purpose of contract interpretation but they're all the the surface penetration is all on meds as property that's correct your honor so the purpose of contract interpretation is discern the intent of the parties and his counter claim that was not present in the original draft of the document specifically the subsurface easement limitation stated that the eclipse and use rights can only be used conjunction with drilling on the man's eye wells and for no other purposes or purposes whatsoever so the plain language of the of the position that that did not give eclipse the right to drill for the j m w wills or that were all we were looking at would that give them the right to drill so that's a good question i think with the benefit of hindsight the way that the law has come out on this issue  easement well you say it's not clear but if we're talking about the same language where you have the rights to drill produce collect store right to transport from across and through the lands there's no subdivision of the meds the a property there is there that's correct your honor there's no there's no separation between the strata but that's why the eclipse and he's we're looking at airfares no there's no there's no separation either way you to revert italy or horizontally that's correct right the lease covers a the entire hundred twenty eight acres right that's correct your honor and so i think the issue was at the time there had been landowners who did have been disputing whether that's correct or not whether a conventional oil and gas lease that predated that th revolution would have covered the deep wells and so eclipse entity actually had they had other amendments where they had included a specific subsurface easement to to allow them to do deep wells to be very specific like this subsurface says as to all debts and all formations and so they were trying to clarify what their rights were but in order to clarify their rights mr mads i says i'm going to include this limitation here that says you can only use this for mad size wells so part of the reason the eclipse entities have been able to give a consistent explanation for the subsurface unit limitation is that they've given inconsistent explanations as to what the subsurface ian was even for in the first place and the first i thought it was for allowing eclipse to commit other people to drill through the property  was there are a couple problems with that explanation in one of the biggest ones is that it's there's nothing in the subsurface easement that references you know back drilling it's just it's just general the other issue is that the air their support for this comes from evidence that's outside the record they had af t that they had submitted later in the case not in connection with the motion to dismiss that they claimed supported this back to interpretation so the other issue is this was this was disposed of on a motion to dismiss so judge frost  interpretations their original interpretation an explanation for the subsurface easement what is that was that it was entirely unnecessary the first motion to dismiss in this case said four times that it was an i said a necessary agreement it was duplicative of the lease amendment and it was just effectively mistake well then they came in the nature of their explanation the back ruling as i mentioned back to an explanation has some serious issues well but if we if we blow off or don't agree with the the back drilling etc explanation we're left with the original lease which at least as were discussed some of us seems to permit them to do everything they want to do then they bring this subsurface easement and in effect by trying to have both a belt and suspenders you argue that they have have undermined or abrogated their original pants and the question to me is what is there in the subsurface easement vitiate that says that it vitiates no other words to take an example if i already have the right to buy all of the cars on your lot and then we enter into another demonstrates what what seeking clarity can be a good thing in that that's let's say mr cater my coke what you called is the cut the phrase in the subsurface easement this grant contains all of the agreements between the parties with between the parties which is kind of what you would ideally want if that's what you were if you for mr meds he is point of view if you're clarifying that you would think meds he is lawyer would want something like that in there well well that's true your are it could have been drafted differently but it is related to the same subject matter and that's why it's important because there's no question that police admit related to the issue of drilling and so what clips essentially did is they paid a price for clarification and i give you example let's say co counsel here wanted to park his cars on my property and his original agreement just said he could park a motor vehicles there and he comes back later and he decides he wants to park an r v and we're not sure whether that's really a motor vehicle or not but instead of fighting about it he just enters into easement that shows that that's what they thought that the agreement did that's what they thought the subsurface easement did is it prevented them from doing that john those less wells that's why they came back and tried to offer and tried to try to propose a subset of  so i know that the court is already familiar with the facts of this case but there are a few facts that i do want to touch on very briefly the first is that the lease was entered into in two thousand and six which is before the deep well drilling revolution in ohio the second is that the amendment was entered into in two thousand and thirteen and at the time the clips in it is didn't include a subsurface even a drilling provision like they had and other amendments so that's why they came back and two thousand and fourteen got the subsurface easement and i think the trial court was a little concerned as to why would the eclipse entities give up the right to drill the john mills west wells it seems like they did that there would be a reason for doing that you know from your interpretation they gave up the right to drill anything anything else anywhere less wells so they didn't even think they were going to be drilling these wells and when they change their mind later they wanted to come back and change that i think that's the issue is that is that explains why they would be willing to cede for clarification the right to drill exceed me they'd be willing to see to see the right to drill wells they didn't expect to have to drill we've also submitted some internal communications that show the eclipse entities as i mentioned understood that the subsurface easement preclude them from joining the john those wes wells that they were trying to find a way around it and  actually considered drilling the wells from a different pad site the district judge wouldn't consider those internal communications because they're outside the four corners well he that's correct in he the district judge was unwilling to consider extra any extr may please the court steve silverman on behalf of the clip sanity's the apologies in this matter your honor contrary to mr mad size assertion eclipse right to drill the john mills west so to be explicitly clear the lease grants eclipse the rights to transport ruling gas quote from the subject land and other lands and quote from across and through close quote the property the lease also gives eclipse the right to quote possess use and occupy so much of said promise as is necessary inconvenient to conduct its oil and gas related activities including the right to install structures required to produce store and transport when the gas and their constituents so those rights are clearly granted in the leaks judge frost in his motion to dismiss properly concluded that the and i quote the plain language further grants eclipse broad rights to take any action necessary to achieve this purpose which includes the right to drill well bores through the surface of the mads i property because judge frost concluded that eclipse rights were clearly granted by the lease he held that neither the easement agreement nor the reasons for which eclipse sought that agreement could be used to create an ambiguity in the lease and other words the document spoke for itself within the four corners to use judge frost's words the easement agreement quote cannot alter the an ambiguous language of the lease but that's exactly what mr mads i is trying to do by arguing that the easement agreement somehow modifies or supplants the lease this is not the case because the easement agreement does not indicate clear intent of the parties to do so again in his motion to dismiss judge frost side of the columbia gas transmission case a case decided by the northern district of ohio affirmed by this court with facts extremely similar to those of this case and in that case the court said a modification cannot be presumed it must be clearly manifested by the action of both parties to the contract so for the ease agreement to have modified billie's that easement agreement must clearly and explicitly manifest the parties intention to do so and i will submit it in no way does your honor for instance that easement agreement doesn't even mention the lease and this case we have three operative documents we have the season agreement we have the oil and gas lease and we have an amendment a third document that amends the lease the amendment specifically lease specifically says we're modifying it but that doesn't happen there's not even amended what's the timeframe when the amended lease come before or after the subsurface agreement it comes before your honor the lease amended lease sub an oil and gas leases a conveyance it conveys a fetus simple determinable interest in the lessees mineral rights to the last or and this case mr madsen granted that fee simple interest in the clips can firstly an easement is not a conveyance but rather grants far less rights as judge frost noted under the black's law definition and quote an easement does not give the holder the right to possess take from improved or so the land but an easement for so far in this context the easement does not give the grantee eclipse the right to take from the property so it doesn't give eclipse the right to extract those metals in fact and this is critical the easement agreement expressly distinguishes itself from the oil and gas leases conveyance of minerals and its very language it says and this is page twenty three zero seven of the record where judge frost notes this quote this agreement is a subsurface easement and right of way only and in no way grants or conveys any part of the underlying fees simple a state of any lands owned by grant tour in other words this is an easement agreement and we're not conveying anything in this easement agreement so  can subvert or supplant the rights granted in the lease i mean the the troublesome us in this regard if any is that then the so called integration clause says contains all all of the agreements agreements between the parties with respect to the subject matter here of which at least that's us on the hunt for what is the subject matter here of if you had not put that into it or they had not whoever put it into it we'd have a little easier time because we wouldn't even have to worry about that limited to the subject matter of the rights granted by the easement well which is the way those are fewer and so you have to mean it the document itself easement agreement itself and as to any other evidence that mr mad size counsel would like to offer here none of that evidence is part of the record in this case and the reason for that is because judge frost considered a motion to dismiss where these this evidence was not before him because it wasn't part of the pleadings at that stage only later when judge who took over for judge frost in this case granted leave to amend did the did mr mads i tried to inject these additional facts so those additional facts are not even before this court well you say they're not part of the record that is were they not in fact law with the district court under mario what happened was judge frost gave mr mads leave to amend his counter claim a second time dismissed by judge frost and then added these additional facts to support a judge marley then said time out in response to our motion to strike he granted that and said that's beyond the scope of what i gave you leave to a not in motion to strike so they are physically available but the they were not before the judge either judge for that matter so none of those facts are before this court or properly before this court so when we get to the intent or motivation of the parties for what they wanted to do with which which agreement that likewise is not before the court this court can easily affirm this case by looking at the wording of the documents before it the three documents the lease oil and gas lease the amendment their two and the separate distinct easement agreement now i'll touch on very briefly the coal affidavit claim and the bad faith claim your honor which mr madsen counsel did not address the coauthor david claim is really an easy one there are several reasons for rejecting it but i'll touch on the most important one and that is mr mads i can't argue with clean hands that we somehow that eclipse somehow violated the lease because it did not appear in a sec it well the lease specifically says that under the amendment to the lease requires mr matt side to take such action as is necessary or convenient to carry out the provisions of the lease so he was required to sign the second affidavit that's what judge marbury found in granting them motion for summary judgment on this issue and yet so on one hand he'd like to the breach by refusing to sign a second i'm sorry excuse me so he should not be allowed to argue on one hand breaching the lease by refusing to sign on the co affidavit and then claim that eclipses failure to obtain that second co affidavit somehow harms him and that's exactly what the district court found that he was precluded from doing so lastly on the bad faith claim your cannot bring a standalone claim for bad faith without an accompanying breach of contract there's one exception to that under the seventy seven off case and that's if the contract is silent on the matter on which the bad faith claim is premised and here that exception does not apply since the oil and gas at least speaks to this issue it explicitly says that eclipse quote may decline to drill a wells at any time so subsumed within that inherent in that provision rather is eclipse's right to stop or de lay and drilling a well that it has begun moreover eclipse has presented no evidence eclipse has presented evidence to justify why it stopped drilling this well for business reasons both because of the drop of commodity prices and because of geological operational business reasons and had no other evidence to support his bad faith claim other than mere supposition and conjecture and he admits that in his deposition testimony may please the court i'm here to very briefly explain why x t o energy should not be here does not have a lease with mr moggs i x t who does not have an interest in mr moggs as property the only was joined in this case is because it is a party to a pooling agreement which is in effect different lessees will combine their leases for economies of scale purposes but more importantly the second amended complaint after judge margulies struck the claims that mr moggs i had attempted to assert in addition to what the court actually gave leave to assert did not have any claims whatsoever against exco and so frankly i don't know that there's a dispute on this but if the court were to affirm judge frost's march two thousand and sixteen decision that i think it's on the spirit is that there are no remaining claims against and that summary judgment for x to you know which judge marley granted should be summarily affirmed and i would request that the court do the same  asserted against him so it's correct that we're not trying to appeal the summary judgment ground against him because there were no claims of the time or a couple things that mr silverman said that i think that are important i want to clear up he indicated that there was no evidence before the record or in the record relating to the issue of intent and i think there's one something that's very important here that we're clear on the john those west subsurface unit the easement that that eclipse came back and gave to us was part of every filing in the in this case it was part of the counterclaim was part of the medicare acclaim as part of the second about it carol claim and mr summers just up here and he didn't explain what that agreement that is an agreement that they specifically gave to us so they could drill the john those west wells and we've said it in our brief several times they can provide an explanation for this and has been part of eclipse wasn't able to explain that either and that's that's something that's been before the court the whole time is what what was the what were the parties trying to prevent the eclipse entities for doing and they haven't provide an explanation for that explanation is we were trying to  were trying to prevent anything that's why i said if you would put a limitation to an external document it would be a stronger evidence of that well i think if there is some dispute or if there's some confusion well that's another reason for hershel as well because this is a motion to dismiss if there's a dispute we need to be developed more facts that is the dispute about the meaning of the subsurface easement or as to the meaning of the lease and you can have all sorts of arguments about what the subsurface ea if there's no dispute that it doesn't alter the lease then you're out of luck of the parties intended for it to alter the lease that i think that's something that's important and that's something that we would be able to present evidence on if if it's not clear what the integration clause that if it's not one hundred percent clear that the integration clause was was intended to preempt at least an amendment well then that's then that's something that we get to go forward on this is a motion to dismiss every inference is supposed to be resolved in our favor so there are couple other things as well  silverman was discussing the fact that judge marley struck our claims and we filed our second in a complaint he did not strike the factual allegations from those claims he just struck the legal claims and he did it under the law the case doctrine but ultimately this court is supposed to look at wh brief is that subject to do never review because it's a legal issue it's a legal issue of whether our second the matter counterclaim with all the additional facts and they're talking about eclipses intent and the other amendments that they had they had subsurface easements that's a legal issue and that's something that should be reviewed