of two common words anything and all if i may let me put that issue in factual context in two thousand and sixteen one cup gamble the appellant and gordon ranch the ap another half a million acres of grazing right land the sale was scheduled to close in january of two thousand and seventeen but in december gordon ranch asked for a three month extension of the closing recognizing that a delay in the closing would entail certain risks the parties negotiated an amendment to the purchase agreement it granted an extension of the closing until april for three months but required additional earnest money and provided as follows notwithstanding anything to the contrary in the agreement the earnest money has increased by the additional earnest money shall be nonrefundable under all circumstances other than a default by seller so do you contend that the amendment change that scheme did not change that scheme or is that well i contend that it is an ambiguous and that it did change the scheme of the original purchase agreement so so you're saying that the anything in the all is on ambiguous i am and as i understand it the other party has also said it's an ambiguous but it goes a different way than you do yes that's exactly correct history court says it's unambiguous and they did win a different way than you did seems to me that and i'm just following up on my colleague's question if this is ambiguous then at that point it seems to me that's what the district court did district court said this is ambiguous and then went through if you will other information in the file that they had and looked at it and then after reviewing all of that information then came up with what they thought was reasonable result based on honour's believe that the language is ambiguous then it's subject to interpretation by pearl evidence under nevada contract law but i do stand by the proposition that  these kind of damages are not allowed under a hundred about a law because they are well i don't want to say the bad phrase but that they are language that they are damages that result in a penalty yes yes so there is a body of case law in nevada as there is i think in almost every state that says that liquid damages are presumed to be liquidated damages are presumed to be enforceable but if they are so disproportionate they can be deemed a penalty and penalties are uninformed civil and so and they even in that situation one would given the nevada law already mand to let the district court determine if they are disproportionately or not well i think you don't need to do so in this case because there is nevada supreme court law which i think is on point it's the mason case and the mason case stands for this proposition when you're dealing with a real estate purchase contract it's virtually impossible to estimate what the actual damages are so the court in mason set up this test instead of trying to figure out what the actual damages might be we will compare earnest money the liquidated damages in this case to the purchase price and if that earnest money to purchase price comparison is not disproportionate  then it's not a penalty is that a question of law the i think there are no disputed facts on the point well but just a minute is that really a question of law or a question of fact the reason i ask you that question is this that in general before we will allow those kinds of damages in a contract we would suggest that those types of damages have to say i have some reasonable uplift ability in this particular case that they would be hard to measure that it's a reasonable estimate and we haven't talked about it anyplace else in the agreement as i understand nevada law so it seems to me that if i'm going to apply hide those provisions to this particular question i don't want to send that back for a hearing as to whether that's really appropriate well here's what i would suggest that mason teaches us it is not a pure question of law but the facts are undisputed because we know the elements of the mason test we know what the earnest money is we know what the total purchase price is therefore we know the percentage of the total purchase price that the earnest money represents and in this case it's less than eight percent in mason the court said ten percent is not  it's not disproportionate it's not a penalty and then the court was at pains to go through cases from all over the country that ranged from seven to sixteen percent where it had been held that that's not disproportionate so it mason says ten percent a ambiguous interpretation of the contract to keep the money yes or so let me ask you about the attorney's fees ok so supposedly there's an attorney's fees to the person that wins and your i think you saying you should just when right here we don't need to go back and you're both giving your therese and i and and the judge said well i'm not going to give you their i v attorneys fees right he did let's assume that the judge understands that the prevailing party does get attorney's fees but just says you know what you all just made a mess of this all right and you wasted all our time and if either of you wins here you know it's ok i'm going to let you win but don't get greedy here and you've wasted all our time and you could written a better contract and you could have you know we had to make all these arguments had to stand on my head i had to face to the west i had to do this that and the other and look at the damages and you're both sophisticated parties you could've done better i'm not going to give you their attorney's fees besides this if you get the file if you get the money back you should be happy and just so i can does the district court have the discretion to deny attorney's fees in this litigation or is it required to order them just because  fees i don't think the district court has discretion to ignore the contract provision in section nineteen of the original purchase agreement that attorneys fees go to the prevailing party so then  didn't include the gordon room which was the prevailing party perhaps well i think i'm i'm a trial judge i was a trial judge and i can see that how both of you as sophisticated parties could be kind of annoying in that you couldn't you know couldn't have done a better you draft con you know you have all this money it's a huge deal can't you do a more clear job of all of this i understand i don't think that's a reason to ignore a contract provision in that's not our argument so he's got to be all or nothing the only way that you get you know whoever wins gets the full amount and get all their attorney's fees to litigate this will know they get their reasonable attorney's fees and and it may be the judge jones had this in mind the argument of gordon ranch below was that they were entitled to a refund of the purchase money because according to them one cup gamble had to faulted the judge rejected that just shown said no one has defaulted here this is just a casualty event it's an act of nature and so are we bound by that no one has challenged that conclusion i would say this i mean it's to me and both of your arguments there's a little rough justice i think i think judge jones is supplying a little rough justice here my argument about attorney's fees is a different one my argument is if you want attorney's fees you must ask the district court specifically for them by motion that's what rule fifty four d says it says you must file a motion seeking attorneys fees and there's a body of case law repeatedly in this circuit that say things you just want to win here you want the money but you're not asking for attorney's fees not here i'm not entitled to ask for attorney's fees here if you rule in my favor that that the notwithstanding provision of the amendment governments that that's playing in an ambiguous then the whole question of whether kind of say to yourself that so you're going to want to probably save the rest of your time for rebuttal but it's like if you both argue for thirty you know if you both are going for thirteen or fifteen minutes how it's unambiguous and then it's it's almost like if he can both make credible arguments to that point is that maybe not ambiguous i don't think so i really do believe that the district court went far afield here when you have a provision that says notwithstanding anything to the contrary and the district court says no you have to call out the provision that you're meaning to amend by number that's just wrong i understand your argument about wrong but really it really seems a little heathy reading this amendment that what it really was intended to do was apply to this provision you think it amended and applied it does say with not withstanding  does say all but this is a pretty important provision and the matter may say ten percent and that argument better but i'm saying myself and i think the district court was really say you know that's pretty hard for me to say that is exactly what they meant the language says but i think it's ambiguous too bad to disregard and that no they didn't help would have been a lot easier to understand the district court's decision but don't you think it would be a lot easier if we'd say ok that's an ambiguous agreement send it back and let's have a let's have a trial and find out what the parties really mapped and then you can make your decision and make the attorneys fees would be a disservice is if i can read without question that the language you have in front of you of me is plain clear and unambiguous if i can't find that then at that point i say ambiguous can i make that determination on appeal you absolutely out anybody else telling me i can you absolutely can all there or i don't have to have it raised i can make this on appeal myself it's the novo review and therefore i can do this right you can and it seems to do exactly what the district court did though the district court didn't say that it did not in what i mean when i say it's a disservice to contract law and to contract lawyers but the concept of using a notwithstanding anything in the agreement to the contrary is a convention commonly used it means i don't have to call out the fact that there's an earnest money provision in section eight or section six or section nine or section fourteen anything means anything and  lawyers do this because they don't want to have to parse the agreement to make sure they've caught every place where it could be interpreted in a different way they do that kind of catchall phrasing all the time so that they can say anything to the contrary means anything no matter where it is no matter how many times it's repeated no matter what font it's in anything means anything and  after we hear from the other side if any of my colleagues have any questions all adulatory battle time all i'm going to reserve on that thank you thank you but you've made your argument very clearly is a summary of the four points that i hope to make then during my remarks first and foremost one cup out this court to go where no other court has gone they haven't offered a single case that says  breaching party like gordon ranch a non breaching party and under faulty party like order ranch most forfeit its earnest money deposit second to excess the contract says well from this perspective honor even if the contract were interpreted to say that which we disagree wholeheartedly i understand your argument but upon supposing you take their argument it is clear on an because the contract says you forfeit and now we have nevada law that's the only thing you got left and then the vattel law says you first must have a breach by the party that is for fitting the earnest money deposit and every other court of the nevada law would not be a pluggable without a breach correct your honor the mason versus behemoths case that he cited with approval says that liquidated damages and earnest money deposit returned th breach you look at the restatement on second on contract so what does that mean what that means is that your has to be some fault there has to be a breach there has to be a violent or otherwise the language of the contract is illegal under it nevada law yes your honor it acts as a penalty designed only to coerce a closure or performance to close and that's context and in that circumstance then it is an enforceable and so when you look at the argument that they made particularly in the repent you've got to make this particular clause be what then you have to take their interpretation of this particular clause and you have to find it an enforceable as a penalty just like this court did in re late fees this court in really late fee says even under the interpretation that was being proffered by the party if it is illegal and unenforceable then it cannot be applied as was sought to be interpreted though if i understand your argument your argument is even if they win that this is clear and unambiguous and they get the five million dollars out of the contract the contract would giving them the five million dollars would be an enforceable here because it is what contrary to nevada law is what as unenforceable as an unenforceable penalty that it violates the principle provision under be a non enforceable penalty if it's less than ten percent while the burden of proof doesn't ship to me to demonstrate the appropriateness of this liquidated damage until you first demonstrate a breach there has been no breach one cuts position over the ten percent doesn't even come scheme or is ambiguous no it did not change that scheme and so too did the district court in allow me to fully explain on this all right the risk of loss provision is found in paragraph fourteen under the purchase agreement it has two sentences two sentences to that paragraph the first sentence is plain simple in clear the risk of loss and damage belongs to the seller until the close plain pure and simple the second sentence is a subset of the first sentence one cup contends that there is somehow a modification or an amendment then to the second sentence but at least clear in unadulterated that you asked for more time so you put up more money right and so why isn't it possible that because you were asking for more time which puts them at more exposure for a casualty or something like that and the language that was used in that saying this is this is it why isn't it possible that that modified that and said now we have a new thing you're paying more money in the amendment go to the paragraph number five in the amendment and paragraph five in the amendment it could not be more clear in the amendment the parties expressly stated as consideration of the risk and cost seller will incur due to the extension of the closing and then it goes on into a ford then a opportunity then for the seller to sell cold cavil which was a valuable right in another self to be able to do then during this interim period of the close of the escrow and that was the consideration that the parties negotiated for as to the increased risk for the amount of time that was clear that was pressed and  but but you don't you don't really explain in that explanation which i've heard your side and i've now heard to address very well by both sides that notwithstanding language that coun us with the all language that counsel comes with to us with if in fact that was really what was supposed to be done that could have been written a lot better to me to indicate what you're suggesting it indicates well and then you go then to the pleadings where in fact that what we had alleged that they had admitted is that the language that they're referring to was offered by them there was no there was no negotiation usually in the language of who was offered to as really no substance here and less we're going to get to that language is ambiguous and construe the language then against them the language if it's clear and not ambiguous it's not going to change simply because of who offered it unless it's ambiguity then if it's sam big us then i'm going to construe it against them that's why i asked them why we shouldn't go back and have the district your arguments are best made in an ambiguous situation because then you can produce the evidence that they produced the language that they gave the language this is what you intended and then the district judge may come out the same way but at least he would have a hearing on what is an ambiguous i'm just trying to reflect there's the position that is being advocated by warren cupp assume that in fact it was ok to implicitly modify the risk of loss i it's not withstanding in the and all other provisions all other provisions that's not implicit when you get into their argument though that contends that it implicitly and was only designed to reduce sentence two of the risk of loss provision and they entirely ignore sentence number one sentence number one clearly and unequivocally places the risk of loss and damage on the seller you go to the subset and it only speaks to the risk of damage not loss damage caused by fire and casualty and then it created a three legged stool that three legged stool did not give them the independent right not to repair any damage that was caused in the interim by a fire or casualty it only gave them that right had the two options that were set forth in the second sentence of paragraph fourteen but when they kicked out one of those legs of that three legged stool their independent right not to repair damage collapsed and so even in that circumstance then which is exactly what the district court found was the internal logic of the way that this was a negotiated right that one right was dependent upon the other and that the other right did not exist i e if we did not have the right to be able to say too much damage too much loss then they did not have the right to choose not to repair the damage but the most important thing of this is that the loss is still there so what do we do with it turn each piece and you're running out of what we do with the attorneys pieces applied plain language written a better contract and here we are and here we are here where we were there and then if we send it back them or the minute they're again camp a district court say well i don't think either of you know you may be entitled to it but i'm not going to and i'm not going to give you any that would come in i'm going to give you a dollar and give you a dollar because so the question becomes is whether or not the court house the discretion court but the point i'm making is this with a de novo review the district court is not entitled to by late in essence the law the law says he was to look at the plain language of the contract language  apply plain language the plain language what's the amount can reflect your surety possible difficulty of the positions put forward and the parties response the parties conduct that led to the that that's correct your honor rule for four fifty the the issue concerning attorneys peace had been raised in the briefing why i'm not going to afford attorney species given his interpretation then of the well that seems obvious i don't know how much trial work he do would there's a lot of times the district  rulings in passing in their judgment in the court where you want to have this on appeal and you want to do something with them so you make the appropriate motions so that you get a man from the court if you don't make the motion then you lose your right to appeal by the motion requires or the rule fifty four requires unless there's a court order to the contrary right or unless the see any order there all i saw was all i saw was record respectfully your honor the record reflects the order the oral statement that he made offering that interpretation his written ruling that he made that determination and then the judgment by which that he said can still from that perspective there was a court order that said otherwise and so then the issue becomes is did the burden fall upon me to file a motion for reconsideration or a motion to  amend the judgment and respectfully i can't find any case law and i can't find any procedural provision that obligated me by which to do so and secondarily i do a lot of trial work and many times you take into account the person you are before and so that you can have concern as to whether or not that what you have already secured somehow may be taken away and well to whether or not that you may offend and so to the extent that you look at whether or not that you have an obligation by which to do so or as the district court said if you don't like my determination on the attorneys piece take it up on appeal which is respectfully our that's what we did well rightly i've seen a lot of those i don't know judge jones personally i know or have a relationship but i'm having a tough time why he wouldn't ask you to do all procedurally necessary to take an appeal rather than just take an appeal when you look at the supreme court and why that it has a for her own waiver rule the decisions from the supreme court expressly state that it is to allow the party below to offer all evidence necessary to the determination when you have a contract that is clear and unambiguous both sides agree it's clear and unambiguous what additional evidence did the court have need before it nothing and so to the extent that the whole purpose underlying the four or the waiver rule does not apply in this particular circumstance i still would like to reserve if possible i'll hear down just you're actually over time now so you both have gone overtime so in last in there any of my colleagues have any questions thank you and i think you both covered all of the issues thank you this matter will stand submitted thank you both for  i think you both gave helpful argument in this matter