summary judgment decision and two to judgment spoken which were amended twice and while that procedure is interesting what i'm going to focus primarily today of the issues in the case is the court's order you i'm going to focus on that first issue the order of a new trial or this is a trial that took three days five witness since the trial three issues that were posed to the jury were one of repudiation and second it damages the back to actually the story is at summary judgment the court found in favor of my client at summary judgment to the tune of two hundred eighty six thousand dollars saying i was entitled to that amount the issuer trial was left to an offset damage claimed by schneider the issues posed by the court were one of repudiation and two of damag this case the jury came back and said yes there was a repudiation but the damages were zero there were no damages the trial court in its post judgment decision a somewhat unique decision said damages could only be determined one way and in that way they cannot be zero and that the client's on page four of the decision is in the appendix ph nine the june sixth two thousand six decision says in this case that meant the cost of calculating damages and explained how that was supposed to be determined that is not the law when it comes to calculating damages what is the law when it comes to calculated damages this is the wisconsin case here on to personally jurisdiction where they instructed how to calculate a damning guess they work but they weren't told it has to be a certain way unlike the court's decision which says you have to calculate it it is it in this case that meant calculating that's the words of the district court here's what the jury what's instructed the jury was told snyder may recover not shall recover damages what the attorneys ask for in their arguments is not the measure if you find in favor of the whatever you ma it here's what they were told this comes from wisconsin civil jury instructions thirty seven ten page thirty three of my proof record seventy three which is the journey instructions page eleven the instruction is in determining the damages if any you allow an amount that will recently compensate the injured person in determining the damages if any they're instructed you may find no damages there may not be damages in this case and that's what they were instructed in by the way that's also what they were instructed in trial number two for trial number two we didn't get to put on our damage case against them that's a whole different issue so and the basis that that the first decision was set aside was what the judge said that the jury's finding of zero damages was against the wa instructions this once again record seventy three page nine of the jury instructions they were told they were told at the first trial my client was owed two hundred eighty nine thousand dollars for work performed that was  extremely unprofessional and nonsense my second suggestion why don't you and the and schneider arbitrate this dispute this is something this is not something for  rry the jury be totally confused about this well arbitration find someone who knows you know knows the industry and we'll figure out what if any damages you know schneider is in time and there were those discusses judge pine there were those we if we had many discussions on this case in terms of settlement it just many that's the jury always has that would really go right in the issue here and that's what you're relying on that's absolutely that's what i'm relying on because i mean the facts of this case my client wasn't paid and i mean that is the fact by which all of the facts i believe are judged in this case is they were happy they were paid every week there were all of these other issues going up jobs really taken away jobs were given to them tak away they were they had discussions about bonuses they had discussions that you know why are you taking jobs away that they had these what did they negotiate at the time it is this contract you had back and forth all of this back and forth but my clack was paid until tuesday august twenty seventh was paid every tuesday until then it's sense what does it do when it is not paid its sense that you first call schneider leave a message and then send some letter saying hey you or me today eighty six thousand dollars they don't get p six thousand was there any communication between the two parts of only you i mean after the that you said after they didn't get paid what after that there were there were  letters there was a phone call made there was a letter there were other discussions between people in snyder and my client including somebody a schneider who sa going to take for you guys to stay in there talking about bonuses because at that time in the contract your sign three jobs two of those jobs were taken away we're only working one at the time what's it going to take for you guys to critchfield credibility was not recently casting doubt well in my briefs not only here but in my post trial priest and at trial we argued about critchfield crest credibility here's the guy who negotiates the contract assigns jobs to my client takes away jobs from mclean when my client knows my client isn't paid and is discussing what's it going to take for you guys to stay in our letter of march twenty or  owed and by that time more work was owed and by that time schneider that moved up they hired a whaler plays that we had working on the facility there doesn't either is a bigger company than prime is now it is much bigger it happy with the first very ticked so did did you defend that before the judge or you say this first verdict is fine i did i did could use it it appealed i actually attempted to appeal under the law when the court orders a new trial it vacated the judgment there was no final judgment from which i can appeal i attempted to judge because i did not want to have a second try to go on this very issue i followed by a appeal it was actually doing a amended docketing statement on this issue came across the law that said you're out of luck you got to go back and do it again and schneider caught the same thing they filed a suggestion we talked about i dismissed the appeal to send me there no current no controls on a district judge who circumstances that are proper to order a new trial now these factors are in the court's decision but those factors are one that the records show that jurors were verdict resulted in a first you are in there the first one miscarriage of justice there is a case cite that list miscarriage of justice but that's not the court's ultimate decision the old court's open decision it's against the weight and if you look at all of these cases medcom latino mckeel all of these cases i've cited they don't talk about just against the weight they talk about manifest weight they talk about things more then just i disagree with the decision because one is a district court supposed to do it's supposed to give deference to the children's finding and that's the problem that i have here because in the court's decision it takes of the jury why are we even going into that latino also says you're stuck with the record before you so what's the court to it says you want to talk about how they took away cases they took away some jobs and you'd only be working one job at the time kurt says that's immaterial it only matters whether they were they paid more once prime choice left no no it can't be immaterial when it comes to those things pay me i'm not here if right they pay me they have mitigated their damages so based on that i would ask that this court reverse or vacate that decision right you are juries are presumed to follow the instructions provided them and in this case the damage instruction how come on specified that's not true then you put it you don't set aside a true verdict just because the jurors didn't follow instructions the judge doesn't hear you know a broadcast of what the jury discusses and their you know in their deliberation that is correct or that liberations are special we don't know what kind of crazy stuff the jurors isn't doing but in this case if all they were thinking was a prime choice shouldn't done that you know but on the other hand of things which if you if you had a recording of the jury deliberations she would realize they weren't really following direction and i understand that what they get now hardly they want to and how long were these jury deliberations rather it was a three day trial with just over four hours of deliberations of the first trial at least how many ounce just over four so the jury certainly can deliberate and it does so in secrecy but the district judge as this court has acknowledged in the case of mclean is uniquely positioned as analogous not he's very poorly position because he didn't hear the deliberations here the evidence so your honor have but he doesn't make the decision it's not a bench trial the jury makes the decision the jury deliberates we don't know what the jurors say in their deliberations sometimes we find out and it's often you know strange the scope of what's been instructed in the evidence i've never said every conference in our in our system of civil juries but we do have a rule fifty nine a for a reason and that does provide the district court judge the authority to look at the evidence presented and as this court said again in mclean that they must give the benefit of every doubt to the trial judge and making that assessment that the trial judge is the one who is there in the case of make the court said it's in that the judge in the best position to develop the evidence and determine amount costs and that these costs exceeded the contract rate this is a contract case the obligations of the parties are set forth in the contract itself and those obligations included prime choice working as directed shipped to its customers and had no alternative flying i'm looking at all fifty nine for the first time in my life and i said court man motion granted to trial on all or some of the issues etc after a jury because it doesn't tell you what reasons have heretofore been no grounds for a new trial this court recognize a case like mclean though that decision a verdict against the weight is one such reason the rule fifteen that it can't be true because the charge doesn't now if that which are the judge would decide the case without sending to jury what's the purpose of the jury if the judge  to replace the verdict if he disagrees with it again the presiding judge acts as this very rare the judges do this it is very honor and this court is there and allowed to ignore that unless it's something really serious you know and there was something really serious always serious here we had evidence which was uncontroverted that schneider had damages of a certain amount that even under yessiree but the jury may have felt that  is such a big company and prime is so small it's enough that that the jury has has health that  e well it was when you weren't exactly innocent because you didn't pay him such meaning there was a history here between the parties and the evidence was fully presented at the first trial to show that prime choice maybe struck a bargain that they didn't want to live with that it wasn't profitable as they had hoped they in fact maybe were losing money at various instances and were seeking a way out of the agreement they had at various points in time tried that and  although they never objected to schneider's payment history which the record shows was consistently beyond the thirty day term by three or more days suddenly on august twenty seventh we received this written notice stating this new alleged place a mechanism to do that a jury had this evidence the jury had this evidence concerning the course on stream part of the first jury did at least and while i'm talking about the second jury the second jury did not have the evidence of the correspondence prior to the breach the repudiation because upon a repudiation it is treated as a total breach and that point forward the obligations of the parties are defined by the contract itself there was a no modification provision in the contract so that the set forth in the contract which was before the second jury so we could understand what the nature of the obligations were for prime choice it was not to decide the issue of liability or repudiation that was one issue planet disputes of this sort settled by arbitration two arguments in collision with each other one and you think juries when they're on your side are you know great and the other is that right the juror says unlike with the jury did  jurors beyond the fact that they were all residents of the counties which comprise the green bay division of the eastern district of wisconsin i don't you know where they are with their business businesspeople as i recall the panel at people mind there was some dispute even over the standard of review which is fitting for this case given the long running dispute we've had and various courts now and and that is simply it's a piece of discretion so for the court to reverse it would have to find the judge a court's cases such as again mcclain saying must give every benefit of doubt to the trial judge why and he will give every benefit of doubt to a trial judge if we did we'd never reverse its implicit though in the abuse of discretion standard which is obvious discretion what is abuse of discretion to me it's the when it's it's just it's just legal jargon doesn't mean any well i think it's formulated in some cases where there is no rational way in which a judge no rational jono no love judges are constantly refers although they were wrong now they're not irrational and i'm walking around you know in straitjackets because had to go back to prime choice there was still it's undisputed evidence showed prime force was still working on a certain account for one major retail retailer at the largest accounting that the syllabi and when they left when they breached repeated the agreement at that time schneider had no choice but to find replacement and getting to judge kenny's question really about communications there were communications on august twenty seventh schneider responded by a letter dated august thirtieth it was august thirty first that prime choice left behind forces principal receipt of the correspondence which had to be by form of acknowledgement that was by certified mail on august thirtieth the court determined so that meant that your period would have lasted until september fourth two thousand and thirteen it was during that period of time that prime choice or p d the agreement once paid within thirty days the typical every once and never once paid within thirty days for the into our life the agreement we never heard about that until august twenty seventh essentially there may have been some earlier attempt at a call in august but there was it was not anything that was you actually paid you didn't pay by the time you usually paid even though it was late on the twenty seventh the evidence says that there was not a payment on that day for whatever reason but you've been paying about three days late christmas on average there were other discrepancies that were disputes about it's a very complicated you know arrangement but there were various disputes and it was as much not i was paying schneider was performing prime choice didn't when it repudiated the agreement and the only evidence at the first trial would lead one to believe there were some damages there certainly were not  one a minute or so when we're talking about real fifty not and i would agree it doesn't get into what the actual factors are that the district court is supposed to review i outlined the three that it was manifest way to the other and shock the conscience those are also just words but you have to be careful here in the court's decision when it says you