good morning your honor as i would like to reserve some time for rebuttal and i'll attend to my own coffee he may it please the court in denying summary judgment to the association the district court correctly explained why this court should reinstate the jury's unanimous verdict for the morrises if i were to grant summary judgment the court explained the th circuit would reverse almost immediately i think the letter may have been a time to offer some type of conciliation or recognition of sensitivity to others religious beliefs the problem though is the summary judgment standard which requires the court construe the evidence and any reasonable inference that can be drawn from the evidence in the light most favorable to the plaintiff so the question is whether a jury could view that as evidence in a discriminatory intent and i just have to say i think somewhat problematic for different r statement that indicates a preference based on a protected or prohibited characteristic so under the language of the statute you're have viewed the letter as a statement indicating a preference for religion or preference for the non religious neighbors what the letter itself refer claim but nothing other claims no rhonda saying i think i think that i think the difficulty i mean i would certainly disagree that the jury's verdict wasn't sound with respect to the other claims but i think particularly with respect to the thirty six the force the acclaim looking at the letter the intent or the motivation of the homeowners association of the defendant is irrelevance with respect in case law that says that it doesn't have to jump off the page is just good a reason a reader and i think a reasonable reader reading and finally i am somewhat hesitant in bringing up the fact that some of our residents are non christians or another other faith and i don't even want to think of the problems that could bring up but the whole discussion is about the then not about the person or the fact that his christian is is a difference being made is a craft friends being expressed based on religion for religion against religion for not and here i think if you look at the case law in terms of of courts that have held an ordinary reader standard satisfied in the context of ray's force or sex or family status the language is is frankly much less  explicit then we have here with respect to pointing at the fact that some of our residents are non christians or of another faith and i don't want to even think of the problems that could bring up and that a reasonable person could read the letter exactly as the district court said its preference was but that isn't the legal standard the jury's seven unanimous members of the jury understood it as expressed and certainly i just don't think it can be said your honor which is what this court would have to rule that the letter could only only be read the other way especially with the explicit reference to non christians or members of another fit but but again we certainly don't rely only on the latter even if your honor set aside the latter altogether we have two other determinations two witnesses out of eighteen even if a score were to say that the district court didn't commit error and was within its rights to make those credibility determinations those credibility view would view the latter as expressing a preference for or against religion so we got our list of argument the thirty six so for the acclaim would survive and the others too in terms of the district court ruling for a new trial on the basis of the jury just read bar of instruction i think the fact that my friend on the other side had to rely on a constitutional confrontation clause where there was a case where there was no other evidence linking the criminal defendant to the crime as as an occasion when it is permissible to bust the presumption that juries are able to and trusted to follow instructions i think that was legal error and certainly that this report didn't really explain that decision and finally to the extent that the district court's new trial determination wrasse on the view that that the jury's verdict was against the clear weight of the evidence which is itself a difficult standard sumi and again based on the ample evidence that we've laid out in our brief we think that's going to stand or that cannot be  clear on the point that any any ambiguity in restrictive covenants should be construed in favor of the free use of the land so we think at a minimum that think that was certainly part of it i don't think that i don't think that the answer to that question is dispositive with respect to the statute which refers to religion so whether one conceives of of religion in terms of the  very clear there's never been any dispute on that is that for the morrises the christmas show was very much an expression of their christian day it was an opportunity for them to witness to their neighbors with a nativities seeing with christian poems attached to candy canes at no point in this litigation has anyone ever questioned that to the morrises this christmas show was there was was an expression of their christian faith an attempt to minister and witness to to their or to their community and i thank your honor my name is peter smith and the attorney for the homeowners association and i'd like to start with the letter itself where judge bears on a question how this letter can be read to be neighborhood and there is no preference expressed that you be christian if you move in or you be not christian a letter was admittedly poorly drafted and everybody's it was rushed out because mr morris had represented that he needed the answer very quickly it was done by lay people who are volunteers of a homeowners association and what were they really concerned with here they were concerned with this christmas program which really has very little other to the very little to do with trial for that but i think conversely the rule fifty is tougher for you want to be with his standard is subjective in the end and this seems to me to be a classic yury question the issue of intent lot of testimony to the point was put on that was objected to early on about things done by homeowners there was the larry bird recording it was objected jim there was the  neighbors who packed it will come into their neighborhood and parking in there by way is in front of their homes that they came out and said things to them there probably were not appropriate that happened there was no nexus no connection whatsoever between need to connect this to the h away and they kept saying they would they got to the end of their case they were arrested and they were unable to do that there was absolutely no action between these homeowners and the homeowners association so which is an entity and so the evidence was stricken if they would have come out and presented evidence st trying to draw a connection and we wouldn't have this problem where the jury heard all of this testimony about  buses coming going to be a band aid were unable to connect any of those people to the horses association other then they happened to be a member it's almost like if you are a shareholder in a major corporation like microsoft not show any favoritism toward one group or the other but i mean that may be your permissible reading i'm not sure but there's certainly an alternative to reading the sentence i'm somewhat hesitant to bring up the fact that some of our residents are a five day event with thousands of people and now there were other homeowners who would find none of that is in this in the letter this stating that i just read in this letter says that we don't we're worried honor simply because that's not of the letter so that talks about residence are not christians which is either a fact or not we don't know or of another faith which may be true or may not be true and i don't even want to think of the problems that i can bring up so they're talking about other folks of other faiths and they're saying that they may be offended by that for us than is what why isn't that  people's religion because of this rate and a different type of religious event it really has to focus on what the event itself was doing and that's what this letter is pointing out is that our craft out was the testimony at trial there is no other reasonable expert explanation other than they were concerned about the reaction of other neighbors to this and back being characterized as a christian a bad and being indors neighborhood to stand on his front lawn sin christmas carols interact with santa claus for a fee have dancing characters including clifford the red dog the ranch and others and then donate money to a neighboring mile does that apply to christmas lights other boarders waive that requirement you could see them so in technicality it could be your we've got not just christmas lights now the extent of the christmas extreme if you compare those who were asked what he did there's absolutely no comparison the two hundred thousand lights running all over the yard and in the trees all over the house including the roof it's like something out of a movie sure he was keeping a camel by having it around for a couple days and i know that seems weird and i'm not at all sure that this was a commercial camera and i don't know about the lighting or the reason seems into pretty well so does that justify the injunction it does your honor any one of those grounds would be a violation of the covenants conditions restrictions allowing a judge now i would remind the court that that you could look at evidence that occur after the acquisition of the home and i would suggest that in exactly the same way that the  homeowner or the apartment dweller in the th circuit case hung as we were on the door as an expression of religious based it exactly the same way the morrises christmas show certainly your honor the homeowner's association thought it was enough of a religious practice that they specifically objected to it in their letter are pointing to people in the neighborhood of certainly as i understand the record your honor the the letter that the morris's received from an attorney for the h away threatened threatened i don't i don't i don't think there is i don't think there's any dispute your honor that the letter highlighted that there were violations and that what they would begin to happen yes that's correct and then and then the homeowners association took no action after the christmas program was howls despite the letter twice so i think that's where the issue of waiver waiver would comment in terms of the  by waiver i think i think we're talking about the attempt to to use the fact that the homeowners association sent a letter threatening legal action did not take legal action eventually i think two christmas events were held and our clients sued but i do want to get back to it was judged to humus question about the evidence in this case that is directly to the board to its members to its agents and that evidence including even setting aside the neighborhood residents if you set aside that evidence even if you to draft the letter edited the letter r and a board member sent the letter so i don't think there's any dispute that this action you my friend and i and the other side disagree about the legal impact of it but i don't think there's any just view that the invitation of the president of the brave but that's why you have a draft then people look at these you know this is wasn't absolutely and the jury was free to look at that evidence and determine what it meant but in terms of the question which is was i border agent there's never been any dispute about that i looked at her draft something and i tear it up and say this is absolutely not i want to say i want to say something different is that attributable to me and somebody finds it there was no dispute about who actually wrote it or to whom it's a tribute it and i think you said even even if you're your own even if you set aside the earlier the earlier draft you still have paul farai the president and board members to the sellers of the morrises home to discuss the morrises their christmas program their religion and how the association didn't want them pressing their beliefs on others in the neighborhood that's an e r one fifty six board member statements to the morrises realtor that they didn't want the christmas program in their neighborhood that's the r fifty one and testimony that the association went house to house spreading false and inflammatory information about the of us well with her is with respect to the other incidences the th of july fireworks launch from the street loud noisy the police were called question is what was what was the homeowner's association response to a loud noisy event that unlike the crank on the lakes the police actually the homeowners association didn't take action your honor but the police actually were called and the homeowners associations and nothing no notice the violation no telephone call no letter no nothing and i think it's telling your honor that the district court in  fifty b or new trial discussion mention any of these up as of selective enforcement which alone i think are sufficient to warrant a restoring the jury's verdict i mean china is way up and i