may please the court kevin rayburn on behalf of the opponent harvey game as this court is well aware the district court in this case ruled that the agreement that was the subject of a guaranteed dispute between the parties was unambiguous that mr gainey as an individual unambiguous lee guaranteed amounts that were owed by the corporation which with which he was affiliated super service incorporated however report clearly erred in ruling that there was an unambiguous contract pardon me if i misspoke in ruling that it was on him because the contract the agreement to the guaranteed was very clearly ambiguous and when the court looks at the other evidence that was in the your point on this score to get to parole evidence is that your right is your idea that if we can show some an ambiguity and this taxed we can then get to other indicators of meaning is that your way of thinking about this case yes you're exactly and the ambiguity that we would highlight your honor is focused on the word now as if one knows an ambiguity is anything any word that is equally susceptible to more than one meaning and in the context of this guarantee the word now is very clearly subject to more than one meaning in this case to begin i grew with that in the abstract maybe i'm actually not even one hundred percent sure but i'll grant it to you that now by itself might have a couple different meanings but isn't the relevant way to think about it is now in the context of now or at any time here after yes ok i agree with you on that when you put it like that it sounds like it's i i've said that's covering the waterfront is what i would have said i understand your honor and and to be honest there is some very broad language throughout that agreement that i think easily distracts from the focus on the very words that you just focused on it says any obligations o or at any time they're after in the focus is a transaction that kurt occurred five years earlier in other words i realize that ok and so you're on the road now the focus on now means becoming do now through this transaction that's what the interpretation of the word clearly can be in fact the dictionary definition we cited in our brief defines now and gives an example it's saying at the present time or moment and that's the context of this word in this guaranteed there's that i was in a job at the present time it became owing at the present time by executing that ten document transaction that took place on that date in two thousand five it was a tractor deal the deal that the poli is trying to claim to guarantee applies to is a two thousand and five years earlier trailer deal completely unrelated as the witnesses from g e c c admitted that trial the documents in the transaction were not related in any way financially or substantively in terms of tractors and trailers and so what they were ten documents executed saying we now have a tractor deal and now what is knowing is the money in the tractor deal that's the context of the agreement and in fact the undisputed testimony at trial is that the g e representatives told mr gainey that was how the that was how the guarantee was interpreted that it applied to the tractor deal and stuff forward nothing previously and so the context of that phrase in that use twice in the guarantee is what's becoming do now through this transaction is being guaranteed and anything that comes here after and that's something that mr gainey understood and in fact if you look at the documents from g e c c itself it sure is broad or any other type of some of any kind whatsoever and then at that point you to short handed to you now or anytime him here after is just to be whatever and that's what it seems to be shorthand for whatever well in the past the present the future of your i don't think that it's shortha whenever as i understand the argument for the past because it doesn't say that it's there document it's there form it's to be interpreted against them there drafters of the document and clearly it admitted it's very broad in saying any kind of transaction i understand that but it doesn't get as broad when it talks about the timeframe it's not categorical with the past it's categorical with what we're executing now what's becoming do now in this tractor deal and anything that comes forward we understood that mr gainey greta that that's where the ambiguity comes in in fact the end of rubin good to guarantee would be interpreted as saying you are now incurring this obligation that's what you're guaranteeing and anything that comes here if anything we except it and of course all of the testimony consistent with that if you look at exhibit twenty two a trial that is their internal financing document that explained their rationale for bringing to the sloan and it separates the guarantee of mr gainey as applying to the tractor deal that was then being analyzed from existing obligations which were identified completely separately in the memo transactions to they didn't think it did in the language leaves it open to that very clearly in fact they're identifying the guarantee as the linchpin financial backing of the tractor transaction in two thousand and five they had an obligation to identify any other special conditions it's right there in the document on exhibit twenty two and they didn't identify that the guarantee was so important what are down by the fact that it may be used to apply to a previous transaction and they would have had to do that we just highlighted that's what it means i think the now in that context means becoming do now through this paperwork that's the way it's ready that's the way it's intended so yes i understand that a previous obligation is due but that's not what this language covered and that's clearly open to interpretation in every single bit a prologue it's a trial their own witness their own documents mr dean's undisputed testimony which the district court found to be truthful said that that's not how we intended the deal and that's not what we meant by the deal that's not what the words meant to us the words meant were given this transaction and everything for that's where the focus was so if i could i'd like to jump to damages because i feel like yes so he heard it all and then he rules as a matter of law that the guarantee is not ambiguous yes you're remedy is what sent it back to malone and have him listen to it again i mean stand on would you well i understand that he made a legal finding i was that was his ruling we're arguing also of course that the factual findings that are related there too are clearly erroneous but i agree with you your honor judge morrone i don't know read the context as well he even though mr gaines may have believed that you know he should have been represented by counsel and counsel should have looked at this and if that's really what he intended as an attorney shouldn't have signed it  so his subjective intent i don't think is determinative as to the legal issue of what this means at all well your honor if there is any ambiguity it is there and in a should say in addition to his intent his understanding at the time and g e c sees understanding at the time they told him that that's how the deal was structured in their minds and that's how they view the deal that the guarantee applied only to the tractor deal and going forward and that's undisputed in the record so to answer your question or i think the remedy is to to to reverse and say that there is no guarantee that i mean it does not apply to true thousand trailer transaction because all parole evidence or you would have us rule as a matter of the law doesn't apply i w honor that's a first request all right so all that are given go as to it's not ambiguous you're you're arguing that it's unambiguous and therefore we should rule as a matter of law that's contrary of what you've been arguing with parole evidence in extrinsic evidence consider it becomes unambiguous the proofs become an ambiguous that it does not apply to the two thousand trailer transaction the poor evidence points only one way there is not a shred in the in the  any evidence that would contradict that alternatively would ask the court to remand it so the judge maloney could view all the poll evidence in the context of the understanding that this is not in an ambiguous guarantee and i need to look at pearl evidence y counsel is trying to divorce the word now from the context of the phrase as pointed up by judge sutton has to be read in the context the words around it it talks of and it's defined by way of scope the payment of money to the customer that it's over now it's the payment of the money owed that defines the scope now means it whatever money is owing at that time so again the guarantee reads why don't they spell i mean you know they could've spelled that out to spell everything else out right i mean principle interest rent way charges and demis blah blah blah i mean it's just classic it's and they don't do it they're all that but they didn't have to do it your honor because they didn't need to modify it more narrow because it was meant to apply broadly it was meant to apply now and he was no risk in saying any debts previously incurred anything do now and i do hear after i mean that i'm not sure what risk there would be with that there's no risk so why did they do it they do it i swear because they didn't need to do it i'm not trying to be trite with the court the fact the matter is the language uses the lang which of the guarantee talks in terms of any now terms that are commonly understood all the court would have to do all the parties would have to do is look at what payment was going as of that date and that would be it in other words could you make it more clear arguably did you need to know and that's our position in a nutshell i don't know i think what council's been arguing is you have to look at now and somehow graft onto the notion that the words becoming due should be correct should be inferred on that phrase and the difficulty with his arguments of world becoming do or reference to the earlier no it doesn't appear anywhere in here and that's that's the difficulty i think judge maloney actually found this the right way i think it is a questionable law on this particular point for the court i think the maloney to do on re man in other words he didn't really factor in the parole evidence in his ruling no i think i think he found that the pro life ministers merged into the terms of the contract now that may get you to the same result i don't know but that's technically what he found he also if i may your honor he also found the mr gagne's testimony was quote page six of his opinion quote truthfully asserted didn't find it was right and so always saying he was sincere with respect to his found and i think the record shows this the mr gainer was a fairly sophisticated person i've been around the block in these sort of things we're not talking about somebody where there's an int he contract and you know from the opinion judge morny mentioned i think at least twice maybe three times there's no claim of misrepresentation or fraud here so this is an arm's length dealing type contract situation the court saw it as a matter of law the court i think properly interpreted i don't know and i didn't hear here today how counsel gets around the cone brief coin case in michigan court of appeals it seems to be on all fours as a matter of fact i think our language is even better in koan judge sutton the obligation which was the guarantee was actually limited to a particular no i had knowledge that you'll find that in that opinion ours is one step broader ambiguity doesn't necessarily go away for lack of specificity and that's the the use of the english language in this i have other things i can talk about but i think the damages are clearly erroneous standard i think we've briefed it to the t s and once the court has questions and damages i would just ask the court to affirm presented by g e and the only witness they had at trial that knew anything about the documents was the person in charge of the litigation group intent who testified that they selected the lawyers and supervising for the trial that person had no firsthand knowledge of a single document that was admitted into evidence and so the argument about damages goes to the weight of those documents federal rule six o two and seven o one say a witness who does not have personal knowledge of the documents cannot present credible testimony and that's what happened here if you look at the brief and it cited there in their witness admitted they had no personal knowledge of the documents they were bringing in from a pile in the room and presented in the court room and admitted specifically they could not document affirm the accuracy of any of the down damages documents in fact the damages documents were summary documents that added numbers from different source documents we didn't even have the source documents but further if you accept the documents being  what they are g s own documents show that the entire obligation they're claiming under the super service lease was paid in full paid in full exhibit d their own internal audit accounting document said that as of september thirtieth two thousand and six the amount owed on the debt was two hundred sixty nine thousand from that date forward g e admits that for two years until october two thousand and eight super service  obligation of twenty four thousand dollars a month in so doing they paid more than they paid exactly the two hundred sixty nine thousand within a year and after that they paid what was identified as a buyout amount for the contract provides that after the lease payments are made in independent of those lease payments super service can buy out the whole thing for six hundred two thousand dollars thirty percent of the original cost from halfway through that two year period in other words from september of two thousand and seven through two thousand and eight gain paid and i'm sorry super service paid enough to pay off that obligation when you add the three hundred six thousand dollars that g e c c recovered when they took the trailers and sold them so our payments over two years they recovered the trailers adds up to more than what they're claiming was due if you look at exhibit d it documents that amount further if you look at exhibit twenty two there document it identifies that there were lease amendments that came after the deal closed those lease amendments all contradict each other each of them identified a separate amount as the original cost without explanation the only thing that's an ambiguous about the documents is the amount owed as of september two thousand and six and the amount that we paid to pay it off in full after that period of time eight plus the three hundred six thousand dollars in recovery that they got when they confiscated the trailers and sold them paid more than all three of those numbers at the very minimum their documents contradict themselves and identify different amounts is d and we know litigation assistant comes in takes a pile of documents that don't have the source documents but are merely summaries of numbers purportedly their income support and says yes this is what's doing only and can not explain that flow of payments from september two thousand and six through october two thousand and eight and then the recovered the trailers you have a plaintiff was failed to carry its burden of proof on damages we paid for everything they were asked at trial the testimonies documented in the briefs that they admitted they could not identify the accuracy they admitted that exhibit d properly identified the amount due as of september two thousand and six so they've admitted in testimony that these documents tell the story that they tell if you look at our numbers and by their own numbers we paid the entire matter in full and therefore your honors there's really no dispute that they did not carry the burden of proof with respect to damages and we asked the court to reverse this ruling and to enter an a ward of no damages both leases but in particular the super service lease because of these amounts paid in full in the alternative we asked the court three mand it to judge maloney to consider the evidence already presented and evaluate the damages numbers on his own and reach a ruling based on the fact findings that he comes up with with the evidence and in the record for those reasons journal rest the court to reverse and remained thank you for your arguments to both of you and for your briefs we appreciate it