trial taylor did not i mean is that that doesn't impact in any way your your argument or no i don't believe it it does your honor because as we'll get into the facts judge gomez in his post trial of order in this case which was the effect that the sellers were entitled to retain the one point five million dollar deposit from the buyer jason taylor must be reversed and the reason for that is because it's inconsistent and it's inconsistent with both your jury's original verdict in favor of taylor and because it is also equally inconsistent with the district court's own post trial adjudications which acknowledged that there had been a failure of concurrent conditions under the real estate contract that issue here additionally it's also inconsistent with the court's initial post trial ruling which initially reduced the amount of the verdict  taylor saver this is significant from one point five four six million one million five hundred forty six thousand dollars to one point five million dollars even with judge gomez finding specifically that that amount of one point five million dollars was the amount necessary to provide appropriate restitution to taylor actually the district court's order remitting the verdict to one point five million from one point five four six million got the a political ball law that you govern this case exactly right because the district court found that that was quote the amount of restitution damages necessary and payable to restore buyers to their original position the virgin islands has adopted the restatement second of contracts and under the restatement second and it's reflected in the treatise writers like co when it contract has concurrent conditions and that means where performance is required of each side to the contract and required on a simultaneous basis and those concurrent conditions are not me that's what the court has in front of it here the law provides that a neither party can put the other party in breach b the contractual obligations or restitution is required for any benefit that has been conferred by one party to the other party here so does that mean neither party is entitle to a breach of contract remedy yet really dealing with a quasar contract remedy neither party implication at the tail end of his decision and it was a lengthy one that because both sides were in breach and because he had originally indicated taylor should get restitution in his mind apparently that meant taylor couldn't get the restitution in fact he had originally ordered and that got us to an exactly wrong result whether both parties were with both parties being in breach neither party could pursue a breach of contract remedy against the other but a breach of contract remedy on the part of taylor against the sellers was not necessary for the court to give back to taylor as restitution the one point five million dollar deposit and what we were left with under judge gomez's rule fifty adjudication was the anomalous situation where both sides were in breach but the sellers kept their own property and mr taylor's one point five million dollars what about the  hypothetical remedy the sellers might have been titled to if they had proved a grief of contract claim against mr taylor but the jury found that mr taylor was not in breach of the contract judge gomez overrode the jury we're not appealing that part of it because frankly we don't need to to get to the result we need to do justice here but that doesn't pertain to this case judge roth because in this case what yours gomez found was that each side was in breach he simply then in effect stocks taped onto his long opinion the wrong remedy he then said well because both sides were in breach even though i originally order that taylor should get restitution should that is the positive back i'll now conclude that because both sides were in breach taylor can't get it back that's exactly one hundred eighty degrees the wrong approach under both the restatement what corbin would say you mercifully had what professor kingsfield might say and what the cases we cite at the start of our brief say you know this happens quite a going on here a lot of parties lot of claims but is the case in your view that simple that's certainly good hearted and not an unfair way to look at it and under those circumstances the was very clear the legal principles are very clear the contract law principles are very clear in the position they were in before then that and absolutely one of the parties to that transaction can't wind up at the end of the day with an advantage just because someone paid a deposit has to be refund as what's ironic about this case is judge gomez had zero problem understanding that originally but we went off into a kind of a rabbit hole when he overruled the jury whether he should have or not on his role fifty motion again just to be clear we're not appealing back as the case is far too simple for us to have to do that when he went off on his role fifty adjudication decided in fact everyone had reached he reached one hundred eighty where the massachusetts supreme judicial court made a statement of this constitution and he said i support than the court said well it doesn't corpsman on contracts say differently and he said yes but i've changed my mind incurred with if you'll allow me to put it that way on these rule fifty and fifty nine motions and at the end of the tinkering we have a totally incorrect result we have a result that can stand it's a result that unjustly enriches you talking about the one point five million of us as a monolith let's put that down a little because there would seem in the record to be quite a factual distinction i think i know of and based on my own review of the record that any of the buyers authorized the disbursement of the five hundred thousand which helps your cause yes actually unfortunately there's a pretty clear statement from one of your clients to go ahead and cast the million well and that was you know part of the deal was here's some hand money and that's why people are willing to lock up their property because they get some protection through the hand money so why why don't the sellers keep the million and a half million i don't think i don't think that's quite accurate i don't i don't think the term go ahead cash the million dollars or any other amount is quite a quibble i mean that is the import of back earlier said communications isn't it it was approval of the least of the right was there was a statement the lawyer said go ahead so why isn't mr taylor's recourse to his partner and or lawyer a couple points on this a partnership theory a theory of agency was actually argued in the trial and rejected by the jury the real estate contract here was not with an entity the x y z partnership of which these three individual gentlemen were partners this was a real estate contract perhaps a little unusual with three is the vidual people who have either actual or apparent authority to act on well i don't i would spoke for the three i hear you and i think the quick but i also think the accurate answer to say is that was the sum and substance and part of the jury trial and the jury we had references early this morning to what deference should be awarded or recorded a jury trial in a case that's like this one little different than the unusual circumstances this panel is had in front of this morning but in a what i'll just use the phrase a more garden variety civil case like this one that jury and its determinations get an awful lot of deference and this jury at the end of the day determined that taylor was not in breach and also theories like one of these gentlemen spoke for the other one was the agent for the other were rejected of this has to be given to deference interestingly judge gomez i his rule fifteen fifty nine adjudications he confirmed this is a case in which both sides breached he originally ruled on his remit or that the amount of one point five four six million should be reduced to one point five because taylor should get restitution restitution is the form of the return of the deposit it had been released whether it was in escrow or released out of escrow and that's all we're talking about that's why i just harp and i react a little when your honor said test cast means this is your money go have a good time that's not what was happening here was simply released out of escrow in connection with the real estate transaction that someone's pocket judge ross i could buy a piece of property from you and i could say here is my check it is a deposit against white acre that you are about to sell to me you can be walking around with that check in your purse you can be walking around with the cash in your pocket but when our real estate transaction never takes hold and the concurrent conditions are not met with both the jury and judge  characterized correctly was the operative principle in this case then professor corbin would say the restatement would say the cases we have cited would say i get my money back not because i get contract please the court good morning my name is sherry tautened and i represent the sellers in this case given our limited time today i'd like to focus my remarks on the contract issues and in that regard i have three key points i'd like to make  that first buyers argue that a court must return the parties to their pre contract positions when there's a failure of concurrent conditions but there was no such failure in this case because sellers offered and were able to perform so restitution is not an available remedy to the buyer's sec it even if restitution were in appropriate remedy in this case mr taylor would not be entitled to the one point five million dollars that he paid because section three seventy four of the restatement would limit his recovery so the portion of money that he paid in excess to the damages that his breach cost to sellers and finally contrary to the buyer's repeated statements the correct standard of review for the district court's ruling under rule fifty nine is generally abuse of discretion giving plenary review of legal conclusions and clear error review of factual determinations it's important to keep in mind judge gomez's march first two thousand and eleven opinion vacating the jury award of dam of damages to mr taylor was not on the basis of girl fifty it was under the basis of rule fifty nine which certainly has a different standard including whether there was a manifest error of justice which there wasn't case but why do you claim or how did your clients not fail one of the concurrent or more of the concurrent conditions when it appears to me anyway that they were just not able to deliver a clear and marketable title title particularly as defined by the agreement i get back if i could follow up on that to you maybe i missed something could you even respond to the taylor argument about the exception for the right away materially breaching requirement here remarkable time we did respond to that argument your honor and i can happily address that now why isn't that why wouldn't that be enough to overturn district courts take e g there's really it's the same reason for all the objections and there are several if if if i may section two thirty eight of the wrist statement instructs us that in order for a party to satisfy its concurrent conditions under a contract it need only offer performance with a manifested present ability to do so but some of the things that were needed still even at the time of trial hadn't been delivered if i remember the dock ability to perform i really think the case hinges on that question and the sellers were able to perform all of their requirements under these contracts for several reasons number one the seller's obligations under the contracts were modified by virtue of the buyer's waiver of their right to raise any objections were garbus of whether it was the exceptions that judge smith asked me about or the dock permits that you've asked me about was that intentional relinquishment of a no right found in the record it was clearly found and mr prez's august third two thousand and four e mail which clearly and unequivocally represented that buyers council had approved the documents that we submitted in july two thousand and four the contract would have required the buyers to raise a timely on behalf of all the buyers you see you say that a response that the documents look good is is tantamount to saying i waive any objection to any failure to comply with the documents that statement combined with the failure to timely raise the objection and give sellers the opportunity to cure as the contract specified combined those two factors and there was a clear waiver of all of those obligations under the contract which means sellers never had to do it that's the first reason we were able to perform i have two other reasons we were able perform ok if i may the second reason is none of these pretextual defects that were untimely raised ever constituted a material breach of these contracts the district court itself found that neither the expiration of the dot permits were a material breach under the relevant factors and restatement to forty one he also found that the exception relating to the open shorelines act which i refer to as the o s a here that the usa was a material breach in addition the exceptions regarding the right of way the judge smith asked me about the one nine hundred fifty three right of way which i believe is redbook road here that exception couldn't be a material breach because it's undisputable in the record that it was several reasons why the dock permits weren't material some of them the district court and then see it and some of them it didn't the first reason would be that there was undisputed testimony that the dock permits could be renewed and in fact the   no they weren't but the question is could they have been because remember under the contract sellers were entitled to a ten day cure period of only taught any timely objection including the objection to raising the dock permits we'll never know whether they could have been here except for the undisputed testimony of mr moore and the undisputed statements in his correspondence from september two thousand and four saying hey sellers are really ready willing and able to perform we can do it just let us know if you're ready and in response to that request for assurance we got a repudiation which would be another topic i'd like to talk about before you go there though what about the right of way on the state nazareth's that sure there impairs the title breach because the undisputed evidence was we could take any of those exceptions off and remove and sure that problem but they never gave us our opportunity to do that ok so i'm sorry did i completely answer your question yes so so moving on want to go back to the dock permits issue though because i didn't complete my statement on that the final reason and i think perhaps the most important reason that the expiration of the dock permits didn't constitute a material breach of this contract is that it was it was a pretext there's undisputed testimony from a number of witnesses including mr moore mr carr who was the architect mr snout from the previous deal and mr oriel who was the director of the cesium that the buyers can't come out the way it did if that supported what you just argued well i i wouldn't pretend to say that i agreed with how the jury verdict came down on these issues but clearly it's consistent to argue that all of these exceptions were wa through through the buyer's clear and unequivocal waiver of their mr jerry could not a sound out though and still ruled for to you well i think that again one of the arguments no i think that you're certainly right but there was another element here which we're not we're not saying the pink elephant in the room is that there was inconsistency in the jury's verdict as to mr taylor and the other buyers and whether that was a matter of his celebrity or some other reason i can't  we can't write an opinion based on speculation of that sort either we have to do our best to harmonize the the minute let's say up to this appellate court right i agree  so how again what rejoinder do you have to my challenge that your arguments about your client being able to deliver clear marketable title cannot be squared with the jury for my rebut that would be the district court ruled under rule fifty nine his ruling was a correction of the clear manifest error and that error was allowing mr taylor to get his deposit back after he admitted lee breach the contract the seller's detriment that's an that's an injustice and the court correctly under rule fifteen i corrected that injustice but again i think the most important part as for the specific reasons why sellers were able to perform despite all of the b objections is that they weren't required to enter the contract any more after the buyers way further if i can quickly say they weren't required to do that performance because their performance was excused their refuted ation so if there's no other questions i have one final quick remark about fairness i'd like to make to the court buyer say it's just unfair to let us keep to let the sellers heat both the deposit money and the property but in fact the opposite is true nonrefundable deposits are common in the real estate remain and which i think you have suggested we're can we just reinstate well if you if i may i believe that restitution is not appropriate sir reversal is the appropriate order here however if the court is inclined to grant mr taylor any restitution it's only option would be to remand to do the balancing test that's required by section three seventy four of the restatement does that answer a question this is thank you i see that i'm out of time so if there's no the questions i think the court   which is a party below but settled during the course of the proceedings the district court committed error in the award of summary judgment for conversion and also in its post trial rolling up holding the fraud verdict against that the district court has chosen to adopt it we submit that it must do so it certainly should do so in a fashion that recognizes the doctrine appropriately as it has been explained to him do i remember correctly that the supreme court has adopted the sellers the buyers and the escrow agent and the only party in the entire proceeding that he singled out not to apply the doctrine to was a seller's attorney and the principle of the asteroid that and we said that that was an arbitrary legally and justified distinction the third circuit has ruled that the gist of the action doc and bars tort claims against individual defendants where the contract between the plaintiffs and the individual officers company created the us reversing the judgment against your client and instead ordering that that five hundred thousand be part of the award i don't even know how to answer that you and i wouldn't want to concede something that would be detrimental to another party but i certainly do not object to the court reversing the judgments against mr dim or as a stand alone part of any ultimate decision  sure you answered my question i'm not sure that i've understood it then the this is a big assumption i'm not suggesting i'm going to come out this way in the case but looking at the fact that your client is on the hook for five hundred thousand dollars it's not a coincidence that that's the same amount as the second reverse this and if you also conclude in this case that there is some amount of restitution due to the buyers which i obviously don't read it that that would be a standalone issue and if there is such restitution do that the court would hopefully make a determination that allows for the amount if any to be restored to be determined on the basis of the record corrected in part for what we believe this is a legal error as mr moore's part of the case the fraud part the fraud part should be treated in the same fashion as the conversion part judge because they're both torts and they both should have been barred by the gist of the action dr and under the correct application is representation maybe it was a misrepresentation within the ambit of the contractual dart and it's exactly in fact this specific allegations that the buyers are lyin against mr de mar when they contend that he sent documents that were in one manner or another  not in conformity with the contract that they weren't sufficient under the contracts at the applications for example to transfer the caesium permits that were sent to the buyers were not in the buyer's estimation satisfactory in retrospect though they were at that time that those are part of those are the meat of their claim of fraud against mr de moore and so if they are relying on that as part of their claim of fraud against mr de moore by definition in our view  for practical purposes for the practice of law for real estate lawyers the notion that lawyer can be sued in tort either for conversion or fraud on the basis of saying things to another party about his client's ability to perform a real estate transaction to convert that to a tort against the lawyer is just fundamental into insistent with the way people practice law if the client can't be sued for those statements under the jest of the action doctor and then certainly the lawyer shouldn't be subject to yes your honor i will i will be brief i think the key statement from my opponent which really helps start on the process of untangling this ball of yarn was the comment when she said i wouldn't pretend to say i agreed with the way the jury ru path of post trial rulings that sadly in my view didn't add a lot of clarity or accuracy to this because at the end of the day what he found was that instead of the jury concluding that taylor had not breached he would conclude that taylor in fact had breached and then he reached around the cation inconsistent with black letter law of what happens when both sides both sellers and buyers have breached that's a failure of concurrent conditions we know that the law calls out in the most clear terms possible what happens under those circumstances everyone has to be put back in their pre contractual position the only way to do that is to get back to how he had correctly the case at one point in time which was that taylor who had paid this money needed to get it back and that's how could how could nine thousand dollars so if you value impreza reliable then that means that the sellers could not have been deemed by the jury to have who had deposited all of the one point five million dollars and his judge gomez initially correctly understood that meant taylor needed to get restitution in the form of them or turn of a one point five million dollars in fact when the jury verdict was four taylor in the amount of one point five four six million judge gomez correctly said oh no that amount should be one point five that's the  so i thought you were going to tell me it can be harmonised because addie impreza are found guilty of fraud well that's true too which is in on the breach of contract claim the seller's redeem liable and no doubt and no damages awarded on the breach of contract so all we're talking about here again is a contract performances do from each side the presumption in the law is when performances do from each side it's due simultaneously he point performance in this case was not forthcoming from the sellers for all the reasons this panel's enunciated all the failures with the title we use the evidence you gave them the ten days to cure  they never they had more than ten days to cure and never did as i think judge smith indicated the cure had been put into effect when the matter was already in a lawsuit and being tried to a jury and it was clearly material just as a common sense matter it had to do with the access to the island but as a jurisprudential matter the issue of materiality the issue of  waiver all were issues that went to the jury the jury will so i think the path is very clear we get back to the understanding of this case is a case in which concurrent conditions existed they warrant that we look to what the restatement and a treatise writers say we do we've got some very strong precedents indicating that the only proper path here is to reverse this case important part for the refund of those dollars to tailor to have restitution do you care whether comes out of the moore's hide or not i think judge gomez has already spoken to that in the sense that he's indicated that at a minimum there cannot be a double recovery there can't be the know your five hundred i want to support is from the more or one point i was only hit for five no we need one point five million dollars plus interest back thank you