good morning to you all right i am kim burger from rivers bro tennessee just outside nashville and i represent the misters here in jelly holly nash the t d and pie in this appeal that request reversal of the summary judgment in favor of the defendant this is a factually complete complicated case i guess it's a bit complicated factually and legally what i'd like to do rather than talk much at all about the voluminous facts in this case i'd into a single short statement the narrow issues that i think we've addressed in each of our briefs it would be this statement on behalf of the appellant from our point of view what the applicable statute of limitations is in the claim and the substantive law considerations involving the facts of when a particular claim accrues whatever the nature of that claim is installment contract copyright or a receipt those are two separate questions when you're looking at the borrowing statut when you're considering the terms of this this contract i'd like to begin by emphasizing if i may and these these legal points and i'll be glad to respond any questions whatever relevance whatever eventual relevance that this court may assign to these purported claimed contract terms in these independent agent agreements it's important to remember three four points going forward here there is no contract in this record for plaintiff bare nowhere anywhere in the record so none of these contract arguments of the apple e should apply to mr bear both parties apparently misplaced his contract there's no question that he had a contract at some time but i thought there was a concession in the record that he  was covered by the contract in the same contract that everybody else was covered in our statement in our response to their statement of admissions statement of material facts we acknowledge only that he signed a contract at some time he doesn't it's simply a replication and that's not clear in this record it appears to me because they filed it twice that they presented that to mr piatt that time it was signed and executed at that time with these odd as i say in the brief nonsensical and some of its terms that north carolina wording doesn't appear in there that is what tag used in their relationship with mr pai and i do believe they did exactly what you described but i think they did it at the outset rather than at the time they were filing these matters in the court must pi's contract as i say has no reference to north carolina law it's a different version the format is slightly different and the wording slightly different the point is in this case where they have the burden in their summary judgment position that is something that's simply not clear in this record it is a disputed issue of fact from our point of view all of these plaintiffs it mitt as i said in fact assert that they signed sums type of contract at the outset that there are lots of questions about the terms about the conditions they argue with regard to this mr garin jelly they emphasize for statute of limitations purposes that he left in two thousand and eight and he did indeed leave in two thousand and eight the only contract they've offered for him is dated late november mid november two thousand and eight without any explanation i record and i think the answer to that is they will point out and i think it's probably correct that they may be a later version of that but that is just not something that is clear and is is shown in this record as the district judges memorandum emphasizes correctly i think up to a point in deciding which state statute a limitation should apply to these agents claims north carolina or tennessee ultimately it probably doesn't make much difference whether that north carolina three year statute of limitations for general contracts is applied on the provisions of the agent's alleged contracts the contract terms or whether it's due to as  application of the tennessee borrowing statute to the application of the three year statute of limitations should still we respectfully insist permit these agents to recover for the three years preceding more important and as these amounts continue to accrue going forward they should be able to get an accounting and recover just so i understand are you conceding that irrespective of the contracts under the borrowing statute north haven't attempted to focus on that much what we're continuing for a three year statue of limitations in your briefing you don't focus on the district court's borrowing analysis correct i don't and it's not so much as a matter of we didn't certainly didn't overlook it he discussed it i just don't think that it's the central issue in the case that if that's what he used to find that north carolina law applies he did that and he commented that's sort of icing on the cake along with the fact that they say that it's the it contained in the contract terms that north carolina law will apply them at least we say that the and as i understand the apple e's brief tag argues that whether it's based on the claimed contract wording or whether it's based on this borrowing statute issue that finding under the borrowing statute forecloses our ability to argue under the trauma and the bay area case that there is this sharply disputed complicated fact issue that ultimately decides when and how a cruel has occurred at least these cases that deal with a separate of cool event that would allow us to go forward so whether the district court was obligated to accept north carolina substantive law on this subject of when and how a cruel occurred obviously is ultimately the issue in the case all of these agents earned their commissions in tennessee or other states tag is authorized to do business and doing business as an insurance entity we have some dispute about how to label them as you say they're registered in authorize a doing business in tennessee most of the pay or insurance companies are in other states and we don't know for sure in this record exactly where that money is that's been a lot of discussion about in mr best deposition and  the other quotes that we had in the in the brief a lot of discussion about how the money was handled we don't know for sure that that money is in north carolina that's a part again of their summary judgment burden of proof could be in a bank in virginia could be in a bank anywhere that's not our burden in the summ judgment stage of this it's their burden to show where that money is located don't know that that alone is that determinative their primary focus is tag's principal place of business is in north carolina and so in looking at this a cruel dispute the cruel rule the fact that the north carolina courts have said that sort of skirted over from on respect and of course the north carolina ages there's no question that accrue to north carolina they were all there there was that was never a dispute  has the question as to these plaintiffs as to be's individuals is should the substantive law aspects of petroleum and bay area i would they apply under yuri i'm sorry  we have copyright law they talk in terms we're trying to figure out what north carolina's cruel is not what federal law is right i think that the federal substantive requires in a diversity case typically that the law of the form applies and as to issues of procedure and the statue of limitations and substantive law applies of what of the of the deeper the state where the claim accrued so ultimately it's a factor carolina i know i don't think the dish you might be skirted past i don't think it accrued in north carolina well let me ask you this those federal cases at least one of them  these cases where they say if if you are invited to know the unknowable your statute of limitations doesn't run until you know that well under federal substantive law let me ask you as an additional question and i don't mean to run over judge the power but there was a separate plaintiff who was sued in north carolina by tag and the north carolina court of appeals also next the application of the rule you're arguing should be applied here i mean what clearer determination of state law do we have than that and how can you how can you argue that that's not  decisive goes back to my opening comment your honor i think the borrowing statute says we if we accept the borrowing statute in the school of the judges ruled in nashville that compels application of the three year statute of limitations that does not compel the application of substantive law considerations about how a cruel has occurred and factually whether a cruel has occurred you're not listening to your question i'm sorry the question is the bare case in north carolina specifically told us how cruel works in north carolina in this exact instance that is the subsample all the difference in that is that that a cruel rule was not really discussed in a factually disputed context because all of those people were in north carolina all of them perform their work in north carolina and all of the breaches occurred in north carolina they were north carolina resident i think you're mixing apples and oranges once you we know that we're applying north carolina law we look at the u cruel rules of north carolina the substantive law to understand their statute of limitations and bear tells us what that subset of laws and you haven't dealt with that case  the reason i haven't dealt with it is that i respectfully disagree it seems to me that when patroller and bay area say substantively factually substantively a cruel in the united states of america one claims of this type because once you get that's what erie was all about at its core what one more question doesn't doesn't christian burry christian burry i center two thousand and seventeen north carolina case resolve your argument because it talks in terms of installments must be a separate both in the agreement to perform and in the promise of compensation in order to be installment you have to have those separate promises and then determines that if everything flows from the initial promise which would be the initial sale then it's not an installment contract why doesn't christian barry solve the problem i because i believe that is inconsistent with the substantive findings in patrol and bay area and i think it's that's a north carolina supreme court case so why doesn't that tell us exactly how north carolina determines c must follow or deal with north carolina substantive law in any particular way it says we're stuck with a three year statute of limitations and we accept that and i think you may please the court i'm john hicks on behalf of the affably with me is mr kris fine and mr fine is here with me today because he actually argued the bear case in north carolina well before we get there have ha your client calculated what's to these individual items has that ever been completed your honor there were some accountings done and the materials that war from which those amounts could be calculated were provided were provided we provide to whom first of all your honor the the information on each agent's commissions and sales and expenses were available to that agent on the web portal bit tag maintained in its i'm contradicted in the record that they had access to that information the entire time that they were associated with well once  the hey is available to them the money that has accrued from their site all of the insurance products since the day that they left employment is if your honour's question is have they been provided a separate accounting of those amount we can start the year i don't know that an individual report for each one of these plaintiffs has been prepared and provided has the information from which they can draw those conclusions been made available yes your honor so your position is that all of these plaintiffs have a valuable to them today what has accrued in our names on the products that i sold  y i'm not taking that position there are i'm not saying that that's a reference is very unclear on that i think that the record indicates at some point that the calculations have not been made some individual accountings were made this was the source of some of the discovery disputes that occurred at the trial court level there are some significant disputed facts about whether those whether then information was appropriate whether it was complete and whether was made available to them but it is our position that the information from which they could draw those conclusions was made available to them in discovery so to position that even though you might be holding money on their behalf the statute of limitations has run on their ability to force you to put it to them we don't believe that we're holding any money that has accrued to them and that gets to the vesting issue that judge sharp addressed in his memorandum opinion according to that you have to work so many years  your honor to be able to be entitled to receive ongoing residual payments in the future and of and judge sharp address the vesting issue with respect to one of the plaintiffs that it's no longer case the very contracts that are involved in this case were involved and they are in fact the parties to bear were originally parties in this case and they were dismissed for lack of subject matter jurisdiction for failure of diversity so they were they were involved in this case they were dismissed the cases proceed in north carolina the north carolina court of appeals addressed the very issue this that is being argued  that was used in the cases was eerie instructive so i think that it is eerie instructive here as to what the court of appeals said in north carolina i think it's important that an application for review by the supreme court was made in the case and was not accepted and then a partition or very to us supreme court was made and what about bat which is a north carolina case that allowed continuing violations to be brought your honor i can't tell you that i'm familiar with babb but what do we do if there is let me ask a different questions that's a little unfair than what would we do if there's conflicting intermediate appellate court cases and this one is closer  point obviously bear but there's arguably conflicting what do we do in that instance i'm just curious i asked suppose i don't know if there's a person i think there's a procedure to certify question perhaps i know a district court can do that to the highest court in north carolina but the one answer is to certify it is another just to predict or which if you rely on bear because the factual premise is the same i mean how i would argument i would argue that there is instructive because it is the very same fact pattern the very same contract that's involved here and the issue was presented to the intermediate appellate court in north carolina and resolved in favor of tag in that case as to the question that was right let me ask you one follow up question do you do you or we know of any  opinion out of this the supreme court of north carolina that conflicts with their ruling we do not your ok we do not i would like to address briefly the question of what contract applied in the case we submitted in the district court found that we submitted a properly supported motion for summary judgment that left undisputed the issue about what the terms of the contracts for which contracts applied and the the plaintiffs admitted that in their statement responses to our statement of undisputed facts and judge sharpe noted that he in his memorandum or the north carolina law applies scuse me on these conceded here is that north carolina applauds he said if you had more time you'd like to argue tennessee but all things being equal he's arguing north carolina law applies and the continuing wrong doctrine allows him to bring suit and that's where the district court it i think we've addressed the continuing wrong issue with that with the intermediate north carolina appellate decision and with the concession that north carolina law applies unless the court has more questions for m there's never been an accounting for any of these plaintiffs except for mr to the b'nai and accounting that had been respectfully had been there when judge sharpe ordered the accounting for mr toobin a for reasons not explained there had been an accounting ordered and completed and filed in the record my brief on this issue of the the contracts besting there is no mutuality in these contracts that says we will do what we want to when we want to if we want to you can't make us do anything but you have to do these things these contracts are unsigned they are conflicting they are nonsensical in some places if there is no contract because there was not a meeting of the minds or not signed contracts that they apparently got lost misplaced casually handled by both sides we just know what the terms are they can't identify for this court in the place where i agreed that the terms applicable to the north carolina defendants were the same terms applicable the contracts were similar we agreed to that don't and in fact asserted it we asserted it for the reasons you described we just don't know what those contract terms were all we know is they have our money they continue to get our money going forward based on commissions earned outside the state of north carolina in tennessee what about so long in order to continue to be paid if these contracts are valid if they're not void due to absence of mutuality and other lack of specificity vagueness then i'd have a problem with the vesting problem for these but i think these contracts as far as the application of those terms ultimately it's an issue of fact that requires a trial in the entire context of this complicated picture and with these agents and tag on pages twenty nine and thirty respect  they didn't if there's anything before set down here pictures twenty nine and thirty in my brief i listed six unexplained problems that they really don't address with these so called contract terms the contracts were executed we just don't know which terms they were these north carolina people cannot be compared they had different contracts all of their work was done in north carolina they were dealing with the activities in north carolina the a cruel activities it and they described in that way for these plaintiffs did not occur in north carolina thank you thank you thank you the case will be taken under advisement