the plaintiff alleges that they purchased a helicopter and they allege that they purchased that helicopter pursuant to a contract that has been the city's position throughout this case that the city is not and never was a party to this contract this is a simple contract it's an aircraft purchase agreement the very first sentence of the agreement says this aircraft purchase agreement between air flight kink here and after referred to a seller and versatile helicopters technologies here and after referred to as the purchaser at the end of the contract three pages later purchaser there's a signature as scott baker is the owner president of versatile helicopters and there's a signature from mark white who is the president of air flight and nowhere in this document is there any clause or does anyone sign the contract as they are as an operating as an agent for the city of columbus what about the marketing language in the marketing agreement you just ignore and that well i would say this the last part of this agreement on page three says this agreement supersedes all previous agreements if any so the parties agreed that the only terms and conditions that they were going to be bound for was in this purchase agreement personally to the marketing agreement airflight nk was our authorised agent but that language would just mean it supersedes all previous agreements between the signatories to that agreement it doesn't mean that nullify any agreements between columbus and the marketing or no and i agree we never denied that mark white was our authorised agent he did exactly what we asked him to do we did not want to be involved in selling a helicopter that's not something that the city of columbus does on a routine basis we don't know anything about it we don't know how to price it we don't know what the terms and conditions have out obviously pursuant to this contract that helicopter was sold as is where is would know warranties the city of columbus has no experience in so selling helicopters so we said them are quite you go out you sell the helicopter for us he was paid for that he had all the negotiations with the plaintiff at the time this agreement was signed mr scott baker had never talked to anybody from the city of columbus he never looked at the helicopter he signed the agreement buying the helicopter sight unseen this agreement does not reference the city of columbus we raised that issue in our motion for summary judgment we raised that issue in our rule fifty motion at the close of play of seven events and we renewed that motion at the close of all of the evidence as this court knows you review that matter to novo we believe that when you look at this contract de novo you will conclude that the city of columbus was not ever a party to the contract and i would respectfully submit to the court as further evidence that airflight in ink was to be boned by this contract the governing laws part of this contract sets of laws of the state of oklahoma show governess agreement in this transaction and the parties further agree that venue for any martie matter relating to this law of agency and a lot of ramifications that are involved in this case yes or and the law of ohio in the law of this circuit is that when an agent signs not as agent but as themselves then the principal is not bound and the law of agency as set forth by this circuit is that  generally speaking the real parties to a simple contract should be determined from the intention of the parties as expressed by the instrument itself if the terms of the instrument show an intention to mind the principal the agent is not liable to such intention gathered from the terms of the instrument must control here the terms of the instrument provide otherwise that airflight in and verse tell helicopters are the only parties to this contract if there are no further questions i've said to sixteen times in my brief i don't know how many times how i can make it any more clear of the city's for the city of columbus when it refused this contract in nov and that of course would move all of the other aspects of this appeal thank you for your good morning your honor is phil i can write on behalf of versatile helicopters first like to address the city's appeal and then if there are additional questions i'm happy to answer them and move on to the cross appeal that's been asserted in this case your honour's the district court properly denied the rule fifty motions at both the conclusion of the plaintiff's case and the conclusion of all the evidence finding that a reasonable jury would have a legally sufficient evidentiary basis to find that by virtue of agency law the city of columbus was bound by the contract despite their name not appearing in the contract as as your honor pointed out a few moments ago it is his hornbook agency law which which applies in this case and is relevant to this case which states that an agent entering into a contract on behalf of principal can bind that principle to that contract so long as the agent is acting with either actual or apparent authority and the evidence at trial which was before the district court when it denied the rule fifty motions there was an abundance of evidence supporting both actual and apparent authority now mr radek said in argument that that the city of columbus didn't want to be involved in selling a helicopter wasn't in the business of selling the helicopter with the evidence of trial your honour's was that despite the fact that air flight and mr white on behalf of their flight was the one having the primary negotiations with scott baker vs the helicopters george speaks who is the deputy director of public safety for the city columbus had the final say on any and all offers made for the helicopter and again this was a city of columbus helicopter and we know that because it was a columbus police department helicopter mr baker on behalf of ursula helicopters when we start considering whether there was at least apparent authority to bind the city mr baker knew that this was a city of columbus helicopter he knew that the city of columbus was selling the helicopter he testified to that a trial you know it was a police department helicopter it obviously wasn't an air flight police department helicopter was a columbus police department helicopter so there was an abundance of evidence before the trial court in denying the rule fifty motions at the time that they were denied also they did get a bite at that apple by the was also argument made at the time that there was no breach of contract of course which is not particular germane to this appeal now it is the agency horse as your honor pointed out but yes that that opportunity was presented to the jury and  obviously the jury rejected it and if there are no further questions about the cities that go i'd like to move to the cross appeals that would be ok going to the district court erred in denying both a motion for relief to file an amended prayer and also a motion pursuant to rule fifteen i need at the close of trial to enter judgment in the amount actually awarded by the jury of approximately three hundred eighty thousand dollars since the beginning of this case this case has always included consequential damages that plaintiff would be seeking a trial so there are two types of damages we had damages to repair the helicopter and bring it into the condition it was supposed to have been sold and warranted to have been sold and and then there were additional damages to flo from lost use of the helicopter for having to go out and find a replacement helicopter for losing part of the contract that this helicopter was supposed to service these helicopters fly over top of cherry trees and apple trees very low altitudes at walking speed and they blow the water off the cherry trees and they blow the water off the apple trees so that the rainwater doesn't enter the fruit and rot it this is a very lucrative contract for versatile helicopters as was testified to a trial and they bought this helicopter for the sole purpose of needing it up in the state of washington to service a contract at gabber farms so they didn't have a lot of time to tear this helicopter apart and rebuild it but essentially that's what had to be done so there was consequential damage the flowed from that now those damages are always a part of this case the amended complaint was filed in may of two thousand and eleven and contained for cause of action breach of contract u c c negligent misrepresentation against a party that's no longer a party to this case and account for for damages now whether damages in and of themselves should be applied as a separate cause of action obviously the district court took issue with that but it but it cannot be said that paragraph sixty four and sixty five of the amended complaint contains pretty good detail on jackson relative to the issue of whether the jury would be able to bring back these consequential damages there was an initial discussion on the monday the first day of trial when the district court denied the relief that had been and i believe without discussion even from counsel the district court decided that plaintiff would have the opportunity to present evidence of those damages and regardless of what the jury found he would enter judgment only for two hundred fifty thousand dollars so he basically said if you get up to two hundred fifty thousand dollars you get whatever you get if you get more than two hundred fifty thousand dollars i'm giving you two hundred fifty thousand dollars and that's exactly what happened so the jury had no idea any of this was going on and mr baker testif the trial about the consequential damages and what's important to point out is that mr baker testified at his deposition for two days a year earlier about these damages the key consideration under rule fifteen or our analysis of rule fifty nine he has messed with r fifty four c is whether the other side had notice whether the side had a reasonable opportunity to prepare to defend itself or try and what the district court said in its decision denying or fifty nine emotion was that the city evaluat litigated this case as only a two hundred fifty thousand dollar case and respectfully your honor is this just not so mr baker was present at all or i'm sorry mr redick was present at all those depositions when mr baker testified as to consequential damages the district court's final pretrial order that came out just one month before trial stated that both the breach of contract and the u c c claims would go to trial and it was that u c c claim that had the quote uncapped prayer for relief so virgins for you that's correct your honor it was i was literally the friday before trial was to start on monday a conference call was held between the parties in the district court and there had been for probably a year discussion among the parties and the court over whether oklahoma law or ohio law applied to the substantive contract questions clearly agency law would apply to i'm sorry ohio law would apply to the agency question and what the district court decided on the friday before trial was that no oklahoma to apply to interpret the contract and despite the fact that oklahoma law and ohio law has to be u c c are identical we're going to apply oklahoma law so because you cite ohio law in count two of the complaint i'm throwing out count two of the complaint and that's when it was friday at three thirty or whenever that happened that we said well let's make this clear that we're asking for all the damages on the breach of contract and that's why we  short motion for leave to amend the prayer the monday of trial that was denied and we went forward just on the breach of contract claim knowing what the district court was going to do and that's and that's what happened your honor we've cited several cases in the br which which have virtually identical issues where parties were on even worse footing than we were in terms of amending prayers for relief or asking for an increase in damages sometimes right before closing argument and the position of  always been as should the position this court be is that so long as the other side has had notice that these are damages that are going to be sought and so long as the other side has had an opportunity to defend itself there should be no discussion or question over whether the prayer for relief sh reflect the actual damages sada trial and in this case the actual damages awarded by the jury of approximately three hundred eighty thousand  law that when a third party contracts with an agent alone a party cannot maintain an action against the agents principle even if the agent's principle was disclosed if the agent does not enter into the contract as agent but is the sole contracting party the principal is not bound that's exactly what happened here the district court should have entered final judgment for the city of columbus thank you for going on the damage issue your standing in your brief i take yes you