winners marks erland on behalf of the appellant's only want to make a couple of fundamental point because i know that we've covered most of this in the breeze the first fundamental point is that the right of contribution among contractual joint obligor worse arises not by contract but by way of equity based on an unequal contribution to payment of a joint debt the fundamental error that the trust and the lower courts made was treating the right of contribution as somehow waivers are permissible but the the the i think that the tripping point is so i'm not so yes your point is taken that yes can they be waived at the point the problem here is that in order to enforce the waivers as the trust and the lower courts have requested is to ignore the fundamental point that contribution is an equitable right based on payment of a disproportionate i mean can't it be position where they were when they executed the guarantee and think about it giving effect to the intent of that contract it seems to me a very different proposition well i would agree with and that's why we argued that so forth are exclusively enforceable by pulte right so the problem we've got as you rely on paragraph thirteen and the other team relies on i think four and five and so there's to look at that guarantee we have some tension between the provisions to be sure i join it would respectfully disagree with bob i would say that the there's no tension between waivers that are in favor of pulte and pulte being the only one who can enforce those waivers i don't have the time to go thirteen doesn't use the word force it just says that the guarantees entered into for the sole protection and benefit of pulte and nobody else has a direct or indirect beneficiary weighs the best reading of that that's simply there to prevent some third party from coming in and saying i'm an intended beneficiary of this contract i don't think it was certainly true but i think it applies equally on its face pulte wouldn't have any right there wouldn't be any right to contribution against paul to a right ever have no rights to enforce the waivers that were spit the specific benefit of pulte i put my question poorly so if if the waiver of contribution is enforceable only by pulte it's kind of meaningless fall on the put back agreement and he wanted to make sure he could collect against all of them that's right but he also probably also wanted to make sure that walpole's he was trying to collect from the joint contractual obligations that the joint gores were not spending time money and resources going after each other before pulte was paid that that's the key point of paragraph thirteen is that the co op of course are not permitted to destroy themselves before pulte is made whole well hence the that this this brings me full circle that makes sense to me and brings me full circle to the point about trying to give effect to the parties and intention at the time they executed that guarantee it seems to me to have this real estate deal paul t was not happy with what he had been given as i understand it by way of the environmental permits and was not going to go through with the deal so when i look at the that's another way of saying yes yes it's a great price that was the deal he wasn't going to go forward and that was that but that was his price those press just that if something went awry upon condition stated that paul t would have the right to  guarantee right and that's what i ate and that's why council i think that i disagree with you slightly about the tension within the agreement because i think that context is very important to construing the plain language of that agreement right what my point is that it doesn't make economic legal or logical sense to treat the waiver of contribution as permanent once pulte is made whole and pulte gets the benefit of the waiver of contribution as terminations date on the obligation which doesn't exist in the language of the contract i disagree because paragraph twelve does have a terminations data basically says that all of the provisions of the provision that says once pulte is satisfied that guarantee goes away well no it doesn't go away the waiver goes away because it is no longer necessary exactly but i don't see the tension what i see is that so the and so it makes complete sense that pulte is protected at all times by the way of earth until such time as it has been satisfied and at that point the waivers the purpose of the waivers to protect  pulte is no law longer necessary and therefore there's no reason why the joint all blue corps should not have equitable rights of contribution where does the equitable rate of contribution come from well it comes from the fact that there  contribution i suppose a technically true but i think that that's not the basis of contribution the basis of contribution under civil code section fourteen thirty two is that where our joint obligations on a contract where one or more participate something contractual doesn't it because the fact that there collabos gore is only exists because of the contract namely the repurchase guarantee my understanding is your argument is a separate common law right to contributions the right of contribution does not arise by equitable because of disproportionate payment that they think i guess my point is this and maybe i'm maybe i'm missing something here pretty basic but i mean i do the way the way i understand your argument is that once the gerund once the purpose of the guarantee is satisfied on the words pulte gets paid what it go then the rest of the guarantee kind of disappears the waiver of contribution disappears that's my argument just ok but the purpose of the waiver has been satisfied and there's no reason why joint op of gore's why wouldn't the rest of the contract disappear two ways to just that one term i guess i guess i think we started case law for the proposition that once the obligation is satisfied the contract will obligation goes away yeah i  what i guess what i'm trying to get is it just seems to me that some lovely arguments kind of circular in other words that that that that the only reason we're even thinking about alameda is that they have an obligation under this contract to be one of the guarantors you're saying that  get paid then the waiver of contribution doesn't matter anymore because paul tease out of the picture they don't have to worry about everybody carving each other up and draining all of their money correct and then so the the the guarantors can go against each other but the fact that they can go against each other only exist because of this agreement that you say sort of goes poof once once pulte is satisfied that to me it's just kind of it's circular i respectfully disagree because i think th the joint nature of the obligation stems from the existence of a guarantee i grant you that the right of contribution stems from the disproportionate satisfaction of the joint obligation of the re the right of contribution springs from the disproportionate team that's that's the distinction i'm trying to make where you haven't done as and i would have expected your argument to characterize this as that the the the joining obligation arises from the guarantee and the right contribution springs on the equally allocated settlement agreement not only you haven't framed it that way well i think you've done a better job than i have thank you you want to reserve some time for i'm sorry now we're in your own so i want to address some of the statements of counsel for a pollinate but i also want to kind of reset where we were when the when the original repurchase guarantee was entered into alameda was one of the largest homebuilders in the western united states the most likely thing that could have happened if pull today want to put back the obligation to the to the three members was it would come after alameda and alameda would come after failings accomplice so the the waivers were actually there to protect valence accomplice originally i think i think that's a reasonable reading of the contract as we s brief there for reasons why why the court should uphold the rulings below the first is the way the language of paragraphs for a roman and five and five b work and as we've cited in the briefing as the court has pointed out this morning those provisions are in tension with and we say under law must override the interpretation the council is trying to give to paragraph twelve there is a certain logic to mr sharon's argument i mean basically what he's saying is that is that you know the whole purpose of this guarantee was to make sure that pulte could put the property back and get out whole and once that's done it doesn't really matter whether the guarantors are carving each other up or whatever the lingo is i mean it that there's a certain logic to that what's wrong with that argument what's wrong with that argument is that the business deal between veils accomplice in alameda was they were in a partnership together that well it was a limited liability company but it was a limited liability company idiot owned a piece of land and the members didn't have any individual liability for that because it was a limited liability company in the operating agreement excluded  limited liability the member said ok we have this deal we want to put the property to put a simple piece of well i'm not going to do this unless you folks step up and guarantee you guarantee the obligation and so the members when faced with that now they have to step up to the plate it's not just their company that is doing the deal they have to put themselves on the line and they said ok we'll do this but everybody's got away their rights a contribution against each other and that that's been both ways and i don't mean that f but we don't have that we don't really have you know the deposition testimony or what we would need to do to figure out who really in the final analysis insisted upon that  which is what your opponent wants us to understand they couldn't carve each other up so that he could really pull to could really get is one forty seven million back if you needed to or whether it's the interpretation that you've just given well  that that is true your honor and the case was decided on the contract but the contract is clear because paragraph four and five are clear they say that the guarantees will say they're clear you know this happens a lot if you're a judge people stand up there and  both specifically refer to things that guarantors are doing in other number one number two paragraph or a roman at five precisely tracks the language of civil code set california civil code section twenty eight fifty six a which provides for the waiver of this very is your response to that my response is two things first under rules of contractual interpretation the more specific provisions of four and five over override or more must be read at least in harmony with that provision be right and that's the that's that argument is mainly brief i think quite clearly that you think for five or more specific right correct and then the second thing that's so important and it's in our in our brief on page eighteen is that there are all these other provisions where it doesn't say paul t specifically in the contract plenty of provisions when the parties want to put putting in there they they did it so if the if the waiver of contribution was in there as you say for the protection of the guarantors from each other what is the meaning of the paragraph thirteen the one that says so protection and benefit of pulte i think your honor i think that your author made the point very clearly that that that provision appears to be a typical contractual provision saying nobody else can come in and say that they can pick up the benefit of this agreement it reads a little bit more broadly in light of the other language but again the specific provision needs to be read in harmony under california law but those provisions account i think i would be making that argument too but when i take a step back and read that guarantee in toto it seems to me it's a very one way deal and with the condition i just want to give you an opportunity to respond to that but it just seems to me it pretty clearly was a condition that hole to extract it and the only consideration the only application by paul t is that he'd close will that may be why he wasn't gonna do the deal that's true but but but also the member of the members of the limited liability company had to agree to become obligated and we don't know if that's what he expected right he said you're going to personally step up correct but the members didn't have to agree to that he could have said no they had no obligation to do so sir presumably the members what just like pu was shouldn't i read that guarantee is being a very one way the young i think your honor is it if it didn't say in for a and five and specifically talk about argument isn't a contract interpretation line fella fornia been a while since i took the california bar exam but it isn't the isn't the rule that in interpret in the provisions of a contract we have to consider the provisions in the contract as a whole and that you can't just isolate one provision to the exclusion of all other provisions of the contract that's that's correct that's correct your honor so and as we've stated in operate you have to try to if you can harmonize all the provisions but there are also these doctors that if you have a specific provision it would override the other provisions so we do think that you can the court is quite correct in remarking on these provisions and it's exactly the same thing that the bankruptcy court remarked on and exactly the same thing that the district court remarked on but the the but when the contract is actually read in context in these rules of special retore construction are applied to prevent the provisions and for a five and and paragraph five have to have meaning and of course the there are two more issues beyond that if i mean let me ask before you can only ask one thing that when this did when this case is in front of the bankruptcy court did he this site argue hey this thing is ambiguous and we want to put in evidence to show a need to be that needs to be considered i don't recall that everyone agreed on the principle that the that that there certainly was a waiver of rights of contribution at some point the question was when did it go away and judge carroll found that that paragraph twelve didn't mean the didn't you know i know what the judge found i'm i was this afternoon i don't know but i don't i don't that was not argue that nobody was saying no we to just stop we need to take some testimony about this but that the other two arguments that are so important are the one that the judge can elio by panache necessarily say which is if the contract goes away there is no joint obligation so really the as we state in the brief appellate argument proves too much if the contract in the  gone there is no obligation on the line could you could you i think that's a really good point and it goes back to the question that we just ended on with with your opponent which is if you if you look at the guarantee and recognize that's the document that by which the op legation the join obligations bring why isn't he right that the obligation to to contribute springs from the settlement agreement because the saddam meant agreement is it is the document where we where we see that the the obligation was satisfied eight seventy seven b the the provision of the released alameda actually cuts off the right of contribution totally separate ground whether or not whatever this agreement says as a district court found under eight seventy seven b once alameda receive release the right of contribution is cut off and there were some very good reasons for that so one of them would there may there there are some good reasons that one can convince but we are getting ready to shift gears and rather than responding to the first question i'm sorry i thought i was trying with you about that after application part what about the right the contribution part why is he wrong if it can't bring this from the settlement agreement well for one reason under them scone case which i don't have here there has to be some underlyin something for them if there isn't otherwise an obligation either that the repurchase guarantee is there or not if it's not there you can't pay to pull today and then say well i pay so you should you should pay that's and that's number one and number number two is that the that there should be the the agreement should be read to to waive the rights contribution under section four hundred thirty two although if the agreement is going that it can't and then the ultimate answer that i think is california civil code of civil procedure eight seventy seven b that once the release is received there is no more right to contribution period and it's kind of a head scratcher about why that release was given one of the reasons for that one of the other things i wanted to mention was that that we argued that the standard should be clear error because that we felt the judge carol actually made findings on the on the contract and i realize that's not that's not necessarily free from controversy public standard should be but even if because you're because you just to be clear you're arguing that he interpreted the contract without doing any factual argument that well it's just contractual interpretation there really no disputed facts that have to me that would be your argument right and i think that may be the case and the point i want to make is that even if that is the case this is an objection to claims of the ultimate six and as we argued in our briefs that relates to a set of surety defenses that does not include civil code section fourteen thirty two so and i go back to the the suggestion of tension and and i and i think that as the has recognized when the contract is read as a whole i think that the tension really isn't there it's the benefits of whatever waivers are for pulte pulte is the sole party that has the right to enforce these things got the benefit of its bargain by getting paid and there's really no reason why the equitable rights of contribution and the contract having been satisfied as to its purpose shouldn't be allowed