the trial court's dismissal of our case we believe that the dismissal of arrow's breach of contract claim against harper was unfair because it was based on an improper and incorrect finding the facts we also believe that the dismissal of arras miller act case against hartford was an error because it was done sue a spontaneous without prior notice or opportunity to be heard and was based on an accurate understanding an erroneous application of the law the trial court erred by making factual findings that the motion to dismiss stage resolve contest surrounding the facts the merits of the claim or they put the billet defenses that's precisely what the trial court did in this case the trial court result contest surrounding the facts by determining that arrows claim was a delay claim yes i believe the trial judge was wrong in reading that exhibit and i'll address that in a nd drawn or but it also states that it doesn't include costs for delay so the same exhibit c says that this proposal does not only include any cost amounts for ration over time unforseen conditions change in sequence of work celebration disruptions and impacts and that specifically noted otherwise extend a contract to rationed over time unforseen conditions those are all the late document because it was not a document upon which the claim was based th circuit in goings said that the court can consider a document that's attached to the complaint if the  document is a document upon which the claim is based if it's essential to the complaint then the court can consider it but if it's not a document apologise to the claims based then it's inappropriate for the court to consider it and the court and goings also discussed the number numerous reasons why a party or plaintiffs might attach a document to a complaint not all of which relate to the even the truth of the document or this or whether the document is essential to the complaint in this case we attach documents of the complaint simply to show that we asserted a demand upon harper for payment of our claim which was denied and that's that specifically stated in a complaint exempt complaint paragraph thirty and that's the only reference to the area in the entire complaint so we do believe that the court error in considering that document because it did not take the court the th circuit's guidance and goings into account perhaps misunderstood catches the document to the complaint that you support in a way and still you take it now you have another argument about whether what the court took from it was correct but i think that the corporate line in the document i think that's a hard row to hoe for you and i haven't heard you say the reggie anything you've said that ok and i appreciate i appreciate the question your honor so this document is change notice as alternate to alternatively would refer to as an r e a request for equitable adjustment to the contract for additional costs that  kurt on the project there's no costs are incurred on the project or destruction costs and disruption and delay costs are different delay costs related to the additional costs that are incurred as a result of the extension of time lay disruption caused there are there is your honor that's correct and that's the reason that's kind of a hard argument for you did you make the argument to the district judge that this document plainly said it was one or the other those things and that you had further documents to prove the kind of cost that you think you are entitled to so we did not make the argument that the document plainly says one thing or the other either delays or disruption but we did make the argument that it was that the claim soft disruption damages because of the nature of the cause of the claim and because of the way that it was the way that it was computed and the items that are included in the claim so the court will know that the items included in this claim are not delay items they're not time based costs they're not but you and i have just been through this the fact that there seems to be disarray about exactly what the line in between these two kinds of costs so you did with your proffer to the district court that we have district court about that but you're out of this is a motion to dismiss is not a motion for summary judgment so even the consideration of what this claim is depends on the facts underlying and i think your honor sort of highlighting that by asking whether or not there is a proper made with respect to evidence that's not what the standard is on the motion to dismiss the standard on the motion counsel in a just a click i was your honor  the standard on a motion to dismiss is whether or not the complaint is legally sufficient the court is not supposed to get into the merits of the claim or even whether or not the plaintiffs may or may not have a chance to win if the complaint is legally sufficient then the complaint should not be dismissed on summary judgment if you know that that's when it's appropriate to determine whether or not this is a delay claim or it's a disruption claim or it's a hybrid claim or something along those lines but not at th your purpose of touching this document so in complaint paragraph thirty we attach that we state specifically that we're attaching the documents in order to show that we demanded compensation but i thought that your claim to your argument to us in this document does not include an outline of the cost which you aren't on i believe the document disruption cost is a right no that's not right your honor if we were like you can't think you're entitled to we we believe we're entitled to disruption costs we if we had to lay costs on this project then we would have we believe that we were entitled to those as well but we did not have to lay costs on the project and we're not seeking compensation for delay costs on this project all we're seeking compensation for is the additional costs we incurred because we had to do this project in an efficient and non the district court to take a look at this document and as your honour's is sort of alluding to there is a dispute as to what this document is and make a factual finding that this document is in fact a delay claim that this document is in fact not a disruption claim and then proceed to dismiss the case based on the court i believe we told the district court that these were destruction costs and that these costs were substantiated will as a matter of fact your honor prior to the hearing on the motion to dismiss we have produced an expert's report to the defendant's where we substantiated the cost not the cost that we have in the complaint a lower number that we did substantiate a significant claim for for disruption that come with an expert something which the principal is not liable and we briefed cases or we showed judge trying to cases in the original motion to dismiss that that stood for the opposite position that that under the the liability of the surety and its principle are not coextensive and judge trend concluded the hearing on the motion to dismiss by saying that he needed to take a look at those cases because that's not what his understanding was  reformers are i'm unaware of a case in the th circuit that specifically explains what the requirements of the miller act are i think that this is the case for the court to do it but we don't have any  with respect to this particular issue that hama where of there the th circuit in walton is pretty well accepted across the country there aren't any other cases saying any you know that that rule against it and it says that evaluate when a sub contractor had a claim how to measure how much the so contractor was entitled to and the act at that time said the sub contractor was entitled to quote  and quote and the th circuit had to determine justly do as measured by what and determined that the answer was measured by the sub contract the act has been slightly reply brief because it goes right to what intent and to a question the judge frank asked on the motion to dismiss the original complaints a judge trying to form the hypothetical in which he said you know what if a subcontractor is out and mr harrison represented an arrow at that hearing said yes it can and i posed a similar hypothetical in our response rates in which i said you know if the principle as articulated by arrow is correct that under the miller million dollars there's no allegation that any penny of that eight million dollars wasn't paid so there's been a cost overrun and now arrow has spent ten dollars or eleven million dollars under arrows reading at the miller act i believe it will be entitled to all ten or eleven million dollars in other words the fixed price of the sub contracts thrown out the window as against the surety because it's because miller just says they get their costs and that's arrow's reading i think our reading is consistent with the four sort of decision and wouldn't send that no before the miller act says that the sub contractor gets the amount due as measured by the sub their well pleaded that's right yes i guess the one thing that i just don't want to leave unsaid your honor they allege in their reply brief or they cite in their  and we have to consider what they lead in their complaint absolutely that they gave prior written notice as required i don't see anything that in that that's so then they complied with so what they did your honor they well it's my st one is well your honor but i think it is still the right call here because if there's no claim against the principle then there's no claim against the surety and so it would sort of be i think it would be a waste of judicial resources to send it back just to go through the nor did counsel for arrow and i think that would have been their point to make and i think judge trying to get invited at the end after he had announced what he was going to rule and and he said is there anything else and he paused looked around and no one said anything and then entered the order later that day and you know aaron never piped up and said wait a minute there's been no motion by the surety nor did arrow for that matter file a motion seeking reconsideration to say hey your honor there was  no motion pending which could have been cured quickly if it had  i'd like to return to judge mots point about the notice i mean i think we the they are clearly aware that they have a problem with notice and they danced around it and they're there pleading and i think that pleading has as i think they were trying to be as accurate to the facts as they could knowing that there had been no written notice and i guess i should be careful because obviously the court is only exhibits didn't state a claim and that's the end of it there's no race judicata of any sort so but i think what what's happened here judge mosfet to to go back to your point the exhibit c is a very clear written notice and it really calls out the absence of any prior written notice because now with exhibit c we have the time it sets forth the dates that the  alleged offenses occurred and it also sets the date when the when the written claim submission occurred so now we know that it's in writing and when it was given and i think it goes back to the exhibit prevails rule and it's almost similar to the specific prevails over the general and in the specific they're very clearly saying they submitted a late written notice and in their allegations all they say is that they gave notice that they notified harper but they don't say what is clearly required by the contract that the notice was in writing and was timely and so i think it was well prevails rule applies to every incident of conflict between exhibit and the complaint well it certainly does or does it apply only when the exhibit negates the allegations in the complaint and that's my point i'm not so sure that this exhibit negates the allegations in the complaint i mean i don't i guess i don't understand why they put it in but there are lots of things lawyers do that i don't understand  would allow the trial court's decision to stand the st was that exhibit c was late notice they had not submitted timely written notice of the contract the nd is that the damages set forth in exhibit c which very clearly is what they're claiming i mean the dollars match up to the to the quantum add up to the dollar were barred by the sub contractor and so even if you were to find and and i think it's really hard pressed and you know i think counsel is doing its best job but i have if you look at exhibit c and turn to page one hundred and thirteen of the record it calculates delay days and delay costs it says it's not the entire delay and you know mr robbins referred to where where the form on which the ari is created it says that this is you know not for disruption and i think all that means is that if you read it in context i think what you'll see is that the form is just saying we might submit something else later and it might fall into one of these laundry lists of  categories on page one kind of the record they say you know this does not include costs amounts for extending contract rationed overtime unforseen conditions changes the sequence of the work it goes on and on and on that's just a form which is trying to reserve the right to submit something else later but in terms of what they do submit in exhibit c it's very committee that means that they don't see you want us to go be on where we are on the  that doesn't prove what they have to prove and they have to come up with this later but we're doing is looking at what they're alleging i think what they allege here is a delay claim i don't see how it could be anything else right  it's pretty early in the name like now so i think the the point here and i think the point of a review of a twelve b six you know a decision on it will be safe is merely to say does this claim a claim yes or no and it does are allowed to go forward and that's the standard and i think what judge trying to did is he looked at this de lay claim and he looked at the contract which is exhibit b and he said that doesn't state a claim because that claim that it does state the damage  does see occur very clearly bar by the contract ok what if there were no and if you want to look because these documents still exist and they're non controversial there's no to swell they are when they are but they were they would be before the district court right because my you're absolutely correct and ordinarily the court looks at the four corners of the complaint but if you re going and going to actually discuss this extensively circumstances where courts on a twelve b six motion can consider documents that are outside we may consider a document submitted by the movement that was not attached to or expressly incorporated in the complaint so long as that document was integral to the complaint and there is no dispute about the documents authenticity and i think these two exhibits would fall into that category so i think the question your honor is you know if they work to refile this tomorrow without exhibits b n c i think we would argue that the court should consider exhibits b if they were to refile tomorrow not include exhibits b and c and change the complaint to have some you know some other damages not this two million one hundred thousand at this precise dollar amount and  explain and some other way how it's something that's not barred by the contract and then we have to take that take it on its face and evaluate it you know read a paragraph fifty three of the complaint think lead that they have met all the conditions precedent right that i mean i guess that i think that that that's like saying that they have not i'm not sure what particular condition precedent is in play here well all at all but you haven't written  would be one condition precedent and i don't know that that's a condition precedent i think there's a provision and section twenty six of the sub contract that says if you want to submit a claim under the sub contract you have to do so and  some you know ministre to remedy that they had to exhaust that sort of thing but i don't think anything in section twenty six a subcontractor characterizes compliance with that as a condition precedent and i don't think and if you  see is meant to supplant the obligation that they played under the contract that they're entitled to it i mean on the old days when i started practice you'd follow a one page breach of contract compliance and i comply with a contract you didn't end of story to plead the details of the contract and how you're entitled to recover it under it when you have any case law that deals with language like we have we complied with all the conditions present in the contract on a finding by the court that that doesn't  failure to comply with condition proceed and result in a waiver so it's really two sides of the same coin the notice is a condition proceed in and we act if we fled the condition proceeding in accordance with the requirements of the federal rules whether or not the notice as a matter of fact was sufficient whether it was written whether it was oral whether was timely whether contained all the right all the right information and that that's not something that is considered at this stage that's something that a trial find fact needs to consider at the later stage of the game but at this point i think i think your honor is correct in that you know we've pledged to report as required by the federal rules and and you know this case should not have been dismissed based  on the factual findings that the court made and even though the court didn't come straight out and say i find that x y and z the implication of the dismissal is you know shows that the court did make factual findings the court found that the hoary a was a delay claim the court found that arrow failed to provide written notice you know that that we believe that that was inappropriate and that that was an  know judge floyd asked about the suspended dismissal of the miller act claim and i believe is one hundred percent correct we didn't receive any notice hartford didn't receive any notice and harper didn't receive any notice either you know they the court to dismiss the case he addressed the exhibit prevails rule in his argument you know we were caught off guard and you know it was not your concern hartford council not something didn't belong dismissal of our miller act claim against hartford was inappropriate because the you know the harpers liability is not derivative of harper's liability insurance liability is not derivative of its principles liability under the another case involving aero said the exact same thing and unlike the clauses at issue in washington and taylor construction which affects how confiscation was to be measured clauses that issue here would affect arrows right to  the seminal one that says quite the opposite that the prince under the miller act the principle of liability has the surety of liability is not determined with respect to the principles liability as a matter of fact the th circuit in more brothers reach a similar conclusion on a on a private bond case and in that case the the court held that the share the surety was not entitled to rely on its principles no damage for delay clause because to allow the sure extensive especially when it goes to defeat the purpose of the payment bond in the miller act the case law is expressed and says that and even if the case law didn't say that the purpose of the miller act payments on is to pay the the sub contractor for the thank your honor the court will take a brief break before hearing the next case