the contract and related claims based on alleged breach of the common law prohibition against soliciting business relationships that have been sold we are pleased to offer you the following terms in connection with your employment by the firm as a director and officer of our company and the purchase of your present and future book of business related to the insurance business you agree that at the time of the eisenberg had sold his business his book a business no good will associate goodwill to a on but he continued to operate he continued to service those clients and he continued to view that as his business and he was selling both his present and his future book a business as it might develop that was might my question he had no present good business duty i mean he had sold allegedly to pay on yes it very that  he either had sold it and he didn't have it or at very least it was under serious cloud judge sweet and doesn't make a difference i don't think it makes a difference except for the fact that it was understood that to the extent and there's testimony on this in the record as c e o of the weight who negotiated with him to the extent that the business was capable of being purchased at that time he was purchasing it to the extent it was not capable of being purchased and it would have to be developed through the which conduct on his behalf to try and force you know to get him released from that agreement and then they would be purchasing the future book of business and both types of contracts  forcible but what does future business mean there's no definition in the agreement there right there's no front the concept of a book a business i think is universally understood at least in the insurance business and certainly we could argue i guess if we had to try this case we could argue whether that was universally understood that a book of business is understood in a future book a business would be whatever book of business he would be able to develop in terms of the client relationships at the wet when he moved over to do it he was already with so it was with something it wasn't he didn't have some independent business that he was operating inside with well no he he was at a on and then on october seventh or ninety thousand tease out future book of business yes to the future book of business would be that the clients that he lawfully was able to bring to the way it unaffected by any cloud that do it could continue to service and generate commissions from oh it's not the clients that while he was once he started with the weird he then brought in yes once he started to when he then what happens typically as a broker in a broker situation is that you know issue it's called a broker for record a letter and you'll send out you'll say this to take it and the do it would have to pay damages for all of the business all the commissions that were lost as a result of that so it was not the way it's book a business the moment he walked in the door it became do it took a business  where it was able to resolve the litigation with a on by paying four hundred twenty five thousand dollars to settle it and get a release what was the consideration for the purchase of the present and future book of business there is a significant variety of compensation and there was one with a ninety thousand dollars bone up front bonus that was paid and while it was not well articulated in the agreement articulated although it was a payment for the present and future book page mr page in a subsequent memo to his to the board indicated that's what he understood it additionally there was another comp and i mean there is a significant amount of consideration that was paid he was paid it was a new employee it was a new employee and he was getting a lot of compensation yes he was getting company was good he was going to get compensation he was also provided basically a million dollar a year insurance policy where they agreed that to the extent the business could not successfully be transported to do it he would be paid a million dollars a year so i think that that's also a substantial consideration if he didn't actually succeed in bringing the episode where he would receive a million dollars a year the other thing that's also interesting to note is it is not a well drafted contract and we counsel and they negotiated the terms for a significant period of time and i will note that in addition to lack of detail about the allocation of the compensation the consideration to be paid for the purchase of the business there was also it provided that mr eisenberg never had to show up at work mr eisenberg was not going to ever have to account for his time and take any employment that he wanted in any other profession full time part time whatever you want to do without as long as it wasn't in the insurance business again i you may sit there and he said well but point that that's something the jury needs to tease out and i would i would agree that perhaps that is but i think that it's not something we can look at this contract with that specific language in there and say this clearly on ambiguously evidence is no intent on the part of the parties that he sell his book a business why wasn't and seven agreement provisions with regard to it doesn't say that it just says with respect to the subject matter here and in fact it's a much more detail to like the agreement than the two thousand and seven uncleared to not compete which suggests that it is addressing the same subject matter it does to the extent it addresses the same subject matter to the extent to addressing the terms and conditions of his employment it does not address this the purchase of the business the other thing i will not compete is related to the purchase of an agreement saying you can't continue to solicit business and so so a lot of your old clients so i'm not so convinced that it doesn't it a trick it's certainly related to the issue if you go ahead and compete in violation of it but it's not the subject matter there this is a dual purpose agreement again it's not the most beautifully crafted document but it's a dual purpose agreement it specifically says that it's both for the terms of his employment as a director an officer of the any didn't have prior to his coming to do it that were not historical clients of his before ever coming to do with every know every one there's one client that was new to move them to do it back to new regency is there any any indication that he used any confidential information from do with yeah well that gets to the issue of what confidential information etc the two thousand and twelve agreement expressly states a confidential information shall include the names of customers the names of account accounts and the names of key account as well as account characteristics now the now the judge suite below noted stated that this was not could not be enforceable because if you bring business with you and relationships with you without any substantial assistance from your employer the employer can't then claw them back with a non computer agreement but in this instance as you pointed out your first question all these relationships have been sold he no longer had these relationships you can say that historically i mean you can't change the fact that he knew these people and historically had worked with them but as a lot league matter of law those relationships have been sold he has an agreement that's part of the record that show that he had sold all of his business and all of its goodwill to an and he had entered into a non computer agreement that said he wouldn't be able to compete with them for three years i don't know how he can then come in here and say well i didn't use any i cork carmen di maria from the firm of ogletree deakins nash smoking stewart for the pelleas defendants it is our position that the exhausted opinion of judge suite below in which he went through in  great detail all the facts that were alleged by both sides should be affirmed before you can get to my outline i just want to address some of the things that were discussed during appellant's argument first of all all as judge cotto pointed out all of the clients that mr eisenberg took with him to gallagher were clients that he had preexisting relationships with with regard to new regency while it was a new client the decision maker was a decision maker mr clawson who he had known long before he ever went to do it with regard to this issue of the one million dollars guarantee it's in the record that that was taken out by mr johnson from the agreement in a subsequent agreement so that  longer part of the two thousand and seven agreement this as far as this notion that he never had to show up for work i mean he's being paid on a commission basis and if you look at his agreement it says you will be responsible to produce insurance accounts on behalf with the s g you will devote your efforts and skills as necessary to produce a business so to say that somehow he sold his business because he didn't have to show up for work is just belied by the record but in terms in terms of the two thousand and seven agreement which which appellant is clearly relying on judge suite as a matter of law could determine whether the agreement was ambiguous or not and i would invite the court to review the two thousand and seven agreement there is not a single term in that agreement which goes to discussing a sale of a business every term and that is referred to the purchases and at the present and future book of business one reference in the first line your honor but as this court is held are we to treat that well the way you treat your honor is as this court has stated in computer systems the intention of the parties must be gleaned from all corners of the document rather from sentences or clauses viewed in isolation what appellant would have you do is your view that one part of one sentence and say that he has sold his book of business but when you look at the four corners of the document there is no reference at all to him being a seller there is no there is no reference as i believe the judge pointed out to any terms of the sale including what the terms of a future sale would be when you look at the compensation terms he's called an employee when it discusses his compensation and i think very very very tellingly the last sentence of the agreement right before mr page's signature says to accept the terms of employment offered here in please sign this letter agreement below this this is clearly an employment agreement and not an agreement for the purchase of a book of business but what do you do  think that when you look at the four corners of the whole agreement it's inconsistent with an argument that the agreement has to do with the sale of business not only that when you look at the other extrinsic evidence including  the parents own witnesses testimony it's inconsistent with that statement for example the c e o charles johnson whose testimony that they rely upon states that there was no sale of a book of business on october the ninth two thousand and seven which is the date of the ig he was asked is it your position that richard's business was purchased as of ten nine two thousand and seven two thousand and seven yes or no answer no then when was it purchased for the first time answer over the course of time so we have one c e o saying that the two thousand and seven agreement is an agreement for the purchase  book a business and we have the other c e o saying well no this business wasn't purchased at that time it was purchased over time so i think that when you look at the four corners of the document as well as the extr evidence and i mean we haven't even discussed yet the fact that in their original complaint and in their original brief in support of their application for a temporary restraining order they didn't they didn't say that the two thousand and seven agreement was a purchase agreement they specifically said that it was an employment agreement if you turn to say six it says in order to memorialize and confirm the understandings and agreements entered into between eisenberg with respect to his employment for the company and to protect itself in the event of future disputes to wit and eisenberg signed a series of employment agreements with the company including his final agreement executed by october ninth two thousand and twelve the third such agreement during his term with de witt so they characterized it themselves as an employment agreement when when the when the case first started when they made a sanctions motion then they switched their position their position was that well he didn't have he didn't have a book of business to sell because he had already sold it to a on well well how could he how could he have a two thousand and seven agreement where he is selling a book of business if he didn't have a book of business to sell i think that that is really the nub of the issue is that no a reasonable juror hearing all of their testimony although they're hearing all of their own testimony and reviewing their own could ever make a determination that there was a sale of the book a business but but even if you did even if you did make that determination by its own terms the two thousand and seven agreement expires after five years that's what it states and mr page whose testimony that they rely on sis we are both committing for five years so after five years the agreement expires and then they enter into this two thousand and twelve agreement which your provision not only that but the agreement is superseded by the two thousand and twelve agreement what's what's the best evidence of that again their own pleading in their own briefs where they said they said  that two thousand and seven agreement was superseded by the two thousand and twelve agreement not only that but i think it meets all of the other characteristics that you need in order for one agreement to supersede the other it specifically had an in clause it dealt with the same subject matter which was employment and they couldn't be read in tandem because one agreement expired and there were different terms of employment in the two agreements so if the one agreement did supersede the other so now let's go to the next step of the analysis the two thousand and twelve agreement is is that it was that agreement violated by mr eisenberg and i would say for two reasons it wasn't first of all as judge sweet correctly pointed out under new york law when one employee brings relationships with him to a business then the employer doesn't have a legitimate business interests such as is talked about and b t o sidemen and and that line of cases it's only when he acquires those relationships while he's there that the employer has a legitimate interest in preventing him from soliciting that business going forward and their own witnesses testified and it's undisputed that mr eisenberg had all of these relationships long before he ever came to do it the second reason it's on enforceable is there is no way confidential information here mr mr eisenberg had all of these relationships again undisputed from their own witness's testimony he had all these relationships and brought them to do it this to to just to call just to put it in an agreement and call it confidential information when he construction ed or excise terms nor distort the meaning of those used and thereby make a new contract for the parties under the guise interpret in the writing i just don't believe the church would have a right to ignore that language the only thing he could have done was he could have said well this is confusing to me this is really ambiguous because there's of all this other stuff in there that i don't see that i should expect to see ignored he discussed heaton while he first concluded that as a matter of interpretation this contract can only be concluded as it concluded to be an employment agreement he made that determination he didn't say and then said at best it's ambiguous and then when he went into the ambiguity analysis he said deleted it and then mr page sent it back again and said i have reinserted that language because it's an essential element of our agreement in that same email he said i also have made this contract only terminable by cost for each of us otherwise we wouldn't have much of a sale here now if you can if we if you if you're with me that he can't judge a judge suite could not have as a matter of law just ignored that language that the most he could have done was probably the best evidence of their of their intent and what's really i think most important to point out as well is that i'm sorry losing my train of thought oh judge judge sweet said that determined that he could place no value on that extrinsic evidence by doing that he basically assumed the obligation of the jury the fact the jury is a fact finder to determine the weight of the evidence if if you business sunsets because of the term of employment associated with that sunset so the argument that the sale was only a five year sale and then it reverts back to him i don't know where that's coming from there's no case law that cited for that  and the the authority for enforceability i just want to last thing i want to say is that this we have cited authority on page nine of our reply brief that addresses the fact that buyers of good since are and materials will enter into contracts will say i can't tell you how much i'm going to need so we can't figure out the amount and we can't figure out the total cost but you'll supply me whatever i need for my requirements this is this is that could arguably be said to be an enforceable contract but it's not a course of regularly enforce those contracts this is a similar type of contract were said whatever business you ultimately developed going forward that's go and again there were substantial compensation consideration paid for that contention that that obligation that right to control mr eisenberg future business continued past the five year period yes yes and in fact there was an effort no no no the