for purposes of argument i'm going to focus on three issues in this case the first was a proper to permit a person who's neither named in the easement nor a party  enforce these but second issue should the court have submitted to the jury the banks the jury and iraq authorities that dealt with the scope of this fee waiver and then the final issue is was the bank in title two submission of the jury instruction on unilateral mistake the first issue is in our view the most important issue in this evidence that could have been submitted on the question of reformation of these no question had there been a reformation claim in this case that that would have been a proper claim in the case that isn't the issue from the  he was covering concluding fails in a town obviously the as i say there is no question but what if there had been a reformation claim in the case that would have been a permissible claim the issue is in interpret thing words of a contract the question is the court must interpret the words of the contract in the guise of interpret in a contract one does not rewrite the contract and where  call home but when courts are called upon to interpret words used by others the ordinary language is interpreted to mean what the ordinary language is and it's especially important where you have a situation like this where u s is not named in the instrument i think this was a strategy decision by plaintiff's counsel not to seek reformation of the document because the minute they got into a reformation claim that we us bank could seek to reform the instrument to  include only those accounts which existed at the time of the arrangement and have that mean only the restaurants which utilize those caps what this court did was under the guise of interpretating and instrument reform the instrument you cannot read the course declaratory judgment other than to say this is reformation under the guise of interpretation and that's  time of performance to continue into the future the bank could have mistakenly treated pacific bells inc because it knew it was not a party to the negotiations u s bank easily could have done that u s bank was intitled to go to the jury on the question of whether either for past performance or future performance specific bells inc is a party to this instrument that issue should not have been withdrawn from the jury given that there was some evidence you may put on testimony that these companies were all kept separate and kept separate for very important reasons because there were some restaurants that were covered by this owned by the family of companies and there were other companies that alone other restaurants that they admit were not covered by this agreement so there is obviously some restaurants covered by this agreement and some not covered by this agreement so from a standpoint of who we can set or that to be a fact issue from the jury the next issue in the case is what's the scope and it's important for the court to understand that from the scope standpoint what this was was trying to understand what existing five counts the record evidence is that accounts were used for restaurants a restaurant has to take all of the cash that gets generated back out and go down in the past that on a daily basis so they have certain accounts for certain restaurants but fee waivers to the jury i don't think you can find that there is any issue with those in iraq of course but the court did was confused two issues that made it impossible for the street to deliver a clear answer on what this  meant and the waiver method i'd like to reserve the right remaining three three and a half minutes for addressing the other arguments that might come up over don martin was the principal negotiator for the bank and he testified on several occasions that he meant that language of the east meant that the deal he was making with pacific fouls was to include all of the accounts that they had at that time on what are you talking about that they move for judgment against the pleadings that pacific bells should be excluded and that motion was denied on the basis that the pleadings indicate that pacific fails and was intended to be included in easement at the time and it and we're giving lots of the council lots of people will employ them anyway because you know we need the cash i mean there's lots of reasons they might have in fact three of them as it were covered even though that's include all the existing accounts for all the and and the parties in their court correspondence leading up to the drafting of the easement over a period of two years refer most often to going back to the issue that is of the greatest interest there's two times that this is important one was when we were judgment on the pleas at that point there was no record evidence of anything the motion for judgment on the pleadings when you compare the allegations of the complaint to the instrument the pacific bells in the seeking to enforce at that point the only thing before the judge or the pleadings the court had to decide based on those pleadings those pl we still have the question of that there was evidence on both sides of the jury issue and leads to judge from in this is earlier question and i still don't think the answer when you say there's other evidence other than the wording of the agree are not covered so we heard counsel say that there was evidence in the record that all the existing accounts for all the into ts were intended to be covered we know that is not true because we have understood evidence in the record that there were restaurants in ohio owned by the same pacific into deals that were not intended to be covered we know that there were restaurants covered in u s bank accounts at the time that were not intended to be covered and so we have a lawyer presumably instructed to include everything on the lawyer does not the lawyer does not testify the lawyer does not say i made a mistake there is no evidence in the re his businesses had other taco bells in other parts of the country that weren't using northwest national bank and he had other taco bells that had accounts that he was a bank that were obviously not part of that deal originally was north west national bank but all of the accounts that were open at that time at northwest national bank according to the testimony of the banks negotiator mr martin and talk of taco bells or pacific's negotiator mr the consumer protection act claim is viable and i didn't have time to trial that is that that this court was focused on the fact that the relationship was based on an easement document which was something unusual when in fact the claim is focused on the fact that in a context of a to contract dispute where the party on the other side happens to be in my client's bank and knows there's a disagreement about what the respective rights are  the bank on the fee waiver the bank reaches into client's accounts and takes money out of the accounts without authority to do so we have cited to the court and the contest was largely about whether that's a matter of defendants argument relied on heavily articulated sort of four questions to that that apply to direct the court's attention and that is to my protection act analysis to the fact that that the violation honor i don't think that's the case that in this system and if this was a contract relationship with a party other than a bank and there's a matter of a contract dispute the party would have the ability to immediately act on their you know you know lateral interpretation holding your accounts in trust and just the pace and all customers anticipate that the bank cannot in this situation and now after several years of contact you are wrong and i am right and begin to take money out there that is a relationship and if the court does not overturn a ruling in this case it sends a message to this bank and other banks that any time that there is down about ownership of funds or i might enter a contract that there isn't