with me this morning is my co counsel mr christopher wick and also with us this morning mr joel highs or general counsel of atlas energy group with the court's permission i'd like to reserve three minutes  that deal fell through the issue in the main appeal before this court is what happens to the two point four million dollars that atlas deposited into escrow for earnest money the answer to that question depends on whether the sellers satisfy their contractual duties by relevant deadline well not necessarily if you breached  where what language do you rely on to say that the deadline for that as opposed to the deadline for your review was five pm where do you find the language for that so the your honor points out the deadline for the review was a five zero one pm so but that the grave it doesn't say anything in the world about  about their performance being complete at that time right so what the agreement does say is that atlas has the ability and has to review all of their title documents by five or won by five or one so if they come up with new title documents new leases after five or one atlas doesn't have the ability to but you agreed to the  i mean you're fifty one minutes late in this case it's really that simple i mean you terminate for some reason you terminate at five fifty two you know you have terminated by five a one there's nothing ambiguous about five to one contract contractual terms as we could get and you guys relate and all this stuff about oh you know we couldn't see the documents and so on if there was a problem with the title for that this one gentleman's property or whatever it was you could have pulled the plug sole discretion you could have pulled the plug because it was a tuesday and you didn't want to close on a tuesday and and you guys just didn't do anything until five fifty two it's actually an alternative view of the case and you might want to address both of them the other theory is that you were too early instead to like or that because  both because i mean the other theory is that the provisions of state law kick in and you know they have until eleven fifty to come up with the pertinent information i mean so the floor so i can start with the way the district court decided it and the district court decided that the sailors had until eleven fifty nine to complete their duties and then the question of them having failed to do that at five a one was a factor of at was supposedly walking away from its review period right now the idea that we had to terminate by five  that's the contractual terminations clause doesn't say that i mean even the sellers admit ok so the crucial factors you could  by five a one but then you have some period of time i guess up to midnight actually terminate but you're not allowed to look at the documents after five along i mean is that is that the argument you know the argument your honor is that we can approve and reject title before five a one ok right after five on one we have lost the ability to react project title yeah and i know you know i'm sympathetic to this sort of last minute stuff that was going on but an alternative would have been to you know if you chose not to terminate for five and one the alternative after five or one is to to go through with the closing and then if there is defective title as to particular pieces of property you sue and get damages for those defects well but in your honour's scenario so they they come at five thirty with what they say is a lease it's written kryten crayola and it has pictures and arrows and they say well you know you've lost the ability to accept or reject this and you get damages and we'll you know if a court will get you damages for that lease my advice would be terminated before five zero one if that property does not by five or one have proper title and they you know that means they can't come half an hour later with a crayon document to fix the defect well but you know if you're after five along go to a court and say this this is not what they were supposed to deliver as to that property well going to your honor scenario we did send an e mail at four fifty six that says if we do not get these things by five  one the deal song you should have terminated before five a one you didn't get oh you know well i mean this is we can't help i'm with and we enforce contracts we don't we don't sort of rescue people that don't exercise their rights under them well the courts task is to enforce the parties intent were the courts task is to enforce the contract i'm not trying to get in anyone's head i look at the piece of paper i read it fairly impartially that's that's what we're the power to do and the idea is that the language of the contract is supposed to reflect the party's intent and here times it doesn't right and who's who is  that courts shouldn't read language in an unreasonable way i gather is that what you're saying no your honor my my argument is that the intent the parties intent is clear reading the get terminations language so the idea is that the it's a two step process and that's the way the contract was set up you have the five zero one deadline and then you have the midnight deadline and so if at the end of the five zero debt five zero one deadline the sellers have title defensible title to sufficient acreage then you can proceed to the midnight deadline with the closing which involves exchanging original documents or tendering funds or wiring fund that's a judgment you make in your sole discretion before five zero one whether they have adequate title to a sufficient percentage that's correct your honor ok and so here it was made clear that a certain percentage of acreage was rejected and if that acreage wasn't fixed then the deal would fall through i mean if you know what time fixed by what time that's the question your honor and our point is that if you interpret the contract as a whole then you see this to teared structure which is the means of preserving atlases ability to review documents was the answer that your answer that you hope this court adopts for what time i ask what time you said good question that's the question right so the interpretation that's holistic and doesn't create conflict within the contract itself is that the deadline is by five zero one for the sellers to acquire sufficient title title to sufficient acreage and if that occurs the language to be in a position rather than acquire to be in a position that's for the closing your honor ok so so did they have a good title to a surface sufficient percentage here by five zero one they did not your honor and that's been i mean doesn't the contract if we read it as a whole anticipate that if you believe that is the case you would terminate one well i don't know that it would require us to terminate why wouldn't you or because if we have the ability to review title and till five zero one and five zero one comes and they haven't acquired title to sufficient acreage then we can terminate at that point you know should we have terminated at five o two versus five fifty two always i mean if you go beyond five a one there's no limit that we can draw until midnight i mean isn't it isn't it fair to say that you have to terminate before five or want i mean that's going to make this sensible well i don't know that there's a contractual basis to say that we have to terminate before five zero one if they have the ability to review and reject title before then i mean to be an enormously risky move if you think they don't have the right percentage by five on one to just sail pas that that is an enormously risky thing well and again your honor we did try to deal with it for fifty six we sent the email and said if we do not have these documents by five  one the deal can't close so is that tantamount to a terminations or saying you know we hear by invoke our rights i think it could be and it might satisfy your honour's concern but it might not what the sellers have admitted in their briefs is that if atlas had not terminated and the seller showed up the closing still without any item necessary to hand then the buyer could have properly refused to close the transaction so they admit they needed these leases in hand at a certain time they say it was at midnight we say it's at five a one time  your honors on behalf of the ep ellie's i respectfully submit that this court should affirm the judgment the trial court with regard to the distribution of the escrow account truck court's determination that alice jumped the gun by terminating the purchase agreement too early was the correct decision based on the language of the contract trial court ruling gives meaning in effect to the entire agreement and most importantly article six of the agreement which is the undisputed basis of alice's terminations that set forth  contemporaneous communication we have as to the reason for why the transaction did not close and that is the april third five fifty two pm letter that mr hisor sent to the sellers on behalf of alice under ohio law what it meant and particularly ohio law as to anticipatory breach would it matter if we thought that you would not have been able to meet your obligations by midnight if the if the evidence were that it was him absolutely impossible for the the sellers to have been prepared to deliver title to the minimum acreage if that were the evidence i would agree that there are cases that stand for that however ohio law does provide that all future performance upon an anticipat it if it's clear that it's impossible what's an example of that from the cases perhaps if you don't know when the case is one example they can come to mine and in this particular situation is if croxton died and was not able to arrive at mr owens office to sign a lease in this situation the evidence is undisputed that all three parties that were part of getting the leases were basically about ready to get on the car and drive to mr obama's office down the road get some leases signed to finalize the very last two items that needed to be delivered before performing yes the i mean not that that really i'm not sure that makes any difference i mean there's i don't think we're judging how i know they were judging how close you were unless of course it didn't make any difference anyway because of the impossibility of performance certainly your honor and the the evidence was that centrally the last few remaining items were being ticked off on april second and april third meaning the huntington deeds for the crocs in caldwell properties which one of which was delivered by the way after five zero one pm and atlas had no problem with that all going to be handled in short order that evening because the parties knew that if they didn't the stagecoach was going to turn into a pumpkin at the stroke of midnight so the  parties all had everything to lose and everything to gain by making sure that that final arrangement was taken care of and then delivered according to the january other the january twenty eighth letter by atlas confirms that the documents were to be  delivered to alice's uniontown office right down the road from alliance and that was the plan to get those documents and deliver them to atlas prior to the stroke of midnight in accordance with the closing period which again had no timeframe but was anticipated to be midnight and the is the record include evidence of that that the parties discussed midnight as the closing the has i didn't think it did i don't believe that there's any explicit discussions about saying that it was implicit whatever it's sunday were there is ample but apart from that they they knew they were working up against a deadline for that day to get it done and everybody made arrangements to get over to alliance to meet with attorney michael or going to get the last two leases signed and delivered so that everything was delivered and the again the april second the april third two thousand and thirteen terminations letter cites the reason being six point two five well actually it's site six point three two reasons which would result in the sellers getting the escrow anyhow but her giving the the buyers the benefit of the doubt and that it was simply a mistaken reference to six point two four the the prepared to deliver that at or before closing which they were going to do and that your honor is the evidence with regard to that while they stopped  performance they actually tried to reach out to atlas and ask the atlas rescinded its revocation on that evening may they reached out to them and said you can't do this let's move forward opposing and atlas refuse so even though they didn't have a requirement to do that they they still tried it and it didn't work and i don't know if this makes any difference in the analysis either but did you provide at that point proof that you could perform i believe i don't think so i think the communication was a brief one from counsel to counsel from mr robert out yes and nothing happened that day that would have changed their mind and then have them reconsider they simply said that's it we're done and briefly your honor your honors before in our brief but with regard to that the you know the sellers acknowledge that any claim for consequential lost profits such as royalties would not be something that would be recoverable under the limitation damages clause however the base contract price itself weighed against the current market value after the slump in prices would be a direct or damage that we believe that the trial court harridan reducing or eliminating that that count three i mean in my correct and and understanding that the damages you seek in that cross appeal are the  rest of the contract price it would be in you know your honor the i think the proper measure of damages would be the contract price less the escrow less whatever the current market value  your honor i i think the trial court's analysis compared both the escrow provisions along with the limited limitation of damages provision that was in article seven  your honor to your honor's to argue that the district court heard in failing to allow us to intervene now i've been sitting here through through the first arguments your heart that at the point that our office got this case summary judgment had already been granted and i certainly at that point in time attempted because i understood what was going to happen is that if we didn't get the opportunity to intervene then we would have to bring this as a state court action in order to protect his interest and of course we didn't want to have to go to different places the same time just to let you know we have done that we have filed the state court action and that action has been stayed pending the outcome of this appeal i take no position relative to the two parties it's not mr croxton one's position here today to the be pro or con the arguments that are made in the other appeals that have been consolidated with ours our point here today is that if it should get reversed for whatever reason then there would be sufficient time it would be our position to allow us to take the state court claims with the case that then would be remanded to the district court or that's why i'm here that's that's why we filed our brief if there's no other questions thank you thank you so in terms of the sellers admitting that they were not titled owners of the sufficient acreage they did that in their response to requests for admission one that's at page i two seven four seven and you're talking about as of five of one that's correct your honor so there is no dispute about that what's your view of the set or a is that harmless in a sense because maybe they would not have been able to get these documents together is there is there a case i don't remember that from your brief is there a case that supports this idea  court doesn't agree with our interpretation of the contract then the court should reverse on the issue of whether they're entitled to summary judgment on intice of the tour p d ation in light of this their inability to show that they were able to they know there's at least a question of material question of fact on that and the important part there is one smoking gun hot doc email i'd like to focus the court's attention on it was sent by the sell attorney at five eleven to a person who works at huntington bank and their attorney told this person in an e mail to huntington bank i just got off the phone with the principals in the deal and we are apparently unable to complete the transaction today the logistics at this hour are just too difficult we may still be able to salvage the transaction but we can't get it done tonight ok so that ok we thank you