minutes i'd like to start by starting with the standard of review the parties have submitted differing standards of review and prior when the briefs were filed there was not a definitive statement from oklahoma regarding the appropriate standard of review and what you had was the cases cited by us which is a list of a string site if you which is the th circuit case setting forth that the standard of review it draws a distinction between determining which party is prevailing versus the meaning of prevailing party and that's interview was the definition of what a prevailing party is is as a matter of law but determining whether a party is a is prevailing is abuse of discretion and that was the arkle a case which post briefing in november of last year after the briefs had been submitted in this case the oklahoma supreme court which is the st statement that the supreme court has made on the standard of review was be decided either way we believe this recent decision addresses the distinction your you're making and said that it is old and now unfortunately the case just came out there to do that so that we have that in the i would be happy i'm not saying you can't talk about it now i'm just saying just do that after this procedure i will do that your honor and i don't i think that regardless of the standard of review and if you go back and look at the cases of both then we rely on have obviously the midwest case and the tomahawk case those are both cases that even says well that's a little different that was lifestyle it's the same claim it's not it it's it's a bridge i appreciate the the distinction you're drawing and it is true that in fact in our case there is not there was not a lien claim asserted as a counter claim however we do not believe the nature of the counter claim changes the nature of our direct claim and it's not that there was only one claim there were two very separate claims a claim and a counter claim and we don't think the nature of the counter claim it could have been a non feed bearing claim it could have been a l claim but the fact that they asserted a claim for payment for breach of contract like we provided the services but you didn't say we asserted a claim for you breached the contract by not providing the services we think the important factor is that there are separate claims this is not a situation of an offset where we have some basis unrelated to the rendition of services to say we do not have to pay you this is a claim by when co against cross linde for breach of contract for providing defective services and we believe that claim standing alone isn't titled to be a fi claim and it does not matter that the counter claim was asserted i guess they could have asserted wien rights i mean they had them they did the work there would have been a lien as a matter of construction law they could have asserted that they didn't and the fact that they did or didn't and just chose to assert a claim directly for payment only rather than worrying about priority because we rights are really about priority if it comes down to you know who's getting paid st if we got to sell some property and so you know the fact that there's an underlying debt there whether it's secured by a lien or not and whether you go to foreclosure or not the underlying issue is contractual and all these what do you know what concerns the mr mcclintock is that when i look at the jury instructions when i look at the verdict form both of those speak of one breach of  contract and then and i and unless you show me something in those documents of the conference act in one place i think it expressed lee says to the jury that what we're dealing with is one reach of consequence and so so that is what form and so why are you situated now to say that what's at issue here are two different claims and that those claims that it doesn't matter in fact that's the way it was presented to the jury was not what am i missing i think is missing is that the jury was instructed on two separate coins they were instructed specifically on a breach of contract claim by crossed by winco against prof lynn and the elements were laid out to prove it to find that when two prevailed on its claim you must find a contract there was a breach in damages there was then a separate instruction given on cross lands counterclaim for breach of contract that was similar in that it discusses the elements but it was a distinct claim and if you look at the general nature of damages instruction the court expressly discusses the the fact that they're both other party to the same contract and so the question is the same contract which there would be a question of what would be the result of a breach just as a right the same contract that line would suggest to me that we're not talking about that we are talking about the top of the bank one week that's the way it was presented to the jury was it not why i don't think the distinction of offices we don't agree with the characterization of office is opposite sides of the same very distinct one is for payment pretty straightforward there was a contract we did work you owe us money that was the end of it and in fact that was essentially conceded and that was in the same jury instruction that you're quoting where it talks about it is undisputed it's the same contract but it's two separate questions on one hand one for a moment very straightforward where we didn't really contest and in fact didn't contest and admitted in our inner augur tory answers in our initial disclosure that it was stipulated that we owed the eight hundred and fifty thousand dollars and the only reason we withheld it was our breach of contract claim which was not the same it was and the evidence was completely different is it was defective work and we had to fire our general contractor to take over and not only do eight hundred and fifty thousand dollars worth of work but on top of that do one million two hundred thousand dollars worth of work in damages and while it is one contract and that is undisputed in georgia and you're absolutely correct on that we do not believe that makes it a characterization of two sides of the same coin i think that argument would apply in midwestern tomahawked i don't it's the same contract in those claims where you have again the fact that they chose to sue on lien rights in think i was with your argument until they had to say to be those cases could against your why your honor i don't think again if the counter claim that is asserted against us is the deciding factor in the case and it had to be a lien claim then we the other side is correct if that if that's we have to concede that point if that is a if the counter claim asserted against us is a distinction that matters and if they have asserted lien rights or unjust enrichment or something other than a counter claim for breach of contract we can seat however we do not believe that's a distinction with a difference because in and i'm about out of time i do want to touch on the look at the midwest and tomahawk cases and start there and then finish with the burris case in midwest and tomahawk it wasn't even an issue whether that was a feast case and you had basically the same situation and the reason it wasn't an issue is because of what is said in the boroughs in the burris case it says very expressively that is the underlying nature of the suit itself that the determines the a political and the question is whether the damages arise directly from rendition of the services and labor and we submit that's the case here all the damages including what they characterize are lost profits directly result from the defective services that were rendered they didn't build the building right and all the damages flow directly from that including the fact that the store wasn't open and you could have a situation where the store wasn't open be clear i don't think it would matter to the outcome of this appeal because under any standard of judicial review judge heaton's order should be affirmed but i also think the abuse of discretion standard very clearly badat in super versus ricketts looking at the difference between de novo review and abuse of discretion that has kind of morphed over the years to what is actually a very simple rule governing judicial review in these circumstances they are quick case in a reference to a more recent case from the th circuit they say very clearly a district court's determination that a party did or did not prevail i is a look confusing question to me i do not believe the the standard of review is a substantive law question that would be determined by oklahoma law but it is a little bit confusing quite frankly and kind of kind of a mix but in my view of the world i think the standard of review is a procedural question it has been decided by the th circuit repeatedly i am not unfortunately familiar with this new oklahoma supreme court case reference by mr mcclintock i will become familiar with it we all will but i do believe your honor the law is very clear in this circuit the standard every view is abuse of discretion when it comes to determining who won the trial court judge he in this case is in the best position having monitored a case in the presiding over trial from in section to closure status as as as you noted these were competing claims and are the same contract competing claims for only money damages and go contract judge teams determination in that regard is rock solid rock solid under any standard of review the law in oklahoma now we're going to pivot to the substantive both of those cases in the underlying case which i'll stress here in just a nd the welling tace which ultimately produce both midwest and tomahawk these cases all involve situations where multiple separate fi baron claims are submitted to the trier of fact so let's talk specifically about midwest and then i'll talk about tomahawk and then go on to welling in midwest trier of fact was an arbitrator the arbitrator very clearly entered an award in favor of the owner on one thing very client and also entered an award in favor of the contractor on a separate are more than one prevailing part now both of those decisions i want to stress rely upon this well mean case and i'm not going to talk in detail about the welling taste but i do want to point this out windows exact argument and the welling case itself has been discussed distinguished rejected by both the oklahoma supreme court and the th circuit now we discuss briefly in our response the decision of underwriters at lloyd's of london versus north american band lines let me get my glasses out because i can't see close without them it's damages that were being sought against it and it was a substantial reduction actually from a jury verdict of seventy thousand dollars to only seven thousand five hundred dollars and the insurance company applied for its attorney fees and made this exact same argument you know it was just before the birth that was that was the cause of this conundrum well judge i've actually thought about that question quite a bit in this particular case because there were not separate feed very claims that were either pled or instructed upon or submitted to the jury if the only thing the verdict form is the only change we made in the verdict form was one line on breach  importantly for for for this appeal there are no issues concerning the jury instructions and verdict form that were preserved on appeal that's gone the only issue on appeal is judge post judgment orders on the motions for attorneys fees and costs and so if arguably there was some way to salvage this during the jury instructions in the verdict form that was submitted that's that's not know that there was some confusion on the part of the jurors about how to properly net out these competing claims under the same contract that's why they incorrectly filled out the form initially and then came back after a few minutes and correctly filled it out but again those issues whether or not the form itself should have delineated between different damage claims or if they have been properly planned separate legal theories that the issue of proper instruction to the jury in the use of the proper verdict form the those issues have not been preserved for you well on that point doesn't matter whether those documents the jury instructions in the form the posture in which they put the case to the jury when it made its decision in other words is it significant  essentially two sides of the same coing competing claims does it matter that that that would be the posture in which this was brought to the jury if the if that's not an issue on appeal there it is that's it you're stuck with it and that's what the way the jury viewed the case does it matter well if i'm following the question i don't think it ma dispute was presented to the jury for its resolution i think the jury instructions and verdict form are extremely compelling and relevant to this appeal because all parties at the time recognize this for exactly what it peeling claims for money damages under a single contract as judge he can characterize the opposite sides of the same coin that's clear throughout the pleadings that's clear throughout the final pretrial order that's clear not only in the jury instructions that were given but also those proposed even by wind and that's clear in the burden will we all recognize the only in the end how this was being instructed to the jury and what we were asking the jury to do is just kind of after the fact that this is morphed into well there were separate claims and there is this that and the other thing and so on the one hand i do believe the jury instructions and verdict form are relevant to this appeal to the extent when koz arguments depend upon the jury being properly instructed or a different verdict form should have been used that's what i'm saying has not been preserved for people but again at the the law in this situation is very clear let me touch on a couple of things and i'll wrap up i was referencing the other writers of lloyd's case in which an insurance company tried to say reducing damages is the same thing as the case that midwestern tomahawk reliable we are not based here with a situation where both sides were entitled to reasonable attorneys fees where each prevailed on a separate statute entirely  circuit in two thousand and fourteen doesn't go to entitlement that's just one of the factors that goes into quantum it just goes to reasonable notice it's to be considered by the trial court in the actual amount that's awarded and so all of this an