appeal there are two basic issues in this appeal st is fleet my client limited to the liquidated damages even after defendant material breach of the contract and under the court's interpretation of the contract the nd issue was is whether it was error for the court to dismiss celadon grouping at summary judgment this case involves the breach of two contract sales contracts entered into the purchaser was named as quality equipment sales that's the same fictitious business name that sold on group used in a series of contracts in two thousand and ten when it purchased commercial trucks from fleet at that time there were three hundred and thirty two dollars used trucks that issue at a sales price of over one million dollars after the two thousand and ten contracts were completed in the name of quality equipment sales by celadon the fleet sales guy who was involved and then follows up with celadon the same guy from celadon the chief operating officer for celadon in two thousand and fifteen and says are you interested in buying more trucks w solid on officer tells him at that time is i don't know what our inventory needs are at this time but heart your point of contact for our purchasing needs is danny williams so fleet follows up with danny williams they enter into two contracts one in march one in may just like the ones in two thousand and ten in the name of quality equipment sales and they're paid for by a slowdown company then come the two contracts in september that were breached those are also in the name of quality equipment sales this fictitious business name at no time after celadon group directed fleet to work with danny williams on their purchasing onslaught on purchasing did anyone ever tell fleet that danny williams wasn't buying trucks on behalf of celadon group so they breach the defendants breached the september contracts and what happens after that they don't even pay the the  the cash deposits that could have operated as a look at data damages and what happens after september of two thousand and fifteen is the bottom starts to fall out of the use commercial truck market and by mid step mid january when  the defendants finally say hey the trucks we wanted we promised we said we're going to pay for you better sell to somebody else and by then it's kind of too late the the bottom is drop and the difference in the sales price and what they could ultimately sell over the next six months is over seven million dollars just the difference in the sales price alone on the liquidated damages we have three reasons why fleet's damages should not be limited to liquidate it damages  that the defendants materially breached this contract with failing to pay the cash deposits there is no question here that failing to pay the cash deposits on the rascal all and really everywhere is a material breach of the contract cash deposits has still not been paid the court really didn't address this issue other than to say that the were limited to look at data damages under the contract what defendant says defendant say in response to this argument is that well what the court said was right and we're not really seeking a benefit under this contract well i beg to differ they look at it it damages are approx me one hundred and fifty thousand dollars are damages just the sales price alone is over seven million dollars that's not just a benefit they're seeking that's a substantial benefit they're seeking it's the reason we're  here nd reason we're entitled to more than liquidated damages is the word retained in the contract that appears in two different places st on the st page of the contract on page one under notices to purchaser it says that seller may retain the cash deposits as liquidated damages and if they do that then you go to paragraph two on page two so it says may retain may retain there and then with you go to if they  paragraph two on page two it says there that the purchase understands and agrees that the seller shall retain has liquidated damages those cash deposits there's no question here that the word retain means to keep something you already have in order for that to be operational here for this clause to be effective against fleet fleet had to have received the cash deposits the cash deposits were never paid that's a condition preceding we can't retain what we don't have and for that reason we're not limited to the liquidated damages so your your view is that had had they paid the cash deposits then you're looking then your damages would be like a liquid no it's just an i mean well yes to me thinking no we have if you had retained if you had retained the cash deposits according to the paragraph or two would then if those were in your hands then we wouldn't be here they you that would have been your liquidated damages that would have gotten rid of our st two arguments they would have materially breached because they would have paid and we could have retained them and we go to our rd argument which is the word may on the st pages of the contract that says we may or we have the option option to seek actual damages what the lower court said may mandate was that that we could give the you know what the court said was may meant that we could return fleet could have returned the cash deposits to defendants and then turned around and asked for it back in the event of breach that that's not a commercially reasonable interpretation defendants go one step further apparently realising that's not a commercially reasonable reasonable interpretation for the word may and they say well they may have forgiven damages altogether they may have for giving liquidated damages altogether that's what may means but a party always has the right to forgive and forget but that means they would have paid the the one hundred and fifty thousand had they received it paid it back and said go on your way we don't care but again because that right is in every party to forgive a breach it would have been put in a contract that's not a reasonably a commercially reasonable provision put in a contract so those are the three reasons and we only get to the rd reason if the st to reach that they would have paid but why include then a sentence that says the parties agree that would be impractical and extremely difficult to determine the actual damages in the event of a breach by either party that's pretty broad yes our position is that that paragraph two on page two becomes operable as important if the election is made to seek the liquidated damages and so they wanted in an forcible liquidated damages clause because that was one of the options they had and so those those are words often found in liquid or damages caused to make those clauses in forcible under nebraska long the law of other places so that's why that language is in there but that doesn't take away the meaning and the effect of the word may on page one moving on to the era committed unless you have a question now i'm not sure i can formulate it exactly but this this work both ways right yes yes so let's let's posit that let the market move the opposite direction and your client decided to breach would they be limited just to the cash deposit amount yes there is a specific sentence that says both  parties are limited to the cash deposit and then two lines below that is a more specific provision that goes to this specific instance if purchaser bridges and if purchaser breaches  there's no way for under the way this works they obviously don't retain the cash deposit they have to pay the cash deposit even if it wasn't paid if it wasn't pa and we breached then they would have already had their damages because they hadn't paid it to begin with there's two reasons why celadon is liable under these contracts first reason is that sullivan was actually doing business as quality equipment sales st can i ask a preliminary question yes if if hypothetically speaking you were to lose on the st issue would it be necessary for us to reach this issue well yes because i have a grave concern that quality is defunct now and has no money collectability collectability yes you're not the st reason is that someone was actually doing business quality equipment sales if you go to their website in two thousand and fifteen they describe in a particular page how they are doing business as quality equipment sales the courts we consider that an admission of representation that they are doing and we're doing business with quality equipment sales the courts reaction to that was that fleet failed to offer evidence that celadon group's website was exclusive to sell it on group i have to say i don't know exactly what that means but my reaction is st that it seemed like that would have been incumbent on on celadon group to offer any evidence of explanation that that admission isn't exactly what it says it is but what i do know is that that website is evidence when taken in the light most favorable to fleet is evidence that a jury could rely on deciding that celadon actually was doing business quality equipment sales we also have the evidence of what happened in two thousand and ten there's no question here that those contracts were negotiated by officers of celadon group and no one else all the information about the purchaser in the two thousand and ten contracts comes from celadon group that paul will an eric meet so not only do we have their web page we have past experience that they are doing business as then we have the the the actual directive from celadon group saying i don't know what our needs are right now but talk to this guy talk to danny williams he's in charge of all of our inventory purchases so we have a directive from celadon group to work with their agent  only is that evidence that they're doing business as but it's also evidence that supports our argument the nd argument which is that danny williams had apparent authority to bind sell down group to these contracts what better evidence is there when the principle sold on group makes a written directive to a rd party fleet in this instance to deal with danny williams their agent on sell it on xp purchases and sell it sell it on trucking is no longer in the case cracked fell on trucking was never in the case never in the case ok what's the relationship between celan on trucking and sell it on group i don't know i do know that all the contracts that were paid were paid for by celadon trucking when you look at the detail from the bank it's celadon trucking services inc even though the position has always been that those sales especially in two thousand and fifteen were all quality companies sales they weren't paid for by quality company they were paid for by a seldom group group or trucking sold on trucking services inc and what's interesting about that if you go also in their website and sold on the website is references to their divisions they talk about quality companies as a division they talk about trucking services as a division and they talk about danny williams as being a president of one of these divisions so they have referred throughout to danny williams and these other companies as divisions and division means a part of the big whole there's no distinction even though the e mail messages talk about quality companies they don't  that could be president of quality companies division but also on that e mail address is the name celadon group inc there's the corporation they should be responsible i'd like to reserve my last minute for evolve thank you thank you please the court counsel my name's nick solid and i represent the apple e's said on group inc quality companies l l c and quality equipment leasing doing business as quality equipment sales just kelly to quickly answer one of the questions there is evidence in the record upheld and again what we're over here why is that because it seems to me collectability there's a potential collectability issue but but it's a relatively minor i mean it is it is an issue that needs to be addressed and it is a concern i can see how it's a concern as to whether selling group remains in the case but i think it would be it's relatively minor practically speaking maybe if the money was asked around or something it might go away but that's true in the absence of that think it seems like we might have to deal with it i think we do have to deal with it that's that's true that's true but what i'd like to point out is when we're looking at liquidated damages provision and this is what fleet has done throughout this litigation they gloss over the operative liquidated damages clause in the contract and that's on page two in paragraph two and he didn't even talk about it during his argument and the operative language is this thus the parties agree that liquidated damages in an amount equal to the cash deposit shall be paid by either party who breaches this contract it's mandatory it's clear it's an ambiguous language they don't even mention it here argument i mean that's the that's the operative liquidated damages clause it's an issue the notice sections of this paragraph really are not the operative language and liquidated damages clause and one thing that is worth pointing out is fleet is not arguing that this is an ambiguous contract that's kind of obvious because if it was ambiguous would be construed against the drafter these are standard for fleet contracts this liquidated damages language is language that fleet's parent company warner enterprises requires in every single one of its purchase orders so if it was to be construed against flee it would be construed against them obviously that would be detrimental to their position so they're arguing that it's clear and in an ambiguous language if that's the case nebraska case law is clear that when a contract is clear and unambiguous the court is supposed to enforce it according to its terms the terms of the actual liquidated damages clause here again say that thus the parties agree that a liquidated damages in an amount equal to the cash deposit shall be paid by either party who breaches this contract  when a contract is clear and unambiguous the court's responsibilities is to enforce it according to its terms and that's what the district court did it found that this was clear mandatory language that the parties agreed to just because it was a bad deal for fleet ultimate the end of the deal  that's just or that's just a risk that they ran when they negotiated these contracts with sell it with quality companies who was the entity doing business as quality equipment sales at the time september purchase agreements were entered into to address how is quality companies that your client breached by not paying the tax deposit and therefore doesn't get the benefit of the liquidated damages provision i agree that our claim breached by maybe not paying the cash deposit but if you look at the actual language of the provision payment the cash deposit does not a requirement for the operation of the liquidated damages clause as nebraska case was clear parties can negotiate to ultimately what the remedy is going to be to damages and that's what they did in paragraph two on page two if what they could have said if they wanted the cash deposit to be a condition preceding to or a prerequisite in order for that to become operative they could have said you know the parties agree that the cash deposits could be retained as liquidated damages they could've put that in the actual language of the operative clause but they didn't do that what they said is the parties agree that liquidated damages in an amount equal to the cash deposits so they're basically saying look the liquidated damages is going to be that amount we're going to make it legal to cash deposits it applies to any breach of the contract it doesn't matter if it's payment of cash deposits it doesn't matter if it's failure to take delivery failure to make delivery it doesn't matter what the breach was even though quality companies never paid cash deposits there's fleet is still limited to liquidated damages caused that they negotiated at the outset of the contract and that kind of also dovetails a little bit with fleets argument that look we can't take advantage of this clause because we materially breech well they're kind of doing the same thing right i mean if you think about it what they're saying is when we go we put together this contract we require this liquidated damages caused our contract but we want out of it even though it says the parties agree look at the damages shall be paid in the event of breach by either party what they're saying is no we don't want that one we want to just basically we have the option of pursuing our liquidated damages or actual damages and that's now with contract and this is especially true one thing that is worth pointing out this is especially true given that these are two very sophisticated business entities that are negotiating these contracts this isn't like a consumer transaction where it's between a commercial entity and it's a it's a mom and pop or an individual consumer where these are not sophisticated business entities here you have to sophisticated in eighty's who knew they were going into it and they had the power to negotiate the terms of this contract another thing that kind of strikes me with weak argument is what they're saying is this the mailing which i mean what they're saying is failure to pay the cash deposits was a condition preceding to or gave them the option  either pursue liquidated damages or or actual damages but if that were the case and this is i mean the language of liquidated damages clauses thus the parties agree liquidated damages shall be paid that's a mandatory language i don't think your party disputes that what they're saying is because you didn't pay the cash deposits that ultimately just becomes an option that fleet has i mean if that were the case then any breach essentially would render the the liquidity damage clause meaningless meaning if if it's mandatory language is contained in a liquid image liquidated damages clause like this and a payment of cash deposits is a condition preceding and then there could be no breach where the where to look for the damage cause well doesn't brasco law if you look at the web or case it talks about that ordinarily we look to see words like such when you know subject to on condition that  and that it doesn't say that that's not mandatory but there's got to be some marker some place in the in the contract that tells us that that this is a condition proceed into the contract coming into existence right i agree and if you look at this language you know any look at it what they're arguing essentially is that that language is actually fall and on page two why are they wrong because i think you're right you're right in order to have a condition in the conditional language and what they're saying is the condition or the option basically says hey look this is notice to you your cash deposits if you pay him they might be retained as liquidated damages pursuant to paragraph two so go repaid to paragraph two if you do that take to the mandatory operative liquidated damages provision that's in paragraph two of the agreement now what they say after that so again that to address your point there is no conditional language in the contract whatsoever the nd part that they where they rely on the retain language is again in paragraph two on page two where this says purchaser understands and agrees that in the event purchaser breaches this agreement seller shall retain the cast positives liquidated damages again what they're saying as well that retain means needs to be paid st but all this clause is doing is really what it's doing is making this a foolproof liquidated damages provision you have a notice on the st page that says hey look if you breach there's liquidated damages clause in this contract go read liquidated damages cars flipped pages to liquidated damages clauses  the it was but the problem is they don't want to be operative against them but that's not what the language of the contract and just briefly i've touched on already but the mailing was on the st page in the shower retain that that doesn't give them an option to pursue either actual damages or liquidated damages in the brass a case law is clear when it's a mandatory liquidity provision that's the remedy the parties agree to and in a story up quickly address the celadon arguments  one of the arguments is that this court held that there was no reason to try or effect can be found the cell phone was holding itself out as doing business as quality equipment sales now they rely on a website district or properly got rid of but what's key about that and kind of two points on this really it's it's an apparent authority issue and the st is put on inquiry about either employee's lack of authority or actual fori and they have a duty than the other party has an obligation to go figure out what that is the parties to the two saw two thousand and ten purchase agreements at that point in time quality equipment leasing curio who was dismissed from the litigation was registered to do business as it was doing business as quality equipment sales with indiana secretary of state indiana has a requirement if anybody's operating under a fictitious business name have an obligation to go register that quality equipment did they were doing business as quality equipment sales in two thousand and ten if you look at the two thousand and purchase agreements it says purchaser quality equipment sales and then at the bottom of the signature line it says either paul will or eric meek it says quality equipment sales by their paul will or eric meek i mean that puts them on inquiry right there as to who the actual purser is under the agreements i mean it doesn't say sell it on group there's no reference to any celadon group in any of these agreements and they kind of flee kind of plays fast and loose with references to selling group or so on trucking services sold on group had absolutely nothing to do with two thousand  not listed as the purchaser it's quality equipment sales the party that ended up paying the two thousand and ten purchase agreements was sell it on trucking services but they're not a party to the litigation they have been brought in that just the number of times you've said quality and try could see you pausing to try to remember which is which and it's kind of confusing is it is confusing but there's nothing wrong with that i mean the rascal law it's clear parties have the right and corporate formalities are are upheld and they're recognized and corporate entities are treated separately assuming there's no you know co mingling of funds or anything like that there really isn't any evidence of that here this a court dismissed the piercing corporate veil theory of liability on summary judgment and that issue has not been appealed so it is it is somewhat confusing but there's nothing wrong with with celadon groups out on trucking quality companies setting up their structure like that it's actually exactly what fleet does i mean there's the polio subsidiary of warner enterprises i mean it's the parties know who's who and what's going on here and that kind of goes into the going back to the two thousand and fifteen contracts if you look at all the evidence the actual of the apparent forty is the manifestations of scent that were made by the principal celebrant group to rd party fleet enterprises the only manifestation is the one statement by eric meek that go talk to danny williams he's in charge of our purchasing now but if you look at everything in context you have the two thousand and fifteen purchase agreements which say purchaser is quality equipment sales who at the time was quality companies whose register to do business is quality companies at the time with the indiana secretary of state as they were required to do that signature line says the purchaser is quality equipment sales by danny williams now on the backside of the purse agreement paragraph seven it says the undersigned hereby represents and warns that has authority to sign the contract on behalf of the purchaser which is called equipment sales and that alone puts them on notice of inquiry of who the purchaser is on the stuff so at that point in time back in two thousand and fifteen in february when they st started talking about these that they should go figure out who quality crimmins sales is but if you look at what transpired after that it's not like flea didn't know who they were dealing with danny williams always responded as a v p of quality companies it wasn't a hidden fact as to who is actually the purchaser under these parts and what about this argument that the that they were apparently divisions or they were represented that they were divisions as opposed to wholly owned subsidiaries w divisions reference was on the website but if you look at danny williams signature block if we're going to look at signature blots it says quality companies l l c one of the press releases says celadon group operates through its subsidiary companies i mean this is all technical language that fleet should've been aware of they were well aware of it they're really just bringing celadon in because it think they have deep pockets at the end of the day with that thank you very much situation they failed to cash deposit the the non breaching party the seller was no longer limited to the liquidated damages provision that again the word may is the option that were given under the contract that gives us the option to go one way or the other i misspoke earlier your honor in answered your question about what happens if if we breach what do they get they get not just what they paid us they get that created damage amount i misspoke earlier and on the issue of sell them group being liable here there's no there's no question one we did we thought we were dealing with celadon there's no question about we thought we were dealing with celadon and had we known different would have done things differently and fine with registering the name and in the state of indiana does not eliminate all the evidence that shows that they were doing business as and they authorized danny williams to act for celadon group