signet to tow the logs rig into the gulf of mexico the contract contain a requirement that log provide signet a minimum of seven days notice of a sale date for the to the contract did not contain  particular phrase ology or form for the notice and signet had not previously contracted with log to perform toast services so there was no course of dealing between the parties regarding the form or language for the notice of the sale date pursuant to the contract signet was responsible for the insurer portion of the tow and crowley maritime services was responsible for the offshore portion of the to as a result careful coordination precise coordination between the parties was required for a successful completion of the tow of the contract between log and cygnet for the insurer the  not contain a window the contract between log between crowley and logged for the offshore portion of the tow did require a drawdown window for the tow where log was to provide crowley on certain set dates with an ever narrowing window for the tow segment was aware of this requirement on june twenty sixth two thousand and fourteen long provided crow not signet crowley with its contractually required notice of a twenty one day window june twenty eighth through aug seventeenth for the toe this was thirty days ahead of the first day of that  saying in that e mail we will narrow the window to fourteen days on july the fourteenth on july the fourteenth in an email just to crowley log narrowed the sale window to fourteen days from august fourth to august seventeenth now this was fourteen days prior to the first day of the preceding preceding ever narrowing window on the very next day july the fifteenth in an e mail to the entire toe team which included not only crowley but also signet blog and five of the august fourth to august seventeenth window this communicated to sit in that notice of a sale date of august seventeenth the last day of the window at the latest and signet beginning to ready its vessels for sailing by that date on july the twenty ninth seven days prior to the date of the preceding noticed window log advised the tow team that it had informed crowley that the tow would be at the back end of the window that is closer to the august seventeenth date and then finally on august sixth long delayed celt sale date to an entirely new window from august twenty ninth to september twelfth in cygnet immediately began engaging log in discussions about payment of a contract base postponement fee for the delay past the last day of that window just as crowley did cygnets appeal raises two issues for review the first issue is whether cygnet gave notice of aug seventeenth sale date the second is a fee shifting issue as regards the first issue even if the district court was correct to reject cygnets principle argument that the july fifteenth e mail from log was notice of an august fourth sale date that is the first day in the window the district court nevertheless erred in neglecting to address cygnets alternative argument that the last day of the window aug in response logged first contends that cigna did not raise this argument in the district court so it should be precluded from doing so on appeal cygnets argument is not new but was raised and preserved in the fifty six face on here you got it today been struck you know all these e mails go holy documents you know presumably counsel makes all the arguments there and assuming for the sake of the of the district court's conclusion with respect to the fact that there was no delay damages awarded to signal that it in effect did reject the argument but we considered that error because the district court in its fourteen page opinion nowhere i dress as the alternative argument related to the aug seventeenth date as the sale date that was noticed at a minimum and all of the evidence we believe demonstrates that the july fifteenth e mail at a minimum said that this last day of the window aug fourteenth was aug seventeenth rather less was a sale date this is consistent with the documentarian evidence that was presented and it was consistent with the theory of the case as presented by sickness in terms of the court nation of this again i'm not suggesting etc judgments what's on appeal so if there's evidence in a record it was preserved cetera et cetera but the evidence otherwise allows affirming the judgment to weigh did you know is it really reversible error if the most you can in the opinion it's that opinion is totally silent with respect to dealing with this evidence related to august seventeenth as the last day of the window that is an effective notice of the sale date all of the evidence was in the record we believe that in fact the communications and the testimonies undisputed on this point and because it is undisputed that gives this court the right to denote the overview with respect to those undisputed facts in order to assess the district court's assume the legal conclusion of rejecting the argument because i think your honor is correct about that but it erred in that legal conclusion in rejecting the argument partially because it was silent and it really didn't ever deal with it and partially because the evidence is undisputed regarding the communications and the documentary evidence that this august seventeenth date was an effective notice to cigna to get its tides ready and it did get it starts reading and in fact the the complexity of the towing project viewed as a whole required that there be careful coordination between signet and crowley so when that july fifteenth e mail goes to the entire toti and not just crowley it was a communication to signet that look we're coordinating all parts of this toe through giving you this communication that is an effective communication of a sale date of august seventeenth at the latest maybe august fourth maybe that we're we're not appealing the district's conclusion that august fourth might not have been the effective notice but at least august seventeenth was in terms of was communicated to the entire to team so yes your honor i think there were subsequent communications there are certainly communications when that toll was delayed to an entirely new time signet actually engaged log in connection with discussions about payment of the postponement fee which was do under the contract before my time is is gone i'd like to jump to the argument regarding  alternative argument your honor is if the post if the postponement fee and the notice issue doesn't go our way that paragraph twenty nine is as a fee shifting provision in the face of the american rule should be construed strictly and because its language requires that fees only be awarded to a prevailing party seeking to enforce rights under the contract was that the contractual terms in this case are contained in the contract the contract included not only the blanket charter it included the request for quote as well as an email in the blanket charter paragraph twenty say about if anything about attorneys well one included a reference to the terms of the contract that's one and then and later stipulations it included shorthand references to the fact that the contract allows for the prevailing party to recover attorney's fees court costs and defense costs that is a shorthand reference to the terms of the contract and was in no way intended by the parties to alter the language of the contract itself what what what we look at in the pretrial order is the language it's used in the pretrial order as you know there's a lot of case law f civil cases in this circuit that pretty well say that what the parties put into pretrial order overrides a lot of other things that may have happened before that so there's surely was a prevailing party here or there will be a prevailing party if once we rule on the on the merits yes your honor i understand what you're saying but there are two parts of what was included in the preacher out water there's the preacher out water includes a reference to the contract terms  the say we think it's a weak appeal the appellate raises an alternative argument of an august seventeenth trial date which they never clearly raise in the court below at trial they in fact argued specifically that this july fifteenth show teen e mail was and this is their words in the in a pretrial memo susceptible of only one meaning in august for sale date so everything at the district court focused on the aug fourth sale date the judge was never asked to all rule up on an august seventeenth sale date and in fact because the contract required specific notice of a specific sale date it would have been totally inconsistent to argue that the sale date was either august fourth or august seventeenth those days a separate about fourteen days when under the contract we only had to give seven days notice and in another effort to overturn a contradict things that happened in the district court the stipulation that was entered which followed the same exact wording in the pretrial order was not simply that paragraph twenty nine covered the attorney's fees it was that under paragraph twenty nine the prevailing party whoever that may be she's entitled to to recover attorney's fees costs and defense costs turning briefly to the argument on the merits again we believe this is an entirely new argument the case in the lower court hinged upon and i suppose this appeal hinges upon the july fifteenth toti e mail which discussed the window a window of august fourth from seventeenth signet was not owed a window it was only seven days notice signet kept saying that that notice was susceptible of only one meaning if it meant having vessels ready for a tow on august fourth as i point out my brief cygnets post from brief referred to a sale date of august fourth twenty two times i don't see one reference in any of that briefing to an alternative sale date of august seventeenth now if signet had made this argument it's witnesses could have been thoroughly question as to how seven days notice of a specific sale date was either august fourth or august seventeenth date separated by almost two weeks or so but not clearly making the argument a lower court we were precluded from asking the witnesses about that inherent contradiction again cygnets arguments centered on specific language in the july fifteenth e mail saying that all total related activities need to be ready for august fourth and we also covered in the district court in cigarette was not given windows its common sense in the industry signet had toads nearby crawling was bringing toads from far away for a much longer tow they needed a lot more advance notice signet wanted windows and in the negotiations we refused to give them windows now that's not to say that we took advantage of them because they demanded four days charge to hire for a twelve hour tow and also at the end of this contract we did delay one day because of weather and we lived up to the contract and we pay that extra day so we paid nine hundred fifty thousand dollars including one day a delay for twelve hours or so now the e mail specifically said total related activities had to be ready for august fourth that's what cigna concentrated on just short of his because otherwise it was a broad window referred to in the e mail and signet was not entitled to it to a broad window now signet eventually admitted that there were a lot of total related activities other than getting towboats ready they had to have a manual and emergency plan and they had to be channel closure which signal it was had agreed to handle the channel closure since they are down there and they deal with the coast guard all the time that was the main reason they got this to tame email giving the window of august fourth to seventeen because the coast guard wanted anywhere from two to four weeks advance notice so we had to make i'm saying be prepared cygnus experience in the industry they they knew exactly what was meant by that now at trial cygnus witness jason my euro eventually admitted that there was absolutely no support in the contract for his main argument he sent an email in a letter any also argued at trial that the declaration of a fourteen day window created a firm commitment during which law would ultimately be allowed to declare the sale date you know we asked him where in the contract did he get that from he had no answer for that he eventually admitted that there was absolutely no support in the contract for that that was a window it was not a sale date again the total team e mail just gave general notice of a broad sailing window it was not seven days notice of a specific single day  had asked for when does signet knew they were not entitled notification windows they knew they were looking for seven days notice of a sale date and i think very important the district court noted several internal emails which are almost like smoking guns and lawyers love using that and there aren't that many smoking guns but these are close to smoking guns because these emails consistently showed that even after signet received this two teen e mail nominate the five specific tugs after a log dominates a final sale date so these e mails specifically show that cigarette was waiting for a specific sale date they were not acting on this broad notification window which was given to the entire could be a seat could be a sale date even though we continue to contend that the record was completely void of any arguments by signet that august seventeenth was an alternative sale date with respect to the attorneys fees the parties to the contract drafted and agreed upon the contract language they agreed agreed in the preach on water and in separate stipulation that the prevailing prevailing party was entitled to recover water but she said you guys in full agreement all of these if you all are i like to have a separate stipulation just refer to those facts so once again the parties agreed on all those facts and specifically  stipulation that was separately prepared and filed that the prevailing party whoever that was was entitled to recover attorneys fees and costs on the paragraph twenty nine it's been mentioned a few minutes ago but let me just put both sides on notice there's there's some pretty specific case law in our circuit that may indicate that because no amount has been assigned to the attorneys case that we'd like jurisdiction to consider that of course would not just like the argument regarding the alternative argument in the wee claims a new alternative argument about the aug seventeenth trial date you know if signet thought paragraph twenty nine was ambiguous if if they thought that the trial judge could have taken testimony testimony on the issue of the if she thought that was necessary witnesses could have been questioned on their own the standing in intent of the provision but all that was unnecessary because signet clearly stipulated that the failing party was titled to recover fees obviously we contend stipulations of judicial admissions which it conclusively binding and should be set aside except to prevent a manifest in justice well more importantly than that if it's i of the parties as to what the cases is all about before trying to show yes and stipulations here were word for word i believe if not word for word virtually word for word of the stipulations of the preaching of the uncontested facts in the pretrial or so of the judge actually kind of want to boot since belts and suspenders on that which which was done now signet now makes this argument that there's a difference between suing to enforce rights of soon to declare rights and even someone incredibly are you that there's no evidence we follow the declaratory judgment action to try to be kept free of liens or preceded attachment or anything like that well of course there's no evidence that record because there was a stipulation that the contract allowed the the prevailing party whoever that was to recover attorney's fees i also believe they clearly and and i appreciate the court concern over whether it has jurisdiction but very briefly you know we think the language of the provision clearly applies log in this case commence legal proceedings that's part of the language of paragraph twenty nine it says if anyone commences legal proceedings to enforce rights and says any rights under the agreement it speaks very broadly of any rights under the agreement so we filed a declaratory judgment action to determine our rights and our liabilities and ultimately obtained a judgment in our favor  and i guess we're gonna argue the bit about the can preach of war during the stipulation but obviously stipulations in and in the preacher order can only be set aside absent extraordinary circumstances signet cites and very complicated cases where we're somewhat ambiguous stipulations where the issue or sometimes the facts would prove to be wrong i mean this was a seventy seven word paragraph that a number of lawyers looked out and all agreed into entitle the prevailing party to recover attorney's fees court costs and other defense costs so the stipulation was in fact an agreement regarding the scope and the application of paragraph twenty nine not simply oh in  to the contract terms and incorporates the contract terms which would include the express wording of paragraph twenty nine there's no reference in the three little short sentences that talk about prevailing party  do attorneys fees prevailing parties do court cost prevailing party is do other defense cost that refers to paragraph twenty nine itself and so there is no indication that the parties intended to alter the limitation that is imposed as the law between the parties when they entered the contract that was contained in paragraph twenty nine with respect to the circumstances under which attorney's fees would be  so i recognize that the law with respect to pretrial the waters and stipulations but these stipulations are not specific enough to alter the law between the parties as reflected in paragraph twenty nine of the contract we're not arguing that there's any ambiguity or that there should have been any testimony with respect to that we're arguing that paragraph twenty nine the limited limitations of the circumstances under which these are w clear and that it's limited to circumstances in which the parties sought to enforce their rights we cited the courts of the sisk in case from the district court of utah a provision very similar to the one at issue here in judgment situation is not the same as seeking to enforce rights we believe that the attorneys fees award in this case is wrong and should be reversed that with respect to  the district court focused on the august fourth the first window the first day of the window in rejecting cygnus argument with respect to the effectiveness of the july fifteenth email to the notice of that sale date but did not address that alternative argument with respect to august seventeenth it's not that with respect to a window even if the first day is not considered off effect of notice that's not inconsistent or contradictory for signet as a party to argue that the last day of that window august seventeenth was an effective notice under the july fifteenth e mail that's because at a minimum  the last day of that window and that this was consistent with the communications that log had made to crowley in connection with the emails that it sent only to crowley but then it incorporated signet and the rest of the toe team this would include crowley segment log and others in order to make sure that there was coordination of the entire top team and it had to give that notice that july twenty ninth email is very important because that reflects a period of seven days before the date of the last noticed window this seven day period was important because it was  correctly that there were negotiations and you requested a window but didn't get a window in the contract yes the record reflect that yes your honor that is correct we did request a window and we did not get a window but the fact that we did not get a window and we got a seven day notice requirement in the contract doesn't preclude the fact that when logged chose to communicate the sale date through communicating  window to the entire toe team that that wasn't also effective notice of a sale like there was no form or phrase ology of what that the notice what looked like that was contained in the contract or in a course of dealings between the parties so when lot received this i mean when signet received this e mail it understood that this e mail communicated that the sale would occur not later than august seventeenth that they might learn it opponent also referred to smoking guns with respect to these other communications these other communications relate to different events and time the go nogo date for when the sale would this concludes the early argued cases for today they along with the not only argument will be submitted we stand in recess until nine am tomorrow