thank you your honor good morning and may it please the court i'm carla gilbride appearing on behalf of the plaintiffs tamgho building products wants to bind stephen di and douglas bone to the terms of its limited warranty based on the actions taken by their proofers specifically the action the roof first took was tearing wrappers off bundles of shingles and installing those shingles on plaintiff's roof under florida law in order to prove a stablish that a contract was formed under those circumstances temko must prove three things first it had the burden of proving that tam reasonably communicated the terms of its contract offer and the means of acceptance second tempo had the burden of proving that the roofers unambiguously and unequivocally accepted those offered terms and third tamgho had the burden of proving that the roofers were authorized to enter into contracts affecting plaintiffs legal rights with respect to the roofing shingles with respect to the steps one and two of your analysis you don't deny the underlying florida law that says that a cent can be inferred from conduct offers can be communicated sort of to invite acceptance by conduct in the exceptions can actually be communicated by conduct we don't contest the florida law saying that x that acceptance and assent can be communicated by conduct under terms where both parties understand that the act indicates acceptance and the trac fone versus china case where that florida law is cited you know specifically the cited in both parties briefs it's not just any act that indicates acceptance it's an act that has to be understood by both parties to connote that there is a contract here and by doing this act i'm accepting that the terms of that contract but when you're going to act like i'm not here i mean that this seems like sort of the belt and suspenders approach you're not even asking them to crack open the package to find the sort of the golden egg and side they've put the whole thing on the wrapper for everybody to sort of understand read and understand upfront you've got the you know the entire warranty the arbitration clause you know sort of return within thirty days all of it on the outside and also you know sort of pointing you to other places where you might find the terms as well this just seems like an it seems like total overkill to me but i mean why not why isn't this if anything sufficient notice to the to the on rap well again when the act that indicates acceptance is something that is ordinarily associated with acceptance like signing a contract then there is a heightened burden to clearly communicate that this act indicates acceptance because it ordinarily does tearing a wrapper off a packet of shingles is not an act that ordinarily indicates acceptance and when this is what a lot of the shrink cases that go itself has cited when you're dealing with an ordinary action like purchasing a product that people do all the time without ascribing contractual significance to it it's important that there be some language on the package saying not just here's a bunch of terms but by opening the package by unwrapping the package you were agreeing to these terms that's the important step that's missing from this record there's nothing in the record here indicating that anywhere on the bundle of the we actually have in the record before us a photograph of the wrapper that actually appeared we do not your honor so what we have simply is a declaration from a witness telling us what the rapper said is that right it is correct your honor and in fact what the declaration tells us is part of what the wrapper said paragraph eleven of the two shamil or affidavit says among other things the rapper said here is i quote important and read carefully before opening the bundle tamgho then sort of extrapolates this language at pages thirty two and thirty three of its brief to say that this language important read carefully indicates and i'm quoting from from tampa goes brief not from the declaration this language indicates that opening the bundle would bind the customer to the subsequent legal terms i put your point is it doesn't say i had to doesn't say that and if there is some i want to go back to what we do know and what we don't know can we tell from the declaration how much other language was on the package or whether the rectangular box contained any text that was larger than the rest of the text on the wrapper can we answer any of those questions from the four corners of the declaration you can not judge marcus and that's what makes this case like these more verses jefferson capital system because in that case this court said it is the burden of the proponent of the contract to include in the record all of the contract terms the exact contract it wants to enforce here all we have is a fragment we have the terms of the limited warranty that purports was found somewhere on this on this bundle or this wrapper but we don't know what other language was included on the wrapper along with the warranty and whether tampico intended that the act of opening the wrapper would bind the roofers or but it would be fair to say terms it would be fair to say would it not that you have more than language of the warranty is we don't know what additional terms there might have been whether the warranty is fifty percent of the binding contract language eighty percent of the binding contract maybe it's one hundred percent but we just don't know from is this an argument that you to the district court did you say hey we don't know enough don't have a photo that the affidavit is not sufficient along with the reproduction of of the terms we did challenge the sufficiency of temp goes in footnote two or elsewhere what sort of what you meant by that it sounds sort of conclusory i mean did you mean the affidavit plus the reproduction of the warranty is insufficient that we need a photo or some better evidence is that what you were arguing to the district court understand that's what you were arguing but because this judge poe flat says some implication that the district court didn't understand that that's what you were arguing you know is found in the district court order which doesn't address this argument so they're there as i mentioned we mentioned in our reply brief there was a change in emphasis our opposition documentary one thousand was focused on mr dies and mr bones lack of knowledge of these terms that they never saw the terms they were not presented to them which is and second argument that we haven't quite let you get to yet but we will the agency piece of it but so that just as to number one for the sufficiency more generally and we did state that the evidence was insufficient both to basically put them on notice of the terms of that goes to the sufficiency of evidence with respect and that's the point that i want to just drill down on did you argue in district court that the evidence was insufficient because the notice was not good opening the package forget let's just assume the rule for binds the the owner of the home the purchase did you say in words or substance to the district court look you've got a problem here the problem here is in order for there to be a cent under contract in florida my conduct you've got to have a clear of firm motive statement on the package that you open up and that there just wasn't conspicuous enough or words to that effect notice wasn't given in this case did the district court get that argument i understand the court went off on agency which is a different issue we believe that the point was adequately made to the district or whether the district were focused on it or not but we did right now doesn't matter to me whether the district court focused on it i just want to know did you raise it raised suspicions you have evidence in saying basically that the plaintiffs here were not put on notice they these shingles the language was on the shingles and so they're bound then when we said in the opposition brief while they never saw them there roofers installed it that's when the pivoted in its reply brief and focused on the agency arguments which were the arguments that the district court ultimately found persuasive but the second argument why i would i would contend that there is no waiver here is we you know what we're responding on appeal to a central tenet of the district court's holding a page twelve the district court opinion the district court said the roofers knowledge concerning the evidence of the limited warranty is imputed to the plaintiffs so implied there is that the roofers had knowledge concerning the existence of the limited warranty in order for that knowledge to be imputed through principals of agency it was it was taken as a given by the district court that the notice was sufficient and that that there was knowledge there on the roof part so it would not be you know equitable to say well we can't contest that implicit finding that the roofers had knowledge because of you know maybe the argument wasn't fleshed out in as much detail in our papers before the district court as you have actually been thinking that you've been making sort of two before us two different what i'll call insufficiency arguments one is innocent an insufficiency argument focused on the fact that in effect we don't have a photo here there is better evidence and the affidavit plus the description or  the setting out of the warranty is not good enough we don't really know what was on the package because we don't have a photo number one number two even accepting tempo's representation of what was on the packaging that's not sufficiently conspicuous i've been sort of separating those in my mind my questions to you have really been focused on the first is the argument that because in effect we don't have a photo is that argument properly before us if it you know if it's we can still determine on the merits whether  the phraseology on the packaging as represented by tempo is sufficiently conspicuous under phone in the other cases but as to as to the first what you know what i'll call the photo argument is that an argument that you made to the miller could have included all of the language but specifically you know we don't know what other language was being excerpted here and that's the problem under bay's more is that we don't know what all the terms are that is seeking to bind  shingles to and that goes to not just the fish sufficiency of the evidence but it goes to whether or not you know that there is a contract here whether well i guess it does go to sufficiency of the evidence because it goes to whether or not there's a contract in the record but it does also at the same time go to the issues of shrinkwrap because again all of the shrinkwrap cases have language that specifically says by opening the product you are by opening the packaging you're agreeing to these terms we don't know whether that language existed here or not go seems to in your position is that is the trac fone language sort of buyer beware if you open this you're bound is that sort of a purse a rule it's got to be on there is there anything short of that that would satisfy you  important read before opening return within thirty days if not satisfied that's not that's not good enough or you wouldn't be making the argument you are in this case but the truck phone or maybe i've got my cases mixed up but sort of buyer beware you bound if you open that is good enough is there anything between those two that is sufficient or do we have to have the language buyer beware if you open your bound we're not advocating that that has to be present in every case but i would have two responses one is that in every single case th cites that language was present and in some cases you know such as the proceeding you also had the ability to return within thirty days the military to you know review the terms at leisure in the management computer controls you had the terms being presented more than once in the management computer controls or i'm sorry in the i code the south distributors versus i code case it was three times once on the outside of the packaging also on the on the screen when the person  ran the software on their computer so there were multiple presentations but i would i would argue it's a sliding scale and that when you have the same person entering into the agreement sought to be bound by it that is opening the package and where it's fairly simple or straightforward terms maybe you don't have to have as clear of a notice but that's not what you have here you have potentially you know multiple binding terms if this if this case is like some of the other cases of the district court relied on hope in an american family where it wasn't just the warranty terms that were binding it was also you have to install you know in compliance with certain instructions and it was there are two different parties here there's the roofer who tamgho knows full well in most cases is going to be the one the morning your honour's may please the court i'm john beisner i'm counsel for tam company let me start by addressing some of the questions that you have posed first of all with respect to the question of preservation of the evidentiary objection which counsel is raising here i would urge the court court's review of the footnote two on page nineteen of the opposition brief where counsel says this this issue is preserved this is a footnote that basically says that they're not going to respond to the argument about whether the arbitration should be delegated to the arbiter arbitrator and it refers to the rest of the briefs saying it's clear from everything else we've argued there is no agreement here so there's no reason to do this now the words they're arguing tamgho hasn't made its case that there is an arbitration agreement but there's nothing in here that talks about nineteen footnote to the opposition brief court in the district court and i'm just saying it makes no reference to the insufficiency of the t shirt mellor affidavit as is presenting sufficient facts on this issue let me turn to the to the prominence or conspicuousness issue that you were talking about as well i do want to make clear that as the titian mellor affidavit makes clear on the wrapper it's said in looking at the full warranty as judged to some noted was printed on the wrapper important read carefully before opening that was stated on there clearly an alert to the person dealing with the package that this attention should be paid to that and further if you look at the warranty itself that was printed on the package the di warranty in any event also made clear that if after reading it the person dealing with the wrapper the owner did not want to accept those terms they should return the shingles to the seller to get their money back so though those those those sorts of alerts were on these packages and and that that is not there i'm curious about something here was there were reason that the actual package was not presented to the district court would have been easy enough to put one of those packages in or at least a picture of the package into the district court writing it as opposed to simply relying on a declaration from a witness who is saying in words or substance this is what it said your honor i think it was for clarity  given the attack on on this but the it was it was for clarity because the purpose of this was to put before the court in black and white in a more in a in a form in a photograph he doesn't attach a picture of the wrapper does he know there is not a picture of there all he can tell us is this is what the wrapper contain this is the language that was ron the wes is my belief my more criticized the proponent in that case of not putting the full contract before the court that was the criticism in bays more here the full warranty is part of he should miller affidavit it's attached it's the it's just the physical picture of the the full wrapper is what the criticism is here a little contractor adversary says that the that the affidavit only provided excerpts what does she mean by that i see the fold already is there and it the what the affidavit covers is the other key language that is there it's just remind me i'm sorry i don't remember this but the affidavit says i've seen the warranty it's on the box you know i've attached it attached a copy of it for your edification some of the key terms or the following so it doesn't sort of set out in the entire warranty within the affidavit but it attaches it in sort of incorporeal right that you're correct and it says that the fact there was no other there was there was other language on the wrapper that wasn't there yes and that is laid out in again that is the affianced recollection of what was there right it may be absolutely accurate and i'd be dead accurate correct but it all the aphelion can tell me is can tell me one of two things here is what it said here's a copy or the aphelion can say i'm not giving you a copy but i'm going to tell you from memory i looked at her i mean even looking at it now and i'm going to recite but the testimony is of a different form than the actual exhibit itself that's all i'm saying and there were other things on the wrapper to be on the warranty right that is correct or  do we know and can we tell from the affidavit everything that appeared on the wrapper your honor that is not laid out in full but again you may say that me the answer is no but it doesn't matter but i just wan to get the first thing that are my answer is no and my further answer is it doesn't matter and my third part of my answer is this was in our opening brief and no objection was made to the sufficiency of the presentation of the rapper in the district court so your view is they've waived that if waive that that that is our position let's assume argue window for the purposes of my question that we find they said enough not to constitute a formal waiver the issue was there the district court just didn't go to it because he had what he thought was an easier way to address it on the bench she did on the basis  except that that it's not waived it's clear to the extent we can discern florida law on the subject is it that in order for there to be the formation of a contract th to be acceptance you can accept by conduct the statute tells us the conduct here that you cite is ripping open the package which contained the critical language and that put them on sufficient conspicuous notice that would be essentially a fair recitation of the law is it not your honor but just so i am sure they didn't have to rip open anything to see the language that was on the right side of the wrapper i just want to make sure that you're in the same page on that if all i know is the  recollection of everything that was on the wrapper and she doesn't include everything that was on the wrapper and i don't know the size i don't know the print i don't know the size or print in relationship to what was not on the wrapper can i answer the questions to fish and lee well to say under florida law that the notice was conspicuous enough to constitute a firman spy conduct well first of all that assumes there was a requirement under florida law of some special conspicuousness that that was not you don't think it has to be conspicuous for there to be a hole and i think there is some constraint on it here because this supreme court in the doctor's associates case said you can't impose special conspicuousness requirements when it comes to an arbitration call i'm not looking for the adverb special i'm simply asking whether under florida law you can have offer acceptance conduct formation in the absence of conspicuous notice to the acceptance well your honor the state courts in florida and we've cited federal precedent and well have consistently accepted the shrinkwrap cond context and there ninety nine management computer controls and yes that case the consumer was held to the terms of the license agreement between the consumer and the software manufacturer where the warning o stated that the opening that opening the software package would be an acceptance of the terms of the license agreement where it was printed on an orange sticker it was right on the sticker that sealed the box that the software arrived arrived in that was enough to put him on notice presumably because it was obvious an apparent you couldn't open up the on the lope without actually seeing it then we look at the browser app cases to see if they give us any more help i mean i'm a rebound to florida law i'm not writing i think honestly clean slate and if i don't know what florida law then maybe i got a certified but i think we know enough to to to try and answer the question ourselves so then i was looking at the browser app cases and there when you look at those cases there are some of those cases that no notice that the browser app agreements have only been forced when the hyperlink to the terms and conditions is quote conspicuous enough to place the user on inquiry  the word conspicuous at least appears in the browser app cases right yes but lots of it only appears in those cases let me know why those cases are very different i look at a page on a website the warranty that we're talking about is not on the page so the question in those cases is was it clear enough on that page that i need to click something in order to see the terms of the contract that i'm being asked to agree to we don't have that issue i agree and that's the trouble right there alex wrap are not as you've got to go from here to there to there you have two three four steps whereas in this instance you don't have three steps or two steps correct you simply have here's the package you've got for shingles or fourteen shingles and are in a wrapper and on the wrapper you've got some language and so you can't help but see it when you take it in can you rip it open i'm simply asking whether under florida law the notice on the wrapper has to be conspicuous to a reasonable consumer in order to constitute acceptance of a contract is i don't know if you that florida law does not require that it's conspicuous i don't think there's any i have not seen a case that has a nice special conspicuousness rick i didn't say special i just said conspicuous i don't know of any that has a conspiracy is it your view that it's enough that it's found somewhere somehow in some tiny little print on the package that would be enough for me to be bound to the terms and conditions of the contract your honor the i think the point here he is again let me make the point this conspicuous argument was not made i understand but i  question by assuming and you may be right if they waived it but let's assume from my question they haven't waived it and it's properly in front of us i don't i want to know in your view whether florida law would allow the formation of a contract by conduct or simply opening a package where the terms and conditions were not conspicuously revealed yes because the shrinkwrap cases that are out there the analysis in those in reaching those conclusions make no reference to the conspicuousness requirement if it's on the package those cases have gone there i agree your honor in the one case the facts re for the notion there was an orange label on there but in the analysis in that case as i recall what is it about the conduct then if i can't read what's on the package because it's too small or too in conspicuous what is it about the conduct all florida law tells me in contract is i can be bound by contract if my conduct manifests assent so it's all that has to happen is i have to use the product you're out or you know that if if there is a statement if you have the warranty that you're talking about on the package this is the warranty that comes with this this product i think that if it's there for the consumer to read they have the opportunity to read it which is really what even the the the other cases you were talking about earlier get at they're bound by that if they go ahead wrap or whatever we're single wrap meet a conspicuousness requirement your honor i think the court could reach that conclusion and there's one other fact i want let me just stop you on that point just so you help me with that how could we reach that conclusion if we don't actually have the wrapper and all we have is the at test station by the affiant that she saw it and it said that well the how do we discern whether it was evident apparent to clear conspicuous use whatever in word you want in part because the warranty is attached to the declarations it to the declaration singular and if it's laid out there and there are parts of that are in more prominent language than others you can see the display of the warranty and where it where for instance where words are all kept on the shingles yet all kept in yesterday's and two yes and so that's laid out in the warranty the other thing i wanted to note your honor is we were focusing here exclusively on the wrapper and there are allegations in in the complaint it's further disgusted page sixteen of their opposition that the consumers and with respect to mr di through the roof or had received information about these shingles that they say or improper that they were were not that they were false and they attach a tab three examples of the documents they're looking at so you go to tab three it's all about the warranty they they had investigated the warranty under the allegations in the complaint before anybody opened it anything and there are quotes from it in the complaint and so this was not the only source of information in the site again i'm sorry dismissed as you were  tab three to the opposition to our motion to compel it page sixteen they say tab three are examples of the materials that plane is contender misrepresentations and if you look at the four pages they attach in tab three they're all about the warranty they explain how the warranty works they say go look at the complete mor which is on as titian miller's affidavit indicates as always on tam goes website so they had opportunity and in fact indicate that they did investigate the warranties before we came to the opening of the wrapper i think my time has expired thank  you begin where opposing counsel left off with regard to the marketing materials the fact that the claims in this case involve the breach of express warranty doesn't mean that we're saying anything about the limited warranty which was the language that appeared on the shingles in addition to some as yet unknown other language that also appeared on the shingles miller secularization she talks about this old rectangular box where the statement to please read there's important information appeared quote among other things we don't know what those other things are but we know that they're different from the warranty but yes there are other marketing materials that were included in the record and the fact that those you know marketing materials and the complaint mentions the word warranty doesn't mean that we're talking about the written limited warranty under florida law any affirmation of fact or promised by the seller regarding the product that becomes the basis of the bard bargain is considered a warranty and can support a breach of warranty claim under florida's version of commercial just a quick question about the stuff that we don't know from the affidavit the the stuff that might have been left out i mean this comes to us on a motion to compel arbitration is there anything about arbitration that you contend was not you know sort of on the wrapper via the affidavit and the and the reproduction i get at that there you know among other things there might have been a thousand other things that affidavit doesn't cover but as to arbitration is there something that you suspect was not revealed in the have no no basis to know one way or the other because we don't know what wasn't included what you know other than other language wasn't mentioned in the affidavit but i think another important thing we haven't gotten to it's just quickly i want to talk about agency another important before with respect to dyes warranty it has in bold letters mandatory binding arbitration and that's highlighted and then it's got capped every claim controversy a dispute between you and tam arbitration every claimant cetera on this record can we not accept the fact that that appeared on every wrapper that contained every single that was sold by temko yes we're not contending that that language appeared on the shingles but where where contesting is that we don't know what other language appeared and how what the relative prominence of that language from the warranty is in the context of the overall shingle wrapper while we know how big the  rapper was the size of the shingle i guess would answer the question from this record it was explained six four by four two by two best of my knowledge that's not in the record you're ok and again while the the language about arbitration may be relatively prominent within the context of the warranty just looking at some of the other cases where the language you know or goes practice of putting the warranty language on the shingle wrappers has come up you know it's been mentioned in some of those other opinions that the warranty is in smaller print and is relatively less prominent than for example this bold rectangular box that's in to ask chief one just one additional question you can help me with and it's the waiver question you say you put the district court on notice about the argument in footnote one footnote to page nineteen of your brief before the district court is there anywhere else in the record of what you presented to the district court where you argued there was no formation of a contract where