good morning in may it please to one of the interesting issue this appeal raises relates to damages because the central issue an error we contend  at the trial for committed here was finding that remote consequences were offset or breach savings as we call them in a reply that should be applied to reduce lost profits previously found by the trial court and we contend the trial court heard in that finding because this court already affirmed the trial court's finding that the foreclosure of the riley mortgage here at issue was not there are a couple sets of repairs so let me just be sure i understand you want to question there was one category of major repairs of three and a half million which were estimated and based on pre writing the loan estimates of what might be required to be done to the project in those were dating from two thousand and one and those women actually never ruled on by the trial or not understand your contention they were wrong with that but the three point five million dollars of expenses which is based on  paid by englewood during the contract damages period and the hypothesized operating expenses again we contend were not ruled on by the trial court and were in fact created based on projected expenses of the project rather than actual was you have the burden of proof and that you didn't bring in any evidence to show what the expenses were or were not and that she said she gave you four opportunities to do that and you didn't come in with evidence so what's the response to that well there was evidence that was in the form of the general ledgers which had earlier been admitted in the case for all purposes and without restriction as to the use to which they might be put was she found that they were inadequate for that purpose well this court case all in other instances finds accounting records to be sufficient proof of damages and we contention burden requiring too stringent proof of the machines in this regard ok so the only evidence that you  sampson testify that there were no safe expenses i'm sorry where did mr samuelson testify that there were no expenses say those were set forth in the briefs on remaining there was not testimony taken i don't remember it but but what she said was you didn't put in the evidence so what i'm asking about is what evidence was there in the record with the evidence she says that the only thing you offered were the general ledgers they were insufficient i may ask you what other evidence was there when the general wedges were introduced into evidence in the trial court proceedings mr samson offered testimony about the manner and means in which they were created i believe that's the testimony to which i was previously flying are so it's foundational testimony relating to the general wagers so basically your whole case depends on accepting the proposition that she improperly rejected general ledgers no you want to let me explain why that's incorrect from our perspective first the trial court never rule on either the projected operating expenses of one point eight million or the major repairs of three and a half million that's clearly set forth on page eight twenty nine of the appendix the last page of her opinion says i don't resolve the dispute regarding those issues and there were clearly factual disputes in the record there were it was evidence of actual construction made pursuant to the riley loan that was far more extensive than the three and a half million estimate for example  never ruled on that factual issue finding it unnecessary because the rightly financed expenses themselves were larger than the lost revenues previously awarded so our contention is your honor that the only thing the trial court ledgers and she found that insufficient is that an incorrect statement she is she made statements to that effect in her opinion but they didn't seem to be part of her ruling you're wrong and i think perhaps i missed with reading or comes from the illinois housing department authority or riley's money is money and so it doesn't matter and there was money put forward a closing in december of two thousand and two which included the riley mortgage proceeds it included proceeds from my one hundred some thousand of capital contributions by englewood funds that are not shown to have been contributed by a lender so depending on which dollars you say went to which things won't and one could make an argument that at least some of the expenses were funded out of other things the truth is with respect to the way that the right of the loan worked many of the payments made through the riley loan never came to end with and would back to the vendor for example the construction interest payments those were kept was into the loans of the loan the bank basically paid general ledger establishes payment or doesn't establish payment that's only related to the operating expenses right that's the one point eight roughly million dollars to the operating expenses that doesn't have anything to do with the major repairs that's a even if you wouldn't have had to do all of the major repairs for which you had received an estimated three point five million at a minimum you would have had to do the repairs necessary to bring the property up to code compliance there are several places in the record where i see in that estimate that there was an attachment which is not a record that talks about the building having been found not in compliance for example with regard to smoke detectors or the garbage chute and the cover of the chute not properly closings of the chute doesn't operate properly there are a few instances of specific expenses that you've got estimates for that seem to be unequivocal e by the estimate self because those things were felt fail have failed the city or state code requirements when those have been expenses that you absolutely would have had to have incurred in that two and a half year snapshot since they were things which you found to code so even even if not the whole three point five million is on the table at a minimum is it necessary for me not the fact finder to go back and sort through the three point five million and figure out and when it be reasonable for her to say well scene within the much larger seven million plus construction program undertaken in connection with the right of the loan in our but for world we assume the right of the loan exists and we are servicing that loan during the damages period so all of those other major repair issues that were identified back in two thousand and one and periods before the december go to write the loan would necessarily have been addressed in subsumed in taken care of by the rightly funded construction program that was committed where in the record i did not understand that the seven million dollars in repairs were made i thought in fact in the exchange in the argument and claims you agree that the seven million dollars had not been spent made if one looks at the second volume of the appendix page a eleven thirty three point four nine seven zero that's a listing of construction payouts by number date amounting cumulative totals as of september tenth point seven million there are later documents back showing the closing out of the lien claim that the contractor had on the property showing that there was a suggestive to fit of completion issued in may of two thousand and four by du back to her for a fact finding out which ones work well what are you saying i'm saying both you want to i'm saying big construction that was actually undertaken pursuant to the why we won't was more extensive to renovate the building to a late new minor standing of mr samuelson's saying at that hearing was that the specific program of construction outlined in the two thousand and one proposal was never a proposal that was put into effect which is not to say that a more extensive proposal wasn't leader feel may please the court i think what's being demonstrated here is exactly the problem that judge horn had at the trial level despite giving angle would four attempts to try to prove their case they never really submitted substantial evidence that actually showed that expenses that repairs were made expenses incurred it was a jumbled mess i was going through the letters last evening that they produced that their whole case relies upon which judge warren determined whether she says in the in the prior opinion that's currently on appeal that the general ledgers were used primarily for the for the purposes soley of gross revenue approving their revenues they were not there was no demonstration whatsoever that there were any expenses incurred or that they were saying these were as evidence yes thank you and that's a fair point i apologize to the court yes we have initially objected to trial because during the discovery phase we were provided not thing on the site making the request that we saw a complete compilation for these general ledgers and we ask that the court not admit them for the purposes to prove bangle was damages which we understood to be gross revenues or of that they wanted to the delta between the actual revenues that they would have obtained but for the breach less the revenues a month later after not receiving any information that showed any of this information we you're right they were admitted were did we specifically say we were committing them for the sole purpose of only general r what i put in the second part of your question you're absolutely right and in hindsight maybe we should have been more precise but in this case though the court through all the briefings understood that angle would was putting these exhibits on electors on to prove the revenues lost because that was your theory and then find the subsequent opinions she made reference to that the fact that these were solely put on as testified by mr samuelson to show gross revenues or lost revenues and moreover should it become the weight of evidence issue so we had mary anderson who was the person dispersed the funds post breach claiming exactly what were paid and what wasn't paid and what expenses were paid but even looks assumed that the ledgers were admitted for the purposes of showing expenses if you look at the it by looking at the letters and i looked at them last evening from like say ninety seven to the end of ten fourteen there is no evidence that englewood made any of the payments it says it made there's nothing that says it made a one point seven million dollars payment there's stated i don't believe it was a limited concession as it was rails what i'm saying is that the issue about the general motors ledgers relates to one point eight million maybe even sixpences it doesn't there's no claim that the general ledger show thrive that's absolutely true we're not aware of any major repairs that's true but even assuming the claim of one point eight million if you look at the general ledger it's from two thousand and two going forward the numbers don't add up and that's what judge warren he clearly erred in finding they failed to meet their burden on those that still doesn't get to the three point two million i want you to put aside everything related to the riley well the only category left that i can tell is the major repairs like i'd like you to focus on the know whether or not the major repairs would have had to have been performed in the two and a half year when they're actually the the there is no evidence that we're aware of that shows where these routine maintenance is were but routine read between the major repairs listed the three point five million dollars estimate that some of these repairs were precisely required to bring the property up to code clearly those would have had to have been done right away and so i thought that there was some lack of clarity in this record certainly playing a part you have to do are three point five million dollars for repairs i mean just because you bring a contractor out to your they the court made a factual finding that that was their estimate to bring it up i agree your honor to to circle back your question for the three point five million repairs but the real issue was is that you i mean your honor the three point five million was the minimum amount of repairs says they would have had to perform all three point five million dollars worth of repairs to bring the property up to see yang would five i don't have the site around and i can submit in the supplemental brief but in englewood five which was where we were found to be liable for the breach of a hat contract in response to the reac report englewood submitted as showing that they did the hundred percent inspection of what repairs would be done that the ted did a architectural report so that was what we understood that englewood was smiting to be three point five moreover if you look to the kennedy report which was submitted with their loan application that was basically in november right there i mean at least as argued this court and so i think property have to come clearly we had to be done right away we said to make the argument that it wasn't in dispute as to which repairs had to be made and which ones did not why would you have made that argument because that was going to be work that would have been required to maintain the property insanitary conditions but those were a subset of the three point five million what you're arguing to me now if we didn't need it if they would have had to do all the three point five million i don't see that admission and why would the government have argued and delineate positions and what i would circle back in your honor is that what we do know what angle what it wanted with when they have contract was terminated and they applied for a two to one deal only with for hod they came forward and asked for about sixty five at six point six million dollars in construction requirements now so i will i will i fully admit that part of that construction loan was to pay off some of the old debts but the kennedy report at seven thirty dash one through twenty which is the which is what was provided to the government saying these are the needed repairs moreover we know in may two thousand and four the mistress amosun came back to hog asking for one point six million more for additional repair think and these are expenses that were not in fact paid from any of our questions understood us to be concerned over whether these were paid or not i'm assuming you i probably mean the major repairs were not taking i understand your argument contrary but the question to me is and that's what i tried to you focus on time and again is to what extent do you know those repairs that would have had you been encouragement to have your window because that's the only thing that's supposed to offset the problem during minimum no amount of repairs that were needed were those that they list did not then a report so given the lack of evidence as to exactly what they thought that they were going up to do that's what we relied upon the other option we had as we had mr sammy since admission that he thought seven million dollars in almost four million three hundred thousand more than the damages and i'm sorry that's why the county court requesting to zero doesn't that simply that's was our argument below and maybe that's why they stopped the damages the evidence money the previous three years it's inconceivable by having the government breached the contract that also that all good automatically becomes some profit factory that's generating profits over and over specially given the conditions of the property and we know the conditions of the property  he later took it back in the record when it was discussed in the remaining proceedings so he said that was one line in a six page letter that was never undertaken and never went to fruition it's exactly the hypothetical that judge moore depicted where a contractor comes out your house and you say well gee maybe we could do this that you know thing when my very limited time and like to point the court to a couple things first with respect to the construction undertaken by the riley loan this is found in page a one sixty this is one of the earlier opinions the h insured section to twenty one thousand four loan required that englewood restore southpoint to like new condition a standard that went beyond the decent safe sanitary conditional part of the two thousand half contract and react inspection therefore the courts already found that the right of the construction program exceeded what the the contract with the farm moreover if you turn to page in the appendix of page eight for nine seven five eight four nine seven six you can see the original contractors question to me were these individual items ever completed it was it was this program of construction outlined in this two thousand and one document undertaken and that the answer is no so i don't think he understood the question in the same way that you're on or now understands that testimony i would also point your owner to the foundational documents for the schedule that we looked at earlier those can be found in the advance documents which are found on pages for example a eleven zero nine point four seven three seven you'll see there that's one of the advance for insurance for mortgage proceeds and you'll see the first item on that line is construction costs per four hundred ninety two four eight that number then ties back to the schedule you saw later there's also some other schedules in the appendix that itemized the draws in the amounts that went directly to the contractor those can be found in a eleven twenty nine eleven thirty a level thirty one high i thought that was