how the court stumbled i'm going to say it again because this is key you cannot on the one hand conclude that a contractual provision is unambiguous and on the other hand interpret that provision two different ways the relevant provision in in the contract in the two contracts and i realize the court probably can't see this but i put it on one page you're going to have to take my word for it it's exactly the same in the march t h agreement and in the october nd agreement it's the there is not one even the say it uses even the same bot the october nd but on page eleven of each or is where you can see where the district court went wrong literally in two sentences members of the panel that appear side by side in the district court's order you can see where the court looks at this same language  these two contracts and reads it two different ways same thing i've got these right here i realize you probably can't see it it appears in the bottom of page eleven but as to the october nd agreement when reading that language it says this summary judgments proper because terminations of the agreement in did universal warranties grant of authority to national financial to solicit and service any contracts  it looks at the same exact language in the march twenty six contract and it says because universal warranty has paid and may still be paying any commissions do national financial there can be no breach of any duty to pay such commissions and so the court grants summary judgment on the march two thousand and six contract this was there the court on the one hand declared the language in the october  agreement on ambiguous by while on the other hand looking at that same language and interpret it in your two different ways on the march twenty six contract apart let me interrupt you because i thought that the key here is the three little words on behalf of and i'll be half of it is in all of these i think two and is that is that the sentence you're referring to yes it is paid only it's paragraph seven b this is th so we're talking about the same thing absolutely obvious why on behalf of if we understand the pull the three little words on behalf of tell me why that doesn't basically resolve this case well it's certainly very important the words on behalf of are really important and the question is what's undisputed members of the panel is that after these contracts were partially terminated national financial continued to service on behalf of the company and got paid that's undisputed but the district court held that that same on behalf of the language seven b mitt something different in the october nd contract than it did in the march twenty six contract and that cannot be you can't have the same language up the surviving terminations on the march t the district court made a finding of fact on page six and again on page eleven that the letter fully terminated these contracts that's a finding of fact the court can't do that that's for the jury the language of the of the of this very letter suggest otherwise it in visions ongoing service by national financial which of course explains why they did continue to service long after the april th letter was sent but there's another in permissible finding of fact that the district court concluded that the servicing that was performed post terminations only applied to the marks twenty six dollars contract and not to the october nd contract that's a finding of fact the jury should have an hour behind you a little bit  slowly catching up as you can tell now you say there's a textual conflict i hear you say in the district court's order page eleven versus another page of the order right no no it's both on page eleven so it says two thousand and three universal rep agreement gata ok that is relating to the october nd agreement the court says there that that terminations of the of that agreement inde universal warranties grant of authority all right and then right below that on page twelve of these opinion he says it's an ambiguous and then he applies the parole evidence rule but right above that in the sense that appears above that he's explaining why he dismissed or granted summary judgment on the march th agreement same exact language issue here and what does he say he says because universal has paid he's dealing with this inconvenient fact we've got to really you know our cases are you got stubborn facts this is a stubborn fact and the courts trying to deal with that stubborn fact so he says here they have a may still be paying commissions do national financial there can be no breach of any duty so he's saying there was a duty to pay commissions but that duty has been no don't think that's necessarily sole isn't he actually saying there's no dispute they've been paid and so at that point there's no question about whether a duty was breached or not breached because they've been paid and j it's not a justiciable question at that point isn't that really what the judges say in there but judge erickson in order to get there he has to conclude that there was a duty we're going to have to conclude actually not because he could conclude that there was no duty but payments were voluntarily being made or i could say there's no issue of fact it doesn't really matter it's not it's not a question i've got to decide you know i was only decide the questions that are actually disputed but but what he did decided he said that this language is on in big us and then he was he went ahead and assigned a different meaning to the same to the same language judge erickson and watch once you once you do that you've got to have a jury because that's not within his it is probably it's what we ask in a little different way i notice that the ultimately sentence that i got up front of me thousand and three the october nd agreement is the agreement that's at issue it's the one that we are alleging was was breached it applies to all of their vehicle service programs and that in that the want to agreement is in products top right that's correct correct and this other one is sounds bigger representative agreement right it is it's broad it's not product specific ok so can that justify the inconsistency if there is any between those two sentences no it cannot doesn't language that the court dealt with is exactly that whole paragraph seven and seven b which is the whole focus both for our live for us in the district court is exactly the same in the two contracts the court has to that's when he's deciding that there was no authorization he's looking in at seven b and saying well once it was terminated there was no way to continue to service on behalf of and what we are he goes wrong there it two ways number one the terminations letter did not fully terminate these two contracts because you can look at the terminations letter and see it in visions ongoing service after terminations so the court made a finding of fact that was incorrect that without even getting into pro leavitt's he made a finding of fact that there was full term an issue rather than insurance let me let me address the that particular issue because i think the key here is is exactly what your honor said the phrase on behalf  of this case and even though mister bartle has been busy trying to talk about inconsistency in the court's opinion what's missing and what's never been presented either in the district court or in all the briefing here is what's the alternative meaning of that phrase that creates ambiguity there is not it can only mean one thing and once that determination is made that that to currently service a dealer on behalf of the company requires a current active grant of authority to do so on behalf of the company a grant of authority that cannot exist after the contract so tell us why those aren't inconsistent and don't show there's ambiguity they're completely consistent and primarily it's because the judge in those paragraphs is talking about two separate contracts that address two separate items contract number one was only as to vehicle one as a product and that that contract is no longer at issue in this case if you look at footnote three of the court's opinion the pla abandon any argument under the contract at the district court made no argument about it on appeal and the reason is because it does not get them to the end they seek which is damages arising from the sale of a different product l i premier so whatever the outcome on contract number one involving the one i think what the district court did was say i don't have to talk about what that key language means in that contract for two reasons number one it doesn't create a claim for damages as to the sale of ally premier and number two it only involves the sale of the one products ok so as a footnote inconsistent with the ultimately paragraph on the judge said i don't have to talk about that st contract at all because the claims been abandoned but i will and when i look at it i see it's only talks about vehicle one and there's no damages because the plaintiffs have been paid any commissions that might be due under so he had many reasons to say that claim fails that's not been appealed what's been appealed is the claim for breach under contract number two between the party of yes and asking i can't resist asking this question as i don't think it was br that in this area there's a volunteer doctor and a volunteer doctor and about payment sometimes you can use and sometimes you can't and you know brief anything about if you voluntarily make payments what it means and what does it mean in terms of a contract did not that issue was was signed back at the time that contract was created the company honored its promise to pay those amounts it's not what the case is about this case is about whether the plaintiffs are entitled to commissions on ally premiere under the october contract contract number dollars and that's where this critical language comes into play that contract was terminated there's no question about that no question that the company had a right to terminate it for any reason on sixty days notice  once it was terminated the agent's authority to act on behalf of the principle ended that's a function both of the contract itself which expressly says so and a function of very basic principles of agency law that if you're authorized to take action on behalf of a principal and a principal says that authority is now ended the the agent has a duty to cease acting on the principals behalf now hel correct the geographic footprint is different on a superseding question i would say what you have to look at is what is the subject matter of the contract and whether they are that subject matter is the same in both instances here it is the contract is about authority to act with respect to a particular product the fact that geography is changed goes to kind of the same argument the plaintiffs are making which is  obligations likewise changed between those two the point is that when the same subject matter is covered by the two contracts changes that have been made in them you implement the later of the two and it's an alternative argument that we've offered it's not necessary for you to address because if the on behalf of language is ambiguous as the district court held if that's correct you don't even have to go there if that's incorrect then what happened was once we get to two thousand and ten the party sign another contract governing the same subject matter the scope of their relationship as principal and agent and when that contract changed the geography that was authorized and changed the payment provisions assuming it did our contention be that both say the same in different ways but the nd contract with superseding control again judge fisher decided he did not need to address that i think for the same reason he decided he did not need to address the on behalf of language in the st contract because there was three other ways where the plaintiff's claim failed and so he didn't need to need to get there or address that you know it's interesting your hon you know this record is ninety percent extremes of evidence it's not about the contract this case has never been about the contract because i believe the plaintiffs understand that you know their best case was to try and find a way around  what they missed was that nebraska law and maybe even more strictly in some other states in our circuit is has a very hard and fast rule about what happens when a contract is unambiguous as this one is  is cannot be considered whether it's course a performance whether it's what former employees may have said about a different intention none of that may be considered because the contract itself defines the relationship and know i think that's true and i think i think judge beam used the right word when he talked about that in the and p p d case and he called it bolstering and i think that's right you know the court says i've often addressed courts have looked at a contract on the language unambiguous but decided to go ahead and bolster the conclusion of their opinion by talking about course of performance or other extremes of evidence but but what you will not find no matter how hard you look is a case from the nebraska supreme court that says we think this contract is unambiguous but we're going to reach a different result because of the extremes that get it's in this record that just what the supreme court has said is improper it's a sequential process in nebraska step number one is to ask about ambiguity and ambiguity only matters if there are two reasonable ways to read the language in the contract you have no been presented with an alternative reasonable interpretation of the sentence that matters here because that sentence is clear and ties the agent's authority to act to the existence of a active contract and the october two thousand and three contract which is the tool the plaintiffs seek to use to gain these damages on it on the ally premier product was terminated and once it was terminated any authority to act on behalf of the company under that contract and and the other kind of global perspective i think i'd like to offer on these issues is to remember what kind of relationship you know from a kind of a big picture what kind of relationship these contracts created you know this is a limited grant of authority to someone  so particular to do particular things in particular places it was not exclusive meaning that both the company could appoint other representatives in the same territories or use its own employees to sell competitively  likewise that meant that the plaintiffs who represent multiple product lines could go into the same customers and sell different products if they chose there's no sales minimums no commitment to do business with each other unless it's a matter of competitive choice and competitive preference as we've said these contracts were terminable by either side on six days notice giving both sides flexibility to engage in these business relationships as they  wished and importantly after terminations the contracts are very clear that there was no restriction on either side to compete with each other for the business of the dealers and you know in the briefing mister bartle talked a lot about the you know the relationship efforts that these salesmen make to develop you know strong relationships with these auto dealers having a contract of this nature is a huge advantage for those agents who have those in person relationships because if they choose or you know to end their relationship with ally or of ally chooses to end the relationship with them they bring in all state they bring in whomever  say my friend dealer here's another option for you the flexibility that this kind of contractual a ship creates is a great advantage to the dealers who signed it it's also also creates important flexibility to the company that administers these contracts and really what the plaintiffs have tried to do in this case is implement a fundamental change to that kind of very limited business relationship on the basis of either extrinsic evidence or alleged misrepresentations that were made long after the fact that are flatly inconsistent with the relationship that was made on a contract that says if you want to change these terms you have to do it in writing and both sides have to sign it there's no question that nothing like that happened no question that these gentleman run sophisticated businesses they're doing one million dollar deals they know exactly what their contracts say  and to come now years later and say you know let us out you know implement some sort of you know binding long term business relationship that is the antithesis of what the contract claims is really what ultimately brings you back to where we started which is there's a very clear provision in these contracts that says after terminations you have no authority to act on behalf and w terminated but it doesn't terminate the k it says it terminates a contract but then the question is a what do you do with this authority to service and it specifically says you should be paid a representative and it's the it's the nd paragraph it took an impermissible finding of fact for the court to conclude that there was a withdrawal of the word tell me where in the letter now i've got  place but doesn't it say in the manner described in section five of the universal corporation vehicle what the program represented agreement as contemplated by the parties ok the but but but the  key issue here judge is it's it's the same it's the same language in both up and the question is did they continue to service and was that authorized service this is that there was a  there was no amendment if there's there's this state you've seen us talk about the stuart letter it's written about extensively which shows another error by the court by the district court having deemed the contract him big us the courts constrained right it can't looked at other stuff well it did it look to this stuart letter and the stuart letter is a is a letter and this is the stuart it's dated march a letter a minute on saturday of agreement that have the word special right but here's another issue judge that contract it supposed to amend says that it can only be amended in writing signed by both parties this isn't signed by both parties so here's the here's the bigger point the stuart letter becomes really important to the district court to explain this inconvenient fact of ongoing service and the court says i'm not going to consider it in an amendment but he looks to it and this  evidence it's not an amendment so he violates the he says that it's an invader us and once he does that he can't he looked at one letter and ignored twenty years of course