of damages and the disclose various witnesses and documents for parts and for the whole of those damages the district court dismissed the entire action not for a lack of actionable conduct on the part of the defendant damages and that's the heart of my concern i appreciate the fact that you probably have encouraged him but at the summary the total cost method but before i kind of that i like a checklist for categories of damage that are specific substantiated with evidence or her first there is the differ themselves that those components of damage were additional excavation additional foundation and the damage to the way one shows up in the excerpts that page one ninety four and one ninety seven which is grim hall evidence and the answer is that this is an issue from the of the money that they asked for the forest service to pay them to pay us and that they were going to pay the us except the attachment illegal condition that they wanted sixty seven thousand what this was is that the general contractor this is supplied power and water for the construction they didn't do that we had to truck in water we had to viking generators and lay other wires to do that and that's thousand of them but again they didn't pay us because they were going to pay us unless we weighed all of our other right or other rights why do i have the impression that someplace in the contract it was it was your duty to supply the power in the water you get that impression because they argued that in their appeal brief but this motion was not about liability there wasn't occasion to prove or disprove liability this motion was stalling about whether assuming liability we cannot in the line limits that is the forest service laid out lines basically to protect native vegetation turned out some of those lines are right up against the walls we asked to approach the forest service to get permission and just as they were flexible with that in general the general contractor wouldn't let us deal directly with approach them we had to build the back of the wall not by going around to work on it but by working through them in the house and a great additional expense best discloses three hundred three thousand dollars of quantify damage when it's too low but it's at least that much there is an even more dramatic component of this of the unpaid original contract price and that is the liquidated damages to us we say wrongfully they had no right to do that but this motion isn't about liabilities just about measuring damages we found out later in this litigation that they in the letter got paid by the forest service for the very money that they'd already eighty six were they back charge that this no those are quantified liquidated sounds in the record pointed to and there in short for these groupings alone we have evidence that was seven or eight hundred thousand dollars not addressed there is clearly reversible error for them alone but i want to turn to where the big money is in this appeal and that is our total damage  total cost method of damage is a way of measuring damage but it doesn't change the amount we disclose originally which was a bit under five million dollars let me just jump to the key of this issue as it has been thrashed out in the breeze and then oliver a little bit it is wrong to exclude the use of the total cost nothing on summary judgment first three the four factors to be considered in applying the total cost method the other side myths in their briefs in the district court are fact questions the other factor unavailable really of a more precise method of measuring damages was established by the defendants themselves when they persuaded the district court that there were insufficient records in this case to support use of a problem that the records were not sufficient to substantiate what mr frank was trying to do and therefore he made assumptions so it wasn't just that there was assumptions about suck consultants who were not disclosed but there fairly well but that's a different issue from being on ascertain obl is not no your honor and this brings us back to the fundamental principle of the law of damages and that is when there is evidence of damage and there's a ample evidence we're taking that for her as being one for the purpose of this discussion a party who may have inadequate records for a traditional method of damage is not three game for a contract breach or at that point the law provides that the rest are proof of the i'm mounted evidence will suffice there this not allow a begrudging reading of the amount of proof when you have evidence of the fact of damage in this case the other side proved to the satisfaction of the district judge that there were inadequate records to  and at my request they did and here's what they concluded and here's why and you're on the let me have seen it goes and it goes into a three steps the first step is how much did they pay mr angelo to his knowledge of government contracts this is the first one he ever lost money that supports is a conclusion that it is reasonable and he's not responsible for the additional cost st paul admitted that directly in their brief this is ample other evidence of lack of liability in summary your honor one of the major wrong turns in the road here was losing track that this is a summary judgement we didn't have to prove to the persuasion of anybody any alternate fact or any precondition fact we only needed evidence to fish and for reasonable person to believe that the case i want to emphasize is the eighth circuit case that a power nebraska power where the court of held submission of time and leave the other ten minutes for her but also agree that we're going to try to divide the subject matter as best we can she will deal with the discussion regarding the total cost method of damage as well as for tomorrow what i will do my best to address the dollars yes and that's exactly where i want to go next because they made a decision early on in this case to rely on joe frank in their disclosure statement the only one out of which they're trying to claim five million dollars worth of damage is the only one that even  contract was for four point something or other million dollars and that's all we've got and that's that stand i mean we've lost money so we're going to go to trial and we'll show  our last five million bytes and your honor if they have disclosed that in their first supplemental disclosure statement or any of their other fifteen or twenty disclosure statements perhaps that would have been proper under rule twenty six months talking about it as well as your statement now we're talking a disclosed witness solution no question about that and he's the president of the company yes so why aren't you now if the position of saying why the evidence th some damage and as i see it at least they'd be wrong so that's why i'm trying to get you to answer my question as i see it the question here is is there hard core admissible evidence of here's why my client was in the in this case trying to figure out how to defend itself we spent three and a half years before the summary judgment motion period up to the discovery date trying to understand what their claim was if they going to have to show that they disclosed admissible information and they didn't do that to judge mcnamee and it's not in the record on appeal and they're trying to kind of step over the fact that we're entitled to prepare a defense in this case that we were never given a chance if they not the answer or fast not your position then i don't understand how we get back into disclosures but i liked that it is our political cost as a variable but as you can since going to be addressing the total cost nothing if i could reserve that question for her perhaps it would make more sense whether total cost is appropriate math it is whether in this case the nature of the losses is such that use impossible or highly impractical to determine damages through any alternative method and in this case it's clear from day one it's been clear that there are alternative means to prove damages here there are a whole host of contract damages that they have claimed down to the dollars and cents of those claims  through unfortunately for them through frank now price testimony was excluded and that's not in front of this court what is here is what they produced on summary judgment and all we can look to is the papers that angelo put in front of the court on summary judgment to show that that they have a genuine issue evidence that affidavit itself shows that mr angelo didn't have any personal knowledge of the costs and he wasn't competent to testify about it and that there wasn't any foundation for his still serving uncorroborated testimony of the plaintiff that doesn't even show how she knows the facts and that's exactly what we have here we have to start serving uncorroborated affidavits from the president of the company  might have a different question but i would then point point your attention back to where i started this argument which was the only possible relevance of henry angelos affidavit is to this total chaos theory which just  method to the jury they didn't have to tell us in advance what their theory was they should just be able to present it to the jury but the nebraska power case doesn't help them it's an outer circuit case it's an outlier that hasn't been relied on in the circuit any argument even as to why it should be entitled to the quote total cost theory and presumably the reason is because all along they have been arguing against the very factors that they would need to prove to get over that hurdle is there any record it wasn't in it wasn't identified on summary judgment do you think that that's required yes your honor under under the bat under nebraska public power what is required circumstances that you can't just start think that you're entitled to that method of calculating damages and understand it to a jury has to allow the court to to serve as a gate keeping but as the district court correctly found quantum maryland is unavailable as a matter of law in this case in under arizona law a plaintiff may not recover in quantum arrow it its relationship with the defendant was governed by a valid express contract that was fully performed and here there's just no question that there was a valid express contract and that it was performed fully by both parties in their briefs angelot points to some work that was dying outside of the scope of the contract but the only evidence they have of that work are these change orders which aren't even from which they never laid a proper foundation but the only guy documents that they point to are these change orders and they change or disprove exactly the opposite point because the contract expressly provides for a change orders as a mechanism to accommodate and compensate for changes to the contract under federal contracting law are public sector contracts such as this ones are required to contract and in addition even if angelo could have covered under quite a merit under some theory even if as a matter of law they were title two they have never disclosed or identified on summary judgment any documents or any witness the detail the explanation was given to back up the disclosure that was originally filed but they didn't take this deposition after they got mr franks excluded they thought that was in the case they didn't pursue the other disclosed witnesses and in fact as i said the reason you cannot object a foundation on appeal is because it can almost always be cured if there is an objection below you cannot raise that now and finally i just want to briefly comment on the quantum merit it is an alternative method of quantifying damages if the total cost method thales and it would be available if the total cost method fails because an added then we would have lost and effective remedy by contract despite breach of the contract despite the fact of damage that would result in unjust enrichment and for which we can get a quantum marilyn damage the evidence and the measure for the quantum merit damage is the same construction services requested and we have that established by mr angelos affidavit this is a case in which the other side made a fundamental error and misread the trial judge into concluding that because they knocked out one witness and that witness was involved in a lot of the work but no other evidence or no other when this can be examined and the unfortunate truth of that is that the district court's ten page or