appeal centers on the following question which permeates principles of both contract law and equity and that is responded in short form summit in title to over two point two million dollars for health screenings it did not conduct it did not plan for and it did not staff the answer we submit is  because you were getting forty three dollars for something that you had to pay out thirty seven dollars and that's a great contract i mean gee i'd love to have a contract like that the contract had a clause in it quite clear that said something else and it turned out that that contract that clause made a contract that you felt was very favorable to you unfavorable to you at least until you saw unfairness was a fact that they make money and he should be the least bit interested but for a multitude of reasons and i'd like to start with contract interpretation because our first argument and our leading human is that that there are mixed factual and legal issues even combined within the question your honor just posed the legal question is can based on principles in new york of contract construction which state that in determining whether a contract is ambiguous a court looks to the contract as a whole so there's a can text or will approach but within the four corners of the contract in light of the circumstances present when the contract was entered and here you have an interesting contract and frankly one there's not a lot of case law on where you had about ten weeks of performance of actual course of performance at the point at which the parties executed the contract i think that goes to the second piece of what i just described which is the circumstances present when the contract was entered by first want to focused on the initial aspect which is the contract as a whole infer in full context and where i think the district court erred on the summary judgment record is that first textually while the court properly look to a dictionary definition of the term projection and i don't think anyone in this courtroom disputes that a projection is a type of estimate but it's a type of very informed estimate that requires current trends and while the court that definition it also acknowledged that what mr watson had provided provided to some it prior to the contract having been entered were mere gases and if you look at the definition of a gas which is is what i have in my notes is to form an opinion based on little or no evidence versus the definition of a projection there markedly different things that you have a projection based on a guess i don't believe projection requires current data or trends and certainly not to do this contract because as we point out in our only guess we've got seventy five percent of the data but the remaining twenty five percent is based on a guess is that a projection is that something else if it's something else what is that that's probably an estimate frankly i mean the way i've looked at this and i have studied the dictionary definitions of all three a projection is the most refined form in all it in a sense all are trying to predict the future but a projection is the most refined form of prediction because it is by definition under both oxford your definition of projection in this record when if at all did  provide summit with a projection it's a p s provided the projections that a p s provided were is soon as the performance began what actually happened and it's reflected in  admissions from some it wanted to see it was that both parties both going both parties were looking to the sign up sheets right which were which was the online registration system so  had actually staffed on the basis of what you sent them they didn't because they chose to do other feelings because they chose to read the contract in a way which would be favorable but suppose they had staff did that way would that make this that you gave them any less a projection in other words is your claim that this isn't the projection because you don't like the fact that they made money on it but would it be a projection if it actually gone out and sent out all of the people on the basis of what they said and said hey think it's a fair question and i do think that there was a sharp tactic here and there was a gotcha result but i think that based on the context of the whole agreement and i want to point to section exhibit a section g six in your example your honor if it should never happen that there are over estimates by tens of thousands because some and i think this is in part where the district court went wrong context summit undertook to organize and coordinate all planning and related logistics and coordinate its planning and any changes to that planning and it's express in the agreement with a p s so it was  b in total fees there are two references to this ninety percent figure the first is on a sixty seven standard minimums health screening clinics forty screenings or ninety percent of customer projection whichever is greater and that's the projection that we've been talking about correct correct on a sixty eight there's what's called small clinic fee forty participant clinic minimum and then it refers to or ninety percent of the estimate for the clinic what's the difference between customer projection on sixty seven and forty screenings or ninety percent of customer projection on sixty seven and forty participants clinic minimum and ninety percent of the assessment on sixty eight i don't think you can read either of those two without reading the other use of the word increase to estimated participation in in subsection four which is sandwiched between those two provisions and in other words there may be no difference your honor i certainly  was a material difference now though i didn't in other words where i think the district court went wrong was it made a back channel finding that what mr watson had provided before the contract was entered and we note in our papers that the contract itself cancelled all prior discussions and arrangements the court made a factual finding that what he provided were the projections contemplated under this estimates and and where were i think the decision i tried this case where i think if i didn't or you don't summary judgment i stepped in after summary judgment right i think the district court went wrong was in that factual finding it didn't that these guesses suggested there would be would you say they wouldn't have the right to go i would say that is a much more reasonable reading of the contract particularly because this provision that sandwich janet says if in ten days or less prior to the clinic and i'm looking at so of four on a sixty eight even ten day business days or less prior to the clinic customer should increase its participation estimate sufficiently to require summit to increase the number of staff some a child directly invoice customer and expediting fee of three hundred dollars for each increase in staff members so if you look contractually at this just the standard minimum provision it uses projection once it uses participation estimate that uses estimate i think we can all agree that's imprecise drafting but if you're trying an ambiguous lee and i read this contract probably a thousand times i truly believe it's ambiguous it you try to discern anything that from those provisions is it any extra couple link between estimates and staffing otherwise it gets me to the commercially absurd result why possibly would anyone give this estimate with the understanding that you can throw it in the garbage but you you know but you get to bill me for ninety percent of it you have nothing to lose in fact you have everything to anything prior to march fifteenth two thousand and eleven was not a projection it was a guess after after march fifteenth two thousand and eleven at the insistence of  s our client gave participation estimates or projections that were that were based then on the actual trends from january whatever was the beginning to  december well that was one hundred thousand what was it was a projection in december so what happened was is that the vast vast majority of projet of what what some it calls projections we call let mean one could argue when you signed up contract using projections you viz were projections then the fact that they were made before and you signed the contract after we just said you know what you're talking i mean i don't know that it ambiguity i think it ultimately may be dispositive if this court goes back down to to the trial court because how else can you read that provision it says that all discussions and arrange or in writing related to the subject matter of this agreement are hereby canceled that was on march fifteenth i think that actually makes sense in a in a commercial relationship particularly because everyone knew at that point that no one was using the estimates t may please the court jeff butler for the apollyon cross appellant were the assignee of some of health the minimum fee provision that's at issue in the case is not a mechanism for generating gratuitous species it actually serves a useful commercial function like any event planner summit health would benefit from having an accurate estimate of how many people would attend these clinics for screenings and the  minimum fee provision provides an incentive to a p s to provide accurate estimates it could have been anywhere from fifty to one hundred thousand people but there's there's evidence in the record that there were one hundred and i think it cited in  his brief that there were one hundred fifty thousand planned participants in the state of tennessee so there was a lot of concern throughout this program that a huge number of people were going to show up at any given point in time and in fact when this issue a rose in march there was an effort made by troy watson and his team in tennessee to try to revise the estimates and make the more accurate he testified that he or he and his deposition he said that he  created a new set of lower estimates but he decided not to use them because of the potential for an influx of participants in the latter part of the year but what i wanted to say is that the  so so this provision effectively created a kind of penalty for a p s if they overstated their estimate if they estimated too high and there's nothing unfair about that because a p s had total control over the minimum fees there was only one input into the formula and that's the estimate that a p s provides to some of health so they could have easily controlled the minimum fees charged by either making reasonably accurate estimates or even estimating a little on the low side to make sure that these minimum fees don't accrue now a p s didn't do that why not well we know in hindsight that a p s wasn't paying any attention at all to these minimum fees they approved exhibit b they approved the schedule of fees but they didn't pay much attention to it after that so they didn't inform the team that was on the ground  tennessee about the consequences of providing high estimates and they didn't do anything to keep track of the mr watson's mr watson and his team and his boss bob hines and jim showman they apparently were not aware of this provision but that's not some of health's fault a p s management has a responsibility for keeping its people informed and i had all the information that it needed to calculate the minimum fees because it's providing the only input into the minimum fees if they had given very little feat years because of that you had no staff that adequate and because it wasn't you did what you did because you didn't want higher minimum fees so of course you can't sue is for not staffing that's exactly right i mean the way that you know a p s we were already protected from the risk of low fees or low estimates right because if the estimates were low and we understaffed the clinics and people were turned away the state of tennessee would be very unhappy with a p s line that's the that's the ultimate client of a p s we're a subcontractor right so they're the ones who are dealing with the state of tennessee there's lots of there is there are indications in the record that there are there are issues that they had with the state of tennessee and that particular night i could not deal directly with the state of tennessee  mean i think there were some meetings where handshakes took place but we didn't have a direct line into the state of tennessee we dealt with a p s a p s deal with the state of tennessee so if the estimates were low it would have required a lawsuit a state of tennessee or an argument is that you does not permit them to do anything that anything they said was not part of a contract at least until things got started and that that's why these december fings are place and the fact that we and the pricing terms clearly allow us to use a projection or an estimate to calculate minimum fees the fact that the projections some of the projections were provided even earlier i don't think changes anything i mean it doesn't change the significance of them remember the a p s witnesses involved testified that these were actually a p s is good faith estimates of how many people would come to each clinic and there's only one set of those estimates that was provided through the course of the program some were provided in december some were provided as the the the program continued but if there's only one set of estimates of course we could use them to charge minimum fees and this distinction between as to been a projection is a very fine distinction and i don't think one that ordinary people use in their ordinary lives  during the course of this case everyone involved has found it hard to avoid using those terms interchangeably and but even if we accept the definition the definition is actually the definition of projection is actually that it has to be an estimate that's based on a study or a current trend i think those are the words that are used in the in some of the dictionary definitions and these are these projections provided by mr watson they were based on a study we presented evidence on summary judgment that mr watson worked he had access to demographic information about where state employees were located in different locations and he used that demographic information to come up with his estimates they had a formula of us seventy percent of planned participants plus thirty percent of spouses or thirty percent they're going to account for spouses and he also talked to the local benefits coordinator in each of the locations where the clinics were going to take place and he consulted with his bosses bob hines and jim shome and you then made it gets and he then made an educated guess which i think would qualify as both an estimate and a projection even context in total ignorance why i does this work why is this contract as a commercial matter created in this way what explains the structure of this agreement i guess i don't understand exactly what you're asking why is this contract this contract that is why is it why is this the way in which these two parties establish their relationship well i think that this was a fairly standard structure for contracts in this area there's a there's a basic per screen ing fee that is charged and there's a lot of negotiation over that per screen ing fee which certainly happened in this case they brought us down from forty three dollars to thirty seven dollars and when i guess i'm getting  you have to have the you have to make calculated guesses about projections if you will about the future is is there not another way of doing this so that the actual services are paid for certainly the kind of the parties could have structured their contract differently more like lawyers for example where we get paid for the time we spend doing things but there's going variety of ways the contrast could be structured and one is the purpose of this arrangement what it what is the goal what's the theory you should well i hesitate to answer that your honor because i'm not sure if there was a theory behind it it's more commercial practice in this area is the commercial practice because that's what contractors like a p s were demanding from subcontractors like is it that they want to know what they will have to opening it to a situation where more of and they may end up having to pay more if you do it like a lawyers contract or a different thing i don't know i mean i'm really asking judge to brownnose his question in a different way and just asking is that a possible reason i mean i'm not sure there was so much thought into the theory of how this contract was constructed this is just the way they did their country and the contracts and the standard practice in this business to have a minimum fee and or to have greening fee and of course you have to organize your business if you're a sum some kind of charter like some of hell so that you think you can provide not only the staffing but they had to provide supplies some of which were all of these other overhead costs all these other overhead costs the appointment system the fatigue of data that apex has significant control that has a six dollar delta plus it controls the estimates it controls the amount of potentially assuming good faith maybe not full control but will over the amount that it pays as in in iraq then they have a lot more information to use to come up with the estimates but from summit's perspective this contract entailed a lot of risk it had it c get things wrong in a lot of ways in which a p s would be unhappy with it if it staffing wasn't correct or if it had to turn people away from the clinics so it wasn't an ideal structure in some ways for some of health but that's just the practice in the industry  something about your course of yeah i want to get to that before i ran out of time so big you know i think that there's as i said there was no dispute on summary judgment about the projections that were actually provided by p s those one set those reflected in documents there was no evidence of a an alternative set of estimates that was ever presented but what was in dispute was the significance of this email from bob hinds who was an a p s employee in tennessee and the district up do what you do is you know the district court found that that e mail created an issue of fact concerning the the projections that were actually provided by a p s but as i've as i've mentioned there really was no issue of fact concerning the projections that were provided so in our view this hines e mail really presents only a question of law that should have been decided by the district court on summary judgment could you read what they could i don't think so your honor then and the way the district court read it is it could be it could be deemed an instruction that the estimates were void or the projections were void but but think about what's happening in this contract so the minimum fee provision if it's unambiguous when we get an estimate or a projection from a p s that gives summit a contractual right it's a legal right that some it owns at that point in time the bill on that the bill a minimum fee based on that estimate and so the question is can a p s take that right away by void in the contract or by sending an e mail saying something which could be read to me viz projections or estimates are not valid they are no longer things you can rely on yes i mean i think that's the the statement that you could read into that but then there's the legal question of are you allowed to do that or r v allowed to take that the the projections are you mean that the projections that they made have to continue indefinitely are they are they able to take back the legal right that has been can't just be taken back in or it it could only be taken back if the contract provided a right to take it back and there's been no arguments and no evidence that there's anything in the contract that allowed a p s to take back its estimates and extinguish that legal right after it was created well the thing if mr hines had and i think this is what he's saying this e mail had said more explicitly we have been providing you with the wrong estimates going forward these are the estimates that you should be a lie on in connection with figuring out both staffing and building what in the contract prevents them from doing that and commercially doesn't make sense that people make mistakes and they revise their estimates going forward i certainly think they could have revised their estimates going forward but what revised the estimate would mean is they had given us numbers before and you really need a number to plug into the formula an estimate as a number in this context and they could they say that's a question these projections aren't good and we don't have new ones for you now which is what they did in a way and you vent said will reveal go forward unless we get new ones and then and you stopped because you stop doing things and at that point they gave you luna's why isn't that what i contract stops that from being done say hey we don't have new projections so all we can tell you stop using we have a one and maybe even say and by the way if you want to stop working you're not reaching book contract is that that point you don't have projections i mean i think i agree with a lot of what you said but that's not what happened in this agreement what happened is the estimates were provided and they were good faith estimates the people who created them did not change their testimony that these were the good faith estimate so they didn't come and say hold on our estimates are wrong this one says two hundred i'm going to change it to one hundred twenty if they had done that and that's a total counterfactual hypothetical then they would have a good argument that we could only charge minimum fees based on the one twenty but could they say hold on these estimates a roll of them until we give you new ones i don't think once they've provided an estimate and given us that legal rights they can just put the ability to exercise that legal right on hold just in the same way that i don't think they can extinguish just by sending an e mail so i mean the highest e mail didn't say exactly what your honor suggested but i my view there's no e mail that they could have sent that would have extinguished that legal rights that we got from their provision of a good faith estimate thanks very much thank your honour's we reserve some time i have your honor and first to the cross appeal and that was the issue that was tried that was the issue i tried and it was unequivocal to me but the district court left it before the jury as to the fact of the e mail on any projections that been given as the district court labeled them we obviously call them guesses it was wired to that agreement that would go to the jury right to me it was an agreement was there not that it that this question of the e mail would go to the jury ultimately there was an agreement and it was undisputed throughout the case and i'm somewhat surprised that my friends articulation is is that some it had conceded all along that a p s could always change the estimates and the district court found there's nothing specific in the agreement that requires an estimate at all so for that reason we went to the jury as to the effect of that e mail and the jury found that from that point forward any prior estimate or projection or guess depending on which label you wanted use had no effect for purposes of the standard minutes  use by friends word it is counterfactual and i don't think we can you think the court the court was correct say that no estimate was in fact needed it may be that day then could say if there is no argument which is in order for a court to imply an obligation is specially one like this because you know no one can dispute there is no express provision that says an estimate must be given or a projection must be given then the court can only do of summit testified very clearly what he thought the purpose of this minimum is provision was and it was protection this he put in his declaration and frankly lied about it but he said it was protection because some it staff to and prepared the clinic's to the estimate that was a false statement that never happened so so the purpose of it to the extent there was a legitimate commercially reasonable purpose for requiring a projection it was tied to some its statements that it was using them to plan and staff he didn't use that and i think the natural reading of this contract given some it's obligation to do all planning and and the projection an estimate language particularly the part that high is a participant participation estimate the rectory two stepping is that the only way a pretty a a customer projection could be used for the standard minimums provision is if it was used for preparation and staffing the clinics and just big one more quick point because that's what it says in the two hundred plus page power point presentation that some it gave to a p s prior to the contract being and there was some it put on itself and this is on page eight of our moving brief in the overall under the heading overall program design that it would among other things develop staffing requirements and assist in estimating participation by site and developing a plan program rollout so that goes to my overall contextual argument that these produce these so called