reserving three minutes for rebuttal if that pleases the court this appeal is about whether an agreement between the parties essentially eliminated any ability that my clients had to seek return of security deposit all or some after a terminations in the future the agreement that's in question nowhere waves the rights to return of the deposits you will find that anywhere what you're go find is creative interpretation of language within the agreement to suggest that it does and i want to address the specific language of the agreement with you because i think that's going to determine how you respond to this appeal because what we're dealing with here is a windfall tire gate where they're really not intitled to keep all or some of those deposit monies why the law basically requires that a waiver be intentional it's got to be clear it's got to be unequivocal you can't play games with words and for somebody in this case to basically abandon six hundred thousand dollars of deposit money that's what we're talking about and maybe one point fo a factual matter because i don't have this clear my head at the time to the settlement agreement was executed were there any of your clients in into fault at the point at that point in time that was  conclusion that the district court reached and i think it was erroneous there is nothing in the record to suggest that a notice of default been issued but a notice of terminations have been issued or even that a date certain for payment have been determined instead what you're going to find in the complaint is the allegation by my clients that there was a period of time when concluded when nothing could be done iron gate was not concluding deals with people for reasons that were we need to determine but that was the not but if those facts were before the district court i would submit to this panel that he might have had a different perspective number one you've got parties who have been on ice for a significant period of time now they come together and what they're trying to do is reach a revised understanding that's what this agreement is right but that's what i was for me the context in which that agreement was reached matters in terms of how you would interpret it and if your anyway then it would make sense that they'd say ok if you will just give us a little bit more time we're trying to line up financing if you extend the closing date if you'll give us that in exchange we will basically waive the right that we otherwise would have had under the original sales contract that to me makes sense but that's what i'm trying to figure out is that what was going no no what you have here is not a default what you do have is iron gate using its ability under the sales agreement to gain an additional benefit for my client if you look at paragraph d ten of the sales agreement you're going to see that iron gate could have demanded a closing within ten days now a significant period of time to pass and to require my client to come up with i think it was three or four million dollars within ten days was not feasible so what she did was she to go she did the parties negotiated a new understanding and that was to give her  ually forty five days to come up with the cash to close the deal with an additional thirty days after that if she was willing to pay additional money what was the quid pro quo they wanted to not insist on the ten days a quid pro nonrefundable payments she had to come up with an additional six hundred thousand dollars or so within a very short time and when i say she i mean the principle behind the sunday's companies she had to come up with that money now if she wanted that additional time otherwise i think it was perfectly free to say ten days take it or leave it we're going to fight over deposits later but that's ok i hear you so it's not there thought it was another i mean they gave your client  i'd like to reduce the amount of money this involved here go with a different unit they said fine we're going to go ahead and in or into an understanding where the posit money is going to be credited to that unit so what's really important here i think is to recognise the distinction between the deposit money and the nonrefundable payments for those and what's lurking in the background in this whole picture is paragraph d thirty seven of the sales agreement that is what governs the deposit money and what it says is fifteen percent you got to keep firing gate now we will challenge that as a penalty but nevertheless they have this right to the fifteen percent my client is paid twenty percent for every for the original four properties so what were they going to do with this additional payment that they were going to demand it wasn't going to be called a deposit because it was called a deposit then this provision would apply instead they call it a non refundable payment clever use of words might actually work point is that they wound up under that understanding with thirty percent but ten percent of it because if you look at the calculations you'll see that nonrefundable payment was equivalent to ten percent of the sales prices for the four unit so essentially they called it something different that's how they got around the thirty seven and that is a big clue to how you should rule in this case because the concern about the thirty seven tells you there is no is the district court tell me if i'm wrong on this that this remark included that the i think it's paragraph is a paragraph eight of the settlement agreement that really ends up being the one that matters the most you know the release that this was a situation that falls within a purchase and sale context because what we're the remedy that we're seeking here is somehow related to a purchase and sale well hang on just  claims that you've alleged are barred by the settlement agreement and it's just it's an ambiguous there's no ifs ands or buts you're just out of court that's what the judge conclude ok so if we instead look at this and said you know i don't know if this means you got a possible reason they've got back down to the trial court and it should be a matter for a jury to decide that's how it gets dealt with and why the law where there's an ambiguity the trial court doesn't make that determination there's a sensually a decision that's later made in front of the jury about what how to resolve the ambiguity so but i would like to address that a little bit section eight and this concept of the identical factual predicate what section eight essentially waived or released were claims arising out of the litigation and we've talked about the litigation in the briefs what i think that the district court did was conflated relief with claims because in our case we're seeking deposit money we're doing it because there was a terminations and as a result of that terminations de thirty seven kicks in there had been no terminations up to the date of the agreement is not effective as far as our case is concerned there had been no terminations the term nation happened after the settlement was entered into and for that reason the thirty seven kicks in doesn't arise out of a also one other thing i'd point out to the court when you look at that section eight proviso a very clearly says this release does not a played apply to claims arising after execution of this agreement if you accept i that provision means nothing it's a clear provision it's very broad if you enter into this agreement fine we're going to get rid of all the claims you could have made in the pass on the future basis claim still may exist may happen and so what do you do with that provision or in our case what you say is you have a terminations that occurred after this agreement was entered into you now have rights that you should be able to assert under d thirty seven and they even cited d thirty seven in their terminations letter so it's an active real provision that can't be ignored and unfortunately the district court one of the conclusions the court reached was that these claims existed at the time of the settlement agreement they didn't and for that reason alone the complaint should have survived and what should we should be but permitted to go forward as the other justice suggested if you think there's ambiguity then of course you could send it down for further proceedings consistent with that but for sure this dismissal should be reverse and own we're not in a position to to rule definitively as to what this contract means are we all we have before us is an appeal from a motion to dismiss your case if we reverse that then the district it's back and you guys will figure out what to do from there we don't have any authority to do more than that i i want i know you're reviewing this to nova and so any comments you make about this agreement i think will be a lot of the case so i invite you to do that if you care to but if not then as you're suggesting you could just send it back to the court indicating that this is a claim that it's a plausible claim should not have been dismissed and it should proce word finds that an agreement is not ambiguous to reach a determination about what that agreement means and i think that because you're sitting here to know you have that ability if you feel though that there's some back and talk about context in a minute but the section which is claims arising in the future i believe the only reasonable interpretation of that would be potential claims for breach of the settlement agreement or claims that could not have been raised in the underlying expected to happen and they were delayed that is true but at some point in i believe it was in two thousand and ten the development started closing on units and at that time there was litigation filed by a number of purchasers seeking ways to get out of their client out of their contracts for purchase and in response to some of that litigation the developer and gate filed its own that edition which asserted numerous claims including  with capital letter l the litigation it didn't express please define it but judge watson has that very question of mr bernard bays who was representing the plaintiffs in the case below and you can read the transcript on his response pretty his response was entirely clear to me but even more certainly did not say that it did not involve the litigation that are needed filed and i think the reason will read of the settlement agreement is that it did in fact involve the litigation r if you turn to the last part of section four the settlement agreement it says should all the purchasers fail to close by june twenty seven twenty eleven or no more than thirty days  thereafter subject to the extension fee all purchasers will forfeit to seller that is if this doesn't go through all additional nonrefundable payments now the word is additional now up to that time the buyer had made contributions and and cetera now going to settle it but the purchase from will forfeit the seller all addition will not the who says all purchases will forfeit to the seller all additional non final payments made pursuant to this section four and furthermore release the rights of claims pursuant to section eight what are the all additional nonrefundable payments immediately upon execution of the settlement agreement and those were expression nonrefundable pursuant to the terms of the sort of agreement and this paragraph for now i think the use of the word additional suggest that the other payments prior to that point which were the twenty percent deposits were the other payments or deposits that now become nonrefundable upon a breach of the settlement agreement that's certainly not the only reading  that's right i think it is the only reading when it's reading context of the remaining clause which is and all claims are released pursuant to paragraph eight now i want to get back to the context which was i get it filed a claim a complaint that sought not only specific performance but also a breach of contract including a claim for damages for breach of contract now we looked at section d thirty seven of the contract that's the seller's remedies upon a default by the buyer that provision allows for either specific performance or damages in the form of either liquidated damages up to fifteen percent or actual damages if they exceed fifteen percent which are later so we're just talking about well i wouldn't assume that they didn't and is at the time the breach and of course the market bottomed there were numerous purchasers trying to get out of their units here and this developers carrying malta hundred million dollar construction on trying to keep this development afloat the damages that they suffer from purchasers not closing and then facing the task of selling into a down market when these units have been contracted for at the top of the market you know there's a lot of issues with respect to that i take issue with them saying that there was but that's beside the point the getting back to the release of claims under d thirty seven prior to the settlement agreement the developer had asserted a breach of contract cause of action against those other purchasers against these right but the context here is that these purchasers are represented by the same council as certain of the purchasers that were in the litigation and were similarly situated now mr fleming just said it wasn't feasible for these purchasers to close within the ten days that i think it required so for them to say that they weren't in default contradicts that statement also contradicts the fact that there was an allegation that purchasers were in the fault under their sales contracts in the litigation that i don't get it i just don't understand when you when you say additional funds i don't quite follow your determination that that doesn't benefit the your adversary these four for the they must mean something different from the original monies right or that stretch are there were additional funds that were required to be paid it was approximately five hundred fifty or six hundred thousand dollars only fifty thousand dollars of that was actually paid but those were the quote unquote additional nonrefundable fund but if you're reading this in context of those being additional nonrefundable monies the other monies that have been paid for the twenty percent deposit claim for which could have been asserted first in the litigation that sought to recover the entirety of the deposits on numerous different port theories and other theories but certainly in response to iron gates assertion in its underlying litigation that it had a right to damages which would be beyond the liquidity damages that were at issue in my view that isn't that clear from this language what did the district judge state that language meant the district judge focused i believe primarily on the fact that the waiver with as to all claims that yeah so you never got to this language and i don't believe that he did i go back and check if your oh my understanding of the briefs to so so if this additional language means something different from what you said it would then mean that they with i disagree your honor you know now i want to know why they don't win because the forfeiture of the additional nonrefundable monies you thousand dollars it was actually paid for the five or six hundred thousand it was supposed to be paid that is another part of the consideration that the plaintiffs gave for this agreement the second part of the consideration was the waiver of claims as reflected in paragraph eight and that's all claims that were brought  that could have been brought relating or arising under the arising out of the purchase and sale of these units and now they've tried to say that there was no terminations and there was no notice of terminations at the time of the underlying litigation in two thousand and eleven but there had been a repudiation by the plaintiffs there had been in the searching by iron gate that the plaintiffs at least in the other litigation who were similarly situated as these plaintiffs had failed to perform and had repudiated i give us the difference which they could have and should have asked in two thousand and eleven they had a right to asset in two thousand and eleven and rather than iron gate asserting its right to prove its damages in two thousand and eleven hundred get agreed to the settlement agreement and part of the consideration for that settlement agreement was give us additional money and give that to us now and we'll give you more time to close we'll give you an extra six weeks or whatever it was and in addition to that your claim for that part of the deposits that have already been paid whatever amount you might i don't think that that's accurate i think purchase and sale is any matter that would arise related to arising out of the contract for the closing the course of the closing including the deposits were made in the course of purchase and sale to define it otherwise closing the term closing is a defined term in the sales contracts if they intended to only release claims rising of the closing don't even know what that would mean they would have used that term closing it's a diversion those other purchasers  i'm fine or you're going ok can i ask you that the same question i posed to your opponent to just if we were to conclude let's say that this provision you're reading of is certainly a plausible one but their reading is in its entirety is ambiguous and therefore does not support judge watson's underlying ruling then yes it would be remanded for further proceedings with the terms of resolving that ambiguity as you can surely imagine i would disagree with that right i have to say i mean i you haven't persuaded me that it's that it's sort of you know cut and dry i'm not saying you're reading this wrong but i certainly can't i've heard everything you've said here and i can't say that that's the only reading this an think that when you look at the fact that there expressively agreeing that any additional payments are going to be really would make no sense to say but prior payments might or might not be this distinction between payments and five dollars give me one more dollar that one dollar i can't get back i can go back and get two other dollars if there's some other source two out of the original five you could make money is fungible remember you could make that kind of you know you could but you would have to be expressed i think in reading this well first of all i think it's it's really true that if you're going to release something in hawaii law it's got to be if you're to waive your rights to something it's got to be clear unequivocal it's d thirty seven remains out there as a legitimate part of the understanding between the parties and all the evidence points to the fact that they chose to use this word payment instead of deposit because deposits still existed as a separate thing if they had meant to say that the deposits were nonrefundable they could have said it very simply and they didn't and so there is nothing of that sort here now your honor point and i'm sorry asked about judge wallace you asked about paragraph four and i think what's important there is the last part of this the last sentence that says the purchasers will forfeit to sell or all additional nonrefundable payments made pursuant to this that's an odd dichotomy i mean number one if you're going to say you're going to forfeit something then say everything that's being forfeited and include the deposits they don't say that instead what they go on to say is well you are still going to be releasing your rights under section eight what that means is that under section eight you're waiving any rights you would have had or claims you would have had to pursue in the litigation those claims can't be renewed now you've basically given that up so that we're going to enter into this agreement and that ties into what do the litigation involve at the time the litigation was filed and indeed before the settlement nobody could have sued to recover deposit monies based on a terminations under d thirty seven because my client had not been terminated and if you look at the litigation what you're going to find is two cases were filed by investors they were suing over misrepresentations that they claimed to been made to them they were seeking rescission and as part of the relief for that rescission they were seeking returns or deposits that's different very different claims then seeking to get my deposit money at least some and maybe all of it back based on a terminations so it's not true to say that my clients could have been suing to recover before the settlement indeed before the terminations to get the deposit money energy thirty seven from students i don't know if it's the teacher or the leader of this group here but you know