reversal of the trial court's decision as is typically the case with an appellate and while i have argued multiple things in my brief i don't ever get to everything in my brief so i want to address most importantly two things first that simply put the judge misapplied well i'm not exactly sure what law the judge did apply but to the extent the judge applied while he didn't he misapplied it in finding that tkinter had violated or committed the first material breach of the sub contract second what i wish to talk about is the fact that the first material breach of the sub contract actually occurred through the contact through the conduct of the apple e let me ask you a question about it if i may the this actually originated as an action by understand what i want to first with first and time does for you what i mean i do your honor and i would tend to the court that the first material breach would be the fact that j if you could have a point you didn't terminate the contract right but we didn't turn the cutter that point in fact around and i don't waiver no your honor and in fact the reason i don't believe that's a waiver is because at the point which in february of two thousand eleven and then in july august of two thousand and eleven when the contract subcontract with being materially breached by j manning randy cantor didn't actually have knowledge of that type of those breaches they didn't really have knowledge of those bridges until after this after this plane had more fully developed in the late fall of two thousand and eleven when they started getting notice from i guess second tier to them subcontractors and suppliers that they were not being paid and then result and then there's nothing in the district court's opinion or maybe i missed it in any of the briefs about what the missouri law is all material breach and why why this is one there's no the no guidance performed here the court has actually would have if arguing anticipatory deviation added an additional requirement that not only can you not manifest an intention not perform that you have to continually manifest an intention to situations yes it does so it isn't just it's not a it's not a common option a you have in your pocket you keep going and if things don't work out too well you can say ok if you're already breaks a contract so so overall i that you would be allowed to remove yourself from performance of the contract but that performing still would obligates you to performing perform the contract as designed and would be a waiver at least at some point of continued future performance case on that either would have been the case to support it or rejected essentially the judge seem to feel that it was unfair but i'd argue that that doesn't make it a breach of contract and also that the alternative would be that if at the time i kinda believed that the that the contract was being delayed although i concede that by the point we were a trial the delay was different thinking there understood a time once which had been subject to expert analysis but if they believed that the time failing to give those warnings terminations j manning was a breach of the contract i believe that they had failed to perform the terms of the contract itself and i understand that the argument is that essentially this time by the court that the poor of engineers was being unfair in their interpretation of the specification as contract regardless of whether the specification was impeding that and then had a right to see a claim for equitable adjustment followed that that's the terms of dealing with the government that's the terms that were passed down to the sub contractor the fact that j manning was unable to perform for whatever reason be it their own lack of capacity or the government is treating them unfairly they still have the obligation to perform and seek relief with a claim or a pastor claim following completion of the work that was made clear to them you know i've written other cations if you have a pastor claim wolf we'll send it on but you've got to complete the work they were not being any more impaired by the specification by the corps of engineers than timber was hindered had to either get the job done somehow or be terminated by the corps of engineers so they rightfully terminated a contractor that could not satisfy the owner and comply with the terms of the controversy but but i think it's the start of the court found as a matter of fact of the is the rest of what you're saying it would be entirely futile i wouldn't know your honor because the contract was performed whether or not another contractor was given an easier time of it by the corps than manning was manning did always have the opportunity to sub out their work just someone else including the person who ended up replacing them to do the work but that was their obligation not to sit not to essentially throw up their hands and say we can't do it who looked to me like they were faced with the obvious roadblock their work was not going to be accepted no matter what might happen later with respect to some other and your honor to the extent that the court found that to the extent that may be true it is still their obligation perform the contract because that  said they did well the fact of the poor we engineers wouldn't accept it is something that should be the matter of a pass through claim after completion of the work if the cool unfortunately with the federal acquisition regulation i mean it i don't like the trial court's factual determinations and they're asking this body to substitute its judgment for that of the trial court i don't ever like standing in front of appellate court and saying that that's not permitted  but that's not consistent with the standard of review must have deference to the trial for findings of fact and this really was solely a factual determination now that kandor seeks to reverse on appeal we had a five day honor there was fairly extensive argument during the trial of our mr bush or so i'm it's the the trial court and really the crux of the case comes down to the terminations i mean all of these other things while  could argue they were important and certainly the subject of a lot of testimony and evidence during this five day bench trial really it culminates with cantor's decision to terminate manning but here's another thing it was all this business about what  in my notes in fact the very first page the only thing that possibly could be characterized as a legal issue is the meaning of that subcontract provision which is not an unusual provision into in the construction industry i mean it's  commonplace to see provisions like that where you have to perform more to the satisfaction of the architect of record the engineer of record the other contracting party but the third parties judgment when you have this type of court said is that the decisions made by candor in the corps of engineers in connection with rejecting the wall were unreasonable arbitrary and capricious that's what the trial court found and that falls squarely within the exception if you would under missouri law to a third party's judgment being binding and so when you have these contractor visions of say work has to be performed to the satisfaction of a third party in this case it was one of the contracting parties candor as well as the corps of engineers well missouri law says is that third parties judgment cannot be based on fraud gross mistake or a mis construction of the contract and missouri law and we cited these cases there are pages twenty seven twenty eight of every missouri law goes on to say that the decision has to be exercised in good faith as a reasonable man and not be there were none that i found your honor there's none that are cited by kinda construction and again i looked at him again last night had a shepherd i was by my office last night there are found pages twenty seven and twenty eight that is consistent  bridges here but yes i which bridge are you seeking to recover for and what does it matter if these other breaches were committed why why are they even in the case i'm having this is not a i'm having a real difficulty with this in the foster case the other breaches are significant only in the sense that they provided a good background a history of the   there was because of a discovery issue there was a demonstrative exhibit allowed by the court which was his final pay application but it did not count in as part of the evidence but the court allowed him to refer to refresh his recollection on the exact number but you got to understand your honor there's no question there was no issue a trial that the man never got paid for any of the work he did the entire year of two thousand and twelve that the trial court properly determined w right number forty yet you're saying this thing to which he referred the parent lee explain where the number comes from is not in the record yes your honor there are two things that are i think you may be referring to your honor that mr wells pounced on mr manning about at trial the first is that he gave a figure with respect to the value of materials that were left on site when he was fired and that figure was roughly eighty thousand dollars and mr manning testified that he was confident in that number because it was based on the lavery tickets and invoices that he personally had reviewed and he was then asked the question did you bring them with you to court today and his answer was no i did not bring those with me to court today what about one hundred thirty five of these he said that's the value of the labor and services that actually went into the constructed wall understand there were two wings to this wall both of them approximately forty feet and high it's a nine hundred fifty thousand dollar said contract he constructed one of those wings to hype the twenty seven and a half feet before he was terminated and so even just kind of roughly looking at the numbers that would be about twenty five percent of his total subcontract work for which he had priced it out at nine hundred fifty thousand dollars now that's that's not how you arrived at it he had a very precise number again completion that's what his company was out of pocket that's what it put into the project you're not i don't recall that the issue of whether that figure included profit came out during his trial testimony i will tell you based on my recollection of his testimony i would suspect that he did include overhead and profit of some amount in that two hundred fifteen thousand dollars figure i know the eighty thousand dollars figure his testimony was that's what he actually pay for materials on the eighty thousand dollars and keep in mind your honour's there's a difference there there's eighty thousand dollars which was material that was left on stock stockpiled aggregate panels things of this nature  and that is part of the two fifteen but the balance of the two fifteen represents the work in place and the value of the work in place it's just unusual on which mean by because of the discovery issue you could put the exhibit in is just unusual that the person asserting damages can't put on the documents that show where the damages come from i mean there were some discovery violation by your client that prevented you from putting on the evidence or something no and one of my partners actually presented mr manning for his direct testimony i happened to be out of the courtroom otherwise quite honestly i don't think the court would have ruled the way it did i was a little upset that the court did not allow that document into evidence because i believe it should've i'm not complaining the court judge moody did allow him to refer to it you know and to refresh his rights language memo discovery issues i  don't remember what the argument was it's actually on the record and it will take place between mr willis and my partner mr gatewood will read it on the question of the breaches the you agree you know judge moody said kinda breached in these ways but didn't really cite any law for that you think those were anticipatory breaches that evidence absolutely ok actually what do you think about the legal question i was raised with your friend here about whether continuing to perform in the face pejorative breach is a waiver of some guy i think it can constitute a waiver your honor can absolutely to be to be perfectly candid with you your honor i think and that's why i say these are significant they provide background that's important but this tiny an issue is kind of lost on me because the fact of the matter is both parties pressed forward in till such time candor fired manning and that and that's that's my view of the world we spend an awful lot of time talking about these other breaches and i think the court rightly of the other reach is meeting the so called ant think the real breach is the terminations absolutely i mean that's what ended the relationship what was the terminations and when i say other breaches your honor kind of on their side they talk about shop drawings and pay bills which there really wasn't a whole lot of discussion about that at trial we talk about the anticipatory repeat the asian the fact that we weren't allowed to start work as promised other interruptions in the construction schedule all of those things that took place in two thousand and eleven and two thousand and twelve to me what is important is the fact that the parties did press forward in till such time as we had this zero tolerance policy that tolerance policy and the fact that that was not actually a requirement under this contract and more importantly perhaps that it was not constructable and i would refer t the trial transcript page six fifty two within the first two seconds that i cross examined cantors expert witness and we had a bunch of experts your honor and we brought people in from all over the country they did we did to talk about contract requirements and industry standards and reasonableness and arbitrary conduct and things like this within the first ten seconds of my cross their expert at page six fifty two says as it was being enforced that specification was not constructed and so the court's determination in my opinion was proper and should be a firm all right thank you for your argument  yes this contract was interpreted pursuant to missouri law yes that is the standard to be applied in the less i know the provision is incorporated into the contract in this case this far provision is and is a part of the pro the argument being that it was early law substantial compliance is sufficient here it specifically says if the government is wrong if the government is flat wrong it tells you to build a castle on top of the water and you've got to build it and fall you claim after whether or not you did it whether or not it could have even been done that that is an obligation that they had and it's unfortunate but it is the same obligation that tkinter had and it is the same predicament that kimber was placed in  subcontractor who for whatever reason could not get the job done they had killed or had to get the job done the terminations not was not wrongful and i was there look at me ask you this and i may be wrong in th you can help me seem to recall that there was some testimony or evidence that the panels that were being surely provided by the replacement contractor and accepted by candor in the corps of engineers were really substantially identical as far as tolerances to the panels that were constructed by manning that was certainly a position that was advanced by j manning and i think the perth trial fairly was that position be that while the shrimp walls the replacements those walls were significantly better they were certainly not perfect and i think that was that was there some was or evidence that the court heard to that to that to the effect of what i just said  that was presented by a manning but i think your review they have said that they have some expert testimony to that effect also i don't believe that expert testimony to that effect ill or perhaps they did with dr collins although our expert ryan verb pointed out through his expert report that was not that was not the case and with ten seconds left i will say as to the damages issue i was very confused that mr manning could not testify to his damages and after an hour i do not say that any misconduct occurred i do not believe counsel conducted any misconduct or knew of any but it is odd that documentation boyce's just support damages could not have been produced by one of the parties after well over ten thousand pages of written discovery requires more than a witness who said who basically can be led through his damages by counsel and can't produce documentation to support them it requires not absolute certainty but does require a substantial part of all right well thank you