cases where a panel has done just that ordered specific relief but then the district court and the district court has found alternate grounds to implement that same relief that was precisely what happened in the cook case where the the panel said we vacate the judgment in favor of the plaintiff but when the case went back the district court said i can't reinstate it on other grounds that came back to the th circuit they said no you can reinstate on other grounds that's fine similarly that happened in the dish case in that case the court's well i mean that he gets down to the meaning of the mandate in the breath of the mandate and when we read we read more than just the last line of the opinion not that that is not important but you have to read the last line in context with the rest of the eyes and tire liguori judge risk up and that's why i think the language of the opinion here is so important what we can see in the language is that the panel cleverly whatever stripe i mean that's that's very broad i can that is an emphatic direction to do a certain thing to strike the damages but it's based exclusively on the court's interpretation of eight point two when you read the opinion the court does an exhaustive review of what the languages in considers all of the arguments that relate to the interpretation of the provision the parties intent the syntax the pla language the purpose of the agreement all of those things but solid if it's had raised an alternate grounds for really are grounds for a ferment which was based on an exception that applies only after the court would have concluded reached that conclusion that it did are lost profits i think there's an alternative ground and and the bottom line is you can't have lost profits isn't that implicit that the additional arguments you're making now are covered no abs really not your honor and that's where i was going initially as the panel didn't need to consider this alternate grounds for a firm and in fact the the rule is generally the federal the court of appeals won't pass on issues that haven't previously been ruled by the district court and in fact that this court is even set affirming on legal grounds not considered by the trial court is disfavored and here once the court had had reversed the district court's interpretation of eight point two it simply didn't have any district court ruling on the issue to apply in addition the district court had never even considered the impact of the jury's fraud verdicts on the willful and wanton exception the jury never should have been instructed on fraud would you agree with that no i disagree with that and let me tell you why and if you go to the court's post trial orders he actually explains this in some detail the reason is because the nature of the facts here there were several permutations of what the jury could have done so for example if the jury had it was the jury couldn't do was entertain both a contract claim any fraud claim based on the contract duty would you agree with that based on the contract judy but i think that there was a question as to what the contract duty was and so the courts rationale was look the jury could decide the contract didn't govern this this relationship and the basis for the fraud claims and if they had decided that then they could have been free to  relief were free to seek relief on the fraud claims so because of the particular mix of facts here i think the court has made an assertion of law for the court to determine whether the duty is the same under tort contract no not in this to have considered the alternate ground for a firm and that all of the damages that were put on before the jury were wholly speculative no your honor i disagree with that we could have just ignored that argument even though it was fully briefed to us and let what have the district court decided again yes and in fact i think that was actually the correct and judicially restrained thing to do because once you reach the decision about the interpretation of eight point two at that point the remaining the district court ruling that had not been appealed was that the contract that the provision was in forcible and so there was no need to go any further in the court was properly restrained i think in not reaching issues that hadn't been passed upon the district court at that point and leaving the the remains of play out as it might and judge briscoe to come back to your point about saying well certainly the panel said strike last profits that was the result of the of the opinion but i want to point to the level of specificity required that support the panel also said lost profits are not recoverable right and again your honor i just have to come back to the point of there was just no analysis of a court addressing the w one exception which again is an entirely separate issue that depends primarily on the defendant's conduct when you look to the colorado cases that analyzed this issue there's always been a determination that there is a valid and enforceable damages limitation present and that's exactly what the court concluded and it's its opinion but then it goes the courts go on to address the nd issue to say well what was the defendant's conduct and is it a violation of public policy to enforce the provision in this context and there's just you know there's no evidence that the panel considered that issue they didn't mention the words alternate grounds for a firm and they didn't mention the words i know people in an engine rhino fund that's true but only for the proposition that limitations of liability are generally enforceable and then talked about the fact that there was nothing on conscionable here cited a case saying it's not a violation of public aleph the to hold people to the benefit of their bargain that there were damages available but in this case there was a strategic decision made not to seek those damages you don't think that's pretty obvious that anil was saying we're in for seeing this provision strike all lost profit damages and go about your lives at your honor without even a mention of the words willful and wanton or any discussion at all of the defendant's conduct i don't know how you could klute conclude that the panel reached that issue and again i just don't think it needed to because at that point the district court's order was still in force and was no longer addressing the situation that had been altered by the th circuit let me i want to point specifically or talk about your issue with rhino fund because jepson says well you concluded that there were some damages available but that doesn't have anything to do with the willful and wanton exception because all of the colorado colorado cases are clear you don't have to have a co cases are fraud cases with the exception of one that deals with a public policy issue and the colorado supreme court has never extended this beyond contract now we don't get to your underlying judgment at all we're just looking at this sixty b motion right correct but there when you look at the opinion can't you isn't it implicit we didn't buy your argument i just don't think so your honor because there is no discussion of it and again is it required that an appellate decision discuss every argument raised by the parties whether or not it was the focus on appeal well i think if it's going to the again this was an alternate grounds for hermance you didn't have to reach it and i think in that situation where there is no discussion of it the only way the district court could feel cabined by the opinion is to say that the issue was actually decided and that's where the evidence of it being actually decided is missing and i just want to talk about the level of specificity required to tell a district court it doesn't have room to maneuver henri criminal case is so resentencing means go back and have the district court look at this entire broadly anything anybody wants to talk about and based upon what the court hears that day the defendant is reset that is district court in the court awards attorneys fees on another basis that's exactly what we're asking for here is just for this the court to consider or alternate grounds and i want to come back to your point about funding the colorado cases i mean this is a fraud  jury found found fraud at this case and jury didn't find willful and wanton conduct in this case well i think that's a that's a question that needs to be addressed and nobody's addressed that yet i think that would have been the type of issue that censorship would have discussed if judgment that the district court had relied on has later been reversed it hasn't been the judge did the district court ruled that the provision was an in forcible and we agreed i haven't and we haven't reversed the district court and the district court relied on two reasons in reaching that conclusion one of them was oh well you can get your direct lost profits and the other was this argument you're making is limited to cases involving public policy issues and that's not involved here we're right and so one of those reason the court did reverse switches that lost profits were available we we did not agree with the court in that we did not reverse the court's ultimate conclusion that it was in forcible so i think we ruled just the opposite we agreed with the district court when it said you should be allowed you should be held to the benefit of your bargain we don't make a better contract for you than you made for yourself we agreed with all of that how is that a sixty five issue your honor i would just point the lowery in one or cases they very similar to these where a part of the district court's rationale was under was reversed on appeal and then the district court was allowed to go back and consider that issue on on a rule sixteen b five motion and jefferson has said nothing to distinguish those cases i'd like to reserve the remainder of my time for may please the court michael payson are representing appellee jepson sanderson i'm joined to counsel sable by william lane with the kirkland and ellis law firm this is the th time in this case and the rd time before this court that solid effects a saw to advance the same arguments for nullifying the parties contractual damages limitation section a point to all of those arguments were disposed of by this court in the prior appeal including the willful and wanton argument in that opinion this court held that the limitation wasn't forcible and that it must be inforced in this case to bar solid f x s recovery of profit damages that really precluded the district court's reconsideration of solid f x s challenges to the enforceability of the limitation as the district court correctly held now that it is true the prior pinioned does not course as your honor pointed out there is no magic words requirement in the mandate rule and judge briscoe as you pointed out you have to look at the whole whole opinion and not just the last sentence not just the mandate itself  and here when you look at this court's opinion in its totality of the interpretation that this court did not address the willful and wanton argument at least implicitly is not remotely possible so let's just look at the core of the words that this court used before you go there as i understand your opposing counsel it wasn't good enough to do it implicitly it had to be done x with it would you agree with by the court or it can be addressed by necessary implication and certainly where rejection of an argument was necessary to the court's ultimate conclusion that would be  addressing it by necessary implication and here it was necessary to to the court's conclusion and i would point to a few things st the language that this court used that it must enforce the damages limitation that solid f x is contractually precluded from recovering lost profit damages of any stripe as your honor noted and that the last profit damages award must be reversed and vacated all of those words are necessarily specific to this case not not general not speaking to the general in force ability of the limitation in the abstract they're all specific to this case and those commands which of course form part of this court's mandate or fundamentally inconsistent with all of the arguments that solid ethics made challenging the enforceability of the damages limitation including the willful and wanton argument and your honor as you pointed out solid effects may two related arguments for the non enforce ability of the damages limitation section eight two st they argued that the limitation could not be enforced to bar last profit damages because that would leave them without a remedy and this court directly rejected that argument it held that solid effects could still pursue its reliance damages and that in any event parties are free under colorado law to agree to limitations that severely if not completely restrict  right to recovery for breach of contract solid effects also made the conditional argument that if this court held that the limitation bar direct lost profit damages then it should decline to enforce the limitation because of jetsons purportedly willful and wanton conduct and in the face of that argue and in the face of all of the rest of their challenges to enforceability this court held that it must enforce the  limitation and that contractually precluded from recovering lost profit damages and vacated and reversed the award further agreeing with their position would require reinstating the very last profit damages award that this court reversed and vacated and significantly conspicuously absent from this court's opinion is any suggestion that open issues remain or any reference to further substantive proceedings henri mant and if i actually another couple of let me i think what the argument is that although we said vacate these damages that we left open the possibility that they could prove that the action exactly the point your honor that reinstituting reinstituting other ward of damages would be directly contradicting this court's mandate which said that the limitation must be enforced and that the lost profits award must be reversed and vacated and that's what differentiates this case from all the cases that they've cited the decision as the as this court made clear in cook there was an alternative verdict that would support the judgment in that case an error free verdict in this situation there is no way that you could reinstate reinstitute the last profit damages award without directly transcripts saying this court's mandate and similarly in the dish case there was specific language in the court's opinion that directed the district court to to consider additional issues on remain and obviously there's nothing like that like that here we don't have the magic word remained excuse me you don't proceedings consistent with a senate that but not in the icing on that i saw that that's that's an interesting thing i suppose we should gather as as a group the court to talk about the difference between the opinion issued by the court to as a ministerial matter enter enter the work they're required rulings in order to harry even if that paperwork basically exactly today were to do the paperwork your honor just just a couple of points just additional aspects of this opinion that that show how implausible their interpretation is st this court in articulating the general rule that limitation of liability clauses between sophisticated business entities are enforceable noted that the rule this coke or identify two of jetsons arguments it was not addressing because they had been rendered moot by the ruling on the limitation speculative nature of the damages and the non admissibility of their  expert and lay damages testimony surely of this court intended further proceedings on the willful and wanton argument it would have addressed those properly presented predicate arguments and certainly by explicitly fine the arguments it was not addressing this court strongly indicated that it had disposed of the rest including the willful and wanton argument so the entire thrust of this court's prior opinion was inconsistent with the notion that they can can below solid f x asserted claims for fraudulent misrepresentation and fraudulent concealment against japanese and based on the same underlying conduct that served as the basis for their breach of contract and do you agree with your opposing counsel that it was required in this case to submit both claims to the jury before you knew whether you had a problem with the economic loss a bsolutely not your honor we saw a summary judgment on the economic loss for all we sought a ruling as a matter of law after that at the close of evidence on the economic loss rule we made those arguments because we believe that the economic loss rule applied and barred the fraud claims and that that was clear from the way that they had pled their case and the underlying facts of the case under the economic loss room loss rule of course you cannot seek recovery for the essential breach of contract damages absent an independent legal duty that sounds in tort and they did not have such an independent legal duty all of their claims depended on the same conduct that served as a basis for the breach of contract claim and so we saw we saw judgment as a matter of law after the verdict was entered and the district court seemingly granted the relief we had requested it ruled that the economic loss rule applied and that it quote bars a solid f x is fraud boat cl that matter well your honor there were references to damages in in the order also the order said that the economic loss rule bars the claims and of course facts continues to dispute the district court did not dispute that the economic loss rule properly applied requires vacant ter of the liability findings in addition to the damages award that is black letter to colorado law town of almost all the other cases that we cite in our brief and here is what the district court held that it held that tort claims cannot survive application of the economic loss rule absent an independent duty sounding in tort that solid effects had failed to establish the existence of such a duty and that therefore the fraud claims were barred by any objective measure that granted us the relief that we were seeking and we were entitled to rely on on the conclusion application of crazy that's true for the application of the economic loss rule that's even with solid effects thought in their docketing statement filed in this court they refer to vacant chair of the fraud verdicts and by the way your honor it wouldn't make any sense to vacate a nominal damages damages awarded the one dollar awarded on the fraudulent concealment claim but not the underlying liability why would why would a court do that and certainly we were not obliged discretion we prevail it's a clear abuse of discretion for the district court to have grossly misapplied the law in this way and certainly nothing in these rulings was sufficiently clear that it would have put us on notice that we by the way your honor we acted diligently we saw a ruling on fraudulent misrepresentation and fraudulent concealment the district court st gave us relief on the fraudulent misrepresentation we then had to go back on the fraudulent concealment and your honor just as a matter of judicial economy this court does not want to encourage litigants already there were i think five separate motions on these fraud claims don't want to create incentives for litigants to have to keep on going back and reiterating hypertechnical potential your are you know i would just observe that when solid effects it's petition for rehearing it said we don't think the court addressed this willful and wanton issue and jefferson's response wasn't no of course the court to address the issue it was the court doesn't need to address the issue because it's underdeveloped didn't understand the court's opinion to have resolved the willful and wanton issue and i want to address your question judge mchugh about the implicit resolution and that has a specific meaning in the mandate context and what it means is that if the district court were to do what we asked it would abrogate your prior opinion and that's just not the case because what the district court would be saying if it ruled our way is to say we find that there was willful and wanton conduct and violence colorado public policy therefore in this particular instance this limitation of liability isn't enforceable and that doesn't violate anything about what the panel ruled previously which is as a general matter this type of provision is in forcible and does bar all damages and the district court would be saying only in this unique and specific irrelevant to the willful and wanton exception because many of those cases in colorado are between sophisticated parties that's true for rhino fund and poor mark and the taylor morrison case and it also wouldn't have any impact on the court s point that there was a damages were still available because in many of the willful and one colorado cases damages are still available these are not complete bars on liability so for example in taylor morrison the limitation of liability limited the opposing party to five hundred and fifty thousand dollars of damages obviously that was not a complete bar and even in rhino fund the limitation there only applied to employees of the defendant it wasn't a complete bar on recovery it was just specific to the employees of the defendant  even the defendant itself and then i would just say i'm not aware of any th circuit case where an issue has gone unmentioned and a panel opinion but then his then been deemed to be a basis to preclude the court from reaching that issue on remand and all of the cases where even more parties are asking to reinstate the exact same relief unless there has been something that specifically prohibits that or that issue has already been specifically decided this court has allowed go all of this is that often we are told that we are to narrow our rulings and narrow our judgments and only reach the issues we are supposed to reach and don't talk about everything else so what you would ask us to do his rule on the issue that squarely in front of us and then say oh by the way and these also are improper or losing arguments and then proceed to address them i mean that's really what you're what you're  asking well i think this case isn't and i see my time has expired and i think this case is unique in that this was an alternate grounds for a firm and that was did not have a district court ruling to review at that point so i think that does make a different than a typical issue that would be raised to review and then also point out are what we're seeking here is rule sixty b relief which is really a quite narrow shot but we think the district court should be permitted to evaluate that thank you and well we