really a factual dispute so i'm going to limit my argument to some specific points in the brief without intending to waive any of the arguments in the brief i think the briefs the briefs set forth the positions pretty well but i want to really highlight what i think is one of the a significant air of the trial court below and granted a summary judgment motion against my client the parties entered into a stock purchase agreement in two thousand and six one of the terms of which was  the company is the owner of all rights title and interest into each of its intellectual property assets free and clear of all liens security interest charges incumbrances equities and other adverse interests and has the right to use without payment to a third party of all of the intellectual property assets that's an affirmative representation that was made part of the deal was there were notes and there were some issues regarding whether or not we were paying on the notes and we get su in a counterclaim we assert and the counter claim was filed in january on january twenty third twenty thirteen line five that all power had the ability to transfer this intellectual property to r b c without any encumbrance whatsoever also on page five of the counter complaint lines eleven to twelve rankine stand did not provide one hundred percent of all powers intellectual property assets free and clear to argue c and again these types of allegations are made at page twenty one and under the various causes of action page twenty three page twenty seven anywhere in the counter claim to why find anything relating to boeing or p m a you don't your honor and that's because at the time the counterclaim was filed we didn't know about the boeing claims and so i think that we had some due diligence you did before you finalize a transaction  know well it's in the asset and the stock purchase agreement we are not obligated to do a due diligence and had we done and gone out and looked through f a a files and public records could we have found it possibly but they had an affirmative duty to tell us what they were what they knew about it and the contract specifically says we have no duty to do a due diligence that's why you get reps in more entities if i want to buy something from you you're selling me m and m's and there's a container of them over there and m's and you give me a representation of what rep and warranty did they violate here they said they were giving us the intellectual property free and clear of all incumbrances without payment to any third party so the real issue comes down here is that the court in granting the summary judgment motion said that that was a new theory that was not asserted in the counter complaint but i just showed your honour's that it was actually asserted in the kind of complaint and were a notice pleading theory of pleading you have to put the other side on reasonable notice of the claims that are being made we didn't know about issue at the time we filed the counterclaim so we could have specifically identified it but i don't believe we needed to specifically identify it then we get down to june fifth of twenty thirteen we learned about this claim right around early june late may of two thousand and thirteen on june fifth of two thousand and thirteen before the summary judgment motion is file mr hicks and i attend the deposition of my client mr williams on the east coast where he tells him i've just learned of this issue all this is in the record he goes on at length in his deposition about this p m a issue he learned that boeing was now making a claim for royalties we then have on the seven july letter that says no actual royalty agreement had been entered into but they failed to direct the court's attention to the very next paragraph that can forward communications regarding regarding the goshi ations regarding the world he agreements so this is an issue that's fresh off the grill so to speak boeing is approaching r b c saying that look you're using this property that is our technical we have the rights to it's our intellectual property and you need to pay us of realty and they're in the process of negotiating that that letter is on a twenty six thirteen one month later approximately on nine hundred thirteen they file their summary judge in motion so this wasn't some sandbagging this wasn't some surprise within one week of our discovering the issue we made it known to them they had ample opportunity to do discovery on it then on ten seven they take the deposition of mr gorst on ski for the second day and the better part of one hundred thirty pages of testimony is directed to this very issue so for the court to say that this was a new legal theory being raised in the case was just pure air made that point  of the merits of that issue the merits of that issue are there is a rosy agreement it's entered into now and we're having to pay boeing money for the sale of these parts and so there is a factual issue as to what our damages are in connection with actual issue as to whether there was any misrepresentation or or actual breach with regard to these these i think these agreements which are not my thing agreements and which could have been discovered and which their depositions r b c is normal practice is to never be a stock purchase and they do asset purchase in this case rankine wanted to stock purchase for tax purposes and to do that we wanted to have extra reps and more entities because of the potential liability that comes about from that and there's there's no obligation to do a due diligence if you have reps and warranties and you have contractual promises that you don't have to do a due diligence so in other words again the green m and m's i don't have to look in the box to see if they're green if you're promising to me the green well if you're looking for green m and m's or licensing agreements there were no licensing agreements between boeing and power or other i know there were what was called  technical desist letters right and so what we so our complaint is that you ran kind or you all power and people told us that you have the rights to sell these parts free and clear without us our obligation to pay any third party and that wasn't true because part of the ability to sell those parts was based upon technical assist letters from boeing that they never  in is the declarations explain there are multiple ways that you can get p m a part of manufacturing approvals and one of them which is through a technical assist letter so they didn't disclose that these parts were manufacturing under technical assist letters from this is a counter claim which if you are a separate counter claim there might be limitations period problem when they're well i don't think so because  the contract it says these claims can be brought at any time so i think it's a contract which which right are these claims claims relating to the property the rights of the intellectual property but in any event because it is a counter claim you can always have equitable offset if the statute is passed and i don't think that's been addressed in the brief but if a statute is passed you can often use the statute use a claim even as barred by the statute to offset affirmative recovery from the other side  agreement the offset is is consistent with the contract so that really is another factual dispute even though the note said that without offsets of any kind or nature the fact that the williams declaration and again they think the court on the summary judgment motion got it wrong saying we submitted no evidence when the williams declaration actually did say that no it was intended to limit to those four issues but again i wasn't planning on arguing that point we think the court erred on that and as  factual issue that it could be consistent with it but we can't rely you can't rely on the general counsel's declaration that's not what the two thousand and nine amendment says maybe what he intended it to say my viewpoint frankly is maybe you have a beef with your general counsel but if you just read that the way the district court did i think you just record got it right and again you know i'm not otherwise we could have the authors who negotiated any agreement saying no i meant blue no i meant red oh we've got a question of fact well no not when the language is pretty clear on its face and here it's pretty clear and even if you have the agreement that says without absence of any kind it doesn't mean we can prevent the we can't defend against a case by saying that performance was excused because of the material they're material breach of a contract so offsets are different than excuse and different than waiver and different than release so even if even if the no is interpreted as the district court found in the summary judgment motion that we cannot assert offsets it doesn't mean that we wouldn't have other defenses to know and which we believe because of their material breach of contract and not one disclosing the t s a that boeing had and the number two and not misrepresenting that we could take all of the intellectual property rights without payment to any third party that is a material breach of the contract on their part of where exactly where what parts of the intellectual property part of the statute you're of a contract you're lying i'm not looking if you look at page eighty three point two two intellectual property if you look at page eighty six of the record on appeal and i and you see at the bottom part of that where the company is the owner of all right title an interest into its intellectual property assets free and clear of all liens security interest charges incumbrances equities and other adverse claims that intellectual property assets has to find right and it doesn't seem to encompass this it wouldn't compass and because it's the rights to manufacture are there show me where it is well i don't have the whole agreement in front of me  morning or owners quite an hicks for the pallies and plaintiffs the plaintiffs have been trying to collect on these notes for now almost ten years every time the notes come due r b c makes a differen as to why he shouldn't have to pay is a dragon seal the boeing situation that's what his primary argument will be what is what counsel failed to tell you he did recite some of the facts in the record but what what he said was that that the deposition constituted a legal theory and the theory provided in response to the iraq tours was that the plaintiffs failed to disclose existing licensing agreements that required the payment of royalties we served a subpoena on boeing boeing said there are no such agreements we moved for summary judgment then you have this new theory that you've just heard about today which is that no no it's not the the exist it's not existing royalty agreements we're talking about it your relationship with boeing during the negotiations in writing the underlying contract there were requirements to de list certain agreements with boeing they were to what are called t s o s p m a's and then we did list all of the ts oh you so anyways back to the the point being that when we first heard that the actual argument is not the that there are existing agreements but that we're negotiating we might have to pay that was raised for the first time in summary judgment and now yet exist today they've changed it again this is not in the papers what he just told you today is now we actually do have an agreement and we actually are paying royalties what he just said that is not that's what he said in discovery that's what we defeated the present to the court as defeating that point he said no r b c said no that's not our theory it's we're negotiating now today he's saying council saying well i just just kidding we do have an agreement now so but yet case what is your contention about why there was no disclosure the legal theory that it was advanced that the district court did not consider it was that we are in the process of negotiating a licensing agreement that will require the payment of a fee that's that what they're complaining about now right it's unclear they seem to be complaining about all three they're complaining about something one day something different the next day and here we are today now we're back to the first one so let me ask you straight forward here during the disclosure period prior to the signing of the agreement did you provide them with copies of or learn them to assist letters t s o s p m a questions i i honestly don't know that it's not in the record i don't know i know that in the disclosure schedule that would be attached to the agreement there are lists of boeing authorisation for ts of those p m a so i'm not sure it is a matter of public record they're all attached to the to it's  the record so i just don't know if it's before you did extent to which they were just good or if that kind of assumes that they're required to be disclosed because in the in the contract provision that you cited it provides having to disclose the know how necessary to operate the business i don't believe the record before you should disclose that's required or that they're even used well for some reason boeing wanted to negotiate a licensing a royalty stream and something they didn't have with you right you did not have a royalty agreement with boeing the plaintiffs in two thousand and six at the time they sold yeah i do it's not in the record i guess i just don't know well if you did you would have just closed and they're not argu as i understand it if there were such an agreement i don't know whether or not it should have been disclosed i don't believe there was such an agreement and the reason is we subpoenaed boeing and asked them what licensing agreements exist and they said the record doesn't tell us why boeing decided then after the sale to negotiate a licensing with the new buyer now the new company you know you're not squarely in so far you haven't said are you at least have been a little fussy about whether it is your position that these following letters are or aren't covered by the intellectual property assets definition of the contract  worry about whether it's probably in the case because they they lose they are not intellectual property they are part of the record you can i don't mean to let show property but they may not be intellectual property is defined in this i don't think it's intellectual property in any capacity it's simply a letter intellectual property not necessarily because at deposition when i asked the corporate counsel i said is boeing threatening to revoke these assists letters if you don't agree to pay the royalty and he said we haven't gone there yet so i don't even think the record before you could could support that because boeing has been a seems to me you're being a vase or for no good reason lest you think there's more wrong with your position then appears and i mean i don't understand the question i don't  what the question is very simply if if these letters are in fact have in fact resulted in royalties is all just know never mind because they're not intellectual property assets as defined in the contract and i think the problem is that that issue simply was not brief that i don't i mean i thought it was phrased ok and let me just go ahead i just want to bring count if i can bring back to bring us all back to the standard here an abuse of discretion did the district court error by failing to consider this theory i don't think we even need to get to the barents of this they did not disclose this theory they certainly didn't do it in the complaint because by counsel's own admission it didn't arise until after the complaint was filed the theory asserted in discovery was different than what they relied on in opposition to the motion and their core in the coleman case we all agree the coleman case controls and under coleman the district court could not have erred by refusing to consider the case if we have to or we feel we must consider it your opponent's argument is your client made a material breach of this contract by failing to disclose something with boeing why is he wrong because in order to have a breach you have to have some sort of damages that's one of the elements of the claim is that we might have to pay in the future based on an agreement that does not yet exist so let's assume for argument that there was a breach or that are that there was a misrepresentation you can't have a breach unless there's an actual agreement that requires the payment of fees it's not the claim is not right on  and just to address a few of his points i disagree that we've changed our theory on this p m a issue in mr williams deposition he said he had just been contacted by boeing and he was in negotiations so he didn't say we have a royalty agreement right now he said they're change its relationship why is that their fault it's their fault because they knew that the rights to sell this these parts were based upon boeing intellectual property rights for which at that time boeing was in charging them but they knew that b those letters is not a self and evident proposition isn't well i think that if you get letters to do something and they want to charge for it they charge for the job you did it if you look at the williams declaration it does put forth evidence that this is an intellectual property rights boeing for which they could charge for and that's why this isn't a proper for summary judgment because there's all these factual issues did what did they know when did they know it were starting that they knew it they didn't tell it to us and it and now we're having to pay for these these rights and i'm over