i want to be ready may please the court your honor bradley here for the township of down this lawsuit was not a lawsuit between private corporations i can't emphasize that enough this law citizens pay is carefully guarded by laws and those laws are the new jersey public contract law and also the downs purchasing ordinance and those laws say look a contract of the size of the one of the issue in this case any contract over five hundred in regards to the ordinance over seventeen thousand five hundred in regards to local public contracts law if there's going to be a contract that size the only way it can be linked in our brief it goes through an interesting actual fact pattern new jersey mayor entered into a contract that didn't get the committee resolution approval the guys in that case they kept going to committee meetings the committee me cabinet committee member said oh we'll pay you will pay you don't worry about it but when it came down to a court of law there was no resolution so they said that contract was dead void and no it was as if no contract had ever been entered at all and i would like to take th one and it goes through mississippi local contracts law which is the exact same as new jersey public contract law same with this was an act it to protect the taxpayers this was an act of to say specific procedures to enter into contracts and when those contracts aren't followed then the contracts dead and this is when looking at the mississippi public contracts law this is what this government this is what this court held in other words a government entity talking about the state of mississippi has the power to define how and when it enters into a contract and bind sticks by extension how and when its agents have authority to create contracts on its behalf and these words could have been drafted for this case  and i see where the new jersey statute does seem quite clear so why didn't you argue that early on in the lawsuit and it seems like you were trying to recover your own under the contract and so i wonder if it was almost in a stoppel if you're trying you're telling the court we have claims under the contract as well and then later on it turns out well the contracts no good well the township is a very poor township they wanted their attorney's fees and section five point five a was written into the contract to take the teeth out of the contract that was specifically put in there to incorporate the meaning of new jersey public contracts law because if you remember what it says it says this contract can't be used as a debt it also says this contract can't require us to appropriate fines and the reason they put that in there is the removing the teeth from the contract that's the only reason the mayor felt ok signing it so in this lawsuit was filed they were they really want this lawsuit has caused a great struggle amongst the township and it's budget having to go through these many years of litigation and they wanted to go after their attorneys fees so we started off going after their attorneys fees and we also did that at the beginning of the stage the rule twelve b six stage and we followed a summary judgment motion two weeks after the case directed verdict in the middle of the trial after they presented their evidence and we brought them up again at the conclusion of the trial and another motion for directed verdict and then they asked for a proposed findings of fact inclusion of all the judge dead and we put it back in that so we raised it over four or five times in the underlying core so let's say you're right that the contract claims no good what about unjust enrichment which is usually the recourse when someone provides services and there turns out not to be a contract well st of all the unjust  richment claim has been waived because they never brought it to the district court's attention they just rode that breach of contract claim all the way through and we've cited many many cases on this year you know so that was never addressed in the findings of fact in conclusions of law but it does seem like the court said this trial is only about damages under the contract claim which you know the district says there's liability in the contract that was pretrial rulings and then seemed to emphasize that this trial is limited to the issue of what the contractual damages are will know your honor at actually at the beginning of the tour respectfully no your honor at the beginning of the trial he said because we're doing a bench trial we're going to open this up to to all the issues we've talked about we went through all the local public contract law testimony hard at the trial i don't feel i'm going to change my summary judgment order so he actually reconsidered i guess would be the best way to put it and then one thing i want to say your honor of course all due respect is  issue you were talking about about whether we brought up these arguments sufficiently that was never raised and e h r a's response a brief ok since then you're going to slam but go so they did they never said anything about we didn't bring it up sufficiently enough we didn't bring specifically enough we didn't bring it up early enough so so i don't think it's proper to make a ruling on that basis when they when they've never brought the argument up and up this circuit law i believe is pretty clear that if you don't honor if you can give me just one second to pull them up said you're libel one of the contract township the other side wins their contract claim on liability you're going to damages i mean it would just be no role for unjust enrichment in that scenario because unjust enrichment is recovery on and on when there's a not not a contract know sure as a general principle that that's the case what i'm saying is you many cases where it's you win on a claim that is inconsistent with the other claim and they could not have won both  claims now perhaps they could have had an alternative the them an alternative holding in the event i'm wrong about a contract i would award this under unjust enrichment but but you could not win the other side could not win both claims they're inconsistent with one another proceeded on one and sort of just didn't talk about the other why didn't the others the reasonable interpretation of that simply as judge cost alluded to they're proceeding on contracts they think they went on contract in which case the other claim is not every single one of them at that point you have to elect a remedy and you know which we're going take damages for this cause but you still have in the record a ruling on all those claims and unjust enrichment a breach of that's what's your best case for the notion that by failing to continue to press the alternative backup claim that they're out of luck but they have to do everything at one time there's the typical case is there are alternative claims that say of a business dispute that you bring a fraud claim above that issue a duty claim a tortious interference claim many people are throwing all kinds of stuff out there those are alternative they're not inconsistent with one of their just alternatives and i think you're right people usually pursue those even though in my fraud going to back that up with the tortious interference claim and you can't get a double recovery so you have to elect one remedy but here it's not just that there are alternative they're inconsistent you cannot have but i good well i do agree in some sense your honor but i do think that it whether they were inconsistent or not they should have kept them in the case to see where it lands relented and putting in the complaint unjust enrichment and then there's another couple wrinkles on the unjust enrichment your honor the want is the under some recent claim should fail for the same reason as the contract and that's because new but new jersey public contracts law and downs local ordinance and the th circuit case aside and all that you shouldn't be able to circumvent these laws put in place to test for taxpayers by just filing an unjust enrichment claim they should fall for the same reason the whole purpose of those statutes and they're not limited to just talk of contracts they're limited to sort of agreed agreements any promised expenditure any invoice they receive so this whole under the idea that you can't just say well our contract didn't work out but now we're going to go under an unjust enrichment theory and get there the same way that would completely eviscerate new jersey public contracts law that would completely get rid of downs purchasing ordinance it would get rid of all these courts holding enrichment claim as it was too late by the statute of limitations we never fully briefed that because the unjust enrichment current claim was never brought but this is for work done and done back in let me forget the year but it was they were eight months too late in bringing their unjust enrichment claim so they did a little work after that so that he underestimates mclean would be like thirty thousand dollars or i think he did bring that up at one point during the trial and seeking a directed verdict is why i'm a little bit confused with the end just in richmond was part of the trial or wasn't i don't think it's very clear that we have said i was trying to knock out everything but they never oh you did didn't you get back we'll take it and then but i do want to talk about section five point five i briefly i think anyone that can read and write the english language can read that and see what it says it says this contract can't be used to create a debt it says the fund down is not required to appropriate its own funds the only reason the mare signed that contract was because it took the teeth out of the contract and the district court i have great great respect appropriate funds down has to pay its own fines and then they can later apply for reimbursement from fema so if the court there's two ways to kill the contract and that's through the new jersey public contracts laws there's the down city ordinance and then of course there are sections five dollars a day and then the final thing i want to say your honor is just if if you don't believe a thing i'm saying up here and the contract stays  to my collection of blue and silver so much appreciated that the st point i want to say is e h r a has no problem with new jersey's contract statute has no problem with dalin townships ordinates it's just that they don't apply and the reason they don't apply is stated three times in the p s a and that is because three times in the p s a the party specifically elected texas law but i  don't understand that because if the contract was never formed that choice of law provision is invalid and it seems to me the new jersey statute is getting at what is required for an municipal entity township to agree to a contract and so so to me i don't see why the choice of law provision matters if we're getting to a question of whether that the defendant had the ability to agree to a contract drawn it is a great chicken egg issue it really is and  suggest in this case the choice of law provision is what controls the new jersey contract statute and the downtown chips ordinance are for the protection of new jersey governmental entities but choice of law provisions the very purpose of those said this court in cardone in two thousand and fifteen is for parties to give up the law of a particular state and elect the law of their chosen ability to enter into a contract that is certainly what it says you are but but they gave up that procedure and that process by electing texas law that's this court's jurisprudence my five year old well except your honor in this case you have a are i'm sorry i think i keep interrupting him so that the five year old that doesn't have capacity for sure doesn't have capacity for a different reason and that is the tender age of a five year old in this case they say they don't have capacity but they do have capacity they have the capacity because they are adults they have the capacity because they are they are men and women of a church they have the capacity because they represent dalen township the mayor and the city council they have the capacity to say in order for us to get this contract which we want because we want our a services they have the capacity and the opportunity to say we'll go with each r h choice of law we'll go with texas law if there's another concern i have about your choice of law argument putting aside the fact that it is assumed the existence of a valid and forcible contract but it just seems to be if it would be odd or are just doesn't fit to say texas law determines whether a new jersey entity govern the creation of new jersey government has the ability to enter into contracts i mean it is texas doesn't deal with the types of municipal entities new jersey has and it's analogous to the corporate law context i think generally in corporate law choice corporate law issues going about corporate piercing the veil alter ego are typically i think governed by  the jurisdiction that incorporated the entity agreed so how can you fit texas law onto the ability of a new jersey creation of new jersey government to enter into contract law you are and the answer to that is in the contract it's in the a under the authority provision where where it says yes we are representing both sides are representing that we have the authority to enter into this contract and to bind ourselves to it and the mayor signed that on behalf of downtown chip and the city councilman or rather the committee members to be more technically correct as though to say how does texas law fit in new jersey township if that isn't even a creation of texas government it is it will say certainly it's not and i think not you know i think the answer is in the contract week there's no attempt to take for instance the new jersey township of down and say will all these texas laws governing texas municipalities are now going to apply to you know i totally agree that would be that that just can't be done for one thing it puts new jersey in the untenable position of having to say well we subject ourselves to all these texas municipalities statutes there were never written force so so the question becomes then where do they look for their protections and their rights and their duties and the answer is right back to the p s a all of those are in the contract would agree if they were just holding themselves out to be a think that's fair to say if they want an incorporation in under new jersey law we would be suing a bunch of individual in specific making up that there was a township that correct i agree we wouldn't be able to sue him because they literally billeted assume stems from new jersey creating them well i already our ability to sue them stems from the fact that they are incorporated under that particular state's law yes that's absolutely true but as that municipality they have the ability to give up the protection of new jersey law including the protection that would normally inure to them if they entered into a contract and that's what they did in this case three times that's that's or their own rules not have to ask well that that's true and and i guess that is the chicken and the egg in this case we're saying the egg came st the egg is the contract the contract says we have these rights we have these protections we choose to give them up then everything that comes out of that egg from then on is controlled by that contract because texas law how can we be comfortable that they have the right to give up say those rights your honor i think that gets back to the fact that all the testimony in the record is from the mayor and the committee members said that the mayor had the authority to do it any even the contract says that in the authority to bind section that section the mayor specifically says i have the authority to bind new did new jersey township of down how the mayor's deposition testimony change in new jersey laws it can change what new jersey law is you're on there's no question about that but what it can do is bolster what he already said in the contract which is i have the authority to do this in other words i have the authority to give up the right in the protections that we would normally have under new jersey law and instead elect texas law because that's how badly i want e h r right to work for the township of down the mayor said the citizens of bell and said this is our mayor this is our city council they represent us and what this contract does is say yes they do they do and as as such the mayor can bind the township of down and so can the city council but i renew jersey law to save the city council that has the legislative authority not unlike a lot of texas cities the mayor is really more of an administrative post without that what without legislative type authority that's true your honor but but again the city councilman there dare testimony is in the record and they said we gave the mayor the authority to do that they absolutely came out and said it it's quoted in our brief he did what we wanted him to do he did what we told us to do there's even testimony that there was a female appointment and i believe it was mary campbell that said this there was in in fact he said it at a council meeting to the public there was a female appointment that the committee had and they gave it to the mayor and the quote from the record is to get the projects done and that's why they entered into this contract and that's why they gave up their right to rely on new jersey law because they wanted  h e h r right to work for them let and one collateral point on that the there are thirty two cases cited in downs briefing that stand for the proposition that you've got to obey a municipality's rules ok when that municipality contracts those cases come from new jersey they come from this court they come from the united states supreme court a total of thirty two  cases not a single one involved a governmental entity contracting with a private entity from another state and you see where it's going in those thirty two cases not a single one involved a governmental entity contracting with a private entity from another state and agreeing that that state's law would control not say and what we ask your honor is you look at cardone which this court wrote in two thousand and fifteen cardone is great on choice of law and one thing it says is you want that antidote to choice of law i'll tell you what it is it's section one and seventy two of the restatement of conflicts of laws and there is no effort in this case to win or to even site the restatement and say for these reasons this choice of law doesn't pertain to us even though we know what case last says a choice of law provision dictates what law you apply when deciding whether the contract was formed in the st place your honor i think if you asked mr white he probably have the same answer as me i'm not aware of that case i'm absolutely not agree with judge joe i think this is a case of st impression on that if it's out there i haven't found it or you would have already read about it so to that degree one in the district court deal with us or did it and i'm i missing something you're out of the district court did deal with it on the record several times and wound up saying the jurors are analysis of any of these issues that we're talking about not not in any great detail judge oh it at one point and i'm going to reference this because judge costa used a key word to stoppel at one point judge white said on the record look you can't contract with these people take their did of course you know did we plead to stop well no we didn't plead it but of course that this court's duty is to see is there is there some theory on which the judgment can be affirmed that was raised at trial and judge white brought that up course we agreed with him not you know not not being completely off the track here we agreed with him but his point really does go to the contract to at that point aren't you a stop to deny the existence of a contract signed in the case where there is a valid contract specifically finding the p s a is valid and enforceable and so go forward well at that point e h r a determined will of course we're not going to pursue our unjust enrichment coghlan the case that this court issued on this on this issue in two thousand and one says unjust enrichment is a quasi contract theory and so the st rule of unjust enrichment as you can't have a contract well here's judge white saying on the record twice you do have a contract at that point e h r a makes the reasoned reason the bell decision well we  alternative findings on different claims knowing they could only recover one you can only get a single recovery right for your injury and people would bring three hundred and forty five claims in true seek relief because then if you're in this situation one of those claims goes bad on appeal it's more efficient if you don't to send it back for a retrial on the other client like in your honor i don't disagree for a minute i think that would be completely reasonable all i'm saying is e h r right not doing that does not seem to the level of waiver or fo of this contractual recovery the you know the unjust enrichment claim was unnecessary and it just seems like it was never or if you told the court that i don't see where you a firm will be told the court we're not going to pursue this now we're not because  be redundant or inefficient but it just is a get it got for it was forgotten about well yeah there is a point in the record where mr lamy is arguing unjust enrichment point and i believe it was limitations mr copeland mr bruce copeland as opposed to mr brad copeland argues your honor and found a contract so this doesn't really make any difference now was it much more than that no it wasn't but he was just reminding the court you've already determined there's a contract if you determine there is a contract unjust  enrichment is irrelevant and the judge went went through training one judicial efficiency for another ret you don't have to waste time doing this below but you might have to now do it again i wish i'd said that exactly it is one trading one judicial economy for another but it's still judicially economical and so it goes on with the contract and unjust enrichment is just not developed there if you did if you did i but that only speaking if you lost your contract claim here and went back f unjust enrichment claim would there have to be new evidence or is the evidence from the trial which you need and it's just fitting that to the elements of unjust enrichment you are i think there would need to be new evidence because the i mean the court has seen the record it's very very heavy on  contract and the p s a everything in this case has been about the p s a since the judge ruled that there is a valid and subsisting contract so my candid answer is i think you need another trial with a trial was about we did this much work we spent this many hours i mean what what would  ect additional evidence you would need to prove unjust and rich well for instance i think there would need to be more detail on how down benefited from you know from ph ari's work that's that's the st thing that occurs to me there does a great case caldwell and it's cited in our brief w a l l from the rd circuit in two thousand and eighteen again i hope it winds up being irrelevant but what the court said was when when the plaintiffs goes all the way through to judgment on a breach of contract claim and recovers damages and then to rd circuit and that court determined well guess what there was no contract line there was no contract so what's left and they specifically remanded the case for evidence and trial on the unjust enrichment claim that had not been developed we think if the court gets there that is a good blueprint for this case wall d from the rd circuit it's an unusual fact situation a largely because as judge cost observed frequently these these claims go to the court all at once in this case judge would like to go a different way we obviously don't have a quarrel with that but we think that's the right disposition if the court determines that the p s a is invalid and uninformed will mario other point is that the mayor and the city council knew what they were doing they did it intentionally they entered into this contract one of the little your school for the township of down approved the contract read it and reviewed it before the mayor signed it they knew what they were doing there no one was duped to get e h r a they intentionally gave up the protection of new jersey laws and elected to go with texas we respectfully suggest judge white was right when he determined to hold them to that choice and for that reason except for the points we presented our own appellant's brief we asked the court to affirm judge which decision may please the court if there is a primary argument is that the texas form selection clause or govern st and foremost the argument has been waved at the district court they argued new jersey local public contracts law should govern they cited standards in that provision one that related to an extreme emergency when america has power to enter into a contract they cited that as the governing law we get to trial during the middle of the trial  law and how the form selection clause would change anything in the case that's it that's why you don't see anything in the record about a form selection clause and this court has held you don't argue when you don't specifically ask for it form selection calls determination and explain how the laws will be different than that has been waive seign that a private company can contract around state laws so i put in my brief the marijuana example if i want to open marijuana dispensary here in houston can i buy marijuana from colorado where it's legal and put in my contract that colorado laws will will apply and then cannot come down here and open a big shop and start selling marijuana of course not  to the rolls of the state government any h r a traveled to new jersey to do this business they enter the contract in new jersey but they want these texas laws that allegedly contradict new jersey district they talked about testimony from downs witnesses and the final point your honor excuse me on the form selection clause texas laws the same as new jersey on this issue eight texas cases that s mayor cannot enter into a contract without committee candidates city council committee approval so even if this court chooses texas law applies this kind of practice still dead on arrival and then of course the testimony down witnesses with all due respect to opposing counsel we strongly disagree the township members did not testify they agreed to this contract it has defied they had nothing to do with this contract that it know anything about this contract they never even seen this contract and the mayor testified consistently throughout the case including through meeting minutes that he did this on his own and they also asked if there was a a  thanks to both sides for a good argument the case is submitted in the court is in recess until nine am tomorrow