unprecedented holding took this case away from the jury in the middle of trial and because reasonable minds could disagree about the facts to be drawn and a conclusion to be drawn from the evidence this court must reverse i'd like to focus on three points which i outline briefly and then address where is your position that as long as the contract is signed there is always mutual assent i don't think it's necessary for us to go that far on well ok when when can it not be mutual is that if it's if the contract signed i think that in it think that in a case like this which is when that question is raised and in a rule fifty posture that is almost that is almost always going to require the case to go to a jury at a minimum you can imagine if two parties signed a contract on stage while they're performing in a play that and everybody knows that that's what's happening well maybe that's the case maybe that's the extreme case where you've got a signed contract and you could say that there's no way that anybody would ever think that two two actors on the stage are actually entering agreement but you don't have to come anywhere near that kind of level of law  specially in this diversity case that fits the supreme court of opinion has as made clear that the question is whether the there was objective manifestations of assent and here there were plenty it's understood that can solve legal argument when there are one of their arguments is that if it feels too good to be true it's too good to be true and you just can't say aha gotcha i'm going to accept this is is there any validity to that there's no validity that in this case well no in general let's take it in general in general as a matter of virginia law the virginia supreme court has never said that that is the standard in the medical model there is no case that they can cite and they haven't been well ok suppose i offered suppose you and i had some contract with each other and part of it was that i promised to fly you to california for some meeting and for whatever reason the contract said in a military jet the something then i'd have to go by a military jury get could get the government to agree to take you there if you accepted it i think it would depend on what what our communications were the original supreme court says you look at the communications between the parties during chanst there and in the metro realty case the district court judge or the trial court said i just can't believe it's unreasonable to me that anyone would enter this agreement and the supreme court of appeals said that's not how we have value a descent a contract or virginia which it has a very clear black letter rules about assent and here well suppose then that somebody from knox had said had misplaced the comma in the numbers to be paid instead instead of saying you're to be paid ten thousand eight hundred dollars a day for waiting time you get one hundred eight thousand dollars per day would that be binding on i think it would your honor i think it would depend on the facts and circumstances there's no use that says that has had cases where there's an undisputed typo in you omit the more case that chang case and it hasn't forces agreements as written in this case it's always a no where near that isn't so whole affirmed the contract is intended to renew gas go ask them is this what if they tell you that that per day there are some level at which it gets ridiculous and doesn't avert supreme court case cases of virginia say you look at the conduct and the words absolutely wrong or you do look at the conduct in the words and i can agree that there could be a point where become so ridiculous no one could ever possibly imagine that the parties intended into that agreement with where they were your renewing a contract that's been previously performed where there was no dispute and no issue there and remember when the parties enter this contract it's drilling contract it is first and foremost a divine contract mr ratliff testified at trial when i got this contract i expected expected to drill i knew they had been having problems with the company they hired i got a contract i expect a draw he doesn't focus on this as that as a take or pay contract the and besides the last time when the parties would take or pay compensation first became an issue between these parties console came to gas go and said could we cut a deal and reduce this take or pay rate and they did mr ratliff reduced the rate for both drilling rigs by eight thousand dollars per day in response for one dollar consideration if there was going to be an issue with take or pay of course he thought that the work that out down the road this was a drilling contract and he performed it he could he renewed a lease in tennessee in order to house the equipment which he maintained he said i would a multiple of that equipment but instead i maintained it there were employees i would have laid off if not for this contract but i kept them on this is not a case where they expect this is a brand new contract the parties have never dealt together it's too good to be true and there's some kind of typ i would like to talk about football to think that they ought to the contract your damages then are limited to the two thousand eight hundred dollars per day that you subsequently agreed to when you modified the contract i'm sorry i'm not sure what you're referring to told me that you knocked off eight thousand dollars per day for the idol sign for the drill right correct and do you think your damages then are limited to ten thousand dollars eight hundred ten thousand eight hundred minus eight thousand dollars no because under that and the under that amendment that the original rate kicks back in once drilling began again that's right in the amendment your honor and i would like to talk about it consult allegations about this mistake because the jury did not have to believe the account of what happened mr shoemaker testified at j a twelve eighty one eighty three that can solve intentionally put the drilling contract into its system it did that because it was necessary for invoicing it did after this drawn contract and others so they intentionally put the drilling contract in their system and so i want to be clear this is not a technological glitch this is not the systems there were they didn't know what was going on human error it's a human error he said at j age twelve eighty three that he forgot about it and so the question is could the jury have disbelie shoemakers testimony that he forgot about it of course it could he was an experienced negotiator and he's really the individual who's responsible for sign this contract the console is trying to desperately to avoid and if you look at j thirteen ninety eight you'll see that regards todd shoemaker if you go to the next page another document that was emailed to gas go from console it is a purchase order it identifies the two thousand and drilling contract it says that the buyer is todd shoemaker and it's dated may fourteenth two thousand and eleven and that is after the alleged evergreen program in existence is just weeks before these communications between gas pumps can solve out the two thousand drilling contract so could a jury have inferred from these documents that mr shoemaker maybe didn't forget or shouldn't have forgotten about the two thousand and eight joint contract absolutely and then you have the f c c filings were console says in two thousand and ten in two thousand and eleven it was entering take or pay contracts despite the risks that they face and mr shoemaker himself said that when this issue a rose and he took a look at the contract and it j twelve ninety eight he says we figured it out when we read the addendum when it happened so even even if you if we're going to look at evidence beyond what the party said and did to each other and which we think there's no sign of mistake or haste confusion even the issue of whether saul made a mistake here was a question for the jury and there was a basis for the jury not to believe mr schumaker he said that the two thousand and join contract was not a contract purchase order there are at least six documents in the record trial as well that must have been a mistake too and so i want to be clear our argument is not only that when you look at the words and conduct between the parties that there was no sign of any mistake or confusion but also that the jury did not have to credit mr shoemakers testimony that this was a mistake and a technological glitch and it was just you know consult an innocent victim and this is a sophisticated company mr shoemaker had experience negotiating contracts and there was no sign of any hands or mistake in what transpired between the parties and then even if you said the whole thing was a joke i was trying to bluff mr lucy because i didn't think he had the money for this contract that but the party signed it and minutes after they signed mr lucy picks it up and walks out the restaurant and samer says i don't think you understand this is not a real contract this is just a joke now that isn't expressed disavowal minutes after the contract is signed and the supreme court of virginia did not take that into account in finding mutual sent it was said that when you look at different words and conduct between the parties there's a sense of this contract here consoles pointing to all kinds of evidence months after the performance about the billing and all of that we had this discussion about the marcellus shale contract you can as you can imagine console cross examined mr rather about those issues and he had answers the jury could credit but beyond that if you're going with as i said if you want to look at the post contract evidence it shows here that there was good faith performed by gaskill mr ratliff testified he expected to drill he planned to drill and and so we think that this is a clear case at a minimum have to go to the jury on the question of mutual now what if they had said when he bid on that new contract i'm sorry casco bit we were dissatisfied with your work and are never going to use you again and then they send out this form contract would be your position then that your client still is entitle to damages you're claiming in this case i think that would be a question for the jury your honor on the one hand they've said we're not going to get on the next day and they sent a contract i think it would depend what transpired if a here gaskell followed up and said if you want to renew this contract with us and they continue down that road absolutely there could be a basis for a jury could find mutual sent the other document i haven't references that after between that the time that mr shoemaker signed the a insurance this is another indication from gaskins perspective at least i can solve serious about and this contract i'm trying to figure out well if we agreed with the only thing that  is very clear where you have a renewal contract that is ambiguous and silent as to whether you are renewing the contract as it originally stood or as it was amended you can't it is error to just look at the terms of those contracts and try to figure out the answer you've got to look at par evidence and here either consolidate the district court has cited a single case that in that applied the principle that the district court said which is you have to take the good with the bad and he basically applied a rule that says as a matter of default you which again is it is another basis to determine whether or not i actually believe this about the contract at the time or whether this is just something that came up within the course of litigation and so we think that the partial summary judgment should be reversed because there's not a legal basis for it and the district court and consult please the court michael finnie on behalf of console interview knocks energy dollar for a collectively as can solve for convenience i'm also joined today by david gibson a counsel table instead of pursuing the quantum error recovery which may have been appropriate under the circumstances gasket seeks a contract windfall it's breach of contract claim must fail and judgment should be affirmed for a console for two principal reasons first as a threshold matter of contract interpretation on the pleadings the district court the district court correctly granted judgment as a matter of law to console because no result jury could find the parties minds had met on all material terms of gas goes alleged agreement which is the reinstatement of the expired two thousand may take  know when i read this record i have a lot of sympathy for what the district judge did but i'm not sure that you can say is a matter of undisputed fact that that was correct  so i think that what you have to do is to try to tell us why under virginia law this would have been permissible to do with the first the alan case there must be mutual assent of the contracting parties to terms reasonably certain under the circumstances in addition in the model jury instructions make this point the base are all good general principles where you with the best virginia case you have wh enforceable agreement but i think lucy shows is that what's important is the reasonable meaning of the words in acts that were manifestations in this case console's outward manifestations judge by the opposing party in this case  highly relevant in it that's the that's the same contract it's supposed to continue in addition the parties negotiated over this new scope of work when the two thousand a drilling contract ended in august two thousand  gaskill wanted to bid for knox's two thousand and eleven program this was a competitive bid process most notably because it would not have made any sense at the time it would have been completely unreasonable knox did not ask for y think these are all this is what i was talking about think you've got a pretty good jury argument but what i'm interested in is the district court granting your judgment as a matter of law is there a virginia case that does that not the supreme court but i also think what's important is there's not the circumstances such as that are found in this case these are extreme circumstance the take or pay contract the two thousand you tell me your best out of the case number were just would have struck a reasonable person this could not have been what the other side intended i think those types of principles you know the same things is this is it reasonable to consider that we genuinely intended this agreement the jury be in a better position to make that say well under these all you are under these facts there aren't disputed facts actually the conditions of there are there are not well all of his all of the principles testimony was he had he had rationales for what he did the plaintiffs plaintiffs representative and you have so pretty good arguments why that doesn't make any sense sounds  like those those are disputes to back but it is an objective inquiry judge not how not that but you have to determine what facts are before you absolutely but in this case there were no substantive conversations negotiations phone calls that it would apply to an existing active contract in this case it's undisputed that the two thousand and eight contract was not existing you terminated ended it was not current yet the a dent into an addendum to add paragraph  the mail that attach to denham form again it only says that this is a current contract these are our existing contracts in fact mr out was testimony was that when he was out of town when this  can over email that his secretary free resident called him and got across that can solve had an addendum for an existing contract he also testified he knows this was not existing but it was clear from the manifestation of summary judgment record we're obviously challenging his the genuineness of his intent and what he really knew at the time but for purposes of the mean in the minds analysis i don't think we need to go there i think we do have to look at whether contemplated an act of contract and the take or pay nature of the contract is important or said exactly what this is this is not a good price or a really high price for a widget or a service in this case it's a totally different way of compensating a dr company it's a unique way it's not the standard way in the standard i d c contract standby time is provided in sections four point six or four point five depending on which type of contract that's when a driller had already mobilized on must describe it as a human error i believe it's also it's coupled with a system it's because it's all treated all of these forty six hundred contracts in a certain way that were not designed to have any binding nature to not have so all that it's take or pay nature now again take or pay contracts are different because even if a drilling company does not mobilize it could it's compensated in gas goes claim twenty one thousand six hundred dollars a day ten thousand eight hundred dollars for  that is very unusual you know we the guys i say i think these are great jerry argument it's just that they're their man stood up and in testified under oath that he had all these various answers to these in you know not think they're good and they might not persuaded your i think the objective analysis does go both ways that mr ratliff testimony as to his answers so to speak those in the district court was correct in not adopting those instead the question is what would a reasonable company have done and ask was the position under the circumstances that were known to him under the parties park course of dealing with that two thousand a contract under the fact that they had proposed they were perfectly willing to have done a take or pay contract at the time in december two thousand and ten for this work gastro didn't get that bit instead another company did these are big particularly this back talk to me about this attorney client issue sure first of all that the information is not privileged and that issue is teed up with the district court and the magistrate judge it's not appealed it's not privileged information the fact of the attorney communication and so the question is whether it is admissible or not under rule four zero three it is admissible because in this case it's not it doesn't have its relevance for someone to draw an inference of what the attorney's advice was a negative inference about the advice instead gaskell had contended throughout this case both pretrial and its opening statement said that this was nothing out of the ordinary business as usual and also mr rabbit has testified in steps and trial that one things are not out of the ordinary i don't consult an attorney but yet the facts are that he did consult an attorney in this case so it is relevant and it goes to impeach a rebut the idea that this basically his true intent doesn't go to what was communicated by the attorney the nature of the advice the fact of the consultation shows it was out of the ordinary the district they were like fourteen communications in this short period it's a fairly it's over a year period of time there's that there's fourteen indications on there was one the day that the contract was signed there were two on the day of this marcella show been and others throughout the year but there was a chart of of the communications in your claim is i'm sorry you're saying that they aren't arguing that it is not privileged that's correct the fact of the communication the existence of the communication yes they are arguing that the fact that the unification dealt with this contract is that we know that those are the only attorney yes privilege of they're not arguing that that's not privilege no they're arguing that that is prejudicial because it's asking a jury to draw an adverse inference now the case they cite is a parker decision from this court under maryland law but but i think the distinction with park er the core distinction is that there the court said the only probative value was to draw an inference as to what the attorney said that's would have been probative to his or her client state of mind in this according satisfaction in this case that's not why it's relevant it's relevant because it shows this was in fact out of the ordinary despite what mr outwith might want to testify to it doesn't matter what the attorney said and the district court its motion in limine a decision put on restrictions on how that evidence could be introduced in argued to guard against the drawing of an adverse inference you know i would like to take a moment to talk about the rule twelve see arguments i do understand  introduce it if one didn't want to draw some sort of an adverse then for because we want to draw an adverse inference in a different fact an adversary terms about the nature of the communication about the substance were drawn an adverse inference that mr out with knew that this was an out of the ordinary event when he got it's to substitute a new term provision into the reference contract purchase or in this case that is the two thousand a drawing contract is undisputed the first paragraph the denham states the parties agreed to modify the term provision term in quotes to quote read as follows the denim is not defining a term itself it's making the term of another document here two thousand a contract under gaskins theory read as follows then looking at the the form there's a blank section six is titled term so that is where the this cut and paste must occur substantively that the replacement language says that the term of this agreement shall be for one year from the date set forth  this must be in the context ranma context of the two thousand and eight contract section two is a bump that is the commencement date of july seventh two thousand and eight so the modification on its term the on the plane performed in addition would be the exact same agreement that the parties had completed and performed for that exact same time period there's no other way to read what this adenoma language says must be done and you know gas does create an unenforceable agreement this issue was addressed very recently in the cyber law decision and i am out of time i could i have some time for a bottle but  if you have a includes everything so that basically that it there's nothing contradictory about finding out a contract unambiguous the contains an unenforceable bargain between the two parties that concept was affirmed by this court based on that reasoning and like a big begin with the privilege issue briefly your honor the district court the j a n nine fifty one the parties were arguing about summary judgment said that he quote it seems to me to be somewhat a logical conclusion from the facts and quote that mr ratliff must have gone to talk to his lawyer and they hatched a plan to get a big win for that's exactly what is improper about talking about communications between the lawyer and the client and that the mist the district will recognize that an adverse inference about the substance of the communication was the natural inference we draw and that's why it was those privileged the fact that privileged communications should have been excluded not come into evidence also or could mean your debt with your  no your honor i don't i don't think so i mean that's such a prejudicial prejudicial inference to draw about about the communication and that's that the attorney client privilege protects gaskill from having to make those kinds of hard decisions ask who couldn't get into what to talk to his lawyer about because the minute it does that it waive the privilege and has to talk about everything that's talked with and it was not necessary to draw this out on cross examination to talk about whether this was out of the ordinary mr ratliff said so if you look at j eleven sixty seven sixty eight  said that the absence of an effective date on the agenda was out of the ordinary and he needed some time to think about that so there all this is exactly the inference that the district judge drew is exactly the inference that console one of the jury draw and that's improper with respect to the mutual sent question up briefly just touch on that we're not aware of any case in which the supreme court of virginia has rejected the question of assent as a matter of law in the face of a signed contract with respect to the whittaker case which is the six case that mr feeney mentioned that of all the rule sixty offer of judgment there was an undisputed typo there is no dispute about whether there was a mistake and there were no communications between the parties everything went through the court offered judgment follow with the court and then the acceptance was followed with the court there were no direct communications and with respect to the fact that the contract was a mystery mention that there was a different version of the contract  only difference between the contract the console sent back and the contract that was ultimately signed the result two thousand a deal was whether it's console signature on the document we'll consult sent back to gastro to confirm that i want to enter the addendum was the full identical contract with with only gaskell signature so it was not a different version of the identical contract i'm happy to briefly just mention on with respect the contract interpretation the district court recognized three times in its rule fifty decision in addition to there is no way to reconcile those words with consoles interpretation that they argue in their brief well those are procedural words well i'm not aware of any case that says you can ignore words in a contract because that procedural they say oh those that that's a truism well a truism is always true and then their interpretation of those words aren't true because it's not binding or effective in twenty eleven and so we don't think that there's a basis to sustain the judgment below based on the contract you arguing that people attorney communications are privilege natural inference of exactly the prejudicial in the natural inference goes to the substance and that the the only way that the substance is irrelevant unless you draw the natural inference that the district court himself through at will with respect to exactly the terms of the reinstated contract the you're trying to go back to the contract as originally drawn in two thousand and eight is that right that's them says all the only thing they're modifying is the term and all other provisions of the contract purchased were remain in full force in effect so why doesn't that you've got to look at the parole evidence and figure out what the parties intended and here you can look at either the event on where the original contract or any of the amendments and say that clearly on a big usually the parties intended to take wholesale as a method that the latest irrespective of any mistake that can solve did mate gaskell still has the burden of proof on its contract and looking at the plain language of the agenda he cannot create in forcible agreement they haven't had another cause of action based on consoles mistake or not a breach of contract claim for a contract that began june thirteenth two thousand and eleven i talked about how the operation of the term provision does not look to the effective date of the it danno but it looks to a date in the reference target the two thousand a contract in addition what would gaskell is relying on to say well that doesn't reflect the whole of the agreement it's basically two things that the parties intended to be bound state when in the recycles that is boilerplate that is true whenever a contract might be marked or executed it does not have substance meaning the only substantive meaning of this adenoma does one thing it's found in paragraph one and then the effective date argument that the party that executed this agreement intending it to be effective on charm based on a different day in fact that's what happened in the original two thousand economy on the signature page and maybe the best version of the two thousand a contract is the first one we started on day thirty six but on jay one on jay forty one the signature page the effective date for the two thousand a contract is specified there with gastro signature june sixth two thousand and eight that's not the date from what the original two year term when it ran from that's july seventh two thousand and eight that's found above in the two thousand a contract in section two so they're all you know you don't get to that yes i don't get the can and such as absurd results in less this language is ambiguous it's only doing one thing and when you do this operation when it's clearly saying that the term provision of the contract purchase or the two thousand a contract is to quote read as follows that means this entire insert i thousand a drawing contract and must be understood in that context well could somebody understand it the main the date above to be the one june thirteenth two thousand and eleven which just happens to be above this one that w on a superficial reading short of the word above in june thirteenth above but it's how i read it but then again i'm i'm pretty shallow well well no i'm not i don't mean it i don't mean in that sense but i mean like if you read this quickly but that what the supreme court of virginia has said is it's not ambiguous just because you have to actually look at it carefully and spend some time this is not an overly complex agreements or one page or ten but then he doesn't have any it doesn't mean anything here right now that would be true in this case and just like in the sidewalk decision which those the four circuit said the crux of the district court's reasoning was quote the relevant provisions were quote unambiguous and constitute an unenforceable agreement to agree it would not have me you we will come down a great lawyers and then take a short