in the appeal is the journey does not defend some of those errors that are quite significant going to start with the contract interpretation issue really there's a lot we briefed about i think the easiest way to encapsulate the problem is the lease has three separate descriptions of what the property is in there all inconsistent there is the reference to the p s a there is a separate reference to the attachment to the lease and maps what's exhibit in exhibit in is in the p s a so that the p s at the lease is attached to the p s a exhibit because you're relying on exhibit and it seems that the same thing as the map you just call a yes you are but then the the difference is that exhibit eight police correlates to exhibit j in the p s a and those are not the same so you have three different descriptions all of which are because that's what has arisen you know given rise to this entire dispute and i would also say that the other thing that again the easiest way to understand the inconsistency here is when the reference in the p s a the care c c properties those are to find those used the term capitalized properties but everyone agrees those are just within the blue lines however that same term capitalized properties issues throughout the p s a in journey says it means something else in the balance of the p s a so again you have terms meaning different things at different points in time if journey's interpretation has helped and all of these show why there is an inconsistency here and of course the court to try to resolve the inconsistency relied on the canon of construction against the drafter journey does not defend that on appeal and says instead well you know this or throw weight on might help us if we put some of these things you're making in cont instead of just talking on beleaguered generally about inconsistences if you were to show us explain what the court found overlook regarding these these documents and broader universe of properties out the maps of a is an exhibit is written exhibit i'm sorry i misspoke it was a one of the maps a are the descriptions so a has a product description in the maps and then when you the third description in the p s in the lease is it refers back to the p s a in the p s a has an altogether different list of the properties its exhibit j in there are differences there i'm sorry i did it again there's multiple different exhibits here i'm trying to keep a and enter with the p s a a is the listing of all the property but that's to the lease your honor not to the p referring to the further assurance clause or i have to correct that's correct and that's significant if that's limited to just the further assurance clause well i think what's interesting about that is it is as we explained it makes no sense to have a further wanted further assurance they were it was going to be sure to get all those even if some of those were somehow the two sloppiness omitted right and but i think the with that is they're relying on extrinsic evidence to prove that point up our whole point is there should be extensive evidence here allowed elucidate the meaning of the contract there were a line on it to give their interpretation of exhibit in which is exactly what the district court did the district court cited you know relied on journeys argument about extensive evidence for why the further assurances clause doesn't mean what we normally think of a further assurances clause and then the district court invoked the can of construction against the drafter which again they do not defend on appeal so we think that those are significant errors that highlight the ambiguity in the internal tension here itself are the references to book and pay are those to the county clerk's property records or what are those references i'm not i'm not sure but i mean you know when i started this i said oh i'm going to find someplace where it has and they do not try to reconcile the court's reliance on for a three with the basic test under four three or this court's precedent under four or three and there's a reason for that this court has to maximise the probative value in minimise the prejudicial effect there's no dispute that the court excluded evidence of e q t s intent in understanding leading up to the consummation of that contract kentucky law  seven says that you have to give the alleged willful trespass with the opportunity to prove the trespass was innocent and this we were trying to see with your position has that the testimony from what and all that you don't get the testify so to respond to that first the herald case from the kentucky supreme court a couple of years ago it involved a two thousand and two trespass and considered evidence back to one thousand nine hundred one so there's no restriction on how or you can go back and what's critical here your honor is that he was never able to answer the why question why did you have this understanding why did you base your belief on these maps  that's what this extensive evidence would have showed in fact journey in its closing argument mocked mr morris because he couldn't answer that question they attacked mr shockley because he didn't subsequently map these properties but the reason was was because he understood pre contract that it were these maps are in the data room so there was no need to do that but he wasn't able to tell that story and then in closing journey points to the contract and says look at this contract there's no provision in here that says it's these maps that control but of course if he had been able to get its next it's testimony in about his understanding it could have answered that question in certainly under is what he said it's a broad conceptualization of to tally the circumstances we as the trespasser bear the burden there and that's all more reason to allow this evidence the district court said well i'm concerned this might waste in the universe of testimony here probably consumes less than two hours we're talking about a week long trial it's not going to lead to weeks and weeks of additional testimony and the other thing the judge says i'm concerned about you attacking my understand my ruling on the contract well there's no inconsistency by saying the judges rule the contract means x and we understood it to mean why that is indicative of good faith i mean that happens all the time parties misunderstand or misinterpret contracts so minute ago you cited a case for i'm bringing in earlier testimony the intent was that  concrete carried yes because i looked like it cited in your blue brief but maybe not for that same proposition i wasn't signing for that proposition and it is relevant to many other things including if i have a minute pre judgment interest and i think that's mathematics are in dispute and by correct in effect the pre judgment interest means if they win on the other points you stole my oil in two thousand and eight and it was worth a million dollars and i don't get my money until judgement until two thousand and fifteen why shouldn't they get interest for that you had their money for well because i think this but that's where here is is significant it says unlike a normal case where you say oh right i was damaged by this i'm out i get to deduct my expenses you get the net profits in a willful trespass case you don't get to deduct expenses and so what that means is there was less than four million of what we would think of as compensatory damages you stole a million but it cost you half a million to do it right and so you add the five point four on which is a punitive measure and what here and said is that is a sufficient penalty for a willful trust passer so you should not get pre judgment interest on top of that thank you for your time for  very simple situation it's a lot of money involved sixty four million dollars you've got leases scattered over three counties actually five counties which i'll get to in a minute because i think that that fact totally undercut argument but at the end of the day judge maintain who did exactly the right thing he read the four corners of the contract that is his first role as an interpreter of it he read it he found no ambiguity s and t has still not pointed to any ambiguities in terms of what's really important here they're saying the exhibit in further assurances maps was meant to be coextensive with everything that was conveyed and yet they cannot point to a single provision within any of the documents that could be read that way and that's the test for ambiguity is there something that you can reasonably ascribe a different reasonable interpretation to and they simply do not have that here if i could take just a second to maybe put a little bit of this into context because there's a lot of confusion exhibits and all that sort of stuff the p s a that is simply the agreement whereby parties say we're going to agree to make an agreement down the road we've got the parameters of this but there's a due diligence period two months so they enter into a p s a in october of two thousand and one journey in the kitty where they say ok we're going to have this due diligence period of two months each city is going to scrub that was one of the words used by its its employees cindy perdue that was her job during this two month period was to scrub the property descriptions not the maps the property descriptions to make sure that everything in there accurately reflected what was going to sell to journey that's exactly what  now the resulting documents two months later when they executed the master assignment of the third party leases and all the pipeline facilities within the blue lines the leases were out i think the the evidence shows that there were thirty five properties all together that had acreage outside the blue lines both third party lease and fee properties now i know that demonstrative it's are usually not used in oral argument up here but i do have a map if i think it's easy to see we did pages that such are in the l b pages are that where you would go to find some bio exactly exactly exactly your honor and and the important thing about well let's take exhibit exhibit a to the p s a is the third party leases exhibit a to the master assignment that was the formal document but which those were signed that's also exhibit a but they contain the listings and the most important thing there is the least number and  acreage amount for instance the fordson lease that was the first when the journey discovered there was something really wrong with when it started looking at the documents after it had assumed for a number of years that its operations going kentucky had actually mapped out what's on the exhibits the the lease boundaries and the fee track boundaries but he had not done that as we as we know of course but but when you look at forts and every key witness agree that when you see least thousand three hundred and thirty three acres in fact people recognize that in two thousand and six of course as we know when i get to talking about the the the bad faith but but on the ambiguity not only do they not point to the provision as i said that would indicate that exhibit in circumscribed everything but there were two counties in western kentucky crittendon and hopkins where each e t assigned to journey leases in producing wells in fact the exhibit deed to the p s a which listed all the wells that he was going to assign to journey and i think there are some four hundred thirty five of them the first probably exactly and they're not part of the same lease in other words leases can like forts and be scattered you don't have to have all contiguous property but hopkinson crittendon those properties those tracks were not part of any lease that related to leslie letter perry county which of course we have the blue the blue lines for him and he has never explained how in the world journey got good title to anything in hopkins or crittenden because  if the if exhibit in means everything it means we really didn't get it and it was you know it's a sham transaction the exhibit in it is as as the court pointed out very specifically targeted to the further assurance he wants once the court to think that well journey just thought it was getting all this other property for free and it didn't care or else it would have put it in into into exhibit and but he g t overlooks the fact that in both the assignment and when  properties to journey there were special words of title in there it's not like they would have just dropped off the face of the earth if something had been wrong with it e q to warrant a title and then gave journey the further assurance because of the importance of what was inside those blue lines that's where all the infrastructure was you know when you're an operator you don't just go single well out where there's no pipeline no gathering lines no nothing unless you're just doing a total walk at what you do when you make an acquisition like this is you start where the low hanging fruit is you know where you know you've got production and that's that's exactly what happened here what about tell us about the their recent argument about the rule for  standard it would not have made the slightest difference to the jury verdict and judge entertained who did not exclude that evidence solely on any grounds that it might have been prejudicial to journeys case he also said it would potentially miss mislead the evidence and isn't that going to basically make the trial the same scope as if i had a summary judgment motions and the answer from counsel was yes so it would have not added just a couple of more hours of testimony it could have potentially drag this thing on forever in a very misleading way but each u t s preach to thousand one intent doesn't make a difference for at least a couple of reasons number one the jury knew you know if they if they were halfway awake they understood because everybody was talking about well after the two thousand and one transaction here's what a cutie understood we had these blue lines we thought that that was all we conveyed and that's where we  tried to be really careful not to drill inside even though they did do twice as it turns out in the mr shockley of course he agreed on cross examination that he assumed after the transaction that the blue line meant everything and if you look at the blue lines on the post two thousand and one transaction maps that mr morse testified about all you have to do is compare him to exhibit in and you'll see that they're basically the same maps so i don't know how the jury could have missed that fact but what was really surprising is mr shockley said that he didn't map the properties to see whether what journey bought actually was only within the blue lines as he assumed he actually said he didn't know and he didn't care now the journey people back in fort worth who wants mr shockley left left free t t they took the prop the all the files in house in fort worth and started looking at the stuff and realized we had you know we thought that this guy knew what he was doing but apparently he did not so so you have you have the fact that the jury understood how the exhibit in maps related to the maps that were shown later but more important is the totality of the circumstances yes you want to look at that in a willful trespass setting but it's the time of the trespass what did the trespasser know at the time of the trespass that we might have made it earlier intent reasonable or unreasonable and here we proved in the jury accepted the fact that it was totally unreasonable e t a s to recall paraded in front of the jury i don't know probably thirty title opinions all together trying to say well yes we always had good title before we drilled but the way i kind of look at it is i don't know how familiar the court is with with well units but what you have in kentucky she got a five hundred foot radius around the gas u well and i think it's three hundred thirty feet around the gas and oil well excuse me and so that's about eighteen acres i believe if i can pile math correctly which in about eighteen acres and a lot of times when you go to drill the well part of that eighteen acres you know sometimes many parts of it will be owned by different people and those different tracks are what constitute the well you know and you've got to have good title to every single trac in that well unit to make sure that you're not trespassing and put in these tidal opinions but then on cross examination every one of its witnesses had to answer the question ok you are giving title on this tract and is that a track that journey has an interest in well no so it really doesn't matter to this case right that's correct that's correct i mean it's kind of like you know we've all played trivial pursuit i imagine and you've got the you've got the the pie in the wedges where you have to answer all the questions well you know e t t says well we got we got history and we got you know we got arts and literature but you didn't get science and nature and that's what journey and she didn't put that piece of the wedge into the into the pot and i think the jury was in fact there was a two thousand and four opinion that dealt with a totally different tract and then you've got people like dale phillips and jim kaiser going into perry county multiple times the charity that each t t for years said that's that's all turning up was perry county they trespassed in there three times agreed at trial that there were in fact assignments recorded to journey in perry county and they just chose to ignore them that's what kaiser said mr phillips said well you know when i'm running title i just i just run it up to the time that the that the least with execute it everybody else said that makes totally no sense because it doesn't you know to avoid a trespass the lessee the driller you've got good title at the very second the drill bit goes into the ground so from from all the evidence of title opinions ichi t double sole property you know conveyed it conveyed some property to journey in two thousand and one and the very next year it sold that same property to a company called d p i which then unwittingly drilled for trespass wells i mean that the proof of each bad faith or lack of good faith was was was crushing and i don't see how allowing witnesses to say well this was what we intended going into two thousand and one would have made a dorm bit of difference in fact one of the cases the cittie cites the start when versus a presidential case this court discussed what prejudice means in the context of exclusion of evidence and harmless error and the definition of prejudice there is there's a substantial risk that the jury made a determination of liability on an improper basis even if the rest of the evidence did not clearly support a finding of liability and we submit that of course that's exactly what what happened here just a quick word on the on the pre judgment interest about each he's calling pre judgment interest punitive but but it's not it's always helped me about his response because i thought i was good on my off there or i said you stole a million you had it for seven years so you ought to pay interest on it  his response was well you know it cost us half a million to steal the million so well we should only go ok there's a distinction to be drawn here between the further assurances interest and the trespass interest the further that was what judgment hadn't been taken have compound it from two thousand and one because those were purely compound in versus simple right for that for that universe of damages the further surance and you know equitably i believe he had ample reason to do that because when we brought those further assurances properties to the tent attention they keep saying of the blue lines mean everything and we said hey here's some stuff in the blue eyes and they say you can't have it we're not going to give it to you so we have to go through a trial on latches even though we sued for those interest within the fifteen year statute of limitations my time is so that i think you know on the trespass damages prejudgment interest which judgement hayden have decided to make only simple even though we had asked for compounded these trespass wells were drilled at various times because of the statute of limitations we were only able to recover damages from two thousand and six forward and go back five years from when from when we raised the claim and e t we didn't get reimbursed ricci's cost of drilling they didn't have to pay us that we only got five years worth of damages and in early production is always the strongest because that's when you get pressure you see something in the pressure and that's when you get the best production we didn't get any recovery for that we got to five years later and so because of the the damages calculations that stipulated to and because of the way it conducted itself as a company in dealing with these trespass wells and denying and delaying misrepresenting things i believe that judgment  that was really kind of equitable relief that the district court granted well pre judgment interest in this case where it's an liquidated damages the court had total discretion whether to award it or not ok but it's not  starting with a four a three issue of the journey to the jury did not understand all this if the jury had understood all this we went to the judge in the middle of trials have their opening the door we need to get this evidence in and they fought it tooth and nail in the judge wouldn't let us get in if the journey or if the jury understood it why would they care and they cared because they were able closing argument to attack the credibility of her witnesses and the judge said and when he was discussing harmless areas and said well i don't want to get into revisiting credibility of terminations but that was critical in a bad faith case and to be able to shore up the testimony of mr morris and mr shockley to show that their conduct was consistent with subsequent actions in to answer that why i question was critical and where she says well this could have a long gate of the trial i mean we're talking about two witnesses maybe three with mr is it because they were all already testifying it's simply going on another line of questioning here in journey's other part of the response to that is oh my goodness there is all this other evidence of bad faith then why not let us make our defense why not let us tell the whole story they say that wells time a trespass that's all that matter but it's not as if e q tyranny other trespasser wakes up in the morning says i'm going to go drill next door it's all part of a historic understanding and that's what kentucky courts have recognized in applying the the circumstances to us the courts routinely look at evidence back in time to understand why did the trespasser do what it did remember the test and ask you this seems like most of the evidence you're complaining about not having  michelle weber these are what land managers contract managers who apparently found some questionable things about what property was conveyed or not mis occurred after two thousand while and that's that's right you are but i think remember the kentucky not you actually have the right to go in there that's indicative of good faith now only it's going to be a dream determination at the end of the day very early that i guess there's sort of a obligation of due diligence that i guess they felt your client didn't do that's correct your honor but i think this goes back to my my fundamental point which is we weren't able to answer the why question and say what is the basis why did you understand this and it dates back to prior to  contract this is what the maps that were drawn they were supposed to encompass the totality of the circumstances or totality of the transaction and the interactions with mr shockley who went in the data room and saw those contracts and was told that's the deal