morning your honor and please the court counsel i want to answer a question that you asked earlier today jack the jury instructions in this case are wrong and they do are you my name's kim trout my apologies your honor i represent the city case from wrong and it does make a difference what happened in this case the honor was that unfortunately the district court found confusion in the concepts substantial performance and substantial completion voice that confusion and improperly mix the concept twenty gave the instruction related material breach was instruction three alpha let me tell you where i am in this case we don't confer before so this may just be like colleagues may have an earlier but i want you to deal with what's on my mind i had trouble understanding the instruction and i'm sympathetic to your argument th it was hard to see exactly what was articulated so that the judge would understand what was wrong and what he ought to do about it and it was also hard for me to see why any of a matter with a longer a trial and it looked like what  the jury was really focused on whether the city was wrong to fire the contractor if it was how much it cost the contractor indirectly a lot of them and the details of errors in these ar first of all i think the objections were were appropriately preserved and what's difficult from this record is to understand the level of understanding that the parties were operating on during the course of the jury instruction conference it was clear from the judge's statement that they've had a number jury instruction conferences prior to the one that went on the record and i think when you analyzed the objection that was made in the context of the briefing that was before the court you will understand why the why the judge had an a rule of damages and we we cite you to believe and it says quote the doctrine is essentially a rule of damages allow him to breach you party to recover for benefits from the bird on the other party but reducing his recovery by any damages which is breach may have cause now to understand how that fits in the context of idaho law what we have to do is we have to look at where they started the the theory of believe is accurate a assessment if you follow the line of cases that will go before the court that we've cited you'll get to the same point the line of cases are as follows we cited huge her versus thompson which is one twenty six  consideration and i invite you to review them again in thompson the judge says effectively the same thing that it is a rule of damages and that citing reason it matters here judges that the instruction three the district court confuse the jury by combining the question of material breach with a rule related to damages and in the instruction that you submitted the instruction that we submitted i don't believe we submitted instruction on that i think we objected and i think the objection was clear in context and the and the objection is clear in context when you go one step further and that is if you will note in the early portion of the jury instruction conference mr blewitt associate mr halley proffered for additional instructions based on a case called sullivan versus there was a colloquy between the court and mr halley about that and the court of eventually rejected those four instructions and i'll submit to this court that those were the most important instructions that put it then issued in that case because they went directly to  correct analysis of what material breach yes separate and apart from the issue of substantial performance in judge i'll answer one more question for you yes they followed that e g instructions but you will not find the case reason because it doesn't go on to discuss in terms that the jury going to understand why it is that substantial performance has to be achieved before there can be a recovery in other words in this instance there was evidence in the record before the court and i'll cite you to st clair's tab seven and st clair's tab eleven tab eleven is st clair spare request number seven if you carefully review the line items that occur in a construction contract and that were in this one you will discover that at the time they submitted a request numbers seven on december sixth of two thousand one month and four days after they were supposed to be complete with the project they acknowledge that over one point one million dollars worth of contract work had yet to be done but i mean think of the problem  instructions is the sentence saying there is no material breach were substantial form of this and rendered that's correct let's say that's wrong there is a material breach regardless of whether court then asks to personalize the issue of substantial completion instead of asking the jury to determine on the flip side for the city of mccall whether or not same player had substantially completed in instruction three a what you see the judge saying is you have to determine ladies and gentlemen of the jury whether or not the engineer exercised reasonable judgment well the disc that as we've cited in our briefing whether or not engineer exercise read reasonable judgment wasn't the issue the sole issue was whether or not saying claire had substantially completed as of the time of terminations i still don't understand it mattered concretely in this case i mean let's say everything that you say was wrong with wrong you've got good arguments for that so both the why it matters because it looks like what the jury was deciding was was problem or was the city justified in firing a crime for it's wrong for two reasons number one the failure of st claire to perform was based upon what's known as an impossibility standard the judge gave an instruction as instruction number five and he said just because it's more difficult or burdensome doesn't mean that it's not impossible that was a a misstatement of idaho law i don't law goes by the objective standard is it physically possible or not the fact that it's more burdensome more costly or more expensive to perform doesn't make any difference then you go one step the issue is working through the winter at a june deadline and they said even not working where they could go get them by the well but they had a november deadline they had a november second deadline according to the face of the contract the following june it did not get extended with respect to st clair there was no extension granted and that was an issue to be terminated in the case of the  one that they did not they terminated instead and so the question of wrongful termination was fair game but the judge chose not to follow the line of authority that dealt with the wrongful chief judge walters and the reason that's important is because where you have a wrongful termination case you have a different measure of damage you don't have all of the consequential loss and in fact judge walters went on to cite or been on contracts that says where the focal forms of the construction contract by the parties would have left the building contractor in possession of full contract price less the entire cost of construction required by h the problem with the with the judge's damage instruction in this case is he never asked the jury to determine how much st clair would not have spans by not having to complete so we never got the correct measure of damage and i would direct your attention to the fact that that measure has been adopted in idaho law in the in the sullivan vs valas case and in a case called molyneux it fifty four idaho six thirty eight you'll see that's quoted in the bollix case at page one ninety at the very bottom of the page my point gentlemen and now i'll reserve the rest of my time if i can is that the jury instructions were wrong they got the wrong decision with respect to how you measured material breach the judge himself admitted it was confusion and he elevated substantial pro forma it says a statement of idaho law you will see this in three over over the terms of the contract calling for substantial completion so material breach was wrong substantial performance wrong he gave the wrong instruction on substantial completion failed to use the one that was that was decided by the parties in the contract and he gave the wrong measure of damage because he did not ask the jury to take into consideration how much money saying clay would have saved by not having to do the work thank you gentlemen i'll reserve the balance of my time buy back up to the first thing yesterday i used to do these instruction conferences on the record even though it was often hours of on structured discussion just to avoid this problem most judges do it off the record in chambers because it has to be answer for discussion to really do it right yes or i never know what to do in reviewing these things i mean i know perfectly well from when i was a lawyer that a lot of stuff happens and chambers and it's clear to everybody what everybody else is talking about so probably when the on the record discussion is first we have to cut him slack for maybe not i don't know if there is there is a difference or your honor between appellant's argument and min the language used throughout the instructions for us both and in lieu of substantial performance and that was yes and what the the crux of that the objection was by trial counsel for this was that wait a minute stinker could not have substantially performed unless they substantially completed and in fact that was that hans after was that that was what the objection was was mirrored by the district or in his my words and you tell me if i've got it right yes sir the jury was correctly told they can't fire you if you're not in breach they can fire you if you are in breach  case is they fired early yes sir when we were not in breach add their cases you would not you weren't breach and we want the jury to be told that if you had not substantially completed the project you were in breach so we c fire you don't want the jury called that because you say we've got months where we're laughing complete the job so substantial completion is irrelevant all that matters is whether we actually performed thus far and our deadline engineers did not explain to the city that wait a minute these fellows may be in power the more time because they hit different site conditions was the jury given instruction so that it could decide you know the contractor just wasn't getting the job done it wasn't just didn't hazards or yes the contractors right there were hidden hazards that prevented the contractor yes that was going on in the contract that was in pedal and yes that was the for that was a fundamental that was a fundamental issue presented by both sides we argued hey the contract was more time they argued no they weren't entitled to more time they didn't get the job then they didn't step up late and therefore we were justified in terminating sondra that was the issue presented at trial and i might add that  even if it did get to that time well were we in the middle of winter one one last point on the damages and i don't have to just as quickly as i'm running out of time but those damages were spot if the court will look to you instructions seven a have lead to page two eighteen of the experts of record that instruction identifies the elements of of damages and there was no double dipping in this damages fought on fear and fear none that the instructions seventy items two three and four of instructions seven a and i don't have time to go through them but they do identify the elements of damages which is nothing other than the remaining contract balance that was earned but unpaid as item two items three may i summarize everything on the item three was the  the backing out with the kurds for that cos that's not it we asked the court for in all respect about a question of whether or not a contractor was wrongfully terminated that as ultimately what the case came down to there was factors that were put on by st claire as to why st craye was unable to complete the project within the time that it sufficient time to do work were it permitted to do so and if in addition incurred additional costs in the in the course of performing the work the issue that i want to address that was raised in the briefs hasn't been have a jury finding if you will or some sort of measure that it need be proven by reasonable certainty the city said well that was the pattern instruction it was good for the city signal didn't object to saying there's instruction as well that it need to be prove with reasonable certainty instruction itself though does say that the damages that flow must be those which were reasonably i'm paraphrasing but reasonably compensate the contractor for there's this abundance of proof in the record eight years of reviewed financial statements indicating the financial status of sainsbury contractors before and after the term r sinclair testified to the status of the company before and after indicating that before the before the terminations the company had a proximate value of about a million dollars of worth of that company after the terminations that value drop to approximately negative one hundred thousand dollars it was more in debt than it had assets against it in in addition to the last view to the fact that the company when it couldn't get other work it also incurred it also did not receive last profits would you otherwise would have been able to receive by virtue of being a contractor in the public sector didn't have that element in fact their records also indicate that it went from a gross revenues of maybe four and a half to five million dollars prior to the terminations to about one million dollars after the terminations revenues get turned off right away the overhead doesn't get turned off right away the company eats into its reserves goes into the hole and then past then the last element is ok well what was the last expectations what we're lost profits and operating losses are set operating losses were and then in two thousand and three there was another document made without objection and that was the graph malinche it indicated that same claim made a slight profit you combine the two operating losses of the slide profit and you get to about five hundred thirty three thousand dollars of of of profit loss combined the two and you get to one point six million dollars roughly speaking and if you look at the court's opinion st clair four point nine million dollars finding that the city had committed a material breach of contract by terminating thinker of that amount that's the four point nine million dollar amount of that amount the jury found one point six one million six hundred twenty nine thousand two hundred three constituted recovery for sinclair's business devastation plane i'm sorry your honor i'm on page two of the memorandum decision which is that page one sixty five of the excerpts of record and it indicates there that the claim was comprises of just over one million for the devaluation of the company resulting from its terminations and just over five hundred thousand dollars for lost profits public works projects foregone two distinct years inability to get funding due to the terminations i pointed out in the brief and i won't i'm not going to reiterate it here at length but what i did try to point out in the brief is that by virtue of having the the financial value of the company lost retained earnings and add to that the lost profits of five hundred thousand dollars and you get to about the one point six million dollars figure that the jury got to see if there were other ways that the jury could have used it i put him out in the brief this is well you could you could put sinclair back together again by taking the gross revenues of four and a half million dollars and saying well that shouldn't stop because if you continue to work you want to continue to out that need take the percent of contribution to overhead and profit baumgartner case idaho was in that case indicates that where there is damage it if the damage where there is a loss just because the damages are difficult to prove is not excusing we should not excuse the estimates of what the damages were and the court found that that was not speculative that was not so so so difficult to to to grasp that it resulted in speculation i'm sorry for going over i think y what i'd like to address to our two issues i think them and you were reverse order of which they were presented first of all i think we have clearly identified in the brief in the excerpts of record in the statements that were made by mr sinclair have it seems that they were involved in extension of time to limit or put that to the jury whether they were well the jury was never asked to answer that question they were never asked why as substantial completion afforded to the city they were never asked i  extensions in some circumstance or th well i'll answer it this way by reference to the record judge if you if you look at tab seven of the st clair record that is their claim tab seven is the nature of their claim and what they've complained about in their briefing what they complained about in the course of this case was that the imposition or or the unexpected finding of this dump was the cause of all of their problems and the requirement that they going to extend into the winter eleven days and what and what the fact is is if you add up the total number of guard six hundred thousand cubic yards divide that by the ten thousand eight hundred you can see that they were supposed to do the excavation and embankment in fifty have taken away that from st clair as a matter of law the answer is yes he should have there was no substantial performance because the city never received the benefit that it bargained for and that was an operational completed holding storage structure plus the pumping facilities and tab eleven answers the rest of the question there was one point one million you're saying that the judge should have gone through i'm not saying that what the judge focused on in his memorandum decision judge was two things number one that the undiscovered down and whether well the weather didn't occur and tell way late in the project more than a month after they were supposed counsel for the city and he didn't adopt the standard the bollix case which basically says if you got terminated and if they're wrong you get to be paid for your work that you did but you have to give a credit back in the damage calculations for the money that you didn't spend and i defy council or anyone else to look in instruction saturday and find out where the jury was supposed to analyze and give that credit that's what's wrong with both the liability and the damages side of this case that's why the city was prejudiced you can't segregate the verdict and the reason is it was tainted because you have a bad instruction on material breach you have a mixing with the rule of damages in the instruction on material breach and so under the under the holding of your honor in white vs for the instructions were not clear there were confusing it tainted the entire process and i'll agree in front of a jury with the proper instructions all of this is fair game but in this situation with the instructions that were given that were wrong it was unfair to the city and they were present thank you for your time