may please the court the court should reverse because the district court misconstrued the contractual compensation present it is you in this case and when properly construed this is a fact preclude summary judgment the compensation at issue it's fundamentally the same as the district courts the contract says seventy one percent of gross for the main charge and what you're now arguing is what it really means is seventy one percent of gross on some portion of everything that is not just a charge for a particular item has to go into the seventy one percent of gross is that your position our position is that the label the trailer trans of places on an item does not determine whether that item is actually intended to reimburse or not there's an underlying fact to be decided not just the label that can be placed i don't think you listen to my to go into the seventy one percent of roche and you get seventy one percent of their gross revenues without regard to their costs is that the argument you're making that we have made alternative arguments on that the first one or it is either yes or no please tell me whether it is yes or go yes if the court determines that it's an item in item out determination then our position is that an item where there was a gross inflation or no underlying expense would be an item to be included in completely in the seventy one percent split with the driver and that gets to the point is that  what has happened here is that we have fundamentally a shift from in compensation from gross revenues from the drivers to trailer transit simply by taking part of the part of the gross revenue and putting a label on it that has no underlying tied to what in fact happened for the particular loan do you make this line of argument in the district for that is did you say to the district court we are not seeking seventy one percent of net on oil what we want is to have certain items transferred into the column from which we get seventy one percent of gross wheat we made both arguments to the district court both leap portion of and the seventy one percent of was you this has to be on an item in item out things so you have to either an item is the end or it's out you can't use this net portion and what we've responded was specifically no a reasonable jury could find that where an item was grossly over charged or there was no underlying expense that that entire item would be then included in seventy one percent would go to the drivers we made that specifically in response to their argument that  compensation provision does not contemplate that what the contemplate what the compensation provision provides is the true the chance it may deduct items intended to reimburse it for special services such as third party costs like permits escort services and other special administrative costs this provision was not intended to allow the trailer transit to shift its overhead cost to the driver and there would be no way for the driver to even control or or monitor those costs like you can for the third party are you arguing that howell trailer transit allocates these items has changed over the years seventy one percent of the gross of a particular one of these items and makes it very core does it not just say what we really want is seventy one percent of the gross of everything now i don't think that there's anything in the record about the driver's understanding of any practice by trailer trash didn't ask about anybody's understanding i asked about money that if these contracts are stuck at a time when the trailer transit is already doing transit made this change and they're behaving opportunistically in light of the terms of the contract are you making that loan that there was a change there was an opportunistic change no we're not making opportunistic change argument this these are over charges or charges for the most part unknown to the drivers because they for the most part do not see the underlying costs it was just there was a happenstance that for our particular name plaintiff he became aware of a a to transit had ducted from his compensation charge over two hundred dollars for an escort service and he was aware that there was no ask for service because he had been driving at work time so it's just a matter of having happenstance that this would even come to a driver's attention so if charlie trances i'm just curious obtain gross revenue as a result of fraud is it your position that walkers and title to share of radzivill revenue however trailer transit obtained the revenue does not matter on the back end to the drivers this is a case about the agreement made between the drivers and try to transfer to a transit may have been overpaid by a customer and may have been underpaid that doesn't matter to  contract between the drivers and what the driver was for him for his work and projecting that really understand that so why would the driver care about anything except the the that what you are no good at and there is a high turnover in that in these industry but that the drivers with the drivers had was in agreement up front that they would be paid by certain scale and they were paid at a lower scale it does doesn't matter th they stuck around not knowing that they were being paid at a lower scale by accepting it they had an agreement where they were entitled to the higher payment to trail transit was siphoning away by labeling items incorrectly well a lot of times one by something and the charges excessive right right but what the what the true the charges are was allowed to be deducted because the charge for that was intended to reimburse trailer transit preserved transit was doing was charging that were deducting that when there was no underlying expense even or when the underlying expense yes but this is where you're getting into the internal finances of the company not no i just always happy to you know charge more than something because right now i don't believe we are because that kind of put that provision doesn't contemplate that they can deduct overhead or things like this these are out of pocket costs that they have to do in order for the truck to get from a to b they have to pay for a permit in order for the truck to drive they they have a cost they have to pay for the us but they have that cost what they're doing is even though they have this cost they are inflating them keeping all of that inflation as the gross revenue and then splitting the smaller part with the driver just it's complete shift of revenue without the driver having any control over what about the hourly wage of the employee who took an hour to arrange escort services that's providing these special services one of the arguments i just heard was that the term special in the compensation vision special services evidence is the party's intent that trailer transit was limited to charg a special use outside the norm of true chance operations or just normal business operations plaintiff's expert analyzed ninety four loads of the plaintiff did in two thousand and ten of those ninety four loads only nine had permit charges that's less than ten percent this isn't a mainstream normal business operation type of low for true a chance that it is outside or in part of the service trailer trans it provides to the shipper customer is determining what permits are required this is specialized knowledge that extra work trailer transit has to do on those special those requiring permits that it then charges the customer for providing those services trailer transit intends to be reimbursed by permit charges not only for the out of pocket cost of the permit but the internal cost of providing that special service to a customer there was a question judge you asked about the history of the parties and whether this practice according to the plaintiff have been established before or after the contract a changed one example that is in the record the example that the plaintiff cites is a two thousand and nine escort service that he claimed was charged to the shipper but there was no escort service that load in june of two thousand and nine predates the contract that is in the supplemental pendants or skews in the appendix separators twenty nine to thirty five so at that time to plan it had already had an example  and escort service that unequivocal language is in the contract in so we would draw on the court's recent opinion and we submitted a rule twenty j letter on the last in case in that case goes through the rules of contract addressed but also it's consistent with the services and and the council to reimburse him so the other thing that's raised by the plaintiffs are and which  was they just said that if eight that are for permanent charge they could potentially be an entire two seventy one percent of all the revenue from that charge even the out of pocket cost for th permanent and no reasonable juror could look at the compensation provision and say plaintiff you're entitled to seventy one percent of a permit charge even that the if a permit costs thirty five dollars the plaintiff is you're not entitled to seventy one percent of thirty five dollars and so ours is a straightforward easily workable interpretation of the contract one of the key issues the court said i'm awesome there were vexing questions caused by the courts the plaintiff's interpretation of that contract in that case in vatican meant in the court looked at that and said that means it's not unreasonable to petition we will on the other hand favor an interpretation of the contract that doesn't cause vexing questions plaintiff theory here causes vexing questions about of each load for each charge whether the charge will be and or out of gross revenue in our opinion the contract could be and unambiguous terms of the contract dictate say they don't challenge or they don't claim that the manner in which trail of transit charges its customers otoh result in overcharging to the customers or is any way consistent with the contract straight a transit coast so we build based upon what's quoted to the customer on the front based upon the information provided by the customer and in we built that once it's agreed to by the customer they are somehow saying that in the back and when they're going through the transit terms the drivers compensation we are manipulating the revenue somehow by lately but the decisions made on the front end with the customer we line item invoice our customers are the customer sees a permit charge for six hundred dollars on the invoice in payson that's the contract with the customer in so plaintiff doesn't dispute that the way we charge o customers is consistent with those customer contracts it is just the plaintiff is just now saying and some circumstances i get some of that revenue even though it is consistent with the customer contract because a jury could determine that it wasn't intended to reimburse but the contract interesting question if you don't get permit charges you don't get us court charges and it's essentially a simple as that if there are what the contract says of the trailer transit gets items intended to reimburse and what trailer transit has done has withdrawn items where it had no underlying cost whatsoever in order to shift the compensation it got from the customer from the driver of the as far as internal costs the the items listed after specials services and costs are permits escorts there was testimony from the c f o that permits are something they call up a perm agency and they have a cost because a permit agency performs the task of figuring out what the permits are the escort fees are the same way they don't do that they don't drive the car down the road in from the semi they call a company they have a fixed cost though those special services are intended to be out of pocket costs not internal parked cars which the driver would have no control over whatsoever and trailer transit would have all the discretion in the world to shift revenue completely to itself if ok thank you very much