In this task, you will be shown a prompt from a judicial decision and multiple holding statements derived from citations following text in a legal decision. Holdings represent the governing legal rule when the law is applied to a particular set of facts. There are five answer choices for each citing text. The correct answer is the holding statement that corresponds to the citing text. The four incorrect answers are other holding statements. You should find the correct option. There is a <HOLDING> token in the position of the citing text prompt where the holding statement was extracted.

Ex Input:
lease, for the first time in his reply brief, thus, he has waived it. In most circumstances a litigant who fails to raise an argument until his reply brief wul be deemed to have waived that argument. Wilson v. O'Leary, 895 F.2d 378, 384 (7th Cir. 1990). This case is before us, however, on a motion for dismissal pursuant to Rule 12(b)(6). The inquiry we are faced with is whether the plaintiff can prove any set of facts to support his allegation. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). This court has held that when reviewing Rule 12(b)6) motions, we wul consider new factual allegations raised for the first time on appeal provided they are consistent with the complaint. See Hrubec v. National R.R. Passenger Corp., 981 F.2d 962, 963-64 (7th Cir.1992) (<HOLDING>); Dawson v. General Motors Corp., 977 F.2d 369,
Holding statements: (A) holding that a court in deciding a rule 12b6 motion may consider a document that is incorporated by reference into the complaint (B) holding that the essential inquiry in conversion of a rule 12b6 motion to a rule 56 motion is whether the appellant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings (C) holding that a plaintiff may attempt to survive a rule 12b6 motion by adding essential new facts in a brief on appeal (D) holding that class claims that fail to meet the requirements of rule 23 may be properly dismissed by granting a rule 12b6 motion (E) holding that plaintiff cannot introduce new allegations or new facts in opposition to a motion to dismiss

Ex Output:
(C)

Ex Input:
business is a disputed question of fact which cannot be resolved on summary judgment. State Auto disputes Appellants' arguments and also posits in the alternative that, even if Kraus was an "insured" at the time he committed the acts in question, Appellants' false imprisonment claims were subsumed by their sexual assault claims. As discussed below, we conclude that the district court correctly found that the determination of whether Kraus was an "insured" under the policy is a question of law where the pertinent facts are undisputed, that the policy is not ambiguous, and that Kraus's acts fall within the Criminal-Acts Exclusion. Because we affirm the district court on those grounds, we do not reach State Auto's alternative argument in support 2d 349, 633 N.W.2d 707 (Wis.Ct.App.2001) (<HOLDING>); Michelet v. Scheuring Sec. Servs. Inc., 680
Holding statements: (A) holding the question of whether insurance companys requests were reasonable under policy language was a fact question (B) holding that the question of whether an employee was acting within the course and scope of his employment or while performing duties related to the conduct of the employers business for purposes of insurance coverage were questions of fact that precluded summary judgment particularly since there was a question regarding the employees intent in performing the act in question (C) holding that issues of fact precluded summary judgment on the question of whether an employee was acting within the course and scope of his employment for purposes of insurance coverage when the employee was simply sitting in his vehicle in his employers parking lot waiting for the business to open at the time the accident occurred (D) holding that it is well established that whether an employees actions were within the scope of employment is a question of fact and even if some of the actions were unauthorized the question of whether the actions were within the scope of employment is for the jury (E) holding that generally the question of waiver and estoppel is a question of fact

Ex Output:
(B)

Ex Input:
conduct 'shows a fixed intention to abandon, renounce, and refuse to perform the contract.' " Hunter, 339 S.W.3d at 802 (quoting SAVA gumarska in kemijska industria d.d. v. Advanced Polymer Sci, Inc., 128 S.W.3d 304, 315 (Tex. App.Dallas 2004, no pet.)). But such repudiation "must be absolute and unconditional." Id. In other words, "[t]he declaration of intent to abandon the obligation must be in positive and unconditional terms." Narvaez v. Wilshire Credit Corp., 757 F.Supp.2d 621, 631 (N.D. Tex. 2010) (citing Preston v. Love, 240 S.W.2d 486, 487 (Tex. Civ. App.Austin 1951, no writ)). Thus, to show anticipatory repudiation, Texas courts have required that a party overtly communicate its intent not to perform under a valid and enforceable agreement. Compare Hunter, 339 S.W.3d at 803 (<HOLDING>), with Hauglum v. Durst, 769 S.W.2d 646, 649,
Holding statements: (A) holding that mere presentation of a settlement agreement absent direct language or conduct evincing intent not to perform did not constitute a fixed intention to abandon the original contract quoting sava 128 sw3d at 315 (B) holding that the plaintiffs lawsuit which was filed despite a general release in the parties settlement agreement constituted a material breach of the settlement agreement (C) holding that an insurer lacked standing to raise the issue of the intent of the parties to the settlement agreement to which it was not a party (D) holding that agreement did not constitute a binding preliminary agreement to negotiate in good faith a mortgage contract (E) holding that a settlement agreement is not a court order and therefore a violation of the settlement agreement would not subject a party to contempt

Ex Output:
(A)