its holdings as a matter of law regarding the measure of damages both as to temporal duration and the damage components or categories and we would ask this court reversed the district court's judgment and try for me i don't think th but as one of your arguments i would actually suggest that the more important arguments are twofold one is that the measure of damage time in duration when you have a lease that is terminated or surrendered  sermon nation and the problem with that is that you got a lease here that makes really clear that you're obligated to pay and the washington cases say that general common law rule is overcome by specific language in the lease i would suggest your own are two fold things one is the hardest case contain the least reservation cause nearly identical to that here nearly identical in the current court held there exactly as we're arguing that is the damages accrue until the relating period it's the same lease provision including the reservation clause it's where you have a trauma nation and the court holds at that was the correct measure of damages well it's also home to harvest the conclusion was the content of the parts clearly tradition and reservation and hargus is therefore crystal clear where it says the damages accrue into you relax and then lease he picks it up and says the exact same thing so that's so in in your view there can be no circumstance me sure seems to it depends on the posture of the both the contract and what the landlord does let me posit there are three different circumstances number one you have it where there is no surrender that's been accepted and there's no terminations in that case  was not there was a fight about what the offset is for the with the fair enough the other two circumstances are where you have a lease where the landlord does not accept the surrender if you does accept the surrender or terminates and that's an hour you have to circumstances one is where there's a question because you seem to be saying that once they really let it as a matter of law there they can preserve their right to get damages for any shortfall that's precisely what hargus holds and lisi holds in the washing that any shortfall terminated is that what you're saying yes and here's therefore it cannot be overridden you know your honor i respectfully say that what happens where you have if you have a terminate and the landlord chooses to terminate accept the surrender and there is no reservation it stops right there at i understand that that's different it's different from the reservation because that preserves your rent and damages into you let it could be three months it could be two years i understand that but i thought i am not just talking the same language was there and this place a reservation to both terminate and at the chain any shortfall  but that is that's what a shortfall is in other words or in another words a getting all of the money for the pair as there wasn't let let is one thing but your position is that no matter how hard they try to  landlord quote can recover damages for lost rent up until the date he or she left the premises and that's that's twenty fifteen westlaw two three four five one seven six nine that's the way it is use cases all turned on the notion you believe hargus is on point but it hardest the court says generally when it's forfeited this occurs and the lease in that case says landlord made its election declare this leaves forfeited correct correct this is say that suspenders because the contractual provisions what so you can see because i read washington laws requiring that that notice be sent as a prerequisite to seeking lost rights i don't believe that's the case your honor in the different case i wrong with that that's correct your honor in fact it's quoting from metropolitan right and but look at the language that follows right after that is the paragraph that immediately follows the trial court correctly awarded harvest the rent which accrued from the need to surrender and until the premises  what we do in a case in which the way an order is now trying to say after i really let the rent i was getting was much less than i was getting before i think what harvest is your heart is not directly on point now you're here dealing worried about if if they didn't force that provision he would not have been able to get rent post terminations because the basic rule absent the contractual provision is once you terminate you're done in this case the landlord terminated but nonetheless argues they let him collect rent post terminations until the time of rewriting so if so you know the language may be the same but it's a different case tell us what case says that you  reason question is is that read the district court with the district court did in this case it said the the the offset is just for the actual space you least per square foot they star something less than you were paying for square foot and that's the deficiency so so i gree that's what the law says but why why was that law breached in this case because when you are be mitigating and trying to relax the premises it has to be and they said ok fine therefore we have no opportunity to release a smaller space or we're not going to lease it presumably you would have said wait a minute you didn't mitigate your damages you could have placed this is part of a larger space i think your hon so what if instead of what they did with starbucks they added to two pieces at the identical same price the former space of your client and the rest of the building where they would they then be entitled to offset it yes so it has it has it has to do precisely with the space and here's why you know you don't have to tell me why i just want to know your position that your position is that that would've been ok yes ok you for the question  i didn't mean to mislead you with the only thing i was confused about in the case law is these sentences that say something like the measure is to treat decreased value right of property with him without the lease and i gather they keep saying that and then they sort of think nora but that's not to say measure i don't think necessarily yes and i think the the the measure of damages in a breach of lease case was historically stated as the present worth of the property independent of the lease there was a way to think compass all situations typically what happens and particularly when you have a real living situation the evidence is is manifest you know exactly what the damage is because it's  what the late the the right you didn't get and then the deficiency or shortfall but that doesn't necessarily translate into the value of the property if you were selling the property that's the problem is i mean it's not the same i mean i don't know this i'm not a real estate person but i just instinctively from what i do know i would think that the degree to which the the property's value with them without i mean for example if they've if they were a quickly increasing rental  oing for here you're a the generally the value of commercial lease is is the income streams from the rentals so the loss of a of that i just gave  example in which way in which the income stream might be undesirable rather than desirable at if you are talking about selling it and i think you are and in your hypothetical what's going on as is now you have rents rising perhaps higher dollars per square foot and that that lease happens to be a say a very below market lease then it then you actually may have improved property value years that doesn't have here's the difficulty and this may not be the washington measure of value which is i think what were we were we were trying to get an answer to the truth is that your building is worth more after their breach of the lease than it was before or at least it's conceivably worth more because you've got a client it would be worth x but of one of the going to sell the building thereafter with a long term lease to starbucks and it would be worth x plus y at least that's my prophesies in that the record doesn't deal with that why shouldn't that be the measure not sure enough to make that presidential and i think i think what what this circuit said and what i would agree with is that the practical reality is that that's that's how you measure i mean you can talk about present work but we just got an example where is your argument  not the same it's the same because it isn't the same it's so that we just gave you various hypotheticals so much it wasn't the same and so then the question is is the argument that isn't really what washington means even when they keep saying it but my response that is day attempt to introduce evidence that the judge wouldn't allow to be introduced i don't i don't recall i think the evidence that i recall that was introduced was a was an appraisal by the tenants of appraiser who said that correct and i would argue that the appraisal that they actually submitted it should not have been considered because whether or not it should have been considered or didn't establish this is the point i'm interested in it which is that at the time of breached the value of the the starbucks lease income to compute the value well we don't we don't need to to resort to to valuation standards because we know exactly what the old lee said and we know that we didn't collect rent for fifteen months and then we know for the remaining term that is through february twenty eighth two thousand and eighteen if we're comparing apples to apples we know exactly what the the rents that we're getting in are and they are not anywhere that relevant at all and the second question is if it is relevant now you're making arguments about the weight of the evidence or so i know the words i mean what i'm getting out of this is that this alternative way of measuring was at least on the table let me approach as a different a different way your honor when the parties stipulate in their lease contract such as what their formula of of damages is going to be that's that's the amount the court should apply i think we've gone too far off track in terms of what the common law building but your position in the brief says it doesn't matter if they could have turned it into the taj mahal the improvements don't matter that is that washington yes runner that's just washington that is hardest and that's a well i certainly it was and so far as you're talking about you know how they built it out physically with my walls they put up the new and white logos that put up and all that i understand all that but there was some indication that for example or that's assume you know there is true or could be true that they redid all the electrical work in the building i don't know if and there was some assertion of something like that but if they did that even if they did it for their own purposes that must have some value to the building permanently not not for the term that my client leases leases out that building rather because  point is your client's not the owner you know in a true commercial lease where where the the tenant comes in and they take over in a sense that's true we really don't have a lot left other than a residual we will we get lease income we get monthly cash every month but we don't get that building back for as long as forty years shorter's five five now that's correct are ten ten to five now so and we you know at the time that we entered into the lease there was no promise starbucks didn't promise us that they were going to do any improvements in fact starbucks made it very clear and they were very careful to not take on any obligation to do it to do so because it was an experiment for them and it's interesting that i've not seen a commercial lease dealing with ten improvements where the where the tenant actually says i permitted to make improvements but i don't have to make any improvements and then a work letter dealing with those  well i'm going to make you know that i'm going to make all make them and complete them as i deem necessary so starbucks was was clear that they didn't they didn't have to do anything and if that in that one year period improvements they share and bunch more in ten years and so on that's correct you and i your honor is really getting at what i think judge roberts mentioned in the lacy trial court decision which he said that  you know the less the landlord less or gets right now the argument is that there are some speculative future benefits and in this case there isn't anything during the leas term and if you know we're struggling with an intangible or worse or future benefit then the policy of the law is that it's it it's in the wash would not be effectively  i thought of hypotheticals and you know what if what if starbucks said and said we're not going to do all these improvements we're just going to change one partition more demise and all them when they open the wall up they found a bar of gold that nobody knew about and when they say well that's great you got a benefit you would never have known that but for the fact that we've breached the lease so you know you should thank us and you should sort of set off i have read lacy one if you will judge roberts decision which seems very well reasoned it also seems suggest that this is not a settled issue in washington because he doesn't cite a washington supreme court decision it's all it is that a fair characterization if you're talking about the issue regarding the improved yeah me three quick points number one when we look at the benefit of a new lease and you're measuring it you cannot limit yourself to the rent itself you have to look at the bundle of economic benefits and this goes to the renovation issue let's talk about that the but well first of all any backup are you arguing or did you ever argue in this case that they measure of damages should have looked at the value of the building before and after hours and not taken not the rent minus the the improvements yes there are two in the record they are one of the plaintiffs appraiser said that the building value before and after breach declined by twenty thousand dollars are appraiser said it went up by fifty thousand dollars and you can see that  is did you ever did you ever preserve the argument below that with respect to the space the improvements made to you yes we did against your your  when if you're trying to set it off against rent i would if there was some obligation to do it and we don't know how long it's going to last we don't know when you're going to jail at how would you take that into account i think you're raising a question about the weight of evidence your honor because because it goes to timing for example there's case law that says you have to measure benefit to the lender of a new lease where there's a voided cost ok so if we knew that this building required for that's correct so i conditionally and i was just pointing out that there are practical difficulties when it just the condition of the leaves of putting any particular value on i agree that there are challenges i also believe it goes the question of the weight of evidence because as to the timing how much application the court or jury are trying to give to it ok i have one last quick point i want to make which is around the premises issue the issue of what is the physical space is critical and it links to whether or not the landlord has terminated not the space that my tenants had was a small retail space with windows on the corner and a corner entrance that space is one that ordinary course leases at a higher rate than an entire building including a garage that's why when you're comparing mitigation obligations you have to focus on the space and by the same token if what i was leasing in the first instance was a garage then you have to be looking at a garage comparison has to be apples to apples not apples to oranges if you have