but also fairly important legal issues the first is whether b r c having played and construed in the amended complaint the supply agreement issue as a requirements contract should be permitted to change its legal theory in directing compel response to this court's prior order which told us that that agreement was not a requirements contract and the second issue is whether if the r c is permitted to do that that supply agreement a support of by consideration the first issue we believe is a fairly straightforward one that goes to the heart of rule a's and the heart of the system of notice as this court well knows the notice pleading system embodied by rule eight replaced code pleading in code pleading a party was required to match up facts with a legal theory and bagels and that errors in that delicate dance were fatal notice pleading was for the express purpose of replacing a system of technicalities with a system of notice in which the plaintiff's obligation in a complaint was merely to put the defendant on notice of the facts that gave notice pleading system a plaintiff is allowed to be wrong about its legal theories and that's not fatal as long as the facts in the complaint are sufficient to fulfill the notice function of rule eight and we believe that that is exactly what happened here there is no dispute that b r c's amended complaint characterizes the supply agreement as a requirements contract and does it consistently and we're not trying to argue otherwise but separately from its legal characterizations of the supply agreement be our she's amended complaint alleges all of the facts that support its current legal theory of the case as one of a breach of a contract for a fixed quantity of approximately one point eight million pounds per year in paragraph eleven of the complaint b r c pleaded alleges that the contract requires the sale of approximately one point eight million pounds  in paragraph sixteen alleges the continental of knowledge did as a multi year agreement paragraph eighteen alleges that continental misses the shipment in paragraph twenty twenty six thirty one thirty four thirty five thirty six b r c alleges the course of conduct in correspondence in which continental missed shipments demanded price increases b r c demanded assurance continental then made equivocal statements that it would attempt to fulfill its duties at just asked for leave to amend to clean up the complaint your honor frankly this but the reason we didn't ask for leave to amend was because this issue was was live and was active in the case from the pleading stage continental in its own answer in paragraph forty seven said that the agreement was in should be interpreted require continental to sell one point eight million pounds the issue was argued on summary judgment now granted the positions were reversed but it was argued the parties engaged actively on summary judgment it was explored in discovery but isn't that correct to the position you're taking now as both sides fallback position in the earlier stages of c so it was a live issue throughout the case and being a live issue and having been argued extensively by the parties i didn't see any need to go back and amend the pleadings and what we would have thought would have been a dry formality similar to the riaa and the department of family services case where the court this court expressly commented that once a party is actively engaged in arguments have been presented either side it's a fairly empty exercise among other things as to the allocation of different grades of carbon black they're covered by the by the by the contract what's your answer to that and what do we have  way of evidence in the summary judgment proceedings in the district court to help us answer that your honor in the summary judgment proceedings before the court the primary piece of evidence that shows that contract is not  certain because of it because it does not address the individual grades is the fact that the parties for approximately eighteen months operated under this agreement with no problems at all in determining amounts and dividing them by grades that doesn't really answer the question i mean because kind analysts telling us this is just a framework for individual orders in and agreeing on individual orders filling them paying for them doesn't really signal anything about the overall enforceability for future years so what else you have all the information whether or not that affects the enforceability is a question of whether the division of grades is essential to the contract were limited mostly limited to exclusively to the unproblematic performance of the parties on the terms as they were presented and we believe that demonstrates that division of grade was not an essential if it were term our contention is the parties would have been unable to operate on problematically for eighteen months going back to the complaint the men complained tell me why you think there's an adequate demonstration complaint  paragraph fifty two has two parts one refers to continentals refusal to provide the r she's requirements which this court's prior order has shown us that it is no longer issue also refers to the pricing to continentals demands for increased pricing and those demands were made both before and after the r c requested assurance and so we believe that paragraphs twenty twenty six thirty one thirty four thirty five thirty six coupled with that allegation in paragraph fifty two and the fact that the r c is seeking cover damages are sufficient to put continental on notice that this was this was an issue in the complaint and this was in your view what to the extent that they point out to the court how the allegations of the complaint have developed through discovery further information about the course dealing indiana language to the effect that that into this obscure a breach has to be what's the magic phrase positive absolute and unconditional and from the perspective of the one point eight million dollars or million pound a year supply contract that is the kind of the framework for what we're disputing now if i understand these facts correctly  it already sold you one point three five million pounds by may of two thousand and eleven and so that they would continue to meet demands to meet the one point eight million by the end of the year and i'm understand that's not sufficient for your client's purposes but how do we get that you know positive absolute unconditional breach at that point your honor the indiana commercial code provides expressly that one path to a repudiation is if a party is reasonably in secure about the other party's performance requests assurance and does not receive reasonable assurance and that is what we're alleging occurred in this case that continentals course of conduct created reasonable insecurity into whether it would disagree with that you're going after that characterization by the counsel's office they again demanded pricing increases and their best representations were equivocal and were kept were couched in terms of what they would try to do if there was adequate supply and that included their representations they would try to play one point eight million pounds always couched in terms of what they had left over after they service their other customers what you're basically saying he's the complaint was enough to get you past a motion to dismiss for summary judgment and trial whether you made the positive absolute unconditional and or the reasonably insecure criterion that was a question for i want to start with what the r c left off with which is this question of whether there was absolute post unconditional repudiation for lack of adequate assurances and this is  an issue that the r c has throughout this case relied on putting the sequence of events out of order so the judge hamilton correctly pointed out that there were some ball holes at the beginning but by the time the council stepped in on may twentieth two thousand and eleven and gave the r c s council exactly the assurance it asked for without any equivocation or reservation seize counsel said please return by confer confirmed by return evil or discussion the continental carbon will continue producing and shipping timely contract prices and will not cut off suppl carnivals council replied confirm after that referring only go to one point eight million pounds right correct it is continental has from the beginning viewed this agreement not as a requirements contract but a pricey arrangement to allow for orders to be made and fulfilled at those prices the events that the r c refers to as additional demands for prices was another and another misunderstanding because after the council had confirmed provided assurances the r c and continental's representative had spoken said we will ship  that next railcar to you at agreement prices the person that shipped out the order sent it out with still in the system they put in a two percent a two cent pricing freeze which all of continental's customers had that given that the agreement is not a requirements contract as this court has ruled and in fact the judicial admissions in the complaint show that they were assured of getting one point eight million pounds that those allegations in the complaint are inconsistent with their current position that the supply agreement required them that continental had somehow refused to supply or make them assured of receiving one point eight million pounds the allegations in the complaint were that the continental had intended to capped supply at one point eight  now and to be clear we would not be here if b r c had from the beginning viewed this as an agreement for a fix plenty of one point eight million pounds they never would have filed that lawsuit because the parties were  disagreement about how much would be supplied continental had repeatedly said its intent to supply one point eight million pounds that they were way ahead of schedule they had been supplying almost double the contract rate and there could be no issue that con the continental intended to breach or repudiate the agreement at that point there are several reasons to affirm the district court's judg and one is that b r c was attempting to him in its complaint on summary judgment the allegations in the complaint are not consistent with or contrary to that contradict the current position but even more importantly this idea that if that's the one point eight million pounds was a fixed obligation this court has already said that it wasn't well if if we had decided that definitively we should have position plaintiff was taking now was your fallback position in the earlier stage it was our fall back position your honor that's true because it would meant we could not have anticipatory breach the contract right there but it also would suggest you're not really unfairly prejudiced by the courts consideration of that theory we're girdles of how it's framed in the complaint it is your honor because it is one thing to take a position think knowing that that will absolve you from any possible liability and to have the  plaintiff say that's the position and it also means you anticipatory of the breach because the facts are laid out the complaint the undisputed facts in the record show that they were assured of getting one point eight million pounds and there was no absolute positive unconditional yours and so i think if we look to the standard for that b r c had implicitly disclaimed any other characterization of those humax in the complaint if you read the complaint it is about a requirements contract factual allegation as well as a legal because the reason it's sued was because it was not assured of getting all of its requirements its reason for suing was that assurances of one point eight million pounds were not adequate for its  requirements which were nearly three million pounds as it attempted to show a trial and it went out got a contract that specified it could get at least three million pounds and any amount over that would be a higher price so the idea that it could change the entire basis of that basis that wallsten on those contradictory factual allegations is a violation of rule fifteen it was it was changing it the other things we talked about in our in our brief were and the other reason to affirm the court's judgment is that if the supply agreement given the court's interpretation given the seventh circuit this court's interpretation the only way to make it work is as an open offer for workers that's the way this would be r c is asking for is to have it so a requirement contract without we've got a number of provisions in here that certainly look like they're intended to be binding meter release for example says that if the parties go through this process your client will release b r c from the volume rebates and penalties we've got a five year term that all feels an awful lot like a binding contract or approximately one point eight million pounds a year  is for continental to provide at those prices approximately one point eight million pounds the meter releases as this court has pointed out the r c is not obligated to buy anything from them it's and b r c could buy from other suppliers if it had terms other than price that were better i mean that this court pointed out that there are reasons other than price to use other suppliers for example to protect itself protect its supply for her and for other reasons only if  consideration to support the entire contract is misleading they could and would really an issue about the different grades yes there are you all of asserted that they are not interchangeable but i don't testimony at the trial there is testimony from cotton or c's own witnesses mr cornwell i believe about what the different grades of carbon black are for there's there's testimony from mr most during his deposition about they're not interchangeable in this fact as b or c argued throughout the first trial and before the summary judgment that in fact not only were the grades important but the formulation had to be so precise and that's why don't we want to use one or two so and layman's terms could you describe the difference between a couple of well your honor they're essentially what you could think of with the numbers is the fineness or the size of the particles that make up the product and so if you're making a plastic product that might be something very used inside the dashboard of your car which they actually makes things like that i understand you want to early fine filler product in seven six two and a different one three three nine would not work for that product it would be too rough it would never make the plastic work so what they are making they have to have a specific grey for each one and i think the record  i believe much of those deposition transcripts had been either introduced in briefing or in the trial i don't know as i stand here what specific two bits of testimony but it was not a contested issue both sides agreed these were different pro didn't believe it there is no evidence to support that the idea that that was not going to that was not true and that was never developed and i would also point out that was not be our seas fallback position that this was a fixed quantity it always pressed on the idea that this was an unlimited requirements contract and it was only at trial that it was actually limited by the court from its nearly four million pounds it was claiming as cover damages to the amount of about two point nine so the continental had only argued that because it meant that it was not liable and there was no liability under that and if the court has no further questions for me i will thank you your honor i like to first briefly address this idea of your role in the missions in the complaint that continental had provided assurance we believe that there's no question that in the complaint and nowhere actually throughout the litigation b r she's admitted freely that at least at one point in this long series of correspondence continental said we will do our best with respect to the intent to supply the one point eight million pound level that's  that's a fact that's in the complaint that does not rise to an admission that cotton that all provided assurance because that statement occurred in between two demands for price increases it occurred before continental demand that accelerated payment terms it occurred in the immediate vicinity of continental cutting off shipments there was a whole pattern and mosaic of conduct they gave  reasonable insecurity about whether continental was going to perform at even the one point eight million pound per year while her view is there is sufficient circumstantial evidence that you could no longer rely on performance yes and honor i would say that we're a little bit apples and oranges i would say there are two manners in which a contract in indiana can be breached by anticipatory that there can be in a position for breach one is if the clear and unambiguous standard that continentals relying on is the circumstance in which a party to a contract picks up the phone and says we know we know we have a contract but we're not going to honor that's separate from what the universe of uniform commercial code in indiana also provides which is if a party to a contract becomes in secure about performance they now have an entitlement to demands reasonable assurance and the failure of a vide that reasonable assurance is also a the contract so the clear and unambiguous standard i don't believe applies to this mechanism in the u c c that deals with demanding assurance when there is reasonable and security council for cases to which that's a reference the entire reason that disclaimer is is frowned upon is because of surprise the unfair surprise this is a case where there's no question there's no surprise continental raised this interpretation in its own amend