documents with regard to their their customers would be kept under seal my client rely upon this and perceiving forward into sky every documents were filed under seal and at the conclusion of the case have the court granted summary judgment the court unsealed the documents we understand that there is a common law a right to public access but in this instance that is not an absolute right and it must be weighed against the competing interests interest of my client and having its trade secret documents its pricing documents held in confidence there's been no outcry for those documents the only into ts we would assert that would even have any interest would be our competitors our customers and our potential customers we rely upon that and we feel like there is no basis that the weighing of the interest should protect those remaining under sail at this point in time the next issue and that of course is the made at the cases that i mean if i can about the the documents under seal as i look at the record and you please correct me if i'm if i have this wrong but it's my understanding that the district court i read the judge's order as i final order without prejudice she made her ruling and said you can come back after the fact if that is still necessary it would be our position that this court ruled that the judge did make a final ruling but it was without prejudice that we could come back later so we would a start because we're before the court this is the appropriate body to respond to that issue did the district court also indicate that subsequently that it would reconsider the matter after a mandate was issued by this court the court as i understood it did not our motion without prejudice and that was if we wanted to affirmatively go forward we could before the district court but at this point the district court has ruled it would be the position that we would take on it and therefore that it would be right for this going to far as a matter of the facts in the record did the court state that it would reconsider the matter after this appeal was complete after a mandate had been court gave us fifteen days to file another pleading if we wish the court to review the items one about one but did it make reference to reconsidering the matter after a mandate was issued by this court that's my understanding is what judge wright said i understood that we would be given that right but that the court had made a ruling and said that's not i understand your position on that but if all of that is true i wonder why would the president action before the court to allow judge wright an opportunity to review the matter if she indicated that she would after the appeal itself was climb of reach of contract and detrimental reliance or promissory estoppel those each of those issues are findings of fact the court may only grant summary judgment if there are no genuine issues of material fact we would submit that there is overwhelming evidence from which the court could find that there was a meeting of the minds as to a contract in a document titled letter of in t n and that that was for present action as well as for future action would further submit that both the documents signed by the parties and their e mails going back and forth showed the meeting of the minds that they entered this document with antient that it was important they went back and forth on the tarmac and then through their actions bonza knew that future fuel would only go forward with giving them the supply of the e m if lorenzo would commit to make a purchase the letter of intent provides that back to the district court will testify as to what they thought they were doing it would be a fact question yes your honor these people would testify as to how they entered into the contract what their motives were when they did it londa didn't back out of this because the contract terms were complete they backed out of this because their business interests changed but they knew at the time they entered into this the parties agreed at least for two thousand and nine a thousand metric tons would be purchased and that that was the only reason that would go forward future fuel told them there are e mails back and forth that indicate they knew that unless they gave that volume commitment future fuel wouldn't be able to give them the quantity and quality of  m they required therefore they entered into the letter of n t l which by its very harmful shows that it's a contract but particularly when one considers the exchanges back and forth it's a contract we w assert that the district court in essence used the wrong factual and legal analysis the district court said the crucial question is whether the parties intended the letter of intent to serve as an agreement to go to negotiate a future long term supply contract or whether they intended the letter of intent as a long term to proc contract that would be memorialized in a formal agreement it was it was neither of those it was a contract they entered into that provided for several things it provided that future fuel would stored the e m it provided that future full would produce and logs would purchase a thousand metric tons of d m in two thousand and nine and it was a contract that the parties would work together to work out the details of how the purchase orders would be done how the orders would be failed that wasn't the contract the contract was that they would purchase that much in later years the contract regarded how much they needed it was not an issue of a specific amount but for the initial time it was a specific an amount and lawns and knew that and logs are reported in there a miles back and forth monza specifically stated there  promised a far too large quantity to future fuel over and over they indicate seven hundred your proposal that we agreed to in the letter of n t and lawns a clear before during and after that they knew this was a requirement upon them this shows a contract and it shows a meeting of the minds and it's a question of fact for the court if it's a question of fact for the fact finder to decide  do this unless something else happens this didn't include any escape clause there was no way out of this this was an act of firm adib statement that they would purchase this amount it's something that the parties knew was important because they went back and forth on it we would continue but that makes this a contract this is a writing on which the parties had a mutual meeting of the minds and that the circumstances before during and after demonstrate that was your client ready to perform absolutely my client was ready able to perform they did not perform because the already breached and they were not required to make the thousand metric tons and send them to yes they were perfectly ready and moments before future feel they were going to go forward with that law as it was at the future if you'll still be doing an audit to make sure the future fuel could make this supply lozells watching all along this future fuel spent one point five million dollars reconfiguring something else and it's metric tons for two thousand and nine yes that would they did that through emails and i was each or was feature for fuel did future fuel produce enough of this substance to satisfied that what she say was an obligation to say all lines a thousand metric tons of this substance they could have produced it but they didn't produce it because they weren't going to be paid for it was a matter of they would have to expend all their time and money for something that they could see wasn't going to go forward because lawns a declined to be beyond the contract that they entered into they declined to make the purchase that they promised and contracted for  is no it didn't it didn't produce enough of the substance to satisfy the one thousand metric ton requirement for two thousand and nine now i know you've got an explanation for that but i just want to clarify that it's or is no the answer is now and the answer is no because laws i had already breached and therefore its obligation to go forward and produce that was excused balances breach that would be our position with regard to that in the event that the fact finder funds that a contract was not created we also sued on the theory detrimental reliance or promissory estoppel that he is an issue where a promise was made the promise or bonds a knew that future fuel was relying on that promise that it didn't go through with it and that justice can only be start by requiring them to do so again this is a fact question decide the case it says this is a question of law for the court in t arkansas law case and arkansas courses cases are replete in indicating that whether a promissory estoppel climbs the stablish is a question of fact again the party's lawns a new threw out the e mails future fuel told onza we must have a commitment from you before we can go forward with this launch his own internal e mails indicate that i knew that future fuel required a commitment and that they had a couple of choices and if they wanted future fuel to be the one to produce it they had to make a commitment to them and if i may just touch again on the other issue that is the jury trial issue rule that neglect alone can be a factor that will override all others and granting a jury trial there's an important constitutional right to a jury trial that my client is denied if the court doesn't find that the district court abuse discretion the court dish according knowledge this is the kind of case where jury trials are used the courting knowledge that it could rearrange it schedule and that it wouldn't be a hardship the court found that lawns of would be prejudiced if we went forward with a jury trial the request was made three months before the trial date one of the cases on which long to realize the jury trouble question was made just a matter of days before the trial has to go forward in this instance the court could have if further discovery needed to be done it could have been done wanted didn't establish how or why it lost anything it just said its tactics would have been different there's nothing that couldn't have been fixed particularly when we were three months out from a trial da no expert discovery had taken place no motions had been filed moreover there's an eighth circuit case that indicates that once a case has been tried is appealed and goes back down again for of a jury trial right is excused in the parties are able to start over we would continue it particularly since we've got this appeal now that if we go back down again there's eight circuit precedent that say is any prior waiver is no longer a waiver and we would submit that this court has the opportunity and obligation to make that ruling on its remained of the summary judgment the final issue that we've raised on our appeal has to do with attorney primarily sounding and contract this case did it primarily signing sounding contract contract was a substantial issue but the cases say that's not enough so we would contain there's no propre at award of attorneys these if the fees are awarded we would say that the face should at the very least we've taken off i thought you were continuing this a breach of contract it is both this is we can t end first and foremost it's a breach of contract we recognize that we may not chin the bar on that therefore we have a contention that it's a promis detrimental reliance either of these can be found by the trier of fact had we had a trial and we would have had a ruling on one of the other than we would have known in this instance lawn's us time was spent defending both of those climbs their the billing in trees don't show how they were defending one or the other at the very most we would say they would get a portion of their things but we would contend that in this instance this case is both the perceived on both theories and for that reason they're not entitled to attorneys fees because  it remains not primarily a contract action at we have cases that bush to make you've got it your client has to make a decision as to as to what it contains this is you can't have it both ways it's whatever we're able to prove it is and we recognize that we may not be able to prove it's a contract it's it's either of those it's whichever we can approve and yes we have cases that side just because of a contract is a substantial part it's not the primary part i don't have a case where the two issues are detrimental reliance and contract and it's a summary judgment in the court decides at that point your honor if i res action and that the court further affirm the district court's award of lines as attorney's fees incurred in the defense turning first to the order granting summary judgment we believe this court's determination as was the trial courts can be guided by the application of pure legal principles under arkansas law because there is simply no evidence in the record supporting the existence of a one year supply contract or legally enforceable promise obligating lanza to purchase develop and execute the definitive supply and agreement under which they would be bound and in fact future fuel concedes your honour's and i believe this is critical they concede in their brief page nineteen that the letter of intent did not obligate lanza to purchase any d m whatsoever in two thousand and ten or two thousand and eleven in fact they concede that the letter of intent was merely a contract to negotiate in good faith toward a definitive supply agreement under which the parties would be bound and the flaw in their theory is that neither the letter of intent nor any of the evidence in the record distinguishes two thousand and nine from what future fuel concedes was not a binding contract or a binding promise for two thousand and ten and two thousand and eleven and the reason for that is to to for two fold the letter of intent on its face announces that it was exactly what future fuel described in its proposal to londa it was merely an outline for the basis of a future business agreement and the letter of intent was only to describe in broad terms that future agreement those were future fuels words in its proposal and the letter of intent that the parties then signed a mere four weeks let later expresses and announces in three separate places in just the purpose section alone that the parties intended that they would move forward and negotiate the contract pursuant to which they would apply their  signatures and then be bound and specifically your honor the language of the letter of intent does not include any specific language for two thousand and nine the creates as future fuel would like this court to do to create a free standing contract out of that letter of intent the only language the future fuel can point to in the letter of intent as creating this short term contract that they call it is the language under the long term supply section of the document in which future fuel argues we're using the following language that lands a greece to purchase a d m from future fuel with the following volumes a thousand metric tons for two thousand and nine and futures fuels argument stops there but that sentence continues eighty percent of its worldwide demand for two thousand and ten eighty percent of its worldwide demand for two thousand and eleven there's nothing in the letter of intent that bifurcates two thousand honor that the language that is cited in the letter of intent does not create a contract or a promise for two thousand and ten or two thousand and eleven and it is the same language in the letter of intent that they would ask this court to create a separate contract language of the letter of intent says your honor future fuel and lines agreed that they would move forward and negotiate a of agreement and that agreement would contain in broad terms the terms that are identified in the letter of intent and they did that through six separate supply agreements each one of which had a term commencing in either december two thousand and eight or january two thousand and nine and every one of those six draft supply agreements addre volumes for two thousand and nine as well as future years and critically each of those drafts had in terms of volumes different amounts for lines to purchase in two thousand and nine the very first draft the it merely expressed a three year term in which each of the years lonzo would purchase eighty percent of its worldwide demand up to a maximum of three point five million or ten words you're talking i think you said six separate supply agreement you're talking about six separate drafts correct your honor they negotiated through six separate drafts supply agreements that were all intended to move towards the definitive agreement that they would execute and in fact your hon they rejected the notion that the parties had agreed to this one year short term contract because he testified the future of fuel rejected the concept of seeking a non cancelable purchase order or other form of binding commitment rather than the letter of intent document they entitle a letter of intent that includes an agreement to negotiate and contemplates negotiations in future decision something breaks down the agreements never finalized but that does not transform what the parties intended to be merely a preliminary stage for negotiations into a contract and in fact the un undisputed evidence in the case shows that future fuel was repeatedly over the course of the months commencing with september until june of two thousand and nine advising line so that it needed to have a contract in place in order to supply to dr fry testified that by february of two thousand and nine he was starting to get nervous because they didn't have a supply agreement in place mr all guy who was the key contact for future fuel to lanza sent an email to lands on april twenty seventh of two thousand and nine saying i believe it would be in everybody's best interest to have a contract in place could you revise the contract to meet your needs and send it back to us two days later he sent another email to me to make dr luke in atlanta advising i would like to suggest an option could i visit your site and work to complete the contract i'm june third of two thousand and nine the record shows that mr all geir had a telephone conference with landa and he reported about that conference to his internal management team and he reported to the team i told dr luken that we need to have a contract in place in order to protect from not having d e m available future fuel directly expressed to lines as late as june that it understood that the parties didn't have a contract and that without that contract future fuel would be unwilling to supply d m to londa there can be no clear evidence in the record of the lack of a contract then the fact that in july of two thousand and nine lines are asked to purchase d m from future fuel and future fuel cited and sold lines a sixty metric tons of d m at a price higher than what appeared in the letter of intent and dr fried testified that the reason that future fuel site at that price was because the negotiations at that point were fallow and would have had to have been resurrected there was no cry of breach by future fuel because they understood and in every point acted with the clear understanding that all they had in the letter of intent was an agreement to move forward to negotiate a contract what they did not have was a contract and in fact your honor the court would have to supply essential terms in order to find a contract because in this case there was no specificity with respect to price the letter of intent provides two separate prices for a thousand metric tons of d e m both a reference to an initial price of a dollar thirty eight as well as a price of a dollar forty one for seven hundred to  thousand metric tons and critically the letter of intent expressly reserved the party's negotiations for a quarterly price adjustment formula that was to become effective as as appears on the face of the letter of intent on april one of two thousand and nine and the parties in fact did negotiate that quarterly price formula in their drafts from september through the winter of two thousand and nine and dr fry concedes that this was a significant term for both parties and that the parties actually reach disagreement as to the quarterly price adjustment formula and that is latest december of two thousand and eight well into the negotiations d concedes the parties realized the formula they were negotiating did not work and would have to be revised the letter of intent contains no index for how to determine the quarterly price formula and contains no other terms or ability a court to supply what that price would be and the reason for that is because as the parties expressly stated in the document the parties would negotiate toward the quarterly price adjustment formula for two thousand and nine and beyond in the definitive agreement so not only does the document not on its face expressed material agreement by the parties as to all of the material terms it expressly states that what it was was a commitment to move forward and that the final honor we believe the future fuel took the steps that it took to configure its plant not because it believed it had a promise by lanza to purchase one thousand metric tons in two thousand and nine but because it believed it had the promise that was stated in the letter of intent a promise to negotiate and it's inescapable in the record that the parties continue to do just that but this was not a promise in future fuel kensei to no evidence in the record whereby lines of specifically promise to purchase a thousand metric tons in two thousand and nine from d e m i excuse me from lanza and in fact your honor once again there is no specificity in the record with respect to the price that lands or would pay for that thousand metric tons of d future fuel excise is from the letter of intent a dollar thirty eight but as we've just discussed that letter of intent is not specific with respect to price and putting aside the letter of intent future fuel cites to absolutely no citation in the late as june of two thousand and nine it was still urging lanza to make that promise by asking it to complete the contract and so in the absence of this court finding that there it is the firm in the district court found correctly that there was no contract we submit that there similarly is no legally enforceable promise upon which future fuel could have relied it's clear in the record the future fuel was looking for a commitment but the commitment that it up tamed as future feel points to was the letter of intent which was a commitment and a promise and an agreement to do nothing more than negotiate towards that definitive agreement in fact your honor as we look at the record evidence the parties continued through the fall to negotiate not simply price but a host of other terms their future if you will concede they had disagreement about that is late as the fall and early winter of two thousand and nine the parties were still attempting to come to some resolution about that disagreement dr fry concedes that those were important terms that included things like as estimated annual volumes total maximum volume commitments ind honor that it was with respect to both the price and the quantity because the as we discussed earlier because eighty percent of its worldwide demand is just too big of a proposition or worked well your honor we would we would submit that the record evidence shows that both that the letter of intent and the parties negotiations expressed a host of different volumes that the parties were contemplating and dr fry testified in his deposition that discussions went back and forth s forward to negotiate that agreement and as those negotiations borne out the volumes that the parties discussed changed as lines as needs changed and significantly to that point in record  with respect to what the volumes would be that the parties would need and we would similarly submit that the price is not sufficiently apparent on the record and sufficiently demonstrated by any competent record evidence for this court a found that there was a genuine issue of fact with respect to a promise or course under your view of the case we never have to reach a jury question but suppose we think this case has to go back how would you to develop a strategy with respect to its witnesses and with respect to its strategy based on its understanding that it was going to present this case to a bench trial and through the four separate orders and notices that the court provided to the parties confirming that motion for a jury trial discovery was complete summary judgment motions were four days from being submitted to the court and we would we would attest that to the extent that this court would reverse and send the case back down for a jury trial which we c which we argue it would not need to do in this case but if it were to do that future fuel would already have the benefit of all of the testimony from the company that had been provided as from a thirty six witness who may not have been the witness that we would have presented had we understood we were going to proceed to a jury trial we may have tracked down dr logan from switzerland and seen if we could obtain his testimony which is not an easy issue given the swiss privacy laws we would have made certain decisions perhaps to recall other witnesses who were no longer associated with the company and these were decisions that we made at the outset of this case and continuing through the discovery of this case reevaluating it again considering that this would present to be presented to the bench similarly we had not at that made and not had an opportunity to consider whether to move make a motion to move this case out of batesville arkansas understanding the future feels the second largest employer in that in that region and so we believe that the case was developed and it was discovery was completed the parties were in the midst of of their final pretrial preparation the issue actually arose during a court ordered discussions with counsel to set an expert witness  disclosure schedule that the parties would agree to those discussions shut down because council wouldn't have discussions about that unless and until we agreed to a jury trial ok in your last few seconds what is your company's position with respect to the confidentiality of the records very district court we affirm a method of proceeding for sophisticated commercial parties that allows them to memorialize a plan to move forward without being bound until they had completed what were  long term agreement the parties in this case intended to agreed to and promised to do nothing more than negotiate towards that final agreement and they did just that they just never got their thank you very quickly and simply if you can what's your what's your view your position as to why the one thousand metric tons for two thousand and never changed deposition the parties negotiations became fallow and they were never resurrected the parties never got to the point where they reached a final agreement and were bound and so future fuel had no obligation at that point to produce and to sell it to lines a bit either side make a demand one way or the other in july of two thousand and nine your honor lands have made a request to purchase d m and future feel at a price that's different from what's mentioned in this in this riding as in that they are a long way towards eliminating the the posture of this document as a binding contract now you are because laws i had already breached at that time we had already indicated to law and say you need to go forward with your promise to purchase and they had already indicated to us that they would not therefore we sold them at a spot purchase price because they had not gone forward with their contract the point that i think is important it outside counsel didn't mention that the usually there prior to this what was referred to a moment ago there was a demand by your client that the contract be observed and that a purchase towards this one thousand metric tons actually be made yes your honor we referred to the letter of intent and tell them that created an obligation to mend it in our house how was intent it was a contract the discussions back and forth on the supply agreement that wasn't to enter into a contract that was to perform or complete the contract that had been entered into  obligation to purchase a thousand metric tons they had an obligation to enter into a definitive supply agreement they did neither the did fall apart because that the terms of the supply agreement those times had to do with things like when the delivery would take place who would indemnify whom and also with regard to the price there are cases that say as long as the essential terms are set forth in the agreement that other terms if it shows how those are to be decided can be we would say that there is a contract number one or at the very least i promised that we relied on and that wants a knew that we were relying on that promise or we would have gone forward this wasn't just us into a hope that something is going to happen they knew that we would only undertake this step if they promised to make that commitment and they did promise to make that commitment the letter of intent otherwise would be meaningless it was not just for us to go forward and talk about maybe whether we would do something or not we let them know over and over in emails and i knew it that we were not willing to go forward unless we had a commitment from the i'm a commitment a promise a contract and we did have a contract and the parties acted on that contract we made a demand on them to fulfill and they failed to do on the final issue of the jury trial one thing i would mention is that as late as november of two thousand and eleven the protective order that was injured it makes mention of a jury trial