hundred fifty thousand dollars on proofs of no more than one hundred forty three thousand dollars and some change has pled supported and argued at trial by plaintiff's counsel in this matter two claims for the state law claims for breach of contract and account stated world turn of claims for the same twenty nine invoices that reflected work done by c d g prior to the alleged due process constitutional violation of district court rejected that ar and the court concluded that his testimony regarding lost profits established a loss profit value for the breach of contract claim the breach of contract claim being based on district court rely on this two thousand and eight contract claim or  district court did rely on the two dollars and generally the issue here is whether that that contract claim is actually a two thousand and eight contract claim or whether it's only you know that it's only a claim from one of those lumps on contracts is that correct it is correct in the sense that one or the other but if it's the second then damages could not have been were awarded under the two thousand and eight contract because the two thousand a contract was for it did not guarantee any work be placed under it under it given to him i mean i understand that even if they thought that if the jury thought that there might have been some work under that contract than it might have awarded damages under that contract and i would submit respectfully if the court if the jury so fought that something had been placed under their contract other than the twenty nine invoices that was not paid for there was no evidence to support that  claim that more than that for two different causes of action i mean they got two hundred thousand and then two they were awarded to total total of four hundred fifty thousand one proof so the rationale as i understand it is that one of them was for not getting these stated amount twenty nine claims that everyone at home and then the rest was at least possibly and we give great deference to what juries do they can they allow they're allowed to give partial whatever you know they have a lot of discretion as long as it's within the instructions and if they did they presumably i guess as the district court understood it gave some damages for the two thousand and eight contract not being  some something that awards might have been awarded under lost profits lost profits for the based on that arise testimony yesterday there was only for the purposes of this argument that mr funk could give this testimony i know you have an argument i know you have an argument about that as well but perhaps this argument let's assume that is his testimony was admissible what why is that assuming it why does that fail whatever standard we are ever extremely deferential standard we have for for a jury verdict because mr funky stuff money if it misspell substantively did not address the two thousand and eight contract indeed he did not address any contract his last profit calculations were solely with respect to the damages resulting department the profits that could have been made had i couldn't the jury think well what they could have made if they had been disbarred they also could have made if the two thousand and eight contract had not been violated i would just return back to the two thousand contract could not support a claim for damages because it did not guarantee any work under it if no work was required by wayne state to be awarded under it there could be no contract damages for the failure to award contracts under the ball it would terminate the contract then you don't have the chance to get to an award under it and if the jury thought that they they might have using mr funks testimony then and it was then it could say trial court here concluded that just two hundred fifty thousand dollar contract was just fine on mr funky stuff morning mr funky testimony so it was not with regard to his only testimony was with regard to lost profits so then perhaps uk may i turn to the second issue which is whether mr funky stuff money even should have been admitted in this case because before you moved to that i had this question under stand it there were in a says there were separate instructions and there was it's not an instruction that you can only award one not the other but i would submit on the proofs in the arguments presented by counsel it was yes but the question becomes then if if indeed the jury if there was evidence of a breach of contract beyond the twenty nine invoices if in the damages could only have been premised then on the testimony of mr funky regarding  mr murray's due process claim if we agree with you that they were played alternatively what is the room ity to the remedy would be i see it is either entry of judgment on the account stated because they proved the hundred forty three thousand dollars a jury could have awarded that but the jury awarded two hundred thousand correct correct but there were no damages to support the two hundred thousand it would be entry of judgment the amount of one hundred forty three and change on the account stated which was that was all that was pledged sought improvement no consequential damages were requested no consequence or damages were instructed i as the accounts stated and once the jury returned a verdict on the account stated that basically merged in and negated the existence of a contract claim because i can account stated that part of that theory or the stronger version of that theory is that both of the contract claims are for the twenty nine lost profits on which mr the due process claim was based because that's where his emotional distress came from in the contract claim and it what should never have been admitted in this case here no it was not tied to the facts of this case his before and after attorney fees in this case the award of one hundred thousand one dollars on a claim of three point six million dollars does not warrant the award of attorney fees in this case particularly as two c d g the supreme court in this court has clearly held that an award of nominal damages is basically and that no one tourney fee is reasonable so what the trial court your best case for saying that you had you could have you could win a constitutional case for nominal damages and and the court would deny automatically attorneys this really automatically for our forces hobby i believe the supreme court's decision establishes that to a justify an award of damages you have to come up the plaintiff would have had to prove that you establish something of great value of brit constitutional value of something that you had a great victory that would help others or somehow you're distinguishing you're not speaking of a principle in general you're just distinguishing your case in saying they don't qualify for the other case law that definitely say is that you may be awarded damages you may be old or did attorneys fees for even nominal damage under extraordinary circumstances and here that all the plaintiffs proved is that we wayne state did not follow our own internal our own but department procedures that is not of constitutional demand are our would submit though that this is a pretty unusual attorney for your ward given the verdict of the jury in the state i'm not sure what you get if you say well they that the award is ok just shouldn't have been given to c d g should have the same award should have could have been given to or not when you look at the basis for various recovery in this case which was emotional distress damages that could only have given the jury's finding that there were no lost profits to c d g or to mr murray's business his emotional understand that the state claims don't service a predicate for attorney's fees but isn't much of what is proved under the state claims at least related to the nature of the procedural due process claim such that the district court didn't abuse discretion and saying work that you did on that contributed to what you did on this and this was sufficiently intertwined certainly i may not have decided that but it's an abuse of discretion scope of review but certainly a great deal of the discovery and  the motion practice and everything was related to lost profits to mr funky to the proving the huge profit damages that they claimed in this case none of them the plaintiffs didn't recover and that that was not related to the damages upon which mr funky given that this was an award of seven hundred thousand dollars and cost an attorney fees we would submit that a further analysis should have been done by the trial court it was not asking for a second jury it was just asking for more deliberat morning you please the court my name is dan blevins i'm here today on behalf of contract design group and robert murray i'd like to get back to the attorneys fees issue but but there's one common core to my argument that also relates to the attorneys fees issue in that is the did the jury here had several causes of action that it was it was considering but they were all  related they cannot be parsed out as as the apollo it would what would have the court require the jury to do it was a difficult task that they had the jury i would happen to be the trial lawyer in the case jury didn't give me everything i wanted did not give me honor i believe it it reflects a very difficult task that the jury had to make sure that it avoided double counting i think that's what the jury was doing here i think that's what's reflected on the verdict form it wanted to avoid double counting i would have claimed in the contract claim that they should get the hundred forty nine right and the second them on that you got two hundred fifty for your your request was for honored forty nine is that accurate your honor  it's accurate that that's what i asked of the jury oh it seems like double counting i mean maybe you can come up with an argument seems like the district court came up with a kind of argument but it sure looks like double counting here's here's why i don't think it is  i think it reflects the jury's efforts not to double count we had i could have the effort and fail well but but i think i think the issue is whether they reasonably could have reached their verdict and i believe that that the evidence demonstrates that they could have reasonably reached this verdict and here's why if i may with respect to the two thousand and eight contract the jury found that that was breached and as a result of that breached the contract design group here speculation well that this this is that because you're on  you were trying to get them to conclude was breached was the twenty nine things that didn't come under the two thousand and eight count that the verdict right you're on or you're right that well if i understood your question right did the verdict form doesn't articulate  understand but as presented to them that contract was a different contract well your honor we also claims to the jury they looked around and said well maybe we can treat this as another contract respectfully your honor we presented to the jury our claim that the two thousand and eight contract was breached that was a very important part of the trial our claim that the two thousand and eight contract was breached when it was wrongfully terminated we absolutely argued that to the jury and presented evidence in support of that there were documents we've been the amount of amount of damages that you said was appropriate was something under a different contract that seems like a strange thing for you to know you had a whole transcript but that seems like a strange thing for you are you your honor if i may i would like to explain what the point that i also was trying to avoid the double counting the consequence of the breach of the two thousand and eight contract was overlapping with the consequence of the violation of the con a procedural due process the result of early terminations of the two thousand and eight contract was that contract design group lost its opportunity for future profits demonstrated from historical orders under the two thousand and eight contract but your honor that was very similar to the your and that was a breach of contract right there is a breach of the account stated right yes your honor ok what if it wasn't for due process at all no no your honor so we have three things that the jury was considering first of all  the failure to pay for these twenty nine orders that was the account stated secondly the breach of the two thousand contract thirdly the overlapping issues relating to the constitutional violations i asked the jury to return damages for the constitutional violation i couldn't at the same time in good conscious say to give me the same doubt damages in return for the breach of the of the two thousand a contract although nonetheless you were arguing in the alternative and i think that's the concern is that when you stand before the jury and say here is my breach of contract klein i have one hundred forty three thousand dollars in damages here is my account stated claim i have one hundred  forty three thousand dollars in damages haven't tuned that presented an argument for an alternative method of assessing damages i have suggested to the jury the possibility that they would on one without branding me recovery on the other but isn't that i now turn it in so that is an alternative argument and yet so if you argue in presenting the alternative incented error to be awarded the same damages under the two alternative theories i didn't present it as an alternative theory and it's not an error for the jury if we can construct a lawful verdict that the jury reasonably arrived at they're not bound jury is not your honor the jury is not bound by anything that i said the jury has a right to construct its own written resolution so long as that reasonably is consistent with the evidence and the law in the jury did that in this case the jury look that they clearly found of a constitutional violation but gave zero dollars in response to that it is almost impossible that it would have found zero dollars in response to the constitutional violation it had to a put that money someplace if you look at the jury because a dollar i'm sorry because your honor your honor the jury on one hand said that the the result of the breach of the contract was was was two hundred fifty thousand dollars on the other hand the result of lot the debarment was zero reasonably the jury would have gone down the form and said well they breached the two thousand and eight agreement we've already taken care of the up of the outstanding orders but then what about the two thousand  that they breached that in what about the damages that's two hundred fifty thousand dollars then go to the next section unconstitutional a due process did they breach that yes but the jury reasonably could have said but we're not going to give another two hundred fifty thousand dollars we've already given the two hundred fifty thousand dollars as a result of not being able to get future orders from wayne state university we've already done that so we're going to give zero and as a result they found four hundred fifty thousand dollars worth of damages they contract is not the same as being precluded from entering into future contracts most people would think that you could say well some of the evidence of consequential damages overlap but they're conceptually different absolutely they got confused and double counted i mean we have to do something about it but if only if you know that they were confused if you cannot if we can't right if you're out i don't understand you're doing a great job of construction but it's but it's kind of construction without a foundation see if it isn't your problem isn't your problem that michigan law would merge those two cli s i'm not sure that that is a problem of mine well if the if the underlying basis for your claims before the jury is an alternative client name and michigan law itself say as an account stated klein supersedes a breach of contract climat think that's fisher you know there's there's there's case law in michigan on that and if you are basing your klein on michigan state law and michigan state law says these are two alternative climbs that merge then how can you get jury verdicts separately for claims that the basis of which the law requires merger if nothing else is clear your honor i believe it's clear that our account stated did not incorporate our claim for breach of the two thousand and generally so so so we had twenty nine orders out we believe the individual the wednesday contract design group for those orders but they were combined into a state of account and yes that statement of account constitutes a new contract merges our individual contract claims for those individual orders into one contract damages breach of which result in direct and consequential damages absolutely but we never merged into that proving the claim based upon breach of the earlier wrongful termination of the two thousand and eight agreement and that's the that's where the two hundred fifty thousand dollars in damages come in i understand that that's not exactly the same thing as as the constitutional claim of course it's not nor i can i can conceive of damages resulting from the constitutional department that are in addition to the contract the breach of contract of the two thousand a degree and but they're very that the overlap is remarkable address attorney's fees yes your honor it gets back to the comp the the only other question that i'm concerned about it is the jury instructions it in just looking at the jury instructions it seems to me that the instruction on damages related to the breach of contract klein is it your position that you submitted damages instructions to the jury from both camps stated an breach of contract you're out of your stump me i don't recall i don't want to misspeak your honor thank you yes i don't recall those specific i think that there were independent jury instructions for breach of contract an account statement account on damages also you think  memory i just don't know for certain was that a breach of contract two hundred fifty thousand dollars based upon what mr folkie testified to did he say well they would have made two hundred fifty thousand dollars or say based upon your honor i'd again we're getting back into i'm not sure what the jury had in mind mr funky absolutely did testify to it it was just math that he did as bad to gross receipts over yes your dad had greater than testimony is all about gross profit he says and i think i think what the trial testimony came in is that gross profits turned net profits didn't matter because they cancel each other out because the only additional subtraction in the equation would have been the overhead  the cost of debt service and things like that and those that did not decrease as big as the contract for a million dollars but it would have cost you seven hundred thousand to perform your damages or a million or your damages are three hundred thousand no that's how he what he calculated gross profits at were the revenues less the direct costs so if you if it cost you seven hundred thousand dollars to perform the gross profits according to his calculation would be three hundred thousand dollars the net profits is something that the  state's expert suggested you should consider which is well you've got overhead you've got the cost of your facility you've got that in the seven hundred thousand because it's not direct because because i can't if i have a contract i can't say how much of my loss versus the they are but there's a difference between a contract claim and a department due process claim i mean some you describe some overlap and maybe some of the damages you might get but what you prove is different isn't there is there's just no way that we could have supported a const our constitutional claim without addressing the contract claims given that the wayne states justification for not paying on the contract was the very same justification that i gave for the four  ford did barring contract design group and robert murray they were the same issues we would have had to depose the same witnesses regardless of the cause of action they not only there was not only a comic four but these were almost the contract is too much because the the due process claim is not the merits of whether it should have been the bard it's what process it was given so the due process claim doesn't second guess the merits but but telling them about in these were all these were all issues that were the same issues the contract design group needed to to to to to assert and prove to support their breach of contract when wayne states response to contract design groups questioning on the basis for debarment was only to refer contract design group to the letter terminating the contract saying what we said it all before and to earlier e mails in conversations where swing states said that it wouldn't pay the individual orders because of alleged fraudulent behavior alleged violations of the prevailing wage i see why i mean that all seems to go to the merits of whether he should have been disbarred which you're saying is overlapping with the with respect to the notice your honor the notice might be sufficient if wayne state had provided all of the bases for that for the department in the notice we needed to depose witnesses to determine it for example to determine whether the notice was sufficient and though those witnesses there's not a single witness that we deposed in that case that we would not have had to depose but for if you know if we were doing one with respect to the attorney for use you i think the basis for the court's abuse of discretion in combining all of the fees that stemmed from the court's premises that c d g should also receive attorney fees in this case the court really never exercised its discretion to divide up the attorney fees should this court hold as i would submit it should that c d g should have gotten any attorney fees if you just look at what mr murray should have received i believe the trial court could have done a much better job but it started out with the wrong promise that everybody gets are tiny fees in this case with respect to just ranches question regarding the account stated the jury was given the elements of account stated but i at this separate damages instructions as i read them were really with respect to the breach of contract claim and it was only with respect to the breach of contract claim they have the court instructed regarding consequential damages if if  we determine that there was an actual merger of the two cause what is your argument as to how that would impact attorneys fees then it would mean there was no breach of contract so i guess it would not really resolve the question of whether that would make a difference because then the question depends upon what evidence and actions were necessary to prove have you considered taking it up again if the court would suggest that would be helpful we would certainly be i don't want to speak for my colleagues who may strongly feel that the case should be affirmed or reversed but after a three week trial you had a three week trial i'm not sure it's a valuable use of resources to send it back for more and more of the have anybodies resources and so i think some of  i would feel reluctant to reverse here but but on the other hand there are some significant problems with the way this verdict appears so without saying any more i think it looks like a case that serious consideration of settlement ought to be taken i would concur with that i think there's there's a lot of money online for both of you and you might  wait a decision that would split the baby or reverse everything or a far or you might have a hand in resolving what she took and how you resolve it so i would strongly suggest that you contact the mediation office of the