extend we raised four issues on appeal whether the evidence was sufficient to support the racial discrimination verdict whether the evidence was sufficient to support the defamation verdict whether the i'd like to start by focusing on the damages issue mr nass dr nasser presented evidence in this case that his last back pay which was his compensation from the point at which he was terminated to the point of trial was around one hundred ninety five thousand dollars that was one hundred forty five thousand dollars in lost wages and fifty thousand dollars in fringe benefits with an adjustment made mitigation of damages for the income that he had earned in the interim that was evidence presented by his expert witness dr ross guy who's an economist dr scott also presented evidence in the case of dr future lost wages and and fringe benefits the problem though is that there was no instruction given to the jury on future lost wages and fringe benefits the only instruction given to the jury for all  were title seven due process and breach of contract the only instructions permitted the jury toward damages solely for his last back pay and there's a good reason for that because under this court cases front page is an issue for the court it's an equitable issue it's a substitute for for reinstatement it's an issue for the court is not an issue that submitted to the jury and the district court here in line with those cases did not submit the issue of front page of the jury so when the jury came back with this verdict for three hundred forty thousand dollars that was far exceeding the evidence that was presented to the jury for  work that the word here was for the due process violation it's so wouldn't it be reasonable to assume that having been renewed in the past that his contract would be renewed again and that some future wages would would be lost wages i think that that might have been possible to be renewed but it's not an issue that was before the jury at that time be if you look at the instructions that were given to the jury they were instructed to calculate his lost wages and fringe benefits from the date of terminations to the date of trial and so whatever might have happened in the future was a separate set of issues that was not submitted the jury that was not an does i think it matters because the jury supposed to follow the court's instructions i think that's a sort of a first principle of the way that juries are supposed to conduct their business the court gives instructions to tell the jury what the is and what the issues are that they're deciding and in this case the district court instructed the jury these are the issues you're going to decide and the issue for lost wages and fringe benefits was dr nasser's lost wages and fringe benefits from the date of terminations to the date of trial and then that instruction covered all of the causes of the action well as and there were there separately on there were separate instructions for the various causes of action but none of them permitted the jury to awarded damages beyond the date of the trial or beyond that end of the contract that could be breach of contract construction is actually referred to the end of his contract but at no point was the jury asked by the district court to consider the issue of whether dr nasser which would have been renewed at the end of his contract and keep in mind too i think that this was a three year contract that he was in the middle of when he was terminated he still had a couple of years to go so that would have been a fairly perspective issue but at any rate whatever the the right whether that was right or wrong or whether that would have happened it wasn't an issue the district court presented to the  jury so i think the net result there is that as a result of the jury being confused as to what it was asked to award it awarded one hundred forty five thousand dollars to much they were three hundred forty to the difficulty of calculating that out so then there was the complaint could have been amended by the evidence i think that's probably the case so why would that be open not only manned if we grieve with you about the award from man or whatever those issues would be but i would like to bring the court back to the point that the issue was not before the jury here as the court destructed i'd also like to briefly before i leave this issue there was a suggestion made in the apple lease brief that this issue was waves and i don't think that's correct there was a suggestion that was waived because it wasn't made as part of a rule fifty motion there is no way to raise this is a rule fifty motion the question wasn't whether there was sufficient evidence to get to the jury the question was whether after the jury was instructed after the jury reached its verdict did that amount of damages awarded exceeded evidence that was presented to them and that was race to the district court at the appropriate time in a post judgment motion now i would be the first to admit that post judgment motion was not the best post judgment  motion it could have been done better by trial counsel but i think it did what it needed to do it says and this is on page one sixty two of the appendix a paragraph eight it expressly says that the jury's award was excessive because it was in excess of the remainder of the contract it said that was against the weight of the evidence and it said it was not supported by the record the district court took that issue up in its order and it rejected and i think that's what's necessary to raise that issue to this court it was raised before the district court the district court ruled on it it's preserved for appeal i'd like to neck in leicester any other questions about the damages issue i'd like to move on to the attorneys fees issue they said that's a reasonable rate for mr easily two hundred fifty dollars an hour we don't have an issue with that in the point in the plaintiff's motion though they did ask the district court for i think the way they phrased it was a fee quote in line with their contingent fee agreement which was considerably more than what the lodestar amount with the and the district court the opinion in this case is sort of interesting because the district court takes that issue up into and acknowledges the rule that the district court cannot enhanced the lodestar on the basis of the condition of the agreement but then the district court proceeds to enhance the lodestar by creasing the hourly rate for the agreed upon reasonable hourly rate mr easily from two hundred fifty to three hundred seventy five dollars an hour there's no justification given in the order for that increase it just so you know the district court actually says well this in the hourly rate but none of those cases actually support that they're all for much much lower rates and but at the end of the day what it looks like here is that the district court enhanced the lodestar by fifty percent for the purposes of enhancing into account for the contingency agreement and there's no didn't this record also talk about the experience of the attorney and demonstrating superior legal advice advocacy skills in this case and isn't that a sufficient reason to increase the amount i don't think so your honor the parties agreed that two hundred fifty dollars an hour was appropriate there was no showing but in the district court's order or in any of the record that three hundred seventy five dollars an hour would be a reasonable amount in this market and the district court's findings on that are also somewhat more political the district courts points out that the issues in this case were not novel there was nothing particularly difficult about these issues it was a protracted case where there were difficult issues to resolve and at the end of the opinion the district court also notes that that and difficult to discuss these issues because i don't want to denigrate my opposing counsel but she says unerringly fit in that that that the services rendered were not exceptional they didn't justify an enhanced award because they were exceptionally you know above and beyond what you would expect of counsel in this case so i think that the findings on the quality of work done are somewhat a pivotal but i don't think they justify this substantial increase this is a very substantial increase  this move to the amount of fees from approx eighty six thousand dollars to one hundred thirty thousand dollars that's an increase of forty three thousand dollars and bumped it by half and under the circumstances i think the district court of used his discretion in doing that there's just no sufficient justification given in the order for why it was necessary to bump the hourly rate used to calculate the lodestar by fifty percent particularly when the parties had agreed that two hundred fifty dollars was a reasonable rate and so we would ask the court to reverse that awarded and reduce it to the to what the parties agreed upon was a peaceable rate  fifty dollars and i didn't mitt that to fifty was loach to the court didn't find it two hundred fifty was loadstar two hundred fifty is one of the factors considered in fixing your feet and in fact the is reasonable in and of itself the court in that case did find that we had done at least a better than average job i think we had a difficult issue we tried it for three or four days there was considerable time expended i did list with particularity the things that we did in the mess which you know there's an allegation we didn't do that that's not true as a court is well aware all of these issues are matters of discretion for the prop or the prop or set there so what we did so what we are faced with and set the lodestar method and again i say the admission by  defense counsel does not mean that slopestyle so i think their argument is flawed there but i think their argument is that you argued the contingency fee rate and the judge rec arkansas law and if this is a contract action is undifferentiated as to whether the fees were based on racial disparity you argued we could just affirm the arkansas law i'm sorry for you argued we could affirm because under arkansas a contingency is a permissible fact yes exactly who say you think that's what she did you think she was applying arkansas law and gave you an increase based on which i don't know it would be speculation  for you know i would say this and i didn't put this in my favor perhaps i shouldn't argue it but you know i do a lot of contingency fee work and if i divided it out i think i'd do better than what she gave me  work but that's not in the record your honor so as to the damages issue we have waiver of one waiver upon waiver here mr march mentioned  counsel trial counsel made no objection to the testimony by the expert as to future damages none at the conclusion of the proof there was no objection to it the single objection was that he hasn't met his burden period at the conclusion of the proof there was no specific suggestion that anything improper had come in by way of damages the instructions to the jury a whit to the jury essentially without objection and certainly without objection on this issue and for the first time why would the objective if the instructions in limited to just a contract period of time why would they object to the judge i'm sorry i do contract question you're saying that they didn't object to the instructions but if it's his counsel suggests the instructions and limited the damages to the contract period why would they object well they would they would have an opportunity to se your point why would they object to the testimony are you saying that the front page testimony should be in a separate proceeding and not even presented to the jury i don't know that the answer to well judge i'm sorry just called well you say they didn't ask for it i think he does point to this post trial motion where they said that the award exceeded the remainder of the contract or there is but there is that point gesture that number eight yeah page one sixty does write yes so why shouldn't you have to go back and argue the front page of the court judge what's wrong with that you can still get the money if it's supported by the evidence it just needs to be decided by the court instead of the jury you know i thought that's where the court would be going when i prepared this argument you must have a good answer and well here's my answer there were damages in this case that went way above and beyond the front page there was an issue that that was nasser had tried something like a hundred places one hundred places to get employment and because he had been fired for this supposed racial discrimination he was unable to get those jobs and he had to take jobs which are of a lesser tainted by the fire he was tainted by the allegations that were defamatory toward him and so he wound up with way less than he ever should have in the first place best thing i can tell you on that joe is a jury heard all of this and it was  the ward was was made on due process but also i also believe judge it was made on the and i thought that was a dollar or something like that and maybe i'm misremembering yes but but there was an award for what we what's the proper measure of damages on a due process violation on a due process violation it is it is i soon the theory was they didn't give them a hearing before they fired him yes so what's the net what's the proper measure of damages for that claim the loss of his earnings and not only pass but future and how ralph scott to limit well i think he gave lifetime but i said be sure that you testified about seven years because cases hold that he did in fact just five seven years and in the cases say then that that's a eight circuit case and it does away all front page of seven years and it does a matter of fact in that case it was that the trial was based upon the trial court issue front damage determination challenge was made in south trosa as to how that was done this court a further argument here is by allowing that to go to the jury  like address a few of the issues that mr easley brought up the reference to arkansas law as a justification for the attorney's fees award is somewhat odd to me because in the discussion in district court's opinion of what the attorney's fees is going to be there is no discussion of arkansas law all of the cases that the court cites when it gets down to the business of actually determining what the fees going to be are federal court cases there is no discussion of those arkansas law cases but if the district court had discussed those it might have started by citing always logistics incorporated versus usa truck which is a case from this court where the court said clearly the fact that there's a contingent fee agreement under arkansas code and it tainted sixteen twenty two three zero eight does not automatically entitle the prevailing party to an award of that amount it has to be considered amongst the other factors so to the extent that arkansas law would justify that it can't justify that unless the district court went through the other factors but the arkansas supreme court first who is the chris co factors for determining an award of attorney's fees so that's not a justification for what the district court did in this case and it doesn't support an an affirmative the all of the fees awarded moving to the damages issue when mr easy points out that what the defendants didn't ask for in this case as it put it with regard to the front page damages i'd point out that plaintiffs didn't ask for an instruction up front page or and you know there's a reason for that because it's not appropriate to submit to the jury but they didn't press that issue in terms of trying to get that issue instructed the jury there was no reason for our client to object to this jury instructions because they were proper jury instructions they set forth the law based upon the facts of the case there was no grounds for  principle that pay is an issue for the court and the jury in the end defendants did not allow the issue of front page to go to the jury because it didn't go to the jury the jury awarded those damages but at the end of the day there was no instruction on them and therefore that verdict is excessive and we don't have the elevons this was presented and i assume it was argued a closing argument to include that additional mouth would not have been a good time to stand up and say you can't do that and that has to be done by the court had i've been in the shoes of the trial counsel i would certainly objected however and i wonder is it is it really even properly characterize front in other words this is a due process violations and i think the measure damages is sort of what would have happened had he been given a hearing and presumably not  fired you know it seems to me the measure of damages may well be going forward for some period of time i don't know if that's just give a case that says that front maybe there's i think that under the way th that the fine back pain from paying the past back pay is the pay that you would have received up to the point of trial anything that goes beyond that is from pay up to the point of trial or up to the point of discharge we it's from but it's from discharge up to the point at which the person would have been discharged or up to that but i believe that the way that the court has traditionally defined it back pay is that back pay is the amount that you would have received from the date on which you were terminated from your employment to the date of trial which is the necessary cut off now i think you could probably in this instance because this is a case where there's a contract in play i think it would go to the end of the contract and that is the damages that miss the dr scott testified to you're saying the one ninety five includes going forward to the end of the contests but the only way to get to three hundred is to bact future employment but i think that's exactly right and i think that the best illustration of that is in plaintiff's brief on appeal where they actually provide a very helpful chart that sets forth the amounts and that char shows that the only way that you get to three hundred forty thousand is to include amounts for damages that go beyond the end of the contract but if he was let's say that was a ten year contract and the trial  would all be front page even under contract theory i think no i don't think that's accurate and i think i was giving the definition of back pay and from pay that it normally applies i think in this instance with a contract being in place and there being a finding that but the jury did find that he would not have been terminated even had he been given a proper hearing and i think under that circumstance it's appropriate to wear the damages for the remainder of the contract so if you had that in your contract i think it probably and a