parker is that right issue or wrong go to both of you in commending seattle counsel i don't want to be disparaging california and montana counsel as we have excellent advocacy from well these states so we certainly took no insult from the from from the courtroom marks but thank you your honor the mate may please the court my name is russell petty the over the course of those eleven years my clients have received a number of iranians have an entry and procedural rulings but significantly have been successful on those occasions when they've been allowed to take the matter before a jury i submit your honour's that the case has gone on long enough and the time for procedural machinations should be over and respectfully as this i have to start someplace else i'll start at the tort claims which in spite of the fact that there was never a ruling that there was anything wrong with any of our tort claims nonetheless somehow went away the  procedures important counsel particularly in this case where you've been up and down before and we have a a prior disposition from another panel of this court and as i read the scope of that prior disposition the remained was on the breach of contract clean only well well well i mean but that was the you know your honor the only ruling i mean if you look at the district court summary judgment ruling in flagstone one the only substantive ruling made is that the contracted been abandoned and the there was no discussion of the court claims there was only one fairly cryptic line that said something to the extent that the without a valid contract in existence the claims against wayne joyner just enjoy and are empty fail now that was a probably a reference to only ruling that the district judge made was abandonment and then the only reasonable reading of that order is tying the tort claims into abandonment because there's no other ruling with respect to the tort claims but yet they were included in the judgment so in addressing you know before this court the only ruling that the district court made which is abandonment of the contract when when this court in flagstone one reversed the district court's ruling that there were no material issues of fact with respect to abandonment it necessarily revive the tort claims because the only basis for the dismissal of the tort claims under any reasonable reading of the flagstone one summary judgment order was that abandonment addressed on appeal every substantive ruling that the district court made with respect to we with respect to the no are empty and it's claims it and your honor with with with respect i mean what did happen to the tort claims i mean there was never a ruling that well you know they violated statute of limitations or there was insufficient evidence or or anything with respect to that now if we don't tie those tort claims into the abandonment issue what that means in effect is somehow they were included in a final judgment by happenstance or mistake b and you know maybe m counsel for for are empty could could address this but but you know there's no reason for those claims to have gone away other than they were tied to abandonment or there was just mistakenly included in the judgment and and i submit in the event that they were mistakenly included in the judgment which is the only other alternative that this courtroom hundreds discretion under under singleton re wolf and and here those issues anyway because otherwise it's just a simple miscarriage of justice the error the she was not especially retained expert because she was not specially retained expert she had no obligation under the federal rules to write a report the judge excluded or for the sole reason that she didn't write a report that she she never had any obligation to write in the in the st place and and and i don't think that that aren t dispute that that ground for exclusion was with was improper instead are empty argues well you know there were other grounds that the  district court could have excluded ron she wasn't really a proper expert she never issued any opinions and i really think that you know rulings like that by the district court are discretionary i think it's probably a mistake to speculate as to how the district court would have would have exercised its discretion and beyond that i think what ms achree did was entirely proper what you did was she created a document a spreadsheet that compar the prospectus that had been done by the flagstone with the cash flow projections that had been done by by mr joyner and and our empty in order to ascertain that basically the numbers were very similar the prospectus was already in basis for his calculations doesn't miss socrates opinion suffer from the same deficiency well no your honor b well i mean i mean in part she she she wasn't doing an opinion she was merely just comparing the prospectus with the with with the cash flow projections but the cash flow projections your honor they don't need a foundation or did mission by a party opponent the law of this court as well as other courts is that when a you know an opponent testifies or provide some information or it's you know provided information in the past about the value of of a piece of property that it doesn't matter where there's not good foundation for that for that opinion or that statement because this is something which is taken care of by the adversary process and here are empty and mr joyner created this cash flow projection for the purpose of obtaining financing that they used it in front of rd parties for their own benefit and they shouldn't be not and admission and you know beyond the fact that we don't need a foundation for that cash flow projection yeah i submit that we could probably help build one if we if we had to we have never given an opportunity to do so but  mr joyner is extremely experienced developer of ranch land i mean probably the most experienced developer of ranch land in the state of montana and he both in that cash flow projection numerous e mails that went back and forth between the parties and between are empty and the financier made numerous statements about the expected profits from a development and all those are missions and all of those should be admissible and the jury may not accept them you know that's certainly a possibility just because something's admitted into evidence doesn't mean the jury's going to agree but there's no question about the fact that we should have had an opportunity to put this evidence in front of a jury and it should have been been been taken away from us on the prior testimony well you know he didn't have any prior testimony you know he did as a matter of fact stated he never never testified that was also in the initial report he hadn't had any publications didn't disclose publications but he had no publications to  disclose and the district judge also indicated he didn't describe who or indicate the data he relied on while there was eighteen you know various documents that are listed in the report that he'd that he had relied on so i mean that  also was was it was incorrect that the district judge then indicated in a subsequent ruling well you know i can ascertain from looking at his report a lone whether his testimony is reliable i submit to the court that's wrong both as a matter of fact and as a matter of law fair notice to the other side and the report was more than adequate to do that and now we've we've got to one of the things that mr foley was going to testify on was the cost of a constructing roads i mean it says in his report that he personally has supervised the can construction of hundreds of of miles of similar roads i mean i did there's nothing you know mysterious about you know having done something in the past having cost it something in the past and applying that  experience to the roads in this case i don't if i could interrupt you just i missed please i know the district court did not address this but i have a concern about the montana statute that seems to suggest that with respect to the breach of contract can be real estate lost profits are not available in a knucklehead opinion from the supreme court of montana seems to to the sale of property which which simply haven't looked at that well have and noted those numerous opinions are all prior to knucklehead and involved as i read them involved issues really don't understand why knucklehead is not controlling in this case well because because knucklehead was first off i mean the if the montana statute was applied to all real estate in what the montana statute doesn't we're talking twenty seven dash one dash three hundred and fourteen and it it limits damages to the cost of examining title and the price paid for the property i mean that if that was in fact the law in in montana with respect to real estate cases the you know you can have option contracts you can have earnest money contracts that would make those essentially you know a situation where you know the day before a property was supposed to close somebody can just walk away from from the property pay only minimal if any damages and any damages whatsoever which is why the other courts dealing with with property loss have have applied a you know an additional  you know a different standard which is that for damages for breach of degree myth fell property you're entitled to any detriment caused caused there by i notice the knucklehead case with with a very unusual fact pattern to your honor and it basically lends into our argument that the statute that we're talking about is really only protection for title companies because that's what was exactly taking place there what happened the knucklehead is the sale did not go through because the title company that was running the sale had a concern as to whether the sale of the title with was valid because of an i r s lien and so they cancelled the sale they had another sale knucklehead with not lower bitter at that and complained well you know that wasn't a contract to sell property because none of the parties actually owned the property this was a failure to live or clear title which is what the statute says and i submit the use of the word failure to deliver clear title is is indicative that it's really excluded the experts and found that a claim for a claim for lost profits was sufficiently speculative that it threw it out on that basis and never got to didn't address the issue but it still is controlling under the doctrine of right ruling wrong reason or as they say in many state courts it's called the tipsy coachmen rule in many state courts i've never seen the  circuit referred to as that but we believe the knucklehead case is controlling we believe that it is not it's not an easy task to defend the exclusion of fully for the perceived deficiencies in his report i think we have to concede that the report was probably sufficient and that the district court erred in kicking the report out on that basis but foley's testimony was not going to help or hurt anybody because to foley's testimony was simply that the that the project was and was feasible from the fact that the right a number of architects and engineers could have constructed a project like that he did not have anything to do with whether it was profitable or not and in fact one of the reasons we didn't move to exclude him is that trial he would have to demonstrate he would have had to testify that his project that he and envisioned did not have any economic feasibility we believe that's where we would have gotten so as for sacr she was not employed this company she never was an employee because this company never had any employees flagstone head an officer and director mr heath i don't think it ever had any employees no evidence that sacked me was an accountant i flew down to scottsdale to take or opinion or a testimony and he walks in and says i have no opinions i've never had that happen before  and it is if you're a trial attorney it doesn't happen very often and she said she had no opinions and she took two spreadsheets i suspect and ultimately said that they looked like they would be about the same  she did not have any opinions her exclusion was harmless because she didn't have any pinions to offer but it doesn't matter exclude mr foley exclude put mr foley and mr zachary back in the case and you still are not entitled  montana law to get profits under a case like this and under a case like this now the suggestion is that the world will come to an end if the court interprets the statute as it is written but that's   show damages in other ways for example in your lions on the exhibits including the cash flow model i don't believe so your honor and this is why when we were here the last time we did not know for sure whether or not judge c bills order partial summary judgment excluding the right to seek the lost profits we did not know whether or not that order was a partial summary judgment or a full summary judgment because we did not know the full extent of what the plaintiff's claim was going to be but when we get back on remained in good in gear up for the final trial the final pretrial order that we both agreed to said that the only claim they had was lost profits well at that point when the final pretrial order were going into the damage trial the only claim is for lost profits that makes the ruling that no lost profits are available that makes it a full summary judgment in the cases over so i do believe that other costs might have been recoverable under this statute but by the time we up to the edge right before trial or as we were scheduled to trial the pretrial order said the only claim they wondered is lost profits so that was the end of it and i think the essential question to documents are enough to get to them to a jury you know why not well first of all we don't clearly know where the some of those numbers came from secondly know those cash dollars cash flow analysis has a lot of ifs to get there and every one of those if it is speculation squared if you came up with the money to buy the project well mr heath never was going to come up with the money to buy the project that testimony is uncontroverted he was going to have to go find a fellow invest some other investor to put up the money someone else is going to have to buy that person's never walked into a courtroom never raised their right hand and said that they had the money so that would really speculating as to whether or not to make the down payment then you have to speculate as to whether or not anyone is going to loan him the money the testimony was uncontroverted that there was not a lender so we then you have to speculate with questions for the jury some of them were however there is no speculation as to the fact that mr heath's counsel there's no speculation as to the fact that those those were based upon what mr joyner had in mind for the property that that's uncontroverted but there's also no speculation about the fact that mr hese attorney wrote mr joyner and said that he should stop all work on the project stop all activity in the next twelve days stop stop told him to stop and that's in this excerpt so the record page ninety one and ninety six at page nine of our brief and so mr joyner and then at the end then three months after that mr heath writes to his investors and say it's not official yet but we are working to largely due to county over regulation and he goes on behind the scenes must show county brand new planner and cos it has convinced the planning board and commissioners that the county has significant liability unless all the roads professionally engineered stamp this triples road construction costs a plant of them and makes the project economically unfeasible now if you're writing your bankers in your investors saying that the project is economically unfeasible there's no speculation about the fact you're not going to get investors and bankers and when you tell the guy that they did did the pro forma and did the speculation those two exam did not the speculation but did the pro forma and did the spreadsheets that went into the big stack of exhibits when you tell him that we're not going to do it your way and you have a letter from your attorney threatening him if he tries to do it his way there's no speculation at all of the components that all the components that could lead to mr join pro forma ever even being relevant have been have been pushed off the table by mr heath himself by by saying that we're going to do it a different way telling his bankers and his investors  project is economically unfeasible so would you characterize those two documents basically as blue sky anyway yes you're trying to raise money yes well i probably in appropriately last night said and maybe even more appropriate repeated here i agree with you that it's almost like an ad for a car you know i went and bought a brand new mustang it's a year later i don't have a girlfriend yet what's wrong i saw he had i mean he just  manning here's helped us out with the brief he's said about everything i need to say in the brief and and that there's any questions i do believe that there is no nothing under montana law that would allow you to get speculative damages to get lost profit damages anyway it's just barred as a matter of law it's clear as a bell in the statute and with respect to the tort damages the were that misjudged order wiped out the tort claims this court affirmed it and remained it only on the breach of contract claims it says it right here you know we we re man for further proceedings the breach of contract issue so that everything but that breach of contract claim came out of this court for review by judge had and once we learned it only lost profits were a component of the damage claim they were taking to that last carry judge hadn't appropriately but maybe for the wrong reason granted a motion for summary judgment thank you for your t