seventeen dash one three one eight manda versus phillip sixty six the company no i want to reserve three minutes to the right ok and just say you know that's your responsibility to keep track of that i will do that there's no evidence in this record that mr nanda reached his contract with philip sixty six i can say that was such conviction because philip sixty six did not introduce evidence regarding the salient predicate facts for the jury to find liability in turn without these predicate facts the jury ignored the contract and imposed liability based on some other reasoning that we can only guess at what facts were not covered for the jury sure the lower value what mr fisher testified to was that gas mart told them that they don't know the fifty thousand  because of a maintenance offset well is not something that the jury can decide with they believe based on that testimony so there is evidence of something online well that's very different though than what was the obligation in the contract the jury and where you're going your honor is that this was some sort of what the actual obligation was because your representation it's a representation as of february two thousand and thirteen subsequently gas part saying to philip sixty six that we don't know what because of this maintenance offset is very different th mr nonda misrepresenting in february of two thousand and thirteen that the books and records what's more your honor there's no evidence in the record that mr nada knew in february of two thousand and thirteen that gas mark was taking those offset moreover you have to remember even if mr nava knew in february of two thousand and thirteen the gas mart was taking this offset if you look at exhibits forty five forty six and forty eight in the record in our appendix those were the contracts between mr nada and gas mart and the obligation for maintenance was on gas marked it wasn't on mr nanda so it's very important to remember that because under no circumstances th could that receivable have been misstated this is all compounded further by the fact that phillip seven sixty six ignored the contract and never gave notice to mr nanda with regard to in opening opening doesn't cut it it's got to be you can cross it was raised at seven fifty seven twenty four and in closing at eight thirty three twenty through eight thirty six thirteen as well as eight seventy two five through eight would also can you what are you relying on for the obligation for their obligation to give you notice mail and notice was a material obligation here because if notice was given and then what does that say that the notice what what does that what notice has to be given in what circumstance under that section or when there is some material fact that's not as represented ok in the contract that you've got to go back to section five point seven b of the contract for that issue well it seems to me that that's what i fought and i think five point seven actually deals with whether any of their they have to give notice if any of their own representations were incorrect and you're suggesting that they have to give you notice if they think your representations weren't well eleven point three eleven point three though is more general you have to give notice of any sorts of breaches or or problems with respect to the contract you know mr nonda was held on his affirmative claims for the option strictly to the contract and it just can't have it both ways let me address the environmentalists ship to that's really the second bucket and the large remove and i'm looking at eleven point three and it discusses the form of notice if it's already required or permitted under the agreement but it doesn't create an independent obligation to give notice so i'm i'm still sort of in the camp with judge more ads on where the obligation to give notice comes from the cream under the contract it seems to me that if you claim a breach you need to give notice is there a place in the contract that you rely upon for that i thought it was five point seven ok i'm just i'm in the like i said eleven point three as well as a lot of point three in combination learned that one of the reps or warranties that you made under the contract are incorrect you have an obligation to notify the other party and to make a correction even if you put the notice provision though in the parking lot for now ok with mr mr nonda to represent accurately the receivable as of february two thousand and three there's no evidence that he did that let's say let's say we agree with you on the rent receivables evidence was insufficient don't you still have a problem though because the jury came back with i agree fifty thousand dollars but my understanding is jury didn't indicate whether a based on on the room receivables or the inventory receivables and those were both kind of together from what i can tell him and if the inventory receivables were misstated and there's evidence and there's evidence of that couldn't the jury just as easily a base that amount on that why would we exclude that what i'm saying yeah i understand exactly which i thought i get that it's a it's a strange figure fifty thousand dollars if it was based on the inventory receivables but and that and that was exactly what the receivable was but we don't know that focusing on i can't remember the name the clause the books and records are there particular clause in the contract when my understanding of their claim although it's not spelled out well in their brief either nobody really talks about what the actual alleged breach was here and i think their argument is that you breached the misrepresentation clause not the books and records clause which you seem to focus on with respect to the inventory issue in your the the contract contract t complaint the complaint says section three point one six well the complaint also refers to the misrepresentation three point two three accuracy of information the complaint does refer to that necessarily understand all your concern you seem to be talking about a breach of a different clause is what i'm saying when you were focusing on the fact that they didn't introduce any evidence that your books and records were inaccurate i'm not sure that matters to the misrepresentation cos i didn't see any correlation between the two clauses right but the point is that  at the time of the contract you need to assess whether it was an accurate and there's no evidence in the record at the time of the contract it was inaccurate the only evidence is the  testimony of the philip sixty six executives who subsequently say we went to gas mart and yes martin wouldn't pay because as maintenance issue and the problem with the maintenance issue is the maintenance issue was an obligation of gas mark as far as the environmental remediation issue though the plant of the power plant of philip sixty six relies primarily the crucial information as to when the contamination occurred in fact it says it's about new releases it doesn't say the connect contamination happened in february of two thousand and thirteen when the contract was objection right so you're a little late now to say that he wasn't competent to testify to it but he also testified subsequently without the hearsay objection that he had no personal knowledge of what happened in february of two thousand and seventy but he testified that for a sions they did any environmental assessment of those gas stations and discovered environmental contamination on all example leaking underground storage tank that it didn't happen instantaneously upon the sale date well the contract requires it to be february of two thousand and thirteen number one but exhibit two seventy eight the  the e mail says the new releases and you're at you're running out of your time in case you're concerned i understood understood well there's also the failure to invoice under section five point two two three three point three was a raise of prior to your motion for new trial that issue what was raised your honor was a failure trial the trial court i don't think unfairly conclude that with the with what the contract said and what the motion for new trials said i page took twenty of our appendix but it was generally argued philip sixty six did dot follow the contract that's eight seventy two call one five through six but there was a letter introduced and five twenty two five point twenty two point three please the court i'm clear wells hanson here representing sixty six the trial court acted within its broad discretion in finding that the jury's verdict was not clearly decided they are overwhelmingly against the w evidence mr brunow just spent much of the last fifteen minutes waiting through the evidence that came in a trial on top sixty six is to counter claims that are at issue here a year and a half ago judge blackburn did the same he he presided over a week long trial he made numerous rulings and then he rehashed that same evidence when he denied mr non his motion for a new trial he relied on his firsthand knowledge and doing so because mr  nonda only brought a rule fifty nine motion and he did not bring a rule fifty motion on this panel's task is to determine whether judge blackburn abused his discretion in coming to his decision he did not there are three main categories i'd like to discuss to die first the standard of review second and third the evidence that came in on the two counter claims that are at issue here today with regard to the standard of review mr bruno didn't discuss this at all but i'm typically this court would see resubmission c of the out of evidence challenges under rule fifty motion mr nonda did not bring a rule fifty motion at trial or after trial he only brought a r fifty nine motion for a new trial that means that instead of being a jew no review this is this is solely an abuse of discretion review the evidence must be viewed in the light most favorable to the apple e here and the apple e must be given the benefit of all and friends as fairly drawn therefrom this court has reviewed routinely viewed evidence in the light most favorable to the party opposing a motion for a new trial when can i cut in i i really would like you to focus your briefs are like two ships passing in the night nobody talks about what breach was alleged what was the breach of contract here what provision was breach was the jury told what provision was breached what did they decide about the breach what breach were you relying on yes your honor so we have two different breaches of contracts that were alleged first for accounts receivable in your counter claim correct was the jury told them yes did they decide based on each breach i didn't in the verdict form yes there was actually there were three different breaches of contracts alleged in the counter claim that sixty six did not prevail on the largest of the three it prevailed on the other two the verdict form did differentiate between the three different breaches i'm talking about the basis in the contract for the breach what provision was breached ok or for what which what are we talking about here are we talking about the and three point one eight is the book's three point eight is the books and records so you said both what you did the jury decide was breached the jury didn't the verdict form didn't state a specific provision  verdict form actually it's what i thought how do how do we even know what the jury decided was reached here the that evidence was put before the jury quite clearly as regards each of the three individual breaches that were a lad just one and they were there were disbanded and decide and they didn't decide which which provision was breached so when we're talking about sufficiency the evidence now we need to know which breach we're talking about to know whether the evidence was sufficient as to that breach for instance you identified in your counter claim three point two three and you seem to be referring consistently to misrepresentations that were made and yet that provision requires the misrepresentation to be of a material fact and i don't see where the jury was ever asked to decide was it a material misrepresentation so how and i get that this isn't what we're we're  the plaintiffs here but it's a little bit difficult we're talking about sufficiency the evidence to determine whether the evidence was sufficient as to the breach i understand your honor the the not state a specific provision that was breach but those provisions were covered sufficiently that's a problem that we can see about three point one eight i don't want to put words in your mouth what the jury didn't decide and i think that you know what we're hearing from the plaintiff is that this is this is a problem under under three point one eight under the books and records clause because you didn't put in evidence of a breach of the of that particular if we provision in and so i'm thinking all right well what evidence you know what provision are we talking about here you seem to be talking about the misrepresentation clause that there was evidence of of that i think that's important in deciding sufficiency of the evidence agree so ts and subsection decent as are reflected accurately in all material respects and the financial statements the financial statements is defined in section three point nine of the a p i and it says it includes the consolidated balance sheet of the seller the balance sheets list the accounts receivable it's one of the line items on the assets auction at the account of the balance sheet i understand all that was the jury asked to decide whether there had been a material misrepresentation under three point two three that the jury was not specifically in on the verdict form there were jury instructions given regarding these specific breach as there were these these specific provisions three point one eight at least was specifically read aloud to the jury via mr fisher is testimony and the jury in the verdict form does say it finds it differentiate found that after it's sites that it finds that we adequately prove breach of contract it says the difference between the value of the accounts receivable as represented by the plaintiff and the actual value of the accounts receivable i understand that but the the accounts receivable and their value is and isn't the alleged breach of the contract provision the jury has to know don't they what contract provision was breached i and  for instance and i keep asking you on the material misrepresentation clause if they were to find a breach of that provision wouldn't they have to find that it was a material breach yes but if i did they the jury was not given an instruction on the material represent misrepresentation clause they were giving an instruction on section three point one eight so when the plane of says that you needed to put in evidence of the books and records and what they said eat probably did it because it was a violation of the parent we the jury found a violation of that provision in the misrepresentation permission of the misrepresentation provision is although it was cited in our counterclaim that's not the representation that is not the provision that philip sixty six relied on at trial three point one eight is the is the provision that philip sixty six relied on at trial and it does in that representation mr nonda i tested that the value of the accounts receivable was accurate it was display correctly in the financial statements mr fisher also testified so so do you need to put on evidence of the books and records as they existed and what why they were inaccurate then we did put on yes the the yes to the second part of that question we did put on evidence as to why they were in accurate we did not need to put on evidence as to his we didn't need to present his actual books and rock herds as mr nanda alleges in his briefs here because that's it's a specific it's sort of like best evidence here it's a specific type of evidence that he would like to us to have presented that is not the evidence that we presented but the evidence that we presented was adequate well that asset purchase agreement includes the estimated account receivable yes that in and  rent receivable for the inventory receivable and philip sixty six paid money for those they paid over a million dollars for these receivables that were supposed to be collectable and ultimately were not and he did to the accuracy of that schedule to the a a p a yes yes a heart of the greenman yes there was significant testimony on the the purpose of the purchasing of the accounts receivable and the amended a p i what he what it was valued the value given to philip sixty six and then what the value differential was what they were not able to collect on the as the court noted earlier it because the verdict form didn't differentiate between the specific receivable all that was breached in this case if either or if either of the inventory or the rent receivable was sufficiently supported at trial then then judge blackburn's decision can stand it certainly appears the jury rejected your inventory receivables argument claim it could have been it could have been that they found fifty fifty thousand dollars of the inventory receivable to be compelling it is of course we could make that assumption but the assumption doesn't need to be made and probably shouldn't it shouldn't be made  because there wasn't a differentiation we don't know what the jury was basing its decision on an inventory receivable as you know it was over three hundred thousand dollars to fifty thousand dollars could have been a portion of that regard to the inventory receivable i'm sorry with regard to the rent receivable mr nonda represented that it was worth fifty thousand dollars it was ultimately word zero because mr nonda gave an offside to gas mart that was the the testimony mr fischer gave it page five hundred seventy three he testified that mr nonda did not disclose to philip sixty six the fact that gas mart was claiming an offside so the jury could have clearly interpreted this to regard to the remediation mr nonda alleges that there were four prerequisites for remediation but only one the first of the four was an actual prerequisite the next three were not the the first is that the contamination needed to have existed at the time of the close philip sixty six agrees understands that mr schnitzler testified on page seven hundred fifty seven lines fifteen to seventeen and i quote based on the work m yes it was concluded that contamination had occurred during the time period mr nonda the assets it was unequivocal e before the jury this is easily sufficient to support the jury's a word here the next three alleged prerequisites are not prerequisites at all to numbers of two and three the envoys and the account the explanation as to why the costs were covered or reimbursed i'm first judge blackburn as i think judge kelly you noted he by in his order denying a motion for a new trial he deemed this argument waived because it was not raised at trial because we're in will fifty nine  territory there's no need but once it's confirmed that that argument was not raised at trial there is no need to dive further into the evidence but if we do so a p a section five point two two point three it doesn't actually require than an invoice an explanation be provided all it says is that mr non does duty to pay arises thirty days after receipt of an invoice so it's a it's a tiny mechanism it doesn't say philip sixty six or it doesn't say nanda didn't breach or doesn't bleach if philip sixty six doesn't provide this an invoice he the his duty to pay  arose because it wasn't covered contamination and then the explanation the invoice and the explanation just trigger when his payment is due there's no dispute now that mr nanda knows that  eleven point three first of all the written notice requirement is not raised at all and mr non his motion for a new trial it doesn't mention the written notice requirement it doesn't mention eleven point three so we can't show an abuse of discretion because  facing us but second eleven point three doesn't require notice again this is not a prerequisite it just says notice shall be deemed sufficient if given in writing via these mailed you know overnight or certified mail so it doesn't say any note as required under the a p a must be given in writing or else a breach somehow doesn't count it just says you know it's deemed sufficient if it's given in writing regards to five point seven this is only raised mr not only raise a section five point seven with regards to the accounts receivable counter claim not with regards to the remediation counter claim and you're out of time so feel just wind up for the reasons that we discussed i asked of the court affirmed the judgment thank you very much thank you it was well take this matter under advisement thank you council for your argument and we'll call the next matter