us i mean we made this offer and the guy enters into the escrow we puts the money agrees upon a date and so you know we're happy everything's fine and all this money pulls the rug out from underneath us doesn't even tell us about those lower prices anything else and so you just really our country is stopped from relying on the ninety day rule your reaction to that is why was that raised below by the way give me was that was that issue raised bloaters in the stop of the whole ninety day problem that was never raised a motion for summary judgment saying that the original offer that was made april of two thousand and three approached fair market value and there was no question of fact about that because somebody a year later agreed to buy it for that price that was the issue below and our my argument below was we had an appraisal that contradicts that value in two thousand and three not a year later when the  value of the property had gone up and did you object to the district court to the fact that this sort of subsequent right of first refusal was outside the ninety day period i believe that was raised as an issue in the sense that when oh now you're getting awfully squishy you believe that was raised as an issue in the sense i mean did you stand up and say timeout this doesn't even work because it's outside the ninety days right what we are what we argued was that the subsequent went off or isn't applicable to the original offer and the respondent never brought up the fact that the subset that the first opera should be thrown out in fact they insisted that the original offer was binding invalid they based their argument simply was that that they were relying on which then would have triggered the ninety day argument the argument that was made was good the original offer was the offer they were relying on and the evidence for why the original offer was bonafide was a subsequent refusal rather than a bona fide offer then the ninety day argument would have been relevant at that point to say wait a minute you can't make that argument because you didn't make that offer within ninety days so conoco phillips never made the argument you're not to worry about the first part because we've got them on valid now that now they realize they have a problem relying on the second offer and so i'm saying they can't rely on the second offer because it wasn't made within ninety days and my whole basis for this  coming to me and they have an offer a bona fide offer and we have an appraisal that says that offer is thirty one percent higher than the fair market price he proceeds accordingly and when the respondent makes a right of first refusal offer but never withdraws the original offer never re the notice of non renewal because that's what they should have done they should have when they came up with it when they after the ones that had been have been in litigation for a year they could have withdrawn non renewal and said ok you're back list given within ninety days of them of your offer you are required to either purchase the property for that price or turn over the keys that didn't happen here the entire time from beginning until the end the philips argued that the original april two thousand and three offer was the one that they were relying on and they never rescinded the original notice of non renewal and therefore appellant conducted themselves in rel similar grounds that the court relied on before and therefore i thought it would be futile to do that i just didn't think respectfully i just didn't think the court understood the nuance because of the p and p which is a complicated statute it's like  dots to see what the law is trying to say here and but but it is a bright line rule that the parties should follow and whether complex did intentionally or not they i believe didn't conduct themselves according to those rules and they cannot now come and say well equity or demands that that talent should or should lose because we relied on his actions well depend on so what are you asking us to do and why what we're asking you to do is remain and this case back to the ninth circuit i'm sorry back to the central district and let the case go to trial on the issue of whether the original april two thousand and three offer was on fact bona fide b that's the question of fact which everybody agrees that is a question of fact the only disagreement is is that offer as a matter of law bona fide because of a subsequent offer a year later and that's something that can be litigated we agree issues to be decided or need to be declared we need to either the rights of the parties here whether there's any rights for any further and if we send it back it's wide open again so it is the second prong of the of their opportunity then one of which is to make an offer within ninety days they did make an offer within ninety days that was the bona fide purported bona fide offer in april two thousand and three the subsequent offer in may have two thousand and four was no longer part of that ninety days so that happened later is just let happen later and they can use that as evidence and make arguments about why how that affects their original decision and the original offer but it's not what the second offer was no longer pursuant to the p m p a in fact they argue evidence as to what evidence about this for this right of first refusal offer ok because that's really the nub of this appeal did we even though there was a tribal issue of fact on the offer bona fide offer which is district court found and we're not relying offer of forty five days duration and that was given on may twenty fifth two thousand and four more than three months before the end of the lease and it was on that basis that the district court found both in rule is let let's look at what it is it requires that the franchise or give in this case a right of first refusal offer within ninety days of the notification of gave the notification of non renewal april twenty second two thousand and three and there's no dispute that it was valid under twenty eight zero four and met all the five requirements then you win the nine we don't get off on that ok on an issue then we went to this business about the competing but we didn't know about that williams is all went through litigation it comes up to the we've then find a buyer escrow falls through right in september of two thousand and three much p the forty five day right of first refusal offered forget the bona fide competing offer thing we found a buyer is going to pay nine hundred eighty thousand dollars here's a real estate contract for you to sign if you want instead you have forty five days then finally tried to block that say finally parent we decided not to accept that offer hoping putting all his cards in the in the litigation that was pending  make plans ok we gave him that notice in april of zero three and the validity of that notice is not in dispute so if you want to look at this the way reality is subdivisions but the issue there was whether the franchisee needed a new notice and the court said twenty eight zero four prescribed eight minimum notice period by not a is very important we can't can't we strictly complied with twenty eight zero for the five elements when we told them when the when the leases expiring why we're getting out of it what that we are selling that we have a good faith going out and finding a buyer hardbound i think that within ninety days your honor i think there has to be practical reason why you have to strictly comply with the twenty eight zero two them a notice of non renewal and within that ninety day period either on the first day or up to the last day we can make him a right of first refusal on what is the purpose of that it's to make sure we're not pulling the rug out from or that it does not feel that it's being given a bona fide the offer then it would appear to me that the purpose of the statute is to protect the franchisee in that situation and not the franchise or that is correct if there's anybody argue the ninety day problem with the right of first refusal at all no so it's not surprising that the district court found no problem and my argument to you is that as a matter of law i mean there's no dispute so there's no with due respect there's no reason to send this back and have this litigated because there's no fact issue you know we know every fact necessary the real question is the question of law is there a reason for applying a strict compliance standard on twenty eight o a new notice of non renewal that's just exactly the same that would have said exactly the same thing as the notice that we gave him in april i mean stand your characterization  grant summary judgment because we complied with a different provision the p n p that's where that's where the district court lost me and the district court had ruled you didn't have to invite a new notice  that the situation nobody raised the ninety day issue at all in this record not in the way that we're talking here but it's important to understand why if you read the summary judgment not the reply because by the way we didn't have a chance to reply to the reply t reply is there and the issue was up earlier well except also you're conceding that it wasn't raised the ninety day problem was not raised now you're saying now in a way that we're raising it here but it's important to stand the reasons for that so why should we  why should we go off on the ground because it's is more than the more review the courts reviewing this case done though and it's a question of law and it's a question about the cation of law and as a side appellant plaintiff at that time did not have a chance to respond to the reply the court took the matter of calendar there was no oral argument not permit or oral argument on motions and it's not like you were surprised by that it come up earlier the right of first refusal well no if  yes but what about the right of first refusal well no the right they've never argued that the right of first refusal is the one that shows is the one of their relying on that that is the offer that should be examined for the a buyer willing to purchase the property at ninety and because there's a right or first refusal that was given for that then that somehow supersedes the original offer but that wasn't the so i'm not going off on the wrong guy off on the other one that was a writer for wright and it was a mistake and that's that's the part that we didn't have a chance to argue because of it was raised on the river in the reply that way in that what was the issue on appeal now the where the franchise or is leasing the property from a land or owner and sub leasing it to the franchisee and the notice that they're talking about there is in the franchise agreement the franchisee is required to be apprised of the fact that there's a third party lease and if the franchise or loses the right to grant possession so the franchisee under the third parties then the franchisee will be thrown out even prematurely before his franchise expires and so those cases deal days they're supposed to give you an offer now the right this is the distinction between zero four and twenty eight zero two twenty eight zero four sets out how the notice should be structured the format for the notice that was kind of thanks  what are they supposed to do after they get this done and then the time of the ninety days at that point they would have a choice to either accept it or not they didn't they didn't but there was but there wasn't the original rescission of the original notice  dollars excuse me the yes they filed a lawsuit challenging the original nine hundred eighty thousand dollar offer let me do that within ninety days of receiving the offer within ninety days how many years well the knew what value we are certain they just didn't have the appraisal if you wait for ninety days you disable them from relying on the right of first refusal well not really because trudeau if you're telling us it has happened from within ninety days of the notice right but the or they could have just not if they wanted to sell it for ninety eight and then have a third party buyer they could just not not renew them and waited until i got a buyer and then made a note non renewal and then offered it but the whole point of this is we have to know if we create these