our next case this morning i think we're waiting on we've got our council so we're now going to hear smart oil versus data being made so and we have mr lookout see have i pronounced your name correctly it's actually live you shave but fifty percent of the people i the district court with respect to its summary judgment ruling against t w news all in favor of smarter when this case is essentially a case involving queens for breach of contract and as well for sixty seven million dollars and smart oil was essentially the seller under the contract and you don't you nasal it was the fire and the parties went into this contract this was actually the nd contract that the parties had gone into for this type of transaction and the parties went into this contract where one of the issues was whether or not smart a will could bring the thirty gas stations that it was supposedly selling to the table to sell them to nasal and in breach the agreement and that it's highly so liquidated damages and our defenses in the case are essentially that well hold on slow down a nd here what's really going on is that you couldn't bring to the table you couldn't bring all thirty gas stations you couldn't convey to us sell to us what you were claiming that you had to sell and so your the one that actually breached the agreements and basically that negated the contract at that point in time under the agreement and this is one of the critical sections in paragraph if team smart oil essentially represented that it had the authority to enter into all of the documents to be able to convey the property and it was what the parties did is they essentially made those representations by smart oil conditions precedent based on the truthfulness and the accuracy of the representations that smart oil would have the ability to convey the properties and the reason why this was done is because you had an earlier greenman back in june two thousand and fourteen where the parties were trying to do the same type of deal but with less properties and smart oil couldn't bring all well again the defense the worst pacifically raising here relates to the authority that they had to sell the properties and it's clear based on the evidence that's been produced in this case i smart oil itself that they only produce two fully executed contracts covering a total of four of the property and they also got went out and got thirteen affidavits which covered essentially at least twenty one dollars of the properties although there were problems with those at david as of that time and in fact the contract produced by smart oil was an accident and so the evidence that smart oil itself produced just to substantiate its own authority essential to show that it didn't have the ability to sell  the liquidated damages versus kelty provision issue sure so our argument here is essentially to the st argument we're making is essentially that the language of the above the liquidated damages provision itself essentially penalizes you for any type of reach and that specifically states that if i were to fall to the performance of any term covenant condition or obligation to this agreement know and this goes to the nd part of what we're saying is when the owner siad of smart oil was deposed he essentially said that there was no effort to approximate his damages with respect to this deal back at the time that the parties were putting together the contract and the reason is that he wasn't going to incur any actual damages because he was essentially using veto uns money to fund the deal and so this is basically our nd argument here is that one of the factors you look at to determine whether or not this is going to be a penalty or it's going to be enforced the damages permission is whether or not there was any effort to approximate damages me even if you can't figure out what your actual damages are going to be you know the parties into law are still required to try to make an approximation and here what we have is we essentially has basically saying earn his deposition that he took twenty five thousand dollars he just arbitrarily took that number and apply a property to come up with the seven hundred and fifty thousand dollars it was and the effort to approximate his damages based on what he might incur going through with the deal in the regional to was because he wasn't using his own money so in addition to the thirty contracts that siad was unable to bring to the table as part of the transaction it's also that he did not bring the titles as well he had an obligation to get title commitments to turn them over to d w m and then that would trigger a five day review period for when and in fact it is undisputed here that he did not produce those titles to  when instead what he did is he says that he gave them to his attorney now the title commitments we're not talking about the titles that are transferred when the deal is closed but the title commitments themselves if they were with his attorney they were never produced in this case  so i mean there are two things that went on here with respect as more to well in terms of its inability to concentrate to deal now with the thirty contracts and the titles and in fact that amounted to would have to a breach and it mounted to a failure of its own inability to satisfy certain conditions precedent which under the liquidated damages provision it needed to be able to satisfy so we have a company that's essentially coming in saying that even though they breached they couldn't fill their own obligations under the here remains that they are still entitle to liquidate it and it's in our our contention here is that this certainly contravenes up of policy when you have a company that has no actual damages did not proximate those damages was in breach of an agreement and then is seeking liquidated damages that is a moment where we should not be enforcing these type provisions so i'll reserve the rest of my time for breach of contract against g w mase all and the cat is court knows the contracted issues of purchase and sale agreement from november of two thousand and fourteen and in particular were the focus of the contract particularly the earnest money deposit in the liquidated damages provisions of the agreement obligated mase all an initial the positive three hundred thousand dollars in  holder sent an email stating that quote this shall confirm that as of today i am holding three hundred thousand dollars for a t w missile l z in connection with its proposed purchase of a portfolio thirty gas stations located throughout illinois from smart l l c and the money shall be held in accordance with the person sale agreement executed on november to two thousand and fourteen close quote i refer to that you expos facto that certain due diligence requirements were not met close quote the dish report was referring to the missiles obligation to pay there are some money deposit now in both in the written briefs and in argument this morning d w basal devotes a significant portion of their arguments on this appeal on these due diligence materials by basically deceptively and selective selectively citing certain parts of the record while ignoring other record evidence and ignoring the language of the agreement itself and that the district court's findings based on this review of those matters any of that serial provided sooty dummy's all the profit loss statements in horses tax reports and surveys swick was supposed d to transfer the initial deposit three hundred thousand dollars to a title asco holder and additionally the w is a was acquired to that point time to make an additional deposit of four hundred and fifty thousand dollars and provide that except as otherwise provided excuse me except as otherwise specifically provided in this agreement only deposit defined as the deposit and the initial to the additional deposit in all d truth interest there on shall become non actual closing of the transaction not the pretty close in period and they they particularly want to avoid the pretty close and very because they have no response to their failure to provide written notice of rejection or just approval due diligence as to the remedies provision that section of the room vides a quote if buyer defaults in its performance in any term covenant condition or obligation under the supreme it lutie the obligation of buyer to purchase the property all conditions precedent to such obligation has been satisfied seller shall receive the entire earnest money deposit and all accrued interest there on as complete liquidated damages close quote now that what's interesting about that particular provision of applies is primarily we rely on it was actually did well in the morris for their sins for his opinion were set forth a test of three parts tests and in that case quote courts will generally enforce a liquidated damages provision in a real estate contract work be shown one the parties attended a status he agreed upon amount of damages in the event of a breach to that the amount of the amount provided d is liquid it damages reasonable at the time of contracting there is some relation to the actual damages suffered ok and if the amount doesn't if the amount doesn't vary no matter what happens then under more it's st floor as it seems more like a penalty well but in terms of you're looking at the him out at the time of contract vary and at the time of contracting that there was no ability to forecast or predict the amount of actual damages and in fact there's case law cited if  what damages could have been at the time a contractor could have resulted as a result d of not transmitting or you know winding up with a true bus a transaction where the you know not a damage as you would have to calculate for all those different properties and all the different possibilities of permutations you know that's that's why i believe the just report correctly healthier that asked it as a teenager it damages would be difficult d in there would really be a methodology to do that entitled to recover from the other party all costs and expenses of suit including reasonable tourney speeds and then it goes on to define a series of circumstances none of which seem to include appeal does include knew that the money had not been paid including in january th emails where cyan is trying to renegotiate the deal to meet the deposit nonrefundable and in fact there's no evidence in this case that there was an escrow account ever set up even though the contract provided through to west pro accounts or is no evidence that siad ever contacted the st escrow holders with about anything including transferring the money that he was supposed to hold to the nd escrow account there's simply no evidence to show e mail itself sayad clearly knew the evidence shows that the money had not been paid as to the district court's ruling you did not hear from counsel and there's nowhere in their briefs have they essential he been able to rip up the fact that they could not produce a fish an affidavit or documentary evidence to show that they can convey all three properties and in fact they made statements in their brief that they had affidavits for all the property owners but the evidence that they produce in this case clearly falls case because there aren't enough contracts to cover all the properties they only cover four of the properties and there aren't enough out to david's to cover all thirty properties they only cover twenty one dollars of the properties so the district court's ruling whether misunderstood the evidence or something else clearly doesn't match up with the statements that it made to justify the ruling that it is on the last point i agree with the horror that alternately if that if the liquidated damages number is not going to fluctuate at all  definitely is suspect under morse and in fact he did not hear from counsel and has no where in the briefs why their ex how they are explaining basically what where the liquidated damages will come from what their actual damages will be and the reason again is because of the way th