a song clear here you're saying if liquidated damages false you're entitled to actual damages and your issue on appeal is that the trial court misconstrued the law as opposed to made any terminations cancellation or abandonment as this court has already touched on and i kind of was the drafter of this document those are the terms that it chose to include in the document and therefore this contract will be construed against  onic it certainly had the option to choose different language language requiring default or nonpayment as a trigger for paragraph seventeen of liquidated damages it did not do so i also think it's important to note that in its brief iconic does not appear to take issue or present case law that would call into question the court's analysis of the terms and apply their plain an ordinary meaning to the contract rather they seem to make a very broad general statement that the court aired in its application well if we look at films like we look at the nd and then to this contract it does say that m c j and betty requested to terminate the project isn't that correct it does your honor and as we did well i was going to say mike my question is why  ich in his argument said that counsel was present or involved in these documents i take very strong issue and offense to that that document was created at the direction of mr dickey i believe by mr revenge and provided to our client while that he was being represented by our office we did not review it together we did not approve it and we would not have approved it further there was some testimony presented to the trial court on this  issue although this issue of course was not raised directly at trial the st time it arose was during the motion to reconsider therefore the court didn't really have an opportunity to make a finding for this honorable court to review but regardless of the testimony provided by dr bedi was that he had discussed a mutual termination with mr dickey and that is what he expected to be reflected in that agreement he he did sign it without reading it certainly a hard lesson one that he will never repeat assure you but once he found out what that document said he immediately tried to contact mr dickey he further contacted our office which prompted us to send the letter which was admitted into evidence i believe it was our number eleven on may th asking that that contract be destroyed because we our client did not understand what it said did not intend to terminate this agreement and in fact wanted to continue to pursue options ms thompson doctor betty it would be fair to say he's a fairly sophisticated investor and business person i mean he's not a neophyte to contracts or these types of issues it would appear and with that in mind is it unfair to bind him to fairly straightforward terms of the amendment i would agree that he does have a business and real estate experience and as noted and explained during the trial he he generally trust the people he's working with and he operates to an extent on a handshake certainly that's ill advised but the premise for which the nd amendment is being offered is evidence of intent  and i think for that purpose it cannot it cannot stand our client did not draft this did not agree to it and the supporting evidence of his conduct afterwards certainly supports his exhibit number twelve in which they acknowledge that no further attempts that iconic is not interested in pursuing any other modifications that they deem this contract to be terminated and  demand liquidated damages and under that evidence i think there is more evidence to suggest that iconic terminated this contract and iconic had the affirmative actions as explained by the trial court  clearly breach the terms of the st amendment to this contract by not being in accordance with what was written in the st amendment and why should that be construed as abandoned  disadvantage here as we further raise an on appeal is that that should not have been allowed as an additional form of recovery iconic raised that issue in the midst of trial discovery was not conducted with an eye towards investigating the circumstances surrounding the st amendment iconic was not given the excuse me and c j investments and dr bedi were not given the opportunity to explore that through discovery and raise additional defenses  which we would have done we believe that there could be evidence to support that there was some sort of anticipate to anticipated breach in that payment was not made that day the st amendment calls for the initial payment to be made on or before march th the contract was also signed on march th and there was some testimony related to the fact that when the parties came together to sign the agreement mr dickey was aware that the twenty thousand dollars payment was not present subsequently between march th and march st when the next payment was to be made the moratorium ordinance was passed on march th further complicating the future of this project and the ongoing conduct of these parties shows i believe an agreement to amend or an agreed to delay this payment until they knew if it was in fact going to be required or allo damages it needs to not be a breach but fall under one of the three terms that i kind of chose to use in this case which is terminations abandonment or cancellation and again as the court analyzed and found each of those phrases requires an affirmative act and the court found that the nonpayment was a non action and therefore did not trigger recovery under the liquidated damages clause i appreciate the trial judge's grammar lesson it was actually interesting however the nonpayment inferentially suggests that somebody is reaching not going to continue with the obligations contract i don't think that can be fairly construed under these circumstances at the time that this contract was being entered into there was a lot of movement going on with the county board that was going to impact  the future completion or potential completion of this project the very wording of the moratorium said that no action was going to be taken on any application for permitting and if mr hyland from the planning and zoning committee testified he would not have been allowed to process a a building permit site development permit a special use permit and therefore there were in effect if this project had gotten off the ground a st work order would have been issued to prevent it from moving forward because no permit was issued and i guess it also refrains back to my prior argument that if it was intended for nonpayment or breach to trigger data damages then iconic should have included that wording in the contract and they didn't this is not consideration because under the initial contract iconic was not required or obligated to make any efforts until it received approximately three million five hundred thousand dollars so they would be effectively terminating  efforts that they were not required to undertake so that is not consideration the consideration of the waiver of attorney fees in prejudgment interest i believe your honor have touched on the difficulty with that argument at the time the nd amendment was signed there was no litigation pending between the parties there was affectively nothing related to attorney's fees or prejudgment interest to be waived because there was no reason to believe they would be able to recover attorney's fees or prejudgment interest it also is important to note that under the prevailing party paragraph of the original contract the parties are only entitled to attorney's fees if they prevailed through that a geisha like i said there's there's no reason but at the time litigation had not commenced and and indeed we know now that they did not prevail and that is true as well as the pre judgment interest that's not mentioned anywhere it's not expressly waived as referred to in the contract and i it's not a fair inference to make that those would have been waived drafting doesn't do that and a lot of times doesn't even spell out what the consideration is just says we're the effect of or good consideration provided and leaves it at that and i raised this only because the concessions if you will that you've just gone through the history of leave that's mentioned to us under modern interpretations of what constitutes consideration it seems to me not require much and that seems to and i guess i would point the court to of course as you're aware this would be a dunno but a review as to whether there's sufficient consideration to support the contract the very language then of the contract is the limiting factor here and the language of this contract states that iconic energy's consideration is going to be terminations future efforts and c j investments and dr reddy's consideration is going to be the payment of liquidated damages again those provisions are already provided certainly the courts argument or the court's position on that i think we are limited to the very terms of this document which which clearly recite what they believe to be the consideration offered and in fact that consideration or do we just look to the four corners of the contract i think in this case we look to just the four corners of the contract and that's what judge waller did in this case and that approach has not been contested on appeal certainly not enforceable there was no intent to include liquidated damages the calculation was not reasonable and not proved up by iconic and certainly the court found that there would be no significant proof in the testimony that was presented in justice brennan you certainly picked up on that to support the court's finding that mr dickey was not credible and that being his total manipulation of can mail sent on april rd which completely changed the tone of the email and most egregiously in that e mail mr dickey offers to forward that email to gary does sick who was the finance officer who was going to dollars as it relates to common law damages that was also briefly touched on here that relief was not requested in the original complaint it's not requested in the amended complaint adding the additional count for breach of contract if there should be deemed waived and forfeited and as i believe was already mentioned by the justices here there was no underlying calculation to prove up with those damages were all we have to that effect was exhibit thirty seven dollars which was admitted only for demonstrative purposes not substantive you can tell from the face of that document is self serving the st page appears to be a word document with just a listing of products and costs and cited in our brief your honor the the case law suggests that there should be almost a totality view of the issues and the significance of those issues raised in the court the benefits to the parties lack of consideration for the nd amendment the unenforced ability of the liquidated damages clause and the significant benefits of which with not having to pay the one million dollars or so and li damages and then reversed iconic also was not the prevailing party and that the only thing they arguably succeeded on was the last minute addition of a claim for breach of contract of the st amendment time just to briefly touch on the court's decision to grant iconix amended motion to amend again this is a pretty straightforward issue there are four factors for a court to generally consider when determining whether to grant such a acknowledge that in the event that this court should affirm the trial court finding of no ward of damages related to the st amendment i think that would make our claim here moot however given the issues raised on appeal by iconic there is at least the possibility that we could be perhaps returned back to the court for further assessment and the only issue they prevailed on was the breach of  the st amendment so that is going to survive we wanted to raise the issue of how we were in fact prejudiced by raising this claim so late in the proceedings and in effect as you can see from the trial transcript  this request was granted moments before judge waller rendered his ruling on all proceedings before the court and effectively denying our request for a twenty one dollars day continuance to conduct further  discovery investigate additional defenses to prepare to meet the allegation that he breached a st amendment which i of course feel confident that we could have prevailed on that issue of well if given the proper opportunity right at this point secondly there was testimony that there was a tremendous amount of work in her ration what went into this project testimony  design there was incentives which had to be investigated and there were system layouts so it's not as is this as is used  s when there are lost profits we should be more times would you also agree that the opposing side would also prevailed on certain claims court counts and that they too would be the prevailing party and you want to comment just finally on counsel's argument regarding the late motion to the st amendment to the case he what mr better dr petit had said and that his banker had advised him essentially not to continue with this project mr dodd six testimony revealed or he referred to what i believe were several red flags about how this project was being conducted one of which was the payment of three million five hundred thousand dollars for which he referred to as a problem because there was no product on site as an experienced lender and construction contractor he found that to be very unusual and he raised that as a red flag in addition to the check that was to be issued was to be issued jointly to iconic energy and to i believe it was french girl  it again found that to be a red flag so there were certainly some conversations happening in the background for which doctor betty with advise that this contract was suspicious and perhaps shouldn't continue with it but for mr dickie to state that our client told him that that was the reason he was terminating again i think is is incorrect and again calls in to the credibility of mr dickey and that somewhat self serving statement  vich describes the tremendous amount of work i believe he referred to to prepare well he didn't say i believe what he's referring to is all the work that was done prior to contracting and as such that's not something that really could be recovered prior to contract there were there was mention of other losses other projects again none of that was proved  trial at some point in the proceedings i believe i actually engaged mr dickey with questions about what projects did you did you forego did you forego any current projects because your because of your work with  j investments his answer was no there were no other projects that he had to turn down walk away from because of his dedication to this project again not proved up but not a reason to  record or otherwise that any of those things exist and we persistently asked for those things to be produced and they were not he mentions the e mail from green circuits and brett robinson if the court looks at the record that e mail was admitted strictly for the purpose of going to brett robinson's potential bias that was it mr leverage appears to be presenting it today for some alternate reason he also mentions the liquidated damages cla e again there was no intent to include or negotiate look at liquidated damages ahead of time the court made that credibility finding the reasonableness of the damage damages somewhat ignores the court's core analysis of that prong because i kind of did not produce those core damages those costs are material labor permitting there was no basis for which the court could then analyze lost profits reasonability in the event of breach whether that twenty five percent as they requested was again a reasonable forecast of harm because we didn't have a foundation or the court didn't have a foundation it couldn't goes on and on to properly analyze the reasonableness of that term  and again as it relates to his comments about how we were not surprised by the additional account for breach of contract even today we still have no reason as to why connick waited as long as they did to bring that forth or that request before the court case last cited by mc j and dr petit point to the fact that these requests should only be granted in the midst of trial if there is good cause shown or some reasonable basis to wait as long as they did to bring this cause of action the cause of action alleged completely separate conduct for breach of contract at a different point in time and involved an entirely separate contract itself for all those reasons it did take us by surprise and it deprived us an opportunity to fully prepared to respond to those allegations and we were prejudice the language of the personal or the contract said that the personal guarantee was to guarantee the installment note that note of course was never entered into evidence therefore there was no debt for which dr betty could guarantee and therefore they failed touch approve the elements of a personal guarantee we asked that the court's findings as laid out in our brief be affirmed and reversed on the issue of attorney's fees and the granting of the amended motion to amend thank you thank you for your argument