will probably take up the bulk of my speaking time we are also we are also appealing the reallocation of one point nine million dollars awarded to universal by the jury for money hadn't received that was held by delton and not associate with bills of lading for the carriage of goods in interstate commerce as well as the attendant summary judgment granted by the lower court for some loads that were contracted by universal reliance upon an oral representation that is directly contradicted by the express unambiguous terms of a written agreement between the parties is not justified as a matter of all the hold otherwise would be to award a party for signing a contract under false the document itself when looked at is a sufficient warning to the the signatories that a that a binding agreement would be subject to a fully executed case there were certain come to terms with having confidentiality that were specifically articulated as being binding right but this is not one of those terms regarding the  regarding the written agreement i would say that the the binding section in specific specifically to section six seven eight nine and ten but the preamble language two to the contains language suggesting that this is not intended to create a binding obligation and that my reading at least based on the graphic about it please of the comma is that except with respect to six seven eight nine and ten only applies to binding obligations  view of promissory estoppel or reliance type damages in light of a right however those are that is not the only as a matter of law determination that would avoid reliance if you if you retard when you read  two sophisticated parties universal being a publicly traded company with a duty to perform its responsibilities to its board to its shareholders in a responsible and formal matter we have the i o i calling forth the formalities and subsequent to that we have and rejected by don't and c e o dick mair all we have subsequent to that are essentially communications between the sophisticated parties suggesting a need for or a desire to work together that eventually delta and saying hey universal decided not to buy balls and logistics and that's ok that's business in the twenty two months since the signing of the io why there's not a single document there's not a i don't believe that was there i don't believe there's any objective evidence that there was anything there dick meredith was attended by that at that meeting with his counsel who did not testify the time of trial there's no correspondence there's no email there's no subsequent dalton failed to satisfy any of the elements of promissory estoppel i believe that was made essentially conflated the oral contract and reliance argument so i believe it was made i wish it was in reviewing the record i wish it was clear case is distinguishable there's not a specific writing involved in metroplex there was a proposal wary of the the party of its service the environmental aspects of a large construction project was mentioned within a proposal as hard and then after that repeatedly that the plaintiff was going to be a partner on the project and utilize that in order to to subsist substantiate that contract but more importantly there was thirteen there was thirty thirty evidence objective third party evidence of that promise and that certainly there's no evidence they were using it as a pass except that single document where it says a pass on of the other several hundred they are clearly being used as devices for moving the other agencies items which metals universal has every right to see payment from an agency based on the bills of lading we believe it was a contract issue that was a matter of moral issue that should have been decided by the court without submission of the jury we think that was an error to submit interpretive interpret tor question to the jury regarding the content of the content of the account how do we have jurisdiction over that regarding what you're on i'm psychic a thousand ppi issue that's not part of the notice of appeal well the appeal that after those happen go to what you're saying you filed a premature notice of appeal that we have heard it and that but that's not good enough is it we believe a premature notice  we don't see a basis for the trial court to have reallocated that one point nine million dollars reliance damages much like we don't see any evidence of the five point seven million as being a reliance damage for dalton in this case  there was no jury finding that the one point nine million dollars represented a reliance damages nor was it requested to the jury nor was it waived or otherwise disposed of pretrial or prepare a jury  verdict in addition the reallocation by the trial court flies in the face of the jury's answers to questions one through four where they specifically found that that one point nine million dollars being held in by adults it was not please the court russell post appearing on behalf of the apple the adult and logistics i want to begin this morning with the standard of review because the standard of review really forecloses virtually every argument that you have heard because the rule fifty a motion did not challenge the promissory estoppel claim at all none of the liability elements of promise areas are even referenced and the argument that you've heard about the lions was reliance directed at the contract klein but there's no suggestion that the liability elements of promissory estoppel were included in the fifty a motion well composing counsel said they didn't have to because they think that's a matter of law elements of the promissory estoppel claim that is plainly a matter about the sufficiency of the evidence and so while i wouldn't agree with the premise that you could raise a purely legal issue a matter of law issue for the first time on appeal you don't even have to deal with that here because this is not a purely abstract legal question it's about the weight of the evidence the fifty a motion did not raise this issue but significantly your honor for that purpose neither did the fifty b motion and that's the point that i wanted to call to the court's attention this morning in tab a i gave you the fifty a motion the oral fifty eight motion tab b is the motion for judgment as a matter of law after trial i'm not going to ask the court to study it of course during the course of the argument but i will tell you you will not find it in ted be the argument about specific provisions of the aisle wine conclusively preventing the promissory estoppel klein there's a fact valid argument about weighing all the evidence and there's a couple of references to the i want but the kind of legal argument that you heard this morning based on j p morgan and cardio it's nowhere there they tried to raise that argument they tried to make this legal argument in a r in support of the rule fifty motion and it was striking because it was fall light and it was in violation of the court's local rules and if you look at ted c you will see the order from the district court striking that reply and so this legal argument that you've heard this morning is doubly on preserved it is subject to the highest form of play their view it will not surprise the panel to know that we have studied the panel's decisions and we can't find a single case in which any member of this panel has reversed a civil judgment for plain error and the reason is obvious that standard is high any evidence at all is sufficient to satisfy it which means their argument about trying to use the i to trump the evidence in the oral promises a trial cannot satisfy plane error and this is not a situation that could in any way impugn the integrity of the legal process to warrant a discretionary reversing counsel should we rule on the plane forfeited by the it was forfeited in the district court and then you don't go through the plane error analysis if you were are you arguing both to the court or one of the other honor i would be receptive to either disposition i've always found it to be a theological question whether a forfeiture can foreclose even the application of plain error review missings to me that the court has cases going both ways on that issue and logical theological your honor it's absolutely maybe the strict player standard to reach that conclusion let me turn if i can to the merits of the argument because i do want to make sure that i'm responsive to the argument that you've heard this morning that i'm going to speak to the question about the one point nine million dollar offset since judge davis i think correctly called our attention to that question with respect to the merits of the argument about the promissory estoppel kline the texas supreme court repeatedly has said whether reliance justified is ordinarily a question of fact it is ordinarily at issue for the trier of fact it is only in the rare case where you have irreconcilable red flags or direct contradiction with the writing that reliance could that's exactly right you want people to be legal question that's exactly right and everyone doing business in texas has fair notice that that is the standard the italian cowboy decision from the texas supreme court said if you wish to have a contractual disclaimer of reliance it must be done in a clear and unequivocal language and if it is not clearly and unequivocally disclaiming reliance then it is not effective to establish a bar to an oral representation claim and that's the only kind of contractual provision that could be material here because a promissory estoppel claim is a claim about reliance on the promises that were made and so the argument that  largely about an effort to it's fact the oral contract claim that the jury didn't find that there weren't a definitive agreement that the iowa i contemplated definitive agreement if we were here defending a judgment on its finding of an oral contract that argument would be immaterial but that's not what the jury found the jury found that there were independent representations made to induce reliance upon which dalton detrimentally relied and nothing in the  forecloses reliance on those representations so is there no is there evidence in the record that the may thirty first two thousand and thirteen meeting contains an oral promise is there anything in the record to support that yes absolutely there testimony in the record that there was an agreement on may thirty first to the terms of a transaction that dolton would be purchased by universal for a minimum of twenty five million dollars potentially as much as twenty eight million dollars that the parties shook on it at the end of that meeting and said we have a deal where one happy family so there's ample evidence in the record that that agreement was made and then as in the metroplex case from this court you have ongoing assurances from the president of universal to mr meredith on behalf adult and encouraging him to continue investing his capital in order to facilitate that acquisition it's exactly the kind of scenario that the texas supreme court in wheeler versus white held promissory estoppel exists to rectify and so this is a classic case of promissory estoppel it's really a very modest remedy and you have no direct contradiction here between any provision of the i y and these promises the promises that were made to mr adult on the part of me mr meredith on behalf of dalton were promises in furtherance of and consistent with the terms of the i want and far from being red flags we were being given green lights for eighteen months that this transaction is going to go forward and there's detrimental reliance and investment in reliance on those promises about when that eighty million dollar counteroffer came in or would not have been a red line when you order it was a red flag with respect to this specific terms of the transaction they've been negotiated but not with respect to the promise to purchase and that's the important distinction here for purposes of promis estoppel because we're not arguing that there's reliance on the specific twenty five to twenty eight million dollar terms we're arguing there was reliance on the promise to purchase dalton and that bad is what induced dalton to expend all of its capital to incur this additional debt and so all that happened when universal tried to change the terms of the deal is mr mayor of new well i can't rely on those specific terms anymore but simultaneously mr cochran the president of universal privacy kind of wavering on the deal well in many cases that might be true now that's just the kind of argument that i would say is for a fact part of the way how reasonable the reliance is in the context but that's not the facts here because the buyer dropped the proposed price but at the same time the principle negotiated or the buyer is telling mr merit stay the course hang in there we're going to reach an agreement that will satisfy the money people and if i were trying to get the price that had been agreed originally then these red flags would be significant but all we're asking to recover is the promissory estoppel reliance damages that we expended in reliance on those promises and there was no change in position with respect to universals ongoing promises to make the acquisition and with that context let me turn to the issue judge davis that you raised about the one point nine million dollars because the alliance was not just the five point seven million dollars that we expended out of pocket it was also the one point nine million dollars debt that we incurred to universal and council fundamentally misunderstands what happened in the district court when he says that the district court failed to award the one point nine million dollars that is not the case the district court didn't disregard the findings in favor of universal the district court made its own independent finding estoppel damages included the one point nine million dollars debt and applied offset and candidly universal has never grappled with the fact that this is an offset judgment it is not a judgment disregards that one point nine million dollar award and so there's two key principles that i want the court to understand with respect to the one point nine million the first is that the parties agreed to a bench trial on this element of damages counsel argued that it is not their burden to ask for a jury finding on this element of damages that is wrong legally and factually legally it's wrong because under  forty nine a three any party that does not request submission of a factual issue at the time of submission of the charge is deemed to have deferred that issue to the court counsel's thinking about this in terms of the texas rules of charge practice where's the party with the burden of proof of those that all the patients that's not true under federal rule forty nine but second factually this is not a situation where they simply remain silent while we fail to ask for the question situation we have a situation where universal actively objected to the question that we tendered to secure precisely this damage bonding and the district court sustained universal's position did not ask the question w understanding that the district court would be able to resolve that issue at the time of judgement so the parties agreed to bench try that issue and the final point that i'll make is judge davis you have it exactly right with respect to the excuse question that is a question is framed in the texas pattern jury charges equitable stoppel in substance it is a fraud question includes elements of scienter that are not in the promissory estoppel question and the jury here quite reasonably could find universal's decision makers who wanted to do this deal any rule fifty motion for judgment as a lot matter of law at any time so there's no fifty a motion judge stuart when you wrote the felde decision for this court the talks about preserving error from the denial of some room judgement on the legal issue you spoke in terms of jurisdiction and you said that the failure to file a rule fifty a motion would be jurisdictional and would not give the court the authority to address the question also as judge all right noticed the notice of appeal that reversal did follow did not challenge the jury's verdict for agent page it is true that in some instances a premature notice of appeal will ripen once a judgment becomes final but that's true only for what is included in that original notice of appeal and here universal specified only for errors in its notice of appeal those do not include the jury's judgment in favor of action picking and the second way is and beyond the jurisdictional mistakes is that if th no your honor universe was not left holding the bag when universal by its r and d it's made a deal with dalton to forgive those freight charges essentially by saying here use that money to continue your business because that's what we need but really apart from that and for h and p is part of the case judge i'd like to go to that and say even if this court does review the errors that are alleged the first is the error that the jury should not have found that there wasn't a contract between h and pity and universal besides not being preserved that's also factually incorrect the first question that went to the jury was a question of fact whether or not there had been any agreement any meetings of the mines judge davis you noted earlier that there had not been while there were pieces of paper exchanged at the trucking yard marked bills of lading corey lawler testified for h and p that those pieces of paper were purchased by agent p as an at an office supply store that they were model rail carrier forms he also testified that there were duplicate bills of lading and those were put into the record at duplicate bills of lading that listed dalton as the shipper and those primarily responsible lawlor said that those pieces of paper functioned as gate receipts and the jury was entitled to believe that there's no challenge to the sufficiency of the evidence here because that wasn't preserved so the only challenge whether or not the jury should have been asked that question to begin with and the jury should have been we don't get to commercial battles here commercial battles only kicks and if there is a valid bill of lading and only the end commercial metals is narrow in its holding and it says that failure to follow credit regulations alone will not be enough to trump the provisions of the bill of lading but the court leaves open the fact that other circumstances men and this is a case where the other circumstances are such that a bill of lading was never properly formed between the parties and for that reason the jury's verdict should be a firmed in favor of agent pay the only other part of the h and p argument that universal raises is whether or not the district judge judge bennett erred in granting summary judgment for universe i mean for h and pay for the loads that universal itself did not carry universal only has one argument that age and pay should pay for those lawyers and that argument is based on equitable subrogation but as judge bennett correctly found the doctrine of equitable subrogation cannot apply here because universal was never obligated to primarily obligated to pay the debt so the fry mare case is the one that decided by both sides and the very premise of that decision is just not met here because based on the contract between universal and those carriers universal had to pay them not a chimp it so that doctrine doesn't apply the only other argument that was made was a late made agency argument the judge bennett rejected as not having been  universal against h and p which we urge the court should not at best there's a jury charge error that would give the court the right to look at play in error whether the question was submitted or not properly to the  jury universal hasn't even attempted to argue that there was plain error here in this case the question presented was answered correctly there was ample evidence in the juries so there's no miscarriage of justice here there was ample evidence in the record i universal directly granted summary judgment in favor of has because there is no evidence of a contract between hats and universal in its reply brief universal contends that those of lading made up the contract and need to support its argument it points to one hundred seventy seven different bills of lading but it cannot point to a single bill of lading that help has actually received or assent the evidence shows that those bills of lading were found in universal's files they were created by universal and they were not signed by hass richard meredith dalton's president testified that there were no bills of lading at points in the absence of any contract between has and universal the district court correctly granted summary judgment on universal's breach of contract but i'd also like to add that this court affirmed in favor of dalton on all points any error that the court might find in granting the summary judgment would be harmless because those amounts would have been awarded to universal and argue that point with the bills of lading in the main brief left barely if they said that it has was subject to bills of lading so it's arguable there that there was a briefing waiver we were not aware and  directly challenge that if they argued to the district court that it was that's what it created at the time of the summary judgment i can remember that they they have to that that certainly in the summary judgment briefing that they did not directly say the i'd like to approach a couple of different things fairly quickly that i think were glossed over in my original argument with regard to the reliance damages i want to reiterate the lack of evidence on the record that the five point seven million dollars awarded to dalton can be shown to be an out of pocket expenditure by dalton in reliance on the suppose of problems i believe my opposing counsel made a numerous comments about the fact that there is some nebulous calm promise following the execution of the may thirty first  why it is our contention that that type of promise if it even exists is too nebulous to too vague to be enforceable in any way shape or form and i didn't i do not want there to be a suggestion that there was a concrete promise made after after may thirty first there is no objective evidence to that end all there is is the i o i and then of course the comments by mr meredith bolton c e o but to the point the five point seven million dollars though shown to have been in it in an account prior to  thirty first two thousand and thirteen meeting and subsequently shown months or years later to have been depleted has never been shown to have been spent specifically on anything in reliance on this particular suppose a promis it was just moved to some other account there was no expert no evidence presented at trial of the five point seven million dollars represents anything it was actually spent on this certain certain evidence in the record from  damage which brings me to my next point which is that the august offer august twenty third can offer that was made to dalton and rejected brings up a very important consideration which is how could that be red flag how could dalton as a matter of law rely on further assurances we know that assurances alone are not sufficient to maintain a promise or to resurrect a prior promise so even if we assume one exist assurance as well to arm's length sophisticated business people are trying to get a deal together that failed should not be enough to substantiate a five point seven million dollars verdict i think that's consistent with or debit card info in as well as the of the aetna case  mentioned previously with regard to the one point nine million dollars i've reviewed that line of the record and frankly i do not see how there was any f we have since to a bench trial in that there was some commentary regarding the court's desire to perhaps use that as a on a credit against anything that may have been awarded to dalton that was a little bit unclear but certainly that cannot be read as an act we have to have the judge at the court utilize considered that it should've been something the court considered and it out of the meetings it would not apply to the issue regarding the bills of lading and then in addition with regard he said that your client didn't waive the submitting a one point nine to the jury but universal specifically objected to submitting the issue to the jury at eighty one sixty six to sixty seven didn't it i believe that it was objecting in the sense that the promissory estoppel should not have been oh i'm sorry that the that the the actual figure for the money had received should not have been should not have been submitted there was concern about how that would be calculated there was a stipulation that one point nine represented that amount that all the jury would need to do would be to determine whether or not the money in that amount ten receipt but looking at that