morning or honors william frey to my colleague heather robinson from eric feinstein for the appellant i know you've got our briefs and you've probably read them and i will try to keep this brief and get the points that are important quickly the decisions here the two decisions were appealing are not only wrong on the law but they're inconsistent with each other but the most disturbing part is that it's fundamental it's a fundamentally unfair decision because the case was not decided on the merits and the first point i want to make is th time that we rule is the is the law that we go by you would agree with that i do your honor and morpheus was decided a year after this contract not talking about the contract i'm talking about when we decide the case yes your honor i do understand that although i would say morpheus was not i did not say that it was to be applied retroactively nor am i aware of and and it may be but i haven't seen a decision well and i'm a case comes down on a court of appeals that that's part of choose the conduct was exhausted before the case was signed well your honor that's that part of it and i understand that is only one of the three points i want to make that the most important point i would make is that even under a plain reading of this contract you're saying is  if your clients had known about work use and were in different contract well that's that's true your honor and the reason that that's important is that morpheus was really following years of real estate determinations that have been made the prior decisions in the financial  which we cited in our brief that chase manhattan bank case all decided at the opposite way which is why applying it retroactively and i understand that's the way law is kind of punitive to parties that were negotiating based on what was there but even if you decide not to do that there are other reasons why morpheus doesn't change the claim here in the first most important is this is different than morpheus number one there are there are two to clear things in our contract that don't exist in morpheus that you have to paid you don't get paid as much but you still get paid why would you have a tail period on a corvette list if it was an exclusive right to sell as well as deal because in more fees you didn't have any of those things you just had a contract because a list list contained the companies that the principal had already contacted and that doesn't think too much about what the effect would be if the principal contacted other companies later directly i don't disagree your honor and that was part of it although there is discovery in the case that indicated that at least the oil in their mind they thought they were conveying an exclusive right to sell what the district court did is they disregarded the testimony of their witnesses and just looked directly at the contract and i think even under morpheus the court said that you have to look at the intent of the parties as well so either way i think your argument that reason is if you look at morpheus i just want to read to the court one line that the court wrote morpheus they said and this is where morpheus is the sign it's an exclusive right to deal not to sell and they say an exclusive agency merely precludes the owner from retaining another broker in the making of the sale ok let's assume we disagree but let's assume or few supplies so they still breach the contract because the evidence in the case  the evidence in the case and discovery demonstrates that they hired another broker now they've given explanations that which i'll deal with in a second but in your complaint well judge the answer to that is ok we didn't  the argument that we should have gone back and amended it is wrong what were we going to amend our claims haven't changed if the suggestion from the district court that's not what they said was that we should have gone back and replayed an edited initial facts fair enough i'll get to that but we weren't going to change our claims you're on the claims of the claims and they weren't changing no matter what it's a breach of contract regardless so on that basis there was nothing to amend or was the breach nonpayment that you were alleging was not two point nine million that's correct but it didn't change our claim so if we were going to amend we wanted to going to amend to change causes of actions maybe i was unclear i apologize but as far as the one of the reasons people pleaded to have constant interaction the courts can understand that's correct but the typical reasons that is that a court in this case the district court would typically refuse to consider something like these types of facts don't exist here they're the relation back to the original print the defect the respondent the apologized doyle has not argued they were prejudiced in any way maybe most importantly the parties litigated the issue of the broker in the case they actually argued it i apologize  actually raised that in their motion for summary judgment so when i said at the beginning that this wasn't decided on the merits i understand the procedural hurdles you don't have an opposing party saying this is not fair this came up out of the blue they with us and fully expected it to be part of the record and you have a district court that said in his decision you may have raised issues of fact but we're not going to consider them because you didn't replete and while i understand the procedural hurdles where my adversary doesn't claim prejudice where my adversary litigated the issue and where the strong presumption is to determine cases on the merits on the on the bouncing of the equities the district court should have instead of these facts that you've read i have another question here funding as capitalized initial caps and then when i go back to two to the first paragraph or other it says financial services dominic we use it's commercially reasonable efforts to assist the o g a g to call on a secure up to three hundred twenty five million dollars in primary debt debt based funding small caps and and eventually equity based funding upon terms acceptable to funding compass within it the term funding as used in be encompassed with it the fact that dominic is going to use this commercially reasonable efforts to assist your honor i would say that that's  draftsmanship i don't disagree that it it's not well written well i mean not well written it could be written quite easily if you understood that dominic wasn't going to get anything unless th again your honor i think that that was not what the parties understood i understand what you're reading i'm apart from the what the parties understood i mean i don't see an ambiguity here maybe maybe you can correct me if i parties decided thought thought or intended if the if the if the if the agreement is is unambiguous well i don't know that i agree that the agreement is i ambiguous your honor but i do understand your point what i'm saying is well first of all to argue that it's time  ambiguous it seems to me if we're going to look at anything else but your honor i think my my point on this is that the parties have told everyone in discovery what they thought they were agreeing to and i hear you on what is cancels any parking medications understandings and agreements absolute or yes absolutely be modified or changed except in written agreement by the parties absolutely your honor all i'm suggesting to you is that the parties have said what they understood this to me that i don't disagree with the way you're reading it what i'm suggesting is the parties don't read it the same way and the district court we're not here appealing the trial decision judge we're here appealing the decision by district court that didn't let us get to trial  and our point is that the jury should have decided this not on a certainly not on a motion for summary judgment where the district court refused to consider any of the things that we did so again i'll leave you with this is the district court didn't disagree that we didn't raise some important issues of fact on the competing broker certainly those with the type of things that a jury should decide but they chose not to consider them on a procedural issue and all i'm suggesting is it would be a fair point if the typical things that the courts rely on to not consider things were existing here prejudice most importantly and they have not suggested there was any prejudice the reason or three minutes rebuttal move  good morning brian sutherland for deutsche oil thanks to the court for accommodating our schedule on hearing us first the morpheus case is controlling here is decision a law that applies to this court's decision even if it were not retroactive that would make no difference there are nearly a century of precedents that have addressed the interpretational issue here from the appellate division you are able to rely on cases in the financial sector because you says at the time they entered the contract was entered into the the can be the dominant law in practice in the industry was one thing morpheus changes that but that doesn't change the intention parties which is always the the touchstone contract case new york law doesn't look to the subjective intent of the parties it looks to the language of the contract and that was true well before mor set out to do and if you ask the new york court of appeals what was the law before morpheus it would say morpheus was a law before morpheus it said in its decision they wasted their time and well they handed down a decision from the new york court of appeals and it ratified nearly a century of precedent from the appellate division which is the relevant precedent that should govern the decision that this court must make under new york law and under that law the party looks to the language of the agreement so which of these sophisticated parties drafted the contract dominic drafted the contract your honor this contract i would add contains what i'd like to say is that morpheus the contract that the court considered in that decision contained a list to which it refers that's schedule one referenced in paragraph three be one of the agreement as judge jacobs indicated earlier in his question there is nothing about having different compensation for the broker depending on whether it assisted in securing financing from a company on a list or if it's this assisted in securing financing from a company that's not on the list in either case it has to assist in securing the no word funding encompass everything the entire preceding all the words of that sentence up to the word funning were does it just refer to the three hundred twenty five million dollars  the best reading is that any principle and toils position would want for its broker to assist in securing financing before it paved the broker a fee principal would not want to pay a fee to the broker if the broker provided no such assistance and that's contract was ambiguous on that point but under control in new york law the ambiguity is what requires a decision and joyce oils favor and exclusive brokerage and the more exclusive group grange the more incentive the broker has with the finder to  ing phone calls you see the connections in order to raise the funds so at the outset a decision has to remain between the parties as to under what circumstances they're going to be paid and it's not implausible that that a company and all implausible that a company would agree to pay even if somebody had nothing to do with the procuring of the other financing setting implausibility side your honor i'll go straight back to morpheus which makes crystal clear that the court cannot consider evidence when making a determination about whether an exclusive right to sell exists as the district court held so any ambiguity in this contract is what would require a decision for not do a choice not anything other than affirm and in this case assuming the contract says exactly what it is you're saying why wouldn't it be an abuse of discretion not to consider an allegation that in fact you used a competing broker well a number of points there your honor first they didn't seek leave to amend their complaint and it was on timely they sought to allege new claims in opposition to a motion for s recovery as they said in their opposition to our motion for summary judgment and the district court was well within its rights to enforce the rule sixteen order now the question your honor just asked goes to rule fifteen is important keep rule sixteen and rule fifteen separate  its decision the district court said these new claims are untimely what dominick has done is come back and said what about rule fifteen it never raised that argument in the district court in any fashion in the district court did not make a ruling under rule fifteen b to my colleague will not be able to stand up on rebuttal and point to any place in this judge's decision where it made a ruling under rule fifteen b two and dominic has therefore forfeited that argument there's nothing for this court to review under rule fifteen b two there is no decision at all and it's not a position to make that decision on its own because rule fifteen b two is not akin to a jurisdictional question that the district court has an independent obligation to make or that this court can make in the absence of a ruling on that issue by the district court there is no such ruling here as forfeit as this court ruled in crews versus staley in which the parties below didn't raise a rule fifteen b to question even if the judge had ruled under rule fifteen b to any and he did not there would be no peace of discretion here because we never consented to try the new claims it very explicitly objected to the new claims by arguing and this is in our motion for summary judgment this is pages eight hundred ninety four to ninety six we said we want judgment under the law of the case our motion for summary judgment is about five pages long we said we want judgment on the law of the case and then when they raise when dominic raise new arguments in its opposition to summary judgment we objected again and this is on page twenty six sixty five of the record which is our reply brief and we said dominick has ignored the court's directive they have gone outside the law of the case they've raised you claim i appreciate that you jack did one object thing does not amount to a statement of prejudice unless you come forward with some ground to prejudice and the question then really is whether it's an abuse of discretion not to not not to consider within the ambit of breach of contract the hiring of another and the retention of another and competing broker when it seems to be common ground between you and your adversary that if you did that would be a breach of contract well yes and we have our arguments with respect to why on these undisputed facts we're still entitled to judgment you've seen that part of our brief and i'd be happy to address that part of our brief if the court will give me that time but i would say in response to your honor's question consent is a fundamental requirement under rule fifteen be to and there is no consent here so the onus is not on to a choice to make a showing of prejudice it's the plaintiff it has on pleaded new claims and has to find a way to get those claims before the court and it never did so oil was acting independently they seem to believe that that would give them grounds for recovery in their opposition they said what about this broker they could have raised sought leave to amend long before they raised those new claims  their opposition now on the merits of those claims if your honor would like to hear about them didn't hire the g r there's no record evidence to show that it did cornucopia hired b t r which is the other broker to which they result i don't like the result i wouldn't like the law that that type of decision would create if a court reached a piercing issue where the district court had not passed on it at all and said rule that the claims were procedur i'll be brief the court below the issues of roof fifteen b rule sixteen were not raised by either by either party below the court discussed it is its decision so let's be clear on that it wasn't raised by either party i would say in response the council's argument litigating on the merits is consent they don't they the argument that they objected is really not true they litigated this issue they pointed out in very motion for summary judgment that we had raised the broker issue on our motion for summary judgment they pointed it out so even counsel today stood in front of you they cannot say to you that they were prejudiced one of the reasons they can't say the prejudice is that the reason we found out about this information so late in the game is because it was exclusively within their knowledge not ours i'm sure it's a part of a judge's consideration discovery and and a new findings and going back to square which are to me to go ahead what i was going to say is number one the court below this record didn't say that in this case they didn't say we're not going to consider that because it would involve the own piercing and i would say this judge is actually discovery that was taken in the case that we wouldn't even have to go there because the discovery in this case in the record is that the same individual controls and owns all of the companies this is so not going to be a difficult veil piercing argument one individual controls and owns all of them and by the way they were using the same securitizing assets i mean if we got to that issue which of course is what we want i am certainly not concerned i'll make my argument to a jury that we're dealing with the same assets the same funding really the same company and the same one individual we are not talking about what this court and most people would think of by a subsidiary company they're all controlled by the same person so it's not going to be your typical difficult piece of piercing argument i do want to say though if the district court was going to take this tact on their motion for summary judgment why didn't they do that on our motion for summary judgment because if you read the to do citizens they clearly went outside the record and considered additional facts on our motion but chose not to do it on my adversaries motion that's why i said at the very beginning they're inconsistent because the district court treated our motion almost as if it was a trial and it's in our arguments that we were treated as we made the arguments we thought were same thing going to be result in summary judgment we were wrong but the court chose to treat it as if we were trying the case on our motion and then applied a completely different standard on my adversaries motion that's just fundamentally unfair which is the point i made earlier and i leave you with this one last point again this was not decided on the merits they can't stand here and make an argument that they should get summary judgment on the merits on the issue of the broker they may have arguments of why they should win but they would certainly never have gotten some