breached the party's agreements or acted torturously or maliciously which go he was claiming those wrongs were entirely separate import from the thirteen m voices several years later and it's january  district judge offset that they did in the award did it correct that was recovered so and there seem to be and as i understand it the record lumens came up with the amount of money for the for actually recovered but i'm under the understanding that even though it was you know recovered this was something that was wrongfully done by them in gun week or what at least with respect to that one hundred thousand if nothing else on the color of law because there was a much much reason for anyone reviewing a record to believe that lumens breached farts and seriously they had two people in which you friend prays deposition like i'm a body that you can't believe americans don't understand how tight they are they don't took control of the ship and the partment and they refused to ship specialty needed these things very seriously you know according to what specialty told us i mean i can't vouch for that but that's what they said so specialty withheld seven hundred and thirty thousand of that amount and they just recently paid it after the award about four months after and that's because they were probably tired of it and lumens went to an agreement with them but specialty only paid because lumens waived any right that ten percent pre judgment interest and they also agreed that they a reason they turned it over that the way this worked is various lighting company or installers like specialty or juno would need lighting they'd order it through go eco who would then i mean we go did a marvelous job he succeeded beyond belief and they will look into the prospect of benefits you know a benefit of bargain and suddenly taking a big cut out of all of that you know your argument is know i know these courts i'm amazed at the time they take in how a student how much they get into detail still blows my mind but anyway one of your arguments is that the district court erred by not applying california specialty for example and specialty would lumens would fill yards and of course they'd be shipped to specialty so there we go was in a position to act as an agent for what would seem to me you know the sale of goods you know it's much more than just a service and a reading of a complete article two of the u c c and maybe i'm wrong but the reading of it is that everything involved in this even if you don't have particular times and whatnot it's not detrimental that it can still be viewed as a contract for sale of goods and that was never there was never a contest and your honor i was see you don't have to go into all the detail it's detail and simply the price you paid for it forward price you said practice too and that's what the jury can decide on subtracting maybe a little here a little there for whatever dollars worth of panels to go he goes customers those shipments were accepted and now go we go has to pay for the goods it's just that simple and nothing that go we go argued today disturbs that ruling and in the  instance in a nd set of motions for summary judgment the district court found that go we go fail to meet its burden to provide authenticated admissible evidence of its damages which is an essential element of all of its counter claims setting aside that you know commission which as judge body noticed noted that lumens put in the evidence on that and what do we go did instead basically in its brief and today is focused on immaterial facts regarding these allegations that lumens engaged in a farias plot to destroy it but to cut to the chase on appeal of the lack of damages order we go only had to answer one question which was what admissible evidence that created genuine issue of material fact did in fact submit to the district court it had to be admissible it had to be material and it had to actually be submitted to the district court and go he can't answer that question  briefly to talk briefly about st about the shipment of over a one million dollars worth of goods to go he goes customers nothing that go we go has argued in this brief for today  excuses it from having to pay for that not even if the m l you applied in some way as a contract for the sale of goods or under the u c c which we don't concede at all it's correctly you know the imo you says exactly what it says no more no less it's talks about non circumvention it talks about how go eco can go out and find new clients but it doesn't excuse nonpayment it's very simple if buyer accepts goods it has to pay for those goods you can find that counter claims the district court really didn't rush to judgment here you know it literally said to go he did say the nano nd thing in the hearing but it also said i need to be spoon fed what profits there's investment losses there's goodwill damages and there's commissions on the sales to juno lighting the lost profits the dispositive issue on lost profits is that go  co can't show evidence of net profits as opposed to gross revenue and net profits as council for go eco conceded is that business operations overhead rents labor salaries that has to be subtracted out from the gross revenue in order to come up with a net profit calculation when they presented no evidence of that there is an absence of evidence on net profits and so counsel for go count in argumentation in the briefing go we go argued we can just assume it's zero you can assume it's just de minimus because there's nothing in the record that would be error the district court didn't fall into that trap the district court said no you haven't given me any evidence whatsoever and therefore i can't make this calculation in the jury could make it easier and that's that's the dispositive if you issue on all the lost profits whether it's a tort claim whether it's passed lost profits or future perspective lost profits that's a dispositive issue there is a secondary issue about whether there's evidence of lost sales and in a couple places and it's brief go we go mentions and we have this evidence of historical lost sales that's a sub issue that is you still have a net profits problem even if you have for example evidence of a couple of purchase orders from specialty lighting that weren't filled but as far as the evidence that it mentions i just want to say the met evidence it mentions in its opening brief of forty three about historical sales that actually wasn't submitted to the district court either so if you go back and look it's not submitted in opposition to a motion for summary j were was located in an innocent so called expert summary of one of those principles mr dering borderland which the court looked at and considered and considered that it didn't meet the daubert standards of f r e seven  two that would be reviewed under an amused an abuse of discretion standard but it basically just you know the expert report summary if you look at it just says investment damages three hundred thousand dollars it's really  d cursory and so then in briefing go we go also said oh well as far as good will damages are investment damages we can and will present evidence of these damages later at trial and  you could show you could show evidence of the good name of the business reputation of go we go in the marketplace but actually our expert we've put this in on the summary judgment motion  believe that it's really good will damage is really a kind of a proxy for lost profits and we said that that was going to be an impermissible double dip because your goodwill damages is basically the business you would have had in the future based on your good name which is a doubling in the sense of perspective lost profits so you know if you're looking for that kind of evidence you could you could have an expert go out and commission some kind of study to see where you where your business  was how your business was doing in the marketplace for example or what sales you would have had in the future based on your business reputation but again we just don't have any of that here and then same for investment damages which they claimed  because of the work that go eco's principals had put in in preparing lumens for the marketplace but again no evidence of time sheets no evidence of travel expenses no evidence was put into the record on what that investment damages might be and then the final the final category of damages and simply this commission on sales that were made to juneau and we conceded that point and put in evidence to put in an authenticated admissible evidence and calculated that out and that was offset in fact from the district court's ruling so that's it in a nutshell and that's that's why i have the panel has no more and thirteen the hypothetical cover statute it does raise and brief but the hypothetical cover statute doesn't really help go rico here st we would say that argument is waived they didn't raise the possible calculation of hypothetical cover damages before the district court it's a mix question of law in fact and to raise it now is prejudicial to lumens because we actually have evidence on some of those facts that we didn't put in so st of all as far as u c c to seven hundred and thirteen dollars goes it's waived but nd of all it doesn't work the way go rico claims it works when we go says it allows it to simply take the forward price to specialty and subtract out the contract price that it was going to pay lumens that's not how the hypothetical cover statute works the hypothetical cover statute says you take the market price as if go we go had found cover goods from another manufacturer that would have been sent the similarly situated to lumens and then you can subtract the price that it would have paid to lumens but then you also have to subtract out expenses saved in consequence of the breach we're missing evidence on the market price of another manufacturer's price and we're missing evidence on expenses saved in consequence of the breach which would be similar to the net profits that were missing under the last profits calculation and the lumens actually had evidence that its expert had testified to that the market price the price they go we go would have paid had it covered and sought another set of l e d panels commodity goods from a different manufacturer had actually fallen and therefore these damages weeks were negative but we didn't put that in because this right right and again you know the judge himself said this has to be decided by a jury and if the judge if a jury can decide this they could decide that is complete enough that based extraneous  evidence that you know proper decisions could be made as far as again as damages counsel is you know contending that absolute position has to be head and again a fall back on  c which seems to clearly state that while you're going to have to make some adjustments you know and perhaps it's not going to be the amount you're claiming could still go to a jury you know to decide just what the damage is this is a one million this it was malicious it was prevented us from getting prospect to voters from my specialty as to which you could get profits and at the last he there are damage issues that will survive he said that repeatedly we did our best to respond to that for the last hearing but if you would have given specifics perhaps we could have you know fine tuned in and did better at that so we were we were misled  also at the last hearing by that time paul o'donnell of specialty the c e o you finally sent us what we had been requesting a spreadsheet on what he expected you know to be audited actually he indicated what he had added that would have been the same type of product from luminance up through to term nation of his contract in november of fifteen and the judge just ignore that i mentioned it at that at that meeting and damages was key a key concern and he just acted like it never said anything and we do have that spreadsheet so in a situation as far as