preferences a little nod there i suppose but yeah these things are three four or five stories tall they are very big pieces of machinery and and the the amount in a new facility that rembrandt or you know a part of a facility that rembrandt would have expanded for this purpose the total amount of that contract was on the order of eight point five in our with the contract is in our append to seize and it does include a provision that time was of the essence it was clear that the reason that time was of the essence it turned out was that rembrandt was eager to set up a new commercial relationship with kellogg's whereby it would provide drydock products that was unknown to rembrandt or i'm sorry to i deemed stainless at the time so they enter into the agreement in november twenty four teen and the plan was for danes to have this dryer up and running and producing dried a product in january that would be then tested unbeknownst to d the time of the breach right that's correct yes ok but so thirty seven thousand you know person hours what we're looking at there of course is you know nine hundred twenty five person hours and then you divide that by fifty two per year you're actually looking at eighteen people who are going to be dedicated full time to constructing to designing manufacturing to sort of tweaking doing whatever they have to do to make this product work so what happened was that in twenty fifteen so not that long after rembrandt entered into the contract started to have some second thoughts about the expense that it was going to incur on this project and that's very clear from the records that it had and ultimately in october of two thousand and fifteen rembrandt gave notice to to dame's that it intended to cancel the contract basically and the kind of strong him along with you know we might want to renew this in the future but basically we're not going to do this for now to that point had taken in the district court was that if we are i'm sorry of dane's had been paid it's lost profits which i think was required under the u c c then rembrandt would have been untitled to it restitution for amounts that were overpaid if you will and and ultimately that number it kind of varies a little bit based on what you think the lost profits are but it kicks around right about either cutting even or going up to dames being entitled to like seven hundred thousand so it did varies a little bit in that depended on what the district court would have concluded the lost pro were but what happened and i'm just going to focus on lost profits today i will rely on the priest for the restitution issues and whatnot because i think they're there the lesser issue lost profits issue is governed by the u c c there is absolutely no dispute about anything any of the criteria for establishing a claim for lost profits other than whether was something that you know had to be sort of designed based on the client's requirements and what that provision says is that if the measure of damages in subsection one which has to do with fungible items is inadequate  seller in as good a position of as performers would have done then the measure of damages is the process is the profit per in including reasonable overhead which the seller would have made from full performs by the buyer and it goes on with other stuff dangerous lost profits claim here was made under that provision and and ultimately there was no dispute about causation there was nothing else likely had lost profits and b that the amount of those lost profits but i will say that it's important that under minnesota law and i think this is  uncertainty as to the effect of lost profits is deadly or fatal but uncertainty as to the amount is not and i think this case presents a situation where there was no  in you know he doesn't guess at anything ever in his life but what actually was proven here and this is where i go when i look at this judge and i look at the other cases and admittedly most these cases usually come up to the court either on a situation where a fact finder has awarded lost profits or were lost profits have been precluded and the court this court or the minnesota supreme court for example has said oh no no no there was enough here to consider last profits you need to reconsider and and so you don't often have the case where a fact finder has ruled them out i would say here as a matter of law when i look at what the district court did here i think the district court concluded that the only way that dame's could prove lost profit prove that it's it's overhead costs in order to produce the product that was valued at at that point eight point nine million or whatever it was  determinable and i liken it to you know me as a lawyer down to the point line you know the six minute increment and if they weren't then it was not reasonably certain but in light of the the twenty year history that this company has had so far esteems the principle of this company look at theories on the history the other side claims that the three or four most comparable project projects in the history loss i think that they based that on the name the label d d d and that that label that the evidence i think showed here that that label was something that was just applied to the product basically just to brand it and that otherwise the most important issue is were the egg dryers and a dryers was something that this company had been doing successfully with profits profits ranging all the way up to fifty three percent over a twenty year period and not only was not only was for us dames the principal of this company capable of testifying hey i you know i'm i feel pretty comfortable i'll get a twenty seven percent profit margin he also had an employee who had been a competitor and who had bid for competitors and said hey you know we usually in for a twenty seven percent when that system was installed that that they had missed that twenty seven percent wildly in fact that they did in fact generate losses for each of those douglas dryers is that a false statement  think the way i would say it your honor is that the d d d dryer dames ductless because all of their almost all of their dryers are doc less so the d d d dryers were just branded as such and and it was true that after dame's branded it it's dryers as such it entered into a couple of contract contracts that included food products that were not normal for them one was a a a contract for drying algae which had not been done before and and dames being dames stood by  their promises to their customer and made it work even though that meant they went in the hole and then there was another project where dame's was asked i think to retrofit a prime previous dryer decision i think it was unduly influenced by the minister a court of appeals decision in a case called poplar and we do talk about this in our briefs at some length and the thing i want to point out about that is that  poplar is a tort case it is not a u c c case it does not it is not beholden therefore to the provisions of the u c c that say that the measure of damages is the profit including reasonable overhead so what happens in particular is that you've got this these dairy farmers who have a big electrical thing built on their property and all of a sudden they start losing cowles and they start losing not production and and then they are criticize just saying you didn't prove lost profits because you didn't show us how much less hey you had to feed the fewer cows that you had because some died and  didn't prove how much fuel you would have incurred how much less fuel you incurred because you had to transport less milk but there are two things i will i would like to just jump on this and then i'll drop out honor judge beam in preparing for this i certainly always look at the cases that the judges have decided and i look at the marvin lumber case where the plaintiff told the jury to go into his tummy to find hinds case which applies these both apply minnesota law where the court rejected a lost profits case because the plaintiff failed to prove causation regarding any reduction in his sales and it was a new business et speculative is supported by overwhelming evidence in the record what level of evidence you think that you said overwhelming what level you think it has to be supported by substantial  case as to the alleged legally or they damn us first claims that judge brand applied the wrong legal standard by requiring mathematical certainty in his original decision specifically acknowledges that all that's required is reasonable certainty not mathematical certainty nonetheless they brought a motion for a new trial and he examined their claim that he had required mathematical certainty and he rejected it and he said no that is not the standard the standard is reasonable certainty and you didn't meet that so he did indisputably apply the correct standard in terms of the district court's findings that there was little or no reason to believe that dame's would actually have earned a profit if the geest the c f o of the company that it that he admitted it will were choir speculation and the explanation you were given is well he's just the accountant and he's very cautious that that testimony your honor was given  as a thirty six representative binding on dames and what happened at trial is mr de geest tried to change his testimony quite substantially and what he says well even though i said i would require speculation what i really meant is i can determine it to the actual penny and i can determine cost to a reasonable certainty so he attempted to directly contradict the sworn testimony had been provided at at the thirty six deposition and judge strand made a credibility finding and did not credit the attempt to change the testimony and in fact he just said i'm relying on the sworn testimony and there's no and he's entitled to do that he used magic word credibility finding sorry he did not use the magic discussion or was a placed in his mouth he answered the question is it in the light or accusation that he said yes yes and does that make any difference at all i don't think so because there is overwhelming other evidence including that dame's lost money on every single triple d duct this dryer to ever built including the one built before the rembrandt there there rembrandt contract was signed at the end of two thousand and fourteen they had they had this was a new highly proprietary design so highly proprietary that we attached the contract to the complaint it was a counterclaim asserted against us for revealing their confidential information by attaching it to the court record they lost money on that one a boatload of money they they projected a twenty seven percent or twenty eight percent profit they lost forty two percent well what their average was nine percent of their add on him but the two others your honor judge bends and the two others were actually bid and contracted after the rembrandt contract so there were four triple d dyer's one entered into before two entered into after they lost money and all three the average right the average was nine percent loss but zero los thousand and fifteen using the exact same methodology the exact same costing software costing methodology and if then do better does that mean they owe you less restitution no it means they don't think about it a second before you answer no no i'll tell you exactly what wants they overcharge just your honor so the contract the contract on the on the change orders said that they could not have more than a ten percent profit margin built into their change orders we established that these change orders secretly built in a twenty five percent profit margin so they over charges of the gross purchase price was one hundred twenty nine thousand two hot the judge the district court refused to give indisputable overcharge because he said we did such an excellent job of demonstrating that their cost estimates are virtually worthless and it's worth noting that the very document that says that is that twenty seven point one percent profit loss profit that's a cost estimate and that cost estimate the judge found was worth lee fortunately worthless as with respect to numerous other costs estimates when they kept shifting story shifting documents but we were able to show and the judge details at length in his findings all of the problems with historical evidence all the charts they put up that contain highly misleading numbers the judge detailed them very very thoroughly i don't need to i don't think it helps this panel for me to walk you through all the other evidence on that shows that there just was no credible evidence lost profits so judge strand says that there are no l profits the fact of profit has not been established with reasonable certainty there's a trial obviously in the he makes those findings in making those findings he sets forth that he's not requiring mathematical precision but instead that standard is one of reasonable certainty there's a motion made where they then say that hold on wait a minute even though you've paid lip service to the standard you followed the standard and he says oh no i applied the standard i said i didn't hear the findings of fact that i made sol this question all the sudden is not really one of law so much as it is one of what our judge grants finding fact as regards the damages right what was proven right and that's a fact question and so what's the standard review that we apply to those fact findings by judge strand clearly erroneous contrary to law and and that's the that is the issue on appeal you have to review judge trans fact findings and determine whether they're clearly erroneous and you know not only that he's clearly trying to tell us that i know what the standard is he's quoted the right standard and says these are the facts i found right yes and they draws a conclusion based on those facts yes and in his decision denying the order for a new trial he sets forth even more detailed facts that mean he  says i'm i'm going to reexamine the record he says i have looked at everything again a second time and i'm and i'm correct and here are these additional findings and so yes this is purely a review of factual findings by the district court and i don't think that the appellant can come close to meeting its burden of demonstrating that they're clearly erroneous or contrary to law and in fact my learned colleague did not really spend any time talking about judge trans findings and if you read their entire opening brief why don't talk about the findings well in response to she talked about the fine exacts a little bit too general but go ahead but but that's my point is their burden is to show that  judge trans findings are clearly erroneous or contrary to law and this court's decision to show what a difficult burden that is and i don't think they come close to meeting that space so since a judge well the district court obviously has substantial discretion in determining who is the prevailing party the real fight here your honour's was over lost profits we didn't dispute that they were entitled to the nine hundred thousand in cost there was one be perfectly candid there was a they had baked into their number fifteen thousand or some amount in the legal fees that we objected to but that was the only amount that we objected to the entire fight at case number eighteen day eighteen zero eight is submitted for decision by the counsel that was within your fifteen minutes the yellow light came on that is included now that's ok