strictly legal questions concerning the proper interpretation of the economic and property damage a settlement agreement first whether exhibit four c of the agreement requires the c s s p to treat equipment rental expenses as variable not fix one included in the claimants financial statements as cox and socket whether the c s a speech should consider claimants work for its real estate developer affiliates in applying the agreements real estate developer exclusion in light of the court's requests for supplemental briefing on the first question i will begin with the expenses issue as the claims a minister twice recognize in this case exhibit foresee is unequivocal there it says that this c s dispute must treat cobbs will be treated as a variable expense after after excluding six numerate coughlin believe your honor is referring to part c of step two of the variable profit definition where it doesn't use the word including but here your honor the parties to the settlement agreement the numerator concept excluded from variable expenses so you have there your honor insurance interest expense and contract services they're all on exhibit four d's fixed expenses list but they're also for purposes of exhibit four d columns are listed both on exhibit four d's fixed expenses lists and exhibit four d's variables and said this type of thing but fixed cost a rental expenses on forty specifically in the forty six categories in forty yes you do have rental expenses on four d but you have to remember the nature of cobs your honor when something is a cause it will always be something else because a consequence of goods sold which is an anomic concept so cost of goods sold will always be something else so there are many items on exhibit four d's fixed expenses lists that also can be colleagues but it's not supposed we're not supposed to look at the label we're supposed to look at a type of cost underlying that label so that they're correct in looking at the underlying thing underneath the label and where is your argument is looking at the label no your honor ear not looking at the label in the courts cases and taxes gulf seafood and the management fee case the questions there was what type of expense is at issue in texas gulf seafood the claim the claimant label its expens supplies which is on exhibit four d's fixed expenses list and the claim to the minister of thought that those expenses looked more like consumable goods so it was a question of whether the expenses were supplies or consumable goods in the management fee case it was to three step process depending on the type of expense the first step is determining what type of expense it is and that's where this court's texas gulf seafood case and the management fee to supply so that's the question of what type of expenses it is it supplies or consumable goods is it feasible or is it something else and here we have no dispute with respect to that we have cox then step two is looking to exhibit four d and you look to exhibit ford's each to determine whether an expense is fixed or variable exhibit or d will almost always tell you the answer to that but for cogs you have an additional rule because comps appear on both exhibit four d's fixed expenses list and their variable expenses  expenses must be treated as variable that's the clear command in exhibit four c will be treated counsel i'm assuming argue window that you were correct in your very precise argument here today  that still doesn't mean that the district court abused his discretion in refusing to take the issue to court hazell it just did being wrong is not the test it has to  be a problem that's going to be repeated over and over again and probably but we've worked through many of these issues in the past couple of months we have many of these cases decisions coming out right now and the can seems that the the appeals panels have worked through these issues too why is why would what is the argument that the court abused its discretion that's a separate independent it's not just enough to be wrong and i'm not  clearly contradicted and b p s view exhibits horsy of the son of an agreement that's a clear ground to review under this court's precedent no it has to actually be something that's going to be repeated being wrong in a one off case is not a reason to review a case under our precedent absolutely your honor and this is not a one off issue either we've identified at least nine other appeal panel decisions where people panels have considered the precise question of whether  expenses or rental expenses classified as cogs are sticks or variable the pilipinas have split their five floor with respect to finding weathered such expenses are fixed or variable and there's actually a broader variable expenses adjourns about four seat so while we focused on the specific appeal panel split with respect to rental expenses you also see appeal panels having troubles with this issue with respect to lease expenses and maintenance expenses for example when those types of expenses are classified as cogs so i would say your honor that under this court's precedents these are this is the precise type of question that the district court should have or should have resolved if you have a clear contradiction of the settlement agreement it's a pressing question this court's two recent response on classifying variable and fixed expenses shows just how essential this process is for properly calculating c fixed or variable here we have a special rule exhibit forty on exhibit four see that deals with cogs and the courts two recent decisions do not speak to that rule and that rule has given appeal panels difficulty in the c i don't believe that's exhibit for d s more specific than exhibit foresees rules for pods and if you were not to treat exhibit forces as commanding then you would read out exhibit four c's well for colleagues as well as the cobs label on both speed with respect to the c s a species determination that woodruff isn't excluded real estate developer this is also an issue that's reoccurring and divisive fifteen appeal panels have considered it and split and it's also an issue  there remarkable there might be a split on next question you've got a specific category terms of you know if it's a real estate developer per se whereas in this case regularly real estate sign the fact that your honor we don't regard this as a factual question the legal question at issue here is whether the appeal panels can consider a claimants work for its real estate developer affiliates in applying the real estate developer exclusion so it's a legal question as to what facts can be considered by the decision maker in determining whether the exclusion applies that's a legal question about the interpretation of the settlement construction utilities earthmoving and storm drainage it advertise on its website that it's affiliated with several real estate developers and it did significant work on it various commercial and industrial properties including the woodruff industrial park in charles i have the sound discretion to use whatever facts they think are relevant in the determination your honor policy for sixty eight things that claim to the minister are supposed to look at in determining whether a a entity is an excluded real estate developer and those exclude include materials in the claim filed promotional materials and entities website and other statements from that and to t the appeal panel said that it could not consider the affiliations that would you have had with its real estate developer affiliates calling that b p s guilt guilt by association argument that had been rejected by other appeal panel or can consider it and rejected yes your honor and so if it chose not to have that be dispositive that's its choice as we read the peel panel decision the peel panels affiliations because they thought that as a matter of law they couldn't consider them because this was a guilt by association argument that wasn't allowed under the settlement agreement and it no your honor because policy for sixty eight sets out what types of things this claims in the mistress supposed to consider i can consider but not given any weight i don't believe so your honor for example if a real estate read policy for sixty eight as b p reads policy for sixty eight the settlement program is required to consider the various things listed in policy for sixty eight determining whether that entity is an exclude point sometime during his presentations or my apologies in advance this is certainly in the can challenge in case to be involved in that the underlying rules and laws involved in this so it's a programmer case changed substantially since the initiation of the case to the point rep here today is just as iraq was getting at have you made a comment haven't we already made this decision and deed i'd like to thank the court substance over for look at the background facts of the situation and make a substantive determination as to whether or not these costs are fixed or very which is a simple logical well worded well understood doctrine that is now been established by this court which now does away with the fact that there is there are issues which would cause this to be a case that would what would be worthy for an appell decision in this situation this case is a unique situation of how my client typified these cobs as a fixed expense and if it relates only to them in this act because it's a cockfight trump thing else i'm sorry couldn't hear how do you handle opposing counsel's argument that because it's a cock it trumps everything else it doesn't matter what forty says because that's taking the strict construction of the settlement agreement in and taking b p s interpretation of those words coggs can either be fixed or variable on the very definition and indeed appellate decisions have come down and said if all of very much the ruling of what detail saying the fact that colleagues should be evaluated on a substantive basis the appellate panels in this circuit are in lock step on this issue the appellate panel has made that determination on this this court has made that determination as it deals with a fixed first variable they should be to both determine on a substantive basis look at the substance you have in the record sh we provided all of the information and then what we did is we distill that information down and pursuant to the memo letters that were just submitted i mean in the record all we have we have the table of alone and all of the information this is information that was all of ale this was compiled from information it was all available on the record if this would be turning deemed to be a demonstrative exhibit your honor your honor just make it clear to the court p had all this information and all the park panels had all of this information there's no surprise here there's nothing new this is the reason b p doesn't really want to address this situation they know the fact that my client's production was all over the place this is the fixed expenses that we're talking about i don't know how something could look more like a more forth like a fixed expense and that we invite any substantive review of this we do not think they need the appellate standard as we sit here today i think this is a unique case again how my client typified these cobs in this situation but even if they do not to why would this court right it's opinions if b p wants to ignore them as it defies logic this court has said three recent it kit opinions not because this is a problematic issue but to clarify the issue which this court has done very simply and they know what the rule is but what they want to do is they want to relate back to this label issue because it gives them an origin that for whatever their for an abuse of discretion the court abuses its discretion if it declines to review a decision that quote actually contradicted or misapplied the settlement agreement or had the clear potential to contradict or misapply the settlement agreement has not occurred in this instance based upon the recent holdings of this court it is also an abuse of discretion to deny or correct requests for review that raises a recurring issue on which the appeal panels are split if the resolution of the question will substantially the impact impact the administration of the green no opinions have been cited since this court has come down with its opinions in november and february that were forwarded by this court including including the go seafood case where there was a substantive review so read that again it is also an abuse of discretion to den requests for review that raises a recurring issue on which the panels are split if the resolution of the question will substantially impact the administration of the agreement that will not occur in contrast the district court does not abuse its discretion if it dies a request for review that involves no pressing question of how the settlement agreement should be interpreted and implemented it simply raises the correctness of a discretionary administrative decision and the facts of a single claimants case this is how one site contractor typified its rental expenses as togs it doesn't that doesn't change whether they're fixed or variable that's a classification that's a label as has been brought forth in all three of the recent decisions get away from the labels get to the substance of the issue the substance of the issue is the costs are fixed for my client not trying to hide anything we're not trying to hide behind labels we're not trying to hide behind definitions we're not trying to say we don't fall into you don't fall into what has been referred to as the fix and since you don't fall into the fixed five even though they're actually six and four see they've been referred to by the appellate panel as the fixed font and b p has continually said the fact that there are no decisions that indicate a variance from those fixed by this is not accurate and justice davis is getting at this as a reference page to subsection c of exhibit four c it is the same enumerated six items which includes payroll the payroll is treated differently for accounting for  c get back to the fact that they reference the exact same on to see to see reads variable portions of coggs calculated by excluding salary costs which are discussed below in the definition of fixed variable payroll expenses and fixed expenses include within coggs including amortization depreciation insurance expenses and interest expenses and contract services the same six slash five items the appellate panels have gone on to hold the fact that this is says uses that utilizes the word includes the use of the word quote includes in quote in the second for c provision quoted above signals that the five items which follow it are not an exhaustive listing that they are pulled out for treatment is fixed expenses not that other expenses included within the claimants consuls thing but classified as fixed under four  panels indicate the fact this is a repetitive argument of b p in this situation and they indicate multiple they said they said they in their decision they state quote multiple appeal panel decisions have addressed expense account that are not one of the five accounts listed but nonetheless must be treated as fixed expenses because the settlement agreement expressly addresses and classifies those accounts as fixed while these expenses does not appear coggs section of their p and l appeals panels decisions support settlement program evaluations of coggs expenses to determine their nature showing the fact that the appeal panels like i said are in the lockstep with this site contractor large site contractor situation where b p didn't invest is try to look at our web site and things of that are we do we do work for real estate developers yes that's what large site contractors do if you're if you're going to do a subdivision then you're go need a company that's going to come in that's going to clear the land that's going to it's going to put in the infrastructure that's going to put in the piping that's going to put in the drainage is my client do that type of work yes does that make them real estate developer absolutely not do they work for have water mitigation licenses they hold no licenses they hold no real estate licenses they don't sell real estate they're not in the business of real estate the instance that was talked about about a developmental park was done section two a day of policy for sixty eight states the following quote the analysis required by this by the this quote real estate developer exclusion shall be performed at the entity level the entity level in singular by examining the attributes of the business entity see also appeal panel decisions twenty seventeen one eighty two fourteen fifty four twenty to fifty five four sixty seven from two thousand and fourteen and these are all cited by b p were determination were as that somebody was not a real estate developer all the information requested of us was provided pursuant to section to see a policy for sixty eight to test to be deployed as to whether a claimant is a real estate developer is quote whether it was more likely than not the entity was sufficiently engaged in real estate development activity during twenty ten my client never did real estate development activity in two thousand and ten my clients never done real estate development activity in its history and it's a third generation company you have an affidavit from your and your from your company no no no no no your honor we provided the background information we were never requested to prepare an affidavit if we've been requested we would have been very glad to execute the same and we can back this up very easily with any documentation that they would ever request my clients never been a real estate developer in the denver they're not in the business of selling land  in the business of developing and selling land never happened don't hold the licenses it's not what they do they would be they wouldn't they would then be in competition with their customers for it just wouldn't make sense on a multitude of levels not a single opinion out there to that effect we don't meet the definition of a real estate developer we don't we don't make money as a real estate  contrary evidence available then you sure would have heard about it today and there isn't any in existence we're very clear on that extreme or not you know we have not we have not and never have been a real estate developer and all this information has been provided to the lower tribunal's and b p has done a very exhaustive search because of the size of this  is the texas gulf seafood and i would say i would not call it the texas gulf seafood rule is very clear that is a rule that this court has set forth it's been set forth in the two opinions that were provided to us for briefing and it's also been even more clearly set forth and judge on rod's recent opinion  dealing with the alabama sign conflict so in this situation there is no ambiguity the rule is there has to be a subset of reviews it fixed and variable there is nothing unique about this case my client's got a case where that we designated it is coxon it doesn't make us a bad bad company was a decision was an accounting decision and even under coggs it can be fixed or variable as i've said before in this instance all of the all of the information clearly indicates this is a fixed expense all the opinions from this court recently are very clear don't you know b p don't look at the labels look at the substance of the situation but the program looks at the substance this is a situation they have determined that these costs were fixed they are fixed for these reasons my client should prevail in the situation with for some reason and i believe this point certainly is jurisdiction to take jurisdiction over the issue and make the determination fixed and variable or can make the determination of the fact that there has been no abuse of discretion based upon the extremely high standard in these matters either way my client should win on that issue if my client gets remanded down and has to provide this information as as occurred in in the cases that were forwarded then that would certainly be a situation where we provide the information to the lower tribunal and we feel very confident we prevail and when you have costs of goods that are at issue exhibit four c on costs of goods applies opposing counsel tries to work around that through this court's recent decisions of texas coast seafood and the management fee says that the appeals panel are consistent in their treatment that it's not a list of five exclusions to suit categories or six exclusive categories only get an issue of five or six that they consistently say that we look substantively and so what do you have examples of appeals panel decisions where the appeals panels are saying on of multiple occasions that because it's one of it's not one of the five or six categories that it can has to be considered variable absolutely or on or here at least nine other and you mentioned i had to pick said because it's not just simply only for the reason that it's not listed on the one to six that it's that it's got to be variable four appeal panels your honor in this is choose your one seven four one five four two zero one seven one nine three one two zero one seven one two zero four and two zero one five five one eight  equipment rentals classified as causes variable they do so in most instances across the borders are they doing it because of the rule or are they doing it because in those businesses it shows as a matter of fact say it doesn't have to be in the magic categories it can we look at the substance that the appeals panels are routinely doing that i believe that's wrong your honor if you look at the nine decisions five of them look towards exhibit four d and the others look towards exhibit four see one's a little less clear in that if they make it or see if it's not specifically spelled out as one of those categories it's automatically put in the variable regardless of what the facts are is that what you're telling me that those appeals panel decision say as we understand them the appeal panel decisions are not looking at the facts they're taking the fact that you have hogs and then applying either exhibit four c or four d for c for the ones that come out the exhibit foresee requires a bank question about related entity theory are there appeals panels there to hold consistent with what you've argued here with us today good because of related businesses that are in real estate then a party is presumed to be a real estate developer there appeal panel decisions there's three and they're listed in our briefs that look at  work for its real estate developer affiliates in making the determination that that claim it isn't excluded real estate developer in two of those cases the people panel specifically for just the claimants argument that it's a construction company and consider its work for its real estate developer affiliates in determining whether that claim it isn't excluded real estate developer their appeals panel decisions on the other side of that except for the suffering decide this case yes your honor there's an appeal panel split about fifteen appeal panels we found have considered this issue and it's not just on the facts it's actually making on a legal point appeal panels on the other side for example your honor have said that b p s argument that you should  look to the work that and a claim it does for its real estate developer affiliates is a not allowed guilt by association argument that's not a lot of a subtle agreement we understand that has a legal determination about what facts an appeal any evidence to the contrary the evidence hasn't been provided here and your honor the evidence isn't in the record here and that's because everyone agrees that this is a cost of goods sold and because it's a cost of goods sold