and the central issue with respect to count five and that is the intent of that september fourteenth nineteen fifty six resolution how it is true that the rule twenty three order says that that puzzle by the question of why a corporation a public corporation would choose perpetual risk is if the action was termed over certain safety  and that question indeed prompted it sent from the court but as paragraph ninety two of rule twenty three order made clear the court was presuming that legal stipulated to in evidence and in that memorandum of what you call section ninety four of the business corporations act the illinois statute of limitations on suits against the dissolved or arrange not only does his use of the term statute with respect to section ninety four in the memo show that twenty drafted the word subject applicable statutes of limitation day he intended to include section nine but when you read this memo you see that the entire memo is really directed towards researching the question of whether it was necessary to assume the then current rule liabilities of superior coal in order to assure that that two years statute would start right and  if the end of the memo after some lengthy discussion he concludes that the safe course of action is to assume all the liabilities to make sure that that two year period start to run federal courts in new jersey addressing those case i did some research and the fact is that i could find no cases before nine hundred fifty six fifty seven when this corporate dissolution dissolution took place we have similarly a master uses of the term statute of limitations in the illinois state bar guy two statutes of limitation slaves two thousand and ten and although this thought that comes with that is as it always does in the highest game publications that you need to do your own research i think the important point is that it's members of the experts on this felt that their colleagues at the bar if they were going looking for a discussion of section ninety four would probably look under the term stashed of limitation indeed the official comments when business practice evidence talking about how a board of directors of a public corporation would now at gratuitously assume such an ending liability  is is well the accounting practice evidence there really was nothing no reason that the company would have were to this list any of the  seven so that the importance of this evidence also is that it takes this case out of the purview of the cases you only bankers life in the hindu consensus case  override the general practice of the law here they could do so simply by in expressing it different in the language subject to applicable limitations  staffs limitations do section i v for expands the time in which to sue a corporation by keeping the corporation alive for two years after the issuance of a certificate of the solution right i think that question of whether the nancy the extension in the limitations act that amendment applied to section ninety four predecessor it looked to the bishop and the wrongful death act which also had a time limit and in bishop the supreme court said well that's not in that time limit doesn't fall within the limitations act and it's not modified by this created a cause of action where no cause of action existed before nine and it was unique in that sense and this is not a parallel to the survival fifty three and then there was the survival activity seventy four it's more parallel to the survival lack of eight hundred seventy four and that it continued it made causes of action that existed but of bated upon the death of a person or corporation continue but it is the is the survival act of eight hundred seventy four if you relied upon the existing stash of the limitations although it set you pose superimposed certain additional limitations on and that's really what's going on here the corporations out the cause of action would abate what kind of loss it would go away so what what's happened here is not created a cause of action like they did with the wrongful death back where there wasn't but you have done is you've given a grace action had to have accrued during the existence of the corporation whether it was filed during the existence or after it still had to prove cause of action that accrued after the you have a cause of action against a corporation that arise before the corporation dissolved the corporation then dissolves and you now have two years under that solution and under section ninety four to bring your cause of action unless that's the cause of action that goes that has its own statute of limitations that cuts the short and if that's the in other words if you had a warning if you had a year cause of action heroes two years before the dissolution or a year and a half before the solution you don't get to two years for that cause of action and  so this is really not a situation where any time limit is built into a whole new cause of action this is in a sense putting an end point is the michigan condo  on the ability to use to bring a cause of action against its own so i think it really is conceptually different from the wrongful death act and i do think in that sense  illinois supreme court case in which settling party used the term release mistakenly because they did not mean to release all of their claims against all the parties in the court said well that doesn't make sense and just like in this case releasing the foregoing the protection of section ninety four wouldn't make sense and so the court said we have to look at the surface to surround document clear that the corporation did in fact choose certain safety over perpetual risk and that at the end of two years there was no longer an ability to case did that with what i guess would be a mistake of law changing a document that said tenancy in common to join us he was rights of survivorship where it was clear from the survivors from the surrounding records  on direct participation alter ego but if they do survive i think the law is now such a bad that we should be permitted to try before a jury are affirmative defenses of intervening far as their default assumption of risk i think the court's summary judgment against us was based on a misunderstanding of the real meaning of the word absolute liability that was defined in the restatement firsts sports section eight twenty as meaning that nothing that the defense cannot avoid liability by proving it did nothing wrong in the state of the art mind but it doesn't have anything to do with whether you can assert a defense based on the plaintiff's conduct and indeed an eight hundred eighty and will miss versus just the illinois supreme court said that you can that if the if the plaintiff had built a building on the property and the weight of that building had contributed to the cause of the s was contributed negligence by the court didn't address any other opportunities or other types of potential conduct it would be an affirmative defense but it didn't say that there could be none and one hundred liability terms the courts today are very familiar with and i think that's why they made them change and i'll just say a refer you to the statute two one one one six which talks about comparative fault in all the variety of affirmative defenses and that teach you how affirmative assuming liabilities making no reference to the survival of that decision was the law of the case the illinois supreme court tells us that concerning the law of the case this is in the the case for further proceedings if the case is again brought before such court for review the farmer decision is binding on the court making it and questions decided and driven by it on the first appeal  and if the supreme court speaks to the issue in the interim that doesn't apply or if the case was decided and it was helpfully erroneous and the matter was document refer to the survival act that question law had been decided now union pacific says well we didn't get a chance to argue that point the first time they did told this court when responding to to the petition for a rehearing after the two thousand and eleven decision the central issue throughout the life of this case has been whether the phrase subject to a political statute of limitations in the resolution bars the both meaning of the instrument and the intention of the parties must be gathered in the face of the document without assistance of parole evidence or any extra as if it's what the parties to the written document have understood as to the meaning of the language is not that mystical not admissible union pacific agrees they told this court in two thousand and eleven quote courts regularly read words in contracts and other instruments to decide what they mean and resort to extrinsic evidence only when the meaning is ambiguous now in reply brief in this appeal and then again today we're hearing an argument from union pacific well you and one first district case cited to the court saying look at look at all this other stuff let's see if there's a latent ambiguity the most recent decision from the second district and the first district this court has never accept consider extrinsic evidence to determine if a latent ambiguity exists before corners rule of contract interpretation remains the law in illinois that's the most recent first district second same thing in the river specific issue this court must follow that law because only the supreme court has authority to overrule or modify its decision accordingly we employ the four corners approach the supreme court tells us  corus approach even civic sides other cases though the often materials case aguilera case in which they tell the sport well in those cases the court said they could reconsider the issue on the second appeal true those cases reformation mutual mistake you have to show by clear and convincing evidence three things that the parties intended to say a certain thing and by their mistake seventy second that mistake was mutual their mistake their corporate representative which designated to sestak by on this specific issue conceded there was no mistake the witness the resolution speaks for itself and i think we've gone over that question let me ask each of their experts testified was there a mistake now was their mistake you know their counsel that summary judgment from the court so there was no mistaking the resolution it was written just as he wanted to write it at that time counsel it was these are admissions that are binding on you this it was no mistake there was no question of fact regarding  as the great work tells us quote prove without waiting is as effective as pleading without proof that should end the matter right there they did not even le of the proof that wasn't there either there's no evidence that the board of directors of superior cole ever even saw them as not at that time there was no overlap in the boards of directors the board of directors of superior cole were different completely different than the board of directors for chicago and northwest in for civics corporate representative witness and corporate governance w is clearly shown the parties in their dealings with each other have acted under a common mistake of law equity or redress clearly shown a common mistake of law you're trying to reform an instrument sixty years later all the participants are long gone now testimony and we've already shown that with regards  there's no mystery no evidence of any mistake whatsoever but what of chicago northwestern record was undisputed that on september the fourteenth one nine hundred fifty six that day of chicago northwestern board of directors meeting they had two documents before they had a memorandum from their accountant arthur andersen and they had a report from the general counsel mr hastings significantly they did not have before what what's been referred to as the truck indeed union pacific to to document from the minutes of the forbidden to make that clear what of those two documents say the hastings report says as appears from the attached memorandum prepared by arthur andersen the advantages from the tax stamp point out any possible tax disadvantage it is our recommendation of the spirit of all company to be dissolved and its assets be transferred to chicago and northwestern and the railway company assume such liabilities as cannot be fully liquidated prior to dissolution assume the liabilities not a word about limitations top words or dollars that's what they had in front of them what did the anderson family say for the liquidation of superior coal into the north western fire for the sale of the coal lands would be governed by the provisions of the tunnel revenues go the basis of the assets and liabilities in the hands of superior will carry to chicago and northwestern liabilities and the assets will carry to chicago in northwestern no mention of limitations no mention of the survival after the only documents before them said that we recommend that you assume the assets and liabilities those were the documents that district because this court in order to determine as a matter of law that it was an ambiguous assumption liabilities from they are the undisputed facts relating to the corporate transactions that followed the one nine hundred fifty six dissolution and occurred irrespective of the school district doing anything that led to an inability of union pacific to show a causation on its affirmative defenses the supreme court tells us to nolan case when determining cause in fact only courts focus on two alternative tests the traditional but four tests where part is conduct is not a cause of the event if the event what occurred without it and the substantial factor test where the parties conduct is said to be the cause of an event if it was a material element and a substantial factor in bringing the event about the undisputed evidence was that the school district's cond issue of either but for costs or substantial factor because it wasn't a factor at all everyone agreed as a result they couldn't show causation on their defenses there was also a pro enforce an absolute liability the vegas faces the same of the market mining case in the federal district court says the same sole cause or the absolute liability of defense does not exist with regard to the conduct of the point now in the civics as well but it's not really caps liability it's absolute do so we should be able to look discussing the issue of subsidence life talks about it being unfair and surface and certain circumstances for there to be for the minor to be quote absolutely liable for damages absolutely liable and well said well the mere presence of a building or other structure upon the surface does not prevent the recovery from injuries to the surface it does not prevent recovery from injuries to the surface unless it is shown that  would not have occurred except for the presence of the buildings except for the presence of built sold off we just heard from unit pacific that it if the building is a box that's not the law when said we're going to let you talk about the building we'll let you talk about that condo if it's the sole c there were no questions of fact on that summary judgment on the cross appeal as with causation if all three experts agree that if the school district is to improve this property future if it's to build again in the future grout is required the mine boys need to build on disputed union pacific may take and we'll take issue with how much it costs whether it's betterment but the issue of does that evidence go to the jury is one that's that's clear in elmer law at the trial court said no it's not going to be allowed because you didn't build your school or your new school sure enough it was built in the neighboring community in the us but the land is still damaged the land is undisputed request that the court affirm the decisions of liability in favor of the school district and reverse on the cross appeal on the sole issue of your honor i would like to reserve my remaining time for  bottle on the cross thank you i think you should dress that now so i'm going to flounce back and forth well i'm not sure what council's going to say your honor the only thing that i would want to the cracks packing it with clay and then putting soil back on the fact of the matter is that the court specifically said that it was too uncertain to both of them they were not going to or that the wisdom and all the afternoon they had to learn it they put the school on top of the ungrounded land now at the present time the damage is to give them a new school and give them their own grouted land restored to a flat surface with the remains of the old school demolished anything more than that would indeed be an impediment to the law doesn't with respect to the law of the case you know the fact of the matter is you can find cases on every they go every which way but what is indisputable and you take the patterson case for instance what is indisputable is said this court has the a for it is not bound by the law of the rehearing we had not really had the app to do aggressive until until now all of those are reasons for dispensing with all of the cases looking at the underlying issue to get half what is most important and that is he had he was working for both at the time that he put together that memo and the idea that a seven page detail legal analysis never went anywhere nobody ever  that the despite the fact that there harvard educated lawyer had done that research they went on willy nilly without the benefit of counsel is just nonsense i mean and the fact is if you look at the disregarded their legal advice never looked at it i think just makes no sense whatsoever again reformation it's the same thing through the three elements intent  know its own because of the length of this litigation and or judgment either on the assumption of liabilities for us or on the reformation for us and i would ask you to affirm the cross