and here on her good afternoon my mother's top my name is tom davis now i'm representing the appellant plaintiff in this case living ecology and we're seeking the reversal of a summary judgment motion granted in favor of the responded and packaging this is a case seeking refund for defective equipment that we believe should be resolved on the merits rather than on a somewhat tortured series of decisions that lead to an unknown and really disclosed certain statute of limitations that the court found to be controlled or the justice system as a whole is intended to mostly resolve things on the merits unless there's a good reason not to i don't think in this case there was a good reason i think the decisions that were made to lead to the summary judgment decision were all either that it warranted summary judgment against the appellate the st decision was that the parties had agreed to the terms and conditions which were never attached to the pro forma  reference where are they the main point and that is that for a normal business transaction certainly yes but in this case we're talking about and in an aberrational shortening of a statute of limitations which in nevada would be four years in which even under wisconsin law would be six years so certainly there is some obligation to make an inquiry but the the the language referring to the  terms and conditions is not even precise and there's an obligation for being expressed referral in page nine of our reply brief we go through the actual document is titled and how it differs from the three different ways it is entirely separate document of multitude of pages now while there is some duty to inquire about the basic terms of the palaces of the of the terms and conditions i don't think that  a need to do that in this case where it's a complete surprise it references the state that is no connection to the transaction wisconsin this was a purchase of equipment from germany to las vegas nevada henderson nevada and this is something that should have been highlighted or referenced or somehow brought out by the by the seller if it had been something in normal course certainly i think that argument is much more well founded but they do know it's not how do you define normal course are you suggesting that your client did not have a duty to request clarification for some reason or that it's an issue of a multi page document of terms and conditions that is not clearly set out as a separate document even if it had been additional the terms and conditions are set forth in the pro forma in the purchase order so it's not reasonable to expect that additional term would be done unless there's some highlight in the purchase order or unless the document is provided even then quite honestly with the amount of pages i think that's the kind of thing that should be highlighted or brought to the attention of the purchaser that's just to get by the st the st avenue of the whether it was a meeting of the minds i don't think it's reasonable to fight if there's a meeting of the minds when one party has an even seen the portion that they're supposedly needing the council i mean i understand your argument that the reference to terms and conditions was ambiguous but just assume for a moment you know that we we think that there was a clear or an express or just you know imagine counterfactual if you want a clear and express reference to the terms and conditions if that were the case do you think it would matter if you didn't whether you actually received them or not or what wow if we what do you think the legal standard would be in a case where there was a clear reference to some other document but and you signed the contract out of the document if there was a clear and expressed reference to another document i agree we should look at that document and be bound by the terms but if that document is of the  volume that it has numerous got you type of provisions in it i think there's a duty on the part of the the entity that created the document to highlight those this is a pretty serious distinction when you've been under wisconsin law would be six years in nevada law for all of a sudden it's one year but again that's just the st the st decision that had to be made to find some judge and was appropriate and i think the earlier question touches on it that even that is an issue of fact and i think two of the four decisions that the district court made were actually issues of fact that were inappropriate for a finding a legal finding of summary judgment the nd issue that they had to find was that the document available and it was authenticated and we go through in our in our brief one no one showing how that document was available how we could have achieved it i guess that goes to the last question about could we have asked for that certainly  arguable question but there's no showing that they made available to us there's no showing anywhere in the record that it was authenticated for purposes of summary judgment i'm sorry let me just ask you to back up for a  moment why is that or is there really any fact dispute as to whether you could have asked for it i mean i i don't i don't see that there was any evidence that you know they wouldn't have given it to you if even if even if we take you know we accept your position that consensus or a clear implication that there is a separate large document that applies if you look at the three references one reply it applies to a warranty the other one talks about following t following and included terms and conditions does that mean it's a separate document or does it apply to the rest of the of the purchase order as included or or following and then the last one the last one talks about attached and there was nothing attached so and that also references following i think it's reasonable for a business person whom the what's in there is included in there were exceptions in the purchase order there were other provisions that set the  warranty period at a certain place and time and address the other terms and conditions of the deal there was no mention that oh by the way there's an obscure wisconsin provision that has no connection to this case and it shortens your ability to sue either five years or three years so anyway when you go to the nd question about the authentication that was never done to the rd question it had to be decided was that the that the  tied to the warranty that's just a general reference in there and there in far as i know there are multiple documents on general terms of sale this is a specific one and again we reference it in the brief that stated  know at least that is one dated january one of two thousand and fourteen which implies that there might be other ones in other dates and they might have refined those from time to time i think if you're going to hold someone to that kind of a harsh standard you have to specific quickly and we argue in our reply very expressly identify what that document is and that there's no reference in there that expressly documents that that where if we go beyond that to the warranty the last question even if all of that is decided in favor of the respondent you still have to find under the wisconsin statute ology is a merchant to shorten it to one years otherwise it's six year statute of limitations which is the standard in wisconsin that i think is clearly a question of fact and quite honestly if it's to be determined legally i don't see how living ecology can be a merchant in the purchase of a set of machinery that's a one time transaction and that's the only time that it was purchased by this company from the responded merchants are defined in wisconsin statutes for two point one zero four as clearly and regularly like u b s regularly dealing in the goods for which they are merchants there's no evidence that we regularly engage in purchasing machine lines and   this is a sophisticated piece of industrial machinery so i wouldn't be but that fact relevant to the analysis of your your expertise in the use of this good i think it is but we relied upon the engineers and the and the people from bosh to to set it up and show us how to do it they sent two engineers from germany to train us to get it working and unfortunately it never did get working which is the result which is what resulted in this law suit if all four of those to see if it were found to be a merchant and again i don't see how that's not an issue of fact but to the extent there is law and that the the aspect of both goods and of regularly i think at a minimum these are two at least the st one meeting of the minds of the last was merchant are factual issues i think they should be heard this case should be heard on the merits not a tortured series of decisions that seem to find a way to to deprive the impulse of its day in court and i'd like to reserve the rest of my time for law and therefore became part of the party's agreement the nd argument is that really i read several arguments that you just heard that were not raised in this report and therefore should not be considered by this sort on a field the court's attention on the rd reference and it's important to note in that regard as there are no warranty terms in the form and in for the reader if you find the warranty terms well what's it what's to stop your client from coming in and holding up a completely different document saying well this this is our terms and conditions and then you could you could point to any document and call it to cairns and condition we would have no way to know if in fact that's the terms and conditions are being referenced here and that's the something that could hypothetically happen you're wrong but in this case there's no objection below or there was no  no assertion on any argument that this was not a genuine boss document or that it was an he created just for this case and if the case did receive the trial or if there was an objection the thirded of when we filed a motion for summ contact you and ask you where the terms and conditions were when they didn't get them but also doesn't seem too much to ask you if you want to be sure that these are actually incorporated in the contract to be sure that you attach them know if you want to be sure that these are really found to be available to the to your counterparty that you either attach them to the document or other on the websites of her that you know everybody can see them  days where referencing a contract with the terms of a collateral document indicates an intentions for incorporate those from generally such reference can become part of the contract moreover if the terms of a collateral document are made part of the contract those terms will control with the same force as the one for created in the very contract itself again that's the district  but the district foregone is right but what about here where is it a reference to this potentially external documented provided in varying language just on a language and not reference is clear and unambiguous and they claim it isn't it made a little bit ambiguous at least by the following sentence which refers to general terms of off using capital because the record reflects an article of open communication they were exchanging documents frequently back and forth so the fact that we're dealing with a german company doesn't affect the fact that they knew what the thinker on a i just would like to address a few of the points raised in the opposition argument first in terms of the the possibility of other terms and conditions there arguing factual issues whether there might be others and whether there might be some that created the predecessors of this one or even a new one that was created afterwards and that again goes to whether there is a meeting of the minds on the specific document s second they make the assumption that we're merchant and the fact that your sophisticated business person does not make you a merchant in the goods that are being purchased now i think again is a significant issue of fact you  common sense and it's a it's the retailers and wholesalers who regularly deal with each other in terms of find and selling product this is a one time transaction and it's not a regular machinery that my client really had no knowledge of until being trained on it by the basha engineers in addition they argue that it's not necessary to highlight or emphasize the fact that they're fine with scots for a lot of this which we would even if quite honestly if we asked for the document or was attached we had it i don't think anyone would make that assumption without it being highlighted especially when under the scots of off you just look at it normally and say well i have a six year statute of limitations if you have an attorney look at it the merchant aspect of it is the only thing that arbitrarily shortens its in one year and i think under either nevada or or under a wisconsin law the longer statue of limitations would apply to this transaction not all transactions in closing this a case a can and should be heard on the merits we should be looking for a way to hear these case stuff merits not a tortured series of decisions that find a way out of a case and i believe the summary judgment decision should be overturned and the case should be remanded to be set for trial thank you thank you counsel thank