a development never built on land it no longer own or briefs present several independent grounds for why this judgment should be reversed i would like to focus on three of those arguments first washington law precludes hawks p from suing to enforce a breach of the radius restriction that occurred after it sold the benefited land count council help me on something it looked to me when i read the contract and then them as though the parties anticipated a long time before development was financed and achieved or even begun i think they well that actually that the requirement is was for there were certainly milestones for build out for six eight and ten years in the first four years four hundred thousand square feet was supposed to be built or at least the hawks primus oppose the use of commercially reasonable best efforts to start the building of four hundred thousand square feet and that that milestone clearly was not met that's right and the contract says it may not be and if it doesn't that specifies exactly what happens correct there are there is a sole remedy provision in the contract it doesn't say it's a repudiation it just says yours what happens if they haven't done anything in so many years law have to be in the contract line but but you can still draw a contract so that it isn't any of those things so long as the contract is provided a longer time correct but a party can breathe can anticipatory repudiate a contract on day one imagine for example if you want to send a lot of contracts have a bankruptcy clause they say if you file for bankruptcy it's treated is reach correct and doesn't as far as i can tell right record supports that the development obligations were material there expressly recited as being significant to cabela's entering into this contract and they were the very reason that cabela's agreed to the radius restriction  you know forgive me i practiced real estate law for thirty seven years and your client got a really sweet deal you got five million bucks you got twenty seven acres how can that not be material i mean that they wanted you there you were an anchor tenant it was really important but what they bought was this radius restriction and you can keep it you concede that correct but the but the purpose of the radius restriction was to benefit the surrounding land on the theory that it was going to be developed we were the anchor tenant obviously we would attract customers to the development of supposed to be built with that of applied to another party if that party took over the land that hockey prairie own absolutely if they had sold the land on day one after we radius restriction what it correct the radius restrictions certainly would have been enforceable by home street in this case have they chose to enforce it but that simply didn't happen here i guess i struggle with the same issues that my colleague does and that is that whatever else this contract is it did seem to end fisher paid maybe not the two thousand and eight crash if you will but it certainly anticipated what the parties intended to do in the event of a failure to keep the radius restriction on the other side if they are to build things out at a period of time it said exactly what was going to happen why shouldn't we simply apply the terms of the contract that's what you all negotiated isn't it well again the there was no effort at all by hawkesbury to develop anything so what when i look at paragraph seven here it says that they agreed to start construction of four hundred thousand square feet within six years which had not yet been achieved and they say that and they've got eight years for more and then there's a ten year provision and it says there is no penalty to sell or for failure to commence construction within the first six years provided the seller and the fighting force is the only one you've argued really provided the seller griese to use it's commercially reasonable best efforts to start construction of the initial four hundred thousand square feet within four years  let's say they breached that the next sentence says buyer sol remedy for sellers breach of the foregoing obligation of seller to commence risk construction is an increase in the credits to be given buyers in the event buyer does not operate at store for the full twelve year period well cheat i look at the word soul and it means to me that's no others so why are you seeking another remedy well again your honor we're not seeking a remedy here and that's the important distinction the pair you are trying to get out of a contract anticipatory repudiation is an excuse that is something that excuses us from performance it is not a remedy clearly paragraph seven perhaps it's from suing them from seeking to enforce the provision but the question is are we excused from performance because of their repeated ation of the contract excuse a performance is not a remedy it's a right that exists in connection with every contract and your theory is it's entirely outside the language of the contract correct even though the language of the contract seems to give them ten years to develop that's that's correct just just as in so why why would they have bargained for and paid for ten years to develop when in your interpretation they only have four and then they're treated as repudiating well they they did have ten years to develop the full one million square feet they were construction milestones and he was four hundred thousand for four years six hundred thousand by your six eight hundred thousand it's easy enough to write you can write construction milestones many contracts do yes but that's not how this confess that you breached the radius restriction aren't you in breach of the contract as opposed to them it is insulated and reach within the time period that the contract calls for well again we we do not believe right they also concede they didn't build out the shopping center so your whole case rises and falls on whether or not this is an anticipatory breach right well and also although they have standing to enforce yeah well razor structure that's that's a stretch but the reality is this is it you're sophisticated people they're sophisticated people you had a contract it's in time negotiating they were the last or financially back party they were the weaker party you all were negotiate a terrific contract for yourselves good for you but the reality is you can now turn around and say you know what we don't like it anymore let's just leave it aren't you bound by your contract we are bound by the contract except for the fact that they're also bound by the contract and they didn't comply with it well they never made what they never built tell a single square foot of the property and they were to breach you reach the radius restriction before they had the end of the terms of the contract to build out  the rest of the center right that that that is true but again anticipatory repudiation can occur on day one of the contract it doesn't matter that they had additional time to build out the question is did they take action sufficiently positive to start construction on the first four hundred thousand square feet of the property that occurred on november two thousand and eleven that's when that obligation was due but but also on june eighth two thousand and eleven the bankruptcy court confirmed a reorganization plan for the sale of the property which would completely disable them from being able to comply with their development applications i don't think i threw it for me and then the third you know april eighteenth two thousand and twelve the property was sold to home street pursuant to order of the bankruptcy court which by operation of law because hawkesbury was liquidating  bellows yes they purported to retain the right to sue for breach of the ratings restriction but again that's not enforceable because when it has one when they don't own the land that the restriction is designed to  they retain the right to sue for breach of the radius restriction they may have retained the rights related to the continuous operation clause but obviously that's not an issue because compels continues to operate  they had more time to perform in the future is irrelevant if those acts are sufficiently positive and clear to indicate that they either will not perform or are unable to perform like it's back to the case fly as for and then from carbon or willesden or any contract treatise that has the facts of this case where you can make out an anticipatory breach where the contract itself contemplated certain time periods for them to perform for had passed you say none the less even though you had breached your portion of it that somehow they were an answer but and just betrayed reach well in and him a sphere loggers for example your hon facially mandatory cure period which required twenty days notice before for cure before anybody could sue for breach and there the court said that the cure period was an applicable to breaches that constituted ant court said because of hemispheres and retracted repudiation everett had the right to treat the contracts as breached and therefore had no obligation to offer a twenty day cure period as provided by paragraph twenty and that was also an exclusive requirement of the contract that you got the parties mixed up there dontcha in terms of who had the cure period well no because the the point is there was a mandatory cure provision in the contract and the court held that the party did not have to comply with it because not to be in my interests or to be impossible or whatever another way is to create conditions where it can't be performed but this one is forcing could still be performed it's just that cavell as would have some more credits i believe council has the dates wrong as the court has a lower court record reflects the sale the home street the bill of sale is dated april twenty fifth of two thousand and twelve and the breach which was the opening of the because at the time cavell as had well it goes back to what the documents say what camilla's argument is that the memorandum of agreements is what was transferred to home street bank and that memorandum of on notice that in the event of a breach of one of these two provisions by cabella see that the radius restriction or the continuous operation provision that that hox prairie may have the ability to repurchase that property and i think that the agreement itself states at paragraph five that it is for informational purposes only and from that cabella seized on that and said well in your bill of sale you transfer that memorandum which by the way includes other of standing in this lawsuit but what they do is they really act inconsistently with that position because home street bank was a party to this litigation and as part of that settlement agreement cavell as agreed to have hawkesbury withdraw from the litigation now if the purpose of the declaratory judgment action was to invalidate this radius restriction as an illegal penalty then why would they let cox curry out who is in their view the true party an interest in the litigation but they didn't they agreed to release street bank they received notice of this settlement from the bankruptcy court and they proceeded for another year's worth of litigation under the theory that this was the radius restriction was an illegal and forcible liquidated damages provision which again is contrary to what the contract says is simply a repayment provision in exchange for this twenty four million competing store in western washington for five years going back to the contract it appears that because of the radius breach that your client was untitled repayment of the five million dollars but a district court wrong in giving you the value of the land as opposed to what paragraph six called for which was that you had a sixty day option to purchase the real property improvements of fair market value minus the fair market value of the real property yar ninety six isn't that what the court should have done no your honor the court the court eventually eventually determined injunction buyer shall reap a seller the money seller paid buyer pursuant to paragraph five which is the down payment or the five million dollars of this addendum and seller shall have the right to terminate and repossessed the real property as set the property so from your perspective either you can follow paragraph eight which you believe what the court did this record or you can follow paragraph six for you would use the value of the r eight seventy seven his declaration attaches a draft of the party's agreement within which you can see the evolution where pray at one point wanted a twenty year continuous operation provision that was then reduced to twelve and in the event of a breach cabela's was to forfeit the entire property which apparently they realized at some point that would have included the building and somewhat cabella as it is said look let us at least get came to be is the deal as you understand it reach it any time is paragraph eight but reach within the first six years gives the seller two alternative remedies and paragraph eight is a standalone with respect to the rate with respect to the radius restriction it does incorporate the repayment provision of paragraph six which is the continuous operation provision so rather than set out that  the need is limited to the radius revision part me it is just for the radio yes exactly right so it is the radius restriction which is the cavell is not opening a competing store for the five year period from the da of the opening of the the store in lacey and you believe that the district court tracked paragraph eight yes in fact that's been made that similar arguments to the jury in this case at which point store then we look to paragraph six for the for the repayment provisions because the repayment provisions in paragraph six as referenced are set forth the two alternatives which as i understand that and it looks to me like some paragraph one of paragraph six is the one that was used to if i got that right or if i confused that exactly right paragraph ok now here's another one get there how do they get there when provision by the buyer within the first six years and that was dealing with the the construction buyer shell it sellers option either one paid to the seller an amount equal to the fair market value of the real property and refund the five million dollar contribution made buyer pursuant to section five here and or to provide celery sixty the option to purchase the real property and improvements in the improvements was the the building at fair market value minus the fair market value of the real property and paragraph eight states that they shall not open a competing store within five years in the delineated counties you know and it says in the event a competing store opens which occurred then it says whether or not seller seeks damages or an injunction buyer scheldt repay seller the money seller paid to buyer pursuant to paragraph five of this that in the five million so far right right the money and seller shall have the right to terminate and repossessed the property the real property as set forth above in paragraph six not gets back to my questions we started with which is paragraph eight really doesn't call and far as the getting the property back is concerned doesn't provide innings separate refers back to paragraph six and it seems to me that in paragraph six you get your five million but after that you're really talking about a situation where the harks prairie has a sixty day option to purchase the real property improvements of fair market value minus the fair market value of property which is what you mentioned was the evolution of the of the agreement it gives to two options your honor one is to value the real property only as of the date of the breach so the part the parties have enough foresight at least to figure the market's going to go up and down will value the real property at the time of the breach or in the event hocks prairie wanted the building itself they provided an option or mechanism for which that can be repayment of the five million right plus the value of the property at the time of the breach which was hocks praise election in which it elected to and where does that come in paragraph six or do you get that out of paragraph six from the from that  i see so you're saying that terminate in repossessed language means you don't have to just take the cavelos or instead you can take the five million loss the  elected they wanted the value of the real property excuse me of the improvement which was the building and so they built that in a century for their own protection so you know rather than forfeit the entire property the parties then basically you've got that sixty day purchase period right or where you have correct fair market value of the property unless the value what you gave and you can buy it for the difference that's correct you are right  yes one other point that i wanted to clear up with through which is with respect to the fact that the radius restriction attaches to the adjoining property and so whoever the subsequent property owner is that the council had concern or restrict in any way either prop piece of property they are really contractual obligations of the party so this is not a covenant running with the land under washington law no it is not your honor i mean there's there's aspects