i'll take a shot at reserving five minutes i know it's my responsibility to keep track made please the court my name's michael king along with jason anderson and adam's rangle who are with me at counsel table i'm here to behalf of the it was an appellant who represent a class of nearly four hundred former members of the black rock golf and country club the classics the reimbursement of refundable membership deposits they paid when they joined black rock there are four under speeded facts central to the resolution of this appeal which i would like to take just a moment at the outset to set forth of the class members became untitled under their club membership agreements to a refund of their deposits when the club was closed within thirty days of that closing to the deposits have not been refunded three the defendants accepted an assignment the class members club membership agreements for after the assignment the defendants accepted the benefits of the class members performance of their obligations under the membership agreements of over one million eight hundred thousand in dues and fees which were used to keep the club operating until the defendant sold it for six million dollars now the defendants deny they assumed any duty expressed or implied to refine the district court dismissed the members express assumption claim on summary judgment and a jury rejected their implied assumption claim we seek  summary judgment here's where the district court went wrong your honor the district court did not go wrong when it analyzed the suggestion of the defendants which has been repeated here that there was an expressed disclaimer of the liabilities in question in fact if you turn to the district court's order on that point and look at one thousand through one twenty one you see the district court rejecting the suggestion that the provisions now cited by the defendants seven point right so the district court rejected the notion that those provisions could support throwing out the express assumption claims a matter of law now that leaves the other claim of the bank which i think is necessarily the the district court's reasoning and that is the claim then into washington law to find it expressed assumption you've got to find it within the four corners of the contract of assumption you've got to have an assignment within the four corners and you've got to have language of express assumption within the four corners and you'll recall that the district court said at pages twenty eight in twenty nine of its ruling is e r one twelve and one thirteen that at least in the district court's view the writing was clear well that means that the district court wasn't even trying to suggest that the extrinsic evidence would be clear and this is the source of the error you're on well the problem is that when i read your brief i felt like you were  the express assumption and the implied assumption in other words you are taking the elements out of the implied assumption and trying to imply those back into the express assumption which to me mange there is really no difference in either conflation but an overlap in short in terms of extrinsic evidence analysis under the context rule you look at several things and one of the things that you look at is the subsequent course of conduct the course of performance of the parties  agreement but in the context of a dispute about an assignment and whether there's been an assumption in the implied assumption area you're looking at the same evidence because the course of conduct  plot assumption before the jury the jury decided against your client own those issues so how can those relate back to the how can they relate back to the expression oh very straightforwardly your honor because the jury was told  in terms of implied assumption the jury was told at the in instruction number two i believe it was that the judge has decided that there's been no express assumption so then we have the problem of the jury examining the implied assumption issue under instruction number thirty seven and looking at all of those factors this is e r three three three all the circumstances surrounding the assignment the contract the events occurring in relation to the a signed contract the subject matter of the contract the problem is that they're evaluating that being told there is one thing that's already on the table decided in favor of the defendants that there was no express assumption well if the district court was wrong about whether express assumption should be thrown out as a matter of law if we should have had a trial of x on express assumption then the district court is not going to be telling the jury which is not being asked a series of questions about whether this factor is present this factor is present in this factor is present instead they're being asked to draw the overall conclusion about whether there's an implied assumption we are prejudiced in the jury's evaluation of those factors the second point i would add your honor if i could flip over to implied assumption for a moment is that as a matter of the law of implied assumption in washington if you have a straightforward example of a party in the defendant's position who didn't express lee assume but then proceeds to accept the benefits of the performance by the party in my client's position then they have stepped into the shoes of the assigning or the l l c that originally oh that obligation and they've got to perform that exactly what the law says doesn't happen unless there's an express assigned no actually that is exactly what the law in washington says does happen and that's the dahlan case and this is the critical language from the dahlan case the appellant in exacting and accepting them the respondents payments assumed the corresponding duty to perform the conditions the contract imposed as a consideration for their payment there was no express assumption in dollar this  the underlying obligation absent an express assumption of those obligations but in johnson is the ninth circuit case applying washington law if i remember correctly and there is an express statement in the contract at issue in johnson where there is a retained sharon of responsibility of the assigned or there is or conversely no the language says that the assignment does not carry with it the obligation of the to perform the service saying there was a servicing issue there something got screwed up somebody sent in their payments and the servicing function broke down and in johnson very specifically this court noted that the language of the assignment was subject to this were tension clause that the assignee was not taking on the servicing issue in this servicing issue was of course the problem now you can have  and issue in the express assignment context where the attempt to use it evidence fails big because you could have a direct contradiction with the language of the governance does not quote overthrow the contract well now what happened here i mean you're saying i think the total and then this was twenty seven million dollars was not one of one that's one that's what your contingent liability being carried on the books that if the if the refund obligation is triggered all at once to everybody it would be twenty six million dollars that's right and the only way that happens is the unusual circumstance which happened here which is the club was closed and there's no disputing and the district court agreed that as a result and i believe the jury was instructed on this but of course we're dealing with summary judgment in any case before we get to the jury in that something like twice the amount the bank actually lono in this case i'm trying to remember was around twelve million dollars or something like that it's more than twice because the bank loan something like twelve million dollars and when it got to august two thousand and ten they were trying to deal with trying to claw back as much of nine point five million that was ultimately owed and what they got out of the sale of the club was six million so they got back well over fifty cents on the remaining dollars now here is why the  situation here doesn't involve this seemingly manifest unfairness oh my gosh you know you're saying that we we assumed a twenty six million dollar obligation no one thing knowingly and intentionally assumed we said we submit that the evidence shows and if we get a chance to take this to a jury for sure we believe that we have a good chance of persuading a jury that what the bank assumed knowingly was a risk that it might get stuck with all of that but the was underwater there was a risk that other creditors were going to cause a bankruptcy filing and that was going to impair the sale value of the club the bank didn't want to foreclose because that was going to impair the sale value of the club the bank needed the membership group intact in order to maximize the return from the sale of the club the bank needed to keep the members comfortable in place assured so they would continue to pay their dues and he's which was necessary to keep the club operating and maximize its value so the bank and we submit that the the writing is can at least part of it is confirmatory of this that section seven point four yes your honor you know i'm just mentioning here thinking that the bank  twenty six million dollars by assuming what you say they are and are proceeding out of the circumstances which they did and they only lost six why would they do that because they didn't assume a twenty six million dollar loss what they did obligations it is the bank assumed that the bank did not believe that it was going to get stuck with the twenty six million the bank was aware of the twenty six million possible liability a future contingent liability under section seven point four it expressly disclaimed the liabilities that had already occurred by the time of closing well that future contingent liability is not something that had occurred you know presumably the bank would have written this clause the way it would need in order to expressly disclaim it didn't do that and here's why because it needed to have the membership group intact if the bank had taken over and announced by the way we're not going to perform any of the obligations that the l l c own and that means that the members are confronting a situation of uncertainty and they may decide well we're not going to perform either we're going to resign we're going to cease paying dues i don't want anything more to do with this club the membership base then is implodes and is as the bank officers testified it's in the summary judgment record and at trial as they recognize we can't have the membership base implode so instead what they did was consciously take a risk the risk was that there might be a closure of the club and as a result on their watch and if that happens then they are going to be stuck but the hope was that they would be able to pass this obligation along to the new owners would be seamless they took an assignment of the membership agreements they would pass those along to the new owners who would take an assignment the membership agreements the problem of course and all of this is related very well and particularly in the context of a case about summary judgment i think compellingly first stablish in we have at least a fact issue to try on this the problem is they ran smack up into a group into a group of new owners who said no end it terminate them all which is not take them on we want them as new members paying new deposits to us and that's where things went wrong for the bank now that is it would use a clause in the either the agreement in lieu of foreclosure or any of the other the other two agreements where it's clear that they took an assignment of the membership agreement section dispute about this that they took an assignment but did they also did they take an assignment of the membership agreement yes and they also assumed the duty to perform now on the  not create any obligations on the part of washington trust to third parties that have claim to be any kind whatsoever to the l l c right but we're not brotherhood party we are first parties to the contracts we have first party rights if they've assumed the obligation this is not a third party beneficiary issue and moreover seven point four continues the contract was between the l l c and the bank that's right and there's an assignment of a contract between the c and the members and then the question becomes did you just assign them in which case under washington law presumptively you don't have the burden to perform or did you also assume the obligations to perform and that's why the district court pointed out that wasn't on the books as a liability as a future liability not as a current liability that had the liability with the difference between if between various time at the time they had to record it in their in third party none of fisheries in this case because we're first parties to contracts that have been assigned so the question becomes whether the intention of the l l c and the and washington trust was for washington trust not merely to it except an assignment but also to agree to take on the l l c's duties now i will concede that the conclusion can be drawn that the writing is ambiguous but all that means is that we then consider the extrinsic evidence and the extrinsic evidence a jury could reasonably conclude supports that good morning hours may please the court my name is fred burnside i'm here representing washing trust bank and west great avenue holdings with me and my partner rebecca francis also in the courtroom today is the general counsel of washington's bank mr burke jack which i'm a commercial risk operations manager mr oberst and i want to reorient the court to the actual issue before the court because mr king does an admirable job of weaving in and out of the different claims and raising all kinds of minutia to the question in this case for any kind of assumption is whether washing trust ba a secured credit or knowing it was going to lose millions on slowing to a golf club intended to voluntarily assume a known thirty nine dollars billion to unsecured creditors would wash interest bank intend to become a guarantor to club members that makes no sense the jury found a bit of sense the jury heard nine days of testimony the jury reviewed more than one hundred eighty exhibits on every factual issue there is no evidence they have cited that they want to get in that they didn't get it oh  this court sort of firm because the jury rejected those claims i want divide my time here between two issues first i want to explain why the district court properly rejected their challenge to the verdict and implied assumption in two parts was properly instructed you know i do find it so he says that there's there's no no language in any of the documents that evidence is you see whether you know there's even some dispute here about what happened but no reasonable trier fat could conclude other than that it was not an express agreement here why isn't there a genuine factual there's no citing three washington supreme court decisions wrote the following it is settled in this jurisdiction the ass and have a contract assumes no obligation on any underlying contract unless by the terms of read that yeah that's basically the hearst extrinsic evidence rule in washington and that rule says you can look at the objective manifestations of the parties to determine what the words they used in the agreement mean and they can't cite and haven't  show that the words we used in the agreement meant we were taking the thirty million dollars in liability that case also holds the you can't use expense of evidence to contradict the words of the agreement and in this agreement we have multiple disclaimers which i'm happy to get which which are the provisions that you'd say it's make it not make it clear but at least suggest that there was a disclaimer yeah i mean at the outset we don't need a disclaimer because the law is we have to express the assume it's the have to be something in writing saying we took it as a presumption we did not but the disclaimers the broadest one that we rely on is paragraph nine point one zero which reads nothing in this agreement will be deemed to cause w t b to be liable responsible in any way for the actions liabilities debts or obligations of the club it is impossible to write a disclaimer that is broader than that one no plaintiffs argued below as you have there's a heading that says no partnerships or maybe don't apply so that the section nine point one nine of the deed in lieu says headings are not part of the agreement that is a broad just claim or if you can have in this context likewise on the third party beneficiary front i think it is relevant nine point one two says look this agreement is soley for the benefit of watching trust bank and the call up blackrock it does not a new to the benefit of any third parties period that says to club members we're not taking on that liability finally and this is in response to a question your honor raised earlier paragraph seven point nine c states that none of the personal property assets being transferred includes anything that has any liens incumbrances other adverse interest or defects but for the john deere leases which were six hundred fifty thousand dollars in leases so the parties clearly knew how to express lease suman obligation they did so with those leases but this says we're not taking those contracts with liabilities ok as to not question for plaintiff counsel earlier i'm concerned when i read his brief about conflating the elements here of these two types of claims  i think that what you said just a minute ago goes to the issue that i had in mind quite frankly the law here and began washington's now very much like the law in georgia when you have been expressed disclaimer like there was in page and so after the fact we're not talking about the words of the page but after the fact we are talking about what do they do and what happened here let's talk about after the fact marshall chess from file bankruptcy and look at every club member as a creditor three club members five proofs of claim he testified first receiving one point eight million dollars fees for access to the club when access was provided doesn't mean your green to thirty million dollar ability second we didn't get the one point eight million dollars that money went to the little black rock which spent it as it saw fit judge bush in his thirty three page rule fifty order spent ten months writing it goes through an exhaustive detail all of these facts weighing them saying this was for the jury all the points mr king is making all the arguments he's making are facts and evidence that were before the jury the just decided against them that's not a reason to overturn the jury's verdict now i know i'm getting into the implied assumption case and we're talking about a good express assumption case but the other thing i want to chat about paragraph seven point four they spent a lot of time focusing on that generally accepted accounting principles so you can't turn around now and say it wasn't reliability so we've got these four disclaimers of liability in the seven point nine c one your honor goes to the question you asked were we assigned the contracts we vehemently dispute that we were signed the contracts the court instructed the jury that we were in rule for us anyway but if you look at the language in there in both the bill of sale and in the didn't live it says all the contracts we're taking are attached in this exhibit to this document and there is no didn't lou exhibit that so as we're taking on the slide ability it also says we're not taking anything that has any liabilities with it so we don't believe we were ever signed the membership contracts we think they were expressly disclaimed that's consistent with marshall chess runs testimony that he understood and the liabilities stayed with him because what banker in his right mind would willingly take on thirty million dollars in liability gratuitously in fact it gets to the point i think ups frame the context here and that is plain sight not one case not one or a defendant disclaimed a liability and then later was found to imply the assumed it in the shorts first pillsbury case from this court in our papers is directly on point there the court there held it was implausible disclaimed some liabilities and taken on others like we did with the john deere leases would reverse this position and gratuitously agreed to assume additional liabilities by implication proposed acquisition conduct so y ltimately with a speck to the implied assumption case i want to first focus on the jury instructions they argue the jury instructions were wrong for two primary reasons first they say well you know the court used and instead of four and that the court should have used or in any one factor particular last three should have been sufficient to allow a verdict in our favor now the court did not hold that the jury had to find all of those as if there were elements and again the court's thirty three page order on r fifty is very detailed in this regard what it held was that the plaintiffs need to consider all the facts and circumstances because you need to consider you must consider all facts and circumstances and is entirely appropriate in fact this circuit's jury instructions pattern jury instructions using the end in exactly the same way for a myriad instructions including one point one four nine point two one one point two for you know so on so forth it was entirely appropriate for the court to use and to list all the factors to consider and the plaintiffs were free to argue is the court noted in its order for free to argue that any one of those was sufficient in fact they did they argued that the jury just didn't agree with them that's not an explanation that the instructions are wrong that's a crying over the fact they lost the word and that the elements are can join with all of the not when you read the rest of the instruction because the rest of the structure and says consider you must consider all the facts and circumstances including it didn't say you must find it said you must consider and they put in evidence on every factor as did we in the judge the court exhaustively goes through all the evidence and explains why there's certainly ample evidence to support the jury's verdict plaintiffs again don't cite one case where they can point to where one factor or even two factors was sufficient to establish liability it's all in the implied assumption context all facts and s know what they're saying is we're first parties or parties to the contract what they're asking for is an equitable claim not a claim at law the court uses as an example if in the assignment it's obvious that the purchase price factored in the liability then you know the equities will allow that to go forward allow potentially an implied assumption we ultimately broadly speaking plaintiff's cases involve situations where allowing the ass and you to enjoy the benefits of the contract without responsibility for the obligations would be unjust cites harder to explain no it is a duty by duty analysis as to what you've assumed paying one title of the invoice to many doesn't subject us to thirty million dollars in liability it can't and ultimately the absurdity of saying we paid one point eight million dollars in dues and charges for access to the club which they got somehow means you're also agreeing to thirty million dollars in liability already disclaimed is absurd and it's worth noting not one of the name thing is actually paid your dues are charges during the period the  not unless it just strikes me that all the implied assumption cases are tied to intent they need to show we intended to assume this obligation they offered not one piece of evidence showing that we intended to assume that with each name pla testified the defendants never represented to them that they want it what they're really offering evidence on is that watching trust bank in west preg took steps to preserve the value of its collateral as it's required to do and what they then want to argue is in a fact accidental intense well you took care of your assets and therefore accidentally intentionally assume the subjugation and that is not the law in washington again the question for the jury was whether based on all the facts and circumstances watching trust bank or west that manifested an intent to assume and the plaintiffs cite the evidence that they think helps their case the court discusses it in great detail and order the jury considered all in rule for the defendants which makes sense if you know the date because again what reasonable banker would take on thirty million dollars in liability when was already losing millions dollars on its loans and there's what we would irony here too innit if mr chester in the developer  aside their membership deposits in an account at washing just bank account that washing trust had a security interest him is undisputed one of the u c c that the bank could have gotten taken out on i'm a half million dollars and had no liability to the plaintiffs so if we'd actually gotten their deposit refunds or their deposits we wouldn't be liable but somehow because we didn't get their money we're obligated to refund that i would submit your honour's that makes no sense ultimately we also disagree on the various factors they've gone through we don't believe that the bank accepted the benefits of the contract alternately the dues and fees were insufficient to sustain it what that means is that for every dollar a member paid in dues and fees they get a buck fifty in services sales management versus fleet credit corp nine sixty eight we just heard counsel say that you know in operating the club after the bank yeah and they did that because they wanted to at least maintain the appearance that it was a functioning well yes age and i wouldn't agree that would be a viable thing certainly the bank was in should and preserving the value of the asset which is higher if it's a functioning you know well kept if they let the grass grow the golf course worthless in two weeks right and so that's another point as if they were done with a plan to spend i think they should've done it just walked away their million dollar mansions on a golf course would have a lot greater loss in value than one hundred twenty thousand dollars per member and guarantee of that  what they said stacey julie shiflet the consultant on site didn't even have keys to the place she had to wait at the security gate to be let in we were not controlling anything we didn't send out a bill we didn't send out the charge nobody was suspended as a result it let's say for example your honor we just said you know we're not going operate the club and then we go ahead and we sell it and if we operated and say what a sold for fifty million dollars we'd actually owe mr chess room the surplus in u c c sale or junior lien holder that came forward we have an obligation to do that both under the u c c and under federal banking regulations because if the bank loses that shirt on this you know mon power there with their deposit accounts the bank are being put at risk and so the bank had an absolute obligation to do exactly what it did to preserve the value of the collateral make sense that it would do so ok so i think i touched on the implied assumption in the express assumption arguments only i think that the disclaimers we cite are more than sufficient to disclaim it in the express context and in the implied context i think that there is simply no basis to overturn the jury's verdict the considered all the evidence that nothing the defendants did manifested intent to assume the obligation all the bank the liability for thirty million dollars is not the issue taking a risk of being stuck with that liability is what we maintain the bank did the jury could have found that if our express assumption claimed at least gone to the jury you got a very important admission here in a series of questions about well what was the bank dealing with here you got the admission that the bank was interested in preserving the value of the asset right that is exactly our point it wanted to sell if it could sell for a decent price it could substantially reduce the amount of the loss and the maintaining of the membership base was critical to that now what express disclaimer your honour's is in this contract where there's an expressed disclaimer of assumption of the duty to perform the membership agreements there is none as a matter of law and the district court found that if you look at e r one nineteen through one twenty one the district court finds that section seven point four favors us the district court finds that nine point one zero and nine point one two do nothing but raise fact issues why did the district court make the decision it did judge paez you asked about why isn't there a genuine fact issue and the answer you got is exactly the one that a bank argued the low as a theory of contract interpretation and now here it was there has to be an assumption within the four corners just within the four corners of the written contract of assignment hardinge or says that is not the washington law you  writing so what contradiction is present when we've got ambiguous clauses going all over the place like this here told there was under the membership agreement a thirty year guarantee if you hung around for thirty years you would get the right for your deposit correct if you did it but the thirty million dollar number is adding up all of the memberships deposit rights and calculating what would happen if all of them had to be paid at once i refer you to bar versus kerfoot this is not a liability that has occurred it is a contingency it might occur your honour's we ask you at the least to send us back for the trial on express assumption we never go and because that prejudiced the trial and implied assumption we should get a trial on that claim to a retrial thank you ok thank you counsel we appreciate your arguments in this interesting case the matter is that it is only under session for today