three and two thousand and nine comparing us he says apples to apples city presented an expert on construction costs mr jacobson who did not challenge mr bright bill's construction cost estimates despite the specific instructions from this court room in the city presented no evidence on the cost of constructing these buildings in either two thousand and three or two thousand and not only construction costs three years this record come from al jacobson focus instead on what the building model or concrete reviewed building plans submitted in two thousand and two by mr maule for a metal building on cross examination however mr jacobson had read that most changed t two thousand knowing that you clearly interest rates that would have been charged for each of the three tours of financing that would be necessary two thousand and nine you presented the summary of those figures to the court in response the city presented the testimony of steve mccall this from a caller although experienced in the banking industry has no basis in history was promoting and and had no knowledge of the actual standing of mr with mr ball the commercial property mr mccullough concurred with mr johnson's analysis of the structure of the loan package for two thousand and three the screen slightly the interest rate which would have been char no interest the only evidence in this record financing in two thousand and nine comes from for out of pocket costs on the theory that this project was limited to one building not for abilities in this from all these other this was based for warehouse project that the solution of the  city for the loss of real estate tax property tax would have been paid on this project stipulation prepared presentation by the city's whips mr bettery calculates those real estate taxes for a four warehouse the first place that's a that's a that's an item left open in the contract if the city wanted metal warehouses they could negotiate that item into the contract and imposed upon those who will be obligation to build metal buildings or if they really wanted the metal building they could have approved the building permit application which been spent on file with the city since two thousand and two and has yet to be act but there is nothing in the op in the contract which requires that this be metal or concrete on the issue and while we're on the issue of the two thousand and two building please let me explain how that happened in the first trial in the spring there was evidence that about a fast the trial court found as i said earlier that this was the one building project but not even the trial court was convinced that this is a one building project because the drug court also included i trial court evidence of construction costs and financing costs before buildings constructed sile so why didn't we do that we did that for some reason in two thousand and nine record as just minor scratches for saying there is no evidence in the record as to what costs are attributed to those twenty six acres there were a myriad of costs that were thrown out at the child or and they were broken down between thirty seven if there was never a delivery a ship and how much of those would be twenty six acres in fact i even asked miss smith on the stand within the thirty six acres can you differentiate between which of those costs are for the twenty six acres that make up the time of plaque her response was not right at this moment it is possible if i went back and i put at the documents i might be able to but i can't do that at this moment trials the moment to do that trial is the moment to put the proof in the pudding they place their eggs into different baskets thirty seven acres and sixty six acres there is no way to identify based upon any evidence or facts on the record as to what makes up twenty six the type of building that point goes to the basic contract law that damages have to be proximately cause cause in fact illegal cause there has to be for sea ability there was no first the ability in the mind of the city that martin was going to build anything other than a model building only evidence that the city had evidence of the type of the building was the permit application all the plans that went before the plan review folks in the building of zoning department they only s and that's very clear in the record and even mr martin and his contractor testified that back in two thousand and two when this agreement was entered into it was a metal building he didn't change to a concrete building until two thousand and three fifty and looking at the damages for this it has to relate back to the contract the contract was entered into in august of two thousand and two we can't be looking at a building that was on mr mullings agenda in two thousand and three without some sort of communication to the city there was not that communication that was readily admitted in the child where we have to focus on the two thousand and two building and it's unequivocally clear that that was a matter of billing and only one t addition i'd like to clarify mr craven statement that the platts that the final plan which consisted of the twenty six acres of work building although i don't that's don't show buildings they break down the lot line into acreage that's where the twenty six acres that the crux of this is the breach of the city was failure to approve well the plans are for twenty six acres that's what they're limited to wasn't our duty to show what what those increase in construction costs or even with those increases in financing cost of living and i think it's also important to note that the child or heard a lot of evidence and a lot of this comes down to credibility of witnesses and the weight of the evidence we have to defer to his findings on those the standard of review is whether his ruling was against the manifest weight of evidence there are a plethora of facts that were presented as metal building twenty six acres the business wasn't even established yet to be able to entitle him to last profit the financials the credibility of his damages expert she he noted she based all of her opinion on inaccurate assumptions assumptions that were not supported by the facts in the record it's very important to know the other point you brought out about the city's counter claim and how the city somehow counter claim that there were four buildings never did the city ever allege that there were four buildings the only evidence in the record is affidavit from fincher rini where he states as an independent witness he made calculations based upon poor where us judge kelly have the evidence in the record he weighed that evidence with all the other evidence as to whether there were four buildings or one building he decided in favor that the evidence weighed towards one building the city never claimed there were four that affidavit was just based upon calculations and the relief in addition mr craven noted that the city code states that they could only build one building because that's all the city code allows and you couldn't get a building permit because a large scale wasn't proof so he could only build one building he was far as the pending application for a building permit the only one on file and it is somebody has to bring the city an application why to get a permit the only one that's on file this is testified to in the record by several individuals including the she even admitted that in two thousand and two the only players that were on the table were from the metal building and that he only had one metal building he never designed plans for anything more than about the building concrete buildings  review comments there were several things that needed to be addressed that did not meet the code so what would have to happen is those plan reviewers now since the code has changed would have to go back and look to make sure that those plans were consistent now they didn't notice back in two thousand and two they sent back for comments to the different engineers that you know this thing's not right so you've got to come back and explain it or explain your fire extinguisher or something like that there were little things like that so once everything's once plans are presented that the code requirements the building department will issue a building permit and all of those all of those things need to do that i mean we're talking eight years ago i think it's important also to know that  one of the key crux is of the mandate and also black letter law is that damages have to be proximately caused by breach and that is the defendants heard now there's been discussion and there's been a lot of case law on the briefs and even if that the child were submitted even the opposed part on the first one they could potentially be really be reimbursed for lost profits yes i don't think judge kelly ever said no he can't have lost profits as a matter of law that's always a table it's just that the facts don't support it there's no proof in the pudding here they cannot meet those criteria within the parameters of the case maybe they could have but the that's presented in the record doesn't fit that bill judge kelly got it right the only thing i disagree with judge kelly on this is awarded damages in approximately one million dollars he bases that is solely on the one single statement conventional still building and in two thousand and three that was the that was the direction the process of the project was going so what we did is we priced a concrete building but if we priced the metal if we did the metal building in two thousand three x and if we did the middle of billion in two thousand and nine why x minus y delta is the same there's no cost difference is what that statement says so cost difference between a matter of building two opposition to this gentleman absolutely not if we were to present evidence that a metal building costs three dollars a square foot let's just say then we would be putting evidence in the record we would be approving the the plaintiff's case for that's not our duty he has to put that stuff out there he didn't do it always award nominal damages there's a wire case law that just because there's a breach of contract doesn't mean there was any damage that just aren't ellen and a breach of contract case just because you prove existence of a contract and average of that contract doesn't automatically get you to damage that is also an element that must be proven that was not done ok we would ask that you a firm the trial  in two thousand specifically the file that the based on the information provided to me before warehouse project would have a fair market value of close to twelve  four where house project conduct constructed simultaneous and three in two thousand and n judge kelly also ruled essentially as a matter of law the damages about lost profits were too speculative everybody even though she was contracting everybody who entered into this contract expected m