the title is doing is saying the language in the policy doesn't mean what it says it means something entirely different if you read the language of this policy it's well within the arguments that i made i think that property well whatever state had it is the proper measure damages that's the entire argument with regard to whether or not she properly are experts as well so unless there are any other questions well i would have demanded a price reduction equal to the cost of moving the gasman which was necessary to allow the intended development of the property accordingly that the evaluation of five hundred seventy four thousand dollars is the loss or f the of the cost of the moving of the gas main being the amount of diminution or that you didn't have to of supply any expert testimony or evidence that that is in fact the on the diminution in value of the property because what i'm going to ask you about who's to say that another developer would have  it necessary to move the gas my name is there only one way this property could be developed and is developments the the use of the five hundred seventy four thousand which is the out of pocket plus a twenty percent contingency fee for moving the oversight of moving to gasoline so there is evidence of that and that cited it was five times in my brief that's the figure and that's now weber states purchased this property with that intent they purchased the title insurance to protect them to allow them to have that on income for use as that policy said it was on a  which it did not include but that easement which then included back gasping so by the time that easement and gasoline was located they were well into the development of you know  do diligence they did all the planning they did had they've been able to reconfigure or known that they need to reconfigure the design that might have been a possibility but again then they they've got no insight from the get go they they inform chicago title the gasoline needs to be and there was no response at all from chicago title about hey that won't work here let's look at  and see what's going on so yes i think there is evidence of it i think that when you look at the reason it was purchased the reason they purchased title insurance and the reason they transferred the title all of that stuff please i'm sort of just sorenson i am the attorney for the from the chicago title insurance company in this matter this is a case involving the proper measure of damages  issues raised by mr online in his briefs concerning construing the title insurance policy in a way that maximizes coverage but there's no dispute here that the policy applies that there was a cover loss the issue is what is the appropriate measure of damages in this case the trial court correctly determined under the evidence that was presented to that forty two hundred dollars was the amount  but the good thing about this case being over is i will not have to pronounce the new sion any longer because it's one of those words that i cannot pronounce correctly so but the trucker probably decided that i the reasons are set forth in our brief at length but i'd like to highlight a few things first of all the strawman asserts that there is evidence in the record for this court to determine that the damages are in fact five hundred seventy four thousand dollars and testimony of mr finch is in the record in the issue's been preserved on that on hill the first point we've made in our brief is that weber states did not properly preserve an appeal the issue of the exclusion of their experts testimony from fetch that testimony was excluded in lemonade and it has not been raised in the opening brief by weber states the name brian trench is not located anywhere in their brief i went back course we made that point in our opposed brief but in preparation for oral argument i took his electronic copy i did a word search and finches not in the body of the  brief there is simply a reference to the fact that there was an appraiser unnamed who gave an opinion of five hundred seventy four thousand dollars in damages to weber states in this matter that's in footnote four i believe on page nine of the opening brief but they never argue that that testimony was improperly excluded so that evidence issue has not been preserved for appeal and without preserving that issue for kill as as judge foley noted in her judgment whether states fail to disclose any expert opinion or testimony on the issue of damages other than that proffered by french so we chatted title had our own stein who had a pint that the difference in value of the estate as insured and subject to this undisclosed easement was forty three hundred dollars that's what the trial court awarded the trial court really had no choice other than to do that because there was no other evidence of damages the assumption that they may that is justice harris pointed out that's in the reply brief that some third party purchaser would have necessarily required a reduction in price to move the gas main makes a lot of assumptions and of course that issue was not preserve because it wasn't raised in their opening brief but the trails plains and the trails has an appeal so the issue is what is the difference in the value of the estate as insured for weber states and what is the value of so we would ask for those reasons that the court affirmed the trial court judgment forty two hundred dollars firm the trial court's the nile of the motion for leave to a man which was filed on the eve of trial and introduce new issues and just to this is fully addressed in our brief but and mr romney didn't argue this point on an oral argument his opening remarks by i do want to point out that after he saw that summary determination for his client on the proper measure of damages and the court ruled in essential in favor of chicago title that is when he filed the motion for leave to amend it was in two thousand and thirteen this was a case that was filed in two thousand and nine there were ample opportunities to raise the issue previously there was no misrepresentation by the title of its position in the case it had always been the position chicago title excuse me that the amount of damages that would be recoverable by the plaintiff in this case would be subject to paragraph seven of the terms and conditions so the trial court properly exercised its discretion and certainly did not abuse company but they paid me full value for my loss now if i will my house to someone after my death they're going to get a house that's worth less because it's got it torn screen door and it has a piece would have paid to move the easement and ben advice to do so before it transferred title they couldn't use up to two point eight million dollars of the policy to get that done same accomplishment what you hit here's what it cost to replace the gutter this is what we'll do for you i think that's part of what they're supposed to do in adjusting a plan if if if my homeowner's insurance company would have not come out after tree fell and knocked it off what am i supposed to do other than to fix it myself and hope i get it later and that's what happened here finally the astop whole issue is there's no way that this was raised until weber states filed its motion and they filed a counter argument tried to cover on a counter argument to which i immediately said they should be a stopped for making that are after years  of of this claim laying around they never said that was an issue so before i tried to amend with the pleading i raised an argument saying they should not be allowed to make that or so the lateness of the argument