plaintiffs get this through settlement communications that are flatly barred by rule for a weight and other evidence that was irrelevant and highly prejudicial second main error the court made was that the court gave the plaintiffs a windfall of more than one million dollars of attorney's fees and expenses the way pursuant to a contractual fee shifting provision that if you read the provision you see that it unambiguously is not income is this dispute there's additional calculate the element of contract damages which is measured by the coal price in our east contracts using their formula even then the issue was actually narrower than that because both sides experts agreed on most of the aspects of how to calculate the call price and the entire case really came down to just two arcane issues of accounting in valuation judgments but rather than stick to the evidence that's relevant to that question about damages  essentially turn this trial into a tort case all over again much the same as they did the last time this appeal was before the court in particular right off the bat in their opening statement it told the jury that the contract in  every one of those eight prior calculations ranging from negative one hundred and fifty six thousand dollars to over a one million dollars the plaintiffs then continued with that strategy with every one of their fact witnesses  closing argument i want to be clear that rule for a way by itself is sufficient to resolve this st issue in the case that warrants a retrial but beyond formally all of the evidence of the prior call calculations should have been excluded under rule four hundred and two or alternatively and a minimum rule for a three because none of it was relevant in any way to the issues that were before the jury specifically your honour's no party neither the plaintiffs nor the defendant was arguing that these prior all price calculations are actually evidence of what they call prices and no expert relied on those calculations to come up with it's own with in this case  to calculate the call not based on the evidence before the jury of what the call is but based on which party the jury might better and based on the jury's perception as argued by the plaintiffs that could really and was a bad a well and it just i guess i do have a question i suppose just as a common sense matter i'm just trying to picture myself being a juror in this case why wouldn't it be relevant to sort of the credibility of your experts calculations that there had been a problem during which could really endless coming up with a whole bunch of different numbers i mean i just don't understand why that wouldn't be relevant i was talking about your relevance argument your so within the context of relevance that that's not how they use it so in other words your honour's hypothesis or data scenario we are in visioning is where they are using this to impeach our testimony of what they call the price it is and just say well what happened before and the reason that argument doesn't work is because the plaintiffs very clearly did not limit this evidence in any way for impeachment purposes this was the primary thrust of their argument that they used in their case in chief as substantive evidence in their opening with each one of their witnesses there was certainly no over our objection every time and there was no women being instruction  to use it for impeachment purposes at all that they were introducing this evidence as part of their case where they were trying to prove the call price and as we argued repeatedly to the trial court below evidence of what could really and may have calculated this price to be before particularly in draft calculations had nothing at all to do with their experts testimony of what they call price this some of the very most that they tried to use it for mean this was not a one off issue or at a drop of evidence you know in an ocean of otherwise permissible evidence this was the marquis disputed issue in the trial it was the subject of a heated motion in limine a followed by an extensive most moment hearing that immediately preceded the beginning of the testimony moments later the judge went back and forth and then eventually said that it's not possible to rule out of context and so deferred the rulings  and then there were myriad objections and sidebars and i'd say the common sense of it if anything works the opposite way it's that you know the you know why didn't the plaintiffs go to these  bitterly to get before the jury evidence of what everybody agrees the whole price is not with the only question is what evidence you know what is the call price instead they're focusing the jury on evidence that everybody agrees is not all price and there is no but to just and this really is i'm i'm just trying to make sure i remember there was a point at which could really and thought that was the call price rape because they were arguing as i recall i mean this is  our nd time with this case so i'm thinking back a bit but they did argue they fought liability on breach of contract through the st trial right so all that time they were arguing no no this is the right number and now as i understand your argument is like well that's bygones we've already conceded now that we did breach the contract part of time where we were coming up with these other numbers and saying that's the call price that's no longer relevant because now we after trial we have decided to concede liability that's basically the argument right but in the retrial when the plaintiffs were focusing the jury on eight or more prior poll price calculations they certainly were not limiting their evidence to that one dollar prior calculation which would not have been particularly helpful to their case because then the amount of that calculation is pretty close to the one that's offered in this trial so the critical point is that they were emphasizing the breadth and the number of the prior call price calculations only one  which was offered a trial most of which the record shows were offered in settlement literally in settlement agreements and were style this draft calculations never formal calculations so even if you were to you know set aside that one prior calculation it was actually the subject of testimony the damages done in this case because the jury again by plaintiffs is being told that it really is calculated over and over and over again and then lists the amounts the plaintiffs make reference to curative instructions the instructions did not cure anything nowhere in those instructions did the court ever tell the jury that in calculating the call price the jury should not consider the issue of good faith and should not consider as affirmative substantive evidence the fact that these calculations for reached our draft calculations and in widely inconsistent amounts plaintiff makes reference to an instruction where the court said to disregard the actual value of a prior calculation to be very clear on that that came at the very end in the closing arguments were pointers counsel began reciting the numbers and that that was not allowed but to be clear the court never instructed the jury not to consider the numbers that plaintiff's counsel similarly recited in the opening statement where he walked the jury through all eight of them and again apart from that it was a list that did a fact of the prior calculations in there being inconsistent with every one of the witnesses so we think that for two and four or three certainly are a basis to warrant a new trial but we also think that get out for a weight is sufficient by itself because the four await calculations those are the ones that the plaintiffs elicited with their two primary fact witnesses die and discern scout leaders and i would just point your honor to be concession they make it page forty of their appellate brief where they say quote whole price calculations were also referenced in proposed settlement agreements so there is no dispute in this case that what we are you are for a way communications actually working with a in settlement in settlement documents and that's why the court correct we have all the documents themselves cannot be admitted but nonetheless the court errored by then allowing testimony as to the very substance of those communications and i would just leave this issue i guess by saying that you know the prejudice here was stark and it was clear it's the difference of just a black and white difference of two completely different trials you know eleven dollars hand you have candidly a pretty bland trial jurors are being brought in after the fact for it damages question where they're really resolving just two primary issues of arcane accounting and finance issues and instead what did and again we think that you know the common sense of why they chose to do this is that they transformed the nature of that trial into a tour trial all over again the entire concept of good faith who was the good actor who's the bad it is absolutely irrelevant to the jurors caster picking a number but unfortunately for our client it was a very effective strategy with the jury and we think that certainly it meets this court's prejudiced standards in cases like  like without even permissible evidence then sure you know there are much though the jury might have have gone in a different direction and that's certainly the case here with time going down i do want to make sure i touch on the  the shifting issue i think the most remarkable aspect of that is that the plaintiffs make virtually no effort in their brief to defend the field board on the merits we show actual interpretation that there is one in only one meaning of the few shipping caused and that is that that cause unambiguously does not encompass this dispute but instead is question on her but i would say is that even on the assumption that the mandate rule applies what we've shown in both of our briefs is that this this error clearly comes within the exception as well established for the mandy rule for clear error and a manifest injustice i'm sorry did you have a question you have all said oh i think i actually i do have a slight follow up question did you raise this argument before the district court in this proceeding core and the district court decided the issue on appeal we challenge the field ward but we did not express the raise the issue and then on the remaining trial the district court reincorporated its reasoning in a footnote to its most recent opinion understand your argument on the mandate well i'm trying to figure out whether you waive the argument again when you didn't raise it in the district court in this particular you know the retrial for contract damages proceeding yes or  that that would not change the analysis in any way because it's judgements pointed out if you're already on the assumption that the mandate rule applies for not having pressed it in the prior appeal we certainly don't think the analysis would be any different  broader if anything then they would be for the mandate will write so maybe you waive debt but assuming one way or another you have to get through an exception ok yes and we cited numerous cases where a brief showing where a similar errors that to defense or age of spas of ability to bring in quite and so that's exactly what we have here where this the shifting issue really is a standalone one million dollar one million one hundred thousand dollar issue it's almost the same amount as the contract judgments and if our argument prevails then they were not entitled to even a penny of attorney's fees it is it is simply a windfall based on a misreading of the contract and one case i'd offer in addition to what we've cited in the br concluded that employee to award attorneys fees and to calculate those attorneys these are the prevailing party the plaintiffs which this court concluded in its st mandate that was a  on sex eleven point six of the asset purchase agreements reciprocal flick of wolfish shifting provision after a three day trial judge whitley did after this case was remanded judge whitley did just both of those things he impaneled the jury the jury heard evidence over three days the jury awarded damages to the planets in the amount of one million five hundred and ninety one thousand and ninety four dollars which was bookended by the respective experts proposed by the plaintiffs and the defendant the plaintiff expert number was one million six hundred and seventy six dollars the defendants expert number was one million dollars two hundred and thirty nine thousand dollars so the jury's verdict was smack dab between those two bookended numbers at the conclusion of the evidence under four rule four of three is more prejudicial than probative and under forty it's exclusionary provisions for settlement discussions of judge harris you were spot on how could it not be relevant what these parties previously calculated when they are obligated to calculate a call price and let me read you the language of the agreement because it's a lot for to call price the deferred purchase price has to be made at one or two times quote all calculations and corresponding payment calculations included upward and downward adjust ya'll be made in good faith by the buyer the good faith obligation has nothing at all to do with liability it has everything to do with the manner in method in which those damages are calculated though if mr you hans is the only person and he is the only person that calculated this two hundred and twenty five thousand downward adjustments to the even resulting in as your honour's no judge harrison judgments from the st trial every one dollar even reflected a two dollars and seven dollars cent adjustment to the call price mr hugh haas is the only person that came up with this analysis of let's deviate from the agreement and let's find this suppression number of children twenty five thousand dollars yielding almost four hundred and eighty seven thousand dollars of a deflated call price and contrary to what the defendant cotillion tells you everybody relied on those calculations everybody relied on that testament mr kimball there are late experts who has identified what i mean by latest he was the one that was in the last trial they called him they didn't call philips who was the person that calculated all price calculations in the nd trial they only called him in the st trial but mr kimball admitted in his expert report which you can find in the record beginning of joint appendix page fo and eighty six he relied on the testimony of mr us and in mr you osas testimony in the st trial he went through all of these calculations you were alive and excuse me he considered mr phillips testimony and in mr phillips st trial mr phillips relied on every single one of his st place and mr you person that has made these downward adjustment calculations both for the overhead and for jackson health so how could his credibility and how could his assessment of how he comes up with those numbers that their expert relies upon not be relevant it's clearly below it's so relevant that they had reports about it and they gave those reports to their experts d when their expert was conducting good regard to the more prejudicial than probative probative aspect of it it's clearly relevant the question now is is it more prejudicial and i would argue that it's not for a host of reasons st although based on judge with these initial ruling that i could get into all of the calculations that mr yoo haas made it is deposition and all of those calculations included the calculations that the defendants now complain though mr us was called to his deposition both as a thirty six dollars witness and as an individual witness because he was initially named as a party in the st case and during his deposition as a as a topic of his thirty six notice i said i'm going to ask you to calculate the call price and he did and in this deposition he calculated the call price i don't know how many times but it was more than eight and i put it all eight of those numbers before the jury in the opening statement because judge whitney said that i could  unable to talk about any of the numbers but one which was one hundred and seventy four thousand dollars and i would submit to you that if we're asking for a one million six hundred and seventy six and they're asking for a one million and thirty n my ability to get in a number of five hundred and seventy four prejudices only the plaintiffs and not the defendant because it gave them the ability of being able to argue that number in fact mr shook during the motions in limine the prior to trial alerted the court that i would be opening the door if i was able to put in all these numbers and if you go back to the joint appendix you'll see judge whitley's policy with me that says you're right you're opening up the door for those numbers so the fact of the matter is there's no me putting in a number d but secondly as judge harris hinted it's clearly of consideration for the jury about those numbers and why those numbers are all over the place so it's not of the nd trial if you'll recall in the st trial the breach of contract damages the verdict for the plaintiff was two hundred and fifty six thousand dollars two hundred and six thousand five hundred dollars in the nd trial the jury awarded one million five hundred and ninety one thousand and ninety four dollars which is six two times more in the nd trial than it was in the st trial and as this port instructed judge would need to do it was to calculate the amount of damages you the prevailing party that concluded was a prevailing party under the fee shipping agreement which this court concluded already applied to this case because it's clear in its language that it does and award damages and judgment mean that i understand their argument now is that that the provision doesn't apply well that's convenient isn't it when they tried this case the st time they argued that at the conclusion of the st trial the defendant's counsel argued that section eleven six did not apply they abandoned that argument when they came back to this court the st time and here's what i mean by that in the st post judgment motion of briefings will  party and then they argued about the amounts of the fees in these kinds of things and whether or not the fees were appropriate whether or not the matters were intertwined in those kind of things but they never argued that sex eleven point six was not a political in addition when the case went back on remained conclusion in favor of the plaintiffs for one million five hundred and ninety one thousand and ninety four dollars when we brief the motion for attorney's fees the defendant never argued that the mandate rules exclusions apply so they've waived the very argument that they're making today for the st time they never argued that section eleven dollars didn't apply they they assumed that it didn't and all they argued was the amount of the fees and then they asked for a that's what it is unless you can find that it smells like a five week old dead fish that's been on refrigerated that's what this court has used that as analysis for and i would i would submit to you that that's not the not the condition however once we got back to the  mr hilary gets involved that he suggests oh no that shouldn't happen it should have been a conditional request if you find that it's a political then we got our fees but that's not what they said in their reply brief d for the st time they are just for their own fees on a cut on a claim that the all of the event of any action suit or arbitration proceeding arising out of or relating to this agreement there is an or we'll get to that in a moment but under the st provision in the event of any action suit or arbitration proceeding arising out of or relating to  his agreement the prevailing party is entitle to attorneys does well there can be but no question that you initially found that we were the prevailing party you ordered judge whitney to do exactly what he did so there can't be any the shipping provision in the employment agreement is nothing more than a red herring for a couple d of reasons st they're not conflicting they parallel and by mathematics and physics but professors in college told me  intersect and they won't and they don't and they can't so there's no intersection and there's no dispute about those parallel tracks secondly the application that this court the analysis  reciprocal fee shifting provision is found in a business contract the asset purchase agreement is a business contract we argue that below you all affirmed that oh it is a business contract it's axiomatic that it is anyway however and twenty one six statute in north carolina employment agreements in fact are not considered business contracts so the fee provision in the employment agreement would not be a political anyway there's no statutory basis to support that so there's not a conflict anyway but if the port was to be concerned is there a conflict with language that mirrors if the very same requirement that is to say that the prevailing party gets their fees then you could jettison it under the analysis that there's no statutory provision for the fee shifting provision in six hundred and twenty one dollars of the most common statutes so i think for all of those reasons the fee shipping provision is there to the extent you want to hear very briefly you all know that in general basic contract interpretation you apply the specific over the general the parties or indemnification context which is not a direct claim between the parties as you know it's a claim made by  a rd party against one of the parties that may be liable because the other party failed busy to tell the truth on a conditional warranty and it permits those disputes to be submitted to harbor tray sion and in the arbitration proceeding agreed that the arbitrator could award fees he or she could award fees in their discretion it's not in conflict with the other one it's just different so i don't think that that negates the enforceability but again as a judge montopoli noted i in that opinion the court struggled and made an analysis for a very early time it wasn't exactly the st time but it was one of the st two or three times that this court made analysis to determine what is a claim and as you'll recall in the mcsherry case you had the property that was can buy the broker and indicated that once the property sold the broker would be terminated from his services the property sold when the property sold the commissionaire that the broker said i'm entitled to seventy five basis points commission based on our agreement and there were compromise statements which is what this court house the mass compromise statements that occurred after the property sole which if there is a contract it would be a claim to money there be a right to money it would just be an argument of the amount of money assuming the parties agree that there was money that's not the case we have here in mcsherry the court concluded that because you could actually identify an obligation to make a payment and you could identify them out based on a sale there's actually a dispute and you have a claim in this instance under rule for a wait before you can get to the exclusion zone of her be you've got analysis analyze whether or not you have settlement discussions of compromise one and whether there are over a claim call imagine for a moment they're exchanging numbers prior to the call being calculated they missed this or says hey you calculate the call price three million dollars and they say we're not going to exercise the call would you all better come into court and say we have a claim here your lot of make your claim there is no claim until the call is exercise so just like the court did in pullman versus mississippi which annette analyzed the th circuit decision there there was a of a pre condemnation set of discussions and the court concluded that until the condemnation occurred there was don't right or entitlement to these claims so just like there there is no right there's no entitle meant there can't be a flame war over it is clear on the face of the documents that are before the court that a fire proceeding they made no request for fees at all they did that despite the fact that the chapter seventy five claiming already been resolved in favor of the plaintiff with regard to their actually being unfair trade practices but the jury concluded they were not in or affecting commerce so that claim is gone the court already jettisoned at the close of all the evidence i don't regret the verdict request that the abuse of process claim the bill there was no request for fees under chapter fees it wasn't when the mandate came back that would have been a novel time to have done it rather they waited until after the nd trial was concluded and you hans and l the a north carolina are no longer after parties to the dispute because the only claim was a breach of and eleven dollars of the asset purchase agreement but they did so provisionally d in the event that this court did that so i think if the rights to make any of those claims because they didn't make them initially when they had an opportunity to make them on the merits of the case we were the prevailing party in the breach of contract law having not requested keys when they could have either at the conclusion of the st trial or even if they were late and they wanted to pigeonhole it into this case they could have done it at legacy one and they didn't do that so we believe the judge will be was proper in allowing all of the evidence i see i've got no time if i could just be please just one sentence ranch for any questions you have you're asked me thank you we believe the judge wh topic which says calculate the call price for us to recite the call price which we weren't able to do in evidence hope you're able to do it all sitting around with the board excluded that at the actual trial there d are none of those numbers got before the jury by way of evidence and we believe that and we think that on the merits of that case we are correct because the asset purchase agreement clearly defines agreement and this was a breach of the agreement and lastly we believe that the defendants have waived d their right to seek any and both procedural impeach for a prior inconsistent statement which is really the only argument i heard my friend make as to what possible relevance any of this could have a few other issues to touch on on the question of a retrial was warranted he brought up the fact that the verdict here fell between the numbers that our side's expert proposed and their expert proposed again that's a fallacy your honour's as we show in the brief that may be relevant to  of the evidence challenge it is not relevant to a prejudicial error challenge that's what this court said in the mc cheri case that we cited as well as the taylor case and both of those cases the court said there is no dispute or we will assume way that the evidence would have permitted a jury to reach the conclusion it did instead our question is did the improper evidence substantially sway the jury to pick one number or the other and here we think it is crystal clear from the record if your honour's look at the opening statement if you look at what they the evidence that shows the emphasize you know from our perspective the bottom line is that when this court remanded the plaintiffs had a choice you know option one was to stick to the fairly dry evidence relevant to the two issues on which are the or most issues on which the experts disagreed option two was to turn it into a tort case all over in a very clearly chose option two and to their credit they did it very effectively with great prejudice they are reviewed that the calculating the price plaintiffs are not calculating the price only the jury is calculating the cost price concepts of good faith simply have nothing to do with it instead both sides present their evidence affirmatively of what they think that all price is and the jury picks and my friend said we has no explanation for why in their case in chief over and over again they would need to get into evidence of what they call price isn't is prior calculations other than to prejudice the jury and finally eleven just be no basis to construe or to have a completely different meaning in the middle of the paragraph compared to the rest of the paragraph i've seen over time and with that much the court has any questions seem pretty she had a chance to