rebuttal or you may thank you because you your honor the trial court made several clear errors requiring reversal the two thousand and six contract at issue in this case on its own compliance with this obligation not to solicit e m s merchants as with most contracts we submit that this contract should have been interpreted by the trial court to give asian we want to go to the big leagues and we want to be a processor are ourselves so they're essentially going to go from being an exclusive event to being a competitor of v m s is so at that point what we wanted would cause someone to start lowering the volume the process and volume that they were doing with e m s so that was the reason for that language again and then later there is some redundancy between the two but of course contracts should be given should be interpreted and given all meaning and a back where possible to all of their terms and we again submit that it was question your honor and even if it was extrinsic evidence and oral evidence we struggled with that at trial i got to be honest with you because i think that this language is clear and declarative on its face and i want in and presented this language to me and said what do you think you think how do you draw that well came yeah i know and i think either way it comes down in my client's favor if you and i was trying to respond to judge murphy's question in drawing on but mr o'neal testifying to your honor i do not believe that we need to resort to its present oral evidence in order to apply this contract i think the language was clear and declarative on its face and could have been easily interpreted and adjudicated on a summary judgment standard i see no intense can see with this again elton's and the way i respond to to to your honor's question is this i think that you are seeing good terrible lawyer ing going on here roman a four point one role in that these extremely valuable customer merchant relationships that e m f has with its margins you can't do either of them and i think that that it does all it's doing is making that exquisitely clear to anyone who would read  know we're not talking about gotcha moments here this isn't an gotcha moment we're talking about we're talking about discovery revealing to us that there were ten thousand six hundred and sixty four independent solicitations by choice that's not a gotcha moment that's not an accident the back and they didn't translate each of those solicitations into actual business and only signed up seventy two of them which in an in another insult has also  and the reduction in those changes really didn't do much i don't know if this helps you or hurts your but it seems like it was there all along and then in two thousand and sixteen i get the idea that  reduce or discontinue and i suppose i guess you answered my question by suggesting that reduced was that it was with the exclusivity garland was a concern that he could just move business rather than discontinue business and you didn't know again resorting to what i heard at trial i do know why that language will emerge to i i probably should have said it this way was deemed to continue to be important to my  client and again while there may be some overlap at no point in time and it be said and in my view that those terms are in any way intense as the worst thing that you can say about them is that it is good mar much redlining going back and forth and back and forth and the and the fact that that choice actually understood exactly what was in there is manifested materially so in two important respects st is the fact that joyce wanted to go out and solicit on certain occasions but certainly not ever every one because we had to learn about this through discovery it came and asked permission who does that why would you ask for permission if you s i understand it where you were hands to that question and rather than cite and of course not we never allow that or in this unusual circumstance we will want to know that in fact what happened was she didn't answer responded on a timely basis made clear what their position was from beginning to end the fact that on a daily basis are you are you saying that the record will were selected every time the choice mess and said i want to meet with this person or i have a question about offering other services to this person a record will reflect that he amassed responded each and every time is that your position or no there are record will reflect that my client typically responded in a timely basis to the end hurries and none of that you know that back and forth doesn't change in any way what the language of the but in no way shape or form ever bury the language in the contract and the fact that this is so typical and ubiquitous in this industry and the insurance industry and other industries and the other side has no case that says that this type of the level i know you've given us numbers of your clients and improper action and also you said that that there were like seventy issues times in which  a penalty versus a condition subsequent and maybe it can be applied telling us what was the st time you raised the argument before the court regarding  during a bench trial at the conclusion of the bench trial judge when asked for proposed findings of fact in conclusions of law and i don't know when else we would raise some of those legal points perhaps this is whether whether i don't know about the semantics but whether it's indecision subsequent or whether it is a condition we made it clear that these were bilateral mutual promises if you want to get residuals if you want the residuals to continue you have to honor the nonvolatile conversely if you honor the non celebrity my client is obligated to pay those residuals there is nothing inappropriate about that we made it clear that those two conditions of the contract were we question they can say and a bunch of times and judge when agreed with agreed with and it was actually from the level that it was them agreeing with judge when they never even raised the issue that it was invalid as liquidated damages provision or a penalty but the case law has held that these types of provisions are neither those they're neither liquidated damages nor they are are nor are they penalties they are conditions in a contract they are bilateral promises they are allocation of risk subsequent is any fact the existence or current of which by agreement of the parties operates to discharge a duty of performance after it has been absolute that since like of love but the rest of that kelly for as stated condition subsequent is generally not a clause that imposes damages for calm down it constitutes a breach of contract and there's no question here that your argument choicest breach of contract is the basis of your client doesn't that portion of rolleston undercut your argument no i don't believe that does your honor and also commend the court's attention to the the terms of the residuals survival or terminations dependent on that whether you call it in addition subsequent or simply true mutually and or civil i lateral promises in a commercial contract either way under any analysis this language again is clear and declarative on its face it is entirely consistent with all our armies are allowed to do to enter into these agreements do this every day of the week in this and many other industries and there's nothing  this was a business dispute which the court determined according to a higher law the parties really don't have a great other than really this condition and subsequent issue the parties don't really disagree much of the ohio law it was really an issue of how the well yes that's a good question and i consider that standard as the conditions subsequent it seems like it's a legal question of ohio contract law yes i would say yes it is in the  was negotiated for the purpose of allowing them to represent other people must partake of meaning and section two i think it's a very confusing contract and i would like you to stand back and and tell me how you understood this analysis whether it was independent review or whether there was ambiguity from the relationship between one and well in terms of the legal the legal issue of the ambiguity i think the court looked at it and was presented with competing interpretations by both parties and i can't get there without moving on to the extremes  from my client c m s the appellant saying hey i am going out on my own and i want to do secondary secondary source and free your emergence as a part of that and let's see if we can agree to some sort of a contract whereby that can be done and that is where in return yes came out with a contract which had the new reduce or just continuing now by way of background that's clear on the record below the this is part of the industry in this segment of  serviced by individual servicers and that is the primary issue is that the caps are lenders to limit their own risks there is other issues as well merchants might be concerned that a  bank that's behind but these processors might terminate so that they have what they call diversity other entities that they can immediately turn to you and they will be turned off so so that's the background i guess against the backdrop against which the judge has set the district court of this how does it seems like that superfluity idea is also in the two thousand and ten contract so i guess i have a hard time customers outside even if it didn't reduce numbers the superfluity idea was still in the two thousand and ten contract because it had the same structure about one provision that said services or discontinue and we know i guess it's really extremes of evidence but we know from record your your client's lawyer try to put in the language at the end of that cause on clearly would that clearly would allow for solicitation but have i have a hard time seeing how she but changes from terminate to reduce or discontinue somehow change the meaning of those two provisions to it now allows us to well you  mentioned you mention the fact that my client's attorney tried to additive additional language there were efforts to make this more clear than simply reduce or continue to discontinue but they were  was i want to secondary processing to your margins the other circumstantial issue that one of several but that support is was that my client's two thousand and ten agreement was going to terminate of its own terms the only reason my client negotiated the new agreement was to get this right to more secondary source and he agreed to a lower residual amount they were they in turn remove the exclusivity and he got the right to do the secondary request backing forced a ban approvals to just some solicitation there was discussion of various points about incorporating into the new agreement written approval but that went by the wayside it never made its way into the  knew the consequences of them and again he now has obtained relation to that which is the core as pointed out he was not able to obtain through the kind track negotiation counsel says that they're not a they are easily hermit nies and easily reconciled and in my book i do recognize that there is some redundancy between the two of them but the st one is solicitation you know the me the nd one which again comes in for all evidence the nd one is implicated when they're out doing something that causes that merchant to question it is relationship with v m s and causing that that merchant to think maybe i should reduce organ discontinue by a merchant processing relationship with the ana even if it is not accompanied by a direct solicitation by choice and here the only point even if it's not a model of clarity there's nothing that that's a very high standard and eyes and i respectfully submit one that is or should decline to adopt in this excerpt where you have to be absolutely perfect in your in your language according to three judges again i or roman at two and a back and they got it and understood it is made perfectly clear by the post contract conduct and back and forth exchanges between choice on the one hand and in a on the other if i'm if i might i just  pushback on that and it actually put choice in a better position than if the contract hadn't been breached which is the antithesis of what contract law is supposed to to do just by way of a small example because time is limited a low risk it be turned back on at the residuals simply be reinstated reconciled and paid based on actual revenue that was received by my client which was all that was ever contemplated by this contract in the purse thank you