they please the court my name is eric soprano her present helen petro star district court's decision in this case is remarkably clear and candid about how to resolve the factual dispute between the parties and the legal rule if i thought government of the facts that it found following this court's clear instructions are remained the district court built a factual record and it found as a matter of fact that these kinds of evidence just did not resolve the question of what the parties intended by the ambiguous term  presumption against the drafter where your evidence is there as to whether the defendant was the one that drafted the contract sure there is on this point is totally on the m b us our deponent this is on the r two zero five to two zero eight she describes exactly how the operative contract language was reached and he's very clear about it he's asked pointedly who actually wrote the contract he says we wrote it with help from our legal counsel in ohio and then he also explains the process that b p used for formulating the language in the contract and he says here's how it worked we had this pretty restrictive computer program had to type in the terms  the parties had agreed to at a very high level and then the computer program spat out the operative contract language as it was then refined by b p s legal counsel who worked on it in cleveland so they chose the term tariff unadorned term tariff in context is chosen by b p went off what are any of the words i could have been used for terror is not the rule of the word that comes from the regulations or whatever it is the state commission applies well actually petra one word substitution i mean i think that's the term that seemed ambiguous at but it seems to me it's a term that had to be used the problem is that the contract didn't go on to clarify it in various ways but according to the findings of the district court neither party fun about that and so it wasn't so much that it was drafted in a certain way just a subject was never negotiated an agreement was never reach so there's just a void there i think i understand the doctrine you're trying to apply but i'm not sure the logic of it makes any sense in the situation why i think it doesn't make sense because the operative contract term is that the price term is a whole it doesn't have to be one word it could have just been clarified with the words that this court offered in the previous opinion  mean there's extremely instructive piece of evidence in this regard b p s witness testifies this around your thirty eight to forty two they didn't b p s subsequent contracts it clarified exactly this point when it was in it interest to do so it said you won't get retroactive change how could it know whether it's in its interest to do soaps or doesn't know if the if the final tariff is going to be different when you act like that's a calculated decision they're trying to leave it ambiguous here for some doesn't overcharge the parties who are shipping or oil on the pipeline because of its role as carrier so this is a protection that exists for b p s counter parties in these oil transactions the protection needs to go their way it's typically going to be in b p s interest to clarify that it's not going to provide a refund of circumstances remember b p s theory is that it gets the money and he gets to keep it unless there's something about refunds but it knew figured out there's a different way to do this do we have any evidence as to whether in previous contracts it was written differently well the thing that strikes me is more meaningful in terms of when you're trying to suggest this was a calculated decision by b p at the time i have trouble seeing that you're suggesting to me that in subsequent contracts you wrote it differently so they could have written a differently here well fine but if they hadn't thought of it by that point in time the failure to write it differently here may not say very much to the what did they dreaded differently earlier clear language is available and the people story is that they thought this was actually part and parcel of its being denominated the shipper under their contract that was an easy point to clarify if they had wanted to clarify that as the ship of the refunds just don't clarify that in this contract at all now they just report finds as a matter of fact that neither party contemplated the specific situation we are not questioning that factual determination this is the point i wanted to make the dock and doesn't actually depend on a determination that the other party pulled a fast one that would actually be a court contract application not counterpart for it if the district court decided b b knew what was going on and it knew there was an ambiguity about who would get the money and it knew petrow start with thinking but i understand that if you think shin bet your argument seem to be inviting the conclusion that this is a liberal selection on the part of b p i just don't see how that can be supported in the point i'd like to make is that's not a showing that i need to make to apply the can i'm sorry finish your answer to the can is simpler than that it says when we have an intractable ambiguity of true ambiguity there is a term in the contract that governs we don't know what it means the tiebreaker we use is that we apply the candidate against the party that selected the words just to incentivize it to be clear it doesn't mean that that party was necessarily pulling a fast one it just focuses the party's mind on this chance to clarify the contract when it takes up the pan and this issue is in its wheel house got to it what what do we do with that alternative ground for the original decision and i think that if that the district court's decision is defended by b p only on the one issue came back on that issue that i don't know what what happened to the other one my take on the way to apply the judgment mandate rule a circumstance like this one so if the court had determined that that was an adequate ground on which to support the judgment below it wouldn't have remained it remained it because they just record needed to determine the facts of determined here then b p might have the option of defending the decision below by really animating the ground saying well this wasn't reached in this would be a good reason to find against petra st but certainly if b p wants to defend the judgement on the ground in this appeal it's got to say so it's preferred so that we'd have some opportunity to say something about it to be honest not even prepared to talk about it because it wasn't briefed and that's why we have the rules that the parties have to choose the arguments that gas and big and little oil companies so i'm very familiar with these kinds of contracts and for aside from the western petroleum association where people keighley do contracts on napkins in the old days it was always said contracts and the bigger the company the more said the contract in this case let's assume argue end of that you are correct that the this was b p s form that the the terms exact terms of you know how much when delivered quality etc or inserted with the help of the council but let's say there's a true ambiguity nobody thought about tariff in this context you've got some ohio cases on the way contra profer random is applied one suggest the size of the companies makes a difference so one suggests whether there was discussion and so it makes a difference  what your view of which line of ohio cases we should follow what's the best case for the words for your position on the application of that particular can sure i think the best case i mean i think there's a lot of case and it clearly suggests that when you're dealing with the canon in this sense of true ambiguity you need a tiebreaker or you need to determine if legal rule that you just look to which party drafted the case you're not actually case from one hundred twenty one about erecting electric poles on the point of slam this is a bilateral contract it's not you know a form and it is between a landowner which is to say someone who is go making of the spoke agreement and the electric company and the court goes out of its way to say look neither party presented any evidence about what they meant by this term and the way that we decide who should win in this circumstance is that we apply the doubt against the party that supplied the op the operative language that's a big us there was the electric company so the plaintiffs want and that's exactly those are the facts of this case as b p describes them and that's the operative legal that you the big boys smaller boys in negotiating with oil they have a set contract let's do this let's do that we've got a contract that's prepared nobody thought about this and so we have to have a way to resolve it isn't that really what we're dealing with that's exactly right and if you look at that source is that we said on page thirty two of our opening brief these are the contract treatises they're saying exactly that look you're going to get a situation sometimes we just have a true ambiguity you have a term that's the governing term we're not talking about inserting a new one we just can't determine what the parties meant by it for a situation like this one and the way to resolve those true ambiguity is we just charge them against the party that picked the operative word because we're trying to create an incentive for that party to think about the possible lack of clarity and to supply terms that are clear well it's just it's really just a tie breaker in effect it's whether there's any policy issue behind sure but the reality is i mean it was originally mainly applied against insurance companies  they do know how to do it but the bottom line is this is this is a maxim that is used when people of goodwill just don't think about it and you know they save your draft of the contract that's  good morning and made please the court my name is james fire i represent b p products north america and your honor the district courts factual findings and fundamental principles of contract interpretation this case in this case the district court conducted a bench trial made specific findings of fact and then held for b p at the start does not challenge any of those factual findings there is thus no dispute in this case that petra starr is a large sophisticated business with quote extensive experience in the oil industry there's no dispute that petra star was quote equally involved in the negotiations and there's no dispute that petro starr was able to and in fact did you go she provisions of the contract to its benefit of w i don't remember anything from the district court that suggested that petro cigar and b p to go shoot it over the meaning of the term care you're absolutely right jeff smith there is nothing in the record that says that they negotiated over the meaning of the term suggesting there is something that isn't in the record but is correct no i'm saying that throughout the long course of the negotiations this was a contract heavily negotiated by the parties and petro star had the ability to raise any sort of issue and wanted to well i'm not sure how that helps us both parties have the opportunity to clarify something that neither of them thought about and so the district court also found that neither party thought about this problem there was no intention one way or another by anybody so we're left with the bare words of the contract and the district court's finding that nobody thought about it and therefore nobody had any intention about about this issue and i'm curious about your responses to that district court's findings on who prepared the contract because i did read that somewhere different my fam mr centra it seemed to me that the district court found that b p was the typist and fell short of really saying either way who drafted the contract what is your reading of  court on that point my reading is your honor that e p wasn't in the typist but that the terms of the contract were negotiated jointly between the parties let me ask you some counsel you're an officer of the court right search of the truth so let's talk you telling me that the contract that was presented and it was not originally presented by pete petro starr that's exactly correct or ok so you gave him a contract what's correct what's correct is that there were this was a two part contract one part was the spoke contract that was negotiated between the parties it was not a for how you're going to handle ambiguities interpretation attorney because it's on that none of that was presented by b p the whole thing was negotiated out of whole cloth no you're right i'm saying if you look at the contract was which was go right no it was not the standard part your honor there's two parts part one was the spoke contract negotiated between the parties part two was the terms and conditions that contained all the other stuff you're talking about but it did not contain the critical price trim so that so are you telling me that the part one as you call it the bespoke contract was the whole thing was negotiated between the parties or was no part that was if you will standard  boilerplate the standard boilerplate i mean that part two is not going on in part one are you telling me that no part of part one was a standard provision that's right explain every word was negotiated  explain to you why because there's there's only two refineries in alaska that petra star owens and it's a very unusual situation for b p to sell from the north slope to instate refinery so that they had to fashion a unique contract for this circumstance around ok but you're still answering my question how how many how many pages was this part one how many pages of the contain five or six pages ok relatively short three yes really sure ok and so your your statement is that every aspect of this was negotiated avenue shield between the parties i'm saying that there were extensive negotiations between the parties with respect to part one of the contract whether every word was negotiated over i don't think that's the case is there any evidence as to who put the word t reality is you've got a situation here we're in a come on a comparative basis petro stars like a wart on an elephant compared to the size of b p it's a huge huge company and it's understandably hesse to standardize certain things and what i'm struggling with here is how i deal with the fact that given the way a big big company like that operates the idea that somehow that you have these two co equal sitting at the table and and just negotiating everything they needed some while which could mean for you all the sell it for whatever reason you said your your company gave them basically what they thought  was the deal it may be tweaked a little bit here a little bit there is not what happened that's not what happened your i have to respectfully disagree look at the fund it's what happened with the findings of the district court well i don't know what that i want to know what happened what i what i mentioned what the findings are so go and speak to the there were numerous concessions that star was able to gain through this contract negotiation concessions on price they got they got a better price than they did through their prior contract with the state of alaska and the prior contract with the state of alaska by the way contained an express provision concerning retroactive price changes and i think that's currently where that's kind of thing you would expect is what price is always go see it but it doesn't change the fact that you have these rather standardized provisions and what i'm saying is it seems to me that what you had was a tariff was one of the terms that was put in there by b p didn't talk about because nobody really thought about alaska had an express provision addressing what would happen if there were retroactive price changes petrof start did not negotiate to put that type of provision into this combat so that's where i want to go next because in the nineteen ninety two valve d's contract i think that i was on the prior panel so i can say that we made a mistake about what the contract actually said and then you didn't imply well when i did i mean we made a factual mistake and the district court made a finding to that effect and did not feel free to i take the next step with respect to that but i court made a correct finding about that so with respect to the one nine hundred ninety two male d's contract and both of the one nine hundred ninety nine contracts it appears to me that we were just wrong the last time and i think it's not right yes anywhere where we're down to a very narrow place it seems to me and i guess one question i have is given given that this is a windfall to either party thirty day answer you don't have to then then oh i'll respectfully decline your honor ok should we wait a couple of weeks after today to find out if the parties are interested in renewing discussions i what both parties agree is that contra proffer interim applies only where the parties intent cannot be determined from consideration of extrinsic evidence that's the foundational principle here the court in it capacity as fact finder did not rule that the parties intent could not be determined instead it expressively found that neither party had any intention to require b to pay over three funds and a finding that neither party intended to impose an obligation is entirely different from a finding that the party's intent cannot be determined now why  well because here you have an affirmative finding that neither party had an intent to impose the obligation in a normal contra proffer in some situation there are there is no evidence whatsoever there's no extrinsic evidence offered on intent and the court says well there's no extrinsic governance offered we therefore cannot determine what the parties intent was but here you had a trial you had express findings of fact and you have the court determining that neither party had any intention of that's true do you agree that there is case law that suggests that in that situation the canon does apply your honor picture star has been unable to cite a single case in ohio or anywhere else where court applied contra proffer anthem in the face of a factual finding that neither party had any intent to impose the obligation in question now the second reason contra proffering does not apply under ohio law is that ohio precedent is blindingly clear that it does not apply where both parties are sophisticated where no form contract is involved and where both parties had the ability to negotiate provisions of the contract to their benefit what about plans the construction company vs bridgeview crossing blinding or not to call me the ohio two thousand and fifteen case and it's just the opposite of what you just said you are  there are fourteen cases fourteen appellate decisions construing ohio law out of the ohio supreme court the a higher court of courts of appeal the seventh circuit and the six the thirteen cases support the proposition i just stated panza is the only one that does not support that proposition and panzer is not good authority particularly compared to the thirteen cases i've cited and i'll tell you why it's not good authority because first of all it's dicta the court did not apply contra proper anthem in that situation and the only authority pansy because cited for the proposition that contra proffer engine should apply in cases of equal bargaining power actually says the exact opposite it says that contra proffering to applies where the written contract is standardized and honor that first of all they want to know you have for breakfast this morning your honor your honor what the way courts in ohio determine whether there's equal bargaining power is not to measure the wealth and power of each party down to the last millimeter what matters in terms of determining equal bargaining power in ohio is whether the parties are sophisticated players and they have experience in the industry and whether they're able to negotiate provisions to their benefit and i'll tell you a couple cases courts have found equal bargaining power simply where both parties were sophisticated and had experience in the industry that's the dressler case at two thousand and nine westlaw two four five seven one two six ohio courts also find equal bargaining power between a corporation and an individual simply because that individual was a lawyer and was deemed to have understood the terms of the contract that cases gerard that's twenty thirteen westlaw to six seven honor the ohio courts of appeals are very clear that contra preferential is reserved to work in favor of unsophisticated parties with an equal bound bargaining power who are bound to t i'll start by saying that i think it would be nice to have the party sit down and see if they can resolve this when i picked up this case i was a little bit surprised that it wasn't resolved already imagine our surprise yes exactly so that's something i think that first i would welcome i'd like to address  one point about a question that you asked my friend and then if i have time of point made about whether we can reconsider issues from the previous appeals and set me up or to brief that on the question of who was the drafter i think it's extremely important to look at your thirty five and thirty six where b p concedes at trial that it is not going to dispute the facts of what happened in the negotiation of the contract so the question is did you hear petro stars witness testify that drafted this contract we're about to get testimony from b p about whether or not they have anything to say contrary to that the district court didn't make any findings about that well i disagree with that so the district court says i think this is undisputed b p stands up and say that's right we're not disputing the facts here about what happened we're disputing the legal significance of it and then what the district court said is there is no dispute between the parties in the opinion about the questions of historical facts surrounding this country what happened and our witnesses it your one thirty was there any negotiation over that priced or no were those all written by b p yes there was some wording changes in other place in the contract was there any negotiation over those wording changes and remember the whole premise of the district court's decision is the parties didn't negotiate over this term right that's why we're here well that didn't mean they didn't negotiate generally but they just didn't think of this problem well didn't think about this problem and they didn't discuss this was going to work they negotiated what the marine transportation differential would be they filled in that number but they're not negotiating or perhaps i know it with the permission of our presiding judge can i ask you this that your your learned colleague commented about ohio law and what's required to apply the kind in this case in what way if in any way do you disagree with him on the construction of oh hi ok says sure if you look at those cases they're not apply it's not a true ambiguity situation usually one side is saying i just went because the street is in big us right if it's not clearly in the other side's favor they wrote it so it's their fault that the ohio courts do not apply that strict version of  that the parties didn't have an equal opportunity to learn over this term i mean the district court's rationale for not applying the can and it's not something b p defends here doesn't cite in the ohio law but as i read the opinion it's rationale is b p was in  and severely compromised bargaining position it needed oil it was likely to agree to whatever b p wanted so we're not going to apply the canon here then contradictorily points out that interest i was able to get some concessions but it doesn't suggest why that matters all i'm suggesting is this court said in the district court said that b p we did have superior bargaining power in any event my point on hire a lawyer is but it's a true ambiguity that's not the rule and i think judge woods opinion for the second search is really really hopefully points out that these two strains of the doctrine and we made this a big point in our opening brief and you didn't even attempt to distinguish between the cases in this regard thank you counsel can i i apologize i just want to say something about the previous appeal so quickly you know when you say there is there are six months between the north port poll contract and the dollar these contracts they're not at the exact same time this court was right and the original contract didn't have this other provision about the quality betting from which you would draw excuse you only include you lose reference and then the witnesses testified that they expected every subsequent contract to be the same as that original one so this is short this court did not get it wrong this argument was presented in a petition for rehearing and the court