good morning may please the court my name is jason gerber and i represent the appellant w m c v phase three l l c i would like to reserve three minutes for rebuttal please your honour's there are three issues that require overturning the judgment against w m c v first the district court failed to enforce clear and unambiguous terms in two separate agreements the first was w m c vs lease with the telly global accents and the second was the release the global accents obtained through the fraud of w m c v's former collection agent a semi that release that w m c v was never a party to and never executed could not discharge global accents obligations and could not be enforced against w m c v secondly the district court erred when it found global accents subjective belief and as some eyes apparent authority was objectively reasonable were global accents had to ignore information that was in its own possession and global accents ignored red flags that should have caused it to question s m i's authority to act on w m c yes because just to be clear on this when you're claiming that there is clear error on that point yes judge that that that really is the heart or i'd like to explore with you given that we have these findings of fact and there's no doubt that your client  way or the other but it doesn't mean that that necessarily tips the district court's findings so i would appreciate your comments on what precisely you think the district court did wrong that would amount clear air on that finding the implied authority yes as to begin this court doesn't ever need to reach the issue of apparent authority to overturn this judgment because the contract issues would control but on that issue of apparent authority there was evidence presented that the court could rely on to show that global accents had a subjective belief about that authority the problem is the next step of that analysis was global accent's burden to show that that subjective belief was objective lee reasonable  any when he calls the people in and talks to the manager about the settlement a manager said that's a good deal doesn't say this person is committing a fraud he doesn't representing h your client has already got the cat out of the bag with what he's given this insurance that this is a good settle you know i think if you analyze the record and what was actually said during trial what the testimony actually was the conversation discussing was between global accents principal mr party ellie and mr kershaw ne at the world market center who is a coach copartner co manager yes because he was that he had a position of semi in particular he just testified that he called they discussed the agreement and that it was for only eighty two hundred dollars and mr khashoggi says well that's a great deal because our attorneys are usually aggressive and they usually go after the full amount which in this case was more than three hundred sixty thousand mr testified and he had a declaration that was admitted into evidence as well that he never knew who s m i was because that was never a part of the scope of work that he had missed right isn't a question of what he knew was what the other person gained from that conversation and how you got a managing person says it's a good deal would be reasonable to believe that this good deal if it came from this collector if he wasn't there collector then or he didn't know there would be some difference at least the person receiving the conversation could think to be something different it's only it isn't whether the fact is whether there's reasonable reliance judge i agree but i guess from w m c these perspective that conversation it doesn't have the impact global accent wants it to have and doesn't have the impact that the lower court found it to have is if s m i is never mentioned in the conversation mr kershaw he could have very reasonably believed that while they were having that talk mr party ellie had received an offer directly from w c because w m c ve never gave that authority to settle claims to anybody else and so in those circumstances if the only discussion is whether the amount of the settlement was valid and reasonable and something that would benefit global accents then it doesn't create the apparent authority that's necessary for s m i to be able to take that step and for global accents to be able to follow it again it's we have case law in nevada that makes clear that it has to be the statements of the principal and not the actions of the agent that create that apparent authority but even if there was there were those council i'm i'm i think i'm looking at  and he says i have been a conversation with c and i specifically told mr khashoggi that i had been in contact with shock and mccoy mr byrd well the last and final offer they had made me that they can settle this case is eighty two hundred dollars and i told jack jack you know i've known you for a long time and so on and so forth lines later go forward and pay but go forward and settle that's a good offer so what do we do with mr party all these statements that i specifically told mr kershaw need that i had been in contact with shock and mccoy apologies that may be in reference to a conversation that they had had later on there are two separate instances where they were just well just lines later jack said jack said eighty two hundred dollars is a good offer to go ahead and had been in contact with shock and mccoy and they offered eighty two hundred dollars to settle your honor i don't believe i believe that there is that evidence goes to the subjective belief but it is not the only evidence and is not the central evidence tell the object of the list of counsel this is this i think is inconsistent with your statement that there was nothing in their conversation that indicated to mr khashoggi that he was dealing with f m r i i apologize i may have been referring to a different portion on this point on this point judge i don't believe there's a clear error with regard to that testimony but the issue as it related to the apparent authority also should consider what global accents actually knew and the issue arose that when it finally came time for global accents to sign the release with s m i it did so by signing an agreement that wasn't with w m c i don't have this essentially written out part of the name technicality there but the judge is looking at the totality of the circumstances isn't she yes judge but it's far beyond a technicality from w m c v's perspective that the lease was signed by an entity that wasn't the landlord it was signed on referencing a tenant space that wasn't ever occupied by global accents and it was signed concerning a lease term that wasn't accurate to the actual lease in addition there's no dispute that double that global accents knew exactly who its landlord was it had in its possession the lease that identify w m c it had in its possession payment instructions from w m c v during the original lease term that required global accents to pay w m c the phase three l l c and global access actually took the step to pay w m c the only checks from global accents to w m c v in this case were made out to the phase three l l c and so the error for the court the clear air was allowing an objective finding of reasonableness for that apparent authority were global accents had to ignore all of that information its possession to get to that conclusion but again your honor thanks for i think that had and that name appeared in earlier correspondence with global there are there are document had been used earlier as a name for your client the term used in the release was world market center last vegas anchor nevada corp that particular name has never been used employee as morale the dominica said basically she said your case has been assigned to shake and course you should contact them to resolve this issue so that was on the table and then of course you have the additional testimony so when you put all of this together that seems to me what was the basis for judging barros decision and as i understand your argument you're saying it could be interpreted differently i believe it was an error for the court to find that the reliance was objective lee reasonable when global accents had to ignore information in its possession but from w m c v's position this case remains at its center and has from the beginning a contract case we have a lease that defines who global accents landlord was and it's unambiguous it's w m c the phase three l l c we have a release that defines the landlord as world markets on our last vegas and and it's not ambiguous the original lease between w m c being global accents includes an integration clause that says that that agreement cannot be changed or terminated unless it's done by a written execute executed agreement between the parties so when global accents who failed to decide to review the release before signing it to make sure it was with the right entity and never took the very simple step of comparing it to its lease signs a contract with an entity that was not a party to the original lease it accepted that responsibility and accepted that risk and the district court was not at liberty to disregard the unambiguous language of those contracts or to use extensive evidence like the e mails or the other correspondence or as mr party only testified it says world market center on the side of one of our buildings because that's me did you for summary judgment on that legal basis we we did move for summary judgment i don't know if it was on that particular basis judge but it was an issue that was raised during the trial and it was raised in our closing briefs as well and you are as i believe i wanted to reserve three minutes for a little but i'm down to about a matter of forty five so unless there are any additional questions i'll take a seat now thank you thank you there at the case but that was never communicated well they would like this case to be about breach of contract this case is about apparent authority they did file a motion for summary judgment early in the case that was on the issue of actual forty the authority in her underlying order a series of facts that she relied upon to find that there was apparent authority in terms of the issue of world market center versus w m c phase three what she found is that the correspondence that related between the parties showed world market center las vegas or world market center she also saw that there was an underlining order that related to the eviction of global access that also had the world words world market center on it as well to some my defendants when he spoke to the yes my defendants and asked if he could go they indicated to him that they had before thore to resolve this when he went back and talking is the main does she come from this is well there is  gist of a small glimmer of the facts that relate to show the apparent authority there as to the other evidence that she considered she also relied upon mr earle a lose admission that they had never formed a global access that summer i was terminated he also indicated which was omitted by counsel that he received a daily report weekly report related to the collection efforts that were done by the as my defendants judge navarro inquired about this during his testimony and didn't you receive a list of the open collection cases that were done this in combination with his declaration in the underline of supporting facts that show that my client communicate with him about the offer the offer that was on the table and why the offer was reasonable you underline him subjective and objective underlining bases supported judge navarro's decision here briefly i would like to address the question of jurisdiction for this appeal what judge of our ninth circuit initially cloaked on behalf of yes my defendants in favor of our client subjective and objective believe there is overwhelming and substantial evidence that supports my client's finding and believe that the  it's had a parrot authority to enter into the global accents release now what we also see in there as a pertains to the underlining attorney's fees provision is that they are also entitled to attorney's fees by way of the when you don't have to point if you can be a counter claimant or defendant as well as with a substantial when on one of those issues you're entitled to attorney's fees as well unless you have any questions i'll go ahead turn it back to mr you are asking that along with the nice work rules related to supporting the requests for attorney's fees i don't know if it would be remanded to the district court for that issue but about a law is clear that if you're entitled to attorney's fees on the just report level it's all attorney appellate level it also specifies in the underlying contract that the prevailing party would be entitled to attorney's fees as well well we'll sort that out when you file your motion yes rather thank you thank your jurisdiction this is an issue that's been decided by the ninth circuit twice our first notice was a mistake but it was a premature mistake it wasn't one the cause for the dismissal with prejudice of this appeal the judgment issued by the district court could not have been final since it didn't address damages and didn't resolve claims against the semi defendants that were still alive at the trial level but with regard to the damages in the fees nevada laws very specific on this point there are limited circumstances where you're allowed to seek your attorney's fees a special damages rather than as a prevailing party global accents didn't plead attorneys fees or special damages it didn't present any evidence at trial about their attorneys fees if they are correct and  so what happens is the trial ended global accents hadn't presented any evidence of its damages it hadn't presented any evidence of it if we could justify dismissing the claim against you on the basis of that we have a law that it doesn't take care of the agreement well it means that the breach of contract claim could have gone forward because they failed to prove a material element of the claim i lie with under nevada under nevada law substantive law yes it's the right right but in terms of the agreement itself what the parties had agreed to in terms of prevailing party isn't that an alternate basis for fees it would be an ultimate be an alternate basis for fees but they would have to have a justification to be a prevailing party at that point and they weren't because they hadn't presented any evidence of damages at trial and so their claim should have been dismissed no you can you can prevail without without having to get damages i mean there are other there are other things that you can do you get a declaratory judgment you can get an injunction there's other equitable relief that besides damages bay they prevail in that the in that they they ended up being the winning party correct you wouldn't be here if they had prevailed yes argument for several reasons they should not have prevailed i just want to let me ask you to assume when they did prevail at trial now whether that will be sustained or not will be up to what happens on appeal but let's assume that judge navarro's determination remains aren't they then the prevailing party under the agreement they could not have prevailed on a breach of contract claim without presenting evidence of damages it's an element of the claim is the same as consideration would have been an element the same as from our perspective w m c if he had to be a party to that contract in order to breach it and it wasn't so our argument is they should have never gotten a breach of contract judgment against w m c because they would not have because they didn't present evidence of a material element of the claim in that case they should not have been a prevailing party and there should not have been an award of fees and lastly but you've also claimed that you've also made it there are two different contract claims here one is under the release that's their claim that you breached the release your claim is that they breached they breached the original lease yes you're not the release so i'm recouping the debt at least in the trial court they were the prevailing party on the question of on the question of that they have breached the lease they are the prevailing party thus far yes but there's there's never been an argument or a finding for prevailing party under the w m c of the lease the only it the only work that was ever done in the only issue ever raised that this record was w m c's brit w m c v's breach of the late of the release that it was not a party to all right thank you thank you thank you both counsel for your arguments for coming over from las vegas the case of w m c the vs global is submitted