a simple but a very important contract that was drafted by two non attorneys o w w was the wireless leader in central pennsylvania back in the early to thousands and more had wanted to break into that market and the testimony at trial confirmed that the best way for more had to do that would be to associate with somebody who was already there like o w w somebody who had physical locations somebody with knowledge of the area and the industry somebody who had people lined up with the financial wherewithal to actually open and operate a location locations are important but without the right person they simply don't matter i mean if locations are all that mattered in this case morehead could have just simply associated itself with a real estate broker who could have found some empty storefronts and they could have put their stores there but more that needed more than that and that is why they entered into this referral agreement with o w w and under that referral agreement payment is required  client into circumstances first payment is due for all handoffs and referrals from w w dating back to two thousand and six notably in the agreement itself there is no definition and there's no limitation on what constitutes a handoff or on what constitutes a referral the second instance that requires payment is for any locations that are approved following that date as a direct result of int under this provision it's not a location but it is a location that is approved as a result of a referral in and within each of these two instances under the contract or w w is to be paid a referral fee for every activation and for every two year upgrade and it's important to remember that while payments are due for the payments that were due on the upgrades under the agreement specifically we're limited to two year upgrades but there is no limit limitation whatsoever on the activation type or in the duration of the activation in this all these us into probably two of the most important issues in this case and on appeal and that is simply what constitutes a referral under the agreement and what constitutes an activation in the issue of what is a referral by going to focus much much of the time there that issue was decided on summary judgment and the district court's decision limited a referral under the agreement only to the referral of an actual physical location and that decision severely limited really the evidence that could be presented at trial and in rendering that decision the district court determined that the referral agreement was unambiguous looked at the four corners of the document so it's unambiguous and therefore i'm not going to look at any of the extrinsic evidence that was before the court on on summary judgment and that and that decision was that is critical because there was extremes of evidence before the court we had the drafters on both side of the agreement for o w w and for more head in on many of these interpretation issues they told us what was intended and the district court's ruling was contrary to that intent and when we're considering this issue on appeal this interpretation issue obviously the review is de novo in the goal is to give effect to the parties intentions at the time the contract was made as expressed in the country and if reasonable people find that the griminess subject to different interpretations then it's going to be an ambiguous and the court would be required then to look at the ask extrinsic evidence to figure out what the parties meant and on the interpretation matters there's really on appeal i think three primary issues and the first one has to deal with the terminations that a referral is a physical location only contends that it would include not just a physical location but it would also include the referral of an individual or an entity that thereafter to open a physical location close out how you go all got to where the names of the fellows captain trimb would mean that you guys would get paid a share of everything they supervise to work it correct a broader interpretation was argued on summary judgment and on appeal we are not arguing for you having trimble we are arguing for the referral of an individual or entity that actually then opened and operated a store as opposed to oversaw the store like cap and trimble and on that issue i didn't plan on the physical location issue on summary judgment the court really essentially just looked at the number of times the word location was used throughout the agreement which was which was frequent but instead of really focusing we believe on the provision that indicates when payment is due what should be the controlling provision in again you've got the two instances where payment is required and you've got the end up and referrals dating back to january want to assess now that would include specific locations we agree that second instance it says for any locations that are approved following that date as a direct result of an o w w referral so if locations could only be or if a referral could only be a physical location there's really no need for that second provision at all it's where it's it's superfluous and when we interpret in this contract the court needs to harmonize the different provisions and again if you look at that language on the second part so i could we talk about the activations issue you seem to think that it was clearly erroneous for the district judge to rely that when the judge issued the ruling on the activations he basically said at trial you had morehead saying well here's our after fact opinion and what it meant go w w get there after the fact opinion as to what it meant you obviously nobody could agree so i'm going to look at the course of you know that's in an essence what the court did but that w w presented more than just its opinion so we don't believe that was appropriate to even look at the course of dealing in the first place  on that issue oh w w a trial provided testimony from both of the individuals that drafted that agreement so chad when who is the president c e o of w he testified regarding discussions he had with larry myers larry myers was the v p for morehead who negotiated and drafted the agreement and those discussions that child testified that meyer said i want to leave the were right there was conflicting evidence right you've got that the you've got that evidence about intent but you've also got evidence that moore had presented about how they actually what they actually paid for during the two years that they were paid your client's right there was yes and without objection from your client correct that yes essentially what happened there was at this time o w w their bread and butter so to speak was there from place and that's where they were i and i understand that but this is on appeal if you've got conflicting evidence we've got findings by the district court on that point why is it clearly erroneous to apply the interpretation that the parties supplied in two years of conduct without objection from your client because on appeal your honor we don't believe there was conflicting evidence the court focused and said to soften opinions but we didn't offer opinions we offered the f the testimony from the both drafters from their grafter and from our director so in our pain you don't you don't even get to the course of dealing because there was no conflicting evidence earth conflicting opinion could i ask you about damages of course did you ever tell the district judge what you think is the right number under the two million two hundred fifty thousand five hundred fifty that's exhibit thirty three yes i believe that is correct how do you get that number given the district judge i mean i look at that  i see a lot of different numbers on that chart yes your honor and you seem to take the approach on appeal that the district judge should have looked at that church after his interpret the contract and figure out what number t o to award well well the chart has everything again with going into trial what should be i understand the problem you faced with certain number of different issues but did you ever give the district judge a number based on his interpretation of the contract where we didn't know who a referral was until the after the trial and he told us who we felt that you asked him after he issued his findings no judge you're wrong here's here's the number you haven't told us a number of years i can tell that we did not file a motion to reconsider or emotion like that now with with the trial  that there are there are only there one two three four times that fourteen different entities that we contend were had locations that were referred and each one of under there says twenty three sixty six you see four of those entries that that is store twenty three sixty six in that and then the trial court had had this testimony to support this then we had documents for the time period of what are you looking at sir and please go to the microphone and tell us ok so it's recorded in your honor i'm looking at the actual document that was tendered to the district court during the trial and we have that in the record that should be perhaps with a magnifying glass but was that mark as an exhibit guess what's the number of the exhibit there's more than it is and there was testimony at trial again with the limitations of the p d f versus the xcel and the issues in heene the count did pick up some additional things i'm not certain enough because it didn't happen is it correct that exhibit thirty three or maybe it's eighty three i don't know what you're talking about yes i defenses told us that there were that the testimony at trial admitted that there were errors in that doc those calculations yes and i think that's what he was just alluding to there than because the document discovery that you've emphasized on appeal it actually was contested only with respect to some dish network activations that don't seem to be at issue on appeal and the whole controversy arose three years before trial and without you all having complained about the p d f production the yes the specific oral argument that we had on the p d f ursus xcel issue did deal with the production of disks dish network documents and the judge made it very clear during that hearing that you're going to get p d f documents and basically going to like it and you're going to and you're going to go to three years to work with those documents before trial i don't call tom i have documents were produced a different dates all throughout the but on the you know on the chart for example on the upgrades under the contract were entitled to recover damages for to your updates there was testimony that that perhaps picked up someone your upgrades as well however the testimony at trial confirmed that one year upgrades actually represent less than one percent of the upgrades in any given store and that testimony was from their own agents and that the standard on damages being you only have to prove them with reasonable certainty not mathematical certainty so if we were to agree with the district judges interpretation of but i can say again on the activations you know the all the issues on the averages and so forth really just went to the tear issue and on the tear issue again even if you're not entitled to the highest figure on the tier even if you only had one activation we have the total activation you would still be entitled to recover the ten dollar amount and we have the total figures right there so well with this number but once again i don't have that calculator i can sit there and do that respond perhaps during my my rebuttal which i see  damages and then second judge was on his role in a summary judgment that the referral agreement applies to the referral of locations judge miller correctly found that you failed to prove damages with reasonable certainty w on appeal identifies no clear error specifically has not shown the standard that no reasonable fact finder could have found a failure to prove damages in this case oh debbie debbie fail short of the standard for two reasons first child when was not a credible witness and second as as this court's noted the documents presented at trial and did not accurately show the number of activations and upgrades by location the court can refer to pages eight and nine and judge miller's opinion for the comments on credibility a child when what i would also note pages sixteen through twenty or judge miller includes it details a detail quotation from child's testimony showing just how difficult it was to get him to answer a question so challenged credibility of what was plainly at issue at trial but it's more than this we can look at the actual the actual documents exhibit eighty five that became exhibit thirty three at trial when we look at the contents of that exhibit and we look at chelles testimony regarding the contents of that exhibit exhibit thirty three cannot show the number of activations and upgrades by month by location as judge miller of that exhibit includes nonna for locations non activations meaningless averages and bloated referral fees w up i guess that's the central point on exhibit thirty three is that you failed to show the number of activations by month counsel counsel is just acknowledge that during this check testimony child when stated that he used very broad search terms and those search terms included commissions to salesman and other other topics that are not compensable under the agreement so there is no way for this court nor was there any way for judge miller to look at exhibit thirty three and to establish the measure of damages on the on the issue of of activations before you move on from damages to the defense propose any damages numbers the only number defense proposed what would have been found at trial would have been that exhibit exhibit thirty three him what did you propose from that exhibit well morehead proposed not exhibit thirty three we submitted exhibit f and defendant's exhibit f there is trial testimony regarding the preparation of exhibit f morehead use the same excel spreadsheets for the original location that you had more had reviewed the documents identified on a month by month basis the number of activation not under the district courts of you know your honor exhibit after show the original locations in the the locations that the parties agree were preferred and under exhibit f no additional fees are owed and that is that is more his position and there is no evidence in the record to show any additional amounts are owed by the plaintiff and the district judge seem to be both telling us there's at least some amount that might have been noted but the plaintiff never actually provided any number as to what that might be that's a little different from your position for example at least the ten dollar minimum activation fee for some activations that you all have not paid for so right  i don't think you know well based on the evidence to the court i case from the court's findings about the meaning of the end of the contract did i misunderstand that the the court at least there's a gap between what you all paid and what in theory might have been owed but there was a failure of proof on the plaintiff's heart of to fill in that  to maybe i did maybe i misunderstood the question that the court does rest not fair approve at the end of the day yes after concluding though that there probably was some additional amount of right defendant prepared exhibit out consistent with with our theory and that was not with judge miller's findings that's correct your honor so that was submitted that leading up to trial and that's the evidence that was presented and there were there was no judge miller did not accept all your proposed mind which i read that is that is correct correct so i don't judge miller's fine did you propose a figure in exhibit s no your honor we submitted that information your honor i would say yes you could look at exhibit af because ultimately there was a failure of proof that was the only way i was actually the only evidence in the record showing actual monthly activations for zero six and zero seven like if i hear the honor you're joinery separte separate you're digging a hole for yourself we're trying to find out if you should not have evidence that they fire a fact accepting judge miller's flanks right could look at your exhibit half and say i'd like to turn lester additional quite well into along with this i'm looking at page thirty four of judge miller's order with the bottom line he says even a reason why estimate can't be achieved this record reason so you did give him some as i understand a response to judge riposte question you did provide some damages yes yes your honor moore had produced evidence of consistent with our theory and that was presented even though we're defendant we presented that evidence to the judge was on a got it right they prefer legroom it applies to the referral of locations there's nothing in the agreement that applies the referral of an individual the store owner store manager there are really two central reasons for that first and foremost the stated purpose of the referral agreement states that are for any locations and then the singular focus throughout the entire document is related to locations and focuses on locations when we look at paragraph one that's where judge was on a correctly began that's the stated purpose of the agreement the parties say they intend to compensate oh debbie debbie for location handoffs they intend to compensate oh debbie debbie to offset a loss from adding another wireless carrier to their branded stores and they  intend to compensate over the b w for locations referred directly to morehead location handoffs branded stores and locations referred directly this is all language of locations there is nothing in the agreement the talks about referral of an individual this continues to the entire document paragraph to effectively restates paragraph one and then as we continue through the document there is discussion of how these locations are managed referral fees and most importantly on page two there is a list of preferred a list of preferred store managers it's a list of preferred locations but based on the plain language of the agreement judge judge was on or correctly noted that  the referral agreement should be limited as such to the referral of locations analysis at least there would be some locations that may still be in operation and still producing occasional activation fees right yes or i can  ok and that would have continued even after a trial this goes to the accounting point the to the plaintiff and so on so one one way to look at this might be to say well  there is an ongoing duty the judges disagreed with you all stopping back in june of two thousand and eight or so if i recall correctly after about two years the judge disagreed with you on that point and perhaps there should be an was asking to start the process all over again debbie debbie was asking the court after four years of litigation document production discovery and the chance to go to a bench trial but everybody was asking the court to restart to essentially start but they had the same documents they had the same documents that we used to produce exhibit af they could have done the work to thank you thank you yes thank you and in this in that last question and the second to last question was one of the points i was going to address on the whole accounting and the post trial you know that the decision by the district court created post trial payment allegations on behalf of morehead and the accounting whether whether you agree that an accounting should have been provided from the data referral to date of trial we had asked for two different time periods and obviously the second being the time of trial going forward so as long as the stores are open having that patients having upgrades would not be need not only the payment but we need the accounting so you can verify what activations and upgrades are actually existing and and this is no failure of discovery these documents don't exist this time of trial right the theory depends on in essence a for a very long term obligation to pay correct we're going back to twelve years correct and so you want to address the indiana precedence that say where you've got a contract with no terminations of provisions that it's terminable of will well i mean our position on that was there is a built in terminations provision that is payments are due so long as there is an activation and an upgrade when there is no activation and when there is no upgrades no payment is due so if the store closes or for whatever reason there are no longer activations integrates that's better but if you go on for fifty years certainly could yes and that was that was contemplated obviously certainly by my client was testimony in that regard when they entered into the agreement and mr you mr mitchell was talking on the interpretation issues again focusing on the purpose language and i'm not going to rehash everything but in our brief address to the purpose of the agreement and the language and how that supports our position but the one point i do want to reiterate here in rebuttal is that we have the specific provisions of the cream at that tell us when the pa are two circumstances when payment is due those are very specific and the general the general provision talking about the purpose cannot override the specific language telling us when when pain is due and  again on the interpretation issues the second part says that payment is due when a location is approved as a result of a referral so that would include a referral is made that needs to it's a location being after a handful of years they decided they wanted to move over here to a different location in the same store you know but for the referral they never would have had that and in fact larry myers again the individual who drafted and negotiated agreement on behalf of morehead testified you know that he believes that you know relocation should be paid so upon finding the agreement to be ambiguous i mean that sections of evidence that need to be considered and that was not considered by the by the district court along with the third category which would be new location so for example again going to forsyth the district court found that three of the locations were referred by ho w w at the time of summer summary judgment mr forsyth had eleven locations for other applications would never have existed but for the refer but for the original referral even filed because we utilized the transcript as part of filing the post trial the proposed findings but you