[00:00:00] Speaker 02:
Case number 19-7010 et al.

[00:00:03] Speaker 02:
United States of America for the use and benefit of American Civil Construction, LLC versus Uranium Engineering and Lens Surveying, BC, Colonial Surety Company at Balance.

[00:00:14] Speaker 02:
Mr. D'Alene for the at-balance cross appellees, Uranium Engineering and Lens Surveying, BC, and Colonial Surety Company.

[00:00:22] Speaker 02:
Mr. Brownlee for the appellee cross appellees, American Civil Construction, LLC.

[00:00:28] Speaker 06:
Good morning, Council.

[00:00:29] Speaker 06:
Please be seated.

[00:00:31] Speaker 06:
Mr. Delaney, please proceed when you're ready.

[00:00:38] Speaker 07:
Thank you, Your Honors.

[00:00:39] Speaker 07:
May it please the Court, we're back before this Court for the second time to resolve the remaining issues that are left after an opinion and judgment from this Court in June of 2020 that affirmed the United States District Court's judgment in favor of a subcontractor

[00:00:59] Speaker 07:
finding that the proper measure under DC law measuring damages was for an express contract was restitution damage.

[00:01:08] Speaker 03:
Would you state the record which party you're representing?

[00:01:13] Speaker 07:
I'm sorry, Your Honor.

[00:01:14] Speaker 07:
I represent the Appellants Colonial Surety Company.

[00:01:18] Speaker 07:
With me is Mr. Shore, who represents Harani.

[00:01:21] Speaker 07:
He will not be speaking unless the court has any questions.

[00:01:26] Speaker 03:
Thank you.

[00:01:30] Speaker 07:
So as I was saying, this court previously affirmed the award of damages on a breach of contract restitution basis, finding that there was an express written agreement, and remanded for additional fact findings on Colonial's first appellate point, which was whether or not the claim against the Miller Act surety was barred by the one-year limitation period.

[00:01:57] Speaker 07:
We had our additional findings back,

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It didn't go Colonial's way.

[00:02:02] Speaker 07:
We have subsequently withdrawn.

[00:02:05] Speaker 03:
I thought you withdrew that.

[00:02:07] Speaker 07:
We did, Your Honor.

[00:02:09] Speaker 03:
What's the next issue?

[00:02:12] Speaker 07:
Well, the third issue that we're going to be withdrawing today has to do with the evidentiary issues, which related to... The only issue is the damages award.

[00:02:25] Speaker 07:
That's correct, Your Honor.

[00:02:27] Speaker 07:
On the appeal, there's one issue remaining on the cross-appeal.

[00:02:30] Speaker 07:
As for Colonial's appeal, it's whether or not once the district court has found and this court has affirmed that breach of contract and express contract is the proper theory of recovery and has awarded damages on a restitution basis, whether or not it was reversible error for the district court

[00:02:52] Speaker 07:
to also stray into the quasi contract realm and award quantum Merriwet damages against the Miller Act sure.

[00:03:01] Speaker 07:
It's our contention that that is reversible error and that there is no strongest authority.

[00:03:07] Speaker 07:
There is no authority that supports what the district court judge, uh, what the district court did.

[00:03:13] Speaker 07:
Your honor, all of the authority, our authority is that

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The Miller act incorporates the general principles of surety ship that the sureties liability is coextensive with that of its own principle.

[00:03:31] Speaker 07:
That's Johnson case that we cited.

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There are multiple Miller act cases where

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The court says yes, these general principles of surety ship exist in the Miller act.

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All the Miller act does is it creates a effectively mechanics lean statute for federal projects.

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And it gives those claimants who did work on those projects the right to pursue a surety.

[00:04:01] Speaker 07:
But in that surety, in recovering that surety, we have to determine which world we're living in, whether we're living in the express contract world or the quasi contract world.

[00:04:13] Speaker 03:
Well, the district court pulled on that.

[00:04:15] Speaker 03:
And what is wrong with its ruling?

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He said, this is not in the nature of quasi.

[00:04:21] Speaker 03:
Merritt, it's an express contract, so this is a claim in the nature of restitution.

[00:04:28] Speaker 07:
Well, the district court did both, Your Honor.

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The district court kind of has one finger in each pipe.

[00:04:34] Speaker 07:
The district court said, as against Harani, the proper measure of subcontract damages under the express contract

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is restitution, and this court has previously affirmed that.

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However, the district court then strayed outside the contract world into quasi-contract world and awarded damages on quantum Meroit against the surety more than triple the amount of damages that it had previously awarded against the general contract.

[00:05:04] Speaker 06:
Well, I mean, for Harani, it would reach a contract action under D.C.

[00:05:08] Speaker 06:
law, right?

[00:05:09] Speaker 06:
Yes, Your Honor.

[00:05:10] Speaker 06:
And for a colonial,

[00:05:12] Speaker 06:
it's an action under the Miller Act.

[00:05:13] Speaker 06:
That's correct, Your Honor, but that doesn't change what remedies are available to, again, it could conceptually because you could have, I take it the question under the Miller Act is a question of federal law.

[00:05:25] Speaker 06:
100% correct.

[00:05:26] Speaker 07:
Yes, Your Honor.

[00:05:27] Speaker 07:
But the case law still says we still look to the subcontract because the Miller Act, the idea behind the Miller Act is a reasonable value of labor and materials that the party provided to the contract.

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across the country interpreting the Miller Act say, you look to the express contract to determine what that reasonable value is.

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When there's already been a determination that's been affirmed, yes, the contract exists, hasn't been repudiated, one of the various, you know, that wasn't procured by fraud, something like that, where you would then leave express contract and go to quasi.

[00:06:03] Speaker 07:
Even under the Miller Act, you still look to the express language of the written agreement to determine what parties themselves determined the reasonable value of that labor and materials were.

[00:06:15] Speaker 07:
There are several cases in the record, including Metzger, which specifically said the Ninth Circuit specifically said it's not the intention of Congress in enacting the Miller Act to go outside the scope of the underlying bond principles liability.

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Be that in

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express contract or quasi-contract.

[00:06:36] Speaker 07:
There are times when quasi-contract is the correct measure of recovery, but it's against both entities.

[00:06:42] Speaker 03:
So let me ask you then.

[00:06:46] Speaker 03:
Harani took the position before the district court that it was financially unable to pay.

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Is that correct?

[00:06:56] Speaker 07:
That's incorrect, Your Honor.

[00:06:58] Speaker 03:
Incorrect?

[00:07:00] Speaker 03:
Where did it tell the district court that it stood ready, willing, and able to pay?

[00:07:06] Speaker 07:
It didn't tell the court that it stood ready, willing, and able to pay, nor did it tell the district court that it lacked the ability to pay.

[00:07:17] Speaker 03:
ACC has quoted language in the record

[00:07:29] Speaker 03:
about financial situation and that it was unable to pay.

[00:07:38] Speaker 07:
Judge that it's not in the record.

[00:07:41] Speaker 03:
The only document he quoted it.

[00:07:45] Speaker 03:
I mean, if it's a misquote, that's one thing, but it is in the record.

[00:07:51] Speaker 07:
Judge, the only document that I'm aware of in the record is a document that Harani gave to the surety after the bid results were released, in which case Harani substantially underbid the contract

[00:08:05] Speaker 07:
And in order to permit the surety to step in, in the event Harani fell down and couldn't complete, because the surety provides not just the payment bond that ACC is suing under in this case, the surety also provides a performance bond to the government.

[00:08:23] Speaker 07:
And if the surety were to interfere with Harani's contract with the government, it could conceivably open itself to tortious interference with contracts

[00:08:34] Speaker 07:
allegations.

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So in order for the surety to issue the final bonds, it required Harani to send a document to the surety that effectively said, we lack the ability to finish this contract.

[00:08:46] Speaker 07:
We want the surety to go in.

[00:08:48] Speaker 07:
That's the only reference.

[00:08:50] Speaker 03:
That's the only wrong with that.

[00:08:54] Speaker 07:
I just explained the context of that, Your Honor.

[00:08:57] Speaker 07:
Karani is a functioning company to this day that's still betting on and performing public work.

[00:09:02] Speaker 03:
Well, that's after the fact.

[00:09:04] Speaker 03:
We're talking about the record that was before the district court when it ruled.

[00:09:09] Speaker 03:
And you just quoted the language.

[00:09:14] Speaker 07:
And I also explained the context of what that document was for, Your Honor.

[00:09:18] Speaker 07:
There was no testimony on that point.

[00:09:20] Speaker 07:
And frankly, that's immaterial to the court's analysis.

[00:09:24] Speaker 03:
So where before this court have you said Harani was ready, willing, and able to pay?

[00:09:34] Speaker 07:
I've never said it, but frankly, Judge, it's not an issue.

[00:09:42] Speaker 03:
You're saying the surety should not be, its liability should not be coterminous with that of the prime contractor, correct?

[00:09:53] Speaker 07:
No, Judge, the contrary.

[00:09:54] Speaker 07:
The surety's liability is coextensive with the general, its bond principle, the general contractor's bond liability.

[00:10:03] Speaker 03:
The problem here is that- Well, I think you're playing with words here, Council.

[00:10:06] Speaker 03:
As I understand- Not at all, Your Honor.

[00:10:08] Speaker 03:
With all due respect.

[00:10:09] Speaker 03:
Not at all, Your Honor.

[00:10:10] Speaker 03:
With all due respect.

[00:10:13] Speaker 03:
Let's assume you're not playing with words.

[00:10:16] Speaker 03:
But nevertheless,

[00:10:19] Speaker 03:
It's under, well, Mr. Bowd can clear this up, I assume by the record, but I don't understand if it's coextensive, then the only question is what?

[00:10:31] Speaker 03:
Does it owe anything or does it only owe what Hirani failed to pay to ACC?

[00:10:44] Speaker 07:
But thank you, Your Honor.

[00:10:45] Speaker 07:
I see my time is almost up and I can answer.

[00:10:47] Speaker 07:
To answer your question, Judge Rogers, are the sureties position is not that we don't owe ACC.

[00:10:56] Speaker 07:
We owe ACC zero.

[00:10:58] Speaker 07:
There's already been a determination, excuse me, under the existing subcontract.

[00:11:05] Speaker 07:
So it's the sureties position that the basic principles of surety law, which also applied through the Miller Act are that the sureties liability is co-extensive with Harani's liability.

[00:11:17] Speaker 07:
The judgment against the surety should be $586,000 and change, not the two point something million dollars entered by the district court on a quasi contract theory.

[00:11:28] Speaker 03:
Thank you.

[00:11:30] Speaker 06:
Thank you.

[00:11:30] Speaker 06:
I have one question for you.

[00:11:33] Speaker 06:
It's just 50 years for a second.

[00:11:35] Speaker 06:
There's the argument about the statute of limits, and then there's a related argument about hearsay, double hearsay.

[00:11:41] Speaker 06:
And I just want to understand your view, because argument one, you're no longer pressing.

[00:11:47] Speaker 07:
Right.

[00:11:48] Speaker 07:
Based upon what happened with the reading man findings, we weren't going to win.

[00:11:54] Speaker 07:
We withdrew it.

[00:11:55] Speaker 07:
In preparing for today, I realized

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We also have to withdraw the evidence question because those rulings dealt with documents that were being used by the plaintiff to show what their last date of work is.

[00:12:07] Speaker 07:
If that issue's out, the evidence issues have to come out as well.

[00:12:11] Speaker 07:
I apologize for not discovering that until the last minute, but this is my first opportunity to withdraw.

[00:12:18] Speaker 06:
So we can take your statement at this point as saying that you also withdraw issue

[00:12:23] Speaker 06:
The 3 or 4, I can't remember which one it is.

[00:12:27] Speaker 06:
3.

[00:12:27] Speaker 06:
Great.

[00:12:27] Speaker 07:
1's out.

[00:12:28] Speaker 07:
3's out.

[00:12:28] Speaker 07:
2 is in.

[00:12:29] Speaker 07:
That's the divergent award.

[00:12:31] Speaker 07:
Yeah.

[00:12:32] Speaker 07:
But 3's out.

[00:12:33] Speaker 07:
Out.

[00:12:33] Speaker 06:
Okay.

[00:12:34] Speaker 06:
All right.

[00:12:35] Speaker 06:
I'll clarify that.

[00:12:36] Speaker 06:
Any more questions?

[00:12:37] Speaker 06:
Thank you.

[00:12:38] Speaker 06:
I don't think we have questions at this point.

[00:12:41] Speaker 06:
We'll give you a little rebuttal time.

[00:12:45] Speaker 05:
Thank you.

[00:12:45] Speaker 05:
We'll give you a little rebuttal time.

[00:12:46] Speaker 05:
Thank you, Council.

[00:12:47] Speaker 05:
Thank you.

[00:12:51] Speaker 05:
Mr. Broad.

[00:12:54] Speaker 05:
Thank you.

[00:12:54] Speaker 05:
I think you're on mute.

[00:12:58] Speaker 05:
Or at least we're not able to hear you.

[00:13:02] Speaker 02:
Stand please.

[00:13:03] Speaker 02:
The Honorable Court will now take a short recess.

[00:13:05] Speaker 02:
The Honorable Court is again in session.

[00:13:11] Speaker 05:
Please be seated.

[00:13:13] Speaker 06:
Mr. Broad, I believe we can hear you now.

[00:13:17] Speaker 06:
Yeah, we can hear you now.

[00:13:18] Speaker 06:
Thank you.

[00:13:19] Speaker 06:
Please proceed.

[00:13:20] Speaker 00:
Thank you.

[00:13:23] Speaker 00:
for allowing me to appear remotely.

[00:13:25] Speaker 00:
I'm sorry for the problem.

[00:13:27] Speaker 00:
All right.

[00:13:29] Speaker 00:
To answer a judge, Raj, the Verrani on supplemental appendix 1102 stated they were insolvent.

[00:13:52] Speaker 00:
a colonial took over all payments and made or didn't make all payments under their escrow account.

[00:14:11] Speaker 00:
So the fact that our client, American Civil Construction, wasn't paid

[00:14:22] Speaker 00:
from November of 2011 through termination was because Colonial didn't pay them.

[00:14:35] Speaker 00:
Colonial controlled all the payments.

[00:14:42] Speaker 00:
Harani is a group.

[00:14:46] Speaker 00:
They have a different company, which sounds like Harani.

[00:14:52] Speaker 00:
engineering because we've looked at that run by Jim Harani's son.

[00:15:03] Speaker 00:
As far as what we know that they've always remained insolvent.

[00:15:09] Speaker 00:
But that's I'm not here nor there, but that does answer

[00:15:16] Speaker 03:
Well, of course, Council for Colonial argues, quote, the context, close quote, of the statement to which you are referring as not quite indicating what you're saying.

[00:15:34] Speaker 03:
My question here, though, is when the district court entered awards of 2,568,000,

[00:15:45] Speaker 03:
Was it clear from the judge's order, those different amounts and the theory underlying them?

[00:15:59] Speaker 01:
Yes.

[00:16:03] Speaker 00:
What Judge Metta was finding is that that amount that was awarded

[00:16:13] Speaker 00:
included all the change orders.

[00:16:17] Speaker 00:
If you go to the takeover agreement that was signed between the government and colonial, they recognized it was $800,000 of change orders that went into the colonial pot

[00:16:42] Speaker 00:
uh for uh a payment also there is a letter written by eric harani in the response to the show cause letter dated february 25th 2013 written by harani engineering saying that

[00:17:09] Speaker 00:
There were approximately a two-year delay because of 77 change orders that was issued by the government in the amount exceeding $500,000.

[00:17:28] Speaker 00:
And that is that statement is found exactly on SA 26

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30.

[00:17:42] Speaker 00:
To date, completion of the project has been affected by the large amount of change orders, which has been required to be completed in excess of $500,000 issued by the government.

[00:18:00] Speaker 00:
That has been directed and performed, increasing the project scope.

[00:18:06] Speaker 03:
So is there any prejudgment interest included in that 568,000 award?

[00:18:11] Speaker 00:
In the award against Taranti, yes, there was.

[00:18:22] Speaker 00:
It was prejudgment interest issued on both, I believe, by judgment in the amount of approximately 6%.

[00:18:33] Speaker 03:
Right.

[00:18:35] Speaker 03:
What I'm getting at is their overlap there.

[00:18:42] Speaker 03:
In other words, the 568 was just supposed to be as a result of the change orders.

[00:18:49] Speaker 03:
But it also included, did it not, some award of prejudgment interest?

[00:18:58] Speaker 00:
Yes, it did.

[00:19:00] Speaker 03:
And how did it?

[00:19:01] Speaker 00:
It did.

[00:19:05] Speaker 00:
The award against Harani was for only 85% of the base contract work.

[00:19:15] Speaker 00:
If one looks at the contract on Harani, that Harani signed with ACC, I call it ACC American Construction.

[00:19:33] Speaker 00:
It just says,

[00:19:37] Speaker 00:
in article four on AA 279, article four, changes in the work, that you will proceed with the changes in the work.

[00:19:48] Speaker 00:
It doesn't say how you get paid.

[00:19:50] Speaker 00:
It doesn't say what normally every construction contract says how you get paid, whether you get paid a unit price, whether you get paid.

[00:20:01] Speaker 00:
It just says you have to proceed and you can't stop.

[00:20:04] Speaker 00:
And basically our client

[00:20:06] Speaker 00:
ATC never stopped until the prime contract was terminated and they were directed to stop after the September 1st date by Hirani.

[00:20:29] Speaker 06:
Can I ask you a following question?

[00:20:30] Speaker 06:
So you don't take issue with the proposition that if the

[00:20:35] Speaker 06:
award against Colonial and the award against Arani for the same work that you can't recover against both of them for the same work, right?

[00:20:47] Speaker 06:
That would be a double recovery.

[00:20:48] Speaker 06:
And that's just not something that the district court presumably intended to do.

[00:20:53] Speaker 06:
And that's not something that you're claiming you're entitled to.

[00:20:56] Speaker 00:
It is certainly not the same work.

[00:21:01] Speaker 00:
One was 85% of the original scope of the work.

[00:21:08] Speaker 00:
The scope of the work was substantially expanded by the 27 modifications, suspensions, different site conditions, and change directives, and the design that took an eight month

[00:21:32] Speaker 00:
agreed upon schedule.

[00:21:35] Speaker 00:
That's what Harani and ACC agreed upon, an eight-month schedule.

[00:21:42] Speaker 00:
And it lasted for 25 months until it was terminated.

[00:21:49] Speaker 00:
And then Judge Metta wrote three marvelous, well-defined published opinions on this case.

[00:22:02] Speaker 00:
The only problem I had with Judge Metta was on not covering the reasonable value of the supervision of the eight workmen that had to be done.

[00:22:23] Speaker 00:
On-site supervision is covered by labor under the Miller Act.

[00:22:31] Speaker 03:
So let me ask you, one of the key cases here is the Eighth Circuit opinion, which the district court does cite.

[00:22:41] Speaker 03:
And the district court there, Judge, Eighth Circuit Judge Kaufman, he argues

[00:22:55] Speaker 03:
that the standard goes through Supreme Court cases, other circuit cases, even cite some cases from this court for the proposition that the Miller Act is to be liberally construed to be sure these workers get paid.

[00:23:12] Speaker 03:
Judge Kaufman writes for the Eighth Circuit,

[00:23:15] Speaker 03:
quote, Thus, the on site supervisory work of a project manager falls within the purview of the Miller Act.

[00:23:25] Speaker 03:
If such a superintendent did some physical labor at the job site.

[00:23:32] Speaker 03:
or might have been called upon to do some on-site manual labor in the regular course of the job," close quote.

[00:23:44] Speaker 03:
And that's at his opinion, 972, Fed's second at 991.

[00:23:55] Speaker 03:
So under that standard, what is it here

[00:24:02] Speaker 03:
that would bring Mr. Hollander under that test?

[00:24:12] Speaker 00:
Basically, the physical work, the contract requires supervision.

[00:24:23] Speaker 00:
On-site supervision requires also traffic control.

[00:24:30] Speaker 00:
And Mr. Hollander

[00:24:33] Speaker 00:
was did the traffic control, did the supervision, the other one specifically, Your Honor.

[00:24:47] Speaker 00:
Let me just get the actual subcontract out.

[00:25:05] Speaker 00:
supervision, traffic control, layout work.

[00:25:07] Speaker 00:
He did them.

[00:25:08] Speaker 00:
He basically was the engineer doing the layout work.

[00:25:13] Speaker 00:
And he also has to certify that the work was done according to the plans and specifications.

[00:25:23] Speaker 03:
So you think that is consistent?

[00:25:27] Speaker 00:
Oh, it says supervision.

[00:25:32] Speaker 00:
On 02, on Schedule B, in the subcontract says, you must provide project supervision, a superintendent, safety officer, and traffic control officer.

[00:25:49] Speaker 00:
And that was, in fact, Ed Hollander's duties to do all three.

[00:26:01] Speaker 00:
on site but all the other cases buttonhead and all the other cases there are five other cases that were cited is if in fact you are on site and supervise or inspect the work you have to inspect the work in order to certify that the workmen are

[00:26:30] Speaker 00:
in compliance with the plans and specifications.

[00:26:33] Speaker 00:
And that has to be done.

[00:26:35] Speaker 03:
All these cases were cited to the district court.

[00:26:39] Speaker 03:
And where do you think it made its error?

[00:26:46] Speaker 00:
I believe, as I told him, he made the error saying he had to do physical labor.

[00:26:55] Speaker 00:
You're talking about, I grew up in the industry

[00:27:01] Speaker 00:
All the agreements with the unions, say if you have nine or 10 men, you have to have a superintendent or a foreman who is non-working.

[00:27:19] Speaker 00:
Does that mean he doesn't get paid?

[00:27:21] Speaker 00:
This would cause tremendous havoc in the industry.

[00:27:25] Speaker 03:
Well, I think what Judge Kaufman was getting at was how do you distinguish, and maybe it's between the supervisory work that is not covered by the Miller Act, namely what you might do back in your office, any sort of expertise you might have in connection with

[00:27:48] Speaker 03:
I don't know, architectural drafting or something like that.

[00:27:51] Speaker 03:
So I understood his test didn't require physical labor, but it had to be.

[00:27:59] Speaker 00:
That's right.

[00:28:01] Speaker 00:
The distinction is on-site supervision and inspection versus off-site administrative work, reviewing shop drawings, doing take-offs and stuff like that.

[00:28:17] Speaker 00:
That's not COVID.

[00:28:19] Speaker 00:
That's professional, and that's not covered under labor.

[00:28:25] Speaker 00:
But under the Miller Act, on-site supervision of the workmen, on-site land surveying is covered, on-site safety

[00:28:46] Speaker 00:
and officer and traffic control.

[00:28:51] Speaker 00:
That is covered.

[00:28:53] Speaker 00:
That's labor that you have to have in order to advance the prime contract.

[00:29:00] Speaker 00:
And it's that simple, Your Honor.

[00:29:02] Speaker 00:
And that's always been the criteria.

[00:29:10] Speaker 03:
I basically think that the district court here, Judge Gazelle, for instance, wrote an opinion that there's some common sense that has to be applied here.

[00:29:20] Speaker 03:
And I just wondered why the district court, and certainly an able judge, as they all are, didn't appreciate this point.

[00:29:34] Speaker 00:
Absolutely.

[00:29:36] Speaker 00:
Judge Gazelle, you know,

[00:29:39] Speaker 00:
I argued the Mariani case and the young man that's sitting here right now, Larry Shurer, was one little council that was 50 years ago when it was the Hirshhorn Museum that was being built that's now been torn down and now been rebuilt.

[00:30:06] Speaker 00:
So I'm 50 years older.

[00:30:10] Speaker 00:
But that was the criteria.

[00:30:12] Speaker 00:
Judge Gazelle said the same argument is being made today.

[00:30:18] Speaker 00:
He says, OK, you paid them what was in the original contract, but that's not

[00:30:27] Speaker 00:
the criteria.

[00:30:28] Speaker 00:
The criteria is the unpaid reasonable value of the labor materials that you actually supplied.

[00:30:37] Speaker 00:
It took two more years for Parachi to finish the construction.

[00:30:46] Speaker 03:
Let me ask you one other question.

[00:30:50] Speaker 03:
I'm sorry, Chief Judge.

[00:30:52] Speaker 06:
Please go ahead, Judge Rogers.

[00:30:53] Speaker 06:
Please go ahead.

[00:30:55] Speaker 03:
One other question.

[00:31:00] Speaker 03:
You argue, and I want to be sure you continue to argue, that this issue that is now being raised by Colonial was never raised in the district court, namely that.

[00:31:19] Speaker 01:
Correct.

[00:31:21] Speaker 00:
Yeah.

[00:31:22] Speaker 00:
And Judge Mitter never had a chance

[00:31:25] Speaker 00:
to distinguish what is being raised right now.

[00:31:32] Speaker 00:
We're off the line, by the way.

[00:31:34] Speaker 06:
We can still hear you, so you can continue.

[00:31:38] Speaker 00:
Judge Miller never had a chance to answer what is being raised now on appeal for the first time.

[00:31:56] Speaker 00:
when they objected to the damages that Judge Meadow proposed, they proposed some $800,000 for Colonial and less than, I think, $300,000 for Herati.

[00:32:21] Speaker 00:
That was the same thing.

[00:32:22] Speaker 00:
They never said, okay,

[00:32:25] Speaker 00:
$300,000 for Colonial and Hirani.

[00:32:32] Speaker 00:
It was almost three times more that they propose for Colonial than Hirani.

[00:32:39] Speaker 00:
Thank you.

[00:32:41] Speaker 06:
Thank you, Council.

[00:32:41] Speaker 06:
I think we have, I think my colleagues have additional questions for you.

[00:32:45] Speaker 06:
Thank you, Council.

[00:32:48] Speaker 06:
We appreciate your argument this morning.

[00:32:49] Speaker 06:
Mr. Delaney will give you two minutes for rebuttal.

[00:32:56] Speaker 06:
Thank you, Your Honor.

[00:32:58] Speaker 07:
Just three quick points I'd like to address that were raised by Mr. Grouty.

[00:33:04] Speaker 07:
First and foremost, with regard to the waiver issue, might as well get that one out of the way front.

[00:33:11] Speaker 07:
The issue has to do with the divergent rewards against the surety on one theory of recovery and against the general contractor on a second theory of recovery.

[00:33:23] Speaker 07:
That issue did not arise until the judgment was issued.

[00:33:27] Speaker 07:
first action Colonial took after that judgment was issued, finally filing a notice of appeal.

[00:33:32] Speaker 07:
There's no way.

[00:33:34] Speaker 03:
Did it not have an opportunity to file a motion for reconsideration?

[00:33:39] Speaker 07:
We certainly had the opportunity to your honor, but not the obligation.

[00:33:43] Speaker 03:
I understand that.

[00:33:44] Speaker 03:
But you know, the district court as he begins his opinion, uh, says almost these are my words, not his word.

[00:33:53] Speaker 03:
I can't believe I'm being asked to examine

[00:33:56] Speaker 03:
this voluminous finding and ruling once again.

[00:34:05] Speaker 03:
And he said, I'm simply not going to examine the minutiae of whether a bottle of Gatorade was properly in the award.

[00:34:17] Speaker 03:
And so that's why I'm getting to the point that the district court thought he had covered everything that was raised

[00:34:26] Speaker 03:
And if it was never raised before the district court, then on what basis could we reverse at this stage?

[00:34:42] Speaker 07:
Again, Your Honor, we timely appealed it for the first time after the issue arose.

[00:34:48] Speaker 07:
I'd like to briefly touch on the issue on whether or not the awards were for the same work.

[00:34:56] Speaker 07:
The complaint, the second amended complaint, which was Mr. Rowdy's first entry into this litigation, there were attorneys who represented plaintiff prior, sought the same amount of damages, $2.074 million against both Irani on a breach of contract basis and against Colonial and Miller Act basis.

[00:35:16] Speaker 07:
It's always been the same stuff under different theories.

[00:35:20] Speaker 03:
It was never- And the district court didn't award it.

[00:35:24] Speaker 07:
and the district court didn't award it, just like the district court specifically rejected the same arguments that Mr. Browdy just made regarding the supervisory work allegedly performed by, um, well, Mr. Holland didn't raise that at all in your opening arguments.

[00:35:41] Speaker 03:
So, uh, I think we have the argument.

[00:35:45] Speaker 06:
Thank you very much, your honor.

[00:35:47] Speaker 06:
Any more questions?

[00:35:48] Speaker 06:
I don't think so.

[00:35:49] Speaker 06:
Thank you, counsel.

[00:35:50] Speaker 06:
Thank you to both counsel.

[00:35:51] Speaker 06:
We'll take this case under submission.