own case one six five zero five one maverick group marketing incorporated versus works environmental products at all well argument not to exceed fifteen minutes per side and malcolm before the  persisting through five buyers to sell works as hand cleaner we have three issues on appeal before we jump into the issues i would like to clarify this interview i hinted at i don't think i fully stated the standard of review for the second issue but the question of whether the order solicited provision of paragraph six to be a pill post bin shroud ruling the proper standard overview is that the factual findings should be reviewed for a clear and convincing evidence and legal questions should be reviewed in support of that standard there is a case buster versus a nationwide mutual insurance company citation for that seventeen f third six forty six circuit two thousand and thirteen jumping into the first issue the first question is whether at the summary judgment face additional court properly ruled that the failure to comply provision the sub signature provision was not a part of the contract you are in this contract which was drafted by defendant had  in the language of them really strange and it's very hard tory isn't it strange to think of them as part of the contract it's unique is definitely unique but what is different about the language is that it does say to be  within the degree meant the agreement itself has the agreement code has that language accorded to term according means to give or to grant and that language is not in a man a code of ethics it is it is unique to have it there such because the judge sutton used the word hortatory you know there are things in it such as the agent has various representation loyal service the same as the agent would expect from its own employees i think you'd be very reluctant to have somebody tried and force that against the other and would mean what you wanted there is a way yes you're a good worker but you weren't as loyal as my workers it is it is all they were no contract is all the word it the whole if you look at the beginning how the how paragraphs four and six intertwined it's not clear there is a duty of loyalty in tennessee is there is state provision a lot of these provisions loyalty is your own in this contract in those circumstances has a severability provision if you look at paragraph nine if you have something that doesn't make sense then you cut it out but the rest of the contract states you have to look at the individual provisions to see whether there specificity and here i think there's more than sufficient specificity with regard to the fire to retain provision but we do have in the what is also what is what is what is one point about  sticks out so it's not as though you would think it would be part of the contract if it wasn't part of a contract if it were only aspirational it should have been a contract you know it should have been a separate document why in the world would you take aspiration provisions and put it into the contract unless you intended it to be a part of the contract and if you are saying it's not a part of the contract as it is a part of contract because they put it in there if you didn't want to be a part of contract you should have acted out in the signator contract then you would have to say that they did intend and that this is a part of the contract you lose if it's not part of the contract no your honor if you it's not part of the contract we have a second position which is that the term order solicited should be given its natural in ordinary definition there are two avenues for us to prevail either you apply the failure to comply provision in the agreements code or you comply the orders six of the agreement is the key is the key here not the list the orders other words until something is done that makes it an order you solicited business you've solicited attention you've solicited obviously from the beginning you know when you're pitching but have you solicited an order when it isn't binding in any way even on the on the buyer in other words we know that acceptance is a separate step ok it doesn't have to be accepted but in order to be an order solicited when does it become an order right well there are two parts to that the district court ruling focused on soliciting if you look at the summary judgment order it focuses strictly on the term soliciting a defined soliciting it says a soliciting is to petition or to approach and said if it applied the natural language solicited it has rule in favor of the maverick that's in the record at two thousand and eighty nine but then he takes evidence on or you know what does it mean in the business and so on he has what a four day trial and you products that's at the record four thousand two hundred slot of why doesn't that make sense i mean the example that i would give you the is what i would think happens in business all the time is the buyer that the buyer has an order and maybe they'll accept it maybe they won't hear they've negotiated but they haven't finalized it in any way there i mean that the you would agree that everything they did up to this time was not binding on wal mart in any way wal mart could have walked away from their discussions can always walk away well you know if you make an offer i mean in my example you have placed an order and if they accept it it's a contract but it's up to the other side whether to accept it or not yes or not but i mean to get to that's the consequence of soliciting to get to the point where an order is requested soliciting has to precede it you  don't the request follows soliciting and the second part timing may get up but that's where the district court said well and in common terms it would be but then he takes the evidence and says that's not the way it operates in this industry is certain if i may get to the evidence the second point he says this is four thousand two hundred sixty three all four steps must have been completed before it can be said that an order was solicited that's a quote and the reason he knocks us out on this is that he says the i statement could have occurred in those four days to constitute soliciting soliciting necessarily had to have heard that order to have been made on july thirty first the administrative task of assigning the i don't know but which had actually  drafted the contract yes you want to and there's an ambiguity it would be construed against the drafter yes you are so you do have that going for you but in the face of that the district court embrace is this concept that in an ordinarily understandable phrase that just orders are listed means something different and special because of the testimony of an expert white even the president of works when he tried to define the senate's ordinary webster's dictionary and said well it does it required i mean i was thinking part of the answer the question i don't know that tells you the conclusion but in terms of experts it the wal mart bidding process unusual it is unusual but not with regard to solicit i mean that there is no unique industry definition for solicited under your definition under your definition any orders and five years later they say ok now we like your stuff here's the order if i'm a boss please please that that becomes a very interesting facts question because you have almost like approximate cost question as to whether the order solicited actually resulted in the orders retained and in that case there would be an interesting question i think we have a difficult issue if we had to say five years later wal mart made that order but even though in my hypothetical at least the price all of the terms had sort of been set but they just said no we don't need any right now we haven't placed an order ok what will you have some time the court to baptise for the works i think the court makes several good points on the term man a code of ethics it is a box after the signature line in the district court found on manufacturer is not even defined in that box the tires are not similar to the terms of the contract that box the font the type set is different in that box than it is in the rest of the contract the second reason i man a code of ethics said make your contract say x or make your contract say this that's not the same as actually making the contract saying something and then the fair reason is that there is no don't have any incorporating language into the contract so the man a code of ethics on its banks can apply i think that the second issue the order solicit issue let me ask you a question about that maverick testifying as to the saying thing so if we've got the plaintiff testifying and and the defendant they're authorized  officers both testifying as to the saying fine why doesn't that dispose of the issue what would be as to what the what that phrase means in the contract between the two parties why would we be gone w honor that's very interesting and that is that the that's what we have here that's the issue that was presented soliciting but the issue in this case is not soliciting what mr keely testified to what mr garrison testified to what was  after trial by the plaintiff what's what is the term solicited means to you that's not what we have here and that's not the that's not what the courts say it was ambiguous order simplicity maybe maybe i don't maybe i misunderstand i thought that what the district not unsolicited that's a very different that that that's just a wired in the time you can't separate the two throughout the contract of where orders solicited it together it's not just felicity he's not being maverick is not being compensated for soliciting a relationship for soliciting a company it's being compensated for orders only and so when you ask what is the term solicit it means that's it we that's not an issue here we understand what the solicited because just the time it takes for the mail or the i think i'll be an e mail these days so it's just the time it takes for the i think that will to get to works and say agreed i think that  say we're not going to accept think they can and that's that's what this protects you from well it protects you from from work saying we're not going to exempt art from works accepting the order thirty days later that's what this provision protection of the walmart decides not to in fact place what the discussions of talked about in other words there's no word replace them ever get a commission there's no commission to district court judge is saying order soliciting orders placed at the same because that's how i read the five step process is the last step placing the order and order is a defined i think you have to place it you have to it solicited orders under the district court's decision encompasses orders placed you have to happen order actually an actual physical order in order to get a commission so i agree that there has to be an order in exist have an order to accept it and so that's what this contract debt that's what this contract provide it's absolute me ask you one thing we talked about a mr keely is that his name kiely  not and actually the term and thought he had left in zero seven and the terminations the whole fuss here was that was wasn't until zero nine so the definition of legally and correct in that you don't usually go to the latches if you've got a statute of limitations and the case was still within the statute of limitations and not only that the latches decision would miserably yes that lance is is another reason why we think in this in this case but it's only another reason it's not necessary that's the point i'm making correct around so you know whether look at this case the cuts in both directions is this your client's position is pretty sharp elbowed this is pretty tough on them they did all this work in the last second to get nothing but supports that position you might argue is that wal mart has really elaborate bidding process and so the five steps may not make sense to too many other industries or other wholesalers retailers but this one it does but it does seem pretty unfair at the front end right because it takes so much time to finally get this first order in is there anything at the back end which softens that in other words once let's say this it worked out the other way and that they had actually gotten the agreement gotten the orders going and they've had two years of work ok so mavericks getting commissions for two years and then you terminate ok is there anything about the walmart process that's helpful to someone like maverick at the back end so it makes sense the question i'm asking yes your of commissions afterwards so he still has one hundred twenty days after we terminate and was to receive commissions it's not just that ok we're terminating today and it cuts off your commissions on the day we terminate job so this question is wal mart process arguably makes the order a kind of infinite forward stream so that if in those hundred twenty days there's a lot more money there's more money there's more money those would all be orders that he solicited within the time period or richter on their six month order that goes completion of it goes well beyond the one twenty well the way the way they're both experts testified definition of gross is flagrant extreme but the sixth circuit actually has some cases defining cross latches if you look at the case it's a pattern versus appeared in it's eight f third three forty three three forty eight it says there's a strong presumption presumption against applying gross latches prior to the special imitations absent a quote compelling reason so i would just submit that as the standard that should be applied as far as gross latch as the quotation that grows is face determined in material terms of the agreement the term nation date the effectiveness of the term nation they ruled that there was no fraud but that from the defense's encounter claims of fraud had no basis with regard to contract they found that the sub signature provisions didn't apply and they also found that defendants breach of contract counterclaim didn't apply and then at the trial phase we got to the order solicited provision so they are able to interpret that that con that contradicts the requirement that there be an uncertainty to ascertain the truth found i have an original back in my office a copy of the original is in the record at documentary sixty one dash one that's just one thousand for seventy five to seventy eight and it's also an uncontested issue in our pretrial order that there was an agreement that doesn't make any sense he also talks about the territory management agreement within it's put no evidence in that no evidence in regarding how the territory measuring agreement could impact the contract and they made no argument regarding it at the in their conclusion  operate also wal mart is unique in that the fact is you cannot solicit unique orders you have to solicit the program if you look at the e mails that's what john gibson was trying to do and actually wal mart has a rule that prevents you from soliciting orders and burroughs testimony lacks any basis because he was a retail side mean that one at least when they signed this contract they did know about wal mart and vice versa or directly but are you saying that once they began to solicit the program then everything after that was an order they solicited when you're when you're doing a supplier site there is a big difference between a supplier side and the retail side mr burroughs completely omitted from his analysis the fact that there is a at a test a separate that when you're doing the supply side wal mart figures on the front end when they're going to use you in purpose not a maverick that was an expert in wal mart getting on my business yes or they are coming that cuts against you i mean your client should have realized how this whole process works and therefore could have put in the contract when it comes to solicit orders here's how it goes he's an extra one he's definitely not a lawyer your honor he is far from clear we're not like you all know but i'm just making the point he understood the