both counts six and seven sought liquidated damages against a tell lehman individually for breach of the shareholders agreement among the parties based on the paragraph seven point one providing liquidated damages in the in the judge's opinion dated march sixteenth two thousand and eleven the judge concluded that the amount of liquidated damages in paragraph seven point one might be reasonable and also that at the time it was  were reasonable and that the actual damages were probably difficult or uncertain in amount and difficult to prove so the judge concluded these two points however the judgment on t that the phrase at the it in the paragraph it was typed wrong injury parties which means it entered parties option that paragraph seven point one made the average is optional liquidated damages and actual damages both the oil falling motion for reconsideration and that was denied by order in or june twenty third twenty l and the judge said referring to his prior the language at the injured parties option can only be read to preserve the alternative remedy of actual damages and i respect submit to your orders that the judge's conclusion that the phrase  question under the facts in this case and the language in the agreement that the judge's conclusion that preserve the remedy of actual damages is incorrect as a matter of law and before discussing catholic the parties must and ten first to agree in a in advance to the settlement of damages that might arise from a breach of the agreement secondly the amount of the liquidated damages should be reasonable at the time  contract very some relationship to the damages which might be sustained and third the actual damages would be uncertain in amount and difficult the dallas case went on to  rm the rule of law if there is no one fixed rules football at all it would damages cases ever agreements and each must be evaluated on its own facts and circumstances a careful review be might be difficult to prove i think you're i think you're right at that because of the other leads on file in the case dealing with the fact that the practice and what it involved medical malpractise cases personal injury and a high volume of gross income in the firm and that when these younger partners came into the firm in two thousand and seven that this agreement was signed then that it would be very difficult to know how fast they that some were very substantial now turning to the catholic charities cases which the judge relied on i think it's critical to roe eyes that this dealt with a real estate maybe not easy but it one is able to prove with reasonable certainty what actual damages are we all know tester that you know that purchaser does close then the seller sells later and it looks kind of these market what did he lose to gain or lose and the whole idea behind a strict construction on liquid damages and realistic cases is if you would all why all purchase are similar to sit back and choose whichever was case that totally negates the reason or liquidated damages liquidated damages or there when you can't determine actual damages which is our case so i don't think the holding catholic charities i think running with that word option and they ate in the catholic charities court refer to grossinger which was also a real estate case and charities it was the clause the actual cause if you read it was just talking about the benefit of the seller not parties  yes i don't think you can have both however in this case i think we're entitled to levy other counts under alternative theories levy one must remember work very early stage but we haven't even had  you have a contract here that the buyers for optional liquidated damages i would disagree with mr justice for this reason and i'd cite the pierce case here's the agreement it required liquidated damages only the problem in the amount of ten percent to be assessed on all late payments for deductions due in a labor contract and the court held the use of one wor now we dress i'd like to talk about the case of karimi which i've cited three it's a pretty interesting case because the question there was whether reference liquidated damages provision but the question was whether reference to actual damages to determine under baskin or method the liquidated damages was fatal and the court went on to hold that in that case the liquidated damages no matter what actual damages might be if they could determine them was fixed it could exceed that amount so therefore they said if you have to go and look at actual in our case i believe most respectfully of the project got confused about charities and the one word option and did look at the underlying reasons for that pain and the policy behind  chiropractor hired an associate he had him signing two year contract and on that date the contract was signed the employee had signed a no promissory note fifty thousand dollars and basically what it did not bear any relationship at all to the employees trading costs which was the big issue they were arguing for back ace and the court said if he quit on day two you have no trading loss but he had a fifty thousand dollars why the judge knew there's no doubt that these could have been very recent damages side by our lives they might not even be adequate enough in fact i think what we're learning right now that is the case and i know i'm stuck with the facts of the we do have that the breach the breaches are itemized in detail and breach of those breaches it's clear it's two hundred fifty thousand dollars so i think that was kind of an afterthought or a bootstrap matter now commercial law issues about possess really and it really does address the facts in our case but i want to point out dallas quite interesting because they're the plaintiffs sued to enforce a settlement agreement the point was a former union officer who had sued the union and union members alleging that the unit is members had breached a confidentiality clause in the settlement in the agreement and said he was entitle to liquidated damages if there was a breach one hundred thousand dollars minimum now the the the other side argued the one hundred thousand figure was a minimum rather than a fixed amount therefore it couldn't be liquidated damage and  wasn't a specific amount for a specific breach according to the defendants there was no real attempt to fix damages at a reasonable and realistic sub well i think i think the crowd judge answered that question ours were realistic and they were reasonable but that interesting point to me in dallas is the court affirmed the trial court ruling allowing one hundred thousand dollars punitive liquidated damages and said we reject defendants argument that the liquidated damages provision in paragraph two one bears no relationship to the damages piny might sustain and is therefore an forcible the amount is liquidated damages was reasonable at the time of contracting which is the decision we have thrown out because it only applies to statements about the plainly that were disparaging to him or help him in or see the court rejected that court said while the damage doesn't clue within its scope there that there were spurgeon remarks it was not limited to bad loans the court stated it encompasses any written or oral statement concerning plain ironic it's kind of interesting because you may think why my arteries are this could come back i'd be well it's good but i believe in my case and the facts and i you know that's just the way it is it's which shakes out but i would say this i this case where they knew particularly well being lawyers and knew the kind of firm they had and what was it issue in this firm that it would be extremely difficult ever ascertain what actual damages address those in my argument today before i do i want to talk about one that was emphasized by my opponent and that is that all of the data damages and only via all if they are reasonable actual damages and those actual damages would be difficult to prove well here we have an argument and i think an allegation that the actual damages that are sought are for which breach of which clause seven one of the liquidated damages clause doesn't address which of the other clauses in the contract might  the infected says any attempt to reach any provision two hundred fifty thousand dollars personal liability her cheryl let's pretend that it had said any attempt to avoid or breach the duty to pay him his thirty eight percent down the park sure that isn't what the clause sets but i'll give it to your for the moment that bad is percent of settlement fees difficult to i think question answers itself when the settlement coming in the number is kno if you take thirty eight percent and multiply it by the number you come out with a mathematical conclusion there is no difficulty whatsoever in proving the actual damages for the act i'm not conceding that that's what seven point one was pointing to because it didn't point to the juniper pays thirty eight percent it said you can not attempt to reach any provision of this agreed so worst in th would you agree that would be a substantial breach if that occurred it would be the client the failure to pay the thirty eight percent on departure the failure to pay the thirty percent donkey parcher would be a clear breach and it would be very easy to calculate the years so there's no purpose or need for liquidated damages their case they're just one of the tests and we'd like to determine that the irony here goes even further with this to the shareholder agreement about how to calculate four point two failure to pay the party shareholder the formula is written departing shareholder is mentioned in section seven one so it's not as if they were thinking of drafting seven one any attempt to avoid payment i think that in looking at the clause in their section there's a number of things that cause it the first is that it says any attempt to breach two hundred fifty thousand dollars and i believe i've heard my opponent in breaches that he might like to say are attempts to avoid the pantry preachers two hundred fifty thousand dollars for each of them and by the way if you attempt fails if you read section seventy dollars for the attempted boy and venue or whatever the actual damages are for the breach which would be a double covering or perhaps the intent if i read the pleading and it's a difficult one  is if you were tapped and succeeded in breaching its two hundred fifty thousand dollars in lieu of whatever the actual damages are you could reach the section over here which is a little one  inconsistent to argue that or is that your people put in the contract means nothing well i think it's ironic i recognize that these are warriors although one of them is a criminal lawyer who knows nothing of commercial law the other is a piano lawyer who knows nothing of commercial law but let's assume that they actually intended and understood that this clause was a threat to secure performance and it was a two hundred fifty th i would answer it in this way patrick law provides compensation to the injured party for the actual damages that they sustain by reason of creature it does not provide or allow  it's like saying now if if i preach this contract it's your option whether you want to sue me or not those words have any little effect or substantive meaning they cannot well sometimes people put language  now i said a moment ago that i believe that the clause fails every test the trial court ultimately ruled that the action language consistent with catholic charities was although the trial court also made note that another fatal flaw was that the number of the amount to fifty thousand dollars was not connected to any specific breach which reach of damages for if it's not connected to a specific breach if it doesn't say this is the amount that we were service damages for this mis time its  whether or not they're out in force winds and the case is note that they have the courts have a trust of these clauses they would like to keep the remedies within the scope of the principles of law as i mentioned what they were a moment ago punitive elements in contrary law so in this clause imagine when it says performance i don't think reading its words you need to look behind those words to understand what it was intended to do it was intended to discourage any party from doing anything to for all of those reasons for the reasons stated by the trial court in its ultimate ruling and reasons that may not have been included there but are clear in the cases and i got my foot in our brief this clause is a threat to security for months it has no reasonable relationship to any particular bridge and for there reason it should not be enforced and the parties should be left to their real substantive the parties when they had ten they knew they could prove with certainty with reasonable certainty actual damages so they fixed liquidated damages the amount under these facts of this type of law for this type of business for not dealing and it's in the agreement doesn't isn't that part of the context of what the liquidity damages clause mean i don't think it is mr justice because it's talking about things as if he had say he made my clients and it made a contribution to the f need fifty thousand a for doctors