most important document in this case and the two most important exhibits to it that's at the record twenty three we're talking about the first amendment to lease and exhibits c and d to the first amendments to lease those are included  with the blow up version because they were all small at one thousand nine hundred dash one if any of the members of the court would like copies of those i have them for them if not i will proceed into i d's for them i do is the court can see by looking at these particular documents the attachments to the lease which were incorporated into the lease set forth very plainly a requirement for two specific sizes and two specific sizes only that was a one hundred fifty one thousand four hundred fifty square foot predicts pension construction and a two hundred and thirteen thousand two hundred thirty four square  wal mart would agree to be a bad day on bass such a specific figure when it didn't yet have any plans for any specific plans as far as we know for building well your honor it was part of the record below that there were some discussions between the developer and wal mart about wal mart expanding within a few months once it opened the representations wal mart made to eastwood which again are set forth in the record are that wal mart like to open up smaller stores because it had worker issues and that by opening smaller stores it had less union issues and then it subsequently expanded them what happened in this particular case and when you look at the history of it it's further explained by the fact that there was some litigation in the initial stage of the performance by the parties so they signed the lease in january of two thousand and two east what expedited preparation of the site isn't what i'm with you dani it's hearing really what i asked you it's just that it seems to me that looking at your interpretation of the group agreement there would be absolutely no reason for a party like wal mart to agree to that the reason why is your honor because of the dispute between the parties early on there was a previous litigation and exhibit or this particular amendment was generated as a settlement to litigation the parties certain level of mistrust one for the other still don't understand why wal mart have agree to something that would permit it to make any modification going forward in this the expansion it just dead i can i'm not finding the reason they are they wanted to know for certain that they would be able to construct this they wanted to pin eastwood down that we're going to be able to build this one hundred fifty one thousand four hundred it why isn't it more reasonable to have the square footage figure as an upper ceiling that might have been a better decision for wal mart to engage in but it's not what wal mart did and it's not what the parties agreed to one point that  would indicate your honor that's primarily in these three drawings yes and there was supposed to be a third one exhibit b one which was an actual site plan of the premises but through some is there any language which says these three drawings ar the only way it can be done yes drawing is in the sense i mean it's just a drawing if you take a look at the drawings runners you'll see that referenced in the drawings are specific references to plans in architectural drawings that were prepared that were more specific the talks about the contract are referring to the architectural plans for exact locations and dimensions and when you look where as well at the declaration of business conditions are restrictions which was a multi party document which govern the entire center the e c r specifically require that the building locations front walls ingress and egress locations of the park and the parking fields could not be changed without the mutual agreement of all the parties to that particular what will be is interest not interest in litigation trying to avoid a contractual obligation but apart from the litigation what business interest would have eastwood's would have been sir that's saying you could only bill this many square feet not  more square the fact you were where the what serving your business interests there and to be fair your honor i do want to say i think that what we're talking about here it's not necessarily if they were five feet off in any direction that's a problem but being fifty thousand feet off in a direction is a problem in reason that was a i'm sorry in the agreement you talked about things that would permit an expansion that wal mart wanted to come in with a small stores and then be able to expand later with any language in the contract that required but if it did expand which ties back into your question your honor why is that a problem to eastwood what eastwood bargain for was essentially will admit a roll of the commercial di they believed that eastwood it's some point in time was going to have to expand the store and these big box stores really are not particularly profitable i know it sounds strange to say but for developers are not typically profitable these are loss leaders the big box stores have very low rent they take up a lot of land and what the landlord does is they bring these big box stores in because it increases traffic to the balance and increases the value of the balance of the shopping center the landlord wants to know or at least have a pretty good assurance that these stores are going to be built in a manner that brings in the maximum amount of traffic wal mart on the other hand having its business interests doesn't want to be to pin down but the what the landlord bargained for was look i think wal mart's going to have to expand and i'm going to make the agreement that if they have to expand they've got to expand to thirteen to thirty four because i want as much traffic as i can well if that's your motivation then why would you hear these to cooperate getting the permits and that sort of thing because the one hundred eighty six thousand square foot store is not what was bargained for the flip side of that bargain is that if wal mart doesn't build to what the developer has agreed to the two thirteen to thirty four is that wal mart has to come back in and negotiate with the developer in good faith so if we only get it so if we only get a smaller expansion we don't want an expansion in or you're just trying to exert bargaining power to get wal mart to go back to its initial plan or it's an it's to the maximum square footage my client wanted wal mart to abide by its agreement of the two thirteen to thirty four because that was what my client thought was going to be the optimal size for the store and to benefit not just my client but to benefit all of the other tenants in the shopping sense they didn't have to expand all it's hard to see why you were better off with a smaller expansion than not at all which is what you u well that's what the parties ultimately did today but we have no way of doing this is a long term lease wal mart's got to think thirteen five year extensions they're going to be here for sixty five years after this lease is over if they want to be my clients remain confident that wal mart in some point in time is going to have to expand the store and i guess the flip side of that your honor is isn't wal mart really trying to exert a little bit of bargaining pressure on my client to to bargain down from the agreement made of two thirteen to thirty four when you look at the timeline which i provided us where exactly is the agreement is that in these three pages with drawings on or is it in some language which incorporates those pages that's a great question  are there several agreements if there was a settlement agreement test one that supports you the most strongly that would be this you know the the closest thing to a smoking gun that's as you have to do that if you're going to do it you have to do it this big and i by that particular page i do your honor references right back to the incorporation paragraph which is eighteen b of the first amendment which specifically states that all exhibits attached here too and all exhibits attached to the original if you take a look at the i'm not getting it from those words if you take a look at the chesterfield case your honor that we cited looking for language in the language that you're operating that you're saying requires this well i thought best you have eighteen be here well i think if you take a look your honor at page id nine hundred fifty one which is the drawing to which is the drawing you have any language which says you have to do what's in the drawing you can't do anything else with that would be if you take a look back at the the e c r specifically says that if there's going to be that one zero one dash one you have a page eighty for that i'm operating obviously off a page idea sure if you take a look at page eighty fifteen seventy five in the e c r it indicates that the parking field ingress and egress points of any building shall not be altered without the written consent so essentially that you have to sort of infer something from  that well does that say is that say you have to build to a certain size you're right i think you raise a great point is is yes you have to infer something from that and since inferences have to be drawn the district court should  readers position in this matter you said one five seven one five seven five and it's a paragraph five  and i'm just looking for something that so i understand what you've explained to i mean i think what you would you explain to judge givens as your motivation you want to you want to force them to buy you really want them to have a big store there and you know that they want to do a store so you want to force them if they're going to do a store to do a big one or it seems like a lawyer could get that in language in there a little bit more expressly than saying then saying something about obstruction of vehicular movement well you're only if you take right i mean if this is something that you want in there or there are be something a little bit more direct i'm sorry or i saw it doesn't say that either a drawing is just a drawing i mean a drawing a drawing doesn't have meaning because it's a drawing you could have something saying if it doesn't conform to this then you can build it whereas the or b of thirty of the one hundred one dash one and that's page fifteen sixty nine and that's  center piece abstention similar to those building footprints set forth on the master site plan ok but page numbers fifteen sixty nine your own thank you thank you for your time is up you'll  the opponent in this case took a deep dive right into the question of whether or not there was an obligation here in any of these documents for wal mart to construct an expansion to a specific  size and the words are constructed according to any specific timetable or phase there is nothing in these documents that requires that what do you do with the thing that he finally came up with the emphasis the location of the buildings on the shopping cent have to be substantially similar to the building footprints footprints set forth in the master site plan when this this e c r was prepared before the lease was entered into it's a document that sets forth the location of the buildings relative to each other it does it well the location is defined by that footprint there is no size on that e c r exhibit are not asking and i'm asking if you built it would you be required under the contractual documents to build it to the size that is contained in the site plan we built their argument i mean you can argue against something that they're not arguing but that's their argument this is this is your print as i said this easier predates the construction of the existing store as part of the actual obligation exists yes but the existing store was built two hundred fifty one thousand square feet there was never any something that then that creates an uncertainty not at all because what you have to not what you have to do here is you have to look to see what the purpose of these exhibits are and there are multiple references within ambiguity no that's not because there are specific purposes for these documents if these documents were intended to create a duty contrary to the express statement of the parties that no duty would be created then we would have had language that says that the press language of this lease says we referred to the master site plan and to the e c are for a number of very specific purposes and that would be listed out in paragraphs thirteen and fourteen of the lease those references have never in any context in any way shape or form ever say that there is a duty to expand or there's a duty to expand in a single iteration of a single time a single phase they agree there's no do you expect as i understand the duty that they're arguing this is in the documents is provide for any additional rent to them if the store remains one hundred fifty one thousand square feet or food is double that well we talked a little bit a moment ago about the motivation of the parties are about  all right i'm sorry thing to talk about snow but i'm asking about i'm asking about contractual obligations that will reflect whatever the motivation i think we have to look actual obligation if i understand it and i need to understand it is contractual obligation if you build you must build up to a certain size doesn't say that i know you said it doesn't say that but it doesn't support the fact that it doesn't say that to say that they don't need to build that's not what they're arguing that you say it doesn't say that because they don't need to build the not arguing that they need to build another or if we build we have to build to a certain size are you with me another way to refer to frame the question is the question of why are those numbers there i guess that's really what you're asking why are those numbers there if they're not to appellant's say here why are they there at all and what i say in response is that police guides you in that answer at least tells you why those numbers are there and therefore to to show the shopping center as a whole the location of common areas where you're saying location of thomas goes to sort of general location in the in the in the formation in creation of a real estate deal such as this it right and there's no if there's no sir there's nothing here in any of the references to either the master site plan or to the e c r that specifically states that you have to build this store and if you go to build it you must build it to this specific size or if there is such a duty that you have to build it all at once that's it so key to this case because one hundred eighty six thousand square foot expansion is never a breach even if you accept the fact that there was a larger two hundred  thirteen thousand square foot number or two hundred twenty three thousand and they can't quite they can't quite settle on a particular number they've argued many different numbers that they believe were agreed to by the parties here and judge malone points that out quite properly in his opinion but there's nothing here that says that building to one hundred eighty six thousand act sanction that's the other issue what i'll get gets let me let me just finish this one thought there's nothing in this in these documents anywhere that says that building to one hundred eighty six thousand square feet even if there's some ultimate goal and i'm not conceding that there is some ultimate goal or obligation to build to a larger expansion size wal mart might you know it would depend but they have the ability to do that that's the permissible building area that's defined in the lease in of wal mart x elects to build only a portion within that permissible building area that's defined in the lease now and then reserves for itself the ability to build up to this bargain for maximum that it wants of two hundred thirteen thousand square feet it has the ability to do that and there's nothing in this lease that prohibits it from doing that or imposes a duty on it to do it in any other manner so that's what i'm going to say about that sanctions  you interfere with some someone else's ability to provide a witness without threatening someone we didn't threaten mask what you did i'm saying is it possible you need to have a threat in order for it to be an  l we may couldn't you just i wonder whether it's ethical to call up somebody who's a friend of yours and say somebody that works for you saw a traffic accident i was him can you get him not to testify  think that what we have here in this you just don't want to answer might have well i'm not quite sure what the hypothetical is abuse if it if they were to call it have a situation where one lawyer is trying to get the other lawyer from putting on a witness or trying to get that witness to refuse explored the the the back waters of this particular issue because those are the facts of this particular case look like they're trying to get him not to testify not at all actionable whether they're true whether they're threatening them with something it doesn't can r hard to read a thread into that letter but i'm just wondering whether it's enough just to say there's no threat would it be problematic if it was pressure as opposed to threat so there was a  no i don't think it would be just pressure as opposed to threat the law is pretty pressure is not enough i don't believe so i don't believe that and there's no there's no case no i mean i think you'd just be easier for you in dealing in this question to say yes judge that would be inappropriate but th not these facts well let me add that i know i think it's a little bit to me it gets a little tin us when you're arguing that it's ok for lawyers to use pressure to prevent witnesses from testifying truthfully i mean it may well be that pressure alone constitutes some sort of witness tampering i'm just saying that as they stand i think they i mean this tampering as that appropriate whether it's probably it may or may not rads to witness just sanction one lawyer for pressuring or using personal contacts or whatever to keeps keep somebody from testifying it sounds i mean i'm not i listen to district judge and also the questions but sound good judgment only looked at this issue by by saying that the amount of it alleged alleged that mr hayward here who was the object approvals we had other land use approvals we had rulings and decisions that had been made by lansing township which mr hayward was directly contradicting and we were very concerned that all of a sudden what we believe to be etched in stone in terms of our rights was no longer there mr hayward was now saying we didn't have proper approvals we then sent a second letter to mr gryce and the city attorney a few days after the first letter outlining detail all of and that's part of the record as well aligning all of those very specific concerns that we had mr a judge will only properly rule that they're the measure of whether this constitutes a sanctionable of vent is not measured by the reaction of the the person who may be the object of it mr hayward alleges that he was intimidated by this but the record also reflects that he in fact prepared in and supplied a second affidavit for the benefit of pellets in this case and and for him just to allege and for these parties to allege that mr hayward was intimidated to the point where he would no longer cooperate simply isn't borne out by the facts so someone is intimidated that doesn't seem to me to be the necessary requirement for whether something is sanction could have a sanctionable letter where that didn't work could well you could have but you could have a sanctionable letter that didn't work if you were making a direct threat yes it's so if we put aside whether it actually worked although it does look like he didn't testify but put aside whether it did work you could you could look at this letter one way but you could also look at it it's kind of has the feel of don't let this guy testify he look what this person is doing it's not mere interest we do a lot of business  the conclusion that judge maloney reach which there was no intent here to harass or intimidate this witness you obviously wasn't harassed or intimidated he continued to participate this was an attempt by we think by by the appellants in this case to simply try to give wal mart a black eye during the course of this litigation and this ruling by judge maloney is going to be reviewed on an abuse of discretion standard i think the judge maloney had ample basis to reach the conclusions judge moni felt that this motion for sanctions was itself so frivolous court and i'll quote eastwood's characterization of the october twenty ninth two thousand and fourteen letter is disingenuous at best and deceitful at worst he he found that this finally of the motion for sanctions against wal mart was in fact itself a possible basis for a claim for sanctions against  eastwood well you know i don't know i mean if you if you'd in a different light you could say and mean you can see what the motivation here wives and i would say the motivation was really  more to warn the town that mr hague good k word could very easily be putting the township in a precarious legal position precarious legal position and that was i think the greater concern and we wanted to make sure that the township wasn't going to reverse field outside of the procedures that obviously representative was getting it into a little bit of a pickle with regard to consistency in its statements and with regard to its role in this contractual dispute that right yeah you're touching briefly on some of the points raised by the korean by mr mutua again there's only two sizes set forth anywhere in this first lease amendment for this construction the pre expansion size and the post expansion size nowhere in that document does it say up to two hundred thirteen to thirty four not to exceed to thirteen to thirty four it says to thirteen to thirty fo wal mart would have this court read into that exhibit the fact that that means something other than what it says that it means maybe less than two three four thirty two thirty four what's two thirteen to thirty sorry one number that's the expand yes that's the expansion size two hundred thirteen thousand to thirty four square feet  i was struck by two quotes that mr ricci used during his discussion he said we need to look to the purpose of the exhibits that's exactly what we've been saying throughout this entire case is that when you look at all the exhibits in this case we feel they supported eastwood the problem was there was such an avalanche of documents dumped on the district court early on with no oral argument in this case to explain it t the court in three different locations indicated that there was no agreement between the parties as to any possible square footage is but in fact the court addressed the fact that the exhibit c and d existed but the court simply dismissed them never included it in its analysis as part of the agreement fourteen j says they don't need to build and if they do build they can go dark it doesn't say that it excuses them from otherwise complying with the requirements of the of the building restrictions of the footprints of the sizes of the building it never says that so we take a look at the case and we look at fourteen j fourteen j there has to be consistent with inconsistent with or ambiguous with the first amendment if it's him big us with the first amendment the court should have ordered that there be a hearing if it was inconsistent with the first amendment th says that the first amendment should have overruled fourteen j and if it was consistent with fourteen j then the court was obligated under the clap case to read all the documents harmonious and to give effect to every word and phrase the one thing which we absolutely know the court did not do in this case is give any effect to exhibit c indeed and to the expansion language of two hundred thirteen thousand two here it seems like looking at all of these things there is nothing that leads us to the conclusion that this two thirteen thirty four was a mandate to wal mart they had to bill to that i think your honor that that that was the second point that mr mutua that i was going to talk about i said mr which is that two things that struck me and what he said was well why were they there at all what was the point of putting in the two hundred thirteen thousand two hundred thirty four square feet if it didn't mean something failing but again perhaps and that's why this matter should have proceeded to a trial testimony should have been taken from mr ryder the principal of eastwood from principles at wal mart and then we should have had a trial over what in response to that question to take notice of the jewett bigelow and brooks vs detroit edison case which we saved in our brief which basically says it's not the place of the court to