a period after the contract was over was only a one year contract to begin with right it was a that system were litigated in were injected into this the st lawsuit and it is a nd bite at the apple they would like to sue for what they paid for in the st time in the st lawsuit and they won that claim or head only get reimbursed for the cost of the vacuum cleaner now you're not out anything or you can get the rental well i think that we to reorient back to what they're claiming here that this is the heart of their appeal is that under the identical evidence test i evidence even the practical no it isn't because you need rental value need all sorts of things that would not be pertinent to the original acquisition price of the the plastics well what the hill should erection greeted page twenty the tester claims splitting as to whether the claims could have been brought at the time as the car carriers test case of the rection bridge impish that that's the is are are there later acquired facts aspect of this twice before filing suit they made a demand then then they sued and the included the costs of the that plastic as a category of damages so i mean that is everything it issuing the nd suit except they say the plastic to acquire it but it's one hundred and fifty dollars plus our loss of use we have some consequential damages here ok we haven't gotten the things back yet we got a tally that will figure out the number in litigation i think that's a cleanness version of what you're might my only point was that i think you've got a strong argument the claim should have been joint even if even if damages issues need to sort themselves out on tort damages in litigation yes the only point i'm making yes indiana law is that a tort claim accrues when some ascertainable damage has occurred in the extent of the damage need not be known in the question is as the rx in say could the claims have been brought well yes not only had the claim proved legally they'd affirmatively knew that they had the claim believe they had the claim and chose not to bring it in because if they wanted to know what the the full extent of the damages were but that's that's not allowed under any help remind me about the timing of the district judge's decision on that that issue was not material to the underlying case in in the in the fashion what it was in it was part of the claims that were dismissed on summary judgment right yes but it was not it was not part of the claims at the actual trial other so what because it had been eliminated by summary judgment isn't that the purpose of summary judgment well my point was that the b