to provide nondestructive testing services to you down in the reason we're here is because this is a service agreement which is to perform work on an as needed basis i undisputed that the contract itself under section one dollar states that tao will utilize the services as needed this is a master service agreement it's not a requirements contract i undisputed in all of the depositions all the trial testimony that there is no absolutely no requirement by dow to utilize the services of golf at any point during the term of the agreement it's also  undisputed that golf cannot perform services under the contract unless it complies with six dollars of the agreement which requires that the work be authorized in writing  before the work is performed it is also in disputed that the integration clause of the contract twenty seven dollars states that the contract cannot be revised unless it's agreed to in writing by both parties and it's undisputed that we terminated this contract under section three dollars which is the without cause provision that states any party may terminate the contract without cause for any reason at any time or for no reason with ninety days advance written notice and it's also disputed that we did this in good faith as that issue was decided by the district court and did not go to the jury instead of the reason why we are here on one hundred and thirty thousand dollars case is because this is a scenario where dow is autor to pay damages to a contractor for work it never authorized for work that was never performed and we simply cannot allow it to stand because of the you know the hundreds of independent contractor contracts that are currently working on our facilities throughout the easier and employing thousands of employees but even greater ramifications is this rewrites louisiana law by allowing the jury what is the purpose of the ninety day notice the purpose of the ninety day notice is for cause and so the ninety day notice is to make sure one that down has a contractor of vailable at all times during that ninety days because if dowd loses this contractor and now doesn't have the ability to perform destructive testing on on his facilities we have another but we need two for a reason and secondly it's to protect the contractor if we have authorized the work in writing before call the with out clause allows them to complete that work and that's the difference between the other provisions the other provisions three point one b in c and three point two those are four four calls provisions either you're terminated immediately because you violate the contract you file bankruptcy or fraud or you have five days to cure the defect and under those you don't have the right to complete trying to attack mr mack his credibility was offered soley for that purpose and was inadmissible hearsay with regards to miss coons testimony she said that she believed there was work that they had yet to complete the temp testimony in the facts that lay out the trial is number one all work was assigned in writing in a package so the formal informal communications were memorialized in writing in the monday through thursday work week so thursday they assign t work to be done for monday and so it's it's a formal written project they get told on monday monday september th is when they receive the written notice of terminations tuesday september th the testimony is clear and explicit through the c e o and their on site supervisor mr makki that gough terminated every single one of its employees on tuesday a day after receiving the written notice terminations how does that fit in with the argument test mo g tell me what is based on that they were told they had but i until we have that on in this record in up your honor our position is there is no valid evidence in the record that they but assume what is the evidence so so this is with regards to the impermissible impeachment that we briefed mr makki is golf's on site supervisor mr makki is the one who was on site meenie came on the stay in his testimony regarding what mr makki was told by someone else was allowed as impeachment to mr makki without mr makki ever being asked a direct question but put that aside even if you assume it all say that even if you assume that someone at dow told gulf what they say is in the record which is you have to be going by friday that's what that's what the impeachment evidence you soley for the purpose of a pietschmann is you have to be going by friday they left on tuesday there's no evidence that they had work that was authorized in writing beyond friday that is the  attempt by gulfs witnesses to put on any evidence of written agreements for work in other words we get to the damage because this was bifurcated in there was a damages phase golf's c e o golf testified i'm not aware of any work that was incomplete that was authorized that we couldn't finish mr makki the on site supervisor i'm not aware of any work that we couldn't finish because of what dowe did the expert that value the damages they didn't valued based on work that was authorized they simply valued it based on ninety days worth of lost profits so it's simply this is a scenario where everyone agrees that there is no obligation under this contract to provide services at any point time but it's golf provision that somehow the three dollars without cost terminations provision tree a tz an obligation during that ninety dollars days and that simply is not the case in just football with regards to why we say that the district court error in ruling in denying summary judgment when the words are clear and explicit on the you can't look beyond the contract for the intent of the parties and you can only look to extend to evidence when there already is an ambiguity to clarify it if you look at what the district court decided she looked at the question her testimony regarding in this is a summary judgment stage regarding how work was assigned and she took that in either or at best she completely negated six point one that says it has to be in writing and it works use that to create an ambiguity with regard to the terminations provision because she ultimately found in the summary judgment that there was no requirement to utilize their services unless there was previously authorized work in the contract specifically helgi you how previously authorized work is to be handed out in the testimony at trial the testimony of both mr makki in mr chad not can go through down they testify how the work was handed out in as a fact it was handed out the week before for the monday at most through thursday so at most you're talking about work that was assign monday through thursday for one week and go off lease on tuesday on their own volition they terminate everyone why and how that fifty five thousand estimate was offered by your and so with regards to the testimony with regards to our expert he was asked what's the same questions that were asked of plaintiff's expert what's the value of the work previously authorized zero there is not she said the same thing there's she had no idea miss a re had no idea what the value of work for you saw at the box was because she had that was not how she was basing our calculation so they based it on a daily average of profit from the passion year emulsify that by ninety and so our expert for an alternative in the event that the jury did not believe us offered a similar analysis based on what he determined was the daily average of profit and if you see what the jury did as indicated in our brief they took the two hundred and twenty they took the fifty and they divided it by two to come up with the one hundred and thirty eight dollars which comes out to two and a half times the daily profit for the three days remaining on the work if you give them that no reliance on the law or the the contract which is the law of the parties by by the appellee instead it's talking about all of the extraneous testimony regarding how things may have occurred with regards to the question of whether there was previously authorized work dallas expectations on how they hope this had worked out is not previously authorized to work under  argument because dow enters into a four year contract on an as needed basis for service agreement then in dallas spec's them to perform work over those four years than golf would be entitled to four years of lost profits in fact they argue that and i was dismissed before we got to trial court but that's the theory there is no reasonable interpretation of this contract which requires doubt to pay for services which were not authorized or were not  performed there's no requirement once we decide to end our relationship for us to actually start providing them work there is an expectation that there is going to be a smooth transition but that is absolutely not us authorizing in the form work such that we have to pay them for the work that they didn't perform at the end of the day we would ask your honor to either reverse and render on the summary judgment which dealt with the breach of contract claim which was the sole claim that end up going to the jury or the the denial of the rule fifty motions both based on the the breach of contract and the damages and they're all very let me just look real quick so i can determine since we're there in the briefing notice that the court is to both parties on june th we specifically asked the parties to address whether there is complete diversity among the parties in the appeal and i don't see anywhere in your brief or materials that your you ever did that on behalf of your client am i wrong i'll be honest and we alleged in i don't think there's been any dispute that our client is a louisiana do this a couple different ways they try to do a couple different ways to say that ninety days doesn't mean ninety days st thing they have done is they bring in sections one point one and one six to say that during the ninety day clause  terminations pause which is without cause determination provision that those effectively mean ninety days can mean however long i wanted to mean or however short i want to to me that doesn't work for a couple of reasons number facility doing the nondestructive testing that downey's to have done so there are some good reasons for a ninety day terminations provision because not only does dollar need to ensure that they have somebody who's at the end of a contract  period for whatever reason they have to have somebody who's going to be there for ninety days and similarly the contractor who's invested the time in the effort and the expertise needs to have some certainty that something's going to continue for that ninety days after terminations provision  o one point one and one six if they mean that three point one a actually ninety days doesn't mean ninety days then you run into a problem with the law contract interpretation wheezy and in most of the states where all of a sudden it's rendered meaningless r way they try to attack three point one is they go in this litany of protocol where they issue work orders on a semi daily or semi weekly basis and what they're trying to say is that the only thing that gulf could have sued for would have been out of those very few days of work orders that they issue every few days that doesn't work for a couple of reasons number one all the testimony by the doll administrator is an if you look through the transcripts in our case in chief we called seven witnesses five of them without ministry theirs in our case in chief on direct examination every one of them said that they anticipated that the gulf would be working through the ninety day period in addition i think was mr barb himself said that ninety day terminations without cause provision operated the same for both parties that is that obligate a contractor to remain working for those ninety days of one thousand needed them despite terminations and what exactly does it mean in at trial every one of the dow administrators stated that they anticipated that gulf would continue to work through the ninety day period at least to some extent there was nobody denied the loss would have been in this case for the ninety day period of time obviously there's calculated possibly two or three days of worth of work in the jury came in in the middle i don't know exactly how  was split by the jury and the proposed at least one formula i don't have any inside information on how the jury came to that conclusion but obviously the jury and in the ruling from the fifty bead the district judge allowed that the jury had found that there was some obligation during that ninety day period that was beyond just the two or three days the dow claims is the only thing that we could do so i think the jury felt that three dollars a man probably something pretty close to ninety days if it says ninety days in effect was ambiguous the jury filled in the meaning for that down also trying to get some traction out of calling this service agreement m s a and i don't really think it makes a period has been violated one doesn't solve the twenty four hour terminations period the issue wasn't whether that was shortened it was whether they could do it in the contract so they could do as they could do it so those don't really apply so whether you call this an m s a or not the court initially dealt with that after the twelve big in the court said that really not what's going on here we have to see what this language means after the summary judgment court found similarly jury found similarly fifty b after trial once again the judge said that the jury motion after trial the judge very specifically said and cited two testimony from revolve around a series of internal doubt e mails that started around july th and went to write about the week out gulf because for cause because they're living up to that what they have to do under the contract within a month and a half there's a string of e mails with allison who testified in other folks all saying that we need to get all filed i can't wait to get them out  circumstances that was enough for the jury to say was plotting to breach the ninety day period and in fact on september th troy bar b a sent a letter to gulf that said we're invoking point one nine day provision you have until december of this year roughly ninety days in the contract terminated the next day gulf was kicked out of  the point they were told actually be up by friday and they pick a good within that time the e mails are cited by the trial judge as the basis for the jury's deliberate determination that doll had plotted to breach this contract it's not the substance of mr mackey's prior inconsistent state that was what the jury based the breach on it was the fact that dogs own internal e mail showed that they were trying to get gulf i was fast possible that there was one right before right in the beginning of september they said that we're looking to do this by september th and that's exactly what happened so despite the fact that there's a ninety day provision that is in actually i guess would just make sure the courts where there are six other terminations visions that allow for either immediate a one day notice terminations once again if ninety days and three dollars does not mean ninety days it's meaningless it's completely surplus verbiage and the rest of those provisions don't make any difference either and that's not something that can happen under contract interpretation now to get to mr makki mr mack it was and i ask you before you leave that in your under the regular functioning of the contract obviously dollars going to issue authorized work permits or work orders to whatever contractors they have but that's not the sole question this whole question is is whether during the ninety day period is there a different right or obligation that's created and that's why that's in big us because da was saying now but they're obviously yes the language in the middle where does it ever say that you're entitled to matter what they do they're paid is that what the evidence show it's not exactly that it doesn't exactly operate that way your honor well you had to come up with all these theories about lost profits sees me that there's no obligation of a certain amount of money and to give you some context as to why that makes some sense in the bigger picture just in the industry like a kind of started mentioned earlier when down gets a nested contract or the knesset contractors personnel and equipment are located on dollars facility that's where they show up they don't go to my clients headquarters in the neighboring parish here in jefferson parish they go to douse facility they show up every day the minute they hit the gate they're on the clock they're getting paid for something dollar needs to nested contractors to complete and the testing to keep their facilities operating they've there was a lot of testimony about how difficult it is to keep things staffed and how the other contractor they had at the time turner was having trouble and my contractor a gulf there's a lot of testimony about the fact that this is a necessary situation for them to operate in if the gulf would just evaporate one day that would be up the creek they'd they need that work done so to give both parties some security journal terminations provision during the terminations period the ninety day cause makes sense it makes sense to give both parties some way to transition in fact i think to a man almost everyone or if not every one of the dowd ministries said that the ninety day provision was to allow for an orderly transition mr watkins who was there their contract operations leader said you can't switch switch on a contract like a light switch you need the point being that ninety day provision makes sense to give both sides in orderly transition and it does create some rights that are different that happens during the regular run of i mean with you you go out there and you put the manpower out there and you develop the expertise you  have you know containers of quitman out there it makes a sense makes sense to not have somebody be able to snap their fingers except in the in the six provisions of why if you lose your insurance if you're commit fraud if you declare bankruptcy all that sort of thing in those instances you can terminate immediately but if you're just doing your work and you're out there and you're supposed to be doing both sides need some confirmation that there's not going to be somebody trying to switch a light switch that really doesn't work for either side so the fact that extra writer created for that ninety period makes a lot of sense and in fact i think that's what the court understood when the court originally said it's ambiguous in twenty fact when that originally happened i believe it was after the summary judgment contract and that's what this case is all about with dol has to do in order to overturn the jury's the determination is to say it's meaningless and a contract law for whatever reason you try to say it's meaningless that doesn't work and so that's what they're trying to something that it was a prior inconsistent statement testimony was allowed to refute that mr mackey's credibility was very important in this trial because one of the things that mr makki did testify is that he tried to say that gulf left on their own which for all kind of reasons and you can read in the testimony mr massey many testified would have been tantamount to insanity for golf to slit their own throat like that there was absolutely no reason go for the done that so mr mackey's credibility was very much addition so we brought in the prime consistent statement in peach mr matthews testimony no doubt doesn't like the underlying information that was the substance of that prior inconsistent statement in the judge did render a protective ruling or protective charge to the jury that the  tries to say that that's the only reason that now the jury could have found that dow breached the contract that's not the case and again the judge was very specific in ruling on the fifty motion that  testimony and the string of e mails showing dow plotting to kick off out early is really the basis for the jury sitaram anation so although it was important to impeach mr matthews credibility for various reasons that briefly one thing you did not hear an argument was that there was previously authorized work that couldn't be completed completely ignoring section six point one of the contract which requires all services to be authorized in writing before they were performed and i think that's significant because that is what the contract in the law between the parties required with regards to our interpretation engulfs interpretation and some you're interpretation different provisions of the contract you must interpret them in a way that's consistent with the contract as a whole as your honor asked how it is call center of rotation that you're required after you provide notice of terminations to give them work for ninety days it is not consistent with one point one it's actually contrary to one point one which says you're only to provide work when i ask you to and it has to be in writing so goss interpretation renders one point one meaningless the contrary our interpretation renders the entire zero contract meaningful one point one requires it's only as needed six point one when our job packages are given to them it's authorized in writing three dollars a we can terminate the contract it terminates the relationship but it does not require us to use them day one after we give them a notice day to day three day four in all timidly if you if you go beyond the testimony that was offered so look for impeachment purposes and you say misc autor golf off the premises by friday notice on monday you've got to be going on friday on tuesday they quit as at most the work that could have been performed or could have been authorized would have been wins day thursday that's it they were paid for monday and paid for tuesday in the question with galt as soon as they step on the premises they're paid they're paid by golf they're not paid golf is not reimbursed unless they perform services for dow and i want to correct one misstatement that i absolutely made the question with regards to to the  diversity jurisdiction it was not removed it was in the original answer filed in apologize for that but if you look at the record in our answer we admit status as a delaware corporation principal place of business in michigan so i apologize for that misstatement couple of things i want to correct mr barbee a's purported testimony that he agreed the contract obligates tao to provide them work couldn't be a larger misrepresentation of the record if you look back at the ruling by the district court on the rule fifty motion the district court in monish is counsel for suggesting that's what was said and i would point your attention to the which is why i focused on what he said with the witnesses as i said in the original argument they all said we anticipated there to be some sort of relationship some sort of transition but intice a patient does not require us to give them work we signed the four year contract we anticipated that didn't require us to give them four years of work there was an end to supported sort of wind down period but it did not happen isn't dissipated but it is not a requirement that we gave them work and it is not proof that we did give them work and with regards to your honor's question about the our exports testimony seem to be inconsistent with what we're arguing mr stevens was our expert in on page  and forty seven of the transcript he testifies that there is no evidence of written word work no evidence of damage from the alleged breach so the you know we had already lost phase one which they found that there was a breach which we were surprised by so we gave an alternative but there was no acknowledgement that there was in fact damages thank your hon