those attorneys who are going to argue the case at least up to the podium and yoursel to the proper standard in determining whether that's a genuine issue a material fact rather the court below impermissibly we'd evidence that was presented to it it came up with this decision as a result we believe that the person below is in  error you know our kind of this case in the fate it bears on the facts and i won't go through the the linea facts but they installed a great effort a sanitary sewer system for a new subdivision of development called the oak ridge of belgium nearly two years after they installed that system and after that functioning as it was supposed to do they were ordered to go in to rip out the p v c system and install a stronger new material called doco iron everybody agrees adopt ira stronger system it's a better system and it was just for one portion it was what we called the section of the a sanitary sewer i can't do this work but there were never compensated for the work even though the original pipe specification their agreement believed that the work that they were disputing about was already an original contract the contractor that did the work did the work under duress in essence because they were told that it's all the job and said we still expect to get paid similarly here the even asked for a cost estimate before we did the work he did he did say that yes i even start the concrete subcontractors sent a letter write to the general saying upon completion of the disputed pay that's not that's not required to agree with porsha requires that the order knows or directs the work be done that the owner knows that he contractor doing the work is expecting some compensation that is was testimony about a ladder that are concent prior to the work being done there was also a letter sent after the work was being done reaffirming what they said before the work that none of this is our fault we expect to get paid for it so i believe there's actually been more than than the star court how many times has the ground history torn up between these two men over well i think that's that's there is no definitive answer as to how many times the ground between manhole want to wait and what ten because it's been dug up multiple times that it will we can see that but i mean some people say to some people say three some people say for it it is there any evidence that other so the plan specification say that you can use t s lot yes they're trying to assert it correctly that we can only use why it's is so they're trying to characterize the use of t s as a makeshift why will reality the plans clearly states t's or why's it in which is why elgin when they found out about it said that they couldn't force us to take them out because the earlier that that was already and that's not not an issue it was already when it was discovered that there was the wrong material was all remedied prior to the completion of the system in august of t they were put in it's oh so you're asking you know whose fault it is won't number one i would could task whether or not there's a problem with the system number two the test material you know it shows that they raise those issues the end they took care of those issues so that when they were done in august twentieth five the system was of the elite complete operational functioning allowed after one year to go and run tests on video or else they wanted to do it for whatever reason they did it two years later and they said there were problems again you're going to there were no problems  evidence in the light most favorable to us and saying we agree with you so much so now we send it back and now a similar judge will look at this and say you know looking at this this is a complete loser for you and you can you fan what is he how are you going to significantly what others said about the video you know concluded there were cracks when in actuality if you look at it and are people with thirty years experience more experience anybody you know in this case testified you know the the same water that that calls for the the replacement the one section where it's all a couple of other areas and different parts of the project that p v c can remain it's just fixing a fitting or a connection which are kind to him which is not part of this quiet but let know that the defendant us shelter has some things it wants to say with regard to it's cross appealed so we've decided to split time i'm all take twelve minutes and they'll be six three your honour's first i think justice connors raised the critical question here is that how do we know what caused these defects you know we start with the we start with the with elgin's letters where they identify they swear they state the reasons why this section of pipe needs to be replaced and that's bill backers july fifth two thousand and seven letter where he lists of laundry list of items that need to be repaired one of which is the section between want to wait in one ten and he identifies three problems in the line that that he says required to replace one of the sections of the of the service lines the lines that go from the main line to the houses have punched through into the main second portions of the pipe where the mission couplings were installed have become misaligned and then third he identifies cracks in the sewer line under illinois case law for our consular stablished that it's  entitle to be paid extra for this work to do the replacement work it has to prove by clear and convincing evidence that it was not at fault for requiring the replacement work in order to sustain that burden they have to introduce evidence showing that they weren't at fault for creating the conditions that necessitated the replacement namely these defects there's absolutely no evidence in the record scientific or otherwise establishing that our con was not a properly concluded all of the statements in the record are speculative well it could have been this it could have been that the bottom line however is that there is no scientific evidence in the record saying these duped effects were and they claim was an issue of fact because those gentlemen looked at the at that at the at the video tape and concluded well those effects really didn't exist and b we did everything right on site well that's not that's not what what those gentlemen set with respect to the service lines punching through into the main line i asked mr result so the service riser pipe punched through into the fitting answer yes question do you have an opinion as to what caused the service line to punch through into the fitting as depicted in exhibits well answer i do not know what caused that question is that would you expect a normal installation to look like answer no  question what really normal installation look like answer i would expect the riser pipe to come into the hub of the fitting ok question with the riser pipe then essentially be flush with the edge of the fitting answer yes do you see how the service for troops into the main line answer i see it put shooting yes question do you know right richards into the main line answer or answer do i know why question yes answer no question when i can install the service into the main line was that our constant tension to have the service protrude into the main line as depicted in the picture answer no mr cement was asked would you agree with me that the protrusion of the service line into the main line is not in accordance with the plans for the construction of a sewer line answer yes question so it was in your answer that you don't have any opinion as to what would have caused the patrician of the service line in the main like answer i do not so he acknowledges that this persian exists and he number two is lower than pipe number one i do not question do you believe that complies with the plans and specifications that plane too is made with and play one the witness you know he agrees that it doesn't comply with the plans because it's misaligned and he doesn't know our condo's not have sufficient proof in this case to establish the essential element of course of its claim that it was not at fault for the defects now the only thing our kind does is that it pretends that these defects the not exist notwithstanding the thoughts testimony of its representatives and said says well this was just a design design change as justice quince on a whim they said this was on a whim by the city of algae and that they to exhibit number eleven which is mr becker's joy twenty six two thousand seven hundred port and exhibit number six which is mr becker's july fifth two thousand and seven writer that we previously referred you to these two documents identified the problems with the line that prompted the city to require it to be replaced answer yes question are you aware of any other problems with the line that prompted the requirement that it be replaced answer no the line had to be replaced because of these defects that write down a fight as a result of the videotape now ultimately the city decided that they wanted it to be docked a liar and for a number of different reasons primarily the the sewer was already in service the homes were occupied they didn't want to run into the same problems they had with the previous installation and so they said if you got to dig it up and replace it you're going to do it without the wire and this time we don't know what the problem what caused the problems why all these problems existed but we're not going to take the chance on a second one second as just congress pointed out there was a requirement a forward requirement fox river water reclamation district requirement that whenever you install a new p v c sanitary sewer it cannot be put into service for thirty days because it has to pass a mandrel just a manual test is basically something where they go in with some kind of device to make sure that the pipe is still circular because a p v c pipe is subject to this not the scientific term but squish so they have to go in there with a mandrel thirty days after it's been installed the make sure that it hasn't deformed you don't have that waiting period with dr liar and these homes were already in use they needed the sanitary sewer to work immediately so it had to be done with d i haven't i haven't seen that in the case law i quite frankly but and that's something that if it's true that it's not their fault it's something that should easily there's a coach bill to introduce proof of that they could introduce expert testimony to say there was nothing wrong with the original installation all these defects are attributable to the passage of time to changing ground conditions which is what something that was suggested by one of the representatives but if you look at the testimony has absolutely no foundation for that doesn't explain what changed ground conditions just did so it was merely a passage of time rather than our console that they could have introduced evidence establishing that point it in addition to there being no evidence that you were a shelter agreed to pay extra there was no reason for us shelter to agree to pay actually because one thing that wasn't discussed during mr metts is presentation by the illinois intelligence standards specifications which are incorporated into the design documents which are con is contractually bound by the illinois standard specifications state that all work which has been rejected or condemned shall be remedied or removed and replaced by the contractor at his own expense the elgin standard test patients with regard to the videotape inspection state any deficiencies or defects in the plate material or construction as noted by the engineer shall be repaired at the contractor's expense prior to final acceptance by the city are con assumed the risk that when ellen took a look at that videotape it was going to find problems and it was going to require that it be replaced are kind of soon that risk under the contract documents he could not recall who asked him there's no evidence in the record that any estimate was actually provided the only estimate the only document that's in the record that came characterizes it as an estimate is an invoice however there was not even enough evidence submitted to create that issue of fact there was not enough evidence that a finder of fact could could resolve the case and are confident because there was an absolute lack of evidence on the two and those two elements that  discussed in the case law is clear that they do have a burden to come forward with some and miscible evidence admissible evidence by which they could carry their burden of proof a trial and our kind did not do that in this case and i'll just briefly address that our con also raises for the first time on appeal quantum merit and unjust enrichment those arguments were never raised in the trial court there waived we also go through in the briefs the elements why they don't apply here there was an expressed contract that govern the relationship incorporated these elves and specifications no reasonable expectation of payment and no proof of injustice here because there is no proof that they are not responsible for requiring a replacement work in the first place and then finally are honest with respect to the third party complaint of course the trial court granted summary judgment archives claim against us shelter and then the record is that there is insufficient evidence for us shelter to sustain a third party complaint against against my client in this case there's no evidence in the record no admissible evidence in the record that there was anything with the original design it was approved by all of the relevant governmental bodies pvc have been used it similar projects at similar depths and there's no testimony in the record that our plans were deficient in any way concept they did everything correctly in accordance with plans and specifications no workmanship problems this was just a design change on a whim by the city of l g if that's true and they're entitled to recover for the extra work they did to replace it then my my kind in doing wrong with the inspection either because they installed it correctly where the plans are we don't believe that i mean we think that they didn't prove that they did occur according t plans alternatively if they did not install according to plans and they were deficient maybe my clients are caught that and put it in the reports but my client is not responsible for their defective forms they say they performed effectively they can't recover in the first instance there's nothing to pass along to my client but i said that's a minor point that the main point here is that we believe this court should affirm the summary judgment against our con its main claim for the reasons i discussed previously and as a matter of course the third party can win against my client falls but realistically yes you understand mr ramey in spite of your excellent brief and i mean  but i have to make the argument thank you thank you shelter there are three other points that are one mr one thing press two they're not addressed one is weed across motion for summary judgment against our confort the damages that occurred when they dug up the trench for the fourth time people had moved in and driveways lawns curbside what's said were destroyed that cost you a shelter seventy four thousand and change to repair there was an affidavit of mr sorensen from us shelter submitted in support of our motion argument is we sought legal fees under section seventeen of the mechanic's lien act if the court found that the lien claimant brought an action without just cause or right the court could award attorney issue hasn't been reached if this court affirms the issue will never be reached because shelter hasn't been forced to pay anything beyond the original contract price the retention two are caught it is only if it's the trial court h research in africa ducking research to determine stronger material was needed at this depth with respect to the issue that had to be ducked arm because it was already in service if you look at all the other work that was required that they allowed pvc to remain those were services while so there was no issue with respect to the p v c and worse of the system or in service so i submit when you sort of weed through all of the noise the sole reason that