first terminator citizen of the letter of the lease dated october seventh twenty fourteen i'm sorry that's your reading from the november twenty fourth letter i was trying to  i thought it said it is rescinding the terminations notice letter well i just can't resend it unless it's that if the agreements been canceled the rescission is not something that that circle k can unilaterally do not have to accept this least part of the offer to do surgeon and enter into a new lease you did not have to accept that but he did he did on november twenty five and and you know where the waters parted in terms of what happened and what should happen is right there because the only two documents that are are relevant about that are this letter itself and the october seventh least it has the seventh twenty fourteen days on and what the other side has has tried to do and what the court prohibited to go in front of a jury was all of this other evidence and all wasn't even admissible  would call that somewhat ambiguous what it was it mean the dates and times of the regional east main which dates from times including the ninety days and you're i don't think you got that precise in front of either the jury or judge which your take on when i said that i know you mean more than that it's the execution date but no doubt right so you have a so you know which dates and times but that at least suggested maybe going back even though you've talked about how that's impossible because october seven was the relevant date that was the date and that's in their testimony out of my cross examination both of them in that into that and so the foundation of forming another agreement is mutuality you have to have a meeting of the minds parties disagree about that and are and aren't on the same page which is what happened here that's the second basis that because there's really no dispute about that dr malik and mr to make that we're very proud of themselves having kept a secret from circle k about how they got shot i guess is that is the way i've always thought it now back to your question the judge southwick the the way that she resolved that if you look back at the because the november twenty eighth of october police with the october seventh twenty fourteen date on the november twenty four letter very clearly refers to that and there is only one everybody agrees that there's only one lease that has the october seventh reference language in there but the guts of this is about the execution and you have to read all of the clauses together because if you look at didn't say that that is the effective date that the lease began it doesn't you have to go to page twenty four th says that statute one that that's the trigger date is always the execution light with within the language of this and that's the the trigger date is what is the trigger for the feasibility period the ninety day period and in this first paragraph the last page on page twenty four of the lease which they have duly executed this lease says of the the day and your first written above the only place that you can write above this on this started back in august because the execution date is referred that's what triggers the feasibility period that's the ninety day trigger according to the lease because it's the execution of the document that triggers the three periods of this is a ninety document is a lease is very clear that the trigger for the commencement of this just feasibility date and i don't believe anybody disagrees with that is the execution date of the agreement which is why the other side so vociferously argue that the execution date trigger is sort of a reversed way of your question your honor the dr malik has ordered has argued that august twenty eighth is that is the trigger for the feasibility period because that's when it was executed because they equate execution with signing and so what is the execution if it's not well it is it is execution is also signing but let's say in the turn case that we cited addresses the circumstances that we have here it's a district court case but it's it's that's the circumstance where you have a party signed it and a document on one date and they agree that the execution date is on another or when the triggers are start for the running of the periods for the for the lease which is what happened here because even if you look at the first one being july twenty nine when circle ten signed and nobody argues not even the other side that that began the feasibility  the opening of the escrow the starting of the process and that's what happened here the opening that's why that what the escrow agent's practice was here and nobody objected to that yesterday to put the october seventh they said that out there and th that can reference is the feasibility period and that's what it triggers so i agree yes it is a reference date in the sense that that's the date that you referenced the beginning of the the triggers for the periods but these ability period which if that's completed starts different question the question is here is what was the offer that was accepted and and if if it if it is ambiguous and i don't believe it is in the biggest then that means that there was no consent because clearly had two people who thought two different thing two different sides who talked to their thought to different things and the testimony is unequivocal about that mt dr malloch and his broker both thought that was august twenty eighth and they were kind of they kept it to themselves and that's another issue that's that's not a dismissal issue but that's a jury instruction issue because we asked the judge to instruct the jury that they ought to disclose up because if there are unfair dealing in good faith with each other they ought to say that we don't think we even really going to finish this project two or three days is that what this really means instead of ohio we got you and then we tell you after the sox but but when it comes back to it that that's not the issue here it has to be that there is no other data that's reference read this alone there is it's you have to read off the reports of that are referred to before and you have to look at them these ability when you put that together the only thing that you can come to the conclusion of partially completed some of the exhibits but the exhibits i'm talking about related to the permitting and the construction those were not completed documents that had not been completely accurate does that somehow of the effect of the date the testimony on both sides everybody agreed that all the exhibits are really talking about things that occur after that down long after the feasibility period is ended not before that's why the twenty four days the reason why the the date in there is important why when you come back can you address briefly the prism by which we were view all of your legal arguments because you're sort of raise them this jury issue in which there's a standard a review of perhaps a ok well and you tell us why to know that when you come back thanks eighth so we now know when my client's signed it which was july and then it was sent to circle k and they signed it in august august twenty eighth and to your next question are what does that mean what does the execution me so the question becomes what is the execution he indicated here in testimony is the signing of the parties but but it goes beyond that you also indicated on page thirty two thirty three i asked him again and the execution would be the signing correct that's which he said he said execution signing yes by the parties and then we had to peter's also can circle k he's the individual who was directly involved with getting this least begun started doing the due diligence and so what he states were page thirty two zero two of the record he says in corporate real estate used the term executed or s mean both the same thing and then we moved to tempe eater's on cross on page thirty or eighty three i said you told us yesterday execution means sign his answer interchangeabl probably when people some so if we go through night and we want to define the time execution means then certainly execution as we all know is a common term is when you would sign the document but it also means as indicated by the parties testimony they believe when they decide now i understand their argument is we had a different understanding we didn't believe that it was going to be august we thought was going to be credibility determination to weigh the evidence that's better be made adding i also was a little bit confused as to what the standard i understand here during the getting to know vote but it's not to know as the facts what we really have here twenty fourteen and that's what we hear today if there evidence in the record that there was an actual meeting of the minds on the august twenty eighth as opposed to your client believing that's the day and the other client going further we have tim peters with page thirty two i wanted thirty two of two indicating that execution does mean son we have randy horn two thirty two thirty two thirty four for the record on appeal also very bored i believe so too to your point on august seventh just days before the signing there's an e mail in this is record thirty seven ninety prior to the original date when there wasn't a big hang up right is there anything that is in that relevant time period after there's already been a confusion there is enough that we didn't know just as you know we'll get to the rest of it but just to jump to that on december ninth he talks about these exhibits right the commencement dates on december not that's well after all this this is a record of thirty six times or thirty eight sixty five to thirty eight sixty six first time in the entire record ever see at tobar seventh as being in the day is after this litigation and lawyers are all in the lawyers are discussing it at that point that comes up but very telling is the december night i would believe that if the circle k received a letter from a lawyer on december ninth which would have been after the terminate if they were in showing that the day was august twenty eighth and they really believed it was a total seven it would have been some april was the counsel for circle k it says dear april in accordance with the lease i'm sending over the filled out exhibit in the delivery dated repeat please advise or confirm that your in agreement with the delivery date that when the premises are being turned over to write it to your point previously that there are the what's important is is the ninety day feasibility period that's the time that they had the ability to get out of the lease if they want to after that ninety days passes circle case in the lease it's just that there's other things that they need to do for permeating and there's all the time delays or things they have to do after that point but the ninety day feasibility period is the term the time the circle k has to do their due diligence kind of a free look when it's ninety days from the execution of the lease which is which was our point to the jury we have to determine the jury has to make a determination what is the execution date report only years it doesn't say from doesn't seem to me self evident that they would go back to the original dates on the lease this is several months past all of that you are starting it up again at least likely as with all these benchmark dates on things to occur what makes the original timing of the lease controlling what has been rescinded in offer to be revived in your client agrees to to revive it i believe is the way that that all of us read a number twenty four was it to try to carp paraphrase our argument was that this letter there were twenty four where in the case this letter will act as a notification that the effective dates and timing in the lease dated october seventh twenty fourteen are still valid and the lease is still almost twenty eight if this were to change or modify under the lease it has to be in writing and it to us are going to the jury is that would have to have come in and say we are now changing the quote execution date of this lease and that didn't happen and to go further to the extent that this is ambiguous and confusing or doesn't quite make sense it was drafted by circle k this wasn't drafted by dr mouth which was their argument to the jury was dr malloch was i guess in their words pulling a fast one on circle k by not telling them they believe the date was was august twenty eighth but dr malveaux signed the lease like he was supposed to deliver like he was supposed to he signed their letter like he was supposed to but their argument to the jury is but dr mallet was was pulling a fast one on us he was hiding the truth that the mallet in draft in this he just signed the documents are presented to him the point being it was signed on august twenty eighth twenty four te also to a thing which is very important the record thirty two zero seven to thirty two zero eight and i think this is pretty telling in terms of what the intent of the parties or because that's all some of the jury had determined was our media minds was there not a meeting of minds was there a lease and if there was a receiving quote executed leases that week and that circle k had quote ninety days from execution of the lease no exceptions it was so important about that is that no exceptions which is in bold and  that's in the dot that's in the memo itself so i don't know how circle k could argue to a jury or toward anyone that they believe october seventh was going to be the date when he's sending a letter a letter on august fifteenth saying they're going to be executed is part about the standard practices was that testified there was no rule twenty six report done by the defendants to introduce that was the judge's problem with allowing expert testimony as to what an escrow agent does they didn't believe that was their broker or agent not towards sort of thing but but not specifically as to what an escalation does but i think what's also important is why did why do we have october seventh right because under section four point one it says that  mediately upon execution of the lease the tenant which is circle k is to deliver the lease to the escrow agent so i'm in the point actually q you want to mean that the same day but why did it go out all the way to october seventh and the what happens when we say i want to my office and put it behind on this back part of my desk and i said that would have been on august twenty eighth two thousand and fourteen did you did that she said yes sir as that then what happens she says then i did other work that i had to do and i said when is the next time you look at the lease she says it wasn't till i sent it to chicago title i said why she said because i got busy and overlooked it and i just forgot it was sitting there so question was that rights question was so you didn't intend to wait until october send it you just forgot about it sitting behind you yes or in this page thirty two seventy three and thirty two seventy four so so again the the the the problem i think with their argument is that they always intended it to be october seventh you have to kind of be  done that you would have had august twentieth on it anyway but which you can't do in is in is where they reach when you are issue comes in which you can't do is get a lease lose it and then benefit from that time period right because my client stuck it he can't negotiate or swap this around anyone else they on the other hand have locked him in and is the ex so everybody signed up with that day effectively their argument is we got another forty days why do we get another forty days because we lost it different viewpoint and they just kept their mouths shut maybe one of the parties didn't speak to one we had a broker and we had a attorney on the other side and mr peters who would send the information the reporters inside so they never did get together meet new group or discuss these things which again i think is important because the the really the issue here is when it was signed motherboards when it was executed and when that ninety days a lapse and why there why the jury why was so important again contract and again that's so across with that because the contract was cancelled it wasn't a modification it was a new one and the size of the party claiming the benefit of the contract has the burden of proof to show there was a cop you're saying that those two letters  wanted with this lease it was dead after and the other thing that's important about the october seventh date is that dr malik got that document and between in the question really is was anything done or said between three is the other key that's the trigger for the execution because it's it and it triggers the feasibility period it's specifically says that the ninety day period begins with full execution of the lease that's the feasibility that's the significance of execution being in the opening whereas cost and it being on the last page it ties in together so that's why it's important that the mere signing is independent party put it in and and that's frankly that the testimony of one of the last party had no authority to set the beginning date of the leak actually of the testimony by every single circuit circle k witnesses chicago title story and they had no authority they weren't either the left or or the left that they they were not the less or less the they put the date and the point is just the everybody accepted the least the letter ed without this date he that's what he could should have done if he wanted october seventh to have no significance but this insertion of october seventh changed the agreement and he already signed it malick he had signed it without over seventy and so that's the whole point that's why this is a different agreement because for months later everybody signing room that this is now the least this thing with the october said and date that has a different definition terminated lease and it's gong and then somebody says i'm offering you to resend the terminations and i'm changing the terms of the original lease that's an offer an acceptance the reason it changed the terms of the ori a question yes i want to make sure i'm looking at the right thing in the record so i'm looking for the objections to the charge as constituted i have a afternoon session from the trial february first two thousand and seventeen and the judge says you know this is your time to put things on the record and then you say you want to do it at the end should the judge says let's just do it you know and then people start putting some things on the record but and sometimes it's just i object and is this is this what you're relying on to say that things are preserved or is there something else that i'm we're supposed to look at in addition to