producer and the pain people it's easier for me the payroll company a new trial on damages is warranted whenever a jury reaches the damages number is nowhere no how based on the evidence presented to him and that's exactly what in this case the jury was given a jury instruction that in order to prove each of surety obligation entertainment partners here will company must prove by a preponderance of the evidence that worldwide acting is agent assumed particular obligations or some or all that all of the obligations not only that none one argued either side argued that the jury could decide that only some of the obligations were simply what the jury was not to decide that they have to make obligations from here on but before the bombing company stepped in it was between the principals if the jury i suppose in theory could have reached that conclusion if someone had argued that to them or if than struction had allowed them to do that but it didn't and there was no argument made that only post bond obligations were the ones that were  obligation to pay the payroll company and then you know they've been determined that amount had been determined in the other person point three point two million dollars and i mean it was an exact number right around numbers it was three point two million dollars and that's why we made a new trial motion for damages what the surety company sat at the trial court and what they say now in response to reach pretty far to try to justify what a jury does ally why is it just untenable that the jury decided that it is untenable for a number of reasons first if you look at the numbers  juries are entitled to estimate damages in some instances him up with a precise dollar amount of perfectly round number one point seven five million dollars now if you look at the actual numbers before the jury there's no way you get to that number you can that isn't the number you get after the bond or ever i mean after the bunny company stepped in no what you get million seven hundred seventy thousand dollars pretty close to a million seven hundred fifty thousand dollars and if this were an emotional distress claim or a pain and suffering climb i would say that's fine but i do inclined to think it's just a rounding error well if it's twenty thousand dollars difference on almost two million dollars one or two percent difference it is a small difference but when they have the exact numbers before them we have a lot of case the same they don't have to buy an exact number they don't have to buy an exact number but when both sides agree on what those exact numbers are why did they get to estimate some work close to that i don't think there's any supports that they're doing something like that obvious million seven seventy was one number and the other one was how much roughly two point four million two million four hundred thousand and these were the two numbers that the evidence supported  after the bonding company stepped in if what the jury wanted to say was the fruit of the bonding company stepped in you're on your own with the principal after the bombing company step then you are entitled to get paid by the bunny company you're doing apples and oranges and i need to explain why you know all commercial contracts obligations that the payments are applied to the oldest obligations first not what the timing is not clear the bond is issued in january two thousand and one the takeover occurs in july two thousand and one so the takeover occurs long after all of my clients work sarl and they paid not the bond company the producers paid for some of that amount of money during the course of the project now if the jury as as the surety company  if the jury found that the only obligations that were incurred were after the bond was issued not after the sumption occurred now i just don't understand how that makes any sense at all when a surety company takes over it steps into the shoes of whoever it's its principle this and so takes over all the obligations i'm not sure  i've never been involved with the contract before but as far as i can tell it's hard to distinguish from construction litigation and it did so that when the bombing company takes over and tries to complete a building after the contractor goes bust they typically try to avoid paying the contractors that's to the maximum extent they can get away with it and still get the building done they try to but if there's outside directly from from what is before the court they had they own the film they completed it they were trying to market it at the time of the trial it had not been successfully market lure you can get a penny you know not a penny we try i know we've tried others have tried their work there's an individual and two companies and the two companies no name i'm sort of going farfield if i remember the right what the record showed the first took the producer was basically an empty shell that's so that no individuals were really on the hook except to the extent that somebody and for a jury to say the damages are one point seven five million when they had the ability to come up with a precise number and the failure to mitigate is exactly one point seven five million when you can they could have come up with a precise number depending on how they wanted to make a decision i think you have to throw out the whole thing in terms of damages i doesn't mean i also believe that this comes if there's a reversal it comes back  i don't think there's actually going to have to be a trial could could you explain a little more what the basis was for that one million seven hundred seventy thousand dollars figure yes  million five hundred seventy eight thousand nine hundred ninety one dollars was paid to entertain and partners after the and one million and it was only one million eighteen thousand six hundred forty four dollars at the time the bond was issued and if you didn't docked what it how you get to the one point seven seven let's see if you do what you want if you did docked your ducting from the total bill you deduct from the five million nine hundred  i thought it was two million five hundred seventy eight thousand one hundred ninety one yes you did ducks you ducked both those numbers one point one million eighteen thousand and two five seven eight five nine nine eight two  touch his payroll and i think the other there are other lead actors who got paid in the range of two million or three million dollars typically the lead actors do not fall into the pay you now we're down to two point three million and some ok that's right how do we get down to one point seven you get down to that when you add in the bills that were issued after was for the work performed before the bond was there so when i came in partner says i mean how do you know somebody pays you part of their bill and you say oh that's for the case they haven't for you last year the it never paid me for and at it differently the way it looked to me when i looked at the british form is a truly thought this is all about thought we don't buy the fraud and then at the end of the verdict form there a couple of questions about the assumption yeah they assumed it and we're going to give them all but they paid after they took over and nothing from before they took over because before they took over the payroll company was working on the credit of the logically the jury could have said entertainment partners gets nothing because the contract got assumed after a human partners was done for our entertainment partners assumes the obligations or not and that's where i think the flaw in the argument is even if you accept the notion that the fingers don't really work on the calculators and and  close is good enough i don't think close is good now when you can come precisely without and we're not talking about a complex algorithm where you have to have software and all the star complex algorithm it's just seven digit numbers and you grounded yourself when you presented him to us i rounded but i didn't around so much that i just threw twenty or thirty thousand dollars away that's what you have to assume the jury did well that works against entertainment partners to that works against the payroll company and there's no logic to that there's just no sense to say well if if the only liability arises after the bond is issued then why do the obligations that is your argument with your argument be exactly the same if the jury had gotten the sets wrong if they'd gotten t the testimony and documents presented to the jury allowed for the wanted to figures and the jury awarded a figure that was not the one of the two figures but the only difference was the sale say after the decimal point the pennies would your argument be backed by the same my argument would be the same there wouldn't be an appeal because it wouldn't be cost effective to do something like so it would be  logic it's just that as a practical matter we wouldn't see the case exactly but for twenty thirty thousand i think when a jury has the ability to come up with an exact number and fails to do so i mean if you've got two numbers in front of the jury ever a vague recollection that i wrote a decision myself saying the contrary but i can't remember the name well i think i haven't seen a case for himself i don't know maybe i'm wrong because that's the only kind that exists in motion pictures it is as far as i know you know in construction the completion bond would secure the letters but there'd be another surety bond to secure the  some on their summary judgment motion and on and on the my concern is all the completion bond says in construction as you will actually get a building at the end of this not just a hole in the ground with some writing two by fours over that's all it says it doesn't say that the mechanics the material men will actually get their bills paid if the contractor goes bust and this pond said much the same thing the problem is my client's understanding which was reasonable on the facts of this case is that they would be protected by the bond there was evidence before the court on the twelve the six motion and on summary judgment motion that the custom in practice in had granted a twelve b six motion there was someone from the bonding company who spoke to my client just before who not spoke i apologize who were upset a letter to my client just damages issue but it sort of goes to the whole issue around the trial thank you counsel th afternoon your honor scary fillery on a four star x l let me just first clarify where the numbers come from we disagree with entertainment partners recollection of the numbers and this is in the record so the can check it for itself but here's what i have i have one million three hundred sixty one thousand three hundred fifty one dollars being paid after i'm sorry being invoiced by after they were actually incurred so in other words you do a job today you don't get paid till i think two weeks from now so if you look at the facts yes worked on after the bond was issued would have first been billed in january on january twenty ninth i believe two thousand and one that's the amount that we get the next number is two million six hundred eight thousand nine hundred ninety dollars that is the amount that was paid to entertainment partners after the bond was issued now when you subtract that number from the amount they invoiced you get one million seven hundred fifty two thousand three hundred sixty one dollars now that can be found i'm sorry in excerpts of record for thirty five or first number the four million number can be found in excerpts of record for thirty eight in the two point six million number can be found in excerpts of record five zero forty five zero nine so what we essentially have here is a jury making a decision  yes rounding off the numbers by about two thousand dollars but let me point out something further invoices that were submitted into evidence were done only weekly basis so that the jury had to accept wednesday but we don't know how much was billed monday tuesday and wednesday because the invoices don't break it down so the jury i think used its discretion in this regard in saying ok we'll go around the figure off that's the issue here the jury spoke the issue is was there in terms of the damages what was the terms of the contract let me quote from glazer versus glazer here the amount of damages depends in part on what is the reasonable term for the contract in such cases the fixing of damages is in a temporal part of the jury's function just recently and after we had upheld a jury's verdict based upon the fact that the jury had in fact determined the term of the contract which was contrary to what the adelaide of history of the jury here instructed to do that the jury was not instructed to do anything with respect to the contract you've seen what the jury had in terms of a verdict form they were asked did my client breach its surety obligation or of sorry the actual question was did my client agency supposed agents breach the surety obligation and assume the obligations of the producer the next question was if you find yes how much do you believe are damage if as entertainment partners would have you believe there's only one number you could plug in there that is the two point eight million dollar number whatever it was the damages were awarded why in the world would we need that second question where we may have dropped the ball as attorneys is by not asking them the question what do you believe this is the terms of the contract but that was never asked but it was there and clearly during entire course of the trial i argued that they were not responsible for damages before this point nor are they responsible for damages after this point the fact that the jury took that and put it in a contract context rather than in a flawed or negligent the mitigation argument in other words the plaintiff failed to mitigate its damages at this point and therefore any indication for just a moment but then i just think you just confuse things yes but mitigation so jury that's not with that's not the way the jury trial court instructed the jury in what the instruction that was given in terms of the contract yeah we don't we don't need to speculate on what the jury thought really their appeal is based on how rather than what the question is did the judge abuse or distract discretion in not requiring a new trial entertainer partners damages for breach of the obligation where million seven fifty entertainment partners fail to mitigate any a male that entertainment partnership could have avoided with reasonable efforts and knew that mr classer could not perform his obligations the in fact terminated him during the course of the production for whatever reason they decided to give them another chance it was after he gave them his he's guaranteeing collateral not what we expect in terms of mitigation so i don't understand what the mitigation is litigation is that they could have terminated their their contract they had that right any time to terminate their contract and stop paying they didn't do that and they didn't do that based on anything they were relying on or counting on from from my client they were doing that because for whatever reason because of the business well i think it's a business decision there were a number of things that maybe they wanted to wait when us if it is is going to bail them out well there was a yeah there was a fraud action a negligent misrepresentation action and there was there was a finding against them on that they argued that very very well no fraud i'm sorry there was no fog we know that's not true is no negligent misrepresentation you're arguing has to be consistent here the jury has to be right for you to win so there's no fraud that's what the jury said i got that right jury said there's no f that's what we have here is it a certain point they realize one that glasser didn't have the money to the production didn't have the money and yet they continue to lend money to mr glasser based on what i'm not sure based on blasters assurances he must be very smooth talker conversation that we think the bond is going to issue sometime in the near future and if it does then we'll have funding for the film but that really goes to the other issue to the issue of mike actually my r p o because start selling drugs to appeal but the issue here is whether there's any evidence to support the jury's verdict and i think if you look at exhibit two hundred five which is a complete listing of the invoices and if you look at exhibit twelve which is a complete list of the payments made during that period of time i don't think you need to look any further that supports the verdict there's more than one million dollars in invoices we certainly supports supports a verdict of one point seven five million and there's again more than four million dollars i'm sorry there's about two point six million dollars in payment something rational what you need is any any evidence to support the jury verdict and we have that here well that's to me some rationale for the verdict and there is there is i think we pointed that out certainly the trial court accepted that in terms of their their motion for a new trial if i could move on just quickly to our field because it does relate to the same issue we're appealing the judgment is a matter of the denial of a judgment as a matter of law of our motion under f r c p fifty nine and that goes to the basis of even allowing this to go to the jury the issue here is not only across the peeling yes we are the issue here is not only was there not substantial evidence to support a finding that my client breached some surety obligation but it's completely contrary to the law as this court has pointed out this is a surety agreement surety agreements are very strict we have tripartite relationships this is  consider a performance bond in a construction setting that is we're responsible my client is responsible for two one of two things either they complete and the liver the motion picture that is the livery or they pay we have never disputed the fact that entertainment partners got a raw deal we got a raw deal as well we dealt with the same person with the nearly fifteen million dollars for a film that wasn't done it wasn't complete they got a raw deal as well they did super quantum merrily they didn't su equity they sued for fraud and negligence they sued for breach of contract none of those apply and again let me go to the contract action because it's surely ship in this case and the case is a player welcome the courts look at these cases for us to have assumed the contract and be obligated to them it needs to be an executor a contract which is performed after the assumption we got no benefits after the assumption the assumption took place in july they were done in march or you could get a benefit they didn't walk away they couldn't walk away and left doing the work i still do not understand why they didn't unless the assumption was understood to be bonding that is the way it works fine for a state or federal government project where there can't be any real income of real estate and once that showed a bond is out there the mechanics the material and don't have to worry about getting paid judgment on the contract issue i mean even if you ignore standard surety like them or one of the weather was that i read in the excerpts here was a representation i think it was from the bombing companies that they're to have to pay off entertainment partners yeah that was one of the in fact the only thing the judge who i don't and finding our intent to assume that letter was written ten months after the takeover so it makes absolutely no sense  just an understanding of what the contract was what the bomb meant from the time it was issued but that letter comes from worldwide and was written to my client that's not a statement by my client in other words so much of the we haven't even gone agency issue whether worldwide was our agent so much of the agency issued pens on statements made either by worldwide or or other third parties that have that aren't the principal in this case so my client never made worldwide their agent for purposes of taking over this contract that it's clear from the various contracts that we've cited in the great so in terms of the surety obligation there is no we have assumed the obligations of the principal the producer of the film to the bank we trust well those obligations we paid off his loan we didn't and no case so that because of that because you've taken over the context of this you have automatically assumed all obligations to third parties and in fact the case to say otherwise that really helped much by the cases because these things can be negotiated and you can get different results in different situations assume it's just a calculation of the damages in terms of might in terms of the argument during the trial that was how it was an issue in terms of why would my client assume an obligation before i even contract sometimes but our contract was not to get necessarily the film done our contract was either to get it done or pay off so we had that option my client had that option and eventually they chose the january twenty eighth for our occurred and the bond company said certain things and if the jury had believed that certain things would have happened what they argued at the trial was this conversation never occurred but if you do believe that it occurred it wasn't reasonable for entertainment partners to believe what someone said because of all the other factors and so he suggested that they c on that day and he said if you agree with that at the number then the number is two point three million dollars so he did give them an option now this was in the context of the fraud climb nowhere did he suggest that there was