section five of the assistance agreement sets out the parties contribution obligations it mentions one hundred seven point five million dollar obligation to physically it doesn't mention any obligation on the part of ts t f c or trans ohio  explained how that provision of the letter from the council can constitute a hundred twenty six million dollar contribution provision certainly t f c didn't think so because t f c said in a security it's fine when the day of the transaction closed no consideration was paid by registering which was to your city or trans ohio in connection with these accusations that should settle the matter there is simply no contractual or any other contribution requirement corning han't that's what distinguishes this case from anson where the hansens actually did contribute their stuff secondly with regard to the matter of whether this was a very risky transaction t f c stock we presented evidence  these obligations under the assistance agreement are in section fourteen and essentially its obligations were to maintain the net worth of trans ohio if trans ohio's net worth fell below a certain level it didn't have to but also that simply wrong as a matter of economics the price that a purchaser pays for something depends on what that something is purchasing is worth it has nothing to do with the existing value of the purchaser so for all of these occur here the quotes from the hanssen case make this clear thus the fundamental requirements for restitution are present in the stock exchange the raritan stock was contributed we didn't have any contribution of stock here by either trans ohio or by ts so we have a situation here in which the holding company was a party of the conqueror right yes but you say that the stock doesn't represent the reliance expenditure of the contract that's correct because it could under some contract represent a reliance expenditure but that it just was not obligated to contribute any stock any assets under the contract but doesn't mean it didn't have any obligations under the contract it was obligated to maintain the dept worth of trans ohio if it fell if the network fell below a certain level it was never called upon to make good on that contractual obligations in simple terms you have two failed thrifts with a negative worth of one hundred thirty million dollars t f c obligates practically the zacks same amount out of this subsidiary worse the problem here is somebody is picking up one hundred thirty million dollars and it's all underwritten and authorized and taken as a central action by t f c help me out here somebody is picking up the hundred thirty million dollars in the primary party to be above hundred thirty million dollars is the the physic contributed one hundred seven point five million dollars substantially filled filling the hole so there was not a hundred thirty million dollars hole that trans ohio was found that in and that was in regulatory capital right that was  stock or asset contribution to this transaction the other aspect of the trial court summary judgment decision with regard to the forty two million dollars post acquisition infusion the court also where it's a matter of law on that and that your contribution and reliance on hormones because they have not presented any evidence that they would have they would not have made their contribution in the absence of the contract in the evidence is clear on well we want that closed before the citizens in dollar transaction close so as a matter of simple logic they wanted that money infused before the citizens and dollar transaction was closed but i was caught up on time on the the acquisition citizens and all yes they were contemplated type but mr burstein whose affidavit the plaintiffs rely on here says it had nothing to do with the citizens in dollar acquisition this is it page pay for one three or four of the appendix plaintiffs intended that the purpose of the additional infusion of capital would be to support future growth of trains ohio it cetera this capital infusion was not intended for designed to support transit lines acquisition citizens and so it could have been the case that they infused with the money in reliance on the contract but under this clear language they didn't this had i'm having trouble i don't understand the inconsistency of the church claiming exists that they're s g we we did this to support additional acquisitions but there could still be a long line on the form aronson's has been greed in their willingness to do what they could be but they had they didn't present any evidence whatsoever that remotely suggests that they were relying on the forbearance the only thing they say is we wouldn't have done it if we had known there would be a breach of contract that's not the per correct question for alliance damages the question is least the port erred in resolving the material disputed fact on summary judgment and before i get into my rebuttal time i just want to mention that the port need not reach the issue of causation because t f c has not shown that it contributed either  hundred twenty six million dollars or forty two million dollars to the transaction however the trial court simply ignored this court's repeated holding that breach does not automatically entitle plaintiffs to recover its reliance damages the plaintiffs must itself but it doesn't only clear f d i c this is one of those happy cases where an award of damages should allow us to pay third party creditors as well and those individuals would be bond holders with them but we think that the thrift did make a contribution and in addition to the facts that we cited in our brief in support of their proposition i would like to point out a couple of other facts to the court one is that if you look at the two proposals it's the names it strains ohio that's on the names it's the same it's the thrift that submitted the proposal to the regulators and as for this transaction to be approved if you look at the merger agreements  them with both citizens and dollars include the clause saying that the board of trans ohio has voted to approve this transaction as it heads to do the approval of t f c could not make the deal go through with the was a vote by the board of transfer higher savings and if you look at the actual forbearance letter unlike some other forbearance letters we've seen in some other cases the forbearance letter in this case is addressed to the bridge to trans ohio that's who was doing the deal here and that's who made the contribution now the question arises of course why didn't the district why didn't the trial court see it our way and two reasons were given says that it's governed by the law of the state of ohio and we have the recent decision of this court in the southern california case and there was actually a previous decision in west which that when the agreement hands the choice  provision this court will enforce the choice of law provision we look at the law of the state in those two cases i think it was both i think it was california in both cases from a southern drawl point and also in west that i think it's  california law but in this case our contracts are merger agreements i mean our assistance agreement says ephedra law doesn't govern we look to the law of the state of ohio well federal law by definition does not govern ordinary every day corporate law so we look to the law of the state of ohio and we've explained at some length why the law of the state of ohio would not allow the you can call it pearson the corporate veil  corporate identities the thrift on the one hand and the holding companies on the other and there's an easy way to see i think that this is the right answer because all you have to do is pretend that we had an open thrift here if we have an open thrift here then this becomes a case like glendale and like some other cases that come before the court where the thrift itself receives the damages and then the shareholders get whatever they get by virtue of being mr kirk you have fifteen minutes new entity what it did was to in the words of the corporal climb to permitted this merger to occur and what strikes me is that this is different from many of the cases that  before it's not like hanson it's not like others and the question is whether when a holding company permits some perjurer to occur person one of the contract pursuant to its contractual obligation whether that's the equivalent of contributing t equity in the subsidiary right that is the question but your honor that question has been answered in this court's cases in west fit let me start with wes peden occurred to hanson in west said this court had before it condition upon t have sees agreement to approve the merger of its credit trance ohio with two insolvent trips citizen and you know but the holding company here continued to hold the same stock in bring up in west fed the holding company bought the threat western hundred for one hundred forty eight million dollars it order to enter the deal with the government in our case it's different t f c already own trans ohio but i submit your honor that that difference cannot possibly be material there is no principle our economics or fact that would justify holding that a holding company that contributes at thrift that it just a company see into it another merged company you're required to issue new shares so what happened in hanson was the hansens own the healthy thrift rarity because of this new jersey or economic difference whether there's this interim creation of a new sub the economic about line the hansens came in only a healthy trip a lot stock and barrel and they came out of the transaction only the result of the merger their healthy trip plus the governments in saw the press in there that's exactly the same as this transaction and the only difference is that he didn't go through this mechanics of creating a new sub it can't possibly make a difference of  course asking the question what did t f c put it into the transaction out of its own pocket put at risk in your ask question about what they thought so your view is that any time the holding company permits the subsidiar  they contributed to the stock to a new land and then just continued to home the same stock your honor i would submit that the difference in the mechanics caused by this new jersey law did not change the obligation of t n t it was required to provide the government with proof that it approved the merger or what as a stockholder of trans ohio as the owner  the damages that are obtained are two pieces of damages one is just like west said put in its thrift in this case one hundred twenty six million dollars for it and put it risk and because of the government's breach put it risk in reliance on the government's regulatory contract promises and because of the government's breach and ultimately lost the second piece is separate and that's the forty two million dollars that it put in shortly after the transaction that was also put in in reliance on the government's promise first i must correct respect brother from the government the government in its brief on page thirty six knowledge that the trial court had sufficient evidence to support the proposition that the forty two million money in reliance on the cover absent the government's predatory contract promise and indeed one only need look at the supreme court's winstar decision because this was a case where absent the government's regulatory contract the part of their contribution but it wasn't enough to get the thrift to the point on closing where it was not subject to see that fill part of the hole but the transaction as a whole required the hundred seven the owner of the thrift not thrift itself the owner of the thrift was was permitted to recover the value of the thrift that it put into the transaction that was true and west said that was true and hence no way inconsistent with the factual position that the investment of the forty two million dollars that actually made was in reliance upon the government's promise when t f c actually put the forty two million dollars in citizen and dollar were already in the thread once they are in the thrift the sanity of the investment depends upon the government's regulatory promises the fact that they were thinking about making other separate the court really has correctly not reached that but for a different reason the question is the underlying question of position is whether t f c lost its investment because of the government's breach of its contract find that but for the breach trans or how would not have been seen i don't understand why it's a seizure is the question the question is the seizure took place question why did why did it take place because of incompetent management or bad transactions are going to occur as a result of the breach by the government that is the question your honor and because court found it had the government kept its word it would not have been se are there this court found that the requirement of conservation was completely satisfied based on the transport finding in that case that but for the breach all questions would not have been see exactly the same finding in that case and that's on page thirteen hundred sixty four of four hundred seventy third was found to be sufficient in that case we have in this case on page seventy of the  but apart from the fact that the trucks were ended up making the finding that they see the court was correct although again this court may not reach in holding that section three forty nine of the restatement of contracts in a reliance case puts the question of whether a contract if it had been performed conclusion would have been proper on problem here we're dealing with a situation not trying to estimate what would have happened after the seizure after the party stopped performing the determine who was responsible for the losses that occurred while the contractors for writing your honor is temporally correct but i would suggest that in the period between the breach and the seizure of the bank we're still dealing with a difficult problem a counterfactual world because the question we're asking is if trans ohio had this regulatory capital would it have been continued performance and then term your honor is correct i scoured the law books trying to find a situation like this where there was this gap between the breach and the you know close of events if you will in this case the seizure and just didn't find a case that directly for that scenario going either way but i would still say that section three forty nine in section three forty four of the restatement which says that the burden on the plaintiffs is to show that his reliance interest which it defines is costs incurred because of its because of its reliance on the contract not cost incurred because of the breach the cost incurred because of its reliance on the contract that's that's my burden is the plane section three forty nine says once i've shown once i show my reliance interest the burden shifts to the defendant to prove if he can that but for the br there still would have been losses on this contract and i can see your honor that all of the cases of authorities that uniformly hold this is the rule all dealt with situations where there wasn't this temporal skimping but i don't think that changes the proposals by trans ohio to acquire citizens and dollars and that tells you that they're the ones who contribute one hundred twenty six billion dollars but in fact if you look at those proposals which trans ohio said is there will be no direct capital a four quadruple or five with the appendix so trans ohio was telling the regulators we're not making capital infusion it wasn't telling the regulators were contributing hundred twenty six million dollars further what about west you have the same structure you've got a a holding company that contributes a the equity of the thrift which later is seized they lost the equity absolutely not held not the structure show me what happened in west four zero seven f third at thirteen sixty eight the government insists that the trial court erred in awarding west fit one hundred forty eight million dollars which is the total amount of west that had spent to acquire the old western stock whispered head out of pocket expenses of over one hundred forty eight million dollars in connection with the transaction mr kirk said well the government argued that the transactions weren't connected t f c owned trends ohio why isn't it an out of pocket expense to contribute trends ohio's equity because it didn't create contribute trans ohio say it did not infuse trans infuse its stock in trans ohio into the deal which relates to hanson and it didn't go out and spend one hundred forty eight million dollars as part of the did everything hinge on their authorization of trends ohio's contribution to assume the entire value of the deficit t f c the entire value of the deficit for first with regard to fish which contribution was almost wiped out because there was one hundred seven point five billion dollars business contribution the t f c was in the deal to maintain a net worth of trans ohio that is clear that's its obligation under section fourteen of the contract that's why  shareholders and holding companies are in so many of these cases they're there to maintain the net worth of the combined thrift tranter t f c was never called upon to to make good on that obligation it never became necessary to make good  with regard to the forty two million dollars t f c has apparently changed its position now saying that the forty two million dollars was a necessary part for the deal to go through that is simply not the case and again i will go back to mr affidavit where mr bush says clearly and directly that the regulatory capital was not intended to support the trans ohio acquisition this capital infusion the forty two million dollars was not intended were designed to support tr court found wasn't on summary judgment were party where the parties that needed disputed facts in the court decided on summary judgment in the facts show that they intended to infuse this money anyways so let's say what would have happened if there had been no regulatory capital contract it's t f c trans ohio is a position that the entire deal hop entire citizens and dollar transactions would not have gone through without the regulatory capital contract so that's the but for world that we're dealing zone documents say regardless of trans ohio when citizens were going infused the forty two million dollars finally very quickly with regard to section three forty nine of the restatement you only get to sixty three forty nine of yes there are because all the cases dealing with three forty nine are addressed in losing contract defense that is upon full performance of the contract would the contract itself have caused a loss we have never claimed that the contract the goodwill contract would have caused the losses what we've claimed is that these other factors having nothing to do with the breach and having nothing to do with the contract itself caused the losses the bad economy the bad loans those would have decreased should be still pertinent to the forty two million dollars yes t f c would have to show that the but with regard to the forty two million dollars if we assume contrary to what we believe are the facts that that was infused in reliance on the plaintiffs would have still have to show that the breach itself caused it some loss of her to respect to that forty two million dollars and it never even attempted to do that in the trial court just said that they were entitled to forty two million dollars automatically upon