please the court i'm can carroll from carrington coleman in dallas i'm here for you to media lp and for the individual defendant mr chris wyatt subject to the court's questions of course i'd like to focus on those aspects of the judgment that imposes individual liability on mr wyatt for breach of contract the l o i the letter of intent for not reimbursing the three million dollars down payment to the  plaintiff prince monsoor and then secondarily awarding an additional five hundred thousand dollars in attorney's fees against mr y based on the alleged breach of contract under section thirty eight zero zero one of the text practice and remedies code i wouldn't trust the other issues to the briefs unless the court has questions there are two ways two theories that one might try to argue that mr wyatt should be held liable for breach of contract and crispus if occleve for the non reimbursement of the downpayment individually on these facts one that he is directly primarily liable for his own breach of the contract the l a y for nonpayment or two that he's liable secondarily or derivative play that is on the theory that he is the general partner of you to media you to media didn't reimburse or risk or refund that general that down payment and he as general partner partner is secondarily your derivative really liable for that default neither the verdict nor the judgment tells us which theory was the basis upon which the ultimate judgment was was issued against mr white individually or by the jury by the court but regardless both of the theories are infected by reversible error there is no evidence to support direct or primary liability against mr wyatt and with respect to second period derivative liability although he signed the l a y as general partner he wasn't never was and everybody including the plaintiff knew that everybody that is except the jury and that's because the trial court eron prohibited the defendants from introducing evidence that would have proved that the actual general partner of you to medial p was you to management l c and not chris wife before you get too deep into the the substance of it the other firm and on this issue of whether you can make this argument yes your honor i would say that there are at least three ways in which the court has the authority to review the issues that we've raised going first to the uniform argument of course you therm what uniform says is that the court is precluded from conducting a sufficiency of the evidence review and that's all it says that is whether there is substantial evidence of a quality or quantity such that a reasonable jury could find what this jury them does not prohibit playing there are no evidence review which is with respect to the direct or primary liability issue that's what we're arguing about the i don't want to be the son evidence because the a judgment but it can remain for a new trial i want to draw to the court's attention to as often happens as you prepare for this opportunity to stand up here you find some things didn't find before one of the arguments i know  cited in our brief i think it's footnote one in our reply brief that a little bit of a history of the circuits treatment of this issue and it in particular the mclendon case which which says you know this looks a little strange here but we recognize gosh i mean i've again i found probably a dozen maybe fifteen cases where the court's done it a lot of them have said but but it but that nobody ever finds that there actually is plainer well i think there's at least one where the fifth circuit has done that in king versus university health six forty five f thirty seven thirteen pages seven twenty two twenty three pretty convoluted case where both sides run happy with a verdict both sides appealed neither side apparently thought the fifty big the fifth circuit undertook a detailed plan  review of both sides complaints rejected dr king's but with respect to university health did in fact find that the contractual issues there actually disproved the jury's verdict on on breach of contract with respect to wages found that was no evidence that was plain error reversed and remanded now specifically were there spec to your question judge cost about about the idea that he signed his general partner isn't that some evidence eat if the issue of secondary liability were being judged under plain error yes that's true but we argue with that there are two other bases two other ways in which error was preserved here first the defendants did object to the jury charge in this case they objected to the submission of mr wyatt at all and then they also said if you're going to submit it least got to say that it's as a general partner because that's the way the case has been tried and i don't see are you directly appealing the jury charge issue is near you directly appealing the denial of the jury instruction well we were directly appealing our objection that he should not have been submitted yes we did say that in there and that that they believe under fifty  one d that gives us that preserve that objection was sufficient to preserve error and allow the court to review for abuse of discretion if the of if the objection was sufficient if the objection wasn't sufficient it's under fifty one to two they're still playing error review as long as there is in effect substantial rights and i would submit that three million dollars judgment against and an individual effects instanter right so there is the opportunity to review under that as well then there is the other issue with respect to the issue of mr white situations having signed as general partner and that is that in addition to this jury issue of course one of the problems of the jury charge again as i said it doesn't tell us whether they were going on individual liability or secondary liability directly but your secondary liability is that we also there's an evidentiary problem procedural evidentiary problem because there was an attempt to introduce evidence showing who the true general partner was and i can talk about the substantial of the substance of that problem but there's no question that error on that was preserved not only was the evidence proffered it was there was an offer of proof and the evidence showing that you two management it will see is the true general partner of lp is in the appellate record as part of is part of that offer proof let's say you've been allowed to get those external partnership documents into the record then i mean it wouldn't be a sufficiency of the evidence because the contract says one thing in that documents say another or you'd be arguing this is a matter of law there's no liability because of those what those partnership agreements the other was a summary judgment on that that there were it was denied but we try to make that argument but if the court had denied that it allowed the case to go to the jury then yes we'd be talking about sufficiency of the evidence unfortunately in this case the jury wasn't allowed to see those other things and that's why we think rental of the drama on that issue and i will say again you know thermos is limited to bars and sufficiency of the evidence although this court hasn't said it the fourth seventh eighth and ninth circuit so all said you know it doesn't affect things like challenges to jury charges or more importantly mistake we inherited this case after pleading deadline was closed and that was not pleaded it's a better fact i think there probably was a unilateral mistake but that's not something i think i can argue here as much as i would like to but i think that's why this doesn't quite fit into a sufficiency it's just and i see the issue you're raising its audience a difficult one but it's it's not clear like what box it really fits and let me see if i can get there again going to direct liability the idea here is that the plaintiff argues that well you know chris white signed this document and so he's liable that they go on this journey talking about the fact that he signed it as a general partner well that you can't try to hide behind some undisclosed principle and say that i didn't really mean it myself and that's an interesting theory but it's that's also not something we are accused we're not trying to argue undisclosed principal of the law of agents of principle is there they simply say that because he signed it because the money wouldn't pay back he's liable that ain't the way breach of contract works in texas breach of contract law in texas a plaintiff is required to identify and prove a specific undertaking or obligation in a contract and then to prove nonperformance of that specific obligation duty or undertaking that's the town west and the other cases that we cited in our in our brief here that obligation to repay is simply not placed on mr wyatt the provision says you to media here by acknowledges it agrees that you two media shall and there are obligations and probations on the general part indicating that when the parties wanted to they included the general partner so when they left out that's also tension there was no contractual obligation for wyatt either to refund this money to reimburse this money or to see that somebody else does it and again we are the contract itself negates the actual breach of contract that constitutes no evidence error and reversal like again we cited in our in our brief the coral vs jones case out of the dallas court of appeals late last year that killed again that when the contract itself negates the breach claim that's no evidence and read to reiterate what i had said earlier the king versus university health case in the fifth circuit says the same thing six forty five f third at seven twenty three that with respect to direct liability is one contention happened here now with respect to the separation the derivatives secondary liability the argument that he should be liable because he's the general partner that's really the theory that the case was tried on truthfully we've said that we've sho instructions the first one says did you two media lp or chris wyatt breached the letter of intent by failing to repay prince monsoor bin abdulla also the down payment christopher all right was he the general partner yes so the answer to that would be yes on both of those answers now if we were looking at that issue from a plane error standpoint sure signing the contract would be some evidence but we're not because we have ings but procedurally here and this is where we have the other error that requires reversal in a trial our folks trying to show that he wasn't the general partner they had documentary evidence that conclusively proved he wasn't a general part of that you two management l l c was in fact the general partner of you to management the court excluded that based on the parole evident truth but of course the pro level into a prevent you from and in introducing extrinsic evidence to vary the terms of unambiguous contract that's not why the evidence was presented because as we discussed above rod discussed above there was no contractual obligation on chris wyatt or the general partner to pay this three million dollars back the only way that he ends up secondarily liable is by operational law the principle that everybody else agrees with private partnership law that a general partner is liable for the obligations of his partnership but the parole evidence rule doesn't affect that the defendant was entitled to prove to the jury who the true general part and to the court who the true general partner was of you to media in order for that principle of law to be correctly applied and they provided the evidence they made an offer of proof which would have showed that the court eroni asli excluded and then he compounded the error by submitting a charge that didn't tell us whether or not the jury was deciding based on individual direct liability or secondary derivative liability and if the court is entitled because of that offer proof and because of the proffer to would any other evidence or challenge and again your therm simply doesn't prevent speaking very briefly to the issue of fees program day the practicality of all this is that the judgment against the partnership is probably not worth anything because the there's this question about how much either one of them try as i say i don't know what's right or whether he has that either but but but the fact is yes any of the other i mean we have an explanation for why it is that we believe that the that the partnership didn't default on the on the repayment obligations well the jury disagreed and frankly we couldn't find any good reason for argument about that if we could we would have the fee issue is pretty easy there's just you can only get these under thirty eight point zero zero want to prove breach of contract or they didn't prove direct breach direct liability as a explained and because you too media can't be responsible for fees because it's not a corporation or individual under texas law as it currently exists he can't be secondary liable secondarily liable for something that his partnership can't argument this morning is sort of beginning and end of the record in this case he signed it and that's cost as you say that is some evidence that is his name and a title and defined term that appears at the beginning of the agreement in the capacity that he signs with and i think tellingly the original definition of the first issue in the opening brief of mr y out was that and that's on page thirty three that our position lacked had no substantial evidence in fact or law to support it so in a sort of candid description before it got into this discussion that's how they describe the issue there are a couple up the briefing on this is thorough i don't want to just sit here and rehash what's already been laid out and what  been exporting question before but a couple of points on the standard issue and all the talk about the merits on a couple of issues as well but in reviewing the reply brief and this whole question of parole evidence and the ambiguous language on the splinter page that i'm reminded in the of the cases that say a perk the parole evidence rule is really a rule of evidence it's real of substantive contract law that goes to the definition of what forms the contract what terms are in the contract and i think that illuminates the question of whether this is something raised appropriately by a real fifty motion or by an evidentiary objection it's a substantive objection that goes to the quality and quantity of evidence that is necessary and i think it's the kind of thing that rule fifty is intended to engage  the other issue i would add to the discussion about the standard of review is if we go to the point of being plainer it's just not a plain error in the cases that are cited in judge cummings opinion are pretty red and better texas cases about  when you actually get to the question at hand it's it's not really a very very plain sort of issue of the kind where this court has indicated there might be a plain error on the substance i've heard a bolt in that read in their briefing but all these different theories that we had i didn't know we had them what we alleged and what was tried was a claim for breach of contract a disagreement that's the page and then carrying around as the signature page on that contract and in some sense the  fact that he signed it as a general partner is a little bit of a red herring the cases that we cite say if you sign something as an individual there are legal consequences to that signature is unambiguous it happens here that he signed signature it is on there he stands for the obligations in the contract and that's that but this specific provision you're relying on just says you two media has to pay back the three point three million plus absolutely right now that fact is also true in all these other cases where somebody signs there's an entity it's often confusing what the unity is you look at the signature there's an individual the individual is maimed in the contract area back is but that individual by his signature undertakes to ensure the performance of the obligations in the contract we have to point to an obligation are those of their position in the company well correct if i sign it and i take affirmative responsibility i could be the mail clerk i could be the c e o doesn't really matter it's informative it's helpful and have some sense of what they have to do with the situation but in terms of the like letter principle not particularly relevant here of course he sat on the first page the agreement i am the general partner and then it goes on to describe a bunch of things at the end of the in which he is the general partner is going to do could be written differently perhaps but you know and this is all sort of in the category of pro levels but backstory you talked about the talent in saudi arabia and all that this is on the fly literally different sides of the world getting something in writing that says i am an individual a real live human being not something to be named due to an i stand for this contract that has value and that's makes sense that it would be signed individually that you would request it and that he would do it that way you could do it other ways you could have a separate guarantee you could have a this you could just stand on your rights under the law partnership i suppose and go after a general partner but that doesn't really make sense in this context simpler and it's cleaner to do it this way to rely on the case law about pro life and surreal and that's within their rights to do that fact that you could draft it other ways and perhaps get to the same result is of no moment what these people drafted is unambiguous under the under the applicable cases and in fact this whole business about we've got some evidence that maybe one really general partner in this and that that's behold point i mean we could perhaps have just relied on the general law  and the concept of a general partner but why we're on the other side of the world we're dealing with a lot we're not familiar with people we don't just met in the town that we don't know all that well but getting it written down makes a lot of sense so we don't have to go back through you tube media management l p general partner and wade through a bunch of texas texas public filings which by the way almost every case that we cite about the pro level it's real involves some public filing by some entity and uniformly the cases say that just as a matter contract trumps because the parties are entitled to lay it out and whatever is in the public records is interesting it's informative that's not doesn't trump over what the language of the contract is the question about fees as it was  up we have a little bit of two ships there but the their theory is you can only recover fees from mr white individually if you could get them from the entity but that's not the way this contract is drafted we have a contract with two legal entities one is with the partnership one is with the individual you can recover fees from one you can't from the other that's a little odd maybe but that's what our texas legislature has given us in its wisdom under chapter thirty eight is sort of a grab bag  from whom you can get the sleaze in contracts disputes and others say you can't the law says someone who stands in the position of a guarantor is a code maker of that obligation it's directly analogous to this you can get fees from some you can't get fees from others so i don't think that's particularly exceptional and it's certainly not the kind of obviously that would require us to go beyond the plain language of what is in the contract so those are the issues i wanted to speak to that i didn't feel it's been fully briefed or raised new by the discussion of the court doesn't have other questions i'll get my time back to we're back to he signed it so he's responsible i confess that i think the appellee got led down the wrong path by some clumsy language in our opening brief by clumsy language when i talked about legal insufficiency of the evidence but i did ultimately get around to saying what i meant which was there was in short no evidence to support such a finding a primary individual liability for a while on page thirty four performance awards to that effect that's not what the contract says it all it lays out specific obligations specific responsibilities for individual parties that first of all i should say that that also defines parties and mr wide is not included in the definition of parties but setting that aside there are specific things that prince monsoor is supposed to do can do has the right to do there are specific things that you two media can do has the right to do is supposed to do there are things that the general partner is supposed to do can do has the right to do or is prohibited from doing on the second or third page there's a there's a no shop provision that says the hard to can't get a gauge in shopping equity interest here they knew enough to include the general partner in specific obligations and provisions when they wanted to they left it out when it came to the point of who has the right or the obligation to reimburse the downpayment by the way who can mean for mr y or the general partner to be liable under that provision mister when we get into the parole evidence rule mr cole talks about the fact that we're talking to people on different sides of the world dealing with different auditions of texas of texas law and so forth let me remind the court it's in the record that the prince months who was represented by lawyers from lacedaemon watkins i think they probably can deal with with texas law no matter where they're sitting at that particular time but the real issue with respect to the parole levitra gets back to where we were before which is that the trial court and i submit the pelleas have conflated the issues of altering a contractual provision with dealing with the principle of law if we had tried to introduce evidence in order to say he's not the general partner under this contract in other words he that no shop provision it doesn't apply to him it's really you to management have been a problem that would've been covered by the by the by the pro level tool but that's not what we did we said there's a principle of law that says we're responsible for you to be that the general partners responsible for you to media's debts it's not performances and that's just a principle of partnership law and the parole evidence rule has no place there we are entitled to prove who the real general partner was we gave you the evidence judge would let us give it to the jury so the jury entered a verdict with all the evidence in the court is and they were entitled to say that we're going to hold a reversal is your opening brief squarely frame this as a exclusion of evidence of the partnership documents yes people where's the clear as part of that  well i believe we start on page thirty nine yes we do we start on page thirty nine and go yeah like the dickens quote group thank you forty six and that's where we deal with that