five hundred twenty six dollars we are appealing the damaged calculation of the jury which was against a clear weight of the evidence and based own faults evidence if you will  this is the first basis in the first issue of our people were also appealing to other issues once the judges failure to instruct the jury to construe the july twenty sixth two thousand pop offer letter which it would would be helpful to call the court's attention to what is the the central piece of evidence in this case and that is exhibit a eleven and it is on page four forty two of the joint appendix w and and they have a presence at the plant full time thirty forty employees at a time a client was given the account manager position and he was offered the account manager position on july twenty sixth two thousand five now prior to that time he was asked if he was interested in indicated that he was interested and he was told that the this is he's going to pay this much is going clued these terms of compensation and so on july twenty sixth two thousand  they barrows who was the direct report for the account manager came to b m w and gave my client an offer letter which is again exhibit one exhibit eleven a place for forty two and my client looked at the offer letter and noticed that there were three items that had been previously discussed with him that were not in the offer letter he had been promised a truck and a fuel court he had been there was a fifteen percent bonus that was based on turnover osha goals and you see it is outlined in the contract into his referencing the b m w contract between him p w b m w and finally and this is the issue in this case is he was told there would be a one percent bonus paid on all gross revenues build in excess of the contract amount so to to help clarify this if you look at it he was told then it's not written what no that's right so so when he says hey you left out the new work bonus day barrows picked up the phone and call paul the short who was the general manager and said present tom says there are some things left out of this letter he said the fuel card and then mr barrows proceeds to write truck and fuel card on this letter he says he he says we left out the fifteen percent bonus he then hand wri barrows and it is dated he then hands it to mark lyon who says give me a day to think about it he goes home thinks about it comes back signs the letter hands it and he becomes the account manager nobody really expected the level of growth of this account and if you'll just look and joining joining appendix page three ninety one which is the b m w contract itself the amount of the b m w contract with m p doug is one point nine seven five billion that's the baseline contract and it is billed monthly in equal installments of one hundred sixty four thousand dollars and that was the contract now the parties could agree to do more or less but the baseline amount of that contract was one point nine million and so the offer letter that references increase of contracted you well ok you say that's a signatory yes and there was a sting what you're talking about now that's right and there's a stipulation entered on page fifty seven of the joint appendix where the parties agree that that is the signature of de barracks so it was signed and if you also look at this letter and this is this letter is the written agreement yes and you maintain these terms on definite and certain to yield a particular damage well this is is it what is set forth here well i think is what set forth here and he also told something you said he was told beforehand hey these are the things you get but even in the process of doing something here you said he was told something supposed to be all perhaps i say that because i think there's different ways to view the offer letter you could view the new work balance for increase of contract to me end up as a shorthand reference to the to the one percent bonus or you could cite the one percent number was supplied poorly nobody disputes that the multiplier was one percent that's not a dispute that there was a one percent multiplied the question has multiplied  architecture it was multiplied against the increase against the baseline of the contract now i'm we did make that up the general manager testified that they and he said we get it very simple it was based on like i mentioned earlier in the budget revenue my baseline in this case it would have been july one any incremental increase regardless of the nature if that's what you're asking it was it was built in book revenue increase on the baseline so if we accept granite there was some evidence that there was evidence here to support the basis of your contention the jury chose to go with the fourteen thousand two hundred forty figure and there was testimony i believe it trial was the fazio presented a calculation that was introduced to show essentially there was no meeting of minds or not as to this alternative calculation of damages i did not but you still for example the b m w the jury i don't want to over talking but i want to make sure i understand that point because i think that's critical and i don't want you to leave it because you leave that point you may leave something that's the critical part of your argument  it is presented in a manner as though it is an alternate way of calculating the damages and you get these two different figures the jury chose this figure you didn't object to it when it was presented nor did you ask for a limitation of instructions nor was there there was any clarification to the jury in his presentation that this was not to be obviously not because a jury bus them but what it would have would have ignored that but so there's no clarification  to know that well good question and server they may have been confused and i don't say that i'm completely blameless in the fact that maybe there were things that could have been done that weren't done but it still doesn't change the fact that the seven to the fourteen thousand five hundred twenty six number kane that number was based on a calculation of a project booking bonus it was a policy that was never implemented but you have a jury in front of you and what you and what juries put do very difficult things when you go to lawyers you know what's going on he's right and he takes the stand he gives this alternate places one of which he reaches one figure and the other reaches actually this week of fourteen thousand dollars and that's what it appears when you the jury when they come back and say i took forty years this fall that wasn't what that was enough for but no one ever told it so what do we do well i think they were told by the evidence i mean i understand it perhaps there were some things that i could have done that made it clear look was clear that's not the purpose of this you're not challenging the fact that bespeak is here with you saying it shouldn't be the ultimate damage figure but both sides just adjust again in fairness both sides argue to the jury that hey critical to this project booking bonus was a document they were saying was an under discussion and that under discussion would only have produced a bonus of fourteen grand so there  of it was a fourteen thousand dollars right and they even told the court that we're not going to happen today well i don't know how much but i can certainly tell you that was the point made to the trial judge when i said hey york dorgan the policy he said only to show a failure to meet the minds and that and that resulted in a stipulation only a jury charge but the one point i'm i'm out of time but the point i have to make your honor your honour's is that the calculation that was performed that resulted in the fourteen thousand five hundred twenty six dollar number was from a policy that did not exist at the time that the july twenty sixth offer letter was made there could not have been a meeting of the minds that that was the the the way of  and then the in the joint appendix the supplement join a pin this is where the project booking bonus on myself in the peculiar position of defending a plaintiff's verdict but i'm going to do that we tried the case we did the best job we could we defended it we put up pleasure of evidence so there was an absence of a meeting of the minds we did the best we could to try to explain to the judge to the jury what the very sunder standings war what the various understands of the terms of war and what the consequences of the terms were in terms of what the damage amounts would be and as your honor pointed out it admitted without objection without any request for limiting instruction of course we would have bigger certainly oppose that had the request been made but that but the jury did what the judge asked the jury to do mean if we look at the charge that was given to the jury the judge charles said in doing this you must decide which testimony to believe in which testimony not to believe you may disbelieve all or any part of the testimony of a witness is testimony that you argued to the jury that fourteen thousand some odd figure is not they have a purposes of them but it is a very limited purpose well of course we made the point to the jury that we were not at all conceding that there was a contract but it is case in that case the expert testimony the jury heard the evidence presented by the parties and could accept or reject any part of their testimony and i think that's the essence of a jury trial is that the jury has to take the facts that are presented and make the best possible choice they can make the verdict form which is in the record as three points that i think are relevant here one is was there a contract they answered that they gave was yes was the contract breached the answer to that was yes there's the third point on the verdict form is what is the amount of damages in the church the jury heard the evidence the jury chose not with all due respect to the agreement and the response was there is no in essence there is no written agreement and off act i'm going to try to quote as best i can but it was the contract the this is this is there was an oral contract memorial but i an offer letter now of councils willing to stipulate here today that that offer letter was a written agreement then that would make sure order of this case because the offer letter in this case couldn't possibly constitute a written agreement every written agreement has to contain all the material terms one of the most important terms in a written agreement is the is the term the price term which either needs to be a fixed amount or some reasonable means of ascertaining that if you if you pick up the software literate there is no way you could ascertain what the what the bonus was and now that's not a failing of ambiguity that's a interpretation of oral testimony by mr bush shard that that's what he meant but that's not if you look at it carefully at the the testimony of mr bush or he did not say that the baseline in this  called contract was some random figure out of the b m w contract what he testified repeatedly over and over again and we've cited to it in our brief is that the baseline was the annual budgets and how else would you measure performance would you measure performance three years into the contract based on some random figure or do you examine the state of the business at a given point in time you develop annual budgets and you measure performance based on the budgets that's what mr bush ordered testified to the other thing this to be short testified to which is a reason why the policy is relevant again if you look throughout his testimony he makes numerous references to this policy that he developed he took the sales commission policy he changed a few things around he testified that this in essence that this policy served as the basis for the agreement that he reached with mr davis fazio did was take mr bashar it's testimony in the plain language of the policy that the draft policy that he was developing that had to have been on his mind when he said he entered into this agreement with mr davis i was concession that he thought the oral the offer letter was a written agreement we were looking at summary judgment but instead he said it's an oral agreement memorialized bob this offer letter so given the the shifting sands we decided our  best way of approaching the would get in this case is to just hit it real hard with a meeting of the minds case so we developed witness testimony and took the testimony that we could they had available to try to demonstrate to the jury that there were all these alternative understanding's that were admitted without objection and without any request or limiting instruction and i think that's what the jury did was they took the testimony they sorted it out the best they could and came up with a verdict number that harmonize with the evidence they found persuasive let me as you that i'm going to exhibit thirty one i take it that you introduce that yes your honor we do it what was the testimony if any of that the fourteen thousand two hundred forty dollars all right your honor first of all the the point of that exercise was to to show to the jury change fazio was the witness and it was to show the jury given these alternative understanding is one of the direct consequences of the the test the evidence that supports the fourteen thousand falls into three categories first mr bush or testified that the that he developed this policy and he presented it to management and got the tacit approval he said that the bonus that he had agreed to with mr davis was based on the policy and then secondly thirdly he talked about how we were it worked he said the baseline for measuring the the performance was going to be actual revenue versus the baseline of budget and then he would apply this sales commission policy that he had been in the middle of drafting so that that was point number one evidence piece of evidence number two was the draft policy that clearly mr bush shard was drafting in the jury had that information in front of them that had two elements that i think are critical here one is the policy makes clear reference to the draft policy makes reference to budgets as a baseline but then it talked about the fact that  the the revenue that is it issue is is revenue outside base contract scope the scope of this could this contract was industrial cleaning at the b m w plant and what testified to the meaning of that whether the b m w contract means things other than industrial cleaning maybe production support or maybe some other task that the b m w folks asked him to do and i understand which you're saying so basically if i understand it correctly what you're saying is that there were one more bonus calculations that the jury could agree upon rector and they simply chose the one that was in exhibit thirty one which is a fourteen thousand two hundred something dollars well that's right mr bashar when he testified did not have the policy in front of him there are a lot of explanations for that but that's the way it unfolded so what we what we did was since mr to mr bash testified that the bonus that he agreed to was consistent with the policy drafted we showed the jury the policy that he was in the middle of drafting all mr de fazio did was take take but mr bashardost testimony take the policy show the jury what was inside scope outside scope ran the revenue numbers compared to the budget numbers and he came up with the calculations of fourteen thousand the jury i'm happy to answer more questions about the evidence in this case your honour's but i would point out that this was a not not an easy case for the jury to sort out in this remarkable that they did and i think it really a demonstrates why on this is a case that clearly involves a bona fide dispute if the jury categorically rejected the theory of the case of the plaintiff and came up with a number which is so well  evidence clearly there was a bona fide dispute they rejected my client's point of view they rejected the plaintiff's point of view and came up with a verdict and we can't lose sight of the fact the judge child sat through this testimony listened to the arguments listen to the evidence and she too was able to make an evaluation of the evidence but also and i don't want to dwell on this too long but it we can't lose sight of the fact that the jury is charged with evaluating credibility and mr with all due respect mr davis he had some credibility issues one of his claims was he was asking for heat he filed a request for expense reimbursement representing that he made these expenses on behalf of the company in the jury did not accept that klein the second thing is mr davis was terminated because he falsified vacation records in the jury heard this evidence so the jury has got to be thinking well maybe there's a contract maybe not but we have issues with what he's claiming they clearly found that his his theory  case was not persuasive in so we can assume that if you combine the facts in front of the jury and you can combine a record of perhaps not fully persuasive credibility it's certainly understandable how the been entirely inappropriate in this case we've got a response to discovery that this is an oral contract unless again unless counsel was to stipulate that this is a written contract the contra contract and she cited to c j s in the absence of any south carolina authority i think that's what we got to go with but there was some vague reference to mathis versus brown as authority but if we look back at that case that six ninety eight se suckin it seven seventy seven the appellant in that case conceded that it was an oral contract the oral i'm sorry a written contract the oral discussions oral contract the contra proffering on charges entirely approach inappropriate because in south carolina the law an oral contract says that the terms have to be so clear definite certain and precise that neither party can reasonably misunderstand them and that's from the also first has veered case it was in some talk about this draft policy apparently was something that which i came up with to calculate the bonus and that policy that he was developing the policy in india this is in his testimony the policy you that he was developing was but just in sales commission policy there i think all parties agree that the  and so the draft policy then became relevant as to what mr bashar had on his mind he agreement that he reached orally with him was based on a policy that had not been developed correct so all agreement didn't have all of the terms in it i guess you could argue that i go how else can you do it as well i understand what is the purpose of this i mean how is this not ambiguous if is a oral agreement to conform something to a policy that has not been developed i couldn't really add i'm from north carolina that sounds ambiguous to me but to me how that is not ambiguous well it's not a question of ambiguity it's a hard to use it how do you i mean i don't get it i'm trying to understand you got this draft policy was that the basis for the fourteen your you're right honor and that's exactly our point there was no meeting of the minds then that's why we submitted all this basket of evidence regarding that particular scenario keep in mind and i think will tell me about the best you me draft policy yes you're on how do you get that e n for what purposes of parole evidence was it something to explain this thing you're not supposed to have an oil contract call deal what is it your honor in mr bush or it's testimony he he testified extensively about this policy that he drafted he clearly had something on his mind when he was t testified about three or four years after the facts and so it was our view that we've got mr bashar back in two thousand and five we've got mr bush or when he testifies let's go back and see if we can grab the mr bashar back in time and the policy that he's drafting was almost like mr bush shorts speaking from the grave this was the real mr bush or this is what he had on his mind if you go back and look at his catholic damages but they did it is that where you go here this goes that i'm still having some difficulty if you are defending this fourteen thousand ab i don't know where it's gone your honor i'm defending it because done objected to it came in and you let it you put it in a yard where we're defending ag and i said it's a peculiar situation i'm defending a point is verdict if it but do you mean confusing well particular in that i'm a defense lawyer and quite frankly i still don't think there was a meeting of the minds and if he'll stipulate today it was a written agreement then you could remand this case with an instruction to enter a verdict on behalf of my client but i do want to settle for me if your basic argument is that they really were entitled to no damages but the jury gave fourteen thousand maybe miss evidence that probably should not have been used for that purpose which was a draft policy use that to to explain th oral agreement that's not supposed to be ambiguous i don't think i would concede that what i would with with respect i would say that the jury took it wouldn't sin in front of it that was not false that was perfectly valid we told the jury that they were very very so understanding this in one of the understanding's is mr bush shorts testimony regarding how he came up with this and it was based on the policy t drafted we found the policy that he drafted it was it was beyond dispute this is what he was working on and all we did was run the number but numbers based on on what the policy indicated i did have a no they didn't i think they opportunity to address the affirmative defense issue i'm happy to answer any of the questions  draft policy how could there be a meeting of the minds in regards to a policy that did not exist at the time the parties contracted the the the project booking bonus that was entered into evidence was dated november two thousand and five that's the calculation was based on a policy that is dated november two thousand and five the agreement between the parties is july twenty sixth two thousand and five the policy didn't exist when they entered into their agreement objective drug policy being introduced into evidence now because i was i was i didn't have any objection to that of course i didn't understand that the jury was only confused because i thought the point was being made clearly that we're not talking about a policy we wanted to make clear to the jury get it now it was it is the evidence that should have been admitted she not trifle with her probably it was in as i understand it was it was put in didn't say anything because i did want and we had i thought we were clear only asked and i obviously i was wrong we wanted the jury to understand we were not talking about the policy the policy was something completely different and we want to show this that the policy was in fact dated three months after the fact if i had known that the jury was going to say that there was a b if you had objected and a policy didn't come in you don't have to explain it well right and again so i don't get that i don't that policy come in i wanted it and i thought i thought i wanted them to know that that policy had nothing to do what we were talking about because it came after the fact i had no idea that the jury would say well we're going to say that even though it was three months after the fact that's what they meant in july i just had no idea was all wrong apparently but that doesn't change the fact that the evidence doesn't support the verdict and that it let me ask you this yes or no design saying this record but today was his claim for a bonus in excess of one hundred thousand dollars places with the testimony of every other witness not not true all bashar to testify and this is this is this is the question so with the authority what you would have promised tom davis that he would receive a new work bonus of one percent for any increase of the baseline contract after july two thousand and five yes pay him his bonus now he didn't have the numbers in front of them so he didn't do the calculations with bashar so the basic point on the policy is again whether i made a mistake or not there is forty five thousand dollars perhaps we've got a we've got a different different ballgame because that was based on the sharjah they argued based on the shorts testimony but that's not what the jury got they got they based it on this policy now i want to come back to this i did this idea that there's an oral contract there percent the idea that you can't use pro evidence to supply something that's unclear the new work bonus was a reference to a one percent bonus that was a a multiplier that was shorthand now i think this is also critical i haven't had a chance to make that opposed but it was after the fact but it goes to the point of at least what was understood to be the damages or what the bonus would constitute you know because it was our management's perspective it contradicts the letter the letter says it was for an increase of the contract they say was it for increase of the budget which they contained is different so to the degree that the pro at it explains the latter yes it would be admissible for that point to the degree that it contradicts the payment statute requires that you put the terms and conditions wages group on in writing so if you didn't put it in writing so anybody could understand it that itself is a violation of the wage payment statute and itself reason to construe the riding against the