florida law as a district court judge seemed to think already construed the term legal costs and expenses for excluding attorneys there's there's three ways three ways in which attorneys fees can go into legal cost expenses first if you be read into legal costs and expenses through the mutual intent of the parties in the problems by the show cough case which many seem to think that strict construction but in fact a close reading in that case says it's not strict construction it just says the court will not struggle to find mutual intent there's mutual intent here both parties thirty six deposition testimony as well as numerous acts by atlas capo both indicate that parole evidence but your question was how do we get the pro levels and no we none of us have been able to find cases either of us that i mean there's a citation to an eight hundred eighty five floridian constitution which if you look closely at those cases you'll see it goes to in one thousand nine hundred sixty eight for a constitution which says we're all things that aren't adopted into statutes which then transmogrified into a florida ninth six nine point zero three statute the ninth six nine point zero three florida statute doesn't have legal cost hundred sixty eight constitution of florida does not have legal costs expenses it's over back in eight hundred eighty five it's ignored and by the time it gets to ninety six nine point zero three by that point it's purely costs and really nine six nine point zero three it deals with if a accused criminal is discharged or found innocent they are not forced to pay the fees the cross i'm sorry the costs of the court is a surprise to me to learn that if you are a prisoner and you're convicted then you do have to pay those costs but if florida if you're acquitted found not guilty you don't have to pay those costs that's what nine six nine point five with i'm sorry nine nine three nine point zero six apologize nine three nine point zero six is where all those cases but it seems to me that all of the arguments you make and you make substantial arguments with respect to what the mutual understanding was here kind of undermines the ambiguity argue the the  no ambiguity in the pure language of legal possible expenses does it not well that's a good question the to most folks legal costs expenses means attorneys fees to things parties it men attorneys feel how do we know negotiator and signatory to the contract said in a thirty six deposition testimony he said the question was and i asked this question to him is in their terms position the court seventeen awards attorneys fees to the winner of this dispute answer yes thirty no we don't we don't we're not even going to try to read it because it's not well written how to go and in that i'm sorry for that but i thought that was a rather stunning example of ignoring the intent of reaches back to show off which i'll get to in a minute but i wonder the clause said attorneys fees and then a couple sentence fragments and the question was does it come out of the lease does include the appeal fees does it not and the courts and we're not going to struggle with this one and that's exactly what choke off said we're not going to syria asking us to struggle with your language because your language doesn't say anything about a terrorist as i'm asking you i mean i don't think there is a struggle because both parties you are we are all bound by florida law we've agreed to that some time ago at the district court however there is the option of mutualistic if the two parties intended for this to say this you have the option to reform that or construe the term legal cost expenses that's one way and that's the second way you get to your so there's the option of saying there was mutual intent and you're not changing the contract because this is what the parties agreed to under mutual and tat you go straight to parole evidence and say what the party say there's there's no refutation of what the way the strongest line of attack he knew that there is an ambiguity in the language so that you then do get to what you refer to as the pro level and some strategy but that's that's certainly one avenue and it's a very there can be a difference between expenses and costs costs are over copying expenses can be the expense of an expert witness and attorney fees are the attorney fees so  maybe you're given the way it's worded your best hope here is that there's a determination that said it was and that we decided we have to look at what you say is behind the we reach the same inclusion whether we go through mutual mistake and reformation or whether we go through the fact that it might be ambiguous if it would be the mistake here that they didn't draft the because i think there was one in the one florida case the last example is where there's a draft in there right it was what would be the mistake here drafting here and not being precise enough to both parties meant to include attorneys fees and they clearly did based on their sworn testimony and then wait in a reformation attorneys fees and costs the motion for attorneys fees had numerous different judges a torpedos in the war one of which was this new cause of action under the contract prevailing already one when the district court judge said sorry you're not getting attorney's fees  negotiated against the thirty six declared from eric turbine and said look look they both agree and the judge said specifically i don't care about the intent of the parties i don't care about them and that's where the party there must be a mistake because both parties and of this and your previous decision was contrary to that he said i don't care if there was a mutual mistake he says i don't care about the mutual turn of the parties mutual intent is mutual mistake mutual mistake it's reformation in that context i don't think you are saying that the pardons created a mutual mistake you're saying that the district court judge was the one that was mistaken that's correct and that's different richard horn for your morning i please the court issue uses two terms cost and expenses if think i think that if there had ever been a case where expenses was construed to include attorney's fees that it would have been raised by my atlas i'm not aware of  florida cases in a cerberus what it takes to obtain attorney's fees in the state of florida from contract they say you have to be clear and specific and identify what it is that you're looking for and that was not done in this and this contract the says legal expenses and costs which do not include tracey's that's what the district court found on his analysis of the florida case i show off case the islander case and a number of others for is very strict on as in a number of other sort of consumer areas i'm making things be specific and infringement they were sought for a lanham act violation and it really is incorrect to say that both parties intended that fees were were to be recoverable under any circumstances and the case what mr acton's fails to include in any of his presentations are the next question and answer that he asked the appropriate but it's one conceivable and one conceivable construction of this document yes so that was not an unequivocal statement that attorney's fees were recoverable under any  circumstances did you not can stipulate in the pretrial conference that you would be contractually based attorney the one on the merit it was not identified as contractual attorney's fees it was just identified as any attorney middle district of florida case because salak case that incorporated a number of florida cases the ordinary way that you obtain fees in the state of florida is to move for their appendix count three is breach of contract and then one of the things you last for is relief is attorney fees under the breach of contract claim now you also asked for under fraud and under the terms of the patent claim mediately but i guess for our purposes what's relevant is that you do specifically ask for the attorney fees under the breach of contract claim and one of the one of the doctrines that we use from time to time in determining the intent of the parties is how they conduct themselves during the period of the contract and this suggests that your client understood that it was entitle to attorney fees if there was a breach of contract well if you look at paragraph seventeen of the contract itself it states that the party prevailing in any legal action arising out of this agreement should be entitled to receive its costs and expenses in bringing any such action and in forcing any judgment from the non prevailing party our position was at the time is that was that that attorney's fees were provided for the bringing of an action and thing a judgment which could only be done by a point of not resisting now the the district court used and trooper taishan to avoid that result but so far as the parties were concerts f contract claim is that your client understood that only the party under close seventeen only the party bringing the action could get attorney fees right and that's what he says in this answer and his deposition which is the next answer after but it but it says the party prevailing in any legal action it doesn't that it doesn't find it to the party bringing that that was the construction of the district court that it was section and that's what the pats what the intent of the plaintiff was his belief and intent was that only he could collect the fees he answered it is question determine the issues that are trying to be raised either on reconsideration with the district court or in this court without ever having reformation having been raised at all before this what do you mean sieve i mean that and wanted to determine about ten of the parties are or was for example for reformation there needs to be an agreement preceding the writing which is language of the document what i agree with and i started out saying that as further questions have gone into you know what the complaint says and so forth i want to give an answer that that leave your position yes that's completely my position the other things that i've stated are collateral to that and only a few assume that there are other things that you have to look at but i don't want to just say the district court was right it's irrelevant to sit down and i'm trying to be helpful that's always helpful i think that i in the course of this i have covered a good deal of what of what i wanted to say but i think that reformation should be clearly out in this court as both are irrelevant and as a matter of of the law that this court does not and sid are legal issues that are raised and have not been raised in the in the court either on reconsideration or directly to this court and the exception which was argued in the briefs as applicable of a pure issue issue of law which will result in miscarriage of justice i don't think  we raised which in which the district court decided the fim ocean and atlas filed a motion for reconsideration which was denied and the court entered judgments according to rule fifty four which don't require a separate judgment for attorney for the orders and then at was wicked and so the costs motion was decided almost a year later before filing their and a number of other cases which say that costs are and fees are separately appealable and in order to deny the jurisdiction washing you have to can i'm not sure that granted even if you concluded that there was some kind of contract cause of action that sprung up when the attorney's fees were denied to say atlas but  them the supreme court cases are very clear that they should be appealed as collateral orders immediately and anything else would result and confusion as to when an order confusion in the courts generally because the supreme court has been clear that jurisdictional orders are jurisdiction under section twelve ninety one should be made specific and clearly defined so that parties know what they're doing and when they have to file a notice of appeal when they don't vote your argument that we could not simply refer to the trial court i believe you should dismiss the attorney shot for another matter referred to the complaint in the breach of contract complaint by air turbine and it just strikes me in the provision he was looking at under thirty under at a the request for context of their complaint sort of prejudicial to your point that that term includes attorneys fees the answer is no and the reason is because in that you would also see costs on the is shortly before trial the first sentence on a two four eight says eighty believes that attorneys fees are not at issue in this case pending a determination of who is a prevailing party who's the prevailing party once a two sat on was a motion for attorneys fees and costs included a request for costs under fifty four lanham act extraordinary damages under fifty four offers of judgment and this cause of action for attorneys fees and costs under the contract so in the complaint you have been requesting attorney's fees in the thirty six deposition testimony you have i'm asking for attorney's fees in the pretrial stipulation they're saying we're going to get our attorneys feets and only after the jury came back and they were not the prevailing party but they say full lo and behold not the prevailing forty everything's irrelevant now as to the second deposition question the following question if i can have it turn to page eighty five which is that the agreement this agreement it's page a five so i let you catch up it's that last sentence in any legal action arising out of this agreement shall be entitled to receive the legal costs and expenses in bringing any such action a seven the first four paragraphs there it says starts with plaintiff contends that the agreement does not specify an attorney or entitlement to attorney's fees nor does it permit recovery of legal costs or expenses unless the party seeking recovery brought the action and force a judgment so the viewpoint was what you see here is shall we say some obvious case about not legal costs expenses it's who's in forcing the judgement who's the party seeking we're covering who well this is what the plaintiff contends the sentence and second it's written by the judge who will say attorney's fees are not in legal costs and expenses and what your whole argument and i take it that they were focused on come back to the question of weather your interpretation or their your client's interpretation or their client's interpretation or any expert witnesses interpretation has any relevance to our decision musician that it really doesn't matter what you people thought well what they intended or what you argued that the only question is how does this language comport with florida law help me understand how i escaped that trap certainly there's two ways you escape it first by mutual mistake and you asked before i apologize i believe it was you just like asked was it raised before we asked for the exact same thing as reformation and say as long as you ask for the underlying but we clearly can't reform it up here you can construe the claim i'm sorry the kid contracts are to include attorney's fees because you recognize the mutual intent the mutual mistake because mutual mistake is nothing more reformation is the result of mutual mistake that's one way the continuation the answer your question is if it is the slightest bit ambiguous when you look at the pro level it's because it's banging on the door from both parties sworn on refuted testimony it's there's not an issue of fact and what you see is legal cost expenses that's the issue on appeal it's not whether who brought the action or anything like that thank you