case it's a well known standard for summary judgment to be proper there must be no genuine issue of material fact and judgment for the movement must be proper as a matter of law evidence is not weighed it actually is construed in favor of the non movement and no credibility determinations are made it's under that standard that the appellants are asking this court to not only reverse the district court's grant of summary judgment but also on a couple of issues to what may be considered extraordinary relief but is warranted in this case of instructing the district court to enter judgment against third party defendants o'donnell and her employer coldwell uncertain issues that when you do look at the record which the district court didn't do are undisputed and specifically the district court in a couple of different errant ways didn't think that it could look at parole evidence under a couple of different theories that would get into it could and when you look behind that curtain so to speak it reveals that have the court looked at those things there is no genuine issue of material fact there is no dispute but it's for the mitten appellant it's not for the third party defendant not until after the summary judgment ruling your honor the reason i'm asking is there arguments a lot of pages in these brief in the court of appeals that are talking about issues that don't even appear to have been raised in the district i believe every issue was raised your honor maybe with a different argument or spin but but certainly everything we believe was before the district court not real good at letting your reformulate new was the question is having then use that power of attorney in the way in which he did that he breached some sort of a duty to your client that's one of the main that is one of the core issues but i think really a precursor issue to that because the district court did rule that the power of attorney was a four corners under the big u s can't look at parole evidence the district court i submit when it made that ruling was looking only at as you said just the terms that are spewed undisputedly broad but what the district court didn't appreciate although in its factual background of page five of its opinion it did noted it did note the allegations of the third party complaint is that there is absolutely a question as to the scope and existence of the agency visa v who is the party who are the parties to this power of attorney possibly just preserve those arguments and move on to the next yes you're trying to tell you what seems to be the key argument broad authority to basically do any financial or real estate transaction it bought the district court didn't did not adhere to other cardinal can contra contract interpretation principle is that you give effect to all the princes all the terms of the said any way you act under this will be fine as long as you don't as long as you act within the authority makes sense where is it clear that you raised well there's repeated allegations of not being authorized  about it's authorized but it's exercise not in good faith which is different from it's not authorized right yes well i believe it was if all you are use it's not authorized in this and the district court says it's authorized and you don't go on say even if it's authorized it was exercising and you can't raise that to us now that's why i'm asking where is that raised as a good faith exercise of our authorized argument well i believe one of the places  complaint not the third amended complaint already complaint thank you and if i have adequately addressed that issue i would like to just briefly point out a case that was cited in o'donnell and missile donilon caldwell's brief that's a that's a six circuit case it's called the andersons in versus horton forms and it's one sixty six of thirty three zero eight and  reason i bring that to the court's attention is is this it was cited in their briefer of boilerplate law regarding parole evidence and whether you can review it in an unambiguous contract but what it really stands for and judge mckeague this was individual being charged by his opponent as having signed a contract in his name personally and he contended that no it may only say my name but i was signing for my corporation and judgment you looked behind the curtain you said cruel evidence was admissible to determine who is the party to this contract and you found that extrinsic evidence didn't reveal that there was no genuine issue of material fact for the defendant that he was not an individual signer and i normally don't read passages from case but i couldn't say it better myself and the sixth circuit said we next consider the four contracts signed simply rodney horton sound familiar that's this case michael each mention the court continued under michigan law where anything on the face of the paper suggests a doubt as to the party bound or the character in which any of the signers had acted in a fixing his name testimony testimony may be admitted between the original parties to show the true intent and in that case the court of the sixth circuit was citing armstrong versus andrews one hundred nine miche five thirty seven and me and me agency so there was testimony in this case and we've got a power of attorney that says nothing more than michael each human just like in this case where it said nothing but rodney horton and there's only one signature but there were three it was not considered the testimony was explicitly rejected by the district court saying i can't look at parole evidence but this court in anderson's inc said exactly yes you can look at parole evidence if there's any question as to the signer and what capacity they were signing and here when you do look at the pro lebanon's you find that just like in horton there is no genuine issue mrs mrs o'donnell says over and over again i've really just screwed up here if i had read the documents i would not have signed guarantees i thought that i was acting for the l l c we had gone over that for every shape and form i was the one who told them to sort of the yellow sea for liability purposes you know gosh i really screwed up and that none of o'donnell you did not have authority to do what you did but nevertheless it looked like you did and so you o'donnell in caldwell under the theory of a parent agency you are liable to the bank under the guaranteed use let me explain to you again why i asked you the question i asked you to talk about how you either did or didn't plead and the difficult did or didn't consider your argument that he didn't act in good faith if you continuously want to take us over to other arguments and now you're right back to whether the court was right and how to interpret the power of attorney didn't even apply to these other entities so you pivot back to that which both of two of us have suggested that that we would prefer that you talk about something else now i don't think you raise i don't think your predecessor attorney raised the argument you're raising now before the district court i think your honor two things i do apologize i did try to ask if i could answer the question i didn't mean to move on if there were still questions so i'll take those sort of in reverse order to close the loop on the argument that we'd like to move on from but just to answer your question where it was pleaded the district court actually acknowledges on page five of the opinion and cites to two paragraphs of the third party complaint it a third party plaintiffs allege that minton appointed o'donnell for quote the limited purpose of executing closing documents and loan documents on behalf of green beach in order to consummate the sale and purchase of property docket number twenty four third party complaint paragraph thirty seven according to third party point of the district court said it was expressly agreed by him between minton the mitten from an o donnell that she would not have authority to execute any individual guaranty on behalf of minton or any individual guaranty on behalf of the mitten firm citing paragraph thirty eight of the third party complaint so it was alleged and even noted by the district court that that was a theory of the case that the power of attorney only authorized o'donnell to act for the yellow sea but the only way it shows up in the terms of so the judge did address that issue simply ruled against you i don't believe so i think what the judge found was under these broad terms of financial and real estate transactions that if it did bind all three defendants then certainly it would be within this wide green to put story but what but i ran over the actual things terms to be taken out what she could do financial real estate transactions all of the numerated that an agent could do for her proper principle under paragraph two of the general power of attorney and three and four and five there's a number of the numerated items power of attorney and i thought the judge's ruling addressed the sco or her authority on the scope of the power of attorney the judge's ruling addressed what kinds of transactions that the agent could do without getting to the precursor issue of who is the principal because if the principal is not mr minton or his firm with all the parties to the power of attorney agree that she's not authorized to do any of those enumerated powers for people who have not granted her authority under this document that's just a monument th answer well my answer is that the court certainly has the power as we proved in our reply brief if it if it's mere if it's genuinely just an issue of law and the record is fully developed and we're not trying to expand the record which i believe this good faith issue has to do it to mean it was i mean the power of attorney itself is in the record i think it constitutes even an allegation at this point it's part of the pleadings it's got the good faith and now it's got the good faith paragraph in it if a district  applying a contract i would think it would apply every term that's in the record so in that way i think it is preserved it was part of the record that was before the district court for granting or not granting summary judgment file a complaint you attach  to the document has some language in it that does not mean that that claim is before the court particularly then if you don't argue or you don't and you don't brief it but because you're flipping around from claim to claim it's extraordinarily difficult to figure out where something was actually argued even if there are words someplace in the complaint or the attachment you understand the problem i do understand your are  attorney and to the detriment to leaving yourself little time to focus on the issue of whether there was a breach of good faith is that conveyed should that convey to us that that the latter argument is weaker than the former argument no not at all your honor i've been doing my best and i will look at the record as i sit down to a few of the questions and answer the questions that are important to the court and just basically didn't get to t good morning michael being in and i represent caldwell banker and o'donnell my judgment he got i think that there are questions here whether or not there was a duty in whether or not if the the duty was breached and i believe a judge and have correctly ruled didn't rule on whether the duty was breached she simply said the power of attorney was broad enough to sign the documents that then doesn't rule of whether in signing the docket that then reached a duty that o'connell had somebody here the right silent about that it is the opinion is found about that the now an argument could be made that that because of the multiplicity of arguments here that that argument was made that's correct but i can't find any place that you objected to us considering that argument  you seem to understand that's an argument but you don't know you never say but it wasn't raised below well i argue with the kind of back to where we were before well i argue that the broad allegations about a breach of  duty that they that they raise the as a different argument and then the breach of the duty of fair dealing good faith that specifically spelled out in the power of attorney i agree just how can you possibly win this case without somebody taking a look at whether or not whether she was authorized to sign not whether she did sign but whether in doing so she breached her express alleged understanding with ms i don't understand how we don't look at that well i think judge now when she concluded frankly that no rational trying or of fact could conclude that o'donnell exceeded her  breached the provisions of the power of attorney would these of the the bank there's no discussion in here about whether she reached the understanding or duty that you meant where is that discus whether or not no judge now took the judge nervous approach in this case involved the interpretation of the contract language of the power of attorney in which she authorized o'donnell to engage in the transactions that she engaged in at closing which was to sign all of those documents there or if the power of attorney is wrought enough to authorize somebody to sign something regardless of whether behind the scenes that violate your duty to your own quiet and your yours scot free that's your no no no not at all your honor that that is the question the question is what is it is there a duty what is that duty with respect to o'donnell these are the meant in and in this case use  didn't reach any duty to the men in light of her own testimony i am i am in light of well let's talk about her testimony let's talk about what happened there  that happened in her testimony was given six years after the closing and frankly she had not been sued she was not represented by counsel when she testified at her deposition law she said what she said and what's important about what she said your honor is more than once she said this took place seven years ago she didn't even have a good recollection of the power of attorney itself testified i believe a page thirteen of her depth that she wasn't even didn't even have a good recall about the power of attorney testified that she did think that she did think that there said frankly that she understood that there would be no personal guarantees that that's what her understanding was and that she did not believe that she would sign i mean she did testify that but here we are in the problem with looking at that testimony is that you are contradicting the general power of attorney that was drafted and given to her signed by mitten allowing her to sign the document and what's critical here judge  is that he believes he never had the authority he doesn't say well we talked about this but then he gave me the broad part of a jury and that gave me the power to do this so i didn't break any duties i had the power he never says that she said what she did say was that she was not involved in any of the negotiations with the bank she wasn't involved at all with any of the financial transactions involving the bank she she was very clear in her testimony about there that between her and minton they didn't even have any discussions about the personal guarantees i mean that was not her duty in regard to this transaction if the court looks at the loan commitment letter that was sent from the bank to minton it clearly says there are going to be personal guarantees that are required and only the bank and its agents can change th requirement in writing they're under a power of attorney like this if the principal orally explicitly instructs that it being undertaken in a certain  way that would be a violation of good faith to read this regard that speaking hypothetically not saying that's what happens speaking hypothetically if the principle orally attempts to modify the agreement either that isn't what i say i'm sorry i don't modification of the agreement i give you the power to do x y and z it's easier for me to sign this power to give you all of this i'm telling you only do x y don't do z please oh  well yes it's alleged but i guess it's alleged was it raised alone no enough evidence to show it there is absolutely no evidence to establish that there was a lack of good faith or that they're that they're kind for sation even ever took place i'm having with that i think it's the same problem to be having is that where does the district court say that the seats district court just seems to be saying the first step of that which i can understand because it seems to be all the if they were arguing that exactly but  assuming that they argue that there isn't the whole there isn't a ruling by the koran that is there is the ruling goes the first step now the next y and z in my example right yes it's not a good then go and say but having having that was allegedly instructed to do there's not enough evidence to show that but she does say that though she does not in the in the strictly because it wasn't raised before her in the arguments in again this geisha that she was told by minton not to sign personal guarantees is not what she testified to she did not admit that she t was she would she was given the power to go to that closing and sign the documents that were provided to or at their closing she was she was a limited agent with respect to for purposes of the closing you know the it is if this claim that there was some oral agreement that that was was not followed  morning notably not a single mention of my client was made by either of the two counsel not a single question from the court about my client was asked we put in our break that this appears to have been an afterthought which it does  ability you got you know that right yes ok i would like to address the court raise the issue of whether or not this was raised at the at the district court specifically the two issues about the power of attorney that was filed by mistrial in the or i'm sorry the affidavit of love last document as to the power of attorney and adding the clarifying language as to how kerio donal signed those documents that was never raised that the district court wasn't even mentioned other than in paragraph twenty five of the complaint in a factual of ermine setting out a sequence of events but i think it's even easier than that so it wasn't raised at all the district court shouldn't be addressed here either but i think it's simpler than that those two events filing the affidavit of was document and clarifying how ms o'donnell signed the mortgage in the assignment of leases only goes to the mortgage about how miss o'donnell side has nothing to do with these defendants that was only to get the mortgage recorded such that the l l c would be on the hook for the mortgage and that the dead itself would be secured by the mortgage that's not these defendants these defendants a are bound by the guarantees which were not recorded not notarized had nothing to do with what those last two issues  were with respect to the first issue about notarizing mr minton signature he has acknowledged that his signature he admitted to it under oath he said yes it's there's no question about whether or not that was mr minton's signature on that power of attorney that's really the only way my client mistrial was involved in this litigation because he made an allegation that she improperly notarized the power of attorney because he wasn't present before her when when she a breach of the notary statute even if there was a breach doesn't give rise to a cause of action unless it's the proximate cause of the damage or the injury allege and that an improper notarization should not be regarded as the proximate cause  thank you thank you thank you judge mckeague i did go back into the record regarding the argument below regarding good faith under the power of attorney but i located a couple of different things one is in record entry dark one twenty six page ten twenty four is the mitten defendant's response in opposition to caldwell and o'donnell's motion for summary judgment and they actually also in a block quote the entire provision now granted the next two three paragraphs go on to argue why this was willful misconduct doesn't say a whole lot after that about good faith but the whole provision is in block quotes and even if the  argument and then you are you about portions of it and not other portions it doesn't mean you argue the other portion but to that point i think the argument that this was even willful misconduct would have been a question of fact that makes no appearance in the district court's opinion after that f the pleadings are issued on summary disposition on summary judgment paragraphs thirty nine and forty of the third party complaint do not use the words good faith they outlined the ways in which o'donnell quote failed to carefully review and examine those long closing documents failed to realize that she had also executed guarantees which support purport to guarantee the obligation of the l c by min individually in his firm under the pleading standards that were under and we cited those smith was one of the six circuit cases we cited i think there's more than enough allegations here to say she didn't act in good faith when she purported to to obligate someone to documents that she didn't read already appear to be just statements of correct and as i mentioned i'm not saying that those the relationship of the realtor to the business person that she's representing clear enough that they're talking about the relationship contained in the power of attorney your honor i think under under a liberal pleading centered i think and not just confining to paragraph forty six but the paragraphs that we've set forth certainly on notice that she did not  can get past the motion to dismiss when you're talking about arguments that are raised below where this was dismissed leading up but don't you have to make an argument i mean about yes i believe we did that on page record ten twenty four thank you and the case is submitted