actually agreed on for the sale of edwards assets and what that might what that figure might have been and the parties cooperated on  thousand the egremont is internally inconsistent because if if the parties if there's a breach of the agreement that means that the parties are battling over the stock in that and just as what happened in  this case the bidding went from three point four million to three point six million to five million plus for mine our bond the five point one million to five point two million on the other hand if there was a respect for the contract and the contract was agreed to i would assume that correct and and reliance standage is mr edwards could say well my reliance was i didn't go find anyone else to buy the assets but this was a public but he's in private this was  and you know if you look at what went judge tucker did in a way it sounds like restitution day does she she had mr white discords what a portion of what he received yes so it's really but he had a discourse so so because i thought also well you know what if the court asked me what about restitution damages and then i thought restitution means you have to give back something that somebody gave to you and and mr edwards didn't give anything he voluntarily the bankruptcy and he understands he had counsel that when you file bankruptcy your that's become a property of the bankruptcy estate now he was a chapter seven doubter it was a surplus a state so we had some say in what went on mr bragg was his counsel and there were you know he was permitted to do more than the usual difficult chapter seven better but he didn't give anything when he filed his back of say years before his assets became property of someone else that's the the bankruptcy estate not john edwards he gave them up in order for in return for the protection of the backs well isn't that an argument not to make to us but if we should decide that restitution damages should be the measure of damages then i don't think we should take the next step and decide what those damages are i think we ought to set it back you know y should never do anything you can make a district court so shouldn't that argument then be made to the district but i think that i think that that reversing and remanding participation exactly announced of the bankruptcy court that morning ok so that's our that's our time now snout now just a footnote that judge talker took bits and pieces of who benefits white received in two thousand and three two thousand and two two thousand and one and gave them to mr edwards so already there's there's a problem with being out of line with third circuit law ok so what we just go back to we measure damages at the time of the breach in order for plans to be entitled to damages the damages must be such as would naturally result from the breach of the contract with these damages would naturally result from the breach of this contract i promise not to settle with phil so that you and vice versa how could why it possibly know that years later he'd be in litigation with mr phelps and years later some judge would fashion some contemplation of the parties at the time of the contract so here in on april thirtieth one thousand nine hundred eight when these gentleman made this handshake agreement where these damages reasonably forseeable and within the the fact of that was the fact of damages this is the only case like this i can find in a texas pretty close but i can find a case like this and i've searched for many many many years you know i won't settle with a  because mr wyatt breached and and fought against the other better the bidding as a matter of fact and it's in reported decisions and it's you know it's a matter of fact it's undisputed the bidding went from three point four to three point six to five the five point one to five point two million dollars that's a lot of mr edwards didn't get nothing he got five point two million dollars and by the nature of the bankruptcy and the course so that that edwards has no claim to say because of the breach of contract i lost my stock in the company because he had already put his company into the bankruptcy estate and he knew that that was going to be so yes and he expected because it was a surplus that he would get some money back yes but he never expected that he would retain any control of the company correct he he made a decision that there are involuntary bankruptcies this wasn't one of them this was a voluntary bankruptcy and he made a decision that in return for the protections of the code he got it i think save his house use of father with children and then he had a house each got to save his house and and whatever else happened in the bankruptcy and he gave up his assets they went to the state to be so chapter seven the very definition of a hundred eighty we don't know there's no testimony in the record i don't know the last day mr ebbers up was on on the property of the company on the premises of the comp who is nine hundred ninety four mr y edwards demonstrated that the company was worth more than five point two well if the expectation damages would edwards have to prove that the assets of the bankruptcy estate were worth more than the five point i don't think that's relevant i don't think he respects that i don't think that's relevant because the assets are not his expect from the breach of the handshake agreement would be the difference between what was actually paid into the bankruptcy is where the assets and what would have been paid  if edwards had been part of the negotiated right that's correct but i only and but didn't judge sigmond in approving the deal prevent you from coming back later and saying it was a bad deal didn't just sit when approving the october thirtieth feel yeah you're certainly ok so then how can you come doesn't that prevent you from coming back now and saying that was yet so how can you say there would have been a better deal if the bankruptcy court has approved the deal that was because the bankruptcy court is not going to approve a deal that does not get adequate value for the assets being so that the fact that that statement found adequate value in the context of the bankruptcy court does not answer the question whether mr edwards had enough stood faithfully by mr wyatt and forborne approaching mr phillips couldn't have negotiated a better deal in fact the record is clear the only evidence in the record is that he could here's the evidence in the record of this point in the joint appendix page four hundred one edwards testimony question do you think you could have concluded your own deal with mr phillips if you knew mr wyatt was trying to do so answer i am quite confident i could have quite candidly mr phillips didn't like either mr wyatt or myself and it was just a question of dollars and cents for mr philips and i'm sure that i could have made a deal that would have been conducive to mr philips question conducive because it would have been cheaper for him answer all phillips cared about he didn't care about wyatt or edwards he just cared about gaining control of the company for the least price possible and if edwards had approached the libs for a dollar less than wyatt he would have gotten the same deal twelve point nine million dollars minus one dollar but you complain to the bankruptcy court that this deal is collusive and that it should have it's not a good deal should have been more in the bankruptcy court approved before the for instance twelve point nine million dollar evaluation of the it was before the sale of the company by mr wyatt for  nine dollars correct correct yeah so those figures are irrelevant to what the damages should be for the breach of contract i don't think they are relevant now you are ok so expectation just would be the difference between the deal that philips and wyatt agreed on and what the deal would have been if edwards had participated right i think look at the whole bundle of rights including the bankruptcy piece which judge sigman approved and whatever other rights there might have been that sort of flow to edwards and where in the record do we find your position as to what that figure would  be it's throughout the record in terms of damages if you're talking about the pro rata formula be the measure of what portion of those benefits should have been shared i can give your honour's and i'm talking about what the deal would have been if they're if the contract is not tt's objection he could have done the same thing with edwards to remove edwards objection remember because this was a surprise bankruptcy a state edwards had stand at which had in fact the only remainder given what the words of the deal have been if the current if the handshake agreement had agreement had not been breached mr wyatt would have received mr y and mr edwards and their pool of benefits to be shared as a result of a settlement with phillips would have received according to the evidence we put on in the district court approximately thirty two million dollars worth of benefits those including interest in pilot the legal fees ok well wired already had forty five percent interest in filing well he has that's not part of the damages i believe it is part of the damages ron it was under a cloud of title it was in litigation he didn't have the shares physically they had never been registered on the secretary's books of the corporation assim owning it was a civil rico litigation in camden new jersey challenging his exercise of the options as fraudulent ok where where in you know i mean i'm i'm reading the briefs and i don't see where you say my understanding was he had forty five percent of the company where does it say he had no interest in  exhibit one twenty one the ultimate settlement agreement between phillips and why it refers to the settlement of the camden litigation if you look at joint appendix six twenty four wesley wyatt testified quote i was in court trying to fight for my option to recover my forty five and the judge tucker then determine that he did not own them so that his forty five percent should not be should not be recognized in determining what he received she did not make that determination what by the time ju ruled on the case mr wyatt had recovered the shares by virtue of the settlement agreement that we're fighting about here with mr phillips plaintiff's exhibit one twenty one and so what judge tucker had before her was a situation where when the handshake agreement was entered into why it had a big her it's not a specific binding a fact about that she does talk about the fact that she values as a benefit that while c v was fifty percent interest and pilot and as i said the evidence before her establish the fact that there was this litigation  new jersey why it's title was under a cloud in her finding a fact she doesn't saying about that litigation she does not know well then how can you know it if it i  find your position difficult to find in the opinion that we're reviewing in terms of how she valued the forty five shares for damages purposes yeah it's not clear you agree that a pro rata formula is the way that wired and edwards should have shared the benefits under the agreement well the expectation damages would be what edwards would have gotten if he had participated in the negotiation in the settlement thread and what would you know i asked you for that figure earlier what would that have been why that's exactly it seems to me that the trial judge said the most concrete thing i have to go on here is what actually happened that's exactly right and that's exactly why we did it the way we did it we didn't try the three way analysis too complicated speculation we said at the very least wes wyatt as a result of his breach got a bundle of thirty two million dollars worth of debt and at the very least if west wyatt had under the handshake agreement could have shared some of those agreement but it's the whole foundation for these men's relationship they're not friends they're only relationship in the world is they both want to get control of their pilot stock john edwards thirty three and a third less wyatt forty five under a cloud they want to move forward they want to profit is out the reason contract damages expectation reliance and restitution no water preference indicated among them if i could i see my time is up i just like united states it's our right so let's assuming we mr wyatt claimed he already had in pile she did not address that directly as we previously are although it is your honor said when question mr zucker when you look at what she did it does look like she's trying to take away the benefits that the preacher got from the beach and share some of that and the basis for the pro rata formulas all over the record but just one site quickly so an appendix for twenty one west why it's testimony in early one nine hundred eighty eight i approached edwards about aligning quote to try to protect my forty five it's actually paragraph seven of the we submitted a stipulation of undisputed facts before the trial and paragraph seven states on page two of her decision in the fall of ninety ninety seven why only forty five percent of the cases city have to measure damages that damages at the time of the breach and that reasonable certainty embraces a rough calculation that is not too speculative vaguer contingent on some unknown factor business people need to know what could happen if i breach this contract but you know this is like you're on to mention one l law school mike might my contract teacher told me that's important because you might have a requirement contract where you have to buy all your oil the season from a certain suppl did i can i can prove it by it's like a show is where it isn't because it it was never went when wine phillips walked in on the morning of october thirtieth and said we're we're bidding we're we've reached a deal five point two million and these gentlemen jumped up and said they never brought it up they kept it in a back pocket for whatever reason i don't know that's not for me to figure out a speculator guess what i think you know i don't know why they did that the bankruptcy judge because of the objection to the deal did he look at the fairness of the price dollars i mean three sixty three sales supposed to be you know it as a business person as a business lawyer you know the three sixty three i said is the cleanest as he can get it's blessed by the back of the court and all of a sudden we have this lawsuit it's just it's not fair you know thank interesting case that's yes it is an interesting case thank you mr zucker you're welcome thank you counsel i can't say that i've ever seen a case even close to it alone quite like it has been referenced here