it please the court timothy berg offended more craig on behalf of appellant jason helper i'd like to reserve four minutes for a bottle this case involves a party who after green to enter into a joint venture under terms set forth in a side agreement does everything he can to sabotage the potential joint venture by proposing terms that are inconsistent with the side agreement and by refusing to negotiate in good faith the terms of that of that joint venture the issue before the court today what do we do with the fact that the option was an exercise i think your honor under the law in new york once mr thorold's and made it clear he wasn't going to negotiate in good faith and he wasn't going to perform his part of the bargain mr helper and was correctly proposed were not commercially reasonable no i think you i think if you want if you concluded that the language that was used your honor first if you conclude they were inconsistent with the terms the parties had already agreed to in the side  agreement that would be a repudiation in and of itself secondly if you were to conclude they were inconsistent was pacific terms but they were commercially unreasonable that would be a repudiation i think it's a repudiation either way if i sign a letter with judge her with saying we're going to do this this and this he can repeat that and then we're going to negotiate some other commercially reasonable terms he can repeat that contract either by rejecting the terms we've already agreed to and indicating he isn't going to perform them or by insisting on commercially would we the net of contributions or groups more specifically the question is would it be net of contributions to a previous partnership that wasn't involved in this transaction which is what mr thorold's and wanted to do or whether it would be based on the contributions they'd made to this particular joint venture the l v n g joint venture in which each of them had put five million dollars and five million dollars plus a little bit in costs but everybody sort of used the term five million dollars including the district judge so it is it's slightly different the question is does the pari possible to equal contribution equal distribution provision say we've each put five million into this deal and therefore we're going to split everything equally or does it allow m to say i want to be paid for all these monies i put into this prior investment partnership that isn't the partnership mr helper and is now buying into so so let me again let's assume for a second that the proposed waterfall if you will is inconsistent with the part possible concept is the is the side agreement as you call it not the option but what will happen if the option is exercise sufficiently certain to enforce i mean it says it buyout in case we can agree that what is who on what terms who gets exercise and who gets paid it's strikes me that's a that's a pretty vague provision it seems to me you've got four different provisions one you've got w third provision the buy a provision i think your honor says if when we try to govern this thing by equal decision making if we come to the point where we simply can't operate because two people each having fifty percent of the vote we just blogger heads then we'll buy each one of us will buy the other out who i think it gave either side the option to buy the other out at that point on price presumably it isn't clear but i think implicit in it was at the at the press at the at the money that was put into the deal at least plus any additional monies parties had expended not at the current value of the property your honor i guess it isn't completely clear and i guess my question is because it isn't clear do we have an agreement here it's fission certain to enforce i think you do your honor because the part of it we're asking you to enforce is clear that's the party policy provision which says if we sell this property mr helper and gets half of the proceeds and that's clear and if it isn't clear if it's ambiguous talk about the just right case and i would suggest to you the other way of looking at this is to look at it just right now just right says there are three kinds of agreements that you say you're going to document later one is you negotiate all of the terms and then you're just going to put it into a document and our position would be this is pretty close to that if not there but secondarily and maybe more importantly it says the parties can agree to certain terms leave certain terms open to be negotiated later the other party a party breaches that kind of agreement by refusing to negotiate in good faith or by by doing something inconsistent with the explicit words around that agreement is what's the remedy when somebody refuses to my position would be the position provision we're fighting about here is clear and mr and mr there olson by insisting that that waterfall be in the agreement and telling mr mr helper he had he wasn't going to negotiate with them and he had only one option and mr keep telling them not to bother and he was going to make their life miserable he repudiated that express provision and that's enough to go to a jury and let a jury decide if it thinks the provision means what we said it meant and so is that where we are talking about your third conservation i don't think so your honor i think what we're talking about here is anticipatory repudiation we put three claims breach of contract breach of the covenant of good faith and fair dealing in anticipatory repudiation and what i would suggest to you is that someone if if we enter into an option contract you and i and you then do something that that that takes away the benefit of my exercising the option for me appreciation of the of the joint venture contract that would follow the exercise of the option nothing here prevented you from exercising the option your honor we said cases in both our opening and reply brief that say that that that's not the  there was a case where someone had a right hander into a lease and one of the conditions of that lease was that they go get a liquor license the other side didn't prevent them from getting a liquor license but it said we're not totally sure the property anymore what mr exactly the same thing he didn't prevent mr help him from tendering five million dollars there's no dispute about that what he did was say that you can give me five million dollars but but look i'm not going to fulfil the side agreement we have because i'm not going to enter the side agreement is the great judge of that would let the judge great judge who then would call the binding preliminary commitment i think it's at least that your honor i think there's an argument to be made that it's more than that that falls into the first category but i but i think it's at the very least a binding preliminary commitment to enter into a joint venture agreement containing the terms that are already in the side agreement and other terms and what mr thorold's and had an obligation to do was comply we're going to make your life miserable if you keep negotiating i won't negotiate any more mr thorold's and saying take it or leave it mr thorold's in admitting he really didn't give mr mr helper in any options i don't actually think there's a genuine issue of material fact about wh this agreement i think there's really no evidence going the other way but if there were even even if a council can come up here and tell you these are all the things mr sorrels and did that are inconsistent with a repudiation at the very least we've presented enough evidence to go to a question can we go back and i know you want to save some time go back to what the district judge found and i guess here's my question do you have an obligation to put him to the test under these circumstances t be mr helper and have to say look your position is crazy i'm exercising the option if you don't agree to an agreement it's fifty fifty i'm going to sue you or do or does he can he say now you've indicated you're going to be you may take a difficult position if i do exercise the option so i'm not going to exercise it i think your honor under the cases we've cited in both our opening brief and our reply brief when somebody indicates they're not going to follow through on their side of the agreement you don't have to tender performance none of those none of those really deal with this sort of strange condition precedent circumstance and they do in a way you are again look at the case i was talking about about the lease where i had a head obligation to go get a liquor license there was a case  said in our brief i don't call the name off the top my head i apologize for that where someone had a stock option and he had to exercise the option in order to get the stock and what the what and actually make a payment of two hundred thousand dollars in the fact that case and the other company he had the stock option and cancelled the stock option said we're not going to and i take your point but the those cases and the reason i find them a little difficult is they involve a party to the option  you know you exercise the option doesn't matter i won't let you do i won't i won't give you the thing that you barnett's exactly what happened here what mr cape and mr terrill isn't said to mr helper to mr friedman was we don't care if you give us the five million dollars or not we're not going to enter into the deal that the side agreement says we're supposed to enter into we're not going to negotiate hammersley reasonable term he said i think that's exactly what he said well not in those words what he said is i'm going to make you agree to terms that are inconsistent with the deal we already have and if you won't agree to those we don't have a deal i won't go any further with there and he didn't refuse to perform on the grounds that there wasn't a payment your honor he refused to agree to perform on the grounds that he didn't like the it is clear your honor that in order to someone had to buy the loan the loan mr thorold's and did that mr helper and i had a right to buy half of that note for five million dollars under commercially reasonable terms with  all struggling and that's why you're referring us to the second circuit law where we brought in new york are with us so let me tell you what it's not about it's not about an agreement to agree on the terms of a possible joint venture and it's not about an option agreement that was rescinded before it could be exercised the side letter agree been allowed help under purchase a fifty percent interest in l v and g e the entity that owned the senior loan for a specific price if and only if he exercised that option and bought his fifty percent interest in the entity with the parties then the joint ventures in need to agree on the terms of their joint do x y and z it didn't say provided that you pay in you give us written notice and we agree on all the terms of the joint venture agreement it says if you pay and then you're fifty percent owner whether we agree on the terms of a joint venture agreement or not he would have own half of half of that entity and maybe that's it which is n l c they fall under just generic new york l l c law if they can't agree on the terms of a join losses and and your obstinance i'm not signing an agreement will make no difference that is your position yes and this is exactly what his agent friedman told him to do and may have twenty fifteen he said we are perfectly within our rights to quote exercise the option and send a document to them that we would be willing to sign that was page for twelve of the excerpts of record he said this is what we can do two two can play this game he can negotiate what terms he wants well let's exercise the option and then we can negotiate the terms that we want but he first needed to buy it and once he bought in their partners they've got to reach some kind of agree well they don't have to and see that's what mr burke says look i wouldn't really my client really didn't want to risk that he didn't want to just be in a partnership with somebody who didn't agree with him on anything he we had a primary remit and that agreement said not only will we enter into this partnership but we'll share equally in decision making and we'll share equally power p in the cash flow in and profits and we will and your client said no i'm not willing to do that and so why doesn't he say at that point because i'm not a want to buy into a fight i had a deal  mean he could have just walked away if you thought what this isn't going to work but what he should have done is bought in and then sort things out but i'm going to answer the other piece of that and gets to the other piece of the question you're asking a moment ago is just the assumption that these terms the perry p meant only specifically for this this piece was this your larger on house at least on the face of it that's what it seems to mean you say mean something different but it's near recent the fact question about what it means what it what it basically means well if you're asking is there an ambiguity in that you have to figure that out it just means if the parties didn't make clear and that then that you can't you can't anticipatory early breach it you're if if if the terms of that mr thayer olson and his as the parties as agents were offering were not very clearly inconsistent then it's not an anticipatory repudiation those are terms that hadn't been totally clarified upfront and i'll also point out they were on their face what were you seem to to the language in the little letter i have all decisions and governance with respect to the loan purchase or the loan the property the budget the business plans and all things in connection there with will require i mean basically that's not the obviously the perry pursuit comes in the little letter the should the triple i but it's an indication in there we're not dealing just with this loan we're looking at the property as a whole and these two parties both were earlier investors in this property the only reason that their old send bought the loan to begin with was because of the thirty million dollar guarantee that he was getting out of it i don't i don't know why why you would make an assumption that then this this new piece of the deal is going to completely ignore everything that came before it that all of a sudden now when he's over seven million dollars and and how harness two hundred fifty thousand dollars and that he's going to agree that all of a sudden now everything he's put in before is wiped out and doesn't matter why is not a question your only if the contract if if this were a contract that had completely spelled out and had had mention that all of our earlier and vestments on this property are irrelevant are going to foreclose on this loan this is exactly how it's going to be these are pretty vague terms that was like we're going to sit down later once you've bought in and we're going to sort out all of these people is your position as i understand is that this case is no more complex than this the two parties were together on this property earlier on the recession came along and the loan was foreclosed upon or they were were able to pay on it and your client came up with ten million dollars to buy the loan the effect of which was to release both sides from the personal guarantee that's right and and your client is saying your price of participating in the new project is to come up with five million dollars to make a seaven because i came up with ten million dollars to get us both off the hook well it's a case more complex than that if it sounds like you're not acknowledging the fact that it wasn't the ten million was in the first money they had invested in the property he's are last lion's position was the price of participating is to come up with if you will in your half of the ten million right that i put in right of a small right it's wrong with that i mean there's there's nothing wrong with that was saying he's got to pay his five million if he wants in on on this this part of the deal and the waterfall was saying we're no longer looking at what we were before we're for pain but ma called can your client then demand that he be reimbursed for his previous investments it's open at that point time there really no charges so we just have fifty fifty partners who own saying is really the mystery helper agreed to take less than a fifty percent order ship it's hard to eventually you can't you can't just take out the fact that these are not third parties who had no no involved no previous involvement in this i mean you can't just pretend like that that piece of it doesn't exist that they haven't been in this venture together for this period of time and say well all of a sudden now our client is this far in and all of a sudden he's going to say sure i'm going to give you an equal no interest what is all this piracy what is it was prior history matter if he exercises option to buy it well it matters because that was the only reason why he was he was being offered a piece of like the fifty percent interest in this sort of new stage of the of the venture that they already had been in i'm not sure how else to answer that got him i guess my yeah my question sort of flow from the your opening where was what's the remedy if you're in the good faith and fair dealing context and also whether we're here on the third claim which of course was dismissed and wasn't appealed and part of the reason it was dismissed was because it was it was overlapping with the claims that were there w what they never did was say all right we're suing for breach of the duty of good faith and fair dealing because we had an agreement here that was an agreement to agree and we need to work out all the open terms and we never got to the point the remedy for that under new york law and second circuit law is you're you're out of pocket costs it's not what the deal would have then because the problem is the court can't know exactly what the deal would have been like i guess that's why in buyout question exactly right we don't know what it was and if it was as my colleague answers here well you maybe you could have gotten your five million and change back well that's the position we're in they never put that money in so that there's nothing to get back out they've never any out of pocket costs here not less if if this turned out to be a contract to bargain in good faith would be a question for the jury as to whether or not there had been fact been good faith bargain what i what i'm saying is and i guess the short answer would be for all the reasons that we talked about before it wouldn't be because the only way you get to it deborah each of that is if a you're insisting on terms and b those are are clearly inconsistent what's hers that have already been nailed down in the contract and i don't think i think where the didn't cite an arborist because we were going down this road but there is a case else seven designs the second circuit case six forty seven f third four nineteen if the court wants us to do any further briefing on this i'm sure we could tell you if you can survive a supplemental citation ok clearly inconsistent with the terms that are already nailed down and i think we're not there but i'm going to say even aside from that because there's no damages that are alleged with any kind of certainty you can't you can't get there i mean first of all there's no out of pocket costs that if there were ever alleged they didn't they didn't pay those in but secondarily for all the reasons that we've already said in our briefing i know that you have to get to the heart contract issues you can just say their damages are so speculative and if i could just say one with just one thing i west wind would be a question for the jury most of the cases if not all of the cases that we cited on that piece on the damages question were cases where new york course had decided that issue as a matter of law when there's why isn't that a question for the jury that's that i go back to the only thing i can go back to is the id t cases which is the new york case that says that there are any damages if you know that was i'm sorry that was not a damages case that was that's a case on the first issue which is if you're not demanding things that are inconsistent with the contract then that's not there's and there's just there's no breach there but how would you know what he did if the if there wasn't evidence and evidence taken to a jury trial  i will submit that on the summary judgment record you can't get there but even if you had concerns about that you can still affirm because the damages are speculative and we have several cases we've cited on that basis  before us but if you read the just right case i believe you'll find there are cases that say in in in breach of certain kinds of contracts under that second category the agreement of agree on certain terms and then go on in the future you can recover los profits not just out of pocket costs and will submit a supplemental citation on that question of are the damages too speculative there is enough evidence here to go to the jury you have two things you have mr ferals his own waterfall showing that he estimated that the property would sell for with water rights for thirty three million and then he went around and deducted out of that that's sufficient evidence to survive a motion for summary judgment second you have the testimony from mr friedman  was willing to buy the property for twenty four million dollars net of the water rights and perhaps a higher amount depending on how many many plots could be built again the jury can choose to believe that or they cannot do but it's enough to get get us by emotion bring on your damages point i was interested in this it seems to me that the argue that if you if the water falls right which is part of your damages argument or at least the horton deal was someone i think we'd see the top take it as gospel you side makes a couple hundred thousand dollars and i don't think anybody would have put themselves to this kind of deal on this kind of expense to ultimately get a couple hundred thousand dollars down the line that's part of what makes  ten minute recess and then we'll hear the last case on the calendar