o and i call up my general counsel and i say boy i remember when we got sued last year in that terrible lawsuit remind me what our damages ended up being and the general counsel says oh yeah i was a bad one are damages were fifty million bucks you're saying well let's say i know what the dictionary said i understand it's money paid to a plaintiff but it still seems to me that you can then just look at it from either perspective of the transaction i mean take the word rent right rent is money that is paid to a landlord but i would think you could say the senate could say i was going to come up with some money my rents to friday and the landlord can say oh i can't wait til friday i get a collect rents damages like rent were either side can feds and there are over two thousand uses of defendants apostrophe asked damages so again how can that show it's just beyond the common usage to refer to a defendant's damages if he's playing language context and structure and let me begin st with the point that the parties did not agree to the limitation of the liability provisions and intense is the key to language of the if there it cannot enforce this provision so what happened i'm not going after the damages again but let me ask you about likewise how do you deal with the word likewise which to me means mutuality you know we just discuss the limitation of damages for that side of the transaction and now likewise there's a corresponding limitation for the other side would you just read the whole you just see the whole sentence was a mistake well  my st question which is if it's not absurd maybe it's not the best usage but it's not absurd for me is the c e o to say all are damages in the case you know the defendant damages if that's not crazy or absurd and that gives the descendants purpose and that is because we're the can so i on that issue terminations did what we did the timetable of when they gave notice of their intent to try to terminate regardless of whether for the lower colorado river authority the last sentence of section nine point three has to mean something it is not an option for this court to conclude that it is meaningless and has not and should be disregarded apple otay has come up with creative organs but at no point in the tr court or here has articulated a coherent meaning that gives effect to that provision instead its explicit argument is that the last sentence of section one three should be disregarded altogether we disagree  is pointed to the word mistake but we've never taken the legal position that there was a mistake in this contract we have always contended that the plain language of section one dollar can be interpreted in only one way and that is to mean th discussion of some of the negotiations and the word choices they made but we've never made that a legal position though your honor is there anything in the document which you told us to consider in detail the district court to consider it take that   under the surrounding circumstances rules we submitted the redlines to the district court which reflect that the initial draft was a one sided unilateral cap in which it was intitled limitation on seller's damages for certain types of failures after some negotiation the l c r added language that read the current language that read seller's damages that was and followed by a discussion of the four enumerated situations in which the seller's liability would be limited in which the seller's damages would be limited to sixty million dollars elsewhere a then added language that buyers damages for fair to perform its material obligations would likewise parties also agreed in advance how to handle the consequences if either party fail to perform the material obligations that we have the the liquidated damages payments in article four and the terminations payments under article six they also placed the general remedy provisions in article nine and what that does is show that the the parties develop a a framework a scheme with multiple provisions that would work together in concert now peple at the argues that the exclusive numerical cap is not a remedy it's a cap section one point for the parties concerned that they intend to express an exclusive remit he said out of the p p a to be the only available remedy for breach of the p p a and the parties are waiving all other such as an injunction or a specific performance they also waive other measures of bennett just so the parties can't recover restitution damages reliance consequential damages punitive damages and the objective of nine  construction is the opposite of the plain language which reads buyers damages for failure to perform its material obligations they say it's not limited in the aggregate to sixty million dollars nd it's not compelled by the plain text of nine  four three to set limitations so it's excluding other types of remedies and other types of measures of damages but it doesn't say that that not the four three is the sole limitation on such damages i think we can take some  the st in which the parties say if there is a express remedies set forth in the contract then that's the rimini that you get and that's the measure of damages that you get the nd sentence reads if no remedy or measure of damages of pressley provided if no remedy or measure of damages is expressly provided here in the album or is liability shall be limited to direct damages only so it's talk direct damages is a type of dams so that indicates an intent that we're looking at types of damages so we're trying perpetration which indicated that it was trying to exclude more than that and in fact the purpose of the of the provisions of nine point four is not to exclude the remedy provisions of the p p a in fact its purpose is to establish the validity of those remedies not used to nullify part of the remedial scheme i'd submit that the text of one point three also helps us answer that question under nine dollars damages shall be limited in the aggregate to sixty million dollars there's only one place in the p p a where it might be necessary to aggregate damages payment and that's what the liquidated damages provision determination payment is a one time conflict with the other provisions we are harmonizing all the we find meaning in the word likewise in that respect so the text in one dollar says shall likewise be limited and remember we we give meaning to all the provisions so what is likewise do for us in that context there are really only two realistic choices it could simply mean also or it could serve the purpose of incorporating the clause notwithstanding anything to the country in this agreement to the two caps are treated in these likewise fashion so that provision because once you hit the you're stopping paying under the take a pay that's exactly right for that i want to be precise about the terminations though you know not on your part it's not because they terminate you it's because got your terminating unilaterally even when they go once you determine that well that's what i was going to say else right does not have the power to terminate certain leave notified have alerted that they would stop taking purchasing and receiving power and paying the contract price and it's left to pepple otay to make the election where they want to continue receiving the liquidated damages payments under that calculus that formula or to declare a termination and receive damages under that formula but in either respect that the damages are capped at sixty million dollars for a failure to perform material obligations which this i cash in you can you walk away well to the walkaway it's correct it respectfully i disagree that this is a take or pay agreement we we have plenty of examples of actual take or pay agreements from the natural gas context on the places this is not written as a take or pay contract we have material obligations to purchase and receive and pay the contract price there is no alternative performance provided for in the  with respect to apple it is nd issue on appeal its position is that it isn't titled to an additional sixty million dollars and liquidated damages are not this is this gets close to the issue judge a rod that you were just talking about it's  position that this result is foreclosed by the plain language of the agreement section one dollar again provides the damages for failure to perform material obligations are limited in the aggregate to sixty million dollars damages from whatever source and under whatever calculation shall have a numerical limit of sixty million dollars and any other interpretation would render an operable that provision that caps the aggregate damages jenelle's of can and should stop political argument is directly contrary to bits unambiguous text of the p p a couplet it takes the position that payment of damages is not before the payment of damages is performance the text of the p p a indicates otherwise section four dollars is headed liquidated damages do buyers figure to take and it's framed as an exclusive really to remedy only comes into play when a party fails to perform material obligations the remedy is not itself a material obligation this court indicated such in the in the last opinion judge allred that you authored where it described the four three payments as damages in fact argue as we said that material obligations for for purposes of the cap in the context of this cap are those which result in damages in the event of a failure to perform those are the article three obligations three   change their mind i'd like to to follow up on on judge costas scenario in which he is the c e o imagine this scenario you're a negotiator for a public utility you get a draft p p a from the seller and it's  intitled limitation on sellers damages for certain types of failures and then goes on to list the four scenarios in which the seller would pay damages for those failures and so you say what about me what about the buyer's damages that's when else there are a inserts the provision reading buyers damages for fair to perform its material obligations is likewise limited to sixty million dollars a the business context arguments that apple ots seem to enjoy so much start to sound a lot like fairness arguments in which they regret the bargain they struck and such they want to get out of it i would submit that well there's a whole bunch of cases from the texas supreme court even recently the barrow saver case that that comes up in the context of extrinsic evidence that itself was a on the facts seemed like a a to look to the plain language of the agreement given its ordinary meaning in the context in which it it arises and give meaning to all the provisions and harmonize all the provisions so that all are given effect and none are rendered inoperable concluded we respectfully submit that the plain language of the p p a answers to questions before this court in the situation where else the ira has failed to perform its material obligations under the agreements the p p a dictates that the damages resulting from those failures are limited in the aggregate to sixty million dollars we respectfully ask this court to affirm the judgment of the district