or on the day that the legislature passed chapter fifty seven tucson had a choice of cold and either to sign a new agreement with performance goals and a term contract terminating the contract and exercising its and dusan to no steps to preserve those rights before chapter fifty seven took effect seventy five days later it is therefore  t chapter fifty seven the purpose of the contract clause is not to permit parties to avoid valid legislative acts as justice holmes wrote more than a century ago parties cannot remove themselves from the power of the state by signing a contract yet dusun claims that by making an open ended contract it could avoid state regulation in perpetuity but the texas constitution and that's what's important here preserves the legislature's right even its obligation i would say to advance public policy the legislature recognized that and passing chapter fifty seven and open ended bubble at will contract that's the contract between do something and and it will incorporate a new law because the parties are constantly reading new in their decision to maintain the contractual relationship your position as i understand it is that there's no retroactivity here at all as i write as i understand it retroactivity is the attachment of legal consequences to something that happened in the past isn't that what's going on here that the past conduct is the original formation of the contract legal is a future event and that is the terminations it's not it's a feature of future consequence will you know what are you saying we have a contract that existed before him this policy that would have given the benefits to let the supreme court and eight to one opinion said no this is not a retroactive law and it is not an impairment  contract it's current conduct because the contract could have been refresh could have been terminated and nobody did they just decide to continue it and therefore it's present conduct yes and the terminations happen later so everyone was on advance notice right at the time that the law was passed that you can either continue this contract as it is or you can terminate it or you can renegotiate it before the  come to that so we're looking at the texas constitution is there any case law from the texas supreme court as to whether we can look at this as a past conduct case the time of the formation of the contract or if we can kind of move it for the way like the plaintiffs if they were filed more than sixty days after the last passage the plaintiff did not file within that sixty day period supreme court of texas held that because of this grace period just like we have a seventy five day grace period under chapter fifty seven the laws retroactive application would be constitutional it is not any kind of impairment the plaintiffs quote could not have had reasonable expectations that the rules as to as best as related injury claims as they existed before september one would continue to apply beyond september one one chapter ninety that's the statute and there forewarned them that they would not and that's the same position that we're in here they entered into a dealer contract in two thousand and eight from permitted either party to terminate the contract by giving written notice thirty days prior in two thousand and eleven and this is two years after the contract analogy but just as a strict matter of reading the holding of the case it didn't involve a past contract that is turnbull terminable at any time so it's not strictly with my case well application of the not direct application again analogy to the sting case we think the principles are pretty clear the legislature said that this chapter would apply to the dealer agreement that was entered into before the a question that the legislature was contemplating that this sort of arrangement what apply here but it's effective date would not occur until later and so during this grace period dusan had a choice to make do we want so there has been no impairment contract here but distinguishing between the contract that i just mentioned and fixed term contracts the legislature of texas viewed them as distinct and separate a continuing contract  require performs on a continuing basis rather than have a single term the contract is defined by series of successive performances it's like the contract renewed every thirty days as a new agreement every thirty days these are series of contract lasting the duration of the notice period capable of incorporating new legal challenges changes and deed it is settled in other contexts and that's why you've seen in our brief that we refer to employment contracts if an employee continues and texas is an at will state if the employee continues to work after receiving notice of the change in the terms of employment typically this is the rises with arbitration agreements new arbitration agreements you want to keep keep notice of the new law now the argument that we presented to this court is not our original thought and not how to review argument that a right the rose from this court's decision and north shore which would quote quote and it has since been adopted by maryland's highest court in the john tier construction and verse of reliable tractor case but i want to say that even if this were some kind of impairment it is still consistent with texas law under the robinson case which is cited extensively by both sides the supreme court of texas and the supreme court of the united states have held that the extent of contractual impairment is greatly diminished if there is a grace period so if dusan with notice of this law could have changed the arrangement the relationship that's a party cannot have reasonable expectations that the old law will govern when they were forewarned that it would not and this reminds me of a common dance that occurs at the end of just about every legislative session the legislature passes a law and then the lawyers rush to to make sure that their claim is preserved in the new law and so you'll see all kinds of lawsuits before expert witnesses were required in doctors  of the robust expert witness cases or asbestos claims or file early or the insurance claims in the last session plan just rushed because the insurance laws changed that happens in every and every year  and it is very similar to the texas legislature impacts other dealers and regulates them heavily and their contracts with their dealers the district court  didn't agree with all of that but it did reach the public policy argument and it took a look at whether chapter fifty seven was justified and concluded that this chapter was not in the public editor's but it could do very specific about the impact on the economy deal or manufacture relationships that are termed a bill at will and how those have a devastating impact on the economy and it's not just in this is a law that deals with industrial equipment farm equipment there are all kinds of different categories of equipment heavy industrial use that this applies it's not just decide it is not just a it is a way to preserve the investment of a vital sector of the texas economy and and that is public policy that the court should provide deference to and it's not the finding that the legislature made that this protects the general economy the state and public welfare is not diminished simply because the dealer dealers received the most direct benefit that is true of most laws economic laws including laws each of those benefit benefited a class of persons to the detriment of another class yet the supreme court of texas accepted the legislature's conclusion that they were in the public i think this is really  philosophical question and that is the extent to which the legislature has the power to determine what is in the public interest and if you look at this record of texas  that the supreme court has not looked beyond the legislature's reasoning when evaluating a law is constitutional duty but hasn't step invalidated only those laws where the legislature through the legislature gave no reasoning at all and where it was clear that the law was intended to retroactively benefit a single entity so for all of these reasons we we do think that the supreme court of texas should and could consider this but we think the principles that we've established the cases from the supreme court from other courts and from this court that was the genesis of the right that we're talking about today should satisfy the court that the district court's judgment should be reverse it please the court the district court properly dismissed and tx claims against tucson under the texas statute at issue and with good reason retroactively applying the two thousand and eleven statute the two thousand and nine contract fully express the protections of the kind of texas constitution your honor if the act applies we cannot terminate an attack without good cause we need to establish good cause before the statute was passed we did not have to establish because we could terminate antec for any reason whatsoever so the relationship between tucson and amp tech dramatically changes if chapter fifty seven is read into the copy and as i understand it the law was passed and signed on day one and there was a period of time that elapsed before the law took effect that's correct or was that it was opposing counsel right that there was that grace period where you could have terminated and thereby avoided that's right and at that i mean that was the point of it right and under no circumstance judge show after the statute was passed could do so on have retained the right to terminate and tech without but you would surely agree that the legislature can say in all of your new contracts going forward with dealers only term issue because no question the government can do that right correct so i take opposing counsel's point to be well if you don't like for cause terminate all your dearly relationships before this law takes effect correct and so you just make sure i understand you don't dispute that that you all could have during this grace period so i don't like term nation for cause so i'm going to pull out correct we could have left texas all together we could have terminated and tact and but we would have had to go to a new deal or negotiate with a new deal subject to the terms of chapter fifty seven understand that michael does not make it not retroactive no because in no circumstance could do sun have fully preserved its rights that existed before the statute was passed if you look all you're saying that you don't like her because you don't like the law period you don't like the new deal we don't like the new deal but we could not have continued in our relationship with  you didn't have to continue the relationship you could have avoided this new law you just decided you wanted to continue the relationship and to my mind that makes this a future conduct case rather than a past conduct is right in my room tell me i'm wrong about that i'd i think you are wrong your honor respectfully i think the issue here is we continued pursuant to the two thousand and nine contract and in the last chapter fifty seven is is read into that contract  harm from your viewpoint but from the legislators viewpoint was basically permanent contracts so long as both parties are satisfied that have this particular ride on of terminations and  it seems to me that you can have both you didn't you didn't want to nish lee a term contract so you do fall on of these we knew of all at the at the time specified by the terminations notice so every thirty days you had two of those thirty day period sub effectively new order on the seventy five day grace period when all this is is is a way to interpret this statute in a way to really interpret the constitution is what we're talking about  and you have a valid enough point which seems to me getting back to what mr jefferson said makes perfect sense to certify that we can make a ruling that as all the power and effect of the fifth circuit and i don't mean nearly as much as the texas supreme court making a statement about what's your response to judge shows and judge jefferson suggestion here are the issues presented certainly could be certified to the texas supreme court we believe that the robins n tast which the texas supreme court laid down in two thousand and ten and provides the guiding precedent here is subject to test having us weigh things that would be better weighed by texas judges honor the other point i would make on the certification question is obviously the case was originally filed in state court it was removed to federal court on diversity generous the defendants chose their forum in this case  believe is necessary here in light ironic circumstance i wonder how unusual it is i don't have statistics i don't even honor but so perhaps it is not not unusual but proceed that is on the table possibility a sort of yes it is your honor if i may briefly just touch on the robinson test it's a three prong test for determining whether or not chapter fifty seven is unconstitutional retroactive the first prong is the nature and strength of the public interest as evidenced by the legislature's factual findings and robinson wrote there must be a compelling public interest to overcome the heavy presumption against retroactive laws that the facts presented here are nowhere near like the facts presented in our shop which involve protecting natural resources located in texas a v which involve protecting children or even sanat skee which dealt with the especially this litigation crisis in texas the only beneficiaries of chapter fifty seven or a small group of dealers that were singled out for special reward in this case for the passage of the statute in addition we would say that the sponsor of chapter fifty seven specifically said the purpose was to level the playing field between manufacturers and dealers and the supreme u s supreme court has held that leveling the playing field between contracting parties is expressly prohibited as a significant and public interest but this is all once you've proven that this is retroactive is it unconstitutional retroactive that's correct your honor i married i want to go back to the retroactively questions i think that's the for me anyway the more challenging do i understand correctly of the following is true lets say before the law was in effect you enjoyed having a relationship with a dealer dealer and but only if it was terminable at will if you were forced to live in a for cause regime then you don't want to be with you want to be a dealer be your more comparable deal or be if it's for cause did you have the opportunity here to switch we had the opportunity to switch from being with dealer a being able to terminate without cause turn to dealer b but we would not have been able to terminate that relationship without cause but be with me that under the statue you have any case from taxes such as that despite the fact that you had that opportunity to switch the plaintiffs could have rushed to the courthouse filed a lawsuit and fully preserve their rights so during the grace period they could've fully protected themselves and you would see those cases it's not retroactive those cases all determined were not retroactive here the distinguishing fact again and i i hate to belabor this but we were in a relationship where we could terminate intact for any reason statute gets passed if that statute as pat is read into the contract we couldn't terminate amp tech without cause we couldn't terminate dealer b without cause the relationship that we had to settle the expectation in the ability to terminate and tech without cause was completely destroyed by chapter fifty seven in no circumstance could we have continued that that relation the other point i would make on the continuing contracts  and the provision that m tech relies upon is highly speculative dicta that we think has little bearing on the facts presented here in addition in the reliable tractor case that amp tech also relies upon for their continuing contract theory that case wasn't even followed after it was certified to the maryland court of appeals the eleventh circuit rejected the holding that it was a series of one hundred twenty day contracts so even if you look at the authority that text cites it's not it's not on point and not supportive of their argument and we would respectfully refer this court to the sixth circuit case that antec cited in on page fifteen of its brief called jack tyler that is directly on point to the facts presented here there you had a contract that was terminable i believe on thirty days notice the same way that that this contract was terminable on thirty days notice a statute gets passed requiring good cause and the sixth circuit says no it would be retroactive to apply the later past statute to the earlier contract that cases directly on point to the facts presented here we would ask that the court adopt the reasoning from the jack tyler case and unless the panel has any other questions morning in may it please the court josh mahoney counsel for up only ellison techno runners regardless of what this court decides with respect to the constitutionality of chapter fifty seven as to the two claims against ellison this case can be decided by the straightforward application of pleading standards to factual allegations in the pleadings to determine whether antec met the rule twelve c pleading standard we must look at am text petition which now with respect to the first claim against ellison tortious interference with existing contracts antec adds in its count for this claim the additional the three it incorporates the three allegations i just tucson to quote terminate am text contract there is nothing about interference with customer relationships there is nothing about interference with the performance of the contract instead by am techs allegations interference is the termination itself and with respect to tortious interference with an existing contract antec had to plead factual allegations sufficient to satisfy the following elements the first is a contract subject to the type of interference that is being alleged here the termination the second is an act of willful and intentional interference third that the act of willful intentional interference resulted in harm and fourth the harm itself runners antec did not sufficiently plead those those elements a plea to the contract that was not subject to the type of interference that's being alleged the terminations they pleaded no facts showing that allison willfully and intentionally did anything to cause a breach of the agreement or interruption with the performance of the agreement there are no facts to show that allison asked dusan to terminate the agreement in a way that would violate its terms and because those two failed the following elements fail as well and on that basis alone judgment on the pleadings was the correct result now what antec did sufficiently allege on the face of its pleadings and what the court may take traditional notice  and your honor i am stuck repeatedly makes the argument that ellison must be charged with knowledge of the law your honor if we assume that ellison must be charged with knowledge of chapter fifty seven so too must we assume that ellison is charged with knowledge of the highest long texas that of the texas constitution's prohibition against retroactive statutes and so too must we assume that allison has knowledge of the longstanding principle in texas that only statutes in acted at the time of the contracts execution become implied terms antec has not cited any cases that stand for the proposition that statutes and acted after execution of a contract may become applied terms the cure state case for example cited in the m text reply brief stands for the proposition well established in texas that only statutes acted at the time of execution become applied terms and so your hon on these facts and this court has held that a defense may be adjudicated on a rule twelve b six or rule c motion it established as a matter of law that ellison had a good faith colorable with respect to the other allegations that amp tech has argued form the basis of its tortious interference claims i note your honour's that that was not appropriately presented to the district court in response to alison's motion of  and even so your honor is if we look at the additional allegations that antec tried to put forth if we assume it was appropriate for any consideration on a rule twelve c motion those allegations can be easily put aside because there are other irrelevant cause of action has pleaded they are disconnected to any harm as polluted or inappropriately conflate tortious interference with prospective contracts and tortious interference with existing contracts very quickly ron or with first honors with respect to the other claims against ellis and civil conspiracy first we must appreciate the fact that amp tech and never attempted to protect or preserve this claim when faced with the motions for judgment on the pleadings m tech pointed the court to its request for claiming the injunction and rule fifty four of the motion but only in the context of its chapter fifty seven claim and that makes sense because those two submissions dealt exclusively with the legal and factual merits of the chapter fifty seven claim they don't mention the civil conspiracy claim and when ellison and dusan pointed out to the court that amp tech it failed to address civil conspiracy in response to their motion for judgment on the pleadings antec again remained silent did not seek to amend its pleading it did not ask for leave to submit further submission to the court and clarify any misunderstanding it remained silent that claim has been waived and even if it had been preserved your honors when you don't look to the petition to see that it is not a viable claim paragraph eighty four of them text petition it stated quote all defendants in conspiring to  just a quick very quick response on ellison i'm going to point the court to three places in the record this is from the original petition and take allege that dusan had assign products moving forward and in an affidavit attached to the petition jack but testified that ellison to delivery of five machines before antics contract was terminated these are acts that happened sort of the creation counsel said it's unusual to certify i can say with pretty good confidence it is not unusual and in fact from around two thousand one maybe two thousand and two until the present day there been several certifications per year from the circuit to the supreme court and unlike in prior years once a question is certified the supreme court immediately acts on it and accept it there's not been filings and it was a single retroactive law to extinguish the liability of and as best as successor and the court said that's retroactivity and that is unconstitutional and it was a very thorough the court says announce as a principle of law i believe that parties are obliged to follow it and that's what we have done here and we're not the only one that has done this and the idea of these continuing contracts is replete not only in texas but throughout the country that has the impact of not giving them a grace period if they hadn't wanted not to be under the new legal regime of backtracking and cutting a new deal or terminating right away before the truck came into effect that's why it's not retroactive it's also why it's not a contractual impairment and for all of these reasons we believe that the court