in this case the relevant provision of the contract about the compensation the a terminations and that his pay that forty percent that counts it was paid twelve point no i'm saying that it was forty percent was what he was receiving when he was working yes a that commission and an earlier provision in paragraph three of the contract that commission was headed forty percent of the consultant gross profit the terminations provision payment in paragraph six  at thirty percent of the consultant gross profit or otherwise do i know it was that was used i mean is that the language that was used that's the language in the contract yes doesn't it say thirty percent can be done in a competitive play inside the market and take it's even referred to by the company as the consultants gross profit and so consultant gross profit and it is the consultant gross profit is earned one hundred percent of it is our it doesn't use the word pay the commission and the consultant gross profit are two different terms which have well established meaning not only in the contract but in the course of conduct between the parties and  as a result it's our position that the trial court judicially modified the point meeting of the provision in the contract where there had been no assertion of well what you would have to say something about the sum gross profit it would have to be the consultant gross profit colback which would be the same thing as earned or this consultant gros profit paid by the this buyer of the product during the one year period if you just took out otherwise the otherwise earned we're not saying there are unnecessary and we're not excluding the robot no we're not your honor we're we're giving meaning to the word of that paragraph we're giving it it's point meaning it's full meaning that meaning that only with the high crack but with the course of conduct of the parties previous to that the a payment was actually made on fairly close germination and it was compete with them to agree to not compete with them and that was something completely outside the contract isn't that right that is the position that was playing the trial  issue and then a statement by them that they didn't want to have to compete with with them and he did not compete with them also your client personally is that correct because they stopped paying after he got a job and started even if that was the argument made trial yes  we believe that our argument is solid we believe we're giving meaning to every word and that paragraph we believe paragraph sixty we believe that if meaning is a multiplier a forty percent raise a reduction of sixty percent that's a substantial reduction based upon what we believe the plane in the paragraph six  i'm not quite sure how wong but pretty close to four decades worth of trial court spirit it's one of the things i think we all share is the notion of requests problem with respect to how they felt after the visit they felt that it was inappropriate for your client to approach them about i'm doing some type of them deal with loans or with them and caterpillar word black's law dictionary because the parties are used that and because the contract here didn't strictly define misconduct there are some contracts that do but there are some contracts that here we have  by the trial court well if you study it you argue that it and i think if you don't recall i believe what we did is we copied the definition from that page of well i believe the testimony of the c e o has been is characterized by read his testimony and he clearly stated that there was no wrongdoing in the conduct i believe what he has stated here is to a very specific question  answer that no there's nothing wrong with that and he let us ask about each assertion of wrongdoing isn't that correct when he was on the stand he was asked about each example and said that there was nothing improper remember this is in sales i did mr ball is in sales and in sales it's kind of like practicing law clients clients always write the customer percent of the forty percent in effect now we know why wasn't why can't why shouldn't the court has requested ever awarded prejudgment interest based upon the findings or relationship that has come into existence by virtue of a written instrument and that there was no unreasonable or fictitious de lay on the part of the defendant to merit awarding pre judgment interest and the defendant has raised an honest dispute as to what amount case we went through significant effort to do that the record shows that so when you read the words easily calculable you see that it means if you agree on the amount versus meaning that it's a simple calculation once the court determines what oh yes i would define easily calculable perhaps as there is a some do with a second interest really and then that some can be applied in which computer programs where you can plug if you agree with that i think we would have tendered the amount young getting a bit afield here too i'm not going to mention other trials ongoing in the media but in this case what's happened is  obviously we don't agree i think the language here is very clear in fact turn back to the court's order and the court's opinion the property opinion they not only found it was clear that their language in this case and that is that amongst different sales differing sales consultants for coral there are differing rates not everyone's forty years some could be thirty some could be forty some could be fifty and even with i think the testimony show that even with specific hit within specific consultants or individual consults books of business there may be differing rates on differing on differing clients of that consult so that's the way that's the reason why the language is the i'd also like to address briefly the issue of this where we admitted that it was thirty percent because we paid him a payment of thirty percent that's absurd the letter of october one two thousand and nine for my client to bowl and it's page thirty one of the record i'll read from it references this is a termination for misconduct then references that thirty percent is being made quote based on your company and you are bringing on compute comment who is on team and say this offer is not required under the conditions of your marking  was competing that's when the payments stop and i think those two facts the fact that a reference in the letter and this is a letter that's written long before anyone thought of lawsuit it got relevant to the issue of what one thirty seven was a major accomplishment caterpillar is a major purchaser and it's manufacturing plants of chemicals or also else the chemicals  terminations with no prior warning no prior questioning of him or anything that's a shock to his system the letters that were referred to  about well no one is thinking about a lawsuit the person responding to those letters was me and and my response was that this contracting party is not going to be if you look at the intercompany memorandum from peter doherty to the accounting or the financial part of the company it that if he's not going to compete with the company he's going to be paid seventy five percent of the console gross profit the active  or it is also gives us the the factor of thirty percent of the consultant gross profit there i get that you know it's it's not coincidental that that matches what we believe to be the plain meaning of paragraph six the mr foley ask you in three eight isn't his compensation determined to be forty percent of the gross profit yes and gross profit is different than they're identical and the evidence at trial repeated many times those are identical terms it just so happens that they are they didn't put the word sulfur in there look at how he had been paid previous to the act previous to determination it was always on the basis of consultant gross profit so if there is any question about whether gross profit is the same as in some gross profit that the conduct of the parties where he was paid forty percent of the sulphide gross profit helps us know without a shadow of a doubt that in that time track the paragraph three reference to gross profit is the same term as paragraph sixteen a reference to