morning rounders i'm steve vai from atlanta georgia and i represent the appellant's in this case page plus of atlanta incorporated at snap prepaid l l c we are here basically asking the court for five items of conditional finality seems like an oxymoron to me and so i'm just a little skeptical of our jurisdiction we have a case in this kind of a setting where there one thing that both parties agree on and that is under this court's prior rulings in the case of hicks and in the burgen financial case that such dismissals do impart finality you have to forgive me for saying i'm the most skeptical of finality when the two parties agree well what i mean we there's one thing we know sure is that parties can't consent into article three jurisdiction i didn't mean that what i meant is we agree in terms of the argument on the issue that the hicks case about conditional dismissal was a dismissed without prejudice that could be brought here here we have something that is even more restrictive they could only bring the case if in fact the court were reversed that's what the  dismissal said and that well it's less and more i mean what's going on is you're not the statute of limitations doesn't continue to rise in this voluntary dismissal i think a fair point can be made there is no such thing as a voluntary dismissal without prejudice if that was a claim that was part of the nucleus of operative facts race judicata little pli anyway he didn't bring it in the original case if you voluntarily dismiss it quote without prejudice you may think you did it without prejudice but that's assuming race judicata law doesn't exist so i'm just not sure what that means in this setting where what's going on is the claim really stays very much a part of the case only if only the case was coming up on appeal but you know and this is a this this case is also distinguished from other cases this is where the successful party you don't think you could use rule forty fifty four i guess we could your honor but that's not the way the court might signed it was discussed with him and he viewed it as a final judgment yes you know i'm making the point that no one raised the question of whether a conditional dismissal creates a problem for finale purposes this is news this is a new topic for conversation in this case as among the two lawyers and the district court judge i don't honestly recall or it seems like it was raised at one point on parties felt comfortable that it was a final decision but i honestly can't recall those specific discussions there was a conference call with the court over the order well i'll ovens we still have the problem but bottom line you don't you know you don't think there's a problem and i guess you're relying on the second circuit in the federal circuit and saying the other circuits i indicated the court ruled to a sponte that there was no assignment from page plus to snap this damaged our case because the other issues we want the court to affirm is that  breached the contract with snap and prepaid after the assignment by not changing its prices appropriately the court the pricing provision in the contract provided two things first that page plus and then snap would get the lowest price available and also that if changed its network trusses price that the price of other distributors would change in the same amount the way this was done was by discount so for example if my client had a twenty two percent discount another client another and other distributed nineteen percent discount and then i will move my client's discount to twenty percent and have to move that other discount up two percent from nineteen to seventeen percent that was all it was supposed to work never did that changed my client's pricing and that breached the right without changing the pricing of the distribution that reach the agreement you need an assignment to bring that plane correct ok and we believe the court's decision on that was wrong for several points first on several points first the court didn't give us notice of the decision the way this all came down was in march of two thousand and twelve in the process side of this and then i read your story and you know i am just not sure i'm following the prejudice point here another words if if you are surprised by something the judge or the other side does and you can say the surprise created this problem for litigating this defense or this positive claim then the surprise seems to make a big difference but i guess i'm skeptical that has this proceed in what i'll call the normal path and i agree this is not the normal path i'm just not sure how it would have ended up differently i can't i can't quite see that from the record be seems like the evidence of assignment what evidence there was not in writing the word doesn't appear anywhere what evidence there is of it was put forth and so i guess i'm just kind of struggling if we were to send it back to judge so far and say you know you kind of jumped the gun and this was a funny way to get to this issue please do it again do you really think things are going to end differently absolutely you've got to keep in mind as users that paper out there exists no no and there's a need to be if it can be an oral assignment so there is no documents and they don't even have standing to challenge that they don't have a dog in the fight if party a says i assigned to party b they do not have the ability of challenge that unless they can say that the sign was somehow there was not a sign of one of the contrary standing standing idea they're being sued they don't want to be sued this is a way to avoid being sued right but you can't challenge then assignment is only challengeable for several different points if it's not assignable under the cut term of the contract you don't have that here there's a lack of title no argument both parties agree to have been assigned that it was there was some revocation there was never any revocation a chance that the nonparty would face duplicative liability they're not going to face duplicative liabilities put the point this way if i sued out i mean just i just for a while the lawsuit saying i have the right to sue out under this contract they're not allowed to say what you have no connection with this you don't have any rights under that contract that was in the signed you they're not allowed to assert that that no they're not because they're not a party to the assignment and if r t a says i assigned at the party in body party b said yes you did that's it they're not being asked to they're not being asked to pay twice only me asked to pay once so yeah that's exactly what i'm saying do not have the right to assert that defense saying that you agreed that i signed it to you and i agreed that i assigned it to you yes ok but obviously you didn't assign it to me so i suau out can't say what are you doing jetset you have no rights in that concho it could say that if the parties had not agreed or if there would be an issue of a lack of title that would be an issue like attacking a lack of title there is no question that heroes they have standing to assert claims about the lack of a proper assignment if there was a lack if there was any contention that there was lack of title there was no contention and i guess i see your point but anyway the contract is not it was not assignable and the livonian property holdings case we believe says that  first consideration is not a necessary assignment that is not supported by consideration is not invalidated through under ohio law i believe it i know i haven't seen any ohio law that says one way or the other but the fact of the matter is that there consideration there is a difference in ownership structure i realize that relates to consideration between the individuals not the companies but snapp said we're going to propose we're going to perform this contract you have to perform any more page plus that's consideration enough we're going to make them we're going to make the money take the obligations you're no longer bound that's consideration there doesn't need to be money changing hands so the courts issue holding that there was no consideration there's also the idea that performing a contract in the abstract could be consideration but what if it's just a license i mean it's i mean could you have a set setting where you don't have to do anything and in a way it's just a gift you're just saying to somebody hey here's the exclusivity arrangement or the licensing arrangement whatever it is there's no obligation to sell anything if you choose to sell things you do it under these circumstances so in that if it's that kind of an arrangement i'm not sure how you're sparing page class or p p a whatever it is any burden because they didn't have to do anything the rules were only if you did so here are the rules for how you sell well i believe they've got it we've been terminated from material breach if the party just stopped selling because that would in fact frustrate the purpose of the contract and therefore the contract would have been terminated but how does that show your sparing the burden they no longer have to  perform there's you know the burden that you could lose money on the deal there are all sorts of things that could happen and they were save the burden of performing out of the contract snap assumed all rights under the contract snap assume performance and i'll do it and deal with snap as a snap or the s and we also are asking the court to affirm the decision of the trial court that as i mentioned i'll break section seven of the agreement by not providing us rent by not changing the prices of others when they changed our pricing they also are asking the court to affirm the trial court's ruling that the issue of material breach should at least have gone to the jury they contend that material breach allows them and get out of jail free card to get out of contract free card that is handled under the contract with merely and this is where the contract reads we will send you a letter changing the prices exhibit c is therefore in the exhibit c would be amended so there is no requirement that there be a signed writing by both parties and that is a that was a procedural irregularity all of a sudden a judge goes off on these tangents relating to materiality assign a billions over the never been raised on summary judgment before  worry about it if you do we are all yours i won't claim great insight but i'll just make our position clear we tried to do that in our letter brief but just to make sure there's no ambiguity we look at hicks hicks seems language of the dismissal itself was that it was conditional in the sense that if there was a reversal or modification that we would be granted leave to bring it essentially so we would have to file a motion for leave it would simply be taken care of but we don't think that it is similar to the language of the case in for example the f c c case or the purdy case which had if and only if language that said you can never assert frankly i don't think that was disc discussed or considered by the parties of the time i don't think it was just on the parties mind we were dismissing without prejudice we believe that it created a final order if the court finds that hicks is a we think there is jurisdiction if the court finds of that is not that hicks is not a political and that this should be governed by the decisions of other circuits that dealt with conditional dismissals and it would appear there is not jurisdiction and i think that's just an issue for the court to t thanks thank you your honor is the principal issue on this appeal is whether the district court erred procedurally or subs and delay in issuing a summary judgment finding that there was not adequate evidence of an assignment to present to a jury because of its central to the appeal i'm going to address it first as opposed to any of the other issues raised on the appeal or the cross appeal we believe there was no error in this regard either procedurally or substantively it is important to know that this case was preceded by an earlier case filed by p p a and another unrelated corporation called airlink in two thousand and ten that case proceeded through litigation and it was at the towards the end of the first year of that litigation when there had been depositions of the parties principally the p p s principal owners and officers that the issue of an assignment first came up so in the course of that entire first proceeding which was begun with a verify complaint that alleged claims on behalf of p p a that began with a motion for temporary restraining order seeking to require out a continue doing business with p p a and included discover sponsors one of which and that's in the record in  answered in or out of turn number four i believe it was said specifically that only p p a had in forcible rights under the distributor agreement in question so we went through that entire first year of litigation until the issue and that's why they can't sue today we think that's part of the evidence that there is no assignment and those also constitute judicial admissions that bar them from introducing evidence contrary so we don't think it's the sole reason but it is part of the analysis and it was certainly part of the evidence and analysis it was properly before the district court the so it was after that roughly a year of litigation that the issue of assignment first arose says you know it's a contract performance over a year should be in writing is the problem here that this was unnecessarily for more than a year or the the problem we looked at that your honor trust me we would raise that if we thought it was a good faith argument and we unclear that while in the contract itself for the sale of goods it would be more than five hundred dollars under the u c c in ohio would have to be in writing it was unclear whether an assignment of  had to be in writing so we did not view that as a particularly strong defense because we cannot find a law on that but what we found was we didn't challenge the technical validity of an assignment whether  you know whether there was some technicality we challenge whether there was ever an assignment and you asked your honor what does ohio or require ohio law has said repeatedly that when somebody comes in and s assignment seeks to establish an assignment they have to prove an assignment the same as if they'd have to prove a contract is a contract they have to meet the elements of a contract so they have to show mutual assent they have to show a meeting of the minds they have to show a contract that is definite as to as it's just it's essential terms and they have to show consideration and courts in ohio have gone into that in some detail investigating the testimony of the parties to the assignment as to when was the agreement reached what was said how is it said is there writing if there is no writing what's that the evidence of the orla si is there consideration what is a consideration and when those elements are not shown the courts have said there is no summer there is no assignment and courts in ohio to clear the hammered case that we saw in our brief has granted summary judgment saying no that you would would you agree with me you wouldn't ask for consideration if the assignment was just this stream of dividends from a company for the next ten years and you just said hey you're my son you get this for the next ten  years i'm assigning you my rights under the contract the stream of dividends you need consideration well that's not what we have here though you're ok so why isn't this close though i don't think it's close at all because in what you're discussing you're centrally contemplating the assignment of or a right to payment in other words like a right to sell this is a mutually had to execute to worry contract that it still had almost two years remaining on it so it was not simply an assignment of a or right  payment it was it was a full assignment of the contract that track to contract to sell contract to buy a contract to transition certain parties certain accounts to owl so it was a it was a full contract of duties and  furthermore your honor i'm not aware in ohio of any case drawing that distinction that you're wanting to make that says that well if it's this type of an assignment or if it's gratuitous or something like that that it doesn't need to meet the elements of s position is they don't cite any ohio authority for the proposition they cite to keep two jurisdictions that have adopted different approaches than the restatement or other commentators and i looked to ohio law because this contract was plainly governed by ohio law there's never been a dispute about that and ohio law says if you want to sue somebody on an assignment you have to prove up your sign and if you can't you're the issues of the evidence when the evidence was mounted up it was overwhelming that it showed no assignment had been reached and there was alternately really no quantifiable definite factual evidence of an assignment again it's been established from the beginning there were no documents a stablish in the assignment which in and of itself is compelling this was a these are not unsophisticated parties both parties are represented by counsel had been represented by counsel if there was going to be an assignment if they had actually intended to make an assignment they had access to qualify counsel who would have no doubt said well we're going to if you were an assignment we're going to give notice how that never happened you know the underlying contracted require our approval i mean it did kind of leave it loose  as to what happened well i disagree that left it loose your honor what it left was is that they had a right to assign and we've never contested that they had the right to assign but that doesn't excuse them from actually assigning other words an assignment like so many things that are that courts and lawyers deal with it's a legal act and there are requirements to determine whether that legal act has happened or not happened ohio says then an assignment  like a contract and i'm certain that this court has addressed many contract lands where it is concluded we're sorry we understand you're making a contract claim but you can't prove a contract here you can prove the basic elements of the contract is no different here this is not a novel concept it is simply the same sort of process that we all engage in every day in courts have to make decisions on that claim again al in its counter claim in the second suit which was filed on behalf of p p a and snap asserted a counterclaim for breach of section two point one of the agreement so but but i was simon you have to agree to snap no and let me if i can finish my answer your honor we pled the first claim for relief against p p a only for breach of section two point one we against p p a and snap jointly in the event the court found an assignment existed or the jury found that simon existed so we have always conceded and understood from the very beginning that if there is no assignment from a to snap that we would not have a contract claim against snapp we understood that the two go to together the only claim we would still have is the potential claim for breach of contract against p because contrary to what counsel for the appellant has said even if they assign it that does not automatically relieve the assigner of liability again under ohio law we assign or obligation to transition certain accounts to our will and instead what they did is they transition those accounts to snap and snap proceeded to sell roughly twenty million dollars worth of product  to those two accounts for the remaining period of the contract and it was that your due to your deals done it was a it's cracked it ended in two thousand and ten year so it was a two thousand it was a two year contract it just seem a little strange to say there was no contract negotiations that they contemplated a name change and that was a discussion at the the highest levels of the negotiation in the signing a contract so they told us or be a name change there was never anything else where they said we're not just changing the name we're changing corporations so we had no idea and again it's not ours burden to figure out that there was an assignment it's their burden to prove that there actually was an assignment and that's where they  and then in their deposition testimony the principals never identified with any specificity how or when they reached an assignment what exactly they discussed to make an assignment and indeed in their first depositions before the notion of an assignment was raised mr harris who was the principal owner of both companies testified quite contrary to an assignment he testified that they kept p p a alive because that's what had their contract and they'd sold product from p p a to snap well that's not evidence of an assignment that's evidence of a difference in a relationship between a company's fundamentally they never amassed evidence that was sufficient to go to a jury so why did you move for summary judgment and your honor the the reason that that develop that way is that the the sort of peculiar procedural posture this came up in again the issue of the assignment came up late in the first case which was dismissed then a new case was filed i have cme out of time i'll just finish my answer if that's all right the new suit was filed previously filed motions judgment on other subs in the vish use were refile and resubmitted in the second case and those were decided and almost all of the claims were dismissed the court granted judgment to owl and to p p a on two claims it was after that that we completed discovery regarding the assignment that was completed at the end of july believe end of june of july we had a trial date in september so by the time all of that was done we were into the trial process motions and the many were due and it developed into that patient the court then notably denied our had proceeded to get supplemental briefs specifically told the parties that it had reached a point where i believe this was a matter of law for the court to decide and then it was going to do that and it did that thank your honor we fundamentally would ask that this case be affirm the fact is there was never a motion for summary judgment in this case they keep saying we put them to their burden of proof we put them through their burden of proof they filed a motion in limine e and they lost in the court said this issue's going to the jury now they're coming to the court so i'm expressing if we send it back then they can file the motion for summary judgment is that right and they will lose because we will be able to put in all our evidence to all our briefing something we were never given an opportunity to do you have to keep in mind how many pieces of evidence that are not in the record know my clients would testify a trial that they assigned and so forth are they could file affidavits but there would be the affidavit of the account but there would be enough evidence to show at least a question of fact you know the judge found that he been some concerns and said i'm going to think about this he didn't mean for the next six months he meant over the weekend when he issued an order denying a motion in limine and the next thing he did relating to the assignment was ask us to breach the issue of what the effect of a jury holding would be that was the last word we had so we have it's going to the jury go to the jury and let us know what's going on and tell us what happened in the jury decides that was a procedural posture of the case when the court called us up on friday afternoon said you know i've changed my mind i think i want to decide the issue even the assignment now i bet that surprises you doesn't it and it sure did because we were never put to the test and remind me why i mean because all of this would go away if in this case this claim could have been brought by snap and or page plus right because then you would have to worry about assignment one way or the other someone would write why in the first litigation that eliminated page plus is right  contrary to what they said we sent them and they asked us for a information on the new corporation that they would be dealing with so they knew that the contract and moved to a new corporation making the point why in this case couldn't the claims be brought by snap and or page assignment to snap and we i mean we rather than pleading the alternative and trying to dance back and forth we just we just told the truth the first case involved the wrong party plus page plus the interactive tory answer was among these two parties which as the claim we said page plus we got into the new case we realised that that interactive tory answer was incorrect and therefore we amended it so there was no judicial admission ok thank you very much you have thanks to both of you for your helpful briefing