the judges of the united states court of appeals for the force are oh yea oh yea oh yea all persons having any manner or form of business before the honorable united states court of appeals for the four circuit are marched to grab not and give their attention for the court is now give specific tours to see a specific premises and they might get proposals and montgomery park as we outlined on pages eleven through twenty of our opening brief did every one of these things in fact within essentially ignore everything that was done by my governor report except as to those things which only or specifically referenced the n c of space for example the district court said at twelve thirty four of our extraction that they must advertise and say you know and promote it specifically and not part of an overall scheme to fill a larger vacant space the district court said  at twelve thirty four of our extract that you must give special care and attention to and the c e o the most astonishing part of what the district court said was at twelve twenty nine where it said mr haas was hired to act you worry that there is a landlord who thinks i should be putting more emphasis on my other space because i can kind of count on a rent flow from this one on in the form of damages so so that i am i imagine that was the district court's concern right that we've found which says that secondly there is no evidence that that ever happened or resulted in the i'm going to the ironic part of this case is of the five hundred thousand square feet that was a e during the damage period only seventeen thousand of those feet were ever least so montgomery park was unable to lease its own space it was on able to lease the n c o space involved a residential me sort of course there is a maryland statute which deals with what the maryland public policy is with regard to this issue and it deals with only residential leases but the standard that is set forth in the statute is virtually the same standard as set forth in that sleeps which is to use reasonable commercial efforts well the maryland legislature when they when they adopted  statute basically included a statement saying that the landlord does not have to favor the defaulting tenant space now if the maryland legislature is establishing the public policy of maryland and in the residential area which they certainly would have more interest in protecting a way to the faulting tenant than then that commercial area you have and national company who's renting hundreds of thousands of square feet you would think the maryland legislature if they are establishing maryland public policy would would have gone as far as they thought reasonable to go to to protect the tenant but that's not what happened there's a specific provision saying that the l can run other space and building and not rent the defaulting tenant space so even the public policy of the state of maryland in the statute that they adopted indicates that the judge the district court standard is political in maryland in fact when you look at the wilson versus rule case what the maryland court of appeal said was all you need do all reasonable live or needs to do is to hire a broker brokerage mr gaines admitted was the type of broker with the experience of a broker who is a reasonable way on board with hire and so what we did was what wilson versus rule specifically said is all that as much space including the n c o space in this building there was no restriction in fact the landlord could have said police all my space pardon but that's not the testimony mr haas testified his instructions were t lease all the space in the building with no restrictions lease the space we make your commission which is exactly what he attempted to do tried to do but frankly was unsuccessful in doing as indicated by the fact that seventeen thousand of five hundred thousand square feet were released i also suggest that the case that was relied upon by the district court the circuit city case really doesn't support the propositions but generally as as used by the district who are specifically in this case one of the interesting things about circuit city you will find that there was a rank claim that this wasn't even an issue if you read circuit city and i'll get you the citation to the provision in circuit city or the court found that there was no rent claim of vailable because the landlord had accepted the surrender of the premises and at eight twenty nine atlantic second on page nine eighty nine what the court of appeals noted was there couldn't be a running claim because the not there would be mitigation there are two things to note when this first of all the landlord in that case had demolished disposal and the lease premises so that the exact lease premises couldn't be relied he destroyed it that's not the case here the second important distinction in this case is that the lease in this case specifically provides that the purpose the purpose of the provision requiring the landlord to utilize reasonable commercial efforts was to mitigate the damages the lease which was negotiated by sophisticated parties as this court found in the first its first opinion the leas doesn't say use reasonable commercial efforts or you get no damages it's a forfeiture the lease could have said that it didn't say that it basically simply says use reasonable commercial efforts to mitigate the damage and yet the district court in this case did not apply that it's there and whom it simply said well you got no damages well that that is not the law of the state of maryland never has been of the law the state  clearly has been over the years and there is no indication that the mitigation rules were intended to be changed circuit city in fact circuit city said when you send the case back to the district court  court can look at such things as who food liar and what revenue did they get from food line you were call in circuit city the there was a food store in the premises it was the tenant left  damages by the fact that food liar did come in and take some of the spikes so circuit city doesn't stand for the proposition that where there is no mitigation you automatically lose it simply stands for the proposition as we've always suggested in this case that if there was some factual farthing that was the accordance with maryland law that there was no mitigation that it goes back and there's a decision on what whether or not that reach condition correct there is nothing in this in this lease which and so the idea is if it would take at least a month to lease that's the argument the other side would make you're still entitle to damages for at least a month they could demonstrate that but your argument is i gather the court treated as a condition precedent which is not a mitigation doctrine medication i can focus on those damages that could have been a to exercise reasonable care is the mitigate damage not as a condition and the question is did we fulfill the obligation if not it is the defendant and ceo's burden to prove that we failed to mitigate empty space can you dress that yes or no it is absolutely correct to costar was not listed specifically the b and c there is space was not listed specifically in post it why would i move into a building which is half empty back kind of issue and yes that was a business decision that the owners and frankly i'm frankly the pick hind of potential lessees for the space of forward it is correct that the district court basically was concerned about that issue but i'd suggest to the court that a landlord doesn't have to do each and every possible thing that a landlord can do don't landlord has to act reasonably it doesn't have to act and do everything that after the fact somebody can come in and say well you could have done this and you put it on that that's not reasonable and or the standard of reason was the question is under the case law that is both in maryland and maryland and around the country what does a reasonable landlord have to do wilson versus rule says all you need to do so are broker let the broker worry about it and in fact it was the broker for three  who was the one who was the costar person who they would communicate with and the broker didn't feel that it was necessary to show and say you know space one costar there's not a shred of evidence of that so the  standard doesn't require everything it requires reasonable miss and as a matter of law wilson versus rules of hiring the broker was reasonable but we did much more than just hire a broker we did various things as we talked about so yes there is evidence that we could have done some things on costar we didn't do there's also evidence that it wouldn't have mattered what typically happens because costar nobody knows when you look at costar whether it was updated yesterday a year ago or ten years ago all i know is it shows the amount of space so what mr haas testified to is what a broker dollars when he sees that if he needs one hundred and one thousand square feet he calls up we're going to need five hundred more than a dozen tours of the n c o space so it wasn't as if we were ignoring the n c o space you can find something that we did to some other space but not on seo and they did they found costarred work where we did not list becomes our space specifically but we appellee and c e o i'd like to address judge harris's question about the stander that applied in this case and then judge newmar i'm looking forward to a conversation with your honor with respect to the contract principles that apply in the case where you have an exchange of promises as you did in this case than the effect of a finding that the in this case the promise extended the tenet was not satisfied but i would like to be again if the court will permit me with respect to mr goldberg twice misstating the language of the will soon be rule case and in particular he twice said that according to wilson the rule all a landlord needs to do is hire a broker and in fact that's not what will soon be rule says and it's significant in this case the language and i quote surely and this is a reference to the maryland statute surely section eight dash two a seven requires no war then that the landlord seek out a reputable real estate broker and list the property for rent with that broker and that sheep judge gregory is what did not occur in this case it is not correct that they didn't list the n c o space the n c o space was shown on  costar as being occupied by an seo for the entire damages periods of the space was shown on costar but it was shown is occupied and unavailable for rent and when the district judge asked mr rice the managing director of my very park what we're what we're respective tenants told about  status of the n c o space where they told it was occupied his answer was i am not one hundred percent sure about that that testimony alone  it please the court would have supportive district court's finding sitting at the trial or a fact that reasonable commercial efforts were not used and reasonable when this under maryland law is quintessentially a issue for the finder of fact we cite the physician services  district court applied a legal rule that sort of general efforts to run the space would not could not constitute reasonable commercial effort as a matter how significant they were that there needed to be efforts targeted specifically at this  space is that your understanding of the legal standard not not not completely iran or the i think the district court finding in that respect with two people the district court expressed skepticism repeatedly on the record and then in its opinion that all of the things that the landlords said it had done were that done there were a remarkable few documents i don't think it's a i think it's a question of fact for the finder of fact with respect to what the parties meant when they used the phrase reasonable commercial efforts in the least so your understanding is that the district court made a finding that these parties intended that language to mean effort specifically targeted at the n c o space well i think our best thing i don't think the who or can i let me just ask you my question see if you can help me understand this case i am concerned that the district court applied a legal standard that would have required the landlord to make efforts that were targeted specifically at the n c o space in order to meet the standard and that the district courts finding turned crucially on application of that legal standard and i don't hear you defending that legal standard so this is my concern can you address that while i'm i'm definitely if defending that standard which is the case is cited so that the differences between a contractual provision in which the parties agree that commercial a reasonable commercial standard must be used versus the common law or mitigate in standard with respect damages which was not is not applicable in this case so i think the court found out when a to follow i think the court of found that when the parties agree using objective lee clear language under the jet do you know theory of contracts when they agree that reasonable commercial efforts are to be used to mitigate damages with respect to particular space but that is an agreement to use those efforts with respect to that space and while efforts for the building in general are not necessarily irrelevant to satisfying that standard if it does not necessarily satisfy that standard and that peer response to the point that she judge made one hundred percent and while the testimony at trial was ambiguous at best with respect to whether that was intentional or it did in re park and we have a long footnote in our brief in which that testimony kept changing which in another itself would justify the district court to be skeptical of the testimony but if we take them at their word that what they were trying to do was not make the building look too vague and they could easily have paid in some of the non and ceo's space and shown that as unavailable to how the district court treated the it's finding that this contractual provision was breached and i it is very much our position that this is a case which needs to be analyzed using contract principles and the effect of a of a breach of a material provision and there is a case which is not  harris case and it is the site is two twenty three maryland three o five it's a nine hundred sixty case written by judge prescott the american court of appeals it is it is the case relied upon by the it's in the very first case cited in the reporter's notes section two thirty two of the restatement second contract and the willesden treatise refers to the k and g cases a leading case on the question of what the the promises on the obligation the other party i actually understand that i think that's what the district court did that when you have mutual breaches in a case them one is a waiver of the other for fish or whatever it is my problem is it looks to me in the contractual item here that the language does not make it a condition to the contrary it says there is an obligation on the landlord to mitigate damages but that damages will continue no matter what it doesn't make it a condition to further damages and the parties seem to agree as did the district court that the common law doctrine of mitigation of damages was incorporated here and that that doctrine by the same standard you're looking at these texts and that in the cases and judge bell's opinion basically you focus on those damages that could have been avoided by reasonable efforts in other words it doesn't it doesn't cause a forfeiture of all damages it only the doctrine but we're both looking at the same contract language we thought we are honor and i would say with respect that i do not believe that the language of the contract is as your honor condition the fact that they going to get damages what it does condition it conditions the amount of damages it says you reasonable efforts to mitigate damages and then it goes on to say again but  damages still are ongoing so the burden is that is exactly the common law doctrine and the common law doctrine says you focus on those damages that could have been avoided otherwise you're before fish and  within a few months and your letter this is an assumption now if it takes three months to lease it that means damages continue for at least three months because those damages could not have been avoided and what the district court did  months after the breach and so you had leased out three months of damages the district court forfeited those three months were precluded because the court said this is a mutual breach under the doctrine of where you have somebody which is a contract and the liability is then a wait here we're focusing on just those damages that were medicaid but i understand your argument no your honor i'm not sure you do which is first of all they knew in if you wan focus on the timeline they knew as early as february two thousand and eleven that and c e o was going to be moving out of the damages period didn't begin for another four months so if your honor wants to say that they needed a little lead time they may have months in which to listing on costar is something that literally can be done in the same day and we and fact that it's a contractual provision but the contractual provision only addresses damages it doesn't address liability it only addresses damages and it says damages have to be medicated so you start with the assumption there are damages and those that are not two thirty two of the restatement second says they were talking about exchange of promises which are presumed to be dependent on each other if the court is to focus on the relative importance of the failure performance in the light of the situation of the parties at the time of that failure the landlord's failure here its failure to honor its contractual promise began on  the first day the damages period and extended for the entire damages period and the common law says that where you have such an abject failure to honor who penned it promises you don't contract that so the grab a contract but then after that after that breach the rest becomes then how do we deal with what are the resulting damages and does have some obligations on the part after of the lease and your honor i mean it just seems apropos of the court up your patient that you know the cases talked about how leases are this common law leases are a hybrid between the l property and the lot of contractors but there are also clear and maryland hot haste to talk about this that once you get into the default provisions whereby there has been a surrender of the premises and the landlord is entitled to damages from the tenant then you're impure at that point police were no longer under modern conception of these things were no longer in the law property where there's there's been just this conveyance of this leasehold where we're just in contract land and in contract land these are b we the tenant is required to pay damages these are no longer this no longer rent these are damages as they require has a contractual obligation to pay damages and the landlord is required to use not under the common law avoidance of of harm concept which is typically when we talk about mitigation but on but on a contract promise here which thing which is this case for many of these other comment b i read from section two thirty two said that we focus on the position of the parties at the time of the failure to comply with the promises and if you do that here your honor you have a the only really the only right that tenet had which was it says lou we will be liable for all of this rent over all of this time but you agree you've got to use reasonable commercial efforts to fill this space so as to cap our live below the limit our liabilities and they didn't do that and if these promises are dependent as they are presumed to be b the landlord need only seek out a reputable real estate broker and list the property for rent with that broker well if you look at the joint appendix that is six six one to six six two quote from the listing green the listing agreement says the broker shall use diligent and commercially reasonable required services in connection with the marketing leasing and releasing of all or any portion of the property so all or any portion of the property includes the n c o space and didn't include the n c o space even as indicated in the opinion of the district court th district court noted it extra joint appendix twelve twenty eight the following i think this is really i'm critical to some of the court's questions on the the basic issue these the court said quote montgomery parking this is an court's rulings through himmel rich rich did it before they hired the broker and mr haas who was the broker engaged in the words of the district court significant effort including the creation of brochures hanging barriers in gauging with prospective tenants and conducting taurus of the premises including several tours of the n c o space that's what the district court found as a fact that we did all of these things including tours of the n c a a or space the assumption that we simply did nothing that n c o was disregarded is simply not in accordance with what the trial court even final and he found that we had done several tours of the n c o space bar the standard he applied to ignore all those the standard your party goes on to say frankly i thought we whining after that statement was well he goes on to that make to say that we were supposed to hire a broker essentially just to do n c o again there's a no no no no that's not what the court said said that when we look at what you did it seem like it was is it mercial it reasonable to list it such that it would be implied that it's occupied these under these circumstances the answer is yes the landlord has the right to make a business judge the landlord have the right to make the business judgment dr your mind you have a right to make business judgment but there may be consequences for your independent judgment as you might lose your rent that's the whole thing right is your business you could do anything you want so if you a but it has consequences though doesn't it but bad judgment included the judgment of a professional broker and we're entitle to we don't need a professional that's common sense i mean i mean i'm not a real as they brought about i know you list in my house to make it look report participated in that breach sort of the breach have occurred the question is what damages are we entitled to reprove the amount of damages for ram they're in title two it was their turn to show  finds we didn't use reasonable efforts for the rest of the period even though we hired a probe but were entitled to fifteen days of rare art weight and if and even if we had released the premises to someone but had to give them free rent the lease provides that we that's a credit against any mitigation and things like that so according to their theory it's simply purely a forfeiture and it is not a forfeiture because that is not a condition preceding to the recovery of right under the lease and it is specifically stated in the lease that the whole purpose of the provision is the mitigate damages in three months you think would be commercially reasonable to wait until they all left three months later before you stop actively trying to get the feel of what would be yes but what's interesting in this case is we did show but if you had six months before it even as a fact question whether or not you in fact have any kind of the window started then well but the court has this record even acknowledged as a fact that we we gave tours of