last a mild guesstimation that upon arriving in the court i would have vivid models of the subject of the displayed out there right up here on the table i have one here and here in here so let's just saw say this is being recorded i lost the speculation about that matter but anyway that's it was mild anyway so anything just we had robust discussions of how many of these things we'd see whether there would be a screen in here or whether we have table anyway none of that has anything to do with how the case comes out of just what have entertained us but into lady then we fully expected after reading the briefs that you all would want to recess before we called you up to bring in the models and we'd be set up i want to be the last case argue that any of them will decide t salivating that if we get all this in the briefs surely we will get one or two models and you pulled it jesse from the bottom and the end there would be others anyway this is directed at the other side as well they are getting their chuckle but please they're going to rush out and go get some right now i don't know i would encourage their mentally fun your honor i'm not making light of litigation you know that i'm just having a good natured  article the second is the contracts express exclusion of liquid fuel powered products like the niter third is basic common sense supported by new york law and the behavior of the parties no one pays royalties for products that aren't branded i'd like to take each of those points in turn your honour's let's start with the text the ke provision in the royalty rate clause speaks to products manufactured with the stampede chassis and or stampede body that definite article the is a critical limiting term it signals that the reference to the stampede chason cannot include other products such as the ny trope in v x l they are not in the stampede and we've cited numerous cases importance of the definite article instead filled asks this court to read different words into the contract phillips position is set out on page seventy ninety two of the record and that position is that the clause should be read as quote any chassis or body used on a stampede model and quote but that is not what the contract says it says the stampede chasse not any chancy it says stampede chassis not a stampede model our second textual argument concerns paragraph two of exhibit a where the contract limits are c vehicle the heart of this dispute relies on that defined term r c vehicle units seven times it provides that royalties are due on our c vehicle units that are quote manufactured with the stampede  stampede bodies so to be eligible for royalties the product in the scheme number one manufactured with the stampede chassis and or the stampede body into  finally your honour's practices interpretation is correct because it comports with common sense as a common sense matter your honour's you pay for value you receive you don't pay something for nothing in the licensing arena nobody would pay royalties on a product that is never going to be branded no tracks as is and was happy to pay royalties for fels ip in connection with the stampede which is the only product that has ever carried branding but no one would agree to pay royalties on an entirely different set of products that's why common sense supports tracks of this interpretation and it's not just common sense wrong as it's also the conduct of the parties for three years we sent felt quarterly statements and payments for the stampede that noted they were for the stampede felt happily accept them never objected reasonable competing interpretations fell's proposed interpretation is unreasonable and fuss it cannot render the contract ambiguous there are three principal flaws with phil's interpretation that i'd like to review first fell's interpretation conflicts with the text because it would sleep in the liquid fuel powered micro as we discussed a moment ago paragraph two of exhibit a defines the products of issue to include only those that are battery operated fell's interpretation contradicts that provision second failed cannot account for the thirty thousand unit exemption built into paragraph five in the royalty rate clause so there's never disputed that the reason for the thirty thousand unit exemption is that it reflects the number of stampedes the tracks this would sell not ni excels stampedes the sales figures for the various products are set out at page forty three sixty seven of the record of the food thirty thousand and exemption sponsorship and other contracted benefits so then after the thirty thousand in it kicked in i'm not stating is articulately but i'll go with my sense of their take on th hundred why not a million the reason for thirty thousand is that is the number of stampedes that tracks his was going to sell when the parties were negotiating this deal in twenty ten tracks is new the thirty thousand is going to be about where they would end up and indeed that's exactly what came to pasture on the tracks and about selling over thirty thousand stampedes in two thousand and ten if the parties meant to include all of the other products they would have picked a much larger number than thirty thousand as set out forty three sixty seven of the record there were about ten thousand units of the other models that were sold that same year so the exemption would have been different if those other products were meant to be included because there's still this conceded the goal is to prevent there's a third flaw in phil's interpretation i'd like to point out and that is that it defies common sense according to feld tracks s agreed to pay money for nothing sells ip it has never appeared on any product other than the stampede and yet felt now seeks to claim tracks as profits from other products that were never part of the parties discussion and never part of th further makes no point no sense in light of the price points of the various vehicles no the royalty rate clause includes graduated royalty payments it's three percent royalties for the first ten thousand units above thirty thousand that's than four percent for the next ten thousand units over forty thousand and then five percent for all units above fifty thousand now that graduated system makes sense when all of the products are the same price depending on which month they sold which products tracks this would pay fewer royalties if they sold their four by fours in february and their stampedes in october than they would the other way around that's the type of nonsense cal result the new york courts reject finally one last point it's worth noting the jury in the negotiation process feld initially proposed a will to structure that would require royalty payments on all monster jam stampede trucks but without any thirty thousand unit exemption tracks rejected that deal and proposed different one that was accepted but if track service had accepted that deal would have received about forty seven thousand dollars over the lifetime of the deal more than it was actually paid yet now felt claims in this court that it created a contract that calls for an extra one million dollars in payments these are all reasons to conclude that felt interpretation defies common sense or are you going back to saying that the court should have found that the contract with legal are that the jury verdict was an unreasonable interpretation of the contract that it was ambiguous and the jury's finding was an incorrect interpretation are we saying by law it was clear and the judge should have tossed it out and made a ruling are the jury's verdict was what's incorrect the former judge prado we argued that this case never should have gone to the jury in the first place and we have not presented  of ok the parties crossman for summary judgment both parties argued that the contact was unambiguous and both parties argued that the un and the u s interpretation support a deposition the district court rejected those motions and sent the matter to was equally reasonable reading from the take you have to say the article be thought out and out of they argue something else so we didn't granny the one of the dueling motions but then let the case go to the jury so we kind of had a threshold issue about that of whether you know one of blysse you know you're here in good stead but i don't think we're going to spend most of the time on it but she just short it's correct that i think the district court believe that both parties advance a reasonable interpretation but of course that's exactly what we're challenging on appeal under new york law a contract can only be ambiguous if there are two or more reasonable competing interpretations of the parties agree that whether a contract is ambiguous or unambiguous is a pure question of law for the court you don't need a jury to decide that oh you want an animal go to judge when and we're not going to run out of time on this you would want them panel a whole in determining that there were two reasonable views of this country that's one way that this panel could decide the case ron we've offered the panel to i don't know i'm just trying to catch up with where your whole are with this and  two not discern to yours was the one and only correct view and in grant has me as a matter of law all right i mean that's at least one layer of the principle argument you make that's exactly right chief justice and i couldn't set a better macam just trying to make sure i'm staying up at least two to two where that point and i would agree having the cars here and not wouldn't help that piece of that piece of it ok just when or i could but when i don't run out of time we've got time for it is so does when it h of the contract you should wrongly advocate your own strongly advocate they are why isn't that ambiguous but your honor the courts in new york have indeed held that if there are two reasonable competing interpretations and a contract can be and bigger as our point here under is that interpretation is not reasonable i understand that they've pressed their interpretation vigorously throughout this litigation but it's simply not reasonable for the reasons that i set out earlier it ignores the definite article it contradicts paragraph two in exhibit a and it has no explanation for the thirty thousand unit exemption that the parties built into this contract and finally are appealing the denial of our post trial rule fifty the motion where the district court considered this argument that we're making on appeal and rejected it in light of that the other side is correct that you cannot appeal the five seventy nine five eighty three and five eighty one in the fifty be motion we then press our core argument again three times above the line and several times in footnotes we've included in our brief the citations to our rule fifty be where we talk about the issue presented to this court now for example on page ninety two of the record we invoke the rules of contract interpretation to argue that we were entitled to judgment as a matter of law we explicitly noted on record page nine  royalty provision it seems to have its own definition of licensed articles do do we not follow that do we go outside of that provision and if we got tied up provision and you have another definition of  two articles isn't there and you can be due to you and big u t if we have two different definitions of license article not at all your honor of the key term here is the r c vehicle units in paragraph two the license articles clause it defines what those two terms mean just part of there is no defined term clause in the contract that defines exactly what the contract means by stampede and so what new york courts would do in the circumstances they would look to custom usage and other evidence of the party's intent outside the four corners and new york courts have made clear that the court can do that as a matter of law without resorting to the jury we cited some of these cases in our brief there's a louisiana generating case a thirty one contract discourse and look to those sources to figure out what it means are their sources i mean we have any any evidence of the custom and usage of the terms in the industry the best source your honor is the photos that we've included in our brief which demonstrate all the differences between the chassis platforms and the bodies there are numerous differences we go through them in detail in our brief their visual their function all sorts of differences in the court can consider all that as a matter of law but by going outside the contract and looking at the items aren't we saying it's ambiguous and we have to go outside the contract to look at these things to make it clear what what they mean are we then going outside to contract insane it and bigger so we're planning up for you by showing you the model no just part of the court is not doing that the new york courts that we cite explain how the process works this way the court can look to custom and usage at the interpretive stage without it becoming a question of fact the goal is to resolve no seal and so we've had some internal discussions about those and when and how long they stay under seal yada yada yada so you know i know this cases is under seal i take it because of the proprietary information etc et practices in the case and so my only sort admonition i think we've now put on a website or rather was trying to communicate the problem is that we get these cases that come to us under seal and it kind of stay that way and nobody ever alert to us when it's ok to unseal more they need to stay sealed for ever got it out of soring i'm saying is that somewhere in the genesis of this case whenever down the road nothing to do with the disposition of the appeal i'm just saying we don't know as a court sort of does it stay sealed as a not stay seal and is maybe one where it is but it's kind of a common conversation we're having internally because the parties and we don't know and don't always alert as when a need for a ceiling you know has left at the district court level sometimes they're mad at so it comes to us on seal and we treated that way but because maybe not all issues brief to us or an issue we don't don't want to know and so far these reasons transparencies is the way it should be that it's open so it's just kind of a general alert to you all and some point down the road to notify the of bringing the stampede and other lines of vehicles into the court today but you could have had the real big thing parked outside the courtroom that's that's true as well need to talk with the client about that your honor your honor trax is here is attempting to avoid a jury verdict in which eight jurors unanimous unanimously agreed that felons interpretation of the parties license agreement was correct for tracks to succeed here on this appeal it must prove it must prove as a matter of law that its interpretation of the agreement is the only possible reasonable interpretation of the plain language of that agreement this it cannot however and for reasons that  walk back under later questions today at the blessing marine services versus jeff bell and the black versus j a case and company cases control essentially they have said to the court again today earlier in question and they've said their br that they feel this case should have been result on summary judgment and should never have gone to trial as this court has ruled in blessing the general rule in this circuit is that interlock a tory order denying summary judgment is not to be was trying to be careful to say that their appeal was not from the denial of their summary judgment but their appeal was from their roof fifty motion which they renewed after which wouldn't be within the answers to prior questions and their briefs suggest otherwise because repeatedly they have said this should have been decided on summary judgment he should not have gone to trial and i submit to you that the distinction of saying actually we're only asking for a ruling on r fifteen that they're trying to make here is not actually a valid distinction when you look at the grounds of their appeal and we know from black the one thing i will have in the black cases the purpose of summary judgment to save time expense in a proper case but when in due course a final trial is had on the merits it becomes the best test of the rights of the movement if he wins on trial he has his judgment if he loses on a fair trial it shows that he ought not have any judgment and that's exactly what occurred here as your honour's noted the district court held that neither could party had met their burden in their cross motions for summary judgment and sent this to trial and as we know from black also that decision it discretionary decision to be made by the district court and this court won't review that discretionary decision the decision as the court described it which is to die motion for summary judgment there in black it said even if the movement otherwise successfully carries the burden of proof if the judge has doubts as to the wisdom of terminating the case before full trial that was the circumstances here just like that in black and that's why the judgment that was obtained in this case after viewing all the evidence is the correct one and unchallenged and shouldn't be reversed or even considered here i would also like to address the contention that your honor just read that the issue that the contract was unambiguous was something that was served by tracks is because indeed it was not when tracks is first made its rule fifty motion it did so at the close of the felde motorsports evidence at the trial stood up and it argued outside the presence of the jury to the court and in that argument and we discussed the specific sites to what they said at our brief feld motorsports pre fab pages fifteen and sixteen but in that why did they take this position on their initial rule fifty motion it did is because feld motorsports own witnesses had testified that the reading of the contract was absolutely playing to them that it meant what meant tracks is chose in its motion not to argue the agreement is unambiguous and or scratches interpretation is correct they said the opposite they said look at this there ambiguity here your honor and that should be viewed in favor of tracks this because fell distracting ambiguous agreements that was when they first rule raised their full fifty motion now at the conclusion of the trial  go into all sorts of evidence the evidence of the type that they go through in their brief here that one would never look at if in fact they believe that the plain language of the contract was dispositive in this case the thing they said in their roof fifty motion and it was on the side and it was in passing it said while we disagree with the court's decision on summary judgment that this was an error and beat us and they continued on to make their substantive points that didn't dress in the rule fifty briefing and if you look at the court's decision the court which addressed each of the sixty issues that were actually put the forward on roof fifty did not address that because that was not an issue that was put to it you don't think dr enough to to preserve dish or to say that they disagreed with the court's ruling that the contract was ambiguous just to say that to say well we disagree and then proceed to others does not because what you want to do one rule fifties put the trial court on notice we have a challenge we have a disagreement we think you did something wrong and here's why and that then has the parts brief that point it and has the judge address it the judge didn't fail to address the point because the judge was  careful or not thorough the judge didn't address that specific point because it was not raised to the judge there and that is a problem when you then after words tried to claim the issue was preserved now they do i guess what they were saying is well we we we disagree with their primary ruling your first ruling that said that it's ambiguous but now that we have a jury verdict we don't think there is sufficient evidence and and concentrated par merrily on the jury verdict in the evidence but they said but we still think you made a mistake to start off with my ruling that it was ambiguous and you don't think that's enough to to preserve it i don't think so because i think you would have s type of arguments that trucks is now trying to make here and mr hopkins cited a number of cases and made other arguments about ambiguity here that an ambiguity here which was not made there and was not put to the court simply well we disagree of course they disagree they they took the other side but they didn't say this is a reason why the verdict was wrong this is a reason why the jury never should have got the case and recall this is  also said a simple fifty not and there is a footnote in rule fifteen don where they say you know well we you know as a prophylactic matter we've asked the court to reconsider that this was unambiguous however this court has said very specifically and this is in template versus hyperopia three sixty seven f third at four seventy eight to seventy nine this court held a rule fifty nine motion calls into question the correctness of a judgment such a motion is not the proper vehicle for rehashing evidence biegel theories or argument that could have been offered were raised before entry of john and that's what they fail to do when they are not able to correct their failure by pointing to a footnote was unreasonable and therefore as a matter of law their interpretation should be that the controlling contract that your interpretation was unreasonable yes they they said that  reasonable there wasn't evidence to support that term for taken as a matter of law than their interpretation should be the controlling interpretation the way the argument was based on the evidence i mean base and what they were arguing is that based on the weight of the evidence at that point and what if when you see the evidence that's being discussed a look at strike patterns look at this look at what does it mean to be a stampede or stampede body those are all things that once you asked that question it's because there's an ambiguity of some type and the jury resolve that introduced much pro level in storing the course of the trial and then afterwards changed course and said wait there never should have been a trial here this was unambiguous and the court held that a party cannot take part from the four corners of the contract to argue in its favor during trial then abruptly reversed course and argue that the contract is unambiguous after the jury is i'm persuaded by their extrinsic evidence your honors i'd like to turn to the merits of my remaining each family has its own specific identified trademark name with its own distinctive design and identity and stampede is track to says trademark name for an entry level line of monster trucks one side you see different models from the stampede line of vehicles and on the other side you see examples of other lines of vehicles and you can see how the ones on the right from the other lines are so basically this really distinct from those on the left which are all visually the same within each named family now when you look at those within each named families of stampede slash rustler etc tracks is has different models and those models get different what their witnesses called identifiers and tend to fires based on the feature sets that they might have for example there's a two wheel drive rushed engine model that's called the five the base model of the stampede however there was testimony in the case and offer of the court to the record on appeal for six seven five that indicates quite clearly that practice was mocking up four by four models of the monster jam truck you can actually see images of the four by four felled brenda trucks that they were mocking up for production at the time a promise that they never ultimately did that but there was also testimony in the record that showed that some of their proprietary she's special pricing for these different vehicles at some hot selling at a much higher price but as your owners know when the parties agreed to this system tracks insisted on a royalty provision where the first thirty south thousand units would be exempted but in return for that they would include stampede sales and we know what they mean by stampede sales that's what tracks this president said because practice in this very litigation and you can see it on page thirty one of our free made a chart of stampede sales which included each and every different model of stampede the stampede sales in the industry and there's much other testimony that was in the record about how the trade press would refer to stampede to mean all the different lines models within the stampede lineup of vehicles if you went to tracks this website typed in stampede five of that agreement it's pacifically says it refers to all the new controlled vehicle units in radio patrol bodies and that's trust so a very broad it can include all the different lines of tracks as peoples but that it narrows it to manufactured such as the monster sam replicas which might use a stamp each aspect have a different body on them now what's important is that and as your honor correctly pointed out there is no definition of stampede chassis or stampede body and in fact at trial that became an issue that tracks is put right at issue in the trial as well but it was determined at trial that every stampede unit including those so even after the agreement was entered all had the stamp like that and that's a perfectly reasonable and indeed the correct interpretation of that agreement second tracks relies on the sales figures this thirty thousand number and there are two interesting parts of that first is that phil motor because once they have to look at that then it's clearly not from the face of the agreement it's not clear what this means now second of all and the judge just is quite carefully in ruling against cracks on the rule fifty motion motorsports witnesses both testified that the thirty thousand number referred to past sales not projections of future sales and the most recent year of past sales figures at the time the parties discussed the thirty thousand actually had when you included all models of stampede vehicles just under thirty thousand tractor should not be able to vary the meaning of the royalty rate provision based on information never shared with filled motor sports and also information that fell motor new york law controls which it in it's not in dispute that new york law controls but what otherwise might be my are sort of two to the approach to reading it based on louisiana  texas or whatever that new york law prevails here so i'm sashing to respond to what extent this looking at the new york law and controlling all true argument the argument you're making about the agreement they say that well we are allowed to look to industry custom and usage and indeed in new york law that's the case but it's important to look at the case that talks of that and we cite that case on page thirty two of our brief british international insurance company versus court explained that the industry custom in usage must be so well settled so uniformly acted upon and so long continued as to raise a fair presumption that it was known to both contracting partners and that they contracted in reference there to here's the evidence which went to what does it mean when you use the word stampede with the stampede bodner chassis are you talking about just one to real drive brushed engine or are you actually referring to the lawn and in fact the custom in usage evidence here at best for tracks this might be inconsistent but at worst for tracks and as was shown at trial tracks itself refers the vehicle its own controller said stampede was like the cleanings it refers to every model the train press when the new stampede v f l four by four came out describe it as a stampede that's also four wheel drive so with respect to new york law you can look in history custom and usage but it must be so crystal clear it is crystal clear but in favor of fellow motor sports and at best practice has only been able to try and dredge up ambiguity about that and that when the issue that is now before this court your honor i think the best sign that this issue was properly preserved is the district court's own ruling at page twenty thirty of the record on appeal the district court quote found the license agreement to be ambiguous and thrust the license agreement is a question for the trier of fact this court has hold has held multiple times that notice is the touchstone of issue preservation obviously the district court was on notice it considered the argument and rejected it and we are now appealing the denial of the rule fifty the reason it's not waived or forfeited counsel also brought up the invited error doctrine contract was ambiguous instead h n h was the first party to present its case at trial and it led off with evidence that the contract was ambiguous only later did it  reverse course and suddenly claim that the contract was unambiguous in this case we were not the first party to put on evidence of ambiguity felt was and we simply responded we played the field that the district court created when  declared the contract and the us and sent it to a jury once that determination was made we simply had to litigate our case the best way that we could this was after pressing repeatedly that the contract was unambiguous and favored our position and for that reason finally i think it's telling that after twenty minutes of the podium council did not respond to number two a number of the major points that we've brought up that point out the flaws in fell's interpretation after twenty minutes at the podium that was never any mention of the with paragraph two of the agreement which excludes liquid fuel powered products like the next row from consideration council also said that the is meant to refer to the line up not to the stampede but that makes no sense wrong for two reasons one it's a textual this does not say the stampede line it says the stampede to it's important think about the context in which this agreement came about this deal is about the father who takes his son into a hobb store to buy a really cool radio controlled truck the ones that he's going to want to buy for that kid are the two hundred dollar options the low end options and the stampede he's not going to buy the four hundred dollar for buy for v for buy for those products or her different market there are for serious hobbyists who take this very seriously the entry level customers going to buy the stampede that's what this deal is about it's about giving him the option to buy the stampede or if they're really into monster clear they there may be ok is a cinema saying we're doing it i'm just trying to play around in my head to make sure i'm understanding in the midst of all the briefing kind of where this where  here's how to make it simple chief judge to what we were specked the definite article we were specter graph to we were spec common sense sell that ignores the definite article contradicts paragraph two and defies common sense for that reason we would ask for sale all right thank you