case is about and some backdrop as well as the three issues before the court says appeal of the district court's award of eleven million dollars into transfers actually in excess of eleven million first the backdrop this kiran t was one of twenty one guarantees that were executed in connection with a rather complex loan restructuring with chase manhattan bank of those twenty one guarantees only one was not a recourse the guarantee of my clients not recourse means this was not an ordinary t it means further that this meant that mr winge and my client while he was liable for a deficiency in connection with any judgment that might be interviewed gets the underlying debtor of the company his obligation was only fifty million dollars so while why ability here was four hundred twenty five million his obligation was fifty million dollars now that's the point for two reasons first reason is that obligations and liability with respect to mr winston are not the same as those terms are used in the court's opinion below the second reason it's important is that the non recourse guaranteed by its nature was written to limit mr wynn just exposure to chase unlike the other guarantors in this case the three issues i think can be placed into three buckets the first issue is the two million dollars which the district court will order mr  in connection with legal fees that were incurred in two prior cases that had been resolved by final judgment an appeal to this court affirmed six years earlier the district court rejected mr wynn just refuted cut a defense to the  which we cite to the court which makes very clear that michigan applies a very broad definition to restrict a top the michigan supreme court has indicated very clearly that is to be enforced and that's that's the rule should be followed here the second bucket or issue here is the seven million dollars that the district court awarded mr lynch to pay for legal fees that were incurred by chase not improving his obligations under the guarantee but the trusts obligations are to guarantee another guarantor the just recruit rejected mr wingate subject objection that he should only be responsible for those fees related to proving his obligation because the court well because the liability for the trust had to be established and that same liability was the liability of mr winge it mr wynn just responsible for the legal fees paid and showing the liability of the trust but here's the bill there were no legal fees and per in connection with that issue with respect to mr winship the third bucket is the eleven million dollars and this is the eleven million million dollars that mr actually paid to chase it which the court below refused to credit toward satisfaction of the legal fees that had been a war the district court held that section ten of the guarantee  not require cheese to apply the fifty million first to pay the legal fees despite the fact that the word first appears in section ten court ruled instead well that provision wasn't really a promise to mr winship it was a promise among the lenders that this is a guarantee this is not a critter remit this is not in our winter agreement syndication agreement and there are no lenders other than chase who is a party to guarantee so i'd like to start if i could by going back just for a moment to the richard cut issue which is the two million dollars with respect that issue michigan law applies in this diversity case in michigan law provides that legal fees are damages they must be sought in the litigation in which which is being litigated the two thousand and five in two thousand and six litigations were concluded without chase ever making a claim for damages michigan law also applies with respect to ra provision waves while this is not a michigan case i think it's apt in terms of guidance to this court in deciding the issue in this case this is the u s supreme court federally department stores justice of public policy in a private piece it should be cordial regarded and enforced by the corpse and that's exactly what we asked this court do to enforce the law of the state of michigan as it is today the second issue which i've mentioned is the issue regarding the apportionment of the fees based on the actual amounts expended in connection with proving the obligations of mr winge it and the trust  fees against mr widget that were incurred in proving somebody else's obligation but that's exactly what the court did here and i might point out that section seventeen in the provision of the judgment of the court relied upon award these fees both support our position here's what they say the guarantors agreed to pay all costs and expenses incurred by chase endeavoring to collect the guarantee from winter and the trust with respect to their obligation in this particular case we have a not recourse guarantee the obligation of mr winter is fifty million and only then with respect to pledge stock chase bet a little over a million dollars proving that chase spent seven million dollars proving that the trust had another limited obligation with a limited recourse and they spent three and a half years doing it while mr wynn stood on the sidelines and yet now mr windsor is being asked to pay those legal fees that's not what section seventeen provides it's not what logic suggests is an appropriate result in fact it's not even intuitive the court as i said substituted district court to approaching the legal fees that were expended improving these distinct and separate obligations which this court found were separate and distinct its two thousand and fifteen opinion in this case finally under specific language we did you did it in connection with section section three of you of the agreement in one of the two parties rather the characters totally did refer to one or two of the two parties yes that's true that's not the case with respect to the i might point out that we argued to this court of all that it's because it's in the singular not the plural it makes all the difference you'd have to ask you'd have to ask judge griffith but judge different concluded that because the word guarant because the word wing it was used well it we argued to the court that because there are nineteen references to the geared toward a singular throughout the guarantee including pronouns of his and he that this was intended to be a guarantee that treated both same this court rejected that and said no the when when they were first a guarantor we're not talking about referring to a single person we're talking about referring to the two of them and they were not to be treated interchangeably under this here in t and that's true of section seventeen as well so  language is too i mean well and that's a very good question judge and let me see if i can answer that first of all that's what the judge provides the judgment provides that fees are to be assessed based on the respective obligations of the  that's what the judgement says and that's what the court utilized to award fees here specifically when you're in the trust the excuse me start again when you're in the trust are liable to chase for expenses accrued by chase and endeavoring to collect the guaranteed obligations from widget in the trust with respect to their obligations well their obligations are not the same with respect to the joint several liability point chase raises for the first time it's that  appeal did raise it below that section eighteen provides for joint several liability but if you look at section eighteen section eighteen is drawing a line of distinction between joint and several liability of the guarant other twenty here in tours it will be joint and several liability again that was an argument raise for the first time on appeal and we don't believe it was even preserved thank you was an answer filed by both mr windsor and the trust they were contesting liability under the guarantee if you look at their counter claims paragraph thirty five remain at one one of their counter claims requested a ruling that chase has  wind or the trust under the guarantee until it has complied with the reasonable efforts and last resort conditions of the pledge agreements again both mr wind and the trust are contesting liability bill another point i wanted to bring out is that my opponent described mr wind obligation is limited to fifty million dollars that is a description of chase's recourse against mr winship for the underlying debt it is not a description of mr winch its obligations under the guarantee mr winch it was liable under section seventeen of the guarantee as was the trust the full extent of chase's costs and expenses of collection mr windsor and the trust crazy argument before the district court prior this court's prior ruling prior to the february twenty fifth opinion and that that fifty million dollars payment january twenty fourth t wiped out all obligations under the guarantee that's in fact not correct that was rejected by this court in the prior feels that settled law so to state that the debt the guarantee is non recourse against mr wynn first of all that's not true we did have recourse up to fifty million dollars secondly that has nothing to do with sex and seventeen of the allegations are that's been settled it's been settled by the district court it's been settled by this court the attempt to really to get that now is improper and the basis for seeking to re hit really to get it is also improper mr winch it and the trustor arguing that they shouldn't that their liability should be apportioned under the guarantee that if chase spent the fees seeking in force against mr wynn versus chasing her to  enforcement against the trust you need to split that out the chase needs to go after the trust part of that needs to go after mr windsor for the other part there you base that argument on this court's prior ruling in february twenty fifth the about section seven about section three of the guarantee but they're flipping that ruling on its head because what was under section seven section three was a specific reference to mr wind individually the fact that section three is language a little different than the rest of the guarantee the fact that section three did not rely on the collective noted that in section three when it is named separately and individually it further noted right after the sentence that my opponent cites of the parties did not agree to cheat when the trust is one of the same the very next sentence of the opinion went on to sta rather the plain text of section three names wind and only wind as having limited exposure so the fact that section three is language that different that led to the reversal of the reformation decision that decision doesn't it wouldn't follow to say i'd like to take just a moment to talk about why defendants are seeking an apportionment despite the plain language of section seventy as my point mentioned much of the two thousand and eight action involved litigating defendants counterclaim for reformation that was aimed at limiting chase's  fourteen so he asserts that because there's no trust there's no way to collect a judgment against the trust so if a portion of the field word were allocated only against the trust mr bennett would argue that's uncollectable or at best it's collectible that chase  but the contract doesn't allow for that kind of gamesmanship and it doesn't compel the apportionment the defendants now seek the district court the district court's ruling that both mr winter and the truss are viable for all fees and expenses should be a recognized the defendants contractually waived any race judicata argument that's plain from section seventeen which states that no failure delayed by the administrative age it or any partial exercise of the administrative agent's right constitute a discharge when it's obligations but that's exactly what defendants are arguing here they're saying that chase partially exercise its rights in the two thousand five acts and but then didn't go and seek visas only seeking peace now but that's exactly the type of argument that section thirteen is designed  and it's not the only section of the guarantee that does section for women at seventy does the same thing so to section five all of those contract provisions make clear the defendants contractually forfeited any argument that chase was barred from attaining the fees from the two thousand and five and two thousand  actions moreover chase brought that the petition at the first point that it could chase is entitle me to fees was not established until the two thousand and eight action that's when the district court ruled that when the trust reliable for all  costs under section seventeen of the guarantee until that point as i pointed out great reading defendants counterclaims affirmative defenses whether chase had any rights whatsoever under the guarantee was vigorously litigated up until that point in fact it was litigated before the panel on the cross  either this court in the twenty fifteen opinion rejected that argument noting that even assuming there is an identity of facts creating the right of action the current case required the current case the two thousand and eight action required entirely different evidence from w judges i'd like to address any questions you have a section ten of the guarantee and the defendant's court defendants are arguing that the district court erred by not holding that when jack had already satisfied that the a word by paying chase fifteen million in january twenty fourth so essentially they're saying that that fifty million dollars payment to release the pledges preemptively satisfied and eleven million dollars fee awarded that wouldn't be entered into some time later defendants of argued several times including once to this court that when it's payment of fifty million dollars meant chase was not entitled to any recovery for fees or expenses therefore there is no question that the district court properly rejected that argument as already litigated but that ruling is also correct on the merits section ten has nil no relevance whatsoever to that as interested as occurring on the principle that bill any delay in payment of the principal will run against them as opposed to that risk being borne by the lenders because chase is going to apply payments first to payments of it's a cost of expense and collection internally need to know that the risk of delay the delay of payment is going to run against the guarantors and not as against this and in fact the contrary reading of section seventy three reading that says if you pay fifty million dollars you can prepay eleven million dollars apiece i believe they're arguing you can prepay fifty million dollars in fees and expenses that would wipe section seventeen out of the contract if that were how section seven that that would have section ten had to be read what that would mean is the more roadblocks the defendants threw up the more they fight the less chase would recover that is contrary to the basic fundamental rule of contract interpretation that you have to read contracts as a whole and you can't read them the small pieces divorce negotiated limitations that included section ten which said that the first dollars that are paid are going to retire attorney's fees why would that be important to him because under section three he only had a fifty million dollar liability as to the principle to the extent that they were trying these fees that were incurred he wanted to make sure those attorneys fees are retired first so that he wasn't stuck with additional liability under section seventeen what she's purports to do is rewrite the agreement this was an agreement that was intended to protect mr winship with no recourse protection and section ten should be applied as written it is very clear as this court said in two thousand and fifteen when section three was interpreted to impose a limited liability on his trust when not a single bankrupt presented a testified they never heard mention of the trust who are ever required unlimited liability from the trust but th we need to enforce the law and that's what we're asking you to do here in force the language as written now is to liability in obligations in terms of the allocation once again chase liability with obligations in a did so in its briefing which the court heavily borrowed from in its opinion the fact of the matter is we opposed chase's position that we were obligated to pay fifty million dollars that's all be opposed to the four hundred  twenty five million over the deficiency was irrelevant to mr widget and was not litigated below and was not disputed below and that's just a fact your time thank you very much we appreciate the argument