[00:00:00] Speaker 03:
Our last case this morning is Flatland Realty versus the Secretary of the Army, 2024, 1531, and 1534.

[00:00:11] Speaker 03:
Mr. Howlett, when you're ready.

[00:00:16] Speaker 03:
Hi.

[00:00:17] Speaker 00:
Good morning, Your Honors.

[00:00:19] Speaker 00:
I am here for Flatland Realty, the appellant.

[00:00:21] Speaker 00:
May it please the court.

[00:00:23] Speaker 00:
I understand that this will be mostly a discussion rather than just a presentation by me.

[00:00:29] Speaker 00:
But I do want to make a few very quick introductory points just to frame that discussion that I think are important so that we don't get off track.

[00:00:40] Speaker 00:
The first one, maybe the most important thing to keep in mind today, is that originally this case consisted of kind of two halves.

[00:00:49] Speaker 00:
Did the Army breach the contract?

[00:00:52] Speaker 00:
One, and two, if it did breach the contract, how much money does it need to pay in damages?

[00:00:59] Speaker 00:
I want to make sure that today we are focused on only the second part of that, the quantum of damages number, because neither I nor opposing counsel here has appealed the board's decision about whether a breach occurred.

[00:01:13] Speaker 00:
Everybody agrees that it did.

[00:01:14] Speaker 00:
If the Army breached the contract, we're just here to pick a number for damages.

[00:01:19] Speaker 03:
If the Army breached the contract, then the other

[00:01:22] Speaker 03:
provisions don't come into play, right?

[00:01:25] Speaker 03:
The contractor is freed of its obligations under the contract.

[00:01:34] Speaker 00:
That's one of my primary arguments, yes.

[00:01:36] Speaker 00:
If there's a material breach by the other party, then I no longer have to perform.

[00:01:42] Speaker 00:
And it has to be a material breach.

[00:01:44] Speaker 00:
It can't just be something minor.

[00:01:46] Speaker 00:
But certainly kicking a tenant off of land, I mean, that's about as material a breach as could possibly exist in a landlord-tenant scenario.

[00:01:54] Speaker 00:
So yes, that is a core of the argument here.

[00:01:58] Speaker 02:
Charlotte, there's two issues here, the value of the building and the value of the business.

[00:02:04] Speaker 02:
Yes.

[00:02:05] Speaker 02:
And you didn't get anything for the building, you got a reduced amount for the business, correct?

[00:02:11] Speaker 02:
Correct.

[00:02:12] Speaker 02:
If we were to agree with you on the building issue, the first issue, we would have to send it back to the board for a determination as to the value of the building, correct?

[00:02:27] Speaker 00:
Yes, though...

[00:02:29] Speaker 00:
The only evidence, not just more persuasive, literally the only evidence about how much the building is worth that was presented by either side is this one appraisal that was put forth by my client.

[00:02:44] Speaker 00:
No, I understand that.

[00:02:46] Speaker 02:
But we can't make that determination.

[00:02:48] Speaker 02:
I understand what you mean.

[00:02:50] Speaker 02:
And it's the value of the building at the day, the original date of the order that you had to leave, correct?

[00:02:58] Speaker 02:
Correct.

[00:02:59] Speaker 02:
The other thing is I saw there's a request in your briefing for mortgage payments.

[00:03:05] Speaker 02:
I didn't see that raised anywhere in the briefing below.

[00:03:09] Speaker 02:
At the end of your brief, I think you asked for

[00:03:16] Speaker 02:
Should I have it correct here?

[00:03:19] Speaker 02:
The mortgage payments Flatland made from the date on which the Army took the building.

[00:03:24] Speaker 02:
I didn't see any reference to that anywhere else other than in that statement.

[00:03:32] Speaker 02:
So is that really properly before us?

[00:03:37] Speaker 00:
I am taking the case over from a pro se litigant.

[00:03:41] Speaker 00:
So at that stage, both with his initial claim and then with everything before the board, he was pro se for all of that.

[00:03:51] Speaker 00:
Could you speak up, please?

[00:03:52] Speaker 00:
I said I am taking the case over from a litigant who before was pro se.

[00:03:58] Speaker 01:
So what is the implication of that?

[00:03:59] Speaker 01:
Is it that you don't know the answer to the question?

[00:04:02] Speaker 01:
Or is it that you don't think it was raised below, unfortunately, by the pro se litigant?

[00:04:07] Speaker 00:
I don't believe it was raised below in his briefing.

[00:04:12] Speaker 00:
I mean, an argument's been made that he continues.

[00:04:14] Speaker 02:
Yeah, because I didn't see any reference.

[00:04:16] Speaker 02:
But the only other thing is you also asked for attorney fees and costs.

[00:04:21] Speaker 02:
That has to be, we can't just ab initio grant that.

[00:04:25] Speaker 02:
That has to be the subject of an application, I believe.

[00:04:29] Speaker 00:
That will be something that we get to when we get push back debt.

[00:04:37] Speaker 00:
The other thing I wanted to note is that the Olympia and Arizona cases that are quoted at page 18 of my opening brief give us instructions about how a contract has to be interpreted.

[00:04:50] Speaker 00:
Olympia says that the primary objective in contract interpretation is to discern what the party's intent was when they made that deal.

[00:04:59] Speaker 00:
It is apparent from the filings that were submitted by both sides at the board level

[00:05:07] Speaker 00:
that everybody thought that the argument being made was that the only reason the army was able to confiscate the building was because its termination of the lease was proper.

[00:05:21] Speaker 00:
That's not words only put in by my previously pro se client, but words that was in

[00:05:28] Speaker 00:
briefing from the Army as well.

[00:05:29] Speaker 00:
So you may have noticed there was some back and forth about estoppel arguments.

[00:05:37] Speaker 00:
That's not really what I'm talking about.

[00:05:39] Speaker 00:
It's not about the issue of judicial estoppel and whether they can argue that now.

[00:05:43] Speaker 00:
It's more about

[00:05:44] Speaker 00:
The fact that they put those statements in their briefing saying effectively that their taking of the building was conditioned upon a proper termination is evidence of their understanding of the deal.

[00:05:59] Speaker 00:
What their understanding of the deal was at the board dispute level and all the way down to the dispute.

[00:06:05] Speaker 02:
You're saying that those statements reflect an understanding of the provisions that coincides with your understanding.

[00:06:11] Speaker 02:
Yes.

[00:06:12] Speaker 01:
And then the government argues, nonetheless, notwithstanding any statements you're talking about, the government argues here on appeal that even though there was a breach of the revocation clause, and so there was an improper revocation, your client still had a duty to mitigate damages.

[00:06:35] Speaker 01:
What is your response to that?

[00:06:36] Speaker 01:
Is there a duty to mitigate damages, and also why

[00:06:42] Speaker 01:
Why wouldn't that have an impact in this case that would cause us to affirm?

[00:06:47] Speaker 00:
So there is a duty to mitigate damages.

[00:06:52] Speaker 00:
Leaving the building there was actually the way that my client mitigated to have removed the building, dug it up, shifted it somewhere else, paid for all of that cost, and sort of lost the value of the building that it gained by being present on the lakeshore and just sent it somewhere more inland.

[00:07:11] Speaker 00:
would have actually resulted in him having more damages than he would by doing this.

[00:07:17] Speaker 00:
But maybe more importantly than a comparison of those numbers is the fact that

[00:07:25] Speaker 00:
Mitigation of damages is an affirmative defense that had to be raised by the army.

[00:07:32] Speaker 00:
And the army has to provide the evidence supporting that affirmative defense.

[00:07:36] Speaker 00:
So if they're trying to follow that line of argument now,

[00:07:42] Speaker 00:
It's really too late.

[00:07:43] Speaker 00:
They didn't supply any evidence at all about what my client's alternative options might have been, how much those would have cost in comparison to the value of the building.

[00:07:53] Speaker 00:
Again, remember, there's no appraisal of the building at all put forth by the Army.

[00:07:58] Speaker 00:
So the evidentiary burden to support that affirmative defense is on them, and nothing at all was presented.

[00:08:13] Speaker 00:
I think there's one case here that maybe bears some discussion, which is the billboard case.

[00:08:21] Speaker 00:
It's called Adams.

[00:08:23] Speaker 00:
That's the one where way back when there was this billboard on this property.

[00:08:27] Speaker 00:
And that tenant eventually is the Supreme Court Virginia case.

[00:08:32] Speaker 01:
Yes, that's right.

[00:08:33] Speaker 01:
Yes.

[00:08:35] Speaker 01:
So there wasn't a breach there.

[00:08:37] Speaker 01:
Right.

[00:08:38] Speaker 01:
Am I wrong.

[00:08:39] Speaker 01:
There was no breach.

[00:08:41] Speaker 01:
Okay.

[00:08:41] Speaker 00:
Yes you are correct.

[00:08:42] Speaker 00:
There was no there's no mention of the least being wrongfully terminated or anything.

[00:08:47] Speaker 00:
It's just.

[00:08:48] Speaker 00:
The parties relationship came to an end the tenant left didn't put up a fight about it at all, right?

[00:08:54] Speaker 00:
There's no mention of that in that case and at some point the billboard comes to be owned by The landowner that's really nothing like our situation here

[00:09:09] Speaker 00:
I think the other thing that is important maybe about that one is that compare that to what my client did after learning about

[00:09:24] Speaker 00:
determination here.

[00:09:25] Speaker 00:
He's putting up this huge fight.

[00:09:27] Speaker 00:
He's not abandoning this property in any meaningful sense of that word.

[00:09:32] Speaker 00:
Appendix 306 through 369 is a bunch of emails to the Army representatives and also a bunch of letters to congressional representatives, Congress people with the Army copy, where he's putting up a fight and saying, I'm not abandoning this thing.

[00:09:49] Speaker 00:
This belongs to me, and it's wrong to kick me off.

[00:09:52] Speaker 00:
Literally, the only case that the board's decision relied upon to say, hey, this property's been abandoned, so it becomes something that's owned by the landowner, the only case was that billboard case, which is nothing like our situation here.

[00:10:10] Speaker 00:
That billboard owner didn't put up any fight at all, and we've got about 60 pages of fight put up by my client.

[00:10:17] Speaker 00:
That's not abandonment.

[00:10:23] Speaker 00:
I'm at 5, so I'm going to reserve the rest for rebuttal, unless there are other questions to come.

[00:10:28] Speaker 03:
And we'll save the remainder of your time if you need us for rebuttal.

[00:10:33] Speaker 03:
OK.

[00:10:33] Speaker 03:
Ms.

[00:10:33] Speaker 03:
Yelley.

[00:10:42] Speaker 04:
I'm going to place the court.

[00:10:45] Speaker 04:
Your Honor, effectively, the board made findings in this case.

[00:10:49] Speaker 04:
that are supported by substantial evidence in the record, that Flatland acted unreasonably in the wake of this termination.

[00:10:56] Speaker 04:
Specifically, the Corps informed them of a desire to have the structures removed in December.

[00:11:06] Speaker 04:
They did not respond.

[00:11:07] Speaker 04:
Come May, the Corps sent a proposed removal plan trying to help them out.

[00:11:13] Speaker 04:
Didn't respond.

[00:11:14] Speaker 04:
The Corps again reached out May 15.

[00:11:16] Speaker 04:
We're now five months and change out from the removal decision.

[00:11:22] Speaker 04:
Just sort of reaching out saying, hey, you haven't responded.

[00:11:25] Speaker 04:
Receiving an utterly intemperate response later that month indicating that the basically signaling that the landowner had done nothing to remove the structures and intended to remove them on his own, a schedule that was reasonable as he determined it.

[00:11:42] Speaker 04:
In this context, regardless of the court's view of the contract provisions in this case, property law principles provide that if a tenant does not remove its property within a reasonable time after the termination of a lease, that property devolves to the landlord.

[00:12:00] Speaker 04:
And that's what happened here.

[00:12:02] Speaker 04:
And that's based on the factual findings that the board made.

[00:12:06] Speaker 01:
It's your view that it doesn't have to be a proper termination of a lease.

[00:12:09] Speaker 01:
It could be any termination of a lease.

[00:12:11] Speaker 04:
That's correct.

[00:12:13] Speaker 04:
If you were evicted from your apartment but left your personal property in the apartment, you can't expect that six months later, the landlord would not have taken title to that and disposed of it.

[00:12:26] Speaker 04:
So you can't.

[00:12:27] Speaker 04:
I mean, I think that what's animating this case, unfortunately, is a view that if the government once breaches a lease, that's it.

[00:12:34] Speaker 04:
The government either has to buy the property or at its option

[00:12:38] Speaker 04:
The structure owner can take as long as it wants.

[00:12:41] Speaker 01:
What is the current status of the structure?

[00:12:43] Speaker 04:
It's currently standing.

[00:12:45] Speaker 04:
The Corps has done some repair to it.

[00:12:48] Speaker 04:
They have told me they have no local interest in the building.

[00:12:53] Speaker 04:
They'll try for national interest.

[00:12:54] Speaker 04:
I don't know what the long-term future of the property would be.

[00:12:58] Speaker 03:
Isn't it considered that the Army breached?

[00:13:02] Speaker 04:
Yes, we have not appealed the breach determination.

[00:13:06] Speaker 03:
The contractor was free of obligations.

[00:13:10] Speaker 04:
That's not true, Your Honor.

[00:13:12] Speaker 04:
If this court were to side, and I hear the court's skepticism of the board's interpretation of this contract and the board's reliance primarily on Article 19 of the contract.

[00:13:26] Speaker 04:
I hear the court's skepticism.

[00:13:28] Speaker 04:
Even if that's true, you still have the fundamental principles of property law.

[00:13:33] Speaker 04:
and the board's factual findings that in the wake of the end of this contractual relationship, this landowner did not act reasonably and timely in trying to remove the structures.

[00:13:44] Speaker 03:
Isn't this a contract case, not a case on property law?

[00:13:49] Speaker 04:
But if you end up in the same place as a matter of law, that doesn't really matter.

[00:13:53] Speaker 04:
I mean, similarly with the mitigation of damages point, I mean, all those, all the facts that the board found, considering the sort of do nothing posture, I have no further obligation to posture,

[00:14:04] Speaker 04:
In six months since the end of the relationship, does the property owner know favors here?

[00:14:08] Speaker 01:
It's my understanding that the agreement provided that upon revocation, there were provisions that required the lessor to take certain actions, including removal of the property, if agreed upon.

[00:14:24] Speaker 01:
But in a situation where the revocation, there's a breach of the contract, I'm having a hard time understanding

[00:14:32] Speaker 01:
Why those provisions would still apply to the lesser?

[00:14:36] Speaker 01:
Why?

[00:14:36] Speaker 04:
Because the provision that deals with removal deals with, simply requires revocation.

[00:14:44] Speaker 04:
And the board found that as a matter of basically dictionary definition usage, revocation did occur here.

[00:14:49] Speaker 04:
That provision does not, as we pointed out in our open brief, Article 19 is really indifferent.

[00:14:55] Speaker 01:
If we disagree with that determination, then there's a different outcome, right?

[00:14:59] Speaker 04:
There is not a different outcome because the court would still have to determine that the board erred legally in relying on property law principles for the devolution of the title here.

[00:15:15] Speaker 04:
So if the contract evaporated, basically, if those obligations were no more, the court found that the board couldn't invoke them in the event of a breach, you still have property law principles.

[00:15:28] Speaker 04:
You still have the principle of mitigation damages, which clearly didn't occur here.

[00:15:33] Speaker 04:
And as the court pointed out, so I think that that resolves it at this level.

[00:15:40] Speaker 01:
Can you remind me what the evidence was on mitigation?

[00:15:43] Speaker 04:
Well, just that the evidence was that the property owner did nothing.

[00:15:51] Speaker 01:
So I can understand.

[00:15:54] Speaker 01:
What was the evidence presented by any parties on the relative value of doing nothing versus moving the building?

[00:16:01] Speaker 01:
Anything?

[00:16:02] Speaker 04:
No.

[00:16:03] Speaker 04:
No, but it's also clear that a party that does nothing in the wake of a contractual breach, it's obvious you're not mitigating your damages.

[00:16:10] Speaker 01:
In all cases?

[00:16:11] Speaker 01:
I can't imagine.

[00:16:12] Speaker 01:
That's just to make a presumption that there is a per se rule.

[00:16:15] Speaker 01:
I mean, the argument I'm hearing today is that leaving the building there made more economic sense than taking it apart and putting it somewhere.

[00:16:23] Speaker 01:
Well, that was an argument.

[00:16:24] Speaker 01:
Can I continue?

[00:16:25] Speaker 01:
Sure, absolutely, Your Honor.

[00:16:26] Speaker 01:
All right.

[00:16:27] Speaker 01:
And so in the absence of any evidence presented on this point, I'm having a hard time understanding how there could be a determination by the board that's based on any facts, evidence, I should say.

[00:16:43] Speaker 04:
I think that the fundamental problem that the appellant is having here with that scenario

[00:16:48] Speaker 04:
is that the evidence before the board was that the appellant had done nothing.

[00:16:52] Speaker 04:
The appellant did not say below, as far as I know, during the time period that led up to the initial board decision.

[00:16:59] Speaker 04:
Now, come reconsideration time, the appellant wanted to price it out and say, yeah, it would have been more expensive to remove.

[00:17:05] Speaker 04:
But I am not aware of any evidence.

[00:17:07] Speaker 04:
And I'm happy to be corrected if I'm wrong.

[00:17:09] Speaker 04:
But I'm not aware of any evidence leading up to the board's decision, the one that's on appeal, where the appellant actually argued,

[00:17:17] Speaker 04:
let alone put forward any substantive evidence in the record to say, yeah, well, doing nothing actually was more cost effective.

[00:17:25] Speaker 04:
All we have in the record is the evidence that the appellant did nothing.

[00:17:29] Speaker 01:
Well, and what evidence?

[00:17:30] Speaker 01:
I mean, the burdens on the government on this, right?

[00:17:33] Speaker 01:
Correct.

[00:17:34] Speaker 01:
Because it's in a fund.

[00:17:34] Speaker 04:
But the government pointed out, this appellant did nothing.

[00:17:38] Speaker 04:
It was then a comment on the appellant to say, well, doing nothing actually was mitigating, because it would have been more expensive to remove.

[00:17:47] Speaker 04:
So once the government's come forward with its evidence, the appellant has some obligation.

[00:17:51] Speaker 01:
The evidence is the fact that they did nothing.

[00:17:55] Speaker 04:
That is all that was presented to the board.

[00:17:57] Speaker 04:
But that would be all.

[00:17:59] Speaker 04:
I mean, that carries the day in the absence of the appellant responding in any meaningful way at the board in that first round.

[00:18:07] Speaker 04:
Of course, we know they sought reconsideration later and said, oh, we want to put in another evaluation.

[00:18:12] Speaker 04:
But at that point, that's the second bite at the apple.

[00:18:15] Speaker 04:
And the second bite at the apple, and the board appropriately determined that a second bite at the apple isn't supported under the case law.

[00:18:22] Speaker 04:
And that's consistent with this court's precedent as well.

[00:18:25] Speaker 02:
There was references to the court

[00:18:28] Speaker 02:
to the party being represented, pro se.

[00:18:32] Speaker 02:
But for a time, there was an attorney representing Flatland.

[00:18:35] Speaker 02:
Wasn't there?

[00:18:36] Speaker 04:
It was.

[00:18:37] Speaker 04:
There was.

[00:18:37] Speaker 04:
I don't believe, at the time of the board proceedings.

[00:18:42] Speaker 02:
Oh, just in the dealings with the agency?

[00:18:44] Speaker 04:
I believe that's the case.

[00:18:45] Speaker 04:
OK.

[00:18:46] Speaker 04:
I think her name is Erica Bash, or something along those lines.

[00:18:50] Speaker 04:
Yes.

[00:18:50] Speaker 04:
But I don't think during the proceedings below.

[00:18:55] Speaker 04:
I guess that's the building piece, probably the most contentious piece.

[00:18:59] Speaker 04:
I didn't really hear a lot of discussion and argument today about the enterprise valuation.

[00:19:05] Speaker 04:
It's undisputed that they operated seven months out of the year.

[00:19:08] Speaker 04:
It was a wedding venue seven months out of the year.

[00:19:11] Speaker 04:
It's undisputed that their appraiser represented to the board, when the appellant chose a paper trial to decide on the papers, appellant's expert appraiser represented that his enterprise valuation was based on full time.

[00:19:25] Speaker 04:
Operation is a wedding venue.

[00:19:27] Speaker 04:
In that scenario, the board's proration of the enterprise value using a 712th figure was an entirely appropriate way of jury work and the damages based on the evidence that was presented to the board.

[00:19:45] Speaker 04:
And the appellant came back later and said that was an error, but it wasn't newly discovered evidence.

[00:19:52] Speaker 04:
It's nothing on which the board could grant reconsideration.

[00:19:55] Speaker 04:
So for all the reasons set forward in our brief and discussed at argument today, we request that the court affirm the decision.

[00:20:03] Speaker 03:
Was there evidence that the army led Flatland to believe that the deadline would not be enforced?

[00:20:11] Speaker 04:
The appellant states that in the brief, and I think without citation to record evidence.

[00:20:20] Speaker 04:
So as a result, I do not believe the court could find that on this record.

[00:20:30] Speaker 04:
If there are no further questions, I'll yield to my colleague over here.

[00:20:34] Speaker 03:
Thank you.

[00:20:34] Speaker 03:
Mr. Howlett has some time.

[00:20:36] Speaker 04:
I'm sorry?

[00:20:39] Speaker 03:
You have some rebuttal time.

[00:20:55] Speaker 03:
What about the assertion, which the opposing council just said is not supported by evidence, that the army went flat-lined to believe that the deadline would not be enforced?

[00:21:09] Speaker 00:
So I'm not pursuing the estoppel.

[00:21:12] Speaker 00:
argument, the equitable stop argument in that sense, if that's what you're talking about, Your Honor.

[00:21:17] Speaker 00:
But that same course of events remains relevant for really exactly the reason that opposing counsel brought up, which is that if we fall back to just sort of background property law, and we're thinking about

[00:21:35] Speaker 00:
If the obligations of flatland no longer existed because of the material breach, the contractual obligations, meaning a flatland no longer existed because of the material breach by the army, then we need to fall back to some background default law of reasonableness of these parties and their interactions with each other.

[00:21:57] Speaker 00:
I'll just throw some dates out that I think are important on page 10 of my opening brief.

[00:22:05] Speaker 00:
I note that on April 28th, the Army drafted a restoration plan itself and provided a June 20th deadline for the building to be removed.

[00:22:15] Speaker 00:
So it's April 28th when they give that plan.

[00:22:20] Speaker 00:
And the Army says that if Flatland wants to modify in the terms of that plan, Flatland has to let them know.

[00:22:25] Speaker 00:
Flatland on May 16th provides what opposing counsel has characterized as a quote, utterly intemperate response, which I'll just read to the court here.

[00:22:37] Speaker 00:
Flatland sent that response by email saying, I have your draft plan.

[00:22:42] Speaker 00:
I will follow it to the best of my ability.

[00:22:46] Speaker 00:
I will not sign it.

[00:22:47] Speaker 00:
I will not send it back to you.

[00:22:49] Speaker 00:
The project will not be completed by June 20th, as that's completely unreasonable.

[00:22:53] Speaker 00:
It will be completed on a reasonable schedule starting this summer.

[00:22:57] Speaker 00:
And if you are willing to propose an equitable schedule, I would be happy to discuss.

[00:23:01] Speaker 00:
So there's two things I want to note about that.

[00:23:03] Speaker 00:
First is that email comes six, well, let's see, about 17, 18 days.

[00:23:11] Speaker 00:
after the army says you've got to get out, here's your deadline and here's our plan that we want you to follow.

[00:23:17] Speaker 00:
It's really not unreasonable amount of time to think about what would I really need to accomplish to move this amount of earth, dig up this building, shift it somewhere else.

[00:23:26] Speaker 00:
And not only that, it's not only about removal of the building.

[00:23:31] Speaker 00:
It's also about restoration of the property back to the state that it would be in if the building wasn't there.

[00:23:39] Speaker 00:
Section 12 of the lease talks about that.

[00:23:44] Speaker 00:
So if the Army is still claiming that all of those obligations still existed, which I don't think is the case, I mean, it's not just about digging up the building.

[00:23:52] Speaker 00:
It's also about putting all the dirt back in that hole and maybe planting over it or whatever.

[00:23:57] Speaker 00:
So, reasonableness here, I think, you know, a response two and a half weeks later is entirely reasonable, and it's not even a flat refusal.

[00:24:07] Speaker 00:
It's not saying, now we're not going to do anything at all.

[00:24:09] Speaker 00:
It's saying, well, follow it.

[00:24:11] Speaker 00:
To the best of our ability, please work with us on a more reasonable timeline where we can actually accomplish this thing.

[00:24:20] Speaker 00:
The second thing I wanted to bring out was

[00:24:23] Speaker 00:
this bit about how many months the business was supposed to be operated as a wedding venue.

[00:24:35] Speaker 00:
The background here is that during the off season, when nobody's really at the lake, the plan is to operate it as a wedding venue.

[00:24:42] Speaker 00:
When people are at the lake, operate it with kayak rentals and that sort of thing.

[00:24:46] Speaker 00:
So five months of kayak rental, et cetera, and seven months of wedding space and event space rentals.

[00:24:55] Speaker 00:
The Army has provided us with a definition of what substantial evidence means.

[00:25:02] Speaker 00:
from a case which says, it's such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

[00:25:11] Speaker 00:
Meaning when the administrative law judges on the board are taking a look at that appraisal and interpreting it, I could see how if you were looking at that only, that appraisal in isolation, how you might think that it's saying,

[00:25:33] Speaker 00:
that the business is being run as exclusively a wedding venue for a full 12 months.

[00:25:40] Speaker 00:
But the board was never looking at that appraisal in isolation in a vacuum.

[00:25:45] Speaker 00:
It's looking at it as one piece of a larger litigation.

[00:25:49] Speaker 00:
And every time

[00:25:51] Speaker 00:
either party had ever talked about this arrangement in any of its briefing.

[00:25:56] Speaker 00:
It had always been agreed by both parties and was actually characterized rightly as an uncontested fact by the Army that it was to be five months of other activities and seven months of wedding venue.

[00:26:10] Speaker 00:
So for the administrative law judge to assume

[00:26:16] Speaker 00:
without checking without asking for additional information as the rules provide to assume that this

[00:26:25] Speaker 00:
this litigant submitted a valuation that contradicted everything he had ever said in any brief he had ever submitted really was unreasonable.

[00:26:35] Speaker 00:
And at the very least, clarification, a one-sentence email should have been sought, and it wasn't.

[00:26:40] Speaker 00:
And for that reason, we think that the quantum should be increased to the full amount stated.

[00:26:45] Speaker 00:
Thank you.

[00:26:45] Speaker 03:
To both counsel, the case is submitted.