well here the next case holland lowder versus phil smith held that that breach quote shafted my client the loader and swallowed up a proud american company yet judge would then felt constrained by the proof and how that how lowder had failed to prove damages with a reasonable degree of certainty that was only one he issue as presently before the court on this appeal and that issue is whether or not holland has simply proven the fact of damages not what the damages are or dollars in sales and that means contracts was the number of contracts your honour's not in the record there was a number of products there was a refurbished loader there were certain spare parts but the context here is really important to load it right ten years so what i'm focusing on the period five years before they were certainly offered prior to i thought that the record in the case for the prior ten years was only one sale of one load is that right well that's correct your honor but  well your honor the context here is really important remember hollow there was a company in colorado that was a one man band it was owned and operated by a single person mr spot tech and we can get to the contacts but let's be sure  five years immediately preceding the contract there was one point five million dollars in sales now going for it and am i right that pursuant to this was called an intellectual property agreement that was the acquisition of the business director right there was not a warehouse full of stuff or you know looters bi directional or otherwise that was transferred it was patents and good we all and ideas that were transferred right correct then there was also several trailers of spare parts that were transferred over so the word the word product is a word product to describe machines it describes intellectual property that could turn into actual goods that could be is that right that's that's correct it was an intellectual property purchase agreement so there was a number of products that had been developed that had been sold in the past the intellectual property incorporated in those products were sold as part of this transaction to pack correct your honor yes yes and so again the fact here it's a very threshold issue right the threshold issue is whether or not my client has even prove in the fact of damages that that's a low threshold and we know that for three different reasons if you look at this courts and the courts of appeal press and then you look at judge woods decision below and you look at the facts i respectfully submit that my client has proven the fact of damages now how do you prove the fact  and he didn't buy certain energy the contemporary mission case also from this court very very similar to what happened here this court held that there was a defendant who was supposed to promote the sale of products the defendant didn't do to spend substantial money to develop items to bid on items i mean it didn't have these other breaches about failing to you know train the sales force and so on but it wasn't as if there were items of the air kind of ready to sell it had to  invest in order to develop products that would be covered by the or not provision they certainly had to investor out but if you look at the deal memo and the deal memo was drafted by n f l s executive for the board was the basis of this deal they say there's little work that needs to go into this year there's already drawings the products are synergistic with our existing products that we have all we need to do is really update these drawings spend a little bit of time and we're off to the races and the deal memo makes it very clear that there's very little work to be done here they have been working with mr tech who was the principal of holland for years was a factual question right the existence of damages i believe it goes to a legal issue the noble your honor because the weather whether the plaintiff prove with reasonable certainty that it had in fact been damaged i think if the fact of damages your honor i believe is a legal question and their second circuit precedent that we cite in our brief that goes to that issue any time you have an issue concerning damages quantification of damages that's a legal issue that's reviewed by this court de novo one other point your honor see only have three minutes left i would search that if you look at with this court did in the race of its case the second circuit case but the wrong door rule comes into play there and i would assert that this case is just like race of it this court held in that case when damages ascertainable amount below an upper limit and when the uncertainty arises from the defendant's wrong the upper limit will be taken as the proper amount now there's no dispute and apply to the amount of damages as opposed to the fact of to be something while you're under the the second circuit cases we cite near breve go to the point where if you have any issues concerning damages the amount of damages the fact of the damages that's a dyno will issue i believe your honor that is reviewed by this damage why isn't that subject to review just like every other fact we look well because again you're right it's a damages issue and i think this court has been very clear in the past that when you have issues that concern fact of damages so there there are a number of things here that judge woods looked out with a reasonable certainty standard now f l s admits that that's the wrong standard we only had to satisfy the stable foundation but if you look at in two thousand and twelve there's a deal mem level i certainly believe your honor hit it provides a stable foundation for damages and it's not just that it's in two thousand and twelve thirteen fourteen fifteen there are consistently numbers in an internal document and this is in the record this is that a four seventy nine here's what to f l s senior executives are saying this is three years into the or now period they're talking about do these forecasts have any legs are they real one executive says here i think the holland products has some real possibility as no one has provided any engineering efforts this acquisition even one time even one full time employee focused on this may have a fairly quick effect the five million dollars for two thousand and fifteen is backed up with some real data they used the words backed up by real data three years into the earn out period real data i respectfully submit is a stable foundation we have missed opportunities we have sales forecasts we have are in the reports we have documents where they're saying these are real prospects we dropped the ball there was not ours there were folks coming to them throughout the earn up to read into two thousand and seventeen wanting to buy our products for two billion dollars product they say we dropped the ball they point to what a competitor was doing with the same exact property that we had was a portable conveyer and they say our competition has reached by five hundred million dollars in one year we had the same product they did nothing with it so i respectfully if you get to the quantification of damages the records is certainly enough insufficient to provide a stable foundation but you don't even need to get there your honor because again the race of each case provides that you accept the upper limit when the uncertainty is caused honor this this was that in when you talk about history of sales this was his retirement take it there was no need for our client to be selling the bike directional load or a big products three hundred thousand dollars a year on average for the past five years for one person in colorado is a substantial salary he was only focused on spare parts that's all he needed to do this deal was supposed to be his golden ticket to retirement this is a company with fifty subs worldwide a worldwide selling force he said let me give you my intellectual property i have deals all over the world i can't fulfill because i have capital constraints you don't have capital constraints that but the contract they entered into was remarkably sketchy for something that was supposed to be a golden ticket to retirement i mean it just refers to commercially reasonable efforts in a general way it effects the transfer of the intellectual property the patents but commercially it didn't really have set you know you have to expend a certain amount on r and d you have to certain amount on training you have to develop in this matter and that matter was just very very generic and that as the district point out made very difficult to you may feel that these were not reasonable efforts overall are commercially reasonable because it required the input of significant capital to develop anything it's you know you have a tough row to hoe i think what they had to use commercially reasonable efforts to develop a new look at the deal memo here if you look at the testimony they say this is proven technology these products had been in use for twenty five years i didn't that the products had been sold going back when my client took over the business again he was focused on spare parts because that's all he need to do that's all he needed for himself but f l s concedes this was proven technology they say in the record that we only need to do a little bit of work here to f l s size these products that's their term we need to bring them up to our standards this is not a complete total redo they want to take all the products f l s size them and continue selling them there was respect that you have two to rely the court did not question the fact of damages focusing instead only on the calculation of the amount this is not such a case rather this is a case where the court found that there were no damages whatsoever we submit that the closest case indeed the case that is almost directly on point in respect of damages is this court's decision in any us financial versus j p morgan where this court held quote the district court did not find that a page six twenty then they be issued my client got involved with this case with new zealand before they've even signed the contract they sent david holland to new zealand when when when mr my friend yes so for instance he says that we shafted them he says that we dumped the new zealand deal twice maybe more in the opinion itself he justifies that we didn't bid on new zealand they were completely unrealistic justify the finding that we never intended to carry out the provisions of this contract the court takes into consideration this is stark downturn in the market it mentions the stop the bleeding program i and those were not followed up on and if i didn't see any reflection or in the district with the district court wrote that some of the products that been sold in the past were inadequate in any way they had to undergo this f l s izing  process but still you know there was no training done just record seems to say and that these sales opportunities could have been followed up on with minimal capital investment why doesn't that constitute a breach of the contract is the district court found to use commercially reasonable efforts to holland process your honor and it's a fair question if the the record actually shows that we were communicating this is a this is a company that's fifty offices throughout the world in the us southeast asia india south africa indonesia they were all communicating with one another they were responding to increase that were coming in the they were getting support from the spokane office can office in the th increase turned into a sale and this is this is something where they're given the number of inquiries and the modest gap between where the products where they've been sold in the past albeit not in the previous decade why isn't reasonable to presume some form of general damages in that context given the breach and the repeated inquiries looking for even if it's just one out of a hundred increase the sale these are multi million dollar items  the evidence and it cannot be speculative and is judged correctly noted this is this was a case where you had one sale of a loader in two thousand and two t transferred why were those increases signed that sales would have been made well i guess the best the best answer to that your honor is that there were no comparable sales during this entire period we did not prevent to go out with its expert or whoever however it wanted to prove its damages to see what comparable products could have been sold during this period this debt this historic downturn i mean let me just remind the court that not a competitor but a major player in the in the same industry caterpillar let go ten thousand employees at this period of during this period of time we had we were closing offices left and right they could not identify one single sale of a comparable product or instant tire period and in fact the irony is that our expert found one sale and that was the that was the related to the new zealand deal where the purchaser would you know where in two thousand and thirteen when when and when f l s decided not to go forward new zealand they then decided that they would either be out again for a goes or trap or whatever well as we understood they were going to put it out then in two the only seals with these spare parts now these are all of the eighty thousand dollars of spare parts translated under the under the formula that came to all of eight thousand dollars so my client over paid for the spare parts forty four to that he just didn't think that he didn't need to get into that because he just found there was no historical record they their expert adopt brought forward any evidence that during this period of time no matter how much resource my client had get to the first dollar above three hundred fifty thousand then the cradle paragraph of the opinion should have said something along the lines of already been paid thr last five years i don't think there's anything the record about sales one point five he says that judge carney you would mention goodwill and goodwill it was not part of the of what was sold here and what was a west point that there were no we just very very quickly on the wrongdoer rule i would just point you to the case which and the cap where the judge says no matter even if you do look at a cap and if you were to get wrong you still have to prove your damages which they did not to will rely on the brief thank you very much thank you will he i j a two forty two that there are one point five million dollars in sales in the previous five years what is he what what is being transferred your client's obligation in the deal memo that's not in the agreement itself the isn't that correct it's not need remember there are plenty of documents in a record your honor where they're doing projections and are looking for r and d and they say the price of that product the bi directional lower will be twenty five million clear in the record that they manufacture the numbers there's no question about that whatsoever and i was clearly erroneous that finding the fact that he made a finding that the deal memorandum lacked any established or reliable indicators of accuracy and that it could not be substantiated or justified why is that finding clearly erroneous well because this was a year that had been negotiated for four years there was plenty of data they were asking my client for sales numbers for product numbers for mortgage numbers there's even a couple years later there was sixty one opportunities worth one hundred fifty million dollars there's plenty of e mails where they're passing up the opportunities that the record is robust with respect to plenty of opportunities that they just passed up so the fact that they're making these projections in a deal memo directly borne out if you look at all the opportunities one hundred fifty million dollars in opportunities they only had to get a very small fraction of that and the out would have been achieved here and get with respect to calculating damages you don't need to wade through the evidence because of race of it and the last thing i'll say your honor just on the fact of the damages they cite to one case in their brief is that is the j p morgan case th they cite the court there found that any s f had suffered no damage is at all the hole that any s f has offered insufficient evidence of any damages look at what judge woods does he's struggling to quantify damages he says there is insufficient evidence on the basis of which the court may calculate with sufficient certainty he says the little historical data in evidence in connection with past sells home products also fails to provide a baseline by which to calculate damages he did not find that we did not establish the fact of damages he held that we did establish the fact we did not establish the quantum and when he looks at the quantum he admittedly uses the wrong standard thank you