involves a breach of contract claim over a settlement agreement it underlined was he between the parties involved the extent to which mr turner one of the actually misused started competing business in which he also used the movie review name even though his prior into the had sold the rights to use that name in the marketplace to hope and he did so while he was also serving as an officer that was it's a core issue in the underlying case because the method by which mr turner was able to convince hope wells clients that his mother entity the competing entity was legitimate and there was nothing to be worried about no red flags for having to send except to a different entity was because of the misuse of the same brand is essentially a passing office that's what to the key term in the settlement agreement that were argued that right now in consideration for making a reduced amount of money payments from the original acquisition remit hopewell you know the movie review break so the trade in the review any of the related names or any derivatives the settlement agreement in particular didn't include a grace period the obligation wasn't simply limited to providing notice t others that c p s is no longer affiliated with material and you kept paying even though you knew about it so why isn't he right so if i can answer that in two parts first regarding that the payments i continue benefit that is reasonably expected in the contra second was there any sort of way to determine that there was compensation that could be made to address that breach without frustrating the entire purpose of the contract  there's another factor that relates to forfeiture which is a relevant part of these facts but then there's also two other additional factors whether there was any likelihood of a repeat breach and finally whether there was any sort of bad faith  might be relevant to determine whether the parties entitled to affirmative relief but when it comes to an affirmative defense taking actually especially after the settlement agreement just resolved one suit that would almost invariably lead to another  not something that the law has ever under texas law has ever been recognized as relevant in the materiality test or the superman but that's in addition as well i mention that there was no evidence of any damages or harm to hopewell and actual interest at stake is very unique and it's further sort of the find by the underlying claims that the settlement agreement result one big key underlying claims was based in the land of the so unfair competition interest is not readily susceptible to clear damages evidence in the first place that's why the statute doesn't even require managers as an element to prevail under a claim for unfair competition furthermore a judge will i mention nobody provided any post settled evidence of actual marketplace confusion but again that is a misunderstanding of the interest at stake this court has held consistently that when it comes to issues like passing often you know that in this case at trial there was uncontested now that it's that prior to this of agreeing to leading up to the settlement agreement there was actual prior confusion in the marketplace because of mr turner's extended to essentially have viewed that evidence of prior actual confusion as evidence that shouldn't be used in this case because of the release it was subtle but as explained during trial it wasn't being his affiliate and his warrant and agree they should not use as if that was something that was at issue at trial it wasn't something that would have caught someone by surprise and there was nothing in the remit which presumably the determined as a material breach even though you know looking at this that the context might lead someone to say well it may not be that important it was only a few weeks that you know that's not you know been sort of a third party contact maybe brother or maybe on material but the materiality fact is focus on specific parties and what they're really not what someone unrelated to that particular transaction might think is important or relevant for example the nephew has a cigarette by accident a week later most people would probably consider that no big deal but to analyze materiality that breaching the context is absolutely essential and what the uncle in that example was bargaining for is an factual finding budget or line that you know is not issues not being disputed up but whether that fact finding has any relevance to the legal issue of whether there was a material breach that's what this court has the ability to review and  of material breach in the conclusions of law such as he does not mistakes but the materiality factors are and that they should apply they disconnect is between the findings of fact that he did issue law that he actually applied to reach his decision so as far as what the court should do we argued in our briefing that the actual record is sufficient it was developed sufficiently to establish that hopewell did have a reasonable expectation that the benefit would get through settlement agreement is an immediate cessation of use of misusing the name so if it does why not persuasive that that's the only conclusion permitted by the record in the court as the conventional does right answer then reverse reversing in rendering intent nothing judgment would be the optimum would be the outcome but alternatively if the court doesn't have the conviction that there is only one way to look at the facts when properly following the law under common standard the us supreme court says that those are the situations where the man his is proper and the central allowing the district court to have the opportunity to the prior material breach by the turner parties there's no need to reach the election of remedies issue so i'll start with materiality with respect to the privateer ial bridge issue hopewell makes two separate arguments first contends that the were erroneous lee applied the law and that is incorrect the court correctly assessed materiality it cited the five factors that are set forth in section two fourteen out of the restatement on page four breaches we disagree and it found that the district court had properly analyzed the test for material i want to talk about the courts the lower courts conclusions and how those do apply to the fact materiality the primary focus of the district court was whether hopewell was harmed by any actor omission by the turner parties and if found that it was not on those and that that conclusion that  suffered no harm resulting from either of the claimed breaches that the issue related to the code of care or the issue related to the auto attendant recording those that the fact that the four found that neither one of those caused any harm to hopewell is relevant to the first two factors of the restatement which is the extent to which the and injured party will be deprived of the benefit and the extent to which the injured party can be adequately compensated for the benefit that if it was deprived the court found that neither the dakota care and anything having to do with the kotak or care or the auto attendant greeting caused any harm to hopewell and therefore hopewell had not been they had the burden of proof i want to talk about what what evidence it did not respond with particularly with respect to the the issue of harm or any prejudice this there was no evidence of any harm and no evidence of any causal connection between any actor omission by the turner parties and the any damages that could have flowed from that to hope and in particular with respect to the auto attendant greeting which is this reporting that presented customers who call that recording and heard that recording they didn't do that there was no evidence of anyone who heard the recording other than mr all in the notion that someone would call an auto attendant braiding hear it here it's referenced a movie review and then decide to do business with c p s t v rather than hope oil is just nonsensical on its face  the what what hopewell really wants the court to infer what it asked the district court to infer is that a single reference to a movie review and that's the only evidence in the record as to who heard that that recording vitiate entire agreement i hope i hope well is taking the position that it should be excused from making four hundred thousand dollars in payments without showing any harm and that's that's simply not appropriate  karmas is the primary fact it was the primary factor that was looked at in the hernandez case that's texas courts review in assessing materiality and hopewell does not cite any cases where a material breach was found absent a showing of any harm and in the in the instance that mr patel gave of the person who was smoking a promise not to smoke and he did and that promise that the turner parties read was not to use the murderer and that's not the case the balance was significantly reduced in terms of the payments that would be owed by hopewell to mr turner i was reduced from at least a million dollars to six hundred twenty seven thousand dollars so that was substantial consideration given under the settlement agreement the turner parties also agreed not to solicit or accept any work i'm from more than one hundred of hope the largest a duty not to solicit any clients but i've never seen a texas case that says that a not solicitation agreement with a former executive fails for lack of consideration that if that was the case of the news to a great his not solicitation obligations the other the other consideration that's hopeful received through the settlement agreement was that the turner parties agreed to notify three of the largest customers of hopewell do not make any more payments to hopewell until our dispute is resolved they agreed to the settlement agreement to inform those three clients which are d d c d n c s c n n and again to release those fines and they conduct the court found with respect to the voicemail recording that the auto it and the recording was changed without prompting by by the by help of mr turner voluntarily changed it without being instructed to do so and the record shows it's not entirely clear when that happened but it was sometime between two weeks after the settlement agreement when the recording was made by the offer of hopewell and my client said within three months he would have changed it because the recording was made by one of his employees she left and he said that would have triggered his mind to change the i'm so d d on the issue of but we did not put those in the pretrial order my point in saying that we have played them is hope well could not have been surprised by the fact that the way she came up to try because we had led in one of you know our answer more than a year before trial issue was the issue of prejudice hopewell asserts in its brief that it was prejudice but it doesn't say how it introduced evidence on the first day of trial from mr young as to why  hopewell had waited seventeen months before it raised the voice mail issue that's so far as i can see the only evidence it would have entered so it doesn't articulate any other evidence that it could or would have entered with respect to the delay issue so there couldn't have been any prejudice and the last thing i did want to raise is under the right for any reason rule they did the same that the same general facts which and that's all i have to thank you contract so waiver was raised but as an affirmative defense not as a counter defense or a matter of avoidance against hopewell for from a defense that's the distinction in importance in terms of whether that was played or not  election remedies doctrine is one of basic fundamental due process that the pleadings frame the issues for trial unless there's a finding of trouble i contend which this court has held should be rarely in for to address the court's findings and conclusions that's where judges were only discusses the reasoning for his decision that the material that there was no material breach because of the auto attendant recording that's where it is clear that the judge were line the findings establish in our minds he incorrectly ply the law by using those findings as the basis of the decision that the breach of base on the auto attendant was immat these findings relate to like the issues that i discussed before whether hope oh you know provided notice whether hopeful took action to mitigate whether there was damages or harm none of these factors are actually part of the materiality test under texas law it certainly is relevant that hopewell can't or didn't prove damages in if what we're here to discuss is whether hobo should get a money judgment if hopewell is asking for money and he can't prove them which is absolutely that's relevant but in the context of an affirmative defense texas law it's very clearly articulated that these are the materiality factors to consider and harm isn't one of them up texas courts have been very good about unseating damages as an element where it is an element in here that's simply not the case and it makes sense because it's an affirmative defense and not affirmative claim for leave their new look for the questions thank you again