theories were tried the parties submitted extensive briefing to the court on friday for those two theories in the following tuesday the court came out of the opinion which found in stone bridges favor on the two pleaded tr theories but against us on a one pleaded theory of implied amendment to the contract counsel about the notice the judge clearly gave you i think the end of the first day judge there's no question that in twenty twenty hindsight we know that that's what he was talking about but what he said was a course of dealing course of dealing is a theory for interpretation of a contract not the amendment of the contract and if you look at my post trial brief i briefed dealing because that's what he said also mr dallas here is a very competent lawyer if he believes the court was going to go on another theory favorable to him he would've been all over it look at his post  e there is no mention of implied amendment twenty twenty hindsight says that's what the judge with thinking but he said course of dealing i took a course of dealing with the term of art for what it is so i think the answer to that is judge we tried the two series presented by treatment and the judge came up with another theory and it surprised us both just basically on our own our history bridge and in two thousand and four the founder of true made repurchased a company and in an arm's length transaction they entered into two agreements the tool two thousand for managing general agents agreement and a stock purchase agreement under those agreements trip mate with basically perform every function of an insurance company they designed a product they marketed the product they collect the premiums they administered to claims we basically were a financ as a part of their function of marketing they wintered entered into contracts with third parties called travel organization agreements with travel over his asians to perform the function of agent to actually sell the product to t as a part of this whole deal trip made could take up to it was up to number twenty seven percent of the premiums and stonebridge was supposed to be assured of getting fourteen percent in retention which is basically a assurance of a certain level profitability after you pay all the claims and so forth as it turned out trip mate never really produced that level of profitability that led to some distress between the two and  thousand and nine trip made indicated that it wanted to take its sixteen million dollars or so in business to another insurance company and until the parties negotiated determination agreement in november of two thousand and eleven the parties went their separate ways under a terminations agreement in two thousand and ten trip making back to stonebridge and said we know we owed some profit share we want you to pay that five hundred thousand hours of profit sharing after the parties have ended their relationship the parties did and what they said afterwards it's evident the party didn't appreciate that the trial court also erred in a stand apart and assuming that the applied implied amendment actually became a part of the terminations agreement even if you assume there was such an implied amendment they did not become a part of the written terminations agreement and third and i'm not arguing about credibility there simply was no evidence to support that there was this i not even some of the ambiguous language of either of these agreements no you say no evidence no evidence the base is a trust fund they're putting this into this is a kind of a trust fund that all this money is going into and coming out of it goes into a trust fund very vague about what's going in and coming out don't you think that c is very vague provision see no judge all their premiums they like to go in and they're allowed to take out for three specified reasons one is refund a premium the trial court ruled that this is not a refund of premiums that was makes theory too they can take it out for their compensation yeah but it says the amounts that represent the agreed compensation correct that word agreed and you have a two or three times kind of puts off the agreement it's kind of an agreement to agree on commons no and there is a separate document to the stock purchase agreement so they can take up to twenty seven percent that was the agreed number up to they actually decided what they took out for compensation but they couldn't exceed the twenty seven percent number that was their limitation and that's the point i'm skipping ahead now there's no evidence that they ever took more than twenty seven per that would be roughly fifteen million dollars plus there's no evidence they took in excess of twenty seven million dollars the notion that the trial judge had today exceeded that this would always be that i have to believe that they were taking more than they were entitle to is no accountants testified in this case no one testified about the twenty seven percent that they see zero people did that so there's a we're not talking about credibility we're talking about a complete lack of evidence on that subject is it your contention that over these twenty six twenty years or so there was no evidence of this money was taken out of premium trust agreement for this purpose judge i'm not saying that at all they had a right the way this work is all the money would come into this trust account they had a right to take their compensation under the agreement they were required to pay the people downstream from them in the marking chain so when they tell us including this disputed amount that certainly you could you could find evidence that they were doing this but that's not inconsistent with the agreement other words are supposed to pay the people downstream and they are entitled to take compensation that is just as if they call us so they told us we're taking money out of here and we're going to pay our  so that was ok so there was no evidence of what the judge has a course of conduct that he decided the case you know if you look at his footnote he's the reason why he thinks that we know that they're doing something wrong as is the underlying premise that they're taking excessive compensation the more we're compensating himself but if you look at his opinion he never mentions the twenty seven percent limitation or how he reaches this concept but there overcompensating themselves you can read mr galluses brief you will find any mention of the twenty percent of a percent or any citation where people say we're compensating ourselves in excess of that number all this if you can take money out for compensation they're entitled to do that and what they pay with it is really their business they always reported to us who they paid downstream in fact in the appendix appendix page twenty seven there's a chart this is a this is a true mate document and all across the top are names of various entities which they would pay these were some of their brokers that they would pay out of this of the premiums it's agree that all those payments counted as a part of trip may compensation because under the contract there are twenty seven percent included all their payments in other words they had to pay their their downstream people out of the twenty seven percent and so the fact that that we know that they're paying downstream people out of this money doesn't tell us anything that's going on your property these these funds were not covered by the general agents agreement did not survive in other words all that survived this article see that we talk about in which the court focused on if you read that it is about their trip made students all of the talks about his trip mates duties mates to use to collect premiums to put them in his account to account for those premiums and it gives them permission to remove monies for  three things one of which is completely irrelevant what one is this concept of a refund of premium which the court said this is not and the other is for compensation so the real issue just take the money out well he understood there wouldn't be money this money came from premiums and he agreed and everyone understood that there weren't going to be i mean this was there was going to be a few premiums trickle in at the end but treat premiums are basically going to dry up there wasn't going to be any money in that fight and that's exactly what happened they all understood that when they entered into this agreement that there wouldn't be any money there would be possible for there not be enough premiums to pay the b and c items you know  i'm talking about agreed compensation in the traveler system services right that would be possible travel or system services a down that would be possible it be possible for there not to be enough money i don't think so i've been say during the trial you agree with that going on but what he said was course i'm feeling course of dealing is a contract interpretation i mean that's that's a term of art and you look it up and i reached that term premium in congress profiteering that was the interpretation we were talking about and that's what i agree because that's what we were trying to in the case and i understood that notion that he was saying well  could the party by the course of dealing with it and i brief that issue but that's not what he can conclude he concluded that there was an amendment which is a different concept and would and it was based upon his notion that the parties were that if if you didn't count this is somehow this would be excessive compensation where there was zero evidence of that you'd have to have the counting testimony to establish that there was no he decided the contract that you were terminating clued his whole series of this amendment is based on the underlying concept because in order for there being a minute it's just like we all learn in contracts one hundred one there has to be mutual of said and there's both parties have to understand that this is what's going on what mr finkel secretly understands or believes doesn't matter you have to look at what did stonebridge know and understand now he got to act by saying well you would have to know that they were taking more money than they were entitled to but there is no evidence that they were taking more money than they were entitled to that's where you get to the twenty seven percent with out that piece of the puzzle you don't have any evidence of that our people never said that you know he would draw on things like someone said well that would increase their compensation it's true any time they take more out to pay somebody that increases their compensation it's not a question w increase or conversely it's whether they increased it to more than the contract allowed they had a right to choose their amount of compensation he said why would they choose less than twenty seven percent because they had there's also a contractual obligation to produce a certain level of profitability and those two go somewhat hand in hand there's two components to that how much they take out of this compensation and to how much other claims so they're trying to balance those things and produce a result for us they time but on the very last in the agenda on page twenty eight there is a chart from trip made showing total premiums for a month which are four million dollars and how much do we get we've got just tiny shy of three million if you add that up you figure out we got seventy three point three percent that's with deducting everything including excess compensation is not there what would be the what would what would have been the additional evidence that could reasonably have been offered if the parties had understood that this this additional theory was being considered by the court where you have to have to offer count and you have to have offer accounting evidence as to what they took and what percentage it was and whether it violated the contract and did somebody without the help of an accountant telling you what you are seeing is that what you're saying could could somebody look at all the i mean there wasn't a lot of accounting records and evidence because then again that wasn't the issue we're trying the the contract is attached the managing general agreement is attached to the terminations agreement didn't become didn't become part of the determination right did not become a part of the terminator and whether or not it would have existed under the managing general agent agreement doesn't matter anymore and that's what the court look at lost sight of those clauses only continue to exist in the context of the terminations agreement so if we don't if this amendment doesn't become part of the termination the stone bridge and move on to a different company the truck were recognized the court understood that there was history between these two companies we offered evidence at trial will confess and although i'm reluctant to to do this i'm going to anyway because i can't help myself because there's no question of the judge threw me a curve ball and since i was in st louis i really did feel like having a little important true we had to try to be understood understand what the judge actually meant by the course of dealing but i think with the judge was saying was there is a twenty year history of how this these two companies operated with each other and it's going to have an impact on the issues before the court when we first explained or when we first notified stonebridge that there were profit sharing payments due the record will reveal that we were told two things one we don't know anything about profit sharing a twenty year history we have no idea that you read been engaging in this profit in this profit sharing in this methodology of adjusting premiums and if you did it's illegal you can do it and we were a little taken aback by that because the practice of being going on for the entire time that companies had been doing business with one another and so much of the focus in this case was proving to the core satisfaction that this rate modification device was something that was known by the defendant stonebridge and there was substantial evidence offered on the issue of the existence of the profit sharing relationship and the methodology that was employed and the notice that was given specifically to stonebridge and was it over twenty seven percent mr bowles you know it never came up judge the first time we really heard about that was very late in the game although admittedly stonebridge it focused on that with all due respect from my client standpoint it's a red herring and the reason it was really a red herring was because nobody ever talked about the twenty seven percent during the entire time that the companies were doing business with one another even the time th stonebridge own trip made it was never part of the discussion the twenty seven percent comes up in a in the stock purchase agreement that was executed in two thousand and four if you look at the indemnification provisions article thirteen maybe article fourteen there's actually a sunset provision in there that says that that agreement terminates all of the obligations twelve months after date of execution that really wasn't what part of we're focused on that's what the lawyers got focused on after the lawsuit was filed so was it over twenty seven percent probably not but i don't think that really is the dispositive issue and i'm quite certain that's not the trial court counsel tell me in a paragraph or b c where it says the amount that represents the agreed compensation and later there's another squiggle phrase i didn't even come up with earlier it says the compensation is set forth in writing what is that referring to opinion we don't or i don't have the the article in front of me but i do believe the compensation is referring to is the compensation it's described an article f perhaps that talks about the amounts that will be paid to trip made and i believe that's what is making a will after after f also poncy abscess as compensation level set forth in writing and acts like i've already been done right they keep referring to that phrase both places where do we go to find that you find it in exactly what was presented at trial your honor because there is no other written document that's going to contain the the answer to the question you've asked so it's not that the there was a set compensation formula there just wasn't and you won't find it in the evidence because it didn't exist and i can assure you if it had existed it would have been put into evidence by stonebridge at a minimum or by us but i think it goes to your earlier point you pose the question is this contract ambiguous and i think that clearly you can make the argument that it is ambiguous when i say ambiguous they don't mean that they that you don't understand generally what the parties are supposed to be doing but there's no real meat on the bo which you really have is a contract that says work generally the rights responsibilities of both of the party and it clearly sets forth that trip may is the managing general agent of stonebridge and if mr tomlinson said what that means is for all practical the insurance company for all practical purposes what's missing from the contract is what i described as the meat on the bones there is no formula in writing that sets forth exactly how that's going to be carried out through your your argument  that's not what the argument was your honor even though i see judge bend is not in his head yes but what we really with the issue is presented at trial if i may just elaborate briefly and i will answer your question directly it was belief from the very beginning that this refund that this what you are now calling compensation and what has been described as compensation really was a refund of a premium and was covered specifically by article c as a refund of premium the court ruled against tripp made on that theory but that was the argument that was posed and that was the belief the trip mate was under throughout the entire twenty year period no you put it in perspective just if i may for a moment the host travel component of the business that included this profit sharing arrangement was a very small piece of the totality of the business that was involved the very small  together a tour and then sells it to the public or retail this tour operator is the named insured under the travel insurance that's sold by trip made it's underwritten by stonebridge and the only monies was that the the person who is the that who buys the travel package and goes on the to work is really the person who is the owner of the insurance we don't happen to agree with that but we respect the court's getting to where it got to that way but that's why there is this footnote to the argument of the policy partner that person is the owner of the policy according to the opinion as written and yes not it but the testimony is going to have a lot of insurance that are not under the policy that they get a certificate of insurance from the hoa sale travel operator factually that's really what happened so that was the case as it was presented so you can see where the confusion comes between the use of the term compensation and refund a premium the court found with this to be a compensation now it's our contention or i say it was it was yes i say it was absolutely is it in the phrase amount of compensation to be agreed upon in writing between you and them it is actually the evidence we believe it demonstrated that it was part of the amounts that trip mate was authorized to pay on behalf of the company as a refund  premium that was the argument that was presented at trial and then of course the judge made a different finding but to be consistent your honor we always believe that to be a refund of the premium because that's all we ever collected from the travel operator so i don't know if that the simply answered well do you think this the issue on which the judge render judgment do you think it was fairly tried by the parties we have a lot of cases in the circuit they go back  years near years they use the term i court may grant recovery on the theory not clad if it is fairly tried by the parties i don't think there's any question and i think everybody in this band on those knows the trial judge well this was of dealings of these parties starting with the motions to dismiss that were filed in this case by stonebridge this was not a secret that we believe that these parties had engaged in this practice for a total of twenty years and so this issue was so ingrained in the case that i'm a little surprised that that we've gotten so sidetracked on it although i understand why because i say in the case the judge did throw us a bit of a curveball that this was not in the question rather we sued for breach of contract the court found a breach of contract we said it was a refund a premium the court found that it was an amendment to article c different than a refund  agreement was terminated is true except it expressly states in the germination agreement that article c survives termination so everything that's part of article c survives as well if the if this was fairly if this theory was fairly tried by the parties why is it that this term an implied course of dealing but isn't that different from implied amendment i think it is i think technically speaking there is a distinction there so how can you plot a minute to be a theory that was fairly tried in the case of no one knew that it was there until the district court describes it in his opinion in judgment because i my opinion of that your honor is that because the court is talking about the course of dealings that the parties had in gauging over this protracted period of time that it is fairly tried because his ruling is based on that course of dealing all what he does is he and i think if you look back at article see what he does is he's adding a repudiation of two articles see that's an additional permissive payment out of the trust account but in both instances behalf of stonebridge these amounts and then it describes what those are now admittedly it may believe it was always under the refund of premium category the court found that it really is technically it's not a refund of premium i haven't used all my time but i think i've answered your questions let me just say that again this is a divorce these are two sophisticated companies with lawyers negotiating over months everyone understands in a divorce if you don't put it in the divorce decree it doesn't count you have a disagreement you can infer what was put in writing or what was going to be agreed on in the future is a compensation you know i don't know that you ever had a marriage no judge that's that's not correct the the stock purchase agreement was injured into simultaneously with are compensation arrangement is so they put it another document so they're not telling the other general manager general agents what this guy's getting so they put it in their document that's the document it says in writing there's the writing intern into simultaneously by the parties so you know that that was the controlling compensation provision and no one talked about it because that wasn't the issue thank you