as court knows this is a construction case and what i like most construction cases involves a number of different issues and we've raised a number in this appeal unless the court has a preference i'd prefer to address the windows issue as that is the largest issue that we have in this appeal the contract between these parties required that their windows for this unit for this building meet h c seventy performance standards these standards were specific and all there were four of them and they needed to be met in order for the for the project to comply harkins hardy as general contractors do hired a subcontractor sub contractor and in turn purchased these windows from a company called jan and those windows were certified by the manufacturer prior to delivery they say that they would meet a c seventy requirements and they did not when they were delivered they did not they had a manufacturing defect the windows were installed the windows leaked upon installation the general contractor my client discovered that the windows leaked and the for a period of many many model several months the general contractor the sub contractor who install the windows and the manufacturer embarked on an effort to repair and restore the windows to the eight c seventy on board in fact the owner retained the testing agency who ultimately tested the windows in august and warning to the owners testing agency past all the windows according to the judge's findings of fact on liability for defective windows the oter put up a witness joe joseph shuffle to he was their key liability expert mr shelton naturally was very critical about the windows he testified that the windows as installed were not as represented by the manufacturer and i don't think there's any dispute about that but you all sued him and you pardon haven't you all sued the manufactur i believe that there is a that there is litigation i'm not involved with your mr schaffel tin spent the majority of his testimony testifying that the testing that had been done of these windows was inadequate for instance you said you didn't do the testing in accordance with a m a five o two which is the standard by which the windows should be tested he said you should run the windows at ten percent ten pounds pressure and you did it at seven and that's not correct severa in fact the majority if not the the conclusion of mr shelton is that the testing for these windows was inadequate mr shuffles and said i think you can repair these windows but they need to be properly tested and until they're tested properly we don't know why these windows meet the eighty seventy requirements he said a joint you want to spend x eleven eighty what has been done is unreliable at this point in the remediation in the testing it needs to be fully tested where the windows need to be replaced mr schaffel ten had no knowledge of any testing that had failed four of the four structural integrity air resistance or forced entry but he consisted of the proper testing was and that's exactly i think what what you can see from the court's decision this is what the court said this is what the district court said twenty three hundred demonstrated that the windows leaked were defective and were then heavily remediate this is a sufficient showing to demonstrate that the windows did not comply and shift the burden to hearkens the judge is saying and i read another one that the defect that that the breach is determined the you constructed something for me in the window in the garage really i would think with the bridge had we turned over the project to the owner with leaking windows throughout the facility then we would have breached yourself an impossible that can't be the law if i beg to differ your honor that in this contract as in most contracts the work of the contractor is under his control until he completes the job and in fact the contract requires the contractor to address defects because no one's perfect when they build a building things happen things are discovered and as long as the contractor attends to them and takes care of them and then turns over the building  in the in a proper condition there is no breach that this judge says you breached on day one when you put defective windows in there and therefore the burden shifted to the defendant to prove test them and no one's done it right so there was no affirmative evidence from the plaintiffs at the end of their case that these windows were not eight c seventy compliant and what the trial judge does in his opinion is castigate or criticized the defendant for providing bad test results which begs the question that should have been decided and that is whether these windows were compliant  through experts and through testing that the testing was satisfactory the trial court elected to discount that testimony as as as explained in his opinion so that you have a witness that said that the windows of the project  there there was an allegation there was a and we've addressed this in a couple of pages in our brief about it one or two suggestions of leaks after turnover you're talking five hundred some windows we're talking about one or two drips that are addressed in detail in our brief but we're not talking about a massive leaking through all of this building i just want to give you a full and fair opportunity to anticipate what the other side is going to come because it's not it's not really worthwhile to say interested in your representation of what the record was here my rep representation is that there were experts called on both sides that it actually work from my fine point on it though is that when you look at the plaintiff's expert they had the burden of production they didn't introduce sufficient evidence to show that the windows were not compliant and the trial judge seemingly switches the burden over to the defendant to prove that they were and and and he said i went down to the to the garage and i saw it was leaking it's a bland sad system i really can't tell exactly why it's leaking but it could be one of these three reasons that's all he said on one of these need to say anything more than that i mean address future leaking in the end the testimony was that it just because it leaks doesn't mean there's a breach of contract it's incumbent upon the pla how the breach occurred and what it is that we did this expert did not do that this expert said it could be this it could be that those are the types of reasons but i can't tell because i can't see the backside of a wall that's what he said with twenty three hundred for the end painting the garage waterproofing the basis for that award was an estimate prepared by the owner's project manager manager named jason who testified as a la witness not as a den of expert there was no evidence to support a twenty year estimate of a twenty that the repairs would be needed for twenty years there was and the trial judge at one point recognized and specifically said and acknowledged to an objection that it requires expert testimony to predict where whether in the future these walls are going to leak the trial judge agreed with that then turned not been breached this court awarded full damages for the window replacement full damages for the garage fix full damages for delay in the form of liquidated damages and yet refused to credit against allude he didn't specifically say what wasn't done he said starkly conditions had not been met but that's a different issue than calculating contract damages if the court were to look at the default for terminations provision in the contract  the default for determination provision says that that that's correct well i mean if you have a contract you're hard to fulfill certain conditions before you're to be paid if you have a feel the conditions would entitle you payment i'm drawing a distinction between payment and and calculating damages for breach we you're talking about the issue about whether the final requirements for the contract were and less it's clearly erroneous what i'm what i am getting to if you look at the terminations for cause provision in fourteen point two point four that's a j a ninety three that provision says that if i terminate a contractor for cause right the middle the project the contractors are not entitled to any further payment i then finish the contract and at the end of that my as the owner finished the contract and at the end of that if the unpaid balance of the contract exceeds what i have spent to complete it iow the unpaid balance to the contract if on the other hand the cost of completion exceeds the unpaid balance the contractor owes me the difference that is precisely the law of contract damages it's embodied in the contract in the terminations provision now why would it be any different when we're talking about an under a common law contract damages award that you must credit the dollars it was incumbent upon the owner to come in and say well because you didn't finish the punch list i spent this because you didn't do these things and that of those would be monetary offsets but the trump made they did not offer that evidence please the court patricia millett on behalf of twenty three hundred pennsylvania avenue let me address these points and start with you and your age judge mots about the expert testimony and just refer you to some of the citations in the record i promise you if you want and i will do it if you want that i can give you a long laundry list but let me give you the key ones with respect to the claim that our expert did not go the last mile and determine that these windows did not comply with  standard i refer you to join appendix one one eight nine and i will read for you quote one one eight nine which which one is this this is mr schaffel and the expert page thirty three of our brief has a bunch of these citations but this is the sum it all up quote the testino along the entire circumstance of things indicates a nonperformance to h c seventy particularly as it relates to water penetration  resistance this mr shelton also found out that structural integrity was necessarily impaired j one one seven four why these three mediation shot these the windows through with holes foam they were swiss cheese j a one to one to fifty six holes in a window if i want to buy a mercedes benz in these former sadie's benz windows and the contractor delivers me a window that everyone agree are a car that was in iraq and they've heavily remediated it by putting fifty six holes in it foam sealant that the expert testified was going to decay i'm not getting what i paid for i'm not getting my new mercedes benz that's what this was about mr when they said i think that your colleague started out with the argument that there is in the brief as well that the district court put the burden on the wrong party and so what do you say to that and let me let me address that and i have one more expert to get back to you on that with respect to that you have to as this court knows read decision district court decisions as a whole and so if you go again to page fourteen forty nine and fourteen fifty here's what the district court found and it's not as if your court would be a c law absolutely which has a burden of production shift and it i'll try to explain why i think the law got it's complicated here and what you have is not an error but simply a condensed explanation by the district court but if you look what the found is not only not only that we had shown that these things as installed were defective no one disputes that but cross over to page fourteen fifty where he says not only were they heavily remediated but again critically remediation made things worse the window re mediation the thames only added to the concerns that the windows failed to comply you have to read both pages of the district court's decision together and once he did that he made those findings facia case that we didn't have the mercedes benz windows that we contracted for d c law then said the burden of production shifts to the other side and that's why at the bottom of one four four nine you hear him after using and some casual language about men about the burden of persuasion here that they didn't come forward with evidence and it's complicated in this case the reason the district court language was condensed was because admitted and this is on j a one two three seven that even after six rounds of remediation in august twenty one percent of the tested windows were still failing  their vice president that set so that we think addressed this question the prima facia case was settled they were defective as installed they were heavily remediated swiss cheese fifty six holes  sealant that will take a tests and then the district court went further fourteen fifty to fourteen fifty one if you think there's any question about burden the district court goes through a series a litany of reasons why these windows are in the contract windows and that's all our evidence that he's discussing there that's our evidence mr shelton and this was a case where our evidence included putting on their employees we put on mr loftis their vice president to admit that the and that is the about the eighty two thousand six hundred dollars but as i read your brief your basic argument is they haven't preserved their contention that the award of that money was error you know we don't require people to file motions for reconsideration in a district court so how is this situation different to it to response to that first of all there are there are case last decided every and decided i mean i or that is right so where where courts do when in fact something is correctable and just a carpet let me just be clear i have more responses to the reply brief which actually is the one that laid all of this out and has substantial serious factual assumptions district court was finding and remove the condensers which of course are related to back and that all the windows are going to be replaced and all of the windows are tied into the h back system they have like a hotel room a little button on it and so they if you open the window because utilities are included in the rent here and so if you open the window they want the air conditioner shut off so the utilities don't go up it has one of those little buttons on it and so the connect there is a connection logical connection between a check condensers and windows all being replaced and we never got a chance to probe why the district court's calculation which isn't broken down the way they want to break it down might have kept that in now maybe it was in the state maybe it was these you say whether they're right or wrong i can say it's complicated i think if they maybe if they're assuming that the monarch estimate is broken dam but the district court didn't sort of write in all these pieces if they're assuming the facts where the how the particularly when we don't even get details until the reply brief let alone a result is a quite a there ok well i think that courts of appeals don't adjust judgments unless it's clear from the face and you have a collective number here and that's why you know that the the assumption that  eighty two thousand automatically included in there for this moving that should have been in there as opposed to a determination by the judge that age back is related to condensers age brackets related to these window replacements there may be something in there and the d c last standard right and that and that is obviously something that one needs to have record explication on and my only point to you is i understand their argument there's a maybe for that but there are other things that make this case more complicated than the record that would make it determination and well that's what i guess we're looking creature for an answer it's fine for you to say ok there are reasons of both sides but it sure is irrational i hadn't thought from your brief your rationale was that they haven't preserve that's that is our central one and that's and that relates obviously to remain and as well because there's going to be a reason and this is a bench trial rule fifty two b this is not just rule fifty nine i specifically provides for this right there's got to be a reason they did mr bellingham's testament replace the windows total who million six hundred eighty three dollars nine hundred sixty two dollars this is the three million figure minus thirty three hundred forty the three hundred ninety thousand dollars figure i doesn't include a subtraction for the eighty two thousand dollars figure so it and it looks for all the world like they didn't assert that the eighty two thousand dollars figure would have would was properly attractive correct correct i replace these windows people are living in these apartments we would like our judgment and there really is no particular reason and there's plenty of reasons not for courts to say ok late in the day told us for the first time go back and spend more time in district court they have nick given no explanation as to why they didn't raise it in a timely manner if the end in a manner that would have saved everybody a lot of cost and trouble and time quite frankly is and there is a bond obviously for purposes of this appeal one more thing if i if the court largely affirm the bond becomes payable and understand that now is simply a requirement for if you're not paying a judgment on appeal you have it's that that's all it is it's nothing more than that it's obviously protection for people one other thing just to finish on the burden of proof keep in mind the reason the district court condensed and talked about burden of production is contract three point five point one which says if you install things defectively contractor you have the burden of stat of when they architect a man's as they did here of showing that a remediated item is up to standard from the contract so that's why the district court was talking the way the district court was there's no the the weight of the evidence all of the legal elements required for a finding of breach contract are here and they were all done who are evidence if if you have further questions on either of these topics if not i would like to address briefly the garage question that was raised and with respect to that understand what happened here this isn't simply we got bad waterproof and we need to fix it they built into the foundation walls of the apartment complex a leak problem a water problem that cannot be fixed it cannot be fixed unless you want to tear these foundation walls and everything else down and move everybody out it can't be fixed and you can't get in there to see which of the potential causes for the leak apply but it is not disputed by hearkens that the three causes listed by our expert after visiting the garage mr schaffel been bad waterproofing bad installation something bad after the fact are all their responsibilities so that is more than sufficient to support the district court's determination of a breach of contract on that front and the damages they got were last than what we paid for the water proofing we didn't get we got we didn't get our water perfect and we now have a foundation problem foundation wall problem of water leaking behind it included let us know that you've paid off our sub contractors so we're not at risk of liens now to be sure they did file an affidavit saying that the subcontractors have been paid off but they admitted it was false that doesn't count for satisfying the conditions present they also were supposed to do an inspection with the architect and this is like if you think like a housing inspection when you're buying a house when you want the house but you also want that inspection you want an expert i to go through and see other things that you might not know about but they could be coming down the line that is what we didn't get we later found cracks in the walls that might have been uncovered had we had this inspection so the o to the risk of not having at the risk of find a house that a house inspection that's part of what is wrapped into the five hundred ten thousand dollar contract balance  not because we can't first why you can't go back in time and have the inspection that should have happened in twenty ten and quite frankly we're done with this relationship we don't actually want them coming back with the architect the dam it's this van th consequence of contract law to essentially enjoin people to go back into further contractual relationship rather than pay the damages for not having it done right that's normally the remedy under contract law and the court has no further questions come up with a pretty fancy propose cost of replacing the windows but at the time there was a liability issue on the roof so monarch included roof monarch included windows monarch had an estimate to do a bunch of things and what the court did when it decided that it wasn't going to find in favor of few thousand dollars that's a separate it's great item that's not proportional to other things that you didn't raise to do that is to court you expressed lead in raise it you subtracted from the three million dollar figure three hundred ninety thousand dollars and then you're saying and they should have proportionally the district which are proportionately decreased other well damages that's certainly understandable but the eighty two thousand dollars is separate and apart it's not a proportional the eighty two thousand dollars was a novel of a long list of items if you don't have that subtracted in your proposed alternative findings of fact you subtract only the three hundred and ninety thousand dollars from the three million dollar you don't track well in our in our brief i know that we made that calculation in your brief here yes yes no that i mean we're asking about the corporal i know but but my point is that the court below with there wasn't any basis in the to do anything it with the findings at that