i understand that but i'm just asking you for a clarification on the time you have three minutes allocated is that correct each take their time and then you'll have your consolidated time to answer all of that and then they'll have their short time for rebuttal yeah you're welcome that's why i said we want to get this straight now where start and with this court the st time that it was before this court the court concluded it disagreed with the district court's conclusion that the settlement agreement is on ambiguous and in fact this court ruled that a plain reading of section four of this two thousand and eleven agreement that we're here for today shows that the language is that at least ambiguous and that's the phrase that the  used and it reminded the case for further proceedings so the issue is why are we here again and the reason why we are here again and we shouldn't be obviously that's our view the reason that we're here again  the district court basically despite the ruling of the night circuit stating as a matter of law this contract is ambiguous and at least ambiguous the district court said well we're going to rely upon the legal opinions of former counsel for my clients and there are major major major problems with that number one being the law of this case was determined by this court and it's a matter of law in hawaii as i think in most jurisdictions that whether contractors ambiguous or not is a matter of law and at that point there's old as well as a recent hawaii case law that says once there is a determination that a contract is ambiguous it's up to the trier of fact to figure that out and specifically the hawaii supreme court or the appellate court intermediate court of appeals has said you don't get to right but this is a little more nuanced because that has to do with whether certain of the communications may have been in pune and to lang and that's a little bit different than a lawyer saying it's ambiguous or it's not whole group of buyers suing the developer here what was very clear is he had one communication with the client about this from our client's perspective he said just sign there was no advice given and price admits he didn't advice or to the terms so there's no factual basis to get to your author's point to say oh well you know this is what this means because i'm a lawyer and i negotiated he didn't negotiate it serving affidavit up and then spring the summary judgment right and i think that's one of the things i think that takes it out of that very clearly is the plain language of this contract itself which talks about hey if you give us this extra money you've got extra time and those additional deposit those additional payments might be forfeit if you don't close but it's completely silent what about the initial deposit somewhat about hawaii law and one of the things so we would see rest respectfully submit that in your honor and it's also nothing new under the sun parties or in litigation everybody's still serving the interests i would respectfully submit but i think that's a that's a a big problem the other problem is mr price had a massive conflict which is he wanted all of these cases settled in a big package and that's why he's urging her to just sign it and i agree on i mean jury could sit there and say well you know i don't believe ms but the jury should have been given that opportunity specially all you're asking us go back and then let everybody state their case or speak yeah and your honor this is not despite the it's sort of like the trojan war here it's gone on for so long but the trial itself and again i'm appellate counsel you know we did you both agreed by law clerk days again but this is not going to be the world's longest trial presumably there be a representative from iron gate saying this is what the intentions were and m would testify because that's really what it boils down to the other thing your honor i think that you know it was important that got lost in the shuffle here is everybody including iron gate agrees on this pretty fundamental view of hawaii law under the government's case which is just because you have a deposit you still need to show that the damages that you've suffered have some rational relation to that deposit and so here that the court just said well i agree with these guys and then there's no thin about what about the fact that you even if they don't believe a word my client says they still need to show that there's some rational relationship between these huge deposits and their damages and that simply never happened here and and they kept the unit which went up in value so there's no damages here and they're just piling up windfall after a windfall and we think it's completely inappropriate and other things like unclean hands unconscionable ety and just their basic burden of showing yeah these monies we kept our commiserate with our damages they just never proved it just never got there and that's even if the the ambiguity is that this court has already pointed out we're completely ignored  that you know summary judgment was appropriate up to a point you're saying is don't mean this relationship wrecked is the relationship issue something that could be decided on summary judgment and terms of the relationship between the deposits and the no your honor they would have to show that they had that's clearly a question of fact to show look this one point four that's commiserate with the last that we got now if this were back in two thousand the clause in the two thousand and six contract said that they could retain the deposits up to fifteen percent of the deposits or their actual damages whichever was cringer correct so if they don't show damag percent the answer under hawaii law is no i understand the plain language is exactly as your honor quoted it but so there's two points the fifteen percent the twenty percent that extra five ought to be coming back and less y if you don't have any real damages and that's the problem here is they don't have that's why they're obviously fighting and i'm sorry it looks like about my time inflections of one minute on the rule eleven sanctions pretty much everything that could go wrong with the rule of the motion did go wrong they violated the safe harbor provision they awarded it against a nonparty which is problematic and they imposed in a case where my client has been paying by the hour it makes no sense to say i believe this case is for of less but i'm just going to keep on spending money pursuing a frivolous case and despite numerous attorneys have supported this case i just wanted to put that in there thank you very much at the rule of an sanctions itself it appears that the horse sanction itself was based on the filing of the st amended complaint which the district court held to be frivolous in nature now when we look at the standard the it's an objective standard and the standard is whether a competent attorney would find that the pleading was well grounded in fact and warranted by law now this is not a subjective standard ok so d it's basically what would a competent attorney who's faced with this situation before the filing of the st amid a complaint believe that this st amended complaint is well grounded in fact in warranted by law now what we have in this case back in two thousand and seventeen when the st amid a complaint was filed the attorney should have known that this issue  decided well issue had been decided by the th circuit regarding the two thousand and eleven agreement and they had held that it was ambiguous as a matter of law now we also knew at that particular point in time that there were four prior attorneys who had filed pleadings in this matter and these were competent attorneys as well there's no indication that they weren't otherwise and then what we also knew back in two thousand and seventeen is that  there existed a file from attorney price and that this file was turned over to mr flynt now contained in that file and you know that just report went over  certain e mails in the underlying motion however he failed to address e mails which were set forth to the court and these e mails are important because it goes to the intent of attorney price and these e mails were cited in the record st of all there is a june th two thousand and eleven e mail i'm sorry a june still using provision d thirty seven dollars from that original sales contract and that that provision at least an iron gates mind still applies well district courts conclusion and then based on that also decided that mr fleming no reasonable attorney without information was probably the st man to complaint so if the two are inextricably intertwined if the court were to reverse summary judgment on the they filed were those differences significant how did that cause any prejudice to mr fleming in this one well you know i'm not going to say i can't sit here right now and say it was significant all i all i know is that it did not strictly comply with these substantial simple similarity requirement of will leaven however i mean i realize that you know if it didn't comply with the strict requirements then we could go back down and then be faced with another rule levon motion so i would rather address the merits of the rule eleven motion right now and save your remaining  time i still got one more minute your honor and i would also like to address the july th e mail from warren price to iron gate as just an evidence that warren price's intent wasn't crystal clear as far as the deposits and what would happen to those deposits in the event of the terminations also i would just like to mention that the gomez case was around for any competent attorney to review at the time the st minute complaint was filed and on top of gomez very is the shanghai investments case and i know the court had a question for mr revere as to what happens who makes the determination on damages for the  deposits and whether it's reasonably related to the actual damages incurred by the seller well in that case in the shanghai investment case they were dealing with a similar issue on how to make that computation and the court specifically referred to the d s case and said quote it determination of the proper amount of damages if any is within the exclusive province of the jury since they are the sole judges of all disputed questions of fact so therefore a competent attorney at the time the st minute complaint was filed would know that that the at least would have a trial issue to take to the jury as far as whether this withheld deposit was actually reasonably related to the damages incurred by the seller or i engage in this particular case  are several layers of issues here and i'd like to st address the issue of basically the undisputed facts and lack of any material facts relating to the understanding as to the tw settlement agreement judge mchugh and you mentioned in response to argument of mr revere that there is the issue of imputation of the belief and understanding and intent of the lawyers of sundays and how does that play with respect to the issues here i would submit that i think it's been briefed there is not only the imputation there is the issue there's two other issues one has to do with if you take all of the evidence at face value in terms of miss wang's knowledge and she was the sole representative an owner of these yellow se dust district court correct in concluding that there was no issue of material fact in essence when you boil it down and i'd like to come into the record a little bit later on specifically at that's miss wang testified she didn't understand at worst she testified that she relied upon her counsel and specifically asked them to explain section four and the undisputed evidence of her attorneys were that they provided her with explanations as to what those posada but he didn't understand the contract and he told mr fleming he wasn't really involved with this he may have spoken with this one but he doesn't really remember so there seems to be some kind of conflict in the record with whoever prevails as to what the attorneys role was with respect to the negotiations of the contract and what they may have may or may not have told mr juan and i believe that the state of the record on that and i think we're into the nd part of that is understand and what was she told as opposed to what you did but right and i mean that's that's really the crux of the matter because you're saying she's the principle of sunday's child and so it's her intent that's significant and you're trying to get that it's  imputing statements her attorneys have made to establish intent and as another issue on that point the cases you cite don't seem to involve using an attorney's knowledge or statements to impute intent think we've said it all the way cases that are relevant to that point your honor and none of them say that i think the closest we have is to kruger case which basically talks more in terms of a client which i think is another problem here in attorney who was in fact the attorney of the client making representations and concluding a transaction would be have for the client right that's the group case so that that's the extent of the oil law that i think we were able to find you know we're kind of back to where we issue of a sudden evaporated on remains because it seems to me that is the law of the case and it's a factual issue and to overcome that i guess you're saying that we would ignore  sunday's child wang's testimony is that right no i actually suggesting a couple things i think with respect to wangs testimony her deposition was taken before an fact her deposition deposition was taken and then she waived the attorney client privilege which unleashed all of the documents that but for that waiver we wouldn't have seen one starts to moni in her deposition was ranging from i didn't have an understanding to i read a page or two to i relied upon my counsel and asked them what it meant and the only other thing that's in the record is wang's declaration which was not part of the opposition to the summary judgment to my understanding it was submitted in opposition to the sanctions motion which is conclusory at best and states contrary to what she testified in her deposition that she would have never signed  she knew that she was going to lose your deposits so i think the key here we have literally all of the testimony and sworn testimony of all of the people who had anything to do earlier testimony about reading it or not reading or reading parts of it not understanding it but that does not seem to be in direct conflict with the specific issue of if she had understand understood what our gate proposes to be the meaning of the contract she wanted signed well i think one of my points your honor is that this declaration was submitted in opposition to the sanctions motion after the motion for summary judgment i believe i don't believe there was a parallel affidavit or declaration submitted in opposition to the separate judgment so when this one came up it came up after the fact and i believe it came up i believe the date is after the court heard the motion for s recall is that at the time i was quizzing her on it that other then mr fleming allowing her to testify as to the the screaming match that apparently happened preceding the signing  exhibit that she was instructed not to answer a lot more questions about what happened but i believe the gist of her testimony is it's what's in the record at this point and that's she had reduced to its lowest d common denominator no wonder standing and where you have counsel who had an understanding clear understanding and efficiently and neither of them were representing her in these negotiations and there's conflicting testimony about their involvement or what they may or may not have told her you know a few years later they say that they advised her of the material terms of the two thousand and eleven agreement but at the time there's indications in the record that they didn't represent her in th we should impute counsel's belief or knowledge to establish the client's intent not something like contract formation but her actual intent her state of mind i think that to the extent that her yes to the extent that both counsel had a clear understanding of the document and to the extent that mr holmes soda i can come back to the record your honor but i don't want to pass by the the record in terms of them that the the but that may not be true but isn't that the whole issue of fact now infused here i don't think it is as to who represented ms whining and who did what with respect to the negotiation of the agreement she said you you've  issue with the declaration suggesting it's a sham affidavit without necessarily going to that test but she testified that she received no legal advice from his father about the two thousand weapon agreement before she signed it and she also testified that she asks how to explain section four but he didn't understand it any better than she did and you didn't understand what it meant and she also testified that prosecutor unspecified legal advice about the agreement though process for that never reviewed the material to testify that he basically took her through the document including section four including section they explained to her in terms that they both testified that before during and after the agreement she was told in no confirm that he had spoken with me about the agreement before she signed it that said your so fifty to fifty one i'm not saying which is which statement is true but it does seem there are some conflicts in the statements i think the i think that the the evidence taken at a minimum is weighing before her at the end of the th hour declaration in opposition to the motion for sanctions her testimony was unequivocally that the testimony is clear that one said she at best didn't understand oh so did testified and i can refer to the record that he explained section four and section eight to her before she signed that there was no question that what the intent was and his precise language was one of the reasons we went through that and for all of the running around we did at the end was because by signing she would lose her deposits and mr price also left a message saying that she would only have a claim for deposits and she might not be able to execute or collect on that judgment  also requested a tolling agreement for so these seem to be actions that indicate that he believed that her claim for the deposits would remain after the two thousand election agreement well i think those are communications that happened before eleven and it related to him representing her going forward which was iron gate had told all buyers who were in default that if they didn't close that there would be proceedings to basically keep the keep the deposits and file a lawsuit so what he had said because wang was not or sundays was not made a part of that litigation he basically said we've got essentially a standstill and they moved forward they negotiated the agreement and i think it's a salient point sunday's had until may ten two thousand and eleven to agree to the terms of the final settlement agreement on may ten at four sends an e mail to iron gate and confirms that he's been told by ingrid to accept and then the document is signed the following day i think the record leading up to that agreement is crystal clear that almost every one of the documents that came out is a waiver of the attorney client privilege told her you are risking losing your deposits and the the negotiations proceeded and the documents i believe are absolutely clear i mean this court and i know judge ferris you were here two years ago when we argued it's the last time we're going from the proposition that the law the case in is the fact that the document was determined to be ambig but the district court had the ability to look at the entire testimony before it and i think that the three prongs are and i understand there's a difference of the user at this point that yes the one that precedes it basically explained to the client what the result was of her feeling to sign the agreement which was consistent with everything that had gone on before the sign me the agreement and after it so i understand what's in the document would we have to make only factual determinations if we did not remain honor i don't believe this court would be making any factual determinations it seems to me if we have the issue of factual determinations those factual determinations shouldn't exist and our argument is they don't we have to discredit this while i think you have the right to look at her late declaration which to me is was not submitted in opposition to the and making it a term i don't think you have to weigh the evidence i think that i believe you can choose not to recognize the declaration as being one that was not submitted in connection with the opposition to the summary judgment and i think you can look to her sworn testimony in the deposition which leaves the record simply that at best she didn't understand that question on the table as if if you don't have that at the post summary judgment declaration then is there a factual oh  and that's what we were scrambling with over there it's so in answer to the governor's question about would you have to make a factual determination the answer is yes and you'd have to disregard what mr price himself was saying contemporaneously because at yard to two hundred which is in july which is just to correct my colleague mr o'toole was after may in july of two thousand and eleven he is stating in black and white contrary to his later deposition testimony she might have the right to get back anything over fifteen percent this is net of iron gates costs and fees which again goes back to my point which is don't they have to show d that we think  client this is what he's writing not copying the client writing the developer iron gate if i tell her her rights expire in ten days or something some lawyer will file something so he doesn't say some lawyer who's filing something frivolously or otherwise and i think the problem with mistral tools argument is everything is construe the evidence in the light most favorable to his client which stands rule fifty six on its head and when clearly both mr price and iron gate at the time right after this is side what did they both do they both go back to do you thirty seven in that original two thousand and six agreement so they both very clearly thought that is the initial deposits there are certain consequences about how things play out in those initial deposits it wasn't magically going away because one iron gate provided notice the excited to be thirty seven