schoolhouse from out as to its failure to mitigate damages affirmative defense for two reasons st the trial where here an enduring judgment in favor of the proponents on the affirmative defense of failure to mitigate damages when of soul all i know is that after this was terminated miss mr increase the price to the one hundred and thirty thousand dollars she originally requested in addition to being consistent with  case law up the court's reversal of the trial court's judgment in favor of their descendants would also be consistent with the policy justifications underpinning the failures mitigate damages defense this is a concept that arises in many contacts marry was with her listing price in miss minister's experience the listing price did not have a strong correlation to any offer them a come in from the property she had previously so two thousand and eighteen for personal reasons whether then listed and try to sell it her desires to feel more tired were present but i don't think it was solely a personally motivated decision and in that period of time from august two thousand and seventeen shortly after this transaction did not close court were to order defendant to pay your client over one hundred thousand dollars the defendant ends up with nothing correct i'm sorry with yes that's correct there's no business to be obtained anymore ok and why should the defendant pay for maistres voluntary decision to close the business i know you are kick elated various reasons but it was a voluntary decision there was testimony that it was just too much there were personal reason and she had told her staff so why why should the  expense but there was never a reinstatement and didn't sign the original asset purchase agreement well let me of the how was that not a breach been the same when mr santa cruz entered into the asset purchase agreement the listing price was one hundred and thirty thousand dollars now obviously what he was going to pay was only three hundred thousand but the listing prices remain consistent and because there  figure but there is no offers coming in isn't it a basic principle noted authority such as c l and farnsworth have indicated have expressed the principle as an intra party is precluded from recovering damages for a loss so it could have avoided would you agree that's the basic principle the principles of voidable losses absolutely employable losses is the principle all right and  here weren't there are ways that maister could have avoided the losses such as actually not even imposing some of these additional conditions it seems to me there was no effort on her part in order to mitigate these damages what was her epic she released in the center as for sale she made it time soon resell it  and also contacting individuals that had expressed interest in the past but he expressed interest and he he he wanted to proceed with that did me so her failure to to take up his offer in rejected the offer where she might have to pay a little bit more for some some search of the records indicate it is a little bit text well if it wasn't the renegotiate some of the original contract there were some changes which is my point so instead of getting one hundred and thirty thousand sheep we've got eight hundred thousand doesn't that come in with her and told the employee that she was probably going to be selling to this individual didn't she i think there was this the way the heart of that was a dispute a fact ok i think that was  if you had argued that the judge is incorrect in whether the court reduced the damages by reducing the damage does to zero is there a difference between reducing could have sold for mr sanders testimony was a barrington center was overpriced but he was essentially willing to pay for it because he really likes the territory it's not there's no evidence that other people again i think we have there's a lot of back and forth regarding the reinstatement of the asset purchase agreement there wasn't ever a period of time where renegotiation of a original agreement is not required but if they want to if when my sister was offered the alternate the alternative offer wouldn't that substitute arrangement have mitigated one hundred percent of her damages you're expected to mitigate correct and she didn't do that here vicki she didn't do that here in  contract must make a reasonable effort to avoid damage is correct correct all right but you also raise a point that even if that's the case you seem to be saying she should have been able to exclude cover something is that correct correct but here's what i'm struggling with st of all you know how does the trial court know what is is for lack of a better term the set off is supposed to be by the failure to mitigate damages what specific evidence did you present or tenets of the trial court that said ok maybe we didn't mitigate to the extent we should have but we're entitled to recover something what was that something you presented to the have no legitimate argument but i think the laws of the damages practically caused by their failure to exercise ordinary care to minimize cannot be recovered so if one hundred percent of the top court felt that one hundred percent of scare no recovery and then they compose the center before there was any offers accepted to the st part of that question the pieces and the affirmative defense that was raised there is no evidence they keeping the center open would have resulted in an additional offers what we're looking at here is a lot of speculation in either regard whether we're talking about the opinion if she had this center open would she have been able to sell it you know common sense would tell is if she closes it she can sell it in the regard to the conclusion or in order to sell the center caution about mitigation of damages already done so i'm going to start with another reason that we submit is the trial court's ruling which is that the opponent failed to prove damages and then we'll go back to addressing the mitigation issues and in addition to that damages i'd like to point out that addition to the case a lot cited in our brief regarding the method of proving damages the appellee also cited the elnora's pattern jury instructions and we find that those are insightful because they state in the simplest term what eleanor allows and damages and a breach of contract and what the appellant was required to prove to receive those damages so straight out of the jury instructions is that damages allowed are equal to the contract price minus the fair market value of the property at the time of the breach this method of calculating damages is generally a plausible to any purchase sale contract for the sales any type of property whether goods personal property or real property appellant and her part agree seems to argue that this rule does not apply to her because she was not required to prove the fair market value of the barrington center at the time of the breach because quote the applicable damage and malice this is putting a power in this position she would have been in if the contract had been performed but your honor it's best just another side of same coin had the contract been performed appellant would still have given up the barrington center so to prove her damages is to prove what gain she would have received if the contract had been performed to prove that gain is still the same calculation it's the contract price minus the value of the barrington center so a parent was still required to prove the value of the bearing consigner to show what she would have gained if the a p a had been closed and what damages she was seeking but now she's faced with the realization and admission that the appellate provided no the contract price is only available in a situation where the item is so unique that there is no market and it cannot be sold on the open market but that is not the situation here but as it is presented to the trust for showed not points to three things as evidence for the supposedly lack of a market the st is that the messmate the market was quote unquote unique the nd is that the barrington center wasn't profitable and rd is that the offering to list the banking center on math amazing matters and she stated in that email several franchisees were looking at expand on the national level and others have friends and family throughout the country who may jump at the chance to purchase an existing center but i disputed issue of fact showing that the employees did know and it's how it had made it public knowledge that she was down in the bank and center there's about five or six items there and facts presented the trial court showing that but beyond that we also have that santa cruz testified that he had purchased ten mechanism centers and he was in the process of selling another at the time to try and he had already received several offers so the uniqueness of the meth nazeer marketplace was not a bar to the sale it was a refusal to utilize that marketplace which repair prohibited the sale to the fact that the barrington center wasn't profitable is not proof that it wasn't sellable it's evidence that her listing price was too hot santa cruz testified that mass knew the barrington center wasn't profitable because it had so few students and that mass mazie improper guidelines indicated that a reduction in sale price was appropriate not that it couldn't be sold but that she had to reduce her listing price in accordance with the number of students she had back in asian guidelines she had noticed because of her image changes santa cruz showed that she should have had one thousand dollars per student which would have been around a sixty thousand dollars sale price mass made the offer to purchase the barrington center either knowing it wasn't profitable and stated its lack of students could be remedied by a marketing campaign to attract more students so the lack of profitability of the bearing center is an operator issue and it was for personal reasons she's committed to the dealership i am fifty seven years old and adding hours and i cannot really keep up she testified to the trial court the same thing that she stated in a letter which is obviously i would rather sell the center than close but just cannot keep up the pace to wait another year or however long it takes so the evidence presented in the trial court showed appellant could have continued to operate abandon center because it was on a month to month lease as stated in her email the court you appellate chose not to sell it not the she could not sell it so the appropriate damage analysis is the contract price minus the fair market value of the property at the time of the breach which therefore requires that appellant prove the fair market the trial court noted several times she failed to do so and a failure to prove the fair market value is a failure to prove damages which entitle mass to judgment as a matter of law which is what the trial court said in it very last sentence as ruling so we'd also like to show here that issue about the operating expenses and the double recovery and how this would work into the equation so at pownce request for recovery of the property and copy or at least payments would be a double recovery because a parent was utilizing those leases to benefit her fully functioning business when she was making those payments she had already gained the benefit from those leases anything beyond that apparently is a double recovery but now appearance brief characterizes both lease payments as quote unquote special damages but special damages are only recoverable if they were reasonably forseeable proof of that foreseeability is completely absent from the language of the contract or presented to the trough work there is no indication anywhere that it's how we would have agreed or would have known that he would be liable to forever pay the operating expenses of a fully functioning business if the a p a fell through and so the talent found another buyer especially when appellee had made multiple offers to purchase the property and double recovery is also in the brochure do you know in a broader sense as your owner's previously pointed out because a parent is demanding that mass not pay the full contract price for nothing when mass made numerous their face attempts to purchase that center for a one hundred thousand dollars when the center was fully functional mass offers to purchase remained open until the day appellant closed the center and voluntarily destroyed any value it had requir my pally did make several offers to purchase the barrington center which did remain open and the question that's not a shows us is that whether the a pow we made an offer in good faith to pay for the barrington center and maybe accepted those is a question of reason the less we submitted is reasonable and she should have accepted those because they were reasonable offers but beyond that not her refusal to even negotiate a good offer that was on the table and instead sue  probably for later dismissed claims of defamation just shows that she refused entirely to even consider a very good good offer on the table that would have allowed her to completely mitigate franchise or one thousand dollars per student so would have been around sixty thousand dollars if she had followed those things said live and she did have notice of those guidelines because she had been in conversations with santa cruz about them in emails prior to santa cruz even making his st one million two hundred thousand dollar offer nd refusing to reduce the listing price at any time before she voluntarily closed it and listing the barrington center on only one web site those were additional efforts that the court noted were constituted a failure to mitigate now your honour's we do move on to the other bases on which we submit that the trial court should affirm the trial cour s ruling because the record shows that the a p a did require the appellant to produce the balance sheets and this is a substantial material issue at issue in this case both appellant and her transaction attorney testified that the a p a required a cow and to produce the balance sheet the parties do not dispute that this was a requirement section sixty three required the production of balance sheets and business books and records of scary movies any time before closing which includes the balance sheets despite the clear language of the a p a appellant argues that the a p a was somewhat of some unconditional promise to buy the property because all we realize that because the ruling was entirely in our favor we were some are prohibited from making a cross appeal because there was no judgment which we could have been appealing rather we would have only been asking this court to tinker with factual findings which we understood to not be a basis for an appropriate appeal and use that this court's time so that's we just responded to the appeal asking this court to affirm the judgment and offering multiple avenues on which this you you spent quite a bit of time this morning arguing plaintiffs fail to prove damages however at trial you never did argue that the plaintiff failed to prove damages as part of its case while your honor at trial plaintiff was supposed to prove her damages right and so she did it at trial and the trial court noted that in the ruling your honor so then after trial there was a submission of post trial briefs but those specific on that issue and the trial court did rule that way because for example let me look at the trial court's ruling it stated i have no evidence whatsoever as to the actual value of the barrington center and then its  in ruling accordingly even though i don't find mr santa cruz was justified in terminating i find that there was no attempt to mitigate damages whatsoever in this case i cannot find any damages attributable to the breach i cannot find any tammie jazz and for that reason i will enter judgment in favor of defendants ok and then they have here i think what the judge is talking about mitigation in other words the judge went straight to i cannot find any damages attributed to the breach and he states i cannot find any damages because he is as he stated that i have no as a dense whatsoever as to the value of the barents and center and then there is discussion that if she had sold it if she had said what is it worth then we would have some method of calculating her damages so i understand that the appellate appellant is making the issue solely about made the issue of mitigation solely in her post childfree but appellant couldn't be making that argument that she failed to prove damages at the trial where she was supposed to be proving that because there would have been no opportunity to do so because that's that there was no issue of value and if there is no no evidence of value there is no two way of proving damages so she did not meet that burden and on top of that how could there be any calculation to list the center at least at the contract price which would have been a one hundred thousand dollars rather than a inexplicable thirty percent increase she also could have taken advantage of the market that was the judge and the trial court noted was the most of bailable and robust market she could have received offers in but instead she voluntarily refused to do so and efficient that she could have kept the center open she could have sold it for anything she could have done anything to incite offers but she didn't a lack of an offer does not indicate him in ability to sell it it's just when they can't but yes or no for how long did she have to keep berrington do want to do an avoidable loss calculation and she's got a one hundred thousand dollars offer on the table but she rejected so you got zero damages there she could have taken that one hundred thousand dollars offer and if she didn't want to pay for the asset lien search she had the opportunity to sue for those damages just as much as she's making the apple at least respond to all of these lawsuits right now so it's two sides of the same coin she could have mitigated all of her damages she could have reduced listing price she could taken advantage of the specific available and robust market that would have allowed her to receive offers and sell the property there was testimony that this market was active and she refused to even take advantage of it for personal reason but that there w unions offered as to what mr would have had to reduce the listing price to so it you know there was your honor yes there are because we have for example at least not only do we have santa cruz who is part of the math and he's in corporate headquarters who helps develop these guidelines with messines incorporates he testified and the records show that my sister knew that these guys weren't existence right and those guidelines as against that she should have at least reduce the listing price to maybe a one thousand dollars per student that would have been somewhere around fifty thousand dollars she refused to even look into that so we do have some evidence of what she should have been making the listing price in addition your honor every prior offer that she had mass made an offer for one hundred thousand dollars but prior to that the record shows that there was what another offer that meister had accepted prior to accepting that's one hundred thousand dollars offer that was between fifty seven to sixty percent less than that stocks are so she never had an offer that she accepted that was more than one hundred thousand dollars so there was no reason or basis for her to go all the way up to one hundred and thirty thousand dollars your honor all right i have just one more question didn't lyster santa cruz testified that he could have been traded on getting this purchase agreement together rather than doing due diligence so with that testimony how can he complain now that he did not receive the balance sheet when he him so let it go certainly at least until he received the notice board at the no you're a i understand that framing of the facts but in reality you have a due diligence letter that asks for due diligence items right but then because they had to do an expedited schedule to accommodate miss meisters requested to do it quickly and within thirty days he said ok we will this closing within thirty days but i have to have extra statements and representations in the a p a that still get me those balance sheets their due diligence items opportunities to review and the ability to get out of this agreement if i discovered nd phase so just like any standard purchase agreement contract closing was not on the day of signing the agreement because several terms of the contract provided for its dish an opportunity to obtain due diligence materials road view them and get out of the contract if discrepancies and bad information were produced we go through each of those provisions at length in our breach our i'm sorry brief projector they were yes your honor they were and here's how in the language of the contract under six a it states that you are supposed to provide the balance sheet and then it attaches an exhibit say i provided the balance sheets in exhibit  so then when we go to the conditions precedent which is section ten a one its stake the representations of warranties of seller contained in this agreement must be true and correct as of the closing date and those are quote conditions of the obligation to quote so if she makes the representation in section six a savings i've given you the balance sheet then as an obligation prior to closing to you know get the obligation of the power to actually close pursuit of section ten a one that has to be true to trigger a pallies counter obligation to quote so yes it is a condition precedent here on this ok so you're reading that all together under the letter of intent school house could ever question the balance sheets however i'm june th two thousand and seventeen school has executed the asset purchase agreement knowing that it is not received the balance shoots for the of you for your arguments this morning the court will take the matter under advisement and render a decision in due course at this time we will conclude our proceedings for the day thank you very much and here