consolidated cases and this argument is that total and a t p she quenched really own the same interests and the assets and therefore own the spode the same obligations to provide for abandonment costs and argument under her restatement section two hundred and ninety three is that where there is a full satisfaction of that common obligation it detached discharges both blood yours and therefore when a t p made a full satisfaction it discharged hotel now i'd like to explain why is it that we say that a t p made a full satisfaction of those obligations and our principle argument here is one as a matter of law and it depends upon reste section three hundred and sixty five of the bankruptcy code and specifically the fact that p assumes the operating agreements that contain the abandonment cost obligation assumption under this court's decision and national gypsum mean a full commitment to perform the contract and therefore when p and modus jointly move for approval of the bankruptcy court for this assumption under section three hundred and sixty five that was a commitment to full performance and it is inconsistent to find that t both assume the contract but then in the same breath only partially performed or partially satisfied we believe that that issue alone is dispositive but we are not relying just on a technicality here the reason why it's it would be unfair mogas to be allowed to escape the consequence of its assumption of those contracts is that it use the assumption at the time of the bankruptcy to satisfy the us government and that court can see this at page six thousand and one of the tw two records the government participated in the bankruptcy and it said we're very pleased to see that the parties a t p and moses have reached a deal had there not been an assumption had there not been a commitment to full satisfaction the government might have taken other actions it might have taken forced a more aggressive abandonment schedule to the detriment of mogis and or a t p the other consequence of the assumption and the commitment to full performance is that a t p and mobius it allowed them to on lock twelve and a half million dollars that was due and owing from marathon which was another predecessor interest holder marathon had contracted that it would pay twelve million five hundred thousand dollars upon proof of all performance of the abandonment and so those two issues show that there was real meaning here to mogis and a t p moving for an assumption as opposed to something else now it goes beyond that though the contracts here that were proposed for bankruptcy obligation and so again like the assumption this is a commitment to make full performance for other satisfaction under section two hundred and ninety three of the re state now the district judges number one didn't understand respectfully the full consequences of what an assumption means under national gypsum but moreover they focus on duly when it turns to the contract when they turn to the contract here on these proport reservations of rights so a t p in the same breath as saying we will satisfy the a t p obligations include a provision that said we will reserve our rights to sue others in the future and the district judges below said look that's evident that this was not a full satisfaction but again we turn to restatement section two hundred and ninety three which provides that these sorts of purported reservations of rights are being ineffective as a matter of law where there is evidence of full satisfaction and even if this court doesn't agree although we think the court should with our arguments that there that that there was a judgment as a matter of law was appropriate on the full satisfaction issue at a minimum this was a jury trial issue but the  so one thing to state of the threshold is our argument does not depend on an objective valuation of the consideration that was provided there was consideration provided including an overriding royalty interest including physical assets comprising the pipeline system and other consideration all of that was handed over but in on this appeal and in the district court in part at least we did not rely on an objective valuation of that rather we relied in the court's permission i refer back to the restatement section two  three illustration two on how the parties subjectively viewed the parties being mogis and a t p how did they subjectively view that package of consideration and in fact it would be very hard to come up with an objective valuation because at the time of the bankruptcy court approval it was not known how much the bynum it was going to cost that hadn't been performed yet so to be clear argument depends on how modus an a t p view the consideration as opposed to some objective valuation the evidence that we rely on there for how those parties viewed the package of consideration is that they assume the contract which again is a commitment to full performance and they described the consideration in the very contract that provided for that consider as a satisfaction of a so if i assign my house to someone else and they say we'll take on the mortgage that doesn't take away my obligation to the bank to pay the mortgage so even if the bank is happy with the person i signed it to they can still come after me for it's our position that this is certainly your honour's mortgage hypotheticals correct but to take that hypothetical our point is that if the assignee and that hypothetical provided consideration to the bank but the bank viewed as a satisfaction of the total satisfaction of the obligation it's the same obligation that was jointly and severally owned by the sign or in the assigning and it's that it's not that there isn't a spy it's not that both parties are potentially libel in the st instance although i'll get to that argument if we have an argument on that as well now i know for purposes of this argument i'm assuming that they both own obligation and our point is that there is evidence here at a minimum sufficient to go to a jury that the obligation was satisfied by one of those parties and when there is a satisfaction it would be double recovery to allow more than that and so really this is again in but this a i mean they want proof of what they did so it's not why i don't know hammering in the park and that should be good enough i mean i we have money involved and that's what i'm trying to understand how that all place now yes your honor and again i'm back to judge will as i think this overlaps with  willis question to some extent our argument here is one of how the parties mogas and he subjectively treated this package of consideration and in the restatement section two maybe three illustration two this really proves the point because what you have there is a one hundred dollar debt that was owed medalist ration and it was being satisfied by the parties by handing over books that were worth twenty five dollars and so the issue isn't that twenty five dollars is less than one hundred the issue is how the parties how the debtor and the and the party owing the debt viewed that the twenty five dollars books and if they view it as a total satisfaction that is enough even though in an objective sense it's less and that's that's argument under restatement to ninety three  if i could turn briefly to our other argument so the st argument again assumes argue endo that toe tell was liable even after making the assignment but we also have an argument our nd argument and this argument applies especially forcefully  same language in n c three or five so you want to say this language matters now you might say well no it doesn't how can you do that so your honor i grant you the language is definitely different and moreover d there are some cases including the seagull case from the texas supreme court which construed the language that's in the bits in the m p three or five agreement so we we would admit our argument is stronger as to the steps agreement and in fact none of the cases that are cited by our adversary or the district court involve that sort of specific language that's in steps operating agreement eleven dollars so i think we acknowledge that in the brief but just to make it absolutely clear we do believe our argument is stronger on that as t thinking of is in the th circuit's case i think it's the cutting case there was a question of when do you take apart the platform and you would only do that at the time of abandonment not at the times op aeration but that doesn't answer your honor's question are are high grade situation conceivably let me just oppose that even if you are as prudent as possible and preventing hydrates from forming during operation there still inevitably are going to be some at the time of the dam vandeman that's that's possible  argument here and we think we had sufficient evidence to go to a jury on it is that there was a delay in remediating hard to hydrate blockage during operation which exacerbated the cost at the time of the abandonment so it was it was a situation where there was a deferral of the same exact cost to the abandon period but it is possible there could be some residual high grade blockage in any event even if there was prudence what we're arguing is that we should be allowed to show to a jury and this is all in the context of our expert was actually blocked from testifying at all so we didn't get that chance but we would like to argue that this cost should have been taken care of during the time of operation and the key language in this in this operating here depends entirely we acknowledge on the title of that provision which is why it's not as strong as the saps argument but the language is abandon the operations required by governmental authority in our point is that that is the prerequisite for the gateway to that is about the overriding royalty interest and the dispute about whether or not the point raised on appeal which was covered in route fifty billion was not promptly raised in the rule fifty actually believe that the record is that that argument was only made for the st time in a rule fifty nine dollars motion it was not even made in the fifty below motion as far as i know either way it was a waiver an argument and the reason is because case was but i'm under the merits our point is that because all the other parties had settled already and are out of the picture and are not subject to litigation the only conceivable party has left who could get credit for that eleven million four   the issues adequately brief but the language in the m c three hundred and five case tracks very well and very clearly what's going on in the siegel case and so i think that from a isolated issue relating to and c three o siegel is directly on point now to address some of the question and answer relating to the steps agreement there are two provisions naturally in play eleven three which caused a question by the panel earlier but we can't forget about eleven point me fourteen dollars also which we think also has very clear language at the end of the day which is directly on point so the few things i would like to say about you need to look at that language both ways it's just not you know pinpointing that it's just the party that happened to be the last party and standing at the end of the day it also said that no one should pay more than what they owned at the time so from our and what's in orton about that language is that normally there is often a question as to what is the scope of what occurred before or after the assignment the parents out of all important team point one which says which obligations include liability for abandonment of the common system or that portion of the common system in existence as of the date of execution of the assignment clearly indicates that in a scenario in which of vandeman is due and one of the parties owning at the time of abandonment is not performing that the absent nor remains liable but only as to the extent of the system that was installed at the time of the assignment now the record is clear the entire system was installed by the time to challenge signed the a t p in two thousand and six therefore it's a full scope of an amount liability retained to sounds someone encouragement to the panel is if you're looking at eleven three you need to look at it in the context of setting kind of global percentages and we ha three parties at the time of the ban on the black male a t p and there it being so once you set those if one of those parties doesn't perform you need to then look to fourteen point one to see what you can do and that  i think at the time of abandonment indicates like i said that you have the concept of each party don't need a separate percentage and i don't think this is the driver but the percentages within the canyon express operating agreement are a little bit more nuanced because there were three different properties feeding into the pipeline system and there was a waiting average that allowed everyone to come up with the percentages so in section eleven dollars it talks about the equity interest at the time of abandonment that's talking about what each party would in order to divide up who pays what has nothing to do with a release a waiver or any type of ability for an ass ignored to say i fully relied upon an eleven point three to the full exclusion and i your fourteen point one when i did my assignment and without a release from the other parties i'm scot free and so when you look at the language in eleven point three  if there is a default by one of those entities you then go to fourteen point one and then go back up the chain of title as appropriate so for example the predecessor to blackmail who also didn't pay and was in bankruptcy paid their full share b p marathon they were both predecessors also the a t p they paid their for share they didn't limit those payments just to empty three hundred and five or the other propert involved it specifically included the caning express pipeline system so in our view it's a two step process eleven dollars gets you to what the percentage is for each party owning at that time and if there's a fall on certain of the assets not including mccain express so let me be clear a t p and then you are not the same entity they're not joined at the hip they don't have common officers or directors they actually had an adversarial relationship during the bankruptcy and during the foreclosure process and then who certainly was not a co op with or returning express assets the underlying agreements specifically include acknowledgement say they're not insane and i understand that and if this is the case about a c p vs then too that would be one thing but it reminds me a little bit of a country that civil war and then gets attacked by another country all of a sudden the civil war countries come together and w p the government was concerned that all the good assets were going to leave the building the beni you and there'd be a pile of p m a left for everyone else to do with rats so it came directly from the united states government part with in that regard to contribute to the process so i respectfully disagree that the new was joining to have for fully supporting a t p with the baby quite frankly where adversaries at that time it was through the federal government putting pressure on venue that resulted in the contribution being made at the end of the day and what we can't l of the bankruptcy judge saying on saying i don't want all this means you know is to tell benefiting from this or not or i'm out of there so i kind of yes you can reserve rights but if you full satisfaction if you have a one hundred thousand dollars car wreck and you've got a one hundred thousand dollars reserving your right against mr x you also cause the car x doesn't really help you you have complete satisfaction but one satisfaction will in texas i don't know much about alabama but i do know a fair amount about taxes so the one satisfaction role is that you've been satisfied now i understand your argument here that you pay dollars that are more than you think you had a i get that but i'm just saying that the total satisfaction can depend on those circumstances so i don't know that the fact that you  does not extinguish the liability of other parties where there's been a reservation d of rights and there is one place and the argument that that can be brought in is that there's only one place i think in the entire reman where it talks about what actually happens to be around and it's clear that the credit that is provided that can be taken by a  the other predecessors only comes into play if there is an actual payment made which certainly hasn't happened yet and at the end of the day you know most likely will not based upon the evidence presented a trial so when we go through the process and you think about how things were divided up within the bankruptcy court the whole point of the abandonment fund was to ensure that whatever value in respect bella bama not texas but i think when you have the reservation rights and you look at what occurred from a transfer of of value that there was no satisfaction in this documents does it say full of satisfaction and know or can be read that sentence faction trumps the reservation of rights when you look at alabama law and no lawyers there you know any indication that hotel contributed anything to take advantage of this release that you're talking about at the end of the day and so when you look at the alabama case law point we think it's pretty clear that when you have the reservation rights included within the underlying documentation the full satisfaction document with full satisfaction argument you no longer holds water at the end of the day now under the restatement of like to point out a couple of things number one is are explanations of what happens when a promise or is contribute this or contribute back then when you walk through each of the examples it's still contemplates that each of the parties involved is a promise or so if directly to restatement to ninety three then they do side to holland the united states case but that applies illinois law not alabama law and also very clearly doesn't deal with a scenario in which there is a settlement but when we go back to the basics leading from our perspective it is very very clear that ben you and a t p are two totally separate companies and there is no actual go obligation for a venue to contribute the override to the process because of a relationship with the t p with marriage being or with town it completely came from pressure from the government at the end of the day and that's in the record you know i think fairly with their lives and it is even something within the briefing at the district court level that took has acknowledged at the end of the day so with that unless there are other questions your honor we do appreciate your time and we would like to plead for the release as articulated within our briefing room so i can then this exactly of twenty minutes thank you nicely done all right mr y st you chance yes i'd like to start with the alabama last point that mr goodwin talked about of the court at its leisure could look at page thirty two dollars note nine of the opening brief we cite several alabama supreme court cases that have relied on  restatement nd of contracts we acknowledge that the l d s supreme court has not yet endorsed or rejected two hundred and ninety three specifically in any case but in a longstanding case from eight hundred and fifty two and then in a more recent case from two thousand  performance and satisfaction of the debt or duty this shall discharge all for the obligation being satisfied and discharged as to one it is necessarily satisfied and destroyed just to all that's alabama law we have little doubt that the alabama supreme court would follow and ninety three dollars in light of that case if this court has doubts about that the court could consider certifying the question to the alabama supreme court but we don't think that's necessary we think the law is clear now i would like to talk about ben you because mr good one focused a fair amount on  here is not that the new ever owed any obligation then there was a creditor of a t p it had a vested and porton interest in success of the a t p and its reorganization proceeds and therefore it had every interest in the world and making sure that happens therefore to resolve it in a way that benefits the creditors exactly they wanted the debtor a t p to survive so that the creditor would do well in the long run and if i could refer the court record to to a two page five a thirty three dollars paragraph five we think this is the clearest language in the case on this ben do issue what it says is that a t p will satisfy the oddly a t p obligations regardless of the part of conducting or causing to be conducted to be commissioning activities solely in accordance with this agreement and they both come from the new but one half goes into the banishment fund the other half goes out right to a t p to sarita mogis and in the record there is evidence that whether or not a well was ever to be built that piece that half that  objective valuation but there was real money here and in the grief of mogis the final brief in this appeal notes thirty one dollars they acknowledge that there had been an offer to purchase a package of all our lives including this one for much more than eleven million four hundred thousand dollars so this is a marketable ask that it has real value we're not trying to escape on a technicality here one thing the other in the oil and gas world is although somewhat up and down  down there's been other days i can still remember waiting in long lines to get gas and then it's absolutely and i think the relevant time here is the time of the bankruptcy court approval and at that time this had real value now one point that i didn't hear mr goodman address at all which again i want to go back to because really the linchpin the most important piece of our full satisfaction argument is the assumption the section three hundred and sixty five assumption and we heard mr good once i didn't hear him address that i did hear him say well then you put in its money only because it wanted to satisfy the us government but that really proves our point on the assumption an assumption under national gypsum this court case means a commitment to full performance and we have the u s government involved in the bankruptcy wanted to see this abandonment take place wanted some certainty it was in mogis and a t p s and the news interest to give the us government that certainty they did it via an assumption and to allow mogis to take a different characterization now