world insurance company i expect that the time likely will not permit discussion of the nd issue which we have raised in the us the court has questions on it so i expect that will rely on the brief for that issue is appeal  about whether or not the judgment below can be explained in the absence of competent proof of damages in a case for breach of a partially performed construction contra this is proof that is have been required by this court most of it and so i have some record questions because i agree with you that's the issue but i have some different points of views about what the record actually shows as to evidence so here  questions st of all i looked at the jury instructions and how the case was tried because this is a jury trial so we don't look at that and as i understand it the sole claim was breach of contract this one a quantum error because of action i know that may relate to damages but the suit was for breach of contract for compensatory damages is that correct that's not i know we'll get to the measure of damages but i looked at the jury charge and damages is the reasonable value of the labor and service performed by a t o that pretty much is what it was reasonable value of the labor and service they didn't get into profit i know what the florida law says about damages is diversity we're bound by florida law there's no question what florida law is you can prove damages quantum merit you can prove that profit plus reasonable value whatever but here's what this jury was it was reasonable value of the labor and service performed and as i understand your case you say they didn't prove reasonable value a breach of contract point and if you if you read these cases on this issue historically they used to differentiate between a quantum arrow would cause of action and breach of contract cause of action and now they got a measure of damages not correct there was a substantial the discussion of the german structure spans over two days in the transcript you know i believe it's the end of let me ask you my question to the charge that was actually given was their appeal have you made a claim that that that the district court improperly charged the jury well we hope that's a yes or no so our we did not raise it always let me move on then we know the jury was charged you've got to show reasonable saying and i agree with you in some cases pay applications and percentage of work is totally insufficient but there are pay applications that are like one thing and they're pay applications that are totally different so i'm more talk about you know pay applications you ready for that ok i look at the pay applications and they have a schedule of values that has one hundred and fifty dollars line items where i have value is put on each item of work are you with me on that is that correct and all the pay applications were in evidence correct yes in fact it's so detail the pay application site to remove a floor that's twelve thousand dollars in both of these different buildings to remove the cabinets to do this i mean they have the numbers wrong it even says the hardware for the new door they separate the hardware for the new door versus the cost of the door it's extremely detailed pay application right yes ok and then they had change your orders and they extremely detailed to separate about a lie down is to the value of the work correct yes so here's midst of a car is testimony about all these schedule values in the pay application because i think you and i might be candid with you i think you use some general principles from florida law to try to that are not applicable all the evidence in this case is kind of a general principle but when you look at the evidence you have entirely different scenario here you know your client midst of a car testified he negotiated the schedule of values with a t o in those pay applications you don't  eight he says and you believe there was a fair market value in the contract yassin the payoff for i mean a schedule of values he agreed to that right he agreed to that in that context us stronger well he go to that next then and you negotiate it the change orders chew yes and you agreed to the price is contained in the change orders as the value of the work that's correct to write yes ok and then not only do we have in the pay applications we have extremely detailed as i said down to nuts and bolts one hundred fifty two dollars items you then have the contractor certifies that is the amount of forecast completed i know there's a percentage she put sand i'm looking at one dollar pay application he says i've done twelve percent of this lie and i am and he certifies that the lan that work and the architect comes in and says that in the sort of cation the work has been done by the contractor and he goes further the quality of the work here's my bottom line question you've got to have some evidence to support the verdict your position is there's no competent evidence to support the verdict it's ok and the verdict actually they asked for about four hundred thousand main the district court was very careful took everyone to your defenses like they left the job they shouldn't have laughed they overbill took every defense you did and did a special verdict saying no no no no the architect said that work was done and the contractor certified it it may be totally dead wrong you had some evidence that they were false but why isn't that for the jury t applications that they can imagine excluding these well that issue in this particular case had do with their reliability which was the over billing issue but if but if i can get to addressing this your specific the value is not the value to the defendant it's the value judged by the market and worse when mister of a kerry peter farey talk about it he spoke about it in terms of an aggregate value for the entire contract so a t o to to remove the profit portion of those elements of damages and it was simply hears what the contract to behave is which necessarily includes overhead profit and because that relationship is not the move the profit last profit reasonable value of labor and services and overhead to perform that labor is a reasonable value for a comp then start damages i went through all y cases and none of them have evidence like this about pay applications or percentage of complacent this was an extra line like detail of schedule that you are i think that's exactly what they have when they have when you're building a percentage of completion we don't we don't know on the individual cases what level of detail was there but even under your theory if the witness testifies that's a fair market value now it might be that you could argue that which you didn't that's an opinion testimony that that would require qualification as an expert and should be excluded on that basis or something like that if you can if the witness significantly in the receiver and that she did not have to go it is the judge was adamant about not letting anybody talk about values other than experts did you appeal as an issue on appeal that her testimony should have been struck and not considered i know you you disagree about the way to give it or defect but did you ask for it to be struck on here we argue that it was not competent evidence to support the claim for damages  shows what the damages let me read from her testimony because i should have mentioned her along with your own client she said she prepared to pay applications that were submitted she said i walked through the buildings with my team often with the superintendent from the general contractor she says and i quote we didn't really nice she's with your client the general contractor we visually inspected the work that was completed assigned reasonable value and put into the pay applications and asked to you input at the reasonable value of what happened next then we would set submit them to what happened next we it i think you're right under florida law there's sometimes pay applications percentage of work don't cut it isn't the problem is what happened in this particular case and the type of pay applications that type of testimony just i just felt like should know where i was coming from mister part of the state so you'd know what my concern is site and i've used a lot of his time so go ahead and say what you want to say to minutes yes i'd like to address i guess probably two principal issues of your concerns st that the cases do not make the distinction that you're drawing about the level of details of the application for pain what they what they prescribe is using contract values contract the use to calculate damages on a quantum aero club and so so that's that's that's part one and what happened here is using contract values which include overhead overhead and profit margins which is which is improper for want to marry there is there was no evidence presented on labor costs no evidence presented on the market value for the labor ms looking over had no value for that and if you her testimony additionally was that she was calculating the values that what she said was that reasonable value was being jacked late on a percentage of completion basis if an item had a line item of say one hundred thousand dollars ten cents of them were done she would which which relates back to a couple of things regarding the certification issue which which giotto you talked about a couple of different times the st is that the these payment applications both under the prime contract and under the subcontract  are are not final they're subject to being reviewed in revisited at any time indeed to subcontract describes them as estimates and then with respect to the architect certification the architect certification the language in the contract section i point for point two of the general condition specifically says i'm not looking at the subcontractors applications for payment to determine value but the market value is in this case is viewed what mr don't want to talk about these cases and all that but isn't that really what this is about well if it is about the charge as to the images and the evidence submitted and the reason why i want to and whether or not they have any value or not are all where that authority is granted in the contract it's not something you're in support it just floats around generally if that authority is not granted in the contract it doesn't count  that was objected to and the judge and and the judge and the magistrate judge refused our ability to get that so there was no evidence that came in on that that would show those values but but the key point is that this well that i think the way that judge paula was suggesting by her questions this was being evaluated was in essence the measure of damages for a completed construction contract which is where you take the contract the total contract value and you reduce the amount that might not have been performing it but it has to be a substantially performed contract and we're happy you're reverse engineering it and i see if they do your head i'm not presented of labor and materials because the contract values are not reflective of damages on point tomorrow it because point tomorrow it is in effect a d rescission eory measure of damages is to put the claimant in the position they were before the contract was entered into it and here by a by the claim that was being made those measures of damages in those evaluations include a measure of profit which is specifically not permissible and there was no evidence presented on the underlying waiver we don't know what the hours were we don't know what the rates were we have bits and pieces of it from jane to order but certainly no picture the question is for that this  is some evidence of the reasonable value of the labor and service where i'm not sure about the substantial evidence any evidence to support the verdict is probably enough evidence to show by a preponderance of the evidence but the question here is everything in this record is it enough to sustain the verdict to show the reasonable value of the labor and service you're right they didn't put in labor rights they didn't put in this and that the question is what they did put in is it enough that's the question and the answer that your order is no because under the cases that we've cited what they did