it please the court robert reversed four southern brands incorporated and its owners al in rosemary dowd this is an appeal from a summary judgment intervene in the southern district of indiana there are at least three key reasons why there are genuine issues in the tiriel fact for trial on the record below the first relates to a personal guarantee which my office had the dallas to sign in two thousand and three which can oftentimes should apply to a two thousand and seven promissory note executed by mr ballard as president of southern programs and to a series of invoices that run from two thousand and eight through january to two thousand and twelve that again can off claims the personal guarantee should apply to on two different bases those that situation  the intention of the parties in two thousand and three and two under indiana's material modification standard which essentially holds that guarantors who are specially protected under the law are not held to material modifications between here or can often s p i of that they haven't consented to the second issue that presents issues for trial concerns eyes antitrust counterpoint which arises in relates to a conspiracy between the insulation manufacturers and their biggest customers that was in litigation in the northern district of georgia ultimately resulting in a total of one hundred twelve million plus in settlements and in that case the court in georgia found genuine issues of material fact for trial well outside your state's limitations period so as to exclude distributors from the complaint was amended twice the second amendment yes claim to exclude distributors but he claimed to exclude well the court  georgia a year and a half later said that the class still contained distributors and the ultimate settlement class with masco which is a subset of the class included at least seven distributors that we know of but to rely on tolling you've got to fall within the definition planted in the operative going back to you the tolling runs from the initial complaint which included distributors distributors at that point under the theory of any trust holding a class action you can't something somebody in your client's position who is following the litigation i know that's fictional but with the theory is that you would follow it and say as long as i'm in that class i can rely on them to represent my interests for him and so when that complaint is amended the judge grants the motion distributors are out why doesn't the clock start because that's not what's the operative case law just crimes the operative case law starting with american pie clothing crown court conceal as the eyes as the eyes and case also relates to it and this court's decision and  hemenway talk about the tolling extended until the class is no more well that none of those actually address this problem right the narrowing of the class in such a way as to knock out somebody who's relying on the and the cases cited below both in the order and by can off were district court decisions which to some degree addressed this subject we believe through an improper application of the eleventh circuit decision in armstrong so what do you think so you think you're asking us to decide a new question then i don't believe so i think it's really answered by him in way and sawyer armstrong actually the case that's cited in the district court decisions which we've distinguished all stand for the proposition which we don't believe this is is really contentious that the class which made the whole goal of a class action is to keep people from filing other suits and in this situation for claims against going off based on its sales of insulation that should run until a classic that's broader then the i'm in but we know that because of the subset including distributed  say class actions are intended to prevent people from stealing the the the goal is for efficiency that you want people to participate in the class and therefore they get the benefit of  them to participate they can always opt to bring their arms to their to be part of a class that and they can do that and that's what's called for when they were given notice of the suit and the opportunity to do so well as well class action was approaching settlement with masco and there were some publications about this was after can often have the opportunity to include s p i in the class again the settlement class is broader than the purposes we don't want people bring the multiplicity was in that situation if you're a distributor watching and you think that would be one of the names of some of the not so the brains who is the columbus where i work if you think columbus dry wall is your champion columbus dry wall files this amid a complaint that throws you out of the lifeboat you've got to do something right and that's why the structure continues through the end of the class action process not through some  they're that they're all distributors of insulation some are distributors some are installers all people who purchased as they would have to for an antitrust based insulation product directly from the manufacturer so in competition with mas they didn't know yes ok what other evidence is that they didn't know there's no evidence that they did what's the other evidence that they didn't know there is none right the trigger is going to take you back to your personal guarantee the question i read this one page personal guarantee it certainly reasonable and the law suggests that parties have an obligation to read such documents when they're produced my only point is it's not conspicuous so that's not an answer to my question what effect would legal effect does the continuing language in that you're in t have under your view when you look at it in the context of the other documents associated with it which is what the indiana legal standard is it's  one factor you have to look at the other documents that were so you did with it you know you've you seem to be give in that language no effect at all or if it has any effect it means the more you borrow the less in forc guarantee becomes well what our position is is that indiana law recognizes material modification standard and you you rely there on the s mart case which was really extraordinary right that's that's where the lessees owners guaranteed the lease obligations right and then after the lease begins in the les or starts competing with the lessee now that there's really any of the court had no trouble saying that's a material modification i have a trouble seeing how that's comparable well i think there were other aspects of the smart case that show why it was applied and again the point there it was applied after a trial and with a trial not that it doesn't which gets away from the question we have which is there's a genuine issue material fact for trial from all of these these documents what exactly is that fact what exactly is that fact that the language didn't mean what it said well the facts are that when you look at that document in the context of its circumstances and the other documents related to it which is the legal standard in indiana you see that that document was presented to secure a two thousand and three promissory note that was paid off by two thousand  but it also had no continuing language in it and it's inconceivable that the cough would have continued extending one point six million dollars in credit to southern brands without some form of guarantee particularly given the history well i think i think the evidence of the record shows that they could very well do that in previous loans which were for smaller amounts when they wanted to refer back to the original personal guarantee that was executed is can you have a jury trial in which you say well this language is perfectly clear english but i didn't understand i don't think that's our argument your honor what is our put our position is that when you read that document in the read that contract in the context see other contests that i'm going to throw up the surrounding circumstances open to the surrounding circumstances which is what the legal standard in indiana calls for shows we believe that there are issues of fact for talk shows what does it show about the meaning of the word of the term here after existing it shows it read it out of the contre no it shows that a jury looking at the collection of documents th see my time's up here no i don't believe they can i think a jury has to look at it and well then what would it what using all your contacts and what would it say here after existing means nothing view assign to these words here at their existing that they think they could say it applied to something other than a material modification that the increased five fold the risk of liability so the only material modification here in your view is increasing the amount borrowed i think that's one that's that's the most significant else i think that's yet ok so to go back to my earlier question and it seems that the effect you're arguing is that the credit that had been tendered with the personal guarantee about eight hundred thousand dollars in any of the first loan beyond that amount i think are facts it gets the loan in two thousand and seven the promissory note saying one point six million or there which personal guarantees with small businesses are absolutely critical right and if the kind of i'll say the word context or surrounding circumstances that you're suggesting is enough to neutralize a guarantee that those guarantees are worth very much rather well and this is this is where indiana law provides a material modification  the i believe it's the greenwald case which sort of summarized the principal and talked about a material modification would be a change in the risk being assumed by the guarantor thank you but of course if  that this your interpretation was correct when of let this guy anymore well when they did and want to do renegotiate terms they asked for another personal guarantee which indicates that they did not believe the two thousand and three guarantee applied they didn't mention the two thousand and seven theft but when the parties were negotiating in january two thousand and twelve they asked for another personal guarantee that suggests to me that they did not believe that the two thousand and three was intended to apply to these  always ask for a guarantee or never the lawyer and more personal vanity is the better because of course they leave out the personal guarantee language from the next loan you'll say oh well  pattern of business that the increase is not the kind of change that would be a material alteration of the law with respect to the cases that that fiction that you know we set up the corporations and we protect the assets that's why we needed a personal guarantee here but mr dowd and his wife were s p i in addition there's arguments in the briefing relating to whether certain terms in the in the relationships here were willingly entered into whether the disparity in bargaining power and under those arguments simply because conoco is a larger company or because as the i felt the need to do business with can often salacious and does not put can often appear in a position where it's agreements and the clear terms of it forcible there's no need for a trial in this case as to the personal guarantees because the intentions of the party are irrelevant when as your honor pointed out there are clear language there is clear language  it represents the guarantee of the full and prompt payment of all obligations of s b i to can offer howsoever created now or hereafter exists and it couldn't be more clear let me ask you a question about well we have to go back and define class our position is that when that s p i was not a member of the class so yes members of the class one cannot settle for a very small amount relative to other defendants in that case when can offer made it settlement the members of the class than existing the post amendment class were given notice of that settlement s p i was not a member there so there was some back service in the original complaint is that was not certified that was not certified and and was wiped out because when the amended complaint came in and it replaced the prior complaint in all respects that complaint no longer exists the only complaint we insulation contractors not other entities that may purchase fiberglass insulation so there is no question as to whether there was an amendment contractors are the people who purchase from sri s p i as a distributor so it's clear under those circumstances that the amendment occurred and when the men medic heard the settlement of can off was after that and so the people who properly should have received notice received no that the record shows and judge parker recognized both in response or both in her order on the motion to dismiss and in the summary judgment order is that the record through the testimony the affidavit testimony of bonnie kohl and the other documents representing the relationship between the parties so that they were receiving monthly statements over a period of time there's one very recent in the transaction for a few thousand dollars but everything else was months or everything yes it wasn't like we had been building up an account since two thousand and eight and then out of the blue in two in our case what we're doing is we're showing that he was not attempting to resolve litigation at that point he was attempting to and he's admitted this in judge parker recognize this in her order he was attempting to continue to do eighty eight and in our view this is just one more attempt for him to continue to do business it wasn't in our view as a result of a threat of litigation but rather amount is correct and mr dowd as the principle of s p i recognized in writing that that amount was correct when he was offering to enter and forbearance agreement in order to have can off continue to do business with the purpose was so that he could continue to do business with us because no one else would sell him so insulation of phone so this within this five day period he could  beer you know the five day period is one issue and so we've addressed that issue in the fact that this is really a continuing situation where we have an account over a long period of time so the five day period i  understood just hamilton to be asking me was is that a long enough period of not objecting to get you there and i said no i don't think it is but i think the fact that we've been sending him music counts all the way through since two thousand and eight is what gets me there but the other question is whether that's the that's the implied part of the analysis the expressed part of the analysis is that just a few days before at that february one two thousand and twelve statement mr dowd signed a piece of paper that said the amount that i otoh is one point eight seven six five one three and some change that's an express recognition that that was the amount of on the february first document is the notice to you in a failure to respond to that before you file a complaint to establish an implicit agreement but you have a long tradition in your status of dealing but the express issue your expressed theory to me the whole nature of the forbearance agreement suggests at least some potential to speak to me and i'm troubled you know since we've got a rule of evidence that says we keep out settlement negotiations that looks to me like the settlement offer from the from the southern brand saying in essence ok i'm willing to acknowledge your claim is valid even if least if you keep selling to me under these terms and i'm i'm i'm troubled if we  court we would know that that was not an objection made there was no attempt to strike that summary judgment we would suggest that that's that argument's been waived it could have been raised at the summary judgment stage and was it is phrased on appeal he noted only in  response to do this suggest you see the testimony concerning the fair forbearance agreement now that only that that it was done in or eat in order to continue to be able to do business with us so if he'd executed a document that was another yet another promissory note that recognize that the amount of what's one million eight hundred seventy six thousand five hundred thirteen dollars and that that was the correct amount of in the form of a promissory note in the same cont a package of documents that was to be signed it included a mortgage on certain property and included so it wasn't just the team who did it was a complete package of documents that was related to resolving th that's the first it was received that's what the record evidence shows so the first indication that what they're claiming is an account stated came with the suit really disturbing were there your clients were getting monthly statements right they were getting prior monthly statements which are invoices which and those in the land except for the very last four thousand dollar transaction the rest of that one point six million and change it all been listed for months three those are those are those are invoices which were in how are you crediting the money that we're paying you and they never got an answer we haven't gotten the answer that in discovery in this case so the key point here is that the account stated on which they sued that document wasn't delivered i until it was attached to the complaint the forbearance document we've described ms calvert referred to our not objecting to it in the summary judgment papers that's because it wasn't in evidence we didn't see it until a year after of the time for filing summary judgment had passed they filed it where is it in the record there are a couple cases if you look at fifty seven and fifty eight fifty seven is when they are where they refiled the second coal affidavit which had been filed at forty five forty seven and forty nine without any attachments without the forbearance agreement and summary judgment we referred in our reply brief to they refer to this but it's not there and then when they filed refile the same affidavit at forty seven and forty nine it still didn't attach it was only a year later and without an order or a notice from the court suggesting that it needed to be done that they filed the it was a taft was the law firm's draft document which was one we think we don't know i have never seen it before that date was associated perhaps with the the new personal guarantee that they've asked them to sign in january which led to the litigation and if you think about a forbearance agreement one of the four bearing their full bearing suit that's what forbearance agreement does and it fits very directly into a rule for a weight because they're offering it for a very specific purpose they're offering it to prove the validity or male of a liability that they've now also gone under rule for a white house so well thank you thank goodness