honor i can't tell if the comment about the potential for many questions is a threat or an encouragement but either way good morning or honors may please the court my name is catherine wyler as i said i represented c h in this appeal at this time i asked the court reserve the parties unambiguous agreement to which i will be referring as a hello way one i hope that's not too cumbersome when we say hello a we need letter of agreement so away one is the editor contrary to her rooms excellent not everyone is an acronym so i try to avoid them in th situation they sing appropriate elway one to find the scope of the services that and see each hired e s p to complete it's in the contract that's the scope of the parties agreement there is no role no world contract beside that and that included included within the l o a one as exhibit a so exhibit a clarifies here's the scope of work for this specific contract that we will be undertaking for you when within exhibit a i could walk the court through every paragraph and sure the court would prefer additional services section to which the court is referring identifies a number of services which the parties may or may not agree to and this is included in the contract separate and apart from the scope of work that's what becomes crucial here the language of the additional services paragraph states clients may choose to do a variety of additional contract for a variety of additional services and examples quote examples of the additional services understanding of the hospital here is why this paragraph paragraph fire scuse me section section five is very equivocal it states may repeatedly there is a reason for that in the reason is because you look at the scope of work what exactly is the scope of work for wish the parties contracted and in the scope of work it's states paragraph eight create service acquisition strategy quote separate equipment into strategic groupings for the purpose of creating a did in this case there's another sentence after that identify qualified supplier participants per equipment category comma and conduct line item bid process a completely agree with you your honor that the st sentence that identifies a competitive market driven option talks about creating one that's not an r f p that's the creation of the concept and particularly the paperwork we compile all of the necessary information for the purpose of creating a market driven auction absolutely agree the nd sentence is what changes the equation that's what the circuit court did not discuss that however is crucial to end sieges understanding of exactly what the scope of work agreed to in this written agreement entailed identify qualified supplier participants and then tat line item before any of the written agreements were conversations began with yes people who go here who negotiated the subjects of the capital contribution right this comes back to the courts question about all of this for ten thousand dollars was to outsource all of their put maintenance services at the time before the contract was entered into for the last several years or so just money in the record has there been an effort by the hospital and their existing working group to try to the record the hospital was at a point where they had agreed ok all of this orange scale equipment these are the large machines the m r i machines radiology should be brought under a single umbrella instead of just handled by each department and this working group had already on the table proposals from two different vendors and said xo six is the company that ultimately and c h elected to contract with those proposals were on the table in part because they're working relationships between the hospital and those pliers and actually had recently in terms of immediately before their agreement with e s p n two thousand and fourteen a had recently outsourced another substantial contract man maintenance outsourcing answered xo had indicated if you go ahead with us on an equipment maintenance contract we will make this four hundred thousand dollars capital contribution all that happened before was ever any introduction to anyone affiliated with us in this case and that's important for two reasons one your honor it answers your question about the four one hundred thousand dollars capital contribution i was already on the table and it was on the table because of this working group that had already interacted paid to give them an answer of whether or not they should do an r f p they knew the answer to that they had been doing that they had a working group that already had proposals on the table but n c h understood and this is what m testified to what they understood yes he could do is we're going to ice the process of an r f p and potentially depending on yes these relationships in that space negotiate a better deal for them that was the whole point they didn't need to spend ten thousand dollars to have someone come in and tell them you know you really should do an r f p they were doing that this was not a long term project either this was intended to be completed this concept of actually to two different time periods i think that your honour's inquiring about the st the hard e mail was back in july so mr higgins who comes in as an interim director of supply which is not the large equipped a machine since all the small p they may have had a personal relationship it may just have been i know about the company what have you either way mr kagan suggested to ms lou hey i think these guys can come in and help professionalize this process make it move faster i know there's a working group there are e mails of record that indicate the working group was about to make a final decision on to whom to award this contract and mr higgins came in and said i think i can guarantee i think i can get you some additional savings at the that point there were a few and moving forward quickly and this is where paragraph a becomes crucial because ms lou testified i understood from the scope of work to this contract that we were agreeing that yes he was going to do an r f p as part of that process mr  the hospital compiling a list of hospital equipment and it was around that time that mr vince or her and mr higgins had these two conversations that are described in the testimony with  that i just assume that is what you were inquiring about what about these e mails the e mail from mr herky to mr higgins had to do with that initial meeting which was i believe very early july and that was when mr vinson or was onsite do this separation of equipment into strategic or beings compile a list of what equipment we have and then we would be moving forward with the r f p and the tester do e mail is entirely consistent with that understanding yes please move forward with the r f p we need to this done the nd you know you were firing about just the senate is actually quite a bit later and you have to keep in mind that this was quite a compressed timeline so as this process is moving forward you have july where there compiling this list of equipment and then you e mail between ms lu and mr higgins it's prompted by and e mail from deedee lewis who is an employee of e s p who very late in late september after the hospital had elected to move forward with a provision you know we want and she references that e s p to ms lewis references that yes he has been promised payment of ten percent of all savings over the course of the life of this new five year contract  lou testified i don't know what ms lewis is talking about in this e mail so she e mailed mr higgens initially actually i think there's a phone call and then later there's a mail asking mr higgins you know anything about th mr higgens testified yeah i said that that's what we would do when we agree to an r f p ms lu says i don't know anything about this agreement there can't be an oral contract we can't put that through in the system there's no physical way to do it we can't even process a payment in that situation we understood from the language of paragraph eight of the scope of work of a way one that yes he was going to do an r f p and after that anything else they  wanted to negotiate with us we could talk to them about it but frankly we weren't interested in those additional services that mr anderson a little confused so what you're arguing is that even though our of peter's not appear anywhere the scope of work that th know my argument and explanation is when you read our we won the scope of work which is attached as exhibit a to l away one that's what defines the party's agreement and paragraph eight identifies we would proceed services paragraph or season section which is section five and again section five simply highlights the missive thinks we may if we decide to contract for these things we may move forward with these that brings  recitation and i apologize for that brings us back to the legal issues that the circuit court eroni asli decided number one this wouldn't contract away one is what governs the relationship between the parties and when you read a little way one it's unambiguous paragraph eight of the scope of work identifies a line item big process which is this auction that day that yes he conducted and the contract  a one includes a provision in paragraph twelve that that identifies that this is the entire agreement of the parties that means that this is the entire agreement of the parties and there can be no additional oral agreement adding services that are potentially referenced in this contract in l a way one additional services that they may or may not undertake they can speak without a written agreement that amends the parties contract that did not happen here because it did not happen here there can you know finding of don't roll contract the circuit court misunderstood that straightforward proposition of law decided that there was a world contract after disregarding this written contract and that was an error even if this court were to look at these provisions and say you know as as you just pointed out just startling you know out there the paragraph eight in the scope of work does not use the words or suggests quite clearly that n c each understood this is what the contract meant there was no meeting of the minds for some additional services outside of that provision of work conduct a line item bid process and as i mentioned just a slab and there wouldn't be because there was no need for someone to come in and consult and tell and c h that they should go through the process of an r f p they already knew that that's what they thought they were getting here and there is no testimony in the record that disputes that without any evidence to the contrary there can be no oral contract an oral contract out was risky an oral contract in fact which is what the circuit court found here functions in the same way as a written contract there needs to be an offer acceptance consideration a meeting of the minds there was no meeting of the minds here the testimony makes that clear and without a meeting of the minds there can be no whorl contract even separate and apart from the trial court's determinations about the existence of an oral contract even beyond that the trial court father ere heard in analyzing damages in this case when the trial court look damages here the trial court consider the documents that the parties agreed should be were admissible there was no statement by the parties that all these documents should be taken at face value that the documents should be interpreted exclusively identify cost and savings projections now this document in relation to exhibit seventy nine these rocks through a number of calculations that were made based on the initial work that mr bin  opportunity and certainly did at way at trial argue about whether or not these calculations were correct now i realize this gets a little bit confusing but the reason i want to highlight for this for the court is the number that mr venter testified about is what everyone was seventeen as if it were a stack number and then do a mathematical calculation subtracting the invoice numbers the problem is there is nothing in the record that establishes that that baseline number would have remained static and on the contrary i believe now if this isn't accurate i apologize to the court but i believe there is testimony of record there certainly argument that that number absolutely can change depending on what happens to a quote you know what if a piece of it a large piece of equipment starts on fire is is is changed out if a warranty is extended but there are myriad variables involved in the calculation of the number and there is no testimony about what that number properly would have ben  that would not be within the knowledge or understanding of the lead witness i don't have i don't know any of that information i would suggest that perhaps the court doesn't either you don't have that kind of expertise so the circuit court properly decided that mr windsor would not be allowed to testify about what the baseline properly would be in twenty million one hundred and sixty two thousand and seventeen the problem then is without that information there is not anything in the record that fixes with the appropriate damages would be in this case there is nothing but speculation based on this original baseline and that is where the circuit courts comes into play in calculating the damages instead of accepting that the only year for which mr vinson was allowed to testify had about damages that calculation based on information in exhibit eighty one and that was an error the circuit court has no obligation to do that the burden is on the plaintiff the plate and the plaintiffs or did not satisfy that burden and because it could not satisfy that burden they are not entitled to those damages that is why if this court finds that there was appropriately in the world a finding of an oral contract in this case at a minimum this he should be remanded for a calculation of damages based only on the evidence of record which speed only to and fifteen for the purposes of a calculation of damages unless the court has further questions i'll reserve the remaining time i have to do it maybe for about a think here assessment and just to take a step back about what northwest is getting for ten thousand dollars in that initial assessment the evidence in the record shows that when jack higgins was hired on to replace the last director of supply chain he found that the northwest iowa medical equipment were handled on a department by partner basis so cardiology was handling its own equipment maintenance needs radiology was handling its own equipment needs etc he gives testified that there were some efforts internally to try to consolidate the equipment maintenance needs of the hospital because it was recognized that that would be a way that potentially save money but there was no person who had a central responsibility for organizing all that information so each of the department heads were engaged in their own efforts to try to consolidate the equipment maintenance so just to jump ahead council's representation that there was an offer on the table from sid x so to pay the hospital four hundred thousand dollars if they consolidate with that consolidated equipment maintenance with sid xo is simply not true and not supported by the evidence there had been discussion it's about potentially consolidating acquitted maybe it's with said that so but it wasn't on a hospital wide basis it was not a department basis and there was no discussion of four hundred thousand dollars in the records higher t s p becoming so setting that aside the agreement as the court correctly found it is not ambiguous specifically provide request for proposal that gets sent out to the industry vendors did was not part of the initial assessment there's extensive testimony about after the initial assessment is complete and what is the hospital getting an initial assessment this essentially inventorying the entire universe of northwest iowa medical equipment these are hundreds of pieces of equipment on a line by line basis so what they are how old the equipment is where the equipment is on their existing warranty a lot of this is a bio metal of medical equipment needs to be serviced on a regular basis so a lot of the pieces of equipment are already under service contracts which may be expiring expiring for another year or two all of that has to be charted out and scheduled in a way so that if the hospital wants to move forward with phase two e s p has the wherewithal to package up that information in a way where the industry all had a discussion about whether to move forward with the additional services the additional service would be actually bringing the r f p to market conducting a reverse option by having industry vendors bid on the work and then working with yes people working with northwest to select the best bidder negotiating that contract and then seeing it through through execution and performance it's also the court correctly found that during these discussions on this or and the representatives of northwest discussed how the hospital can pay for these services the l o a which was signed so it's essentially paid for by the vendors another option is for the hospital to pay e s p based on a percentage of the savings that the hospital realizes as a result of the of the contract that they enter with th the evidence at trial showed that the hospital selected the payment option involving paying a percentage of the savings realized under the winning bidders contract over the life over the life of that contract and it's the court also found that it was undisputed that category that was to be ten per cent of the savings realized as a result of the way there's contract there's so there was an offer to perform the additional services there was e s p s acceptance of performing those additional services for a fee based on ten percent of the savings the hospital would realise there's no dispute that d s p conducted sent out the r f p to i believe six or eight different industry vendors yes he conducted three separate rounds of options it's in the contract negotiations and pretty into a binding long term agreement the request of the north west e s p it went back to the industry players to try to get a better deal including suggesting to them that they offer a cash incentive payment in order to win  contract that is where the four hundred thousand dollars cash incentive pain came from because peter vince or went to the to the final ob bidders who made made it through the st two rounds and said put this is over the over the finish line you're going to need to sweeten the deal and the uncontested testimony is in the final round of auction sit back so we came to that auction with the poster sized check for four hundred thousand dollars payable to the hospital and that's what sealed the deal and the reason they did that is because peter vince or ask them to sweeten the deal sweet the offer in order to solidify them winning the contract and that's exactly what happened and that is what the court found and the manifest weight of the evidence words that finding the council's argument that the integration clause in the letter of agreement in the eight precluded any oral contract for additional a yellow ways specifically provides that the parties could in would negotiate terms for the additional services that work outside specifically outside the scope of the l way so the integration clause in the l a way does not in any way preclude the court from finding that the parties entered into a separate agreement for the performance of the additional services for a fee equal to ten percent of the savings realized by og is incorrect because this is where i will cross appeal comes into play so one thing we want to make clear to the court is exhibit eighty one i was prepared following this rd round of the auctions where northwest was considering entering into a contract with sid x l to consolidate its quick meet me and scott's prior to entering that contract northwest requested e s p and sit back so to project how much savings northwest could anticipate realizing if they went through with this attack so contract and the result that request before they entered into the set x so contract so the issue arises that when the parties agree that they're going to pay e s p if equal to ten percent of the savings the question is the savings compared to what and the answer to that question as demonstrated by the evidence in the record is that it's that it's the amount of money e s p i'm spending under this effect so contract against what they were spending before this attack so contrast so that baseline wouldn't change and in exhibit eighty one which was provided by of the over the five year term of the contract against what they were paying in two thousand and fourteen before they entered that contract and based upon those representations northwest entered the contract with sid x l so exhibit eighty one dollars sets forth with the expectations of the parties are that these savings would be measured by comparing what the hospital is paying under this attack so contract compared to what the hospital is paying for this event so contract now there was some testimony at trial about whether the hospital's acquit meant maintenance costs would have stayed the same after two thousand and fourteen and including an inflationary factor into the baseline so that it increased each year based on some random inflationary factor that we would apply but he said he didn't yes he didn't do that because it wasn't the party's agreement and you can if there are any ambiguity about that exhibit eighty one in the column i'm sorry in the row that describes the our projection to northwest in order to show them what it could expect to save and that's what we're that's how we're calculating our fee because that's what we represented to them we would do and so we're going to pay a ten percent of the savings against what we were spending before we entered this effects of contract and instead of calculating vs piece feed based upon the projected amounts that the hospital was projected savings in their budgets for the following year or so north so v s p did what we normally take about three or four months in the initial assessment condense it down to about six weeks and then in the  e to take what would normally take about six months and condense it into two months so they were working so fast and had all of their manpower dedicated to this project to meet their clients expectations simply finding that there's ample evidence in the record that this is what the parties agreed to and we did point to it exhibit eighty one dollars which was the inducing for northwest to enter the success of contract and there the savings calculated using the two thousand and fourteen baseline consistently along that the length of the contract and again that's to the benefit of northwest where is changing the baseline work to its detriment for the reasons we industry standards in terms of how to calculate the feed insert testified that this is just this is how we do it this is what we were what we represented to the northwest before they entered into the sadat so contract that we would measure the savings based upon what you were spending now before you entered the contract not to try to figure out what you might have spent next year after your pension the contract so there were there's nothing expert about that it's just the way th pincers testimony is expert testimony and even if the court doesn't find it the parties agreed to use the baseline as the as as the basis for calculating the savings in every year of the contract the court can still come to the same conclusion that we're asking for because we agreed that absent evidence in the record of the actual amounts the hospital paid so under the contract it would be reasonable for the court to use exhibit e r calculate the damages because one it's the basis of the party's expectations two hours a lot of testimony about what went into t so contract as illustrated in exhibit eighty one dollars rather than use that let's go to exhibit ninety one dollars which summarizes the amounts that northwest actually paid to sit at so under this attack so contract and why if it's within your authority to do it here i think it's very simple math if you adopt the exhibit one is a pay as being reflective of the party's agreement then or you could include the four hundred thousand dollars incentive payment now you'll recall the northwest was very critical to them to complete this process before the end of their fiscal year they wanted  benefit on their books and that four hundred thousand dollars that peter insert convinces neck so to put on the table was very attractive to northwest because that money would come in now and be reflected in this year's  ks so that that was a win that e s p n got for the hospital and should rightfully be included in the amount of good quick macaw maintenance cost savings that the hospital realized so and adopt the calculation proposed by yes p which reflects the actual amount that northwest saved on to the subject so contract and the actual i promise i will keep my rebuttal sure and i'd like to start justice how do i know with your question about how how did you even get into this position how do you not have a written contract in this type of situation for this amount of money over this period of time and that's exactly actually mr vincent conceded the tippit in a country trapped like this absolutely would be in writing ms lewinsky talked about how and sutures and even have a way to process payment on an invoice in this type of situation without a written contract the testimony demonstrates this was gobsmacked by this claim because this was not their understanding they thought everything was in a written agreement and they would never ever conceded that there existed some sort of oral agreement floating around in the understanding of in c h which comes thanks to this idea of no meeting of the minds if the court even has to get to the point of evaluating whether there is an world contract in this case as counsel just conceded the parties now i realize th courteous the parties interpret elo way one differently but they neither party thinks that document is ambiguous both sides think it clearly lays out exactly what the scope of work to be performed was in this case and hasn't said and as you've heard me say with nauseatingly and today that included an r f p and furthermore this is where l o way too becomes important to the court's analysis it's exactly the point that you were raising your honor because there was a submission all they propose written contract that would have formally identified all of this agreement it's in the proposed to and see each review that documents if you know what we're not interested these are the services that we want you to late in the trial there was no stipulation on that document everything through to consult about its contents is accurate but i just don't want there to be any confusion regarding stipulation on that but in terms of the actual baseline of course the baseline would change the baseline the number from a snapshot in time in two thousand and fourteen when there was an analysis of here's the hospital spend on equipment maintenance that necessarily is going to change over time you can just use that one number and calculate  damages where you're estimated savings over the life of a five year contract that's what the trial court decided in the trial court made that decision correctly the problem with the trial court's ruling is that instead of then finding there's nothing else to support a way to make this calculation the trial court reached and try to find a way to make a calculation and as you suggested your honor how are you supposed to make that calculation it's not in the record you can't make that calculation now it's too late finally as to the four hundred thousand dollars there is it is certainly not undisputed in the record that that four hundred thousand dollars resulted for mr vinson to go shooting on the contrary there is testimony from mrs lou there's testimony from sir herky and there is evidence in for northwest e s p ten percent of the savings realize that so that so contract the question arises the savings compared to what he prepared along with sadat so exhibit eighty one dollars which illustrated to northwest before they entered into the subject so contract calculated by comparing what yes what northwest was standing under the subject so contract compared to what they were spending before the subjects of contract theoretically if because of inflation and again he testified we could b s p could have justifiably increased the baseline by some inflationary factor but they didn't do it because that's not what they agreed to and that's not what they represented the parties agreement and the parties expectations and they're not applying any kind of speculative inflationary percentage to increase the baseline we're sticking with the one thing we know for sure to the penny which is what the hospital spending before the contract st says the other thing we know to the penny which is what the with the hospital spending under the subject so contract lastly i wanted to address the issue of the four hundred thousand dollars there the rd round it was at northwest suggestion to peter vince or to go back to the debaters and see if you can get him to sweeten the deal if the four hundred thousand dollars had been on the table before