i want to start off the argument with a lesson that i learned when i first started practicing law when i first started practicing law my first job was with a surety bond company and my employer at the time a senior person at the security company told me the first thing that i need to do when analyzing the rights and liabilities of the surety is to read the bond form and strew the bond horn i really think that the primary in the district court in this case is that it leads directly out of the bond form and into the sub contract and it not follow the conditions of the body form and the rights and the obligations of the surety under applicable surety lo has withheld contract earnings and we change totaling one point one million against the entire damage like i really think that's the crux of the problem there it ignores the condition judgment in any amount that was asked starkest contractors equipment maintenance company the original plaintiff in this case four goals work that was done before determination and work that was done on the word fully performance it's performance art van obligations will have to do with if you will the results of this case to the extent there's a judgment against x star that has to pay it obviously it will have pull performance performance by obligations if we performed here in the sense that are offered should perform and it asked back will if you will to to live up to the conditions of the bar the issue in this case is here would have a right to perform in one of several ways to pay the war the cost of performing the rest of the job and less the contract funds that were dedicated for that year to range if you will under a takeover agreement to actually physically take over the work and do it themselves or cause other contractors to do it themselves or to simply paint amount up front that they felt covered all the which is part of the underlying record but in this case i think will or asking in terms of our stomach asian right is the six hundred and thirty thousand dollars that was me to contractors equipment maintenance company and i  directed contractors equipment to start this work performance then on july third two thousand and one which is several days after determination after the june twenty eighth two thousand and one terminations peter us for the full result if the district court's decision is up hill but from the actual payment that axed army to contractors equipment company based on these several days of post terminations performance correct correct and they could perform in a number of different ways i'm not necessarily saying that that bill hanford had to wait for that performance they might have got started in might have done some time and material to work in my house have started to make arrangements themselves but i do believe x star had the right to perform and perform by paying or perform by arranging the work and i don't think that that's really the issue in this case but i would submit that hanford because that condition was that that money be applied towards the cost of performing during that fiscal year two thousand and one and that's where the big mistake of the district court comes in it jumped right past the line form they don't a that they held and they would have had a surplus it would have had an extra six hundred fifty seven hundred thousand dollars out of that seven hundred thousand dollars what we're also appealing is the limit well and there but then why do you have a bond when you have someone like you calling the us why do we have a bar on yap the bar is if you will the financial security that perspective it has done a good job of underwriting a particular risk there would never be a loss even if the contractor defaulted because there's enough funds in the particular job that the surety wrote underwrote to take care and the several hundred thousand dollars that was awarded and judgment but i don't think you can look at the u s in another itself because of contract spans several years and the bonded risk that asked are had was  pay someone else so what's the problem well that's what we use the money for that is what we have used that one point one million dollars we're not just putting in our pocket and asking abstract it's on top of that what we're doing is putting in our pocket and actually paying for the replacement the interim replacement contractor and formally recomputed replace the contractor that money is being used for that work it just costs more and that's why you look to ask for under the performance spawn to cover the have a replacement contractor come in and do it it costs more to formally we compete the contract because they were only able to have an interim replacement contractor for short periods while we formally repeat it is what we have to do one point four million dollars a little last we are seeking the one point one million dollars we are holding reducing that so that's why the ultimate judgment against star in this case was about two hundred eighty two thousand plus cases was because they do not want to be in a contract setting for there to be a windfall or double recovery that doesn't exist in this case also under f r p seventeen an contract runs towards fiscal year two thousand and one they didn't do that and they applied it towards something else that's their windfall that wasn't part of that star's risk the second thing i want to do partially had a million one they had one point one million in their hand the only part that they applied is the difference between the judgment which was two hundred thirty thousand and the fiscal year two thousand and one performs cost which is four hundred thousand they should abide the entirety of the one point one million to the four hundred thousand first that is an express condition in the bond that's the deal the backbone hanford struck with x star and that's the biggest problem with the district court's decision but i also want to talk for just a moment about muncie trust because once you trust was cited and relied upon by the district court and once you trust is a very controversial decision as far as the surety industry is concerned and i think there are several ways to distinguish muncy trust and then flat out argue that it's that it's wrong and it ought to be restricted to its holding in particular must you trust in much you trust i would like the court to notice that is not the government they don't have sovereign immunity there is an equitable that arises in favor of contractors equipment and other persons that provide labor immaterial to the project that they can force by contractors equipment that x start paid and it is you can form a sponsor in that context as well i can address the attorney's fees provision because i don't think the bond form if you look at that as opposed to the contract amounts just they do it refers to the sub contract and then it says very explicitly what damage it will cover the actual cost of performing the work in this school year two thousand ironically that the west starting in with sided should ship to do exactly that it was cited for the purposes of writing out the terms of the performance fine which do not cover all of the types of damages