beam product for use in open office environments at the outset of the arrangement the parties signed a confidentiality agreement and that agreement required the parties to maintain the confidentiality of hoover's product prototype and all other proprietary information that was exchanged between the parties so it's undisputed that it had failed to preserve the confidence of hoover's prototype so the issue before the court today is whether that conduct reached the parties agreement the district court concluded that it did not and it reentered summary judgment for hat but then less the opening paragraph of the confidentiality agreement can be ignored the district court now the district court relied on the st numbered paragraph of that contract paragraph applies to information that was subsequently provided to exchanged between the parties it might not be so obviously confidential is the product now the opening paragraph unlike the st numbered paragraph did not require any affirmative step to preserve confidentiality stead in that paragraph the parties agreed to treat all proprietary information including prototypes as confidential get no requirement that it be m confidential the district were we submit could not simply ignore that opening paragraph it's a operative clause it's not a mere recital it contains unmistakably promissory language so it's our position that the district court was required to do one of thirty three dollars things the st would be to attempt to harmonize the two paragraphs and as i mentioned we've offered a way to do so it's admitted late imperfect but that typically is in these sorts of cases we law it could treat the opening paragraph as controlling because it comes st comes before the st numbered paragraph or it could require the finder of fact to determine the intent of the parties now we've cited cases from both texas courts and this court that say that support application of the rule that the paragraph or clause that comes st should be given control in effect why does why do we have to do any of that i mean why isn't it just that the  the opening is the big part and then the one needs to be as close to the big part is possible except there's an exclusion which is going to be carved out you know if you make boxes with this but it doesn't quite go all the way to the edge because they'll be some things that weren't done correctly and so but still the big boxes the answer the question regardless of whether or not it's been markets which is a subset of the doesn't agree with that position then those are the two rules that the district court should have applied now is for the option of sending it to the finder of fact or saying that the st paragraph is controlling  couldn't find a case saying that one approach should control over the other looked long and hard but because the district court failed to do either one of those it occurred in rendering summary judgment on our claim for breach of the confidentiality agreement now that contends that this court should construe the contract against hoover because it was the drafter with the courts and reject that invitation for a couple of reasons st as we've shown in our briefs under texas law the doct i would say i think the answer to that would be it's a bit only when all of the rules fail here we have the rule that the st clause should be given controlling effect as you s so for all of these reasons the district court heard in rendering summary judgment on our breach of contract claim based on the confidentiality agreement and to me the remaining issues in the case seem very cut and dried so unless the court has any questions on those issues all you'll the balance of my and rely on our briefs for those issues thank you counsel well i wish i could get into that you don't agree that much so if you get into that your honor we agree that there was no challenge to the validity of this contract that there's an expressed written contract that neither side  challenged the validity neither party played a big unity in this case and in fact at summary judgment level we alternatively brought up the ambiguity and they called us out for saying that we didn't plead it and in fact we brought up  general generally yes your honor and generally must be plenty of what we know about judge cummings order isn't twelve pages he outlined every process he went through to construe and harmonize and come up with his opinion he didn't just better yes you're right unfortunately the paragraph doesn't say that it doesn't it doesn't have what mr gilbert is proposing to this court if you look it's in the reply brief i know the record i but the reply brief hoover put out put in the reply brief the actual provisions intro and paragraph one it is on page five  and if you look at the intro is that both parties agree that all information disclose it doesn't qualify it it's all information it doesn't say that in the e mail that comes later or subsequent communications there's no ti element to this there's no additional production in later production it is all information disclosed the other party such as which is a non exclusive list and it rattles off several types of information that could be considered ignore the fact that mr hoover labeled it paragraph one and that tells you how you're going to get two dozen eighty confidential there is not a defined term in the in the intro paragraph the st defined term is in paragraph one and again it says that both parties agree to keep all information so we have it narrowed it down and indeed from the st intro paragraph where we're actually just specifically say once we find the information the other side which will disclose indicates is confidence confidence will over pride terry or marked with words of similar import here and define term information right  it was an accident and interesting your aunt to have had this thought this case had a protective order and had a confidentiality order produced like that is discovery and in that document we had a call back provision if you inadvertently disclose that was confidential it didn't mark this record half of it's filed under seal the parties took the extreme measures to make sure that it was marked and it was filed under seal and we in that protective order drafted by the lawyers we have a claw back provision information not subsequent e mails everything i give you will be marked confidential here and after information and such of marking that makes it confidential it's the contents of the document remarking it's just a way to keep track of it so you know for it to try to help protect against inadvertent disclosure it's a good housekeeping mechanism to keep track it's it's not the fact that if it has the mark it becomes the secret it was already the secret in the st paragraph i try so help me here i want to see it your way so help with the contract the parties are hoping the parties are free to contract the contract said we will mark things that are confidential i've been marking doesn't make them confidential without the marking your leaving it to hat's assumption that if e mail is in fact confidential or it's not in mr hoover contract takes that prototype was what was going into the marketplace the prototype was what the record shows was being showed to other rd parties to test it out to see feedback which mr hoover never objected to the prototype was what was being used to the confidential part or the plans and the drawings that lead to that prototype a hypothetical your own would be a can of coke by itself is not protected but the formula for coke is the prototype is what you could end up getting in the marketplace and of course if you would reverse engineer it then you would have a whole nother set of all suits and cause of action to be brought but here the planes and the drawings in the materials used in the size of the of the screws to be used the foot component to be used that is what makes this confidential and you're asking if you don't market confidential you're asking had to decipher well the sea consider this yes your honor so obviously it's well established that breach of contract is a question of law and the only way we're getting to a jury is if there's some confusion in this contract all the parties have agreed that the language is very plain in that language is very clear and you can what you do with this plane including in clear language has been disputed but taking the intro pa and looking at the condition proceeded which was drafted and sent to us for agreement if we if we get past if we write that out of the contract and we say well everything's confidential then we're taking is a target that was a condition proceed into the parties must jump through a hurdle before it can make a claim for breach of contract or just writing that out of the contract and that's the reason why doesn't go to a jury is that judge coming said he's not going to do that that there is a procedure in place for the parties to understand what's confidential and what's not confidential they agreed that they would market here it's undisputed parties absolutely agree that nothing was marked not once not these plans that we were talking about not not any drawings not any e mails nothing was marked it was left to have to decide is this confidential and even with the record showing that the prototype was being sent to rd parties and that hats represented explained to mr hoover that they were sending it to rd parties for feedback from customers and vendors and a company overseas in china was going to make the foot so plans were exchanged as to where to drill the holes for the foot all of that was disclosed to mr hoover and not once did he object to the disclosure of this information to any of these rd parties which fits into our waiver and our ratification argument which judge cummings also found to be meant to be valid in this case but that is the point is if you go look  real time what took place he didn't follow his own condition proceeded it is a question of law about whether he can bring a breach of contract claim if he didn't follow his own condition  not to use for it others benefit all information disclosed was disclosed in party indicates is confidential you have to indicated as confidential it's not a blanket cover all i'm going to give you this intro paragraph that everything that's exchanged back and forth we're going to drill down reading that again that it's a condition proceed in the right that you're legal that is what you're saying it is it's doesn't ever say it's a condition proceeded like we would do in those agreements that you're talking about it is this never says it's a condition prison term you're right one of the terms condition proceedings are not there that's kind of a loaded it's it begs the question doesn't it well because if it's condition proceed and yes of course the appellate so the judge cummings had two choices you actually had three if before trying to harmonize which is what the court wants to do you don't want to reduce something meaningless so if it's not a condition proceed and burger one at that point is rendered meetings there is no reason to have paragraph one would help you keep up with this stuff no ma'am why not paragraph because the intro paragraph says all information then that means every human nature i agree it we wish that had been the case in the situation that he had marked it because he didn't mark a single thing and we now know in hindsight he considered some of this confidential but that's for us to guess that was for us to figure out that was for us to go about our bar conduct in helping design this so we could sell it to our customers without any markings have you marked anything with a red stamp of confidential absolutely would have said you know what this fits within paragraph one he considers it to be confidential we can't disclose it but the fact that we did disclose to rd parties to get feedback and he never objected and the transcript of his deposition is in the record in the e mails where we say we're showing it to rd parties those e mails are in the record he never objects he never says oh my goodness you breach the company's value because that fits in the definition of all information but that's just that's too broad you get left yeah we want to know what the feedback is he he does he wants to know because there was this discussion in the e mails you can find a discussion about the paint color there's a question about the look and they just go specifically your honor when your conduct when you engage in intentional conduct inconsistent with claiming the right the right that he's in you're claiming today which is that or he was claiming in the district court i should say  his conduct in bringing this lawsuit is inconsistent intentionally inconsistent with the way he acted with us with hats representatives in real time he didn't market confidential like this paragraph said he would he didn't object when we did show it and got feedback in fact he incorporated the feedback he didn't object when he found out that it was being an overseas company was being used to manufacture the foot which now that's of an issue in the lawsuit was that we said we would send it overseas and we did he didn't object to any of that and so that is that is the the basis of ratification and judge cummings found that as a reason that we should win on summary judgment that even if we find that this is not a condition preceding he waived any ratified these claims for but the construction that says you look at specific language over general language that that rule says that specific language over the schmidt controls over its general terms controls the you all the different categories where the other one just refers generally to information you're on the problem with that is the reason why it's not specific is that it ends with any other proprietary material it is a catch all  it's not a mandatory list of items it is such as in the last one is any other proprietary materials that is as general as it can get paragraph would then says we're going to take all of this information and we'll mark it confidential that is more specific if i market confidential now you know now you know how to treat it just coming found they failed to do that and therefore as a matter of  of contract claim fell's he also then turned to the harmonization of the paragraphs and said that the specific controls he did ultimately get to the ambiguity quest he said if there is ambiguity he didn't say there was named beauty but even if i got to the point where i'm working down the spectrum and i got to the point of ambiguity at that point we construed against the drafter and it doesn't go to a jury so there were forty four ways in which judge cummings found as a matter of law this case doesn't go to a jury quickly in the last two minutes that i have we did raise a point on appeal as to asserting a cause of action that got dismissed because we didn't timely we asked for leave we didn't ask it in that in a timely fashion we took not only did he not think our part product was similar to his product that had different components he had never done a side by side comparison he had never even seen our product other than across the room or in pictures at that time that we learned that our product had a different post our product had a different cap our product had a different material yet he brought in this appropriation of trade secrets claim because there was some to bring a bad faith claim for bringing this lawsuit and we were denied because we were told that we didn't do it time we couldn't have done it prior to his deposition it was still within the discovery period and we  did he refuse there was them discovery disputes over documents in the time that the order of who's going to be deposed pushed him back ff was deposed last i think your time is up and that's really we appreciate your day your time for model if you wish to use it i really don't have anything to rely on our brief he knew they were doing it is he learned after the fact that they let a vendor or another potential customer look at the product we don't think that is waiver or ratification and i think that's the only other evidence i don't think the record supports the