thank you your honor may have pleased the court stanley blackman for the appellants thompson bridge construction infidelity and deposit company of maryland something strange his head says the district court's decision in this case after initially bringing in trying this case on the theory that thompson three have breached the sub contract by providing defective site plans in namely in a row use existing conditions surveyed they too is changed course it now says that it was promised and he's entitled to a of its claim is the same excavation work that it was contractually obligated to do under the sub contract from the outset and the reason for that is what the sub contract says and what it doesn't say this up contract doesn't say the deed to is entering into a contract to excavate a certain volume of soil it doesn't list any hue big yardage amount of soil that all indeed thompson drift made no representations contractual or otherwise about the total volume of is site grading to be complete in accordance with the project planes and it is undisputed in this case that the plans that determine the volume of soil excavation the plans the d t used to calculate th difference between tooth and the existing conditions and the final breaking point has the to itself that is in its red brief by comparing the existing conditions to the proposed grading plan elevations deed to could evidence was insufficient to conclude that the existing conditions topographical survey was erroneous put differently the plane that governed the two scope of work and the plan the deed to use to calculate the volume of soil  but the record says something quite different throughout this litigation including in the joint pretrial order including its trial after trucks the two repeatedly said that it was debated more soil that it expected to because impossible for me to do with any excavation work other than what it was contractually obligated to do and where that leads is that the alleged change or to compensate the two for excavating when it's a is the additional soil la consideration and is legally out in force it's because under texas law a sub contractor is not entitled to more compensation for doing work that's required in the performance of the contrary even give unforseen difficulties make that work harder or more expensive than the parties anticipate and in fact that long settled feature of texas law likely explains why the two brought this case as a defective plans case in the st place but again that period doesn't work here because the district court didn't find that the relevant point the existing condition survey was wrong and in any event the sub contract is unambiguous on the key point nothing in it shifts the risk of the point from the subcontractor the  to the contractor here thompson bridge so the district court's contract based find it cannot stand and its remaining findings fail with that contract so there are starting with the breach of contract the actual site conditions and elevations were not properly reflected on the existing conditions at the preacher our conference in opening statement the two repeatedly argued to the district court that there was extra storage on the district court with the fisting condition serve it was wrong with mr blackman if that's the case that the base is what i think what you're saying is the judge judge ended up doing this case differently than it was presented to her why didn't you file something after the decision you know asking for reconsideration or just basically pointing this out to her and giving her a chance to fix it st what your honour's deep to do it is a response brief is kind of adopted this new theory of the case of the right that she just misconstrued the plaintiff's claim that's the type of thing that can be fairly easily resolved on a motion for reconsideration but i mean we are where we are now so we're here well yes but again your honor we would say that is now come up with another type of breach of contract theory our reading of the district court's order that she transformed a balance site representation of the district court transformed that balance site representation into the basis of  conceded has nothing to do with the total volume of soil that's going to be present on the site it has to do with whether the parties expect to be there in court so a lot of this i or exported off of the site that wasn't the basis for need to breach of contract cl so st the balance cite simply doesn't matter to the to the theory of the case but again the district court treated it is basically the basis of a breach of warrant the district court said it was a material representation of  weeks due to justifiably reluctant but this court interstate contract incorporation which the district court order doesn't even cite said that for a warranty claim the plaintiffs has to show an affirmative representation justifiable reliance and no further investigation did you express lease it and that it didn't rely on the balance site representation that with its corporate representatives testimony on direct examination the subcontracts provisions also foreclose reliance and there was a defective plans contract case proceeds this court hailed the plane to pass to show both that the plane was defective and that the contract evidence to intent to ship the risk of defective plans from the sub e dirt what is your client where did they draw the line between an additional war within the scope of the contract and extra war that would have her quite a change order that your people and i'm going to challenge some point much soil it would have to excavate to bind to in terms of an activity site grading in accordance with the project points and so the line between additional and extra work whether or not what the two did this excavation work is something that was required in doing site grading work in accordance with existing conditions survey in the final grading way so in this context excavating soil is exactly what the two agreed to do in the st place and again constant brydon tell d to how much soil there would be or how much soil to expect those numbers came from d to we don't know what the two went in thinking the total volume would be we just know that now they say there's forty thousand dollars cubic yards more than they expect wasn't required in the performance of a simple site so that is the factual distinction and the legal distinction between what these two is saying is that what it agreed to do was sign excavation a delta between the existing conditions and the final defective plans viri which is the entire basis of the tos case that the survey was wrong and that accounts for the excess oil the district court didn't find it to be the case indeed to cannot contractually have done any additional word or any agrees that the site reached the final grading plan elevations i'd like to turn briefly to the district courts quantum mero it and remaining fine the district court said that even if this is outside the scope of the and again here the contract defined the two were in terms of an activity it defined be to work in terms of performing that site rating to go from point a or elevation a to elevation b and as takes the supreme court has recognized repeated where the work is called for by the contract the contractor must look to the contract for compensation that's the black plague case from the texas supreme court so the district court finding that the two didn't anticipate so that was based on her contractual view the disk work wasn't covered by the contract which you obviously disagreed with but it seems to me if you're right that this war was required by the contract and even even the district  order both the contract in the kwanza maryland findings depend on the district court's view that this was quote outside the contract and all in all terms on that one finding which will have to decide whether we agree with that or denied all of tops of troops backed charges and counter claims and render judgment for the eighty one thousand and sixty eight dollars together with interest iraq texas's law will recognize the doctrine of substantial performance and this goes back to the supreme court decision in one thousand nine hundred and eighty four that deals with the end vocation of substantial performance which allows a contractor who is substantially performs his work that is not fully completed his work to sue on the contract and not be relegated to a quantum merit the court specifically found that skip sandel was the only expert witness who testified what the of all d and necessary cost to complete the work i the vast case specifically lays the burden of proof on the party not completing to come forward with competent evidence about what those reasonable and necessary cost to complete work in mustang pipeline versus driver pipeline in two thousand and four of the texas supreme court said that must be done by bringing forth an expert witness who can qualify and testify what the necessary work is to complete and what the reasonable charges would be therefore at the time of trial thompson thrift brought no expert forward they tried to get some information out of mr brett lappie who had never been designated as an expert witness and then they brought on their c f o from thompson proof to  prove what they paid after but they didn't offer any expert to testify what the necessary work was and what the reasonable charges were big therefore the only evidence before the court was the testimony of mr sandel which judge ramos adopted and she made the compensatory reward for the breach of contract for nonpayment for both the retainer jenna progress payment based upon mr sandal's testimony let me ask you just a basic contract count three walls and the contractor tom's and boy there's a lot it's a lot harder than they thought to knock out those walls for whatever reasons i mean isn't that their problem with the contract contemplates that that's what they had to do they've got to do it whatever d whatever the cost me be and they can ask me to give them more money than i agreed to that's correct your honor however that legal looks different every hour but i'm sorry so what's different here because it looks like part of  you were agreeing to do the excavation work which meant removing this dirt what's what's different here than my hypothetical well i was talking about a substantial performance of its work of the original contract the claim for the extrovert is separate and apart and there's a contract provision that specifically allows for the parties to get together much like the i know a case that this court decided back in two thousand and sixteen but before i get to that point if i could just redirect your attention to the two separate and distinct damage awards for the breach of contract the one was for the nonpayment and that's the one of the court  denied all of the affirmative claims by thompson thrip for completing the work and they offer no evidence for that now i heard in the direct statement by counsel that this was this is a breach of warranty  same's to suggest is an implied warranty an implied warranty type of implied warranty cause of action is one sounding in toward not in contract a breach of the express warranty as this supreme court warranty moreover one of the things that happened that this court needs to consider is there was an exchange going back and forth in the bidding process thompson thrip hired a expert witness to come in and challenge what the two did with respect to estimating the quantity of take off and that hired gun and offered no criticism as to weigh the weight the two calculated by the metric measure of dirt they were going to have to supply remember what they were told they were given a total gravel survey and said this is the vertical survey of the property from which you should say your buying metric kept elation to determine what the proposed or the planned elevations were in the case the court specifically found that during the performance of the work all of the work was done in accordance with the planned specifications all of the elevation were quiet to be achieved were required that makes everybody wonder where did all this excess dirt come from they offered several suggestions as to where they thought it might come from over excavation but during the measuring during the actual now back to the question judge casa asked a few minutes ago with respect to what happens when you're doing something that is so far beyond the scope of what the parties and dissipated going into the contract with the thompson thrift people asking the two people to recalculate this take this into consideration where at the end of the day there was to have been no import or export of material from that side of the soil removed on the project so where did they come from well what happened during the course of performance as the court may have read in the record the two months before these two started and work we had an unusual meterological condition  time for you to go back and check whether or not the survey we provided to you is accurate or not clear the site go ahead and get it going to show progress get this project ongoing so as a result the two did in the court found by having to do that it became impossible to determine whether or not the original poster graphics survey that simply shows the elevations those existing conditions was incorrect or not it's when you can't prove something directly you're proven by all the other possibilities and showing what the most probable likelihood of a cause was and that's what we tried to do at the time of trial so in answer to your question no one  forty four thousand or forty thousand or i think what the finally found thirty six thousand additional cubic yards of dirt that had to be exported from the side we still removed it and the price that no one expected how hard it would be how much so the question becomes who bears the burden to go back to my prophetical no one expected this contract to rent a special machine they didn't have to knock out my  walls so the question becomes who bears that expense in texas law seems to say it's if you agree to do something you bear that expense in less the contract ships the wrist the other way so what in the contract says that  the other side had to pay because of these unexpected difficulties and i was anyone's disagreeing that there were unexpected difficulties with doing this excavation the answer that question your honor is found section seven of the exhibit j one which is a contract between the two and thompson drip and it reads should there be a dispute as to whether certain work is extra work or as to the amount of a change order the sub contractor shall upon request of an express written directive signed by the contractor perform the speeded extra work and the party shall endeavor to resolve the dispute this clause is not verbatim as to what this court  in the case but it's pretty darn close now what this basically means is there is a risk shifting clause if the court will go and look at the mastic case and the eyes see case i recall d the court the i c c case is two thousand and five and i believe the mask case was two thousand and twelve there's been this evolution going on in the construction interpretation of the construction contracts what we have in the two contract we have this clause i just read to you that says if there is a dispute as to whether work is required or not or is extra work then the parties are going to get together and resolve it to resolve the dispute how are they going to do it because specifically said there should be a written directive ordering these two to perform that work however as the court found and i think there were seventeen different change orders the way this occurred on this project between these parties with respect to each one of the changes thompson thrift asks for to be done to the scope of work it was done virtually the work was almost fully performed before the change order ever caught up with the status of the contract so now there is one interesting change order number eleven that's involved in this where thompson drip changed the plan in early may of two thousand and fifteen they did not deliver those change plans to the two until august of two thousand and fifteen after most of the excavation work and been done and really all that was left to be done at that point in time was what we call in the industry the flatwork the probably had to think didn't get a written change directly like required but the court found that they had way that requirement for that extra work to have been done there's no question that extra work was to be done or had to be done because of the volume metric differentiation and the court i believe looked at this clause that said if there is a dispute that arises the parties will do now what is the consideration supporting this under clear texas law to when someone has breached a contract or has an opportunity to claim breach they can terminate they have to exercise that right very quickly and very probably be too it felt like they were  put in a position where they were being forced to do extra work they could do one of two things they could claim breach and walk off the job or they could stay and continue to perform during the course of the job and sue for damages after the project is over after they've completed their work what happened in this case mr chad peterson if you read the sub contract laws who has the authority to make commitments on behalf of thompson thrip that was mr peterson mr peterson had this issue brought to his attention within the st five weeks of the project were all those excess oil was showing up and he told the to continue to work once we find out what the total  differences will issue you a change or these to say on the site and continued to perform that work and got up to ninety eight six percent completion of all their work when thomson through started telling them to do out of stock or clean up the job site that other trades to done and redo work repetitively that other traces damaged the two finally had enough and they terminated the contract and left they had not fully performed and that's why the doctrine of substantial performance comes in and is so important because they were entitled to be paid their original contract and less reasonable and necessary cost to complete and again all of my own accord the all the evidence  visited the side became familiar with local conditions under which the work was to be performed and correlated by personal observation with the requirements of the contract documents the sub contractor shall evaluate and satisfy self as to the conditions and limitations under which it is to perform including without limitation the minutes a location condition layoff and nature of the project there is nothing in there that talks about verifying the toca graphical elevations upon which the why there was a negotiation that went back and forth between the representatives leading up d to the contract clients which was how it was calculated on a unit private spaces and if you go to section so how do you calculate we eventually get to the point where the truck loads are measured as they go off or the value weight of that information is decided based upon the testimony of mr mccullough that there is a fluff factor regulations about how much a trailer or a truck can load and safely haul off and what to goes over a few one thousand pounds the truck is subject to being cited and impounded for taking something like that so back to your question judge cost to there is language in the sub contract to sell that provides for a process and evaluation that does not put the risk of accurate zein documents likely on the tube but it's kind of a shared responsibility less like the cases that there was a decision there was a contract clause and that contract that kind of had a sharing of the responsibility where the parties were going to have a responsibility to each other to operate in good faith and fair dealing in order to arrive at this decision to do it we got the promise wasn't kept and that was the basis of the court finding thompson trip breached his contract by not following this provision the only other aspect of that in what i said earlier in the last paragraph of section or are read what they were supposed to do and what representations were the very last sentence of that paragraph says quoting the or any of the representations by d to as not having been fulfilled what was done what was found is that they had performed d the work called for in the contract plans and specifications exactly the way it was supposed to have been done i'm just kind of a stand in this particular situation where everything we did we did right the only thing that we couldn't possibly do as best as we could have i if you have more soil on the side or if more select bill is imported into the site but there was no evidence that any of that occurred there was no evidence of any overt excavation there was no evidence by mr moody who volume of excavation was that different that deals between the existing conditions which were found to be wrong and the final grading and so the two points about whether the plans change and whether there was ex l is said that the change order provision by itself is a risk shifting provision that creates extra work but this course decisions don't suggest that or don't hold these contracts it is four thousand five hundred and sixty nine and fo any of that or the failure to visit this i would not entitle d to two additional compensation these are the same sorts of provisions that were present in this course disease and i c c they were present in el paso d field services versus and they were present just a few months ago in bright excavation but as polk instruction which also dealt with the explanations of contractor who wanted more compensation because of the deal didn't turn out orders profitably as  so contract section seven certainly is not a risk shipping provision and certainly the district court certainly made no finding that that was that was the basis of its proof of contract law district court didn't consider  set aside agree it agreed to perform excavation work under the site play which was undisputedly the difference between existing conditions and grading play in the existing conditions were found to be wrong we didn't tell d to how much  than they thought there would be they would hardly say that we could see the i'm seeking to reduce the contract price because it was excessive that applies here the district court rewrote the party's contract to compensate the two and save it from  or argument in support of this case the case will be submitted then we will decide