or representation is followed by a written contract for a personal luxury item and i hope to be able by the way to reserve five minutes of my time for  thunder submits that there are three fundamental legal errors that were made by the district court below the first one of which was to fail to honor the integration provisions of the contract which include a specific provision that salesman's verbal agreements and representations are not binding on the company now the district courts rationale for not doing so was contract that fraud is not sufficient of this year the integration provisions graham now the second substantial error that was made by the district court was the failure to honor the provisions the books and this case provides a particularly cogent illustration of exactly the importance of those provisions for reasons i hope to be able to discuss with the court the third major and fundamental error made by the district court was its reliance on what it characterize as myth misrepresentations by omission now the plan admitted that he brought no such claim and therefore the question with respect to that issue simply wasn't before the district court it wasn't in any way adequately address me return for a moment to the first issue and that is has to do with the integration provisions of this contract again we have a clue particularly good illustration in the facts of this case as to why those provisions are important and they're important that they be respected my the court and that is one of those representatives counsel i have a question that you will get something that is then subsequently excluded or disclaimed by the contract that you signed and then there is i would submit no real fraud inducement what you have again is a conflict between oral representation is and the contract that you've entered into tallman talks about fraud independent of the representation  contract contradicted by the contract and i think that it is that independent principle that would negate fraud in the inducement in your circumstances now ok so if the sales rep  and then i will get to the substance of your question i'm going to ignore for the moment the puffing question which is fully addressed in the brakes but putting that issue aside the problem here is not simply the integration clause and the fact that those items are not addressed in the written contract the problem here is also the fact that this contract expressed lease states you cannot rely and black thunder is not bound by a salesman's representation so that the problem that you have in this particular circumstances it's not simply something that is left out of the contract there are cases that address that problem the problem here is you haven't expressed a provision in the contract that is contra and that prevents the buyer from relying on the kinds of statements that you postulate thank you the i mentioned before this is a again a particularly apropos illustration one of the representations here has to do with whether the engines will be fully rebuilt or refresh and there's significant testimony in the record to the effect that these are somewhat different totally different according to one witness the problem is that the salesman to whom the representation is the district court was binding black funder to him he testified those two were one and the same now i'm not saying this is the substantial evidence question in this case but the point is this is why these provisions are in the contract this is why the contract becomes not merely the integrated writ result of the par or embodiment of the party's bargain but also the document that makes it clear that a buyer cannot rely on these kinds of salesman's representations when he turned for a moment to the second  is where again the facts of this case become particularly apple paul as an illustration of the importance of the provision and the importance of courts giving effect to these kinds of provisions again it's a combination of provisions number one the liability is limited to replacement of replay or lack fundus of the celebes and that the warranties are not applicable if someone else works on the boat here we have three individuals who work on the boat dunn's moore who in response to one particular problem pulls the engines or at least authorizes that they be pulled and shipped to a mr half who rebuilds the engines engines are then reinstalled after which according to mr dorothy the boat ran absolutely great for an entire weekend on lake tahoe and exploded the gaskets on the boat we don't know what was done with mr past rebuilding of the engines and we're installing of those engines there's no evidence of a flying f on the record as to what he did so that by the time we get down to mr connell fell he says all the problem is the original rigging but black thunder has no way to deal with that kind of a contention not in the courtroom but in the real world and that's why black thunder has in its contracts if you want to hold us responsible we're responsible for the work we do and you have to have us do the work well let me ask you a question about the ranking since you mentioned that right is the district court's finding that the rigging was was warranted necessary to its conclusion that black thunder breached the contract by failing to deliver a properly r i'm not sure about that finding it definitely is necessary to the award of the damages and the reason why i say that is because according the only expert testimony we have from the players mr get to some kind of an obligation with respect to the rig whether it's a warranty which is what the district court found whether it falls under that provision for repair and replacement of defective  materials and workmanship which is a part of the warranty provisions of this contract whatever you do have to somehow get to a reading responsibility on the part of black thunder because that's where the damag evidence comes now the problem that you have as i say i'm not setting up a substantial evidence question for this case what i am setting up is the course of history with respect to this boat and its problems illustrates why in the real world companies like black thunder who produce these kinds of luxury items which maintaining control over the work that is done on the boat for which it is supposedly being killed responsible now the third item well i'll try to deal with relatively quickly and that is that the district  for some reason and it is not exactly clear why it went in in this direction created a misrepresentation by omission set of finding and those missions  no evidence what's a way anywhere in this record that the three a drives in this case process any of the problems with this particular boat nevertheless the district court judge said well it is a misrepresentation that you at if there was a serious question about misrepresentation as to expertise and that kind of thing we certainly could have or draw i dressed it but the problem was by not pleading it simply wasn't in the case it's a claim a very i don't know the right word narrow isn't quite it but it is a an industry with a very limited number of people participating in it it is an extraordinarily fear of a war here is based upon the misrepresentation notion well that one dollar i mean obviously i have to believe that you know if you look to what if you think someone if you find that p damages that then prison i'm hoping that black tenders that i don't know what one dollar would deter you know they have to be worth a little more than that so that it is a little puzzling what does that mean well the instructions or directives to the client i'm making this award because you should not do a b and c etc it sounded to me like it was a symbolic nominal monetary award with not punishment as the result but a directive to not engage in the conduct that would please the court michael marriage on behalf of jerry doherty since we're on i think one dollar do you want to respond to that does that have any other meaning it had the meaning of let you off with a warning he didn't like the way he conducted business he meaning judge jones he didn't like the fact that they held themselves out to be performers but builders and that they could put these engines in the boat and that they could make this boat run like a race boat and make it reliable all style and they failed utterly and so he didn't want to break the bank he wanted to make my client whole and he thought that was the right thing to do he didn't want to break the company which was black senator but he wanted to it was like you know ok next time you're going to get a real take it if you speed this fast as kind of like that dropped a ten thousand dollars for that because the original tab on all the repairs was one hundred thirty six thousand in change and when i got awarded one hundred twenty six thousand change to address the three areas of legal error that were brought up by the appellant number error number one or what they're calling error number one is basically pro evidence argument that was never made at the trial level was never included in the trial brief to answer your earlier question i do not think an integration provision in a contract stops you from making a fraud claim or stop the evidence of the fraud claim as an independent claim from coming before the court that is an independent claim it's the secretary of law deposition testimony of roger roger views but the certainly the provisions of the contract itself demonstrate black founders intent never to warrant the engines even though they are salespersons out there allaying the fears of a client and telling him not only are these engines at trade in time in good condition which was wrong not only are these engines in good condition we're going to rebuild them with all new parts we're going to make this engine run like a new engine now this isn't a car salesman saying i got the best cars in town so that's sales talk this is a guy answering questions in jerry doherty's home where jerry dory says listen i want to cut engines  hundred seven boat but i'm afraid of buying someone else's problems everyone understands that has been a consumer buy used car buy used anything time wreck is telling him don't worry about it pay me seventy thousand dollars for these engines which is a lot of money and you'll get engines that are in good condition now will fully rebuild them with all new parts all the wearable parts won't be worn we're going to make this thing run like it's a new engine you'll save money in the fourth thing we told him which was the clincher which is the icing on the cake which made the sale happen the inducement you get a full warranty from black thunder that's a bumper to bumper it's whatever goes wrong we'll make sure it goes right afterwards the second after those after those representations were made of course something fell down hill next that's all in the timeline in the brink of everything that went wrong now the second point that was made is you have to honor the contract revisions the warranty says that the warranty work has to be twenty third and they ran the boat on the river and there was problems with the boat this a jerry come back tomorrow we're going to fix everything will deliver it to you then they supposedly turned it they did whatever they had to do with it there was some water pressure problems with the water going to the inner cooler full  he picks up the next day to tell him it's all right he's on the water at lake mead if and within five minutes burns on the piston because it's too hot to detonation problem that means the intercooler for the blower is not working the engine is getting too high and you burn a hole  bell housing the cool the oil for the motor and then they ran hot water to the intercooler detonation problem on the engine and it happened twice and it was a reading problem and that rigging is warranted in the contract you had two shots to do this this is the right of jerry's thinking you have to shasta do this you can't seem to get it right i can't pay for repeated trips back to missouri from nevada to get this boat repaired i'm disillusioned at this point i spent also he promises to share the information from dunsmore marine and paul facts and give it to black thunder and their mechanics for their findings so they can put their heads together do something about this that is not a guy who's run all over the landscape with a couple of motors not bring in by thunder in the process not allowing them to fulfill their obligations under a warranty that's a guy who number one has received a written warranty yet doesn't know what he has he's got a reluctant company who's not really stepping up to the plate and he's have a warranty they certainly did that so to say that the provisions in the contract with the warranties whatever they were that may have been provided although they were far less than what were promised were voided because workers like the g m ac of both engines of course they run now black thunder sending they're selling their own engines nine hundred horsepower super charged and they're saying we can do this for you jerry and what the court did like what judge jones didn't like is they couldn't do it for him and if you look at the deposition testimony they haven't done that many times before that they were chasing that they could find a remember both hands with this kind of motor with this kind of horsepower they couldn't do it chance to time to catch it they could catch it so it wasn't fraud by omission it was fraud because they should've said listen jerry we will give you will do this for you but we don't have much experience with a judge one of them said and instead what they said thirty nine the argument is addressed because this was a decision by the district court on written briefs with submission of affidavits and documents etc it's addressed in terms of the question of  the validity of the integration provisions and whether they bar the claims that were being made as a matter of fact one of the quotes that's in there doesn't fact a dent if i add as a parole evidence rule argument the point here is non an evidentiary question the point here is a legal question and that's what it is fully addressed as i say at play just one thirty seven one thirty nine of the excerpts of record which is the section of our trial brief now counsel that we could do what we like with this vote regardless of what the contractual requirements were for holding black thunder liable sensually because well black plunder didn't  doing with respect to the engines this is after they've been told after they sent to mr path and he says well this is evidence that blacks under was put on notice and they simply didn't step up well the standpoint they have one way they're putting price one argument on the tax you're putting points another argument on the facts as an appellate court how do we go against what the district court did you go against what the district court did dispute should be preempted by what the parties agreed to in the contract if you want to hold black thunder why of all here's what you have to do by the courts right your time has expired thank you for your argument this matter will now stand submitted the court is going to take a brief recess for approximately ten minutes judge told the clerk will notify ask when you come back