[00:00:00] Speaker 01:
We will hear argument next in number 241363, Delfasco against Secretary of the Army.

[00:00:09] Speaker 02:
May it please the court?

[00:00:11] Speaker 02:
In today's argument, I'm going to address argument three of Delfasco's brief.

[00:00:15] Speaker 02:
The board improperly refused to consider evidence of the party's prior conduct, as I believe that's dispositive.

[00:00:22] Speaker 03:
Why does that matter if the contract itself is unambiguous?

[00:00:26] Speaker 02:
Well, first, I think there's two reasons to that.

[00:00:28] Speaker 02:
First, I do think that the contract is ambiguous with regard to Steele.

[00:00:32] Speaker 02:
So I would take that position.

[00:00:34] Speaker 03:
But secondly... Well, I mean, Steele has a dictionary definition that it has up to a certain percent of something.

[00:00:40] Speaker 03:
If we apply that dictionary definition, then it's unambiguous.

[00:00:44] Speaker 02:
Well, almost everything has a dictionary definition.

[00:00:47] Speaker 03:
And that's the way we often do contracts.

[00:00:50] Speaker 02:
Yeah, but in this party, there is a course of conduct that getting to the... I can't override plain language in the contract, can it?

[00:00:59] Speaker 02:
Well, the parties are allowed to be the lexicographers of their own contract.

[00:01:04] Speaker 02:
So if the parties, at the time they entered into the contract, both believed that the bomb bodies were made out of steel, and they put that the EPA clause should be based on steel because they believed the bomb bodies were made out of steel, then our intent is to enforce it in accord with the... So if the bomb bodies have been made out of steel, you would get the EPA clause, but they're not.

[00:01:27] Speaker 02:
Right, but I believe the interpretation by the parties was that both parties believed that they were made out of steel.

[00:01:37] Speaker 02:
I think the definition of steel is ambiguous.

[00:01:40] Speaker 02:
You can look it up, and you've got even different definitions in the dictionary that the board looked at.

[00:01:47] Speaker 02:
And sometimes it's 1.5%.

[00:01:49] Speaker 02:
It becomes steel.

[00:01:51] Speaker 02:
At another point, it's 1.7%.

[00:01:53] Speaker 02:
It becomes steel.

[00:01:56] Speaker 02:
You can look at your card and say, it's made out of steel.

[00:01:59] Speaker 02:
But is it really?

[00:02:00] Speaker 02:
Is it some of that gray iron?

[00:02:03] Speaker 00:
Is the difference in 1.5% versus 1.7%?

[00:02:08] Speaker 02:
No, no, there is two, I may have, well, the court, I mean the board appeared to be relying on these as being disposables.

[00:02:17] Speaker 00:
What I mean is, let me be clear, is the difference between these different dictionary definitions, is that going to make a difference in whether gray iron is included within the broad term, steel?

[00:02:28] Speaker 00:
No, I don't think it does.

[00:02:29] Speaker 00:
I didn't think it did either.

[00:02:31] Speaker 00:
No.

[00:02:32] Speaker 02:
So at any rate, my position is that it is ambiguous, that any word can be ambiguous, it has different meanings.

[00:02:40] Speaker 02:
I know we get into the whole issue if we go into part A about- It still sounds iron.

[00:02:48] Speaker 03:
I mean your whole point about the parties understood that the bonds were going to be made out of steel may have formed the basis for some kind of mistake in contract and that there was no meeting in the mines or something like that, but it doesn't matter as to whether an EPA clause only for steel applies.

[00:03:05] Speaker 02:
Well, I think there was a meeting of the minds.

[00:03:08] Speaker 03:
Because I think both parties believed... Both parties agreed that you got an EPA clause for steel.

[00:03:13] Speaker 02:
Both parties agreed that you have an EPA clause for steel.

[00:03:15] Speaker 02:
But I think it was also both parties' interpretation at the time of contracting that the bomb bodies were made out of steel.

[00:03:22] Speaker 03:
But that's a fact.

[00:03:22] Speaker 03:
They're either made out of steel or they're not.

[00:03:25] Speaker 03:
It's not a question of they thought that iron was steel.

[00:03:30] Speaker 03:
If they thought that the bomb bodies were going to be made out of iron and should get an EPA clause, they would have written that, wouldn't they?

[00:03:38] Speaker 02:
They didn't write that the bomb bodies, that the EPA clause is based on iron because of the fact that they interpreted steel to encompass the bomb bodies.

[00:03:50] Speaker 03:
They didn't interpret steel to encompass iron, though.

[00:03:54] Speaker 02:
Well, that's because they believed the bomb bodies were made out of steel.

[00:03:57] Speaker 03:
That has nothing to do with the definition of steel.

[00:04:01] Speaker 03:
That has to do with what the parties thought that the bomb guardies would be made out of.

[00:04:06] Speaker 03:
If you made your bomb bodies out of steel here,

[00:04:09] Speaker 03:
then you would have gotten the EPA clause.

[00:04:12] Speaker 02:
Right.

[00:04:14] Speaker 02:
But the drawings going back years.

[00:04:18] Speaker 02:
Let me just ask you this.

[00:04:19] Speaker 03:
If we determine, looking at the plain language of the contract, that steel and iron are not the same thing, and that the EPA clause only applies to steel, then what else is there in this case?

[00:04:33] Speaker 02:
Well, I think that, as this court said,

[00:04:38] Speaker 02:
What the object is is the fundamental precept of common law that the intention of the parties to a contract controls its interpretation.

[00:04:48] Speaker 02:
And that's in beta systems, which we cite in our brief.

[00:04:50] Speaker 03:
And the first place we look to that is the plain language of the contract.

[00:04:54] Speaker 02:
Correct.

[00:04:55] Speaker 01:
What is the evidence that you want to highlight on the proposition that the parties understood that the product being sold and purchased was made of steel?

[00:05:15] Speaker 02:
Well, there is a course of conduct beginning with the contract.

[00:05:20] Speaker 01:
Running through up until... Beginning with the signing of the contract.

[00:05:25] Speaker 02:
Beginning with the signing of contract.

[00:05:28] Speaker 02:
Up until the time of summary judgment.

[00:05:30] Speaker 02:
It would be my argument that the course of conduct... So what are the elements in that course?

[00:05:35] Speaker 02:
There are discussions between the parties.

[00:05:38] Speaker 02:
There are two contracting officer's final decisions where the contracting officer listed all the reasons why it should deny the claim.

[00:05:45] Speaker 01:
In the papers given to us, there are a series of invoices that say gray iron, gray iron, gray iron.

[00:05:57] Speaker 01:
Who saw those?

[00:05:58] Speaker 02:
Those were seen by the contracting officer.

[00:06:00] Speaker 02:
Those were submitted to the contracting officer with the claim.

[00:06:02] Speaker 01:
How do we know that?

[00:06:03] Speaker 01:
That's the question that I wasn't able to answer on my own.

[00:06:06] Speaker 02:
Yes, I believe it's undisputed that the invoices were submitted with the claim.

[00:06:09] Speaker 02:
And I think you mentioned in one of your briefs that some of those invoices do say they're gray iron.

[00:06:13] Speaker 01:
Submitted with what?

[00:06:14] Speaker 02:
with the claim that I was back up the claim.

[00:06:17] Speaker 02:
The invoices were submitted as back up to the equitable adjustment.

[00:06:21] Speaker 01:
The claim made in 2020.

[00:06:23] Speaker 01:
Yes.

[00:06:23] Speaker 01:
And the contract was in the spring of 2016.

[00:06:29] Speaker 01:
The EPA clause says you have 60 days from an increase to make the request.

[00:06:35] Speaker 01:
What

[00:06:36] Speaker 01:
That's much less than four years.

[00:06:38] Speaker 02:
Well, that's notice that has to be given, first of all.

[00:06:43] Speaker 02:
But the board never reached the notice issued below.

[00:06:48] Speaker 01:
That was raised by the government?

[00:06:50] Speaker 02:
The issue was raised by the government, but the board did not reach it.

[00:06:55] Speaker 01:
Right.

[00:06:55] Speaker 01:
But in any event, there's no reason to think that during the four years of either prior to the contract

[00:07:04] Speaker 01:
being signed or in the four years before your, what, April 2020 claim was submitted that the government had any reason to think that this was a great honor?

[00:07:17] Speaker 02:
The evidence is very, very sparse up until the client claim is submitted.

[00:07:22] Speaker 02:
However, I will say I believe the fact that they even selected Steele

[00:07:27] Speaker 02:
as for the EPA clause, is an indication that they believe the bomb bodies were made out of steel.

[00:07:33] Speaker 02:
And the reason for that is, as the government concedes, the steel portions of this bomb you create, the steel portions are a very small portion.

[00:07:44] Speaker 02:
They're the fins and a little cone.

[00:07:46] Speaker 02:
The government concedes that the major part of the bomb body is the body, which it's now saying is gray iron.

[00:07:55] Speaker 02:
Since the only difference between these two things are the molecules of carbon are in it, they would not have made a small part of the bomb to be subject to the EPA clause when the whole bomb is essentially made out of the same thing except for these few molecules of carbon.

[00:08:16] Speaker 03:
That makes no sense to me.

[00:08:17] Speaker 03:
These are not essentially the same thing.

[00:08:19] Speaker 03:
Definitially they're different.

[00:08:21] Speaker 03:
And if steel was more volatile and they understood that part of this would be steel, then they can give you an EPA cost for that, if the other part is not so.

[00:08:31] Speaker 03:
I mean, you seem to think that the parties agreed that this entire bottom would be made out of steel.

[00:08:35] Speaker 03:
If that's the case, why didn't you make it out of steel?

[00:08:38] Speaker 03:
If that's what you thought you were going to make it out of.

[00:08:41] Speaker 02:
Well, they made it in accordance with the drawings.

[00:08:44] Speaker 02:
And the drawings do say gray iron.

[00:08:46] Speaker 03:
Well, then it's absolutely nearly frivolous of you to argue that you both thought that the bomb bodies were going to be made of steel.

[00:08:56] Speaker 03:
When the specifications didn't say steel, they said gray iron.

[00:09:00] Speaker 02:
Well, I think you've got a difference between technical people who are dealing with the drawings and the specifications and the people who are entering into the contract.

[00:09:11] Speaker 00:
So I think- Just to make sure, I understand.

[00:09:13] Speaker 00:
Your view is because the contracting officer did not immediately say, hey, you can't have a price adjustment under this clause because you've got gray iron as your bomb body.

[00:09:26] Speaker 00:
Because that point was not made immediately and instead it wasn't made until later on summary judgment,

[00:09:33] Speaker 00:
that demonstrates in your view the government's position or concession or understanding that the word steal is used in the contract includes gray iron right um that is your argument not by itself but that is one part of it your other your other argument is that

[00:09:51] Speaker 00:
Any other interpretation doesn't make sense, because that's a small part.

[00:09:55] Speaker 02:
And I agree, the small part about the bomb bodies.

[00:09:57] Speaker 02:
But what you have here is you have a course of conduct over many months where the parties were discussing.

[00:10:03] Speaker 03:
Does the specification tell you precisely how to construct these bombs?

[00:10:09] Speaker 02:
Fairly, fairly.

[00:10:10] Speaker 03:
And some of it is gray iron, and some of it is steel.

[00:10:13] Speaker 02:
Yes.

[00:10:14] Speaker 03:
And the specification is incorporated into the contract.

[00:10:17] Speaker 02:
Yes.

[00:10:17] Speaker 03:
So the contracting parties know at the time that there's gray iron and there's steel.

[00:10:24] Speaker 02:
Yes.

[00:10:25] Speaker 02:
I don't know that the parties... Go ahead.

[00:10:28] Speaker 03:
Thank you.

[00:10:29] Speaker 03:
And they agreed to an EPA clause that only covered steel.

[00:10:33] Speaker 02:
The parties did agree to an EPA clause that states steel, yes.

[00:10:38] Speaker 02:
But I would also point out that the government in this case made an admission in its answer that these bomb bodies are made out of steel.

[00:10:46] Speaker 03:
They're partly made out of steel.

[00:10:47] Speaker 03:
Everybody agrees.

[00:10:48] Speaker 02:
No, no, no, no.

[00:10:49] Speaker 02:
They said the bomb bodies are made out of steel.

[00:10:51] Speaker 02:
And let me find that quotation.

[00:10:53] Speaker 03:
Well, that's just not true.

[00:10:55] Speaker 03:
Are you saying that that's some kind of estoppel?

[00:10:58] Speaker 02:
No, I'm saying it's an admission at the time of what the government believed.

[00:11:04] Speaker 02:
I mean, they put as an affirmative averment of fact in their answer.

[00:11:08] Speaker 03:
I don't understand how that can overcome the clear language of the contract, which incorporates the specifications that distinguishes between gray iron and steel.

[00:11:18] Speaker 02:
Well, it's a judicial admission, I think.

[00:11:21] Speaker 02:
At least it shows what their belief was at the time they wrote it.

[00:11:25] Speaker 02:
At the time they wrote it, I think there's a course of conduct here that shows that everybody believed these bomb bodies were steel from the time the issue arose until the motion for summary judgment, including an admission by the government.

[00:11:39] Speaker 03:
How could they possibly have believed they were steel when the specification showed you that the bulk of them were made by gray iron?

[00:11:46] Speaker 03:
Well, the... Are you saying they meant the gray iron and steel were the same thing?

[00:11:52] Speaker 02:
I don't think anybody truly knew the difference, to be perfectly honest, at the time.

[00:11:58] Speaker 02:
You know, these drawings have been here

[00:12:02] Speaker 02:
for a significant amount of time.

[00:12:04] Speaker 02:
And we have a course of conduct that I think goes in one direction and one direction only.

[00:12:11] Speaker 02:
So I guess the argument comes down to whether or not you believe steel can be an ambiguous term.

[00:12:17] Speaker 02:
Because if you don't feel it's an ambiguous term, perhaps I can see that at least some people don't believe you can even get into the issue.

[00:12:26] Speaker 02:
But I think if the parties believe at the time they enter into the contract,

[00:12:30] Speaker 00:
But even if, let's say, assuming for a minute that it is ambiguous, in order to be able to rely on trade usage in the documents you want to, don't you have to show that you had an understanding of steel that included gray iron

[00:12:50] Speaker 00:
And we're on summary judgment.

[00:12:52] Speaker 00:
And there was no evidence that was presented.

[00:12:54] Speaker 00:
So there's no genuine issue of material fact that there is no evidence that you thought steel meant something that included gray iron.

[00:13:02] Speaker 00:
So end of story.

[00:13:03] Speaker 02:
Well, I think you're confusing here perhaps the trade practice and the extrinsic evidence with the party's course of conduct.

[00:13:13] Speaker 02:
You're right that to enter the extrinsic evidence, you would have to show that you had the intent at the time you entered into the contract to read it in that way.

[00:13:24] Speaker 02:
That's true.

[00:13:26] Speaker 00:
Why isn't course of conduct extrinsic evidence?

[00:13:29] Speaker 02:
Well, it's not like extrinsic evidence in the term that it's used in these cases where you've got dictionaries versus trade usage.

[00:13:38] Speaker 02:
The conduct of the parties is just plain evidence.

[00:13:42] Speaker 02:
If I come in and I say that, as they did here, the bomb body is made out of... What law do you have to support that?

[00:13:48] Speaker 02:
What?

[00:13:49] Speaker 00:
that the course of conduct of the parties is not extrinsic evidence, but is instead something that's intrinsic and part of the contract interpretation.

[00:14:00] Speaker 02:
I do not have a citation for that.

[00:14:02] Speaker 00:
I think I need a citation for that.

[00:14:06] Speaker 02:
Would you like me to see if I can find something and submit it to court now, afterwards?

[00:14:09] Speaker 02:
Or do you guys think you need that and it's not there?

[00:14:12] Speaker 00:
I think that if you think you can find something, you can submit it.

[00:14:18] Speaker 02:
I take it you think that doesn't exist then.

[00:14:20] Speaker 02:
I don't think it does.

[00:14:23] Speaker 02:
Thank you.

[00:14:24] Speaker 01:
You are into your rebuttal time.

[00:14:25] Speaker 01:
Pardon me?

[00:14:26] Speaker 01:
You're into your rebuttal time now, so maybe... Oh, I'll step down immediately then.

[00:14:36] Speaker 04:
Good morning and may it please the court.

[00:14:38] Speaker 04:
The court should affirm the board's decision here because the contract unambiguously permits the contract to receive an adjustment for a price of steel only.

[00:14:47] Speaker 03:
Do you know what was going on here when they didn't immediately say, this isn't, what you're asking for is not steel, it's iron?

[00:14:56] Speaker 03:
It did seem like it went fairly along in the claims process and even at the board before we got this legal argument.

[00:15:04] Speaker 04:
Your Honor, the government appears to have been focused on the other requirements under the contract, that being notice, additionally, whether or not the price of fluctuations surpassed 3% of the contract value.

[00:15:15] Speaker 04:
And that's at page four, footnote three of our brief, where we talk about the other bases of the government for summary judgment.

[00:15:22] Speaker 04:
The board did not reach those bases and had no reason to reach them, given the plain language of the contract that is issued here.

[00:15:28] Speaker 04:
entitles the contractor to receive an adjustment for the price of steel only.

[00:15:33] Speaker 04:
And there is no dispute in this case that the contractor to your sudden adjustment for the price of a different material, that being gray iron.

[00:15:42] Speaker 04:
And the appellant's brief at note one.

[00:15:44] Speaker 03:
Is there any doctrine that would allow the board to find waiver if the government didn't make these objections during the claims process?

[00:15:55] Speaker 04:
No, Your Honor.

[00:15:56] Speaker 04:
Finding a waiver during the claims process would be, I think, inconsistent with this court's precedent in Willner, for example, where the findings- Could you say Willner?

[00:16:06] Speaker 04:
Willner, W-I-L-N-E-R, which the board does cite in the opinion, I believe, in Appendix 7 for the proposition that to the extent the appellant seeks to rely on findings of the contracting officer, either explicit or implicit,

[00:16:22] Speaker 04:
That would be at odds with this court's precedent in Willner, the en banc case there.

[00:16:27] Speaker 00:
So instead, it's characterized as being a course of conduct.

[00:16:32] Speaker 00:
And so that's what I understand it to be.

[00:16:35] Speaker 00:
I understand it to be a course of conduct.

[00:16:38] Speaker 00:
So my question is, are you my last question about, can a court look at the course of conduct of the parties

[00:16:50] Speaker 00:
as an intrinsic evidence to understand the meaning of a term in a contract?

[00:16:56] Speaker 00:
Do you know the answer to that question?

[00:16:58] Speaker 04:
I do not have a case citation for the answer.

[00:17:00] Speaker 04:
I don't believe that a case exists that supports appellant's counsel's position this morning.

[00:17:06] Speaker 04:
They did not make that argument in the briefing before this court, but rather the label this morning on a course of conduct relates solely to evidence that arose after the dispute and that the board considered as being not probative of contractual intent because it arose after the dispute.

[00:17:23] Speaker 04:
That being both the answer by the government

[00:17:25] Speaker 04:
and the contravenous decisions that were appealed to the board.

[00:17:33] Speaker 01:
That distinction about post-dispute and pre-dispute feels like you're turning it on its head.

[00:17:44] Speaker 01:
When somebody says something against their interest after the dispute,

[00:17:51] Speaker 01:
That's one thing, and it's even more powerful than if they had said it before the dispute.

[00:18:02] Speaker 01:
The usual context in which that distinction comes up is when somebody says something after the dispute that's in their self-interest.

[00:18:12] Speaker 01:
And you say, well, that really can't matter.

[00:18:15] Speaker 01:
It seems very peculiar to say that the government having gone along through the contracting officer process and then for a good period of the actual litigation after it was out of the agency and into the board without having said, hey, wait a second.

[00:18:35] Speaker 01:
What you're asking us to pay more for isn't steel at all.

[00:18:40] Speaker 04:
Your Honor, again, the government appears to have been focused on the other requirements of the clause.

[00:18:45] Speaker 03:
But the issue is with the board's

[00:18:48] Speaker 03:
reliance on timing, not so much as to whether it comes in as extrinsic evidence or not.

[00:18:54] Speaker 03:
I mean, if it's extrinsic evidence, it doesn't come in if the term is unambiguous, right?

[00:19:00] Speaker 04:
Without a showing of reliance on it before.

[00:19:02] Speaker 03:
Right.

[00:19:03] Speaker 03:
But if it's ambiguous, we could look at course of dealings, right?

[00:19:07] Speaker 03:
And if the course of dealings had said, when the government got the claim, said, well, we agree what you're trying to recover comes under the Steele EPA clause,

[00:19:18] Speaker 03:
But you didn't meet the notice requirements, then we might see that first part as a concession I take it I understand your point is they didn't say that at all.

[00:19:27] Speaker 03:
They just rejected on the timing They didn't address whether it was steel or iron correct.

[00:19:32] Speaker 03:
That's a different case But hypothetically if the answer on that claim it said you've met all the requirements to show you're entitled to this EPA clause But you filed it too late

[00:19:44] Speaker 03:
then that would seem, and assuming the term was ambiguous, that would seem to be evidence that the government thought that it was covered by the EPA clause, right?

[00:19:54] Speaker 04:
The appellant would still need to establish reasonable reliance on that competing interpretation even to get that type of extrinsic

[00:20:01] Speaker 03:
answer-based evidence sure but you only get there I mean you only get there first of all it's ambiguous and then if it's ambiguous there might have there must have been some suggestion that it could be interpreted in both ways the hypothetical I think assumes that I'm just worried the board put down a categorical line about timeliness and nothing after contract formation is relevant at all and I don't think that that's the case

[00:20:30] Speaker 04:
I don't understand it to be sent that the board addressed the pre-dispute, post-dispute dichotomy.

[00:20:38] Speaker 04:
It was cursory in the opinion, and it did not control the analysis given the failure of a showing of reasonable reliance

[00:20:47] Speaker 04:
by the contractor on the competing interpretation that the term steel in the contract encompasses gray iron.

[00:20:56] Speaker 04:
So that just was not a controlling part of the board's opinion in the case.

[00:21:01] Speaker 01:
And anyway, just a timing question.

[00:21:03] Speaker 01:
So the claim here was filed in April of 2020.

[00:21:07] Speaker 01:
Was the contract?

[00:21:09] Speaker 04:
22.

[00:21:10] Speaker 04:
What?

[00:21:10] Speaker 04:
22, I believe.

[00:21:13] Speaker 01:
Oh, I thought it was 2020.

[00:21:15] Speaker 02:
Anyway.

[00:21:17] Speaker 01:
Was the contract over?

[00:21:24] Speaker 01:
Or was it continuing, performance continuing at the time?

[00:21:30] Speaker 04:
Your Honor, I don't believe that that issue was briefed.

[00:21:33] Speaker 04:
But I believe the contract had been completed by then, because it was awarded in 2016.

[00:21:38] Speaker 04:
And it's only five years.

[00:21:43] Speaker 01:
The reason I ask this is that it might well be that there was some reliance in the continuing performance of the contract if there had been a request and the government never said, hey, wait a second, this isn't steel.

[00:21:59] Speaker 04:
Understood.

[00:22:02] Speaker 04:
Again, because there's no ambiguity in the term steel in the contract and there's no dispute as the appellant recognizes that page three, note one of its brief, that it sought an adjustment for something other than steel, that being gray iron, the court should affirm the board's decision.

[00:22:16] Speaker 04:
Thank you.

[00:22:17] Speaker 01:
Thank you.

[00:22:22] Speaker 02:
Very quickly, and just a couple of points.

[00:22:24] Speaker 02:
First, the board relies on ASBC case Parsons, which it cites Max Drill, which is a case of discord.

[00:22:33] Speaker 02:
And it cites it for the proposition that the party's interpretation of the contract during performance before a dispute arose is demonstrative of their contractual intent.

[00:22:42] Speaker 02:
And I don't dispute that.

[00:22:43] Speaker 02:
However, if you look at Max Drill, what it actually says is

[00:22:46] Speaker 02:
The interpretation of a contract by the parties to it before the contract becomes the subject of controversy is deemed by the courts to be of great, if not controlling, weight.

[00:22:57] Speaker 02:
But here we don't have any evidence of what happened before the dispute arises as the court defines it.

[00:23:05] Speaker 02:
So all the evidence is after the dispute arose.

[00:23:08] Speaker 02:
But even if we don't give that controlling weight, even if we give it less weight, it all goes Delfasto's way.

[00:23:15] Speaker 02:
So Delfasto has shown by preponderance, because all the evidence that exists goes its way.

[00:23:22] Speaker 02:
Relating to extrinsic evidence.

[00:23:24] Speaker 02:
And along the same lines as I just stated, even if you decide that the course of conduct is a kind of extrinsic evidence you can't consider, you can consider that evidence if there is some evidence that that's what Delfasco relied on at the time it entered into the contract.

[00:23:42] Speaker 02:
Now Delfasco did not put in an affidavit about how it interpreted this when it entered into the contract.

[00:23:48] Speaker 02:
There is nothing at 2016 when this contract was entered into.

[00:23:54] Speaker 02:
But Delfasto has shown through its course of conduct that it interpreted in this manner.

[00:24:04] Speaker 02:
I think Delfasto on summary judgment is entitled when there's no conflicting evidence at all, when there's a course of conduct indicating that it believed at the time of contracting that it should be interpreted that manner.

[00:24:18] Speaker 02:
And there's no conflicting evidence at all, although it's not as strong as if it could have put in an affidavit or something.

[00:24:26] Speaker 02:
It is the only evidence in the record.

[00:24:29] Speaker 02:
I would say that shows by a preponderance of the evidence that they did rely on it.

[00:24:34] Speaker 02:
And they're entitled on summary judgment to an inference that if that's what their entire course of conduct shows, they believe it went in one way.

[00:24:42] Speaker 02:
They're entitled to an inference that that's how they believed at the time of contracting.

[00:24:48] Speaker 02:
And therefore, that should be considered.

[00:24:51] Speaker 01:
Thank you.

[00:24:51] Speaker 01:
Thank you.

[00:24:52] Speaker 01:
Thanks to both counsel.

[00:24:53] Speaker 01:
The case is submitted.

[00:24:54] Speaker 01:
And that ends our session for the day.