defendant here that's ford motor company and the purchaser would have to be the dealer which here which here is leave johnson ford because under texas law a car manufacturer can't sell cars directly to consumers the st question is whether ford actually sold this particular vehicle to leave johnston in of so when it made that sale the problem ford has is that it simply did not meet its summary judgment burden of proving indisputable ian as a matter of law and the courts have to say zero is based on the parties agreement to exchange a product for a price to be paid in that case the sale occurred when the manufacturer shipped the motorcycle kit to the dealer and the dealer paid the manufactur all that proof is simply missing here ford offered no competent evidence either documentary or testimonial stablish in whether or how or or or when the dealer paid ford motor company for this vehicle in fact ford motor issued a subpoena to ford motor credit to simply find evidence of this particular transaction and nothing turned up so ford shifted to a different theory which you're now seeing o that it released the vehicle to the dealer on october th two thousand and three release being the critical word they may say the release had the effect of transferring ownership so therefore they equate a release to a sale the problem is that theory is inconsistent with three different things st of all it's inconsistent with their own evidence in previous lawsuits involving the statute of repose nd it's inconsistent with the u c c and its definition of that there was a sale at another time or is it your position that you don't know whether it's there's a sale or not and you don't have to show that they bear the burden of showing when it was and that it wasn't he to say to come to the moment we do say there was a sale from the dealer to the ultimate consumer mr bacha but that doesn't count under the statue riposte because the deal is not to defend the sale has to be from the defendant pure ford motor company a arrangements that are not actual sales right and invest in this case the dealer mr trudeau from leave johnson testified to pay for plans to spirituals which in is view means that ownership doesn't well it would appear that there is some kind of a consignment type arrangement that again that the facts are very murky this particular industry i think is is very nontransparent and it's just difficult to know what's going on between manufacture of the dealer n is precisely why we have an active shooter here i think it's it's underscored in part by their own testimony in previous cases involving the statue of repose i've given the court a handout i hope you have it on page one i've set forth which in turn amounts to a sale then say that all they simply said a release is when the vehicle leaves ford's possession custody and control very common sense definition of release but that's not cynical and they go on to say these affidavits that the sale was by about unless otherwise explicitly agreed and again it depends on the parties agreement only if there is no agreement does title pass based on mere physical delivery here or ford and the dealer did have an agreement the problem is that both the court and now for to mischaracterize what that agreement was you know if i could ask the court turn to page three my hand up this i think is this here is really where the rubber meets the road in my view both the district court and ford described a sales and service agreement between ford and the dealers this way it's a title to each company product dot dot dot shell dot dot dot house to the dealer upon delivery there of to the carrier or to the dealer whichever comes st the problem is the missing words completely change the agreement regarding what past title so also on page three i put i put forward the full agreement and it begins by talking about how the payment is in accordance miscued accordance with the vehicle terms of sailboat and then when you look at the missing words what it really says is title to each company product purchased by the dealer show and west otherwise provided the applicable vehicle terms of sale bulletins as to the dealer or such financial institution or other party as may have been designated to the company by the dealer pod delivery and cetera et cetera so essex of title is not based on delivery it's based on the vehicle terms of sale bulletins per the agreement of the parties the problem is that for did not put the vehicle terms of sale bulletins into the record but as i mentioned earlier i think we do have some sense of what what the evidence showed about an agreement and it comes from mr trudeau who said that ownership passes only one dealer is paid cash in full a said i don't pay cash in full i floor plan to be a coles and therefore i don't bulls so again i think it best here we've got some kind of a consignment type arrangement but not a sale and certainly they didn't bear their burden of showing conclusively d and it's a matter of law that there was a sale and then finally i just point out that their release theor vehicle i'm not going to sell it i think that i think the manufacturer has some of some sort of security interest in the vehicle of the floorplan but it may not be the manufacturer frankly maybe the financing arm which miss cases ford motor company you see ford motor company all over this transaction and yet it's not the defendant we don't trigger repos based upon anything ford motor company did and as i mentioned they didn't even produce of the documents when they were subpoenaed by ford motor to do so pass upon delivery unless otherwise provided in the applicable vehicle terms of sale bolton and while we don't have to be able to say a bulletin on the record they didn't put it in their we do have the testimony of mr trudeau who made it very clear that they're under the party's agreement ownership or or title transfers and passes only when the dealers pay cash and fall and they talk a lot about their mini nine hundred and ninety nine repor i would point out that document actually differentiates between a release on the one hand and a sale by the other those are two different things and then finally i think this is very important if you look at pick six of the handout this has the testimony that the court relied upon from the two corporate representatives o'brian and pastoral and then true down to the dealer and for every statement the court relied upon i have testimony that basically contradicted it internally inconsistent so brian actually said in the court left is out there transfer ownership does not occur until payment in full is made why qwest trudeau said  that those who floor plan the vehicles do not own them and i for plan and then finally pastoralists said nothing is transferred ownership yet to the dealer until full payment is made so that's what transfers ownership for payment not not near delivery to the dealer or mere delivery to the carrier pursuant to the parties agreement and again it's the agreement that controls of u c suit so i think for all these reasons we have we have sat the issues up and down the board about what exactly this toll that's true but we're not relying upon any judicially crafted rules of tolling we're relying upon the statutory tolling provisions section sixteen point zero zero one that provides to quote for the purposes of this subchapter close quote the time someone is a minor is not included in a limitations period now this subject chapter which is subject for sixteen a of the civil correct as remedies code does of course include section sixteen  finally i think it's important to note the difference with the medical malpractise step your proposed seventy four to fifty one which expressly applies to quote all persons regardless of minority in other words if the language is right there in the statue of repose that there is no toll we don't have any such language in sixteen thousand and twelve so i think the legislature clearly intended that tolling would apply the case of eastman versus ford out of the eastern district texas supports with the text is also very helpful obviously in the place we started mostly most of the time and but we don't it's a it's an open question in our circuit and in the texas supreme court yes to extreme court is not not r twelve and in the medical malpractise records and so forth i think you know i still say it to may not exactly be the right word it may be just an alternative holding but nonetheless the court could have started and stopped just with the death of the minor an apple e ford motor company this is a summary judgment case of course d and the st step in determining if a genuine issue of fact material fact exists is to define what are the material facts here the material facts are a matter of statutory construction specifically what did the texas legislature mean by date of sale of the product of the defendant in the products liability statute of repose and again it's what did the texas legislature meet not what the parties  the district court direct correctly analyzes cases one statutory construction and they followed the district court bobbie crept in analytical cast the st thing the district court did was using bedrock principles of statutory construction determine that of sale of the product by the defendant means exactly what the plain language says the date that the defendant exchanges the product for a price that's the plain language meaning of sale nd thing the district court did properly having identified that one dollar material fact the court recognized that the evidence on that one fact showed that on the release date of october th two thousand three hundred and forty exchanged the vehicle in question for a price consignment you know i could go drop some clothes off at a consignment store they don't take title but they can sell it unless i leave it there too long that can take time but it's the so i'm asking do you believe that when they say that it was really more like and sign an arrangement because the floor plan and that they were not taking the price and changing title what is wrong with that there is absolutely no consignment arrangement arrangement here that is not all sales of motor vehicles work in the state of texas as mr levin just said manufacturers cannot be the seller of a vehicle to a customer in the state of texas so you know poets briefing insinuates throughout that there d are some that the dealership leaves johnson for some sort of go between here but it is some sort of consigning arrangement it's simply false on page sixty four dollars of fred trudeau's deposition testimony question is there any way leave johnson ford did purchase the vehicle insert leaf johnson for every document bits in this record every sales document that was able to be found after fifteen long years of past identified  testimony mr tripp so the material fact here again to get back to that is the date that ford exchanged the product for a price so mr castro on page forty one of his deposition testimony and document that is a point in time when the dealer is supposed to provide payment similar to if you buy something that's when you buy something whether it's on amazon even ells on you buy it and they ship it they don't ship it usually before you buy it w mr pastoral is saying there and it's even more clear and mr bond's testimony is that foreign exchange is this vehicle for a price on a release date they get money from the dealership or the floor plan they get money and they exchange the vehicle at the time they release it for that price that is a sale under the plain meaning of this product liability structure to repose war on the subject mr o'brien who's also ford's corporate representative beginning on the record page to seventy nine even more clear on this point question so it is for receive payment for the vehicle in the police state answer yes question and  and control in ownership of the vehicle to the dealership answer the dealer is the young or at that point question when was the purchase price paid before answer it would be drafted on the day the vehicle gets handed to the carrier which was october six mean you can create fact issues probably all day by the posing non lawyers and throwing statutory definitions in front of them about st sale and and say on the products a liabilit but again the material fact is what the texas legislature intended in that is a very simple plain language definition of sale which is you give me money i give you the product the exchange of the product for the price  company i mean that the financing company the one who's actually giving the money they are on on behalf of the dealership yes but the dealership is the owner of the vehicle dealerships franchise viewers are the only entities that can sell vehicles to customers in the state of texas so whatever the arrangement is between the person who provides you know whether it's that but one company or the dealership that provides the money the point is that ford's being paid transaction fifteen years ago that you know she drew shows a copy of a check where they got money for this vehicle and that's part of the purpose of the statue to repose you know i'm quoting from the methodist health care research ranking case which was offered by justice well it says one practical upside of curbing open ended exposure is to prevent defendants who are answering claims were evidence may prove abusive do get unavailable witnesses faded memories lost or destroyed records in institutions that no longer exist you know the whole purpose of the statute of repose is d not to look for documents that may be on the nd literally it rolls off the assembly line i own it and when does leave johnson ford by the vehicle answer the nd it was off the assembly line as soon as it leaves for we you know and you know after submitted it summary judgment proof the testimony of o'brien and trudeau mr boucher all of the sales documentation showing leave johnson for his ego on her the burden shifted at that point the burden lavender seven pages that he submitted to the court where is where is the one piece of evidence that for didn't get paid on the release date for that vehicle and it defies common sense why would ford be giving its vehicles away without getting paid of course it got paid when it released the vehicle you know where is where is the where's there evidence they try to create a fact issue again if you read the depositions carefully of throwing statutory definitions at these na more witnesses and trying to create discrepancies but it doesn't matter what they think a sale is what matters is what the texas legislature thinks the sale is and it's plain language that's straight out of the do because of course the reason the reason the st circuit was looking at this material was because it said by its plain common meaning sale is a broad term it's a very broad term this statute applies to millions of products so it all has to be a broad absent a tolling provision in the statute itself that is a bedrock law it's in the u s supreme court opinions it's in the th circuit opinions burlington d northern d versus cool it's in method as health care versus ranking again you know texas supreme court in that case justice will its opinion said to declare that a statute or post purpose is to declare a no exceptions cut off point in grant a substantive right to be free of liability a no exceptions cut off point except for those that th in the statute itself so in this instance we have a minor tolling provision section sixteen one it applies by its plain terms only to statutes of limitation so you can see the inconsistency here we know this is a statute or propose yet the minor tolling provision in sixteen point zero one says it applies only to periods of limitation that ends the analysis and if you look at the stevenson opinion as justice will appoint will it pointed out there's a there's a three page analysis of wh why you cannot apply minor tolling to the statute or propose for main reasons the plain language argument that i just mentioned it's completely inconsistent with a plane going to the statute number two the texas legislature did not set forth minor tolling in the products liability statute of repose and has to by definition because they can't there are no exceptions unless they're in the statute themselves number three the whole purpose of a statute or pose which again is discussed in all these opinions is defeated by tolling it and finally the consequences of applying minor tolling to the products liability statute of repose stretch for beyond that statute because there are other statutes of proposal chapter sixteen there are statutes of repose for engineers architects interior designers people who construct buildings surveyors in court was stevenson court was very course the appellant's in that case brought up eastman in the dallas court of appeals just flat out said we don't find the analysis persuasive and it's not persuasive because if you review you find the term limitations period to limitations period i mean repose in limitations are fundamentally different and that's been discussed him so many cases they are there d because they're different beasts and so you cannot you have to assume i think but you are correct on that as you look at the language of sixteen double one the scope of it as you kind of parsed out language is the key phrase in your view for purposes of this subchapter you have it there in front of you interpretive weight what was the key phrase out of the well i think for purposes of this subchapter is in section a of the statute on looking at it right now and then the minor tolling provision in section b so i'm not i'm not sure if the two go together or are i think you just have to go with the most specific thing that the legislature said and that i don't think it's needed frankly i mean it we know that we look at the plain language st and foremost under texas law and interpret in a statute in this seems like a fairly d plain language interpretation stevenson court certainly thought so and i don't think there's anything very confusing about it particularly when you look at the other factors that stevenson looked at i mean i would if i could point out another opinion by the th circuit i think it's helpful here the burlington northern applied to that the th circuit help d that because of that plain language it did not apply to talwar products liability statute or pose a case involving environmental claim and i'm in a tank so there you have the exact analysis that d i just pointed out in the stevenson who are relied on as well as as precedent for what d i think is the correct interpretation here i don't believe this is something that would need to go to the texas supreme court into new products liability statute or propose i don't know if you intends to do that in rebuttal but if the court is interested in ford's position on that it is in our briefing as to why that is not warranted and not wise i'm happy to go over the reasons during my remaining time that i think are right there are five reasons why it should not apply in case it gets addressed st of all certificate of title  know importation violates basic structure torrie construction it adds language that is not in the products liability statute of repose and renders meaningless language that isn't there by the defendant there is no support for importation in the statute case law or legislative history the purposes of this product liability statute of d repose get out of line with coda purposes and it defies common sense which is another fundamental principle statutory construction we're plaintiffs or the polls are asking us to believe is that the texas legislature without any indication intended one broad meaning of data to say all the product by the d defendant for millions of products out there but d a wholly different one for vehicles without any indication d that that's true so code is not but while the products liability set you pose i want to mention one thing just very quickly about did not matter in those cases the the d the claim was barred by repose d under either day so it was a point of contention in the case that's why it's not mentioned if you read those affidavits they're entirely they're not contradictory thank you limp you think time for but i'll take your order account so said a number of times that a sale is an exchange for a price there's more to it the matter it's a price that has to be paid in full in cash that's was that was the inconsistent o'brian it made it that the transfer of ownership doesn't occur until payment fools mate he really did know whether payment in full is maybe related to the release but that's contested because elsewhere they've admitted that the release is nothing more than a change of possession custody or control it has nothing to do with with payment in their brief they talk about a commitment to pay on the part of the dealer d or promise to pay mr pasch really use those words as well and they try to help but a promise to pay or a commitment is not payment in full or different settings so again there's a tremendous amount of obtuseness in the testimony company the end nance company pay in full again we don't know you can't tell from looking at any documents and you can't tell from from any of the testimony whether the finance company paid or i guess more to the point whether paid in full on october th two thousand and three at some point for ford motor may have gotten paid a man gotten paid when the when the dealer so of the vehicle to the ultimate consumer but well because if you need to start with the u c c which talks about unless explicitly agreed to by the parties then you look at the agreement of the parties the court purported to talk about what the agreement of the parties was b seized throughout to excise to critical words that show that the agreement of the parties was more than just delivering the vehicles leave the green of the parties was actually payment in full in he says dealers who for plan their vehicles like i do and like i did back then they don't own the vehicles as is contrasted to commuters who paid cash in full they do on to be so there is your contested issue of fact it's again so ther colloquial non lawyer lay person use of the word why does that have any bearing on whether a sale as a legal matter occurred well i don't i don't think release does equate to  sale and they didn't think it did either at the time they father at davidson the previous case states if you do releases what you and i think it is which simply letting it go changing possession custody or control now they're trying to say well release really means we got paid in full and therefore there was a sale well that's not there's nothing that supports that there's no documents of sport playing out and to the extent they say that they internally contradict themselves so so i think they're the ones who are trying to require d to release to a sale and nothing does that make you look at the many nine hundred and ninety nine report they like to talk about it as the word release and then several use