versus poly chem services be condemning of that we but i completely understand the situation and i don't want it to reflect anything of me a good stretch who knows i do believe that she was extremely busy at the time and that she could have done better were having a better situation million dollars it was something like one  thousand dollars are put into an escrow account to be reduce their waste that year cleanup that was listed in their contracts that's where the dispute came in their contract then tainted barry general statement that the purchaser only purchases waste instituted our dinner out but what was the balance when they stop the payments if you know just the last it was dismissed i presume that that the ten year gap or the nine your seven year yet from the st complaint until two thousand and seventeen was because everybody was still working together and they decided that no this would be one of the requirements and obviously if there's a claim breach the person who was claiming to be in breach gives notice of what they're doing and correctly at the time  who liquidate the remainder of the funds in the asteroid account and said the cleanup was done there was discussion about cleaning up the work and my client had constructed notice that they never had actual written notice that there was more to do and when they did requested a list of material saying well let's take a look at the list if it's agreeable we want to just clean it up whether we think it's our responsibility or not and keep moving forward on this contract because ultimately that just trying to finish briefly i think this is a pretty simple case when it comes down to it my point is just the contract that could not be remedied and their solution was that they don't have to pay the remainder of the nose clearly this is an opposite law on performance the that tourney for the defendant at trial actually myside to raw i don't know to or intentionally judge whose you indicated that plaintiff was required to strictly comply with every aspect of the contract before it could come to court and request any type of or damages one performance on the say we have to unwind this truck contract because this is so important and so we're tearing off the be entire contract should be defeated what they did was continue to pay under the contract for almost a year and then a court defendant john  generating a massive amount of waste as well and it was also just so we had possible for them to say it was we hartman's actions that cause the e p a to interject and even if they did they did not do that trial and i don't believe it can be before the court today the fact of the matter is that my client performed under the contract even after the dispute they still performed essentially what the trial judge said they needed to do which is  down and would not be able to really hear the case herself so i didn't really have trolled that aspect of the case but i agree with your honor that that was not addressed and it could have been addressed by the child  good morning your honor as mr casey said at the beginning i have been involved in this case on behalf of services and john hart since the trial court ruling came down mention by the trial court judge the notice requirement made you believe that that was one of the primary arguments the appellant in this case from our perspective justices it was a an argument that while that notice requirement did exist in the contract it was not strictly adhered to by the parties throughout the course of their dealings in this case it's very appar throughout this record that this case especially at the beginning from the time of the property lease through the purchase and then also in the removal and disposal process  these parties had to be in communication with one another on a constant basis what was going on who was coming in and out of the plant to remove items and particularly through  which i think was mr stouffer on he was employed by heartland to conduct this removal and disposal process throughout the course of that process i believe the record is clear through mr stouffer on as well as my client mr hart that j s created a spreadsheet and updated them frequently on the items and materials that were being found in the plant itself that needed to be included or disposed of in that issue if the notice requirement is to be a strictly interpreted as the opponents are asking must work to do each and every time mr stouffer on need it to submit a new inventory list or get into the plant or receive payment for some services this formal written notice would have had to have happened because the actual notice requirement i believe states that it is for any notice defect or communications and the key there is communications between the underlying real estate contract isn't moot because everything was jeered in two thousand and seventeen payments on a promissory note resumed for a year i think is that is that correct and then seats because of the escrow the escrow was eventually chewed up with the cleanup and so why aren't we simply looking at the promissory note as the agreement to be enforced here justice right i completely understand your point there because again it will ultimately all the cleanup that was required mostly by the e p a and the back and it was done and that did eat wash i don't think she was giving you a pass on the promise or a note i think she was compromising and saying that you're claiming about two hundred thousand dollars in damages and they're claiming about two hundred thousand dollar debt does you know it all evens out so why should your client remain on the premises continue to operate their business without pain  the balance of the promissory note i believe that our perspective on this justice right is that these agreements can't be read by themselves we can't simply read the purchase agreement without also reading the removal of disposal agreements with guarantees i think what my former law partner had argued at trial and i believe i referenced in my brief is that the had these have to be read in peril materia because they each reference each other back and forth so you can't simply take the purchase agreement out away from the removal and disposal agreement or and the opposite is also true so while i tend to agree with you that i think judge schuster somehow found that holy kemah john hart were due to some form of damages based upon this breach early on in this agreement and that maybe heartland was due some sort of remedy and the promissory note i believe what she didn't do was kind of without specifically in strictly stating it just well everybody got her here so let's just everybody walk away at the current status that we're at the counter claim which could have allowed the trial court to receive evidence of damages the trial court didn't get any country evidence of how your business was damaged during the shutdown so how did she have enough information to consider this a wa i agree that counter claim was dismissed and there were no formal black and white documents brought him there weren't i believe testimony and evidence that was presented at the trial from my review trial transcript was that john hart testified that he and the business had lost approximately five hundred thousand dollars at least in that particular year from the shutdown due to the e p a shutting the plant down i do agree just as someone can see that that is the only evidence that the trial court had damages to poly cam at that time and one more question for you how can i am sorry to interrupt your argument but when the counter claim was dismissed in twenty thousand and seventy seven years after this litigation started and when the payments on the promissory note resumed why shouldn't i look at that  waiver the material breach i don't believe the payment on the promissory note resumed at any point after i believe october of two thousand and ten ok i believe that was the either dismissed why isn't that a waiver of the defense of the tiriel breach i don't believe that waives that the sense of material breach i believe that that could waive any finding of a formal order for services and john r so when there is a material breach there's a couple options available one is to rescind the contract to put everybody back in their original position but your client didn't request that as a remedy what they got that is they continued to operate their business they continued to maintain ownership of the land but they have paid two hundred thousand dollars less than they agreed to pay isn't that the what happened ultimately guess in some form and fashion that is what happened because again i don't believe that there was any evidence at trial unfortunately as to what the actual balance of the promissory note would have been at the time that this all commenced in very early two thousand and ten but for rough numbers i would absolutely say they are approximately two hundred thousand dollars was not paid under that promis and purchase agreement our contention at this point is that it the also meant judgment for defendants here we're asking the court to find it inferring that based  remaining obligations under that purchase agreement removal and disposal going offshore of those various agreements that are read together in this particular case but they didn't want to be resolved they wanted to stay on the premises they wanted to continue to operate the business they just wanted not to pay the balance due and i think that maybe one of the failings of the trial court order is th that you know there was a material breach therefore you know defendants are solved there are remaining payments and if so why so i can understand the question that's the question the judge didn't say let's assume there a material breach the judge didn't say the why or why i agree with you on that point so can you tell me the why why there was a material breach no why you should not pay the balance when you remain on the property and continue to operate the business but you haven't submitted conclusive evidence of damages my response to that your honor is to simply take mr kurt think that is part of our argument is that he did know these issues existed and that in and of itself goes to kind of a i'm clean hands tight mentality that  we're asking the court to you hear i think one of the things that judge choose does get the benefit of that that really i don't nor do the justices get the benefit of those she got to be the witnesses testified so she got t terms of fun clean hands that goes to an equitable remedy just being fair to both sides but this isn't know right here on any good i think maybe that was an improper term for me to use i think it might yet my point in that is simply to show the lack of heartland being front about the condition and nature of the property more that they knew there were issues to start with and went ahead and perpetrated that none of those issues existed and so when they're called on the carpet about those issues later ultimately that had to be forced by the e p a you know holly cam says hey whoa whoa this cleanup isn't done we need to do something about this and there's pushback there's constant pushback and intil the e p a gets involved then then they do it because they're told by the e p a which mr blackwell even sent in his testimony heartland was the one who had issues on his property e p a said hartland had to clean it up that is that goes to the overall general credibility of entering into these agreements and agreeing to remove and dispose of all unusable inventory and waste materials throughout the course of these agreements so we are asking the court here to hold a trial judge's ruling or asking the court here to inferred that when the trial court makes that judgement for the defendants even though there are not all of those specific findings of fact that those are you know those facts in issues that are in controversy should be found and inferred to have been found by the trial court in favor of holly cam services and mr hart based upon the ultimate ruling here judgment  defense your honour's thank you very much for your time today and any other testimony of specific communications that they were stating that i don't know and i don't know if anybody right now here knows how much the parties actually communicated directly with each communicating all the time the point that i made with the notices is that this was a significant breach they were claiming to not continue to clean up wastes and if that was that significant they needed to follow the notice my client followed the nose  of damages for greet each because again they did drop the counterclaim they didn't lose any specific damages that were supported and mr howard's what he was essentially speculate and it was a rounded number that didn't have any support behind it so i transferred the player has been transferred for years and then used so i don't there's any way for the court to hold absent to come to this conclusion with what was presented to them  counsel i'm sorry to interrupt you again but at the time the lawsuit was initiated in two thousand and ten there was a material breach but at the time of trial perhaps that breach cured how do we measure what time frame do we measure this by the time the lawsuit was filed in two thousand and ten was there breach or the time of the trial in two thousand and nineteen had that breach if there was a material breach in two thousand and ten there was a cured material breach in two thousand and one team so how can we hold judge  implicit finding that there was a material breach when the evidence in two thousand and nineteen shows it was cured are we measuring the timing of the material breach by two thousand and ten or two hundred one thousand and  standard it was a material breach and she found that there have to be more action than just the forgiving of the current balance of the promissory note with a personal guarantee she understood that it would happen bigger than that but as i mentioned based on the defendant continuing to act under the waste and how we can says we need to remove more waste that was in two thousand and nine and they continue to pay for almost a year after that and that's evidence enough that the breach was not material and so i would say you don't need to measure the breach i think the the alleged breach was at best an affirmative defense and it at the time it was active if it was in grief regarding notice it would have prevented plaintiffs from collecting on a personal note into a cure and i believe after it was cured it could no longer