minutes on the bottle in total my plan is to address primarily the t v on appeal from the trial and also in my initial colloquy discuss at least briefly the issues pertaining to the can to repeal your honour's i can tell from listening and observing that you've probably read every paper i have no doubt in this case that your your very knowledgeable fans here we have void flipping contract that contained a particularly worried section sixteen that the court interpreted under the supreme court with a vote of supreme court and turkey as a perpetual contract out of course is based on the bill of the levin case a two thousand and four supreme court case throughout the pleadings throughout the discovery throughout every single aspect of this case the position of the defendants was clear they argued with the meaning of the contract term section sixteen but they never argued that it somehow was mistaken that the words were inappropriate used or that the wrong contract was used and the idea of mistake was  st surfaced literally in the opening statement made by my worthy colleague mr pease aneli and at the end of that which was the end of that opening statement we asked for clarification we raised the objection anything from us there are multiple pleadings and judge me and actually has very genial ways of actually very pleasant and gauging fell but nevertheless he denied having made any ruling at all on the meaning of section sixteen of the agreement and then when i showed him the language i read in the record he of course the more the way he remarked and i know by now based on my observations of this or that your honors have clause was a mistake was not in conflict with the pretrial order which embrace the issue of whether the parties intended to be bound by that clause and so i think as well  the plaintiff and i think united states versus st national bank i find it you know i want you to respond to it seems that t t n cannot reasonably argue that it was the victim of defense theory on the st day of trial that i had never previously alleged or even implied so i'm having you know i guess what i'm saying is why is what i'm saying wrong here let me begin with federal rule of civil procedure ninety nine he speaks to pleading special circumstances and nine b addresses fraud a mistake and nine b says clearly that a party must take with particular the circumstances constituting fraud or mistake that was never done ever at any time in the case at no time was a mistake raised and in fact on about the things that i all mentioned i mean they all talk about that they talk about mistake and maybe you need to also incorporate into it which i find additionally the court the district court's jury instruction big us contract which directed the jury to look beyond the expressed terms of the contract to determine the true and mutual intentions of the party and the district court did not instruct the jury on the affirmative defense a mistake thereby removing that issue from the jury deliberations and you didn't you didn't object to any of that we did we actually had a charging conference and we had both submitted your instructions and we both and then what happened was opposing counsel sought to withdraw his proposed jury instruction on mistake and eventually that's what the judge may end this particular case is is we get we were we really were actually it was his motion in limine a order explained to us that the jury would be told about section sixteen and in particular that the contract was perpetual and that's what the language man and no one rebuttal evidence as an example there was an acquisition in your honour's made me know this from the pleadings by the defendant that changed so g c a change sneed every payments but before that i acquired the assets of western money and in that acquisition there was a closing binder and one of the items in the closing printer was the exact template the exact agreement the exact agreement that was  issue and i have been signed only two or three days before the closing that agreement is dated were two hundred and twelve thousand and ten and the closing occurred i want to say within a week or we can have fact that we were blocked from showing that information to to that plays in general this is the contract not that the confused witness was saying other must be a mistake but rather this in fact was she ca's contract we used it we never were permitted to use that we contract our expert mr charles london for damages expert saw to and in fact did a man that supplement his report and expanded the damage and what ends expanded the damage amounts to a number between i believe was eleven dollars and eighteen million dollars and practically speaking the judge judge man just simply refused to let mr longdon explain why his supplemental report was being used because it was based on the judge's ruling that there had been a actually what the district court said you rejected two offers first seven hundred and fifty thousand and eight one million and went to trial on a case that in hindsight at least it was maybe and you were unlikely to win given your theory of contract interpretation non exclusive nature however the court said that at the time you rejected those offers you had already survived to summary judgment motions by case am prevailed in a partial summary judgment on a critical issue in the case and that also your your expert accountant projected a much larger monetary when if you prevailed at trial so the district court basically said that you acted in good faith in rejecting the offers and that punish plaintiffs from bringing what might not be winning hands of cases but nevertheless cases that that are based on legitimate claims here there was a contract there was a section sixteen there were multiple rulings there was never any pleading whatsoever that had to do with a mistake that the evidence and the presentation made by mr pease merely went way beyond the joint pretrial order and raised that issue but that was not known until we really reached them to district court falshood the other side i think for not they fail to break out its post offer costs in attorneys fees said i can analyze that factor and the decision didn't weigh in favor of either party on that particular factor with respect to the initial argument i would submit that your honor i understand your words your views  times and favorably by this th circuit case and in that case we have the st national bank case we believe that those facts are really quite similar except that in our case we had the either the subject matter obviously depending upon or your honour's questions this case proceeded to a jury trial with a general verdict form is apt in fact at the plaintiff's request the jury simply rejected the plaintiff's claims in full and ruled in favor of my client every which is referred through below as g c a which is what i will refer to it as today so on appeal now the plaintiff claims that well the only basis that the jury apparently could have ruled against them is on this issue about whether or not the contract was somehow perpetual or whether it ever could have been terminated there are a host of reasons below that were argued throughout the case and to the jury as to why the plaintiff claims failed there is no special iraq victorious and there was no special verdict form by which the jury was asked by the plaintiff to identify the basis for its verdict so that  is a problem number one i would submit with the plaintiff's position turning to what the plaintiff's argument is about the quote perpetual contract and essentially according to the plaintiff this case turns  as i interpret their argument on the united states versus st national bank i would submit your honour's that case is fundamentally different in that case as the court will recall the court allowed the government to make a brand new argument for the st time at the opening day of trial and in fact an inner summary judgment based on that argument at the st day of trial in an argument that had never been advanced by anyone anywhere to the effect of that the party not include an affirmative defense of mistake that is correct but everyone disputed from day one that this contract was ambiguous and you can't know did you get an instruction on mistake no we did not get an instruction mistake we were given at  it including at their insistence and instruction on ambiguity and this is important your honor is because you know nevada law provides that probably the most compelling evidence of what a contract means is the parties course of dealing the party had a multi year course of dealing under this agreement and at no point in time in their course of dealing did they ever claim that the contract with perpetual d and could be made perpetual by simply giving  annual notice to extend the contract in fact the contract operated for years without any notice being given wide because he will bodies right but because these parties understood these parties understood that the contract continued unless they notice and then you'll notice to terminate it was given and that's exactly how they understood it and that's how they operated for years but that's not what the two thousand and ten contracts that is not what the two thousand and ten contract literally says if you read that section sixteen in isolation i agree with that but the point of the matter is the parties intent is obviously what the court has that the jury had determined and they were given a comprehensive pattern jury instruction on how to do that t now i don't believe that's true to the united fight to the general jury instruction about ambiguous contracts in fact it's a court may recall even during their opening arguments they argue that the contract was ambiguous that the words in the contract literally did not mean what the parties had bargained for that was the position that t v n had taken since the inception of the case as well and started their opening statement with that proposition so it was left to the jury to figure out based on the overall evidentiary picture including documents admissions i would submit from t t n but they knew what this contract actually provided their own longstanding course of the yelling over the course of many years before the dispute developed and with that the jury then wasn't left to decide who was going to prevail and again it's a general verdict form their words there is no indication on which theory the jury rejected the plaintiff claims but i want to just respond to his surprise argument well that's actually where i was turning your honor so the surprise element is directly contradicted by the pretrial order if you look at page twelve somehow granted judgment effectively in its favor and that all it was going to have to argue about was damages now we disputed that and even the district court disputed that that was the effect of it and then look at point number four in their multilevel so what  issues to be tried to the extent that the court determines that any of the issues one through three which are the three that they identify about that summary judgment ruling were not resolved by this court's decision each would be an issue of law to be tried and determined at the trial there was no surprise here they'd accept that they themselves ignalina that the parties disagreed about what the effect was of the district court summary judgment ruling and the parties tried that tried that issue and one judge made him realize how it was being used by the plaintiffs in the context of the trial with the evidence coming in that is why he then clarified this was a pretrial ruling and i'm going to make it crystal clear that that is an issue for the jury to resolve again and i don't want to sound like a broken record on this point but the record doesn't indicate whether the jury was focused on the question or why the jury rejected the plaintiff claims but they did reject the plaintiff claims and there is absolutely no surprise here in the pretrial order itself confirms there was no surprise because the plaintiff's own position outlines why they built why they believe the su judgment ruling should be applied in a certain fashion and their own acknowledgement that if we if the court disagrees with us that is an issue that will have to be tried so you can't claim prejudice when in fact your own pretrial order characterizes that you this one of the witnesses that they wanted to examine was on subject matters the witness had no personal knowledge because the witness wasn't there at the time of the transaction and so therefore it wasn't a the witness was not allowed to testify it was that they weren't allowed to examine a witness without a proper account being made about this closing binder the witness by which they wanted to use this closing binder was not even there had no personal knowledge of it there could lay no foundation and so the district court rightly said well you can't examine this witness on a subject matter of which this witness has no knowledge what they were really trying to do was just have the lawyer argue the case with an exhibit that the witness could not provide any testimony on and the district court was well within its discretion preclude that so with my limited time available i just a quickly addressed the attorneys fees issue the parties here in the contract bargain for attorneys fees and yes they bargain for attorney's fees in the context of arbitration but the parties entered into a stipulation in this case and the district court essentially ignored that stipulation the stipulation was t d m had actually commenced an arbitration and that but the arbitration agreement did not cover all of the claims that a part of the claims were an arbitration part of the claims would be in district court that was extremely inefficient for the parties the parties both agreed that did not make a lot of sense so they entered into a stipulation in the arbitration that said attorney's fees after that arbitration and i agree you want to that's exactly what it says but you can't read that agreement in isolation to the stipulation because the parties stipulated right in the arbitration that they would agree to remove enough to encompass their rights i believe that entitlement to attorneys fees is a merits issue under the under the contract a part if if it just as though a contract provides that the parties intitled to jones you could say that it is but it doesn't say that but i actually submit it does say down where it at because i think that's what the intent of the parties was and so i do think yeah in hindsight can people pick apart and say well you could have actually put attorneys fees in this provision couldn't have you yes we sure could of but we had it very broad the intent of the parties was d simple here in arbitration we don't want to have two proceedings going on simultaneously you take that arbitration claim and you it into the district court that was the agreement and all rights would remain and i submit that was the agreement and by the way no one has argued otherwise there's no evidence in the district court that that is not what the intent of the parties was the district court didn't even get into that stipulation it simply said as follows the contract says arbitration since you moved it outside of arbitration no fees didn't analyze what the effect of the stipulation was didn't take any evidence on that issue and didn't resolve the issue there is no evidence that the parties agreement was not as i just characterized it remove this from arbitration put into district court all rights remain the same because i agree judge owens has said that it used the exact words you use will we be here arguing about these i submit not but the district court didn't resolve that question and i think that that language is broad enough to be read in that fashion and that if the district court's view that it's not then the district court should have held an evidentiary hearing to find out what exactly was the intent of the parties on line because there certainly isn't anything to the contrary and the district court simply took the approach that says arbitration you're not an arbitration rule sixty eight dollars on your offers of judgment which this circuit has said because it's a state law issue can be applied in federal proceedings and we've articulated that issue in the brief the district court in our view simply penalized us because we penalized us because our offer was too large by the fact that we made our part to not lie that you just lump the whole thing and for sure that his record did not like that but i don't think that that's a fair characterization of the record and we submitted in the supplemental appendix we included all of our we put a detailed affidavit setting out what the amounts were and we included all of our billing records redacted solely to maintain privilege so this was not some circumstance where we just threw out a large number and then said we are entitled to what we have the detailed declaration establishing why that number was what it what it was and the billing records to back it up and i see that i'm out of time so i the argument that section sixteen somehow was part of a mistake or mistaken contract would have you in my in my in i judgment respectfully to court is not supported by those paragraphs which number t judge man actually vacated his summary judgment orally after he st denied having st made it we were shocked we were really quite surprised number three as far as witnesses not being permitted to testify  and finally the arbitration the th point i think that the meaning of that clause at least to our way of thinking was that it that it addresses a nd trial and the cost of that and the there was no arbitration trial and certainly the predicate was not a fault of having a st verdict a measuring method or standard and what have you was not brought forward into the  thank you with my one minute remaining i want to turn back to this point judge owens to your comment about that last paragraph in the stipulation it says and i needed to refresh my recollection about it no party is waiving any arguments or defenses on the merits that it but that goes on to say rather the purpose of the stipulation is do agree on a forum and ensure that all of the claims are living it in the same form again reading that d in total i submit what that provision mean that i don't believe that anybody would really dispute this what that means is we're going to take these which are otherwise subject to arbitration we're going to move them over in district court all other rights for mains and just like you wouldn't of had a jury trial over in federal court on the claim that they remain in arbitration but the fact is is that the parties agreed because they wanted to save time money and expense by consolidating them into a single form no one was intending to give up the rights to say by the way if we win we now forfeit our right to attorneys fees or this contract by moving it out of arbitration and the district court simply disregarded that stipulation and i think the court for its time unless you have questions  me thank you both for your helpful argument in this matter it was well argued and we always appreciate that thank you court is recessed until two o'clock this afternoon